GHULAM SHABBIR and 2 others vs THE STATE

ORDER

ABDUL HAMEED DOGAR, J.-Petitioners named above by means of instant petition have assailed the judgment dated 26th September, 2001 passed by Lahore High Court, Rawalpindi Bench.

2. Precisely stating facts, necessary for disposal of instant case are that petitioners alongwith other co-accused were tried for the charge under sections 302/324/337-A(ii)/148 and 149, P.P.0 read with section 9 and sections 6,7 and 8 of Anti-Terrorism Act, 1997 by the Special Court constituted under Anti-Terrorism Act, 1997, in pursuance of F.I.R. No,174, dated 13th August, 1993 registered at Police Station Jand, District Attock. Learned trial Court on conclusion of the trial found the petitioners guilty'of the charge and vide judgment dated 23rd September 2000 sentenced them as under:--

1. Under sections 302/49, P. P. C Sentenced petitioner Ghulam Shabbir to imprisonment for life with a fine of Rs,20,000 payable to the legal heirs of deceased Siddique Umar under section 544-A, Cr.P.C. Sentenced petitioners Ghulam Shabbir, Ghulam Raza and Mushtaq Ahmed to undergo R.I. For 10 years each with fine of Rs,10,000 each payable to the legal heirs of Siddique Umar deceased under section 544-A, Cr.P.C.

2. Under section 324, P.P.C Sentenced petitioner Ghulam Raza to 7 yearsR.I. With fine of Rs,20,000 in default whereof to undergo further R.I. For 6 months.

3. Under sections 324, and 149, P.P.C Sentenced Ghulam Shabbir to 7 yearsR.I. With fine of Rs,20,000 or in default whereof to undergo 6 monthsR.I.

4. Under section 337- A(i), P.P.C Sentenced petitioners Ghulam Shabbir and Mushtaq Ahmed to 2 yearsR.I.

5. Under sections 337-A(i) and 149, P.P.C Sentenced petitioners Ghulam Shabbir, Ghulam Raza and Mushtaq Ahmed to 4 yearsR.I.

6. Under section ATA, 9 of 1997 Sentenced petitioners Ghulam Shabbir, Ghulam Raza to 2 yearsR.I. Each with fine of Rs,10,000 each in default whereof to undergo 2 months R.I.

7. Under section 148, P.P.C Sentenced petitioners Ghulam Shabbir, Ghulam Raza and Mushtaq Ahmed to 3 yearsR.I.

With fine of Rs,1,000 each in default whereof to further undergo one month R.I. Benefit of section 382-B, Cr.P.C. Was also given to the petitioners and all the sentences were ordered to run concurrently.

3. Feeling aggrieved from the judgment of the trial Court, petitioners alongwith another co-accused approached Lahore High Court, Rawalpindi Bench, Rawalpindi by filing Criminal Appeal No,386-T of 2000. Learned High Court, after hearing both the sides, by means of impugned judgment dated 25th September, 2001, maintained the conviction by modifying the sentence as under:-- 1.Under sections 302 and 149, P.P.C Sentenced petitioners Ghulam Shabbir, Ghulam Raza and Mushtaq Ahmed to imprisonment for life each with direction to pay Rs,10,000 each as compensation to the legal heirs of deceased under section 544-A, Cr.P. C.

2. Under sections. 324 and 149, P.P.C Petitioners were acquitted of the charge. Rest of the conviction/sentence was however maintained.

As such instant petitions for leave to appeal have been filed.

4. It is also important to note that subsequent to above said F.I.R. No,174 dated 13th August, 1993, on 19th December, 1998 another F.I.R. No, 216 with the same Police Station was .Registered under sections 302/324/148/149 and 109, P.P.C. On the complaint of present petitioners-accused.

5. Mr. Talib H. Rizvi, Sr. ASC, appearing on behalf of petitioners filed Criminal Miscellaneous Application No,123 of 2002, wherein he stated that rival parties have compounded the offence and have forgiven to each other in the name of Almighty Allah. He further stated that in this behalf a compromise has been effected, therefore, same may be accepted and petitioners be acquitted of the charge.

6. In order to verify the contents of the compromise, Sessions Judge, Attock was directed to conduct an inquiry. He submitted his first report dated 12th June, 2002 wherein legal heirs of deceased Siddique Umar and injured have forgiven the accused in the name of Almighty Allah and have expressed no objection on their acquittal. Learned Sessions Judge recorded statements of all the injured as well as the major legal heirs of the deceased in this respect. However, an injured Ghulam Raza was not produced because of being detained in Adiala Jail, Rawalpindi. Since it was a partial compromise, as statement of above mentioned injured Ghulam Raza was not recorded and `Diyatamount to the extent of minor legal heirs namely Hassan Farooq and Ahmed Farooq of deceased Siddique Umar was also not deposited, as such vide order dated 15th October, 2002 of this Court, learned Sessions Judge was directed to summon the said injured and record his statement. He was also directed to determine the share of `Diyatof the minors and ensure its deposit in the name of minors in any Government sponsored profit-bearing scheme. In consequence whereof learned Sessions Judge submitted another report dated 14th November, 2002, wherein the statement of injured Ghulam Raza was recorded who also forgave the petitioners in name of Almighty Allah and waived their right of Qisas as well. As far as minors are concerned, their respective share of Diyat was deposited in Government sponsored profit bearing scheme of DSCs with National Saving Centre-I, Attock, payable to them on being. Major. Learned Sessions Judge found the compromise to be genuine, verified by all the legal heirs and injured and certified the same to be correct and valid.

7. Learned counsel appearing on behalf of parties stated that as all the legal heirs as well as injured have forgiven the petitioners in the name of Almighty Allah and waived their rights of Qisas and Diyat, therefore, petitioners may be acquitted of the charge.

8. In view of above discussion, we are satisfied with the report of learned Sessions Judge, Attock. We are also convinced that the legal heirs and Wali of deceased Siddique Umar, namely Ghulam Hussain (father), Mst. Kaniz Fatima (mother), Mst. Razia (widow), and injured victims Muhammad Khan, Nusrat Ali, Ghulam Raza, Ghulam Hussain have compounded the offence with the petitioners on their behalf as well as on behalf of minors namely minors Hassan Farooq and Ahmed Farooq, voluntarily, without any duress or coercion and have waived their rights of Qisas and do not claim Diyat. So far as minors are concerned, they are entitled to the share of Diyat amount and their respective shares of Diyat have been invested in Government sponsored profit bearing scheme of DSCs with National Saving Centre-I, Attock, which will be paid to them when they will become major.

9. It is pertinent to refer the provisions laid down under sections 309, 338-E and 338-H whereby in the case of Qatl-i-Amd an adult sane Wali may, at any time and without any compensation may waive the right of Qisas without accepting any compensation. Correspondingly, an amendment was made under section 345, Cr.P.C. Whereby convicts who have been convicted for offences falling within Chapter XVI of P.P.C. Affecting the human body were made compoundable and got the right to seek composition of for the offences. Vide its subsection (5), the legal heirs of the deceased and victims, have been allowed to compound the offence with the permission of the Court where appeal is pending whereas vide its subsection (6), such composition of an offence shall have an affect of an acquittal of the accused with whom the offence has been compounded.

10. Therefore, in view of the report of Sessions Judge, Attock and request so made by learned counsel for the parties, legal heirs and injured/victims are allowed to compound the offence with the petitioners., Accordingly, the permission to compound the offence in view of subsection (5) of section 345 of the Cr.P.C. Is accorded to the parties in order to maintain cordial relations and bury their hatchets forever.

Resultantly, Criminal Miscellaneous No,123 of 2002 is allowed.

Since leave to compound the offence is allowed, as such we set aside the conviction/sentence of the petitioners as well as impugned judgment dated 25th September, 2001. The petitioners - namely Ghulam Shabbir son of Ghulam Yousaf, Ghulam Raza son of Ghulam Mohi-e-Din and Mushtaq Ahmed are acquitted under subsection (6) of section 345, Cr.P.C. They are directed to be released forthwith, if not required in any other case.

Consequently, petition is converted into appeal and disposed of in above terms.