1996 P Cr (PLP)

Fazal Illahi Khan, J. Opinion of second Judge: I agree. (Sd. ) Saiduzzaman Siddiqui, J, Order of the Bench The petition is dismissed. Leave refused. (Sd.) Saiduzzaman Siddiqui, J (Sd.) Fazal Illahi Khan, J Dated 25-1-1996."

6. It was on 8-12-1995 that the petitioner filed an application in this Court under section 561-A/345, Cr.P.C. read with Qisas and Diyat Ordinance, 1991 for his acquittal on the basis of a "compromise". This petition, it may be mentioned here, was dismissed for non-prosecution on 18-2-1996. An application for the restoration of the abovementioned petition was filed on 12-3?1996 which was accepted on 24-3-1996 and the Criminal Miscellaneous No. 147 of 1995 was restored to its original number and was to be heard, in motion, on a date to be fixed by the office.

7. Today I have heard the learned counsel for the petitioner at length. It may be pointed out here that the learned counsel for the petitioner, in para. 4 of his petition, specifically stated as under:-- "

4. That the petitioner is a poor man and he could not go on further appeal to the august Supreme Court of Pakistan against the decision of this Honourable Court, dated 5-6-1994."

8. I am surprised as to what prevented the learned counsel for the petitioner from disclosing the fact that the petitioner's petition for leave to appeal Ghulam Hazrat v. The State Jail Petition No. 193 of 1994, was dismissed by the Honourable Supreme Court of Pakistan on 25-1-1996. The procedure adopted by the learned counsel for the petitioner, in not disclosing the abovementioned fact, is not only highly improper but also amounts to misuse of the process of the Court. He was, therefore, advised to be careful in future.

9. Thereafter, when the learned counsel for the petitioner was asked as to how this petition could be entertained when no appeal was pending in this Court and that the matter has since been finally decided by the Supreme Court of A Pakistan, referred to above he submitted that in such like matters a guideline has been laid down by the Honourable Supreme Court of Pakistan in case Nazak Hussain v. The State reported as PLD 1996 SC 178 by a Full Bench consisting of their Lordships. Mr. Justice Zia Mahmood Mirza, Mr. Justice Muhammad Munir Khan and Mr. Justice Muhammad Bashir Khan Jehangiri. It has been 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 W made before the 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, application for permission to compound the offence shall be made before the appellate Court, who shall determine all questions 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 wavier or compounding of an offence, the accused and the legal heirs of the deceased shall be treated parties to the proceedings under section 338-E(1), P.P.C."

10. The counsel for the petitioner, therefore, prayed that he be allowed to withdraw this petition with permission to approach the trial Court in this case under section 338-E(2), P.P.C. The request, being genuine, is granted and this petition is dismissed as withdrawn. The petitioner may now approach the trial Court which shall act in accordance with law.

11. The office is directed to see that the dictum laid down by the Honourable Supreme Court of Pakistan in case reported as PLD 1996 SC 178 is followed in letter and spirit, in future. N.H.Q./1933/P??????????????????????????????????????????????????????????? Petition dismissed as withdrawn