IMDAD HUSSAIN vs THE STATE

' KAZIM ALI MALIK, J.---Muhammad Ayub, complainant got registered case F.I.R. No,159 dated 26-7- 2003 under sections 302/449, P.P.C. Read with sections 109 and 34 of the same Code at Police Station Qila Deedar Singh, District Gujranwala against Imdad Hussain, appellant and three others with an allegation that the assailants trespassed into the house of Umar Farooq and killed him at 8-00 a.m. On 26-7-2003. Feeling dissatisfied with the result of investigation in the above said State case, Muhammad Ayub, complainant filed a private Complainant No,281 of 2003. The learned trial Court recorded preliminary evidence and summoned the accused persons to stand trial on the charge of house trespass and murder. Inayat Ullah, accused was murdered during trial.

Muhammad Iqbal, accused went underground and was declared as proclaimed offender. In this way only Imdad Hussain, appellant, Ehsan Ullah and Muhammad Ishfaq, co-accused faced trial out of whom the later mentioned two accused persons were acquitted of the charge.

2. The learned trial Court convicted Imdad Hussain, appellant under section 302(b), P.P.C. And sentenced him to suffer imprisonment for life with a direction to pay Rs,2,00,000 as compensation to the legal heirs of the deceased or to suffer further six months simple imprisonment in case of default in payment of compensation. He was also convicted under section 449, P.P.C. For having committed house trespass and was sentenced to five years rigorous imprisonment with a fine of Rs,10,000 and in case of default of payment of fine to further simple imprisonment for three months.

The appellant was given the benefit of section 382-B, Cr.P.C. Vide judgment dated 3-5-2006, now under challenge.

3. During pendency of the appeal, Imdad 'Hussain, appellant affected a compromise with the legal heirs of the deceased. In compliance with an order of this Court, the learned Sessions Judge, Gujranwala conducted an inquiry and submitted his report dated 27-2-2008 to the effect that Umar Farooq, deceased was unmarried and that he left behind his parents; namely, Muhammad Yaqoob and Mst. Hameedan Bibi who affected a compromise with Imdad Hussain, appellant with their free consent and will.

4. The compromise between the parties was laid before another Bench of this Court. Imdad Hussain, appellant was acquitted of the charge of murder in terms of compromise vide order dated 8-4-2008. However, the appeal to the extent of conviction and sentence under section 449, P.P.C. Was deemed as pending with an observation that the offence of house trespass was not compoundable.

5. The main offence of Qatl-e-Amd is compoundable. The legal heirs of Umar Farooq, deceased compounded the offence and affected a compromise with the legal heirs of the deceased.

' The legal heirs appeared before the learned Sessions Judge, Gujranwala and certified their compromise with Imdad Hussain, appellant. The learned Sessions Judge also verified genuineness of compromise between the parties vide his report, referred to above. In the given circumstances, the principle of merger is applicable, which is to the effect that in case of a compromise between the parties in a criminal case, the minor offence even if not compoundable merges into the compoundable major offence. The result would be that after acquittal of the appellant of the major offence of Qate-i-Amd in terms of compromise the minor offence of house trespass is deemed to have been compounded under the principle of merger.

6. For what has been stated above, I accept this appeal, set aside the impugned conviction and sentence of the appellant on the charge of house trespass and acquit him of the charge in terms of compromise.

7. The appellant be set at liberty forthwith, if not required to be detained in any other case.