HYDER BUX Versus State

ORDER

MUHAMMAD SALEEM JESSAR, J.--- Through listed application, appellant Hyder Bux son of Khanan Zuhrani, through his counsel has called in question the judgment/order passed by this Court dated 06.08.2018, whereby joint applications being M. A. Nos.1440/2018, No.1441/2018 and No.1442/2018 filed by the parties in terms of section 345(2), (4), (6), Cr.P.C. were entertained and subsequently allowed. However, deceased Muhammad Yaqoob at the time of his death had left seven minors, the names thereof are mentioned in para No.7 of the order dated 06.08.2018, which reads as under:

"7. Perusal of the judgment reveals that the alleged offences are compoundable and as per inquiry report submitted by the learned trial court, the compromise between the parties appears to be genuine and without any coercion, pressure and duress from any corner and the major legal heirs have pardoned the appellant. Accordingly, application under section 345(4), Cr.P.C. is allowed, permission to compound the offence under section 345(5) is accorded and as a result thereof, the application under section 345(6), Cr.P.C. stands allowed while accepting the compromise. The impugned judgment dated 31.10.2017 is set-aside. The appellant is acquitted in terms of compromise. He is directed to be released forthwith if he is not required in any other case, subject to deposition of share amount of Diyat of seven minors, namely, 1) Shahmeer, 2) Nisar, 3) Soobo @ Bilawal, 4) Sijawal, 5) Ameer Ali, 6) Mst. Huzooran Hajani and 7) Ameeran Popri with the Accountant of this Court as calculated by him as per applicable notification. The Accountant shall invest the amount of Diyat in favour of minors in some government profitable scheme, which shall be paid to the minors on attaining of their majority as per rules."

2. Mr. Habibullah G. Ghouri, learned counsel for the appellant, submits that in the FIR, in all five persons were arrayed as accused, however, during investigation four accused namely, Baboo, Munawar, Ashique and Suhbat, were let off by the police whereas only the appellant was held responsible for the charge and subsequently was sent up to face trial. Mr. Ghouri further submits that the complainant had not moved any application against the release of co-accused during investigation nor even the concerned Magistrate took cognizance of the same and therefore, he too concurred with the police report and only the appellant was directed to be tried. The trial Court/Additional Sessions Judge Larkana, in Sessions Case No.157 of 2010 Re; State v. Hyder Bux, had framed the charge only against the appellant at Ex-02 on 15.04.2010. Mr. Ghouri further submits that when let off accused were nominated in the FIR and, subsequently, the prosecution witnesses and complainant had deposed against them before the trial Court, therefore, the appellant alone may not be held responsible to pay the full Diyat amount. However, he may be required to pay his own share. In support of his contention, he has placed his reliance on the case of Muhammad Sharif v. The State (PLD 2003 Karachi 277) and submits that instant application may be allowed and the appellant may be directed to pay the share of Diyat amount as per his liability and rest of the Diyat amount may be directed to be paid by the co-accused.

3. Conversely, Mr. Sharafuddin Kanher, learned A.P.G. appearing for the State, vehemently opposed the application and submits that though the co-accused were nominated in the FIR but, subsequently, were let off by the police during investigation and their release was not challenged by the complainant and the learned Magistrate had also concurred with the police report, therefore, he did not take cognizance of the case to the extent of co-accused who have been let off and no charge was framed against them. Learned A.P.G. has further pointed out that complainant moved an application under section 193, Cr.P.C. before the trial Court on 16.04.2016, and after hearing the parties it was dismissed by the trial Court on 19.05.2016. He next submits that the complainant had not challenged the order dated 19.05.2016, passed by the trial Court and, therefore, the co-accused who were let off by the police were not roped in. Admittedly the Prosecution Witnesses had deposed against let off co-accused before the trial Court yet neither were they made accused nor the trial Court at the time of announcement of the judgment had kept their names on dormant file treating them to be absconding. He further submits that when the trial Court had not kept their names on dormant file it means that they were not termed as accused. Therefore they are not liable to be burdened with the liability of Diyat amount. He has also pointed out that during investigation further statement of the complainant was recorded by the I.O. on 27.03.2010, whereby he had exonerated the co-accused and such fact has been admitted by the I.O/Inspector Gulzar Ali Memon in his evidence/deposition at Ex-11, available at page 101 of paper book. He also submits that upon the basis of further statement of the complainant, P.Ws and widow of the deceased, the co-accused were let off. He submits that in the afore-stated circumstances, the said persons are no more accused and even their release has not been questioned by the aggrieved party, hence they are not liable to pay the Diyat amount in terms of the impugned judgment. In support of his contention he has placed his reliance on the case of Muhammad Ajmal v. State (2014 YLR 2688) (Lahore).

4. Mr. Ghouri, learned counsel for the appellant in rebuttal to the arguments made by the learned A.P.G. submits that there is no specific judicial verdict for acquittal of the accused; however, he focused upon the impugned judgment particularly point No.2 and its discussion and submits that his contention gets support from the record as the allegation against the co-accused has been believed by the trial Court yet they have not been made as accused. Learned counsel for the applicant, therefore, prayed that the co-accused may also be saddled with responsibility to pay Diyat to the extent of their share.

5. I have heard learned counsel for the parties and have gone through the material available on record.

6. I totally agree with the submission of learned counsel for the applicant that there is no specific judicial verdict for acquittal of the let off accused, however, this fact, in no way, will cause any hindrance in the way of the let off accused as they were never sent up to face trial and were released by the Police after investigation at the initial stage. A judicial verdict of acquittal would have been necessary if their names were mentioned in the challan and charge was framed against them which would have enabled them to contest the allegations and prove their innocence. It would be advantageous here to refer to the relevant provisions of Criminal Procedure Code relating to framing of charge. Subsection (1) of section 221 of the Code states that "Every charge under this Code shall state the offence with which the accused is charged", subsection (3) ibid states that "If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged." Thus, it is crystal clear that the purpose of framing charge is to ensure that the accused is well aware of the allegations against him so that he can properly defend himself. In the present case, the let off accused were not "the accused" in terms of these subsections as they were let off and no charge was framed against them. Therefore, there was no need to acquit them by a judicial order. Such acquittal order would have been necessary if the let off accused were also named in the challan and a charge was framed against them. This submission, therefore, has no force and is rejected.

7. Before going to discuss the legal issue, it will be appropriate to reproduce the conclusion of the impugned judgment passed by the trial Court in terms of point No.3, which reads as under:

"In the light of my above discussion I have come to the conclusion that the prosecution succeeded to establish the charge against the present accused beyond the shadow of reasonable doubt however, the death sentence to present accused cannot be awarded due to mitigating circumstances, as per FIR as well as evidence brought on record, the hatchets injuries were caused to the deceased Yaqoob by present accused Hyder Bux and let off accused Baboo and Munawar and it is not clear that who caused fatal injury to the deceased out of these three accused persons, hence accused Hyder Bux son of Khanan Zujhrani is convicted under section 302(b), P.P.C. and sentenced to suffer imprisonment for life and to pay fine Rs.100,000/- (One hundred thousand) and if fine is recovered same will be given to legal heirs of deceased Mohammad Yaqoob and in case of failure to deposit the fine amount, the accused shall suffer two (2) years more S.I. and benefit of section 382-B, Cr.P.C. is given to accused for the period he remained in jail. Accused is present on bail, he is taken into custody and remanded to Central Prison Larkana to serve the sentence."

8. The main grievance of the applicant is that since five persons were nominated in the FIR, therefore, all the five are responsible to pay the Diyat pro-rata to the minor legal heirs of the deceased. However, from perusal of concluding para of the judgment passed by learned trial Court it is clear that the trial Court has convicted and sentenced the applicant only and the let off accused were not tried and convicted. Therefore, it is clear that the let off accused will not suffer any consequences whether there is a compromise between the parties or not as they have not been charged with commission of any offence.

9. It may be observed that learned counsel for the applicant has candidly conceded that though names of all the co-accused i.e. the applicant as well as the let off accused, were mentioned in the FIR, however, during investigation co-accused Baboo, Munawar, Ashique and Suhbat, were let off by the police and only the appellant was held responsible for the charge and subsequently was sent up to face trial. Accordingly, challan was framed against the appellant only and no other person was arrayed as co-accused with him. In this view of the matter neither any charge was framed against the let off co-accused nor were they before the trial Court to defend themselves. It is also a matter of record that neither the Magistrate, who was seized with the matter, raised any objection to such let off nor any objection was raised by the complainant party thereto. It is also gleaned from the record that such let off of the co-accused by the I.O. of the case was the result of statement of the complainant as well as the widow of the deceased and some PWs, wherein they exonerated the let off co-accused and such fact was stated by the I.O. of the case during his deposition. Once the co-accused were let off/released by the I.O. on the basis of statements of the complainant, the widow of the deceased and PWs, for all practical purposes they were not charged with commission of any offence and were present before the Court and in such view of the matter no adverse order can be passed against them. Even otherwise, the compromise was between the applicant and the complainant/legal heirs of the deceased and the let off accused were not a party thereto.

10. It would be advantageous to refer to provisions of section 345 of Cr.P.C. Subsection (1) of section 345, Cr.P.C. envisages that offences punishable under certain sections of Pakistan Penal Code specified in the tables to the said section can be compounded by the persons named in third column of the said tables meaning thereby that the private parties involved in a crime i.e. the complainant and the offenders, can reach an out of court compromise to settle their dispute. However, section (2) of the said section mandates that certain offences are those which can be compounded by permission of the Court. Sub section (2A) of section 345, Cr.P.C. further imposes an embargo on a compromise to the effect that where an offence under Chapter XVI of the P.P.C. 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. Subsection (4) deals with the competence of a party to compound an offence and subsection (5) ibid states that if an accused has been convicted and an appeal is pending against his conviction in such case composition for the offence shall be allowed with the leave of the Court before which appeal is pending. Subsection (5) deals with the powers of the High Court and sub section (6) ibid states that composition of an offence under section 345, Cr.P.C. shall have the effect of an acquittal of the accused with whom the offence has been compounded.

11. For the purpose of the listed application, the provisions of subsection (6) of section 345, Cr.P.C., are relevant. There is no ambiguity about the fact that under subsection (6) of section 345, Cr.P.C., composition is made between the aggrieved party i.e. legal heir(s) of a deceased in the case of murder and the accused who is/are charged with such offence to secure acquittal of the accused. A person who has been named in the FIR and, subsequently, is released by the Police due to insufficient evidence, and is not charged with such offence, cannot be termed as an accused for the purpose of an application under section 345, Criminal Procedure Code as he cannot be acquitted. Learned counsel for the applicant has not been able to pinpoint whether the co-accused were arrayed as accused in the impugned judgment or were specifically defined by the trial Court in the judgment that they could have been made accused. Even not a single word has been uttered by the trial Court in respect of the let off accused which may show that they were termed to be accused in this offence. It may be worth mentioning here that complainant moved an application under section 193, Cr.P.C. before the trial Court on 16.04.2016, and after hearing the parties it was dismissed by the trial Court on 19.05.2016. The complainant had not challenged the order dated 19.05.2016, passed by the trial Court and therefore, the co-accused who were let off by the police, thus it attained finality. It is also to be noted that the trial Court at the time of announcement of the judgment had not kept their names on dormant file treating them to be absconding which means that they were not termed as accused. Therefore they are not liable to be burdened with the liability of Diyat amount.

12. In support of his contentions, learned counsel for the applicant relied on the case of Muhammad Shareed v. The State (PLD 2003 Karachi 277), wherein Muhammad Shareef was facing trial in the Court of Sessions/Special Judge (STA), Larkana along with three other accused persons in Crime No. 9 of 2001 registered at PS Naudero District Larkana under sections 302, 337-H(2) and 34, P.P.C. In this case also the facts are somewhat similar to the case in hand as in the cited case five persons were nominated in the FIR to have committed murder of the deceased Ali Gul. It was alleged that the murder was committed by four accused persons who were facing trial before the trial Court, whereas, it was alleged that the offence was committed at the instance of the fifth accused, namely, Buxian. However, after investigation, police released the accused Buxian and placed his name in Column No.2 of the charge-sheet. During the course of trial, a compromise was reached between accused Muhammad Shareef and the legal heirs of the deceased. The trial Court disposed of the compromise application by ordering applicant Muhammad Shareef to pay the entire share of the minor daughter of the deceased. Muhammad Shareef challenged such order before this Court and contended that since five persons were involved in the case, therefore, he was liable to pay 1/5th of the Diyat amount as his share. The contention of Muhammad Shareef was partly accepted by a learned Division Bench of this Court as under:

"The contention of the learned advocates for the applicant that the applicant is required to pay 1/5th share from the entire Diyat of deceased Ali Gul, because five persons were named in the FIR is also not tenable. The reason being that after investigation, four accused persons were found to have committed Qatl of deceased Ali Gul and therefore, applicant Muhammad Shareef being one of them is required to pay 1/4th share in the total Diyat of the deceased Ali Gul."

13. From the above cited judgment, which was relied upon by the learned counsel for the applicant himself, it is very clear that once the accused who was named in an FIR was let off by the Police after investigation, he cannot be treated at par with those accused who were facing trial and was not liable to pay any share in the Diyat amount in case of compromise. In the cited case, although five persons were named in the FIR, but one of them namely, accused Buxian, was released by the Police and his name was placed in Column No.2. Therefore, the learned Division Bench of this Court was pleased to hold that only the four accused persons named in the FIR were to pay the Diyat prorata i.e. according to their 1/4th share and the fifth accused, who, though named in the FIR but was later on released by the Police after investigation, was not liable to pay any part of the Diyat as after his release by the Police he was not an accused before the trial Court.

14. In the present case, five persons were named in FIR as accused, however, during investigation four accused namely, Baboo, Munawar, Ashique and Suhbat, were let off by the police whereas only the appellant was held responsible for the charge and subsequently was sent to face his trial. Thus, following the ratio of the case cited by the learned counsel for the applicant, the accused who were released by the Police after investigation could not be saddled with any liability with regard to the Diyat payable to the LRs of deceased Muhammad Yaqoob.

15. It may further be observed that the purpose of the compromise between the applicant and the legal heirs of the deceased Muhammad Yaqoob is to secure acquittal of the applicant who was facing trial and was convicted and sentence as quoted above. On the other hand, there is no conviction and sentence or any pending trial against the let off accused. While the applicant, by reaching a compromise with the complainant party and paying Diyat, will secure his acquittal from the charge, what benefit the released co-accused will achieve by paying their share of Diyat, if so ordered. This will also tantamount to condemning them unheard as right from the beginning of the case, and soon after investigation, they were let off and were not before the Court to defend themselves.

16. Before opening discussion on the issue of Diyat, it would be appropriate to say that though the 'Diyat' is defined as one of the 'punishments' by section 53 of the P.P.C. The status thereof, however, has further been clarified by section 299(e), P.P.C. as:-

"Diyat" means the compensation specified in section 323 payable to the heirs of the victim:-

Since, the legal meaning of term 'compensation' is:-

"The act of compensating or the state of being compensated. Something, such as money, given or received as payment or reparation, as for as a service or loss."

Thus, it can safely be concluded that 'Khun-Baha/diyat' for one murder, if agreed by heirs of deceased or lawfully ordered by a court of law, would be 'one' i.e single diyat and logically the 'diyat' for a single murder shall not stand multiplied merely for reason of more than one accused. Thus, in either situations, the compensation (diyat) shall be one, as is fixed/determined by the court which, however, cannot be less than what is prescribed.

17. Since, I am quite conscious of the fact that it is within competence of the heirs of the deceased to compound the offence with all the offenders or with one only but since 'compensation' legally could be one for one murder therefore, legal heirs cannot be permitted to ask for 'compensation' while exercising their such rights against every offender.

18. I would further add that if the legal heirs wish to continue proceeding with charge against rest of the accused there remains every possibility open that such accused person(s) may receive another kind of punishment which is not limited to Taaz'ir alone if such rest of the accused persons are found guilty. It seems to be the reason and logic because of which the diyat (compensation) cannot be asked in full from one or two accused persons where legal heirs compound the offence only with such accused persons while keeping their right open against rest of the accused persons with hope of getting them punished with other kind of punishments for the same offence with which they and those, with whom offence is being compounded, are charged.

19. I am guided in such conclusion with the case, referred by the counsel for the appellant. The operative part whereof is reproduced hereunder:-

"We are persuaded to agree with the submission of learned counsel for the applicant. The issue has been discussed by Justice (R) Dr. Tanzil-ur-Rehman (Retired Chief Justice Federal Shariat Court) in his book Hudood, Qisas, Diyat-Wa-Tazzirat. Second Edition, page 315. It is stated that if more than one offenders commit qatl-i-amd, the Diyat shall be distributed equally on the offenders and if recovery of Diyat from one or more offenders is waived then the remaining Diyat shall be paid by the remaining offenders according to their respective share. In support of this view the learned author has referred the following books(sic.):

The above answer is sufficient to safely conclude that 'Diyat' shall stand equally distributed among the 'offenders' if the offence is being compounded with one or two accused persons leaving others to face trial then 'diyat', amount so fixed/determined, shall stand equally divided among all charged persons. Where the 'diyat' is only provided punishment or as alternative punishment and such punishment is being awarded, the formula shall remain same if the number of guilty persons is more than one.

20. Without prejudice to above settled principle, I would say that position in instant case is somewhat different, therefore, would require a little more clarification. Without hesitation, I would add that mere appearance of one's name in the FIR would not necessarily result in making him to face the trial because the investigating officer can competently discharge one and even all the named accused persons and send up to entirely different set of persons as accused. To make things a little easy, I would say that FIR is not a proof of guilt but is meant to thrash out the truth by bringing the law into motion. Guidance is blessed from the case of Sughran Bibi v. State PLD 2018 SC 595 wherein it is observed as:-

Rule 25.2(3) which reads as under

"(3) It is the duty of an investigating officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person".

This Rule should suffice to dispel any impression that investigation of a case is to be restricted to the version of the incident narrated in the FIR or the allegations levelled therein. It is quite evident from this Rule that once an FIR is registered then the investigating officer embarking upon investigation may not restrict himself to the story narrated or the allegations levelled in the FIR and he may entertain any fresh information becoming available from any other source regarding how the offence was committed and by whom it was committed and he may arrive at his own conclusions in that regard. The final report to be submitted under section 173, Cr.P.C. is to be based upon his final opinion and such opinion is not to be guided by what the first information had stated or alleged in the FIR. It is not unheard of that sometimes the final report submitted under section 173, Cr.P.C. the first information is put up before the court as the actual culprit.

(Underlining is mine)

It was further held in the case as:-

"27. As a result of the discussion made above we declare the legal position as follows:

(i) .......;

(ii) If the information received by the local police about commission of a cognizable offence also contains a version as to how the relevant offence was committed, by whom it was committed and in which background it was committed then that version of the incident is only the version of the informant and nothing more and such version is not to be unreservedly accepted by the investigating officer as the truth or the whole truth;

(iii) .......

(iv) During the investigation conducted after the registration of an FIR the investigating officer may record any number of versions of the same incident brought to his notice by different persons which versions are to be recorded by him under section 161, Cr.P.C. in the same case. No separate FIR is to be recorded for any new version of the same incident brought to the notice of the investigating officer during the investigation of the case;

(v) During the investigation the investigating officer is obliged to investigate the matter from all possible angles while keeping in view all the versions of the incident brought to his notice and, as required by Rule 25.2(3) of the Police Rules, 1934 "It is the duty of an investigating officer to ...... He shall not commit himself prematurely to any view of the facts for or against any person."

(vi) Ordinarily no person is to be arrested straightaway only because he has been nominated as an accused person in an FIR or in any other version of the incident brought to the notice of the investigation officer by any person until the investigating officer feels satisfied that sufficient justification exists for his arrest and for such justification he is to be guided by the relevant provisions of the Code of Criminal Procedure, 1898 and the Police Rules, 1934....

(vii) Upon conclusion of the investigation the report to be submitted under section 173, Cr.P.C. is to be based upon the actual facts discovered during the investigation irrespective of the version of the incident, advanced by the first informant or any other version brought to the notice of the investigating officer by any other person.

The legal position, being so, permits me to safely say that reference to names in FIR alone would never be a valid ground when the question/proposition involved, relates to 'punishments' because the law is quite clear that 'punishment' could legally be awarded by a court of law which takes cognizance on a report under section 173, Cr.P.C. and not on FIR. The diyat, as already said, is one of the punishment hence learned counsel for the appellant was entirely wrong in insisting defined principle of distribution of 'diyat' among offenders while referring to names of those persons, who, otherwise, undeniably were never sent-up as accused. This aspect even stood clarified in the very case of Muhammad Sharif supra wherein it was further held as:-

The contention of the learned advocates for the applicant that the applicant is required to pay 1/5th share from the entire Diyat of deceased Ali Gul, because five persons were named in the FIR, is also not tenable. The reason being that after investigation, four persons were found to have committed Qatl of deceased Gul and therefore, applicant Muhammad Sharif being one of them is required to pay 1/4th share in the total Diyat of the deceased Ali Gul..........

21. Since, the instant case is one of 'appeal' i.e convicted person, therefore, to avoid any future complication, I would say that if the police sent up four persons as accused but after due trial the court convicts only one while acquitting rest accused persons. In appeal, the convict, as in the instant case, the convict would not be legally justified to refer names of acquitted co-accused persons because an acquitted person, legally, no more remains an offender/accused nor he (except by appellate court) is likely to receive any `punishment' which, needless to add, includes 'diyat'. I would say that in such situation, such formula, shall be applied keeping in view the number of convicted persons only and numbers of tried accused persons shall have no relevancy thereto.

22. Having said so, on perusal of the record, I find that though five persons were named in FIR but only present appellant was sent up as offender/accused and was convicted therefore, despite availability of said principle of distribution of diyat among the offenders or convicts, the appellant, being only tried accused and only convict, is not entitled for any benefit and shall be required to pay the 'diyat' as ordered by this court in order dated 06.08.2018.

23. The upshot of above discussion is that listed application under section 561-A, Cr.P.C., being M.A. No. 4028 of 2018 merits no consideration; accordingly same is hereby dismissed.

JK/H-6/Sindh Application dismissed.