IN THE HIGH COURT OF SINDH,

CIRCUIT COURT HYDERABAD.

Present:

Mr. Justice Muhammad Ali Mazhar,

Mr. Justice Shaukat Ali Memon,

Cr. Appeal No.D-58 of 2014.

Confirmation Case No.13 of 2014.

Ali Dino. . . . . . . . .Appellant.

Versus

The State. . . . . . . . .Respondent.

1. For hearing of M.A. No.8863 of 2014 (U/S 345(2) Cr.P.C.).

2. For hearing of M.A. No.8865 of 2014 (U/S 345(6) Cr.P.C.).

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Cr. Jail Appeal No.D-77 of 2014.

Ghulam Qadir. . . . . . . .Appellant.

Versus

The State. . . . . . . . .Respondent.

1. For hearing of M.A. No.9712 of 2014 (U/S 345(2) Cr.P.C.).

2. For hearing of M.A. No.9714 of 2014 (U/S 345(6) Cr.P.C.).

Date of hearing; 24.04.2015.

Date of Judgment: 24.04.2015.

Appellants: Ali Dino and Ghulam Qadir in both appeals through Ms. Nasira Shaikh, Advocate.

Respondent: The State through Syed Meeral Shah Bukhari, D.P.G.

Mst. Khadija, Master Lutuf Ali,

Baby Rehana and Baby Yasmeen,

the widow, son and daughters of

deceased Muhammad Khalid S/o

Late Muhammad Khoso, respectively,

are also present in Court.

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J U D G M E N T

MUHAMMAD ALI MAZHAR, J:- Through a common judgment dated 07.06.2014, passed in Sessions Case No.70 of 2010 (Crime No.30/2010, lodged under Sections 302, 109 P.P.C. and Section 17(4) Offence Against Property (Enforcement of Hudood) Ordinance, 1979 at Police Station Pangrio), the appellant Ali Dino was convicted under Section 302(b) PPC and sentenced to death subject to confirmation of sentence by this Court as provided under Section 376 Cr.P.C. while appellant Ghulam Qadir was also convicted under Section 302(b) PPC r/w Section 34 PPC and sentenced to suffer life imprisonment. The accused Juman and Muhammad Hashim were acquitted from the charge. Both the present appellants were also directed to pay compensation of Rs.200,000/- each to the legal heirs of the deceased as required under section 544(a) Cr.P.C.

2. The appellants Ali Dino and Ghulam Qadir during pendency of the present appeals approached to the legal heirs of deceased Khalid for compromise. They also filed applications under Sections 345(2) and 345(6) Cr.P.C. in both appeals for accepting their compromise. Since three legal heirs of the deceased, namely, Baby Rehana, Baby Yasmeen and Master Lutuf Ali are minors, therefore, vide order dated 02.12.2014, the learned Division Bench of this Court allowed the application of Mst. Khadija Wd/o deceased Khalid for her appointment as Wali of the said minor legal heirs so that she may be able to compound the offence on their behalf also. This Court also directed the trial court to conduct inquiry and submit the report. In compliance of the order, the learned District & Sessions Judge Badin has submitted common reports in both the appeals, in which it is clearly mentioned that the statements of Mst. Khadija and Mst. Jiandi, the widow and mother of the deceased Khalid, respectively, have been recorded on oath. They have supported the compromise applications. Reports were also called from the Mukhtiarkar (Revenue) Tando Bago as well as SHO Police Station Pangrio, who had also shown the same legal heirs in their reports, whereas the father of the deceased has already died. Mst. Khadija and Mst. Jiandi in their statements clearly stated that they have forgiven the accused/appellants in the name of Almighty ALLAH and do not claim any compensation. So far as the Diyat amount in respect of the minor legal heirs is concerned, both the appellants are ready to pay the shares of the minors by transferring immovable property and execution of sale deed in their favour. In the concluding paragraph of the reports, the learned District & Sessions Judge found that the compromise is genuine and he has also sent copies of the affidavits/statements of the aforesaid major legal heirs of deceased. It is also apparent from the impugned judgment that though in the FIR besides Sections 302 PPC, Section 109 PPC and Section 17(4) Offence Against Property (Enforcement of Hudood) Ordinance, 1979 were also mentioned but the learned trial court only awarded punishment under Section 302 PPC and no separate punishment was awarded under Section 17(4) Offence Against Property (Enforcement of Hudood) Ordinance, 1979, therefore, the compromise applications are maintainable in this Court. The next question is whether the appellants will pay the Diyat amount in cash or in the shape of immovable property, the learned counsel for the appellants submitted a statement showing the shares of legal heirs of the deceased, but we are not satisfied with this statement as, according to this statement, the Diyat amount is only Rs.12,76,250.99 for all legal heirs including shares of two major legal heirs i.e. the widow and mother of the deceased but in the remarks it is said to have been waived by the major legal heirs, therefore, in order to evaluate and quantify the actual amount of Diyat prevailing at the time of compromise, the Additional Registrar of this Court is directed to calculate the amount of Diyat in view of the current Notification issued by the State Bank of Pakistan and value of Diyat will be taken as prevailing on the date of compromise i.e. today. After properly working out the shares of the minor legal heirs, the Additional Registrar will intimate the counsel for the appellants within three days, thereafter, the appellants either will deposit the Diyat amount in cash with the Additional Registrar of this Court or in alternate they will offer the immovable property equivalent to the shares of the aforesaid three minor legal heirs with the valuation report of the Mukhtiarkar concerned and if the value of the land is found equivalent to the shares of Diyat of the minors, the appellants will transfer the said land if accepted by Wali in the names of the minor legal heirs represented through their Wali and stamp duty, registration fee and all other expenses shall also be borne by the appellants. One more important aspect cannot be ignored that vide impugned judgment the learned trial court has also directed to pay Rs.200,000/- as compensation to the legal heirs of the deceased by both the appellants separately, therefore, in addition to the payment of Diyat amount, both the appellants shall also deposit the amount of compensation of Rs.200,000/- each in cash with the Additional Registrar of this Court, which will be paid by him to the Wali (Mst. Khadija) of the minor legal heirs on proper verification and identification.

3. In view of the above, the compromise applications are accepted accordingly. Both the appellants are acquitted of the charge, but they shall be released from the jail if all the terms and conditions as incorporated above are complied with subject to the satisfaction of the Additional Registrar of this Court, thereafter their release orders will be issued. The appeals are disposed of in the above terms and the Confirmation Case No.13/2014 for confirming death penalty of appellant Ali Dino is answered in negative.

The office is directed to place the copy of this judgment in the connected Cr. Jail Appeal No.D-77 of 2014.

JUDGE