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Petitioner: SUGHRAN BIBI VS Respondent: SARWAR BIBI
1988 S C M R 1070
1988 S C M R 1070
Present: Aslam Riaz Hussain, Actg. C.J., Muhammad Afzal Zullah and' Javid Iqbal,
Mst. SUGHRAN BIBI‑‑Petitioner
versus
Mst. SARWAR BIBI and 4 others‑‑Respondents
Criminal Petition for Special Leave to Appeal No.261 of 1985, decided on 24th February, 1988.
(On appeal from the judgment dated 13‑5‑1985 of the Lahore High Court, Lahore, passed in Criminal Appeal No.483 of 1984).
Penal Code (XLV of 1860)‑‑
‑‑‑Ss.304, 452 & 34‑‑Culpable homicide‑‑House‑trespass‑‑Compro mise‑‑Contentions of complainant petitioner's counsel (i) that the compromise in writing submitted by estranged husband of deceased was no compromise as he had no authority to compromise on behalf of all the heirs of deceased; (ii) that the conditions laid down by Supreme Court for compromise in P L D 1982 S C 139 were not satisfied and (iii) that in any case, only the sentence could be reduced on ground of compromise but entire sentence could not be set aside as done by High Court‑‑Questions raised requiring examination, leave to appeal granted.
Muhammad Bashir v. The State P L D 1982 S C 139 ref.
Irshad Ahmad Qureshi, Advocate Supreme Court and Ch. Qamar‑ud‑Din Khan Meo Advocate‑on‑Record for Petitioner.
Nemo for Respondents Nos. 1 to 4.
S. D. Qureshi, Advocate Supreme Court and Rao Muhammad Yousuf Khan, Advocate‑ on‑Record for the State.
Date of hearing: 24th February, 1988.
ORDER
MUHAMMAD AFZAL ZULLAH J.‑‑Leave to appeal has been sought by a complainant in a murder case against Judgment dated 13‑5‑1985 of the Lahore High Court‑ whereby sentences of respondents Nos. 1 to 3 under sections 304/34 and 452/34, P.P.C. were set aside‑‑Respondent No.4 had earlier been acquitted by the trial Court 2.The prosecution case, as summed up in this petition, is as follows: ‑
"A dispute arose between the petitioner and the accused/ respondents about the drainage water of the latter into the gutter of the petitioner/ complainant. The accused/ respondents assaulted the petitioner, entering into her Kitchen where her daughter Mumtaz Bibi who had pregnancy of advanced stage rescued her. The respondent No.1 raised 'Lalkara' to the effect that Mumtaz Bibi should not also be spared whereupon the respondents Nos.2 to 4 attacked Mumtaz Bibi deceased, beat her with their fists, Shamshad Bibi respondent gave a blow of brick‑bat at the chin of deceased Mumtaz Bibi which also hit her at her abdomen, Irshad Bibi respondent gave a leg blow at the abdomen of Mumtaz Bibi deceased who fell on the ground and succumbed to the injuries at the spot."
3. The defence plea raised by Mst. Sarwar Bibi, respondent, is reproduced below:‑
"My house is opposite to the house of Mst. Sughran Bibi complainant in the same lane. For the last more than 16 years the waste water of my house has been falling in a public 'Gutter' located close to the door of the house of Mst. Sughran Bibi P. W. On the day of the occurrence, my husband had gone to attend his duty. I found the 'Gutter' filled with bricks blocking the flow of the water of my house. I sat to clear the bricks. I had put out a large number of bricks from the 'Gutter' and placed them there. In the meanwhile, Mst. Sughran Bibi P.W. came out of the house because of the bad smell which arose from the 'Gutter'. She held me from my hair in the attempt to prevent me from clearing the 'Gutter'. This attracted Mst. Mumtaz deceased who came running from inside the house. She slipped at the thresh hold of the door and fell on the bricks which I had put out from the 'Gutter' close to the door and breathed her last. The co‑accused who are my school going daughters had not joined the incident at all. The P.Ws are tenants of Mst. Sughran Bibi P.W: and as such, have subscribed to a distorted story. The incident has been witnessed by other neighbours of the locality namely Nadeem Ali, Zahid Ali, Malik Yaqub, Muhammad Ihsan, Yousf Rahim Qureshi and Shamim Ahmad as well as many others. They had not supported version before the police."
4. The trial Court convicted respondents Nos. 1 to 3 under sections 304/34 and. 452/34, P.P.C. and sentenced them accordingly.
5. On appeal by the convicts a learned Judge of the High Court, after writing a judgment of dismissal of appeal, at the end allowed it by setting aside the sentences of the convicts and directing their release. It was on the assumption that the parties had entered into a compromise.
6. Learned counsel for the petitioner, the mother of the deceased who is also the complainant in the case, has argued that the so‑called compromise in writing submitted by the estranged husband of the deceased, was no compromise at all. Moreover, he had no authority to compromise on behalf of all the heirs of the deceased. He has also argued that the conditions laid down by this Court in case of Muhammad Bashir v. The State P L D 1982 S C 139 were not satisfied; and, that in any case, only the sentence could be reduced on the ground of compromise‑‑the entire sentence could not be set aside as done be the High Court.
7. Questions raised in support of this petition require examination. Leave to appeal is granted against Mst. Sarwar Bibi, Mst. Irshad Bibi and Mst. Shamshad Bibi. The petition against Mst. Shahnaz Bibi has not been pressed by the learned counsel for the petitioner by way of abundant caution.
8. Bailable warrants in the sum of Rs.20,000 each with two sureties each in like amount shall be issued against the said respondents for appearance in this Court. Warrants will be returnable to the A.C. concerned.
S.Q./S‑130/S Leave granted