Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Jail Appeal No. D–203 of 2019

Cr. Confirmation Ref: No.D-13/2019

Before :

Mr. Justice NaimatullahPhulpoto

Mr. Justice Zulfiqar Ali Sangi

Date of hearing : 19.02.2020.

Date of Announcement : 26.02.2020.

Haji Shamsuddin Rajper, Advocate for appellant.

Mr. Zulifqar Ali Jatoi, Additional P.G.

J U D G M E N T

NAIMATULLAH PHULPOTO, J.– Bilawal Appellant was tried along with Muhammad Adial by learned Additional Sessions Judge/MCTC Mirwah in Sessions case No.352 of 2014 for offences under Sections 302, 337-H(2), 148, 149 PPC. After regular trial vide Judgment dated 23.09.2019, appellant Bilawal was convicted U/S 302 (b) PPC as Tazir and sentenced to death and he was directed to pay fine of Rs. 100,000/- (One lac). In case of failure to pay fine amount, he was directed to suffer S.I for six months more. Appellant Muhammad Adial was also convicted under Section 302 (b) PPC as Tazir and sentenced to the imprisonment for life and he was also directed to pay fine of Rs. 100,000/- (One lac). Both accused persons were directed to pay compensation of Rs. 10,00,000/-(Ten lacs) each to be paid to the legal heirs of deceased Qutubuddin Shar in terms of Section 544-A Cr.P.C. In case accused persons fail to pay compensation, the same shall be recovered as land revenue arrears as provided under Section 544-A Cr.P.C. Accused Habibullah absconded away during trial and he was declared as Proclaimed Offender and proceedings U/S 87 and 88 Cr.P.C were concluded against him. Appellant Muhammad Adial was extended benefit of section 382-B Cr.P.C and case of absconding accused Habibullah was kept on dormant file. Trial Court made Reference to this Court for confirmation of death sentence awarded to appellant Bilawal. It may be mentioned that appellant Bilawal Shar has filed criminal Jail Appeal No. D-203 of 2019 through Superintendent Central Prison Sukkur, it was admitted to regular hearing, while appellant Muhammad Adial filed separate criminal Jail Appeal No. S-202 of 2019 which was also admitted to regular hearing.

2. Brief facts of the prosecution case, as reflected in the Judgment of trial Court are reproduced as under :-

“ The brief facts of the prosecution case as per FIR are that on 27.10.2013 at 1730 hours from link road leading towards village Saleh Shar near Land of Gul Bahar Shar accused Muhammad Adial, Bilawal and Habibullah alongwith absconding accused Abdul Fatah, Ali Raza and Ghulam Abass duly armed with deadly weapons, being members of unlawful assembly and at the abatement of co-accused Muhammad Adiyal co-accused knowingly and intentionally committed Qatle-Amd of deceased Qutabuddin Shar, son of complainant by causing him fire arm injuries and so also fired in air in order to create harass to complainant party. Thereafter. complainant appeared at PS and got registered present FIR. ”

3. After usual investigation, challan was submitted against the accused under sections 302, 337-H(2), 148,149,114 PPC.

4. Trial Court initially framed charge against accused Muhammad Adial at Exh. 4, thereafter appellant Bilawal and absconding accused Habibullah were arrested as such amended charge was framed against them at Exh.8, to which they pleaded not guilty and claimed to be tried.

5. At the trial, prosecution examined nine (09) prosecution witnesses. Thereafter, prosecution side was closed.

6. Statements of the accused were recorded under Section 342, Cr.P.C, in which accused claimed false implication in this case and denied the prosecution allegations. Accused did not lead evidence in their defence and declined to give statement on oath in disproof of prosecution allegations.

7. Trial Court, after hearing the learned counsel for the parties and assessment of the evidence, vide judgment dated 23.09.2019, convicted and sentenced the appellants, as stated above. It has been pointed out by learned Additional P.G that appellant Muhammad Adial has expired in Jail on 08.01.2020 and referred to the letter of Senior Superintendent Central Prison Khairpur vide his letter dated 08.01.2020, therefore, proceedings in criminal Jail Appeal No.S-202/2019 filed by appellant Muhammad Adiyal arising out of aforesaid Judgment are abetted.

8. During pendency of the appeal, parties entered into compromise. Compromise application was filed before this Court on 28.01.2020. Copy of the compromise application was sent to learned Additional Sessions Judge/MCTC Mirwah (Trial Court) in order to ascertain genuineness or otherwise of the compromise arrived at by the parties. Report is received from the trial Court in which it is mentioned that family tree of the deceased was called for from NADRA. Notices were issued to legal heirs and published in daily newspaper ‘AWAMI AWAZ’. Legal heirs of the deceased namely : Haq Nawaz (father) and Mst. Pathani (mother) appeared before the trial Court and their statements were recorded in which they clearly stated that they have entered into compromise with appellant Bilawal without any fear or influence from any corner.

9. We have heard Haji Shamsuddin Rajper learned advocate for appellant Bilawal and Mr. Zulifqar Ali Jatoi Additional P.G and perused an application for permission to enter into compromise and another application for acceptance of compromise. It is argued that offence under Section 302 PPC is compoundable and both parties have settled their dispute due to the intervention of the nekmads of the locality. Additional P.G submits that offence is compoundable and recorded no objection for allowing the compromise application.

10. In the instant case the appellant was charged for the offence of Qatl-e-Amd of Qutubuddin Shar, and on completion of the trial he was found guilty of the offence, thereby convicted and punished under section 302(b), P.P.C. and sentenced to death as Tazir. The offence of murder compoundable in nature, while the right of the same vests with the legal heirs of the victim with reference to section 345, Cr.P.C. 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, P.P.C.. But, section 310, P.P.C. 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 forgo 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 requirement, 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. Therefore, a settlement arrived between the parties only amounts to waiver or compounding of right of Qisas is not its ultimate result.

11. In the present case trial Court recorded statements of Haq Nawaz and Mst. Pathani (father and mother of deceased) on 07.02.2020. They stated before trial Court to have waived the right of Qisas without accepting any compensation and affirmed the facts of compromise. The formal enquiry made by learned Additional Sessions Judge/MCTC Mirwah thereby affirmed the details of the legal heirs, and the fact of effecting of compromise without any duress or compulsion, with their free will being the legal heirs of the deceased as offence is compoundable. The legal heirs of the victim/deceased have entered into compromise without any force, therefore, while relying upon the case of Mureed Sultan and others vs. The State (2018 SCMR 756) and Manzoor Ahmed Shah and others v. The State and others (2019 SCMR 2000) for better relations between the parties in future permission is granted. Consequently, in the light of the report of the trial Court we are satisfied that there is genuine compromise between the parties, offence is also compoundable. Accordingly compromise application is allowed. Resultantly appellant Bilawal is acquitted under section 345(6) Cr.P.C. He shall be released forthwith, if he is not wanted in some other custody case. Confirmation Reference No.D-13/2019 is answered in negative for the reasons mentioned hereinabove.

JUDGE

JUDGE

Irfan/PA