2018 P Cr (PLP)

AFTAB AHMED GORAR, J.

Appellant Qadir Bux Lashari has filed the above-titled appeal against the judgment dated 19.09.2014 passed by the learned II-Additional Sessions Judge, Jacobabad, in Sessions Case No.351/2012 re-State v. Qadir Bux Lashari and others, bearing Crime No.51/2012 of Police Station Civil Line, Jacobabad, under sections 302, 34, P.P.C., whereby the appellant was held guilty of the offence and was convicted under section 302(b), P.P.C. for committing murder of his wife deceased Mst. Aseya and awarded sentence of death as Ta'zir, to be hanged by neck till his death and also to pay fine of Rs.200,000/- (Rupees Two Hundred Thousand only) as compensation to the legal heirs of said deceased in terms of section 544-A, Cr.P.C.

2. The appeal was admitted for regular hearing. 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.3615/2015, under section 345(5), Cr.P.C. for permission to enter into compromise, M. A. No. 3616/2015, under section 345(6), Cr.P.C. for acceptance of compromise and acquittal of the appellant and M.A. No.3617/2015, under section 345(4), Cr.P.C. for appointment of Wali of minor legal heirs, were filed. Said applications were sent to the trial Court vide order dated 09.12.2015 for holding enquiry in order to ascertain the genuineness of compromise between the parties and report. In compliance of the said order the learned 2nd Additional Sessions Judge, Jacobabad after holding an enquiry submitted his report through letter, dated 23.01.2016, wherein it is stated that the major legal heirs of deceased and minors through their Wali, namely, Mst. Ruqia, mother of the deceased, in their statements stated on oath that they had patched up and forgiven the appellant/accused on the intervention of Nekmards of their community and recorded no objection to the acquittal of appellant/convict. Publication was also made in the newspaper daily "Kawish" dated 14th of January, 2016. The legal heirs of deceased also appeared before this Court and stated that they have forgiven the appellant/convict voluntarily, without any coercion, compulsion or inducement.

3. Learned Counsel for the appellant submits that deceased Mst. Aseya at the time of her death, apart from her father and mother, was survived by two sons, namely, Nabi Bux and Muhammad Hassan, and two daughters, namely, Jannat Khatoon and Zeenat Khatoon, who are all minors, therefore, he has moved an application under section 345(4), Cr.P.C. for seeking appointment of Mst. Ruqia as 'Wali' of said minor legal heirs, who being one of the legal heirs of deceased and real maternal grandmother of minors is a fit person to be appointed as 'Wali' of minor legal heirs. Accordingly, the application under section 345(4), Cr.P.C. (M.A. No.3617/2015) is allowed as prayed.

4. Learned Counsel for the appellant contended that due to intervention of Nekmards of the parties, all the legal heirs of the deceased, including the minor legal heirs through their 'Wali', have forgiven the appellant/accused in the name of Almighty Allah, therefore, permission to enter into compromise may be accorded and compromise between the parties may be accepted.

5. Before going into the merits of the compromise arrived at between the parties, it may be observed here that in this case the appellant was awarded death penalty as Ta'zir. The offence of Qatl-i-amd liable to death as Ta'zir is compoundable under the provisions of section 345, Cr.P.C. subject to permission of the Court, which is to be accorded keeping in view attending circumstances of each case.

6. On 20.6.2017 the learned APG had raised the point that the 'Wali' of minors could waive her right of Diyat/compensation only and the right of Diyat/Compensation on behalf of minors could not be waived by the Wali. Learned Counsel for the appellant addressing this point contended that "Diyat" as defined in section 53, P.P.C. is a punishment imposed by the Court in shape of compensation as specified in section 323 ibid, which is to be paid by the offender to the legal heirs of deceased. It is further contended by the learned counsel that in case an accused is awarded sentence of death as Ta'zir under section 302(b), P.P.C., as has been done in the instant case, the legal heirs of deceased cannot waive or accept 'Badle Sulh'; however, they can compromise the offence with permission of the Court. In the instant case, all the legal heirs i.e. mother and father of deceased themselves and mother of deceased on behalf of minor legal heirs of deceased have entered into compromise with the appellant/accused without waiving or accepting "Badle Sulh". The appellant is the real father of all the minor legal heirs. Learned Counsel for the appellant in support of his contentions relied upon the reported cases of Khalil-uz-Zaman v. Supreme Appellate Court (PLD 1994 Supreme Court 885), Muhammad Arif v. The State (2001 PCr.LJ 1804) and Bashir Ahmed v. The State (2004 SCMR 236).

7. In the reported case of Muhammad Hanif v. The State (1993 PCr.LJ 166), compromise, in somewhat similar circumstances, entered into by the father, mother and widow on her own behalf and on behalf of her minor children was allowed without accepting or waiving "Badle Sulh".

8. In another reported case of Bashir Ahmed v. The State (2004 SCMR 236), the Hon'ble Supreme Court was pleased to observe as under: "It was held in Muhammad Aslam v. Shaukat Ali 1997 SCMR 1307 that "where an accused person has been awarded sentence for murder as Ta'zir and not Qisas, the legal heirs cannot waive or accept Badal-i-Sulh." However, in view of the amendment made in section 345(2), Cr.P.C., the sentence awarded for murder as Ta'zir can be compounded by all the legal heirs of the deceased with the permission of the Court."

9. In view of above facts and circumstances, after going through the enquiry report furnished by the trial Court, application under section 345(5), Cr.P.C. is allowed and permission to compound the offence is accorded to the parties. In consequence thereof, application under section 345(6), Cr.P.C. is also allowed and the compromise between the appellant and legal heirs of deceased Mst. Aseya is accepted. The instant jail appeal is disposed of in terms of compromise, the impugned judgment dated 19.9.2014 is hereby set aside and appellant is acquitted of the charge. He shall be released forthwith if he is not required in any other case.

10. In the terms stated above, instant appeal along with listed application and confirmation case stand disposed of. JK/Q-3/Sindh Order accordingly.