2002 PLP 447 (MLD)

SPED ZAWWAR HUSSAIN JAFFERY, J.

The appellant was convicted on 9-1-2001 for an offence under section 302, Qisas and Diyat Ordinance read with section 13(d) of Arms Ordinance in the Crime No.71., of 1995 registered at Police Station, Mohabat Dero Jatoi: After recording the evidence, the trial Court convicted the appellant by awarding death sentence and fine of Rs.1,00,000 which if realized will be paid to the legal heirs of the deceased. It was also ordered that the appellant shall be hanged by neck till death subject to confirmation by this Court. The trial Court further directed that in case of non-payment of fine, the convict shall further suffer R.I., for two years more. The said judgment passed by Special Judge (S.T.A.), Nushahro Feroze has been challenged by way of appeal through Criminal Jail Appeal and there is also reference for confirmation being No.l of 2001. The appeal was admitted for regular hearing by this Court and during the. pendency of appeal the better sense has been prevailed between the parties and they have entered into compromise. The complainant party and the legal heirs have filed their affidavits as well as the pro forma as provided under the law. The learned counsel for the appellant has filed application under section 345, Cr.P.C. read with sections 309, 310, 338-E of Qisas and Diyat Ordinance, as C. M. A. No. 1127 of 2001. It is contended in such compromise application that the Nek mards of both the parties have patched up their differences and the Court may accept their compromise and acquit the appellant, as the relations of the parties would be more bitter and stern if the p application is not accepted. It is further urged by the parties that they have waived their right of Qisas and do not claim anything against Diyat which has been forgiven in the name of Almighty Allah. The provisions of sections 309, 310 and 302, P.P.C., have been substituted by the Criminal Law Amendment by adding the provisions of sections 338-E, 338-H and the Islamic concept has been brought by way of amendment in the Criminal Procedure Code for compounding the offences in cases failing under section 309, P.P.C. and compounding of the Qisas (Sulh). It is also urged by the learned counsel that sections 310 and 313 have been substituted by Criminal Law (Second Amendment) Ordinance of 1990 equitable and fair (Badl-i-Sulh) have been brought then the heirs of the victim are satisfied either with the amount of Diyat for fair Badl-i-Sulh or they do not claim anything against Diyat which is forgiven in the name of Almighty Allah. Learned counsel for the appellant has relied upon the case of Safdar Ali and others v. The State and others (PLD 1991 SC 202), Muhammad Mazhar v. The State (1992 PCr.LJ 443), Ghulam Rasool and others v. The State (1995 PCr. LJ 1327) and Abdul Hussain alias Noor Hassan alias Hanan v. The State (1999 PCr.LJ 1936). Mr. Ghulam Sarwar Korai, learned counsel appearing on behalf of Additional Advocate-General, Sindh for the State has conceded for acceptance of application under section 345, Cr.P.C. read with sections 309, 310 of Qisas and Diyat Ordinance submits that in the light of the compromise made between the parties, their compromise may be accepted and the convict/appellant may be acquitted of the charge. On 5-9-1990 Qisas and Diyat Ordinance, 1990, Criminal Law (Second Amendment) Ordinance, 1990 was promulgated and during the pendency of the appeal, the appellant Muneeruddin and the, complainant Wasand Ali, husband of the deceased and all five sons of the deceased have signed the application for compounding the offence and they have also filed the pro forma for effecting compromise under Qisas and Diyat Ordinance as provided by the Honourable apex Court. After filing such application by the parties, the matter was referred to the learned Special Judge (S.T.A.), Naushahro Feroze for ascertaining the genuineness or otherwise of the compromise between the parties. The learned Sessions Judge in pursuance of the report so called from Mukhtiarkar, Kandiaro regarding the legal heirs of the deceased (Mst. Husna Khatoon) and as per report Mukhtiarkar, Kandiaro has stated that there are six legal heirs of the deceased Mst. Husna Khatoon namely Abdul Ghafoor, Abdul Shakoor, Abdul Rasool and Abdul Hakeem all sons of the deceased whereas Wasand Alt as a husband of the deceased. It is reported by the learned Judge that all the legal heirs are not minor and after' due enquiry it is reported by the learned Special Judge (S.T.A.) that the compromise application appears to be genuine and necessary orders may be passed. The legal heirs of the deceased are present in the Court and they have affirmed that they have forgiven the accused in the name of Allah ( ). According to them, the deceased had not left any other legal heirs except the abovementioned heirs who have filed their affidavits and signed the application. In view of the dictum laid down in the aforesaid authorities, and the provisions indicated above, the waiver of compounding the offence in cases falling under sections 309 and 310, P.P.C. is available to the above‑named convict/appellant and the legal heirs of the deceased, therefore, the application under section 345, Cr.P.C. read with sections 309, 310/338‑E of Qisas and Diyat Ordinance is accepted, conviction and sentence are set aside in terms of the compromise and it is ordered that the appellant be released forthwith if not required in any other case. Reference made by the learned trial Court for confirmation of sentence stands‑disposed of, accordingly. H.B.T./M‑28&1/K Order accordingly.