NAIMATULLAH PHULPOTO, J:- Appellants Faisal Hussain son of Ayaz Hussain, Zohaib Hussain of Ayas Hussain and Abu Bakar son of Azhar Islam were convicted for offences under sections 302(b) and 201, PPC, registered at police station Landhi, Karachi East vide No.174/2003, vide judgment dated 22.12.2012 handed down by learned 1st Additional Sessions Judge, Karachi East. Appellant Faisal Hussain son of Ayaz Hussain was convicted under section 302, PPC and sentenced to death. Trial Court made reference for confirmation of his death sentence. Appellant Faisal Hussain was also directed to pay fine of Rs.100,000/- and in case of default he was ordered to suffer SI for one year.
Accused Zohaib Hussain son of Ayaz Hussain and Abu Bakar son of Azhar Islam were convicted under section 302, PPC for imprisonment of life and to pay fine of Rs.100,000/- each. In case of default in payment of fine they were directed to suffer SI for six month more. Accused were convicted under section 201, PPC and sentenced to 7 years R.I. each and to pay fine of Rs.25,000/- each and in case of default in payment of fine they were ordered to suffer SI for six months more.
Trial Court acquitted accused Muhammad Adil, son of Muhammad Anwar, Muhammad Irfan son of Sher Muhammad, Fazil Hussain sonof Ayaz, Mst. Huma Ayaz alias Shamim wife of Ayaz Hussain and Mst. Saleha alias Lubna wife of Ahmed. Appellants Zohaib Hussain and Faisal filed appeal through jail.
2. Compromise application was filed by appellant Abu Bakar. Report was called from learned 1st Additional Sessions Judge, Karachi East regarding genuineness of the compromise arrived at between the parties. Report was received. Thereafter, compromise application to the extent of appellant Abu Bakar was allowed vide order dated 06.02.2014 for offence under section 302(b), PPC. Appellant Abu Bakar was acquitted for offence under section 302(b), PPC. So far as section 201, PPC was concerned it was not compoundable and it was ordered that appeal to the extent of section 201, PPC shall proceed in accordance with law. It was further ordered that appellant Abu Bakar shall deposit diyat amount of Rs.140,000/- in favour of Muhammad Nisar (disabled person), one of the legal heirs, with the Nazir of this Court, who shall deposit the said amount in some profitable scheme. Compromise application was partly allowed in the above terms.
3. Thereafter, application was submitted on behalf of appellant Abu Bakar that section 201, PPC was not applicable and defence counsel relied upon various judgments. This Court vide order dated 26.03.2014 while relying upon the case PIRAN DITTA versus THE STATE (1977 PCr.LJ 1066) observed as under:- "In view of this position, we are of the view that since the appellant Abu Bakar himself was a prime accused for committing murder and has been convicted under section 302/34, PPC, therefore, his conviction under section 201, PPC cannot sustain, which is set aside and the appellant Abu Bakar is acquitted so far as the charges of Section 201, PPC is concerned. He shall be released forthwith, if not required in any other case.
4. Thereafter, appellant Faisal Hussain and Zohaib Hussain submitted compromise application and application for permission to enter into compromise. Compromise application was sent to the trial Court for ascertaining the genuineness of the compromise or otherwise. Report of the trial Court dated 05.01.2016 is received in which it is mentioned that according to the statement of complainant Shafiq-ul-Bari, deceased Shamshadul Bari was unmarried, his mother Mst. Anis Fatima and his sister Mst. Hussun Ara were his surviving legal heirs at that time. It is further mentioned in the report that his mother Mst. Anis Fatima and sister Mst. Hussun Ara have also expired now and complainant Shafiqul Bari is the only surviving legal heir of the deceased. Along with statement of complainant Shafiqul Bari death certificates of Mst. Anis Fatima (mother) and Mst. Hussun Ara (daughter) were produced before trial Court.
5. Ms. Erum Khan, learned counsel for appellants Faisal Hussain and Zohaib Hussain submits that offence under section 302, PPC is compoundable and conviction of appellants under section 201, PPC would not sustain, in view of the dictum laid down in the case of PRIAN DITTA (supra). Learned counsel for the appellants has also referred to the earlier order dated 26.03.2014 passed by this Court. Learned counsel for appellants submits that Muhammad Nisar, legal heir of late Mst. Hussun Ara is a mad and disabled person. Learned counsel for the appellants however submits that appellants are prepared to pay Rs.140,000/- each in favour of Muhammad Nisar (disabled person), son of legal heir, namely, Mst. Hussun Ara, the sister of the deceased.
6. Mr. Muhammad Iqbal Awan, learned Assistant Prosecutor General Sindh, recorded no objection to compromise application in the light of report of trial Court.
7. Offence under section 302, PPC is compoundable, with permission of Court. For the satisfaction of the Court, complainant Shafiqul Bari, one of the legal heirs of deceased appeared before this Court and stated that he has forgiven appellants Zohaib Hussain and Faisal Hussain in the name of Allah and did not claim any compensation/qisas. Legal heir Muhammad Nisar is stated to be disabled and made person. Learned trial Court has conducted enquiry in the matter. Inspite of publication, no other legal heir appeared before trial Court. We, therefore, allow compromise application for better relation between parties in future and acquit both appellants in offence under section 302(b), PPC. As regards to section 201, PPC is concerned, in view of the dictum laid down in the case of PIRAN DITTA (supra) and order passed by this Court dated 26.03.2014, conviction cannot sustain under section 201, PPC. We, therefore, set aside conviction under section 201, PPC to appellants Zohaib Hussain and Faisal Hussain are acquitted in offence under section 201, PPC, they shall be released forthwith, if not required in any other case, however, subject to deposit of Rs.140,000/- each, in favour of Muhammad Nisar (disabled person) with the Nazir of this Court, who shall deposit the said amount in some profit bearing scheme. The legal heir of the deceased mentioned above shall draw the profit for utilization of the same for the welfare/treatment of disabled Muhammad Nisar, as per law.
8. Resultantly, reference made by the trial Court for confirmation of death sentence awarded to appellant Faisal Hussain is answered in negative.
9. Consequently, Criminal Jail Appeal No.174 of 2013, Confirmation Case No.01/2013 and Criminal Jail Appeal No.65 of 2013 are accordingly disposed of.