IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Cr. Jail Appeal No.D-13 of 2022
Cr. Conf. Case No.D-05 of 2022
1. For orders on M.A. No.4124/2023.
2. For orders on M.A. No.4125/2023.
3. For orders on M.A. No.4126/2023.
4. For hearing of Main Case.
Mr. Habibullah G. Ghouri, advocate for the appellant.
Mr. Ali Anwar Kandhro, Addl. P.G.
Complainant Abdul Jabbar Bajkani in person.
Date of hearing : 21.11.2023.
Date of Order : 21.11.2023.
O R D E R.
Appellant Ali Muhammad son of Shah Murad, by caste Gadehi was tried by the learned 1st Additional Sessions/MCTC Judge, Kandhkot, in Sessions Case No.291 / 2019, re-The State v. Ali Muhammad Gadehi, based on Crime No.55/2013, registered at P.S Tangwani. On conclusion of the trial, trial Court convicted the appellant vide judgment dated 29.3.2022 and awarded him sentence of death, to be hanged by neck till his death, together with fine of Rs.500,000/- (five lacs) to be paid as compensation to the legal heirs of deceased in terms of Section 544-A, Cr.P.C and in default whereof to undergo R.I. for six months. Benefit of Section 382-B, Cr.P.C was extended to the appellant.
2. During pendency of instant appeal, the appellant and the legal heirs of deceased entered into compromise outside the Court and they filed listed applications M.A. No.4123/2023 for appointment of guardian ad-litem of minor legal heir(s) for the purpose of effecting compromise, M.A. No.4124/2023 for permission to enter into compromise, and M.A. No.4125/2023 for acquittal of the appellant in terms of compromise.
3. Learned Counsel for the appellant submits that the parties have entered into the compromise and as a result whereof the legal heirs of deceased Ali Murad have pardoned the appellant/convict and also waived their right of Qisas and do not claim compensation/badl-i-sulh etc. So far minor legal heir of the deceased, namely, Aijaz Ahmed (son) is concerned, share of Diyat is due to him. He submits that compromise may be accepted and appellant may be acquitted of the charge by means of the compromise. The affidavits of the legal heirs of the deceased have filed, affirming the fact of the compromise.
4. The offence, with which the appellant was charged, tried and convicted, is compoundable subject to permission of the Court; however, before accepting 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 under sub-section (6) to section 345 of Cr.P.C.
5. Learned Addl. P.G. has recorded no objection for allowing compromise application.
6. In order to verify the genuineness of the compromise and also to confirm the details of the legal heirs of the deceased, compromise applications were referred to the trial Court for holding requisite inquiry. On completion of the process of the verification of the fact of compromise, trial Court submitted the report dated 27.10.2023, in which it is stated that there is genuine compromise between the parties.
7. We have heard learned Counsel for the appellant, learned Addl. P.G. for the State and the complainant in person, who voluntarily appeared. All the legal heirs of deceased have also appeared and stated they have waived their right of Qisas and Diyat and that they have no objection if the appellant is acquitted in terms of compromise. Learned Prosecutor recorded his no objection for allowing the compromise applications.
8. In present case, deceased Ali Murad left behind following legal heirs at the time of his death and the office has determined their due share of Diyat amount as follows:-
|
Sr.# |
Name |
Relation |
Age about |
Amount of share |
|
1. |
Khair Bux |
Father |
67 years |
Rs.1126317/- |
|
2. |
Mst. Gulzadi |
Mother |
65 years |
Rs.1126317/- |
|
3. |
Mst. Marvi Khatoon |
Widow |
33 years |
Rs.844738/- |
|
4. |
Ms. Razia @ Razeena Khatoon |
Daughter |
22 years |
Rs.732106/- |
|
5. |
Ms. Ausar Khatoon @ Kausar |
Daughter |
18 years |
Rs.732106/- |
|
6. |
Ms. Rabia Khatoon |
Daughter |
19 years |
Rs.732106/- |
|
7. |
Aijaz Ahmed (minor) |
Son |
13 years |
Rs.1464212/- |
9. All the major legal heirs have stated that due to intervention of the nekmards of the locality they have forgiven the appellant in the name of Almighty Allah and they do not claim any compensation/badl-i-sulh from the appellant and have waived their right of Qisas and Diyat.
10. Share of Diyat of each legal heir of the deceased has been determined by the office, as above. In this case, the grandfather of the minor, namely, Khair Bux asserted that he has waived right of Qisas on behalf of the minor being his grandfather. He, however, is not competent to waive the share of minor in the Diyat amount.
11. In the view of above, the application u/s 345(4), Cr.P.C. for appointment of Khair Bux as ‘Wali’ of minor Aijaz Ahmed for the purpose of entering into compromise on behalf of said minor is allowed. For better relations between the parties in future, the permission to enter into the compromise is also allowed. Resultantly, the compromise between the parties is accepted and the conviction and sentence awarded to the appellant vide impugned judgment are set aside subject to payment of Diyat amount to the extent of minor Aijaz Ahmed (son). Appellant Ali Muhammad Gadehi is acquitted u/s 345(6), Cr.P.C in terms of the compromise. The appellant shall not be released till deposit of the diyat share amount of above-named minor legal heir, as already determined by the office, which shall be invested in some Government profit bearing scheme, so that the interests of the minor be safeguarded and he may be paid the amount with the return/profit earned thereon, upon his attaining majority.
12. As requested by learned Counsel for the appellant, the appellant shall pay share of minor legal heir in Diyat amount within two weeks’ time. Office shall not issue release writ unless the appellant may deposit the share of Diyat amount.
13. The appeal is disposed of in the above terms along with listed application(s).
JUDGE
JUDGE