HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No.211
of 2018
Confirmation Case No.03
of 2018
Present:
Naimatullah Phulpoto, J.
Rasheed Ahmed Soomro,
J.
Appellant:
Muhammad Nasir
Khan son of Muhamamd Mukhtiar
through Mr. Shamshad Ali, Advocate
Respondent:
The State through Mr. Muhammad Iqbal Awan, Deputy Prosecutor
General Sindh.
Date of hearing:
13.08.2018
Date of
announcement: 28.08.2018
J U D G M E N T
NAIMATULLAH
PHULPOTO, J.- Appellant
Muhammad Nasir Khan was tried by learned Additional
Sessions Judge-VI, South, Karachi Sessions Case No.56 of 2011 for offence under
section 302, PPC of P.S. Chakiwara. On the conclusion
of trial vide judgment dated 22.02.2018, appellant was convicted under section
302(b), PPC and sentenced to death. Appellant was directed to pay compensation
of Rs.100,000/- in terms of Section 544-A, PPC to be
paid to the legal heirs of deceased Mst. Rasheeda Begum wife of Shoukat Zaman. In case of default in payment of fine, appellant was
ordered to suffer S.I. for six months more. Trial court made confirmation
reference to this Court as envisaged under section 374, Cr.PC.
2. During pendency of appeal, criminal
miscellaneous application No.2550/2018 under section 345, Cr.PC
was moved by the legal heirs of the deceased as well as accused for permission
to enter into compromise. Another criminal miscellaneous application was also
moved with submission that parties had arrived at a compromise and in result
thereof the legal heirs of deceased Mst. Rasheed
Begum pardoned the applicant/convict and also waived of the right of Qisas and Diyat. It was prayed
that compromise be accepted and the appellant may be acquitted of the charge. Along with aforesaid application affidavit on prescribed proforma of the legal heirs of the deceased have also been
filed.
3. Compromise application was sent to the
trial Court with the direction to hold inquiry regarding the genuineness or
otherwise of the compromise arrived at between the parties. Trial court after
holding the inquiry submitted report dated 22.06.2018, which is as under:-
“I have the honour to submit that in Criminal Appeal No.211/2018, the Honourable High Court of Sindh at Karachi, directed to the
trial Court for holding inquiry regarding genuineness or otherwise of the
compromise and ascertainment of legal heirs of the deceased. In compliance of
the order of Honourable High Court of Sindh at
Karachi, this Court called the complainant namely Shaukat
Zaman (legal heir / widower of deceased namely Mst. Rasheeda Begum), his four
daughters namely, Sidra, Samreen, Sherish
and Samia (all real daughters of deceased, Mst. Bacha Shirin
(real mother of deceased) and Wali Ahad (real elder brother of deceased) and recorded their
statements, they stated before the Court that they have forgiven the accused
Muhammad Nasir Khan son of Muhammad Mukhtiar in the name of Almighty Allah and waived their
rights of Qisas and Diyat.
According to report submitted by NADRA and concerned police station the
deceased left behind her surviving legal heirs including husband / complainant
and four daughters. Further, the complainant has also produced the real mother
and brother of deceased Mst. Rasheeda
Begum who also appeared before the Court and stated that the matter has been patched
up and legal heirs have forgiven the accused in the name of Almighty Allah. Mst Bacha Shirin
the real mother of deceased ha also deposed that she has six children including
the deceased Mst. Rasheeda
Begum, out of them her two daughters are residing in the village at Swat, her
one son namely Kamal is in Saudi Arabia whereas her one son namely Fazal Malik is missing for the last about 2-3 years and she
is residing with her third son namely Wali Ahad. She further stated that her daughters cannot appear
before the Court whereas her husband had expired. During enquiry all legal
heirs, complainant / widower of deceased, mother and brother of deceased
verified that compromise has been taken place in between the parties and now
they have no grievance against the accused Muhammad Nasir
Khan son of Muhammad Mukhtiar and legal heirs of
deceased have forgiven the accused Muhammad Nasir
Khan son of Muhammad Mukhtiar in the name of Almighty
Allah. It is pertinent to mention here that the accused has been awarded death
sentence under section 302(b) PPC by this Court vide judgment dated
22.02.2018.”
4. Today, the legal heirs of deceased Mst. Rasheeda Begum wife of complainant Shaukat Zaman appeared. Legal heirs of the deceased are as under:-
1. Shaukat Zaman Husband (CNIC
# 42301-8444151-5)
2. Sidra Daughter
(CNIC
No.42301-7264340-6)
(Date
of Birth 02.03.1990)
3. Samreen Daughter (CNIC No.42301-5483499-8)
(Date
of Birth 24.05.1992)
4. Sehrish Daughter (Registration # 42301-9544530-8)
(Date
of Birth 23.06.1994)
5. Samia Daughter (Registration #
42301-0451004-6)
(Date
of Birth 06.12.1999)
5. Trial Court in the report dated
22.06.2018 has mentioned that legal heirs of deceased have forgiven accused
Muhammad Nasir Khan in the name of Allah and did not
claim Qisas and Diyat. For
the satisfaction of the Court we have also heard the legal heirs as well as
learned D.P.G. Mr. Muhammad Iqbal Awan,
appearing for the State. All the legal heirs stated that they have forgiven the
appellant/accused Muhammad Nasir Khan in the name of
Almighty Allah and waived their right of Qisas and Diyat. They further stated that they would not
receive/claim compensation as directed by the trial court.
6. In the instant case, appellant was charged
for the offence of Qatl-i-Amad
of Mst. Rasheeda Begum due
to matrimonial dispute. On the conclusion of trial, he was found guilty of the
offence thereby convicted under section 302(b), PPC Tazir
and sentenced to death. Offence of murder is compoundable in nature. While the
right of same vests with the legal heirs of the victim with reference to
Section 345, Cr.PC. In addition thereto a right of
Waiver is available to a sane adult “Wali” of a
victim. In exercise thereof he can waive his right of Qisas
without acceptance of any compensation as provided under section 309, PPC. But,
section 310, PPC is an addition thereto, which also empowered a sane adult “Wali” of a victim to compound his right of Qisas on accepting of compensation. In view of the mentioned
provisions only a sane adult “Wali” can exercise the
right of waiver or compounding to forego the right of Qisas
with or without compensation. But, in both cases the discretion lies with the
court to accept the compromise or the settlement if it fulfilled all the legal
requirements, and to make an order of acquittal or conviction of the offender
keeping in view the facts and circumstances of the case and nature of the
offence.
7. In the present case, all the legal heirs
are adult, they appeared before the learned trial court as well as before this
Court and stated that they entered into compromise with accused Muhammad Nasir Khan without any duress or compulsion with their
freewill being the legal heirs of the deceased.
8. In the view of above discussion as
offence is compoundable, permission to the parties to enter into compromises is
allowed for better relations between the parties in future. Consequently,
compromise application is allowed. Resultantly, appellant Muhammad Nasir Khan son of Muhammad Mukhtiar
is acquitted under section 345(6), Cr.PC in FIR
No.217/2010, registered at P.S. Chikawara under
section 302, PPC.
9. In the view of above, while allowing the
compromise application, appeal is allowed in the above terms.
10. Murder Reference No.3/2018 is answered in negative for the reasons mentioned herein
above.
J U D G E
J
U D G E
Gulsher/PS