2005 PLP 2383 (YLR)

This revision petition has been filed on behalf of the petitioner on the plea that he along with one Muhammad Iqbal was challaned and tried in case F.I.R. No.249 of 1995 registered on 12-9-1995 under section 302, P.P.C. in Police Station, Ladheywala Warriach, District Gujranwala. He was convicted and sentenced by the learned Judge, Special Court, Gujranwala under section 302(b), P.P.C. and sentenced to death with a direction for payment of Rs.50,000 as compensation under section 544, Cr.P.C. to the legal heirs of Muhammad Saleem, deceased and in case of default in payment of compensation to undergo further R.I. for six months. He was also convicted for the murder of Mst Salma Bibi, deceased under section 302(c) read with section 306(b), P.P.C. and sentenced to 25 years' R.I. He was further convicted for the murder/Qatl-i-Amd of Saba.Saleem, deceased under section 302(c) read with section 306(b), P.P.C. and sentenced to R.I. for 25 years. It was directed that both the sentences of imprisonment shall run concurrently. The co-accused of the petitioner namely Muhammad Iqbal was however acquitted of the charge.

2. The petitioner filed Criminal Appeal (No.170 of 2000) in this Court. By that time, compromise was effected between the petitioner, the complainant and heirs of the deceased persons and hence Crl. Misc. No 631-M of 2002 was filed by the petitioner before the Court to the effect that as the parties have compromised, the same may be allowed. A report was thus called from the learned District and Sessions Judge, Gujranwala in that respect and who affirmed that the legal heirs of the deceased persons had made statements before him regarding the factum of compromise. This Court however dismissed the aforesaid appeal along with Crl. Misc. No. 631-M of 2002 vide its judgment, dated 3-6-2002. The petitioner then filed Crl. P.L.A. No.639-L of 2002 before the Hon'ble Supreme Court of Pakistan along with CO. M.A. No. 331 of 2002. The Hon'ble Supreme Court of Pakistan was pleased to call for a report from the learned Sessions Judge, Gujranwala. Vide order, dated 14-10-2002, the Hon'ble Supreme Court of Pakistan observed that a perusal of compromise deed and the report submitted by the Sessions Judge revealed that the accused/petitioner had not compromised the matter with all the legal heirs of the deceased. The learned counsel for the petitioner was directed to fill a fresh pro forma for compromise and to file it within two weeks after completing all the formalities in the office of the Court and which will be then sent by the office to the concerned Sessions Judge for the purpose of report. The learned Sessions Judge was directed to submit his report within two weeks from the date of the receipt of the order. However, later on 17-4-2003, the learned counsel for the petitioner submitted before the Hon'ble Supreme Court of Pakistan that he had been instructed not to press the petition as parties contemplated to approach the Trial Court in terms of section 338-E, P.P.C. for acceptance or otherwise of the compromise reached between the parties. The Hon'ble Supreme Court of Pakistan allowed the request and the petition was disposed of as withdrawn in view of the statement so made by the learned counsel for the parties. Subsequently, the petitioner filed an application under section 338-E, P.P.C. in the learned Court of Session, Gujranwala and which was dismissed by the learned Additional Sessions Judge, Gujranwala vide his order, dated 11-7-2003. Aggrieved of the said order, the petitioner has filed this revision petition.

3. The learned counsel for the petitioner has argued that in the light of the order/observation of the Hon'ble Supreme Court of Pakistan, the petitioner had filed the application before the learned Sessions Judge, Gujranwala for proceedings under section 338-E, P.P.C. However, the said application had been dismissed by the learned Additional Sessions Judge vide the impugned order, dated 11-3-2003. The learned counsel contends that the learned Additional Sessions Judge, Gujranwala by failing to accept the compromise reached between the parties had failed to exercise the jurisdiction vested in him; that as Crl. PLA No.639-L of 2002 had been withdrawn with the permission of the Hon'ble Supreme Court of Pakistan in order to have recourse to the learned Sessions Court, the learned Additional Sessions Judge was quite competent to allow the compromise between the parties as at that time no appeal was pending before any Court; that the compromise had been effected by the parties in the name of 'Almighty Allah and the same had been verified by the learned Sessions Judge twice i.e. once under the directions of this Court and secondly on the directions of the Hon'ble Supreme Court of Pakistan; that the legal heirs of the deceased persons had made categorical statements that they had entered into compromise with the petitioner with their free-will and had forgiven him the name of Almighty Allah and hence there was no doubt of the genuineness of the compromise between the parties; that the compromise could be effected at any stage and that the order of the learned Additional Sessions Judge, Gujranwala, dated 11-7-2003, whereby he had declined to allow the compromise, was illegal, unlawful and against the facts of the case. Hence the same be set aside and the petitioner be ordered to be acquitted in this case.

4. On the other hand, the learned Advocate-General who appeared in this Court today in compliance with the order of this Court, dated 30-3-2004, explained the history of this case at length. He has pointed out that the judgment of this Court in Cr

1. Appeal No.170 of 2000 (Muhammad Siddique v. The State) was reported as PLD 2002 Lah. 444 and wherein the same question of compromise had also been discussed at length by this Court. The learned Advocate-General has argued that vide the said judgment, their Lordships, while dismissing the appeal against conviction and sentence had also disposed of Crl. Misc. No. 631-M of 2002. He has pointed out that the learned counsel for the petitioner did not press the petition (Crl. PLA No. 639-L of 2002) before the Hon'ble Supreme Court of Pakistan as the parties contemplated to approach the' Trial Court in terms of section 338-E, P.P.C. and hence the request was allowed and the petition was disposed of as withdrawn. The learned Advocate-General has also relied upon the case Nazak Hussain v. The State (PLD 1996 SC 178) wherein their Lordships had laid down guidelines for the Courts in matters of waiver or compounding of offences. He has argued that in view of the judgment of this Court passed in Crl. Appeal No. 1912 of 2000, which was decided on 30th June, 2002, the learned Additional Sessions Judge was not competent to take a different view and hence he had rightly dismissed the application of the petitioner. He has asserted that the impugned order of the learned Additional Sessions Judge, Gujranwala does not suffer from any illegality or material irregularity and that in view of the aforesaid judgment of this Court passed in Crl. Appeal and which still holds the field, it was not possible for the learned Additional Sessions Judge to take a different view.

5. We have carefully considered the arguments from both sides.

6. Admittedly, while dismissing Crl. Appeal No. 1912 of 2000, this Court had declined the request regarding the compromise (on the basis of the observations made in the said judgment). Their Lordships Mr. Justice Tassaduq Hussain Jillani and Mr. Justice Asif Saeed Khan Khosa, had observed in paras. Nos.23 and 24 of the judgment delivered in this case (in Crl. Appeal No.170 of 2000) which was reported as PLD 2002 Lah. 444, as follows: "(23) The tragedy of the triple murder is yet another tale of an old Saga; the characters are different, yet plot is the same, the victims were accused of the same "crime" and even the method is madness remained the same i.e. the prosecutor, the Judge and the executioners all in one. Perhaps if the police had fairly investigated the case and the subordinate Courts had gone by the book by extending requisite protection, Salma and Saleem deceased would not have run away to Islamabad. This is a typical example of misuse and misapplication of Hudood Laws in the country. This abdication of authority by the State institutions made the couple run for its life and provided an opportunity to the appellant to call them over by way of deception. In utter disregard to the basic right of an adult woman to marry, to the institution of family, and motivated by self-conceived notion of "family honour", the appellant had started a tirade against them by having a criminal case registered. Baby girl was born out of the wedlock. The daughter left her home and hearth and even the city of her birth and started living in Islamabad in the fond dream of creating a "new home" and "new world" but the appellant's venom, it seems, never subsided. To satisfy those baser called of venom, he thought a plan and a rather treacherous one of inviting them to his house. When they came, be brought out his gun and killed each one of them with repeated shots. (24) A murder in the name of honour is not merely the physical elimination of a man or a woman. It is at a socio-political plane a blow to the concept of a free dynamic and an egalitarian society. In great majority of cases, behind it at play, is a certain mental outlook, and a creed which seeks to deprive equal rights to women i.e. inter alia the right to marry or the right to divorce which are recognized not only by our religion but have been protected in law and enshrined in the Constitution. Such murders, therefore, represent deviant behaviours which are violative of law, nugatory of religious tenets and an affront to society. These crimes have a chain reaction. They feed and promote the very prejudices of which they are the outcome, both at the conscious and sub-conscious level to the detriment of our enlightened ideological moorings. But are these social aberrations immutable? Is it an inexorable element of fate that the women should continue to be the victims of rage when it comes to the exercise of those fundamental rights which are recognized both in law and religion? NAY! No tradition is sacred, no conviction is indispensable and no precedent worth emulation of it does not stand the test of the fundamentals of a civil society generally expressed through law and the Constitution. If humans were merely slaves of tradition or fate, they would still be living in caves cating, mating and fighting like other animals. It is the mind and the ability to reason which distinguishes them for other living creatures. Human progress and evolution are the product of this ability. Law is part of this human odyssey and achievement. Law is a dynamic process. It has to be in tune with the ever-changing needs and values of a society failing which individuals suffer and social fabric breaks down. It is this dimension of law which makes it a catalyst of social change Law, including the Judge-made law, has to play its role in changing the inhuman social moors. The offence which stands proved against the appellant has to have a judicial response which serves as a deterrent, so that such aberrations are effectively checked. Any other response may amount to appeasement or endorsement. A society which fails to effectively punish such offenders becomes privy to it. The steady increase in these kinds of murders is reflective of this collective inaction, of a kind of compromise with crime and if we may say so of a complicit of sorts. A justice system of crime and punishment, bereft of its purposive and deterrent element looses its worth and credibility both. The individual, institutional and societal stakes, therefore, are high. In these attending circumstances, we are of the considered view that the appellant does not deserve the indulgence of a compromise leading to acquittal. The sentences awarded to the appellant, therefore, do not call for interference."

7. In view of the judgment of this Court in the same case, whereby the criminal appeal filed by the petitioner against the conviction and sentence had been dismissed and as in the aforesaid judgment this Court had also adverted to the question of compromise and compounding of offences and had declined to grant the requisite permission and as the petitioner had withdrawn Crl. PLA. No.639-C/2002 from the Hon'ble Supreme Court of Pakistan, the aforesaid judgment of this Court delivered in Crl. Appeal No.1912 of 2000 is still intact. By taking a different view in these proceedings, we cannot review the judgment of this Court passed in Crl. Appeal No. 170 of 2000. It is correct that a compromise can be effected at any stage. However, when this question had already come up before this Court and had been decided, it was not possible for the learned Additional Sessions Judge, Gujranwala to take a different view. As such, he had rightly declined the application of the petitioner. There is no basis for interference with the impugned order, dated 11-7-2003 passed by the learned Additional Sessions Judge, Gujranwala. This petition is therefore, dismissed accordingly. H.B.T./M-1098/L Revision petition dismissed.