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Petitioner: Moinuddin, etc VS Respondent: The State, etc
Court Name: Supreme Court of Pakistan Judge(s):Ijaz-ul-Ahsan, Mushir Alam, Asif Saeed Khan Khosa, Syed Mansoor Ali Shah,
Manzoor Ahmad Malik, Sardar Tariq Masood, Mazhar Alam Khan Miankhel Title: Moinuddin, etc vs The State, etc Case No.:(1) Civil Appeal No. 1772 of 2008 and Civil Miscellaneous Application No. 1990 of 2015 (2) Civil Petition No. 1708 of 2011 (3) Civil Appeal No. 253 of 2015 Date of Judgment:2019-10-11 Reported As:PLD 2019 Supreme Court 749, PLJ 2020 SC 174, 2020 PSC (Crl.) 317, 2019 SCP 338 Result: N/A Judgment Asif Saeed Khan Khosa, CJ.: The offence of 'terrorism' defined in section 6 and punishable under section 7 of the Anti-T errorism Act, 1997 is not a compoundable offence but in many cases the offence of terrorism is committed simultaneously with commission of some other offence and such other coordinat e offence may sometimes be a compoundable offence. The effect of compounding of such coordinate compoundable offence upon the non- compoundable offence of terrorism or some other non-compoundable offence is a question which has been referred to the present Larger Bench for resolution. The circumstances in which this question has arisen in the present cases are briefly narrated as follows: Civil Appeal No. 1772/2008 (Moinuddin and another v The State and others ) The appellants were convicted and sentenced to death under section 302(a), PPC read with section 7 of the Anti- Terrorism Act, 1997 besides having been convicted and sentenced for some other offences. The appellants' appeal was dismissed by the High Court and their appeal before this Court was also dismi ssed. The appellants then filed a Criminal Suo Motu Review Petition before this Court which too was dismissed and their Mercy Petition was subsequently dismissed by the President of Pakistan. Later on the parties entered into a compromise but the same was disallowed by the trial court and the appellants' Constitution Petition against the said order was dismissed by the High Court which order was challenged before this Court and the matter was referred to the present Larger Bench to determine whether a compromise in respect of the offence of murder can be treated as a mitigating circumstance for reducing the sentence of death under section 7 of the Anti-T errorism Act, 1997 to imprisonment for life at such a stage or not. Through an order passed on 22.04.2015 in Civil Miscel laneous Application No. 1990 of
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2015 this Court had suspended execution of the appellants' sentences of death during the pendency of their main appeal. Civil Petition No. 1708 of 201 1 (Abdul Rehman v The State and another ) The petitioner was tried by the Anti-T errorism Court, Sargodha and was convicted and sentenced to death under section 302(b), PPC as well as under section 7 of the Anti-T errorism Act, 1997 besides having been convicted and sentenced for some other offences. The petitioner 's appeal was dismissed by the High Court and his appeal before this Court also met the same fate. There after the petitioner filed Criminal Review Petition 65 of 2010 before this Court which was also dismissed vide order dated 11.11.2010. The petitioner then filed an application before the Anti-T errorism Court, Sargodha seeking permission to compound the offences against him. The said application was rejected by the said court vide order dated 18.02.201 1 which order was upheld by the High Court on 16.08.201 1 and the petitioner has challenged the said order before this Court through this petition. Civil Appeal No. 253 of 2015 (Muhammad Qaiser @ Billa v The learned District & Session Judge/Judge ATC No. 1, Faisalabad and others ) The appellant was tried by the Anti-Terrorism Court, Faisalabad and was convicted and sentenced to death for the offence under section 302(b), PPC as well as for the offence under section 7 of the Anti-Terrorism Act, 1997 besides having been convicted and sentenced for some other offences. The appellant's appeals were dismissed by the High Court and also by this Court and his convictions and sentences were upheld. The appellant then filed a Criminal Suo Motu Review Petition before this Court which was dismissed and his Mercy Petition was also rejected by the President of Pakistan. In a subsequent round the appellant's application for compromise was dismissed by the trial court and the High Court refused to interfere in the same. Leave to appeal was granted by this Court to examine the effect of a compromise in the compoundable offences on the sentence passed under section 7 of the Anti-Terrorism Act, 1997 which offence is non-compoundable. Criminal Petition No. 988 of 2015 (Waryam and another v The State ) The petitioners were tried by the Anti-Terrorism Court, Sukkur and were convicted and sentenced to imprisonment for life for the offence under section 302(b), PPC and also for the offence under section 7 of the Anti-Terrorism Act, 1997 besides having been convicted and sentenced for some other offences. The petitioners' appeal was dismissed by the High Court and their Jail Petition filed before this Court was also dismissed. Subsequently the parties entered into a compromise but the trial court refused to give effect to it and later on a revision petition filed by the petitioners in that regard was dismissed by the High Court which order was assailed by the petitioners before this Court through a Criminal Suo Motu Review Petition which is being treated as the instant petition. Criminal Appeal No. 391 of 2015 (Zafar Hussain and another v The State and others ) The appellants were convicted by the trial court for the offence under section 396, PPC and were sentenced to death and they were also convicted for the offence under section 302(c), PPC and were sentenced to rigorous imprisonment for 10 years and later on their convictions and sentences had been upheld and maintained by the High Court as well as this Court. The appellants then filed Criminal Review Petition 106 of 2015 before this Court which was also dismissed vide order dated 08.09.2015. Subsequently the parties entered into a compromise but the trial court refused to give effect to it and a revision petition filed by the appellants in that regard before the High Court was also dismissed. Leave to appeal was granted by this Court to consider whether the sentences of death awarded to the appellants for the offence under section 396, PPC, which is a non-compoundable offence, could be converted into imprisonment for life in view of the compromise affected between the parties in the coordinate compoundable offence. Criminal Appeal No. 19 of 2018 (Kalay Khan v The State )
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The appellant was convicted by the trial court for the offences under section 302(b), PPC and section 7(a) of the Anti-Terrorism Act, 1997 and was sentenced to death for both the said offences besides having been convicted and sentenced for the offences under section 324, PPC, section 148, PPC and section 7(c) of the Anti-Terrorism Act, 1997. During pendency of the appellant's appeal before the High Court the complainant party entered into a compromise with the appellant leading to his acquittal from the charge under section 302(b), PPC and conversion of his sentence of death under section 7(a) of the Anti-Terrorism Act, 1997 to imprisonment for life. Leave to appeal was granted by this Court to examine the effect of a compromise in connection with a compoundable offence on the conviction and sentence recorded for an offence under the Anti-Terrorism Act, 1997 which offence is non-compoundable. 2. We have heard the learned counsel for the parties and the learned law officers at some length and with their assistance we have attended to the factual and legal issues involved in these cases as well as the precedent cases available on the subject. 3. We find that three questions emerging from the facts of the present cases need to be answered and they are as follows: (i) Can a non-compoundable offence be treated as a compoundable offence for the purpose of recording an acquittal in respect of that offence if a coordinate compoundable offence commit ted in the same case has been compounded by the relevant parties? (ii) Can the sentence passed in a non-compoundable offence be reduced on the ground that a coordinate compoundable offence committed in the same case has been compounded by the relevant parties? (iii) If the answer to question No. (ii) is in the affirmative then at what stage and by which court or forum reduction in the sentence passed in respect of a non-compoundable offence be ordered , if deemed warranted in the circumstances of the case? 4. A careful perusal of different precedent cases decided by this Court shows that the answers to all these questions are already available in such cases but they are in a scattered form and the same need to be consolidated so that the above mentioned questions may be answered with clarity and any confusion in that regard may be removed. The relevant extracts from such precedent cases are reproduced here for facility of reference: Muhammad Rawab v The State (2004 SCMR 1 170) "3. Heard Dr. Babar Awan, learned Advocate Supreme Court on behalf of appellant and learned Advocate- Generals for the State. 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-T errorism 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 reason 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 disting uished from those which have reference to the interests 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 ". (Emphasis provided).
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4. The above judicial consensus is based on the following authorities:-- Dalsukhram Hargovandas v. Charles DeBretton 28 Bom. 326; Meenakshi Sundarammal v. Subramaniam Ayyar AIR 1955 Mad. 369; Akshoy Singh v. Rameshawar Bagdi AIR 1917 Cal. 705; Mt. Rani v. Mt. Jaiwanti AIR 1925 Nag. 395; Crown v. Muhammad Hussain PLD 1950 Lah. 86; Gurunarayan Das and others's case AIR 1948 Pat. 58; Agha Nazarali Sultan Muhammad v. Emperor AIR 1941 Sind 186; Emperor v. Jarnally and others AIR 1925 Lah. 464; Ghulam Rasool v. State 1999 MLD 3085; Muhammad Asif v. State 1991 MLD 1026; Noor Muhammad alias Noora v. State 1992 SCMR 2079; Muhammad Nazir alias Jeera v. State PLD 2001 Lah. 212; Muhammad Anwar v. State 1986 MLD 1111; Nawab-ul -Hassan v. State 2003 SCMR 658 and Yousaf Ali v. State 2002 SCMR 1885." Ghulam Farid alias Farida v The State (PLD 2006 SC 53 ) "5. The offence of dacoity is not compoundable either under pure Islamic Law or under the statutory law of Pakistan, therefore, the contention of the learned counsel that notwithstanding the circumstances under which the murder had taken place, Qatl with no distinction is compoundable in Islam and the bar of statutory law would not be applicable, has no substance. There is concept of right of Afw and Badal-e-Suleh in a case of Qatl-i-Amd, punishable under section 302(a), P.P.C., as Qisas and this right can also be exercised with permission of Court in a case in which punishment of death is awarded as Tazir under section 302(b) but the concept of Afw and Badl-e- Suleh under the existing law has not been made applicable to a case under section 396, P.P.C., in which death is awarded for murder taken place during the course of committing dacoity and thus the Court cannot competently give effect to a compromise in a non-compoundable offence against the policy of law. The petitioner in the present case was awarded sentence of death under section 396, P.P.C. for murder as Tazir which had taken place during the course of committing dacoity and the offence under section 396, P.P.C., being not compoundable, the provision of sections 309 and 310, P.P.C., read with 338(E), P.P.C., could not be made applicable to give effect to a compromise in a non-compoundable offence under the law. In the matter of interpretation and application of provision of Chapter XVI, P.P.C., in respect of the offences mentioned therein or the matters ancillary or akin thereto Court can seek guidance from Holy Quran and Sunnah as provided in section 338(F), P.P.C., but the Court cannot bring a non-compoundable offence within the purview of section 345, Cr.P.C., by virtue of section 338-F, P.P.C., for the purpose of compounding it on the basis of compromise. 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." M. Ashraf Bhatti and others v M. Aasam Butt and others (PLD 2006 SC 182 ) "7. In view of the facts that parties have compromised the matter and compensation has already been received by the complainants therefore, permission is accorded to compound the offence under section 345(2), Cr.P.C. Now we would advert to examine whether in the cases like one in hand where brutal murder of two young boys has been committed when they were confined in judicial lock-up, in a shocking manner which has outraged the public conscience, the convicts are liable for punishment on the principle of Fasad-fil- Arz. The facts of the case and material available on record reveal that petitioners/convicts have committed crime in a brutal manner of the deceased who were confined in lock-up. Therefore, considering them sitting ducks, they took the law in their hands, without caring that police stations or Court premises are considered such places where law protects the life of citizens. Therefore, in exercise of jurisdic tion under section 311, P.P.C. the sentence of death of the two convicts
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namely Naheeb Butt alias Bhutto and Moazzam Butt is reduced from death to life imprisonment under section 302, P.P.C. and under section 7(b) of A.T.A. on both the counts. Similarly sentences awarded to Muhammad Aasam and Shahbaz alias Dodi for imprisonment of life under section 302(b), P.P.C. is reduced to 14 years and sentence awarded to them for life imprisonment under section 7(b) of A.T.A. is kept intact on both the counts with benefit of section 382-B of Cr.P.C., which has already been extended to them by the Lahore High Court. Remaining sentences awarded to them are kept intact. All the sentences shall run concurrently ." Muhammad Akhtar alias Hussain v The State (PLD 2007 SC 447 ) "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 filed 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 acqu ittal under section 7 of the ATA, 1997 which is the of fshoot of the main of fence 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. specia lly when there is a bar under section 345(7) of Cr.P.C. for entertaining a compromise in the of fences 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 reason 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
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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 interests 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 again 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 crimina l 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 proceedi ngs 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…
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