IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Jail Appeals No. S-48 of 2021
Appellant: Salman @ Abdul Ghafoor Jatoi, son of Abdul Kareem @ BhaoJatoi, through M/s Ashfaq Hussain Abro and Amanullah Luhur, advocates.
Respondent: The State, through Mr. Ali Anwar Kandhro, Additional Prosecutor General.
Date of Hearing: 13.08.2024.
Date of Judgment: 10.9.2024
J U D G M E N T
Khadim Hussain Soomro, J- Through instant Criminal Jail Appeal, appellant Salman @ Abdul Ghafoor, son of Abdul Kareem @ BhaoJatoi, has assailed Judgment dated 27.08.2021 passed by learned III-Additional Sessions Judge (MCTC), Larkana in Sessions Case No.667 of 2017 (Re-The State v. Salman @ Abdul Ghafoor), being outcome of F.I.R. No.34/2017 registered at Police Station Aaqil under sections 396, 302, 337-H(2), 149, P.P.C., whereby he convicted the accused/appellant for an offence punishable under section 396, P.P.C and sentenced him to suffer imprisonment for life and to pay fine of Rs.50,000/ and in case of default of payment of fine he shall suffer S.I for two months more. The appellant/accused was further sentenced and convicted for an offence punishable under section 337-H(2), P.P.C., to suffer R.I. for three months. Both the sentences were ordered to run concurrently. However, the appellant was extended the benefit of section 382-B, Cr.P.C.
2. On 08.04.2024, joint applications being Cr. Misc. Applications Nos.1452 of 2024, 1453 of 2024 and 1454 of 2024under sections 345(2), Cr.P.C., 345(4), Cr.P.C and 345(6), Cr.P.C, respectively, were filed for compromise between the appellant and complainant and legal heirs of deceased Sajid Ali. The said applications were duly signed by appellant Salman @ Abdul Ghafoor, complainant Mazhar Ali, and the legal heirs of the deceased and their respective advocates. The said applications were duly supported by the affidavits. In the affidavits, the complainant stated that he had compromised the matter with the appellant/accused and had amicably resolved the controversy due to a 'Nekmards' intervention to burry up the dispute and make the locality peaceful. He further stated that he has forgiven the accused/appellant in the name of Almighty Allah, and he has no objection if the compromise application is allowed. The complainant was also present in Court on 05.08.2024 and affirmed the contents of the said affidavits and does not claim any compensation in terms of Qisas and Diyat. He raised no objection if the appellant is also acquitted from the charges of aforesaid sections.
3. I have heard learned counsel for parties and have reviewed the material on the record.
4. Perusal of the Judgment passed by the learned trial Court reveals that the appellant was convicted for an offence punishable under section 396, P.P.C. and sentenced to suffer imprisonment for life and to pay a fine of Rs.50,000/- and in case of default of payment of fine he shall suffer S.I. for two months more. The appellant/accused was further sentenced and convicted for an offence punishable under section 337-H(2), P.P.C., to suffer R.I. for three months. It is surprising to note here that the learned trial Court has not written a single word on Section 302, P.P.C. while passing the Judgment, which is the main Section in the charge, though the
The appellant has moved the application for entering into a compromise with the complainant and legal heirs of the deceased in the aforesaid Section viz 302 and 396, P.P.C., in which the learned trial Court has convicted the appellant, and the appellant has moved an application before this Court for compromising the offence.
5. The perusal of section 302, P.P.C. provides three punishments, i.e. a) death, b) death or imprisonment for life as ta'zir, and c) imprisonment of either description for a term which may extend to twenty-five years, whereas Section 396, P.P.C. carries a punishment of death, imprisonment for life, or rigorous imprisonment for a term which shall not be less than four years nor more than 10 years and is liable to fine. These offences are altogether different and cannot be read in conjunction with each other. The study of Section 302 reveals intentional murder with various punishments depending on the application of qisas and ta'zir, including considerations for honour crimes. In contrast, Section 396 addresses the scenario where murder is committed during dacoity, with specific punishments and additional fines, highlighting the collective liability of the offenders. Section 302 addresses intentional murder specifically, focusing on the nature of the crime as premeditated killing, and the offence offers multiple avenues of punishment depending on the application of qisas or ta'zir. It includes death, life imprisonment, or imprisonment up to 25 years, with specific provisions for honour-based crimes. Section 396 deals with murder occurring in the context of dacoity, which involves multiple perpetrators and is often associated with robbery. It provides punishment of death or life imprisonment but provides an alternative of rigorous imprisonment for a specified term that shall not be less than four years or more than 10 years and is liable to a fine. For convenience's sake, both sections of the law are reproduced hereunder:-
"302. Punishment of qatl-i-amd. Whoever commits qatl-i-amd shall, subject to the provisions of this Cahpter be;
(a) punished with death as qisas;
(b) punished with death or imprisonment for life as ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or
(c) punished with imprisonment of either description for a term which may extend to twenty-five years; where according to the injunctions of Islam the punishment of qisas is not applicable;
Provided that nothing in this clause shall apply to offence to qatl-i-amd if committed in the name of or on the pretext of honour and and the same shall fall within the ambit of clause (a) or clause (b), as the case may be.
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396. Dacoity with murder. If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which shall not be less than four years nor more than ten years, and shall also be liable to fine."
6. The conviction awarded by the learned trial Court only for offence u/s 396, P.P.C. cannot be termed to be a conviction for the offence 302, for the simple reason that section 396, P.P.C., besides providing sentences of death and imprisonment for life, also prescribes punishment for not less than four years and more than ten years, which cannot be substitute for the punishment u/s 302, P.P.C. for this capital, punishment prescribed under the law is death and other penalties as mentioned above.
7. Now reverting to the question of compromise, under the law, the offence under section 302, P.P.C. is compoundable, whereas 396, P.P.C. is non-compoundable, and the learned trial Court has only convicted the appellant in Section 396, P.P.C., whereas, the entire Judgment in respect of offence u/s 302, P.P.C. is silent whether the appellant was acquitted or convicted. It appears that the learned trial Court has misconstrued both sections, i.e. 302 & 396, P.P.C.
8. In the circumstances, compromise applications filed by the parties are dismissed, and the trial Court is directed to rewrite the Judgment keeping in view the observations recorded hereinabove, particularly considering whether the appellant is liable to be convicted and/or acquitted under Section 302, P.P.C. This exercise shall be completed by the trial Court as soon as possible, preferably within a period of one month.
9. Instant jail appeal stands disposed of in the above terms.
Judge
M.Yousuf P/**