ORDER SHEET

THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Cr. Appeal No.S- 09 of 2023

Date	Order with signature of Judge

13.11.2023.

1. For orders on office objection-A.

2. For hearing of main case.

Messrs Safdar Ali G. Bhutto and Mushtaque Ali Langah, Advocates for the appellant, along with appellant (on bail).

Mr. Ali Anwar Kandhro, Additional Prosecutor General, Sindh.

Complainant Bashir Ahmed Essani present in person.

O R D E R.

Muhammad Saleem Jessar- J.- Through instant criminal appeal, the appellant / convict Mehrab son of Phulo, by caste Jafferi, has assailed the Order dated 19.1.2023 handed down by 1^st Additional Sessions Judge, Kandhkot (trial court), in Sessions Case No.102/2022 Re-The State Vs. Mehrab Jafferi, whereby the trial Court while allowing the compromise applications acquitted appellant Mehrab Jafferi in terms of Section 345(6), Cr.PC, however subject to payment of diyat amount by the appellant to the extent of share of minor legal heirs of deceased Ghulam Ishaque Essani.

2. According to the case of prosecution, on 15.02.2022, at about 12.00 noontime, appellant Mehrab Jafferi, armed with TT Pistol, along with 05 others, who were armed with TT Pistols and lathi, committed murder of Ghulam Ishaque, son of complainant Bashir Ahmed, by making fires upon him.

3. Learned Counsel for the appellant submits that while acquitting the appellant, the trial Court has imposed share of diyat to the extent of minor legal heirs of the deceased; however, the compromise applications moved by the legal heirs of deceased were considered and the appellant had not signed any applications, which may show that he had entered into compromise with the legal heirs. Therefore, learned Counsel submitted that it would be appropriate if the impugned order is set aside and the case may be remanded to the trial Court to proceed with the trial and decide the same on merits after recording evidence of the parties.

4. Learned Addl. P.G. concedes to the above submission of the learned Counsel for the appellant and raises no objection for remand of the case to the learned trial Court for resolving the ambiguity so created.

5. Complainant Bashir Ahmed, who is present before the Court, submits that the appellant had admitted the guilt before private ‘faisla’, where the other co-accused had paid the compensation imposed upon them in that ‘faisla’, while the appellant is refusing to pay the same only to defeat the interests of minor legal heirs.

6. I have considered the contentions of the parties and have gone through the record including the R&Ps of the case.

7. Perusal of the impugned order reveals that though the appellant denied to have entered into compromise with the legal heirs of the deceased; however, had given no objection for his acquittal in terms of the compromise with the legal heirs of the deceased vide impugned order. At this juncture, the appellant is reluctant to pay the diyat amount to the extent of minor legal heirs of deceased. The contention of learned Counsel for the appellant that the compromise applications were not signed by the appellant, appears to be correct, as these applications do not contain the signature of the appellant. I have carefully gone through the impugned order dated 19.01.2023; paragraph No.3 whereof reads as under:-

“3. The Counsel for accused has contended that no private settlement has taken place between accused and complainant party, however, he stated that the accused has no objection if he is acquitted in view of the compromise application filed by the complainant and legal heirs of the deceased under section 345-2 & 6 Cr.P.C. In furtherance of no objection the accused submitted application supported by the affidavit that since legal heirs of the deceased have filed compromise application under Section 345-6 Cr.P.C, for which he has no objection in view of waiving Qisas by the legal heirs of the deceased and he has no objection if application under section 345-6 Cr.P.C to the extent of his acquittal is involved.”

8. The procedure adopted by the learned trial Court in granting the compromise applications admittedly filed alone by the legal heirs of deceased and taking into consideration no objection given by the appellant/accused orally for his acquittal, is illegal and not recognized by law. Therefore, the impugned order passed by the learned trial Court cannot withstand, which is hereby set aside and the matter is remanded to the trial Court with direction to proceed with the trial by framing charge against the appellant, record evidence and on conclusion of trial pass judgment on merits of the case in accordance with law as early as possible, preferably within six months’ time.

10. The appellant was on bail during trial proceedings, which was granted to him on merits, therefore, he shall be deemed to be on bail before the trial Court on furnishing fresh surety of equivalent amount, which he had already furnished. The appellant as well as complainant, who are present, undertake to appear before the trial Court on 23.11.2023 along with PWs and their respective Counsels.

J U D G E