MUHAMMAD AMJAD RAFIQ, J. The accused/appellant faced trial before learned Additional Sessions Judge, Taunsa Sharif, in case FIR No.1 dated 11.01.2015 under sections 302/396/397/114/34, P.P.C. registered at police station BMP Barthi Tribal Area, Taunsa Sharif, District D.G. Khan and vide judgment dated 15.12.2018 he was convicted under section 302(b), P.P.C. and sentenced to death and also to pay Rs.500,000/- to the legal heirs of deceased as compensation under section 544-A, Cr.P.C., in case of non-payment thereof to undergo six months simple imprisonment; the said conviction and sentence has been assailed by the convict/appellant through Criminal Appeal No.1164 of 2018, whereas, Murder Reference No.06/2019 has been, sent by the learned trial court as required by section 374, Cr.P.C. Both the matters are being decided through this single judgment.
It has been noticed by us that report from Superintendent, Central Jail, Dera Ghazi Khan has been placed on the file, according to which appellant Khuda Bakhsh son of Rahim Khan has died on the night between 4/5.11.2022 in DHQ/Teaching Hospital, Dera Ghazi Khan as unconfirmed condemned prisoner by the Will of Allah Almighty. The situation commands that this appeal cannot proceed further due to death of appellant and it would stand abated as per section 431 of Cr.P.C.
2. Learned counsel for the appellant stressed hard that appeal shall not abate on the death of accused if the legal heir wants its continuation and states that if no law is available in this respect, then contemporary provisions in law of other country can be pressed into service. He referred section 394 of Indian Code of Criminal Procedure, 1973, which is reproduced below:- Section 394---Abatement of appeals.
(1) Every appeal under section 377 or section 378 shall finally abate on the death of the accused.
(2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant: Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate.
Explanation: - In this section," near relative" means a parent, spouse, lineal descendant, brother or sister.
We are least impressed on the arguments of learned counsel due to a valid reason that jurisdiction on the court always vests through law of a country and this principle is based on legal maxim "lex fori" which means that law of the forum or the law of the jurisdiction where the case is pending. This principle has also its roots in our system as per Article 175(2) of the Constitution of Islamic Republic of Pakistan, 1973; which says that "no court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law".
3. In our criminal procedure code, appeal against sentence of death or imprisonment is abated on the death of accused, however, it stays and is decided on merit to the extent of sentence of fine. For reference relevant section of Code of Criminal Procedure, 1898 is reproduced as under:- Section-431. Abatement of appeals: Every appeal under section 411-A, subsection (2), or section 417 shall finally abate on-the death of the accused, and every other appeal under this Chapter except an appeal from a sentence of fine shall finally abate on the death of the appellant.
This principle has been defined in plethora of judgments, some of which are cited below:- "Sheikh Iqbal Azam Farooqui through Legal Heirs v. The State through Chairman NAB (2020 SCMR 359)"
"Dr. Ghulam Hussain (Represented By 8 Heirs) v. State (1971 SCMR 35)"
"Muhammad Arshad v. The State and another (2018 PCr.LJ 1513)"
"Anwar Hossain Khan v. The State (1970 PCr.LJ 279)"
"Muhammad Arshad v. The State and another" (2018 PCr.LJ 1513)"
"(1) Syed Ahmad Shah and (2) Fereoze Din v. (1) The State and (2) Malik Abdul Aziz (PLD 1967 Supreme Court 42)"
"Dhaular Sher and others v. The State (NLR 1998 Criminal 112)"
"Muhammad Ishaq v. The State (1992 PCr.LJ 1273)"
"Mukhtar Ahmad and others v. The State (1989 MLD 3730)"
"Manzoor and others v. The State (PLD 1987 Lahore 401)"
"Ahmad Ali v. The State (1985 PCr.LJ 1111)"
"Syed Muhammad Sibtain Ali Rizvi v. The State (1984 PCr.LJ 1749)"
Even in the case reported as "Muhammad Shamoon (deceased) through Legal Representative v.
The State and another" (2019 SCMR 1144), Hon'ble Supreme Court has held that appeal against sentence of diyat shall also not abate on the death of accused.
4. In this case appellant has been sentenced to death with compensation of Rs.500,000/- under section 544-A, Cr.P.C which in no case can be considered as fine as has been held in following cases reported as; Ghulam Muhammad alias Gamoon v. The State and another; Criminal Appeal No. 716 of 2018 (2021 LHC 6320 DB. Bahawalpur Bench) and "Mukaram Khan v. The State and another" (2021 MLD 176) (Peshawar). Therefore, present appeal shall stand abated while relying on above principle.
5. The main thrust of learned counsel for the appellant was that accused/appellant now deceased had served the government as civil servant and he would lose his service benefits if his conviction stays because abatement does not exonerate him from the charge on merit. We have attended his contention and feel it appropriate to respond the contention while explaining the legal consequence of an abatement process. In Black's Law Dictionary (Tenth Edition By Bryan A. Garner, Editor In Chief, the abetment has been defined as under: -
1. The act of eliminating or nullifying.
2. The suspension or defeat of a pending action for a reason unrelated to the merits of the claim.
3. The discontinuation of criminal proceedings before they are concluded in the normal course of litigation, as when the defendant dies.
This expression has also been explained with respect to abatement in the same Dictionary as under:- Although the term 'abatement' is sometimes used loosely as a substitute for 'stay of proceedings,' the two may be distinguished on several grounds. For example, when grounds for abatement of an action exist, the abatement of the action is a matter of right, but stay is granted in the court's discretion. And in proper circumstances a court may stay a proceeding pending the outcome of another proceeding although a strict plea in abatement could not be sustained."
6. Timothy A. Razel, J.D. Candidate, Fordham University School of Law, 2008 in his article "DYING TO GET AWAY WITH IT: HOW THE ABATEMENT DOCTRINE THWARTS JUSTICE AND WHAT SHOULD BE DONE INSTEAD" has defined abatement while referring Black's Law Dictionary 1 (2d Pocket ed. 2001) as under: - "Abatement is the dismissal or discontinuance of a legal proceeding for a reason unrelated to the merits of the claim."
The literature, in that article, on the concept of abatement throws light that the effect of abatement is to throw down, to beat down, destroy, quash, to discontinue all proceedings ab initio, dismiss the appeal as moot, overturn the conviction, and dismiss the indictment. Essentially, the defendant is left as if he or she had never been charged.
Abatement was seen as a way to recognize that the courts penal role ended with death, rather than as a measure to protect the defendant's rights. The transformation of abatement into a rights-protective measure has generated the features that today make the doctrine unique, such as its ability to exonerate the defendant, and to block quasi-civil remedies such as restitution.
7. In the above article of Timothy A. Razel, it is mentioned that the justification for using the abatement doctrine, or for not using it, was tied with the goals of criminal law that prevailed. Before the late twentieth century, the major rationale for criminal law was to punish the defendant. The interests of victims were marginalized; combine that with the high importance put on due process and the increased use of the appeals process to safeguard those rights, and the abatement doctrine, as formed, seems very logical. If the defendant is not alive to be punished, and his or her conviction has not been deemed final through review, there is no point to retaining the conviction.
The above principle, he referred, is based on following judgment and literature.
State v. Korsen, III P.3d 130, 134 (Idaho 2005); if William F. McDonald, The Role of the Victim in America, in Assessing the Criminal: Restitution, Retribution and the Legal Process 295, 295-97 (Randy E. Barnett and John Hagel III eds., 1977) (describing the defendant-centric view of criminal law that prevailed before the victims rights movement).
8. ALEXANDER F. MINDLIN, J.D., New York University School of Law, 2011 in his article "ABATEMENT MEANS WHAT IT SAYS": THE QUIET RECASTING OF ABATEMENT has expressed his thoughts on abatement process. According to him, Modern-day abatement has defining characteristics, being products of the rights-protective appellate rationale. The characteristics is abatement's ability to elicit judicial proclamations of the defendant's legal innocence. In other words, modern-day abatement does not merely reverse a conviction or suspend a judgment, but it is taken by courts as entitling a defendant to the statement that he is innocent in the eyes of the law. This property will be referred to below as the "exonerative" effect of abatement; In a classic exonerative opinion, United States v. Estate of Parsons, the Fifth Circuit, sitting en banc, abated the deceased defendant's convictions for arson, fraud, and money laundering, canceling a $75,000 fine and an order to pay about $1.3 million in restitution. Parsons death, the court said, meant that "in the eyes of the criminal court, the defendant is no longer a wrongdoer and has not de-frauded or damaged anyone."
"April 16, 2004" U.S. v. Estate of Parsons, 367 F.3d 409, (5th Cir.2004)
The court in Parsons, following Cavallaro, calls this the "finality rationale," since it turns on the non- finality of unreviewed convictions; what the Court commanded is explained below:- The court of appeals reasoning was firmly grounded in the appellate rationale. In an early portion of the opinion, the court contrasted that rationale, which it described as the principle that "the state should not label one as guilty until he has exhausted his opportunity to appeal," with the more prosaic rule (dubbed the "punishment principle") that a dead person simply should not be punished.
The government's argument that the victims should be made whole, the court said, [H]as little force if the concern is finality [of conviction] and the right of the defendant to contest his appeal at least once.
In the said judgment it was concluded that any references to the wrongful nature of the defendant and his actions are conditioned on an appellate court's upholding the conviction, assuming the defendant pursues an appeal. The defendant's death during the pendency of appeal pushes a court to nullify all prior proceedings. Despite what may have been proven at trial, the trial is deemed not to have taken place.
In a case reported as 456 F. Supp. 2d 869 (2006) "United States of America, v. Kenneth L. LAY," the Supreme Court of USA adopted the so-called "abatement rule," holding that -"death pending direct review of a criminal conviction abates not only the appeal but also, all proceedings had in the prosecution from its inception.
9. In the same article referred above, it has been explained that the restitution-blocking effect of modern-day abatement typically follows logically from its exonerative effect. If abatement leaves the defendant innocent, so the reasoning goes, then surely, he cannot be required to "compensate" his "victims." The argument that abatement restores innocence, and innocence forecloses compensatory judgments, has been a powerful one. Not only has it been used to cancel orders of restitution, but courts have also deployed it to nullify the issue-preclusive effect of criminal convictions in subsequent lawsuits by crime victims or the government. Such courts reasoning is typically the same as that of the court in Rich: the crime never happened in the eyes of the law, so it cannot form a basis for collateral estoppel. Reliance was on following dictums; See Pauline, 625 F.2d at 684 ("[T]he abated conviction cannot be used in any related civil litigation against the estate."); Schumann, 861 F.2d at 1237 (denying preclusive effect to conviction of deceased defendant in civil forfeiture suit because "[t]he defendant's death pending his appeal serves to abate the conviction ab initio as pointed out earlier. In essence, the defendant] stands as if he never had been indicted or convicted."); State Farm Fire & Cas. Co. v. Estate of Caton, 540 F.
Supp. 673, 683 (N.D. Ind. 1982) (denying issue-preclusive effect of abated conviction. in subsequent civil suit because "no underlying previous decision now exists on which to apply the Parklane criteria. Abatement ab initio in a criminal setting wipes the slate clean."), overruled on other grounds by Ashlan Oil, Inc. v. Arnett, 656 F. Supp. 950 (N.D. Ind. 1987).
10. Barring appeals from sentence of fine in our system, it is clear from above judicial pronouncements and literature that accused on his death is destigmatized from all charges in terms that as he has not committed any offence. At this juncture a thought needs clarification usually put forth that only that appeal shall not abate which is against the sentence of fine solely and when there was composite sentence of imprisonment as well as fine, the appeal has to abate both against the sentence of imprisonment as well as fine. This query has been met through case reported as Harnam Singh v. The State of Himachal Pradesh, (1975) 3 SCC 343. In paragraph 10, following was laid down:- "10. The narrow question which then requires to be considered is whether an appeal from a composite order of sentence combining the substantive imprisonment with fine is for the purposes of section 431 not an appeal from a sentence of fine. It is true that an appeal from a composite order of sentence is ordinarily directed against both the substantive imprisonment and the fine.
But, such an appeal does not for that reason cease to be an appeal from a sentence of fine. It is something more not less than an appeal from a sentence of fine only and it is significant that the parenthetical clause of section 431 does not contain the word "only". To limit the operation of the exception contained in that clause so as to take away from its purview appeals directed both against imprisonment and fine is to read into the clause the word "only" which is not there and which, by no technique of interpretation may be read there. The plain meaning of section 431 is that every criminal appeal abates on the death of the accused "except an appeal from a sentence of fine". The section for its application requires that the appeal must be directed to the sentence of fine and not that it must be directed to that sentence only. If by the judgment under appeal a sentence of fine is imposed either singularly or in conjunction with a sentence of imprisonment, the appeal against conviction would be an appeal from a sentence of fine within the meaning of section 431. All that is necessary is that a sentence of fine should have been imposed on the accused and the appeal filed by him should involve the consideration of the validity of that sentence."
11. It is now trite that when no conviction remains against the convicted accused, any benefit which otherwise is admissible under the law would be available to him even after his death. Interest of legal heir for service benefits is not a direct interest in the sense that it cannot arise out of the decision of this court even if it is in favour of the appellant. The only interest which the legal heirs have is a contingent one and is not one which could flow directly out of the ultimate decision of this case. Reliance is placed on case reported as "Bondada Gajapathy Rao v. State of Adhra Pradesh"
(1964 AIR 1645; 1964 SCR (7) 251). This principle seems more appropriate when no departmental proceedings are reported to be pending.
12. Learned counsel for the appellant has not pointed out that any departmental action has been taken against the appellant/deceased on the basis of his conviction in the case or any proceedings are pending in this respect. If no adverse final action at the departmental level has been taken so far against the appellant/deceased, abatement of criminal appeal cannot provide a ground to initiate it now because death even stops the pending department inquiry. It has been held by this court that any pending inquiry cannot be culminated into dismissal or removal of a civil servant after his death. The cases reported as "Regional Operation Chief, National Bank of Pakistan, Human Resource Department, Regional Office, Sargodha and others v. Mst. Nusrat Perveen and others" (2021 SCMR 702): "Mst. S. Yasmin v. Pakistan Railways through General Manager and others" (2017 PLC (C.S) 1): "Mst. Shahnaz Bano v. Chairman Wapda and 2 others"
(2017 PLC (C. S.) 643): "Parveen Javaid v. Chairman Wapda and 5 others" (2011 PLC (C.S.) 1527) are referred.
Though section 8 of PEEDA Act, 2006 authorizes imposition of penalty for different situations based on conviction of a civil servant in a criminal case, yet the penalty referred therein for initiation of proceedings requires notice and reply of accused; which situation cannot be met if the civil servant is dead; therefore, case reported in preceding paragraphs would be applicable in such situation too.
13. In the light of above discussion, the appeal in hand stands abated as per section 431 of Code of Criminal Procedure, 1898. Record of learned trial court be sent back and case property, if any, be disposed of in accordance with law.
As the appellant has died, therefore, Murder Reference is answered in negative and death sentence is not confirmed.