IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Cr. Appeal No.S-18 of 2021
1. For hearing of M.A. No.2881/2022.
2. For hearing of M.A. No. 2882/2022.
3. For hearing of M.A. No. 2883/2022.
4. For hearing of M.A. No. 1084/2021.
5. For hearing of Main Case.
Mr. Riaz Hussain Khoso, advocate for the appellants.
Mr. Ali Anwar Kandhro, Addl. P.G.
Legal heirs of deceased Ghulam Hussain alias Ali Hyder, namely, Mst.Panah Khatoon, Mst. Rani, Mst. Razia Khatoon, Imran Ali, Komal, Mohammad Yaseen and Munawar Ali, present in person.
Date of hearing : 08.09.2022.
Date of Order : 08.09.2022.
O R D E R.
Appellants Ayoob son of Mohammad Khoso and Bilawal son of Mehboob Khoso were tried by the learned 1st Additional Sessions Judge/MCTC, Kamber in Sessions Case No.397/2020 re-State v. Ayoob Khoso & others (Crime No.75/2020, registered at P.S Nasirabad, for offences under Sections 302, 114, 148, 149, PPC). After regular trial, the appellants were convicted by the trial Court vide judgment dated 02.03.2021 and sentenced as under:-
i) For offence punishable U/S 148 PPC R/W Section 149 PPC (rioting being duly armed) they both are sentenced to R.I for two years.
ii) For offence U/S 302(b) PPC they both are also sentenced to Life imprisonment (R.I) as Tazir with direction to compensate the LRs of the deceased to the tune of Rs.10,00,000/- each convict (Total Rs.20,00,000/- in terms of section 544-A Cr.P.C. In case of default thereof they will undergo S.I for six months and compensation amount will also be recovered as land arrears as per law.
2. Appellants preferred appeal. The same was admitted by this Court vide order dated 18.3.2021. During the pendency of the appeal compromise application was filed. This Court vide order dated 15.7.2022 transmitted the compromise application to the trial Court for holding enquiry as to the genuineness of the compromise or otherwise under the law and submit the report. Trial Court has submitted the report dated 17.8.2022, which is reproduced as under:-
“After receiving letter from your good office, the reports were called from Mukhtiarkar Revenue Taluka Warrah regarding the LRs of the deceased, who submitted his report No.1094 of 2022 Dated:15.8.2022 while showing the LRs of the deceased Ghulam Hussain @ Ali Hyder S/o Sono Khan Khoso namely Imran Ali (son), Munawar Ali (son), Muhammad Yaseen (minor son), Mst. Robina (daughter), Mst. Razia (daughter), Kimal (minor daughter), Mst. Panah Khatoon (widow) and Mst. Rani (mother).
The further reports from concerned SHO, NADRA, Secretary Union Council were also called so also notice was published for public general in Daily Awami Awaz dated: 07.8.2022 but inspite of publication none appeared to oppose the compromise between the parties.
The statements of major legal heirs of the deceased have been recorded by this court on 13.8.2022 in presence of learned counsel of accused and learned DDPP for the State, wherein both the parties have confirmed the contentions of compromise with each other, without any compulsion/pressure. The complainant party/LRs admitted that they have pardoned the accused Ayoub and Bilawal in the name of Almighty Allah without obtaining any Qisas, Diyat, compensation, etc. They also confirmed the contentions of the compromise applications filed by them before the Honourable High Court Larkana.
It is further submitted that in the reports of Mukhtiarkar Warrah and Secretary Union Council, Warah Taluka Warrah, the same legal heirs of deceased Ghulam Hussain @ Ali Hyder have been shown. It is further submitted that Muhammad Yaseen and Komal are minors (through their mother), while Munawar Ali (son of deceased) is lunatic/insane.
Consequently, on the basis of statements recorded by this court, I am of firm view that the compromise between the parties is genuine one without any compulsion, force or inducement, etc. (The concerned reports, newspaper and statements of legal heirs are enclosed herewith).”
3. Trial Court in the report has categorically stated that there is genuine compromise between the parties. Legal heirs of the deceased Ghulam Hussain alias Ali Hyder are present before the Court and categorically state that they have entered into the compromise with the appellants without any compulsion, force or inducement etc. and they have forgiven/pardoned the accused Ayoub and Bilawal in the name of Almighty Allah without claiming any Qisas, Diyat or compensation etc. All the legal heirs are major except Komal and Muhammad Yasin, whereas one legal heir, namely, Munawar Ali is mentally sick. This Court is satisfied that the compromise is genuine.
4. Learned Addl. P.G. recorded no objection.
5. The offence under section 302, PPC has three parts. Under section 302(a) an accused can be punished with death as Qisas; under section 302(b) with death or imprisonment for life as Tazir having regard to the facts and circumstances of the case if the proof specified in section 304 of the P.P.C. is not available and under section 302(c) with imprisonment of either description up to 25 years where according to the Injunctions of Islam the punishment of Qisas is not applicable. By virtue of the provisions of section 345(2) of the Cr.P.C. the offence under section 302 of the P.P.C. has been made compoundable by the heirs of the victim subject to permission of the Court. Before allowing composition of the offence the Court is duty bound to ascertain whether the compromise is genuine and made by the legal heirs of the deceased with their own free-will and whether the acquittal of the convict will be in the interest of the parties and the society. Once the above conditions are satisfied and the Court permits composition of the offence the convict has to be acquitted by virtue of the provision of subsection (6) of section 345 of the Cr.P.C. which is reproduced below for ready reference:-
“The composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded.”
6. Parties are closely related to each other. For better relations between the parties, they are allowed to enter into the compromise and permission for such compromise is allowed. Resultantly, compromise application is allowed and the appellants are acquitted in terms of compromise u/s 345(6), Cr.P.C. The appellants shall not be released till deposit of the diyat share amount of three minor legal heirs i.e. for minor Komal Rs.339,884/-, for minor Muhammad Yaseen Rs.679,768/- and for Munawar Ali Rs.679,768/-, already determined by the office, which shall be deposited in some profit bearing Government scheme, so that the interests of the minors be safeguarded and they may be paid the amount with the return/profit earned thereon, upon their gaining maturity. Rightly reliance is placed upon an unreported judgment of Hon’ble Supreme Court passed in the Case of Karim Bux v. The State (Criminal MA No.324/2020 & JP No.524/2019).
7. Instant appeal is disposed in the above terms along with listed applications.
JUDGE
Qazi Tahir PA/*