ZAFAR IQBAL Versus State

QAZI FAEZ ISA, J.--- The appellant was convicted for the murders of five persons, namely, Musammat Sahib Neshan, Muhammd Siddique, Abdul Khaliq, Shaukat Mehmood and Ikram Hussain by the learned Special Judge, Anti-Terrorism Court No.1, Islamabad/Rawalpindi vide judgment dated 15th May, 2002 and sentenced to death under section 7(a) of the Anti-Terrorism Act, 1997 ("the Act") on five counts and fine of one hundred thousand rupees on each count was imposed on him and if he defaulted in payment of fine he was to undergo rigorous imprisonment for one year in each case.

2. The appellant was charged on 1st September, 2000 both under section 302 of the Pakistan Penal Code ("PPC") as well as under section 7 of the Act and he pleaded his innocence. The judgment of the learned Special Judge concluded by stating that, "as the accused has been convicted and sentenced under section 7(a) A.T. Act, therefore, the charge under section 302, P.P.C., is dropped."

3. Criminal Appeal No. 245-I of 2002 was preferred by the appellant against the judgment of the learned Special Judge before the Rawalpindi Bench of the Lahore High Court and Murder Reference No.54-T of 2002 was sent for confirmation of death sentence. A learned Divisional Bench of the High Court dismissed the said appeal, but converted the fine that had been imposed to compensation payable to the legal heirs of the deceased in terms of section 544-A of the Code of Criminal Procedure ("the Code") and in default of payment thereof the appellant was to undergo simple imprisonment for six months. Since the appeal was dismissed the Murder Reference No. 54-T of 2002 was confirmed.

4. Sardar Muhammad Ishaq Khan and Mr. Ahmed Raza Qasuri, the learned counsel for the appellant, did not address us on merits of the case and restricted their submissions with regard to the sentence and contended that it was not a case that merited the imposition of the death sentence, but instead imprisonment for life would have sufficed; they contended, that:--

(a) The appellant's request for appointment of advocates identified by him was not conceded, consequently, none of the prosecution witnesses were cross-examined;

(b) The offence for which the appellant was convicted occurred on 10th January 1994, i.e. before the promulgation of the Act, and as such he could not have been convicted for an offence under section 7(a) of the Act and at best could have been convicted under section 302, P.P.C., however, the trial court had dropped the charge under section 302, P.P.C.;

(c) The appellant has been in the death cell for over seventeen and a half years and has already served out what could have been an imprisonment for life, therefore, he cannot now be hanged as that would be tantamount to imposing upon him two sentences, i.e. imprisonment for life and death, and in this regard relied upon Hassan v. State (PLD 2013 SC 793), Crown v. Habibullah (PLD 1952 Lahore 587) and Rule 140 of the Pakistan Prison Rules, 1978; and

(d) The appellant had sought to avenge the murder of his family members committed at the hands of the complainant party a few years earlier.

5. Mr. Zubair Ahmed Farooq, the learned Additional Prosecutor General, Punjab and Mr. Zulfiqar Ahmed Bhutta, the learned counsel for the complainant, opposed the appeal and stated that no ground, let alone a sufficient ground, has been shown for this court to exercise discretion in favour of the appellant to convert the death sentence to one of life imprisonment; that the premeditated brutal murder of five persons had been committed; that even if it be accepted that members of the appellant's family had been murdered by the complainant side it did not permit the appellant to take the law into his own hands; number of years had expired since the appellant's family members had been murdered and the guilty assailants had been convicted, therefore, there was no cause to exact any further personal revenge. As regards the contention that the appellant had been convicted under section 7(a) of the Act and that the charge under section 302 of the P.P.C. had been dropped, the learned Additional Prosecutor General stated that it was an error committed by the trial court at the time of pronouncement of judgment and one which can be corrected by this court under section 537 of the Code particularly as no prejudice will be caused to the appellant.

6. That leave to appeal had been granted by this Court vide order dated 26th November, 2014, wherein the points agitated by the learned counsel for the appellant had been noted in paragraph No.2, reproduced hereunder:

"(2) It has inter alia been contended by the learned counsel for the petitioner that at the commencement of the trial the petitioner had made a request before the learned trial court regarding appointing some specified counsel to represent him but the learned trial court had not obliged him in that regard and the learned Defence Counsel provided to the petitioner by the learned trial court had not been found by the petitioner to be acceptable and, thus, the petitioner had remained unrepresented throughout the trial and the judgment passed by the learned trial court shows that he had also failed to address any argument at the time of final arguments. It has also been pointed out by the learned counsel for the petitioner that none of the prosecution witnesses had been cross-examined by the defence for the above stated reason and even the statement of the petitioner recorded by the learned trial court under section 342, Cr.P.C. had remained unsigned by the petitioner. It has, thus vehemently been maintained by the learned counsel for the petitioner that the petitioner had been gravely prejudiced in his defence before the learned trial court and his trial even otherwise stood vitiated on account of the above mentioned legal and procedural deficiencies. In the alternate the learned counsel for the petitioner has contended that the background of this case was that eight members of the petitioner's family had been murdered by the complainant party a couple of years prior to the present occurrence and, thus, the offences involved in the present case had allegedly been committed by the petitioner while smarting under the said grievance involving loss of eight close members of his family. He has gone on to submit that the petitioner has already spent about 19-1/2 years in jail out of which about twelve years have been spent by him in death-cell and, thus, by virtue of the law declared by this Court in the cases of Dilawar Hussain v. The State (2013 SCMR 1572) and Hassan and others v. The State and others (PLD 2013 SC 793), as interpreted by this Court today in the case of Khalid Iqbal, etc. (Criminal Review Petition No. 76 of 2008), the sentences of death passed against the petitioner need to be reduced to imprisonment for life on all the counts of the charge as the petitioner has already undergone a legal sentence of imprisonment for life. It has further been argued by the learned counsel for the petitioner that at the time of commission of the alleged offences the Anti- Terrorism Act, 1997 was not in existence and, thus, by virtue of the provision of section 38 of the said Act although the case against the petitioner could have been tried by an Anti-Terrorism Court yet the conviction and sentence of the petitioner could only have been recorded for an offence under section 302(b), P.P.C. and not for an offence under section 7(a) of the Anti-Terrorism Act, 1997. It has lastly been maintained by the learned counsel for the petitioner that the case in hand was a case of a private revenge and, thus, the provisions of the Anti-Terrorism Act, 1997 were even otherwise not attracted to the case in hand and in this regard he has placed reliance upon the cases of Basharat Ali v. Special Judge, Anti-Terrorism Court-II, Gujranwala (PLD 2004 Lahore 199), Mohabbat Ali and another v. The State and another (2007 SCMR 142), Tariq Mahmood v. The State and others (2008 SCMR 1631), Fazal Dad v. Col. (Rtd.) Ghulam Muhammad Malik and others (PLD 2007 SC 571), Bashir Ahmed v. Muhammad Siddique and others (PLD 2009 SC 11) and Ahmed Jan v. Nasrullah and others (2012 SCMR 59)."

7. The record shows that the trial Court had appointed an advocate to represent the appellant, but the appellant did not permit him to cross-examine any of the prosecution witnesses. The appellant also did not avail of the opportunity to cross-examine the prosecution witnesses himself despite being provided such opportunity. The appellant instead insisted that the State appoint any of the following advocates as his defence counsel, namely, Sardar Muhammad Ishaq Khan, Dr. Babar Awan, Chaudhry Muhammad Iqbal, Mr. Ahmed Raza Kasuri, Mr. Rafiq Bajwa, Mr. M. D. Zaman, Khawaja Sultan Ahmed, Dr. Khalid Ranjha or Mr. Abdul Latif Khan Khosa as he did not have sufficient funds to engage them. The trial Court had also offered the appellant a choice of any one of the counsel who were available, but regrettably to no avail. In this regard the order dated 9th April, 2002 of the trial Court is revelatory:

8. That Article 10(1) of the Constitution of the Islamic Republic of Pakistan ("the Constitution") stipulates that an accused shall not, "be denied the right to consult and be defended by a legal practitioner of his choice", but it does not stipulate that, if the accused cannot afford the service of such legal practitioner, the public or State shall bear the professional fee of such legal practitioner. The trial court had provided the appellant the services of a counsel, and had further indulged him by offering him the services of any of the other available counsel if he had any reservations with the counsel appointed for the appellant, but the appellant remained obdurate.

9. The appellant was also provided an opportunity to cross-examine each and every prosecution witness, but he consciously elected not to do so. The appellant's statement under section 342 of the Code was recorded and he affirmed that he understood the prosecution evidence which had been recorded in his presence. In response to a question as to why the prosecution witnesses had deposed against him, the appellant alleged that it was due to enmity. The appellant declined the offer to produce evidence in his defence and also elected not to make a statement on oath under section 340(2) of the Code. The following certification of the learned trial judge followed the recording of the section 342 statement of the appellant:--

"That the statement of accused was recorded in my presence and hearing. It was recorded in English and the accused do [sic] not understand English, therefore, it was interpreted in Urdu understandable to accused. After the statement under section 342, Cr.P.C., he has refused to sign his statement."

10. Under such circumstances it cannot be stated that the appellant was not provided a fair trial or his right to a fair trial was in any manner vitiated. Article 10A of the Constitution (inserted into Constitution by the Eighteenth Amendment Act, 2010) enshrines the right, "to a fair trial and due process", however this does not mean that an intransigent accused can be allowed to hold the criminal adjudication system hostage or create irregularities in the trial with a view to earn a future benefit. If this be permitted then every accused will either not engage a counsel or not permit the counsel appointed by the State to do his job and disrupt the trial with a view to induce an irregularity to gain a subsequent benefit. We have noted that the learned trial judge took abundant care to safeguard the interest of the accused at every juncture, but the appellant remained adamant.

11. We now attend to whether the appellant had made out a case for commuting his sentence of death to one for life imprisonment. In the cited case of Hassan v. State this court had reduced the sentence of death to one of imprisonment for life, "on account of the mitigating circumstances oozing out of the facts and circumstances of the case and also on account of the principle of expectancy of life" (from para-graph 24 at page 827, emphasis added). The mitigating circumstances in the said case were that the complainant party had itself gone to the place of occurrence where the accused party was present, there was no premeditation on the part of the accused party and both sides resorted to firing, consequently, it was held that:--

"...it would be unsafe for conclusively holding that the appellants had committed the murders in issue with a predetermined mind and design. This aspect of the case, in its peculiar background, may call for withholding the extreme sentence of death. The learned counsel for the appellants is quite right in pointing out that Hassan and Sikandar appellants had not caused any injury to one of the murdered persons namely Ghulam Haider and, thus, awarding them a sentence of death even on that count of the charge of murder appears to be rather excessive. It is also true that despite having an ample opportunity to cause more injuries to the complainant party by keeping on firing at it both the appellants namely Hassan and Sikandar had fired from their firearms only once causing one injury each to their victims. When incessant firing was taking place from both the sides, as is evident from the very large number of crime-empties secured from the place of occurrence, the said appellants could have fired more shots causing injuries to more persons of the opposite party but no such allegation had been levelled against them by the prosecution. This aspect of the case may also furnish some justification for reducing their sentences of death to those of imprisonment for life." (page 813)

In a subsequent case decided by a five Member Bench of this Court Khalid Iqbal v. Mirza Khan (PLD 2015 SC 50), it was held, as under:-- "a convict/condemned prisoner can be extended concession of lesser sentence from death to life imprisonment, if he has been incarcerated for a period equal to or more than a life imprisonment on account of principles of expectancy of life, treating it as one of the factors towards mitigating circumstances. However, it is completely misconceived that every convict or condemn prisoner, who was sentenced to death or life imprisonment and had served full term of imprisonment for life during the pendency of his legal remedies against his conviction, cannot be awarded death penalty, if other factors so warrant." [emphasis added]

12. The appellant committed the coldblooded premeditated murder of five persons and unfortunately there is no mitigating circumstance or factor that could persuade us to convert the sentence of death to one of imprisonment for life.

13. We now proceed to consider whether the trial Court committed an error or material irregularity in convicting the appellant under section 7(a) of the Act, and in dropping the charge under section 302 of the P.P.C. at the time of pronouncement of judgment and the consequences thereof. It would be appropriate to reproduce both the said legal provisions:--

"7. Punishment for acts of terrorism.

(1) Whoever commits an act of terrorism under section 6, whereby-

(a) death of any person is caused, shall be punishable, on conviction, with death or with imprisonment for life, and with fine;"

"302 Punishment of qatl-i-amd:

Whoever commits qatl-i-amd shall, subject to the provisions of this Chapter be-

(a) punished with death as qisas;

(b) punished with death or imprisonment for life as ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in Section 304 is not available; or

(c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the injunctions of Islam the punishment of qisas is not applicable:

Provided that nothing in this clause shall apply to the offence of qatl-i-amd if committed in the name or on the pretext of honour and the same shall fall within the ambit of (a) and (b), as the case may be."

Qatl-i-amd is defined in section 300, as under:--

"300 Qatl-i-amd.

Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit qatl-i-amd."

14. Section 7(a) of the Act is attracted when an act of 'terrorism' (defined in section 6) is committed that results in the death of any person, and prescribes a punishment of "death or with imprisonment for life, and with fine". However, the crime in question was committed on 10th January, 1994 (before the operation of the Act commenced) therefore the appellant could not have been convicted under section 7(a) of the Act, section 38 of the Act stipulates that in respect of the offences committed before the commencement of the Act the convicted person, "shall be liable to punishment as authorized by law at the time the offence was committed." Therefore, the trial court could only have punished the appellant under section 302, P.P.C., and not under section 7(a) of the Act. This aspect was also overlooked by the High Court, though it had rightly converted the fine imposed upon the appellant into one of compensation payable to the legal heirs of the deceased under section 544-A of the Code. The question that requires consideration is whether there has been a mistrial on account of the fact that the trial court had convicted the appellant under section 7(a) of the Act, and at the time of the passing of judgment dropped the charge under section 302, P.P.C.

15. The appellant was charged under both the said, provisions, i.e. section 302, P.P.C. and section 7(a) of the Act. The charge which was read out to the appellant and which he understood is reproduced hereunder:--

"FIRSTLY; that on 10-1-1994, at about 11-30 a.m. in the area of P.S. Mandra, you Zafar Iqbal accused, along with your co-accused Muhammad Asif, Mazloom Hussain Shah, Muhammad Pervez and Shahid Iqbal, after committing six murders in the area of P.S. Waris Khan, in case FIR No.22/92, you, in furtherance of your common intention of you all, you committed the intentional murder of Mst. Sahab Nishan, Muhammad Siddique, Abdul Khaliq, Shaukat Mahmood and Ikram Hussain, with Kalashnikov, and thus committed an offence punishable under section 302 of Pakistan Penal Code, which is within the cognizance of this Court.

SECONDLY: That on the same date time, and place, you Zafar Iqbal accused, along with aforesaid co-accused, struck terror in the area by killing five persons and thus you committed an offence punishable under section 7, Anti-Terrorism Act, 1997, which is within the cognizance of this Court.

And I hereby direct that you be tried by this Court on that said charge.

Judge Special Court Anti-Terrorism

Islamabad/Rawalpindi

1-9-2000

Certified that charge has been read over and explained to the accused, who pleaded not guilty and claimed trial. His statement be recorded.

Judge Special Court Anti-Terrorism

Islamabad/Rawalpindi

1-9-2000

Statement of Zafar Iqbal accused, without oath.

Q. Have you heard and understood the charge.

A. Yes.

Q. Do you plead guilty or claim trial.

A. I do not plead guilty and claim trial.

Q. Have you any thing else to say.

A. I am innocent.

Judge Special Court Anti-Terrorism

Islamabad/Rawalpindi

1-9-2000"

16. The appellant knew what he was being charged for and was also charged under both the said provisions of law. The learned judge, however, committed an error in dropping the charge under section 302, P.P.C. at the time of pronouncement of judgment and in convicting the appellant under section 7(a) of the Act as at the relevant time the Act had not been promulgated. Section 38 specifically provides for punishment, "as authorized by law at the time the offence was committed", which would mean that the appellant could only be punished under section 302, P.P.C. The question that requires consideration is whether as a consequence of the said error the trial was vitiated or was materially defective. Section 537 of the Code enables correction of errors and omission. The said section is reproduced hereunder:--

"537. Finding or sentence when reversible by reason of error or omission in charge or other proceedings.

Subject to the provisions hereinbefore contained, no finding, sentence order passed by a court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account-

(a) of any error, omission or irregularity in the complaint, report by police-officer under section 173, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or

(b) of any error, omission or irregularity in the mode of trial, including any misjoinder of charges unless such error omission or irregularity has in fact occasioned a failure of justice.

Explanation. In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."

17. That a sentence can be reversed and altered provided it has occasioned a failure of justice. If the appellant was convicted under section 302(b), P.P.C. it would have left him with a window of opportunity to effect a compromise with the heirs of a deceased, therefore to such extent his conviction under section 7(a) of the Act could be categorized as a failure of justice. Moreover, though not applicable in the present case, a conviction under the Act excludes the earning of remission (section 21F of the Act). Consequently, exercising our powers under section 537 of the Code we alter the conviction of the appellant from section 7(a) to one under section 302(b), P.P.C. as ta'zir, whilst maintaining the compensation of one hundred thousand rupees payable to the heirs of each deceased under section 544-A of the Code and in default thereof to undergo simple imprisonment of six months. With this alteration in sentence the appeal is dismissed.

MWA/Z-3/SC Appeal dismissed.