2017 P Cr (PLP)

MUHAMMAD SALEEM JESSAR, J.

1 &

2. Appellant Abdul Jabbar Golo has filed this appeal against the judgment dated 26.11.2012 passed by the learned Additional Sessions Judge, Kashmore in Sessions Case No. 83/2010 re State v. Ghulam Qadir and others under Crime No.37/2010 of Police Station Gablo Katcho, District Kashmore at Kandhkot, under sections 302, 147, 148, 149, P.P.C., whereby the appellant was convicted under section 302(b), P.P.C. for committing murder of deceased Faqee Muhammad alis Papol and sentenced to imprisonment for life and also to pay Rs. 100,000/- as compensation to the legal heirs of said deceased in terms of section 544-A, Cr.P.C. The appeal was admitted for regular hearing on 29.11.2012 and paper book was ordered to be prepared. However, in the meantime, the parties i.e. appellant/convict and the legal heirs of deceased entered into compromise outside the Court and such applications being M.A. No.1758/2016 under section 345(5), Cr.P.C. for permission to enter into compromise and M.A. No. 4759/2016 under section 345(6), Cr.P.C. for acceptance of compromise and acquittal of the appellant, were filed. Said applications were sent to trial Court vide order dated 30.12.2016 for asscertaining the genuineness of compromise, recording statements of the legal heirs and report. In compliance of the said order the learned Additional Sessions Judge, Kashmore after holding an enquiry submitted his report through letter No. 62 of 2017, dated 26.01.2017. In his report he has stated that he recorded the statements of all the legal heirs of deceased, who in their statements stated on with that they have patched up and forgiven the accused on the intervention of Nekmards of the locality and have waived their right of Qisas and Diyat and they have recorded no objection to the acquittal of appellant/convict. Today, the legal heirs of deceased are present before this Court and state that they have forgiven the appellant/convict voluntarily, without any coercion, compulsion or inducement and thereby they have waived their right of Qisas and Diyat. At the very outset of proceedings, learned Counsel for the appellant as well as complainant/legal heirs of deceased, have contended that since the parties have buried their hatchets due to intervention of Nekmards, therefore, permission to enter into compromise may be accorded and compromise between the parties may be accepted. Learned APG after going through the enquiry report furnished by the trial Court has extended his no objection only to the acceptance of compromise, however, he has contended that the compensatory amount in terms of section 544-A, Cr.P.C. cannot be written off or waived and in support of his contention he has placed reliance on the case of Muhammad Tufail v. Sesseions Judge Attock reported in PLD 2004 SC

89. The counsel for the appellant submits that the appellant is a poor person, as such, he may be allowed to pay such compensation in five monthly instalments of Rs. 20,000/- each. I have heard learned counsel for the parties as well as L.Rs. of deceased person and have also gone through the record made available before me with able acceptance of learned counsel for the parties. As far as compensation of Rs. 100,000/- awarded to legal heirs of deceased in terms of section 544-A, Cr.P.C. is concerned the same being a compensatory cannot be written off/waived and the dictum laid down by the apex Court in the case of Muhammad Tufail (supra) is supportive to the submission advanced by the learned APG, wherein it was held as under:- "Under section 544-A, Cr.P.C. there is no such provision whereby such recovery in respect of compensation when awarded could be written off or waived even if substantive sentences are served out." Admitteldy the legal heirs of deceased Faqeer Muhammad alias Popal have forgiven the appellant/convict and have prayed for his aquittal/release from the charge vis-a-vis in this case, therefore, application under section 345(5), Cr.P.C. is allowed and in consequence thereof the compromise between the appellant and legal heirs of deceased Faqeer Muhammad alias Popal is accepted. The appeal disposed of in terms of compromise, the impugned judgment dated 26.11.2012 is hereby set aside and appellant is acquitted of the charge. As far as contention of learned APG regarding compensation awarded under section 544-A, Cr.P.C. is concerned, a bare perusal of section 544-A, Cr.P.C. shows that compensation is an addition to actual conviction (sentence) for the offence which the Court has to award. The petition, being so, further proves that section 345(1) of the Code permits a person (so specified in relevant column of this section) to compound the offence but not the 'compensation'. The law permits compounding of the offence only. The term 'offence' is not synonym to 'compensation'. Section 4(o) of the Criminal Procedure defines the word 'offence' as "Offence means any act or omission made punishable by any law for the time being in force, it also includes any act in respect of which a complaint may be filed under section 20 of the Cattle Tresspass Act, 1871." while the 'compensation' has been defined by Black's Law Dictionary as 'compensation'. (1) Remuneration and other benefits received in return for services rendered esp. salary or wages. (2) Payment of damages, or any other act that a court orders to be done by a person who has caused injury to another and must therefore make the other whole. From comparative reading of both words, it is clear that 'compensation' is a kind of damage(s) which the Court awards and it is entirely independent to that of offence or its punishment. This proviso comes into play only where the Court is convicting a person and needless to say that a conviction only comes after conclusion of trial or where one pleads guilty. The object and purpose of this proviso appears to be nothing but to compensate a little regarding damage. This also becomes quite obvious from reading of the section 546 of the Code, which reads as under:- "

546. Payments to be taken into account in subsequent suit. At the time of awarding compensation in any subsequent civil suit relating in the same matter the Court shall take into account any sum paid or recovered as compensation under (section 544-A or section 545). Thus, in view of above it can safely be said that competence of persons, so specified in relevant column of section 345(1) of the Code, though continues to compound the offence even after conviction but such competence shall not be available to him/them in matter of compensation, awarded under section 544-A of the Code. Thus, such person or persons, shall not be competent to waive the compensation even. Therefore, while considering the plea of poverty of the appellant, he is allowed to deposit the compensatory amount in five monthly instalments of Rs. 20,000/- each, which shall be deposited by him in the trial Court from the month of April, 2017, to be commenced from 10th of April and onward of every calendar month. The appellant shall be released subject to his furnishing surety bond/undertaking equivalent to the compensatory amount viz. Rs. 100,000/- to be executed before the learned trial Court to the effect that after his release he shall pay the amount of compensation within a period of five months in five insalments to the legal heirs of deceased through trial Court. In case of default in payment of two consecutive instalments the amount of compensation being compensatory in nature shall be recovered from the appellant as arrears of land revenue under section 544-A, Cr.P.C. 3 &

4. In the terms stated above, instant appeal stands disposed of along with M.A. No. 2674/2016 i.e., application under section 426, Cr.P.C. Office is directed to send copy of this order along with R&Ps of the case being Sessions Case No. 83/2010 re State v. Ghulam Qadir and others to the learned trial Court for necessary compliance. The trial Court shall ensure the recovery and update this Court through Additional Registrar in the above terms. JK/A-25/Sindh Order accordingly.