IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Cr. Jail Appeal No.S-04 of 2016
1. For hearing of M.A. No.1534/2022.
2. For hearing of M.A. No.1535/2022.
3. For hearing of M.A. No.1536/2022.
4. For hearing of M.A. No.39/2022.
5. For hearing of Main Case.
Mr. Abdul Rahman A. Bhutto, advocate for the appellant.
Mr. Ali Anwar Kandhro, Addl. P.G.
Date of hearing : 08.09.2022.
Date of Order : 08.09.2022.
O R D E R.
Appellant Shahbazi son of Jhangal Khan Mirjat was tried by the learned III-Additional Sessions Judge, Larkana in Sessions Case No.421/2013, re-The State v. Shahbazi Mirjat (Crime No.11/2013, registered at P.S Rasheed Wagan, for offences under Sections 302, 324, 148, 149, PPC). After regular trial, the appellant was convicted by the trial Court vide judgment dated 18.12.2015 and sentenced as under:-
“I, therefore, convict the accused u/s 265-H(2) Cr.P.C. for offence u/s 302(b) r/w S-149 PPC and sentence him to imprisonment for life as Tazir and to pay fine of Rs.2,00,000/- to be paid to the legal heirs of the deceased Mst. Farzana and minor deceased Ajeeb Ali, as compensation within the meaning of section 544-A Cr.P.C. and in default thereof to undergo 6 months simple Imprisonment (S.I). Accused is further convicted u/s-324 r/w section 149 PPC and sentenced to undergo 7 years simple imprisonment and also directed to pay fine of Rs.100,000/- to be paid to both injured Asif and Zohaib, and in default thereof to undergo 4 months S.I. Accused Shahbazi is also convicted u/s 148 PPC and sentenced with simple imprisonment of 03 years. Accused Shahbazi is also convicted and sentenced u/s- 337-F(i) PPC and directed to pay Rs.50,000/- as daman to victim Asif. All the sentences against the accused shall run concurrently.”
2. Appellant preferred appeal. The same was admitted to regular hearing on 09.02.2016. During the pendency of the appeal, parties entered into the compromise and an application bearing No.1534/2022 was filed for permission to enter into the compromise and another application bearing No.1536/2022 for acquittal of the appellant by means of the compromise, with the prayer that the parties entered into the compromise and as a result thereof legal heirs of the deceased have pardoned the appellant/convict and also waived their right of Qisas. So far minor legal heirs of the deceased are concerned, they are claiming due share of Diyat. It is prayed that compromise may be accepted and appellant may be acquitted of the charge by means of the compromise. Along with the proforma, affidavits of the adult legal heirs of the deceased are filed affirming the fact of the compromise. It was accompanied with the details of the legal heirs of deceased.
3. As the offence of qatl-i-amd being compoundable in nature, therefore, compromise application needed consideration. Therefore, to verify the genuineness of the compromise effected between the parties and also to determine the fact of effecting of the compromise without any duress and compulsion and also to confirm the details of the legal heirs of the deceased, compromise application was marked to the trial Court vide order dated 09.5.2022 with direction to hold inquiry regarding the genuineness or otherwise of the compromise and submit a comprehensive report to that effect. On completion of the process of verification of the fact of compromise, the trial Court submitted the report dated 17.6.2022, in which it is mentioned that there is genuine compromise between the parties. Report of the trial is reproduced as under:-
“Sir, in compliance of order dated 09.05.2022 passed by the Honourable High Court of Sindh, Circuit Court, Larkana in the Jail Appeal No.S-04 of 2016, re: Shahbazi Mirjat Versus the State under Sections 302, 324, 148, 149 PPC, vide Crime No.11/2013, P.S Rasheed Waggan, the undersigned conducted the inquiry, during which the adult legal heirs of deceased Mst. Farzana and Ajeeb Ali were called and statements out of seven legal heirs, four legal heirs namely Hazar Khan, Mst. Samina, Mst. Sajina and Suhno were recorded in which they admitted the factum of compromise with appellant/accused Shahbazi son of Jhangal Khan Mirjat and they rendered their no objections if the appellant/accused Shahbazi is acquitted from the charge of subject cited case in view of the compromise while statements of Asif Ali and Zuhaib are not recorded as they are minors. Apart from this, notice was also got published in daily news paper Kawish Hyderabad as well as reports from concerned Police Station, Mukhtiarkar, NADRA and Union Council were called. The Mukhtiarkar Larkana, SHO Police Station Rasheed Waggan, Secretary Union Council Ratokot, in their respective reports showed legal heirs of the deceased Mst. Farzana and deceased Ajeeb namely Suhno 2. Mst. Sakeena 3. Hazar Khan 4. Mst. Sajina 5. Mst. Ashna 6. Asif Ali and 7. Zuhaib both minors as shown in the compromise applications bythe parties. It is further submitted that, besides the above named legal heirs, one Mst. Ashna daughter of deceased Farzana and sister of deceased Ajeeb Ali has also been shown one of the legal heirs in their respective reports by the concerned Mukhtiarkar, SHO and Secretary of Union Council (whose name is not mentioned in the compromise applications). However, after receipt of such reports by this Court, the parties also produced said Mst. Ashna before this Court and her statement is recorded, she also admitted the factum of compromise and rendered her no objection if the accused Shahbazi is acquitted in view of the compromise. Despite publication of notice in respect of compromise arrived at by the parties, none from the public came forward to render any objection.”
4. I have heard the learned advocate for the appellant, learned Addl. P.G. and the legal heirs of the deceased. Minor legal heirs have also appeared. Male and female adult legal heirs of both the deceased have stated that they have forgiven the appellant in the name of Almighty Allah; they have also waived their right of Qisas and do not claim diyat or any compensation, but there are two minor common legal heirs of both the deceased. In this case, deceased were Mst. Farzana and her son Ajeeb Ali. Share of diyat amount for major and minor legal heirs of each deceased is determined by the office. Minor legal heirs of both the deceased are Asif Ali and Zuhaib. Asif Ali is the son of deceased Mst.Farzana, his diyat amount due is Rs.591,834/-; Zuhaib is also son of deceased Mst. Farzana, his diyat amount due is also Rs.591,834/-. These both minors Asif Ali and Zuhaib are also legal heirs of deceased Ajeeb Ali being his brothers; hence, both the said minors are also entitled to share in the diyat amount of deceased Ajeeb Ali, which as determined by the office is Rs.591,834/- for minor Asif Ali as well as Rs.591,834/- for minor Zuhaib.
4. Additional P.G. recorded no objection for allowing the compromise application.
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. It is stated that parties are related to each other. Permission to enter into the compromise is allowed. Resultantly, keeping in view the report of the trial Court and for better relations between the parties in future, application for compromise is allowed. The appeal is allowed and accused/appellant is acquitted in terms of compromise u/s 345(6), Cr.P.C. The appellant shall not be released till deposit of the diyat share amount of minors i.e. for minor Asif Ali Rs.1183668/- (Rs.591,834/- for each deceased) and for minor Zuhaib Rs.1183668/- (Rs.591,834/- for each deceased), as already determined by the office, as well as subject to deposit the fine amount of Rs.100,000/- to be paid to both injured Asif and Zuhaib and Rs.50,000/- as daman to be paid to victim Asif, as directed by the trial Court, which shall be invested 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. The appeal is disposed in the above terms along with listed application.
JUDGE
Qazi Tahir PA/*