HAZIR ZAMAN vs BAKHT ZAMAN and 2 others

WAQAR AHMAD SETH, J.---This criminal appeal has been directed against the judgment dated 12- 2-2013 passed by the learned Judge, Anti-Terrorism Court/Juvenile Court, Mardan whereby the appellant Hazir Zaman has been convicted under section 302(b), P.P.C. And sentenced to imprisonment for life, also convicted under section 7, A.T.A. And sentenced to imprisonment for life with a fine of Rs, 20,000. He was further convicted under section 337A(i), P.P.C. And sentenced to one year = and to pay Daman amounting to Rs,10,000 to P.W. Nighat, also convicted, under section 13, A.O. And sentenced to two years with a fine of Rs,2,000 and further convicted under section 353, P.P.C. And sentenced to undergo imprisonment for six months with a fine of Rs,1,000. All the aforesaid sentences were ordered to be run concurrently with a benefit of section 382-B, Cr.P.C.

2. Shortly narrated the facts of the prosecution case are that on 21-6-2012 at 10.35 hours Aqeel Ahmad Typist attached to the Court of Miss Faiza Gul the then Judge Family Court, Mardan reported the matter to the police to the effect that on the same day he along with Asif Haroon son of Wajid Ali Reader and Ghani Rehman Naib Qasid were present in the Court while the Presiding Officer also present on her seat; that deceased Mst. Lal Zia wife of Hazir Zaman appellant was also present in connection with her family suit who was produced by Lady Constable Mst. Nighat from Darul Aman. At about 10.15 hours when call was made in the case of the said deceased lady, accused Hazir Zaman also entered into the court room and took out pistol and opened firing at Mst.

Lal Zia as a result of which she got hit and died on the spot. Due to the said firing the Reader and Naib Qasid and Mhammad Yousaf were also hit and sustained injuries. The lady Constable Nighat tried to overpower the accused and caught hold of him but accused pushed her due to which she also got injured. The accused while decamping from the spot was arrested by the police personnel along with weapon of offence.

3. After completion of usual investigation, challan was put in the Court of Judge Anti-Terrorism, Mardan where the appellant was formally charged on 4-9-2012 and after conclusion of the trial he was convicted and sentenced as noted above.

4. Feeling aggrieved from the judgment of the trial Court, appellant preferred the instant appeal.

5. During the hearing of the instant appeal, on 3-10-2013 learned counsel for the appellant stated at the bar that the parties have patched up the matter outside the Court and the trial Court be directed to record statement of the parties to the extent of section 302(b), P.P.C. While to the extent of section 7, A.T.A., he will argue the case on merit being non-compoundable offence. So the appeal along with the record was sent to the trial Court for recording statements of the parties and submit its report regarding the genuine of compromise or otherwise.

6. In the light of the above, the learned Judge Anti-Terrorism A Court, Mardan submitted his report dated 31-10-2013, the relevant portion of which is reproduced as under:- "The parents of the deceased had earlier appeared before this Court and placed on file compromise Exh.PA. Their joint statement supporting the factum of compromise to their extent was recorded. Both of them voluntarily stated that they have forgiven the convict in the name of Almighty Allah and have also waived off their right of Qisas and Diyyat. Statements of elders intervening between the parties was also recorded and the factum of L.R's was ordered to be verified from the local police. Such verification was done today. Deceased of the case namely Mst.

Lal Zia was also statedly the wedded wife of the convict. The partial compromise between the L. R's and the convict is verified to be genuine and in the interest of the parties. However, no proof of compromise between the convict and other injured of the occurrence was produced. The compromise papers and statements of L.R's, elders and verifier Bakht, Shid Khan SI along with judicial record, be thus dispatched to the worthy Additional Registrar (Judicial) Peshawar High Court, Peshawar for further necessary action please."

7. Learned counsel appearing on behalf of the parties stated that as all the legal heirs of the deceased have forgiven the appellant in the name of Almighty Allah and have also waived off their right of Qisas and Diyyat, therefore, the appellant may be acquitted of the charge.

8. In view of the above, we are satisfied with the report of the learned trial Judge. We are also convinced that the legal heirs of the deceased have compounded the offence with the appellant, voluntarily, without duress or coercion and have waived their right of Qisas and Diyyat. So far as the injured persons are concerned, out of whom Asif Haroon appeared as P.W.13 and stated that he do not charged the accused and has pardoned him while the other injured namely Muhammad Yousaf and Ghani Rehman, have not been produced by the prosecution in the trial. So far as injured Lady Constable Mst. Nighat is concerned, she was not injured with the fire shot of the appellant but she sustained injury due to her fall on the ground and as per Medico-legal Report, bruises on the right forearm near the wrist joint were found. Needless to add that if, an injured witness himself does not appear to charge an accused for his injury and the Court is not satisfied with his disability or incompetence or reasons for not appearing then the conviction for his injury cannot be recorded on the basis of other evidence under Qisas, as held by the apex Court in (1992 SCMR 2088).

9. Vide subsection (5) of section 345, Cr.P.C. The legal heirs of the deceased have been allowed to compound the offence with the permission of the Court where appeal is pending whereas vide its subsection (6), such composition of an offence shall have an effect of an acquittal of the accused with whom the offence has been compounded. Therefore, in view of the report of the learned Judge of the Anti-Terrorism Court, Mardan dated 31-10-2013 and the request so made by the learned counsel for the parties, the legal heirs are allowed to compound the offence with the appellant and permission to compound the offence in view of subsection (5) of section 345, Cr.P.C.

Is accorded to the parties to the extent of section 302(b), P.P.C. In order to maintain relations and bury their hatches forever.

10. In order to determine as to whether an offence would fall within the ambit of section 6 of the Anti-Terrorism Act, 1997, it would be that the ingredients of the alleged offence have any nexus with the object of the case as contemplated under sections 6, 7 and 8 thereof. Whether a particular act is an act of terrorism or not, the motivation, object, design or purpose behind the said act is to be seen. Examining the case in hand on the above touchstone, it is manifest on the face of it that the alleged offence took place because of dissolution suit between the appellant and the deceased lady. The motive for the occurrence is also the same family suit between the appellant and his deceased wife. In this view of the matter, we are of the opinion that since motive was dissolution of marriage between the husband and wife, the application of section 7 of Anti-Terrorism Act, 1997 which primarily requires the spread of sense of insecurity and fear in the common mind is lacking in the present case. From the facts of the case, the definition of terrorism is not attracted in the present case.

11. Since the main case of murder of the deceased Mst. Lal Zia under section 302(d), P.P.C. Has been patched up by her legal heirs with the appellant and they have pardoned the appellant in the name of Almighty Allah and also waived off their right of Qisas and Diyyat and they including the injured witnesses are not charging the appellant, therefore, further proceedings in the case would be futile exercise and sheer wastage of time of the Court and the parties concerned.

12. In view of what has been discussed above, this appeal is allowed, the conviction and sentence imposed upon the appellant Hazir. Zaman by the learned Judge, Anti-Terrorism Court, Mardan by his judgment dated 12-2-2013 is set aside and he is acquitted of the charges levelled against him.

He be set at liberty forthwith if not required in any other case.