ORDER SHEET

Present:

Mr. Justice Aqeel Ahmed Abbasi &

Mr. Justice Ghulam Qadir Leghari .

Cr.Appeal No.D-45 of 2012

1. For hearing of MA-535/2014

2. For hearing of MA-536/2014

Cr.Jail Appeal No.S-44 of 2012

1. For hearing of MA-4429/2013

2. For hearing of MA-4430/2013

Conf. Case No.D-07 of 2012

Date of hearing: 26.11.2015

Date of orders : 04.02.2016

Mr. A. R. Faruq Pirzada Advocate for appellants.

Mr. Zulfiqar Ali Jatoi, Deputy Prosecutor General.

O R D E R

AQEEL AHMED ABBASI, J. Through instant order we intend to dispose of above applications filed under Section 345 (2) and 345 (6) Cr.P.C, which are duly signed by the appellants and the legal heirs of the deceased Farman Ali, whereas, supporting affidavit has also been executed. Report was called from concerned trial Court to examine the veracity of the compromise reached between the parties, in response to which the learned trial Court has submitted verification report, according to which, the compromise reached between the appellants and the legal heirs of the deceased Farman Ali, is found to be genuine. The legal heirs of the deceased Muhammad Azam and Mst. Latifan, who are father and mother of the deceased, whereas, the deceased who was not married and has no other legal heirs, have stated that they have voluntarily forgiven the appellants in the name of Almighty Allah and do not claim any compensation and have also waived right of Qisas and Diyet in view of private resolution of dispute through nek-mards. Record shows that the legal heirs of the deceased Farman Ali, namely Muhammad Azam and Mst. Latifan appeared in Court on 20.03.2014 along with their counsel and reiterated the contents of the affidavit filed before this Court on 26.11.2013 in support of their compromise, and have also stated before the Court that they have forgiven the appellants in the name of Almighty Allah, without any pressure or coercion, who may be acquitted and released in the above case on the charges of murder of their son. It has been further stated that they do not claim any compensation and have already waived their right of qisas and diyet. On 17.09.2015 also, the above named legal heirs of the deceased Farman Ali again shown appearance before this Court, and have once again stated that they have entered into the compromise with the appellants without any pressure or coercion and have forgiven them in the name of Almighty Allah and also waived their right of qisas or diyet.

2. Learned counsel for the appellants has argued that in view of a genuine compromise reached between the parties in respect of an offence under Section 302 (b) PPC, which is compoundable, the compromise may be accepted and the appellants may be acquitted. Learned Deputy Prosecutor General has candidly stated that in view of the verification report submitted by the learned trial Court regarding genuineness of the compromise reached between the appellants and the legal heirs of the deceased for an offence under Section 302 (b) PPC, which is compoundable, the compromise may be accepted and the appellants may be acquitted for the offence under Section 302 (b) PPC, however, raised an objection on the ground that charge of abduction against the appellant is not compoundable.

3. Such objection raised by the learned Deputy Prosecutor General has been vehemently rebutted by the learned counsel for the appellants, who submits that instant appeal has been filed against the impugned judgment passed by the 3^rd Additional Sessions Judge, Khairpur, in sessions case No.32/2008 whereby the appellants namely Inayatullah and Parvez were found guilty of an offence punishable under Section 302 (b) PPC only, and not for an offence of abduction under Section 364-A, PPC. Learned counsel further submits that even otherwise, such objection is misconceived for the reason that once the appellants have been convicted for having committed an offence under Section 302 (b) PPC, there could have been no conviction under Section 364-A, PPC. Per learned counsel, such objection at this stage by the learned Deputy Prosecutor General, besides being misconceived in facts and law, is not maintainable for the reason that neither any appeal has been filed by the complainant or the State against the impugned judgment, whereby the appellants have been found guilty of an offence falling under Section 302 (b) PPC, nor any Revision Application in terms of section 439 Cr.P.C has been filed before this Court for setting aside the impugned judgment on this account. It has been further contended by the learned counsel for the appellants that the appellants otherwise have a good case on merits, as the impugned judgment suffers from patent illegality, and also based on misreading and non-reading of the evidence, however, since the matter has been compromised between the appellants and the legal heirs of the deceased, and there is no likelihood that instant appeal will be heard and disposed of at an early date keeping in view the pendency of large number of regular appeals and other cases of urgent nature being fixed before this Court, therefore, the compromise reached between the parties may be accepted and appellants may be acquitted in accordance with law. In support of his contention, learned counsel for the appellants has placed reliance on the cases of Mazaharul Haque v. Crown (PLD 1950 Dacca 04), Javed Shaikh v. The State (1985 SCMR 153), Bashir Ahmed v. The State (PLD 1995 Karachi 05), Moulana Nawab-ul-Hassan and 7 others v. The State (2003 SCMR 658), Hussain Bux and others v. The State (PLD 2003 Karachi 127), Shahzad Abid v. The State (2003 P.Cr.L.J 661), Rana Dil Muhammad v. The State (2004 P.Cr.L.J 736), Ashique Solangi and another v. The State (PLD 2008 Karachi 420), Shah Hussain v. The State (PLD 2009 SC 460), Ghulam Abbas and another v. State (PLJ 2009 Cr.C Lahore 390), Abdul Jabbar and another v. The State (2010 SCMR 1231), Ghulam Nabi v. The State (2011 SCMR 974), Ghulam Qasim v. The State (2011 SCMR 1063), Aurangzeb and 2 others v. The State (PLD 2011 Lahore 25), Jafar @ Jafari v. The State (2012 SCMR 606), Zulfiqar Ali Kachelo alias Ali v. The State (2014 P.Cr.L.J 1454) and Iqrar Hussain and others v. The State and another (2014 SCMR 1155).

4. We have heard learned counsel for the appellants and the learned Deputy Prosecutor General, perused the record and the impugned judgment, as well as verification report furnished by the learned trial Court on compromise applications.

5. Since the appeals are not being decided on merits, in view of compromise reached between the appellants and the legal heirs of the deceased Farman Ali, we do not intend to record our findings on merits of instant appeal. However, we will record our finding on the genuineness of the compromise, which has been reached between the appellants namely Inayatullah and Parvez and the only surviving legal heirs i.e. Father and Mother of the deceased Farman Ali, and will also examine the application of section 311 read with Section 338-E, PPC to the facts of the instant case, for the reason that while accepting the compromise between the parties in respect of offence which is otherwise compoundable, court is also required to examine as to whether the offence committed by the appellant falls within the definition of ‘Fasad-fil-Arz’ or not, or the offence has been committed in a brutal or shocking manner which is outrageous to the public conscious as in such eventuality, the Courts can award punishment of ta’azir. Reference in this regard can be made to a decision of the Hon'ble Supreme Court, in the case of Azmat and another v. The State (PLD 2009 SC 768), wherein, it has been held as under:

“9. The position which thus emerges from a perusal of the provisions of sections 309, 310 and 311 of the PPC and of subsections (2) and (6) of section 345 of the Code of Criminal Procedure, is:--

(a) That grant of “Afw” or the compounding of the offence of “Qatl-e-amd” under Sections 309 and 310, PPC, respectively, meant only the waiver of the right of “Qisas” and not acquittal of an accused person;

(b) That where all the “Walis” did not join in the grant of “Afw” or in the compounding of the offence or where even when all the “Walis” did so joint but the case was one of “Fasad-fil-Arz”, the offender could still be punished by way of “Tazir” in view of the provisions of section 311 of the Pakistan Penal Code;

(c) That “Fasad-fil-Arz” had not been defined by the said Code though the provisions of the said section 311 PPC did explain the said concept;

(d) That it would not be wise or even appropriate to attempt a precise definition of the said expression which could restrict its area of operation but the examples of “Fasad-fil-Arz” could include cases of terrorism or, for instance, cases where a State functionary was murdered to deter him from performing his official duties;

(e) That acquittal of persons, accused amongst others of murder cases, as a result of a compromise, was envisaged, authorized and then even regulated by the provisions of subsections (2) and (6) of section 345 of the Cr.P.C.

(f) That even under the said provisions of section 345 Cr.P.C acquittal was not an automatic result of a compromise even if reached by all the heirs of a deceased victim of the offence;

(g) That such an acquittal had been made subject to the grant of permission by the competent Court meaning thereby that even where all the heirs of a deceased victim entered into a compromise with the offender, the Court could still, for valid reasons, withhold its permission to allow the compromise and could consequently refuse to acquit the accused;

(h) That it would again be neither possible nor even desirable to categorize cases into classes where such a permission should be granted or where the same should be withheld. Such a decision shall have to be taken by the concerned Court after applying its judicial mind to all the attending facts and circumstances of a given case such as the past conduct and character of the accused person; the reasons leading him to committing the murder; the manner in which the said crime was committed how reckless or brutal was such an act and of course the question whether the act in question amounted to “Fasad-fil-Arz”.

6. From perusal of impugned judgment passed by the learned trial Court in the instant case and the evidence produced by the prosecution, it appears that nothing has been brought on record, which may suggest that offence in the instant case has been committed in such a manner which may be regarded as brutal or shocking. This Court is conscious of the legal position that while accepting a compromise between the parties in a compoundable offence, including offence under Section 302 (b) PPC, the implication of section 311 and 338-E, PPC, is to be examined, in order to ensure that the offender, who has compounded an offence with the legal heirs of the deceased, may not be acquitted for an offence, which may be against the State, and may be outrageous to public conscious. Learned Deputy Prosecutor General was asked to assist this Court as to whether ingredients of sections 311 and 338-E, PPC, are attracted to the facts of the instant case, in response to which, learned DPG could not refer to any material which could possibly attract the provisions of sections 311 and 338-E, PPC to the facts of the instant case, and candidly conceded that except hereinabove objection, there seems no impediment to accept the compromise and to acquit both the appellants for the charges under section 302 (b) PPC. Record further reveals that neither there has been any suggestion by the prosecution witnesses or complainant regarding commission of an offence in a brutal or shocking manner, nor there has been any finding of the learned trial Court to this effect. Moreover, the matter has been compromised between the parties voluntarily, whose authenticity and veracity has not only been examined by the learned trial Court but also by this Court, by calling the legal heirs of the deceased in Court for such verification. Reliance is placed in the case of Zulfiqar Ali Kachelo alias Ali and others v. The State (2014 P.Cr.L.J 1454).

7. Accordingly, while respectfully following the ratio of the aforesaid judgment of Hon'ble Supreme Court, we do not find any impediment to allow the above listed applications i.e. MA No.535 and 536 of 2014 filed in Cr. Appeal No.D-45/2012 and MA No.4429 and 4430 of 2013 filed in Cr. Jail Appeal No.S-44/2012, by accepting the compounding of the offence under Section 302 (b), PPC, in respect of appellants namely Inayatullah s/o Suleman Solangi and Parvez s/o Shafi Muhammad Solangi, which are hereby allowed. Consequently, the appellants namely Inayatullah s/o Suleman Solangi in Criminal Appeal No.D-45/2012 and Parvez s/o Shafi Muhammad Solangi in Criminal Appeal No.S-44/2012 are hereby acquitted under Section 345 (6) Cr.P.C, from the charge under Section 302 (b) PPC, whereas, Confirmation Case No.D-07/2012 sent by the learned 3^rd Additional Sessions Judge, Khairpur, under Section 374 Cr.P.C in Sessions Case No.32/2008 State v. Inayatullah and others in crime No.183/2007 registered at police station, Thari Mirwah, stands disposed of accordingly.

The appellants namely Inayatullah s/o Suleman Solangi and Parvez s/o Shafi Muhammad Solangi, if not required in any other crime, may be released forthwith.

JUDGE

N.M.