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.

(2) Notwithstanding anything contained in subsection (1), the Court, having regard to the facts and circumstances of the case in addition to the punishment of Diyat, may punish the offender with imprisonment of either description for a term which may extend to fourteen years, as ta`zir."

"309. Waiver (Afw) ( ) of qisas in qatl-e-amd.---(1) In the case of qatl-e-amd, an adult sane wali may, at any time and without any compensation, waive his right of qisas:

Provided that the right of qisas shall not be waived--

(a) where the Government is the wali; or

(b) where the right of qisas vests in a minor or insane.

(2) Where a victim has more than one wali any one of them may waive his right of qisas;

Provided that the wali who does not waive the right of qisas shall be entitled to his share of Diyat.

(3) Where there are more than one victim, the waiver of the right of qisas by the wali of one victim shall not affect the right of qisas of the wali of the other victim.

(4) Where there are more than one offenders, the waiver of the right of qisas against one offender shall not affect the right of qisas against the other offender."

(Emphasis provided)

"310. Compounding of qisas (Sulh) in qatl-e-amd.---(1) In the case of qatl-e-amd, an adult Sane wali may, at any time on accepting badal-i-sulh, compound his right of qisas;

Provided that giving a female in marriage shall not be a valid badal-i-sulh.

(2) Where a wali is a minor or an insane, the wali of such minor or insane wali may compound the right of qisas on behalf of such minor or insane wali:

Provided that the value of badal-i-sulh shall not be less than the value of Diyat.

(3) Where the Government is the wali, it may compound the right of qisas:

Provided that the value of badal-i-sulh shall not be less than the value of Diyat.

(4) Where the badal-i-sulh is not determined or is a property or a right the value of which cannot be determined in terms of money under Shari`ah, the right of qisas shall be deemed to have been compounded and the offender shall be liable to Diyat.

(5) Badal-i-sulh may be paid or given on demand or on a deferred date as may be agreed upon between the offender and the wali.

Explanation.---In this section, badal-i-sulh means the mutually agreed compensation according to Shari`ah to be paid or given by the offender to a wali in cash or in kind or in the form of movable or immovable property."

(Emphasis provided)

"345. Compounding of offences.--(1) The offences punishable under the sections of the Pakistan Penal Code specified in the first two columns of the table next following may be compounded by the persons mentioned in the third column of that table:

Offence Sections of Pakistan Penal Persons by whom offence may Code applicable be compounded Qatl-e-amd 302 By the heirs of the victim [other than the accused or the convict if the offence has been committed by him in the name or on the pretext of karo kari, siyah kari or similar other customs or practices] Qatl under ikrah-i- 303 -do- tam Qatl-e-amd not liable 308 -do- to qisas

7. The judicial consensus on the aforementioned provisions of the law, especially relating to compromises, whereby the 'wali' waives off the 'Diyat' payable to the minor legal heirs of the deceased has not been consistent. There have been divergent views emanating from different High Courts of our jurisdiction.

8. We have precedents, whereby, the Courts have approved the compromises whereby 'Diyat' is waived off by a 'wali' of the minor legal heirs of the deceased. Reference may be made to the judgment rendered by Sindh High Court in case titled Allauddin v. The State (2001 MLD 1757), wherein, it was held that:--

"From the perusal of the authority relied upon by the learned counsel for the applicant, it is clear that the Wali is competent to forego the Diyat on behalf of the minor."

Similarly, in Muhammad Hanif s case (1993 PCr.LJ 166) wherein it was held that:--

"3. Since the deceased had left six minor children, the question arose; whether Qisas could be waived on their behalf by their mother as she had said so.

4. Today at the hearing the learned counsel for the complainant Mr. Muhammad Munir Khan stated that against the judgment under appeal, the State had filed an appeal before the Supreme Appellate Court, wherein it was held that Qisas will not be liable in such a situation', i.e. in the circumstances of this case. The judgment is reported as The State v. Muhammad Hanif and 5 others' 1992 SCMR 2047. Therefore, the learned counsel contends that sections 309 and 310, P.P.C. relating to right of Qisas are not applicable. The matter is governable under section 345, Cr.P.C. and thereunder the compromise entered into by the father, mother and widow on her own behalf and on behalf of her minor children may be allowed. The parties have also compromise in the other murder case in which they stood in converse position.

5. Learned counsel appearing for the State agrees with the legal submission of the learned counsel for the complainant and states that compromise may be allowed.

6. Learned counsel for the convict-appellant, of course, requests for acceptance of the compromise.

7. In view of the above, the compromise is allowed. The appellant is acquitted. He shall be released forthwith if not wanted in any other case."

Although reference of the judgment of Supreme Court in Muhammad Hanif's case (1992 SCMR 2047) has been given in Muhammad Hanif's case (1993 PCr.LJ 166), however, the perusal of the former judgment would show that the apex Court has not dilated upon the issue discussed in the latter judgment.

In Abdul Ghani's case (2008 PCr.LJ 455), in Sindh High Court has held that:--

"The widow along with minor children and the complainant are present in Court. She submits that she has on her own free volition entered into a compromise whereby she has pardoned the appellants on her behalf and on behalf of the minors, in the name of Almighty Allah, without any compensation, merely for creating amenity between the parties, who are related to each other.

In the circumstances, the applications are granted, the case stands compromised and the appeal is disposed of accordingly. The appellants are acquitted."

9. On the other hand, there are judgments, wherein Courts have followed a strict view of ensuring that the 'Diyat' payable to the minor legal heirs of the deceased is secured and protected and refused the waiver of the 'diyat' by the 'wali' of the minor legal heirs of the deceased. In this regard, reliance is sought of the judgment rendered by the Balochistan High Court in case titled The State v. Abdul Aziz (1993 PCr.LJ 68) wherein it was held that:--

"With due deference and all humiliation I have my reservations to the view taken in above reported case for the reasons that the statute has not conferred a right to forgive the accused by the minor. As it has already been observed hereinabove that the right of waiver is a personal right, therefore, the same cannot also not be exercised by the guardian. The legislature in view of the injunctions of Islam has rightly curtailed this right of the minors because it may give rise to so many complications at the time when the minor shall attain majority. For instance if on having grown-up he repudiates the action of his guardian and claims trial of the accused on merits or he alleges that the guardian in fact has received compensation by way of getting Diyat but to hoodwink his rights the compromise was styled as waiver. Thus to avoid such complications, the larger interest of the minor this right has not been conferred upon him. It is observed that if the offence is compounded by way of 'Sullah', then in that case right of the minor would be fully protected because to the extent of his share Badl-i-Sulh' shall be received by his guardian and on attaining the majority he would be empowered to recover the same from the persons who legally acted on his behalf while compounding the offence."

(Emphasis provided)

It would not be fair, if the judgment rendered the Lahore High Court in Abid Hussain's case (PLD 2002 Lahore 482) is not discussed. This authoritative judgment, after comprehensively discussing all the relevant provisions of P.P.C. relating to 'Diyat' 'Arsh' and 'Daman' and payment thereof in cases of compromise being effected between the parties, finally held, inter alia, that:--

(I) Sections 331, 337-X and 337-Y of P.P.C. were contrary to the fundamental rights provided under the Constitution of Islamic Republic of Pakistan to be void.

(II) Directed the Federal Government to refer the matter to the Council of Islamic Ideology.

(III) Directed the Federal Government to frame rules as contemplated under section 338-G of P.P.C.

(IV) All convicts who are unable to pay the Diyat, Arsh and Daman and had already undergone six months on account of non-payment of thereof were to be released under section 544-A of Cr.P.C. but despite the said release from prison, their liability for payment of Diyat, Arsh and Daman was to remain intact and the amount due from them was to be recoverable from them as arrears of land revenue. It was further held that such convicts may apply to the concerned authorities for financial assistance from the Zakat Fund or Bait-ul-Mal.

10. The aforementioned judgment was impugned by the State before the apex Court, which was heard by a Full Bench of the Supreme Court and its verdict was reported as Abid Hussain's Case (PLD 2007 SC 315). The apex Court, finally, held that:

"(i) Sections 331, 337-X and 337-Y, P.P.C. are intra vires of the Constitution of the Islamic Republic of Pakistan, 1973.

(ii) The Federal Government is hereby directed to frame Rules under section 338-G, P.P.C. to give effect to these provisions of law, providing mechanism for creating the funds for the purpose of making payment of Diyat, Arsh and Daman of the convicts, who on account of their weak financial position, are languishing in Jails for want of making the said payment, within a period of three months.

(iii) While framing the rules the possibility may also be examined as to whether out of the funds created, soft loans can be extended to the convicts, enabling them to satisfy the claim of the legal heirs of the deceased or victim. Simultaneously it would also be examined whether it would be possible for the Government to provide jobs to the convicts, other than the Government Departments through social organization or philanthropist, enabling the convicts to disburse the amount of loan, if extended to them.

(iv) A provision be also made available in the rules that in appropriate cases, the Trial Court may examine the question of release of such prisoners on parole, who, after having served out the substantive sentence of imprisonment, if any, are confined in Jails on account of non- payment of Diyat, Arsh and Daman.

(v) As an interim arrangement, the convicts, who have already undergone substantive imprison-ment but are in Jails all over the country due to non-payment of Diyat or Arsh, shall be released forthwith under sections 331(1) and 337-X, P.P.C., subject to furnishing security to the satisfaction of the District and Sessions Judge concerned for a period of three years, enabling them to make the payment of Diyat and Arsh at their own resources in lump sum or in equal instalments, or taking loans from the funds, created by the Government. Similarly, the convicts who are in jails only on account of non-payment of Diyat or Arsh, as no substantive imprisonment was awarded to them in accordance with law, shall also be released forthwith in the same manner, as noted hereinabove.

If the amount of Diyat and Arsh is not paid by a convict within the stipulated period, he shall be dealt with under sections 331(2) and 337-X(2), P.P.C.

(vi) The Federal Government shall also evolve a mechanism to ensure that the rights of the victims i.e. heirs of deceased and the injured for the purpose of Diyat, Arsh and Daman are equally protected by making specific provision in the Rules.

(vii) The Federal Government shall also examine whether the period of three years under sections 331 and 337-X, P.P.C. can be enlarged up to seven years. Similarly, in section 337-Y, P.P.C., relating to payment of Daman, same provision will be incorporated as previously no such period was provided perhaps on account of some omission.

(viii) The above arrangements shall continue till the framing of the Rules by the Federal Government. Thereafter the cases of such convicts shall be dealt with accordingly, under the said Rules."

11. In consequence of the afore-mentioned decision of the apex Court, the Federal Government was pleased to frame 'Diyat', Arsh and Daman Fund Rules, 2007' ("Rules"). The Rules envisaged a 'Fund' , which had its source immigrating from annual grants from the Federal and Provincial Governments, aid, assistance and contribution from local, national, international agencies; and donations from private organizations and individuals. The 'Fund' was managed and controlled by an Administrative Committee, consisting of four members headed by the Federal Minister for Law, Justice and Human Rights, as its Chairman. The Rules further provided mechanism for providing soft loan and grant for payment of 'Diyat', 'Arsh' or 'Daman' to the needy convicts.

12. In view of above, this Court seeking guidance from the 'ratio decidendi' of the Abid 'Hussain's case (Supra), the principles whereof have been followed in Naseer Ahmed's case (2011 SCMR 1292), Zia's case (2011 SCMR 1444) and Ali Muhammad's case (2011 SCMR 1964) reiterates that:--

(I) A 'Wali' of the minor legal heir of the deceased ("minor") is not competent to forego payment of 'Diyat' due to the minor;

(II) The rights of the minor have to be protected and secured by the 'wali' and the Courts;

(III) The actual payment of 'Diyat' due to the minor can be deferred by his 'wali', but it cannot be waived off.

13. In the present case, it is clear from the report of the worthy trial Court that a genuine compromise has been effected between the parties. The major legal heirs have pardoned the appellant convict and waived off their right of 'Diyat' in the name of Almighty Allah and have got no objection on acquittal of convict appellant.

So far as the case of Chiragh, the only minor legal heir of deceased is con-cerned, his interests have also been safe-guarded by his mother and `walia', Mst. Gul Jan, as she has validly entered into an agreement with the appellant convict, whereby, she has agreed to defer the payment of `Diyat'.

14. Accordingly, we accept the compromise, allow the instant appeal, set aside the conviction and sentence awarded to the appellant Muhammad Sabir vide impugned judgment dated 3-12- 2012 and acquit the appellant convict of the charges levelled against him in this case. The appellant, if not required in any other case, be released forthwith.

15. Before parting, with the judgment, the appellant is directed to ensure payment of 'Badl-i- Sulh'/'Diyat' amounting to Rs.525,923 to Mst. Gul Jan, the mother/ 'walia' of the minor Chiragh within the stipulated period, as agreed upon between them. In case of failure, the said amount would be recovered from the appellant and the law would take its course.

HBT/233/P Appeal allowed.