MUHAMMAD ILYAS Versus State

ORDER

MUHAMMAD MOOSA K. LEGHARI, J .--- This is an application for grant of permission to compromise an offence under section 302, P.P.C. having been filed in the matter of J.P. No.350 of 2006.

2. In consequence of registration of F.I.R. No.37, dated 5-2-2000, Police Station Garjakh, Gujranwala, the petitioner was tried by Sessions Judge, Gujranwala. He was awarded death penalty vide judgment, dated 19-6-2001. The appeal filed by the convict was dismissed by learned Lahore High Court, Lahore, vide judgment, dated 13-7-2006 and the sentence of death awarded by the trial Court to the petitioner was upheld. The petitioner therefore, filed a jail petition thereby challenging the conviction and sentence.

3. Learned counsel for the petitioner submits that the convict/petitioner is the real father of victim girl and was not liable to Qisas as such death penalty was not warranted under the law. He further submits that the deceased at the time of death was unmarried and was survived by her mother besides the father, who is the petitioner. The only legal heir of the victim viz. the mother has compounded the offence and has forgiven the petitioner in the name of Almighty Allah. Such a report has been submitted by Sessions Judge, Gujranwala. Thus, the prayer be granted.

4. Learned Deputy Prosecutor-General has conceded that the penalty of death as Qisas was not warranted in the circumstances, however, the petitioner shall be liable to punishment as Ta'zir besides payment of Diyat amount but since the mother of the deceased has forgiven the petitioner in the name of Almighty Allah, the Court may accept the compromise.

5. We have considered the arguments and have also examined the relevant provisions of law. From perusal of the provisions of section 306, P.P.C. it transpires that as the case of the petitioner falls within clause (c) of section 306, P.P.C. he was not liable to Qisas but the punishment provided under section 308, P.P.C. will be attracted. Section 308(1), P.P.C. provides that when an offender is guilty of Qatl-e-Amd not liable to Qisas under section 306, P.P.C. or the Qisas is not enforceable under clause (c) of section 307, P.P.C. then he shall be liable to pay Diyat. In view of the above, the petitioner shall be liable to payment of Diyat to the legal heir of deceased, which in this particular case is the mother of the deceased: The report submitted by the Sessions Judge reveals that Mst. Mukhtaran Bibi, the mother of the deceased, has voluntarily entered into compromise with her ex-husband Muhammad Ilyas, the convict-petitioner, and has forgiven him- in the name of Almighty Allah without receiving any compensation or Badl-e-Sulh. Such statement of Mst. Mukhtaran Bibi recorded on oath by Sessions Judge, Gujranwala, has been placed on record. In such circumstances, the permission to affect compromise is granted.

6. Subsection (2) of section 308, P.P.C., however, provides that " 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 twenty-five years, as Tazir" . It would not be out of place to mention that the quantum of sentence was enhanced from fourteen years to twenty-five years vide Criminal Law (Amendment) Act, 2004, whereas the occurrence in the present case took place on 5-2-2000.

7. Consequently, the sentence of death awarded to the petitioner is modified. According to section 308(2) as it stood on the date of the offence the petitioner is liable to imprisonment for a term extendable to 14 years as Ta'zir beside the payment of Diyat.

8. For the foregoing reasons we direct that petitioner shall be liable to undergo the sentence of 14 years as the Diyat has been waived. The judgment of the trial Court, which was upheld by the Lahore High Court, is accordingly modified to that extent. Resultantly, the jail petition and the criminal miscellaneous application is disposed of in the above terms.

H.B.T./M-127/SC Order accordingly.