SHER KHAN vs THE STATE

' IFTIKHAR MUHAMMAD CHAUDHARY, J.---Sher Khan son of Chahat Khan (30 years) has been convicted for the. Offence under section 302/34, P.P.C. And was sentenced to death and also to pay a fine of Rs.50,000 and in default thereof to further undergo three years' R.I., alongwith co-accused Nazar Hussain Shah who was also convicted and sentenced in the same manner on the same count. Convicts filed criminal appeal in the Lahore High Court Lahore. The learned trial Court i.e. Additional Sessions Judge, Lahore also forwarded Murder Reference No.72 of 1992 to the High Court for confirmation or otherwise of death sentence.

2. Learned High Court in appeal proceedings confirmed the death sentence of appellant Sher Khan whereas the appeal to the extent of Nazar Hussain Shah was found to have been abated due to his natural death in Central Jail, Lahore.

3. Against, the orders of trial Court and Appellate Court convict Sher Khan filed petition for leave to appeal before this Court being No.215-L/1998 which was allowed vide order dated July 14, 1999 and permission was accorded to him to file appeal which has now given rise to instant proceedings.

4. Pending adjudication of the appeal parties entered into compromise with the legal heirs of deceased Nazir Ahmad, therefore, an application being Criminal Miscellaneous No.50 of 2000 was filed alongwith compromise seeking permission of the Court to compound the offence And give effect to the compromise. It may be noted, that amongst legal heirs of deceased Master Abdul Razzaq, Javed Ali and Ms. Fouzia Bibi sons/daughter of deceased have been shown minors and a statement in the application has been made that the Diyat amount to their extent will be deposited by the applicant (appellant). The Sessions Judge, Lahore vide its report dated 28-4-2000 had verified the details of the legal heirs of deceased and has also confirmed that the deceased is survived by them. At the hearing some of the legal heirs i.e. Widows Mst. Hanifa Bibi and Aisha Bibi also appeared in the Court and stated that they have entered into compromise with the appellant.

5. Mr. Ijaz Hussain Batalvi, learned counsel for appellants contended that in the interest of justice permission be accorded to parties to compound the offence and as a consequence thereof appellant be ordered to be released from custody.

6. Learned counsel appearing for the State also expressed no objection on the acceptance of the compromise:

7. It is to be observed that in the instant case incident took place on August 26, 1987 vide F.I.R. Exh.

PB No.21 of 1989 of Police Station Manga Mandi much before the commencement of the Criminal Law (Second Amendment) Ordinance, 1990, therefore, question for consideration would be as to whether in view of such circumstances permission can be accorded to compound the offence. To resolve this dilemma provisions of section 338-H, P.P.C. Has to be pressed into service, according to which nothing in this Chapter (Chapter XVI of Offences affecting the Human Body) except sections 309, 310 and 338-13 shall apply to cases pending before any Court immediately before the commencement of the Criminal Law (Second Amendment) Ordinance, 1990 (VII of 1990) or to the offences committed before such commencement.

8. Thus in our opinion, petition for leave to appeal or appeal arising out of it shall be falling within the framework of above section authorizing this Court to entertain/dispose of compromises in criminal cases. This liberal interpretation of section 338-H, P.P.C. Has been done in the interest of general public so majority of them may enjoy benefit of Islamic provisions of criminal administration of justice and by settling their disputes amicably as per Injunctions of Islam and they may bury their differences for future life. We are fortified in forming this opinion by the law laid down in the case of Safdar Ali and others v. The State and another (PLD 1991 SC 202). Relevant observations therefrom are reproduced hereinbelow:-- "It is also relevant to point out that despite the fact that the offence was committed before the commencement of the Criminal Law (Second Amendment) Ordinance, 1990, the offence committed in this case can be compounded. This is possible on account of the provisions of section 338-E read with section 338-H, P.P.C."

' In view of above discussion compromise so filed by the legal heirs of deceased Nazir Ahmad with appellant Sher Khan son of Chahat Khan is accepted subject to depositing share of Diyat of minors with the Registrar of this Court who shall invest the same in any of the profit-bearing schemes if so far said amount has not been deposited. However, the minors after attaining majority shall be entitled to withdraw the said amount in accordance with law. As a consequence of acceptance of compromise permission is accorded to compound the offence by the appellant with the legal heirs of Nazir Ahmad. Accordingly conviction/sentence awarded to the appellant by the trial Court vide order dated 11th December, 1991 which has merged in the appellate order dated 25th March 1998 in Criminal Appeal No.45 of 1991 and Murder Reference No.72 of 1992 is set aside and he is directed to be released forthwith if not wanted in any other case.