The State vs Ghulam Muhammad Alias Gamun

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

Murder Reference No.30 of 2018 (The State Vs. Ghulam Muhammad alias Gamoon )

Criminal Appeal No. 716 of 2018 (Ghulam Muhammad alias Gamoon Vs. The State and another.)

JUDGMENT

Date of hearing: 18.10.2021.

Appellant by: Mr. Muhammad Aslam Khan Dhukkur, Advocate. State by: Ch. Asghar Ali Gill, Deputy Prosecutor General. Complainant by: In person

SADIQ MAHMUD KHURRAM, J. – Ghulam Muhammad alias Gamoon son of Yar Muhammad (convict) was tried by the learned Additional Sessions Judge, Khanpur in case FIR No. 830 of 2014 dated 24.12.2014 registered at Police Station Saddar Khanpur, District Rahim Yar Khan in respect of an offence under section 302 PPC for committing the Qatl-i-Amd of Rasool Bakhsh son of Wahid Bakhsh (deceased). The learned trial court vide judgment dated 08.12.2018, convicted Ghulam Muhammad alias Gamoon son of Yar Muhammad (convict) and sentenced him as infra:

Ghulam Muhammad alias Gamoon son of Yar Muhammad:- Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Rasool Bakhsh son of Wahid Bakhsh (deceased) and directed to pay Rs.100,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default whereof, the convict was directed to undergo further six months of simple imprisonment.

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The convict was ordered to be hanged by his neck till dead.

2.Feeling aggrieved, Ghulam Muhammad alias Gamoon son of Yar Muhammad (convict) lodged Criminal Appeal No.716 of 2018 assailing his conviction and sentence. The learned trial court submitted Murder Reference No.30 of 2018 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Ghulam Muhammad alias Gamoon son of Yar Muhammad. We intend to dispose of the Criminal Appeal No. 716 of 2018 and Murder Reference No.30 of 2018 through this single judgment.

3.Precisely the necessary facts of the prosecution case, as narrated by Sharifan Bib (PW-3), the complainant of the FIR, are that on 24.12.2014 at about 4.00 p.m., the appellant namely Ghulam Muhammad alias Gamoon son of Yar Muhammad, while armed with a Toka, gave repeated blows of the same to Rasool Bakhsh son of Wahid Bakhsh (deceased) committing Qatl-i- Amd of Rasool Bakhsh (deceased) and the appellant was caught by the witnesses at the spot and handed over to the police.

4.After the formal investigation of the case, the report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court, wherein the appellant namely Ghulam Muhammad alias Gamoon son of Yar Muhammad was sent to face trial. The learned trial court framed the charge against the accused on 10.02.2015, to which the accused pleaded not guilty and claimed trial.

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5.The prosecution in order to prove its case, got statements of as many as nine witnesses recorded. The ocular account of the case was furnished by Sharifan Bibi (PW-3) and Ghulam Hussain (PW-4). Muhammad Rasheed, SI (PW-7) investigated the case from 24.12.2014 till 17.01.2015, formally arrested the appellant in this case on 24.12.2014 and detailed the facts of the investigation as conducted by him, in his statement before the learned trial court.

6.The prosecution also got Dr. Arsalan Shahid (PW-6) examined, who on 24.12.2014 was posted as Medical Officer at the THQ hospital, Khanpur and on the same day conducted the post mortem examination of the dead body of the deceased namely Rasool Bakhsh son of Wahid Bakhsh.

7.On 09.05.2018, the learned Assistant Deputy District Public Prosecutor gave up prosecution witnesses namely Khadim Hussain, Muhammad Aslam and Muhammad Nadeem 1768/C as being unnecessary.

On 8.08.2018, learned Assistant Deputy District Public Prosecutor gave up prosecution witness namely Muhammad Arshad SI, as being unnecessary closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency, Lahore (Exh.PI).

8.After the closure of prosecution evidence, the learned trial court examined the appellant namely Ghulam Muhammad alias Gamoon son of Yar Muhammad under section 342 Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant

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namely Ghulam Muhammad alias Gamoon son of Yar Muhammad opted not to get himself examined under section 340(2) Cr.P.C. and did not adduce any evidence in his defence.

9.On the conclusion of the trial, the learned Additional Sessions Judge, Khanpur, convicted and sentenced the appellant as referred to above.

10.During pendency of the appeal lodged by the appellant, the appellant namely Ghulam Muhammad alias Gamoon son of Yar Muhammad died inside the jail. A report dated 12.10.2021 has been submitted by the Superintendent, District Jail Rahim Yar Khan, according to which the appellant namely Ghulam Muhammad alias Gamoon son of Yar Muhammad died during his incarceration in the District Jail Rahim Yar Khan on 05.11.2020. In this view of the matter, the main legal point for consideration before us is whether on the death of the appellant, the appeal shall abate under section 431, Code of Criminal Procedure, 1898 only to the extent of appeal from the sentence of death or also abate to the extent of awarding of the compensation under section 544-A Code of Criminal Procedure, 1898 which the appellant was directed to pay to the legal heirs of the deceased. The section 431, Code of Criminal Procedure, 1898 mandates that every appeal under section 411-A subsection (2), or section 417 shall finally abate on the death of the accused, and every other appeal under this Chapter i.e. Chapter XXXI of the Code of Criminal Procedure, 1898 , except an appeal from a sentence of fine, shall finally abate on the death of the appellant. For the sake of convenience and ready reference, section 431, Code of Criminal Procedure, 1898 is reproduced below:-

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"431.Abatement of Appeals:- Every appeal under section 411-A subsection (2), or section 417 shall finally abate on the death of the accused, and every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant".

The section 53 of the Pakistan Penal Code, 1860, provides following ten types of punishments:-

i. Qisas ii. Diyat;

iii. Arsh;

iv. Daman;

v. Ta'zir;

vi. Death vii. Imprisonment for life.

viii. Imprisonment which is of two descriptions, namely, (Rigorous i.e. with hard labour); (ii) Simple.

ix. Forfeiture of property x. Fine.

The section 302 of the Pakistan Penal Code, 1860 provides the following punishments for the offence of Qatl-i-amd:-

(a)Punishment of death as Qisas;

(b)Punishment of 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)Punishment of 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.

Detailed perusal of section 302 of the Pakistan Penal Code, 1860 would reveal that it does not include "compensation" as a punishment for the offence of Qatl-e-Amd. Similarly, "compensation" is also not included in the punishments provided under section 53 of the Pakistan Penal Code, 1860. The word "compensation" also does not find mention in the section 431 of the Code of Criminal Procedure, 1898 rather word "fine" has been

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specifically used therein. The section 544-A, Cr.P.C. was inserted in the Code of Criminal Procedure, 1898 through the Law Reforms Ordinance, 1972, however, no corresponding amendment to the extent of compensation has been brought in section 431 of the Code of Criminal Procedure, 1898 .

For the sake of convenience and ready reference section 544-A, Cr.P.C. is reproduced below:-

“544-A. Compensation of the heirs to the person killed, etc.: (1) Whenever a person is convicted of an offence in the commission whereof the death of, or hurt, injury or mental anguish or psychological damage, to any person is caused, or damage to or loss or destruction of any property is caused, the Court shall, when convicting such person, unless for reasons to be recorded in writing, it otherwise directs, order the person, convicted to pay to the heirs of the person whose death has been caused, or to the person hurt or injured, or to the person to whom mental anguish or psychological damage has been caused, or to the owner of the property damaged, lost or destroyed, as the case may be, such compensation as the Court may determine, having regard to the circumstances of the case.

(2)The compensation payable under subjection (1) shall be recoverable as an arrears of land revenue and the Court may further order that, in default of payment or of recovery as; aforesaid the person ordered to pay such compensation shall suffer imprisonment for a period not exceeding six months, or if it be a Court of the Magistrate of the Third Class, for a period not exceeding thirty days.

(3)The compensation payable under subsection (1) shall be in addition to any sentence which the Court may impose for the offence of which the person directed to pay compensation has been convicted.

(4)The provisions of subsections (2-B), (2-C), (3) and (4) of Section 250 shall as far as may be, apply to payment of compensation under this section.

(5)An order under this section may also be made by an Appellate Court or by a Court when exercising its powers of revision."

Had there been any intention of the legislature that the appeal on the death of the accused would not abate to the extent of compensation which the appellant had been ordered to pay , then definitely the section 431, Cr.P.C., would have also been amended to this extent, but such is not the position. It may be that the interest of the heirs of the deceased convict to clear his name should be recognized and they ought to be allowed an opportunity to clear it but unless it is recognized by the legislature, the Court cannot take

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notice of it. So far as the Court is concerned, the only question arising in the appeal before us is whether the conviction of the appellant and sentence of death awarded to the appellant are correct in law. The only person who had an interest in the appeal before the Court in showing that both were not justified was the appellant and since he is dead, the interest which he had ceases to exist and cannot pass to anyone. The language of a penal statute has to be construed strictly. Penal Statutes may be defined as those statutes that impose penal liability on a person who is guilty of any offence. The word penal connotes some form of punishment imposed against the individual by mandate of the State. In Halsbury’s laws of England , a penal statute has been described as one whose primary object is expressly enforceable by fine, imprisonment or other punishment. A statute is to be regarded as penal if it imposes a fine, penalty or forfeiture other than a penalty in the nature of liquidated damages, or other penalties that are of the nature of civil remedies.

Legislation which deals with the jurisdiction and the procedure relation to imposition of the penalties will be strictly construed. It is a general rule that penal enactments are to be construed strictly and not extended beyond their meaning. Criminal and penal statutes must be strictly construed, that is they cannot be enlarged or extended by intendment, implication, or by any equitable consideration. In other words, the language cannot be enlarged beyond the ordinary meaning of its term in order to carry into effect the general purpose for which the statute was enacted. The rule of strict construction requires that the language of a statute should be so construed that no case shall be held to fall within it which does not come within the reasonable interpretation of the statute. Words not

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used by the Legislature in a statute, cannot be inserted by the courts. For what has been discussed above, we are firm in our view to hold that "compensation" directed to be paid by the appellant to the legal heirs of the deceased under section 544-A, Cr.P.C., cannot be termed as a punishment as being one of the punishments provided under section 53, P.P.C.

Indeed, the legislature has, by limiting in section 431 of the Code of Criminal Procedure, 1898 the survival of appeals to appeals against sentences of fine only, has chosen to recognize only one kind of interest and no other. There could be several other kinds of interest, but this Court, would not be acting according to correct legal principles in recognizing a kind of interest which the legislature has not chosen to recognize. There is good reason for holding that a criminal appeal abates after the death of the appellant who has been convicted and sentenced , except an appeal from a sentence of fine in so far as a judgment already rendered touches assets which would come to the legal representatives or the executor as the case may be.

Beyond this it is not possible to conceive of remoter interest because if the law were to take into account such remote interests every appeal would have to be continued after the death of the appellant, which is not what the law provides..

11.In the light of above discussion , as the appellant namely Ghulam Muhammad alias Gamoon son of Yar Muhammad has died inside the jail according to the report dated 12.10.221 as submitted by the Superintendent, District Jail Rahim Yar Khan, according to which report the appellant namely Ghulam Muhammad alias Gamoon son of Yar Muhammad died during his incarceration in the District Jail Rahim Yar Khan on 05.11.2020, therefore, the Criminal Appeal No.716 of 2018 lodged by the appellant, stands abated in terms of section 431 Code of Criminal Procedure, 1898.

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12.Consequently, Murder Reference No. 30 of 2018 seeking confirmation or otherwise of the sentence of death awarded to Ghulam Muhammad alias Gamoon son of Yar Muhammad( since dead) needs no further consideration and the question of confirming or otherwise of the sentence of death awarded to Ghulam Muhammad alias Gamoon son of Yar Muhammad remains no more relevant in view of the fact that Ghulam Muhammad alias Gamoon son of Yar Muhammad has already died.

Therefore, Murder Reference No. 30 of 2018 is answered as such and the sentence of death awarded to Ghulam Muhammad alias Gamoon son of Yar Muhammad( since dead) is not confirmed.

(MUHAMMAD AMJAD RAFIQ) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Rashid

Approved for Reporting.

JUDGE JUDGE