NAZAK HUSSAIN vs THE STATE

ORDER

' MUHAMMAD MUNIR KHAN, J.---This petition for review of the order dated 11-3-1992 of this Court passed in Criminal Petitions for Leave to Appeal Nos. 7 and 8 of 1992, arises from the facts that Nazak Hussain petitioner was tried by Additional Sessions Judge, Islamabad, for the murder of Mst.

Parveen Akhtar who, vide judgment dated 4-11-1989, while convicting under section 302, P.P.C.

Sentenced him to death and a fine of Rs,10,000 or one year's R.I. In default. He was directed to pay Rs,10,000 as compensation to the legal heirs of the deceased or in default to suffer R.I. For six months.

On appeal, the Lahore High Court, Rawalpindi Bench, Rawalpindi, maintained the conviction of the petitioner under section 302, P.P.C. But altered the sentence of death to imprisonment for life. The petitioner as well as the complainant then filed Petitions for Leave to Appeal Nos.7 and 8 of 1992 which were dismissed by this Court on 11-3-1992. After about three years of the dismissal of the petitions, the petitioner has filed this review petition on the basis of compromise arrived at between the parties. The adult legal heir of the deceased have waived right of Qisas without any compensation. The share amount of the minor legal heirs has been deposited in their P.L.S. Account No,518-8 with the Habib Bank Limited, Supreme Court Building Branch, Islamabad.

2. We have heard Mr. Zia Hussain Kazmi, Advocate, learned counsel for the petitioner. We find that this petition is not. Only barred by 1120 days for which no reasonable explanation has been given but is also incompetent and misconceived, in that, review of an order passed on merits is not possible on the basis of a compromise arrived at between the parties after the disposal of the petition for leave to appeal/appeal and expiry of the limitation for filing revision petitions. In criminal proceedings review of an order is possible only when an error is apparent on the face of the record and on no other ground. So, this petition is dismissed as being barred by time and misconceived as well.

3. Before parting with the order we would like to observe that instead of filing review petition in this Court, the petitioner should have approached the trial Court under section 338-E(2) of P.P.C. Which may be reproduced advantageously:- "Ali questions relating to waiver or compounding of an offence or awarding of punishment under section 310, whether before or after the passing of any sentence, shall be determined by trial Court: ' Provided that where the sentence of Qisas or any other sentence is waived or compounded during the pendency of an appeal, such questions may be determined by the appellate Court".

' The provisions of this subsection are similar to the provisions of section 47 (1) of C.P.C. Which reads as under:- "All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit"

For the guidance of the subordinate Courts and the citizens, it is hereby laid down that--

(i) in case of Qatl-e-Amd, if the right of Qisas is waived without any compensation, or compromise is arrived at between the parties i,e, accused and the adult legal heirs of the deceased, during the pendency of trial, the application for permission to compound the offence shall be made before the trial Court who shall determine all questions relating to waiver or compounding of an offence or awarding punishment under section 310, P.P.C.

' In case of Qatl-e-Amd, if the right of Qisas is waived without any compensation or the legal heirs of the deceased compound their right of Qisas within the meanings of sections 309 and 310, P.P.C., during the pendency of appeal, applications for permission to compound the offence shall be made before the appellate Court, who shall determine all questions relating to waiver or compounding of an offence or awarding punishment under section 310, P.P.C.

(iii) Under section 338-E(1), P.P.C., subject to the provisions of Chapter XLV and section 345 of the Code of Criminal Procedure, all offences under Chapter XLV, P.P.C. Relating to homicide and hurt may be waived or compounded and the provisions of sections 309 and 310, P.P.C. Shall, mutatis mutandis, apply to the waiver or compounding of such offences. So, if any offence under Chapter XLV affecting the human body is waived or compounded after the decision by the trial Court or the decision of appeal, if any, an application for permission to waive or compound the offence shall lie before the trial Court which shall determine all questions relating to the waiver or compounding of an offence or awarding of punishment under section 310, P.P.C., and if the trial Court is convinced that the waiver of right of qisas or compounding of an offence punishable under Chapter XLV is genuine and in order, it shall acquit the accused.

(iv) If a question arises as to whether any person is or is not the legal heir of the deceased, such question shall be determined by the Court competent to receive application on the basis of waiver or compromise between the parties.

(v) For the purpose of determination of questions relating to the wavier or compounding of an offence, the accused and the legal heirs of the deceased shall be treated parties to the proceedings under section 338-E(1), P.P.C.

4. The petitioner may approach the trial Court in this case under section 338-E(2), P.P.C., if so advised, and the trial Court shall act in accordance with law.