IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No. S-111 of 2019

Criminal Appeal No. S-113 of 2019

Appellant In Cr. Appeal No. S-111/2019,

Asad Ali Dayo,

Through Mr. Athar Abbas Solangi, advocate,

Appellants In Cr. Appeal No. S-113/2019,

                                      Abdul Bari and others,

Through Mr. Amanullah Kanrani, advocate,

Complainant:                Munir Ahmed Banglani,

Through Mr. Saeed Ahmed Bijarani, Advocate,

The State:                      Through Mr. Aitbar Ali Bullo, D.P.G for the State.

Date of hearing:            26-11-2020

Date of Decision:          03 -12-2020

O R D E R

Zulfiqar Ali Sangi, J.Through these two criminal appeals, the appellants have impugned the judgment dated 16.11.2019, passed by I-Additional Sessions Judge/MCTC, Kandhkot in MCTC Case No.51/2019, emanating from Crime No. 217/2016, re: State Versus Sajjad Ali and others, registered at Police Station A-Section Kandhkot, under Sections 302,109, 404 P.P.C, whereby the appellants/accused were sentenced as mentioned in the impugned judgment.

2.      During pendency of these appeals, the parties filed applications under Section 345(2) Cr.P.C and 345(6) Cr.P.C for permission to compound the offence as well as for acceptance of compromise.

3.      The compromise applications were sent to learned trial court i.eIst. Additional Sessions Judge Kandkot, through Session Judge Kashmore @ Kandkotfor enquiry as to the legal heirs of the deceased as well as genuineness or otherwise of compromise between the parties vide order dated 22.10.2020.

4.      In compliance of order dated 22.10.2020, Ist. Additional Sessions Judge Kandhkot,after completing all the required legal formalities submitted single report dated 16.11.2020 in both the appeals

5.      Learned counsel for the appellants contended that all the legal heirs of the deceased are major and they have waived their right of Qisas and Diyat and have excused the appellants with their free-will and consent without any inducement or pressure and compromise arrived at between the parties, is genuine. As regards to the conviction under section 404 PPC both the learned counsel for the appellants submitted that since the main offence U/S 302 PPC is compoundable, therefore, offence U/S 404 PPC being small offence could be compounded as the same has been committed  during the same transaction of main offence.

6.      Learned Deputy Prosecutor General for the State and learned counsel for the complainant have raised no objection to the compromise applications of the appellants, in view of the report submitted byIst. Additional Sessions Judge Kandhkot which in their view meets all necessary legal requirements in order to give effect to the compromise agreement.

7.      I have heard the learned counsel for the appellants and learned D.P.G for the State so also counsel for the complainant and have perused the record with their able assistance.

8.      Record reflects that learned Ist. Additional Sessions Judge Kandhkot called reports from SHO P.S A, section Kandhkot, Mukhtiarkar Tangwani and from NADRA about the legal heirs of the deceased Majid Ali, publication was made in the newspapers. Thereafter, trial court recorded the statements of Mukhtiarkar Tangwani, ASI Sain Bux Bahalkani of P.S A section Kandhkot, Jahangeer Banglani (father of the deceased) and Mst Hasina (mother of the deceased) submitted the same with his report wherefrom he reached at the conclusion that the compromise effected between accused and legal heirs of the deceased is genuine and voluntary.

9.      After considering all aspects of the case, I am of the view that the legal heirs of the deceased are competent to compound/compromise the offence with the appellants/accused. The compromise arrived between the parties on the very face of it appears to be genuine and true, without any due inducement or pressure.

10.    Considering genuineness of the compromise, I feel no hesitation to accept the same as the offence punishable under Section 302 PPC against the appellants is compoundable, since main section 302 PPC is compoundable therefore section 109 PPC is also compoundable as mentioned in the schedule and has actually been compounded.However for the offence under section 404 PPC which is shown in the schedule as non-compoundable but the same was committed during the same transaction, the punishment provided for such offence is upto there years therefore, it can be compounded. Reliance is place in the case of Hussain Bux and others v. The State(PLD 2003 Karachi 127), wherein this court has observedhasas under:

                "At this juncture we would like to refer to another         objection of Mr.    Ali Azhar Tunio, learned Assistant A.G   to the effect that the offence     under section 302, P.P.C.           is compoundable while the offence under   section        149, P.P.C. is not compoundable. Although in Second Schedule to          Cr.P.C. it is contained that the offence        under section       149, P.P.C. is not compoundable but          we are persuaded to agree         with the views of Mr.      Muhammad Bachal Tunio, learned A.A.G, and Mr. Ali         Nawaz Ghanghro Advocate, the learned amicus curiae,           that   offence under section 149, P.P.C., is by way of     constructive liability           and when the main offence is allowed to be compounded and the   persons who have taken specific part in the commission of offence   are allowed to compound, then the persons who are       convicted on         account of being merely members of unlawful assembly are also entitled to the concession        of           compromise/compounding/waiver, otherwise it would not be in    consonance with the principles of     justice, in accordance with the          injunctions of Islam       as laid down in Holy Qur'an and Sunnah."

In another caseAshique Solangi and another v. The State (PLD 2008 Karachi 420) it was also held by this Court as under:

          "2. The applicants were convicted under sections 452, 337-H(2), 506/2 and 148, P.P.C. The legal question is         that certain offences are compoundable and certain     offences are not compoundable. I am of the clear view   that if the main offence is compoundable and parties          have compromised against themselves then the small     offences should be treated as compromised though       under the statute those are not compoundable. In the      present case revision keeping in view the compromise    which has taken place between the parties outside the Court, it is not proper to uphold the conviction specially       when the complainant does not want to pursue his case        anymore. In the circumstances, I accept the revision     application and order acquittal of both the applicants   from the charge."

11.    Keeping in view of the above facts the compromise arrived between the parties is hereby accepted. Consequently, appellant Asad Ali Dayo S/o Fazal Qadir Dayo (appellant in Cr. Appeal No. S-111 of 2019), Abdul Bari and Abdul Waheed both S/o Muhammad Khan (appellants in Cr. Appeal No. S-113 of 2019) are hereby acquitted under Section 345(6) Cr.P.C in Sessions Case No. 282 of 2019/ MCTC case No. 51 of 2019, FIR No. 217/2019 under Section 302, 109, 404 PPC of police station A section Kandhkot. The appellants be released forthwith if not required in any other custody case.

12.    In above terms, the Criminal Appeals No.S-111 and 113 of 2019, stand disposed of.

                                                                                      JUDGE