IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Revision Appln. No. S-  14 of 2018.

Khamiso Kandrani.                                              ………...Applicant.

Versus

Habibullah and another.                                       ..…..….Respondents.

Mr. Ali Nawaz Ghanghro, Advocate for applicant.

Mr. Sharafuddin Kanhar, A.P.G.

Date of hearing:             07.05.2018.

Date of Judgment:                   07.05.2018.

O R D E R

Amjad Ali Sahito, J- Through captioned criminal revision application, the applicant/ accused Khamiso Kandrani has impugned order dated 05.01.2018, passed by the learned Additional Sessions Judge-I, Jacobabad in Sessions case No.513 of 2015 emanating from Crime No.169 of 2015 under Section 302 P.P.C.; whereby he has allowed an application filed by the parties under Section 345 (6) Cr.P.C to effect the compromise arrived at in between the parties, but subject to deposit of “Diyat” amount to the minor legal heirs of deceased in shape of “Defence Saving Certificates”. The operative paragraph of the impugned Order is reproduced hereunder:

                   “Since all major legal heirs of deceased Mst. Khanzadi have waived right of Qisas and Diyat and permission has already been granted, therefore, compromise is accepted subject to deposit of Diyat money to the tune of Rs.9,33,483-34 in shape of Defence Saving Certificates in the names of minors per their share. The accused produced in custody is remanded back to the Superintendent District Jail, Jacobabad with directions that accused will be released after the full payment of Diyat money in shape of Defence Saving Certificates. The accused will remain in jail till payment of Diyat money of minor legal Walis.”

2.       The facts for disposal of the instant criminal revision application are that applicant/ accused Khamiso was booked in the aforesaid case/ crime for the murder of Mst. Khanzadi (his wife). However, during trial the legal heirs of deceased entered into compromise with the applicant/ accused and filed such application before the learned trial Court, which was allowed but subject to deposit of “Diyat” amount to the minor legal heirs of deceased in shape of “Defence Saving Certificates”.

3.       Heard learned counsel for the applicant/ accused and learned A.P.G. appearing for the State.

4.       Learned counsel submits that deceased Mst. Khanzadi, beside major heirs also left three minors as her heirs, namely, baby Sumera, baby Zahida and master Zahid. Per learned counsel the major legal heirs have waived of their right of “Qisas & Diyat”, however for minors the applicant party have already transferred 01-21 acres of agricultural land in their names in lieu of “Diyat”, and such agreement of sale was produced in the trial Court, but the learned trial Judge has not accepted such mode of payment of “Diyat” and has ordered for deposit of “Diyat” in shape of defence saving certificates, which is not mandatory and against the scheme of law. Learned counsel in support of his contention referred to provisions of Section 310 P.P.C.

5.       Learned A.P.G. appearing for the State concedes to the submissions of learned counsel for applicant.

6.       Section 310 P.P.C. provides compounding of “Qisas” (Sulh) in qatl-i-amd by an adult sane Wali, at any time on accepting badal-i-sulh, enabling him to compound his right or Qisas. This section further provides that where “Badal-i-sulh” is not determined or is a property or a right the value of which cannot be determined in terms of money under Shariah, the right of qisas shall be deemed to have been compounded and the offender shall be liable to diyat. Per explanation given for “Badal-i-sulh” in this section, is a mutually agreed compensation according to Shariah to be paid or given by the offender to a wali in cash or in kind or in the form of movable or immovable property.

7.       From bare reading of aforesaid explanation, it is obvious that there is no impediment on payment of “Diyat” in form of movable or immovable property and it permissible that the amount of “diyat” may be paid in cash or in form of movable or immovable property, as the purpose of “Shariah” is to safeguard the interest of legal heirs of the deceased.

8.       In the instant matter, the applicant/ accused is ready to pay share of “Diyat” amount in respect of minor legal heirs of deceased in shape of immovable property, which cannot be refused, as there is no impediment on payment of “Diyat” in form of movable or immovable property. Accordingly, the instant criminal revision application is allowed and impugned Order dated 05.01.2018 passed on application under Section 345 (6) Cr.P.C, is hereby set-aside only to the extent that the applicant/ accused may pay share of “Diyat” amount in respect of minor legal heirs of deceased in shape of immovable property instead “Defence Saving Certificates”. However, the trial Court shall first ascertain the value of the land (said to have been given to minor legal heirs of deceased) from the concerned revenue officer and if it is found that the value of the land is equal to share of “Diyat” of minors, or if it is found that the value of land is less than then share of “Diyat” of minors; the trial Court, in either case, shall proceed further in accordance with law. Before proceeding further, the trial Court shall also ascertain that the land given in lieu of “Diyat” amount stood mutated in the names of minor legal heirs.

                                                                JUDGE

Ansari/*