1. Appellants Usman son of Urs, and Ghulam Nabi son of Mehar alongwith co-accused Ilyas were tried by the learned Additional Sessions Judge, Nau Shahro Feroze and vide his judgment, dated 24-2-1992, both the appellants Usma n and Ghulam Nabi were convicted under section 311, P.P.C.
2. And sentence: to R.I. For ten years as Tazir while co-accused Ilyas was acquitted.-Both the appellants have challenged their conviction through this appeal.
3. Briefly, the fads of the case are that the complainant Sain Rakhio alongwith his son deceased Moula Bux had gone to Bhirya and were returning to their village in a Bus. They got down at village Jalbani where P.W. Kauro and P.W. Rasool Bux had also got down from the Bus. All of them were moving towards their village. When they reached near the land of Haji Ghulam Nabi Khan Jalbani; it is alleged that at that time, the accused Usman, Ghulam Nabi and Ilyas all came out from cotton cultivation being armed with hatchets, and accused Usman caused hatchet blow to Moula Bux on his face accused Ghulam Nabi and Ilyas caused hatchet injuries on his leg. On the cries of the complainant P.Ws. Kauro and Rasool Bux came running thereafter the accused ran .Away, while Moula Bux died at the spot. Thereafter, the complainant went and lodged the report at the Police Station Nau Shahro Feroze on 25-12-1979.
4. After usual investigation police sent up all the three accused for trial for offence under section 302/34, P.P.C. Prosecution examined complainant Sain Rakhio, P.W. Kauro, P.W. Rasool Bux, P.W.
5. Manzoor Hussain, P.W. Muhammad Yousif, P.W. Khuda Bux, Mashir, P.W. Dr. Abdul Razak, Medical Officer and P.W. Muhammad Azim Ghoto Investigating Officer and lastly Mukhtarkar Nau Shahro Feroze. All three accused in their 342, Cr.P.C statements have claimed to be innocent, falsely implicated due to enmity. All the three accused did not-examine themselves on oath. Accused Usman and Ghulam Nabi did not examine any defence witness, but co-accused Ilyas examined three defence witnesses.
6. At that stage accused Ghulam Nabi and Usman appeared to have compromised the matter with the legal heirs of the deceased, as such an application under section 345, Cr.P.C. Was moved. The appellants had moved' an application for seeking permission to compound the offence with the legal heirs of the deceased and they also submitted the application for compromise. The learned trial Court allowed permission and also accepted the compromise, but the trial Judge thereafter passed the judgment and convicted the appellants under section 311, P.P.C..
7. The learned counsel for the appellants has referred to page No.3 of the judgment to show that applications (Exhs.29 and 30) one for permission to grant compromise and the other showing compromise between the parties were actually filed before the trial Court and he has referred to page No.11 of the judgment to show that both these applications were allowed by the trial Court, but the trial Court misread the provisions of section 311, P.P.C. And illegally convicted the appellants.
8. In this case since the matter has been compromised within the parties, therefore, the merits of the case are not being touched. It is correct that matter has been compromised between the parties and to that effect the application Exh.29 which is for grant of permission to compromise while Exh.30 is compromise application duly signed by the legal heirs as available on the record of the lower Court. As the same prayer of compromise was made in this Court, therefore, the direction was given to the learned counsel to call all the legal heirs, and the appellants were also summoned. On 30-4-1992 all concerned appeared before this Court and it was specifically verified whether the compromise has really taken place or not. All the legal heirs confirmed so also the appellants that the matter has been amicably compromised between the parties and the legal heirs have waived their right of Qisas. The heirship certificate duly issued by the office of Mukhtarkar Bhirya has also been placed on record. The legal heirs have also filed their affidavits, in which they have confirmed the factum of compromise and the waiver of Qisas under section 309, P.P.C. It may also be noted that under section 345, Cr.P.C. An amendment has been made and under subsection (2) the offence under section 302, P.P.C. Is made compoundable with the permission of the Court and the compromise is permissible by the legal heirs of the deceased.
9. In this view of the matter since the legal heirs have compromised with the appellants, therefore, there should be no impediment in this compromise.
10. I may also observe that the learned trial Court has misread the provisions of section 311, P.P.C. And after having allowed the compromise application, the trial Judge had no other option but to accept the compromise. In this regard, I may refer to section 311, P.P.C. Which is applicable in those cases where there is no compromise regarding the case as a whole and only right of Qisas is waived under section 309, P.P.C. Or if there is compounding right of Qisas under section 310, P.P.C.
11. Then only the discretion provided under section 311, P.P.C. Become available. It may be noted that the compounding of Qisas and compounding of offence are two separate terms. Compounding of 8 offence is provided by section 345, Cr.P.C. While compounding of Qisas is under section 310, P.P.C.
12. In the present case, the compromise was not in respect of compounding of Qisas, but .It was in respect of compounding of offence and since the learned trial Judge had granted the permission and also accepted the compromise, therefore, the only option left with the trial Court, was to pass the necessary orders under section 345(6), Cr.P.C. And acquit the accused.
13. Since the compromise between the parties has already taken place the permission to compromise has already been granted by the trial Court and the compromise application has also been allowed by the Trial Court as observed in the judgment at page 11, therefore, the conviction and sentence awarded to the appellants arc hereby set aside, and, as an effect of the compromise both the appellants are acquitted under section 345, subsection (6), Cr.P.C.
14. By a short order dated 6-6-1992, the appeal was allowed by way of compromise. These are the reasons for the same.
15. N.H.O./U-131/K