2006 PLP 1288 (MLD)

MUHAMMAD FARRUKH MAHMUD, J.

This appeal is directed against judgment dated 30-4-2005 handed down by Mian Masood Hussain, Additional Sessions Judge, Dera Ghazi Khan, in case F.I.R. No.8, registered at Police Station Kot Chutta, on 10-1-2004 for offences under sections 302/377, P.P.C., for causing death of Muhammad Somail after commission of sodomy, whereby Hafiz Muhammad Aslam-appellant was convicted for offence under section 302(b), P.P.C. and sentenced to imprisonment for life. He was also directed to pay compensation of Rupees One Lac under section 544-A, Cr.P.C. to the legal heirs of the deceased. Through the same judgment the appellant was also convicted for offence under section 377, P.P.C. and sentenced to ten years' R.I., with fine amounting to Rs.20,000, in default of payment thereof the appellant was to suffer S.I. for three months. The sentences were to run concurrently. Benefit of section 382-B, Cr.P.C. was extended to the appellant.

2. During pendency of appeal Criminal Miscellaneous No.706-M of 2005 was moved seeking acquittal of the appellant from the charge of murder on the basis of compromise effected between the legal heirs of the deceased Muhammad Somail and the appellant. Copy of the application was sent to the learned trial Court for verification of the legal heirs of the deceased and for its opinion about the voluntariness and genuineness of the compromise. Report dated 2-12-2005 submitted by the learned trial Court reveals that Muhammad Somail-deceased, who was minor aged about 10/11 years, was survived by Haji Muhammad Mithu (father) and Mst. Amir Mai (mother). The learned trial Court recorded the statement of Haji Muhammad Mithu and Mst. Amir Mai on 2-12-2005. Both of them stated that they had entered into compromise with the appellant with their free consent and had granted AFW to him in the name of Almighty Allah. They further stated that they had no objection if the appellant was acquitted. In addition to that Haji Muhammad Mithu submitted that sole legal heirs of the deceased were he and his wife Mst. Amir Mai mother of the deceased. Mst. Amir Mai appeared before this Court and her statement was recorded on 16-3-2006, wherein she reiterated that she and her husband being sole legal heirs of Muhammad Somial-deceased had granted AFW to the appellant and had entered into compromise with him. She informed the Court that her husband, father of the deceased in the case, died on 20-12-2005.

3. In view of the statements of legal heirs of the deceased recorded by the learned trial Court, report of the learned trial Court and the statement of Mst. Amir Mai recorded before this Court I am fully convinced that the compromise effected between the parties is with free consent and genuine. Thus. I accept Criminal Miscellaneous No.706 of M-2005 and bless the compromise with acceptance.

4. As a consequence thereof, this. appeal is allowed to the extent of conviction and sentence under section 302(b), P.P.C. The conviction and sentence of the appellant recorded by the learned trial Court is set aside on the basis of above noted compromise. He. is acquitted of the charge of murder of Muhammad Somail-deceased.

5. As far as conviction and sentence of the appellant recorded under section 377, P.P.C. is concerned, he has been set free on capital charge due to compromise effected between the legal heirs of the deceased and the appellant. The compromise effected between the parties can be considered for the purpose of sentence, when the offence is not compoundable. Thus, while maintaining the conviction of the appellant for offence under section 377, P.P.C., I reduce his sentence to two years' R.I. The sentence of fine is also reduced to Rs.1,000, in default of payment thereof, the appellant would suffer ten days simple imprisonment. Benefit of section 382-B, Cr.P.C. already extended to the appellant by the learned trial Court is maintained.

6. With the above modification relating to acquittal of appellant under section 302(b), P.P.C., and reduction of sentence under c section 377, P.P.C., this appeal is partly allowed. Criminal Miscellaneous No.706-M of 2005, stands disposed of. H.B.T./M-244/L????????????????????????????????????????????????????????????????????????????????? Order accordingly.