2017 PLP 376 (YLRN)

MUHAMMAD TARIQ ABBASI, J.

This judgment shall decide the above captioned matters being outcome of single judgment dated 23.7.2011, passed by the learned Judge Anti-Terrorism Court No. 1, Multan, whereby Muhammad Rafique (hereinafter referred to as the 'appellant') was convicted and sentenced in the following terms:- a) Under section 302(b), P.P.C. to death and compensation of Rs.5,00,000/-, payable to the legal heirs of Mst. Gullan Bibi (deceased), failing which to undergo simple imprisonment for six months. b) Under section 7 of the Anti-Terrorism Act, 1997 to death with fine of Rs.5,00,000/-, in default whereof to undergo simple imprisonment for six months.

2. The facts are that case FIR No. 837 dated 21.12.2010 under sections 302, P.P.C. and 7 of the Anti-Terrorism Act, 1997 at Police Station City Arifwala, District Pakpattan was registered against the appellant, with the allegations that he by firing, committed qatl-e-amd of his mother Mst. Gullan Bibi, in the court room of Mr. Saeed Raza, Judicial Magistrate Arifwala, District Pakpattan. On completion of the investigation, the challan against the appellant was submitted in the court of learned Judge Anti-Terrorism Court No.1, Multan, where he was charge sheeted. As the charge was denied by him, hence the prosecution witnesses were summoned and recorded. The prosecution had got examined as many as 11 witnesses, whereas one was recorded as CW. On completion of all the proceedings, the learned Trial Court had passed the impugned judgment in the above mentioned terms. Consequently, the matters in hand.

3. During pendency of the matters, an application (Criminal Misc. 1145-M of 2011) under sections 309/310 read with section 345, Cr.P.C. was moved by the appellant, with the contention that a compromise between him and the legal heirs of the deceased had been arrived at, hence on the basis of the compromise, he may be acquitted of the charge. Regarding the alleged compromise, a report from the learned Trial Court was requisitioned, and accordingly submitted. As per the report, the above named deceased was survived by Mst. Zaiban Bibi (mother), Nazir Ahmad (husband), Ahmad Saeed, Rasheed Ahmed, Shahid Fareed, Muhammad Asad (sons), Mst. Surriya Bibi and Mst. Abida Bibi (daughters). Out of the above mentioned legal heirs, Muhammad Asad was the minor, whereas rest were major. The major legal heirs had got recorded their respective statements, whereby confirmed their compromise with the appellant, without any compensation and no objection on his acquittal. Share in diyat of the minor was determined as Rs.2,03,670/- and his interest was protected by transferring a plot measuring 05 Marla, valuing Rs.2,00,000/- in his favour, through mutation No. 861 dated 23.1.2012 and deposit of the balance amount Rs.4,000/- in his account, opened in Habib Bank Limited. Consequently, it was reported that the compromise was genuine and complete.

4. As stated above, the appellant has been convicted and sentenced for commission of offence under section 302(b), P.P.C. and 7 of the Anti-Terrorism Act, 1997. As per the dictum laid down by the august Supreme Court of Pakistan in cases "Muhammad Rawab v. The State" (2004 SCMR 1170) and "Muhammad Nawaz v. The State" (PLD 2014 Supreme 383), compromise can only be effected regarding the offences mentioned in section 345 Cr.P.C. and none else. Therefore, in the matter in hand, the compromise is permissible and acceptable only to the extent of the offence under section 302(b), P.P.C. Consequently, on the basis of the compromise, the conviction and sentence of the appellant in offence under section 302(b), P.P.C. is set aside and he is acquitted of the charge under the said offence. As regards the above mentioned other offence under section 7 of the Anti-Terrorism Act, 1997, it is stated that in the light of the above mentioned dictum, as the said offence is not compoundable, hence compromise in it could not be permitted and accepted.

5. It has been confirmed on the record that the appellant had committed the offence inside court room, hence under the third Schedule of Anti-Terrorism Act, 1997, the provision of section 7 of the Anti-Terrorism Act, 1997 were fully attracted and as such the appellant was rightly convicted under the above mentioned provision. When from the charge of offence under section 302(b), P.P.C., the appellant has been acquitted as a consequence of compromise, then as per law laid down in cases "Muhammad Nawaz v. The State (PLD 2014 Supreme Court 383)" and "Shahid Zafar and 3 others v. The State (PLD 2014 Supreme Court 809)" he deserves concession in quantum of his sentence for the above mentioned offence of Anti-Terrorism Act, 1997. In the case of Muhammad Nawaz (Supra) the Hon'ble Supreme Court of Pakistan observed as under:-- "

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 sen-tences, 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 .." Furthermore, there is only one life, which has been spared, by accepting compromise in offence under section 302(b), P.P.C., hence it would not be justified to again take the said life for offence under section 7 of Anti-Terroriqm Act, 1997. The said fact in our view is also an extenuating circumstance for lesser penalty to the appellant in the above mentioned offence.

6. Consequently, conviction of the appellant under section 7 of the Anti-Terrorism Act, 1997 is maintained. However, his sentence is altered from death to imprisonment for life. The amount of fine prescribed by the learned Trial Court and imprisonment in case of default in its payment is maintained and upheld. The benefit of Section 382-B Cr.P.C. is provided to the appellant. The Criminal Appeal No. 76/2011 is decided in the above mentioned terms and C.S.R. No. 03/2011 is answered in negative. HBT/M-38/L Order accordingly.