2026 PLP 480 (SCMR)

MALIK SHAHZAD AHMAD KHAN, J.

This petition is by a convict whose death sentence has been confirmed, and he is now seeking his acquittal based on a compromise with the heirs of the deceased, but the Courts below have rejected his application on the ground that his act constituted fasad-fil-arz and, thus, it was non-compundable. This rejection is appealed against with the contention that the petitioner was not convicted under clause (a) of Section 302 of the Pakistan Penal Code, 1860 ("P.P.C."), and therefore there was no bar to compounding under Section 345 of the Code of Criminal Procedure, 1898 ("Cr.P.C"), and in accordance with the principle laid down in Zahid Rehman v. The State (PLD 2015 SC 77). To consider this issue, a Three-Member Bench of this Court had issued a notice to the other side and referred the matter to a Larger Bench.

2. It would be helpful first to understand the facts, which are in two parts. The first part deals with the facts that led to the petitioner's conviction, while the second part gives rise to this petition. The facts forming the first part, in brief, are as follows. According to FIR No.50, recorded at the Police Station Lal Qila, District Dir Lower, on 02.02.2013, Israr-Ullah, the complainant, and his maternal cousin, Ashfaq (now deceased), visited the home of his sister, Mst. Sharafat Bibi (also deceased). At approximately 12:10 a.m., the complainant and his cousin were sitting in the Baithak of Mst. Sharafat Bibi's house when she joined them. At that moment, Sanoober Khan (the petitioner), armed with a Kalashnikov, entered the Baithak and shouted at Mst. Sharafat Bibi, questioning why she was there at night. He then opened fire with the Kalashnikov, striking both Ashfaq and Mst. Sharafat Bibi, who died from their injuries at the scene. The complainant alleged that the petitioner harboured suspicions of an illicit relationship between the two deceased, which motivated his actions. Based on these facts and the evidence presented, the trial Court convicted the petitioner on 03.06.2014 under Section 302(b) of the P.P.C. He was sentenced to death on two counts and ordered to pay Rs.1,000,000/- in compensation to the legal heirs of each deceased under Section 544-A of the Cr.P.C. If the compensation were not paid, he would face an additional six months of simple imprisonment. This conviction and sentence remained in effect until this Court.

3. Now, we state the facts of the second part. After the conviction and sentence were upheld by this Court, the petitioner applied to the trial Court, as provided under Section 338-E of the P.P.C. in conjunction with Section 345 of the Cr.P.C., for his acquittal on the basis of a compromise with the legal heirs of the deceased. All the legal heirs of the deceased appeared before the trial Court, submitted their affidavits, and recorded their statements, during which they clearly stated that they had forgiven the petitioner in the name of Almighty Allah, without any compensation (badal-i-sulh), and that they had no objection to the petitioner's acquittal. In its order dated 19.01.2017, the trial Court noted that all the legal heirs of the deceased had reached a compromise with the petitioner and had forgiven him in the name of Almighty Allah, expressing their no objection to his acquittal in this case. However, the application to compound the offence was dismissed on the grounds that the petitioner had committed the act in the name of honour, making the offence non-compoundable. The High Court also dismissed the criminal revision petition filed by the petitioner in its judgment dated 20.02.2017, on similar grounds.

4. We have reached a point to address the central issue; however, before doing so, we need to resolve a miscellaneous application (C.M.A. No. 1801/2020) filed by the legal heirs of the deceased. In this application, they assert that they did not enter into any compromise with the petitioner and that their previous statements regarding a compromise were made under duress and pressure. It is argued on behalf of the legal heirs that the petitioner had promised to pay them a different amount as compensation. However, since the petitioner failed to fulfil this promise, the legal heirs retracted their statements regarding the compromise. This claim contradicts the evidence, as the legal heirs explicitly stated in their affidavits and testimonies before the trial Court that they had forgiven the petitioner in the name of Almighty Allah without expecting any payment. No conditions were mentioned in their affidavits or in the statements recorded by the trial Court regarding any expected payment from the petitioner. Furthermore, the position taken by the legal heirs in C.M.A. No. 1801/2020 conflicts with their earlier statements, where they did not claim that their statements were made under duress from the petitioner. Regarding the application above, it is important to note that the statements of the legal heirs were recorded by the trial Court on 22.12.2016. They also submitted their affidavits to the trial Court. The trial Court subsequently dismissed the compromise on 10.01.2017. Following this, the criminal revision petition against that order was dismissed by the High Court in a judgment dated 20.02.2017. The legal heirs of the deceased filed the criminal miscellaneous application in question and submitted their affidavits to this Court on 23.10.2020, claiming that their earlier statements regarding the compromise were made under duress. It is evident that after their statements were recorded, the legal heirs remained silent for about four years before raising their claims of duress. They do not specify any date, time, or location where they were allegedly pressured by the petitioner, who was incarcerated, to make their statements. Moreover, it is well established that once a compromise has been reached between the deceased's legal heirs and the accused, it cannot be withdrawn later. Reference in this context may be made to the judgments of this Court reported as "Suo Motu Case Re: the issue as to whether compounding of an offence under Section 345, Cr.P.C., amounts to acquittal of the accused persons or not (PLD 2018 Supreme Court 703)", wherein at page No.719, it has been held as under:- "

9. A successful and complete composition of a compoundable offence having the "effect of an acquittal" in terms of section 345(6), Cr.P.C. came under discussion in the cases of Kumarasami Chetty v. Kuppusami Chetty and others (AIR 1919 Madras 879(2)), Ram Richpal v. Mata Din and another (AIR 1925 Lahore 159), Jhangtoo Barai and another v. Emperor (AIR 1930 Allahabad 409), Dharichhan Singh and others v. Emperor (AIR 1939 Patna 141), Mt. Rambai wife of Bahadursingh v. Mt. Chandra Kumari Devi (AIR 1940 Nagpur 181), Godfrey Meeus v. Simon Dular (AIR (37) 1950 Nagpur 91) and Prithvi Bhagat and another v. Birju Sada (AIR 1962 Patna 316) and the ratio decidendi of the said cases is summed up as follows: (i) A compounding can take place during the trial or during the pendency of an appeal or a revision petition, and it can take place even before the case has reached the trial court for trial. (ii) A complete compounding fulfilling the requirements of subsection (1) or (2) of section 345, Cr.P.C., as the case may be, cannot be withdrawn or resiled from by any party at any later stage because it has already created the effect of an acquittal of the accused person. (iii) Composition of a compoundable offence not requiring permission of the court deprives the court of its jurisdiction to try the case or ousts the jurisdiction of the court to try the offence, and the court has no other option but to acquit the accused person. (iv) Composition of a compoundable offence not requiring permission of the court and grant of permission or leave to compound by the relevant court in cases where such permission or leave is required results in immediate acquittal of the accused person. (v) In some of the above-mentioned cases acquittal of the accused person was ordered on the basis of successful and complete composition rather than observing that the composition would only have the effect of an acquittal." (Bold and underpinning are supplied for emphasis) Given the circumstances, we hold that the legal heirs cannot raise the plea mentioned above before this Court, as they never challenged the statements of compromise recorded by the trial Court before the High Court. Once they made those statements to the trial Court, the matter became concluded. Therefore, they cannot retract their statements later on. As a result, their application is liable to be dismissed.

5. This brings us to consider the merits of the petitioner's application seeking acquittal based on compromise. There is no denying that the trial Court, in its order dated 10.01.2017, noted that the legal heirs of the deceased had forgiven the petitioner, invoking the name of Almighty Allah, without any exchange of payment for this forgiveness. They expressed no objection to the petitioner's acquittal. However, the trial Court dismissed the application for compromise on the ground that the offence was committed in the name of honour and was therefore not compoundable. Similarly, the High Court, in its order dated 20.02.2017, reinforced this view by stating that because the petitioner had committed the offence in the name of honour, it was considered non-compoundable, falling under the category of fasad-fil-arz. The Court referenced the judgment in Kareem Nawaz Khan v. The State through PGP and another (2016 SCMR 291) to support its decision, ultimately dismissing the criminal revision petition filed by the petitioner regarding the trial Court's order dated 10.01.2017.

6. In our opinion, with due deference, the High Court mistakenly relied on the judgment in the case of Kareem Nawaz Khan because that case involved observations by this Court that the offence under Section 7 of the Anti-Terrorism Act, 1997 ("ATA"), is non-compoundable. As a result, the accused's application for compromise was dismissed. However, in the present petition, the petitioner has not been convicted or sentenced under Section 7 of the ATA. Instead, he has only been convicted and sentenced under Section 302(b) of the P.P.C., which is a compoundable offence. Therefore, the judgment mentioned above is not relevant to this case. The learned counsel for the legal heirs of the deceased further argued that the petitioner murdered two innocent individuals under the pretext of honour. Thus, the provisions of Section 311 of the P.P.C. and the concept of fasad-fil-arz apply to this case, and the application for compromise submitted by the petitioner was rightfully dismissed by the Courts below. We believe that the provisions of Section 311 of the P.P.C. are applicable only in cases where the sentence of Qisas has been awarded to the accused. This provision does not apply in cases where the accused has been convicted and received Ta'zir punishment. Section 311 of the P.P.C. is clear on this point and is reproduced hereunder for ready reference:- "Ta'zir after waiver or compounding of the right of qisas in qatl-i-amd.

Where all the wali do not waive or compound the right of qisas, or if the principle of fisad-fil-arz is attracted, the court may, 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 death or imprisonment for life or imprisonment of either description for a term which may extend to fourteen years as ta'zir: Provided that if the offence has been committed in the name or on the pretext of honour, the punishment shall be imprisonment for life." (Bold and underlining are supplied for emphasis) As in the instant case, the petitioner has been awarded a sentence under Section 302(b) of the P.P.C. as a Ta'zir punishment; therefore, the provisions of Section 311 of the P.P.C. are not attracted. We do not want to burden this judgment by examining the different relevant provisions of law, particularly Sections 299 to 311, 338-E of the P.P.C. and Section 345 of the Cr.P.C and to survey the case-law developed on them because this exercise has already been done in the case of Zahid Rehman v. The State (PLD 2015 Supreme Court 77), wherein, in our unanimous opinion, the majority has rightly held that Section 311 of the P.P.C. is not applicable in a case, where an accused has been convicted and sentenced as Ta'zir punishment.

7. It is true that under Section 299(ee) of the P.P.C., the principle of fasad-fil-arz is attracted in a case where the offence has been committed in the name or on the pretext of honour. The said provision of law reads as under:- "

299. Definitions: .................. .................. [(ee) "Fasad-fil-arz" includes the past conduct of the offender or whether he has any previous conviction, or the brutal or shocking manner in which the offence has been committed, which is outrageous to the public conscience or if the offender is considered a potential danger to the community or if the offence has been committed in the name or on the pretext of honour. .................." (Bold and underlining are supplied for emphasis) We have also gone through the provision of section 338-E, P.P.C., which reads as under:- "338-E. Waiver or compounding of offences: (1) Subject to the provisions of this Chapter and Section 345 of the Code of the Criminal Procedure, 1898 (V of 1898), all offences under this Chapter may be waived or compounded, and the provisions of Sections 309,310 and 311 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 ta'zir to the offender according to the nature of the offence. Provided further that where an offence under this Chapter has been committed and the principle of fasad-fil-arz is attracted, the court, having regard to the facts and circumstances of the case, shall punish an offender with imprisonment or fine as provided for that offence. (2). ........................" (Bold and underlining are supplied for emphasis). In the above-mentioned provisions of law, specifically Section 338-E of the P.P.C., it is clearly stated that when an offence has been committed, and the principle of fasad-fil-arz applies, the Court must consider the facts and circumstances of the case to determine appropriate punishment. This punishment can include imprisonment or fines as specified for the offence. It is evident from this provision that a death sentence is not an option, even in cases where the principle of fasad-fil-arz is applicable. Consequently, a Court can only impose a punishment of imprisonment or a fine for the offence committed. Therefore, it is clear that the death penalty is not provided for under this provision, which raises questions about the legality and maintainability of the decisions made by the two Courts below regarding the affirmation of the petitioner's death sentence.

8. The Learned Law Officer in support of the impugned decisions has next referred to the Amendment dated 21.10.2016 in Schedule-II, ACT V of 1898, which reads as under:- "Amendment of Schedule-II, ACT V of 1898 In the Code, in Schedule-II, in column 1, against section 311, for the entry in column 7, the following shall be substituted, namely:- "Death or imprisonment for life or imprisonment of either description for a term which may extend to fourteen years as ta'zir, or if the offence has been committed in the name or on the pretext of honour, imprisonment for life". (Bold and underlining are supplied for emphasis) As previously mentioned, Section 311 of the P.P.C. is not applicable in this case because the petitioner has been sentenced to Ta'zir rather than Qisas. Furthermore, a review of the amended schedule indicates that imprisonment for life can be imposed only if the offence was committed in the name of, or under the pretext of, honour. In such cases, the death penalty is not stipulated for offences committed in the name or under the guise of honour.

9. It is important to note that the petitioner was sentenced to death in this case by the Trial court on 03.06.2014, and has spent approximately 10-1/2 years in a death cell. All the deceased's legal heirs submitted affidavits to the trial Court. They also testified that they had forgiven the petitioner in the name of Almighty Allah without receiving any compensation and that they had no objection to the petitioner's acquittal.

10. Considering all the aforementioned facts and the relevant statutory provisions, the death sentence imposed on the petitioner cannot be upheld. Consequently, we convert this petition into an appeal and partially allow it. The judgments of the Courts below are hereby set aside, and, as a result, by partially allowing the application under Section 338-E of the P.P.C. read with Section 345 of the Cr.P.C, conviction of the petitioner under Section 302(b) of the P.P.C. is upheld; however, the death sentence on two counts is now altered to life imprisonment on two counts. The directions regarding compensation to the legal heirs of the deceased and the sentence for default, as ordered by the trial Court and confirmed by the High Court, are also upheld. The substantive sentences of imprisonment awarded to the petitioner will run concurrently, and the benefit of Section 382-B of the Cr.P.C. is extended to the petitioner. C.M.A. No. 1801 of 2020 is dismissed. MH/S-9/SC Order accordingly.