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
>>>>>>>…<<<<<<<<
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
Judge
ARBROHI