PLJ 2008 SC 631
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan and
Ch. Ejaz Yousaf, JJ.
MUHAMMAD ANWAR--Petitioner
versus
STATE--Respondent
Jail Petition No. 78 of 2006, decided on 26.2.2008.
(On appeal from the judgment dated 25.1.2006 in Cr. A.
No. 708 of 2001, M.R. No. 757 of 2001 passed by the Lahore High Court, Multan
Bench Multan)
Criminal Procedure Code, 1898 (V of 1898)--
----S. 345(2)--
S. 345(2) of Cr.P.C. yet its acceptance within the
purview of above provision is dependent upon permission of the Court which has
to be accepted in view of attending circumstances of each case. [P. 634] A
2003 SCMR 663; PLD 2003 SC 512; 2002 SCMR 1308 and 1997
SCMR 1307 rel.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 345(6)--Constitution of
PLD 1982 SC 139; PLD 1982 SC 277; 1982 SCMR 695; 1983
SCMR 557; 1983 SCMR 631; 1993 SCMR 667; 1984 SCMR 488; 1984 SCMR 1514; 1985
SCMR 172; 1985 SCMR 612; 1985 SCMR 780; 1986 SCMR 1420; 1988 SCMR 148 and 1988
SCMR 1420 rel.
Ch. Muhammad Akram, ASC for Petitioner.
Ch. Munir Sadiq, D.P.G. Punjab for State.
Date of hearing: 26.2.2008.
Judgment
Ch. Ejaz Yousaf, J.--This petition for leave to appeal is
directed against the judgment dated 25.1.2006 passed by a Division Bench of the
Lahore High Court, Multan Bench, Multan, whereby appeal filed by the petitioner
against his conviction and sentence recorded under Section 302(b) PPC was
dismissed and murder reference sent for confirmation of death sentence was
answered in the affirmative.
2. Facts of the case in brief are that the petitioner was
tried by learned Sessions Judge, Lodhran, on the charge of murder of his
father, namely, Allah Ditta. Petitioner was charged under Section 302(b) PPC to
which he pleaded not guilty and claimed trial. At the trial, prosecution, in
order to prove the charge and substantiate the allegation levelled against the
petitioner, produced seven witnesses in all. Eye-witness account of the
occurrence was furnished by PW-5 Allah Bakhsh and PW-6 Rustam. PW-2 Dr. Altaf
Ahmad Khan had conducted post-mortem examination on the dead body of the
deceased. On completion of the prosecution evidence the petitioner was examined
under Section 342 Cr.P.C. In his above statement, the petitioner denied the
charge and pleaded innocence. He produced two DWs, however, did not opt to
appear as his own witness in terms of Section 340(2) Cr.P.C.
3. On conclusion of the trial, the trial Judge convicted
the petitioner under Section 302(b) PPC and sentenced him to punishment of
"death" with the direction to pay a sum of Rs. 50,000/- as
compensation and in failure thereof to further undergo six months R.I. Being
aggrieved, the petitioner approached the High Court by way of Criminal Appeal
No. 708 of 2001. Murder Reference No. 757 of 2001 was also sent to the High
Court for confirmation of the death sentence. A Division Bench of the Lahore
High Court, Multan Bench,
4. Learned counsel for the petitioner, at the very
outset, has submitted that since the matter has been compromised between the
parties and all the legal heirs of the deceased have forgiven the petitioner in
the name of Allah, therefore, he may be acquitted of the charge or else the
sentence inflicted on him may be reduced. He has added that earlier a similar
request was also made before the appellate Court but it was not accepted,
because it was found by the learned High Court that since diyat falling in the
share of Mst. Perveen, minor sister of the deceased, was not deposited by that
time, hence partial compromise was not possible. He has maintained that learned
Division Bench of the High Court has gravely erred in making the above
observation, because as per report forwarded by District & Sessions Judge,
Lodhran, Allah Ditta, deceased, had left behind, in addition to the petitioner,
only, Muhammad Asghar, son, Mst. Nasreen Bibi, daughter, and Mst. Bashiran
Bibi, another daughter as his legal heirs, the offence was compound, by all the
three and none of them was a minor. He has further added that during pendency
of the petition, Cr. Misc. No. 455 of 2006 was moved, wherein while clarifying
the above position, it was prayed that since another brother of the petitioner
was also in jail, in case FIR No. 483/1999, and there was no other male member
of the family available to lookafter the two young daughters, and there was
every likelihood that not only they would be exposed to the rigours of time but
their property would also be usurped by their relatives, in case the petitioner
was executed hence, compromise may be accepted.
5. Ch. Munir Sadiq, learned Deputy Prosecutor General,
Punjab, appearing on behalf of the State, has though not disputed competence of
the legal heirs of the deceased to compound the offence yet, has stated that
since the petitioner has committed murder of his father, therefore, he does not
deserve to be acquitted and adequate sentence of imprisonment should be
inflicted on him, in case the sentence of death is commuted.
6. We have given our anxious consideration to the
respective contentions of learned counsel for the parties and have also perused
the available record, minutely, with their assistance.
7. Though an application for acceptance of compromise was
also filed in the High Court, yet it was not accepted, as it was found by the
learned Judges in the High Court that diyat amount falling in the share of
"minor Perveen Bibi" was not deposited. It appears that proper
assistance was perhaps not rendered to the Hon'ble Judges in the High Court and
it was wrongly presumed that Perveen Bibi was minor sister of the deceased
whereas the facts appear to be other way round.
8. It would be pertinent to mention here that pursuant to
Cr. Misc. Application No. 455/2006, learned District & Sessions Judge
concerned was directed to furnish report regarding genuineness or otherwise of
the compromise and also to ascertain as to by whom the deceased was succeeded.
In response to the query, learned District & Sessions Judge, Lodhran, vide
Letter No. 1032, dated 24.9.2007 has reported that Allah Ditta had left behind,
Mst. Pathani Mai, widow, Muhammad Anwar, (petitioner) and Muhammad Asghar,
sons, Mst. Nasreen Mai and Mst. Bashiran Mai, daughters, as his legal heirs,
out of whom Mst. Pathani Mai died on 20.8.1999. Statements of the rest of the
legal heirs were recorded and they have confirmed that they have compounded the
offence. He has through his Letter No. 1032, dated 24.9.2007 has also confirmed
that none of the aforementioned legal heirs is minor and question of payment of
diyat too, does not arise as all the legal heirs being major have stated that
they have forgiven the petitioner in the name of Allah.
9. It would not be out of place to mention here that
though the offence of Qatl-i-amd, punishable with sentence of death or
imprisonment for life as Ta'azir, can be compounded by all the legal heirs of
the deceased under sub-section (2) of Section 345, Cr.P.C yet, its acceptance
within the purview of above provision, is dependent upon permission of the
Court which has to be accorded keeping in view attending circumstances of each
case. Reference in this regard may usefully be made to the cases reported as
(i) Ghulam Shabbir & others v. the State (2003 SCMR 663) (ii) Muhammad
Saleem v. The State (PLD 2003 SC 512), (iii) Muhammad Younis v. The State (2002
SCMR 1308) (iv) Sh. Muhammad Aslam and another v. Shaukat Ali alias Shauka and
others (1997 SCMR 1307).
10. Since in the instant case, the petitioner has
committed murder of his own father and that too, in a brutal manner, without
any cause, therefore we are not inclined to allow application for acceptance of
the compromise as otherwise its effect would be of acquittal under Section
345(6) Cr.P.C. However, since the petitioner has two young sisters, the other
male member of the family i.e. his brother is behind the bars in an another
case and it has been pleaded that the girls would be exposed to the adversities
of life, in case the petitioner is executed, therefore, while taking the
compromise as a mitigating circumstance, we order that the sentence of death
inflicted on the petitioner be commuted with imprisonment for life. In this
view we are fortified by the observations made in the following reported
judgments:--
(i) Muhammad
Bashir v. The State (PLD 1982 SC 139).
(ii) Iftikhar Ahmad
v. The State (PLD 1982 SC 277).
(iii) Muzaffar alias
Zafar Ali v. The State (1982 SCMR 695)
(iv) Javed and
another v. The State (1983 SCMR 557)
(v) Nazar Muhammad
v. The State (1983 SCMR 631)
(vi) Nazar Muhammad
v. The State (1983 SCMR 667)
(vii) Inayat Ullah
and another v. The State (1984 SCMR 488)
(viii) Labah
and another v. The State (1984 SCMR 1514)
(ix) Abdul Quddus
v. The State (1985 SCMR 172)
(x) Muhammad Hanif
v. The State (1985 SCMR 612)
(xi) Ejaz Ahmed
alias Jhajja v. The State (1985 SCMR 780)
(xii) Muhammad Aqeel
alias Bila v. The State (1986 SCMR 1420)
(xiii) Inayat
and 5 others v. The State (1988 SCMR 148)
(xiv) Abdul Hameed
and 4 others v. The State (1988 SCMR 1420)
11. Upshot of the above discussion is that the sentence
of death inflicted on petitioner under Section 302(b) PPC, is reduced to that
of imprisonment for life. Order regarding payment of compensation of
Rs. 50,000/- under Section 544-A Cr.P.C. will remain
intact. With the above modification in sentence, this petition is converted
into appeal and partially allowed.
(M.A.K.Z.) Appeal partially allowed