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Petitioner: MUHAMMAD IBRAHIM VS Respondent: StateHonorable Justice SH. HAKIM ALIMuhammad Tayyib Wattoo,Mian Muhammad Afzal Wattoo and Shaheen Masood Rizvi
2005 Y L R 2051
2005 Y L R 2051
[Lahore]
Before Sh. Hakim Ali and Muhammad Jahangir Arshad, JJ
MUHAMMAD IBRAHIM and others---Petitioners
Versus
THE STATE and others---Respondents
Cr.M. No. 1140-M of 2000/BWP, Writ Petitions Nos.3023 and 3024/BWP of 2002 and Cr. Rev. No.6 of 2003/BWP, decided on 14th April, 2005.
Per Sh. Hakim Ali, J.---
(a) Penal Code (XLV of 1860)---
----Ss. 302(a), 309 & 310---Qatl-i-Amd---Wavier and compounding of Qisas---When a case of an offender is proved through proof of Qisas, then the death can be awarded as Qisas---Naturally in such event the provisions of Qisas for compounding and for waiver of right of Qisas would apply---Provisions of Tazir would not be applicable unless made applicable by any Act or enactment.
(b) Penal Code (XLV of 1860)---
----Ss. 302(a), (b), 309 & 310---Criminal Procedure Code (V of 1898), S.345---Qatl -i-Amd---Reduction in sentence on the basis of compromise---During the trial punishment can be converted by the Court which is seized of the case, when anyone of the heirs compounds the offence or waives his right of Qisas, which compromise, waiver or composition can be considered by the Court at the trial, appellate or revisional stages and it may be treated as a mitigating circumstance for an under trial accused, provided the other condition are also fulfilled---But when however, an accused is punished with death under S.302(b), P.P.C. and that sentence of death is maintained by the Supreme Court and in the mercy petition also, then the sentence of death cannot be compounded under S.302(b), P.P.C. unless the conditions provided by S.345, Cr. P. C. are fulfilled, which provides that heirs of the victim must compromise for Qalt-i-Amd.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b) & 338-E(2)---Criminal Procedure Code (V of 1898), S. 345(2)---Conversion of death sentence to other punishment on the basis of partial compromise not permissible---Sentence of death awarded to accused had been maintained up to the level of Supreme Court meaning thereby that the case of accused had required no other sentence except the capital punishment---Such sentence could not be lightly brushed aside by bringing one of the heirs, who might not be nearer to the deceased but feeling love for the condemned accused and interested in getting the conversion of death sentence to any other kind of imprisonment---Conversion of sentence through such method would be against the interest of justice and the weight of the decisions---Compromise under S.345, Cr.P.C. was an exception, benefit of which could be granted to the accused when he had got the consent of all the heirs of the deceased and got waived or compromised his sentence of death or its conversion to other punishment collectively from them---Otherwise the decision must and should retain its own effect and impact---Since all the heirs of the deceased victims had not admittedly waived and compounded the offence of death awarded to the accused under S. 302(b), P.P.C., the petitions were dismissed.
Ghulam Hussain and another v. The State NLR 1993 Criminal 203; Nisar Ahmad and 2 others v. The State 1994 PCr.LJ 1587; Khalid Nawaz v. The State 1999 SCMR 933; Raashid Mahmood and others v. State 2001 YLR 137; Nusrat Shah v. Muhammad Shah and another PLD 2001 Pesh. 58; Ijaz Hussain v. The State 2002 SCMR 1455; Imran Shah v. The State 2003 PCr.LJ 760; Amir and another v. The State 2003 SCMR 561; Zulfiqar alias Zullah and others v. The State 2003 YLR 1079; Mukhtar Ahmad alias Mukhoo v. The State 2003 PCr.LJ 998; Zaighum through his mother and others v. The State and others 2003 PCr.LJ 554; Muhammad Yasin v. The State 2003 PCr.LJ 1331 and Farooq Azam v. The State NLR 2004 Criminal 729; Volume IX, Fatawa Hindia, Kitabul Janayab Panjum Sulh-wa-Afv of Urdu version of Fatawa Aalamgiri, pp.368 and 369; Muhammad Saleem v. The State PLD 2003 SC 512; Bashir Ahmad v. The State and another 2004 SCMR 236; Saeed Akhtar v. Muhammad Anwar and another 2004 PCr.LJ 1884 ref.
Per Muhammad Jahangir Arshad, J. concurring with Sh. Hakim Ali, J.---
(d) Constitution of Pakistan (1973)---
----Art. 199---Constitutional jurisdiction--No direction to be issued to Supreme Court and High Court---High Court in its Constitutional jurisdiction under Article 199 of the Constitution cannot issue any direction to the Supreme Court or even to the High Court---Article 199(5) of the Constitution expressly excludes the Supreme Court and the High Court from the definition of the word "person" to whom direction under Article 199 of the Constitution can be issued.
Suleman Ali Haideri and another v. Government of Balochistan and others 2004 SCMR 354 ref.
(e) Penal Code (XLV of 1860)---
----S.302(b)---Criminal Procedure Code (V of 1898), S.345(2)---Compromise---Consent of all the heirs essential---Purpose and philosophy of law---Requirement of consent of all the heirs in case of compromise when sentence is passed as Tazir, has been made consciously and deliberately as to avoid any conflict among the legal heirs---Compromise with the consent of all the heirs will put the matter to an end for all the times to come, but if one of the legal heirs is allowed to forgive the accused without associating the other legal heirs, the object of creating harmony in the society as well as in the family of the deceased and the accused would he frustrated, which could never have been the object of law.
(f) Penal Code (XLV of 1860)--
----Ss. 302(a), (b), 309 & 310---Criminal Procedure Code (V of 1898), S.345(2)---Qatl-i-Amd---Compromise---Criteria of compromise in case of Qisas not applicable in case of Tazir---Benefit under Qisas cannot be extended to cases under Tazir for the reason that criteria for punishment in case of Qisas is not only different but inflexible and in such eventuality the Court has no option but either to acquit the accused or to give him the maximum sentence of death as required under S.302(a), P.P.C., but in case of punishment as Ta'zir Court has the option either to punish the offender with death or imprisonment for life keeping in view of the facts and circumstances of the case---Case of punishment under Tazir, therefore, cannot be decided by applying the criteria of compromise in case of Qisas, as the same is not only inpact but also violative of the provisions of S.302(a) and S.302(b), P.P.C.
(g) Penal Code (XLV of 1860)---
----S. 302(b)---Criminal Procedure Code (V of 1898), S.345(2)---Partial compromise not permissible---Where case has been decided under Tazir, consent of all the legal heirs for compromise is necessary and a single legal heir can neither enter into compromise nor the Court can give legal effect to such a compromise and the punishment recorded under Tazir shall remain intact.
Sh. Muhammad Aslam and another v. Shaukat Ali alias Shauka and others 1997 SCMR 1307 ref.
Muhammad Tayyib Wattoo for Petitioners.
Mian Muhammad Afzal Wattoo and Shaheen Masood Rizvi, A.A.-G. assisted by M. Farazi for Respondents.
Date of hearing: 6th April, 2005.
JUDGMENT
SH. HAKIM ALI, J.---Common question, which has been raised and posed for resolution in the following cases:--
(1) Cr. M. No.1140-M of 2000/BWP (Muhammad Ibrahim and another v. The State);
(2) W.P. No.3023 of 2002/BWP (Majid Mahmood v. The State and 3 others);
(3) W.P. No.3024 of 2002/BWP Mst. Shahnaz Kausar v. The State and 2 others); and
(4) Cr. Revision No.6 of 2003/BWP (Fazal Ahmad v. The State and 2 others);
is:--
Whether the compounding/compromise by any of the heirs of the victim, after conviction of the accused having been recorded and upheld up till the apex Court, can grant benefit to the accused for conversion of his death sentence to other kind of imprisonment/punishment, lesser than the death?
OR
Whether partial compromise/compounding can be accepted and sentence converted by learned trial Court under section 338-E(2) of the P.P.C. after judgment of death sentence having attained finality from the apex Court of the country?
2. Since common question and law point is involved in all the above mentioned cases, therefore, we propose to unravel this controversy and dispose of all these cases together through this singular judgment.
3. The facts necessary for the disposal of these cases are given hereunder separately.
1. Cr. M. No. 1140-M-2000/BWP.
In case F.I.R. No. 77, dated 25-3-1993, lodged under sections 302, 449, 148 and 149, P.P.C. at Police Station City Chishtian, District Bahawalnagar, Muhammad Ibrahim alias Dhouli son of Khadim Hussian and Muhammad Yasin alias Munna son of Abdul Majeed, both Cheena by caste and residents of Mauza Mari Shauq Shah, Tehsil Chistian, District Bahawalnagar were tried along with Muhammad Amin, Muhammad Jafar and Abid Hussain (since acquitted) for committing Qatl-e-Amd of Mst. Sakina Bibi and Mst. Anwar Bibi, and convicted under section 302, P.P.C. and were sentenced to death on 26-12-1995. The appeal filed before this Court bearing No.1-1996/BWP (Muhammad Ibrahim and another v. The State) was dismissed on 19-11-1998. The conviction and sentence was maintained in Cr. Appeal No. 586-L of 1998 from the Hon'ble Supreme Court of Pakistan on 19-7-1999. It is stated that mercy petition was filed but it was also rejected. In the above noted case, two ladies, namely Mst. Sakina Bibi and Mst. Anwar Bibi were callously murdered. Both these ladies left behind them the following legal heirs.
Mst. Sakina Bibi, deceased.
(1) Nazar Muhammad (brother);
(2) Mst. Sarwar Bibi (daughter);
(3) Mst. Shamim Bibi (daughter);
(4) Mst. Shamshad Bibi (daughter);
(5) Mst. Ghulam Fatima (sister);
(6) Mst. Fazlan Bibi (sister);
(7) Mst. Sharaf Elahi (sister).
Mst. Anwar Bibi, deceased.
(1) Khadim Hussain (Uncle);
(2) Abdul Majeed (uncle, since dead);
(3) Mst. Sarwar Bibi (sister);
(4) Mst. Shamim Bibi (sister);
(5) Mst. Shamshad Bibi (sister);
(6) Mst. Shaib Bibi (real paternal aunt); and
(7) Mst. Mariyam Bibi (real paternal aunt).
The above-noted convicts, after having failed to get their conviction and sentence set aside on merits, decided to try their luck by effecting compromising with the legal heirs of the deceased and they also succeeded in effecting compromise with some of the legal heirs. Therefore, they moved an application under section 338 (E)(2), P.P.C. before the learned Sessions Judge, Bahawalnagar on 13-9-1999 for recording compromise. Since Mst. Sarwar Bibi, Mst. Shamim Bibi and Mst. Shamshad Bibi (daughters) of Mst. Sakina Bibi, (deceased and sisters of Mst. Anwar Bibi, deceased), had not compromised with the convicts, therefore, the learned Sessions Judge declined to accept compromise and through his detailed order, dated 23-10-2000, by applying the provisions of section 345 of the Cr.P.C. dismissed the application of the convicts. Hence, this criminal miscellaneous.
2. W.P. No.3023-2002/BWP and
3. W.P. No. 3024-2002/BWP.
Majid Mahmood son of Ghulam Nabi, caste Bhatti, resident of Street No.10, Mohallah Farooqabad, Bahawalnagar and his co-accused, Saeed Ahmad alias Chuchi were tried in case F.I.R. No.117, registered at Police Station City, Bahawalnagar for the murder of one Muhammad Zafar by the learned Judge, Anti-Terrorism Court, Bahawalpur. Majid Mahmood was convicted under section 302/34, P.P.C. and was sentenced to death. He was convicted and sentenced under some other provisions of Pakistan Penal Code also in the same case. The death sentence was confirmed by the Division Bench of this Court on 31-1-2000. Appeal filed by the convict before the Hon'ble Supreme Court of Pakistan bearing No.77-L-2000 was also dismissed on 12-9-2001 and the sentence of death was maintained. Thereafter, the convict effected compromise with Mst. Shahnaz Kausar, widow of the deceased and moved an application under section 338-E, P.P.C. read with section 345, Cr.P.C. for compounding of the offence. The father of the deceased did not enter into compromise with the convict. The learned Judge, Anti-Terrorism Court, Bahawalpur, after appreciating the law and facts, dismissed the .application vide his order, dated 7-8-2002. Aggrieved thereby, both the convict and the widow of the deceased, namely Mst. Shahnaz. Kasuar, have filed two separate writ petitions i.e. W.P. No.3023-2002/BWP and W.P. No.3024-2002/BWP for the acceptance of compromise.
4. Cr. Revision No. 6-2003/BWP.
Fazal Ahmad alias Fazla son of Ahmad Bakhsh, Caste Channer, resident of Mauza Posti, Tehsil Ahmadpur East, District Bahawlalpur was put to trial along with his co-accused Mukhtar Hussain; Karim Hussain and Fida for murder of Rasool Bakhsh, reported through F.I.R. No.338 of 1995, registered with Police Station Musafir Khana, District Bahawalpur under section 302/34, P.P.C. Trial culminated, through judgment, dated 26-6-1999 of the learned trial Court, into conviction of Fazal Ahmad alias Fazla under section 302, P.P.C. and he was sentenced to death. However, his co-accused were acquitted of the charge. The death sentence was confirmed by this Court on 20-7-2001, delivered in Cr. Appeal No.104-1999/BWP and Murder Reference No.26-1999/BWP. The judgment of this Court was upheld by Hon'ble Supreme Court in Jail Petition No.114-2001, vide judgment, dated 18-3-2002. Thereafter, the convict effected compromise only with widow of Rasool Bakhsh, deceased, namely Mst. Zahoor Mai. An application was filed by Mst. Zahoor Mai under section 338-E of the P.P.C. read with section 345(2), Cr.P.C. As the compromise was not effected by all the legal heirs of the deceased, therefore, the learned Additional Sessions Judge vide his order, dated 13-12-2002, dismissed the application moved by Mst. Zahoor Mai, against which order, the instant criminal revision has been filed by Fazal Ahmad alias Fazla.
4. Learned counsel appearing on behalf of the convicts-petitioners and the heirs of the victims, who have forgiven entered into compromise with the convicts, have submitted their cases with the following arguments:
(i) As the provision of section 302(a), P.P.C. is not attracted to all the cases mentioned above, therefore, the cases of the convicts are to be considered to have been awarded punishment under section 302(b) of the P.P.C., in which although punishment of death has been provided yet imprisonment for life as 'Ta'zir' has also been authorized to Courts to be awarded to an accused. As the convicts have been convicted under section 302(b) of the P.P.C., therefore, their cases can be decided under section 338-E of the P.P.C. by the learned trial Court, with regard to waiver, compounding or awarding of sentence under section 310, P.P.C., before or after passing of any sentence. According to the learned counsel appearing on behalf of the petitioners, partial compromise or in other words composition/compromise by one out of many heirs can be considered for the purpose of reduction of sentence treating it to be a mitigating circumstance. It is not necessary that all the legal heirs must have consented to the compromise or have waived their rights of 'Qisas'. A single heir can compound and due to effecting of compromise by him with the convict or convicts, the death sentence can be converted to that of punishment as 'Ta'zir' in the shape of imprisonment for life, etc. They have referred to the following case-law:
NLR 1993 Criminal 203 (Ghulam Hussain and another v. The State); 1994 PCr.LJ 1587 (Nisar Ahmad and 2 others v. The State); 1999 SCMR 933 (Khalil Nawaz v. The State); 2001 YLR 137 Raashid Mahmood and others v. State); PLD 2001 Pesh. 58 (Nusrat Shah v. Muhammad Shah and another); 2002 SCMR 1455 (Ijaz Hussain v. The State); 2003 PCr.LJ 760 (Lahore) Imran Shah v. The State); 2003 SCMR 561 (Amir and another v. The State); 2003 YLR 1079 (Zulfiqar alias Zullah and others v. The State); 2003 PCr.LJ 998 (Mukhtar Ahmad alias Mukhoo v. The State); 2003 PCr.LJ 554 (Lahore) (Zaighum through his mother and others v. The State and others); 2003 PCr.LJ 1331 (Lahore) (Muhammad Yasin v. The State); and NLR 2004 (Criminal 729 (Farooq Azam v. The State).
(ii) According to the learned counsel, Mr. Abdur Rahman Tayyib, Advocate, the word "all" has been imported in Column No.3 of subsection (2) of section 345 of the Cr.P.C., through judgments of the Courts. According to the learned counsel the word "heirs" does not connote and cannot be interpreted for "all heirs". The word "heirs" was used in section 345 of the Cr.P.C. as to created a distinction between the heirs and the relatives. The aim and purpose of the use of word "heirs" was to exclude the relatives and to grant a right to the heirs of the victim alone to effect compromise or to forgive the right of "Qisas. He has also referred to Pages 368 and 369, Volume IX, Fatawa Hindia, Kitabul Janayab Panjum Sulh-wa-Afv of Urdu version of Fatawa Aalamgiri, in which one of the heirs if makes compromise upon any amount/ property or forgives, then the right of "Qisas" for and of the other heirs, who are not compromising is also abated and the others would be entitled only for "Diyat", as they are legally entitled to it.
(iii) They have also referred to the provisions of section 307 of the P.P.C., according to which, in clause (b) of subsection (1) of section 307, P.P.C., any "Wali" can compound/waive the right of "Qisas".
(iv) Referring to subsection (2) of section 309 of the P.P.C., it has also been stated by the learned counsel that according to that section, even one "Wali' can waive his right of "Qisas" and in case of waiver or making of compromise by anyone "Wali", the right of "Qisas" of others does not remain in the field.
(v) They have also called our attention to the provisions of section 311, P.P.C. and have stated that no difference can be thought of with regard to the conversion of sentence of an under trial accused or a convict, whose trial has been concluded and sentence has become final, for compounding or waiving the right of "Qisas". It has also been agitated by the learned counsel that provision of subsection (1) of section 338-E, P.P.C. has to be interpreted in a liberal way because the provisions of sections 309 and 310 of the P.P.C. have been applied mutatis mutandis to waiver or compound ing of the offences.
5. Learned A.A.-G. and the learned counsel appearing on behalf of the respondents have opposed the version/ arguments of the learned counsel for the petitioners by stating that Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 cannot be invoked in the cases where the convicts have already exhausted all the legal remedies and have been convicted and sentenced finally. The provision of compromise/compounding for "Qisas" provided for the cases of section 302(a) of the P.P.C. cannot be applied cases decided under the provision of section 302(b) of the P.P.C. The cases of the convicts if fall within the ambit of section 302(a), P.P.C., then the right of punishment through "Qisas" can be raised and applied. As "Qisas" is found in section 302(a), P.P.C., so while applying the provisions of "Qisas" for Clause (a) of section 302, P.P.C., those provisions cannot be extended, invoked or applied for Clause (b) of section 302, P.P.C. They have referred to Clause (1) of section 299 of the P.P.C. to support their version by stating that word "Ta'zir" means punishment other than "Qisas", "Diyat", "Arsh" or "Daman". Arguing with vehemence, it has been stated by them that difference of power and jurisdiction between the Court of appeal and the Court of extraordinary jurisdiction must be kept in view while deciding the case of a convict and that of an accused. They have referred to PLD 2003 Supreme Court 512 (Muhammad Saleem v. The State), 2004 SCMR 236 (Bashir Ahmad v. The State and another) and 2004 PCr.LJ 1884 (Saeed Akhtar v. Muhammad Anwar and another).
6. Forceful arguments/versions and interpretations put to the words of different sections and the citations referred to by the learned counsel for the parties, have drawn us to the following conclusions:
(a) Section 302, P.P.C. has provided different sentences/punishments in case of Qatl-e-Amd. When Qatl-e-Amd has been committed and proved through proof provided for "Qisas", then punishment has to be awarded to the convict through Clause (a) of section 302 of the P.P.C., which has provided death for death as "Qisas". When a proof provided for "Qisas" for Qatl-e-Amd has not been brought on the record, then the Court has been granted power to punish the offender with death or imprisonment for life as "Ta'zir". The third category for punishment is that of Clause (c) of section 302 of the P.P.C., in which case of Qatl-e-Amd, if committed the Court can punish the offender with imprisonment which may extend to 25 years. The Hon'ble Supreme Court has clearly dealt with all these questions and situations in PLD 2003 Supreme Court 512 (Muhammad Saleem v. The State). When a case of an offender is proved through proof of "Qisas", then the death can be awarded as "Qisas". Naturally in that event, the provisions of "Qisas" for compounding and for waiver of right of "Qisas" would apply. The provisions of "Ta'zir" would not be applicable unless made applicable by any Act or Enactment.
(b) During the trial, the punishment can be converted by Court, which is seized of the case, when anyone of the heirs compounds the offence or waive his right of "Qisas", which compromise, wavier or composition can be considered by the learned counsel at the trial, appellate or revisional stages and it may be treated as a mitigating circumstance for an under trial accused provided the other conditions are also fulfilled but when an offender/accused is punished with death under section 302(b) of the P.P.C. and that sentence of death is maintained by the Hon'ble Supreme Court and in the mercy petition also, then that sentence of death cannot be compounded with under section 302(b) of the P.P.C. unless the conditions provided by section 345 of the Cr.P.C. are fulfilled, which provides that heirs of the victim must compromise for Qatl-e-Amd. The interpretation put by Mr. Abdur Rahman Tayyib, the learned Advocate that the word "all" has been imported in section 345 of the Cr.P.C., cannot be accepted because word "heirs" has been used with wisdom. It denotes itself the sense of plurality. It cannot be considered and termed conveying the singular meaning of "an heir". The word "heirs" being plural includes in it the perception of all the heirs of the victim who are to effect a compromise or have to waive their right of "Qisas". Otherwise, the composition/waiver/Afv cannot work. As the word "heirs" was used in the aforesaid section, therefore, there was no need to prefix the word "all" because the word "heirs" itself signify for more than one. The Entering of word "all" in it would be a superfluous act of the legislature, because the word "heirs" had already contained the meaning of word "all". From the use of word "heirs" the intent of the legislature is clear that one their heir out of more heirs, cannot compound the offence. So, the arguments of the learned counsel for the petitioners are not based on correct interpretation of the provisions of section 345 of the Cr.P.C.
(c) The citations which have been given over to us by the learned counsel for the petitioners are in fact mostly based on cases before the conviction recorded had not become final. Distinction must be kept in view regarding the proceedings of a murder case at the trial or appellate stage and after its conclusion finally upon and after recording of conviction. The accused who becomes a convict after the final conclusion of a case, would be governed under section 345 of the Cr.P.C. for effecting compromise if it was recorded under section 302(b) of the P.P.C. because the sentence of death awarded to such a convict has been passed after a considerable discussion, and keeping in view all the circumstances of the case and the mitigating circumstances also. If all the Courts up to the Hon'ble Supreme Court of Pakistan have maintained the sentence of death, it would convey the impression that case of the offender had required no other course or sentence except the capital punishment. Such sentence awarded cannot be lightly burshed aside by bringing one of the heirs, who may not be nearer to the deceased, but feeling love for the condemned prisoner and interested in getting the conversion of death sentence to the other kind of imprisonment. Conversion through this method would be against the interest of justice and the weight of the decisions. The compromise/compounding of section 345, Cr.P.C. is exception, benefit of which has been granted to a convict when he collects the consent of all the heirs of the deceased and gets waived/compromised his sentence of death or its conversion to other punishment collectively from them. Otherwise the decisions must and should retain their own effects and impacts. The latest law through citations of PLD 2003 Supreme Court 512…
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