ORDER SHEET
IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD.
Cr. Appeal No.D- 258 of 2011
Confirmation Case No.D- 16 of 2011
DATE ORDER WITH SIGNATURE OF JUDGE
1. For hearing of M.A No.145/2015 (U/S 345(2) Cr.P.C)
2. For hearing of M.A No.146/2015 (U/S 345(6) Cr.P.C)
17.04.2015.
Mr. Muhammad Bachal Unar advocate for the appellant.
Syed Meeral Shah Bukhari, Deputy Prosecutor General.
Syed Shafique Ahmed Shah advocate for legal heirs of deceased along with Mst. Rehana widow of deceased and Mst. Allah Bachai.
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The appellant Mubarak s/o Mooso has preferred this criminal appeal against the judgment dated 17.08.2011 passed in Sessions Case No.212/2006 in Crime No. 225/2006 lodged U/s 302, 504, 34 PPC at P.S Tando Adam. The learned Additional Sessions Judge Tando Adam has also filed reference under Section 374 Cr.P.C for confirmation of death sentence.
According to the conclusion arrived at in the impugned judgment, the prosecution successfully proved the charge of Qatl-e-Amd and since there were no other mitigating circumstances available on record, the trial court convicted the appellant Mubarak U/s 265-H(ii) Cr.P.C and awarded him death sentence and also directed to pay Rs.200,000/- as compensation U/s 544-A Cr.P.C to the legal heirs of deceased Soof with further directions to recover the same as arrears of land revenue.
During pendency of this appeal the appellant and the legal heirs of the deceased Soof filed applications U/s 345(2) and 345(6) Cr.P.C and vide order dated 08.01.2015, the trial court was directed to hold an inquiry and submit report. The report was submitted by the trial Court on 20.02.2015 which was not clear whether the compromise arrived at between the parties with the waiver of diyat amount or not and some other extraneous considerations were also mentioned so vide order dated 13.03.2015 we rejected the earlier report with the directions to the learned Additional Sessions Judge Tando Adam to submit the report as to whether legal heirs of the deceased have voluntarily entered into the compromise and also waived the amount of diyat or not . On these directions the learned Additional Sessions Judge again submitted the report on 01.04.2015. It is clearly stated that after filing the compromise applications in the High Court on 05.01.2015 Muhammad Soomar, father of deceased Soof died and while making inquiry the learned trial Court also summoned the legal heirs of Muhammad Soomar though they are closely related to the deceased Soof. The learned trial Court with his report also attached the examination in chief of Mst. Zainab, Abdul Majeed, Tahir, Sodho, Qadir Bux, Mst. Allah Bachai, Mst. Ameena, Mst. Rubina and Mst. Rehana and it is also mentioned in the report that the deceased Soof was issueless. In Paragraph-7 of the report, it is concluded that the legal heirs of the deceased Soof appeared before the trial Court and their statements were also recorded and they have unanimously deposed before the learned Additional Sessions Judge that they have forgiven the appellant Mubarak in the name of Almighty ALLAH and they have not taken any amount with regard to Qisas and Diyat because they have waived it without any pressure, coercion or greed and they have no objection if the appellant Mubarak may be acquitted by this compromise.
The learned counsel for the legal heirs of deceased stated that since the parties have already entered into compromise and report is available on record therefore the appellant may be acquitted while the learned D.P.G. for the State submitted that though the offences under which the appellant was charged are compoundable but he has pointed out last paragraph of the impugned judgment in which the directions were also given to the appellant to pay compensation of Rs.200,000/- to the legal heirs of deceased. In our view, the amount of compensation cannot be waived so the appellant is required to deposit/pay this amount even though this compromise application is accepted and he is acquitted.
As a result of above discussion both the listed applications filed for accepting compromise are allowed. The appellant is acquitted in terms of Section 345(6) of Cr.P.C. and he may be released if not required to be detained in any other case. So far as the compensation amount is concerned, the appellant shall deposit Rs.200,000/- with the Additional Registrar of this Court within a week which will be released to the legal heirs of deceased Soof on proper verification and identification. The release order shall not be issued unless this amount is deposited with the Additional Registrar of this Court. The appeal is disposed of in view of compromise between the parties and the reference No.16/2011 is answered in negative.
JUDGE
JUDGE
Ali Haider/P.A