ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

C. P No.D- 2872 of 2015

Priority case

1. For hearing of CMA No.8092/2015

2. For hearing of main case

12.02.2019

Mr. Amanullah G. Malik Advocate for the petitioner

Mr. Mehmood Khan Yousufi, DAG

Agha Ather Hussain Pathan, AAG Sindh

Mr. Zulfiqar Ali Jatoi, Additional PG for State

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IRSHAD ALI SHAH, J. The petitioner by way of instant Constitutional petition has sought for the following relief;

(a) To convert the death sentence of the petitioner for offence U/s 7(i)(a) Anti‑Terrorism Act, 1997 for the reasons that the L.Rs of both the deceased have compromised with the petitioner and pardoned him in the name of Almighty Allah so that they maintain good relation with each other. Moreover the offence U/s 7(i)(a) ATA,1997 is State offence and the petitioner at the time of incident did not cause any harm to the security, sovernity and ingredity of the State. Moreover the compromise in murder offence U/s 302(b) PPC has been accepted by the learned trial Court.

(b) To direct the respondents not to issue black warrant for execution of death on petitioner for offence U/s 7(i)(a) ATA,1997 till the final disposal of this petition.

(c) To allow the petitioner to pay the Qisas and Diyat amount of Rs.336673/- of each two minors in installments because the petitioner is very poor person.

(d) To award cost of this petition.

(e) To grant any other relief which this Honourable Court may deem fit and proper under the circumstances of the case.

2. The facts in brief necessary for disposal of instant Constitutional petition are that the petitioner along with co-accused Raza Muhammad alias Adho son of Qalander Bux and Deedar S/o Muhammad Bux were booked and reported upon by the police in FIR Crime No.45/1999 under section 302, 397 PPC r/w Section 7(i) (a) and (b) of Anti-Terrorism Act, 1997 of Police Station Babeloi for having committed murders of Bashir Ahmed S/o Ali Dino Langah and Hyder Bux s/o Muhammad Bux Langah during course of robbery and on conclusion of trial were convicted and sentenced by learned Judge Anti‑Terrorism Court Sukkur to the following effect;

“(i) Death Sentence to appellants Rustam and Raza Muhammad for offence u/s 302(b) R/w Section 34 PPC.

(ii) Imprisonment for life to appellant Deedar for the same offence.

(iii) Three appellants were also directed to pay Rs.1,75,000/- each as Diyat to the legal heirs of both deceased. In case of non-payment of Diyat they shall suffer R.I for two years more.

(iv) The appellants Rustam and Raza Muhammad were further convicted and sentenced to suffer R.I for seven years for an offence u/s 397 PPC.

(v) The appellants Rustam and Raza Muhammad were also convicted and sentenced to death for an offence u/s 7(i)(a) of the Anti-Terrorism Act, 1997.

(vi) The appellant Deedar was also convicted and sentenced for imprisonment for life for an offence U/s 7(i)(a) of the Anti-Terrorism Act, 1997.”

3. The petitioner along with the above named co-accused impugned the conviction and sentence awarded to them by filing Criminal Appeal No.D-18/2002 “re; Rustam and others v. The State” before this Court, it was dismissed on 02.04.2003. The petitioner and above named co-accused then filed Cr. Appeal No.49/2015 “re- Rustam and others v. The State” before Honourable Supreme Court of Pakistan. Honourable Supreme Court of Pakistan while dismissing the appeal of the appellants altered/reduced the death sentence awarded to co-accused Raza Muhammad into imprisonment for life on all counts and maintained the conviction of life imprisonment awarded to accused Deedar vide judgment dated 12.03.2008. The petitioner thereafter filed Suo-moto Review Petition No.03/2015 before Honourable Supreme Court of Pakistan. It was dismissed on 11.05.2015. The petitioner then filed Mercy Petition before President, Islamic Republic of Pakistan, it was dismissed on 06.04.2015. After dismissal of the Mercy Petition when the date was fixed for execution of death sentence upon the petitioner, the legal heirs of the deceased Bashir Ahmed and Hyder Bux pardoned the petitioner. The petitioner then filed C.P No.D- 2681/2015 before this Court, praying therein for stay of the death sentence. It was disposed of on 29.07.2015 directing the petitioner to file proper compromise application before learned Judge Anti-Terrorism Court, Sukkur. It was filed and was disposed of by learned Judge Anti-Terrorism Court, Sukkur, with the following observation;

“This application is allowed to the extent of offence under section 302(b) PPC subject to payment of share of Diyat amount of minors which will be Rs.336673/- (three lac thirty six thousand, six hundred and seventy three rupees) for each minor daughters of the deceased Hyder Bux, which shall be deposited in any profitable saving bank and thereafter accused will be acquitted from charge u/s 302(b) PPC. The Diyat amount will be paid to the minors when they attained the age of majority. The application for acquittal for offence u/s 7(i)(a) ATA,1997 and 397 PPC is dismissed as these offences are not compoundable and permission to compound the said offences was already rejected.”

4. Order so passed by learned Judge Anti-Terrorism Court, Sukkur on compromise application apparently has not been challenged by the petitioner before any Court, instead the petitioner has filed instant Constitutional petition for the relief which is detailed above.

5. It is contended by learned counsel for the petitioner that the offence was not falling within the ambit of terrorism, the petitioner now has compounded the offence with the legal heirs of the deceased; therefore, this Court in exercise of its constitutional jurisdiction could order release of the petitioner by directing him to pay the Diyat money to the legal heirs of the deceased.

6. Learned DAG, AAG and Additional PG have sought for dismissal of the instant petition by contending that this Court cannot go beyond the findings which have already been arrived at by Honourable Apex Court.

7. We have considered the above arguments and perused the record.

8. Admittedly, the conviction and sentence awarded to the petitioner have attained finality upto the stage of Honourable Apex Court. The order passed by learned trial Court on the compromise application has not been impugned by the petitioner in accordance with law. The offence punishable u/s 7(i) (a) of Anti-Terrorism Act, 1997 is not compoundable. Apparently, this Court could neither convert the death sentence into imprisonment for life nor could order for release of the petitioner by directing him to pay the “Diyat” money to the legal heirs of the deceased in exercise of its Constitutional jurisdiction.

9. In view of above, the instant Constitutional petition is dismissed with listed application.

Judge

ARBROHI