IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Mr. Justice Adnan Iqbal Chaudhry
Mr. Justice Zulfiqar Ali Sangi
Criminal Jail Appeal No.D-13 of 2020
Criminal Conf. No.D-15 of 2020
Appellant: Asadullah s/o Mukhtiar by caste Magsi
Through Mr.Ahsan Ahmed Qureshi, Advocate
The State: Through Mr. Ali Anwar Kandhro, Addl.P.G, Sindh
Date of Hearing: 14.02.2023
Date of Decision: 14.02.2023
Zulfiqar Ali Sangi, J;- This judgment carries disposal of listed Criminal Jail Appeal filed by appellant Asadullah son of Mukhtiar Magsi, whereby he after full dress trial was convicted for an offence punishable Under Section 302 (b) PPC and sentenced to Death as Tazir with compensation of Rs.500,000/- to be paid to legal heirs of the deceased and in default whereof to undergo S.I for six months more, vide judgment dated 18.02.2020, passed by learned 1st Additional Sessions Judge/MCTC, Kamber, in Sessions Case No.12 of 2020 (Re- State v. Asadullah Magsi), outcome of FIR bearing Crime No.232/2019, registered with Police Station, Saddar Kamber, for offences punishable Under Sections 302, 452, 34 PPC. Besides this, a Criminal Reference for confirmation of death sentence was also moved by learned trial Court.
2. The allegation against the present appellant/accused as per FIR lodged by complainant Sultan Ahmed Magsi are to the effect that he alongwith unknown culprits, duly armed with deadly weapons, in furtherance of their common intention, after trespassing into the house of his brother/deceased situated near Khan-Jo-Goth, committed murder of his brother Mukhtiar Ahmed Magsi by causing him injury on his head with cleaver, for that he was booked and challaned in the present case.
3. During pendency of instant criminal jail appeal, the parties entered into compromise and filed compromise applications in terms of Section 345 (5) & 345 (6) Cr.PC, whereupon the matter was referred to learned Trial Court for enquiry about verification and genuineness of compromise between the parties. Subsequently, learned trial Court after completing all codal formalities and recording statements of adult legal heirs of the deceased furnished such report dated 25.10.2022 which reveals that compromise between the parties is genuine, voluntarily and without any coercion or compulsion and that one of legal heirs namely Mst.Sumal (mother of the deceased) has died.
4. Learned counsel for the appellant/accused submits that the parties have voluntarily entered into compromise on intervention of nekmards of the locality; the adult legal heirs of the deceased have pardoned the appellant in the name of “Almighty Allah” without any coercion or compulsion by waiving their right of Qisas and Diyat against him, while the minor legal heirs of the deceased have pardoned the appellant by waiving their right of Qisas against him through their Wali(s)/mother(s) Mst.Suhni and Mst.Shabana (both widows of the deceased) and such compromise is appearing to be true and voluntarily. He further added that Diyat amount under share of minor legal heirs namely Mst.Haleema aged about 15 years, 2). Mst.Rehana aged about 11 years, 3).Muhammad aged about 08 years (daughters and son from 1st wife Mst.Suhni) and minors namely Aayan Ali aged about 05 years, 2), Baby Batool aged about 04 years, 3). Hafeez Ali aged about 03 years (from second wife Mst.Shabana), as calculated on the order of this Court comes to the tune of Rs.19,67,000/- which has also been deposited by appellant with the Accountant of this Court.
5. Learned Addl.Prosecutor General has recorded no objection on the ground that all legal heirs of the deceased have voluntarily waived the right of Qisas and Diyat and the report of learned Trial Court also conceded to it.
6. Heard learned counsel for the parties and perused the material available on record. Since, the compromise arrived at between the parties is appearing to be true and voluntarily, which apparently has been affected by the parties on the intervention of their Nekmards, it is without coercion or compulsion and is not objected by any one. It is, therefore, accepted in the best interest of the peace and brotherhood to be prevailed between the parties. The parties are accorded permission to compound the offence in terms of Section 345 (5) Cr.PC. Consequently, the appellant is acquitted of the offence for which he has been charged, tried and convicted by learned trial Court by way of acceptance of compromise in terms of Section 345(6) Cr.PC. Office is directed to issue release writ, directing the concerned jail authority to release the appellant forthwith in present case, if he is no more required in any other custody case.
7. The Accountant of this Court is directed to invest the Diyat money falling under share of minors legal heirs, in some profitable scheme with National Saving Centre, to be encashed by them with profit, if any, on attaining the age of majority. The criminal reference for confirmation of death sentence is answered in “Negative”.
8. The instant criminal jail appeal and criminal reference for confirmation of death sentence are disposed of accordingly.