IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No. S-107 of 2011

Appellant:                      Lal Bux @ Laloo son of Wali Muhammad

Through Mr. Asif Ali Abdul Razak Soomro,Advocate.

The State:                       Through Mr. Muhammad Noonari,

D.P.G for the State.

Date of hearing:             15-02-2021.

Date of decision:             19-02-2021.

J U D G M E N T

Zulfiqar Ali Sangi, J.     Through instant criminal appeal, the appellant Lal Bux @ Laloo son of Wali Muhammad Bangulani, has assailed the judgment dated 22.09.2011, passed by the learned Sessions Judge, Jacobabad in Sessions Case No.188/2010, (re: State V/s Lal Bux @ Laloo son of Wali Muhammad Bangulani) culminated from Crime No. 118/2010 of Police Station Thull, for the offence under Sections 302,457(2), 337-H/2, 148, 149 P.P.C, whereby the trial court has convicted the appellant U/S 457(2) P.P.C and sentenced him to undergo rigorous imprisonment for five years and to pay fine of Rs.10,000/-, in case of his failure to make payment of fine, he will have to undergo S.I for a period of one month, for an offence punishable u/s 302(b) P.P.C having regard to the facts and circumstances of the case was also convicted and sentenced to undergo R.I for life and to pay sum of Rs.100,000/- as compensation to the legal heirs of the said deceased and in case of his failure to pay the compensation, he will have to undergo S.I for a period of three months. The appellant was also given benefit of Section 382-B Cr.P.C.

2.       During pendency of the appeal, the appellant filed applications under section 345(5) Cr.P.C, 345(4) Cr.P.C and 345(6) Cr.P.C along with affidavits of the legal heirs of the deceased. This court vide order dated 17.07.2020, directed the trial court to hold the inquiry with regard to the genuineness of the compromise arrived at between the parties. The report from trial court dated 25.08.2020 has been received. The trial court in order to ascertain the legal heirs of deceased, called the reports from Mukhtiarkar (Revenue) Thull and the S.H.O P.S. A-Section Thull. The Mukhtiarkar Thull and concerned S.H.O have reported that grand-father, grand-mother, father and mother of above named deceased have already been expired. The notice with regards to the compromise was also published in the newspaper "Daily Kawish", dated 11.08.2020 but no one objected the compromise before the trial court so also before this court.

3.       In compliance of order dated 17.07.2020, I-Additional Sessions Judge, Jacobabad after completing all the required legal formalities submitted his single report dated 25.08.2020.

4. Learned counsel for the appellant contended that out of three children all the legal heirs of the deceased are major and they have waived their right of Qisas and Diyat and have excused the appellant with their free-will and consent without any inducement or pressure and compromise arrived at between the parties, is genuine.

5. 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 by trial court which meets all necessary legal requirements in order to give effect to the compromise agreement.

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

7.       Record reflects that Trial Court has called the legal heirs of deceased Ubedullah namely Mst.Rani Khatoon (widow), Atharuddin, Sharafuddin, Azharuddin and Imran Ali (sons) and recorded statements of major legal heirs, who stated in their statements that they have entered into compromise with present accused, namely, Lal Bux @ Laloo s/o Wali Muhammad by caste Bangulani and have pardoned and forgiven him in the name of Almighty Allah with their sweet and free will without any pressure, compulsion, coercion and promise. They have not received any Compensation and waived off right of Qisas and Diyat against present accused and they have no objection if the accused Lal Bux @ Laloo Bangulani is acquitted. The above named legal heirs have also stated that the mother of deceased namely Mst.Asoodi has been expired. Mst.Rani Khatoon widow of deceased Ubedullah further stated that she has also pardoned the present accused on behalf of her minor son, namely, Sadaruddin and two minor daughters namely Mst. Shaheela and Baby Firdous being their guardian ad-litem and has received Diyat amount as per their share in shape of 15 Buffaloes from the present accused. So far the Diyat share of minors is concerned, the appellant/accused has given 15 buffaloes to the widow of the deceased.  Learned counsel relied upon the order dated: 03-05-2001 passed by this court in Cr. Appeal No-D 38 of 1995 and order dated: 05-12-2014 in Cr. Appeal No. S- 21 of 2012 wherein this court accepted compromise application where Diyat amount was given to the minors of the deceased in shape of bedfellows.

8.       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 appellant/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.

9. Considering the genuineness of the compromise, I feel no hesitation to accept the same as the offence punishable under Section 302 PPC against the appellant is compoundable. However for the offence under section 457 (2) PPC which is shown in the schedule as non-compoundable and the punishment provided for such offence is imprisonment of either description for 14 years and fine but the appellant was convicted by the trial court to undergo RI for period of five years and to pay fine of Rs: 10000/= in case of failure to deposit fine amount he further under go for the period of SI for one month. Since the main offence is compoundable 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 held as under:-

"At this juncture we would like to refer to another objection of Mr. Ali Azhar Tunio, learned Assistant A.Gto the effect that the offenceunder section 302, P.P.C. is compoundable while the offence undersection 149, P.P.C. is not compoundable. Although in Second Schedule to Cr.P.C. it is contained that the offence under section149, P.P.C. is not compoundable but we are persuaded to agreewith the views of Mr.Muhammad Bachal Tunio, learned A.A.G, and Mr. AliNawaz Ghanghro Advocate, the learned amicus curiae,thatoffence under section 149, P.P.C., is by way ofconstructive liabilityand when the main offence is allowed to be compounded and thepersons who have taken specific part in the commission of offenceare allowed to compound, then the persons who areconvicted onaccount of being merely members of unlawful assembly are also entitled to the concession ofcompromise/compounding/waiver, otherwise it would not be in consonance with the principles ofjustice, in accordance with the injunctions of Islamas 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 isthat certain offences are compoundable and certainoffences are not compoundable. I am of the clear viewthat if the main offence is compoundable and parties have compromised against themselves then the smalloffences should be treated as compromised thoughunder the statute those are not compoundable. In thepresent 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 especiallywhen the complainant does not want to pursue his case anymore. In the circumstances, I accept the revisionapplication and order acquittal of both the applicantsfrom the charge."

10.     Record further reveals that appellant was arrested on 13-05-2010 and remained in custody till today, it reveals that the appellant had already served out the sentence handed down by the learned trial court for offence under section 457 (2) PPC and he is only serving the sentence for offence under section 302 (b) PPC for which compromiseis effected in between him and the legal heirs of the deceased.

11.     Keeping in view of the above facts the compromise arrived between the parties is hereby accepted. Consequently, appellant Lal Bux @ Laloo S/o Wali Muhammad Bangulani is hereby acquitted under Section 345(6) Cr.P.C in Sessions Case No. 188/2010, arising out of FIR No.118/2010, under Section 302, 457 (2), 337-H/2, 148,149 PPC of police station Thull. The appellant be released forthwith if not required in any other custody case.

12. In above terms, the Criminal Appealstand disposed of.

J U D G E