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Petitioner: HUSSAIN BUX and others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Muhammad Mujeebullah Siddiqui, Azizullah M. Memon Title: HUSSAIN BUX and others vs THE STATE Case No.:Criminal Appeal No,D-33 of 1995, Criminal Jail Appeal No,D-39 of 1999 and
JUDGMENT
Reported As: PLD 2003 Karachi 127 Result: Order accordingly Judgment JUDGMENT MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---Hussain Bux son of Ali Gohar Aghani, Uris son of Ali Gohar, Islam alias Leemo son of Meenhal Aghani and Sikander Ali son of Islam alias Leemo Aghani, appellants in Criminal Appeal No,D-33 of 1995 have been convicted alongwith absconding accused Allah Bux, Meeroo and Abdul Sattar for the commission of offence punishable under section 302, read with section 149, P.P.C. And have been sentenced to suffer imprisonment for life and to pay fine of Rs,50,000 each and in default to undergo further rigorous imprisonment for two years. They have been further sentenced to pay compensation of Rs,50,000 each to the legal heirs of deceased Bashir Ahmed and Lutuf Ali. Each one of them has been further convicted under section 307, read with section 149, P.P.C. (section 324, P.P.0 as amended by Qisas and Diyat Ordinance) and have been sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs,5,000 each and in default to suffer further rigorous imprisonment for six months. Ashique son of Ghulam Nabi Aghani, appellant in Criminal Jail Appeal No,D-39 of 1999 (who was absconder during the course of trial) and absconding accused Ashraf have been convicted for Qatl-i-Amd punishable under section 302 read with section 149, P.P.C. And they have been sentenced to death by hanging by neck till their death when arrested. Both of them have been further sentenced to pay tine of Rs,100,000 each. In default to suffer rigorous imprisonment for three years more. They have been further convicted for the offence punishable under section 307 read with section 149, P.P.C. (section 324, P.P.C. As amended by Qisas and Diyat Ordinance) and have been sentenced to rigorous imprisonment for three years and to pay fine of Rs,5,000. In default to suffer further rigorous imprisonment for six months each. The movable and immovable properties
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of both these accused/convicts have been forfeited to Government. The amount of sale proceed of property forfeited, if recovered, was directed to be paid to the extent of Rs,100,000 to the legal heirs of each deceased as compensation. Appellant Ashique son of Ghulam Nabi and other absconding accused were convicted and sentenced in their absence. Subsequently appellant Ashique son of Ghulam Nabi Aghani was arrested and remanded in custody to serve out the sentence. Appellants Hussain Bux son of Ali Gohar, Uris son of Ali Gohar Aghani, Islam alias Leemo son of Meenhal Aghani (wrongly described in the title of judgment as Islam alias Leemo son of Punhal Aghani) and Sikander Ali son of Islam alias Leemo Aghani have preferred appeal against their conviction/sentence through their advocate, while appellant Ashique son of Ghulam Nabi Aghani preferred Jail Appeal. Subsequently Mr. Khalid lqbal Memon. Advocate was appointed as counsel for the appellant Ashique to defend him on State expenses. Learned trial Court submitted reference for confirmation of death penalty awarded to appellant Ashique and absconding accused/convict Ashraf which was registered as Criminal Reference No,5 of 1995. During the pendency of appeals and reference, the legal heirs of the deceased persons/victims namely Bashir Ahmed son of Gul Muhammad Aghani and Lutuf Ali son of Ali Nawaz Aghani, entered into compromise with appellants/convicts Islam alias Leemo son of Menhal Aghani, Sikander Ali son of Islam alias Leemo Aghani and Ashique son of Ghulam Nabi Aghani and compounded the offences. They submitted applications seeking permission to compound the offences and for the acceptance of the compounding of offences and acquittal of the three appellants/convicts named above. In accordance with the parameters rs laid down by the Honourable Supreme Court of Pakistan in such cases, the necessary enquiries were directed to be held. Mukhtiarkar Larkana was directed to submit the list of legal heirs of deceased Bashir Ahmed son of Gul Muhammad Aghani and Lutuf Ali son of Ali Nawaz Aghani. It was submitted in the application that the compromise was arrived, at the intervention of Nekmards of the locality and therefore, affidavits of the Nekmards were directed to be filed in respect of the compromise between parties. The affidavits were filed and report of the Mukhtiarkar Larkana was received and thereafter the matter was sent to the learned Sessions Judge, Larkana for necessary enquiry and recording statements of all. The heirs of the victim and for further ascertaining the legal heirs of the victim. The learned Sessions Judge held enquiry about the legal heirs of the victim and genuineness of the compromise arrived at between the parties. He reported that except the legal heirs who have entered into compromise with the three appellants/convicts named above, the victims had no other legal heir. He further reported that according to his enquiry the compromise is result of voluntary act on the part of legal heirs of the two victims, on the intervention of Nekmards and there was no coercion or undue influence for entering into compromise. Learned Sessions Judge, Larkana further reported that he has verified the authenticity of compromise deeds, submitted by the parties by calling the legal heirs of both the deceased and convicts who confirmed that they had entered into compromise on the intervention of Nekmards without any duress and coercion. All the legal heirs of deceased Bashir Ahmed are present today. Ali Nawaz and Mst.Rani father and mother respectively of deceased Lutuf Ali are also present. Muhib Ali, brother of deceased Lutuf Ali, is not present today but his absence is immaterial, because, the compromise/compounding/ waiver (Afw) of the Qisas or offence, can be entered into by the "Wali" of the deceased, meaning thereby the persons who have right of inherence, in respect of deceased, and when father and mother are alive, the brother is excluded from heirship/inheritance. In section 299(m), P.P.0 "Wali" is defined as a person entitled to claim Qisas and under section 305, P.P.C. It is provided that "Wali", in case of Qatl, shall be-- (a) the heirs of the victim, according to his personal law; (b) the Government if there is no heir.
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On enquiry by this Court all the Walis/legal heirs of the two deceased/victims have stated that there were long-standing enmities between the parties and persons from either side were murdered on account of the said old enmity. Thus there were murders and counter-murders. On the intervention of the Nekmards the parties have entered into compromise and have forgiven each other, thereby compounding the offence including in this case, without receiving monetary compensation. Mr. Ali Azhar Tunio, learned Asstt. A.-G. Contended that fine has also been imposed by the trial Court and the legal heirs of victims can give up the right of Qisas, right to receive their share of Diyat and the compensation but they cannot waive the fine which is to be deposited with the State. He has further submitted that the learned trial Court has further ordered that the movable and immovable properties of appellant Ashique and absconding accused Ashraf be forfeited to the Government of Sindh and amount of sale proceed of .Property forfeited, if recovered, be paid to the extent of Rs,100,000 to the legal heirs of each deceased. His contention is that the legal heirs of the deceased persons can waive the amount of compensation but the punishment of forfeiture of movable and immovable property cannot be waived. As a question of law having far-reaching effect is involved therefore, we requested Mr.Muhammad Bachal Tunio, Additional A.-G. To assist the Court and further requested Mr.Ali Nawaz Ghanghro, Advocate to assist the Court as amicus curiae. Learned advocates for the appellants as well as learned amicus curiae, have pointed out that offence was committed in the year 1994 and the amended provisions contained in Chapter XVI of P.P.C, is in force from the commencement of the Criminal Law (Second Amendment) Ordinance, 1990 (VII of 1990), as specified in section 338-H, P.P.C., therefore, the trial Court could not impose any fine for the offence punishable under section 302, P.P.C. The reason being that in the amended section 302, P.P.0 no punishment/sentence of fine is provided. In the amended section 302, P.P.C, the punishments provided are death as Qisas, death or imprisonment for life as Tazir or imprisonment of either description for a term which may extend to 25 years. Thus fine imposed by the learned trial Court under section 302, P.P.0 was the result of ignorance and is not sustainable under any law. Learned Additional A.-G. And learned Asstt. A.-G. Have not disputed this proposition of law. We have considered the above contentions and we are persuaded to agree with submissions of learned Advocates for the appellants and Mr.Ali Nawaz Ghanghro, the learned amicus curiae for the added reason that in section 338-E, P.P.C. It is provided that subject to the provisions of Chapter XVI, P.P.C. And section 345, Code of Criminal Procedure, 1898 all offences under this chapter may be waived or compounded and the provisions of sections 309 and 310 mutatis mutandis apply to the waiver or compounding of such offences. The expression used in this section is waiver or compounding the offence and not waiver or 'compounding of the punishment provided in law or awarded by the Court. For the sake of convenience, section 338-E, P.P.C. Is reproduced below: "S.338-E. Waiver or compounding offences.--(1) Subject to the provisions of this chapter and section 345 of the Code of Criminal Procedure, 1898, all offences under this chapter may be waived or compounded and the provisions of sections 309 and 310 shall, mutatis mutandis, apply to the waiver or compounding of such offences: Provided that, where an offence has been waived or compounded, the Court may, in its discretion having regard to the facts and circumstances of the case acquit or award Tazir to the offender according to the nature of the offence. (2) All questions relating to the waiver or compounding of an offence or awarding of punishment under section 310, whether before, or after the passing of any sentences shall be determined by the trial Court:
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Provided that whether the sentence of Qisas or any other sentence is waived or compounded during the pendency of an appeal, such questions may be determined by the Appellate Court." At this juncture, it would be appropriate to reproduce sections 309 and 310, P.P.C. For the purpose of comparison: "309. Waiver-Afw of Oisas in Oatl-i-Amd:--(1) In the case Qatl-iAmd an adult sane Wall may, at any time and without any compensation, waive his right of Qisas: Provided that the right of Qisas shall not be waived-- (a) where the Government is the Wali; or (b) where the right of Qisas vests in a minor or insane. (2) Where a victim has more than one Wali, any one of them may waive this right of Qisas: Provided that the Wali who does not waive the right of Qisas shall be entitled to his share of Diyat. (3) Where there are more than one victim, the waiver of the right of Qisas by the Wali of one victim shall not affect the right of Qisas of the Wali of the other victim. (4) Where there are more than one offenders, the waiver of the right of Qisas against one offender shall not affect the right of Qisas against the other offender. 310. Compounding of Oisas (Sulh) in Oatl-e-Amd.--(1) In the case of Qatl-i-Amd and adult sane Wali may, at any time on accepting Badli-Sulh, compound his right of Qisas: Provided that giving a female in marriage shall not be a valid BadlI-Sulh. (2) Where a Wali is a minor or an insane, the Wali of such minor or insane Wali may compound the right of Qisas on behalf of such minor or insane Wali: Provided that the value of Badl-i-Sulh shall not be less than the value of Diyat. (3) Where the Government is the Wali, it may compound the right of Qisas: Provided that the value of Badl-i-Sulh shall not be less than the value of Diyat. (4) Where the Badl-i-Sulh is not determined or is a property or a right the value of which cannot be determined in terms of money under Shariah the right of Qisas shall be deemed to have been compounded and the offender shall be liable to Diyat. (5) Badl-i-Sulh may be paid or given on demand or on a deferred as may be agreed upon between the offender and the Wali. Explanation.---In this section Badl-i-Sulh means the mutually agreed compensation according to Shariah to be paid or given by the offender to a Wali in cash or in kind or in the form of movable and immovable property." A perusal of section 309 shows that it speaks of waiver (Afw) of the right of Qisas and section 310 speaks of compounding of the right of Qisas by accepting Badl-i-Sulh, while in section 338-E, P.P.C. It is provided that subject to the provisions of Chapter XVI and section 345 of the Code of Criminal Procedure. All offences under Chapter XVI, P.P.C. May be waived/compounding. A waiver or compounding of offences under Chapter XVI, P.P.C. Is subject to the provisions contained in section 345, Cr.P.C., therefore, it would be appropriate to reproduce the relevant provisions contained in section 345, Cr.P.C.: "S.345. Compounding offences.---(1) The offences punishable under the sections of the Pakistan Penal Code specified in the first two columns of the table next following may be compounded by the persons mentioned in the third column of that table. (2) The offences punishable tinder the sections of the Pakistan Penal Code specified in the first two columns of the table next following may, with the permission of the Court before which any prosecution for such offence is pending, be compounded by the persons mentioned in the third column of that table: (3) When any offence is compoundable under this section, the abatement of such offence or an attempt to commit such offence (when such attempt is itself an offence) may be compounded in like manner.
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(4) When the person who would otherwise be competent to compound an offence under this section is under the age of eighteen years or is an idiot or a lunatic, any person competent to contract on his behalf may with the permission of the Court compound such offence. (5) 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. (5-A) A High Court acting in the exercise of its power of revision under section 439 (and a Court of Session so acting under section 439-A), may allow any person to compound any offence which he is competent to compound under this section. (6) The composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded. (7) No offence shall be compounded except as provided by this section." A perusal of section 345, Cr.P.C. Also shows that it speaks of compounding of offences and not of mere punishment. A perusal of provisions contained in sections 309 and 310 shows that the waiver/compounding of the right of Qisas does not have the effect of acquittal of accused of the charge of Qatl-i-Amd but has the effect of conversion of punishment of Qisas to the payment of Diyat or Badl-i-Sulh. We are fortified ir our views with the provisions contained in section 53 which bas been substituted by Criminal Law (Amendment) Act (II of 1997), through which the provisions contained in sections 299 to 338, Chapter XVI were substituted. In section 299, P.P.C. Qisas, Diyat, Arsh, Daman and Tazir have been included in the kinds of punishments to which the offenders are liable under the Pakistan Penal Code. We would like to clarify that an adult sane "Wali" has a right to waive the right of Qisas and to retain his right of receiving Diyat or may waive the right of Qisas as well as Diyat, which is a compensation/substitute for the waiver of right of Qisas. Thus if a "Wal." of deceased/victim waives the right of Qisas as well as compensation i,e, Diyat, the offender is to be acquitted of the charge. However, if the "Wali" has merely waived the right of Qisas then the offender is liable to be convicted for Qatl-i-Amd or as the case may be and is liable to the sentence of paying compensation by way of Diyat or payment of Badl-i-Sulh. The reason being that Qisas and Diyat are two distinct punishments and are not the same kind of punishment. For this reason Qisas and Diyat are separately and distinctly mentioned in section 53, P.P.C. Which enumerates different kinds of punishments to which offenders are liable under the provisions of P.P.C., Qisas and Diyat have been defined separately in section 299, P.P.C. As follows: "S.299(k). 'Qisas'{{URDU TEXT}} means punishment by causing similar hurt at the same part of the body of the convict as he has caused to the victim or by causing his death if he has committed Qati-i-Amd in exercise of the right of the victim or a Wali." "S.299(e). 'Diyat' {{URDU TEXT}} means the compensation specified in section 323 payable to the heirs of the victim;" ' It would be appropriate to reproduce section 323, P.P.C. In which value of Diyat is given which reads as follows: "S.323. Value of Diyat.---(1) The Court shall, subject to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah and keeping in view of the financial position of the convict and the heirs of the victim fix the value of Diyat which shall not be less than the value of thirty thousand six hundred and thirty grams of silver. (2) For the purpose of subsection (1), the Federal Government shall, by notification in the official Gazette declare the value of silver on the first day of July each year." ' Reverting back to the provisions contained in sections 338-E, P.P.C. And 345, Cr.P.C., we find that the effect of waiver or compounding of the offence is provided in the sections. In proviso to subsection (1) 338-E, P.P.C, it is contained that where wherein an offence has been waived or compound, the Court may in its discretion having regard to the facts and circumstances of the
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case, acquit or award Tazir to the offender according to the nature of the offence. Thus the first effect of the compounding/waiver of offence by the "Wali" of the deceased/victim in case of Qatl and by the victim himself, in the case of causing hurt, would be the acquittal of the offender. However, the Court may award Tazir to the offender according to the nature of offence. We will (sic) available with Court presently likewise it is provided in subsection (6) of section 345, Cr.P.C. That the composition of an offence under this section shall have the effect of an acquittal of accused with whom the offence has been compounded. It is established principle of interpretation of statutes, that when different words and expressions are used by the Legislature, in same section or different sections of the same statute, then such different words and expressions shall connote different meanings and convey different intentions of the Legislature. Adhering to this principle of interpretation of statutes, we are of the considered opinion that whenever there is waiver of right of Qisas either in which by the "Wali" of deceased or by the victim himself, as the case may be, they still retain the right to receive Diyat or Sulh-i-Badl and the offender shall be convicted accordingly for the offence committed and shall be liable to pay, Diyat or Sulh-i-Badl as the case may be. However, if the "Wali" or victim waives the right of Qisas without any compensation, it would be a case of acquittal of the accused subject to the discretion available with the Court to award punishment by way of Tazir under the provisions of section 311, P.P.C. Read with section 338-E(i), P.P.C. ' A perusal of the above provisions of law leads to the logical conclusion that when an offence is waived or compounded, then no punishment can be awarded except under the. Proviso to section 338-E(i), P.P.C. And section 311, P.P.C. Which empower the Court to award punishment by way of Tazir notwithstanding the waiver or compounding of offence and the Court has to exercise its discretion having regard to the facts and circumstances of the case and nature of offence as well as keeping in view the principle of Fasad-fil-Arz. At this stage it would be appropriate to reproduce section 311, P.P.C. Which reads as follows: "311. Ta'zir after waiver or compounding of right of Qisas in Qatl-i-Amd.--Notwithstanding anything contained in section 309 or section 310 where all the Walis do not waived or compounded the right of Qisas or keeping in view the principle of Fasad-fil-Arz the Court may, in its discretion having regard to the facts and circumstances of the case, punish an offender against whom the right of Qisas has been waived or compounded with imprisonment of either description for a term which extended to fourteen years at Ta'zir.Explanation.--For the purpose of this section, the expression Fasadfil-Arz shall include the past conduct of the offender as being a previous convict, habitual or professional criminal and the brutal manner in which the offence is committed." The result of above discussion is that when the offence is waived or compounded and the Court is accepting the compounding/waiver of the offence, then the convicted person is/are to be acquitted, until and unless, the Court is of the view that punishment is to be awarded by way of Tazir. In the absence of an order awarding Tazir, the accused persons are to be acquitted and the expression acquittal means a declaration that a person is found not guilty of the offence and means the process of freeing or being freed from a charge especially by a judgment of not guilty. Once the accused is acquitted of the charge then there can be no punishment. Since in this case, we are not persuaded to impose any punishment by way of Tazir, therefore, the only option left with this Court would be to acquit the appellants/convicts. At this juncture we would like to refer to another objection of Mr.Ali Azhar Tunio, learned Assistant A.-G to the effect that the offence under section 302, P.P.C. Is compoundable, while the offence under section 149, P.P.C. Is not compoundable. Although in Second Schedule to Cr.P.C. It is contained that the offence under section 149, P.P.C. Is not compoundable but we are persuaded to agree with the views of Mr.Muhammad Bachal Tunio, learned A.A.-G. And Mr.Ali Nawaz Ghanghro Advocate, the learned amicus curiae, that offence under section 149, P.P.C. Is by way of constructive liability and when the
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main offence is allowed to be compounded and the persons who have taken specific part in the commission of offence are allowed to compound, then the persons who are convicted on account of being merely members of unlawful assembly are also entitled 'to the concession of compromise/compounding/waiver, otherwise it would not be in consonance with the principles of justice, in accordance with the Injunctions of Islam as laid down in Holy Qur'an and Sunnah. It is provided in section 338-F, P.P.C. That in the interpretation or application of the provisions of Chapter XVI, P.P.C. And interpretation of matters ancillary or akin thereto, the Court shall be guided by the Injunctions of Islam and laid down in the Holy Qur'an and Sunnah. ' The above points came for adjudication before this Court and the Honourable Supreme Court in several cases. We would like to refer few Judgments in this regard. In the case of Moula Bux v. State 1992 M LD 1590, a learned Single Judge of this Court after referring to the provisions contained in sections 300, 305, 306, 309, 310 and 311, P.P.C. As well as subsections (5), (6), (7) of section 345, Cr.P.C. Observed that the composition of an offence shall have the effect of acquittal of an accused with whom the offence has been compounded. It was further observed that father and mother of deceased respectively were "Wali" of the deceased and they have pardoned the offender/appellant without fear or favour, and have waived their right to claim compensation from the appellant and therefore, the compromise was accepted and the appellant was acquitted. We are in respectful agreement with the above view taken by the learned Single Judge. However, we are not persuaded to agree with the following observation/finding of the learned Single Judge: "While taking wholesome view of the above amendment both in Pakistan Penal Code, 1860, a substantive law and in the Code of Criminal Procedure, 1898 a procedural law it is obvious that the provisions of section 311, P.P.C. Will be…
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