Tassaduq Hussain Jillani, J.--We have heard learned counsel for the appellant and learned Prosecutor General, Balochistan at some length and have given anxious consideration to the issues raised.
2. Facts giving rise to the instant appeal briefly stated are that appellant was proceeded against in terms of the case registered vide FIR No, 10/2005 dated 25.8.2005 under Section 302, PPC at Levies Thana Bhag. The prosecution story as given in the FIR was that on the fateful day and time, the appellant caused murder of Ghulam Hussain and Mai Sajjad by firing at them. After due investigation, a challan/report under Section 173, Cr.P.C. was submitted in the trial Court, where at the initial stage, the parties effected compromise when no evidence had been recorded and moved, the Court to give effect to the compromise by granting the requisite permission under the law. The learned trial Court/District & Sessions Judge, Sibi, did not allow the application on the grounds as follow:-- "I have perused the compromise papers carefully. The offences alleged to have been committed is compoundable with the permission of the Court. It seems that compromise has been effected between the parties is true and voluntary. The, application under Section 345(2), Cr.P.O is allowed and compromise accepted. However, facts and circumstances of case crystal clear visualize that he committed premeditated and cool blooded dual murder of deceased Ghulam Hussain and his sister Mai Sajidah on the pretext of "SIAH KARI" by firing at them by means of Kalashankove in a shocking and brutal manners which committed offence was also outrageous to the public conscience and community, which attending factors and circumstances safely bring into service provision of Section 311, PPC which circumstances also disentitled accused facing trial Muhammad Iqbal for taking a lenient view or mercy in his favour in-spite of arrival of compromise and having pardoned by legal heirs of both victims.
As sequel to above reasons, I therefore, convict accused facing trial Muhammad Iqbal son of Sultan under Section 311, PPC and sentence him to ten (10) years RI as Ta'zir. The accused shall have the benefit of Section 382-B, Cr.P.0 and the period of his detention as under trial prisoner should be counted towards his sentence."
3. Learned counsel for the appellant submits that the learned trial Court could not convict the appellant under Section 311, PPC as there was no evidence to hold that the double murder was premeditated or that it was outrageous to public conscience or that it fell within the mischief clause of the afore-referred provision.
4. Learned Prosecutor General, Balochistan, in all fairness conceded and prayed. that the case be remanded to the trial Court to decide the application afresh and if the Court is minded not to allow the application, it may record the requisite evidence.
5. Having heard learned appellant's counsel, learned Law Officer and having gone through the impugned judgment, we find that in convicting the appellant under Section 311, PPC, though the legal heirs had compounded the offence of double murder in the name of Siah Kari, the learned trial Court not only did not keep in view some, of mandatory provisions both of substantive and procedural law but also gave findings on questions of fact though the evidence had not been recorded. A reference to some of those provisions would be in order. Those are as follows:-- 302, PPC "302. Punishment of qatl-i-amd.--Whoever commits qatl-eamd shall, subject to the provisions of this Chapter be:
(a) punished with death as qisas;
(b) punished with death for imprisonment for life as ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in Section 304 is not available; or
(c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according _ to the Injunctions of Islam the punishment of qisas is not applicable.
[Provided that nothing in this clause shall apply to offence to qatl-i-amd if committed in the name or on the pretext of honour and the same shall fall within the ambit of clause (a) or clause (b), as the case may be.] 309, PPC
309. Waiver (Mw) of qisas in qatl-i-amd.--In the case of qatl-i-amd, an adult, sane wali may, at any tithe and without any compensation, waive his right of qisas: Provided that the right of qisas shall not be waived:
(a) where the Government is the wali, or
(b) where the right of qisas vests in a minor or insane,
(2) Where a victim has more than one Wali any one of them may waive his light of qisas: .
Provided that the wali who does not waive the right of qisas shall be entitled to his share of diyat.
(3) Where there are more than one victim, the waiver of the right of qisas by the wali of one victim shall not affect the right of qisas of the wali of the other victim.
(4) Where there are more than one offenders, the waiver of the right of qisas against one offender shall not affect the right of qisas against the other offender.
310, PPC,
310. Compounding of qisas (Sulh) in qatl-i-amd.--(1) In the case of qatl-i-amd, an adult sane wali may, at any time on accepting badl-i-sulh, compound his right of qisas: Provided that giving a female in marriage shall not be a valid badl-i-sulh.
(2) Where a wali is a minor or an insane, the wali of such minor or insane wali may compound the right of qisas on behalf of such minor or insane wali: Provided that the value of badl-i-sulh shall not be less than the value of diyat.
(3) Where the Government is the wali, it may compound the right of qisas: Provided that fee value of badl-i-sulh shall not be less than the value of diyat.
(4) Where the badl-i-sulh is not determined or is a property or a right the value of which cannot be determined in terms of money under Shari'ah, the right of qisas shall be deemed to have been compounded and the offender shall be liable to diyat.
(5) Badl-i-sulh may be paid or given on demand or on a deferred date as may be agreed upon between the offender and the wall.
Explanation. In this section, Badl-i-sulh means the mutually agreed compensation according to Shari'ah to be paid or given by the offender to a wall in cash or in kind or in the form of movable or immovable property.
311, PPC 311-Ta'zir after waiver or compounding of right of qisas qatl-i-amd: Notwithstanding anything contained in Section 309 or Section 310, where all the wall do not waive or compound the right of qisas, or keeping in view the principle of fasad-fil-arz the Court may, in its discretion 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 imprisonment of either description for a term of which may extend to fourteen years as ta'zir.
Explanation.--For the purpose of this section, the expression farad fil-arz shall include the past conduct of the offender. or whether he has any previous convictions, 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."
345, Cr.P.C.
"345. Compounding offences.--(1) The offences punishable under the sections of the Pakistan Penal Code specified in the first two columns of the table next following may be compounded by the persons mentioned in the third column of that table: Offence Sections of Pakistan Penal Code applicablePersons by whom offence may be compounded
(2) ...............................
(2-A) Where an offence under Chapter XVI of the Pakistan Penal Code, 1860 (Act XLV of 1860) has been committed in the name or on the pretext of karo kari, siyah kari or similar other customs or practires, such offence may be waived or compounded subject to such conditions as the Court may deem fit to impose with the consent of the parties having regard. facts facts and circumstances of the case."
6. The combined effect of the afore-mentioned provisions was considered by this Court in Azmat Vs. State (PLD 2009 SC 768) and it was held as follows:-- "9. The position which thus emerges from a perusal of the provisions of Sections 309, 310 and 311 of the P.P.C. and of subsections (2) and (6) of Section 345 of the Code of Criminal Procedure, is:-
(a) that grant of "Afw" or the compounding of the offence of "Qatl-e-Amd" under Sections 309 and 310. P.P.C., respectively, meant only the waiver of the light of "Qisas" and not acquittal of an accused, person;
(b) that where all the "Walis" did not join in the grant of "Afw" or in the compounding of the offence or where even when all the "Walis" did so join but the case was one of "Fasad-fil-Arz", the offender could still be punished by way of "Tazir" in view of the provisions of Section 311 of the Pakistan Penal Code;
(c) that "Fasad-fil-Arz" had not been defined by the said Code though the provisions of the said Section 311, P.P.C. did explain the said concept;
(d) that it would not be wise or even appropriate to attempt a precise definition of the said expression which could restrict its area of operation but the examples of "Fasad-fil-Arz' could include cases of terrorism or, for instance, cases where a State functionary was murdered to deter him from .performing his official duties;
(e) that acquittal of persons, accused amongst others of murder cases, as a result of a compromise, was envisaged, authorized and then even regulated by the provisions of subsections
(2) and (6) of Section 345 of the, Cr.P.C;
(f) that even under the said provisions of Section 345, Cr.P.C. acquittal was not an automatic result of a compromise even if reached by all the heirs of a deceased victim of the offence;
(g) that such an acquittal had been made subject to, the grant of permission by the competent Court meaning thereby that even where all the heirs of a deceased victim entered into a compromise with the offender, the Court could still, for valid reasons, withhold its permission to allow the compromise and could consequently refuse to acquit the accused;
(h) that it would again be neither possible nor even desirable to categorise cases into classes where such a permission should be granted or where the same should be withheld. Such a decision shall have to be taken by the concerned Court after applying its judicial mind to all the attending facts and circumstances of a given case such as the past conduct and character of the accused person; the reasons leading him to committing the murder; the manner in which the said crime was committed--how reckless or brutal was such an act and of course the question whether the act in question amounted to "Fasad-fil-Arz".
10. It will thus be noticed that, as has been mentioned above, acquittal was not an automatic consequence of a compromise reached between the parties. Therefore, what would be required to be done' by a Court, on being informed of such a compromise, would be;
(a) to see whether all the heirs had joined in the compromise;
(b) to also see whether any of the "Walls" was a minor and if so, whether such a minor had also reached a compromise in accordance with the provision of Section 313(2)(b) of the P.P.C. and if not then such a minor would have to be treated as a non 'compromising "Wali";
(c) in cases of a compromise by all the heirs, to find out whether the case was one of "Fasad-fil- Arz" and thus not a case of acquittal despite such a compromise and in fact a case of punishment under Section 311, P.P.C; and
(d) to find out also whether any facts or circumstances existed which could persuade the Court not to allow the compromise in terms of Section 345(2) of the, Qr.P.C."
7. In offences committed in the name or on the pretext of Siah Kari, Karo Kari or similar other customs or practices; a specific provision was inserted by Criminal Law Amendment Act, 2004 (Act I of 2005) whereby sub-section (2-A) was added to Section 345, Cr.P.C. and it was stipulated that "such offence may be waived or compounded subject to such conditions as the Court may deem fit to impose with the consent of the parties having regard to the facts and circumstances of the case". In the instant case, admittedly the recording of evidence had yet to commence when the parties filed application for compromise and the learned trial Court found that the appellant had "committed premeditated and cool blooded dual murder of deceased Ghulam 'Hussain and his sister Mai Sajidah on the pretext of "SIAH KARI" by firing at them by means of Kalashankove in a shocking and brutal manners which committed offence was also outrageous to the public conscience and community, which attending factors and circumstances safely bring into service provision of Section 311, PPC which circumstances also disentitled accused facing trial Muhammad Iqbal for taking a lenient view or mercy in his favour in-spite of arrival of compromise and having pardoned by legal heirs of both victims." The findings that the double murder was "premeditated and cold blooded" or that it was "shocking and brutal" or that it was "outrageous to the public conscience and community" entailed factual inquiry and recording of evidence, which exercise was not undertaken by the trial Court. It was in such like cases where offence is sought to be compounded before recording of evidence in the Court that this Court in Azmat Vs. State (PLD 2009 SC 768), had observed as follows:-- "Where a compromise is claimed after the evidence has been recorded at the trial, it will be easy for the Court to find the facts relevant for Section 311, P.P.C. and for the purposes of Section 345(2) of the, Cr.P.C. But where a compromise has been reached before recording of evidence, it man be advisable for the concerned Court, to postpone its decision about the acquittal or otherwise of the accused person; to discover all the facts and circumstances which could assist such a Court to find out whether the case was not one of "Fasad-fil-Arz" or a case where the Court should withhold, its permission to the compounding of the offence and might even require leading of evidence for the purpose and it should be then, after application of its judicial mind, that the Court, should take its decision about the acquittal or otherwise of the accused person. It may be added that whatever decision is taken by the concerned Court, either way.. should be reflected through a speaking order giving reasons for such a decision," (Emphasis is supplied)
8. In the afore-referred circumstances, this appeal is allowed, the impugned judgment is set aside and the case is remanded to the learned trial Court to decide the matter afresh in the light of the observations made above, the relevant provisions both of substantive and procedural law through a speaking judgment.