2014 P Cr. L J 178
[Balochistan]
Before Muhammad Hashim Khan Kakar, J
MUHAMMAD AYUB ---Applicant
Versus
The STATE---Respondent
Criminal Bail Application No.443 of 2013, decided on 20th September, 2013.
(a) Criminal Procedure Code (V of 1898) ---
----S. 497---Grant or refusal of bail ---Considerations ---Importance of individual's personal
liberty and the society's interest ---Society had a vital interest in grant or refusal of bail, because
every offence was the offence against the State---Ord er, granting or refusing bail, must reflect
perfect balance between the conflicting interests; viz, sanctity of individual's liberty and the
interest of the society ---While granting or refusing bail, two conflicting interests, namely the
requirement of shi elding the society from the hazards of those committing crimes and
potentiality of repeating the same crime while on bail; and the absolute adherence of
fundamental principle of criminal jurisprudence regarding presumption of innocence of an
accused until he was found guilty.
(b) Criminal Procedure Code (V of 1898) ---
----Ss. 345(7) & 497---Penal Code (XLV of 1860), Ss.302(c), 392 & 396--- Qatl-e-amd, robbery,
dacoity with murder ---Compromise effected between the parties ---Human life was the most
valuab le of all the things ---Islam as a religion of humanity attached utmost sanctity to human
life---Murder of a human being was the greatest sin after the sin of 'shirk' (Assigning partners
with Almighty Allah), and was unpardonable, particularly when committe d during the course of
dacoity in view of the bar under S.345(7), Cr.P.C. ---Islamic Sharia had divided the punishments
for crimes into three categories; Hudood; Qisas; and Ta'zir ---Said punishments, which had been
determined by the Holy Quran and the Sunna h for crimes, were called Hudood ---Punishments
for crime, involving the rights of individuals, were called as Qisas; and the punishments for
crimes, which had not been fixed by the Holy Quran or Sunnah, but had been left to discretion of
the rulers and the Judges, were called as Tazir ---Where compromise between the parties had
been reached in non- compoundable offences during pendency of the appeal, the courts had taken
the compromise as a ground for reduction in the quantum of sentence only, but in the matt ers of
bail, same could only be considered as one of the facts, alongside the facts and circumstances of
the case, for determining whether bail be granted or not ---Any person, who was an accused of a
non-compoundable offence, was not entitled to claim bail as a matter of right on the sole strength
of compromise ---Offence of murder, punishable with death under S.302(a), P.P.C., and under
S.302(b), P.P.C. as Tazir, though was compoundable under the law, but where murder had taken
place during the course of co mmitting a dacoity, punishable with death under S.396, P.P.C., or
an offence under S.392, P.P.C., was not compoundable.
Al-Qur'an; Muhammad Rawab v. The State 2004 SCMR 1170; Ghulam Farid alias Farida
v. The State PLD 2006 SC 53 and Jamshed alias Javed v. The State 2001 PCr.LJ 1493 ref.
Muhammad Rawab v. The State 2004 SCMR 1170 rel.
(c) Criminal Procedure Code (V of 1898) ---
----Ss. 497 & 345---Penal Code (XLV of 1860), Ss.302 & 392---Offences Against Property
(Enforcement of Hudood) Ordinance (VI of 1979), S.17(3) ---Qatl -e-amd, robbery, Haraabah ---
Bail, refusal of ---Accused was caught red -handed with crime weapon, while snatching
motorcycle from the complainant, who was student of F.Sc.---Besides committing murder,
accused also made murderous attempt upon the complainant who sustained a fire -arm injury ---
Offence under S.392, P.P.C., did not find its mention in S.345(1), Cr.P.C. in the category of the
offences which were compoundable ---Offences under Ss.302 & 392, P.P.C., as well as an
offence under S.17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance,
1979, were also not bailable ---Merits of the case did not justify the grant of bail to accused; and
compromise allegedly, effected between the parties, neither could be taken i nto consideration nor
it entitled accused for the concession of bail.
Muhammad Shabbir Rajput for Applicant.
Abdul Sattar Durrani, D.P.- G. for the State.
Date of hearing: 5th September, 2013.
ORDER
MUHAMMAD HASHIM KHAN KAKAR, J. ---This appli cation under section 497 of
the Criminal Procedure Code, 1898 (Cr.P.C.) has been moved on behalf of accused/applicant
Muhammad Ayub son of Dawood Khan, who is accused in crime No.29 of 2012, under sections
302 and 392 of the P.P.C. read with section 17(3) of the Offences Against Property (Enforcement
of Hudood) Ordinance, 1979 lodged at Saddar Police Station, Quetta on the report of
complainant Saddam son of Allah- ud-Din.
2. Briefly stated, the allegation against the applicant is that on 16th April, 2012, he, along
with his companion, while armed with deadly weapons, intercepted the complainant near Sarwar
Town Bridge, when he was riding on his motorcycle CD -70, bearing registration No.QAV -9431.
As per prosecution's case, after snatching the motorcycle, wh en the complainant made hue and
cry, the passersby attracted and, in the meanwhile, the accused/applicant made firing upon him,
due to which he sustained firearm injuries. It is also the case of the prosecution that due to firing
of the accused/applicant, his companion; viz, Agha Muhammad also sustained injuries and died
on the spot. The accused/applicant was caught red- handed by the inhabitants of the area and
handed over to the police.
2.(sic.) Mr. Muhammad Shabbir Rajput, learned counsel for the accuse d/ applicant mainly
stressed upon the compromise arrived at between the parties. When he was confronted with the
question as to whether bail must be granted on the basis of compromise in a non- compoundable
offence, besides referring to a number of reported judgments in support of his contention, he also
submitted that the statutory provision of section 345 of the Cr.P.C., wherein offences under
sections 392 and 396 of the P.P.C. have been shown non- compoundable, must be ignored being
in conflict with the la w of Holy Qur'an, while granting bail to the applicant. To augment his
contention, he further submitted that all types of murders are compoundable notwithstanding the
reason and the circumstances, under which murder is committed; therefore, there would be no
legal bar in giving effect to the compromise. He further added that the provision of section 345
of the Cr.P.C. cannot curtail the powers of the Court to compound a non- compoundable offence,
if its compoundability is otherwise, permissible in Islam, par ticularly keeping in view the
provisions of sections 309 and 310 read with section 338- E of the P.P.C. While concluding his
arguments, he was of the view that the trial Court was required to accept the compromise,
because, ultimately, the accused/applicant would be acquitted, as the witnesses would not
support the prosecution's case at the trial.
3. On the contrary, Mr. Abdul Sattar Durrani, learned Additional Prosecutor -General,
submitted that the accused/applicant was apprehended red -handed on the spot and, hence, no
case for bail is made out. He further submitted that a compromise in non -compoundable offences
may be a factor to be taken into consideration, while granting bail, but cannot be made its sole
basis.
4. I have given due consideration to the arguments so advanced and have also perused the
relevant record in the light of case laws cited by the learned counsel for the parties at bar. After
having gone through the record of the case, I am of the view that this application involves an
issue of gr eat substance pertaining to the importance of individual's personal liberty and the
society's interest. In this regard, I am of the considered view that the society has a vital interest in
grant or refusal of bail, because every criminal offence is the off ence against the State. The
order, granting or refusing bail, must reflect perfect balance between the conflicting interests;
viz, sanctity of individual's liberty and the interest of the society. While granting or refusing bail,
the two conflicting intere sts, namely, the requirement of shielding the society from the hazards of
those committing, crimes and potentiality of repeating the same crime while on bail and the
absolute adherence of the fundamental principle of criminal jurisprudence regarding presum ption
of innocence of an accused until he is found guilty.
5. At the very outset, the pivotal question, which needs determination, would be as to
whether a compromise effected between the parties can be considered as a ground for release of
a person, acc used of a non- bailable and non- compoundable offence within the purview of bar as
envisaged under section 345(7) of the Cr.P.C., particularly in an offence of murder committed
during the course of dacoity. In this respect, I am of the opinion that the human life is the most
valuable of all the things in this world. Islam as a religion of humanity attaches utmost sanctity to
human life. Al -Qur'an, the revealed book of Islam, pronounced that: --
"That whoever kills a human being unless it be for murder or spreading mischief in the
land, it shall be as if he had killed all mankind, and whoever saves the life of one it shall be as if
he had saved the life of all mankind... ... (5:32)"
6. The murder of a human being is the greatest sin after the sin of shirk (assigning partners
with almighty Allah) and is, therefore, unpardonable, particularly when committed during the
course of dacoity in view of the bar under section 345(7) of the Cr.P.C. Briefly speaking, the
Islamic Sharia divides the punishments for crimes into three categories: (i) Hudood, (ii) Qisas,
and (iii) Ta'zir. Those punishments, which have been determined by, the Holy Qur'an and the
Sunnah for crimes are called Hudood (prescri bed punishments). Punishments for crimes,
involving the rights of individuals, are called as Qisas (retribution), and the punishments for
crimes, which have not been fixed by the Holy Qur'an or the Sunnah, but have been left to the
discretion of the rulers and the judges are called as Ta'zir (discretionary punishments).
7. It is true that where compromise between the parties had been reached in non-
compoundable offences during pendency of the appeal, the Courts have taken the compromise as
a ground for re duction in the quantum of sentence only. However, it is equally true that in the
matters of bail, the same could only be considered as one of the factors, alongside the facts and
circumstances of the case, for determining whether bail be granted or not. An y person, who is an
accused of a non -compoundable offence, is not entitled to claim bail as a matter of right on the
sole strength of compromise. I am not unmindful of the fact that the offence of murder,
punishable with death under section 302(a) as Qisas and under section 302(b) as Ta'zir, is
compoundable under the law, but the murder had taken place during the course of committing a
dacoity, punishable with death under section 396 of the P.P.C. or an offence under section 392 of
the P.P.C., is not compoundable. By holding this view, I am fortified from the case of
Muhammad Rawab v. The State, 2004 SCMR 1170, wherein it was laid down that: --
"The pivotal question which needs determination would be as to whether parties can be
allowed to compound the off ences which are not compoundable by virtue of the provisions as
contemplated in section 345, Cr.P.C. specially in view of the specific bar as mentioned in
subsection (7) of section 345, Cr.P.C. There is no denying the fact that section 365- A, P.P.C.
read w ith section 7(e) of the Anti -Terrorism Act, 1997 is not compoundable. The provisions as
contained in section 345(7), Cr.P.C. have been couched in such a plain and simple language that
there is hardly any scope for any interpretation except that a non- compoundable offence cannot
be made compoundable by this Court for the simple reason that no amendment, deletion,
insertion or addition could be made by this Court and it could only be done by the Legislature as
this aspect of the matter falls in its exclusive domain of jurisdiction. The provisions as contained
in section 345, Cr.P.C. cannot be stretched too far by including the non- compoundable offence
therein under the garb of humanitarian grounds or any other extraneous consideration. The
offences committed b y the appellant are not of grave and alarming nature but the same are
against the society as a whole and cannot be permitted to compound by any individual on any
score whatsoever. It may be noted that tabulation of the offences as made under section 345,
Cr.P.C. being unambiguous remove all doubts, uncertainty and must be taken as complete and
comprehensive guide for compounding the offences. The judicial consensus seems to be that
"The Legislature has laid down in this section the test for determining the classes of offences
which concern individuals only as distinguished from those which have reference to the interests
of the State and Courts of law cannot go beyond that test and substitute for it one of their own. It
is against public policy to compound a non-compoundable offence, keeping in view the state of
facts existing on the date of application to compound. No offences shall be compounded except
where the provisions of section 345. Cr.P.C. are satisfied as to all matters mentioned in the
section."
8. The scope and meaning of the provisions of sections 309, 310 and 396 of the P.P.C. and
345 of the Cr.P.C. were examined by the Hon'ble Supreme Court of Pakistan in the case of
Ghulam Farid alias Farida v. The State, PLD 2006 SC 53, Mr. Justice Muhammad Nawaz
Abbasi, the Hon'ble Judge, who spoke for the Court, while construing the meaning and scope of
the aforesaid provisions of law observed as under: --
"There are two kinds of punishment in Islam "Hadd" and "Tazir". The punishment of
Hadd is in the Wil l of God whereas any other punishment is called Tazir. Islam recognizes the
concept of deterrent punishment and also the theory of Tazir. Islam recognizes the concept of
deterrent punishment and also the theory of repentence for the purpose of reformation and
preservation of society and in the light of this concept, the offences in the Islamic Penal Laws are
also divided into two categories namely compoundable and non -compoundable offences either
punishable as Hadd or Tazir. The offences which are compounda ble in Islam, have also been
made compoundable under the statutory law and in compoundable offences, it is permissible for
the Courts to give effect to the compromise between the parties at any stage of the proceedings
before or after the final conclusion of the matter whereas a compromise in non -compoundable
offences, cannot be given legal cover at any stage. The offence of murder punishable with death
under section 302(a) as Qisas and under section 302(b) as Tazir is compoundable under the law
but the mur der taken place during the course of committing dacoity punishable with death under
section 396, P.P.C. is not compoundable. The careful examination of Ayat Nos.178 and 179 of
Surah Baqara would reveal that there is no conflict of the statutory law to the law of Islam
regarding forgiveness as the offence under section 302, P.P.C. and the offence under section 396
P.P.C. are entirely different and distinct offences, therefore, notwithstanding the pardon given by
the legal heirs of the deceased to the petitio ner who has been awarded death penalty under
section 396, P.P.C. he could not avail the benefit of sections 309 and 310, P.P.C. read with
338(E), P.P.C."
9. Similarly, while dealing with the powers of the Court under section 561- A of the Cr.P.C.
and Arti cle 187 of the Constitution of Islamic Republic of Pakistan, 1973, the Hon'ble Supreme
Court in the above cited case -law observed as under: --
"This is settled law that Courts can interpret the provisions of law but cannot change or
substitute such provi sions and also cannot go beyond the wisdom of law. The contention of the
learned counsel that the compromise between the parties at least could be treated a mitigating
circumstance for the purpose of lesser punishment, has also no substance. This Court whi le
upholding the judgment of the High Court by virtue of which conviction and sentence awarded
to the petitioner by the trial Court was, maintained, has already dismissed the petition for leave to
appeal. The present petition has arisen out of the proceedi ngs in a miscellaneous application
moved by the petitioner for his acquittal on the basis of his compromise with the legal heirs of
the deceased, therefore, in these proceedings, it was not possible for the High Court to re open
the case on merits in exercise of its powers under section 561- A, Cr.P.C. and similarly, this
Court is not supposed to undertake such an exercise under Article 187 of the Constitution of
Islamic Republic of Pakistan and consider the question relating to the quantum of sentence on
the basis of compromise between the parties in such a heinous offence which is considered a
crime against the Society."
10. Reverting to the last contention of the learned counsel for the applicant, that the trial
Court was required to accept the compromis e and release the accused/applicant on bail, because,
ultimately, the accused would be acquitted, as the witnesses would not support the prosecution's
case during course of the trial. He further stated that if the complainant party as well as the legal
heirs of deceased Agha Muhammad were no longer interested to prosecute the accused, then it
was not for the trial Court to compel the parties to do so, as the saying goes, "you can take the
horse to the water but you cannot make drink". This contention is als o without any substance, as
the observations made by a single bench of the Hon'ble Peshawar High Court in the case of
Jamshed alias Javed v. The State, 2001 PCr.LJ 1493, furnish a complete answer to the said
contention, which reads as under: --
"It was a lso argued that compromise be accepted because ultimately the accused would
be acquitted as the witnesses would not support the prosecution case at the trial. This argument
has an inherent flaw. Though it is not uncommon that witnesses resile at the trial from their
statements recorded during the investigation however, to consider this as a factor for granting
bail would tantamount to conferring legitimacy on this unlawful and immoral practice."
11. So far as merits of the case are concerned, a tentative perusal of the record shows that the
accused/applicant was caught red -handed along with crime weapon, while snatching motorcycle
from the complainant, who is student of F.Sc. and, allegedly, besides committing murder of one
Agha Muhammad, the applicant als o made murderous attempt upon the complainant, who
sustained a fire arm injury. The offences, which are compoundable, have been mentioned in
section 345(1) of the Cr.P.C. and the offence under section 392 of the P.P.C. does not find its
mention in the afor esaid section in the category of the offences, which are compoundable.
Similarly, the offences under sections 302 and 392 of the P.P.C. as well as an offence under
section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 are
also not bailable in nature, as such, merits of the case do not justify the grant of bail to the
applicant and the compromise, allegedly, effected between the parties neither could be taken into
consideration nor it entitles the applicant for the concession of bail.
The application, being without merits, is dismissed.
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