BASHIR AHMED vs THE STATE

' This Criminal Revision Application has been filed against the order dated 6-9-1993 passed by 1st Additional Sessions Judge, Karachi (East) on an application under section 345(2), Cr.P.C. Filed by the parties seeking permission to compromise their dispute in respect of Sessions Case No,487/93 arising out of an F.I.R. No,193/1993 registered at Police Station New Town, Karachi under section 302, Qisas and Diyat Ordinance. The deceased Irshad All son of Azmat Ali had himself lodged the said F.I.R. Before his death under section 324, Qisas and Diyat Ordinance, 1991 and after his death the offence was converted into section 302, Qisas and Diyat Ordinance.

2. During the pendency of the case, the members of the complainant party patched up their dispute with the family of the accused. The deceased was unmarried but he had left behind one married sister, two brothers and his father while his mother had already expired before the incident.

According to the learned counsel for the applicant/accused only father of the deceased, from among the members of deceased's family, was the sole surviving legal heir to possess all legal rights to compromise with the accused party on any of the terms permitted by law. However, the learned Additional Sessions Judge did not agree with this contention because he was of the view that the consent of all other surviving heirs of the deceased was also necessary for the purpose of compromise. Hence he directed that all the legal heirs of the deceased should file their affidavits within 15 days failing which the compromise application would be dismissed.

3. The applicant being dissatisfied with and aggrieved by the said order of the learned Additional Sessions Judge filed the present Revision Application with the prayer that the impugned order be set aside and the compromise application be ordered to be accepted by the trial Court.

' After hearing the learned advocate for the applicant, I had no doubt in my mind that, in the light of the circumstances mentioned above, only father of the deceased possessed all rights to compromise with the accused on any of the terms permitted by law. The amount of Diyat, if any, paid or to be paid by the accused or on behalf of the accused, has to be treated as the property of the deceased. Therefore, for the purpose of distribution of the said property among the legal heirs of the deceased, all provisions of the Muslim Law of Inheritance would be applicable to such property in the same manners as to be applied for all other properties of the deceased. In the present case, mother of the deceased was not a surviving member of the family at the time of incident otherwise she could inherit 1/3rd share of the amount of Diyat and after her death her children as well as her husband had right to get that share distributed among themselves. As the mother of the deceased had expired before the incident, therefore, no one was entitled to get anything from the estate of the deceased except his surviving father. The sister and two brothers of the deceased could inherit the property of the deceased if none of the parents had been alive.

However, I considered it appropriate to seek guidance from the views of religious scholars belonging to the same school of thought to which the deceased and his family belonged. The learned counsel for the applicant has assisted the Court by bringing on record the Fatawas (Religious decrees) from different religious institutions which show that all of them possess unanimous view that, in the present case, father of the deceased would inherit all the rights over the properties of the unmarried deceased, and remaining heirs, such as sisters or brothers, stand excluded from possessing anything of the deceased's property as legal heirs.

4. Resultantly, I allow the Revision Application, set aside the order of the trial Court and hold that the father of the deceased is the only legal heir to compromise with the accused on any of the terms permitted by law. In the light of above, compromise application filed by the parties before the trial Court be treated as allowed.