MUHAMMAD AZAM Versus State
MUHAMMAD TARIQ ABBASI, J.--- This judgment shall dispose of the above captioned Murder Reference and the Criminal Appeal as both are outcome of same judgment dated 28.2.2014, passed by the learned Additional Sessions Judge, Jampur, District Rajanpur, whereby in case FIR No. 51 dated 01.10,2012, registered under sections 302/311, 114, P.P.C. at Police Station Laal Garh, Muhammad Azam (appellant) has been convicted under section 302(b), P.P.C. and sentenced to death, with compensation of Rs.1,00,000/-, payable to the legal heirs of the deceased, otherwise to serve simple imprisonment for six months.
2. The precise facts are that in the above mentioned case, the appellant was challaned for commission of qatl-e-amd of Mst. Tasleem Mai, which was received in the court of learned Additional Sessions Judge, Jampur, District Rajanpur; the appellant was charge sheeted; he pleaded not guilty and claimed the trial; all the proceedings including recording of the prosecution evidence, statement under section 342, Cr.P.C. were completed and finally the judgment was pronounced in the above mentioned terms. Consequently, the Murder Reference and the Appeal in hand.
3. During pendency of the above said matters, criminal miscellaneous. No. 204-M/2014 was preferred, with the contention that a compromise between the appellant/convict and the legal heirs of the deceased has been arrived at, whereby he has been forgiven, hence the proceedings under section 345, Cr.P.C. may be carried on and the matters may be disposed of.
4. To know genuineness or otherwise of the compromise, the matter was referred to the learned Sessions Judge, Rajanpur, where the due proceedings were carried on and accordingly a report has been submitted. As per the report, Mst. Tasleem Mai (deceased) was unmarried and survived by her parents namely Zafar Khan and Mst. Malka Mai; both made the statements to the effect that they have effected compromise with the appellant/convict (Muhammad Azam), whereby they forgiven him, the murder of their above named daughter in the name of Allah Almighty, without any compensation and have no objection if, in consequence of the compromise, the appellant/convict (Muhammad Azam) is acquitted of the charge. The learned Sessions Judge, Rajanpur has held the compromise to be genuine, voluntary and in interest of the parties. Even today, the above named parents of the deceased are available before the court and confirm the factum of compromise as reported by the learned Sessions Judge, Rajanpur.
5. The learned Deputy Prosecutor General has contended that as the murder was on the pretext of karokari and siyakari' , hence the appellant may be dealt with under section 311, P.P.C. Although the FIR was also registered under the said provision and the appellant, besides offence under section 302, P.P.C., was also charge sheeted under section 311, P.P.C., but he was sentenced only in offence under section 302(b), P.P.C., meaning thereby that the learned Trial Court while considering the attending facts and circumstances and evidence on the record did not deem it necessary to convict and sentence the appellant in offence under section 311, P.P.C. Even as per section 345(2-A), Cr.P.C., if an offence under Chapter XVI of the Pakistan Penal Code, 1860, has been committed in the name or on the pretext of karokari and siyakari' , or on other similar customs or practices, such offence may be waived or compounded subject to such conditions as the court may deem fit to impose with the consent of the parties having regard to the facts and circumstances of the case. No clear evidence is available on the record to constitute the offence involving the element/mischief of (fasad-fil-arz). The Hon'ble Supreme Court of Pakistan in the judgment "Iqrar Hussain and others v. The State and another" (2014 SCMR 1155) , while discussing section 345, Cr.P.C. and 311, P.P.C., has held as under:-
----Ss. 302 & 311---Criminal Procedure Code (V of 1898), S. 345---Qatl-e-amd---Reappraisal of evidence---Compromise between parties---Compounding of right of "Qisas" by legal heirs of the deceased---Offence not constituting fasad-fil-arz"---Accused were convicted and sentenced for murder of deceased---During pendency of appeal before the High Court, compromise was effected between the parties, which was duly verified to be genuine by the Trial Court---High Court, however held that present case was of the nature which fell within the definition of "fasad-fil-arz and because the accused acted in a brutal manner, the crime committed was outrageous to public conscious, therefore, compounding right of "Qisas" by the "walis" would not completely exonerate the accused nor could they go without any punishment--- High Court convicted the accused under S.311, P.P.C. despite the compromise effected between the parties---Validity---Section 311, P.P.C. was attracted in cases punishable with "Qisas" and not to cases punishable under "Ta'azir"---Section 302, P.P.C. was compoundable in view of provisions of S. 345, Cr.P.C.---Accused entered into a genuine compromise with the complainant/legal heirs of deceased---No clear evidence was available to constitute the offence involving the element/mischief of fasad-fil-arz, thus the High Court was not justified in law to convert the punishment of the accused to one under S. 311, P.P.C. instead of acquitting them on the basis of compromise---High Court had committed a legal error in convicting and sentencing the accused for crime under S. 311, P.P.C., which caused serious miscarriage of justice---Appeal was allowed on the basis of compromise, and accused were acquitted of the charge leveled against them.
A learned Division Bench of this court in the case of "Abdul Hameed v. The State and another" (2011 MLD 1919) , while dealing with the instant like situation, had made the following conclusion:-
"The above discussion brings us to the conclusion that the offences falling under Chapter XVI of P.P.C. and mentioned in the schedule under section 345, Cr.P.C. even if committed in the name of "ghayrat" "Karo Kari", "Sayah Kari" and similar other customs, are compoundable and may be waived."
6. The parents of the deceased frankly contend that the offence in question was not in consequence of karokari and siyakari' , hence they are not inclined to impose any condition upon the appellant/convict.
7. As a result of the above mentioned discussion, in our view, there is no hurdle to accept the compromise. Consequently, the Criminal Appeal No. 97/2014 is accepted , the impugned judgment is set aside and Muhammad Azam is acquitted of the charge. The Murder Reference No.23/2014 is answered in negative and the death sentence of Muhammad Azam is not confirmed .
HBT/M-363/L Appeal accepted.