Compounding of offence

Legal heirs of deceased made statements before Trial Court regarding compounding of the offence but subsequently they resiled from their statements

Validity

Legal heirs did not challenge before High Court, the statements of compromise recorded by Trial Court

Once the statements were made before Trial Court, the matter had become concluded and the legal heirs could not retract their statements later on

Accused was sentenced to death by Trial Court, who had spent approximately 10 ½ years in a death cell

All legal heirs of deceased had submitted affidavits to Trial Court and had also testified that they had forgiven the accused in the name of the Almighty Allah without receiving any compensation and that they had no objection to the acquittal of accused

Supreme Court altered sentence awarded by the Courts below from death to imprisonment for life

Application under section 338-E, P.P.C. read with section 345, Cr.P.C. filed by accused was partly allowed, as death sentence could not be upheld

Appeal was partly allowed.

Qatl-i-amd, attempt to commit qatl-i-amd, ta'azir after waiver or compounding of right of qisas in qatl-i-amd, abetment, common intention

Appreciation of evidence

Compounding of offence

Accused were charged for committing murder of the daughter-in-law/wife of son of complainant by firing and causing firearm injuries to the son of complainant, due to their love marriage

Appellants were convicted and sentenced in the case by the Trial Court

Appellants assailed the said judgment of their conviction and sentence

During the pendency of appeal, appellant filed an application under S.345,Cr.P.C., seeking permission to compound the offence and acquittal on the basis of compromise arrived at between them and the legal heirs of female deceased and injured

Held: In the present case, the complainant alleged that his son had married sister of appellant against her family's wishes, which led to a grudge and the subsequent attack in which his daughter-in-law was killed and his son was injured

Appellants were indicted under Ss. 302, 324, 311, 109 & 34,P.P.C.

Charge under S.311,P.P.C., specifically alleged that the offence was committed on the pretext of honour

However, in the impugned judgment, the Trial Court convicted the appellants under Ss. 302(b), 324, 337-F(i) & 337-F(v),P.P.C., but did not give any finding on the charges under Ss. 311 & 34,P.P.C

Although, the motive was re-referred to, but it was not properly evaluated in the context of the charge under S.311, P.P.C

Said omission constituted a material irregularity, as S.367,Cr.P.C., required a reasoned judgment on every charge framed during the trial

Charge under S.109,P.P.C.,was not directed against the present appellants but was framed against acquitted accused persons

Accordingly, no finding was required on that charge

Although High Court, in the exercise of its appellate powers under S.423,Cr.P.C., might record findings of fact and law, it would not be appropriate to do so in the present case

Charge under S.311,P.P.C., raised distinct factual and legal issues, including whether the offence was committed in the name or on the pretext of honour, thereby attracting the principle of fasad-fil-arz under S.299(ee),P.P.C

Thus, this determination required an evaluation of motive, the manner of commission and other surrounding circumstances, all of which could best be addressed by the Trial Court in the first instance

Most importantly, a finding under S.311,P.P.C., carried a mandatory sentence of life imprisonment where honour was involved

Therefore, the accused must be given a fair opportunity to contest the charge at the trial level

Deciding such issue at the appellate stage without the benefit of the Trial Court's finding would not only prejudice the appellant but would also compromise procedural fairness

Similarly, the Trial Court must record a finding on the charge under S.34,P.P.C, which was framed but left unaddressed in the impugned judgment

Thus, the matter must be remanded for the limited purpose to re-write the judgment determining whether the offence fell within the mischief of fasad-fil-arz, as defined in S.299(ee), P.P.C, and attracted S.311,P.P.C, and whether the charge under S.34,P.P.C., was made out on the basis of the evidence on record

Appeal was partly allowed.

Rape, attempted rape, house-trespass after preparation for hurt, assault or wrongful restraint, rash or negligent act to endanger human life or personal safety of others, common intention

Appreciation of evidence

Compounding of offence

Accused was charged for attempting rape with the complainant after entering her house

Appellant and complainant due to indulgence of community people settled down their differences outside the Court

No doubt appellant was tried for the charge under Ss.376, 511, read with S.452, P.P.C; however, at the time of trial prosecution did not adduce sufficient evidence in respect of Ss.376, 511, P.P.C., hence Trial Court while making discussion over points for determination had acquitted the appellant from the charges of Ss.376, 511 P.P.C and had convicted him for the charge of S.452 P.P.C only

Though the offence with which the appellant stood convicted was not compoundable, however, appellant had remained in jail for some time, besides the offence with which he stood charged pertained to year 2016, thus had been facing agony of trial as well as proceedings of instant appeal right from 2016, for a period of about 08 years, which was sufficient punishment for him

At this juncture when the complainant/victim herself did not wanted to prosecute the appellant anymore and they being inhabitants of same area wanted to live peacefully by maintaining law and order situation as well as tranquility, in such a situation parties may be allowed to live peacefully, even in a case when the offence with which accused was charged was non-compoundable

In such circumstances, it would be in the best interest of justice, equity and fair play that the compromise arrived at between the parties in instant case in respect of non-compoundable offences was accepted/allowed to take effect

Appeal was allowed, in circumstances.

No doubt the legislature had not provided any specific section/provision in the Illegal Dispossession Act, 2005, for compounding the offences; however, S.9 of the Act, 2005, provides that unless otherwise provided in the Illegal Dispossession Act, 2005, the provisions contained under the scheme of Criminal Procedure Code, 1898, shall be applicable to all the proceedings under the Act ibid

Therefore, the compromise arrived at between the parties under the Act ibid should be treated as the compromise within the meaning of S.345, Cr.P.C.

It was an admitted fact that both the parties had amicably settled all their differences and had agreed to pass rest of their lives in peace, tranquility and harmony

Non-compoundability of a particular offence under any section of the enactment should not be read in isolation but it should be read in the background of each criminal case and beneficial interpretation should be given to it

When both parties had earnestly decided to live in peace and tranquility by ignoring and settling all their past differences, then for the sake of their welfare in general and betterment of socio-economic conditions of society as a whole, it would be prime need of the time to accept the compromise and consequently acquit the appellant from the charges

Parties had filed joint applications for compromise, besides the possession of the subject property, had also been handed over to the complainant, therefore, in order to maintain peace and tranquility between the parties, propriety of law demanded to entertain the compromise application

Appeal was allowed, in circumstances.

Predicate offences mentioned in Schedule-I of Anti-Money Laundering Act, 2010, in relation to Income Tax Ordinance, 2001, are all compoundable

In case an accused compounds predicate offence, the trial of offence of money laundering continues and is decided on its own merits

It is not necessary for both the trials to be held simultaneously.

Parties, during the trial, moved application under S. 345, Cr.P.C., and stated that they had amicably settled the matter outside the court

None of the legal heirs of the deceased had contested the compromise

Admittedly in this case, accused persons had been convicted under S.302(b), P.P.C, and sentenced as Ta'zir

Direct surviving legal heirs of the deceased were quite competent to effect compromise under S.345(2), Cr.P.C., where punishment had been passed as Ta'zir

In this case, two widows of the deceased, his son and three daughters were the only surviving legal heirs of the deceased

Father and mother of the deceased had died

Father of the deceased died prior to his murder however, though mother died after the occurrence yet her legal heirs could not be termed as legal heirs of deceased by any stretch of imagination for the purpose of compromise in this case

Though as per reports of Sessions Judge concerned, compromise was incomplete between the legal heirs of the deceased and the accused persons because brother and sister of the deceased had not entered into compromise, however, brother and sister of the deceased were not his legal heirs for the purpose of compounding the offence as it was a case of Ta'zir, so reports of Sessions Judge, concerned, to extent were misconceived and as such discarded

Statements of legal heirs of the deceased reflected that the compromise between the accused persons and said legal heirs was genuine and they had arrived at a compromise with their free will and without any duress or coercion

In view thereof, when the proposed compromise between legal heirs of the deceased and accused persons was likely to promote the cause of peace in the locality/society as well as betterment of present and coming generations of the parties and particularly when no element of "Fisad-fil-Arz" within the meaning of S.311, P.P.C, had been found from the facts and circumstances of the case, then it was appropriate to grant permission/leave for effecting the compromise within the meaning of S.345(2), Cr.P.C.

Hence, permission/leave for effecting compromise between the accused persons and legal heirs of the deceased was granted by allowing the application filed by accused persons

Accused were acquitted of the charge within the meaning of S.345(6), Cr.P.C.

Predicate offences mentioned in Schedule-I of Anti-Money Laundering Act, 2010, in relation to Income Tax Ordinance, 2001, are all compoundable

In case an accused compounds predicate offence, the trial of offence of money laundering continues and is decided on its own merits

It is not necessary for both the trials to be held simultaneously.

Authority may compound an offence under Pakistan Environmental Protection Act, 1997 with the permission of Environmental Tribunal or Environmental Magistrate

Such power can only be exercised on application of accused for compounding the offence.

Authority may compound an offence under Pakistan Environmental Protection Act, 1997 with the permission of Environmental Tribunal or Environmental Magistrate

Such power can only be exercised on application of accused for compounding the offence.

Predicate offences mentioned in Schedule-I of Anti-Money Laundering Act, 2010, in relation to Income Tax Ordinance, 2001, are all compoundable

In case an accused compounds predicate offence, the trial of offence of money laundering continues and is decided on its own merits

It is not necessary for both the trials to be held simultaneously.

Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, jaifah, rioting armed with deadly weapon, unlawful assembly

Compounding of offence

Scope

Parties, during the trial, moved application under S. 345, Cr.P.C., along with compromise deed and stated that they had amicably settled the matter outside the court

None of the legal heirs of the deceased had contested the compromise but prosecutor had raised objection that the compromise could not be effected to the extent of the minors without payment to them of the differential amount between the payable Diyat in the year 2012 and what was payable when the compromise was being effected between the other legal heirs of deceased

Validity

Record showed that one widow and three minors were the surviving legal heirs of the deceased

According to the statement of natural guardian of the minors before the Trial Court, she raised no objection if petitioners/appellants were also acquitted of charges, since she had already received amount of Rs.22,35,500/-in the shape of Defence Saving Certificates as Diyat on behalf of the minors of the deceased in the year 2012

Diyat was not a punishment, its enhancement for the legal heirs was not their legal right when it had already been exercised by them drawing all the amount of Diyat to their share

No new right had accrued to them

Only exception through which a compromise could be recalled was that it was forcefully affected as free consent was the main ingredient of such ground which was apparently missing

Once a compromise always a compromise, therefore, it could not be rescinded by any strange interpretation of law in order to proactively protect the minors since the interest of the minors could not be watched over and above their entitlement regardless of the fact that offence of murder was committed by more than one person and convicted though might have different financial status

In the absence of any documentary evidence to prove the financial status, no such finding could be given

In the present case, the compromise was not a new one but reaffirmation of the old compromise entered with other accused persons, the benefit of which could be extended to the present accused petitioner, therefore, the payment of differential amount to the minor was not legally permissible

Application was accepted as a result of which appeal was allowed and accused were acquitted of the charges levelled against them.

Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, abetment, dishonest misappropriation of property, common intention

Appreciation of evidence

Compounding of offence

Compromise between the parties

Conviction and sentence, effect upon

Accused was charged for committing murder of his sister/daughter of complainant on the pretext of honour and he was facilitated by other son of complainant

Trial Court dismissed the application filed under S. 345(2), Cr.P.C

Scope

Record indicated that application under S. 345, Cr.P.C., for compromise between the legal heirs of deceased with accused was submitted before the Trial Court

However, that was not a fact under dispute that the only legal heirs of deceased at the relevant time was her parents because her two brothers were the accused of the case

On the same day, statements of both the legal heirs were recorded where they categorically maintained that they had forgiven accused and they were having no objection for the acquittal of said assailants

Even mother of deceased present in Court with her Advocate stood for the said compromise

Father of deceased was not present having passed away

Trial Court after recording the statements, on the same date dismissed the application

Conviction of accused under S. 311, P.P.C., itself indicated that Trial Court had accepted the compromise but finding the case as of honour killing declared it within the ambit of S. 311, P.P.C.

Conviction of an offender on the principle of fasad-fil-arz or on the pretext of honour killing must based on clear and qualitative evidence

As for the purpose of convicting the accused under S. 311, P.P.C., the Trial Court had mainly relied upon his confession recorded by Judicial Magistrate

Appeal was allowed and accused was acquitted from the case on the basis of compromise.

Admittedly, the parties had entered into compromise and the legal heirs of the deceased had forgiven the accused in the name of Almighty Allah and had waived their right of Qisas and Diyat

When the offence under S. 302, P.P.C., being the main offence, had come to an end consequent upon the compromise having been entered into by the parties, the question arose as to whether the offence under S. 364, P.P.C., allegedly committed by the accused in continuation of offence under S. 302, P.P.C., would be merged

Assistant Prosecutor General appearing for the State had conceded to such proposal

Both the parties had amicably settled all their differences and disputes and had agreed to pass rest of their lives in peace, tranquillity and harmony

Non-compoundability of a particular offence under any section of the enactment should not be read in isolation but it should be read in the background of each criminal case and beneficial interpretation should be given to it

In the present case, when both the parties had earnestly decided to live in peace and tranquillity by ignoring and settling all their past differences, then for the sake of their welfare in particular and betterment of socioeconomic conditions of the society as a whole, it would be prime need of the time to accept the compromise and consequently acquit the accused from the charges

Application filed under S. 345(2), Cr.P.C., was allowed, in circumstances.

Qatl-i-amd, rash and negligent act, intentional insult with intent to invoke breach of the peace, rioting, rioting armed with deadly weapon, unlawful assembly

Appreciation of evidence

Compounding of offence

Compromise between the parties

Scope

Compromise arrived at between the accused persons and legal-heirs of deceased had been made voluntarily

Major legal-heirs of the deceased appeared and reiterated the contents of listed applications and the affidavits filed by them and stated that they have waived off their right of Qisas and Diyat so also did not claim any compensation

So far share of minor heirs was concerned, there were five minor legal-heirs and the Accountant of the Court had furnished report showing entire share amount of the minors out of which the accused persons had given agricultural land measuring (00-20) Ghuntas by way of registered sale deed and such Khata had also been mutated in the names of the said minors in the record-of-rights

Pursuant to orders of the Court of the Mukhtiarkar (Revenue) had also submitted the report showing the value of the said area of the landed property, however, for remaining Diyat amount, accused persons gave undertaking to deposit the same with the Accountant of the court

Compromise application was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court.

Ss. 302, 311, 338-C & 299(ee) [as amended under Criminal Law (Amendment) (Offences in the name or pretext of Honour) Act (XLIII of 2016)]

Criminal Procedure Code (V of 1898), S. 439

Qatl-i-amd, Isqat-i-Janin and Fasad-fil-Arz

Compounding of offence

Accused murdered his real mother in the name of honour

Before initiation of trial accused sought his acquittal on the basis of compromise

Trial Court declined to compound the offence

Validity

Fasad-fil-Arz was a serious form of crime, which was defined under S. 299(ee), P.P.C., which included offences committed in the name or on the pretext of honour

Object to amend Penal Code, 1860, and Criminal Procedure Code, 1898, through Criminal Law (Amendment) (Offences in the name or pretext of honour) Act, 2016, was to deter and prevent offences in the name or pretext of honour

Convict in honour killing cases was to face life imprisonment even if legal heirs of victim arrived at compromise with the convict and had pardoned him

High Court in exercise of revisional jurisdiction declined to interfere in the order passed by Trial Court as there was no illegality or irregularity in refusing compounding of offence

Revision was dismissed, in circumstances.

Offence under S. 3 of Illegal Dispossession Act, 2005, is not compoundable.

Entries in Second Schedule of Cr.P.C. can only be surpassed if the special law gives a different status to the offences punishable under that law.

Compromise in non-compoundable offence is considered only a mitigating circumstance for reduction in sentence.

Surviving legal heirs of a deceased are quite competent to effect compromise within the meaning of S. 345, Cr.P.C., where conviction and sentence have been passed under Ta'zir.

Mischief committed by fire or explosive substance, criminal intimidation, rash or negligent act to endanger human life or personal safety of others, common intention

Appreciation of evidence

Compounding of offence

Compromise between the parties

Conviction and sentence, effect upon

Prosecution case was that the accused along with his co-accused were present in cattle pond of complainant, they were encircled by the complainant party and caught hold of accused, while co-accused by making aerial firing and extending threats made their escape good

Record showed that both the parties viz. the complainant and the accused had patched up their differences and amicably settled their disputes and had filed application under S. 345(2), Cr.P.C., for granting permission to compromise the matter

Compromise application under S. 345(6), Cr.P.C., was also filed mentioning therein that due to intervention of nekmards of locality the parties had compromised the matter for keeping good, brotherly and cordial relations with each other

Admitted fact was that both the parties had amicably settled all their differences and disputes and had agreed to pass rest of their lives in peace, tranquillity and harmony, however, High Court observed that non-compoundability of a particular offence under any section of the enactment should not be read in isolation but it should be read in the background of each criminal case and beneficial interpretation should be given to it

Petition was allowed by setting aside conviction and sentences recorded by the Trial Court, in circumstances

Accused was acquitted accordingly.

Brother and sister of the deceased, being not direct heirs of the deceased but heirs of an heir of the deceased, cannot resist a compromise arrived at between the accused and the direct legal heirs of the deceased

Such compromise is the exclusive right/authority of the widows and daughters of deceased to enter into compromise with the accused.

Record showed that the medical certificates of the deceased lady was available on record, according to which she was also seven months pregnant

Accused had committed qatl-i-amd of the deceased lady out of ghairat

Murder in the name of family honour and religion could not be sanctified

In cases where the Qatl-i-amd had been committed on the pretext of "Karo Kari", "Siah Kari" and similar other customs, the provisions of S.345(2), Cr.P.C., did not allow the compounding of offence

Court might refuse to give an effect to such a deal, especially coupled with the scenario when the offence was gruesome, brutal, cruel, appalling, odious, gross and repulsive which caused terror and sensation in the society

Present case was the one in which the entire family had been killed while asleep, for no apparent cause but to avenge the refusal of marriage and grapple the property thus, the case fell within the category (abovesaid), therefore, the leave for the compromise was refused and the application was dismissed, in circumstances.

Petitioner/convict assailed order passed by Sessions Judge whereby an application under S. 345, Cr.P.C. jointly filed by petitioner and his mother/complainant was dismissed

Facts of the case were that the petitioner and his father were convicted under Ss. 302(b) & 34, P.P.C. for the murder of complainant's daughter who happened to be their sister and daughter respectively

Application for compromise was rejected mainly on the strength that all the legal heirs of deceased were not associated in the compromise

Validity

Section 305, P.P.C. clearly depicted that in case of a Qatl, the Wali shall be the heir of the victim, according to his personal law, but shall not include the accused or convict in case of qatl-i-amd, if committed in the name or on the pretext of honour

Under the Islamic law only father and mother of an unmarried deceased possessed all rights of compromise with the accused on any of the terms permitted by law

Father being convict of murder of his daughter was excluded from the array of legal heirs, and thus, the complainant being mother of the deceased was only surviving legal heir

Compromise was accepted and the petitioner was directed to be released.

Complainant in his private complaint, filed application under S. 248, Cr.P.C., stating that a compromise between the parties had been effected owing to which he wanted to withdraw his private complaint and had no objection if the accused were acquitted

Complainant was allowed to withdraw the complaint and the Court acquitted the accused and his co-accused

Validity

Section 248, Cr.P.C. titled as "Trial of summons cases by Magistrates" did not apply to trials by the Court of Session which were conducted under Chapter XXII-A, Cr.P.C.

Order of the Trial Court was patently illegal and without jurisdiction

Criminal case could only be compounded in the manner provided in S. 345, Cr.P.C.

Offence under Ss. 302/34, P.P.C., could be compounded by the legal heirs of the deceased with the permission of the court before which the prosecution was pending

Withdrawal of private complaint was a unilateral act while composition of offence required participation of the other party

Court could not grant the permission envisaged in S. 345, Cr.P.C., in a vacuum and it had to satisfy itself about the genuineness of the compromise and the legal capacity of those who were making it

Unilateral statement of the complainant that he promised with the accused was not sufficient

In the present case, impugned order proceeded on the solitary statement of complainant

No evidence of valid compromise between the legal heirs of deceased and the accused was available

Admittedly, private complaint was still at the initial stage when the complainant withdrew it

Although charge was framed but the statement of not a single witness was recorded and unless the accused had been acquitted after regular trial the second prosecution was not barred.

Record showed that the father and brothers of deceased having been nominated as accused in the case, who were absconding, were not entitled to inherit any share out of the property of the deceased

Report of Trial Court showed that the accused had not deposited the share out of Diyat in respect of minor legal heirs, who were brothers of deceased

Accused submitted that deceased was an unmarried girl, hence after exclusion of father of deceased, being one of the nominated accused, to inherit any share out of Diyat amount, only the mother of deceased, among the members of deceased's family, was the sole surviving legal heir to possess all legal rights to compromise with the accused on any of the terms permitted by the law

Notice was also published to invite objections from general public

Trial court had recorded the statements of adult legal heirs of deceased, who in their statements had clearly stated that they had forgiven the accused being one of their family member in the name of Almighty Allah and had waived their right of Qisas and Diyat and had recorded no objection to the acquittal of accused

Mother of deceased had appeared and stated that she had forgiven the accused voluntarily, without any coercion, compulsion or inducement and thereby she had waived her right of Qisas and Diyat

Legal heirs of deceased had forgiven the accused and had prayed for their acquittal of the accused, which showed that the compromise arrived between the parties was voluntary

Applications under S. 345(2), Cr.P.C., for permission to compound the offence was allowed and in consequence thereof the compromise between the accused and legal heirs of deceased was accepted

Accused was acquitted of the charge in terms of compromise.

Convict filed application for compounding the offence on the ground that the complainant party and the victim had forgiven him

Offence of rape was non-compoundable for the reason that it was against the public policy

Section 345(6), Cr.P.C. had placed a specific bar for compounding of the offences not mentioned therein

Applications for compounding of offence were dismissed.

Qatl-i-amd, attempt to commit qatl-i-amd, house-trespass in order to commit offence punishable with imprisonment for life and common intention

Scope

Convict was alleged to have murdered the deceased and injured an eye-witness

Convict, during pendency of appeal, moved application for seeking permission to effect compromise as legal heirs of the deceased had compounded the offence and had waived their right of qisas and diyat in the name of Almighty Allah and they had no objection if the accused was acquitted of the charge

All major legal heirs of deceased had appeared before Sessions Judge and had recorded their statements on oath that they had forgiven the convict and waived their right of qisas and diyat in the name of Almighty Allah voluntarily and with their free consent and had no objection if the accused was acquitted of the charges

Injured witness also appeared before the Sessions Judge and got recorded her statement on oath that she had forgiven the convict and compounded the offence under S. 324, P.P.C. of her own free will and consent in the name of Almighty Allah

High Court, in the interest of justice, with a view to promote peace and harmony between the families concerned as well as in the society granted permission to compound the offences

Section 311, P.P.C. did not attract in the circumstances of the case as the families had decided to live peacefully after forgetting incident

Application filed by convict was accepted and his appeal was allowed, in circumstances.

High Court can, while exercising jurisdiction, competently entertain application for compounding the offence.

Allegation against accused was that he and co-accused cheated the complainant on the assurance of arranging visa for umrah, which allegation fell within the meaning of cheating, punishable under S.420, P.P.C.

Punishment under S. 406, P.P.C. was not tenable and the same was set-aside by the High Court

Parties had affirmed the contents of compromise application and had further affirmed that the same was voluntary

High Court accepted the compromise application and acquitted the accused

Criminal revision application was disposed of accordingly.

Accused persons were not connected with motive set up by prosecution and motive was also ruled out of consideration by High Court

Alleged recoveries affected from accused persons during investigation were legally inconsequential because no crime empty was secured from place of occurrence connecting recovered firearms with alleged offences

In absence of proof of alleged motive sharing of common intention by accused persons with their co-accused for purposes of killing two persons and injuring two others was quite suspect

Something had happened at spot leading to occurrence in question and it could well be that in such a sudden occurrence every accused person might have been responsible for his own individual act

No evidence was available regarding sharing of common intention by accused persons with their co-accused

Supreme Court set aside conviction and sentence awarded to accused persons for murder as deceased had not been harmed by accused persons at all

Supreme Court accepted compromise between the parties

Appeal was allowed.

Question as to whether as a consequence of accepting a compromise, the convict's conviction was to be set aside and he be acquitted or instead without setting aside his conviction and acquitting him he was only saved from punishment

[Per Qazi Faez Isa, J (Majority view): When the compromise was accepted it brought to an end the punishment of the offence, but it did not simultaneously result in the setting aside of the conviction and the acquittal of the convict

By accepting the compromise it brought the sentence to an end, but the convict did not secure an automatic acquittal as a consequence thereof

Forgiveness or pardon did not erase or obliterate the crime, it simply withheld the punishment

If the perpetrator of the crime, which had been waived/compounded, was to be acquitted this may only be done after the facts and circumstances of the case had been considered, that was, after hearing the case

Law did not state that the court had to acquit the accused-convict simply because the offence had been waived or compounded

No provision either in the Penal Code, 1860 or the Criminal Procedure Code, 1898, explicitly, or impliedly, mandated that a convict's conviction shall be set aside when the compromise was accepted

Nor could this be done by relying on subsection (6) of S.345, which stated that the composition, "shall have the effect of an acquittal"

Sentence, which followed a conviction, could be brought to an end by the victim or by the victim's heirs by forgiving the convict and this may also be done by an executive pardon, however, neither individuals, who were entitled to compound, nor the executive, which had the power to pardon, could exercise judicial power by setting aside a conviction and or acquit a convict

Previous convictions were also relevant when considering sentencing; whether the maximum punishment be given or any lesser one was determined by taking into consideration the convict's conduct and previous convictions

If, therefore, previous conviction/s were erased (as a result of compromise) the legal provisions (dealing with past conduct of offender and enhanced punishments for previous convictions) would become redundant

His Lordship observed that as a result of improper legal assistance and by not considering certain relevant provisions of Penal Code, 1860 and the Criminal Procedure Code, 1898, the Bench of the Supreme Court in SMC No. 03 of 2017 (PLD 2018 SC 703) incorrectly laid down that "as a result of a successful and complete compounding of a compoundable offence in a case of Ta'zir under S.345, Cr.P.C., with permission or leave of the relevant court where required, an accused person or convict is to be acquitted by the relevant court which acquittal shall erase, efface, obliterate and wash away his alleged or already adjudged guilt in the matter apart from leading to setting aside of his sentence or punishment, if any"

His Lordship referred the present case to the Chief Justice of the Supreme Court for the constitution of larger Bench to settle the issue of effect of a compromise under S.345, Cr.P.C]

[Per Gulzar Ahmed, J, dissenting (Minority view):Judgment of the Supreme Court passed in SMC No. 03 of 2017 (PLD 2018 SC 703) had already settled the issue as to whether compounding of an offence under S.345 Cr.P.C. amounted to acquittal of accused person or not

Said judgment had discussed in great details the effect of compounding of an offence under S.345 Cr.P.C. and in doing so large number of case law from Pakistan as well as foreign jurisdictions was taken into consideration, discussed and a thorough opinion had been expressed that once an offence had been compounded under S.345 Cr.P.C., such compounding resulted into obliteration, removal, pardoning and erasing of the offence resulting into acquittal of the accused or convict

Since the view and opinion in SMC No. 03 of 2017 (PLD 2018 SC 703) was expressed by three member Bench of the Supreme Court, such view had a binding effect on the present and equal three member Bench of the Supreme Court

View expressed by a three member bench of the Supreme Court could only be changed or deviated from by a larger bench for which the forum provided by law was to request the Chief Justice for constitution of a larger bench].

Question as to whether acceptance of a compromise submitted under S.345(6), Cr.P.C resulted in the automatic acquittal of a convict-murderer or only had a bearing on the sentence part of his conviction

[Per Qazi Faez Isa, J]: Such question needed to be decided as it affected a large number of pending cases and would also have a bearing on future compromises

Since applications under S.345(6), Cr.P.C were also submitted before the High Courts and Session Courts throughout the country, therefore, the answer to the said question of law needed to be clearly enunciated in terms of Art.189 of the Constitution]

[Per Munib Akhtar, J (dissenting): Law regarding effect of a compromise continued to be that laid down in the judgment reported as Suo Motu Case No. 3 of 2017 (PLD 2018 SC 703) regardless of the (apparently so far unattended) request for a larger Bench made by the majority in the judgment reported as Shafqat v. State (PLD 2019 SC 43)

For purposes of stare decisis such request, as a matter of law, was not to be taken into account either by the Supreme Court or any other court in the country.

In a case of Ta'zir an offence of qatl-i-amd under S.302, P.P.C. may be compounded by the "heirs of the victim" and when an heir of a victim was only a person who inherited directly from the victim then what was clearly meant by S.345(2), Cr.P.C. was that only a person who could directly inherit from the victim was the person who could compound the offence of qatl-i-amd of the victim and none else.

Under the regime of Ta'zir, the heirs of the victim could compound the offence of qatl-i-amd under S.345(2), Cr.P.C. with the permission of the Court

Right vested in the "heirs of the victim" made the right of compoundability under Ta'zir inheritable

Such right was also an actionable claim, hence inheritable

Section 345(2) Cr.P.C. had no time limit and could be invoked by the accused party at any stage after the offense was committed and before the sentence was executed

Purpose of said provision was understandably to encourage settlements between warring parties in order to protect family life and ensure a peaceful community

Heirs of the deceased victim could exercise such right

First heirs of the victim were those who survived him immediately at the time of his death

Heirship of the victim continued in time and at any given time, when the heirs who survived at the time of death of the deceased were no more, there would still be heirs of the victim under the Islamic law of inheritance in the shape of sharers, residuaries or distant kindred

Heirship was based on blood and marriage and continued as the families evolved

Available heirship was to be determined afresh when the right to compound was to be exercised irrespective of the time of death of the victim

Available heirs of the victim and not heirs of the heirs were to be determined during such exercise.

Provisions of S.345(2), Cr.P.C. did not place any embargo upon compounding of the relevant offence by the surviving heirs of a victim at a time when one or more of the heirs of the victim had already died.

Qisas and Ta'zir were two separate regimes, having their own sets of rules, however, when it came to the question of determining the heirs of the victim or walis of the victim, for the purposes of compoundability of the offence of qatl-i-amd, the two regimes converged and both took guidance from the Islamic Law of inheritance to resolve such question

Islamic Law of inheritance was the only law that provided for determination of heirs in the country.

Concept of wali relevant to a case of Qisas was not relevant to a case of Ta'zir which belonged to a different regime of criminal law and was governed by separate and distinct principles

In cases of Qisas the term wali meant the entire body or group of persons who were entitled to claim Qisas for a qatl-i-amd and such persons included those who were heirs of the victim entitled to inherit from him as well as those on whom the right of Qisas devolved upon death of an heir of the victim, even if such heirs of the heir of the victim did not themselves inherit from the victim directly

In cases of Ta'zir the law had conferred the capacity to compound only upon the heirs of the victim and had not provided for devolving of the capacity to compound upon an heir of an heir of the victim as had been provided in cases of Qisas

Difference between devolving of a right of Qisas and devolving of the status of an heir also had to be kept in mind

Section 307, P.P.C. recognized that the right of Qisas devolved on an heir of an heir of the victim and because of devolving of the right of Qisas on him an heir of an heir of the victim also became a wali of the victim and in that devolved capacity of wali such heir of an heir of the victim could also waive or compound the relevant offence

Section 307, P.P.C. however, did not provide or recognize that through such devolving of the right of Qisas on him an heir of an heir of the victim also became or was recognized as an heir of the victim

Such distinction between devolving of the right of Qisas and devolving of a right to inherit from the victim had to be clearly understood because the first was relevant to the concept of Qisas whereas the second was relevant to the concept of Ta'zir

In Qisas the tie of blood with the victim was the governing consideration even if a wali in his devolved capacity was not in a position to directly inherit from the victim whereas in Ta'zir the sole consideration for the capacity to compound was the capacity to inherit directly from the victim. Ahmad Nawaz @ Gogi v. The State PLD 2007 Lah. 121 and Abdul Rashid alias Teddi v. The State 2013 SCMR 1281 not to be treated as good precedents.

Qatl-i-amd, wearing garb or carrying token used by public servant with fraudulent intent, house-trespass in order to commit offence punishable with death, rioting armed with deadly weapon, unlawful assembly

Compounding of offence

Compromise between parties

Appreciation of evidence

Accused charged for the murder of nine persons were sentenced to death on nine counts

Application for acquittal on the basis of compromise was filed by the petitioner-convict

Trial Court recorded statements of some of legal heirs of deceased but some of them did not record their statements, as such provisions contained in S. 345 Cr.P.C. was not fulfilled therefore, application of petitioner-convict under S. 338-E, P.P.C. was turned down

Later on, petitioner-convict filed another application for remission of death penalty on the basis of compromise which was also turned down

Validity

Record showed that application under S. 338-E, P.P.C. filed by petitioner-convict was dismissed by Trial Court in view of S. 345 Cr.P.C., where compromise was not effected by all the legal heirs of nine deceased

Now all the legal heirs of deceased had effected compromise with the petitioner-convict, therefore, petition was allowed and case was remanded to the Trial Court in view of S.338-E(2), P.P.C. for further proceedings.

Principles.

Section 309, P.P.C. pertaining to waiver and S. 310, P.P.C. to compounding in case of murder were relevant only to the case of Qisas

Matter of compromise between the parties, in case of Tazir, was governed and regulated by the provision of S. 345(2), Cr.P.C. read with S. 338-E, Penal Code, 1860.

Legal heirs of both the deceased had forgiven the accused as well as the absconding co-accused in the name of Allah by waiving of their rights of qisas and diyat

Trial Court declared the absconded accused as proclaimed offender and issued perpetual warrant of arrest against him

Validity

Record showed that the offences with which the accused persons including the absconder were charged, were compoundable

Legal heirs of both the deceased and injured categorically stated in their statements before the Trial Court that they had patched up the matter with the accused facing trial and the absconding accused

Legal heirs of both the deceased and injured pardoned them and had no objection if they were acquitted on the basis of compromise

When legal heirs of both the deceased and the injured had settled their differences with absconding accused, the order of Trial Court issuing perpetual warrant of arrest against him was incorrect and not sustainable

Petition was allowed by setting aside the judgment of Trial Court to the extent of issuance of perpetual warrant of arrest against absconder and acquitting him of the charges on the basis of compromise.

Motive concluded by Trial Court was personal vendetta and essential element of creating terrorism in public was never established nor attempted

Case prima facie fell in the category of cases not liable to be tried by Special Court

As there was personal vendetta, provision of S.6 of Anti-Terrorism Act, 1997, was misapplied by police as well cognizance and trial was not proper

High Court set aside judgment passed by Special Court and remanded the case to Sessions Court for de novo trial and that Court would be competent to decide application for compromise within the four corners of law

Appeal was allowed accordingly.

Ghayr-jaifah/munaqqilah; ghayr-jaifah/hashimah; ghayr-jaifah/damihah; other hurt; rioting, armed with deadly weapon; common object

Compounding of offence

Acquittal of runaway/absent convict

Permissibility

Complainant party, including the injured witnesses, got recorded their statements before the High Court to the effect that they had compounded the offence and forgiven the accused persons in the name of Allah Almighty without receiving any compensation and showed no objection to their acquittal from the charge

Additional Sessions Judge submitted his report verifying the genuineness and voluntariness of the compromise

Offences in question were compoundable with the consent of the Court, in terms of S. 345(2), Cr.P.C.

Injured witnesses were the relevant persons, as incorporated in the Third Column of S. 345, Cr.P.C., a constituent of the provision, Cr.P.C., by whom the offence might be compounded, as mentioned therein, and no other person needed to complete the process of compromise herein; hence, the proposed compromise was assented to by the High Court

High Court, taking a lenient view, excused the absence of one of the accused persons (who had gone abroad during pendency of present revision petition) in the peculiar backdrop of the case

Runaway convict might be acquitted of the charge on acceptance of his appeal, if he was found entitled to acquittal on merits of the case

All accused person were acquitted on basis of the compromise

Revision petition was disposed of accordingly.

Injured witnesses are the relevant persons, as incorporated in the Third Column, a constituent of the S. 345(2), Cr.P.C., by whom the offence may be compounded, as mentioned therein, and no other person is needed to complete the process of compromise.

Impugned order being on an application for compromise was in the exclusive domain of trial court to see whether compromise was genuine or not

Counsel should have requested the Court to remand the case, as the compromise was supposed to be accepted by the trial court and not by the revisional court.

Trial court, allowing application for acceptance of compromise in terms of S. 345(2), Cr.P.C., directed the accused to deposit the share amount of Diyat of the injured/insane with the Nazir of the court before his release from judicial custody

Accused deposited the Diyat in High Court during pendency of present criminal revision

All family members of the injured/insane victim had entered into compromise with the accused with permission of the court

Neither S. 299(e), Cr.P.C. spoke of Diyat of injury or Diyat for injury to the injured nor S. 324, P.P.C. mentioned about payment of Diyat to the victim for attempt to qatl-i-amd

Since the victim had survived, the case against the accused was one of hurt caused by him

Direction of the trial court to deposit the share amount of Diyat of the injured with Nazir of the court was patently illegal and contrary to law

Reference to S. 309, P.P.C. by the trial court was not proper

Qisas was not applicable unless the injury caused by the accused fell under S. 332(2)(a) & (b), P.P.C.

Charge-sheet available on record did not refer to the offences for which punishment was provided under Ss. 333 & 335, P.P.C.

Case of prosecution in the FIR and the charge sheet was about causing injury/hurt on the head of the victim; therefore, the case of the accused fell under S. 337(2)(a) to (f), P.P.C., the provisions of which were compoundable under Sched. II of Cr.P.C.

Section 324, P.P.C. also did not impose any condition which could hamper the possibility of compromise in terms of S. 345(6), Cr.P.C. by the persons who, otherwise, were competent to compound the offence on behalf of an idiot or insane injured in terms of S. 345(4), Cr.P.C.

Question of Diyat did not arise under any circumstances in an offence under S.324, P.P.C. and the victim could himself compound the offence or in case of his disability to compound, any one on his behalf, could compound the offence in terms of S. 345(4), Cr.P.C.

Accused had erroneously paid the Diyat on the wrong advice and wilful negligence of his counsel

High Court setting aside the impugned order, directed the refund of the Diyat to the accused and acquitted him; High Court also directed the counsel to pay compensation to the accused for his unnecessary vexation during present proceedings due to their misconduct/criminal negligence

Revision was allowed accordingly.

Offence under S. 495, P.P.C. was an independent offence which had its own punishment in addition to punishment for causing Qatl or causing hurt or attempt to cause Qatl or hurt therefore, such offence could not be merged into main offence

When one was tried for two different offences and awarded punishments in both of them, then competence of one to compound one offence could not affect legality of sentence awarded for other independent offence by competent court of law

Likelihood of failure of prosecution to prove charge was no ground to make a non-compoundable offence as compoundable

Attempt to compound an offence, even if failed, could not bring any consequence on merits of the case however, failure of prosecution/complainant to establish charge could give certain rights to accused against complainant/prosecution

High Court accepted compromise to the extent of convictions awarded under Ss. 302(b), 337-A(i) & 337-F(i), P.P.C. while for the offence under S. 459, P.P.C. the same was declined

Application was allowed accordingly.

Individual does not have any right to compound the offence which in fact was against the society and not against him.

If a convict has been sentenced to death as Ta'zir then all legal heirs of deceased must enter into a compromise to enable compounding of the offence under S.345(2), Cr.P.C.

Sentence of death awarded to accused persons as Ta'zir by Trial Court for committing qatl-i-amd was maintained by High Court

Plea raised by accused persons was that they had entered into compromise with one of the legal heirs of deceased

Validity

Once it was established that offence had been committed by accused, the appropriate sentence was awarded to him/her, which in respect of qatl-i-amd as Ta'zir could be either death or imprisonment for life

Provision of S. 302(b), P.P.C. required that 'facts and circumstances of the case' be considered in determining appropriate sentence

Compromise with one or more heirs of victim would be amongst the facts and circumstances of the case that required to be taken into account in determining quantum of punishment but that in itself would not be the conclusive factor as all facts and circumstances of the case had to be considered

Merely because an heir had compromised with convict would not automatically result in imposition of lesser punishment of imprisonment for life

Supreme Court declined to reduce sentence of death awarded to accused persons by Trial Court, which were upheld and confirmed by High Court

Appeal was dismissed.