MUHAMMAD AWAIS vs STATE

Sardar Tariq Masood, J.--Muhammad Awais appellant was tried by learned Judge, Anti-Terrorism Court, Dera Ghazi Khan in case FIR No, 67 dated 24.03.2007 registered under Section 302, PPC read with Section 7 Anti-Terrorism Act, 1997 at Police Station Civil Lines District D.G. Khan for the murder of Musa Raza deceased. The learned trial Judge vide judgment dated 13.08.2007 convicted the appellant u/S. 302(b), PPC read with Section 7(a) ATA, 1997 and sentenced him to death. He was further directed to pay compensation of Rs, 1,00,000/u/S. 544-A, Cr.P.C. to the legal heirs of the deceased or in default thereof to further undergo 6 months S. I.

The appellant has filed Crl. Appeal No, 50-ATA of 2007 against his conviction and sentence whereas the learned trial Court has sent a reference (CSR.No, 04-A of 2007) u/S. 374, Cr.P.C. for the confirmation of death sentence of the appellant or otherwise. We propose to dispose of both these matters by this single judgment.

2. During the pendency of appeal, Crl. Misc. No, 1185-M of 2011 was moved by the appellant seeking permission from this Court to allow the compromise arrived at between the legal heirs of the deceased and the appellant. A copy of this application alongwith its annexures were sent to the learned Judge, Anti-Terrorism Court, D.G. Khan for the verification of compromise. He was also directed to record the statements of the legal heirs of the deceased and also to see that if there are any other legal heirs of the deceased, their interest should also be protected and submit a report. The report dated 21.12.2011 has been submitted by the learned Judge, ATC, D.G. Khan, according to which, Musa Raza deceased was survived by legal heirs i,e, Ghulam Haider (father), Mst. Zarina Bibi and Mst. Farhana Azam (widows), Mst. Fouzia Raza and Rakhsanda Batool (major daughters), Farhan Raza and Muhammad Abis (minor sons), Mst. Arsa, Mst. Uz ma Batool, Mst.

Zohra Fatima and Mst. Nida Fatima (minor daughters) which were duly verified by SHO P.S. Civil Lines, D.G. Khan and Tehsildar, D.G. Khan. According to the said report, all the legal heirs have been identified by Qazi Sadar-ud-Din, Advocate, D.G. Khan. The major legal heirs of the deceased have got recorded their statements that they have entered into a compromise with the appellant ma have forgiven him in the name of Almighty Allah and waived their right of Qisas and Diyat and have no objection if the appellant is acquitted of the charge. According to the said report, Mst. Farhana Azam (widow) being mother and natural guardian of Farhan Raza (minor son) and Mst. Zareena Bibi (widow) being mother and natural guardian of Muhammad Abis, Mst. Uzma Batool, Mst. Arsa, Mst. Nida and Mst. Zohra got recorded their statements regarding compromise on their behalf and also on behalf of the minor legal heirs and have no objection for the acquittal of the appellant. To safeguard the interest of the minors, total amount of diyat becomes Rs, 6,43760/-, out of which Rs, 45599/- is determined the share of each minor daughter and Rs, 91,199/- the share of each minor son. According to the said report, the original Defence Saving Certificates valuing Rs, 1,00,000/- in the name of each minor sons and Rs, 50,000/- in the names of each minor daughters have been purchased and handed over to their mothers in the presence of their learned counsel. After recording the statements of all major legal heirs and after delivering the Defence Savings Certificates to the .mothers of minors, learned Judge, ATC submitted his report and also forwarded the whole proceedings.

On 17.01.2012, this Court has observed that the learned Special Judge ATC in his report had not mentioned that the compromise between the parties was free from any duress or coercion. In such an eventuality, all the major legal heirs of the deceased have been called and learned counsel for the appellant was directed to produce them before this Court.

Today, Ghulam Haider (father) Mst. Zarina Bibi and Mst. Farhana Azam (widows), Mst. Fouzia Raza and Rakshanda Batool (major daughters) have appeared before this Court duly identified by the learned counsel for the appellant. All the major legal heirs verified the factum of compromise arrived at between them and the appellant. They stated that they have compromised the matter with the appellant with their free will, without duress or coercion and have no objection if the appellant is acquitted of the charge. They also verified their statements recorded by learned Judge, ATC. Mst. Farhana Azam and Mst. Zarina Bibi (widows) also confirmed that they have received the Defence Savings Certificates on behalf of the minors.

3. Learned DPG for the State has no objection if Cr1. Misc. No, 1185-M/2011 is allowed and appeal of the appellant is accepted.

4. In view of the report dated 21.12.2011 submitted by learned Judge, ATC, D.G.Khan, we observe that the parties have genuinely entered into a valid compromise with the appellant/convict and this will promote peace and harmony in the locality. The interest of minors stood duly safeguarded. The compromise arrived at between the appellant and legal heirs of the deceased would certainly promote harmonious living and maintain cordial relations between the parties.

Although in this case, trial was conducted by the learned Judge, Anti-Terrorism Court, D.G. Khan but while convicting the appellant, the learned trial Court had not convicted the appellant separately u/S. 7(a) ATA, 1997. It is also a circumstance that the appellant was not charged separately u/S. 7 ATA, 1997. The learned trial Court while convicting the appellant categorically observed that the appellant was convicted u/S. 302(b), PPC read with Section 7(a) ATA, 1997, so primarily, the appellant was convicted u/S. 302(b), PPC and no conviction or sentence was passed by the learned trial Court separately u/S. 7(a) ATA, 1997. Although Section 7 of ATA, 1997 was not compoundable but the parties had entered into a compromise in substantive/main offence of Qatal-eAmd. Even otherwise, Hon'ble Supreme Court of Pakistan in the case of Ghulam Shabbir and 2 others vs. The State (2003 SCM R 663) allowed the compromise in non-compoundable offence also as the parties had entered into compromise in substantive/main offence of Qatal-e- Amd.

5. In view of above, seeking enlightenment of the above referred judgment of Ghulam Shabbir's case (supra), we allow petition for compromise (Crl. Misc. No, 1185-M/2011). Cbnsequently, Crl.

Appeal No 50-ATA of 2007 filed by the appellant is accepted, his conviction and sentence awarded by the learned trial Court is set-aside and he is acquitted of the charge on the basis of compromise. He is in jail. He shall be released forthwith, if not required to be detained in any other case.

6. The death sentence of Muhammad Awais appellant is n confirmed . Murder Reference No, 04-A of 2007 is answered in the negative.