HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.211 of 2018

Confirmation Case No.03 of 2018

                        Present:         

Naimatullah Phulpoto, J.

Rasheed Ahmed Soomro, J.

Appellant:                      Muhammad Nasir Khan son of Muhammad Mukhtiar through Mr. Shamshad Ali, Advocate

Respondent:                   The State through Mr. Muhammad Iqbal Awan, Deputy Prosecutor General Sindh. 

Date of hearing:              13.08.2018

Date of announcement: 28.08.2018

J U D G M E N T

NAIMATULLAH PHULPOTO, J.- Appellant Muhammad Nasir Khan was tried by learned Additional Sessions Judge-VI, South, Karachi Sessions Case No.56 of 2011 for offence under section 302, PPC of P.S. Chakiwara. On the conclusion of trial vide judgment dated 22.02.2018, appellant was convicted under section 302(b), PPC and sentenced to death. Appellant was directed to pay compensation of Rs.100,000/- in terms of Section 544-A, PPC to be paid to the legal heirs of deceased Mst. Rasheeda Begum wife of Shoukat Zaman. In case of default in payment of fine, appellant was ordered to suffer S.I. for six months more. Trial court made confirmation reference to this Court as envisaged under section 374, Cr.PC.

2. During pendency of appeal, criminal miscellaneous application No.2550/2018 under section 345, Cr.PC was moved by the legal heirs of the deceased as well as accused for permission to enter into compromise. Another criminal miscellaneous application was also moved with submission that parties had arrived at a compromise and in result thereof the legal heirs of deceased Mst. Rasheed Begum pardoned the applicant/convict and also waived of the right of Qisas and Diyat. It was prayed that compromise be accepted and the appellant may be acquitted of the charge. Along with aforesaid application affidavit on prescribed proforma of the legal heirs of the deceased have also been filed.

3. Compromise application was sent to the trial Court with the direction to hold inquiry regarding the genuineness or otherwise of the compromise arrived at between the parties. Trial court after holding the inquiry submitted report dated 22.06.2018, which is as under:-

“I have the honour to submit that in Criminal Appeal No.211/2018, the Honourable High Court of Sindh at Karachi, directed to the trial Court for holding inquiry regarding genuineness or otherwise of the compromise and ascertainment of legal heirs of the deceased. In compliance of the order of Honourable High Court of Sindh at Karachi, this Court called the complainant namely Shaukat Zaman (legal heir / widower of deceased namely Mst. Rasheeda Begum), his four daughters namely, Sidra, Samreen, Sherish and Samia (all real daughters of deceased, Mst. Bacha Shirin (real mother of deceased) and Wali Ahad (real elder brother of deceased) and recorded their statements, they stated before the Court that they have forgiven the accused Muhammad Nasir Khan son of Muhammad Mukhtiar in the name of Almighty Allah and waived their rights of Qisas and Diyat. According to report submitted by NADRA and concerned police station the deceased left behind her surviving legal heirs including husband / complainant and four daughters. Further, the complainant has also produced the real mother and brother of deceased Mst. Rasheeda Begum who also appeared before the Court and stated that the matter has been patched up and legal heirs have forgiven the accused in the name of Almighty Allah. Mst Bacha Shirin the real mother of deceased ha also deposed that she has six children including the deceased Mst. Rasheeda Begum, out of them her two daughters are residing in the village at Swat, her one son namely Kamal is in Saudi Arabia whereas her one son namely Fazal Malik is missing for the last about 2-3 years and she is residing with her third son namely Wali Ahad. She further stated that her daughters cannot appear before the Court whereas her husband had expired. During enquiry all legal heirs, complainant / widower of deceased, mother and brother of deceased verified that compromise has been taken place in between the parties and now they have no grievance against the accused Muhammad Nasir Khan son of Muhammad Mukhtiar and legal heirs of deceased have forgiven the accused Muhammad Nasir Khan son of Muhammad Mukhtiar in the name of Almighty Allah. It is pertinent to mention here that the accused has been awarded death sentence under section 302(b) PPC by this Court vide judgment dated 22.02.2018.”

4. Today, the legal heirs of deceased Mst. Rasheeda Begum wife of complainant Shaukat Zaman appeared. Legal heirs of the deceased are as under:-

1. Shaukat Zaman Husband (CNIC # 42301-8444151-5)

2. Sidra Daughter (CNIC No.42301-7264340-6)

(Date of Birth 02.03.1990)

3. Samreen Daughter (CNIC No.42301-5483499-8)

(Date of Birth 24.05.1992)

4. Sehrish Daughter (Registration # 42301-9544530-8)

(Date of Birth 23.06.1994)

5. Samia Daughter (Registration # 42301-0451004-6)

(Date of Birth 06.12.1999)

5. Trial Court in the report dated 22.06.2018 has mentioned that legal heirs of deceased have forgiven accused Muhammad Nasir Khan in the name of Allah and did not claim Qisas and Diyat. For the satisfaction of the Court we have also heard the legal heirs as well as learned D.P.G. Mr. Muhammad Iqbal Awan, appearing for the State. All the legal heirs stated that they have forgiven the appellant/accused Muhammad Nasir Khan in the name of Almighty Allah and waived their right of Qisas and Diyat. They further stated that they would not receive/claim compensation as directed by the trial court.

6. In the instant case, appellant was charged for the offence of Qatl-i-Amad of Mst. Rasheeda Begum due to matrimonial dispute. On the conclusion of trial, he was found guilty of the offence thereby convicted under section 302(b), PPC Tazir and sentenced to death. Offence of murder is compoundable in nature. While the right of same vests with the legal heirs of the victim with reference to Section 345, Cr.PC. In addition thereto a right of Waiver is available to a sane adult “Wali” of a victim. In exercise thereof he can waive his right of Qisas without acceptance of any compensation as provided under section 309, PPC. But, section 310, PPC is an addition thereto, which also empowered a sane adult “Wali” of a victim to compound his right of Qisas on accepting of compensation. In view of the mentioned provisions only a sane adult “Wali” can exercise the right of waiver or compounding to forego the right of Qisas with or without compensation. But, in both cases the discretion lies with the court to accept the compromise or the settlement if it fulfilled all the legal requirements, and to make an order of acquittal or conviction of the offender keeping in view the facts and circumstances of the case and nature of the offence.

7. In the present case, all the legal heirs are adult, they appeared before the learned trial court as well as before this Court and stated that they entered into compromise with accused Muhammad Nasir Khan without any duress or compulsion with their freewill being the legal heirs of the deceased.

8. In the view of above discussion as offence is compoundable, permission to the parties to enter into compromises is allowed for better relations between the parties in future. Consequently, compromise application is allowed. Resultantly, appellant Muhammad Nasir Khan son of Muhammad Mukhtiar is acquitted under section 345(6), Cr.PC in FIR No.217/2010, registered at P.S. Chikawara under section 302, PPC.

9. In the view of above, while allowing the compromise application, appeal is allowed in the above terms.

10. Murder Reference No.3/2018 is answered in negative for the reasons mentioned herein above.

J U D G E

J U D G E

Gulsher/PS