HASSAN vs THE STATE

MUHAMMAD FARRUKH MAHMUD, J.--Hassan son of Maango (appellant) was sent up to face trial in case F.I.R. No.31 of 1995 registered at Police Station, Saddar Rahim Yar Khan, on 21-1-1995, for offences under sections 458/ 394/302/411/337-A(ii)/337-F, P.P.C.

2. After conclusion of the trial, the learned Additional Sessions Judge, Rahim Yar Khan, vide judgment dated 22-3-2002 convicted the appellant under section 302(b), P.P.C. For causing murder of Abdul Majeed Dhando and sentenced him to death. He was also directed to pay compensation amounting to Rs.50,000 to the legal heirs of the deceased. The compensation was to be recovered as arrears of land revenue and in default of payment whereof the appellant was to further suffer simple imprisonment for six months.

3. The appellant was also convicted and sentenced as follows:-- ' Under section 458, P.P.C.:--- ' Ten years' R.I. With fine of Rs.10,000 and in default of payment whereof to undergo further simple imprisonment for six months.

' Under section 394, P.P.C.:--- ' Seven years' R.I. With a fine of Rs.5,000 and in default of payment whereof to suffer further simple imprisonment for six months.

' Under section 392, P.P.C.:--- ' Five years' R.I. With fine of Rs.5,000 and in default of payment whereof to undergo further simple Imprisonment for six months.

' All. The sentences were to run concurrently and the benefit of section 382-B, Cr.P.C. Was extended to the appellant.

4. Feeling aggrieved, Hassan-appellant challenged the aforesaid judgment through the instant appeal, while through Murder Reference No.21 of 2002 the learned trial Court sought confirmation of the death sentence awarded to the appellant by it. We propose to dispose of both these matters through this single judgment.

5. During pendency of the appeal Crl. Misc. No.840 of 2002 had been filed seeking acquittal of the appellant on the basis of compromise statedly effected between the appellant and the legal heirs of Abdul Majeed Dhando. For verification of the compromise the matter was referred to the learned Sessions Judge, Rahim Yar Khan, who vide report dated 26-8-2002 has verified that Abdul Majeed Dhandodeceased was survived by the following legal heirs:-- (2)Ghulam Muhammad, father.

(3)Mst. Qaim Khatoon, mother.

(4)Mst. Shaman Mai alias Shamim, widow.

(5)Muhammad Saleem, minor son.

(6)Mst. Razia Bibi and (6) Sakina Bibi, minor daughters.

' The learned Sessions Judge also recorded the statements of Ghulam Muhammad, Mst. Qaim Khatoon and Mst. Shaman Mai, who stated before him that they had granted "Afw" to the appellant and had waived their right of "Qisas" with their free will and consent.

6. The afore.-mentioned legal heirs are also present before this Court today and they have reiterated that they had entered into compromise with the appellant and had granted "Afw" to him in the name of Almighty "Allah" with their free will and accord. They had no objection if the appellant was acquitted of the charge. The interest of the minor legal heirs of the deceased namely Muhammad Saleem, Mst. Razia Bibi and Mst. Sakina has already been looked after through Mutation No.890 dated 25-10-2002 (certified copy whereof has been placed on the record).

According to which, agricultural land measuring 18 Kanals, 6 Marlas worth Rs.1,25,000 has been mutated in favour of the minor children of the deceased.

7. After going through the report submitted by the learned Sessions Judge, Rahim Yar Khan-, statements made by the adult legal heirs of the deceased before this Court and after perusing the mutation, we are of .The considered opinion that the compromise effected between the parties is quite genuine and it will be in the interest of justice if the said compromise is accepted and blessed by this Court.

8. The upshot of the whole discussion is that Cr. Misc. No.840 of 2002 is allowed and this appeal is accepted on the basis of compromise effected between the parties to the extent of conviction of the appellant for offence under section 302(b), P.P.C. Resultantly conviction and sentence of Hassan-appellant under section 302(b), P.P.C. Is set aside. Murder Reference No.21 of 2002 is answered in Negative.

9. Now coming to the convictions and sentences of the appellant for offences under sections 458/394/392, P.P.C. The learned counsel for the appellant has, at the very outset, submitted that he would not press this appeal on merits to the extent of above mentioned offences and would pray for reduction of the sentences in view of the compromise effected between the parties relating to the commission of murder of Abdul Majeed Dhando-deceased.

10. The learned A.A.-G. Has frankly . Stated that since the conviction was being maintained, he had nothing much to say as the quantum of sentence lied within the discretion of the Court.

11. We have heard the learned counsel for the parties at length and gone through the record. We have noticed that the learned counsel for the appellant has rightly not pressed this appeal on merits, as P.W.1/complainant Zafar Iqbal and Muhammad Rahseed have given the consistent and straightforward account of occurrence. Despite lengthy cross-examination their credibility could not be shaken. Their statements stand corroborated by the circumstances and the other pieces of evidence recorded by the learned trial Court, therefore, we maintain the convictions of the appellant under section 458/394/392, P.P.C. However, we have seriously considered quantum of sentence. The legal heirs of the deceased have entered into compromise with the appellant and resultantly the appellant stands acquitted of the charge under section 302(b), P.P.C. Compromise can be considered as a valid ground for reduction of sentence. We are fortified in our view by placing reliance on the dictum laid down by the Honourable Supreme Court of Pakistan in the case of Miihammad Hanif v. The State 2002 SCM R 1979.

12. In the light of the above discussion, we maintain the conviction of the appellant for offence under section 458, P.P.C. And reduce his sentence from ten years' R.I. To five year's R.I. Similarly, while maintaining the conviction under section 394, P.P.C. We reduce the sentence from seven years' R.I. To five years' R.I. The sentence of fine and the sentence passed under section 392, P.P.C.

Are maintained. All the sentences would run concurrently. Benefit of section 382-B, Cr.P.C. Already granted to the appellant is maintained.

13. With the above modifications, this appeal is partly allowed.