P L D 2014 Supreme Court 383
Present: Iftikhar Muhammad Chaudhry, C.J. Gulzar Ahmed and Sh. Azmat Saeed, JJ
MUHAMMAD NAWAZ---Petitioner
Versus
The STATE---Respondent
Criminal Review Petition No.34-L of 2009 in Criminal Petition No.651-L of 2009, decided on
28th February, 2013.
(For review of the judgment of this Court dated 24-8-2009 passed in Criminal Petition
No.651-L of 2009)
(a) Criminal Procedure Code (V of 1898)---
----S. 345--- Penal Code (XLV of 1860),Ss. 302(b), 324, 353, 148, 149 & 337-F(iii)---AntiTerrorism Act (XXVII of 1997), Ss.6(m) & (n), 7(a), (c) & (h)---Constitution of Pakistan,
Art.188---Review of Supreme Court judgment---Murder of police official while on duty---Act of
terrorism---Compounding of offence under S. 7 of Anti-Terrorism Act, 1997---Scope--Compromise between convict and legal heirs of deceased---Effect---Accused allegedly fired at
and killed a police official during a police raid---Anti-Terrorism Court sentenced accused to
death on two counts, one under S. 302(b), P.P.C and second under S.7 of Anti-Terrorism Act,
1997---Death sentence awarded to accused was confirmed by the High Court---Petition for leave
to appeal filed by accused before Supreme Court was dismissed, against which accused had filed
a review petition---During pendency of review petition, accused entered into a compromise with
legal heirs of deceased-police official and requested the Supreme Court to accept the said
compromise and acquit him---Validity---Merits of the present case pertaining to offence under
S.302(b), P.P.C were no more required to be dilated upon because of the compromise--Statements of eye-witnesses (police officials) and recoveries made during investigation
established that deceased-police official was murdered when he was on official duty, and such
findings were upheld by the High Court and Supreme Court---Offence under S.353, P.P.C stood
proved against accused as he fired at and killed a police official, who was performing his official
duty, therefore, offence under S.7 of Anti-Terrorism Act, 1997 was also established because
murder of a police official without personal enmity amounted to create terror and insecurity
in the vicinity---Offence under S.6(2)(n) of Anti-Terrorism Act, 1997 also stood established as
act of accused involved serious violence against a member of police force---Regarding first
count of death sentence under S.302(b), P.P.C, accused entered into a compromise with legal
heirs of deceased and compensation had also been paid, but second count of death under S.7 of
Anti-Terrorism Act, 1997 had its own implications and was not compoundable under Ss.354(5)
& (7), Cr.P.C---Compromise between parties was accepted (only) to the extent of conviction
under S.302(b), P.P.C and accused was acquitted of said charge---Regarding death sentence
under S.7 of Anti-Terrorism Act, 1997, quantum of said sentence could be examined in the
present case due to its peculiar facts---Sentence of death awarded to accused under S.7 of AntiTerrorism Act, 1997 was converted into life imprisonment without extending benefit of S.382-B,
P.P.C, as the same was not allowed by Trial Court, High Court and the Supreme Court---Review
petition was disposed of accordingly.
Muhammad Rawab v. State 2005 SCMR 1170 and M. Ashraf Bhatti v. M. Aasam Butt
PLD 2006 SC 182 rel.
(b) Criminal Procedure Code (V of 1898)---
-----S. 345---Anti-Terrorism Act (XXVII of 1997), S.7---Acts of terrorism---Death sentence,
award of---Compounding of offence under S.7 of Anti-Terrorism Act, 1997---Scope--Compromise between convict and legal heirs of deceased---Effect---Death sentence under S.7 of
Anti-Terrorism Act, 1997 had its own implications and was not compoundable under Ss.354(5)
& (7), Cr.P.C---Illustration.
Muhammad Rawab v. State 2005 SCMR 1170 rel.
(c) Anti-Terrorism Act (XXVII of 1997)---
----S. 7---Acts of terrorism---Scope---Murder of police official while on duty without personal
enmity---Such murder amounted to create terror and insecurity in the vicinity and would fall
under S.7 of Anti-Terrorism Act, 1997---Illustration.
M. Amir Khan Niazi, Advocate Supreme Court for Petitioners (in Crl.R.P. 34-L/09).
Asjad Javaid Ghurral, Addl. P.G. for the State.
Date of hearing: 28th January, 2013.
JUDGMENT
IFTIKHAR MUHAMMAD CHAUDHRY, C J.---Muhammad Nawaz son of Muhammad
Hussain has filed instant criminal review petition under Article 188 of the Constitution against
the judgment dated August 24, 2009 pronounced in Criminal Petition No.651-L/2009, in
pursuance whereof judgment dated May 13, 2009 of the Lahore High Court, Lahore passed in
Criminal Appeal No.1249 of 2007 has been upheld.
2.
The petitioner faced trial under sections 302/324/148/149/353, P.P.C. read with section
13 of Pakistan Arms Ordinance, 1965 and section 7 of Anti-Terrorism Act, 1997 in pursuance of
F.I.R. No.316 dated September 26, 2006 registered at Police Station Khushab on stated
allegations that on receipt of spy information that accused nominated
in F.I.R. No.315 of 2006 were present in the House of Ghulam Shabbir accused, situated in
village Shah Wale, Salabat Khan, Inspector/SHO along with his subordinates armed with official
weapons conducted raid and tried to encircle the said house. Muhammad Nawaz, petitioner fired
two shots from eastern door of the house, which landed on the left shoulder and front of neck of
Muhammad Mumtaz, Constable, who fell down on the ground and succumbed to death. Mohsan
Raza (co-accused) also fired .a shot which hit right thigh of Ameer Afzal, S.I. All accused started
firing and the police also returned fire in self defence. Three of the accused surrendered to police
whereas others including the petitioner succeeded in making their escape good. The petitioner
remained fugitive of law for about six months and was arrested on March 20, 2007.
3.
On completion of the investigation, he was challaned before the Special Judge, AntiTerrorism, Sargodha, who on holding the trial, vide judgment dated August 29, 2007 convicted
and sentenced him as under:--
(i)
Under section 302(b)/149, P.P.C.: Death sentence and also to pay Rs.100000/- as
compensation to the legal heirs of the deceased, in default whereof to further suffer six months'
S.I.
(ii)
Under section 324/149, P.P.C: 10 years R.I. along with fine of Rs.50,000/-, in default
whereof to further undergo three years' S.I.
(iii)
Under sections 337-F(iii)/149, P.P.C: To pay Daman
amounting to Rs.15000/- .and to undergo 3 years' R.I. as Taazir
(iv)
Under sections 148/149, P.P.C: 3 years' R.I. and fine of Rs.20000/ in default whereof six
months' S.I.
(v)
Under sections 353/149, P.P.C: 2 years' R.I. and fine of Rs.10000/--, in default whereof
to further undergo six months' S.I.,
(vi)
Under section 7(a) of ATA: Death penalty and fine of Rs.50000/-, in default whereof to
undergo three years' S.I.
(vii) Under section 7(c) of ATA: Imprisonment for life with fine of Rs.50000/- in default
whereof to further undergo 3 years' S.I.
(viii) Under section 7(h) read with section 6(m) of ATA and 149, P.P.C.: 5 years' R.I. and fine of
Rs.30000/- in default whereof to further undergo 1 year.
4.
In Criminal Appeal No.1249 of 2007 learned Division Bench of the Lahore High Court
confirmed the death sentence awarded to the petitioner by the Trial Court. Consequently, Murder
Reference No.71-T of 2007 was answered in affirmative and the appeal noted hereinabove was
dismissed. The petitioner approached this Court by filing Criminal Petition No. 651-L of 2009
against the said judgment of the High Court, which was dismissed vide judgment dated August
24, 2009. Hence he filed instant review petition.
5.
It is to be noted that during the pendency of the review petition, the petitioner entered
into a compromise with the legal heirs of the deceased and requested this Court through Criminal
M.A. 6 of 2011 to accept the compromise and acquit the accused. Vide Order dated January 13,
2011 report was called from Sessions Judge/ATC Sargodha about the genuineness or otherwise
of the compromise, which was received on February 1, 2011.
6.
It is to be noted that the merits of the case pertaining to the. offence under section 302(b),
P.P.C. are no more required to be dilated upon because of the compromise to the said extent is
acceptable, However, the question as to whether or not the offence under section 7 ATA, 1997 is
compoundable in terms of section 345, Cr.P.C. or the ATA, 1997, especially in presence of an
earlier judgment maintaining the judgment of the High Court, when the compromise was
effected during the pendency of the review petition. This question is required to be decided
keeping in view that as the legal heirs had forgiven the petitioner would he still be liable to
capital punishment under section 7 ATA, 1997. In this regard, it is to be noted that the learned
trial Court opined that the offence under section 353, P.P.C. stood proved as the deceased
Muhammad Mumtaz, Constable while performing his official duty was fired at and killed by
him. Thus, offence tinder section 7 of ATA, 1997 is also established against the accused because
he murdered the deceased while performing his official duty without having any personal enmity
against him, which amounted to create terror and insecurity in the vicinity. These findings were
supported by the statement of prosecution witnesses.
7.
The learned High Court on having taken into consideration the statements of eyewitnesses (Police Officials) as well as recoveries, concluded that the deceased was murdered
when he was on official duty, which findings were upheld by the learned High Court as well as
this Court.
8.
It is to be noted that the act of terrorism, though is interlinked with the principal offence
i.e. 302(b), P.P.C., falls under a different provision of law i.e. section 6(2)(n) of ATA. Deceased
Muhammad Mumtaz was on official duty at the time of the occurrence as it is evident from the
statements of P.Ws. that he was in uniform and was causing arrest of nominated accused along
with raiding police party but to terrorize the police the accused opened fire, which caused his
(Muhammad Mumtaz) death and also created obstruction in the discharge of their duty. Sentence
under section 302(b) attracts the provision of section 353, P.P.C., which he has already
undergone. Thus, the offence under section 6(2)(n) of ATA also stands established against the
petitioner, which provides the meaning of terrorism and any such action that falls within the
meaning of said section, involving serious violence against a member of the police force, armed
forces, civil armed forces, or a public servant. This offence stood established, in view of the facts
and circumstances narrated hereinabove, particularly, accepting the conviction/sentence under
section 302(b), P.P.C. as he has entered into compromise with the deceased, however as far as
the second count of death sentence under section 7 ATA is concerned, it has got its own
implications and is not compoundable under section 345 subsections (5) and (7) of Cr.P.C. This
Court examined this very proposition in the case of Muhammad Rawab v. State (2005 SCMR
1170), reliance on which has also been placed by the Sessions Judge when the compromise under
section 302(b), P.P.C. and 7 of ATA was submitted. Learned Special Judge gave effect the
compromise only to the extent of 302(b), P.P.C., whereas compromise under section 7 ATA was
not allowed to be compounded in view of the law referred to hereinabove.
9.
However, this fact can also not be over sighted that in respect of murder of Muhammad
Mumtaz, Constable, the petitioner was also sentenced to death and now the parties have
compounded the offence under section 302(b), P.P.C. and according to the record compensation
has also been paid. Therefore, question for quantum of sentence under section 7 of ATA can be
examined in view of the judgment in the case of M. Ashraf Bhatti v. M. Aasam Butt (PLD 2006
SC 182) wherein after the compromise between the parties sentence of death was altered to life
imprisonment.
10.
It is to be noted that both the sentences i.e. death and life imprisonment are legal
sentences, therefore, under the circumstances either of them can be awarded to him. Thus in view
of the peculiar circumstances noted hereinabove, sentence of death under section 7 ATA, 1997 is
converted into life imprisonment without extending benefit of section 382-B, Cr.P.C. as the same
was not allowed by the trial Court, first appellate Court as well as by this Court in the judgment
under review.
11.
Accordingly, compromise between the parties is accepted to the extent of conviction
under section 302(b), P.P.C. and the petitioner is acquitted of the charge. However, the death
sentence under section 7 of ATA is converted into life imprisonment and the review petition is
disposed of. Accordingly Criminal Petition No.651-L of 2009 is converted into appeal and is
allowed, whereby the order of the High Court dated May, 16, 2009 passed in Criminal Appeal
No.1249 of 2009 is modified to that extent.
MWA/M-5/S
Order accordingly.