2012 PLP 682 (MLD)

IMAM BUX BALOCH, J.

Granted.

2. Granted subject to all just exceptions.

3. Mr. Altaf Hussain Surahyo, State counsel waives notice of this application. Heard learned counsel for the applicant, as well as learned State counsel. Mr. Morio contended that as the appeal of the applicant was dis-posed of by a Division Bench of this court vide judgment dated 1-6-2010 and death sentence was reduced to life imprisonment. He further states that the appellant has not challenged the judgment of this court before Hon'ble Supreme Court. He further states that the legal heirs of the deceased Ali Gul have compounded the offence with the appellant and such application was filed in the trial Court, but the trial Court is reluctant to accept the compromise application on the ground that the compromise application entertained due to misconception of law and the appellant has to file such compromise application before this court. He further stated that under section 338-E, P.P.C. when the appeal is not pending in any court, the trial Court is competent to entertain compromise application and decide the same. Learned State counsel concedes to such position and further stated that section 338-E, P.P.C. empowers trial Court to entertain and decide the compromise application, if no appeal is pending in any court. I have considered the submissions advanced at the bar and perused section 338-E P.P.C, which reads as under:-- "338-E. Waiver or compounding of offences.

(1) Subject to the provisions of this Chapter and section 345 of the Code of Criminal Procedure, 1898 (V of 1898), all offences under this Chapter may be waived or compounded and the provisions of sections 309 and 310 shall, mutatis mutandis, apply to the waiver or compounding of such offences: Provided that, where an offence has been waived or compounded, the Court may, in its discretion having regard to the facts and circumstances of the case, acquit or award tazir to the offender according to the nature of the offence: Provided further that where an offence under this Chapter has been committed in the name or on the pretext of honour, such offence may be waived or compounded subject to such conditions as the Court may deem fit to impose with the consent of the parties having regard to the facts and circumstances of the case. (2) All questions relating to waiver or compounding of an offence or awarding of punishment under section 310, whether before or after the passing of any sentence, shall be determined by trial Court: Provided that where the sentence of Qisas or any other sentence is waived or compounded during the pendency of an appeal, such questions may be determined by the appellant Court: Provided further that where qatl-e-amd or any other offence under this Chapter has been committed as an honour crime, such offence shall not be waived or compounded without permission of the Court and subject to such conditions as the Court may deem fit having regard to the facts and circumstances of the case." From bare reading of section 338-E, P.P.C, it is clear that if no appeal is pending in any Court, the trial Court is competent to decide all questions relating to compounding offence or waiver thereof. In the case of Baz Muhammad v. The State (2000 PCr.LJ 553, full bench of Hon'ble Federal Shariat Court, has held as under:-- "For the guidance of the subordinate Courts and the citizens, it is hereby laid down that-- (i) in case of Qatl-e-Amd, if the right of Qisas is waived without any compensation, or compromise is arrived at between the parties i.e. accused and the adult legal heirs of the deceased, during the pendency of trial, the application for permission to compound the offence shall be made before trial Court who shall determine all questions relating to waiver or compounding of an offence or awarding punishment under section 310, P.P.C. (ii) In case of Qatl-e-Amd, if the right of Qisas is waived without any compensation or the legal heirs of the deceased compound their right of Qisas within the meanings of sections 309 and 310, P.P.C, during the pendency of appeal, applications for permission to compound the offence shall be made before the appellate Court, who shall determine all question's relating to waiver or compounding of an offence or awarding punishment under section 310, P.P.C. (iii) Under section 338-E(1), P.P.C, subject to the provisions of Chapter XLV and section 345 of the Code of Criminal Procedure, all offences under Chapter XLV, P.P.C. relating to homicide and hurt may be waived or compounded and the provisions of sections 309 and 310, P.P.C shall, mutatis mutandis, apply to the waiver or compounding of such offences. So, if any offence under Chapter XLV affecting the human body is waived or compounded after the decision by the trial Court or the decision of appeal, if any, an application for permission to waive or compound the offence shall lie before the trial Court which shall determine all questions relating to the waiver or compounding of an offence or awarding of punishment under section 310, P.P.C. and if the trial Court is convinced that the waiver of right of Qisas or compounding of an offence punishable under Chapter XLV is genuine and in order, it shall acquit the accused. (iv) If a question arises as to whether any person is or is not the legal heir of the deceased, such question shall be determined by the Court competent to receive application on the basis of waiver or compromise between the parties. (v) For the purpose of determination of questions relating to the waiver or compounding of an offence, the accused and the legal heirs of the deceased shall be treated parties to the proceedings under section 338-F(1), P.P.C." It was further held in the above case that concept of waiving the right of Qisas or compounding the offences is not restricted only to the cases pending before the Court, but these provisions can be invoked at any time before execution of sentence and as detailed above, Court is always competent to entertain and give effect to the compromise between the parties even after decision of the case and would not be functus officio in matters of compromise." Since the appeal of the appellant was decided by Division Bench of this court and no appeal was filed by the applicant, therefore, under section 338-E, P.P.C, the trial Court is competent to decide the questions relating to waiver and compounding the offence. In view of above position and following the law laid down in case of Baz Muhammad (supra), this criminal miscellaneous application stands allowed, and the trial Court is directed to decide the pending applications within the period of two weeks in view of provisions of section 338-E, P.P.C. H.B.T./R-18/K Application allowed.