' Shafqat Ali and Muhammad Mushtaq were sent up to face trial in case F.I.R. No,620 of 1994, dated 18-12-1994 registered with Police Station Sargodha Road, District Faisalabad under sections 392, 460 and 302, P.P.C. In the Court of Ch. Muhammad Hussain Maiken, learned Additional Sessions Judge, Faisalabad. The learned trial Judge on conclusion of the trial vide his judgment, dated 14-11- 1995 held both the appellants guilty under section 302(b), P.P.C. And sentenced them to undergo imprisonment for life. They were also extended the benefit of section 382-B, Cr.P.C.
2. The prosecution case as stated in brief by Mehmood Ahmed P.W.10 complainant in his statement Exh.P.H. Is that his maternal-uncle Muhammad Sardar deceased was living in Street No,3 of Hajveri Town, Faisalabad. On the night of 17-11-1994 at about 11-30 p.m. The complainant along with Irshad Ali P.W. 12 and Shahzad Ali P. W.11 were passing in front of house of Muhammad Sardar. On hearing shrieks they saw that Muhammad Sardar had been fallen on the ground and Shafqat Ali appellant had caught hold of him. Mushtaq appellant was inflicting Sota blows on his person and was asking as to where he had concealed the remaining amount of money. The complainant raised alarm, on which the people from the neighboring houses were attracted and they overpowered Shafqat Ali and Muhammad Mushtaq. Both the accused persons had received some injuries on their persons during their apprehension. Muhammad Sardar whose hands and feet had been tied was released and cloth roped around his neck and also a piece of cloth inserted in his mouth was removed.
Muhammad Sardar succumbed to the injuries soon thereafter. The appellants disclosed that they had come to rob the deceased and snatched Rs,220.
3. In order to prove the case against the appellants the prosecution examined 13 witnesses in all.
Mahmood Ahmed complainant was examined as P.W.10 who supported the version given by him in the F.I.R. He also attested the recovery memo. Of Sota P.9. Shahzad Ali and Irshad Ali were examined as P.W.11 and P.W.12 respectively as other eye-witnesses but both of them did not support the prosecution case as such were declared hostile. They were cross-examined at length by the learned Prosecutor. They, however, admitted the time and place of occurrence, during their cross- examination. It was also admitted by Shahzad Ali that the dead body was identified by him.
4. Dr. Iqbal Hussain Shad, P.W.7 conducted the post-mortem examination of the deceased'and found eighteen injuries caused with blunt weapons on his person. The injuries were ante-mortem and all of them were sufficient to cause death in ordinary course of nature. Dr. Muhammad Hand Butt P.W.8 examined Shafqat Ali appellant and found five injuries on his person caused with blunt weapon. He also medically examined Muhammad Mushtaq appellant and noted three injuries on his person caused with blunt weapon.
5. The investigation was conducted by P.W.13 Haq Nawaz, S.-I. The learned trial Court relying upon the testimony of complainant Mahmood Ahmed P. W.10 supported by medical evidence coupled with the fact of recovery of Sota P.9 from the accused and also relying upon the circumstance that both the appellant were apprehended at the spot, held that the prosecution has successfully proved the guilt of the accused appellants beyond doubt. The fact that the appellants received injuries at the time of occurrence also lent support to the prosecution version that they were apprehended at the spot. The defence version that some unknown dacoits committed the robbery and thereafter, killed the deceased was not accepted, the same being totally unconvincing and highly improbable. The accused appellants were convicted and sentenced by the learned trial Judge as detailed above.
6. Muhammad Mushtaq moved Criminal Appeal No,843 of 1995 whereas Shafqat Ali preferred Criminal Appeal No,88-J of 1996 through Superintendent Jail. The complainant Mahmood Ahmed filed Criminal Revision No,50 of 1996 pray irfg for enhancement of the sentences awarded to two appellants.
7. During the pendency of the proceedings before this Court on 1-10-1997, the complainant withdrew his criminal revision to the extent of Muhammad Mushtaq appellant which was accordingly dismissed as withdrawn. However, criminal revision was kept pending to be heard alongwith the connected Criminal Appeal No,88-J of 1996 and Criminal Appeal No,843 of 1995. Vide order, dated 20-10-1997 and application under section 345, Cr.P.C. Was moved that a compromise has Peen effected in between Muhammad Mushtaq appellant and Wali Muhammad, Allah Rakha and Qari Muhammad Sadiq and legal heirs and Walis of Muhammad Sardar deceased. They also stated that they have received Rs,1,80,000 as Badl-e-Sulah. On a query it was revealed that the deceased was survived by aforesaid three brothers and one Mst. Sharifan Bibi the sister. No compromise was, submitted on her behalf. Mst. Sharifan Bibi was alive at the time of murder but expired subsequently, therefore, a question arose as to how the compromise could be given effect to as the heirs of Mst. Sharifan Bibi had not come forward to forgive the accused appellant Muhammad Mushtaq or had compounded the offence on receipt of Badl-e-Sulah. As regards Shafqat Ali neither the offence was compounded with him nor he was forgiven by any of the legal heirs of the deceased.
8. On 2-4-1998 the learned counsel for Muhammad Mushtaq appellant stated in Court that the legal heirs of Mst. Sharifan Mai sister of the deceased were not willing to enter into any compromise and were not prepared to compound the offence. He, therefore, prayed since the offence had been compounded by three out of four legal heirs of the deceased, the sentence can be imposed under section 311, P.P.C. In support of his contention he placed reliance on the case of Nisar Ahmed and 2 others v. The State 1994 PCr.LJ 1587, wherein, in a similar situation, the imprisonment for life was reduced to ten years' R.I. Notices were issued to the State in the present case to address arguments.
9.On 22-12-1998 Ch. Riasat Ali, Advocate appeared in Criminal Appeal No,843 of 1995 on behalf of Muhammad Mushtaq. Malik Rasheed, Advocate put up appearance as counsel for Shafqat Ali in Criminal Appeal No,88-J of 1996 and Mr. S.D. Qureshi, Advocate represented the State. In Criminal Revision No,50 of 1996 Malik Allah Yar, Advocate entered appearance on behalf of the complainant.
Since the compromise had been effected in between-Muhammad Mushtaq main accused and heirs of the deceased, therefore, the criminal revision was not pursued against Muhammad Mushtaq. It is also not pursued with any seriousness against Shafqat Ali as well.
10. As per order, dated 20-10-1997 an application under section 345, Cr.P.C. Was submitted (C.M.
No,2 of 1997) on behalf of Wali Muhammad, Allah Rakha and Qari Muhammad Sadiq brothers of the deceased being his legal heirs as the deceased was unmarried and was, thus, issueless. They also admitted of having received Rs,1,80,000 as Badl-e-Sulah. They affirmed the factum of compromise and having received Rs,1,80,000 as Badl-e-Sulah in Court. The compromise at by the parties appears to be genuine and voluntary. The A compounding of offence would ensure peace and harmony in between the parties, therefore, the compromise is accepted and hereby allowed in between the aforesaid heirs of Muhammad Sardar deceased and Muhammad Mushtaq appellant.
11. The question, however, remains to be determined as to what is the 0, effect of the offence when three out of four heirs of the deceased have compounded the offence. Section 311, P.P.C. Is an answer to the question which lays down that where all the Walis do not waive or compound the right of Qisas the Court may in its discretion having regard to the facts and circumstances of the cases, punish an offender with imprisonment which may extend to fourteen years as Ta'zir. It has further been elucidated in the case of Nisar Ahmed and 2 others v. The State reported in 1994 PCr.LJ 1587, as cited by the learned counsel. Under this section by keeping in view the facts and circumstances of the case the punishment prescribed is imprisonment for fourteen years.
Considering the fact that all the three brothers of the deceased have forgiven the accused appellant and in a similar situation sentence of ten years was awarded by the learned Division Bench of this Court, I, therefore, consider that ten years' R.I. To be imposed on Muhammad Mushtaq is just and appropriate His conviction, C therefore, is altered from sections 302(b), P.P.C. To 311, P.P.C.
And is sentenced to R.I. For ten years.
12. The second appellant Shafqat Ali who has also been convicted under section 302(h), P.P.C. And awarded imprisonment for life has not been forgiven by the legal heirs of the deceased. According to the prosecution Muhammad Sardar deceased was caught hold of Shafqat Ali and was done to death by Muhammad Mushtaq by inflicting eighteen injuries on his person. It appears to be rather strange that Shafqat Ali who is closely related to the complainant as son of his sister and also to the deceased being his maternal-grandson through relation has not been forgiven. He appears to be a destitute as he could not engage a counsel to file the appeal on his behalf and preferred appeal through Superintendent Jail. As observed above and also held by the learned trial Judge that the prosecution has successfully proved the guilt of the accused persons, therefore, Shafqat Ali along with his co-accused Muhammad Mushtaq was convicted under section 302(b), P.P.C. And awarded the imprisonment for life.
13. A paradoxical rather anomalous situation has arisen that the main accused has been sentenced to ten years' R.I., may be on account of compounding of offence qua him but the co- accused who assisted him in the commission of the offence should suffer imprisonment for life.
Every offence included in the Penal Code or may be some other statute or enactment containing penal provisions, is considered to be an offence against the society or in the present set up of our national State, against the State. Although various offences have been allowed to be compounded by the individuals who are directly concerned or hit by the offence yet the fact remains that an offence is offence against the State. It is for that reason that the prosecution is launched by the State and subsequently, persuaded by the State. An offender is punished so that State may provide an organized society to its citizens wherein peace and tranquility may prevail. To save the society from disorder and Anarchy and to enforce the rule of law it is imperative that the offenders should be punished for the various offences committed by them. As to what is the real object and purpose of imposing punishments, there are different theories in the field. Under deterrent theory an offender is punished so that necessary deterrence should be there against the intending offenders.
According to preventive theory an offender and criminal is detained and confined in jail so that he is prevented from committing further crime and his co-citizen are prevented from his criminal acts and accesses. Keeping in view the natural instinct of a human being to take avenge of a wrong done to him or to his near ones an offender is punished to satisfy the retributive anger of the victim or the aggrieved individual. All these theories contain good deal of truth and are based on reason and rationale. The imposing of adequate and. Proportionate punishment is, therefore, imperative and necessary. Therefore, a number of penal statutes have been framed and are enforced but at the same time we cannot remain oblivious to the fact that objective of lasting peace and justice cannot be achieved unless the punishment reformative as well. When a criminal is convicted and sentenced then it is normally expected that punishment should be of a nature which should have a reformative aspect as well. A criminal should be treated in such a manner that he should repent the commission of offence and his penitence should reform him as a better individual.
14. Keeping these theories in mind and also considering that law is meant to dispense justice, it should be implemented in a manner that should appear to be just and even handed. Applying these principles to the facts and circumstances of the instant case it would appear to be rather inappropriate and unjust that the main accused is sentenced to ten years' R.I. Whereas the co- accused, gravity of whose offence is far less is sentenced to imprisonment for life. The Legislature may be for this reason has categorized the sentenced to be awarded under section 302, P.P.C. Into three parts. Under subsection (a) only the sentence of death as Qisas has been laid down. Under subsection (b) the sentence of death or imprisonment for life has been prescribed. Under subsection (c) a discretion has been left to the Court to punish the offender of either description for a term which may extend to twenty-five years. Although the maximum sentence has been fixed yet no minimum sentence has been provided. This subsection has been inserted to cover all the possible eventualities when the facts and circumstances do not warrant the imposition of life imprisonment. Before the incorporation of Qisas and Diyat Ordinance and amendment of section 302, P.P.C. Various exceptions had been enumerated which ordinarily may motivate a person to commit the murder but under section 302(c), P.P.C. It has been left to the discretion of the Court to determine as to what punishment should be awarded or imposed by keeping the facts of the case and the ambient circumstances in mind. Of course the sentence should commensurate with the offence so that justice is done to all the concerned parties. Referring back to the facts of this case it would appear to be highly unjust and improper that Shafqat Ali co-accused be sentenced for imprisonment for life. In my humble estimation section 302(c), P.P.C. Can be pressed into service and sentence can be recorded accordingly. After taking stock of all the facts and circumstances of the case, I am of the view that imprisonment for ten years to Shafqat Ali as well would be just and appropriate. He is, therefore, convicted under section 302(c), P.P.C. And sentenced to undergo R.I.
For ten years.
15. As consequence of the above discussion, Muhammad Mushtaq appellant is convicted under section 311, P.P.C. And sentenced to ten years' R.I. Shafqat Ali appellant is convicted under section 302(c), P.P.C. And he too is sentenced to ten years' R.I. The benefit of section 382-B, Cr.P.C. Shall be extended to both of the appellants.
16. Both the Criminal Appeal No,843 of 1995 and Criminal Appeal No,88/J of 1996 stand disposed of in above terms.
17. For the reasons recorded hereinabove the Criminal Revision No,50 of 1996 is dismissed.