311. Ta'zir after waiver or compounding of right of qisas in qatl-i-amd.--Notwithstanding anything contained in Section 309 or Section 310 [where all the walis 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-which may extend to [fourteen] years [but shall not be less than ten years] as ta'zir:
[Provided that if the offence has been committed in the name or on the pretext of honour; the imprisonment shall not be less than ten years.]
[Explanation.--For the purpose of this section, the expression fasad-fil-arz shall include the past conduct of the offender or whether he has any previous convictions, or the brutal or shocking manner in which the offence has been committed which is outrageous to the public conscience [or the offence relates to honour crime], or if the offender is considered a potential danger to the community, [or if the offence has been committed in the name or on the pretext of honour.]
COMMENTARY
1. Scope and extent. Provision attracted only when Court declines the permission for compounding offence under section 345 Cr.P.C. 1992 MLD 1590. Provision not to be revoked in case before commencement of Criminal Law Amendment Ordinance, 1990. 1992 MLD 2368. Partial compromise. Sentence may be awarded under S. 311, PPC. 1994 PCr.LJ 1587. Court can award punishment by way of Tazir even after having accepted compromise. PLD 1996 Quetta 56. Section 311 PPC not compoundable. PLD 1997 Quetta 17. Accused killing his sister in a brutal manner, such act to be read in conjunction with his being a habitual or professional criminal. Offence cannot be termed as Fasad-fil-Arz by any stretch of imagination. 2000 PCr.LJ 1116. Section 11, PPC having direct nexus with S. 302, PPC, charge could not have been framed after the acquittal of the accused in the main murder case under this section. 2004 PCr.LJ 598.
Plain reading of Section 311 PPC would show that power under Section 311 PPC would be exercised only where all "Walis" of deceased have either not waived off or not compounded offence, meaning thereby that if all "Walis" have either waived off or have compounded offence, there would be no punishment of imprisonment as `Tazir'. PLJ 2001 Cr.C. (Peshawar) 1260 (DB).
When a compromise has been reached between all heirs of a deceased person and offender, Courts of law are not permitted to blindly act upon said compromise and to acquit culprit. Courts of law are expected to consider all attending facts and circumstances of case and then to decide for compounding of offence. Courts are also obliged to decide whether case falls within ambit of provisions of S. 311, P.P.C. and whether offender, despite compromise, deserved to be punished by way of "Tazir" under said provisions of law. PLJ 2001 Cr.C. (Lahore) 551 (DB) = PLD 2001 Lah. 212.
2. Application. Section 311 applicable in cases where there is no compromise regarding the case as a whole and only right of qisas waived u/S. 309 PPC or there is a compounding right of qisas u/S. 310 PPC. 2001 PCr.LJ 64.
3. Construction. Court should not act and insist upon the strict phrases of provisions of law relating to discretion which could bring some unpleasant result in future. 2001 PCr.LJ 1636.
4. Fasad-fil-Arz. Some of legal heirs not compounding Court to keep in view the principle of Fasad-fil-Arz which include conduct of offender being previous convict. PLD 2001 Pesh 58.
Appellant was convicted and sentenced to life imprisonment on charge of committing murder of his real brother. Appellant prayed for reduction in sentence, because his father and mother had pardoned him, whereas widow and 3 minor daughters of deceased were reluctant to compound the matter, thus, his case would fall u/S. 311, PPC. Appellant was not deserving any leniency, but was liable to be punished severely as he brutally murdered his real brother living with him in same house only on a petty dispute. Keeping in view the dictum of august Supreme Court and provisions of S. 311, PPC, conviction of appellant was maintained, but his sentence was altered from Section 302(b) to Section 311, PPC and was awarded 14 years as Ta'zir with benefit of S. 382-B, Cr.P.C., and compensation of Rs. 50,000/- awarded through impugned judgment was enhanced to amount equal to "diyat" amounting to Rs. 2,69,176/- payable to widow of deceased and her minor children under Section 544-A, Cr.P.C. PLJ 2001 Cr.C. (Peshawar) 156 (DB) = PLD 2001 Peshawar 58.
Prosecution case has been fully proved by the daughter and sister of deceased as prosecution witnesses, who being inmates of house were natural witnesses and had no animosity to falsely implicate appellant. Complainant/husband of deceased, however, having compromised and had forgiven him by waiving right of Qisas and Diyat, therefore, case of appellant would fall under S. 311 P.P.C. Appellant who is real brother of complainant had murdered innocent lady in a brutal manner over a petty matter of quarrel, therefore, conviction from S. 302(c) P.P.C. was altered to S. 311 PPC and he was awarded sentence of 14 years R.I. and was further ordered to pay compensation of Rs. 3 lacs to legal heirs except complainant/husband of deceased who has waived his right of Diyat Shares of minors would be deposited in some profitable scheme in their names to be paid to them on attaining their majority. PLJ 2002 Cr.C. (Lahore) 667.
Witness corroborated statement of other witness on the main point, he was an independent witness as he was not related either to deceased or accused. Conviction and sentence maintained. 2006 MLD 1652.
No comments:
Post a Comment