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Petitioner: SHAFQAT @ SHAFAAT VS Respondent: STATE
Court Name: Supreme Court of Pakistan Judge(s): Gulzar Ahmed, Qazi Faez Isa, Yahya Afridi Title: SHAFQAT @ SHAFAAT vs STATE Case No.: Crl. Misc. Appln. No. 693 of 2018 & Jail Petition No. 427 of 2016 Date of Judgment:2018-07-30 Reported As: PLJ 2019 SC (Cr.C.) 323 Result: Application allowed
JUDGMENT
JUDGMENT Qazi Faez Isa, J.--The petitioner was convicted under sectio n 302 (b) of the Pakistan Penal Code, 1860 ("PPC") as ta'azir , in a case arising out of FIR No, 198/2012 dated 14th July, 2012 which was registered at Police Station Kahuta, District Rawalpindi under sections 302 and 34 of the PPC for the murder of Zahir Mehmood (also known as Zahir Hussain) and sentenced to death vide judgment dated 28th March, 2013 of the Sessions Judge, Rawalpindi. The learned judges of the High Court vide impugned judgment dated 1st June, 2016 upheld the conviction but reduced the petitioner's sentence of death to imprisonment for life, whilst maintaining the compensation of one hundred thousand rupees payable to the heirs of the deceased under section 544-A of the Code of Criminal Procedure, 1898 ("the Code"). 2. An application (Criminal Miscellaneous Application No, 693 of 2018) ("the Application") was submitted by the complainant stating that "compromise has been affected and the legal heirs of the deceased have forgiven the convict/accused in the name of Allah." The learned Sessions Judge, Rawalpin di, was asked to determine the veracity of the contents of the Application. He reports that the deceased was not married and was survived by a mother and father , his only legal heirs. Statements on oath of the deceased's mother and father were recorded who testified that they had forgiven the convict (the petitioner) in the name of Almighty Allah for the murder of their son. The learned Additional Prosecutor General, Punjab, representing the State, does not oppose the Application. 3. The petitioner has served more than six years and a half years of his sentence and the legal heirs of the deceased have forgiven the petitioner . The State does not oppose the Application and there is no reason for us not to accept the compromise. Accordingly , the compromise whereby the legal heirs of the deceased have forgiven the petitioner-convict is accepted. The question now arises whether , as a conse quence of accepting the said compromise, the petitioner-convict's conviction is to be set aside and he be acquitted or instead without setting aside his conviction and acquitting him he is only saved from punishment.
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4. The petitioner was convicted for qatl-i-amd (murder), as ta'azir by the Sessions Judge, and his conviction was upheld by the High Court, and these two judgments have been assailed in this petition. However , before the grant of leave to appeal the heirs of the murdered victim forgave the petitioner-convict and submitted the Application. Subsection (5) of section 345 of the Code stipulates that, when the accused has been convicted "no composition for the offence shall be allowed without. the leave of the Court". And, subsection (6) of section 345 of the Code states that, "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". Significantly , it does not state that upon the acceptance of the composition (compromise) the conviction of the convict shall be set aside and or that he be acquitted. The "effect of an acquittal" does however bring to an immediate end the sentence of the convict. 5. We are aware that a practice has developed that upon accepting the compromise submitted under section 345 (6) of the Code the conviction is automatically set aside and the convict is "acquitted". This is done without hearing the case. One of us (Qazi Faez Isa, J) had reservations regarding this automatic-acquittal methodology , whilst considering a similar application, therefore he observed: "7. Therefore, whilst I agree with the conclusion reached by my learned brother that the application for compounding the offences be accepted, i cannot agree that as a consequence the appellant/convict should be "acquitted of the charges" and thus completely exonerated. However , since Section 345(6) of the Code has not been examined and interpreted in the aforesaid manner therefore the Hon'ble Chief Justice is requested to take notice of this matter under Article 184(3) of the Constitution as it is a question of public importance involving the enforcement of Fundamental Rights. The office is directed to place the matter before the Hon'ble Chief Justice of Pakistan for appropriate orders." 6. The aforesaid note which is dated 31st March, 2017, resulted in Suo Moto Case No, 03 of 2017 ("the SMC"), which was heard during the summer vacations, on 27th June, 2018. However , the author of the note (Qazi Faez Isa, J) was not a member of the three-member Bench which heard the SMC. Our very distinguished and learned brethren decided the SMC in the following terms: "(i) As provided by the provisions of section 338-E (1), PPC and the first proviso to the same and as already declared by this Court in the case of Chairman Agricultural Development Bank of Pakistan and another v. Mumtaz Khan (PLD 2010 SC 695) as a result of a successful and complete compounding of a compoundable offence in a case of Ta'zir under section 345, Cr.P.C., with permission or leave of the relevant Court where required, an accused person or convict is to be acquitted by the relevant Court which acquittal shall erase, efface, obliterate and wash away his alleged or already adjudged guilt in the matter apart from leading to setting aside of his sentence or punishment, if any ." "(ii) In the context of the provisions of section 345 (6), Cr.P.C, the effect of an acquittal recorded by a Court on the basis of a successful and complete compounding of a compoundable offence shall include all the benefits and fruits of a lawful acquittal." The case of Chairman Agricultural Development Bank ' ("the Bank case"), referred to in the SMC judgment was a service appeal assailing the decision of the Federal Service Tribunal. This Court in the Bank case had observed that the appeal , "throws up an issue which has never been brought up before this Court earlier" . The question in the Bank case was whether an employee of the Agricultural Development Bank of Pakistan ("the Bank") who had been terminated from service, because he had been convicted for murder , should be reinstated after he had compromised with the heirs of the murdered person. The Federal Service Tribuna l, with a majority of two to one, decided that the sacked employee was entitled to be "reinstated in service with all the back benefits", that is, he was not only reinstated but also paid salary , etc., for the period he remained imprisoned and had not worked for the Bank. The Bank appealed. A two-member Bench of the Supreme Court dismissed the appeal. In dismissing the appeal it was held that, "His conviction in the case of murder was the only ground on which he had been removed from service and the said ground had subsequently disappeared through his acquittal, making him re-emerge as a fit and proper person entitled to continue with his service. "' This conclusion was arrived at because , "according to our humble understanding of the Islamic jurisprudence, Afw (waiver) of Sulh (compounding) in respect of an offence has the effect of purging the offender of the crime" However , before the determination of this important1 2 3 4 5 6 7 8 9 10
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jurisprudential point assistance was not sought from the Attorney General of Pakistan and/or Advocate Generals, nor the views of the governments with regard thereto ascertained. 7. This Court had however issued notices in the SMC case to the law officers of the Federal and all four provincial governments and of the Islamabad Capital Territory . An Assistant Attorney General of Pakistan; the Additional Advocate Generals of the four provinces and the Advocate General of the Islamabad Capital Territory attended the hearing and all of them: "... submitted in complete unison that in Islamic jurisprudence and in the system of administration of criminal justice in vogue in this country a composition of a, compoundable offence leads to and results in acquittal of the accused person or convict concerned. They have also submitted that any confusion created by the words "effect of an acquittal" used in section 45(6), Cr.P.C. now stands removed by the word "acquit" used in the subsequently introduced first proviso to section 338-E (1), PPC and its interpretation by this Court in the case of Chairman Agricultural Development Bank of Pakistan and another v . Mumtaz Khan ( PLD 2010 SC 695 )." From the aforesaid it becomes apparent that proper assistance may not have been rendered during the hearing of the SMC because the relevant law was not cited and the applicable Islamic provisions not referred to. Therefore, in our opinion this issue needs a thorough re-examination. We have come to this conclusion after examining the relevant law , the applicable provisions of the Holy Qur'an, and the mariner in which the law had been changed. 8. On 11th December 1996 a Presidential Ordinance was .enacted. Through this Ordinance large scale changes were made. As the validity of a Presidential Ordinance is only four months, Parliament upon the expiry of four months, enacted the Criminal Law (Amen dment) Act, 1997 (Act II of 1997) on 11th April, 1997. The Criminal Law (Amendment) Act, 1997 ("the Amendment") sustained the significant changes that had been made in the PPC and the Code by the said Ordinance. These changes were made with the stated objective of bringing the PPC and the Code, "in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah." 9. After the Amendment Section 300 of the PPC, which defined the offence of murder , was amended and murder was designated as qatl-i-amd . Section 302 (b) of the PPC prescribes the punishment for qatl-i-amd (murder) as ta'azir , to be death or imprisonment for life. Sub-section (1) of Section 345 of the Code states that, "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"; the three columns of the table are respectively titled "Offenced", "Sections of Pakistan Penal Code applicable" and "Persons by whom offence may be compounded". Qatl-i-amd, the punishment of which is prescribed in Section 302 PPC, was added to the table under Section 345(1) of the Code and "the heirs of the victim" were empowered to forgive the accused/convict. This matter pertains to qatl-i-amd (murder) therefore the scope of its comp ounding also needs to be examined. Prior to the Amendment only non-serious offences attractin g short sentences could be compromised/compounded; the of fence of murder and other serious of fences could not be compounded. 10. To further ensure that the criminal law of the country fully conforms to Islam, two new Sections were added in the P.P.C. Section 338-F of the PPC, reproduced hereunder , mandates that Islamic injunctions will be the determining factor in the interpretation of these provisions: "338-F . Interpretation . In the .interpretation and application of the provisions of this Chapter , and in respect of matters ancillary or akin thereto, the Court shall be guided by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah." The "Chapter " referred to in Section 338-F of PPC was to Chapter XVI of the PPC which pertains to "Offences Affecting the Human Body ." The other new section which was added to PPC was Section 338-G, which empowered the Government to make rules "for carrying out the purposes of this Chap ter" in "consultation with the Council of Islamic Ideology". The only rules made pursuant to Section 338-G of the PPC are the Diyat, Arsh and Daman Fund Rules, 2007' . Rules have as yet not been made which may help determine the matter under consideration. It may be mentioned that the Constitution of the Islamic Republic of Pakistan also requires that all "laws be brought in conformity with the injunctions of Islam as laid down in the Holy Qur'an and Sunnah". 11. Murder , in Islam, is an abominable crime. Almighty Allah abhors taking human life which. He has made "sacred" "If a man kilts a believer intentionally , his recompense is Hell, to abide therein (for ever) and the wrath11 12 13 14 15 16 17 18 .19
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and the curse of Allah are upon him, and a dreadful penalty is prepared for him." Almighty Allah, however , urges believers not to resort to revenge-killing. The Holy Qur'an sought to bring to an end the prevalent practice of endless blood feuds. It encouraged the victim's family to forgive. "0 you who believe! The law of equality is prescribed to you in cases of murder: the free for the free, the slave for the slave, the woman for the woman. But if any remission is made by the brother of the slain, then grant any reasonable demand and compensate him with handsome gratitude, this is a concession and a Mercy from your Lord. After this whoever exceeds the limits shall be in grave penalty ." "This verse, which pertains to murder , addresses the heirs of the victim and advises them that instead of avenging the crime they should earn the favour and Mercy of Almighty Allah by entering into a compromise. Another verse which says the same also adds a warning to judges: "We ordained therein for them: 'Life for life, eye for eve, nose for nose, ear for ear, tooth for tooth, and wounds equal for equal.' But if anyone remits the retaliation by way of charity , it is an act of atonement for himself. And if any fail to judge by (the light of) what Allah has revealed, they are (no better than) wrongdoers "' Almighty Allah does not favour exces sive retributive - punishment and encourages reconciliation: "The recompense for an injury is an injury equal thereto (in degree): but if a person forgives and makes reconciliation, his reward is due from Allah: for (Allah, loves not those who do wrong. " These, verses address the heirs of a murdered person and those who are injured. Forgiveness earns the Mercy and Reward of Almighty Allah. We have not been able to discover a single verse of the Holy Qur'an which states that if a person is forgiven/pardoned his/her , crime is erased effaced, obliterated or washed away . 12. The SMC case judgment refers to Sections 309 and 310 of the P.P.C, highlig hts the words afw and sulh and explains what they mean. Section 309 PPC uses the Arabic word afw (comprising of the letters: ayn fay waw), translates it as waiver , and states that the victim or the victim's heir may "without [receipt of] any compensation , waive his right of qisas ". Section 310 P.P.C. uses the, Arabic word sulh, translates it as compounding, and states that the victim or the victim's heir may "on accepting badal-i-sulh, compound his right of qisas ". Badal-i-sulh is defined to mean "the mutually agreed compensation according to Shari'ah to be paid or given by the offender" 13. The word afw, in its different forms occurs about thirty times in the Holy Qur'an but in none of the verses where it is used does it mean the erasure of the crime even though it has been forgiven. The word afw, and its derivates, are used in the following verses of the Holy Qur'an: Surah and verse Word Translation Al-Baqarah (2), 52 afawna "We [Allah] forgave" Al-Baqarah (2), 109 fa-ifu "so forgive" Al-Baqarah (2), 178 ufiya "is pardoned for it" [murder] Al-Baqarah (2), 187 wa'afa "and He [Allah] forgave you" Al-Baqarah (2), 237 ya'funa, Yafuwa ta'fu(regarding dower) "they forego" (regarding dower) "foregoes" (regarding dower) "you forego" Al-Baqarah (2), 286 wa-u'fu "and (Almighty Allah) pardon us and forgive us and have mercy on us" Al-lmran (3), 152 'afa "He [Allah] forgave" Al-Imran (3), 155 'afa "Allah forgave" Al-Imran (3), 159 fa-u'fu "then pardon and ask forgiveness for them" Almighty Allah addressing the Messenger , peace and blessings be upon him) An-Nisa (4), 99 Ya'fuwa, Afuwan"Allah will pardon" "Allah is the Pardoner" An-Nisa (4), 149 ta'fu "pardon" and "surely Allah is ever pardoning" An-Nisa (4), 153 fa'afawna "so W e [Allah] forgave them" Al-Maidah (5), 13 fa-u'fu "but forgive them"20 21 22 23 24 -
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Al-Maidah (5), 15 waya'fu "you used to hide in the Book" Al-Maidah (5), 95 'afa "Allah forgives what is in the past, for repetition Allah will punish" Al-Maidah (5), 101 'afa "Allah will forgive" Al-A'raf (7),95 'afaw "they increased" At-Tawbah (9), 43 'afa "Allah forgives" At-Tawbah (9), 66 na'fu "We [Allah] pardon" An-Nur (24), 22 walya'fu "and let them forgive" Ash-Shura (42), 25 waya'fu "and He [Allah] is the One that accepts repentance (tawbah) from His slaves and forgives" Ash-Shura (42), 30 waya'fu "and for many (a sin) He [Allah] grants forgiveness" Ash-Shura (42), 34 waya'fu "but much does He [Allah] pardon" Ash-Shura (42), 40 'afa "if a person forgives and makes reconciliation his reward is due from Allah" At-Taghabun (64), 14:ta'fu "but if you forgive (ta'fu) and watasfahu overlook" 4. Forgiveness (tawbah ) is premised upon seeking it. "And He [Allah] is the One that accepts repentance (tawbah) from His slaves and forgives." Tawbah is not sought for something not done. The wrongdoer may seek forgiveness from the person wronged. Forgiveness is not sought by the innocent. Forgiveness is premised on the acknowledgment of the wrong, which in a case of murder means admitting having committed the murder . It is our understanding that forgiveness or pardon does not erase or obliterate the crime, it simply withholds the punishment. The Qur'an negates the concept of obliteration of the crime, even if it has been forgiven, and its repetition attracts punishment - "Allah forgives what is in the past, for repetition Allah will punish." The record therefore remains intact.. Sections 309 and 310 of the PPC respectively attend to the matter of afw (waiver) and sulh (compounding) but neither section states that afw or sulh ' results in the erasure of the crime from the record. 15. Section 338-E of the PPC enables certain offences to be "waived or compounded and the provision of Sections 309 and 310 shall, mutatis mutandis, apply to the waiver or compounding of such offences". However , this section commences by stating that it is "subject to the provisions of this Chapter and Sectio n 345 of the Code". The proviso to this section further states that the Court is not bound to accept the compromise and retains the "discretion having regard to the facts and circumstances of the case, acquit or award taz'zir to the offender according to the nature of the offence." Therefore, if the perpetrator of the crime, which has been waived/compounded, is to be acquitted this may only be done after the facts and circumstances of the case have been considered, that is, after hearing the case. The law does not state that the Court has to acquit the accused-convict simply because the offence has been waived or compounded . We have not been able to discover any provision either in the PPC or the Code which explicitly , or impliedly , mandates that a convict's conviction shall be set aside when the compromise is accepted. Nor, in our opinion, can this be done by relying on subs ection (6) of Section 345, which states that the composition, "shall have the effect of an acquittal ". 16. Section 345 of the Code is stated to provide "the mechanism for such compounding" . However , Section 338- E of PPC is "subject to the provisions of this Chapter of the PPC) and Section 345 of the Code." Section 338-F of the PPC stipulates that in the interpretation of these provisions the Court "shall be guided by the Injunctions of Islam, as laid down in the Holy Qur'an and Sunnah". The learned law officers who attended the hearing of the SMC ease appear not to have rendered assistance, they did not refer to said Secti ons of law, nor to a single verse of the Holy Qur'an and/or to the teachings of Prophet Muhammad (peace and blessings be upon him). The SMC judgment refers to the words afw and sulh and derives the meaning of the word afw from a dictionary compiled by Thomas Patrick Huges. " The quoted entry in Huges' dictionary mentions two verses which however do not state, that if a victim or a deceased victim's heir forgives (afw) or compounds (sulh) the crime is erased, effaced, obliterated and or washed away ., 25 26 27 28 29 30
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17. A judgment in a criminal case has two components; the determination, on the basis of the evidence, whether the accused has committed the crime, and if he has, the appropriate punishment to be given, that is, the sentence . Conviction and sentence are two distinct components of a judgment. Conviction for qatl-i-amd under Section 302(b) is a sentence of death or imprisonment for life. The Code at a number of places also clearly distinguishes between conviction and the sentence to be imposed if the crime is proved. Sentences of death and the manner in which they are to be executed are dealt with in two Chapters of the Code. A sentence of death is required to be confirmed by the High Court" and, after it is confirmed by the High Court, it is to be executed in terms of Section 381 of the Code. The Amendment added an important proviso to Section 381, as under: "Provided that the sentence of death shall not be executed if the heirs of the deceased pardon the convict or enter into a compromise with him even at the last moment before execution of the sentence." The sentence, which follows a convictio n, can be brought to an end by the victim or by the victim's heirs by forgiving the convict and this may also be done by an executive pardon. However , neither individuals, who are entitled to compound, nor the executive, which has the power to pardon, can exercise judicial power by setting aside a conviction and or acquit a convict . Section 345(6) of the Code, in stating that a composition shall have the effect of an acquttial reiterates this principle . 18. The SMC judgment also refers to a number of old Indian precedents, a book of philosophy , English language and foreign law dictionaries. The concept of forgiving a murderer by his heirs, however , does not exist in the jurisdictions from which such material was gathered. In Pakistan this concept was introduced in the year 1996 when Chapter XVI of the PPC and Section 345 of the Code were amended with the objective of bringing them into conformity with Islam. The victim of a crime can pardon/forgive the person who has wronged him/her . The dead however can neither pardon nor forgive. Pain and suffering is caused to the heirs of a murdered person and the Holy Qur'an empowered them to forgive the murderer . Forgiveness is premised on guilt having been established and or acknowledged. The Holy Qur'an does not state that if a murderer is pardone d/forgiven he stands exonerated or "acquitted" of the crime or to use the language of the SMC judgment, "erase, efface, obliterate and wash away his alleged or already adjudged guilt in the matter apart from leading to setting aside of his sentence or punishment." The SMC judgment further states that, "compounding of the compoundable offence shall include all benefits and fruits of the lawful acquittal". In our opinion neither Islam, nor the law, permits such largesse to be bestowed upon a murderer who has taken a sacred. It is more than a sufficient benefit when the murderer is no longer imprisoned and is set free. 19. If however the conviction of a murder is set aside and he is acquitted it means that he/she did not commit the crime, which creates a factual fiction. And, such factual fiction has repercussio ns. Applying for employment a pardoned convict need not disclose his conviction, including when seeking emplo yment in respect of role model positions, of a teacher or in respect of sensitive jobs or where moral integrity is an employment prerequisite. An acquittal is also stated to be a "double presumption of innocence. It may be said that thieves and murderers do not serve society . Hiring or retaining a thief or a murderer as a cashier , teacher , policeman or judge would be irresponsible and dangerous. 20. Murder and serious offences can not be compounded in Commonwealth countries, in European countries and the United States of America ("USA"), countries of which legal precedents, in the absence of local precedents, are referred to by this Court. These countries have considered the scope and effect of a pardon by the executive (the Head of State or other designated authority), therefore, the analogous principles derived from the use of an executive pardon may be relevant. An old USA judgment stated that the pardon given to the offender also removes his guilt: "A…
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