P L D 2004 Supreme Court 911 (PLP)

IFTIKHAR MUHAMMAD CHAUDHARY, J.

This petition for leave to appeal has been filed against the judgment dated 29th June, 2004 passed by Lahore High Court, Lahore in Criminal Revision No. 204 of 2003.

2. Precisely stating the facts of the case are that petitioner was convicted on tow counts for an offence under section 302, P.P.C. for committing the murders of Muhammad Sharif and Malik Muhammad vide judgment dated 10th February, 1993 passed by learned Additional Sessions Judge Sahiwal and was sentenced to death as Qisas on each count. The conviction/sentences recorded by the trial Court were confirmed by the learned High Court vide judgment dated 2nd December, 1996. An appeal and review petition filed by the petitioner before this Court, have been dismissed vide judgments dated 1st June 2000, and 12th September, 2001, respectively.

3. It may be noted that at the time of execution of sentences of death a compromise was effected between petitioner and the legal heirs of Muhammad Sharif deceased. In respect of second deceased Malik Muhammad one of his legal heirs i.e. Saeed Akhtar allegedly made a statement before the Magistrate Section 30, Pakpattan to the effect that he had entered into a compromise with petitioner. As a consequence whereof execution of his sentences of death was stayed. However on 25th, November, 2002, respondent No. 1 submitted an application before the Session Judge Pakpattan, mentioning therein that he had not made any statement before the Sessions Judge, Pakpattan mentioning therein that he had not made any statement before the Magistrate Section 30, Pakpattan and he had not entered into compromise with petitioner. In such view of the matter, application of the petitioner for acquitting him because respondent No.1 being one of the legal heirs of Malik Muhammad had pardoned him against Badl-e-Suulah was accepted by the learned Additional Sessions Judge, vide order dated 19th May, 2003. Said order was assailed by the respondent No.1 Saeed Akhtar son of Malik Muhammad before the Lahore High Court, Lahore by way of filing revision petition, but the same has been dismissed by means of impugned judgment. As such instant petition for leave to appeal has been filed.

4. Learned counsel contended that petitioner was found guilty under section 302, P.P.C. on two counts qua the murders of Muhammad Sharif and Malik Muhammad and was sentenced to death on each count by way of `Qisas'. The judgment of trial Court has been maintained by the learned High Court and ultimately by this Court as well and sentence of death by way of `Qisas' stands maintained. Thus as such as per settled proposition of law, if the sentence of `Qisas' has been partially compromised by one set of the legal heirs of deceased then on the instance of second set of legal heirs of deceased (heirs of Malik Muhammad), the sentence of death cannot be executed and learned Additional Sessions Judge, Arifwala vide judgment dated 19th May, 2003 had rightly observed that as one of the legal heirs of deceased Malik Muhammad had entered into a compromise with the petitioner, therefore, death penalty cannot be executed. But the learned High Court while disposing of the Revision Petition filed by said Saeed Akhtar son of Malik Muhammad reversed the judgment of the Additional Sessions Judge, by means of impugned judgment, while holding that the sentence of death on each count by way of Qisas was in fact the sentence under `Ta'zir'. He stressed that after ultimate decision by this Court learned High Court had no jurisdiction to treat the conviction of petitioner as `Ta'zir' and not as `Qisas'.

5. On the other hand learned state Counsel/Assistant Advocate- General contended that facts and circumstances reveals that due to some inadvertence, learned Additional Sessions Judge vide judgment dated 10th February, 1993 recorded conviction of petitioner by way of `Qisas' instead of writing it as `Ta'zir' in view of standard of evidence and as this fact was not pointed out at the time of hearing of case before the High Court or this Court, by either of the parties, therefore, treating it to be omission, keeping in view the judgments reported in the cases of Khalil-uz-Zaman v. Supreme Appellate Court, Lahore and 4 others PLD 1994 SC 885 and Faqir Ullah v. Khalil-uz-Zaman and others 1999 SCMR 2203, this error can be rectified by this Court having ultimate jurisdiction to do complete justice between the parties.

6. Learned counsel appearing for caveat/complainant also conceded that the High Court, after having disposed of the matter finally, had no Jurisdiction to interpret or clarify the judgment of the Supreme Court and as now matter is pending before this Court therefore, it can clarify the position in the interest of justice.

7. We heard learned counsel for the parties and have also gone through the impugned judgment carefully. Operative para. therefrom is reproduced herein below:-- "

The necessary corollary to this is that if in the real sense the sentences of death passed by the learned trial Court against respondent No. 1 were to be treated and accepted as those of Ta'zir then the alleged partial compromise of respondent No. 1 with the present petitioner was legally inconsequential whether any statement in that regard was actually made by the petitioner on 30-10-2002 or not. We seek guidance in this regard from the judgment passed by the Hon'ble Supreme Court of Pakistan in the case of Faqir Ullah v. Khalil-uz-Zaman and others (1999 SCMR 2203) whereby an earlier judgment passed by the Hon'ble Supreme Court of Pakistan itself in the same case and reported as Khalil-uz-Zaman v. Supreme Court Appellate Court, Lahore and 4 others (PLD 1994 SC 885) was reviewed and overturned. In the said precedent case the erstwhile Hon'ble Supreme Appellate Court and even the Hon'ble Supreme Court of Pakistan had earlier on inadvertently treated that case as one of Qisas whereas subsequently through review of its judgment it was ultimately found by the Hon'ble Supreme Court of Pakistan tat the said was legally and factually not one of Qisas but was one of Ta'zir and; thus, the said case had to entail its proper legal consequences and the convict therein had to be treated in accordance with the appropriate legal provision .... ... .: . ... ... ... ... ... ... ... ... ... ...." After having gone through the above para. we are inclined to subscribe to the contention of the learned Assistant Advocate General that after having disposed of the Murder Reference No.55/93 and Criminal Appeal No.63/1993 vide judgment dated 2nd December 1996, learned High Court had become functus officio and had no jurisdiction to clarify or interpret the judgment of this Court because the judgment dated 2nd December, 1996 passed by it has been merged into judgment of this Court dated 1st June 2000, whereby appeal filed by the petitioner has been dismissed. Inasmuch as, the review petition on behalf of the petitioner also met the same fate, as it has also been dismissed on 12th September 2001.

9. Be that as it may, as now the matter is before this Court for examination, therefore, keeping in view the facts and circumstances of the case and having taken into consideration the evidence, available on record, produced by the prosecution to substantiate accusation against the petitioner, we are of the considered opinion that the petitioner was found guilty for the commission of the offence under Section 302(b) P.P.C. on two counts qua the murders of Muhammad Sharif and Malik Muhammad, therefore he was sentenced to death on each count by way of `Ta'zir, and such correction/clarification is permissible to do complete justice in view, of the law laid down by this Court in the judgments reported as Khalil-uz-Zaman v. Supreme Appellate Court, Lahore and 4 others (PLD 1994 SC 885) and Faqir Ullah v. Khalil-uz-Zaman and others (1999 SCMR 2203) Relevant para. from the latter judgment is reproduced herein below:-- "

20. After hearing the learned counsel for the petitioner, the convict-respondent, the learned D.A.G. and the learned State Counsel, we find that the learned Division Bench of this Court which annulled the death sentence awarded to the convict respondent did not notice as to how the learned Supreme Appellate Court had converted the conviction of the convict respondent from Ta'zir to that of Qisas. A bare perusal of the order of the Supreme Appellate Court would reveal that no reasons for alteration of sentence of death by the way of Ta'zir to that of Qisas were furnished. According to Mr. M. Isamil Qureshi learned Senior Advocate Supreme Court representing the petitioner, it was on account of inadvertence. Another possibility appears to be that the statement of the convict-respondent recorded under section 342 Cr.P.C by the learned trial Judge confessing his guilt on the ground of `Ghairat' was taken to be a voluntary and true under section 304(1) (a) of the P.P.C. This possibility is also not strong enough in that the question is if, such a,statement is at all a "confession" failing within the ambit of Qanun-e-Shahadat 1984. Again even if it be so, whether it is not a sine qua non for such a confession to be true and voluntary because it has to be either accepted as a whole or rejected in toto. In this view of the matter, the conversion of death sentence by the learned Supreme Appellate Court awarded by the learned trial Court by way of Ta'zir into death by way of Qisas was sheerly an advertence. The learned Division Bench of this Court ought to have but had not adverted at all to this question and had, therefore, gone wrong in taking it for granted that the convict -respondent had been legally awarded death sentence by way of Qisas. The death sentence was awarded to him by the learned trial Judge by way of "Ta'zir" under section 302(b) P.P.C. It was certainly by inadvertence that it was converted into death sentence by way of Qisas. The question referred to lastly was very vital for the disposal of the Constitutional Petition No.36 and passing of the impugned order. We are of the considered view that there was no ground for conversion of the death sentence by way of Qisas. And this conversion being inadvertent is not sustainable in law." 10 Notwithstanding the fact that the petitioner has entered into compromise with one of the legal heirs of deceased Malik Muhammad i.e. Saeed Akhtar who too later on had resiled from his earlier statement, the sentence of death awarded to petitioner being under Ta'zir qua the murder of Malik Muhammad is executable under the law.

11. Herein above arc the reasons of our short order of even date which is reproduced herein below in extenso:- "For the reason to be recorded later on, petition is dismissed. However it is clarified that convict Muhammad Anwar son of Habib Ahmed was convicted for the murder of Muhammad Sharif and Malik Muhammad and sentenced to death on each count by way of Ta'zir and not by way of Qisas. Omission/error in recording the sentence byway of Qisas being apparent on the face of record is corrected. Concerned authorities are directed to proceed in accordance with law for executing the sentence of death. Copy of this order be sent to Home Secretary during the course of day. M.H./M-145/S Order accordingly.