HIGH COURT OF SINDH AT KARACHI

Criminal Jail Appeals Nos.83 and 84 of 2014

Confirmation Case No. 10 of 2014

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Mohammad Karim Khan Agha

Date of Hearing : 29.01.2019

Date of judgment : 08.02.2019

Appellant : Ghulam Hussain through Mr. Ejaz Ahmed Solangi Advocate.

Respondent : The State through Mr. Mohammad Iqbal Awan DPG.

JUDGMENT

NAIMATULLAH PHULPOTO, J. Brief facts of the prosecution case as reflected in the judgment of the Trial Court dated 28.01.2014 are as follows:

“At the very outset it is necessary to state that this is single trial of double murder case against the above two accused persons based on two FIRs. The author of the FIR No.6/11 is Mst. Huzuran the mother of the deceased victim Mst. Sardaran giving narrative of murder of Mst. Sardaran and Abdul Rauf allegedly in the hands of the said accused persons, in the words inscribed that on 19.06.2011 at 2100 hours, complainant Mst. Hazooran wife of Wali Muhammad Mancheri appeared at police station Jhimpir and lodged the FIR stating therein that she resides at Village Lal Bux Mancheri along with her husband, children which include Mst. Sardaran wife of Inayat Hussain aged about 20 years, as she after marriage was residing with them in their house along with her husband. On the day of incident i.e. 19.06.2011, complainant, her son-in-law (Inayat), Altaf s/o Muhammad Bux alias Bukhsoo and Abdul Rauf s/o Haji Abdullah Mancheri, who were relative of complainant and had come from Sanghar for attending a marriage ceremony and stayed in her house. In the meanwhile, accused Ghulam Hussain s/o Lal Bux Mancheri armed with pistol and Rehmatullah alias Gaamoon s/o Lal Bux Mancheri armed with hatchet came in her house and asked that Mst. Sardaraan is their niece having bad character saying so accused Ghulam Hussain Mancheri made straight fire from his pistol upon Mst. Sardaran with intention to kill her, the fire shot hit Mst. Sardaran at her left side of chest, meanwhile Abdul Rauf came in front to whom accused Ghulam Hussain Mancheri also conducted straight fire from his pistol with intention to commit his murder, which hit him on the left side of abdomen and accused Rehmatullah Mancheri aimed his hatchet towards complainant party when they raised cries and accused left the scene of occurrence. Thereafter, they noticed Mst. Sardaran to have been expired, while Abdul Rauf was lying injured on account of bullet injury. The complainant, her husband and witnesses arranged the vehicle brought deceased and injured Abdul Rauf at police station Jhimpir from where injured Abdul Rauf was referred to Civil Hospital Hyderabad for better treatment and Mst. Sardaraan was sent for postmortem.

2. The author of the FIR No. 10/2011 is Haji Abdullah, resident of District Sanghar, the father of deceased Abdul Rauf, and he lodged FIR on 15.07.2011 at 1430 hours at police station Jhimpir and stating therein that his son Abdul Rauf aged about 18 years had come to Jhimpir to attend marriage ceremony of their relative along with his brothers Haji Amin and Haji Azeem as well as his cousin Noor Hassan. On 19.06.2011, the complainant was available at his village where he was informed by his brother Haji Azeem on telephone that he, Haji Ameen, Noor Hassan and Abdul Rauf son of complainant were available in the house of their relative Wali Muhammad alias Waloo Mancheri where Mst. Hizoora wife of Wali Muhammad alias Waloo, his daughter Mst. Sardara, Inayat Hussain (husband of Mst. Sardara) and Altaf were also present, meanwhile it was 1930 hours when accused Ghulam Hussain s/o Lal Bux Mancheri with pistol and accused Rehmatullah s/o Lal Bux Mancheri having hatchet came there and said that their niece Mst. Sardara is of bad character and saying so accused Ghulam Hussain Mancheri made straight fire at Mst. Sardara with intention to commit her murder, which hit to her at left side of chest, meanwhile son of complainant namely Abdul Rauf came in front to save Mst. Sardara when accused Ghulam Hussain Mancheri made straight fire upon Abdul Rauf with intention to commit his murder, which hit him on left side of abdomen and he fell down, while Rehmatullah Mancheri aimed his hatchet, hence witnesses cries as such accused fled away from the place of occurrence. Mst. Sardara expired then and there, while Abdul Rauf son of complainant became injured, vehicle was arranged, dead body of Mst. Sardara and injured Abdul Rauf were brought at police station Jhimpir from where Abdul Rauf was referred to Civil Hospital Hyderabad for treatment by them. On such telephonic information, complainant reached at Civil Hospital Hyderabad during night time, noticed his son Abdul Rauf to have sustained injuries and was admitted in hospital. On 20.06.2011 at 0800 hours Abdul Rauf succumbed to injuries. His postmortem was conducted where his other brother and cousin also narrated the same facts of the incident to the complainant. Thereafter, dead body of Abdul Rauf was delivered to him which they took to their village, buried it, then complainant appeared to police station Jhimpir where he came to know that sister-in-law of accused namely Mst. Huzoora has already lodged FIR No. 06/2011 under Sections 302,324/34 PPC at police station Jhimpir in respect of same incident, he went through the contents of the said FIR and found the names of his two brothers and cousin, who were witnesses of the incident were missing, hence complainant moved an application under Section 22-A Cr.P.C to Sessions Court for registration of second FIR, which was transferred to IInd Additional Sessions Judge Thatta, who allowed the same, complainant collected order and lodged FIR.”

2. Learned Trial Court framed charge against accused at Ex.3, both the accused pleaded not guilty and claimed to be tried.

3. At trial, prosecution examined 13 P.Ws. Thereafter, prosecution side was closed.

4. Statements of accused were recorded under Section 342 Cr.P.C. Both accused claimed false implication in the case.

5. After hearing the arguments of learned counsel for the parties, learned trial Court vide judgment dated 28.01.2014 convicted appellant Ghulam Muhammad for committing murders of Mst. Sardaran and Abdul Rauf under Section 302(b) PPC and sentenced him to death as Tazir on two counts, whereas, accused Rehmatullah alias Gamoon was acquitted of the charges. Appellant Ghulam Hussain preferred separate Jail Appeals No. 83/2014 and 84/2014 against the conviction and sentences recorded by the Trial Court. Learned Trial Court made reference to this Court for confirmation of death sentence.

6. Appeals were admitted to regular hearing. During pendency of the Appeals, an application seeking permission of Court for compromise under Section 345(2) Cr.P.C is jointly moved by appellant and legal heirs of deceased persons Mst. Sardaran and Abdul Rauf. Joint compromise application under Section 345(6) Cr.P.C for acquittal is also moved on the prescribed proforma.

7. This Court vide order dated 06.12.2018, sent the compromise application to the learned Trial Court for holding enquiry and to ascertain about the genuineness of the compromise arrived between the appellant and legal heirs of both the deceased persons. Learned Sessions Judge Thatta held enquiry and submitted report vide his letter dated 15.01.2019, the same is reproduced as under:-

“After receipt of the R & PS along with order dated 06.12.2018, this court called reports of legal heirs of deceased Mst. Sardara w/o Inayat Hussain and Abdul Rauf s/o Haji Abdullah from concerned police station Jhimpir, Secretary Union Council Jhimpir, Mukhtiarkar (Revenue) Thatta and NADRA. The objections were called for general public through daily newspaper “Kawish” Hyderabad dated 19.12.2018 but no objection was received.

The reports of legal heirs of deceased Mst. Sardara, reveals that the deceased has left Wali Muhammad s/o Lal Muhammad Mirbaher (father), 2. Mst. Huzoora w/o Wali Muhammad (mother) and 3. Inayat Hussain s/o Jurial (Husband).

The reports of legal heirs of deceased Abdul Rauf reveals that the deceased has left Haji Abdullah son of of Haji Yakoob (father) and Mst. Batoon Begum w/o Haji Abdullah (mother).

The legal heirs of deceased Mst. Sardar are appeared before this court in persons and their statements were recorded. All the legal heirs of deceased Mst. Sardara have stated in their statements that due to intervention of the nek mards of the locality they have compromised with the accused Ghulam Hussain. They have forgiven the accused Ghulam Hussain in the name of Almighty Allah. They further stated that they are not claiming any compensation viz Diyat, Arsh, Daman, Qisas etc. They further stated that they have no objection, if the accused Ghulam Hussain may be acquitted in terms of compromise in this case.

The legal heirs of deceased Abdul Rauf appeared before this Court in persons and their statements were recorded. Both the legal heirs of deceased Abdul Rauf have stated in their statements that due to intervention of the nek mards of the locality they have compromised with the accused Ghulam Hussain. They have forgiven the accused Ghulam Hussain in the name of Almighty Allah. They further stated that they are not claiming any compensation viz Diyat, Arsh, Daman, Qisas etc. They further stated that they have no objection, if the accused Ghulam Hussain may be acquitted in terms of compromise in this case.

The statements of legal heirs of deceased Mst. Sardara every one Wali Muhammad, Mst. Huzoora and Inyat Hussain and the statements of legal heirs of deceased Abdul Rauf every one Haji Abdulllah and Mst. Batoon Begum reveals that the legal heirs of both deceased have compromised with the accused Ghulam Hussain, they have forgiven the accused Ghulam Hussain in the name of Almighty Allah, and not claiming any compensation viz Diyat, Arsh, Daman, Qisas etc. from the accused.

From the material brought on record and statements of the legal heirs of deceased, I am of the considered opinion that compromise between the parties is genuine.

The statements of the legal heirs of deceased Mst. Sardara and Abdul Rauf in (Sindhi and English), Reports of Mukhtiarkar @ Thatta, Secretary Union Council Jhimpir, Police station Jhimpir and NADRA are submitted herewith in original for kind perusal and ready reference. The R & Ps of Sessions Case No. 171/2011 State…….versus……..Ghulam Hussain (Crime No.06 of 2011 of police station Jhimpir) under sections 302, 34 PPC in all ( ) pages only is returned as desired.”

8. Legal heirs of both the deceased persons have filed affidavits that they do not claim compensation as ordered by the Trial Court.

9. We have carefully heard the learned counsel for the appellant, learned D.P.G and perused the relevant record.

10. In the instant case, appellant was charged for offence of Qatl-e-amd of Mst. Sardara and Abdul Rauf. On the completion of the trial, he was found guilty of the offence under Section 302(b) PPC and sentenced to death as Tazir on two counts. Offence of murder is compoundable in law while the right of the same vests with the legal heirs of the deceased with reference to Section 345 Cr.P.C. 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 forgo the right of Qisas with or without compensation. In the present case, legal heirs of both the deceased are adult and they have asserted to have waived right of Qisas without any compensation. During formal enquiry held by learned Sessions Judge (Trial Court), the legal heirs of both the deceased categorically stated that they have compromised with appellant/ accused Ghulam Hussain and they have forgiven him in the name of Almighty Allah and do not claim any compensation viz. Diyat, Arsh, Daman, Qisas etc. Trial Court was also satisfied that compromise was genuine and without any pressure. We have also kept in mind proviso of Section 345(2A) Cr.P.C, which provides as under:

“(2A) Where an offence under Chapter XVI of the Pakistan Penal Code, 1860 (Act XLV of 1860), has been committed in the name or on the pretext of karo kari, siyah kari or similar other customs or practices, such offence may be waived or compounded subject to such conditions as the Court may deem fit to impose with the consent of the parties having regard to the facts and circumstances of the case.

11. We have carefully perused the impugned judgment. No finding has been recorded by the Trial Court that such offence has been committed in the name or on the pretext of karo kari, siyah kari or similar other customs or practices.

12. In the view of above discussion, we are satisfied that there is genuine compromise between Appellant and legal heirs of both deceased persons and offence under section 302(b) PPC is compoundable in law. Therefore, necessary permission is granted to the parties to enter into the compromise for better relations between them in future. After accepting the compromise application submitted by the parties, appellant Ghulam Ghulam Hussain son of Lal Bux Manchari is acquitted under Section 345(6) Cr.P.C for offence under section 302(b) PPC in (FIR No.06/2011 registered at PS Jhimpir u/s 302/34 PPC) and (FIR No.10/2011 registered at P.S Jhimpir u/s 302/34 PPC). Appellant be released forthwith, if not required in any other custody case.

13. In the view of above, both Jail Appeals are disposed of in the above terms and Confirmation Case No. 10 of 2014 is replied in negative for the reasons mentioned hereinabove.

JUDGE

JUDGE

F