' FAZAL-E-MIRAN CHAUHAN, J.---This judgment will dispose of Murder Reference No.867 of 2002 and Criminal Appeal No.945 of 2002 filed by Syed Niaz Hussain Shah v. State, who was convicted and sentenced by learned Sessions Judge, Rajanpur vide his judgment dated 11-11-2002 as under:--
(i) Niaz Shah, appellant under section 302(b), P.P.C. And sentence him to death as Tazir for murder of Qatl-e-Amd (wilful intentional murder) of Akbar Shah and injured Asghar Shah, Malook Shah and Akhtar Shah and with a fine of Rs.20,000 as compensation to the legal heirs of Akbar Shah deceased under section 544-A, Cr.P.C. Or in default to undergo six months R.I. He was ordered to be hanged by neck till death. He was also ordered to undergo R.I. For three years in each count and also to pay Rs.5,000 (on three counts) for his murderous assault on Akbar Shah, Asghar Shah, Malook Shah or in default of payment of the same to further undergo R.I. For three months. All the sentences were ordered to run concurrently. He was also given benefit of section 382-B, Cr.P.C.
2. Occurrence in this case took place on 10-11-2002 at 11-00 p.m. Within the jurisdiction of Police Station Rojhan, District Rajanpur. Matter was reported at 11-00 p.m. On 11-11-2002 on the next day by Muhammad Iqbal Shah son of Malook Shah, complainant/P.W.4 and formal F.I.R. Exh.P.B. Was recorded by Muhammad Azeem Khan Niazi, Inspector, S.H.O. Police Station Rojhan/P.W.10.
3. Brief facts of the case are that on the day of occurrence at 11-00 p.m. The complainant along with Malook Shah (deceased) his father, Ghulam Akbar Shah (injured), Asghar Ali Shah (injured) both sons of Faqir Shah, paternal uncle of the complainant, Akhtar Hussain Shah (injured) son of Ghulam Akbar Shah, a son of paternal uncle of the complainant and Nadir Shah son of Karam Hussain Shah, relative of the complainant, went to the house of Niaz Ahmad Shah (accused) and Sikandar Hussain Shih (accused) son of Ejaz Shah at Dera Dildar. As mother of Niaz Ahmad Shah is sister of the complainant's father and his uncle, therefore, they went to bring her from her house.
The complainant said to Niaz Ahmad Shah that despite of the fact that he was Kala as he had illicit relation with the wife of Nazir Shah, complainant's uncle as he had not effected any compromise on with the complainant-party, therefore, they had come to take back their sister, mother of the accused Niaz Shah and Sikandar Shah refused to send their mother along with the complainant's father and uncles and used harsh language. Thereafter Niaz Hussain Shah and Sikandar Shah got up, went into their residential house and came out while Niaz Ahmad Shah was armed with a Klashnikov and Sikandar Hussain Shah was armed with a gun .12 bore. They raised Lalkara to complainant's father and uncles that they would teach them a lesson in view of their demand for sending their sister to their house and for accusing "Kali Kala". Niaz Ahmad Shah fired a burst of.
Klashnikov at Malook Shah, Ghulam Akbar Shah, Asghar Ali Shah and Akhtar Hussain Shah. All of them fell down after receiving the injuries. Thereafter Sikandar Shah fired with his gun at Asghar Ali Shah hitting at his left arm. As the complainant and Nadir Ali Shah' were empty-handed, therefore, they did not go near Niaz Ahmad Shah and Sikandar Shah. The accused fled away along .With their children, while firing with their weapons. On hearing the reports of firing and noise, neighbours of the accused attracted to the scene. Ghulam Akbar Shah had received fire shot at the left side of his back and he succumbed to the injuries. Malook Shah, father of the complainant, received a fire- shot on his left leg. Asghar Shah received fires on his head, both the hands, back and on the left arm. Akhtar Hussain received fire-shots at his head and right hand etc.
4. Motive behind the occurrence was three years prior to the occurrence, Niaz Shah was declared Kala due to his illicit liaison with the wife of Nazir Shah (Mst. Naheed) paternal uncle of the complainant. Niaz. Shah accused did not concede to this allegation. Therefore, on the day of occurrence, the complainant along with his father, and uncle went to the house of. Niaz Shah accused to bring back sister of his father. Niaz Shah and Sikandar Shah felt annoyed and in furtherance of their common intention murdered Ghulam Akbar Shah and injured others in an attempt to murder them.
5. After registration of the formal F.I.R., Muhammad Azeem Khan Niazi, P.W.10, Inspector/S.H.O.
Proceeded to the place of occurrence, prepared injury statement Exh.P.O. And inquest report Exh.P.O./1 of the dead body of Ghulam Akbar Shah (deceased), sent the dead body to the mortuary under escort of Khalil Ahmad Constable for Post-Mortem Examination. He also prepared the injury statement of Asghar Ali Shah (injured) Exh,P.P., Akhtar Hussain Shah injured Exh.P.Q., Malook Shah injured Exh.P.R. And sent the injured along With Walayat Hussain Constable No.199/C to Hospital Rojhan for the medical examination. He secured the blood-stained earth separately from the place of murder of Ghulam Akbar Shah (deceased), vide memo. Exh.P.C. From the place where Asghar Shah injured fell down on the receipt of injuries, vide memo. No.Exh.P.B. From the place where Akhtar Hussain injured fell down after receiving fire-arm injury, vide memo. Exh.P.E. From the place where Malook Shah injured fell down after receipt fire-arm injury. Vide memo. No.Exh.P.F. He separately sealed parcel of the above bloodstained earth samples. He also took in possession crime empties of .222 rifle, lying around the place of murder of Ghulam Akbar Shah. Exh.P.9/1-15 vide memo.
Exh.P.G. And made these empties into seal parcel. He took into possession wooden piece (broken of .12 bore gun). P.3 a hatchet P.4, another hatchet- P.5, and a stick P.6, lying near the place of murder of Ghulam Akbar Shah vide memo. Exh.P.H. He recorded statements of P.Ws. He prepared rough site-plan of-the place of occurrence Exh.P.S. He arrested both accused Niaz Shah and Sikandar Shah. At the time of arrest Niaz Shah rifle .222 P.7 and five live bullets Exh.P.8/1-15 were recorded from his possession vide memo. Exh.P.N. He also prepared the rough site-plan of the place of recovery of weapon of offence Exh.P.N.1. After completion of investigation accused were challaned to face the trial.
6. Prosecution in order to prove its case produced 10 P.Ws. In all, thereafter, the learned A.D.A.
Tendered in evidence report of Chemical Examiner Exh.P.BB, report of Serologist Exh.P.CC and report of Forensic Science Laboratory Exh.P.DD vide his statement dated 11-3-2002. Then the statement of appellants were recorded under section 342, Cr.P.C. 'They also produced in their defence D.W.1 Haji Insaf Ali Khan son of Haji Mohanda Khan. After conclusion of trial, appellant was convicted and sentenced as stated above.
7. During the pendnecy of the appeal, application under section 345, Cr.P.C. Was moved stating therein that heir of the, deceased Ghulam Akbar Shah effected a compromise with the appellants/petitioners after accepting Badla Sullah and the three injured persons Akbar Shah, Asghar Shah and Malook have also compromised with the petitioner. The compromise deed with all its annexures and documents was sent to learned Sessions Judge, Rajanpur for verification of the compromise after recording statement of legal heirs of deceased and that of injured/P.Ws. And the deceased Ghulam Akbar Shah, as well as from the statements of injured P.Ws. Ghulam Akbar Shah, Akhtar Shah and legal heirs of Malook Shah, it is evident that all the Wallis of the deceased have waived and compounded their right of Qisas, while the injured have also pardoned the convict and have compounded the offence. On behalf of the minor legal heirs of the injured namely Malook Shah, who died during the pendency of appeal.
8. The report of learned Sessions Judge, Rajanpur has been received that the surviving legal heirs of Ghulam Akbar Shah deceased, as well as from the statement of inured P.Ws., Ghulam Akbar Shah, Akhtar Shah and legal heirs of Maqbool Shah, it is evident that all the Wallis of deceased have waived and compounded their right of Qisas, while the injured have also pardoned the convict and have compounded the offence and also on behalf of the minor legal heirs of the injured Maqbool Shah, who died during the pendency of appeal.
9. Learned counsel for the State has no cavil with the proposition advanced by learned counsel for the appellant that in such-like eventuality death sentence cannot be awarded to the appellants.
10. We have heard the learned counsel for the parties. In the instant case there were two accused of the F.I.R. Niaz Shah and Sikandar Shah and Niaz Shah was convicted under section 302(B), Cr.P.C.
And section 324, ,P.P.C. For having committing Qatl-e-Amd of Ghulam Akbar Shahattempted to commit Qatl-e-Aind of Ghulam Akbar Shah, Akhtar Shah and Malook Shah (now deceased). As per verification report submitted by the learned Sessions Judge, Ghulam Akbar Shah was survived by
(i) Syed Faqir Shah (father)
(ii) Mst. Hameeda Bibi (widow)
(iii) Akhtar Shah, son
(iv) Safdar Shah, son
(v) Usman Shah (minor), son One of the injured died during pendency of appeal and is sur'ived by
(i) Iqbal Shah (son)
(ii) Sardar Shah (son)
(iii) Mumtaz Shah (son)
11. Mst. Hameeda Begum (widow), Syed Faqir Hussain Shah (father), Akhtar Shah (son), Safdar
(son) of the deceased deposed before the Sessions Judge and also before this Court that they have waived their right of Qisas and have pardoned the convict-Syed Niaz Hussain Shah and have no objection to his acquittal. Usman Shah son of the deceased is minor and on his behalf his mother compounded the offence by accepting land measuring 20 Kanals, 8 Marlas which stands transferred in the name of Usman Shah and vide Exh.P.B. Mutation No.577 dated 20-12-2004 (5-K- 10-M) and vide Exh.P.C. Mutation No.535 dated 18-10-2004, Usman Shah, Akhtar Shah and Safdar Shah were given 580 shares of 948/6744 share, legal heirs of Malook Shah were given 368 (two equal share) of 948/6744.
12. Accordingly, we feel that the compromise effected between the parties is genuine, without duress, threat or coercion and has been made voluntarily. In the interest of peace and harmony the requisite permission to compound the offences is granted.
13. Resultantly, Criminal Appeal No.945 of 2002 filed by Syed Niaz Hussain Shah is allowed on the basis of compromise arrived at between the parties. The conviction and sentence recorded by the learned trial Court against the above said appellant, is set aside. The appellant is in jail and shall be released forthwith if not required to be detained in any other criminal case. Death sentence awarded to Niaz Hussain Shah is not confirmed and Murder Reference No.867 of 2002 is answered in Negative.