IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Crl: Jail Appeal No.D- 70 of 2015 &

Confirmation Case No. 08 of 2015.

DATE ORDER WITH SIGNATURE OF HON’BE JUDGE

Before:- Mr. Justice Aqeel Ahmed Abbasi&

Mr. Justice Muhammad Faisal Kamal Alam, JJ.

1- For hearing of M.A.No.4596/2015

2- For hearing of M.A.No.4597/2015

05^th. May, 2016.

Mr. IllahiBuxJamali, Advocate for Appellant.

Mr. Zulfiqar Ali Jatoi, D.P.G for State.

JUDGMENT

Instant Criminal Jail Appeal was filed by appellant namely Mushtaque Ahmed S/o NabiBux @ Nabidad @ UbedullahNasirani, against the impugned judgment dated 10.8.2015 passed by learned 3^rd. Additional Sessions Judge, MirpurMathelo, in Sessions Case No. 242 of 2013 Re- St.Vs. Shah Baig @ Shah Bakhat, Crime No. 153 of 2012 registered under Sections 302, 147, 148, 149 PPC at police station, MirpurMathelo, whereby the appellant has been convicted under Section 302(b) PPC for having committed murder of Mst. Bhagul and has been sentenced to death as Ta’zir, he shall be hanged by neck till he is dead and to pay Rs.100,000/- (One Lac) to be paid equally to the legal-heirs of deceased being compensation as required U/s 544, Cr.P.C or to undergo simple imprisonment for 06 months more each in default thereof. Whereas, the co-accused persons were acquitted U/s 265-H(i), Cr.P.C.

During pendency of instant criminal jail appeal as well as confirmation case sent by learned trial Court for confirmation of death sentence, the parties patched-up with each other and filed an application U/s 345(2), Cr.P.C seeking permission for entering into compromise so also another application U/s 345(6), Cr.P.C for acquittal of appellant Mushtaque Ahmed Nasirani, which were duly signed by the appellant as well as legal-heirs of deceased Mst. Bhagul supported by their respective affidavits. On 25.2.2016 all the legal-heirs of deceased shown appearance before this Court and reiterated the contents of listed applications and the affidavits filed by them, whereas, on 14.4.2016, after hearing the learned Counsel for the appellant as well as learned D.P.G the matter was referred to learned trial Court to examine the veracity and genuineness of the compromise arrived in between the parties. The learned trial Court vide report dated 18.1.2016 after examining the material, calling reports from concerned Mukhtiarkar as well as S.H.O concerned and by recording the statements of the legal-heirs of deceased has approved the compromise reached between the parties.

Learned Counsel for the appellant submits that matter has been compromised between the parties, who are closely related to each other, whereas, the appellant is real brother of deceased Mst. Bhagul. It has been further contended that though the impugned judgment suffers from certain illegalities and errors, the appellant would not press the appeal on merits, in view of the compromise arrived in between the parties, hence requests that the compromise application may be accepted and the appellant may be acquitted.

Learned D.P.G submits that though the offence is compoundable, however, the court is required to examine whether the ingredients of Section 311 PPC are applicable under the facts and circumstances of the instant case, learned Counsel for appellant read-out the impugned judgment and the evidence available on record and submits that neither such suggestion has been made by the complainant in F.I.R or prosecution while submitting challan nor such suggestion was made by the learned trial Court while framing charge against the appellant/accused. It has been further contended that ingredients of Section 311 PPC do not attract in the instant case as neither appellant has any criminal record nor he was ever convicted, whereas, the offence allegedly committed was not brutal or shocking in manner, nor it suggests that it was outrageous to the public conscience. It has been further stated that the alleged offence does not refer to any honour killing, on the contrary, according to learned Counsel for appellant, there was an F.I.R lodged by the appellant against complainant and his father for having committed murder of deceased Bhagul, who was declared as Kari. It has been prayed that since the matter has been compromised between the parties, whereas, the appellant and the legal-heirs of deceased Mst. Bhagul are blood related i.e brothers, sisters and maternal-nephew etc, whereas, the offence is compoundable, hence the same may be accepted.

We have heard the learned Counsel for the parties, perused the record, and the impugned judgment passed in instant case, and have also gone through the contents of the compromise application filed U/s 345(2) Cr.P.C for granting permission to enter into compromise and another application U/s 345(6) Cr.P.C for acquittal of the appellant as well as the report submitted by learned trial Court, which prima-facie reflects that compromise reached in between the parties has beenmadevoluntarily. Legal-heirs of the deceased Mst. Bhagulwho are all major and relatives of appellant have forgiven the appellant/accused Mushtaque Ahmed S/o NabiBux @ Nabidad @ UbedullahNasirani in the name of Almighty Allah in private faisla in order to keep the relations better in future and have also waived off their right of Qisas and Diyat. Prima-facie, it appears that ingredients of Section 311 PPC are not attracted in the instant case, keeping in view the nature of alleged offence as argued by learned Counsel for appellant, which fact has not been controverted by learned D.P.G. Accordingly, the compromise application is accepted. The appellant Mushtaque Ahmed S/o NabiBux @ Nabidad @ UbedullahNasirani is acquitted from the charge, he shall be released forthwith, if not required in any other criminal case. The listed compromise applications are allowed in the aforesaid terms.

In view of acquittal of the appellant namely Mushtaque Ahmed S/o NabiBux @ Nabidad @ Ubedullah, Nasirani, in Crl: Jail Appeal No.D-70 of 2015 in the above terms, the confirmation case No.D-08/2015 is hereby dismissed.

JUDGE

A.R.BROHI