HIKMATULLAH and 2 others Criminal Appeal No,8(S) of 2001 Petition No,11(5) of 2001 SHAHID JABBAR vs THE STATE

' SARDAR MUHAMMAD RAZA KHAN (MEMBER).---Involving common question of law, the two cases in hand are proposed to be taken up together. Criminal Appeal No,8(S) of 2001 is filed against the judgment dated 9-10-1998 of the learned Federal Shariat Court while Criminal Petition No,11(S) of 2001 is filed against the judgment dated 14-2-2001 of the said Court.

2. In Criminal Appeal No,8(S) of 2001, Hikmatullah, Abdul Rehman and Nazar Muhammad, for the present, stand convicted and sentenced to death under sections 302(b)/34, P.P.C. For causing the murder of Jalal Khan. They also stand convicted under sections 392/34, P.P.C. And sentenced to imprisonment for 10 years each along with a fine of Rs,50,000. Initially, they were charged for the offence of Haraba under section 17(4) of Ordinance VI of 1979 but as the required ingredients of the offence of Haraba were not available, they, in the light of section 20 of the Ordinance were convicted and sentenced under sections 392/34, P.P.C.

3. In Criminal Petition No,11(S) of 2001, Shahid Jabbar, petitioner stands convicted under section 302(b), P.P.C. And sentenced to death for committing the murder of Haji Muhammad Rahim during robbery. As certain injuries were caused during robbery, he stood also convicted under section 394, P.P.C. And sentenced to imprisonment for 10 years along with a fine of Rs,10,000.

4. In view of the latest development having taken place during the pendency of instant cases, we need not to dilate upon the detailed facts and merits of the cases because, in both the cases, the appellants/ petitioner have entered into compromise with the legal heirs of the deceased.

Statement of the legal representatives as well as the elders of the localities have duly been recorded which tell of the genuineness of the compromise. In the given circumstances, the learned counsel for both the appellants/petitioner do not press on merits against their convictions under section 392, P.P.C. And section 394, P.P.C., respectively. Acquittal of all the appellants/petitioner is sought under section 302(b), P.P.C. On the basis of compromise. The short point involved is as to whether, in the circumstances of the case, when the offences involved are of dacoity and robbery, the appellants /petitioner could have entered into compromise and the said compromise could be given effect to with reference to section 302(b), P.P.C.

5. It is but sufficiently known that an offence under section 302, P.P.C. Is compoundable in Islam and so has it been made in the prevailing law of the land. The murder can be compromised with reference to sections 309/310/338-E, P.P.C. Read with section 345, A Cr.P.C. So far as the offences under sections 392, P.P.C. (robbery) and 394, P.P.C. (robbery with causing hurt) are concerned, those are certainly not compoundable. But, the learned counsel for the appellants/petitioner do not press against the conviction and sentence under sections 392 and 394 of the P.P.C. The convictions under both these sections against the appellants/petitioner concerned are hereby maintained.

6. Coming to compromise in cases of murders during robbery, we have been referred to our judgment in Ghulam Farid's case PLD 2006 SC 53, where the Court had declined to accept compromise but in that case the offences involved and the one under which accused in that case was charged, had fallen under section 396, P.P.C. It was a dacoity with murder defined as a single offence not compoundable in law. The position in the instant case does not seem to be identical to the case aforesaid. In the instant cases, the murder is independently punished under section 302(b), P.P.C., which stands compounded. We find no reason in law to disallow the compromise when the legal heirs have already pardoned the appellants/petitioner.

7. Anyhow, keeping in view the circumstances of the case, the nature of the offence committed and the number of persons killed, we cannot be oblivious of the fact that it seriously attracts the principle of Fasad-fil-Arz and the offenders are most likely to be a potential danger to the community. We are, therefore, constrained to observe that the present two cases are fit cases where this Court should pass an order under section 311, P. P. C .

8. In Criminal Appeal No,8(S) of 2001, the conviction of Hikmatullah, Abdul Rehman and Nazar Muhammad, under sections 392/34, P.P.C. Each is maintained. However, on acceptance of the compromise their sentence of death under section 302(b), P.P.C. Is set aside but, within the contemplation of section 311, P.P.C., they are sentenced each to imprisonment for life along with fine already imposed.

9. In Criminal Petition No,11(S) of 2001, the conviction and sentence of Shahid Jabbar under section 394, P.P.C. Is maintained. However, on acceptance of the compromise under section 302(b), P.P.C., the conviction and sentence of death thereunder is set aside but within the contemplation of section 311, P.P.C., Shahid Jabbar is hereby sentenced to imprisonment for life along with fine already imposed. Petition is also converted into appeal