1. QAZI MUHAMMAD AMIN AHMED. J.---Rukhsana Kosar, 40, her daughter Muqaddas Bibi, 16, and son Muhammad Junaid, 9/10, were done to death in their house at 2:45 a.m. during night between 8/9- 12-2010. The incident was reported by Muhammad Naseer, P.W. at 8:30 a.m. on 9-12-2010. The petitioner along with his brother Muhammad Waqas and two unknown persons was arrayed as accused for the crime. The case was prosecuted through a private complaint and a learned Addl.
2. Sessions Judge at Phalia vide judgment dated 6-10-2015 convicted the petitioner on three counts of homicide and sentenced him to death on each along with compensation of Rs,100,000/- or to undergo six months' simple imprisonment in the event of default; he was additionally convicted under Section 376 of the Pakistan Penal Code, 1860 and sentenced to 25 years rigorous imprisonment with fine of Rs,100,000/- or to undergo six months' simple imprisonment in default of payment thereof for molesting Muqaddas Bibi deceased; he was also convicted under Section 449 of the Code ibid and sentenced to 10 years' rigorous imprisonment with fine of Rs,50,000/- or to undergo six months in the event of default; the co-accused were acquitted from the charge.
3. The petitioner challenged his convictions and sentences through Cr 1 . Appeal No,1878 of 2015 and, it was during pendency thereof, that the surviving legal heirs of the deceased, namely, Asim (husband of Rukhsana Kousar and father of Muqaddas Bibi and Muhammad Junaid) as well as Shams Tabrez (son of Rukhsana Kousar and brother of Muqaddas Bibi and Muhammad Junaid) entered into a compromise and signified their willingness for petitioner's acquittal from the charges. Learned Sessions Judge Mandi Bahauddin confirmed the composition.
4. On 2-5-2017, Mr. Javed Imran Ranjha, learned counsel for the petitioner/appellant requested for acceptance of composition on the charges of homicide with reduction of sentence, on the charge of rape, to the minimum sentence, mandated, by law as well as reduction to already undergone by him on the charge of house trespass; he has additionally argued that though the petitioner had a good case on merits yet he would prefer acceptance of compromise in order to ensure future harmony and peace between the parties. Learned Advocate General Punjab as well as learned Prosecutor General Punjab were sent for to assist the Court whether acceptance of compromise would be expedient in the facts and circumstances of the case and whether a notice for enhancement of sentence on the charge of rape would be called for in the facts and circumstances of the case.
5. The learned Prosecutor General Punjab as well as the learned Additional Advocate General Punjab unanimously argued that in the event of receipt of a guilty verdict and, during the pendency of appeal therefrom, the Appellate Court is under no legal compulsion to bless every request for composition with judicial approval, on the contrary, they maintained that acceptance of a compromise can be declined in an appropriate case having regard to the fact and circumstances thereof; they relied upon subsection (5) of section 345 of the of the Code of Criminal Procedure, 1898 which reads as under:- "When the accused has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the court before which the appeal is to be heard."
6. It is argued that the leave of the Court is not to be granted perfunctorily in isolation from the facts and circumstances of the case and the Court must look into considerations/factors behind the proposed compromise and its impact on the society at large in the event of acceptance thereof and, thus, for valid reasons the Court can deny acceptance of a compromise arrived at even by all the legal heirs. It has further been argued that request for reduction of sentence on the basis of compromise is also not tenable, as a convict cannot claim any premium in a non-compoundable offence merely on the ground that he has successfully swayed over the legal heirs. While relying upon the cases of Zahid ur Rehman v. The State (PLD 2015 SC 77), Naseem Akhtar and another v.
7. The State (PLD 2010 SC 938), Abdul Gha[far and others v. The State (2015 SCM R 1064), Azmat and another v. The State (PLD 2009 SC 768), Abdul Jabbar v. The State and others (2007 SCM R 1496), Ghulam Farid alias Fareeda v. The State (PLD 2006 SC 53), Muhammad Rawab v. The State (2004 SCM R 1170), Sheikh Muhammad Aslam and another v. Shoukat alias Shoka and others (1997 SCM R 1307) and Salman Akram Raja and another v. Govt. of Punjab through Chief Secretary and others (2013 SCM R 203), both the learned Law Officers with one voice opposed the acceptance of compromise as well as reduction of sentences on allied charges on the basis thereof.
2. Heard
3. The petitioner is in receipt of a guilty verdict for committing murder of no less than three persons, a mother, her grownup daughter and minor son in the thick of night, inside of the safety of their home; he was additionally found to have molested Muqaddas Bibi before she was done to death.
8. Enormity of untold suffering and pain suffered by the victims is a factor that cannot be lost sight of while considering the plea of composition. Though the offence of homicide under the existing regime is compoundable by the legal heirs of the deceased, nonetheless, acceptance thereof is not within their exclusive domain and discretion, as it requires judicial approval under Section 338- E of the Pakistan Penal Code, 1860 read with Section 345 of the Code of Criminal Procedure, 1898.
9. Prosecution of offences is inherently a State attribute and dispensation of justice its primary responsibility, therefore, while the law does permit a space for composition of certain offences, exercise of sovereign paramountcy by the State through Courts cannot be abdicated to the individuals; justice system cannot be privatized without horrendously compromising the dynamics of State functionality in the field of maintenance of law and order and administration of justice, thus the judicial authority of refusal cannot be abridged or curtailed by unanimity of the legal heirs alone and the Court, being the keeper of conscience of society, may still withhold permission to allow composition of an offence for valid reasons. Though the distinction between gruesome and less gruesome crimes is merely euphemistic, as the intensity of suffering endured by the victim in each case cannot be quantified in terms of such figurative classifications, nonetheless outward impact of certain crimes, given the magnitude of violence, brutality and callousness is rightly received with a greater degree of abhorrence and repugnance and this could be taken as a valid ground to deny a culprit opportunity to escape consequences of his conduct through sway over the legal heirs of the victim without intervention of the Court. The Court would also take into account the vulnerabilities of the disadvantageously placed sections of our society. Though the legal heirs in the present case, according to the report submitted by the learned Sessions Judge Mandi. Bahauddin, have forgiven the appellant in the name of almighty Allah, the overindulgent conduct of the devastated family reduced three in numbers speaks volumes in itself. In this backdrop, we do not feel persuaded to bless the request with approval. Reliance may be placed in supra case of Nasim Akhtar and another, relevant portion whereof, is advantageously reproduced:- - "Thus, the object requiring leave from the Court as per the clear intention of the legislature is neither meaningless nor purposeless and it cannot be construed that while considering the compromise plea, even of a compromise which is lawfully entered, by free consent of the legal heirs, the Court, should act in a mechanical manner and allow the same as a matter of course or routine; should sit as a silent spectator or to conduct as a post office simpliciter and affix a judicial stamp upon it. Rather it is the duty and the prerogative of the Court to determine the fitness of the case for the endorsement and sanction of the compromise and in appropriate cases, where the compromiser and offender is directly or indirectly beneficiary of the crime; the offence is committed or is caused thereof, for an obvious object of grabbing the property of the deceased by the compromiser, through his off spring, who may ultimately benefits himself (the offender) as well, the court may refuse to give an effect to such a deal, especially coupled with the scenario when the offence is gruesome, brutal, cruel, appalling, odious, gross and repulsive which causes terror and sensation in the society. The case in hand is the one in which the entire family has been killed while asleep, for no apparent cause but to avenge the refusal of marriage and grapple the property. And in my candid view, the instant case falls within the above category, therefore, the leave for the compromise is refused and the application is hereby dismissed. "
10. Criminal Miscellaneous No,1221-M/2017 is disallowed. Office is directed to post the main case as per court roster wherein notice shall issue to the appellant as to why his sentence of 25 years rigorous imprisonment, for his conviction under Section 376 of the Pakistan Penal Code, 1860, may not be enhanced to death. Needless to mention that observations recorded hereinabove are issue specific bearing no impact on the adjudication of appeal on its own merits.