IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Cr. Appeal No.S-34 of 2021
1. For hearing of M.A. No.2461/2022.
2. For hearing of M.A. No.1925/2022.
3. For hearing of M.A. No.1926/2022.
4. For hearing of M.A. No.1927/2022.
5. For hearing of Main Case.
Mr. Zafar Khalil Ahmed Jakhrani, advocate for the appellant.
Mr. Ali Anwar Kandhro, Addl. P.G.
Mr. Mohammad Afzal Jagirani, advocate for the complainant.
Date of hearing : 15.09.2022.
Date of Order : 15.09.2022.
O R D E R.
Appellant Ehsan Ali son of Kundal, by caste Lerwani Buledi was tried by the learned Additional Sessions Judge-II, Jacobabad, in Sessions Case No.20/2020, re-The State v. Rafique Ahmed Buledi & others (Crime No.15/2019, registered at P.S Miranpur Buriro). After regular trial, vide judgment dated 29.5.2021 the trial Court convicted the appellant and co-accused Rafique Ahmed and sentenced them as under:-
“both accused are sentenced for Imprisonment of Life, for offence u/s 302(b) PPC. Both accused are also directed to pay Rs.2,00,000/- (Two lac) each to legal heirs of deceased as compensation u/s 544-A, Cr.P.C. Both accused are also convicted for offence u/s 324 PPC and sentenced to R.I. for five (05) years each and shall pay fine Rs.30,000/- each, in case of default shall further undergo S.I. for six (06) months. Both accused are also convicted for offence u/s 506/2 PPC and sentenced to R.I. for two (02) years each and shall pay fine Rs.10,000/- each, in case of default shall further undergo S.I. for three (03) months each. Both accused are also convicted for offence u/s 148 PPC and sentenced to R.I. for one (01) year each, with fine Rs.10,000/- each, in case of default shall further undergo S.I. for three (03) months each. All sentences shall run concurrently. The benefit of section 382-B, Cr.P.C is extended to both accused.”
2. Instant appeal was filed by the appellant with prayer for setting aside the conviction and his acquittal of the charge.
3. This appeal was admitted for regular hearing on 11.6.2021. During the pendency of the appeal, an application bearing No.1925/2022 was filed for permission to enter into the compromise, another application bearing No.1927/2022 for appointment of Mst. Husna as guardian ad-litem of minor legal heirs, namely, Kareeman and Abdul Hameed and third application bearing No.1926/2022 for acquittal of the appellant by means of the compromise, with the prayer that the parties have entered into the compromise and as a result thereof the legal heirs of the deceased have pardoned the appellant/convict and also waived their right of Qisas and do not claim compensation etc. So far minor legal heirs of the deceased are concerned, share of Diyat is due to them. 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 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.
4. 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.”
5. Learned Addl. P.G. has no recorded no objection for allowing compromise application.
6. 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 with a direction to hold inquiry regarding genuineness or otherwise of the compromise and submit a comprehensive report to that effect. On completion of the process of the verification of the fact of compromise, trial Court submitted the report dated 24.5.2022, in which it is stated that there is genuine compromise between the parties.
7. I have heard the learned Counsel for the appellant, learned Counsel for the complainant, learned Addl. P.G. for the State, wife of the deceased and the father of the deceased, who voluntarily appeared. Minor legal heirs of the deceased have also appeared. The wife of the deceased waived her right of Qisas and Diyat so also the father of the deceased. Learned Prosecutor recorded his no objection for allowing the compromise application.
8. In the present case, deceased Bashir Ahmed left behind following legal heirs at the time of death and the office has determined their due share of Diyat amount as follows:-
|
Sr.# |
Name |
Relation |
Age about |
Amount of share |
|
1. |
Mst. Husna |
Widow |
57 years |
Rs.539,816/- |
|
2. |
Moula Bux |
Father |
92 years |
Rs.719,754/- |
|
3. |
Muhammad Ameen |
Son |
18 years |
Rs.873,987/- |
|
4. |
Mst. Ameena |
Daughter |
23 years |
Rs.436,993.5/- |
|
5. |
Mst. Zareena |
Daughter |
18 years |
Rs.436,993.5/- |
|
6. |
Abdul Hameed (minor) |
Son |
10 years |
Rs.873.987/- |
|
7. |
Mst. Kareema (minor) |
Daughter |
12/13 years |
Rs.436,993.5/- |
9. Mst. Husna wife of deceased, has forgiven the appellant in the name of Almighty Allah and does not claim/waive compensation and share of Qisas/Diyat. Father of the deceased voluntarily appeared and stated that he has also forgiven the appellant due to intervention of the nekmards of the locality in the name of Almighty Allah and waived the right of Qisas/Diyat.
10. Share of Diyat of each minor has been determined by the office as above. In this case, the mother of the minors, namely, Mst. Husna asserted that she has waived right of Qisas on behalf of the minors being their mother and natural guardian, but claimed Diyat for the minors admissible as per law.
11. In the view of above, the application u/s 345(4), Cr.P.C. for appointment of Mst. Husna as ‘Wali’ of minors Abdul Hameed and Kareema for the purpose of entering into compromise on behalf of said minors is allowed. For better relations between the parties in future, the permission to enter into the compromise is also allowed. Resultantly, compromise application is allowed and instant appeal is allowed. Appellant Ahsan Ali Lerwani Buledi is acquitted by means of the compromise u/s 345(6), Cr.P.C. The appellant shall not be released till deposit of the diyat share amount of minors, as already determined by the office, 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).
12. The appeal is disposed of in the above terms along with listed application(s).
JUDGE