Murder, in Islam, is an abominable crime. Almighty Allah abhors taking human life which he has made “sacred”. If a man kills a believer intentionally his recompense is Hell, to abide therein and the wrath and the curse of Allah are upon him, and a dreadful penalty is prepared for him.
Allah Almighty however urges believers not to resort to revenge killing. The Holy Quran sought to bring to an end the prevalent practice of endless blood feuds. It encouraged the victim’s family to forgive.
“O you who believe! The law of equality is prescribed to you in cases of murder the free for the free, the slave for the slave, the woman for the woman”.
But if any remission is made by the brother of the slain, then grant any reasonable demand and compensate him with handsome gratitude; this is a concession and a Mercy from your Lord. After this whoever exceeds the limits shall be in grave penalty. This verse, which pertains to murder, addresses the heirs of the victim and advises them that instead of avenging the crime they should earn the favor and the Mercy of Almighty Allah by entering into a compromise. Another verse that says also adds a warning to judges.
We ordained therein for them;
“life for life, eye for the eye, nose for nose, tooth for the tooth, ear for the ear and wounds equal for equal”
but if anyone remits the retaliation by way of charity it is an act of atonement for himself. And if any fail to judge by (the light of) what Allah has revealed, they are (no better than) wrongdoers.
Allah Almighty does not favor excessive retributive punishment and encourages reconciliation.
“The recompense for an injury is an injury equal thereto (in degree); but if a person forgives and makes reconciliation, his reward is due from Allah for (Allah) loves not those who do wrong”.
These verses address the heirs of a murdered person and those who are injured. Forgiveness earns the Mercy and Reward of Almighty Allah. We have not been able to discover a single verse of the Holy Quran which states that if a person is forgiven/pardoned his/her crime is erased, effaced, obliterated, or washed away.
Forgiveness is premised upon seeking it.
“and he Allah is the one that accepts repentance (tawbah) from his salves and forgives.
Tawbah is not sought for something not done. The wrongdoer may seek forgiveness from the person wronged. Forgiveness is not sought by the innocent. Forgiveness is premised on the acknowledgment of the wrong. Which is a case of murder means admitting having committed the murder. It is our understanding that forgiveness or pardon does not erase or obliterate the crime, it simply withholds the punishment. The Quran negates the concept of obliteration of the crime, even if it has been forgiven, and its repetition attracts punishment-
“Allah forgives what is in the past, for repetition Allah will punish.”
The record, therefore, remains intact. Sections 309 and 310 of the PPC respectively attend to the matter of afw (waiver) and sulh but neither section states that afw or sulh results in the erasure of the crime from the record.
In section 338-E of the PPC enables certain offenses to be “waived or compounded and the provision of sections 309 and 310 shall mutatis mutandis, apply to the waiver or compounding of such offenses”
however, this section commences by stating that it is subject to the provisions of this chapter and section 345 of the code the proviso to this section further states that the court is not bound to accept the compromise and retains the “discretion having regard to the facts and circumstances of the case, acquit or award Tazir to the offender according to the nature of the offense.
Therefore if the perpetrator of the crimes, which has been waived/compounded, is to be acquitted this may only be done after the facts and the circumstances of the case have been considered, that is after hearing the case.
The law does not state that the court has to acquit the accused convict simply because the offense has been waived or compounded. We have not been able to discover the provision either in the PPC or the code which explicitly, or impliedly, mandates that a convict’s conviction shall be set aside when the compromise is accepted. Nor in our opinion can this be done by relying on subsection 6 of section 345 which states that the composition,
“shall have the effect of an acquittal”.
A judgment in a criminal case has two components the determination based on the evidence whether the accused has committed the crime and if he has committed the crime and if he has the appropriate punishment to be given that is the sentence. Conviction and sentence are two distinct components of a judgment. A conviction for qatl-i-amd under section 302(b) is a sentence of death or imprisonment for life.
The code at several places also clearly distinguishes between conviction and the sentence to be imposed if the crime is proved. Sentence of death and how they are to be executed are dealt with in two chapters of the code.
A sentence of death is required to be confirmed by the high court and after it is confirmed by the high court, it is to be executed in terms of section 381 of the code. The amendment added an important proviso to section 381 as under:
“provided that the sentence of death shall not be executed if the heirs of the deceased pardon the convict or enter into a compromise with him even at the last moment before the execution of the sentence.”
if however conviction of murder is set aside and he is acquitted it means that he/she did not commit the crime, which creates a factual faction. And such factual fiction has repercussions. Applying for employment a pardoned convict need not disclose his conviction, including when seeking employment in respect of role model positions. A teacher or in respect of sensitive jobs or where moral integrity is an employment prerequisite.
An acquittal is also stated to be a double presumption of innocence.
It may be said that thieves and murderers do not serve society. Hiring or retaining a thief or a murderer as a cashier, teacher, policeman or judge would be irresponsible and dangerous.
The question of whether the compounding of an offense results in the setting aside of the conviction and the automatic acquittal of the convict has been considered from some different angles by examining the PPC the code and the Holy Quran by ascertaining the meaning of afw and by reading analogous foreign judgments. And having done so we are of the view that when the compromise is accepted it brings to an end the punishment of the offense, but it does not simultaneously result in the setting aside of the conviction and the acquittal of the convict.
In our opinion, many provisions referred to above were not considered by the learned Bench of this court in the SMC case judgment, and most probably because the requisite assistance was not provided by the law officers. Whilst we agree that accepting the compromise brings the sentence to an end, we are of the view that the convict does not secure an automatic acquittal as a consequence thereof.
We however are mindful of the principle of stare decisis and that if a bench should be constituted to resolve the matter. In this regard, reference may be made to the case of Multiline Associates v Ardeshir Cowasjee.
This is all more important in this case because the determination of the issue at hand will affect a very large number of cases. Therefore, it is all the more important that every aspect of the matter is thoroughly examined and determined. Consequently, we refer this case to the honble chief justice for the constitution of a larger bench.
We are however cognizant of the fact that a compromise has been effected between the legal heirs of the deceased Zahir Mehmood (also known as Zahir Hussain) and the petitioner convict therefore it would be appropriate that till the determination of the question in hand, the remaining sentence of imprisonment of the petitioner convict is brought to an end, which we hereby do and order that he be released forthwith unless required to be detained in any other case. The larger bench to be constituted will decide whether the petitioner convict, as a consequence of accepting the compromise, is also to be acquitted.
I may however not that fully agree with the judgment of this court delivered in suo motu case no 3 of 2017. and thus it is not at all essential for me here to discuss the issue of compounding of offense, as it has already been done in the judgment in suo motu case even though I may have some other and additional reasons also to reach the same conclusion. Therefore I allow criminal miscellaneous application no 693 of 2018 as a result of which jail petition no 427 of 2016 is converted into appeal and is allowed. The conviction and sentence recorded against the applicant are set aside and he is acquitted of the charge in terms of section 345(6) of the code of criminal procedure, 1898. the applicant shall be released forthwith if not required in any other custody case.