O R D E R S H E E T

IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Cr. Acquittal Appeal No.S-20 of 2010

Date	Order with signature of the Judge

1. For orders on M.A No.857/ 2012

2. For orders on M.A No.858/2012

3. For orders on M.A No. 859/2012

4. For orders on M.A No.860/2012

05.4.2012

Mr. Yasir Arfat Seelro, advocate for appellant.

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1. Urgency application granted.

2. Exemption application granted.

3.&4. Both the accused Muhammad Ishaque and Haji Ahmed were acquitted vide judgment dated 23.2.2010 passed by the Assistant Sessions Judge, Shahdadkot in Sessions Case No.474/2003 arising from crime No.119/2003 lodged under section 324, PPC at Police Station, Shahdadkot. The complainant being dissatisfied filed instant criminal acquittal appeal in this Court which was heard and vide judgment dated 14.6.2010, this criminal acquittal appeal was allowed and the respondent No.1 and 2 were convicted to suffer R.I. for five years and also pay fine of Rs.20,000/- each. The respondents No.1 and 2 filed Criminal Appeal No.17-K of 2010 in the honourable Supreme Court which was dismissed vide order dated 21.9.2011 and the conviction awarded to the respondent No.1 and 2 was maintained. The learned counsel for the appellants also submitted a certified true copy of warrant dated 23.2.2012, which shows that both the appellants/convicts surrendered in Court and the learned trial Court sent them in jail with warrant to Superintendent, Central Prison, Larkana. Now the parties have filed applications under Section 345(2) and Section 345(6), Cr.P.C in which it is stated that the parties have amicably resolved the dispute and since the offence was compoundable therefore, compromise application was filed in the trial court but it was neither entertained nor taken on record. Since they had left with no other option therefore they have filed present applications in this court for further orders. In this court no case is pending, therefore, it would be appropriate that these applications should be filed in the trial court who may pass orders on it and if the trial court feels that the applicants are not maintainable before it, the trial court should pass a speaking order. Learned counsel for the applicant referred to a judgment report in PLD 1996 SC 178 in which the honourable Court considered Section 388-E(2) of P.P.C which provides that, all questions relating to waiver or compounding of an offence or awarding of punishment under section 310, whether before or after the passing of any

sentence, shall be determined by trial Court.

In the above judgment, the honourable Supreme Court has also framed the guidelines for subordinate courts as under:-

“For the guidance of the subordinate Courts and the citizens, it is hereby laid down that--

(i) in case of Qatl-e-Amd, if the right of Qisas is waived without any compensation, or compromise is arrived at between the parties i.e. accused and the adult legal heirs of the deceased, during the pendency of trial, the application for permission to compound the offence shall be made before the trial Court who shall determine all questions relating to waiver or compounding of an offence or awarding punishment under section 310, PPC.

(ii) In case of Qatl-e-Amd, if the right of Qisas is waived without any compensation or the legal heirs of the deceased compound their right of Qisas within the meanings of sections 309 and 310, P.P.C., during the pendency of appeal, applications for permission to compound the offence shall be made before the appellate Courts, who shall determine all questions relating to waiver or compounding of an offence or awarding punishment under section 310, PPC.

(iii) Under section 338-E(1), P.P.C., subject to the provisions of Chapter XLV and section 345 of the Code of Criminal Procedure, all offences under Chapter XLV, P.P.C. relating to homicide and hurt may be waived or compounded and the provisions of sections 309 and 310, P.P.C. shall, mutatis mutandis, apply to the waiver or compounding of such offences. So, if any offence under Chapter XLV affecting the human body is waived or compounded after the decision by the trial Court or the decision of appeal, if any, an application for permission to waive or compound the offence shall lie before the trial Court which shall determine all questions relating to the waiver or compounding of an offence or awarding of punishment under section 310, P.P.C., and if the trial Court is convinced that the waiver of right of qisas or compounding of an offence punishable under Chapter XLV is genuine and in order, it shall acquit the accused.

(iv) If a question arises as to whether any person is or is not the legal heir of the deceased, such question shall be determined by the Court competent to receive application on the basis of waiver or compromise between the parties.

(v) For the purpose of determination of questions relating to the waiver or compounding of an offence, the accused and the legal heirs of the deceased shall be treated parties to the proceedings under section 338-E(1), P.P.C.

4. The petitioner may approach the trial Court in this case under section 338-E(2), P.P.C., if so advised and the trial Court shall act in accordance with law”.

In view of the above, both the applications are disposed of with the directions to the applicants to file compromise application before the trial Court which is an appropriate forum and if such applications are filed, the learned trial Court shall decide the applications on merits expeditiously.

Judge