2021 PLP 388 (MLD)

ABDUL MAALIK GADDI, J.

Through this criminal appeal, the appellant Javed Qureshi has assailed the legality and propriety of the judgment dated 26.01.2019, passed by the Court of learned Xth Additional Sessions Judge, Karachi (West) in Sessions Case No.1733 of 2013, arising out of Crime No.14 of 2013, registered at police station Manghopir, under Section 302/34, P.P.C., whereby the learned trial Court after full dressed trial convicted and sentenced the appellant as stated in the paragraph No.23 (point No.3) of the impugned judgment. For the sake of convenience, it would be appropriate to reproduce the said paragraph (point No.3) of the impugned judgment, which reads as under:- "Point No.3.

23. The outcome of the discussion made hereinabove is that the prosecution has successfully proved the charge against the accused Javed Qureshi son of Qasim beyond any shadow of reasonable doubt. Accused Javed Qureshi son of Qasim is convicted under section 265-H(ii), Cr.P.C. for the offence punishable under section 302, PPC. He is sentenced to imprisonment for life in addition to fine of Rs.05,00,000/- which shall be paid to the legal heirs of the deceased as compensation in terms of section 544-A, Cr.P.C, if recovered, in case of default the accused shall undergo R/I for further period of two months. The accused is also entitled for benefit of Section 382-B, Cr.P.C. The present accused is remanded to Jail Custody with conviction warrant under the directions to serve the sentences imposed upon him in terms of this judgment and return the conviction warrants after its execution as provided under section 400, Cr.P.C. The case of absconding accused namely Bakshal Gopang Son of Husso Khan and Hanif Tedi Son of Waryam are kept on dormant and there life time non bailable warrants are issued. The NADRA authorities are directed to block the CNICs of both absconding accused. The State Bank of Pakistan shall also freeze the bank accounts of both absconding accused, if any."

2. Brief facts of the case as per prosecution story are that on or about 19/20 January, 2013, the present appellant with common intention wrongful detained to one Zahoor and beaten him at Police Station Manghopir, who expired at said police station in custody.

3. Today, this appeal is fixed for final arguments. Both the parties, including the appellant, complainant, father, mother, widow of deceased along with her three minors legal heirs namely, Kamran Ali aged about fourteen (14) years, Sana Bibi aged about twelve (12) years, and Irfan Ali aged about seven (7) years, are present in Court along with counsel for the appellant. It appears from the record that an application under Section 345(2), Cr.P.C. being M.A. No.8578 of 2019, for grant of permission to enter into compromise and application under Section 345(6), Cr.P.C. being M.A. No.8577 of 2019 for compromise the matter along with supporting affidavits were filed by the parties, which were sent to learned trial Court i.e. Xth Additional District and Sessions Judge, Karachi (West) for verification of legal heirs and genuineness of compromise, who also submitted his report dated 30.09.2019.

4. Learned counsel for the appellant submits that the offence is compoundable and all the legal heirs i.e. complainant, father, mother and widow along with three minors namely, Kamran Ali aged about fourteen (14) years, Sana Bibi aged about twelve (12) years, and Irfan Ali aged about seven (7) years have given their no objections for allowing the compromise applications and have submitted that they have already forgiven the appellant/accused in the name of Almighty Allah and they do not claim any compensation either daman, arsh or diyat amount.

5. Learned Deputy Prosecutor General, Sindh after going through the applications and the report dated 30.09.2019 of the learned trial Court submits that entire exercise carried out by him is in accordance with law, hence, he has no objection, if compromise applications are accepted and compensation/diyat amount is remitted to the extent of major legal heirs, except the minors legal heirs.

6. I have heard the learned counsel for the parties, legal heirs of the deceased and have examined the file minutely. Admittedly, the offence is compoundable and both parties i.e. the appellant, father, mother and widow along with minors legal heirs of deceased filed joint applications, which were sent to the trial Court for verification of legal heirs and genuineness of compromise and report dated 30.09.2019 has been received, which reveals that the trial Court called reports from concerned SHO and NADRA and also published notice in Daily Express Newspaper, Karachi, but as per reports of SHO and NADRA, no other person claiming to be legal heirs of deceased (Khalid Hussain) came in picture and nobody objected the compromise. Today, the legal heirs of deceased are present and state that they have compounded the offence and have pardoned the appellant in the name of Almighty Allah, hence, they have no objection, if the appellant is released by this Court, therefore, both the applications filed by the parties under Section 345(2) being M.As. Nos.8578 of 2019 and 345(6), Cr.P.C. being M.A. No.8577 of 2019 are allowed, as such, this appeal is disposed of in view of compromise arrived at between the parties and the convictions and sentences awarded by the trial Court to the appellant vide judgment dated 26.01.2019 are set-aside. The amount of fine/daman/diyat has already been forgiven by them (major legal heirs of deceased), except the minors legal heirs of the deceased for which, the appellant/accused is directed to deposit the shares of diyat amount of the minors namely, Kamran Ali aged about fourteen (14) years, Sana Bibi aged about twelve (12) years, and Irfan Ali aged about seven (7) years, before the Nazir of this Court within a week, which shall be calculated by the Nazir as per Notification dated 01.07.2019. Nazir is also directed to deposit such amount/shares of minors in some profitable scheme. As a result of above, the appellant is acquitted from the charge. The appellant is present in Court in custody, he shall be released forthwith, if he is not required in any other criminal case, subject to his furnishing shares of diyat amount of aforesaid three minors with the Nazir of this Court. However, the fine/compensation imposed by the trial Court is remitted. Office shall not issue the release order prior furnishing of diyat amount of aforesaid three minors with the Nazir of this Court. SA/J-3/Sindh Applications allowed.