Arbelo alias Arbab Kosh vs State Ss — 2024 PCrLJ 2028 KARACHI-HIGH-COURT-SINDH

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Arbelo alias Arbab Kosh VS State Ss. 302(b) & 311---Criminal Procedure Code (V of 1898), S. 345---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd---Compounding of the offence---Principles---Incompetency of legal heirs to compound the offence---Accused was charged for committing murder of his step sister by firing due to allegation of her love affair with a boy---During the pendency of appeal, the accused and legal heirs of deceased moved an application seeking compounding of the offence and acquittal of the accused on the basis of compromise---Validity---Admittedly, none of the family members of deceased girl had come forward to report the matter against the accused---Police had to register the FIR on behalf of the State and give evidence in the Court describing the entire episode starting from their arrival at the spot and murder of the deceased within their sight by the accused---Family members of the deceased from the very inception preferred to stay aloof like a silent spectator---Conduct of family members of the deceased throughout was indicative of the fact that either they were accomplice in the offence or too scared of the accused to question his action at any stage---Both the probabilities made them incompetent to compound the offence with the accused and give no objection to his release---An accomplice is not permitted in law to forgive his fellow and ask for his release by waiving right of Qisas or Diyat which due to some natural idiosyncrasy happened to befall on him---Likewise, when a person was too afraid of the accused to even report against him for murdering his stepsister just for having a love affair, his affidavit in the court later on forgiving the latter would be looked at with extra care and caution and with a strong suspicion into the reason compelling him to do so---Because, at no stage that person dared to come forward and tell the whole story and depose against the culprit who murdered his daughter/sister/wife etc---An innocent girl of very young age lost her life at the hands of her stepbrother for no fault of her---Supposed guardians and protectors of deceased at the time of the gruesome incident chose to stay as onlookers, and thereafter maintained an eerie silence till conviction and sentence of the accused---Then they decided to come in the Court not for getting justice for their slain daughter but for securing release of her slayer by compounding the offence and waiving the right of Qisas and Diyat against him---In affidavits, the legal heirs had not tried to articulate a single reason warranting their mysterious omissions throughout in the whole chapter starting from actual act: murder of the girl until filing of applications by them in the Court for release of accused after his conviction in the wake of a full-dressed trial---Court had to see, apart from genuineness and voluntariness of such compromise, the manner in which the offence was carried out; the conduct of legal heirs of the deceased in (not) saving her/him from such brutal end, the lack of effort to seek help of the police for investigation and arrest of the accused; their cooperation with the police for collecting relevant evidence; their efforts to pursue the murderer and to take him to the Court for justice and their relationship with the accused---All these factors and many more others (germane to context of each case) are the relevant facts and circumstances the Court has to keep in mind for deciding fate of compromise between the parties in such cases---In the present case, the legal heirs of murdered girl did nothing to either save her or report the matter to the police for the FIR; or tried cooperating in the investigation and pointed out the relevant facts, nor did they appear in the court at least to depose against the accused---They maintained unnatural silence throughout and never tried to own the murdered girl by participating at any stage in proceedings initiated by the police for bringing the culprit to justice---Suddenly legal heirs of deceased turned around and that too only in favour of the accused---Callous conduct of legal heirs of deceased from the outset towards the murdered girl has made them incompetent to compound her murder and waive right to Qisas and Diyat---In S.345(5), Cr.P.C, it is provided that when the accused has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court before which the appeal is to be heard---Thus, it is obvious that compounding or waiver in the offences such as the one in hand is not a routine matter---Court's leave is also mandatory for letting compounding of such an offence be effective which would essentially mean that the Court could even refuse to grant leave and/or accept to give effect to such a deal, if it found that the offence of murder had been committed on the ground of Karo Kari, Siah Kari and similar other customs or practices---Offence of Karo kari is often justified by the perpetrator as a means to restore family honor and pride---However, it is essential to recognize that such practice is a form of violence and oppression, rooted in patriarchal norms and gender-based discrimination---Moreover, it has devastating impact on victims, families and society as a whole, in addition to its character of being in violation of fundamental human rights, including the right to life, dignity, and equality guaranteed under the Constitution---Applications for compromise were dismissed, in circumstances.

Arbelo alias Arbab Kosh vs State Ss — 2024 PCrLJ 2028 KARACHI-HIGH-COURT-SINDH

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