Suo Motu Case No. 03 of 2017 (Effects of Compounding an Offence)

Date of hearing: 27.06.2018
Court: SUPREME COURT OF PAKISTAN (Original Jurisdiction)
PRESENT: Mr. Justice Asif Saeed Khan Khosa
Mr. Justice Ijaz ul Ahsan
Mr. Justice Syed Mansoor Ali Shah
Name: Suo Motu Case No. 03 of 2017 (Regarding the issue as to whether compounding of an offence under section 345, Cr.P.C. amounts to acquittal of the accused person or not)

Asif Saeed Khan Khosa, J. gave the leading judgment. He recounted the facts of the case to be as follows. Whaeed Ahmad had allegedly murdered a person named Tariq Hussain in 2007. He was booked by the police under sec. 302 of the Pakistan Penal Code (PPC), for which he was convicted in Jehlum by a sessions judge under sec. 302(b) PPC, sentenced to death as per Tazir and ordered to pay Rs, 100,000 to the heirs of the victim, by way of compensation under section 544-A of the Code of Criminal Procedure, 1898 (Cr.P.C.) or in default of payment thereof to undergo simple imprisonment for six months. This sentence was appealed by the convict in the Lahore High Court (Rawalpindi Bench) but his appeal was dismissed in 2012. He then appealed his sentence to the Supreme Court of Pakistan wherein leave to appeal was granted in order to reappraise the evidence in the interest of safe administration of criminal justice. While this application was pending, a petition seeking the acquittal of the convict based on a compromise with the heirs of the victim was referred by the Supreme Court to the Sessions Judge in Jehlum. This confirmed that a genuine and voluntary appeal compromise had been reached between the heirs of the victim and the convict, since they had forgiven him, waived their right of Qisas and claimed no Diyat in this context. The bench of the supreme court presiding over the appeal unanimously accepted the compromise which had been reached between the parties but differed on how the appeal was to be disposed of, as two judges (Sardar Tariq Masood, J. and Amir Hani Muslim, J.) agreed on the complete disposal of all charges and sentences against the appellant and Qazi Faez Isa, J. dissented on the dismissal of all charges.

Section 345 of the Cr.P.C. which allows for the compounding of offences limits such composition by its subsection 5 to the period before conviction, unless permission to do so is obtained by a court before which the appeal is being heard. Subsection 6 of sec. 345 states that compounding of offences shall ‘have the effect of an acquittal’ which was different from an acquittal, according to Qazi Faez Isa, J. He stated that the guilt of the accused was determined by the trial court which declared this in a judgment. This judgment had two parts, one of which was the conviction (meaning the accused is guilty) and the sentence (the punishment awarded). If the legal heirs of the victim compound the offence, this did not mean that the accused was no longer guilty for the murder for which he was convicted, as this would be the consequence of the composition, not the result of a trial. He further stated that sec. 345 (6) also avoided creating such a fiction as it allowed the composition to “have the effect of an acquittal” which meant that the punishment part of the sentence was brought to an end. It did not, nor could it change the conviction of the accused as it did not state “acquittal of all charges”. These charges had been accorded by the trial court and could only be undone by a superior court, not the legal heirs of the victim. While the law permitted the legal heirs of the victim to compound the offence without receiving diyat and seeking retribution, the very premise on which this composition operates is the acknowledgment of guilt by the accused who is then forgiven by the legal heirs. This, the honourable judge noted, was in accordance with the injunctions of Islam, as mandated by sec. 338-F of the PPC. He also pointed out that none of the versus of the Holy Quran supporting a composition neither cited or implied that the guilt of the accused is effaced by way of such a compromise. Therefore, while he agreed with the other judges in accepting the application for compounding the offences, he disagreed with the ‘acquittal of all charges’ approach and the complete exoneration of the convict, thereby. Since sec. 345(6) had never been interpreted in this manner before, Qazi Faez Isa, J. requested the chief justice of Pakistan to take notice of the matter under art. 184(3) of the constitution of Pakistan as it pertained to matters of fundamental rights.

The request was accepted by the Chief justice and the matter was heard by a bench headed by Justice Asif Saeed Khan Khosa. Arguments were heard from the Assitant Attorney General for Pakistan and the Additional Advocate Generals of the four provinces who unanimously submitted that in Islamic jurisprudence and according to the criminal justice system in Pakistan, compounding of an offence results in an acquittal of the accused/convict and that any confusion caused by the words “effect of an acquittal” of sec. 345(6) stands corrected by the word “acquit” in sec. 338-E(1) PPC and its interpretation by the Supreme Court in Chairman Agricultural Development Bank of Pakistan and another v. Mumtaz Khan (PLD 2010 SC 695).

Following these arguments was the opinion of the court. The bench stated that there was a short answer to this problem where offences contained in chapter XVI of the PPC (which deals with offences affecting the human body) are all compoundable by virtue of sec. 309 PPC, 310 PPC, 345 Cr.P.C. and 338-E(1) PPC. The effect of this is stated in 338-E(1) PPC:
338-E. Waiver or compounding of offences.
(1) Subject to the provisions of this Chapter and section 345 of the Code of Criminal Procedure, 1898 (V of 1898), all offences under this Chapter may be waived or compounded and the provisions of sections 309 and 310 shall, mutatis mutandis, apply to the waiver or compounding of such offences:
Provided that, where an offence has been waived or compounded, the Court may, in its discretion having regard to the facts and circumstances of the case, acquit or award ta’zir to the offender according to the nature of the offence. ——-
(bold letters have been supplied for emphasis)

This, clearly showed that all offences affecting the human body, including murder could be waived or compounded and this would acquit the accused/convict in the case of Ta’zir and allow the court the discretion to do so, in the case of Qisas (Chairman Agricultural Development Bank of Pakistan and another v. Mumtaz Khan (PLD 2010 SC 695). Dr. Muhammad Islam v. Government of N-W.F.P. The court further added that such acquittals were honourable the law did not categorise acquittals into honourable and dishonourable ones and this included acquittals reached due to a compromise between the parties involved (Secretary Food, Agricultural, Live Stock and Cooperative Department, Peshawar (1998 SCMR 1993). An acquittal in a criminal case completely exonerated the accused/convict for all future purposes and this followed the Islamic jurisprudence of Afw (waiver) or Sulh (compounding).

Definitions of the word ‘compound’ were sourced from various dictionaries where the word was provided to mean “To agree for consideration not to prosecute (a crime)” (Black’s Law Dictionary (Ninth Edition)) and “come to terms with a person, for forgoing a claim etc. for an offence” (The Concise Oxford Dictionary of Current English (Ninth Edition)). International consensus by Islamic scholars on concepts of Afw (to hide an act, to obliterate, remove and pardon it and to erase and efface it from the record as if it had never been committed) and Sulh (that the act or offence is forgiven and forgotten as if it had never happened) were also noted and all these condoned the idea of negating the accused/convict’s guilt and punishment. This discussion had been taken up in various cases (Kumarasami Chetty v. Kuppusami Chetty and others (AIR 1919 Madras 879(2)), Ram Richpal v. Mata Din and another (AIR 1925 Lahore 159), Jhangtoo Barai and another v. Emperor (AIR 1930 Allahabad 409), Dharichhan Singh and others v. Emperor (AIR 1939 Patna 141), Mt. Rambai w/o Bahadursingh v. Mt. Chandra Kumari Devi (AIR 1940 Nagpur 181), Godfrey Meeus v. Simon Dular (AIR (37) 1950 Nagpur 91) and Prithvi Bhagat and another v. Birju Sada (AIR 1962 Patna 316) and they all summed up the position on compounding to be as follows:
i. Compounding could take place before or during trial or while an appeal or revision was pending.
ii. Compounding pursuant to sec. 345 could not be withdrawn from or resiled at any later stage as it has already affected complete acquittal.
iii. Compounding an offence deprived the court of its jurisdiction to try the case and leaves it with no other option but to acquit the accused.
iv. Compounding where no permission from the court is required results in immediate acquittal of the accused/convict.
v. In some of the cases mentioned above, acquittal of the accused was ordered based on successful composition of compounding an offence rather than on the observation that the composition would have the effect of acquittal.

In light of these conclusions, the court stated that drawing a distinction between guilt and punishment with regards to sec. 345(6) Cr.P.C. was unnecessary. As to why the legislature spoke of the “effect of an acquittal” in context of compounding an offence and did not use the word “acquittal” in sec. 345(6) Cr.P.C., the court clarified that this was because an acquittal could be ordered in context of an existing allegation or charge but where the allegation/charge itself disappeared because of the offence being compounded, there was no opportunity left for acquittal. In case of such a metamorphosis brought about by a composition of the offence the best that the legislature could do was to extend all the benefits and effects of an acquittal to the concerned person and this was exactly what had been done by it through the provisions of section 345(6), Cr.P.C.

The court analysed compounding from the angle of conviction and sentencing as it found the legislature, in drafting the Cr.P.C. to have distinguished between the two and extended relief only in the matter of sentencing, not in the matter of conviction. While the legislature could have stated in sec. 345 Cr.P.C. that compounding the offence would result in the convict being released from custody and not be liable to any punishment, but his guilt would stand undisturbed, it did not do so, and it did not even provide for the release of the accused/convict from custody and such silence of the legislature was a silence which said it all when it mentioned that the effects of acquittal would automatically flow from compounding and such effects could not follow unless compounding itself amounted to, without saying so, nothing but acquittal by operation of the law. In this context, acquittal or the effects of it, in criminal law, are necessarily relevant to guilt of a person and criminal jurisprudence and law do not envisage the removal of punishment while impliedly maintaining a person’s guilt. Such an approach could be debated academically but to effectively import it into criminal jurisprudence and law, the law would have to be rewritten and this was not an exercise the court thought itself to be qualified for.

Keeping a person’s guilt intact and doing away with the punishment by compounding the offence was premised on considerations other than legal. Qazi Faez Isa, J. raised similar concerns in the case of Mureed Sultan and others v. The State through P. G. Punjab and another (2018 SCMR 756) where he stated that acquitting a convicting murderer merely because the legal heirs of the victim compound the offence enables the murderer to be dishonest for job applications where he would only be eligible for employment if he states that he has never been convicted. This the court stated was an argument it could not entertain as its job was to apply the law, not amend and that unless a change was brought about by the legislature, there was little scope for the courts to canvass for such collateral punishments. Therefore, the court was bound to extend the effects of complete acquittal to a person whose offence has been compounded (Chairman Agricultural Development Bank of Pakistan and another v. Mumtaz Khan (PLD 2010 SC 695)).