1993 P Cr (PLP)

2. Hence this petition.

3. During the pendency of this petition it was submitted before me that the heirs of both the deceased persons had granted Afw to the petitioner and it, was consequently prayed that he be acquitted.

4. Mst. Hamida Bano (widow), Mst. Tayyaba Zafar and Mst. Nafisa Zafar (daughters), Imran, Noman, Irfan, Adnan and Rizwan (sons) appeared before me today as heirs of Muhammad Zafar Malik deceased. Their statements have been separately recorded on oath after being identified by Mr. Asif Akhtar Malhi, Advocate. Each one of them deposed before me that the parents of Muhammad Zafar Ali Malik deceased had died and that they were the only surviving heirs of the said deceased person and added that they had granted Afw to Naseer Ahmad convict. They further prayed that he be acquitted.

5. Likewise, Mst. Razia Bibi (widow), Mst. Tahira Kausar, Mst. Zahida Bibi and Mst. Fauzia Shaheen (daughters) and Atiqur Rehman, Aneesur Rehman and Haseeb Ahsan (sons) appeared before me as the heirs of Abdul Hafiz deceased. Their statements have also been separately recorded on oath on being identified by Mr. Asif Akhtar Malhi, Advocate. It was declared by them that both -the parents of Abdul Hafiz deceased had also died and that they were the only surviving heirs of the said deceased and had granted Afw to Naseer Ahmad convict. They also prayed that he be acquitted.

6. I am satisfied with the voluntary nature of the Afw granted by the heirs of both the deceased persons to Naseer Ahmad convict. But a question which arises is whether a convict can be acquitted of the charge under section 304-A, P.P.C. in view of the Afw granted to him.

7. As per section 345, Cr.P.C. and the Second Schedule appended to the Cr.P.C., the offence punishable under section 304-A, P.P.C. was not compoundable. This and the other relevant provisions of the Cr.P.C. and the P.P.C. were, however, amended through Ordinance No.VII of 1990 and the said amending Ordinance was re-enacted and continued through subsequent Ordinances and the said amendments are thus still in force.

8. The offence under section 304-A, P.P.C. stands re-enacted, through the abovementioned amendment, as an offence punishable under section 320 of the Pakistan Penal Code. Through a newly-added provision contained in section 338-E, P.P.C., the provisions of section 309, P.P.C. regarding grant of Afw have been made applicable to all the offences falling in Chapter XVI of the Pakistan Penal Code. The above mentioned section 320, P.P.C., which is a substitution for the old section 304-A, P.P.C. is one such provision which falls in the said Chapter. Then there is a section 338-H of the P.P.C. which makes the provisions of section 309, P.P.C. applicable even to the offences committed before the promulgation of the abovementioned Criminal Law (Second Amendment) Ordinance No.VII of 1990.

9. A survey of these newly-added provisions would demonstrate that the offence of causing death through rash and negligent driving which was previously punishable under section 304-A, P.P.C. and which is now punishable under section 320, P.P.C. would be an offence in respect of which the heirs of the deceased victims of the said offence had a right to grant Afw to the culprit. The provisions of section 345 and provisions of the Second Schedule of the Cr.P.C. as they now stand, permit composition of the offence under section 320, P.P.C. at the behest of the heirs of the victims and further envisage acquittal of the culprit in the light of the said composition.

10. Consequently, I find that the heirs of the deceased-victims of the present case are entitled to grant Afw to the convict and the Afw, if so granted to the satisfaction of the Court, did authorise the Court to acquit the said convict in view of the provisions of section 345, Cr.P.C.

11. As has been mentioned above, I am satisfied with the voluntary nature l of the Afw granted to Naseer Ahmad convict by the heirs of the two deceased, persons of the present case and nothing exists on record which could persuade me not to allow the composition of the offence in question as permitted by section 345, Cr.P.C. It may also be mentioned here that in pursuance of an application submitted by Naseer Ahmad convict seeking suspension of his sentence, I had constituted a Special Medical Board for his medical examination and the said report received indicates that Naseer convict is suffering from renal failure as also from pulmonary tuberculosis.

12. In view of what has been noticed and discussed above, I allow the composition of the offence in question. Consequently, the conviction and sentences recorded against Naseer Ahmad convict-petitioner, through a judgment, dated 14-7-1988 of a learned Magistrate Section 30 at Narowal and as maintained by a learned Additional Sessions Judge of Narowal vide his judgment dated 7-3-1993, arc set aside. He is acquitted of the charge under section 304-A, P.P.C. as envisaged by the provisions of section 345, Cr.P.C. He' shall be set at liberty forthwith if not required to be detained in any other case. N.H.Q./N-155/L Accused acquitted,