P L D 1966 (W (PLP)

Dates of hearing : 25th and 28th April 1966. The question raised in this petition under Article 98 of the Constitution is whether the petitioners should have been prosecuted for the offence of culpable homicide amounting to murder under the Kalat Penal Code which permits the offence to be compounded.

2. The case arises out of a report recorded by the Tehsildar of Lahri on 18‑7‑1960 to the effect that Mst. Saleemi, Mst. Kamul and Nihala Jat had been murdered, allegedly by Bangul and Mir Muhammad (the two petitioners herein) and by one Badla on the allegation of "Siahkari". The Tehsildar made enquiries and submitted his report to the Deputy Commissioner, Kalat, who, by his order dated 1‑5‑1961, referred the case to the Council‑of‑Elders. Besides the petitioners, there were six other accused, namely, Bhoora, Laiq, Wapari, Chandi, Badal and Bagga. Some of them were charged with adultery with Mst. Saleemi and Mst. Kamul. The Council‑of‑Elders, accepting the compromise filed by the accused and the heirs of the deceased persons, recommended that the accused be acquitted. The Deputy Commissioner accepted this recommendation and by his order dated 2‑5‑1961 acquitted the accused under section 11 (3) (c) of the Frontier Crimes Regu lations, 1901. This acquittal was set aside by the Commissioner, Kalat Division on 9‑2‑1963 on a revision preferred by Bagga. The Commissioner directed fresh trial of the accused persons.

3. The Deputy Commissioner referred the case to a second Council‑of‑Elders. The accused and the heirs of the deceased persons again filed a compromise, on the basis of which this Council also recommended the acquittal of the accused. But the Commissioner by his order dated 16‑4‑1963, made a reference of the case to a third Council‑of‑Elders This Council gave a finding on 29‑7‑1963, to the effect that petitioners Nos. 1 and 2 were guilty of the offence of murdering the aforesaid deceased persons. The Council also gave a finding that it was not proved that the deceased were involved in "Siahkari" and that they had been murdered on a mere suspicion. The finding was accepted by the Deputy Com missioner who convicted the petitioners under section 302 read with section 34 of the Pakistan Penal Code, and sentenced them to undergo fourteen years' rigorous imprisonment. The Commis sioner by order dated 21‑10‑1963 affirmed this conviction and sentence,

4. Mr. Basharatullah, the learned counsel for the petitioners, took up the stand that the offence in this case was committed on 18‑7‑1960, on which date the Frontier Crimes Regulation was not in force in the Kalat Division. The Regulation was extended to the Kalat Division on 23rd August 1960 by the Frontier Crimes Regulation (West Pakistan Extension) Ordinance, 1960 (No. XXVII of 1960) and, according to him, the petitioners were liable to prosecution only either under section 83 read with section 85 or under section 84 of the Kalat Penal Code. It was contended that if the prosecution was under section 84 of this Code, which applies to murder in a case of "Siahkari", the petitioners were entitled to pardon. But if the prosecution was under sections 83 and 85 then this offence was compoundable under the Schedule to the Kalat Criminal Procedure Code. It was, therefore, urged that the prosecution of the petitioners under the Frontier Crimes Regula tions and the Pakistan Penal Code deprived them of the rights of pardon or composition of the offence available to them under the Kalat laws,

5. Mr. Muhammad Haleem, the learned Assistant Advocate General resisted this stand and contended that the petitioners could not be said to have been involved in the commission of an offence under section 84 of the Kalat Penal Code. This section applies to the cases where murder is committed due to sudden and grave provocation caused by the accused personally witnessing commission of adultery by his wife, sister, niece or sister‑in‑law. It is not contended that the petitioners were the eye‑witnesses of "Siahkari" in which Mst. Saleemi, Ma. Kamul and Nihala Jat are alleged to have been involved. The petitioners' statement before the Council‑of‑Elders was that they killed these persons on suspicion of "Siahkari". As such their case is not covered by section 84 of the Kalat Penal Code.

6. The learned Assistant Advocate‑General then argued that the further contention of the petitioners that they should have been prosecuted under sections 83 and 85 of the Kalat Penal Code (under which the offence of murder is compoundable and punish able by imprisonment) is also not correct. It was pointed out that these sections were repealed by the Central Laws (Statutes Reform) Ordinance, 1960 (Ordinance No. XXI of 1960) which came into force on 9th June 1960. This Ordinance extended the Pakistan Penal Code to the territories of the former Kalat State. Section 4 of the Ordinance provides that where the operation of a Central Act or Ordinance has been extended to any area form ing part of the territories of an Acceding State, any law in force in that area before that date, and corresponding to the provisions of such Act or Ordinance, shall stand resealed and be deemed to have been re‑enacted in such Act or Ordinance as if such law were a Central Act. Kalat was an Acceding State and sections 83 and 85 of the Kalat Penal Code correspond to sections 300 and 302 of the Pakistan Penal Code. On the 9th June 1960 these two sections of the Kalat Penal Code stood repealed and re‑enacted as sections 300 and 302, of the Pakistan Penal Code. Mr. Basharatullah, however, urged that sections 83 and 85 of the Kalat Penal Code do not correspond to sections 300 and 302 of the Pakistan Penal Code. His reasoning was that the offence under sections 83 and 85 of the Kalat law is punishable with imprison ment and is compoundable under the Schedule to the Criminal Pro cedure Code of Kalat, whereas the offence under sections 300 and 302 of the Pakistan Penal Code is not compoundable and is punish able with death or transportation for life. It is, therefore, argued that the offences of murder under the two are different in quality by reason of the consequences which flow from their commission I am unable to accept this proposition. Section 4 of Ordinance XXI of 1960 does not require that the law in force in the territory of an Acceding State should be in identical terms with the Central Act or Ordinance extended to the State. What is contemplated is that if the law of an Acceding State and the Central Act or Ordinance in question are analogous, or deal with the same subject‑matter, then the former should be deemed to have been repealed and re‑enacted in the Central Act or Ordinance. This is the view which has been taken in Dost Muhammad v. Rais Satik and another (P L D 1962 Quetta 82). In that case, my learned brothers S. A. Mahmood and S. A. Anwarul Haq, JJ., have observed, while considering section 4 of Ordinance XXI of 1960 that in order that a law may be a law "corresponding" to another law, it should deal broadly with matters dealt with in the other law and need not be substantially and materially identical with the other law. Sections 83 and 85 of the Kalat Penal Code and sections 300 and 302 of the Pakistan Penal Code deal with the same subject, that is, culpable homicide amounting to murder. The two laws are, therefore, analogous and correspond to each other. Accordingly, on 9th June 1960 sections 83 and 85 of the Kalat Law were repealed and re‑enacted in sections 300 and 302 of the Pakistan Penal Code. These provisions of the Central Law were already in force in the Kalat territory on 18th July 1960 when the alleged offence was committed. The petitioners could not be prosecuted under the corresponding provisions of the Kalat Law as these provisions already stood repealed before this date.

7. For the reasons discussed above the petition is dismissed with costs. S. A. H./S.Q. Petition dismissed.