1. ' MUHAMMAD IQBAL KALHORO, J.--The appellant namely Muhammad through the appeal in hand has called in question the conviction and sentences passed on him through the impugned judgment dated 9-10-2013 by the 3rd Additional Sessions Judge, Dadu in following terms:--
(i) Under section 364, P.P.C. 10 years' R.I. Along with fine of Rs,50,000, in default thereof to further undergo S.I. For six months.
(ii) Under section 302(b), P.P.C. R.I. For life as Tazir.
(iii) To pay compensation of Rs,200,000 to the legal heirs of deceased Manthar as provided, under section 544-A, Cr.P.C. In default thereof to further undergo S.I. For one year.
2. ' Precisely, the allegations against the appellant contained in the FIR are that on 9-9-2007 at 0300 to 0400 hours, he along with co-accused Ali Sher, Asghar and Atta Muhammad duly armed with Klashankovs and guns came at the otaq of complainant wherefrom dragged out three sons of the complainant namely Muhammad, Gulzar and Manthar, when they arrived at Dadu Moro road near Gopang bridge, accused Ali Sher directly fired from his KK upon the deceased Manthar, whereas the appellant is also alleged to have fired from his gun at the deceased along with other co- accused.
3. ' The learned trial Court at the conclusion of trial, found the accused guilty of offence he was charged with him and in above terms convicted him vide judgment dated 9-10-2013.
4. ' During pendency of the instant appeal, the joint applications under sections 345(2) and 345(6), Cr.P.C. Bearing MA-2369/14 and MA-2370/14 were filed by the appellant together with parents of deceased Manthar namely Muhammad Yousif and Mst. Sakina being his legal heirs, seeking permission to compound the offence and consequent whereupon the acquittal of the appellant on the basis of compromise reached between them, on the mediation of Headmen of the locality, as a result whereof the above legal heirs of deceased pardoned the appellant.
5. ' Vide order dated 7-4-2014 report was called from the learned trial court for ascertaining the genuineness or otherwise of the compromise between the parties, which was received on 28-6- 2014. According to that, the deceased being unmarried left behind his parents Muhammad Yousif and Mst. Sakina, as his legal heirs who had appeared and got their statements recorded before the learned trial court reiterating the contents of their affidavits in support of compromise and further asserted that they compromised with the appellant because of mediation by Headmen of locality on the Holy Quran, and they had forgiven him in the name of Almighty Allah and had waived off their right to Qisas and Diyat, they also did not claim any compensation from the appellant. The report further shows that a notice regarding compromise between the parties was published in daily 'KAWISH' dated 16-4-2014 for the purpose of finding out any objection thereto from any quarter but no one took exception to it.
6. ' On 14-7-2014 the parents of deceased named above reaffirmed the factum of compromise with the appellant before this court by stating that they had forgiven him on Holy Quran.
7. ' Heard and perused the record available on the court file.
8. ' Learned counsel for the appellant argued that the appellant may be acquitted in view of compromise reached between the parties on the intervention of Headmen of the locality. He further argued that the factum of compromise would foster the peace and amity between the parties. He also argued that there is no impediment in the way of accepting, applications under sections 345(2) and 345(6), Cr.P.C, as in the case the vires of fasad-fil-arz is not attracted.
9. Regarding compensation, learned counsel for appellant stated that the quantum of amount be substantially reduced as the appellant being poor person cannot afford to pay it in lump sum simultaneously. On the point of conviction under section 364, P.P.C. He submitted that the same is not sustainable under the law as neither the charge under that section was framed nor the appellant was put to explain any such circumstances by the trial court'in his statement recorded under section 342, Cr.P.C. Lastly he, however, stated that he would not press his appeal against the conviction under section 364, P.P.C. If sentence of the appellant is modified and reduced to one already undergone by him and in support of his such contention, he relied upon the case of Mumtaz and others v. The State (2008 YLR 2400).
10. ' Learned counsel for the complainant has recorded no objection to the acquittal of appellant in terms of section 345(6), Cr.P.C. On the basis of compromise.
11. ' Learned DDPP appearing on behalf of the State after examining the whole record has extended his no objection and further stated that the acceptance of compromise between the parties by this court would wash out the acrimony, enmity and bad feelings between the parties. With reference to the conviction and sentence under section 364, P.P.C., he stated that the same may be dealt with in the light of aforesaid reported case.
12. It is to be noted that the appellant has been convicted under section 302(b), P.P.C. In addition to section 364, P.P.C. Admittedly, the offence under section 302(b), P.P.C. Is compoundable in terms of section 345 Cr.PC. And in that offence the legal heirs with the permission of the court can enter into compromise with the appellant at any stage. The legal heirs of deceased have admitted before this court the factum of compromise with the appellant and have categorically stated that under the mediation of Nek Mards of the locality they have forgiven the appellant on the name of Holy Quran. They further admitted in their statements to have waived off their claim to the right of Qisas and Diyat and recorded no objection to the acquittal of the appellant on the basis of compromise.
13. The compromise is likely to bring forth harmony, peace and tranquility between the parties which are necessary elements to pave the way for the progress and uplift of any society or a group of a society. There appears no obstacle or impediment in permitting the parties to enter into compromise. The prosecution story reflects that the principle of fasad-filarz is also not attracted in the present case as admittedly the motive for the incident is claimed to be an old enmity between the parties and the role assigned to the appellant in evidence is general in nature that he along with co-accused had fired upon the deceased. The specific role of causing fatal firearm injuries through KK to the deceased Manthar is assigned to the main accused namely Ali Sher.
14. ' The fact that the main offence in relation to the murder of deceased Mola Bux has been compounded cannot be lost sight of, therefore the question for quantum of sentence under section 364, P.P.C. Can be examined accordingly. Taking guidance from the case-law reported in PLD 2014 SC 383 wherein after acceptance of compromise between the parties the conviction and sentence of death under section 302(b), P.P.C. Was set aside and death sentence under section 7 of ATA was converted into life imprisonment, I am of the view that on same analogy as well as in the light of case-law reported in 2008 YLR. 2400, the conviction and sentence of appellant under section 364, P.P.C. Can be altered.
15. ' Although the counsel for the appellant has not pressed this appeal against the conviction and sentence recorded under section 364, P.P.C. On merits by submitting that he would be satisfied if the conviction and sentence of 10 years under section 364, P.P.C. Is modified and reduced to the period already undergone by the appellant. But in order to set right the proposition of law, without deeply examining the question as to whether the trial Court by simply referring to Section 237, Cr.P.C. In his judgment was competent to convict the accused under section 364, P.P.C. Without framing charge thereto and without putting such incriminating piece of evidence to the appellant in his statement under section 342, Cr.P.C. For the purpose of affording him an opportunity to explain such circumstances. I would like to add few words that Section 237, Cr.P.C. Must be construed strictly. Where at the time of framing of the charge evidence produced by the prosecution reveals as to what offence was prima facie made out and under that particular offence the charge was framed, Section 237, Cr.P.C. Would not apply. Accused charged for an offence cannot be convicted for a distinct offence which has no nexus with the particulars of the main offence. For instance, an accused charged for the offence of kidnapping cannot be convicted for the offence of stealing or misappropriation. Section 237, Cr.P.C. Is controlled by section 236, Cr.P.C. And therefore, application thereof is limited in those cases only which fall within the provisions of Section 236, Cr.P.C. It is helpful to reproduce Sections 236 and 237, Cr . P. C .
16. Respectively:-- "Section 236. When it is doubtful what offence has been committed. If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.
17. ' Section 237.When a person is charged with one offence, he can be convicted of another. (1) If, in the case mentioned in section 236, the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed although he was not charged with it."
18. It is not out of place to state here that provisions of section 342, Cr.P.C. Are mandatory in nature.
19. The same are based on the principle embedded in the maxim audi alteram partem viz. No one should be condemned unheard. The accused shall not only be heard to the extent of prima facie case proved against him but on every circumstances appearing in evidence against him as such a duty is caste upon the trial Court to put questions to the accused on every piece of incriminating evidence which has been recorded against him in evidence so that accused. Could be enabled to explain the adverse circumstances appearing in evidence. The non-compliance of mandatory provisions under section 342, Cr.P.C. Are not curable and would amount to miscarriage of justice.
20. For what has been discussed above, the application under section 345(2), Cr.P.C. Is allowed with the result the parties are permitted to compound the offence under section 302(b), P.P.C.
21. Consequently, the appellant is acquitted of the above charge under section 345(6), Cr.P.C. The sentence of 10 years R.I. Recorded under section 364, P.P.C. Is modified and reduced to one already undergone by the appellant. The impugned judgment however, shows that the appellant has also been burdened to pay compensation of Rs,200000 to the legal heirs of the deceased, the appellant cannot absolve himself from the responsibility of making such payment of amount as stipulated under section 544-A, Cr.P.C. Irrespective of the compromise between the parties, however in the light of obtaining circumstances in the present case the same could also be reduced. The reference can be made to the case-law of Shehzad Ahmad alias Mithu v. State (2005 PCr.LJ 1316).
22. As a result of above, the amount of compensation to be paid to the legal heirs is reduced from Rs,2,00000 to Rs,1,000,00, the appellant shall be released subject to his furnishing surety bonds/undertaking to the effect that he shall pay the amount of compensation viz Rs,100,000 within a period of one year through equal instalments. In case of default in payment of two consecutive installments the amount of compensation shall be recovered from the appellant as arrears of land revenue.
23. ' Accordingly the instant appeal is disposed of.