Maqsood Ahmad vs The State etc.

Form No: HCJD/C-121

ORDER SHEET

LAHORE HIGH COURT

BAHAWALPUR BENCH, BAHAWALPUR

JUDICIAL DEPARTMENT

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Maqsood Ahmad Vs The State and another

S.No. of order/ Date of order/ Order with the signature of the Judge and that of parties or counsel, proceeding proceeding where necessary

04.02.2025 Hafiz Shahid Nadeem Kahloon, Advocate, with the Petitioner/Appellant.

Jam Waheed Ahmad, Deputy Prosecutor General.

Nemo for the Complainant (Allah Ditta).

Tariq Saleem Sheikh, J. – On 05.06.2018, Allah Ditta (PW-1) submitted an application (Exh. PA) to Muhammad Akram/ASI (PW-6) seeking registration of an FIR. He stated that he resided in Chak Qasimka and had six sons and four daughters, including Sumaira Bibi, who was 20 years old and the youngest. About six years before the incident, Sumaira married Muhammad Shahid, but they had no children from this marriage. Shahid’s neighbour, Mumtaz Ahmad, developed an illicit relationship with Sumaira, and they later contracted a “court marriage”. Shahid’s cousin, Maqsood Ahmad (the Petitioner / Appellant), opposed this union and pressured Sumaira to get a divorce from Mumtaz. Allah Ditta further stated that on 05.06.2018, at about 8:00 a.m., he along with his wife Ameeran Bibi, Jehangir, and Hassan, were standing in Jehangir’s fields when Sumaira passed by on her way to pick chilli from her land. At that moment, Maqsood Ahmad, armed with a hatchet, and Niaz Ahmad arrived and raised a lalkara that he would teach Sumaira a lesson for marrying Mumtaz. Maqsood then attacked her with the hatchet, striking her neck, right shoulder, left hand, and the fingers of her right hand. Sumaira collapsed from the injuries. Allah Ditta and witnesses attempted to apprehend the accused, but they fled. Sumaira succumbed to her injuries on the spot. Based on

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the aforementioned application (Exh. PA), FIR No. 110/2018 dated 05.06.2018 was registered at Police Station Takhat Mahal, District Bahawalnagar (Exh. PB/1) was registered.

2.The Petitioner and Niaz Ahmad were tried by the Additional Sessions Judge, Bahawalnagar, for the murder of Sumaira. By judgment dated 15.5.2019, he acquitted Niaz Ahmad but convicted the Petitioner under section 302(b) PPC and sentenced him to rigorous imprisonment for life with payment of Rs.200,000/- as compensation to Sumaira’s legal heirs in terms of section 544-A Cr.P.C. and, in default thereof, to undergo simple imprisonment for six months. However, the Court extended him the benefit of section 382-B Cr.P.C.

3.The Petitioner/Appellant filed Criminal Appeal No.310/2019 before this Court, challenging his conviction and sentence. During the pendency of this appeal, he submitted an application under section 345 Cr.P.C. (Crl. Misc. No. 1400/2020), seeking permission to compound the offence and his acquittal on the basis of a compromise reached with the legal heirs of Sumaira deceased. This Court sought a report from the Sessions Judge, Bahawalnagar, who stated that the compromise is partial, as the deceased’s husband, Mumtaz Ahmad, has not forgiven the Petitioner and is unwilling to compound the offence.

4.The Sessions Judge’s report dated 04.04.2020 shows that when this Court referred the matter to him as aforesaid, he sought a list of Sumaira’s legal heirs from the concerned Partwari and the SHO. In response, on 17.03.2020, Mazhar Hussain, Halqa Patwari Qasimka (Tehsil and District Bahawalnagar), and Syed Abdul Razzaq Shah/SI of Police Station Takhat Mahal appeared before him and submitted the requisite list. They also recorded statements on oath, verifying their correctness. Allah Ditta and Ameeran Bibi were shown as parents and Shahid as the husband of the deceased in both these documents.

5.On 03.04.2020, the Tehsildar submitted an application to the Sessions Judge seeking permission to file a revised list of Sumaira’s legal heirs. He informed the Court that he had learnt that Sumaira’s marriage to Shahid was dissolved by the Family Court, Bahawalnagar, through an ex parte decree dated 17.05.2017. Following the

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dissolution, Sumaira contracted a second marriage with Mumtaz Ahmad. The Tehsildar also submitted a revised Pedigree Table reflecting Mumtaz as Sumaira’s husband, replacing Shahid.

6.On 03.04.2020, Muhammad Akbar/Inspector, SHO Police Station Takhat Mahal, also applied to the Sessions Judge seeking permission to re-verify the legal heirs of Sumaira.

7.On 03.04.2020, Allah Ditta and Ameeran Bibi appeared before the Sessions Judge and recorded their statements under oath. They confirmed that they had willingly entered into a compromise with the Petitioner of their free will, without any coercion or undue influence. They stated that they had voluntarily forgiven the Petitioner in the name of Allah Almighty, waived their right to Qisas, Diyat, and compensation, and had no objection to his acquittal. While they acknowledged that Sumaira had contracted a second marriage with Mumtaz, they refused to recognize him as her lawful husband or legal heir, asserting instead that Shahid was the deceased’s rightful husband.

8.On 04.04.2020, Mumtaz recorded a statement before the Sessions Judge, asserting that he was Sumaira’s husband. He explained that on 17.08.2017, Sumaira married him without her parents’ consent after obtaining a decree for the dissolution of her marriage to Muhammad Shahid. Mumtaz alleged that Sumaira’s parents, in collusion with Petitioner Maqsood Ahmad, were responsible for her murder. He had filed a private complaint regarding the murder, which the trial court dismissed, and subsequently filed a PSLA in the Lahore High Court, Bahawalpur Bench, which remains pending.1 Mumtaz claimed that Sumaira’s parents and Maqsood Ahmad concealed the facts and failed to recognize him as her husband to evade the legal consequences of their crime. Mumtaz clarified that no compromise had been made between him and Maqsood and objected to the one made between Maqsood and the deceased’s parents. He also submitted his affidavit (Mark-E) in this regard.

9.On 04.04.2020, Tehsildar Sajjad Ahmad Khan Lodhi appeared before the Sessions Judge and affirmed the revised list he had PLSA No. 33 of 2019.

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filed the previous day. The same day, Muhammad Akbar/Inspector, SHO, Police Station Takhat Mahal, also submitted a revised list, substituting Mumtaz for Shahid as Sumaira’s husband. He, too, recorded a statement on oath before the Sessions Judge, confirming the authenticity of the revised list.

10.On 04.04.2020, Shahid filed an application before the Sessions Judge, supported by an affidavit, challenging the revised list submitted by the Tehsildar, which excluded him from Sumaira’s legal heirs. He explained that due to a family dispute, Sumaira became estranged and left her matrimonial home to live with her parents. While she was staying there, Mumtaz abducted her with the help of his accomplices and raped her. Sumaira subsequently filed an application for the registration of an FIR, on which the court issued a directive on 24.03.2017. Shahid further stated that the family elders mediated a compromise between him and Sumaira, after which she returned to live with him. However, in June 2017, Mumtaz and others abducted Sumaira again, upon which Allah Ditta initiated legal proceedings against them. Shahid claimed that he never divorced Sumaira and accused Mumtaz of fabricating a fake Nikahnama with her. He maintained that he discovered the decree of dissolution of marriage only when he appeared in court on 03.04.2020. Shahid stated that he had no objection to the Petitioner’s acquittal, as he had forgiven him in the name of Allah Almighty.

11.This case raises the critical question as to who is the husband of Sumaira deceased – Mumtaz or Shahid. The conflict over legal heir status is central to this case, as it impacts whether the offence under section 302 PPC can be compounded.

12.Section 345 Cr.P.C. governs the compounding of offences. The offences listed in sub-section (1) of this section, which are punishable under the Pakistan Penal Code, can be compounded by the persons mentioned in the third column of that Table without requiring the court’s permission. However, the offences listed in sub- section (2) are compoundable only if the court allows them. Section 302 PPC is listed in the Table under sub-section (2) of section 345 Cr.P.C. and is compoundable by the victim’s heirs (other than the

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accused or convict, if the offence has been committed in the name or on the pretext of karokari, siyahkari, or similar customs or practices). Section 345(2A) Cr.P.C. added by Criminal Law (Amendment) Act 2004 (I of 2005), dated 10.01.2005, states: “Where an offence under Chapter XVI of the Pakistan Penal Code, 1860 (Act XLV of 1860) has been committed in the name or on the pretext of karokari, siyahkari or similar other customs or practices, such offence may be waived or compounded subject to such conditions as the court may deem fit to impose with the consent of the parties having regard to the facts and circumstances of the case.” Section 345(5A) Cr.P.C. provides that a High Court, exercising its revisional powers under section 439 Cr.P.C., or a Court of Session under section 439-A Cr.P.C., may permit the compounding of any offence that is compoundable under section 345 Cr.P.C. Importantly, section 345(7) Cr.P.C. states that no offence shall be waived or compounded except as provided under section 345 Cr.P.C. and section 311 PPC.2

13.Sections 309 and 310 PPC are also relevant when considering the waiver or compounding of offences related to homicide and hurt under Chapter XVI of the Pakistan Penal Code. These provisions govern the principles of Qisas and Diyat, which may be waived in cases where the victim’s heirs consent to a compromise, provided the court deems it appropriate given the facts and circumstances. Section 338-E PPC further elaborates on the subject. It is reproduced below for ready reference:

338-E. Waiver or compounding of offences.– (1) Subject to the provisions of this Chapter and section 345 of the Code of the Criminal Procedure, 1898 (V of 1898), all offences under this Chapter may be waived or compounded and the provisions of sections 309, 310 and 311 shall, mutatis mutandis, apply to the waiver or compounding of such offences:

For ease of reference, section 311 PPC is reproduced below:

311.Ta’zir after waiver or compounding of right of Qisas in qatl-i-amd.– Where all the wali do not waive or compound the right of Qisas, or if the principle of fasad-fil-arz is attracted, the court may, having regard to the facts and circumstances of the case, punish an offender against whom the right of Qisas has been waived or compounded with death or imprisonment for life or imprisonment of either description for a term of which may extend to fourteen years as Ta’zir.

Provided that if the offence has been committed in the name of or on the pretext of honour, the punishment shall be imprisonment for life.

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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 tazir to the offender according to the nature of the offence: Provided further that where an offence under this Chapter has been committed and the principle of fasad-fil-arz is attracted, the court having regard to the facts and circumstances of the case shall punish an offender with imprisonment or fine as provided for that offence.

(2)All questions relating to waiver or compounding of an offence or awarding of punishment under section 310, whether before or after the passing of any sentence, shall be determined by trial Court:

Provided that where the sentence of qisas or any other sentence is waived or compounded during the pendency of an appeal, such questions may be determined by the appellate Court.

14.In Nazak Hussain v. The State (PLD 1996 SC 178), the Supreme Court of Pakistan formulated the following guidelines for dealing with the issue of waiver and compounding of offences under Chapter XVI of the PPC:

i)In the case of Qatl-e-Amd, if the right of Qisas is waived without any compensation, or compromise is arrived at between the parties i.e. accused and the adult legal heirs of the deceased, during the pendency of trial, the application for permission to compound the offence shall be made before the trial Court who shall determine all questions relating to waiver or compounding of an offence or awarding punishment under section 310 PPC.

(ii)In case of Qatl-e-Amd, if the right of Qisas is waived without any compensation or the legal heirs of the deceased compound their right of Qisas within the meanings of sections 309 and 310 PPC, during the pendency of appeal, applications for permission to compound the offence shall be made before the appellate Court, who shall determine all questions relating to waiver or compounding of an offence or awarding punishment under section 310 PPC.

iii)Under section 338-E(l) PPC, subject to the provisions of Chapter XLV and section 345 of the Code of Criminal Procedure, all offences under Chapter XVI PPC relating to homicide and hurt may be waived or compounded and the provisions of sections 309 and 310 PPC shall, mutatis mutandis, apply to the waiver or compounding of such offences. So, if any offence under Chapter XVI PPC affecting the human body is waived or compounded after the decision by the trial Court or the decision of appeal, if any, an application for permission to waive or compound the offence shall lie before the trial Court which shall determine all questions relating to the waiver or compounding of an offence or awarding of punishment under section 310 PPC and if the trial Court is convinced that the waiver of right of Qisas or compounding of an offence punishable under Chapter XVI PPC is genuine and in order, it shall acquit the accused.

iv)If a question arises as to whether any person is or is not the legal heir of the deceased, such question shall be determined by the Court competent to receive application on the basis of waiver or compromise between the parties.

v)For the purpose of determination of questions relating to the, wavier or compounding of an offence, the accused and the legal

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heirs of the deceased shall be treated parties to the proceedings under section 338-E(l) PPC.3

15.In Nazak Hussain, the Supreme Court observed that section 338-E(2) PPC is akin to section 47(1) of the Code of Civil Procedure 1908.4 Courts have extensively deliberated upon the object of section 47 CPC, and there is unanimity of opinion that it is intended to prevent multiplicity of litigation and provide relief without unnecessary delay and expense.5 Section 47(1) CPC expressly states that a separate suit is barred.

16.The above discussion shows that the offence under section 302 PPC is compoundable, but only with the permission of the court and the consent of the legal heirs of the deceased. The court has discretion to accept or reject the compromise, taking into account the facts and circumstances of the case. If the principle of fasad-fil-arz is applicable, the court, considering the facts and circumstances, shall punish the offender with imprisonment or a fine, as prescribed for that offence. Fasad-fil-arz, as defined in section 299(ee) PPC, includes the past conduct of the offender, any previous convictions, the brutal or shocking manner in which the offence was committed, which outrages public conscience, or if the offender is considered a potential danger to the community. It also applies if the offence was committed in the name or on the pretext of honour. In cases where there is a dispute regarding the legal heirs of the deceased, or the identity of the legal heirs, the court before which the application for compounding offences is pending and where the issue has been raised, should conduct an inquiry. Generally, a report from the concerned SHO and the Tehsildar/Halqa Patwari, along with the statements of the legal heirs recorded on oath, suffices. However, some cases may require a more detailed inquiry and the recording of additional evidence. It is the duty of the court to uncover the truth. Therefore, in appropriate cases, the The Supreme Court’s decision in Nazak Hussain was followed in Baz Muhammad v. The State (2000 PCr.LJ 553) and Ghulam Qadir v. The State (PLD 2012 Sindh 277).

Section 47(1) CPC reads as follows:

47.Questions to be determined by the Court executing decree. – (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

Muhammad Saeed v. Yasin and another (PLD 1966(W.P) Karachi 308), and Industrial Development Bank of Pakistan v. Messrs Crystal Chemicals Limited and others (PLD 2009 Lahore

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court may invoke section 540 Cr.P.C. to summon any person as a witness, and under section 94 Cr.P.C., it may order the production of any document it deems necessary.

17.In the present case, the Petitioner, a convict whose appeal is pending in this Court, filed an application under section 345(5) Cr.P.C. seeking permission to compound the offence. On one hand, Shahid and the deceased’s parents, Allah Ditta and Ameeran Bibi, assert that Shahid is Sumaira’s rightful husband and legal heir. On the other hand, Mumtaz claims that he married Sumaira following the dissolution of her marriage with Shahid, and thus he is her lawful husband. It was incumbent upon the Sessions Judge to resolve this conflict through a proper inquiry by allowing each party to present oral and documentary evidence and to cross-examine the opposing side. However, he failed to do so and did not even record Shahid’s statement on oath.

18.The Deputy Prosecutor General has apprised that this Court dismissed Mumtaz’s PSLA No. 33 of 2019 challenging the dismissal of his private complaint vide order dated 04.11.2020. Therefore, it is unnecessary to further examine the motive for the occurrence alleged by Mumtaz (see paragraph 8). However, the DPG contends that the prosecution’s account, as narrated by Allah Ditta (see paragraph 1), suggests a possible motive rooted in family honour. In Muhammad Ali Mahar and another v. The State (2024 SCMR 1584), the Supreme Court clarified that honour killings typically involve the murder of a woman by a male relative (such as her father, brother, or husband) for engaging in or being suspected of committing illicit sexual acts, which are perceived to bring shame to the family. This premeditated killing is meant to restore what the perpetrators consider to be the family’s honour. Hence, any compromise between the Petitioner and Sumaira’s legal heirs (whoever they may be) must be rejected in its entirety. In contrast, the Petitioner’s counsel argues that there is no clear indication that honour was the motive behind the incident. In my opinion, a thorough reappraisal of the evidence is necessary to arrive at a definite conclusion on this issue. Therefore, I leave it open for resolution at the time of the hearing of the main case.

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19.Given the deficiencies highlighted above, the matter is remitted to the Sessions Judge, Bahawalnagar, with a direction to conduct a thorough inquiry into the competing claims of Shahid and Mumtaz and submit a comprehensive report within three weeks. Relist the case thereafter for further proceedings.

(Tariq Saleem Sheikh) Judge

Naeem

Approved for reporting

Judge