PLJ 2006 SC 59
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan,
Khalil-ur-Rehman Ramday & Muhammad Nawaz Abbasi, JJ.
GHULAM FARID alias FARIDA--Petitioner
versus
STATE--Respondent
Crl. Petition No. 327-L of 2003, decided
of 30.3.2005.
(On appeal from the judgment dated
5.3.2003 of the Lahore High Court, Multan Bench passed in Crl. Revision No.
160/1999).
(i)
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 345 & 561-A--Constitution of
(ii)
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 396 & 412--Criminal
revision--Application for acquittal--Compromise basis with legal heirs of deceased--Conviction
and sentence for committing an offence of dacoity with murder--Award of death
sentence and 10 years imprisonment with direction to pay compensation to legal
heirs of the deceased--It is a question for consideration as to whether a Court
on the basis of compromise of an offender with victim or with the legal heirs
of deceased, can compound an offence which is non-compoundable in statutory law
in light of concept of forgiveness in Islam--It is permissible for Courts to
give effect to the compromise between the parties at any stage of proceedings
before after final conclusion of the matter whereas a compromise in
non-compoundable offences, cannot be given legal cover at any stage--Offence of
murder punishable with death u/S. 302(a) as Qisas and u/S. 302(b) as Tazir is
compoundable under the law but murder taken place during the course of
committing dacoity punishable with death u/S. 396 PPC is not compoundable. [P. 63] B & D
(iii)
Punishment in Islam--
----There are two kinds of punishment as Hadd
or Tazir. [P. 63] C
(iv)
----Ss. 309, 310 &
338(E)--Waiver--Compoundable of Qisas (Sulha)--Waiver or compoundable of
offences--Offence of dacoity with murder--Trial by special Court under
Anti-Terrorism Act, 1997--Conviction and sentence--Leave to appeal--Dismissal
thereof--Petitioner filed an application before trial Court for compounding the
offence on the basis of compromise in terms of Sections 309, 310, 338(E) which
was dismissed. Criminal revision also dismissed by High Court--Leave to appeal
was granted to consider the question as to whether the Courts can compound an
offence which is non-compoundable in statutory law in light of concept of
forgiveness in Islam--The offence of dacoity is not compoundable either under
pure Islamic law or under the statutory law of Pakistan--It has no substance
that Qatl with no distinction is compoundable in Islam and bar of statutory law
would not be applicable--The provision could not be made applicable to give
effect to a compromise is a non-compoundable offence under law. [P. 64] E & F
(v)
Constitution of
----Art. 187--Pakistan Penal Code, (XLV
of 1860), Ss. 309, 310, 324, 338(E), 338(F) Compromise in a non-compoundable
offence--Dacoity committing of--Interpretation and application of
provision--Courts can interpret the provisions of law but cannot change and
substitute such provision, and cannot go beyond wisdom of law--Question
relating to quantum of sentence on the basis of compromise between the parties
in such a heinous offence is considered a crime against the society--Petition
dismissed. [P. 65] G & H
2004 SCMR 1170, ref.
Qazi M. Salim, Sr. ASC, for Petitioner.
Mr. Nasir Saeed Sheikh, DAG, Mr. Aftab
Iqbal Ch. A.G. Pb., Ms. Afshan Ghazanfar, AAG, Syed Sajjad Hussain Shah, AAG,
Mrs. Isa Khan, Addl. A.G. NWFP and Raja Abdul Ghafoor, ASC on behlaf AG Sindh
for the Respondent.
Date of hearing : 30.3.2005.
Judgment
Muhammad Nawaz Abbasi, J.--This petition
is directed against the judgment dated 5.3.2003 passed by a Division Bench of
the Lahore High Court, Multan Bench in a Criminal Revision petition arising out
of a miscellaneous application filed by the petitioner before the trial Court
for his acquittal from the charge under Section 396 PPC on the basis of his
compromise with the legal heirs of deceased.
2.
The petitioner alongwith four others, was tried for the charges u/S. 396
PPC read with Section 412 PPC for committing an offence of dacoity with murder,
by the Special Court established under Anti-Terrorism Act, 1997, Dera Ghazi
Khan and having been found guilty of the charge, was sentenced to death under
Section 396 PPC and imprisonment for a term of 10 years with fine under Section
412 PPC with direction to pay compensation to the legal heirs of the deceased.
The criminal appeal filed by the petitioner against his conviction and sentence
was dismissed by a Division Bench of the Lahore High Court Multan Bench, vide
judgment dated 7.10.1997 and further criminal petition for leave to appeal
filed by him before this Court, was also dismissed. Subsequently, the
petitioner having entered into a compromise with the legal heirs of the
deceased, moved an application before the trial Court for compounding the
offence on the basis of compromise a in terms of Sections 309 and 310 read with
338 (E) PPC and on dismissal of this application by the trial Court vide order
dated 1.7.1999, he filed a criminal revision in the High Court which met the
same fate and was dismissed, vide impugned judgment.
3.
The learned counsel for the petitioner has contended that since the
legal heirs of Manzoor Amin, deceased have forgiven the petitioner in the name
of Almighty Allah, therefore, notwithstanding the statutory provisions of
Section 345 Cr.P.C., according to which an offence under Section 396 PPC is not
compoundable, it would be deemed to have been compounded as ordained in Ayat
Nos. 178 and 179 of Sura Al-Baqar in the Holy Quran, wherein Almighty Allah has
commanded as under:--
178. ye
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.
179. In
the Law of Equality there is (saving of) life to you, O ye men of
understanding; that he may restrain yourselves.
4.
Learned counsel forcefully argued that the law of the Holy Quran is
supreme and the statutory law which is in conflict to the law of Quran, must be
ignored and that in the light of Philosophy of punishment in Islam, all types
of murders are compoundable notwithstanding the reason and the circumstances
under which murder is committed. The learned counsel submitted that since the
legal heirs of the deceased have forgiven to the offender in the name of
Almighty Allah, therefore, the provisions of Section 345 Cr.P.C. of statutory law
making an offence under Section 396 PPC non compoundable being not in
consonance with the Injunctions of Islam would be deemed to be unIslamic and
must be ignored and added that since in consequence to the compromise of the
petitioner with the legal heirs of deceased, he has adequately compensated them
which fact stood verified from the report sent by the learned Sessions Judge,
Layyah to the Deputy Registrar (Judicial) of the Lahore High Court, Multan
Bench, therefore, there would be no legal bar in giving effect to the
compromise. The learned counsel states that in the light of observation made by
the High Court the petitioner has also filed a shariat petition before the
There is no cavil to the proposition that
the Courts at all levels without any legal impediment, while deciding the
criminal cases on merits, in the regular proceedings, can consider the
compromise of an offender with the victim or his legal heirs, as a mitigating
circumstances for the purpose of question of sentence in a non-compoundable
offence but after final disposal of a criminal matter, Courts cannot assume
jurisdiction to re-open the case on merits in collateral proceedings arising
out of miscellaneous application. The petitioner after loosing the case on
merits, before the trial Court, the High Court and also before this Court in
regular proceedings moved an application to the Court of first instance for his
acquittal on the basis of his compromise with the legal heirs of the deceased
wherein he also made an alternate prayer of reduction in sentence.
4.
We have heard the learned counsel for the petitioner, the Advocate
Generals of the Provinces and learned Deputy Attorney General. The question for
consideration is as to whether, the Court on the basis of the compromise of an
offender with the victim or with the legal heirs of deceased as the case may
be, can compound an offence with is non compoundable in statutory law in the
light of concept of forgiveness in Islam.
There are two kinds of punishment in
Islam "Hadd" and "Tazir". The punishment of Had is in the
Will of God whereas any other punishment is called Tazir. Islam recognizes the
concept of detriment punishment and also the theory of Tazir. Islam recognizes
the concept of detriment punishment and also the theory of repetence for the
purpose of reformation and preservation of society and in the light of this
concept, the offences in the Islamic Penal Laws are also divided into two
categories namely commendable and non-compoundable offences either punishable
as Hadd or Tazir. The offences which are compoundbale in Islam, have also been
made compoundable under the statutory law and in compoundable offences, it is
permissible for the Courts to give effect to the compromise between the parties
at any stage of the proceedings before or after the final conclusion of the
matter whereas a compromise in non-compoundable offences, cannot be given legal
cover at any stage. The offence of murder punishable with death under Section
302(a) as Qisas and under Section 302(b) as Tazir is compoundable under the law
but the murder taken place during the course of committing dacoity punishable
with death under Section 396 PPC is not compoundable. The
careful examination of Ayat Nos. 178 & 179 of Surah Baqara would
reveal that there is no conflict of the statutory law to the law of Islam
regarding forgiveness as the offence under Section 302 PPC and offence under
Section 396 PPC are entirely differently and distinct offences, therefore,
notwithstanding the pardon given by the legal heirs of the deceased to the
petitioner who has been awarded death penalty under Section 396 PPC he could
not avail the benefit of Sections 309 and 310 PPC read with 338 (E) PPC. This
Court in Muhammad Rawab vs. State (2004 SCMR 1170) has laid down as under:--
"The provisions as contained in
Section 345 Cr.P.C. cannot be stretched too far by including the
non-compoundable offence therein under the garb of humanitarian grounds or any
other extraneous consideration. The offences committed by the appellant are not
of grave and alarming nature but the same are against the society as a whole
and cannot be permitted to compound by any individual on any score whatsoever.
It may be noted that tabulation of the offences as made under Section 345
Cr.P.C. being unambiguous remove all doubts, uncertainty and must be taken as
complete and comprehensive guide for compounding the offences. The judicial consensus
seems to be that "The Legislature has laid down in this section the test
for determining the classes of offences which concern individuals only as
distinguished from those which have reference to the interests of the State and
Courts of law cannot go beyond that test and substitute for it one of their
own. It is against public policy to compound non-compoundable offence, keeping
in view the state of facts existing on the date of application to compound. No
offences shall be compounded except where the provisions of Section 345 Cr.P.C.
are satisfied as to all matters mentioned in the section."
5.
The offence of dacoity is not compoundable either under pure Islamic Law
or under the statutory law of
6.
In the light of the foregoing discussion, this petition being devoid of
any merit is dismissed. Leave is refused.
(Z.A.Sh.) Petition
dismissed.