' KHAWAJA NAVEED AHMED, J.---This Appeal was filed by appellants Mukhtar Ali son of Anwar Ali, Aamir Ail son of Anwar Ali, Khalida wife of Aamir Ali and Sabiha wife of Mukhtar Ali. Both the couples were convicted and sentenced by the learned III Additional Sessions Judge, Karachi (Central) by Judgment, dated 13-7-2001 in Sessions Case No.24 of 1998, which was registered on the basis of F.I.R. No. 304 of 1997 of Police Station New Karachi, under sections 364-A/302/109, P.P.C. The learned trial Court had convicted them under sections 364-A and 302(a), P.P.C. For life imprisonment and fine of Rs.50,000 each and on default in payment of fine to suffer R.I. For six months more on each count.
2. The facts of the prosecution case are that complainant Ayaz Ali son of Mehmood Ali had lodged F.I.R. Stating therein that on 10-7-1997 his wife and two children, namely, Shoaib and Zohaib went to the house of his brother-in-law Muhammad Iqbal, situated at Sector 5-E, New Karachi, in connection with Meelad Shareef at 4-40 p.m. The younger son of the complainant, namely, Zohaib aged about 5 years came out of the house during Meelad for playing with other children and thereafter disappeared. Search was made to trace his whereabouts but without success.
3. On 12-7-1997 S.H.O. Gulbahar Police Station has received information that dead-body of a child aged about 5/6 years has been found lying near the garbage container of KMC, located near the wall of Government Boys Secondary School, Karachi. Police reached on the spot, shifted the unidentified dead-body to Abbasi Shaheed Hospital, Karachi and thereafter in the mortuary. The dead-body was kept in the cold storage of Edhi amongst the unknown dead bodies but subsequently parents of the deceased identified it. On 14-9-1997 accused Aamir Ali and his wife Khalida were arrested while on 16-9-1997 accused Mukhtar Ali and his wife Sabiha were arrested.
Police after collecting the evidence against both the couples had challaned them in the Court.
4. At the trial, the Court had examined P.W.1 Ayaz Ali, P.W.2 Tanvir Ali, P.W.3 Mst. Habiba, PW.4 Muhammad Iqbal, P.W.5 A.S.-I. Manzoor Hussain, P.W.6 Inspector Malik M. Akbar, P.W.7 A.S.-I. Razia Sultan, P.W.8 DSP Ch. Anwar Ali and P.W.9 Dr. A. Hameed and had recorded statement of accused.
The accused had not examined themselves on oath. The trial Court after recording evidence had convicted and sentenced the accused/appellants as under:--
(1) accused Mukhtar Ali for abducting of accused Zohaib, a minor of 5 years of age, under section 364-A, P.P.C. For demanding ransom from the complaint, father of the deceased, and committing Qatl-e-Amd of the deceased by causing him acute head injury by hard and blunt object under section 302(a), P.P.C. Is awarded life imprisonment and a fine of Rs.50,000 or in default thereof to undergo R.I. For six months more on each of the above three counts;
(2) accused Mukhtar Ali for 'keeping the deceased boy in wrongful confinement, under section 342, P.P.C. Is sentenced to suffer R.I. For one year;
(3) accused Mukhtar Ali for distorting the face of the deceased boy to cause disappearance of the evidence of offence in order to screen him and the co-accused from the commission of the offence, is awarded R.I. For seven years;
(4) accused Aamir Ali for sharing common intention with the accused Mukhtar Ali in commission of the offence under sections 364-A/365-A/302/342/201/34, P.P.C. Is conjointly sentenced to suffer imprisonment for life, and a fine of Rs.50,000 or in default thereof to undergo R.I. For six months more;
(5) accused Khalida and Sabiha for sharing common intention with the accused Mukhtar Ali and Aamir Ali in the commission of the above offences are also conjointly sentenced to imprisonment for life and to pay fine of Rs.50,000 or in default thereof to undergo further R.I. For six months more.
' Sentences awarded to accused Mukhtar Ali are directed to run concurrently. The accused are extended benefit of section 382-B, Cr.P.C.
' The amount of fine, if deposited, be paid to the complainant as compensation under section 544, Cr.P.C.
5. Thereafter, the appellants preferred present Criminal Appeal impugning the judgment of trial Court. During the pendency of the Appeal, the parties have compromised the case and had submitted MA Nos.1709 of 2002 and 1710 of 2002 on which this Court on 10-2-2003 has passed the following orders:- "Mr. Ayaz Ali and Mst. Habib father and mother of the deceased are present Court. They admit the contents of the two applications listed at serial Nos. 1 and 2 as well as their signatures on these applications. They state that in the name of Almighty Allah they had forgiven the four appellants, therefore, the conviction awarded to them by the trial Court may be set-aside.
It seems that the appellants have been convicted under sections 364-A, 302 and 109, P.P.C. Out of which section 364-A is not compoundable. Learned counsel for the appellant is, therefore, directed to satisfy this Court as to the maintainability of the two applications on this grounds.
' Adjourned to 24-2-2003. Production order for appearance of appellants in Court may also be issued for the next date."
6. Today, I have heard Mr. Kashif Haneef, Advocate for the appellants and Mr. Fazalur Rehman Awan, Advocate for the State. Mr. Kashif has firstly relied upon the case Yousaf Ali v. State (2002 SCM R 1885). In this case the accused were convicted under sections 326, 452, 148 and 338-E, P.P.C.
During pendency of their Appeal, they have compromised all the offences except the offence under sections 452/148 P.P.C., which were not compoundable. A Full Bench of Honourable Supreme Court of Pakistan was pleased to accept the compromise under section 326, P.P.C. And had set aside the conviction while the sentence under sections 452 and 148, P.P.C., which was not compoundable, the conviction was maintained and appellants were sentenced to the period already undergone. The Honourable Supreme Court while deciding the case has observed as under:-- "(4) The complainant has already compounded the offence under section 326, P.P.C. We while considering the material available on the record along with the attending circumstances find that it is a fit case for reduction of sentence of the petitioners under sections 452/148, P. P. C . "
7. The learned counsel for the appellants has also relied upon the case of Nazir Ahmad v. State (2007 PCr.LJ 185). In this case, the accused was convicted and sentenced under sections 396 and 460, P.P.C. Parties had submitted the compromise application. The offences were not compoundable. The learned single Judge of Lahore High Court was pleased to uphold the conviction but keeping in view the compromise arrived at between the parties, reduced the sentence of the appellant to already undergone. The relevant portion of the judgment reads as under:-- "(7) The findings of the learned trial Court are based on correct elaborate and careful examination of the record and do not suffer from any illegality on account of misreading and non-reading of any material piece of evidence. The legal heirs of the deceased have compromised with the appellant. However, the offences under sections 396 and 460, P.P.C. Are non-compoundable offences as provided in Schedule II of the Code of Criminal Procedure. The appellant has already served out 2-1/2 years of his sentences and keeping in view that the legal heirs of the deceased have forgiven the appellant in the name of Almighty Allah, I find it a fit case for reduction of sentences of the appellant. Reliance is placed upon Yousaf Ali and others v. The State 2002 SCM R 1885 and reference is made to the case of Sultan Mehmood and another v. The State 1986 PCr.LJ 2410.
(8) For what has been discussed above, this appeal is dismissed and the appellant's convictions are upheld; However, sentences are reduced to the period already undergone. The fine imposed by the learned Court is also reduced from Rs.50,000 to Rs.25,000 for each offence and in default thereof to undergo 3 month's S.I. Each."
8. The learned counsel for the appellants next cited the case of Younis v. State (2007 YLR 3060). In this case, the accused were charged with offence punishable under section 302(b) read with sections 459 and 460, P.P.C. The Lahore High Court during pendency of the Appeal was pleased to accept the compromise under section 302, P.P.C. And set aside the sentence while the sentence in non-compoundable offences, sections 459 and 460, P.P.C., was reduced to already undergone.
Similarly is the position in the case of Sultan Mehmood v. State 1986 PCr.LJ 2410. In this case a learned Single Judge of Lahore High Court has observed that compromise between parties in a non-compoundable offence should be accepted as a ground for reduction of sentence and reduced the sentence of 5 years' R.I. Under section 307/34, P.P.C. To the one already undergo. The learned counsel for the appellant lastly cited the case of Ali Raza v. State (2007 YLR 279). In this cited case the sentence under section 353, P.P.C. Was reduced to the one already undergone in consequence of compromise between the parties on the main charges.
9. On the other hand, Mr. Fazalur Rehman Awan, learned counsel for the State, keeping in view the case law cited by the learned counsel for the appellants, supports his contention and says that appellants have served more than 10 years in jail and if the sentence in a non-compoundable offence is reduced to already undergone, he will have no objection.
10. I have heard both the learned counsel and have gone through the case law produced by the learned counsel for the appellants. I accept the compromise between the parties in case under section 302(b), P.P.C. And set aside the sentence and conviction of the appellants under section 302(b), P.P.C. While their conviction under section 364-A, P.P.C. Is upheld. Their sentence is reduced to the one already undergone on each count. Fine of Rs.50,000 is also reduced to Rs:5,000 each and in default of payment of fine the appellants shall suffer S.I. For another fifteen days.
' This Criminal Appeal is disposed of with above modification in the impugned judgment.