P L D 2007 Supreme Court 447 (PLP)

MIAN SHAKIRULLAH JAN, J.

The petitioner after having been convicted under (a) section 449/34, P.P.C. and sentenced to 10 years' R.I. and fine of Rs.100,000, (b) section 320/34, P.P.C. and sentenced to death and a compensation of Rs.100,000 to be paid to the legal heirs of the deceased, (c) section 10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to death, and (d) section 7 of ATA, 1997 and sentenced to death with a fine of Rs.100,000 by the trial Court, filed an appeal before the High Court but without any success and ultimately approached this Court whereby while maintaining his conviction and sentences as noted above except under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, his petition was dismissed.

2. The petitioner after having been unsuccessful in his attempts to secure his acquittal in the case initiated .making efforts to effect a compromise with the complainant party and in this respect he submitted an application before the trial Court for his acquittal on the basis of the compromise. His this application was dismissed by the trial Court against which a writ petition was fund before the High Court. The case was remanded back by the High Court to the Anti-Terrorism Court (the trial Court) with the direction to give findings with regard to the compromise between the parties. This time the trial Court while allowing the compromise to the extent of charge under section 302(b), P.P.C., acquitted the petitioner from the said charge whereas his application to the extent of conviction and sentence on the charge under section 7 of the ATA, 1997 was dismissed. The petitioner again approached the High Court through a Constitution Petition questioning the legality of the order on the ground that the conviction and sentence of the petitioner under section 7 of the ATA, 1997 is the outcome of the main charge under section 302(b), P.P.C. and since the petitioner has already been acquitted from the said charge he is also entitled to be acquitted from the charge under section 7 of the ATA, 1997. However, his this plea was not accepted by the High Court and his writ petition was dismissed and now the present petition.

3. The learned counsel for the petitioner has vehemently contended, as submitted before the High Court, that after the acquittal of the petitioner under section 302, P.P.C. he was entitled to the acquittal under section 7 of the ATA, 1997 which is the offshoot of the main offence under section 302, P.P.C.

4. We have attended to his this contention. Whatever the nature or status of an offence but for the purposes of the compromise it will be seen as to whether the offence/the section of law for which the compromise is requested is compoundable under the law or not. The offences which are compoundable have been mentioned in section 345(1), Cr.P.C. Since the offence is under section 7 of the ATA, 1997 for which a death penalty has been prescribed does not find its mention in the aforesaid section in the category of the offences which are compoundable, and both the Courts below have rightly disallowed the compromise. In this respect reliance can be placed on the case of Muhammad Rawab v. The State 2004 SCMR 1170. The relevant extract from the judgment in which leave was granted in order to examine, inter alia, the following:-- "2 ..The question whether the Court can permit the parties to compound the offences which are not mentioned in section 345, Cr.P.C. specially when there is a bar under section 345(7) of Cr.P.C. for entertaining a compromise in the offences not mentioned in section 345, Cr.P.C." The Court while dismissing the appeal held:-- "3. ...The pivotal question which needs determination would be as to whether parties can be allowed to compound the offences which are not compoundable by virtue of the provisions as contemplated in section 345, Cr.P.C. specially in view of the specific bar as mentioned in subsection (7) of section 345, Cr.P.C. There is no denying the fact that section 365-A, P.P.C. read with section 7(e) of the Anti-Terrorism Act, 1997 is not compoundable. The provisions as contained in section 345(7), Cr.P.C. have been couched in such a plain and simple language that there is hardly any scope for any interpretation except that a non-compoundable offence cannot be made compoundable by this Court for the simple reasons that no amendment, deletion, insertion or addition could be made by this Court and it could only be done by the Legislature as this aspect of the matter falls in its exclusive domain of jurisdiction. The provisions as contained in section 345, Cr.P.C. cannot be stretched too far by including the non-compoundable offence therein under the garb of humanitarian grounds or any other extraneous consideration. The offences committed by the appellant are not of grave and alarming nature but the same are against the society as a whole and cannot be permitted to compound by any individual on any score whatsoever. It may be noted that tabulation of the offences as made under section 345, Cr.P.C. being unambiguous remove all doubts, uncertainty and must be taken as complete and comprehensive guide for compounding the offences. The judicial consensus seems to be that "The Legislature has laid down in this section the test for determining the classes of offences which concern individuals only as distinguished from those which have reference to the interest of the State and Courts of law cannot go beyond that test and substitute for it one of their own. It is against public policy to compound a non-compoundable offence, keeping in view the state of facts existing on the date of application to compound. No offences shall be compounded except where the provisions of section 345, Cr.P.C. are satisfied as to all matters mentioned in the section." The aforesaid judgment was followed by this Court in another case, Ghulam Farid alias Farida v. The State PLD 2006 SC 53.

5. We have also considered the question of reduction of sentence in view of the compromise arrived at between the parties. Since the matter before us is not in the regular proceeding arising out of the conviction and sentences passed by the trial Court and his appeal before the High Court and then a petition before this Court but after the decision having been rendered by this Court dismissing the petition of the petitioner against the order of his conviction and sentence and while dismissing the petition by this Court, his conviction and sentences under section 302/34, P.P.C. and section 7 of the ATA, 1997 were kept intact. So once the findings have been given on merits by this Court, then it would not be appropriate to enter the merits of the case against to consider the reduction of sentence in an offence which is not compoundable. In this respect the relevant portion of paras. 4 and 5 of the judgment passed in the case of Ghulam Farid (supra) are reproduced hereinbelow:-- "4 There is no cavil to the proposition that the Courts at all levels without any legal impediment, while deciding the criminal cases on merits, in the regular proceedings, can consider the compromise of an offender with the victim or his legal heirs, as a mitigating circumstance for the purpose of question of sentence in a non-compoundable offence but after final disposal of a criminal matter, Courts cannot assume jurisdiction to re-open the case on merits in collateral proceedings arising out of miscellaneous application. The petitioner after losing the case on merits, before the trial Court, the High Court and also before this Court in regular proceedings moved an application to the Court of first instance for his acquittal on the basis of his compromise with the legal heirs of the deceased wherein he also made an alternate prayer of reduction in sentence 5 ..This is settled law that Courts can interpret the provisions of law but cannot change or substitute such provisions and also cannot go beyond the wisdom of law. The contention of the learned counsel that the compromise between the parties at least could be treated a mitigating circumstance for the purpose of lesser punishment, has also no substance. This Court while upholding the judgment of the High Court by virtue of which conviction and sentence awarded to the petitioner by the trial Court was, maintained, has already dismissed the petition for leave to appeal. The present petition has arisen out of the proceedings in a miscellaneous application moved by the petitioner for his acquittal on the basis of his compromise with the legal heirs of the deceased, therefore, in these proceedings, it was not possible for the High Court to re-open the case on merits in exercise of its powers under section 561-A, Cr.P.C., and similarly this Court is not supposed to undertake such an exercise under Article 187 of the Constitution of Islamic Republic of Pakistan and consider the question relating to the quantum of sentence on the basis of compromise between the parties in such a heinous offence which is considered a crime against the Society."

6. The findings of the Courts below by not granting permission to compound the offence under section 7 of the ATA, 1997 are in accordance with law and particularly in view of the bar as contained in subsection (7) of section 345, Cr.P.C. We find no illegality in the orders impugned herein and which does not deserve any interference. Resultantly we see no force in this petition, leave is declined and the petition dismissed. N.H.Q./M-35/S Leave refused.