P L D 2019 Balochistan 47
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
NASEER KHAN---Appellant
Versus
The STATE--- Respondent
Criminal Jail Apeal No.(s)1 of 2018, decided on 13th May, 2019.
Penal Code (XLV of 1860) ---
----Ss. 311 & 302 ---Criminal Procedure Code (V of 1898), S. 345---Qatl -i-amd---Ta'zir after
waiver or compounding of right of qisas in qatl -i-amd---Fasad -fil-Arz---Scope ---Trial Court
having allowed the legal heirs to compound the offence, convicted appellant under S. 311,
P.P.C. ---Validity ---Appellant was habitual and professional criminal and remained fugitive
from law and during his absconsion he had committed murder and accordingly another first information report (FIR) was registered against him ---Appellant had also committed robbery
and yet another FIR was registered ---Appellant had further committed the dual murders of
his father and brother, and had also attempted to murder his brother and caused him serious bullet injuries for which another FIR was lodged---Behav iour and conduct of appellant in the
trial court remained very harsh---Insertion of expression "Fasad- fil-Arz" in S.311, P.P.C. was
the requirement of socio -cultural setup and to maintain law and order and to save the civil
society from deterioration ---Where a person within a decade and for no sufficient reason
resorted to took lives of four innocent persons, which included his father and brother, he should not go scot -free just because the legal heirs had waived and compounded the offence -
--Appellant was " potential danger" to the community, hence he was rightly declared so by
the Trial Court ---Appeal was dismissed.
Muhammad Ramzan alias Ramzani v. The State 1996 SCMR 906 rel.
Ellahi Bakhsh Lehri for Appellant.
Jamil Akhtar, A.P.G. for the State.
Date of hearing: 26th April, 2019.
JUDGMENT
ABDULLAH BALOCH, J. ---The instant Criminal Jail Appeal No.(S)01 of 2018 is
directed against the order dated 30th May 2017 ("impugned Order") passed by learned Sessions Judge Kohlu ("trial Court"), whereby the applicati on under Section 345, Cr.P.C.
filed by the appellant for his acquittal on the basis of compromise was allowed to the extent
of main offence under Section 302, P.P.C., but the appellant Naseer Khan son of Baloch Khan was convicted under Section 311, P.P.C. and sentenced to suffer fourteen (14) years as
Ta'zir.
2. Facts of the case are that on 5th May 2008, the complainant Kamal Khan lodged FIR
No.22 of 2008, at Police Station City Kohlu under Sections 302, 147, 148, 149, P.P.C., stating therein that on the day of occurrence at about 8.30 a.m. his cousin Abdul Majeed son of Meerak went to supervise crops cultivated at Kharara Bohri, where the appellant Naseer Khan along with co- accused Juma Khan, Jahan Khan, Safar Khan, Ameer Khan, Sher Khan,
Dost Muhammad, Kunari and Roshaan captured Abdul Majeed all around, while being armed with Kalashinkov and made fire shots at him, who sustained bullet injures and succumbed to the injuries.
3. After registration of FIR, the appellant initially remained fugitive from law a nd after
arrest, he was challaned before the learned trial Court, which indicated the charge to the appellant, who denied the same and claimed trial. At the trial, prior to producing PWs by the prosecution the widow of deceased Mst. Zar Khatoon, the sister of deceased Mst. Dur Naz
and the complainant Kamal Khan filed an application under Section 345, Cr.P.C. to the effect that compromise has been effected in between the parties and they have forgiven the appellant. The trial Court recorded their statements as CW -1 Kamal Khan (complainant),
CW-2 Mst: Zar Khatoon (widow) and Mst. Dur Naz (sister). The trial Court after going
through the compromise deed found the same satisfactory, hence accordingly the compromise deed was accepted, but in keeping in view the past conduct and criminal history, aggressive attitude in the trial Court, the learned trial Court convicted the appellant under
Section 311, P.P.C. and sentenced to suffer fourteen (14) years as Ta'zir, vide order dated 30th May 2017. Whereafter, the appel lant through Superintendent District Jail Sibi has filed
the instant criminal jail appeal.
4. Heard the learned counsel for parties and perused the record with their able
assistance. According to the case of prosecution, on 5th May 2008 the appellant in furtherance and common intention of co- accused committed the murder of deceased Abdul
Majeed by means of firing with Kalashnikov and accordingly FIR was registered for offences under Section 302, P.P.C. After commission of crime the appellant remained fugiti ve from
law and during his absconsion on 19th October, 2011 he committed the murder of one Lalo son of Hotu by means of firing with Kalashnikov and accordingly second FIR bearing No.18/2011 was registered for offences under section 302, P.P.C. The appellan t also
committed robberty and at levies Station Tambu another FIR No.02/2016 was lodged against him and accordingly FIR No.02 of 2016 was registered for offences under section 392, P.P.C. Furthermore, in the year 2016 the appellant has committed the dual m urders of his
father Baloch Khan and brother Ameer Khan and also made an attempt to commit the murder of his another brother Faqir Khan and caused him serious bullet injuries. Accordingly, second FIR No.09 of 2016 was lodged under Sections 302, 324, 34, P. P.C.
5. Now adverting to the facts and circumstances of the present case, suffice to observe
here that after long abscondence of eight years of the occurrence, he was arrested and on
completion of investigation he was challaned in the trial Court for facin g trial under Section
302, P.P.C. Since, the offence under Section 302, P.P.C. is compoundable and hence the
parties entered into compromise and accordingly compromise deed was submitted in the trial Court along with an application under Section 345(2), Cr .P.C. for acceptance of compromise
and acquittal of the appellant. After hearing the arguments and keeping into consideration the
past criminal history, conduct and harsh behavior of the appellant towards the trial Court; the
learned trial Court though acc epted the compromise deed for offences under Section 302,
P.P.C. but instead of acquitting him, the trial Court has held that the case of present appellant
falls within the definition of Fasad- fil-Arz, hence convicted him under Section 311, P.P.C.
and sent enced for fourteen years as Ta'zir.
6. We have perused the past criminal history and conduct of the appellant and it has
been observed that the appellant is a habitual and professional criminal. After committing the murder of deceased Abdul Majeed in the case in hand, he has also committed the murder of one Lalo Khan as well as the dual murders of his own father and real brother and also made an attempt to take the life of his another brother and caused him serious injuries. Even otherwise, during absconsion the appellant had also committed robbery and accordingly a case under Section 392, P.P.C. was lodged against him. We have also perused the case record
and it has come on record that the behavior and conduct of the appellant in the trial Court
was remained very harsh cunning. After committing the murder of deceased Abdul Majeed,
the appellant did not stop there and after committing the murder of one person, he repeated crimes and have committed three other murders including the murder of his own real brother and father and also attempted to take the life of his another brother. Besides, he is also involved in heinous crime of robbery. The insertion of expression `Fasad- fil-Arz' in Section
311, P.P.C. is the requirement of socio- cultural setup and to maintain law and order and to
save the civic s ociety from deterioration. Where a person within a decade and for no
sufficient reason resorted to indiscriminate firing, taking lives of four innocent persons, which include his father and brother too, should not go scot -free just because the legal heirs
have waived and compounded the offence against the offender.
7. Keeping in view the circumstances of the case, the nature of the offence committed
and the number of persons murdered by the appellant time and again, as well as committing of robbery, we cann ot be oblivious of the fact that it seriously attracts the principle of Fasad-
fil-Arz and the offender is most likely to be a potential danger to the community, thus the
trial Court has rightly exercised its power and has come to a right conclusion by awar ding
conviction to the appellant under Section 311 P.P.C. Reliance in this regard is placed from the case of Muhammad Ramzan alias Ramzani v. the State 1996 SCMR 906, wherein the Hon'ble Supreme Court was pleased to accept the compromise effected in betwee n the
parties, but keeping in view the past criminal history has convicted and sentenced the accused under Section 311, P.P.C. For facilitation, the relevant portion is reproduced herein below:
"In response to the notice, the legal heirs of the deceased M st. Amiran Bibi, named
above, appeared in Court today and stated that the compromise has been entered into between the parties genuinely without any pressure or coercion from anybody and that they have forgiven the accused petitioner in the name of Allah t o bring harmony in
the family. In view of the categorical statement of the legal heirs of deceased made in
Court, we do not find any reason to reject the compromise and hold that the right of
'Qisas' has been waived against the petitioner. However, keeping in view the fact that
the petitioner had earlier committed murder of the sister of the deceased in the case, and was acquitted of the charge to that case also on the basis of compromise, the principle of ' Fisad- fil-Arz' is fully attracted in the case. We , accordingly, while
accepting the compromise to the case, convict the petitioner by way of 'Ta'zir' under
section 311, P.P.C. and sentence him to R.I. for 14 years. The petitioner will,
however, be entitled to the benefit of section 382- B, Cr.P.C. The dea th sentence in the
case, accordingly, stands commuted to R.I. for 14 years." [BOLD AND UNDERLINE ADDED].
8. Since, it has been established that the appellant is a potential danger to the
community, hence rightly he was declared so by the learned trial Cour t, as such the appeal
being devoid of merits is dismissed.
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