' JAVED IQBAL, J.--This is an appeal preferred against the order of conviction passed by learned Sessions Judge, Kalat at Mastung in Session Case No,74 of 1991, whereby convicts/appellants have been convicted to undergo imprisonment for 10 years' and 5 years' R.I. Respectively with benefit of section 382-B, Cr.P.C. With prayer to set aside the impugned judgment and acquit the convict/appellants.
2. Briefly stated the facts of the case in brief are that accused Muhammad Akbar and Gul Muhammad were challaned under section 302, P.P.C. In the Court of Sessions Judge, Kalat to face murder trial as a report was got lodged on 3-9-1992 by Mst. Raheema at 5-30 p.m. To Naib- Tehsildar Khan Koocha alleging therein that convict/appellants took her alongwith her daughter namely Mst. Hajira to Khadkoocha towards eastern mountain Sulemani for decision of some dispute but committed murder of her daughter. After usual investigation the accused were sent up for trial and when the trial was in progress, a compromise was executed in between the parties and the same was filed by the legal heirs of Mst. Raheema and Abdul Raheem, stating therein that the matter was compromised and accused were forgiven, and affidavits to that effect were also filed.
The learned Sessions Judge, Kalat at Mastung accepted the compromise, filed by the legal heirs, however, convicted accused/appellants Muhammad Akbar to undergo 10 years' R.I. While Muhammad Haleem was convicted to undergo 5 years' R.I. With benefit of section 382-B, Cr.P.C.
Hence this appeal.
3. It is mainly contended by Mr. K.N. Kohli, Advocate, on behalf of convict/appellants that the impugned judgment being contrary to fact and law, be set aside as the learned Sessions Judge has not considered the provisions as contained in section 302, P.P.C. Read with section 311, P.P.C.
And section 345, Cr.P.C. And awarded conviction by way of Ta'zir in pursuance of section 311, P.P.C.
While he was not legally empowered to do so after waiver of Qisas and execution of compromise whereby the case as a whole was compounded, as such no conviction could have been awarded.
4. Mr. Salahuddin Mengal, Assistant Advocate-General appeared for State I and strenuously controverted the position as mentioned above, with the submissions that learned Sessions Judge, Kalat, was fully competent under section 311, P.P.C. To award conviction by way of Ta'zir and discretion so vested has been exercised properly and the impugned judgment being free from any legal infirmity does not call for any interference.
5. We have carefully examined the only contention raised by Mr. K.N. Kohli, Advocate that when an offence is compromised as a whole, the question of conviction by way of Ta'zir does not arise and the learned Sessions Judge therefore, cannot exercise powers as conferred upon him under section 31 P.P.C. And it was obligatory for him to accept the compromise and acquit the accused persons. We have not been able to persuade ourselves to agree with the said contention being devoid of merits for the reasons as discussed hereinbelow. The provisions as contained in section 311, P.P.C. Are reproduced hereunder at the cost of repetition and for ready reference:-- "311. Ta' zir after waiver or compounding of right of Oisas in Oatl-i-Amd--Notwithstanding anything contained in section 309 or section 310 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 which may extend to ten years as Ta'zir: ' Provided that the Court may punish an offender who is previous convict, habitual or professional criminal, with imprisonment of either description for a term which may extend to fourteen years as Ta'zir."
6. A bare perusal would make it clear that an unfettered discretion has been given to the Sessions Judge for awarding punishment to an offender against whom a right of Qisas has been waived or compounded meaning thereby that in case of waiver of Qisas and even after execution of a compromise conviction can be awarded. The only embargo which has been imposed is that imprisonment cannot be extended beyond a period of 10 years except in the cases of previous convicts, habitual and professional criminals, where fourteen years' imprisonment can be awarded.
The only prerequisite which is quite apparent is that the discretion so vested should be exercised keeping in view the facts and circumstances of the case. It is not the case of convict/appellants that discretion was either exercised arbitrarily or whimsically but the contention is that it was never so conferred. We have, minutely perused the language which is quite plain and free from any ambiguity. It hardly needs any explanation that when a special procedure has been laid down in any enactment carrying jurisdiction then it cannot be taken away on the basis of an interpretation which is not in consonance with reasons. On the basis of language as contemplated in section 311, P.P.C. It can be inferred safely, that the punishment can be awarded by way of Ta'zir, which is an acknowledged mode of punishment under Islamic Laws. The word'Ta'zir' means any punishment other than Hadd which is not fixed by law-giver, but is left to the discretion of Qazi and is based on the principle laid down by the Holy Qur'an and Sunnah PLD 1983 FSC 255. We. 4 make it clear that references do not lack in the Holy Qur'an where no punishment has been fixed and it has been left to the discretion of Qazi to assess what sort of punishment he proposes keeping in view the facts and circumstances of the case. Verse 4:16 reads "If two men among you are guilty of lewdness, punish the both" again Verse 4:34 goes on to say "As to those women on whose part you fear disloyalty and ill-conduct admonish them "first", (next) refuse to share their beds and (last) beat them (lightly)" as is clear from this Verse, the husband being head of the family is given authority to give punishment in order to safeguard his home life. On analogical deduction the Ruler can be given discretion to deal with the case not falling within the ambit of fixed punishment to safeguard the interest of society and the public at large. (See Enforcement of Hudood Practice and Procedure by M. Mahmood). Charles Hamilton in "Hedaya" defines Ta'zir as under:--- "Ta'zir, in its privitive sense, means prohibition, and also instruction in law it signifies an infliction undetermined in its degree by the law, on account of the right either of God, or of the individual; and the occasion of it is any offence for which Hadd (or stated punishment) has not been appointed; whether that offence consist in word or deed."
7. The abovementioned Qura'nic Verse and the definition of Ta'zir, make it abundant clear that Ta'zir is a kind of punishment, which falls within the discretionary ambit of head of a State, but this discretion cannot be exercised in those cases, which are covered by Hadd. However, it would not be permissible for a Head of State to simultaneously award the punishment of Hadd with ID additional punishment by way of Ta'zir PLD 1981 FSC 145.
8. We have also focused our attention to the Islamic concept of compromise. The offences under the Islamic Law, from the point of view of their proof, and punishment can be divided into 'Hudood' and 'Ta'zir'. The offence of Ta'zir can further be categorized as ' in violation of Huqooq Ullah' or ' in violation of Huqooq-ul-Ibad'. It is settled that compromise, forgiveness or pardon, in respect of 'Hudood' offences cannot be allowed by the Wali or the victim unless it has been done before the matter is reported to the Court. This is based on the conception that as punishment for Hudood is fixed by Qur'an no one in authority is entitled to intervene unless authorised by Qur'an or Sunnah itself. However, if the matter is not reported to the Court, the Wali or the victim may grant pardon or forgive. It has been related on the authority of Abdullah Bin Umar that Holy Prophet said: (Forgive Hudood among yourselves but when a matter of Hadd comes before me, it becomes compulsory) Abu. Caud, Volume IB, page 362, Undu translation).
However, forgiveness is effective in Ta'zir, both by the Wali as well as victim, if the matter concerns 'Huqooq-ul-Ibad'. In this connection the Jurists are of the view that the forgiveness to the accused by the victim is effective only to the limit to which his personal loss or grievance is concerned; for example if it be beating, abusing, etc. But his forgiveness will not be effective in a 'Ta'zir' matter if it relates to the rights of Public or 'Huqooq Ullah'. In this connection Abdul Qadir Auda writes: (The victim has the right to forgive Ta'zir crimes but only to the limit to which his personal grievance is concerned like beating, abusing etc. But this forgiveness will not be effective in the matters of the public rights specially, the reforming of the accused. When a victim forgave any accused, it will only be effective to the extent of his personal rights). (Al-Tashri-ul-Janaiul Islami, Vol. I, page 777).
(See also AIAhkamus Sultaniyya by Mawardi, page 207). See also Enforcement of Hudood by M.
Mehmood.
9. The above reproduced version would make it abundant clear that when public right or Society as a whole is involved, the punishment by way of Ta'zir can be inflicted. There is no doubt that contrary to the offences of Hudood which in their entirety deal with violation of right of God (Huqooq Allah), the offence of murder and offences of injuries to the bodies generally violate the right of man, it is for this reason that in 17:33 the power over a killer is given to the heir of the slain, no doubt subject to an admonition that he should not commit excess in wreaking retaliation. Verse 5:33 provides the following for sentences waging war against Allah and raising corruption or mischief in the land: "The only reward of those who make war upon Allah and his messenger and strive after corruption in the land will be that they will be killed or crucified, or have their Hadd and feet on alternate sides cut off, or will be expelled out of the land. Such will be their degradation in the world, and in the hereafter theirs will be an awful doom". Sura 5:33. The sentence are:--(1) death, (2) crucifixion, (3) cutting of hands and feet from the opposite side, and (4) expulsion cut of the hand which has been interpreted by some as imprisonment. The documentators have confined the applicability of this verse to sedition, decoity or highway robbery. But there is no justification for thus limiting its scope and extent. The words of the verse are applicable inter alia to situation where the actions of individual or a group amount to creating corruption in the land {{URDU TEXT}}In fact according to one sense spreading corruption in the land itself amounts to waging war against Allah who had ordained the retention of a balanced society full of virtues and free of vices. It is for this reason that Allama Shabir Ahmad Usmani is of the view (see his Commentary on 5:33) that there is no justification for curtailing the generality of the words used, this verse to specified offences of sedition, robbery or dacoity. The language of the verse should be considered in its wider sense. To be at war with Allah and His Prophet (peace be upon him) or to create corruption or disorder in the land would cover all such matters as, (1) offensive by the non-Muslims, (2) the, mischief of apostasy, (3) highway robbery, (4) dacoity, (5) unjustified murder, (6) plunder, looting or pillaza, (7) criminal conspiracy and (8) seditious propaganda. Each of these offences of such for which an offender would be liable to at least one of the sentences referred to therein. The reference to Qatl- e-Nahaq {{URDU TEXT}} or unjustified murder clarifies the opinion of the worthy commentator. In fact creation of disorder in society which one wishes to be an ordered society would itself amount to creating corruption or mischief {{URDU TEXT}}. Thus, a person who is a goonda (arch criminal) takes pride in his being called a goonda. It is hobby as well as policy to create terror in the minds of members of his locality who would like to put an end to his criminal activities. He earns his living by sale of liquor and other intoxicants, prostitution, gambling, blackmail and making people pay protection money. He masterminds the criminal activities of others and thus assembles round him other criminal hardened cold-blooded as well as potential and in the advancement of any or all of these activities commits or abets' murder. Is he not one who creates corruption {{URDU TEXT}} in the land PLD 1980 FSC 1. See Law and Practice of Q & D by Zafar).
' The mission of the prophets, according to the Qur'an is the establishment of virtue and justice in accordance with the revealed guidance:-- "We verily sent Our messengers with clear proofs, and revealed with them the scripture and the balance (i,e, the authority to establish justice) that mankind may observe the right measure, and he revealed iron (i,e, coercive power) wherein is mighty power and (many) uses for making and that Allah may know who helpeth Him and His messengers, though unseen. (Al-Qur'an LVII:25).
10. It hardly needs any further elaboration that murder directly involves and affects the society and in case of unjustified murder by a person who on account of his immorality or to satisfy his brutal instinct takes the law in his own hands is responsible for creating sensation and panic in society and the offence so committed is also related to the rights of God (Haqooq Allah). In such a situation the State would be fully competent to award punishment as may be deemed fit and proper and notwithstanding pardon by the legal heirs of the deceased.
11. The provisions as contained in section 311, P.P.C. Are embodied for the protection of society as a whole from destruction. We may point out here that Shariah extends to all the branches of law which had been evolved by the ingenuity and need of the human mind so far. This is a standing testimony to the independence of the Islamic law and its inherent potentialities. Anybody who takes the trouble of making a detailed study of the subject will be able to distinguish between that part of the Shariah which has a permanent and unalterable character, and is, as such extremely beneficial for mankind, and that part which is flexible and has thus the potentialities of meeting the ever-increasing requirements of every time and age. The punishment by way of Ta'zir was introduced to meet certain eventualities and as such kept discretionary and flexible to meet the ends of justice.
12. The upshot of the abovementioned discussion would be that the provisions as contained in section 311, P.P.C. Are enacted to safeguard the interest of all and betterment of the society as a whole.
13. It seems pertinent to mention here that compounding waiver of Qisas and compounding of offence are not identical and interchangeable for the reason that the authority to waive or compound the Qisas exclusively rests with the individual concern but compounding of offence cannot be done without having the consent of the Court. The provisions as contained in section 311, P.P.C. Cannot be read in isolation but are to be considered in the light of section 345(2) and (7) of Cr.P.C. Which runs as under:-- "345 (2). The offences punishable under the section of the Pakistan Penal Code specified in the first two columns of the table next following may, with the permission of the Court before which any prosecution for such offence is pending be compounded by the persons mentioned in the third column of that table..
345(7). No offence shall be compounded except as provided by this section."
' The above reproduced sections 345(2) and 345(7), Cr.P.C. Would make it clear that permission of the Court for compounding of the offence is mandatory and no offence "shall" be compounded except as provided by section 345, Cr.P.C. Meaning thereby that permission of the Court is a mandatory pre-requisite before any offence is allowed to be compunded. The Court of competent jurisdiction may refuse to grant such permission and in such an eventuality section 311, P.P.C.
Comes into picture whereby discretion has been conferred to award conviction if circumstances of the case so justify and punish an offender against whom the "right of Qisas was waived or compounded. In absence of section 311, P.P.C. The provisions as contained in section 345(2) and (7) of Cr.P.C. Would become redundant and it could never be the intention of law giver as sections 311, P.P.C. And 345, Cr.P.C. Are interdependent, and therefore, cannot be read separately. The upshot of the above discussion would be that a Court may exercise its discretion and award punishment by way of Ta'zir under section 311, P.P.C.
14. We have respectfully gone through the authority as relied upon by Mr. K.M. Kohli, Advocate in order to substantiate his version as mentioned above. We have perused with utmost respect the case titled Sarwar Khan v. The State 1994 SCM R 1262 which is not applicable, wherein a compromise appears to have been filed before Hon'ble Supreme Court for the first time which was accepted and moreso, conviction was awarded under section 311, P.P.C. By the trial Court, as such the verdict given in the said case cannot be made applicable to this case. We have also perused the case titled Muhammad Mazhar v. The State 1992 PCr.LJ 443 which has no relevancy in this case, because punishment under section 311, P.P.C. Was not awarded by the trial Court and a compromise filed by the legal heirs was accepted by virtue of the provisions as contained in section 345, Cr.P.C. No verdict has been given regarding the exercise of powers as conferred upon the trial Court under section 311, P.P.C. We have also examined carefully the dictum as laid down in case titled Usman v. The State 1992 PCr.LJ 1960 but we cannot agree with it for the reasons as mentioned above.
15. In view of what has been stated above, the impugned judgment whereby conviction was awarded in exercise of powers conferred upon the learned trial Court under section 311, P.P.C. Does not call for any interference. The murder was committed in a brutal and merciless manner and as such the convict/appellants do not deserve any leniency, consequently the appeal is dismissed.