Present
Mr. Justice Aqeel Ahmed Abbasi
Mr. Justice Muhammad Junaid Ghaffar
Zulfiqar Ali Kachelo @ Ali & others……………………………….......Appellants
Versus
The State…………………………………………………………….....Respondent
Date of hearing : 25.06.2014, 26.06.2014,
27.06.2014
Date of order : 28.06.2014
M/s Mehmood Alam Rizvi and Zakir Leghari, advocates for the appellants.
Mr.Nasrullah Malik, advocate for the complaint/legal heirs of deceased Lal Bux.
Mr. Saleem Akhtar Buriro, Additional Prosecutor General Sindh.
Appellants Zulfiqar Ali Kachelo @ Ali, Abdul Rahim, Harchand Menghwar and Ganiso Menghwar are produced in custody by Jail Authorities.
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Aqeel Ahmed Abbasi, J: Through this common order, and by consent of the learned counsel for the appellants, counsel for the legal heirs of the deceased and Addl.P.G, we will dispose of both the listed applications filed under Section 345 (5) and (6) Cr.P.C bearing M.A.Nos. 2632 & 2633 of 2014 for compromise between the parties and application under Section 426 Cr.P.C for suspension of sentence and release of the appellants on bail.
2. During pendency of this appeal i.e. Criminal Appeal No.68 of 2014 filed by the appellants against the impugned judgment dated 15.3.2014 passed in Sessions Case No.687 of 2010 by the learned Sessions Judge Karachi East in Crime No.188/2010 under Section 302/201 PPC of P.S. Bahadurabad, Karachi, whereby the appellant Zulfiqar Ali Kachelo @ Ali son of Javed Ali Kachelo has been convicted under Section 302 PPC for having committed murder of deceased Lal Bux and has been sentenced to death and fine of Rs.10,00,000/- and in case of default of payment of fine he shall suffer further R.I for 5 years and he has also been convicted under section 201 PPC alongwith remaining appellants namely, Harchand Menghwar son of Bahroo Menghwar, Ghaniso Menghwar son of Saino Menghwar and Abdul Rahim son of Muhammad Yaseen, who have been convicted and sentenced to suffer R.I. for 7 years each, and fine of Rs.100,000/- each, and in case of default in payment of fine they shall further suffer R.I. for one year each, whereas, benefit of section 382-B Cr.P.C. has been extended to the appellants, the appellants have entered into a compromise with the legal heirs of the deceased Lal Bux and filed application under Section 345(2) Cr.P.C. seeking permission of the Court to allow the parties to enter into the compromise alongwith application under Section 345 (5) and (6) Cr.P.C with a request to approve the compromise between the parties, and by compounding of offence of murder under Section 302 PPC to acquit the appellants.
3. On 15.4.2014, an order was passed on the listed applications filed under Section 345 (2) read with Section 345(5) and (6) Cr.P.C and report was called from the learned trial Court i.e. Sessions Judge Karachi (East) to verify the genuineness of the compromise, who vide letter dated 3.5.2014 after verification of the genuineness of the compromise arrived between the parties has submitted his report. On 15.5.2014, this Court in order to further verify the genuineness and veracity of the compromise reached between the parties issued directions to get this compromise duly advertised in Sindhi Newspaper of the area, where the legal heirs of the deceased are residing and, also called reports from concerned Mukhtiarkar and SHO regarding number of legal heirs of deceased, who were also directed to be present in Court on 27.5.2014.
4. Pursuant to such order of this Court, compromise reached between the appellants and the legal heirs of the deceased was published in daily Kawish dated 26.5.2014, whereas reports from Mukhtiarkar and SHO were also received, whereby the genuineness of the compromise and number of legal heirs of the deceased Lal Bux were duly verified and the reports were placed on record.
5. On 27.5.2014, when the matter was taken up for hearing, Mr. Nasrullah Malik, advocate has shown appearance alongwith legal heirs of the deceased namely, Muhammad Ilyas, Muhammad Abbas, Muhammad Rahim, Muhammad Niyaz, Mst. Khanzadi and Mst. Jammah, who have not only verified the contents of the compromise reached between the parties but also filed their affidavits in this regard which were duly examined by this Court. They have stated that they are the only legal heirs of the deceased and entered into a compromise and have also forgiven the appellants in the name of Al-Mighty Allah and waived diyat. However, on the said date of hearing when the matter was fixed for hearing of applications as well as for regular hearing, the order on the compromise applications could not be passed on the pointation by the learned counsel for the appellants that since appellants have also been convicted under Section 201 PPC, which is not compoundable, hence a clog imposed by subsection (7) of Section 345 Cr.P.C. would come in the way of compromise. It was further observed that while approving the compromise the Court has to examine the implication of Section 311 and Section 338-E PPC keeping in view the facts and circumstances of the case. The matter was adjourned with the direction to the office was directed to prepare the paper book. Thereafter, learned counsel for the appellants filed urgent application for hearing of the compromise application as well as the application under section 426 Cr.P.C. on the grounds that the paper book has not been prepared by the office inspite of best efforts, whereas, there is no likelihood that this case may be fixed for regular hearing in near future in view of pendency of large number of cases in Court. It was further urged that since compromise has already been reached between the parties, therefore, the applications for compromise may be taken up for hearing alongwith application for suspension of sentence under Section 426 Cr.P.C.
6. Notices were issued to the State as well as to the counsel of the legal heirs of the deceased, who have shown appearance and expressed their willingness for hearing of both the applications on urgent basis as the R & P of the case was already available on record and conceded that in the presence of entire evidence and record in the shape of R & P there is no need to wait for preparation of paper book which otherwise is procedural formality.
7. Learned counsel for the appellants has argued that though, the appellants have a prima-facie good case on merits as well, as the impugned judgment suffers from patent illegalities and has been passed in total disregard of the evidence on record, however, in order to avoid delay, which may be caused in regular hearing of the case, the appellants have reached to a compromise with the legal heirs of the deceased, which can be taken up for hearing at any stage of proceedings during pendency of an appeal as well. Learned counsel for the appellants submits that the genuineness and veracity of the compromise in this case has not only been verified by the learned trial Court but has also been examined in detail by this Court, whereby, the appellants were directed to advertise the compromise in Sindhi Newspaper of the area and further report was also called from the concerned Muktiarkar and SHO in this regard. It has been further stated that pursuant to Court directions all the legal heirs of the deceased have also shown appearance before this Court and filed their affidavits and thus verified the genuineness of the compromise reached between the parties. Learned counsel has also readout the evidence of the prosecution witnesses including I.O of the case as well as medical version in this case and submits that there is no material whatsoever available on the record which may otherwise connect the appellants with the alleged offence. It is further contended by the learned counsel that the learned Judge inspite of having observed that there is no evidence which may implicate the appellants from the alleged crime, has convicted the appellant Zulfiqar Ali Kachelo @ Ali under Section 302 PPC and awarded the capital punishment and sentenced the appellant Zulfiqar Ali Kachelo to death, whereas, he alongwith other appellants namely, Abdul Rahim, Harchand Menghwar and Ganiso Menghwar have also been convicted for an offence under Section 201 PPC inspite of fact that there is no evidence on record to substantiate the offence under Section 201 PPC as well. Per learned counsel, in fact this is a case of no evidence against the appellants, whereas the appellants have also compromised and the legal heirs of the deceased have compounded the offence under Section 302 PPC, therefore, the impugned judgment is liable to be set aside and the appellants are to be acquitted from the alleged charge. However, per learned counsel, since paper book has not so far been prepared, therefore, in order to avoid any technicalities, the appellants at the moment would press the hearing of the compromise applications as well application for suspension of sentence and release of the appellants on bail at this stage. Per learned counsel, there is no impediment in the grant of listed applications for the compromise, as according to learned counsel, offence under Section 302 PPC is compoundable, whereas, none of the ingredients or the clog of Section 338-E or Section 311 PPC is attracted in the instant case. In support of his contention, learned counsel for the appellants has placed reliance the following judgments.
1. PLD 2003 Karachi 127 Hussain Bux v. The State
2. 1999 SCMR 2047 Almar Shah v. The State
3. 2012 SCMR 606 Jaffer @ Jafri v. The State
4. PLD 2014 SC 383 Muhammad Nawaz v. The State
5. 2003 SCMR 658 Moulana Nawabul Hassan v. The State
6. PLD 2008 Karachi 420 Ashiq Solangi v. The State
7. 1971 P.CR.L.J 205 Lahore Sarfaraz v. The State
8. 2003 SCMR 663 Ghulam Shabbir v. The State
9. 2004 P.Cr.L.J 736 Rana Dil Muhamnmad v. The State
10. 2006 SCMR 1074 Ali Khan v. The State
11. 1996 SCMR 523 Khalid Zaman v. The State
12. 2011 SCMR 1063 Ghulam Qasim v. The State
13. 2011 SCMR 974 Ghulam Nabi v. The State
8. Mr. Nasrullah Malik, learned counsel for the legal heirs does not oppose the contention of the learned counsel for the appellants and submits that the offence under Section 302 PPC has been compounded by all the legal heirs of the deceased Lal Bux and qisas has been waived without any duress. It has been further contended that though none of the prosecution witnesses have directly implicated the appellants in the alleged crime and their evidence before the trail Court has not supported the prosecution case, however, at the instance of appellants the matter has been compromised by the legal heirs of the deceased Lal Bux to ensure that appellants may not be punished for the offence, they have not committed.
9. Mr. Saleem Akhtar Buriro, learned Additional Prosecutor General Sindh did not controvert the contention of the learned counsel for the appellants to the extent of compromise reached between the parties for an offence under Section 302 PPC, which according to learned Addl.P.G. is a compoundable offence nor he has disputed the genuineness of the compromise between the parties, however, submits that while accepting the compromise in a compoundable offence the Courts have to examine the implications of the provisions of Section 311 read with Section 338-E PPC. Per learned Addl.P.G. even if a compromise is accepted in a compoundable offence, but, after examining the manner in which offence is committed, this Court reaches to a conclusion that the offence of murder has been committed in such a brutal or shocking manner which is outrageous to the public conscience, then this Court may award punishment of Tazir and may sentence a convict, which may extend to death, imprisonment for life or imprisonment of either description for a term which may extent to 14 years (but shall not be less than 10 years) as Tazir. However, when the learned Additional Prosecutor General Sindh was confronted with the prosecution evidence available on record and was required to assist this Court as to whether any of the prosecution witness either ocular, including the alleged eye-witnesses of the incident or the Medical evidence, which may suggest even the commission of offence by the appellant, or which may reflect that the offence has been committed in a brutal manner, the learned Addl.P.G. could not refer to any such evidence, and has candidly stated that from perusal of the prosecution evidence and the material available on record, even the commission of the offence can hardly be attributed to the appellants. However, it has been contended by the learned Addl.P.G that in view of the compromise in this case by the appellants with the legal heirs of the deceased, it appears that the appellants have acknowledged their guilt. It is further contended by the learned Addl.P.G that the cause of death of the deceased Lal Bux is gun shot in his head which also reflects upon the brutality of the offence. In support of his contention. Learned Addl.P.G has referred to the judgment 1996 SCMR 906. However, while referring to the merits of the appeal, the learned Addl.P.G has fairly conceded that on merits the prosecution has no case, therefore, the impugned judgment is not sustainable in law.
10. We have heard the learned counsel for the appellants, learned counsel for the legal heirs as well as learned Addl.P.G and perused the record. From perusal of the evidence and the material available on record in the shape of complete R & P of the case with the assistance of all the learned counsel, it appears that there is no evidence or material which may connect the appellants with the commission of offence or could possibly justify the conviction and sentence of death under Section 302 PPC or offence under Section 201 PPC to the appellants by the learned trial Court. It is surprising to note that in the absence of any direct or even medial or circumstantial evidence against the appellants, how the learned trial Court has convicted the appellants merely on the basis of FIR which is not a piece of evidence, particularly when the complainant in his evidence resiled from earlier version as recorded in FIR by police and also absolved appellant(s) from commission of the alleged offence. Moreover, the prosecution witnesses were declared as hostile by the prosecution and there was no other evidence which could connect the appellants from the alleged crime. However, since a technicality regarding non-preparation of paper book in this case has been pointed out, whereas, all the learned counsel have agreed for hearing of the applications of compromise and suspension of sentence and release of the appellants on bail, we would dispose of these applications by this common order. As regards the genuineness of the compromise reached between the parties, it appears that it has been thoroughly examined and duly verified by the trial Court as well as by this Court, whereas, affidavits have also been filed by the legal heirs of the deceased Lal Bux, who have also shown appearance before this Court and have verified the contents of the compromise. After perusal of the impugned judgment and the prosecution evidence and the material available on record, we are of the view that there is hardly any material which may connect the appellants with the alleged offence, however, since we are not hearing this case on merits at this stage, we will record our finding on genuineness of the compromise which has been reached between the parties and will also examine the implication of Section 311 read with Section 338-E PPC and their application to the facts of this case. It will be advantageous to refer a decision of the Hon’ble Supreme Court on the subject controversy in the case of Azmat and another Vs. The State PLD 2009 Supreme Court 768, which reads as follows:-
“9. The position which thus emerges from a perusal of the provisions of sections 309, 310 and 311 of the P.P.C. and of subsections (2) and (6) of section 345 of the Code of Criminal Procedure, is:---
(a) that grant of “Afw” or the compounding of the offence of “Qatl-e-Amd” under sections 309 and 310, P.P.C., respectively, meant only the waiver of the right of “Qisas” and not acquittal of an accused person;
(b) that where all the “Walis” did not join in the grant of “Afw” or in the compounding of the offence or where even when all the “Walis” did so join but the case was one of “Fasad-fil-Arz”, the offender could still be punished by way of “Tazir” in view of the provisions of section 311 of the Pakistan Penal Code;
(c) that “Fasad-fil-Arz” had not been defined by the said Code though the provisions of the said section 311, P.P.C. did explain the said concept;
(d) that it would not be wise or even appropriate to attempt a precise definition of the said expression which could restrict its area of operation but the examples of ‘Fasad-fil-Arz’ could include cases of terrorism or, for instance, cases where a State functionary was murdered to deter him from performing his official duties;
(e) that acquittal of persons, accused amongst others of murder cases, as a result of a compromise, was envisaged, authorized and then even regulated by the provisions of subsections(2) and (6) of section 345 of the Cr.P.C.
(f) that even under the said provisions of section 345, Cr.P.C. acquittal was not an automatic result of a compromise even if reached by all the heirs of a deceased victim of the offence;
(g) that such an acquittal had been made subject to the grant of permission by the competent court meaning thereby that even where all the heirs of a deceased victim entered into a compromise with the offender, the court could still, for valid reasons, withhold its permission to allow the compromise and could consequently refuse to acquit the accused;
(h) that it would again be neither possible nor even desirable to categorize cases into classes where such a permission should be granted or where the same should be withheld. Such a decision shall have to be taken by the concerned court after applying its judicial mind to all the attending facts and circumstances of a given case such as the past conduct and character of the accused person; the reasons leading him to committing the murder; the manner in which the said crime was committed—how reckless or brutal was such an act and of course the question whether the act in question amounted to “Fasad-fil-Arz”.
11. From perusal of the prosecution witnesses including the alleged eye-witnesses of the offence, it appears that none of the witness has attributed the commission of offence of murder to the appellant. Nothing has been brought on record which may suggest that such offence has been committed in such a manner which may be regarded as brutal or shocking. The medical report of the deceased also does not suggest any brutality except the fact that deceased has received gun-shot injury on his head. This Court is conscious of the legal position that while accepting a compromise between the parties in a compoundable offence including offence under Section 302 PPC, the implication of Sections 311 and 338-E PPC are to be examined, in order to ensure that the offender who has compounded an offence with the legal heirs of an individual deceased may not be acquitted from the charges which may be against the State and may be outrageous to the public conscience. In the instant case we are of the opinion that none of the ingredients of Section 311 or 338-E PPC are attracted as neither in FIR, charge or in the entire prosecution evidence, there is even any suggestion by the complainant or prosecution regarding commission of offence in a brutal or shocking manner, there seems no impediment in accepting the compromise reached between the parties in respect of an offence under section 302 PPC, which is compoundable. Accordingly, we allow the listed application (M.A.No.2633/2014) by accepting the compounding of the offence under Section 302 PPC in respect of appellant namely Zulfiqar Ali Kachelo @ Ali.
12. In view of hereinabove, the appellant namely, Zulfiqar Ali Kachelo @ Ali son of Jawed Ali Kachelo, is hereby acquitted under Section 345 (6) Cr.P.C. on the charges under Section 302 PPC, whereas the Reference No.A/E/Admn/918/2014 dated 6.3.2014 under Section 374 Cr.P.C in Sessions Case No.687 of 2010 (State v. Harchand Menghwar and others) sent by learned Sessions Judge Karachi East stands disposed of.
1. This is an application under Section 426 Cr.P.C. (M.A. No.1735/2014) filed on behalf of appellants namely, Zulfiqar Ali Kachelo @ Ali son of Jawed Ali Kachelo, Abdul Rahim son of Abdul Rehman, Harchand Menghwar son of Bahroo Menghwar and Ganiso Menghwar son of Saino Menghwar, whereby it has been prayed that during pending of the instant appeal the appellants may be released on bail by suspending the sentence awarded to the appellants namely, Zulfiqar Ali Kachelo @ Ali, Harchand Menghwar son of Bahroo Menghwar, Ghaniso Menghwar son of Saino Menghwar and Abdul Rahim son of Muhammad Abdul Rehman under Section 201 PPC and sentenced them to suffer 7 years R.I. and fine of Rs.1,00,000/- each and in case of default in payment of fine they shall further suffer R.I. for one year each. They have also given the benefit of Section 382-B Cr.P.C.
2. Learned counsel for the appellants at the very outset submits that when instant application was filed alongwith appeal against conviction, the appellant Zulfiqar Ali Kachelo @ Ali was also convicted for an offence of 302 PPC along with Section 201 PPC. However, per learned counsel, in view of the compromise reached between the parties during pendency of this appeal, which compromise has already been accepted by this Court in terms of aforesaid order, and the appellant namely Zulfiqar Ali Kachelo has duly been acquitted from the alleged offence under Section 302 PPC, and Reference has been disposed of in terms of the acquittal, the appellants are pressing instant application for their release on bail by suspending their sentence awarded by the trial Court under Section 201 PPC on the ground that the impugned judgment, on the face of it, suffers from patent illegalities, whereas, none of the prosecution witnesses including alleged eye-witnesses have implicated the appellants in commission of an offence under Section 201 PPC. It is further contended by the learned counsel for the appellants that though, from perusal of impugned judgment and examination of prosecution evidence, it can be ascertained that this is a fit case of acquittal of the appellants in the alleged crime, particularly, when the main offence under section 302 PPC the alleged offence has been compromised and the appellant has been acquitted, however, in view of a clog regarding compromise in the offence under Section 201 PPC, which is not compoundable, the matter is required to be heard on merits at the time of regular hearing, which is not possible within a short period of time, looking at the rush of work and pendency of large number of old cases before this Court, hence, requests that during pendency of the appeal, the sentence awarded to the appellants under Section 201 PPC may be suspended and the appellants may be released on bail subject to their finishing solvent surety before the Nazir of this Court.
3. Learned Addl. P. G does not controvert the submissions made by the learned counsel for the appellants and has conceded to the grant of the listed application for suspension of sentence and release of the appellants on bail.
4. Since, material legal defects in the impugned judgment have been pointed out by the learned counsel for the appellants on merits of the case, whereas, learned Addl. P.G. also does not support the impugned judgment on merits as already noted hereinabove, therefore, there seems no impediment in grant of application under Section 426 Cr.P.C. Accordingly, application under Section 426 Cr.P.C. is allowed and the sentence awarded to the appellants namely Zulfiqar Ali Kachelo @ Ali son of Jawed Ali Kachelo, Abdul Rahim son of Abdul Rehman, Harchand Menghwar son of Bahroo Menghwar and Ganiso Menghwar son of Saino Mehghwar under Section 201 PPC is hereby suspended and the appellants shall be released on bail subject to their finishing solvent surety in the sum of Rs.1,00,000/- (Rupees One Lac) each and P.R. bond in the like amount to the satisfaction of the Nazir of this Court.
5. Before parting with the order, we would appreciate the assistance provided by the learned counsel for the appellants as well as learned Addl. P.G. and particularly the fair approach of the learned Addl. Prosecutor General Mr. Saleem Akhter Buriro, towards resolution of the legal controversy involved in the instant case.
JUDGE
JUDGE