SHAHOO alias SHAH NAWAZ vs THE STATE

ORDER

1. ' S. ZAWWAR HUSSAIN, JAFRI, J.--- The appellant Shahoo alias Shah Nawaz was tried by the learned IIIrd Additional Sessions Judge, Khairpur for murdering his wife Mst. Adan and Mst. Lal Khatoon on 12-7-1997. The trial Court convicted the appellant and sentenced him to death vide judgment, dated 11-10-2000. The impugned judgment was challenged by the convict/appellant by way of filing Criminal Appeal No,117 of 2000, which was admitted on 25-10-2001.

2. ' The trial Court had also forwarded the Murder Reference being Confirmation Reference No,13 of 2000. Both the matters are, therefore, being disposed of together through this single judgment.

3. On 25-10-2001, it was contended by the learned counsel for the appellant that during the pendency of the trial proceedings the legal representatives of the deceased had entered into compromise with the accused but the trial Court instead of passing any order thereon convicted and sentenced the appellant. During the pendency of the appeal before this Court an application for compounding the offence under section 345 read with sections 309/310 and 338-E, Qisas and Dayat Ordinance alongwith affidavit of Nizamuddin, Allandino, Mst. Bacchanal and pro forma for affecting a compromise under Qisas and Dayat Ordinance were filed. On 31-10-2001 directions were issued by this Court to the learned IInd Additional Sessions Judge, Khairpur who was acting as Incharge IIIrd Additional Sessions Judge, Khairpur to hold an enquiry in respect of the compromise, if any, effected between the parties. The said Court was also directed to verify from the concerned Mukhtiarkar about the legal heirs of the deceased Mst. Adhal and Mst. Lal Khatoon.

4. ' In pursuance of such directions, the learned Incharge IIIrd Additional Sessions Judge, Khairpur conducted the enquiry and legal heirs while appearing in the said Court affirmed that they had compromised with the accused/appellant Shahoo alias Shah Nawaz and do not claim any Diyat amount and stated their no objection if the appellant/accused was acquitted from such charge.

5. The learned Judge also, recorded their statements which are available alongwith the letter in this Court.

6. ' Mukhtiarkar Kingri also placed on record the name of the legal heirs of the deceased:-- ' Mst. Adhal

(1) Shahan alias Shah Nawaz Husband

(2) Mst. Battle Mother

(3) Nizamuddin Brother ' Mst. Lal Khatoon

(1) Allah Dino Husband

(2) Mst. Battle Mother

(3) Nizamuddin Brother.

7. In pursuance of the said application the heirs of the deceased appeared before us to testify the factum of pardon granted by them. As all the legal heirs abovementioned have also deposed/affirmed before us that they have granted Afw (URDU TEXT) to Shahoo alias Shah Nawaz appellant in the name of Allah.

8. ' In view of the statements recorded by the learned 'Ind Additional Sessions Judge being Incharge, we are satisfied that there is no other heirs of the said deceased and they have granted Afw (URDU TEXT) to the appellant. The said heirs have also prayed that the appellants be acquitted. Similar applications for effecting compromise were moved in the trial Court but on the basis of pleading guilty before the trial Court the appellant was sentenced and convicted to death. The trial Court instead of passing any order on the compromise application awarded the conviction in haste without considering the application. The appellant as well as the legal heirs of the deceased are related inter se and the legal heirs of the deceased have extended (URDU TEXT) the right of Qisas and they do not claim anything against Diyat which has been forgiven in the name of Allah. There is nothing on record to persuade us not to act upon Afw granted to the heirs of the deceased or to punish the appellant by way of Tazir.

9. ' On 5-9-1990 Qisas and Diyat Ordinance, 1990 Criminal Law (Second Amendment) Ordinance, 1990 was promulgated by the State for compounding the offence. The provision of sections 309, 310 and 302, P.P.C. Were substituted by the Criminal Law Amendment by adding the provision of sections 338-E, 338-H and the Islamic concept has been brought by way of amendment in the Criminal Procedure Code for compounding the offence in cases falling under section 309, P.P.C. And compounding of the Qisas (Sulh). It is also urged by the learned counsel that sections 310 and 313 have been substituted by Criminal Law (Second Amendment) Ordinance of 1990 for equitable and fair return (Badl-iSulh) and if the heirs of the victim are satisfied either with the amount of Diyat for fair Badl-i-Sulh or they do not claim anything against Diyat which is forgiven in the name of Almighty Allah the Court has no option but to accept the same. Reliance is placed upon the case of Safdar Ali and others v. The State and others PLD 1991 SC 202, Muhammad Mazhar v. The State 1992 PCr.LJ 443, Ghulam Rasool and others v. The State 1995 PCr.LJ 1327 and Abdul Hussain alias Noor Hassan alias Nanan v. The State 1999 PCr.LJ 1936.

10. In view of the foregoing reasons Criminal Appeal No,117 of 2000 is allowed. The conviction and the sentence recorded against appellant Shahoo alias Shah Nawaz by the abovementioned impugned judgment is set aside and he is accordingly acquitted of the charge as envisaged by the provisions of section 345, Criminal Procedure Code. The appellant be released if not required in any other case.

11. ' In the circumstances the reference is answered in negative as there is no question of confirmation of death sentence due to the compromise effected by the legal heirs of the deceased with the