MUHAMMAD NAWAZ Versus State

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, Anti-Terrorism, 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 eye-witnesses (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.