2019 P Cr (PLP)

Abdul Karim, accused in a case of homicide was gunned down while appearing in the Court of learned Sessions Judge Rajanpur; Allah Ditta, petitioner herein, assigned fatal shot, was arrested red handed along with weapon of offence. Tried by a learned Judge, Anti-Terrorism Court, Dera Ghazi Khan; he was convicted under section 302(b) of the Pakistan Penal Code, 1860 read with section 7, Anti-Terrorism Act, 1997, henceforth referred to as the Act, and sentenced to death vide judgment dated 1-10-2007; his appeal met with no better fate; death penalty awarded by the learned trial Court was confirmed on 14-09-2011 and leave to appeal declined by the Supreme Court of Pakistan on 27-3-2012. Bracing the gallows, the petitioner managed to successfully persuade the legal heirs of Abdul Karim, deceased to compound the offence; in pursuance whereto, his execution scheduled for 16-12-2015 at 6:30 a.m. was stayed by a learned Division Bench vide order dated 15-12-2015 in W.P. No. 18809 of 2015, with a direction to the learned trial Court to verify the factum of composition, if any. It was in this backdrop, that the learned trial Judge confirmed composition vide report dated 22-12-2015. Through another Constitutional Petition No.9463 of 2016, petitioner sought to approach the learned trial Court for acceptance of compromise, while withdrawing W.P. No.18809 of 2015 and thus, the issue came up before the learned Judge, Anti-Terrorism Court, for acceptance of compromise, the learned trial Judge confirmed the genuineness of compromise, however, declined to bless it with approval on the ground that petitioner's conviction alongside section 7 of the Act stood in impediment to his acquittal, latter charge being non-compoundable.

2. Learned counsel for the petitioner contends that although the petitioner was tried by a Court constituted under the Act, nonetheless, he was not independently indicted under section 7 of the Act and, thus, he could not be burdened with consequences thereof inasmuch as the venue of the crime brought his case before the Anti-Terrorism Court in view of enlistment in the Third Schedule to the Act. The bottom line is that the petitioner was never convicted under section 7 of the Act as the substantive charge was that of homicide alone. Reliance is placed in the case of Irfan and another v. Muhammad Yousaf and another (2016 SCMR 1190). The learned Law Officer has contested the plea, however, not with much enthusiasm.

3. Heard. Record perused.

4. Petitioner was tried by the learned Anti-Terrorism Court for committing murder in a Court Room in the backdrop of a personal vendetta, however, having regard to the venue selected by him, he was indicted for homicide read with section 7 of the Act in view of the Third Schedule to the Act; he was convicted for homicide alone as is evident from trial Court's judgment dated 1-10-2007, upheld by this Court as well as the Supreme Court of Pakistan and, thus, he incurred no penal consequences under the Act so as to reflect upon the possibility of a composition, same view has been taken in the case of Amjad Ali and others v. The State (PLD 2017 SC 661) wherein conviction recorded and sentence consequent thereupon under section 7 of the Act ibid, in the backdrop of an incident, that partly occurred in a mosque, involving loss of three lives, has been set-aside; relevant portion is advantageously reproduced below:- "The last aspect of this case highlighted in the leave granting order is as to whether the courts below were justified in convicting and sentencing the appellants for an offence under section 7(a) of the Anti-Terrorism Act, 1997 or not. We note in that context that a mere firing at one's personal enemy in the backdrop of a private vendetta or design does not ipso facto bring the case within the purview of section 6 of the Anti-Terrorism Act, 1997 so as to brand the action as terrorism. There was no ' design' or 'object' contemplated by section 6 of the Anti-Terrorism Act, 1997 involved in the case in hand. We further note that by virtue of item No.4(ii) of the third Schedule to the Anti-Terrorism Act, 1997 a case becomes triable by an Anti-Terrorism Court if use of firearms or explosives, etc. in a mosque, imambargh, church, temple or any other place of worship is involved in the case. That entry in the Third Schedule only makes such a case triable by an Anti-Terrorism Court but such a case does not ipso facto become a case of terrorism for the purposes of recording convictions and sentences under section 6 read with section 7 of the Anti-Terrorism Act, 1997. The case in hand had, thus, rightly been tried by an Anti-Terrorism Court but the said Court could not have convicted and sentenced the appellants for an offence under section 7(a) of the Anti-Terrorism Act, 1997 as it had separately convicted and sentenced the appellants for the offences of murder, etc committed as ordinary crimes." In view of the law declared in the supra case, we confidently hold that petitioner's conviction could not be impliedly construed to be under section 7 of the Act merely on the basis of forum of trial or joinder of charges under the Act, thus, there was no occasion for the learned Judge, Anti-Terrorism Court, to decline acceptance of request merely on this ground alone, if otherwise, he was satisfied about the genuineness thereof. Consequently, W.P. No. 8414 of 2017 is allowed and impugned order dated 1.6.2017 is set-aside; Petitioner's plea for acceptance of compromise shall be deemed as pending before the learned Judge, Anti-Terrorism Court for decision in accordance with law, after due verification. HBT/A-67/L Petition allowed.