MUHAMMAD AKRAM vs PRESIDING OFFICER, SPECIAL COURT NO,2
This constitutional petition was filed by petitioners sentenced to death under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979, seeking to stay the execution of their death warrants based on alleged affidavits from the victim's legal heirs. The core legal question was whether the court could entertain a plea to compound an offence under the Offence of Zina (Enforcement of Hudood) Ordinance 1979 and whether the late submission of affidavits claiming the victim had falsely implicated the petitioners constituted valid grounds for relief in constitutional jurisdiction. The Court held that the offence under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 is not compoundable under section 345, Code of Criminal Procedure 1898. Furthermore, the Court dismissed the petition due to lack of bona fides, noting that the petitioners failed to raise these claims before the Supreme Court during their appeals and waited until the eve of the execution to file the petition. The key principle established is that constitutional jurisdiction cannot be invoked to reopen settled criminal convictions based on belated, unexplained evidence.
- Is an offence under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 compoundable?
- Can constitutional jurisdiction be invoked to challenge a conviction after all appellate remedies have been exhausted?
- Does the late submission of affidavits regarding a victim's statement provide sufficient grounds to stay an execution of a death warrant?
- Section 10(4), Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 345, Code of Criminal Procedure 1898
- Section 338-E, Pakistan Penal Code 1860
ORDER
' This order will be read in continuation of our order of even date and in response to the directions made to the learned Law Officer, it is submitted that the offence for which the petitioners have been sentenced, that is, section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, is not compoundable and in this regard has drawn our attention to subsection (7) of section 345, Cr.P.C.
2. Further submits that the so-called dying declaration, according to affidavits were made two days prior to death of the victim, that is, on 19-5-2006 but for one long year the petitioners as also the legal heirs of the victim kept mum. According to learned Law Officer section 338-E, P.P.C. Is not applicable to the facts of the instant case. He has relied upon PLD 2006 SC 53.
3. We have heard learned counsel for the parties. The petitioners were sentenced to death under section 10(4) of Ordinance No.Vll of 1979. Criminal Appeals Nos .46 and 47 /J of 1998 were dismissed by this Court and Murder Reference No.458 of 2002- was replied in affirmative whereby the death.
Sentence of both the petitioners was confirmed both the petitioner challenged their conviction 'and sentence before the Honourable apex Court through Criminal Appeal No.207 of 2002 and Jail Petition No.86 of 2002 but their appeals were dismissed by the Court vide judgment dated 25-5- 2006. The petitioners have exhausted all the remedies available to them under the law. Admittedly the offence under section 10(4} 'of the Ordinance VII of 1979 is not compoundable, so question. Of granting leave to compound the offence especially in these collateral proceedings does not arise.
4. Now, we may advert to the facts of the case and bona fide in filing this constitutional petition.
According to affidavits of the legal heirs of victim Mst. Khalida who has died her natural death, the victim died on 21-5-2006 and two days prior thereto that is on 19-5-2006, she had stated before the deponents that she had falsely implicated the petitioners. The date of death of the victim being 21-5-2006 is of much significance for the reason that appeals of the both the petitioners was heard by the apex Court on 25-5-2006 but the improvement which is now being urged as a ground for stay of execution of. Death warrant, was never brought to the notice of the apex Court either by the petitioners or by legal heirs of the victim and they kept mum. The affidavits of legal B heirs of the deceased are dated 3-5-2007 affirming a statement made by Mst. Khalida on 19-5-2006. No reason has been given whatsoever for such a long delay spreading over one year. During all this one year, the petitioners- never approached the Honourable apex Court and conveniently filed this writ petition a day prior to the date of execution of death warrant. We are not therefore, persuaded with bona fides of the petitioners or the legal heirs of the deceased who are seeking relief in constitutional jurisdiction.
' For what has been stated above, there is no merit in this petition and the same is hereby dismissed.