ORDER-SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA  

 

Criminal Appeal No. S- 22 of 2020.

 

Date of hearing

Order with signature of Judge

 

30.03.2023.

 

1.         For orders on M.A. No. 1426/2023 (Urgency Application).

2.         For orders on office objections.

3.         For orders on M.A. No. 5259/2022 (Under Section 345 [2] Cr.P.C).

4.         For orders on M.A. No. 5260/2022(Under Section 345 [6] Cr.P.C).

5.         For hearing of M.A. No. 431/2020 (Under Section 426 Cr.P.C).

6.         For hearing of main case.

 

            Mr. Farooque Ali Bhutto, Advocate for appellant.

            Mr. Aitbar Ali Bullo, Deputy Prosecutor General.

            ~~~~~~~       

 

1.         Urgency application granted.

2.         Over-ruled.

 

3&4.   Appellant Ghulam Mustafa Khaskhelli was tried and convicted in Sessions Case No.794-A of 2014, Re: State v.  Ghulam Mustafa, arisen out of Crime No.118/2014 of P.S  Waleed, Larkana, registered for offences punishable under Section 302, 364, 201 and 149 P.P.C, vide judgment dated 06.03.2020, passed by learned   1st Additional Sessions Judge/ Model Criminal Trial Court/ Juvenile Court, Larkana, whereby the appellant was convicted and sentenced as under:

 

(i)         For offences under Section 364 P.P.C read with Section 149 P.P.C to undergo imprisonment for life and to pay fine of Rs.100,000/- and in default to payment of fine to undergo S.I for six months more. 

 

(ii)        For offences under Section 302 (b) P.P.C read with Section 149 P.P.C to undergo imprisonment for life as Tazir and also to pay Rs.300,000/- as compensation under Section 544-A Cr.P.C and in case of default in payment of compensation to undergo imprisonment for six months more.

 

(iii)       For offence under Section 201 P.P.C. read with Section 149 P.P.C to undergo S.I for seven years and to pay fine of Rs.50,000/- and in default whereof to undergo S.I for six months more.

 

 

            The appellant, against his conviction and sentence filed captioned appeal.  However, during pendency of the appeal, the appellant entered into compromise with legal heirs of deceased and such applications in terms of Section 345 Cr.P.C. were moved, which were sent to learned trial Court, for enquiry as to verify the legal heirs of the deceased as well as genuineness or otherwise of compromise between the parties.

 

            The learned trial Court submitted report dated 08.03.2023, which is available with the file. In its report, the learned  trial Court has mentioned that during course of enquiry reports with regard to legal heirs of deceased from concerned Mukhtiarkar, SHO and NADRA authorities were  called, so also it got published such notice in the daily newspaper “Awami Awaz”. The learned trial Court has further mentioned that during enquiry proceedings, statements of major legal heirs of deceased were recorded, who affirmed the fact of compromise between them.  The learned trial Court further reported that the compromise between the parties is genuine, voluntarily and without any coercion or compulsion.

 

            The learned D.P.G appearing for the State in view of above position raised no objection, if the appellant is acquitted of the charges for offence punishable under Section 302 P.P.C.

 

            The report furnished by the trial Court reveals that compromise between the parties appears to be volunteer, genuine and without any duress and coercion, therefore, permission to compound the offence is accorded to the parties, and in result whereof compromise between the parties is hereby accepted and appellant Ghulam Mustafa is acquitted of the charge under Section 302 (b) P.P.C in terms of compromise.

 

            At this juncture while observing the fact that the offences under Sections 364 and 201 P.P.C are not compoundable under the schedule of offences, the learned counsel for the appellant submits that he is ready not to press the instant appeal on merit if sentence of appellant for these offences is reduced to that of already undergone. Learned counsel prays for a lenient view by reducing and modifying of sentence for aforesaid offences to the sentence as already “undergone” by the appellant, on the grounds that the appellant and his family members are extremely poor, and he is the only earning member of his family; during confinement of appellant in jail, his family members are on the brink of starvation. He has further contended that the appellant has served out major portion of sentence awarded to him, and his conduct at jail has remained satisfactory; as reported in the jail role. To such prayer of the learned counsel for appellant, the learned D.P.G. submitted that the appellant has sufficiently been punished as he has remained in jail for sufficient period; therefore, he recorded no objection, if the sentence of the appellants is reduced to that of already undergone for the aforesaid offences. On Court query, he admitted that the appellant is previous non-convict and there is no instance of his involvement in such like offence.

 

            According to jail roll dated 30.03.2023, the appellant has served out substantive period of sentence for 08-years, 07-months and 02-days, besides remission earned by him is 08- years, 10-months and 02-days, which according to learned D.P.G. for the State, appears to be an adequate portion of sentence.

 

            Keeping in view the submissions of learned counsel for appellant and no objection extended by learned D.P.G., the sentence of the appellant for offences under Sections 364 and 201 P.P.C is altered and reduced to the period which he has already “undergone”, and it includes the period, the appellant was to undergo in lieu of fine. The appellant is reportedly confined in jail; he shall be released forthwith, if his custody is not required in any other case.

 

5.         Dismissed as infructuous.

 

6.         The appeal stands disposed of in the above terms.

 

 

 

                                                       Judge

 

Ansari