' CH. EJAZ YOUSAF, J.--- This judgment will dispose of two connected appeals bearing numbers Criminal Appeal No,86/K of 2000, filed by Loung son of Allah Dino, Chum) son of Julio, Sudheer son of Rahim Bakhsh and Anwar son of Muhammad Rahim appellants and Jail Criminal Appeal No,3/K of 2001, filed by the aforenamed appellants and one another Anwar son of Dilshad Bhatti, as both the appeals arise out of the same judgment, dated 26-9-2000, passed by the learned IInd Additional Sessions Judge, Hyderabad, whereby all the five appellants aforementioned have been convicted under section 302, P.P.C. And sentenced to life imprisonment each. All the appellants have also been convicted under section 307, P.P.C. And sentenced to five years' R.I. Each. They have also been directed to pay compensation under section 544-A, Cr.P.C. In the sum of Rs,25,000 each to the legal heirs of, deceased Mashoo Kohli or in default to suffer R.I. Of two years each. They have further been directed to pay a sum of Rs,10,000 each as compensation of injured P.Ws. Or in default to further suffer R.I. For one year each. Benefit of section 382-B, Cr.P.C. Has, however, been extended to the appellants.
2. Facts of the case, in brief, are that on 19-7-1990, at about 7-15 p.m. Report was lodged by one Hassan son of Veero, Caste Merasi Kohli with Police Station Tando Allahyar wherein it was alleged that the complainant alongwith 20 other persons had come to work in the garden of Haji Siddique.
At night they used to sleep in the said garden, on the roof of Otaq. On 18-7-1990, after taking meals, they all went to sleep. At about 1-00 a.m. All of a sudden the complainant on receiving a blow on his head woke up. His cries also attracted Maloo Kolhi, Arjan Kolhi, Mashoo Magho Kolhi and Bhimloo Kolhi, who too, were sleeping on the roof of the said Otaq. In the light of an electric bulb, they identified Anwar Bhatti, Anwar Mirbehar, who had hatchets in their hands, Sudheer Mirbehar armed with a rifle, Loung Mirbehar armed with a revolver and Ashi Mirbehar and Chutoo Mirbehar carrying Lathis. All the accused persons gave beating to the complainant as well as his companions and demanded money from them which according to the culprits was paid to them on the previous night by Haji Siddique as labour charges. Since the complainant and his companions had no money with them, as labour charges, though due, were not paid by said Haji Siddique to them as per schedule, therefore, they could not comply with the direction of the culprits. To get rid of beating, however, Mashoo Kolhi and Maloo Kolhi tried to snatch rifle from accused Sudheer whereupon said Sudheer fired at them and a bullet hit Mashoo Kolhi, who died instantly. Accused Loung also made firing and in defence the complainant and the P.Ws. Also gave Lathi blows to accused Loung. Thereafter the accused persons fled away. On the stated allegations a formal F.I.R. Bearing No,215, dated 19-7-1990 was registered at the said police station under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with sections 302, 307 and 397, P.P.C. And investigation was carried out in pursuance thereof. On the completion of investigation the accused persons were challaned to the Court for trial.
3. Charge was accordingly framed against the accused persons to which they pleaded not guilty and claimed trial.
4. At the trial, the prosecution in order to prove the charge and substantiate the allegations levelled against the accused persons produced nine witnesses, in all. Whereafter, the accused appellants were examined under section 342, Cr.P.C. In their above statements they denied the charge and pleaded innocence. They, however, failed to lead any evidence in their defence or to appear as their own witnesses in terms of section 340(2), Cr.P.C.
5. After hearing arguments of the learned counsel for the parties the learned trial Court convicted the appellants and sentenced them to the punishments as mentioned in the opening para. Hereof.
6. We have heard Mr. Muhammad Bakhsh Samoon, Advocate, learned counsel for the appellants in Criminal Appeal No,86/K of 2000 Mrs. Saleha Naeem alias Ghazala, Advocate, learned counsel for the appellants in Jail Criminal Appeal No,3/K of 2001, Mr. Fazal-urRehman Awan, Advocate, learned counsel for the State and have also gone through the record with their assistance.
7. During pendency of the appeal an application seeking permission to compound the offence was filed. Alongwith the application original compromise deed and other documents were also filed.
8. On 24-5-2001 when the application was taken up, it was submitted by the learned counsel for the appellants that since the matter was compromised by the parties outside the Court and heirs of deceased Mashoo have forgiven the appellants/accused persons, therefore, the compromise may be accepted. Alongwith him Shirimati Radha, widow, Waghlo son and Shirimati Huna sister of the deceased were also present in Court. Besides, the injured persons namely, Harsan, Arjan, Mengho, Bhemblo and Maloo were also in attendance, who all stated that parties have actually entered into the compromise and legal heirs of the deceased have forgiven the accused persons.
In order to ascertain as to whether the compromise was genuine and the persons who had entered into the compromise with the appellants were the legal heirs of the deceased only, we thought it proper to send the matter to the trial Court, so that a comprehensive report may be obtained.
9. In pursuance of the above order, the learned IInd Additional District and Sessions Judge, Hyderabad has sent the report, dated 23rd of July, 2000. According to the report, not only the compromise is genuine, but the persons who have entered into the compromise are the only legal heirs of the deceased. According to him, four of the legal heirs are minors and they have entered into the compromise through their mother. Authenticity of the compromise has also been verified by Mst. Jamni, the widow.
10. The learned State Counsel after having gone through the report in question has submitted the since authenticity of the compromise deed has been verified by the learned Additional Sessions Judge, therefore, compromise may be accepted. However, submitted that since four of the legal heirs are minors, therefore, the amount of Diyat falling in their share proportionately, may be ordered to be paid by the appellants and the same be ordered to be deposited in Bank till the time the minors attain puberty and become adults, legally. The learned counsel for the appellants has submitted that appellants are prepared to pay the amount of Diyat to the extent of the shares of the minors, however, requests that appellants may be permitted to pay the same, in instalments, in three years, as provided by law.
11. In view of the report, dated 23-7-2001, submitted by the learned IInd Additional District and Sessions Judge, Hyderabad, as well as the submissions made by the learned counsel for the parties, we are inclined to accept the compromise. . The accused persons are directed to deposit the amount of Diyat falling in the shares of minors in the learned trial Court, in 36 equal monthly instalments, within a period of three years. The amount of Diyat shall be determined by the learned trial Court and shall be kept in the fixed deposit in any scheduled Bank on behalf of the minors with the condition that the amount of profit/dividend accruing thereon may be automatically reinvested by the Bank alongwith the principal amount. On the expiry of first term, the amounts shall again be fixed deposited till such time the amounts are withdrawn by the minors on their attaining the age of majority. The appellants may be released on bail on their furnishing surety in the sum of rupees equal to the amount of Diyat falling in the shares of the minors, with one surety and P.R. Bond in the like amount, with an undertaking to pay the amount of Diyat within the prescribed period. In case of default in payment of the amount of Diyat, by two consecutive instalments, the surety bond shall stand forfeited.