IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Constt. Petition No. D- 151 of 2020

Petitioner: Munawar Ali Narejo,

Through Mr. Muhammad Afzal Jagirani, advocate,

Date of hearing: 16-03-2021

Zulfiqar Ali Sangi, J. 5-3-2021

The petitioners through instant petition prays for following relief(s):-

a) That this Honourable Court may graciously be pleased to direct the respondent No.1 to decide the compromise applications filed by the LRs of deceased Ahmed Khan and deceased Muhammad Aslam on merits according to law, like earlier compromise applications filed by LRs of deceased Shamshad Ali and allowed vide order dated 28.3.2015.

b) That this Hon’ble Court may graciously be pleased to suspend the operation of Black Warrants issued by the respondent no.1, to respondent No.2 for execution of Death sentence to the petitioner till disposal of instant petition and till disposal of compromise applications by respondents No.1 on merits.

c) To award the costs of the petition.

2. Learned counsel for the petitioner submits that the petitioner and the legal heirs of the deceased Muhammad Aslam and Ahmed Khan who have entered into compromise and they attempted to file compromise application before the trial court but trial court has refused to entertain the same however no order was passed and it was only verbal directions of the trial court. He further submits that now the execution of death sentence is fixed on 20th of this Month, therefore, in the circumstances execution of black warrant and death sentence may be suspended till the application for compromise is entertained and decided. In support of his contention he placed reliance on the case of Shahzad and 3 others V. the state and another (2001 P Cr.LJ 1636) and Muhammad Nawaz v. The State (PLD 2014 Supreme Court 383)

3. It is observed that the petitioner was convicted and sentenced by the Judge, Anti-Terrorism Court, Shikarpur in Special Case No. 49 of 2002 re: State Versus Munawar Ali and others arising out of crime No.3 of 2002 registered at Police Station Golo Daro, for offence under section 302, 324,34 PPC and 7(a) AT Act 1997 vide judgment dated 09.6.2004. The petitioner assailed his conviction and sentenced before this court in Cr. Jail Appeal No.D-47 of 2004, and the trial court also sent reference for confirmation of death sentence. This court has dismissed the appeal and reference was answered in affirmative vide judgment dated 20.04.2010. The judgment of this Court was assailed by the petitioner before Hon’ble Supreme Court of Pakistan in Jail Petition No. 166 of 2010 and the same was also dismissed vide judgment dated 23.9.2010. After the judgment of Hon’ble Supreme court of Pakistan the petitioner moved mercy petition before the President of Pakistan, and the same was also rejected. Thereafter, Review petition was filed by the petitioner before Hon’ble Supreme Court of Pakistan and the same was also dismissed vide order dated 2.3.2015. The petitioner filed an application under section 345(2) Cr.PC before trial court which was dismissed vide order dated 07.3.2015 and thereafter he moved Cr. Revision No.D-03/2015 before this Court and same was disposed of vide order dated 17.3.2015 wherein the order of trial court was set aside and matter was remanded back to ascertain the genuineness of compromise as regards of section 302-B PPC and to hold inquiry with the assistance of Civil Judge and Judicial Magistrate, Mukhtiarkar and SHO, concerned and Nadra regarding all the legal heirs of the deceased namely Ahmed Khan, Muhammad Aslam and Shamshad It is further observed that the trial court again dismissed application under section 345(2) Cr. PC vide order dated 28.3.2015 and the petitioner had assailed the same order before this court in Cr. Revision No.D-06/2015 however the same was dismissed by this Court vide order dated 14.1.2021. The same order is reproduced hereunder:-

“We have been informed by the learned Additional Prosecutor General and Mr. Irfan Badar Abbasi, advocate for the legal heirs of the deceased Muhammad Aslam that the appellant was convicted up-to the Supreme Court of Pakistan. His revision petition was also rejected by the Supreme Court of Pakistan and his mercy appeals was also declined. Since then the appellant has been trying to entertain to compromise agreement with the legal heirs. We have been informed by the learned counsel for the legal heirs that most of the legal heirs are not prepare to enter into compromise. Even otherwise, we note that the appellant has been convicted under the ATA, 1997, which does not permit compromise between the parties.

Under these circumstances, the criminal revision appeal against rejection of compromise agreement is not maintainable since as mentioned above compromise is not permitted in cases where conviction is under the ATA, 1997. Under these circumstances, this criminal revision is dismissed being not maintainable”.

4. The petitioner has sent a criminal Jail petition against the order dated 14.1.2021 before the Hon’ble Supreme court of Pakistan, wherefrom he received memorandum and same was returned to the petitioner being not entertainable on the following grounds:-

“a. That you have availed the remedies against your conviction available to you before this Court by filing Jail Petition 166/2010 and Suo Moto Criminal Review Petition No.23/2015 which were dismissed.

b. That you have now filed the instant petition against rejection of compromise through jail, however, in view of Order XXIII Rule 3 of Supreme Court Rules, 1980, the jail petitions are only entertainable against conviction of the Jail Petitioners, whereas instant application is against rejection of compromise.”

5. Now once again the petitioner approached this court. Learned counsel for the petitioner has submitted affidavits of some of the legal heirs of the deceased Muhammad Aslam and Ahmed Khan in respect of compromise with the petitioner which are taken on record.

6. As per schedule provided in Criminal Procedure Code offence under section 302 PPC is a compoundable and as per contention of learned counsel for the petitioner the parties want to file their compromise application before trial court but the trial court has refused to entertain verbally. In these circumstances, and we are of the view that no legal heir of any deceased can be deprived from his right to compound the offence. Learned trial court is directed to entertain the application under section 345(2) Cr.PC and to hold inquiry and ascertain the genuineness and correctness of compromise and pass a speaking order on it. Meanwhile, the execution of sentence of death to the petitioner/ convict Munawar Ali Narejo, is stayed till the next date of hearing.

7. Office is directed to send coy of this order to the trial court and to the Superintendent Central Prison, Larkana, by fax for compliance. The Superintendent Central Prisons, Larkana, is directed to be in attendance on the next date of hearing along with relevant record. The Additional Registrar of this Court is directed to make sure that order has been communicated to the concerned.

8. To come up on 31.3.2021 at 11:00 am. Issue notice to Additional Prosecutor General, Sindh.

Judge

S.Ashfaq/*