IN THE SUPREME COURT OF PAKISTAN  
(Appellate Jurisdiction) 
 
PRESENT: 
MR. JUSTICE GULZAR AHMED 
MR. JUSTICE DOST MUHAMMAD KHAN  
MR. JUSTICE QAZI FAEZ ISA  
 
Criminal Appeal No.6-P of 2015 
(On 
appeal 
from 
the 
judgment 
dated 
19.12.2013 passed by the Peshawar High 
Court, Peshawar in Cr.R.42-M of 2013) 
 
 
Irfan and Mehboob Ali  
….Appellants 
Versus  
Muhammad Yousaf and another  
….Respondents  
 
For the appellants: 
 
Mr. Altaf Samad, ASC 
 
For the State: 
 
 
Mr. Aslam Ghumman, ASC for A.G. KPK 
 
Date of hearing:  
 
6.4.2016 
 
JUDGMENT 
 
Dost Muhammad Khan, J.— Through this appeal with the 
leave of the Court dated 6.3.2015, the appellants have questioned the 
legality and propriety of the judgment of the Peshawar High Court 
dated 19.12.2013 whereby Criminal Revision Petition No.42-M of 
2013, filed by the appellants was dismissed and the prayer for 
accepting the compromise, affected between the parties was declined 
in the manner, as was done by the Trial Court.  
 
We have heard the learned ASC for the appellants and Mr. Aslam 
Ghuman, learned ASC appearing on behalf of A.G. KPK and have gone 
through the record.  
2. 
  
It is an admitted position that the trial Court, upon 
conviction, awarded death sentence on one count to the appellants 
albeit it was stated in the judgment that the conviction so awarded u/s 
302(b) PPC shall be read with s.7 (a) ATA.  
Crl.A.6-P/15 
2 
3. 
  
Both the appellants were charged for causing the death of 
Mst. Naheed through strangulation as she was an obstacle in the way 
of one of the appellants, namely Irfan, who had developed love affairs 
with Mst. Ghazala, however, further allegations were made that 15 
tolas gold ornaments and cash amount of Rs.65,000/- was also taken 
away by the appellants. Case F.I.R No.1266 was registered on 
30.12.2004 u/Ss.302, 404/34 PPC read with s.7(a) ATA by Police 
Station, Mingora, District Swat. After conviction, the appellants filed 
appeal before the Peshawar High Court, however, while partly allowing 
the appeal, their sentence was reduced to life imprisonment but only 
u/s 302 PPC and nothing was said in the judgment or in the Reference 
sent by the Trial Court that the death sentence u/s 7 (a) ATA was 
confirmed. Probably, the Division Bench of the High Court was mindful 
that they were convicted u/s 302 PPC on a single count and no 
sentence of death was awarded u/s 7 ATA. 
4. 
  
Similarly, this Court while dismissing their leave petition, 
did not take notice of this omission, made by the Trial Court and then 
by the High Court because in the judgment of this Court too, the 
sentence 
of 
life 
imprisonment 
u/s 
302(b)/34 
PPC 
and 
the 
imprisonment of three years R.I. with fine of Rs.50,000/- each u/s 404 
PPC alone was maintained with further modification.  
5. 
  
Although it was an omission on the part of the Trial Court, 
not awarding separate sentence u/s 7 (a) ATA but that legal error was 
not corrected or to say rectified by the High Court nor by this Court in 
its judgment dated 24.03.2009 therefore, for all legal intents and 
purposes it shall be construed without exception that both the 
appellants were convicted only u/s 302(b)/34 PPC read s.404 PPC. 
Crl.A.6-P/15 
3 
6. 
  
Under the provisions of s.367 (2) and (3) Cr.P.C. it is 
mandatory for the Court that after finding the accused guilty of one or 
more offences, upon recording conviction, separate sentence must be 
clearly awarded to the accused so convicted otherwise it would be 
illegal being in violation of the mandatory provisions cited above. In 
this case, no separate sentence was awarded to the appellants u/s 
7(a)ATA by the Trial Court or the High Court, as explained above. This 
legal aspect of vital importance, conveniently escaped from the notice 
of the Trial Court and the learned High Court in the second round 
when the appellants were seeking acquittal on the basis of 
compromise u/s 302(b) PPC alone, because it cannot be construed nor 
it is permissible under the law to hold that the appellants were 
impliedly sentenced to imprisonment for life u/s 7(a) ATA as well. The 
provision of s.367 Cr.P.C provides that the Court determine first the 
guilt of the accused and then to pass judgment of conviction where-
after the sentence shall follow.  
 
Being inseparable and integral part of conviction, unless 
specifically awarded, it cannot be assumed to the prejudice of the 
accused that he/they were also sentenced u/s 7 (a) ATA by applying 
the rule of implication because the law provides the passing of specific 
sentence for a distinct offence and if it is not awarded, it cannot be 
construed that same was impliedly awarded as the very judgment to 
that extent becomes illegal and violative of the mandatory provisions 
of sub-sections (2) and (3) of S.367 Cr.P.C. 
7. 
  
Both 
the 
offences 
u/Ss.302 
and 
404 
PPC 
are 
compoundable and when the State/Prosecution has not taken any 
exception to the legal error, so committed by the Trial Court and 
thereafter by the High Court in the first round of litigation then, at this 
Crl.A.6-P/15 
4 
belated stage, it cannot agitate that the necessary modification be 
made in the conviction and sentences of the appellants and they be 
further convicted and sentenced u/s 7(a) ATA as well, because the 
matter is now past and closed transaction and cannot be re-opened.  
8. 
 
Even otherwise, the applicability of s.7(a)ATA was a 
begging question because the ingredients constituting that offence are 
missing in the case, however, at this stage, we are not suppose to 
further discuss this aspect of the matter.  
9. 
 
We are of the considered view that both the foras below 
have committed legal error by not accepting the compromise on the 
ground that the appellants were also charged and convicted by the 
Trial court u/s 7(a) ATA. The learned ASC for the State was unable to 
controvert this legal position, emerging out of the two judgments, 
referred to above and when he was asked that what the State would 
gain if the compromise is refused, when the legal heirs of the 
deceased have received a handsome compensation amount as Diyat 
from the appellants, he was unable to satisfy the Court in any manner.  
 
Accordingly, this appeal is allowed. Both the impugned 
judgments of the learned Courts below are set aside and the case is 
sent back to the learned Trial Court, who, after verifying the 
genuineness of the compromise to its satisfaction shall accept the 
same and acquit the appellants on the basis thereon.  
JUDGE  
 
 
JUDGE  
 
 
JUDGE 
Islamabad, the  
6th April, 2016 
Nisar /-  
 
 
 
Approved for reporting.  
