' DOST MUHAMMAD KHAN, J.---Through this appeal with the leave of the Court dated 6.3.2015, the appellants have questioned the legality and propriety of the judgment of the Peshawar High Court dated 19.12.2013 whereby Criminal Revision Petition No,42-M of 2013, filed by the appellants was dismissed and the prayer for accepting the compromise, effected between the parties was declined in the manner, as was done by the Trial Court.
' We have heard the learned ASC for the appellants and Mr. AslamGhuman, learned ASC appearing on behalf of A.G. KPK and have gone through the record.
2. It is an admitted position that the trial Court, upon conviction, awarded death sentence on one count to the appellants albeit it was stated in the judgment that the conviction so awarded under section 302(b), P.P.C. Shall be read with section 7(a), A.T.A.
3. Both the appellants were charged for causing the death of Mst. Naheed through strangulation as she was an obstacle in the way of one of the appellants, namely Irfan, who had developed love affairs with Mst. Ghazala, however, further allegations were made that 15 tolas gold ornaments and cash amount of Rs,65,000/- was also taken away by the appellants. Case FIR No,1266 was registered on 30.12.2004 under sections 302, 404/34, P.P.C. Read with section 7(a), A.T.A. By Police Station, Mingora, District Swat. After conviction, the appellants filed appeal before the Peshawar High Court, however, while partly allowing the appeal, their sentence was reduced to life imprisonment but only under section 302, P.P.C. And nothing was said in the judgment or in the Reference sent by the Trial Court that the death sentence under section 7(a), A.T.A. Was confirmed.
Probably, the Division Bench of the High Court was mindful that they were convicted under section 302, P.P.C. On a single count and no sentence of death was awarded under section 7, ATA.
4. Similarly, this Court while dismissing their leave petition, did not take notice of this omission, made by the Trial Court and then by the High Court because in the judgment of this Court too, the sentence of life imprisonment under section 302(b)/34, P.P.C. And the imprisonment of three years'
R.I. With fine of Rs,50,000/- each under section 404, P.P.C. Alone was maintained with further modification.
5. Although it was an omission on the part of the Trial Court, not awarding separate sentence under section 7(a), A.T.A. But that legal error was not corrected or to say rectified by the High Court nor by this Court in its judgment dated 24.03.2009 therefore, for all legal intents and purposes it shall be construed without exception that both the appellants were convicted only under section 302(b)/34, P.P.C. Read section 404, P.P.C.
6. Under the provisions of section 367(2) and (3), Cr.P.C. It is mandatory for the Court that after finding the accused guilty of one or more offences, upon recording conviction, separate sentence must be clearly awarded to the accused so convicted otherwise it would be illegal being in violation of the mandatory provisions cited above. In this case, no separate sentence was awarded to the appellants under section 7(a), A.T.A. By the Trial Court or the High Court, as explained above.
This legal aspect of vital importance, conveniently escaped from the notice of the Trial Court and the learned High Court in the second round when the appellants were seeking acquittal on the basis of compromise under section 302(b), P.P.C. Alone, because it cannot be construed nor it is permissible under the law to hold that the appellants were impliedly sentenced to imprisonment for life under section 7(a), A.T.A. As well. The provision of section 367, Cr.P.C. Provides that the Court determine first the guilt of the accused and then to pass judgment of conviction whereafter the sentence shall follow.
Being inseparable and integral part of conviction, unless specifically awarded, it cannot be assumed to the prejudice of the accused that he/they were also sentenced under section 7(a), A.T.A. By applying the rule of implication because the law provides the passing of specific sentence for a distinct offence and if it is not awarded, it cannot be construed that same was impliedly awarded as the very judgment to that extent becomes illegal and violative of the mandatory provisions of subsections (2) and (3) of section 367, Cr.P.C.
7. Both the offences under sections 302 and 404, P.P.C. Are compoundable and when the State/Prosecution has not taken any exception to the legal error, so committed by the Trial Court and thereafter by the High Court in the first round of litigation then, at this belated stage, it cannot agitate that the necessary modification be made in the conviction and sentences of the appellants and they be further convicted and sentenced under section 7(a), A.T.A. As well, because the matter is now past and closed transaction and cannot be re-opened.
8. Even otherwise, the applicability of section 7(a), A.T.A. Was a begging question because the ingredients constituting that offence are missing in the case, however, at this stage, we are not suppose to further discuss this aspect of the matter.
9. We are of the considered view that both the foras below have committed legal error by not accepting the compromise On the ground that the appellants were also charged and convicted by the trial Court under section 7(a), A.T.A. The learned ASC for the State was unable to controvert this legal position, emerging out of the two judgments, referred to above and when he was asked that what the State would gain if the compromise is refused, when the legal heirs of the deceased have received a handsome compensation amount as Diyat from the appellants, he was unable to satisfy the Court in any manner.
Accordingly, this appeal is allowed. Both the impugned judgments of the learned Courts below are set aside and the case is sent back to the learned Trial Court, who, after verifying the genuineness of the compromise to its satisfaction shall accept the same and acquit the appellants on the basis thereon.