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Before Yahya Afridi and Waqar Ahmad Seth, JJ SABIR---Appellant

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Before Yahya Afridi and Waqar Ahmad Seth, JJ SABIR---Appellant 2013 Y L R 1787 [Peshawar] Before Yahya Afridi and Waqar Ahmad Seth, JJ SABIR---Appellant Versus The STATE and another---Respondents Criminal Appeal No.157-A of 2012, decided on 18th April, 2013. Penal Code (XLV of 1860)--- ----Ss. 302(b), 306, 308, 309 & 310---Criminal Procedure Code (V of 1898), S.345---Qatl-e- amd---Compromise between accused and legal heirs of the deceased, whereby, major legal heirs of the deceased had pardoned accused and waived off their right of 'Diyat' in the name of Almighty Allah, and had no objection on acquittal of accused---Walia/mother of the only minor legal heir of deceased had also compromised the right of 'qisas' of minor on payment of 'Badl-i- Sulh', in shape of 'Diyat'---Trial Court, in pursuance of orders of High Court, recorded statements of all the legal heirs of the deceased and the notables of the locality in respect of said compromise, and submitted report that compromise between the parties was genuine--- Compromise was accepted and allowing appeal, conviction and sentence awarded to accused by the Trial Court vide impugned judgment, was set aside and accused was acquitted of the charges levelled against him, and he was acquitted and released, with the direction to ensure payment of 'Badl-i-Sulh'/'Diyat' to mother/walia of the minor as agreed upon between them. Allauddin v. The State 2001 MLD 1757; Muhammad Hanif's case 1993 PCr.LJ 166; Muhammad Hanif's case 1992 SCMR 2047; Abdul Ghani's case 2008 PCr.LJ 455; The State v. Abdul Aziz 1993 PCr.LJ 68; Abid Hussain's case PLD 2002 Lah. 482 and Abid Hussain's case PLD 2007 SC 315 ref. Naseer Ahmed's case 2011 SCMR 1292 and Zia's case 2011 SCMR 1444 rel. Bilal Khan for Appellant. Muhammad Nawaz Khan Swati, A.A.-G. and Fazal-i-Haq Abbasi for Respondents. Date of hearing: 18th April, 2013. JUDGMENT YAHYA AFRIDI, J.---Sabir son of Muhammad Suleman, the present appellant has filed the instant appeal against the judgment dated 3-12-2012 recorded by learned Additional Sessions Judge, Balakot/ Camp Court, Mansehra, whereby, he convicted the appellant for the offence chargeable under section 302(b) of Pakistan Penal Code, 1860 ("P.P.C.") and sentenced him to imprisonment for life and also held him liable to pay compensation for an amount of Rs.500,000 to the legal heirs of deceased under section 544-A of Criminal Procedure Code, 1898 ("Cr.P.C.") or in default thereof to suffer simple imprisonment for six months. 2. An application dated 3-1-2013 filed on behalf of appellant sought early fixation of instant appeal, as the parties had entered into a compromise in the case. The application was positively considered and the matter regarding compromise was sent to the learned trial Court vide order of this Court dated 16-1-2013. The trial Court was directed to record the statements of all the legal heirs of deceased Yaqoob son of Behram and elders of the locality; and to ensure that the stated compromise was genuine and in accordance with law; and thereafter the report of the trial Court was to be placed before this Court. 3. The learned trial Court, in pursuance of the orders of this Court, recorded statements of all the legal heirs of the deceased and the notables of the locality in respect of the compromise effected between the parties and submitted his report dated 19-2-2013. The said report reads as follow:-- "Case No.59/7 of 2010 (The State v. Muhammad Sabir) received from the honourable High Court, Abbottabad Bench and registered on 30-1-2013. Notice was given to counsel for complainant with direction to produce all the legal heirs of deceased before this Court at Mansehra. Notice was also given to counsel for convict. On 4-2-2013, counsel for the convict and legal heirs of deceased were present, they submitted formal compromise in favour of the convict. According to Column No.7 of the compromise deed the legal heirs include (1) Mst. Khanum Jee (mother), (2) Mst. Gul Jan (widow), (3) Muhammad Shabbir (son), (4) Mst. Nazia (daughter), (5) Muhammad Saraj (son) and (6) Chiragh (minor son); and are compatible with the list already available on judicial file. The L.Rs. Nos. 1 to 5 are adult who in their joint statement recorded on 4-2-2013 pardoned the convict Muhammad Sabir in the name of Almighty Allah and waived off their right of Diyat. However, the compromise could not be concluded for want of deposit of the amount of Badl-i-Sulh (compensation) necessary to give effect to compromise on behalf of minor Chiragh. The counsel for the convict sought time for arrangement of amount required to be deposited in the name of afore-named minor son of deceased. After few adjournments on request of learned counsel of convict for said purpose, he i.e. counsel for the convict along with mother of aforesaid Chiragh appeared on 19-2-2013. Statement of Mst. Gul Jan (walia/mother) of minor Chiragh was recorded wherein she stated that said Chiragh is below the age of 18 years. The convict being not able to make payment of Badl-i-Sulh for the time being has entered into an agreement with the minor Chiragh through her. She produced the agreement entered into with the convict on behalf of minor for deferment of the payment of Badl-i-Sulh to the tune of Rs.525,923. After having accepted the deferred Badl-i-Sulh in the aforementioned sum she stated to have compounded the offence of murder of Yaqoob as Walia (guardian) of minor Chiragh. Original agreement after perusal was returned, copy of the same was retained for record. It is respectfully submitted that subsection (2) of section 310, P.P.C. empowers the wali (guardian) of minor to compound the right of qisas on behalf of minor with only exception that value of Badl-i-Sulh shall not be less than the value of diyat. The agreement as to deferment of the payment of compensation to the minor legal heir has been accepted having regard to subsection (5) of section 310, P.P.C. which provides: "Badl-i-Sulh may be paid or given on demand or on a deferred date as may be agreed upon between the offender and wali." 4. Learned counsel for the appellant and the complainant party vehemently argued that the major legal heirs of deceased have waived off their right of 'qisas' and 'Diyat' and the 'walia' of the only minor legal heir of deceased has compounded the right of 'qisas' of minor on payment of 'Badl-i-Sulh' in shape of 'Diyat'; that the appellant, at the moment, was unable to pay the amount of 'Diyat', however, he has validly entered into an agreement with 'walia'/guardian of the minor and the payment of 'Badl-i-Sulh'/'Diyat' was deferred in accordance with the provisions of section 310 of P.P.C.; that the compromise be accepted and the appellant be acquitted of the charge and conviction on the basis of compromise. In rebuttal, learned A.A.-G. ably assisted by learned counsel for complainant contended that a 'wali' of a minor legal heir of deceased under no circumstance is competent to forego 'Diyat' on behalf of the said minor; that a 'wali' can enter into a settlement to pay the amount of 'Diyat' on a deferred date but an offender cannot get away without payment of 'Diyat' or 'Badl-i- Sulh' to the minor legal heir. 5. Valuable arguments of the learned counsel for the parties heard and the available record of the case thoroughly considered. 6. In order to appreciate the legal issue involved in the present appeal, this Court considers it appropriate to review the provisions provided in sections 306, 308, 309 and 310 of P.P.C. and section 345 of Criminal Procedure Code, 1898 ("Cr.P.C."). The said sections read as under:-- "306. Qatl-e-amd not liable to qisas.---Qatl-e-amd shall not be liable to qisas in the following cases, namely: (a) when an offender is a minor or insane; Provided that, where a person liable to qisas associates with himself in the commission of the offence a person not liable to qisas with the intention of saving himself from qisas, he shall not be exempted from qisas; (b) when an offender causes death of his child or grandchild howlow-soever; and (c) when any wali of the victim is a direct descendant, howlowso-ever, of the offender." "308. Punishment in qatl-e-amd not liable to qisas, etc.---(1) Where an offender guilty of qatl-e-amd is not liable to qisas under section 306 or the qisas is not enforceable under clause (c) of section 307, he shall be liable to Diyat; Provided that, where the offender is minor or insane, Diyat shall be payable either from his property or, by such person as may be determined by the Court; Provided further that where at the time of committing qatl-e-amd the offender being a minor, had attained sufficient maturity of being insane, had a lucid interval, so as to be able to realize the consequences of his act, he may also be punished with imprisonment of either description for a term which may extend to fourteen years as ta`zir; Provided further that, where the qisas is not enforceable under clause (c) of section 307, the offender shall be liable to Diyat only if there is any wali other than offender and if there is no wali other than the offender, he shall be punished with imprison-ment of either description for a term which may extend to fourteen years as ta'zir.
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