P L D 2008 Lahore 418 (PLP)

SYED SHABBAR RAZA RIZVI, J.

Muhammad Anwar son of Abdul Ghafoor was tried by the learned Addl. Sessions Judge, Faisalabad in F.I.R. No.31 of 2005, under section 302, P.P.C., registered at P.S. Ghulam Muhammadabad, Faisalabad. He was convicted and sentenced to death under section 302(b), P.P.C. vide judgment dated 13-7-2005. He was also ordered to pay Rs.100,000 as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, falling which the convict would further undergo six months' S.I.

2. The convict, Muhammad Anwar filed Criminal Appeal No.368-J/2005 against his conviction and sentence which is pending adjudication. In the meantime, he filed Criminal Miscellaneous No.703-M/2007 for decision of the said appeal on the basis of compromise arrived at between the legal heirs of the deceased and the appellant.

3. Report was sought from the learned Sessions Judge, Faisalabad with regard to verification of compromise. The learned Sessions Judge, Faisalabad submitted his report on 25-7-2007. According to the report, all concerned were called, and as a consequence, Abdul Ghafoor (the brother), Mst. Rashidan Bibi, Mst. Ghulam Fatima (the sisters), Mst. Rehana Kasuar, Mst. Razia Sultana (the daughters) of deceased Muhammad Ashraf turned up. All of them got recorded their statements that Muhammad Ashraf, deceased was murdered by Muhammad Anwar, appellant; that the deceased was married with Mst. Parveen Akhtar but divorced her in his life time; that parents of the deceased had already died prior to the occurrence; that Mst. Shabana, one of the daughters of the deceased, is missing from the house for the last 7/8 years and her whereabouts are not known to anybody; that there is no minor legal heirs. According to the learned Sessions Judge, all the legal heirs except Mst. Shabana, affirmed that with their free consent they effected compromise with the appellant and waived their right of Qisas and Diyat; and they pardoned the appellant in the name of Almighty Allah without getting any compensation. They further stated that they had no objection if Muhammad Anwar, appellant was acquitted of the charge. Muhammad Siddiq, step-brother of the deceased as well as complainant of the case also appeared before the learned Sessions Judge and gave statement to the above effect. In the last, the learned Sessions Judge showed his satisfaction over the compromise and he stated that the parties, except Mst. Shabana, daughter of the deceased, made compromise with a view of better understanding and peaceful co-existence.

4. Regarding non-availability of Mst. Shabana, daughter of the deceased who is missing for 7/8 years, reference is made to Article 124 of Qanun-e-Shahadat Order, 1984. According to which "when the question arises whether a man is alive or dead and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it." In this case, there is no witness or sign that Mst. Shabana is alive. Therefore, if Mst. Shabana, daughter of the deceased appears subsequently and she does not waive her right of Qisas, she shall be entitled to her share of Diyat as provided in proviso to subsection (2) of section 309, P.P.C. In this regard PLD 2005 Lahore 174, Rukhsana Bibi v. State is referred to.

5. In view of what has been stated above, we accept Criminal Miscellaneous No.703-M of 2007. Resultantly, Criminal Appeal No.368-J of 2005 is allowed. The conviction and sentence of the appellant is set aside and he is acquitted of the charge. He is ordered to be released if not required to be kept in jail in any other case.

6. In view of the acceptance of the criminal appeal, Murder Reference No.639 of 2005 is answered in the Negative. N.H.Q./M-157/L Compromise accepted.