Through the instant constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have made the following prayer:- "It is, therefore, respectfully prayed that-the writ petition may please be accepted while setting aside the impugned order dated 27.03.2010 passed by Judge Special Court, Anti-Terrorism Court, Sargodha, and compromise be accepted and petitioners be acquitted from the charge, in the interest of justice being unlawful, unjust and without applying the judicial mind.
Any other relief, which this honourable court may deem fit and proper in the circumstances of the case, may also be granted to the petitioner."
2. Facts of the case succinctly required for determination of the petition in hand are that the petitioners were booked in case FIR No.73/1997, dated 06.12.1997, offence under sections 10/11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, Police Station Chakralla, District Mianwali. During the course of investigation they were found guilty as such their names were placed in column No.3 of the report prepared under section 173, Cr.P.C. Submitted before the learned Special Court constituted under the Anti-Terrorism Act, 1997. After submission of challan, the learned trial court seized the matter in terms of judgment dated 08.08.1998, convicted and sentenced the petitioners as under:- * Under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, sentenced to death. * Under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 sentenced to undergo R. I. For fourteen years with infliction of 30 strips each.
Being aggrieved with the conviction and sentence recorded by the learned trial court, the petitioners assailed the judgment through Crl. Appeal No.633/1998 and Crl. Appeal No.898/1998 while the learned trial court forwarded Murder Reference No.185-T/1998 for confirmation of sentence of death or otherwise inflicted upon the petitioners. Learned Division Bench of this Court vide consolidated judgment dated 23.09.1998; dismissed the appeals filed by the petitioners while the Murder Reference No.185-T/1998 ,was answered in the affirmative. Against the judgment of this Court the petitioners filed Crl. Appeal Nos.214 and 215 of 2001 before august Supreme Court of Pakistan and those were also dismissed by the apex Court vide order dated 24.10.2001.
Subsequently, Suo Motu Review Petition No. 2/2002 and Crl. Review Petition No.214/2001 also met the same fate. Record, available on file reveals that subsequently the parties entered into compromise and in this regard. Crl. Misc. No.2748-M/2009 was filed before this Court in which vide order, dated 12.11.2009 report was requisitioned from the learned Sessions Judge, Mianwali, who after recording statements of the complainant, as well as, the victim/prosecutrix, submitted his report, vide letter No.170, dated 04.12.2009, while concluding as under:- "The complainant/victim are adult and sane. No pressure appears to have been exerted upon them and thus their statements are free from duress and the compromise claimed to have been arrived at between the parties appears to be genuine;"
Subsequently, on 13.01.2010 learned Division Bench of this Court disposed off the petition while holding that:- "2. When confronted with the provisions of section 338-E, P.P.C. Learned counsel for the petitioners wants to move the learned trial Court at first instance. Order accordingly. If the application seeking permission to compound the offence is moved that will be decided within one month, if possible. The CM stands disposed of."
In pursuance of order by this Court, the petitioners on 26.02.2010 moved an application under section 338-E, P.P.C., before the learned Judge, Anti-Terrorism Court, Sargodha, however, the same was dismissed vide order dated 27.03.2010 against which the instant constitutional petition has been filed. During the course of proceeding, learned Division Bench of this Court vide order dated 03.05.2010 dismissed the instant constitutional petition while observing as under: "4 After hearing learned counsel for the petitioners we are of the view that this Court has become functus officio and the petitioners, if so advised, may move the Hon'ble Apex Court as the final verdict in this case was pronounced by the said Court."
In view of observations recorded by learned Division Bench of this Court, the petitioners filed CPLA No.1169/2010 before august Supreme Court of Pakistan and the apex Court vide order dated 02.08.2011 remanded the case back to this Court while holding that: "5 For the foregoing, the petition is converted into appeal and allowed, the impugned judgment is set aside and case is remanded to High Court. The writ petition filed by the petitioners shall be deemed to be pending before the High Court and shall be decided on merits of the points so agitated before that Court i.e. (i) the petitioners being juvenile whether they are entitled to avail the benefit of notifications referred to above and (ii) whether the petitioners are entitled for lesser punishment instead of capital punishment of death sentence in view of the compromise.
It is expected that the matter shall he heard and decided expeditiously after issuing notice to, the Attorney General for Pakistan and the Advocate General Punjab."
In post remand proceedings the instant petition has been placed before us.
3. Learned counsel for the petitioners contends that at the time of alleged occurrence the petitioners were minors, therefore, their case is covered under the Juvenile Justice System Ordinance, 2000. Contends that, in this regard the petitioners applied for determination of their age at the time of alleged occurrence before the Home Department, Government of the Punjab, and after thorough inquiry by the learned Additional Sessions Judge vide report No.459, dated 14.01.2004, they were declared juvenile. Further contends that in view of presidential order dated 13th December, 2001 issued under Article 45 of the Constitution of Islamic Republic of Pakistan, 1973, the sentence of death inflicted upon the petitioners is not maintainable. It is vehemently argued that the victim/prosecutrix, as well as, complainant/her father, have effected compromise with the petitioners and in this regard in pursuance of order of this Court their statements were recorded by the learned Sessions Judge, Mianwali, who while submitting his report verified the genuineness of the compromise. Adds that while considering all these facts and circumstances, the august Supreme Court of Pakistan has remanded the case for reconsideration of the above points, therefore, the petitioners are entitled to the relief sought for.
4. Learned Assistant Advocate General supports the contentions raised on behalf of the petitioners.
5. Perusal of record available on file reveals that the conviction and sentence inflicted upon the petitioners by-the learned trial court by virtue of judgment dated 08.08.1998 was not only maintained by this Court rather it was upheld by august Supreme Court of Pakistan and even review petition filed in this regard was also dismissed. It was subsequently when the petitioners filed an application under the Juvenile Justice System Ordinance, 2000, and after thorough inquiry they were A declared juvenile by the learned Additional Sessions Judge, Mianwali. An important aspect of the case is that subsequently Crl. Misc. No.2749-M/2009 was filed by the petitioners for compounding the offence in which report was requisitioned from the learned Sessions Judge, Mianwali. The learned court below after recording statements of the victim/prosecutrix, as well as her father/complainant opined that the parties have entered into a genuine compromise. It was in this backdrop, when the august Supreme Court of Pakistan was pleased to direct for determination of the points qua compromise and the quantum of sentence on account of their juvenility.
6. Moreover, during the course of arguments learned counsel for the petitioners referred the contents of Presidential Order dated 13th December, 2001, according to which special remission has been granted to the juveniles in the following terms:- "The death sentence of those condemned prisoners who were juveniles as defined in the Juvenile Justice System Ordinance, 2000 at the time of commission of offence stands commuted to life imprisonment provided that the death sentence has been awarded/under Ta'zir and not Qisas or under other Hadood Laws."
The above presidential order was further supplemented by another letter No.F.S/41/2001-Pres.
Dated 18th June, 2002, issued by the Ministry of Interior; wherein classification of sentence under Ta'zir and sentence under Hadd was clarified and it was elucidated that the Presidential Order shall not apply to the cases where Hadd has been promulgated in case of murder or in case of Hudood and if the sentence is in pursuance of Ta'zir, the convict would be entitled for the relief as mentioned in the Presidential Order.
7. Perusal of record reveals that the petitioners were convicted/sentenced under the provisions of Section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, which read as under:- "10 Zina or zina-bil-jabr. (1)...
(2) ...
(3)
[(4) When zina bil jabar liable to tazir is committed by two or more persons in furtherance of common intention of all each of such person shall be punished with death.] Hence, in all eventualities the case of the petitioner is squarely in the precincts of ordain contained in the letter dated 18th June 2002, issued by Ministry of Interior, Government of Pakistan.
8. This Court is conscious of the fact that there is no concept of compromise, as far as, cases of Zina are concerned particularly when it has been affected at a belated stage but still we are of the view that as the petitioners are entitled for the relief in view of Presidential Order dated 13th December 2001, being juvenile, which is based upon thorough probe made by the learned Additional Sessions Judge, Mianwali, the remissions granted by virtue of Presidential Order are fully applicable; hence we are of the humble view that report of the learned Sessions Judge, Mianwali, regarding compromise between the parties is relevant as it would imprint beneficial effects in the relations between the parties and shall promote peace, tranquility and -harmony, between the families of the petitioners and the complainant who admittedly are residents of the same vicinity.
Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of Muhammad Bashir v. The State (1985 SCM R 81), Lal Din alias Lalu v. The State (1987 SCM R 855), Piran Ditta alias Peero and others v. The State (1988 SCM R 415), Atta Muhammad v. Ghulam Muhammad (1988 SCM R 1592) and Shakeel and 5 others v. The State (PLD 2010 Supreme Court 47).
In the case of Atta Muhammad v. Ghulam Muhammad (1988 SCM R 1592) the august Court has laid down the following principle:- "---S. 302/34---Accused a young person of 17 years of age at time of occurrence and remained in jail for 13 years, out of which he was lodged in death cell for 11 years---Heirs of deceased entered into compromise-Sentence of death substituted with sentence of imprisonment for life in interest of justice."
9. While seeking guidance from the judgments of the Apex Court referred to above, we have been, persuaded to hold that to meet the ends of justice, it would be justified if sentence of death inflicted upon the petitioners is converted into imprisonment for life. Benefit of section 382-B, Cr.P.C.
Is also extended in favour of the petitioners.
10. The instant constitutional petition succeeds in the above terms.