YAHYA AFRIDI, C.J Abdul Jalal, petitioner , seeks the Constitutional jurisdiction of this Court in challenging the conviction awarded to his son, convict Aziz-ur-Rehman, by the Court Martial, whereby , he was sentenced to death vide order dated 30.03.2016.
2. The brief and essential facts leading to the present petition are that son of the petitioner, convict Aziz-ur- Rehman, being involved in terrorist activities, was charged and tried by a Court Martial ("Military Court") under The Pakistan Army Act, 1952, as amended vide The Pakistan Army (Amendment) Act, 2015 ("The Army Act") , for the following charges; "First Charge.
PAA Section 59 Committing a civil offence, that is to say, using material capable of exploding to destroy property , in that he, at Matta (Swat), on night 29/30 August 2007, alongwith others, used explosives to destroy following 3x Compact Disc Shops and a Barber Shop;; and thereby committed an offence punishable under Section 16 read with Scheduled Of fences (1)(ii) of Protection of Pakistan Act, 2014:- a. Sonic Video Centre owner Noor Muhammad son of Jalandar b. Rani V ideo Centre owner Imran son of Dua Khan c. Pyle V ideo Centre owner Munawar son of Dua Khan d. Barber shop owner Ishaq son of Muhammad Yousaf Second Charge PAA Section 59 Committing a civil offence, that is to say, killing employee of law enforcement agency , in that he near Matta Bazaar , on 15 January 2009, alongwith Civilian Talib Mansoor Khan, killed Police Constable Muhammad Razzaq, by firing with Sub Machine Gun; and thereby committed an offence punishable under section 16 read with Scheduled Of fences (1)(v) of Protection of Pakistan Act, 2014.
Third Charge PAA Section 59 Committing a civil offence, that is to say, possessing explosive, in that he, at Shakardara (Matta), on 05 November 2010, was found in posse ssion of following explosives; and thereby committed an offence punishable under Pakistan Army (Amendment) Act, 2015;
3. To the above charges, the accused pleaded guilty . However , Court Martial did not convict the accused on his plea of guilt, and directed the prosecution to lead its evidence, as provided under Sub-Rule (4) of Rule 42 of The Pakistan Army Act Rules, 1954 ("The Rules") , which reads;- "A plea of "Guilty" shall not be accepted in cases where the accused is liable, if convicted, to be sentenced to death, and where such plea is made, the trial shall proceed and the charge shall be dealt with as if the plea made was "Not guilty".
4. Accordingly , the prosecution in support of its case produced as many as four witnesses, which include Interrogation Officer (PW-2); Interment Officer (PW-3) has produced the internment order; Judicial Magistrate (PW- 4) who recorded the confessional statement of the convict; and an officer (PW-1) before whom the accused recorded his inculpatory voluntary statement at the time of recording summar y of evidence. During the trial proceedings, the prosecution has also produced copy of FIR No.434 dated 29 August 2007 under section 427 PPC, sections 3/4 Explosive Substances Act read with section 7 ATA Police Station Matta Swat, FIR No.8 dated 16 January 2009 under sections 302/148/149 PPC read with section 7 ATA Police Station Matta Swat, both registered against the convict, Death Certificates of deceased Muhammad Razzaq Police Constable, and special situation report supporting the prosecution version.
5. The Military Court also examined the convict, Aziz-ur-Rehman, who once again confessed his guilt, by narrated the entire events of his involvement in terrorist activities, in terms that : "I am a vehicle mechanic and resident of Village Shakardara, Tehsil Matta, District Swat. I had my own vehicle repair shop in Matta Bazaar, where I worked in the year 2006. I had many customers and one out of them was Commander Ikram ud Din alias Samandar of Tehreek-e-Taliban Pakistan Swat, who used to visit my shop regularly for repair of his vehicle. In the beginning, I did not know that he was a renowned Commander of Tehreek-e Taliban Pakistan Swat and I came to know about this fact during a visit to his home in late 2006. During one visit, Commander Ikram ud Din alias Samandar offered me to work for Tehreek-e-Taliban Pakistan Swat and he also offered me payment of handsome money for my work. In the start of December 2006, I decided to join Tehreek-e-Taliban Pakistan Swat and on my decision, Commander Ikram Ud Din alias Samandar instructed me to report to Imam Dheri Markaz of Tehreek-e-Taliban Pakistan Swat. I went to Imam Dheri Markaz of Tehreek-e-Taliban Swat in December 2006 and got two weeks training of handling of Sub Machine Gun and Pistol alongwith that I was introduced with the ideology and agenda of so called implementation of Sharia of Taliban. Misleading teaching of Taliban about Holy Quran and Holy Prophet (PBUH) influenced me so much that at the end of two weeks I decided t work for Tehre ek-e Taliban Pakistan Swat free of cost for enforcement of their agenda.
On termination of my training at Imam Dheri Markaz, I was tasked to drive vehicles of Tehreek-e-Taliban Pakistan Swat in various parts of District Swat in the year 2007 and 2008. In the start, I drove vehicle of lower ranks of Taliban and on observing my expertise, I was deputed as driver of commander of Tehreek- e-Taliban Pakistan Swat. I worked as driver with Commander Ikram ud Din alias Samandar, Commander Iqbal Hussain alias Abu Turab and Commander Ibn-e Amin of Tehreek-e-Taliban Pakistan Swat in the year 2007 and 2008 and drove them in Shangla, Paithom and Mera Ridge areas of Swat.
In the start of August, 2007, for the first time after joining Tehreek-e-Taliban Pakistan Swat, I came to my home in village Shakardara, Tehsil Matta, Swat to meet my family after getting permission from Terrorist Commander Ikram Uddin alias Samandar. On 29 August 2007, I received instructions through a courierth to help terrorists in destruction of Compact Disc Shops in Matta Bazaar, District Swat. I received five terrorists, who were travelling in a White Binjo Car, on 29 August 2007 at 2130 hours and guided them to Ishaq Market. I selected Ishaq Market as it had three Compact Disc Shops located adjacent to each other.
On reaching the Ishaq Market at 2200 hours, they planted the charges around these shops. All five terrorists left the Market at around 2300 hours and told me to detonate the charges at 2330 hours on 29 August 2007. I detonated these charges at around 2330 hours on 29 August 2007, which resulted in the destruction of three Compact Disc Shops along with a co-located barber shop. I heard the news that in this incident all shops were severely damaged and material inside was completely burnt. Later on, I escaped to my home before the arrival of security forces and returned to Shangla to perform my old duty of driving of Taliban commanders.
In October 2008, I came across news of army operation in Swat and this news made me afraid as I was scared of being caught. I asked permission from Terrorist commander Ikram Uddin alias Samandar to go to my home in October 2008. On reaching my home, I went to Karachi and from there I fled to Oman to live with my brother namely Mian Syed Jalal on 13 October 2008. After spending two months in Oman, I felt guilty of leaving my colleagues of Tehreek-e Taliban Pakistan Swat in the time of need and decided to come back to Pakistan. I borrowed money from my brother and told him that I was going to spend some leisure time with my friends and returned to my home in village Shakardara, Tehsil Matta, District Swat in the start of January 2009 by using illegal sea route. On reaching my home, I contacted and informed Commander Ikram Uddin alias Samandar about my arrival in Pakistan and told him that I will join him shortly in Shangla.
Before I could join Terrorist Commander Ikram Uddin alias Samandar in Shangla, I received message from him to help Talib Mansoor Khan in killing of Police Constable Muhammad Razzaq son of Totaya Nosh on 10 January 2009. We both had a meeting on 11 January 2009 at my home and finalized the planning of killing of Police Constable Muhammad Razzaq. During this meeting, Talib Mansoor Khan gave a suggestion of calling Police Constable Muhammad Razzaq to a Rice Grinding Machine with the temptation of providing important information about the impending Taliban attack and we agreed to work on it. Moreover during this meeting of 11 January 2009, Talib Mansoor Khan also gave me tow Hand Grenades, five bullets of 12.7 millimeters and two kilograms of Plastic Explosive for handing over to Terrorists Commander Ikram Uddin alias Samandar. Talib Mansoor Khan contacted Police Constable Muhammad Razzaq came to Rice Grinding machine at 1130 hours, where we were already waiting and on confirming his identity by Talib Mansoor Khan, I personally fired a burst at him from Sub Machine Gun, which was given to me by Talib Mansoor Khan and fled from the scene while leaving him soaked in the blood.
After the killing of Police Constable, I was not able to go to Commander Ikram Uddin alias Samandar to hand him over the Hand Grenades, Explosives and 12.7 mm Bullets due to strict checking by the police and lately due to start of army operation and hid them in a store in my home. On hearing the news of army operation, I waited for instructions from Terrorist Commander Ikram Uddin alias Samandar, but received in instructions and fled to Bajur Agency and remained there till September 2010, I came back to my home in September 2010 and tried to establish my old vehicle repair shop in Matta Bazaar, District Swat till the time I was apprehended by security forces from my home on 5 November 2010. Security Forces during search of my home on my pointation recovered two kilogram of Plastic Explosive, two hand grenades and five bullets of 12.7 mm."
6. Valuable arguments of the worthy counsel for the parties heard and the availab le record of the case thoroughly considered.
7. The worthy counsel for the petitioner raised a preliminary objection that with the flux of time, the impugned conviction by the Military Court had lost its legal force, and thus was a nullity in the eyes of law. The legal contention of the worthy counsel for the petitioner was that the Military Court had sentenced the convict to death under the provisions introduced in the Army Act through the Sun Set legislation , which expired on 7th January , 2017, and thereafter , the sentence of death could not be executed. The worthy counsel placed reliance on Air League's case (2011 SCMR 1254). It was further contended that as the matter was still before this Court and the death sentence had not been executed, it was not a closed and past transaction, so as to rescue the prosecution under section 6 of the General Clauses Act, 1897. In this regard, reliance was placed on Sheikh Liapat Hussain's case (PLD 1999 SC 504), Imran's case (PLD 1996 Lahore 542), Mehram Ali's case (PLD 1998 SC 1445).
8. In response, the worthy Deputy Attorney General vehemently opposed the contention of the worthy counsel for the petitioner by stating that all actions taken, decision passed by the Military Court under the Army Act were protected under section 6 of the General Clauses Act, 1897. In this regard, reliance was placed on Asad Ali's case (PLD 1998 SC 161 ), Mehram Ali's case and Air League' s case supra .
9. This contested legal issue does not require a definite finding of this Court in the instant petition, as during the present proceedings, the Parliament introduced the Constitutional (Twenty Third Amendment) Act, 2017 ("Act of 2017") and the Pakistan Army (Amendment) Act, 2017, whereby the life of the Military Courts was extended for a further period of two years from 07.01.2017. The relevant provision of the Act of 2017 so introduced, reads; "1. Short title and commence.--
(1) This Act may be called the Pakistan Army (Amendment) Act, 2017.
(2) It shall come into force at once and shall be deemed to have taken effect on and from 7 January, 2017.
(3) The provisions of this Act shall remain in force for a period of two years from the date of its commencement and shall cease to form part of the Constitution and shall stand repealed on the expiry of the said period."
10. Accordingly , the preliminary objection of the worthy counsel for the petitioner regarding the conviction being without any lawful authority based on the legal premise that the Sun Set Legislation had lapsed would be of no legal avail to the convict.
11. Now, moving on to the next contentio n of the worthy counsel for the petitioner qua the access to the record of the Military Court leading to the impugned conviction. When confronted, the worthy Deputy Attorney General vehemently contested the same and submitted that by allowing free access of the record and that too in an open Court would be against the law and put the life of the Presiding Officer, witnesses and counsel representing the parties at peril.
12. In this regard, the attention of this Court was drawn to the procedure endorsed, and adopted by the Apex Court, in case titled, "Said Zaman Khan Vs Federation of Pakistan & others" (C.P.No.842 of 2016) wherein, it was held that;- 97.The learned counsels for the petitio ners complained of limited access to the record of the proceedings conducted by the FGCM. We cannot ignore the fact that in view of the peculia r nature of the offences for the commission whereof the Convicts have been accused, it was imperative that efforts should be made to ensure the security and safety of the Members of the FGCM, witnesses produced, the Prosecuting and the Defending Officers and the interpreters. Such sensitivity necessitated by the existing extra-ordinary circumstances has been reflected in Section 2-C of the Pakistan Army Act, incorporated through a subsequent Amending Act dated 19.11.2015. In the instant cases through specific Order passed by this Court, all the learned counsels were permitted to examine the record of the proceedings of the FGCM, which has been made available to this Court. It has also been noticed that at no point of time after the confirmation of the sentence by the FGCM, any application was filed to the Competent Authority for the supply of the copies of the proceedings , if so required, in terms of Rule 130 of the Pakistan Army Act Rules, 1954. Such applications were not even moved during the pendency of the proceedings before the High Courts or even before this Court.
In the circumstances, we are not persuaded that any prejudice has been caused to the petitioners, in this behalf.
(emphasis provided)
13. In view of the definite direction rendered by the Apex Court, this Court decided that the record and the proceedings should not be made open to public, and that the recorded proceedings leading to the impugned conviction should only be provided to the worthy counsel for the petitioner, and that too after due precautions are taken to ensure that the identity of the witnesses, Presiding Officers and the worthy counsel for the parties in theth proceedings challenged before this Court, are not divulged or revealed. As a further precautionary measure, the worthy Deputy Attorney General insisted that the copies of the written notes taken by the worthy counsel for the petitioner during the inspection of the record allowed by this Court be also provided to the prosecuting team. The same being not prejudicial to the defense of the convict was allowed.
14. Accordingly, the worthy Deputy Attorney General alongwith the official custodian of the record were directed to provide to the worthy counsel for petitioner, the recorded trial proceedings at the Judges' Library, Peshawar High Court, Peshawar. And this Court, ensured that the entire record of the Military Court leading to the impugned conviction had been inspected and examined by the worthy counsel for the convict prior to his addressing legal submissions before this Court.
15. Before this Court considers the merits of the valuable submissions of the worthy counsel for the parties, it would be crucial to first determine the contours of judicial review mandated to this constitutional Court in adjudicating the challenge made to the conviction and sentence awarded to a civilian by a Military Court under the Army Act. This jurisdictional issue has been a matter of great deliberation by the superior Courts of our jurisdiction, which culminated in the decision of the apex Court in Said Zaman Khan' s case supra , wherein the worthy Supreme Court held that; "93. It may be noted that the actions complained of can even otherwise be without jurisdiction, a separate and independent ground available to challenge the sentences and convictions of the FGCM, therefore, it must necessarily be examined whether the FGCM had the jurisdiction over the person tried and the offence for which such trial has taken place and to ascertain existence or otherwise of any other defect or a gross illegality in the exercise of jurisdiction denuding the same of validity .
However , we cannot lose sight of the non-obstantive provision {in the Constitution i.e. Article 199(3)} impeding the exercise the powers of Judicial Review by the High Court under Article 199 of the Constitution. Consequently , the boundaries of the available jurisdiction cannot be pushed so as to negate and frustrate the said provision of the Constitution. An exception to the rule barring exercise of jurisdiction cannot be extended so s to defeat and destroy the rule itself. It is by now a well settled proposition of law, as is obvious from the judgments of this Court, referred to and reproduced hereinabove, that the powers of Judicial Review under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, against the sentences and convictions of the FGCM is not legally identical to the powers of an Appellate Court.
The evidence produced cannot be analyzed in detail to displace any reasonable or probable conclusion drawn by the FGCM nor can the High Court venture into the realm of the "merits" of the case. However , the learned High Court can always satisfy itself that it is not a case of no evidence or insuf ficient evidence or the absence of jurisdiction ." (emphasis provided)
16. Keeping the ratio decidendi of the aforementioned judgment as our guiding principle, it would be safe to state that this Court in its constitutional jurisdiction has the legal mandate to positively interfere with the decision of the Military Courts on three fundamental grounds; if the case of the prosecution is based, Firstly, on no evidence, Secondly, insufficient evidence and Thirdly, absence of jurisdiction.
17. Thus, the evidentiary value of the prosecution evidence cannot be adjudged by this Constitutiona l Court as a Court of Appeal and that too on the legal threshold require d for conviction of a person on a capital charge under the ordinary criminal law. What this Court has to see is whether the conviction recorded by the Military Court is based on no or insufficient evidence or absence of jurisdiction .
18. Even if this Court discards the entire evidence of the prosecution witnesses, the statement of the accused before the Judicial Magistrate and Milita ry Court, duly narrated hereinabove, clearly speaks of his admission of guilt of the charges framed against him. Needless to mention, that prior to making his admission of guilt before the Military Court, the convict had on three previous occasions admitted his guilt; Firstly, before the Judicial Magistrate, while recording his statement under section 164 of Criminal Procedure Code, 1898 ("Cr.P.C."), Secondly, during his period of Internment under section 13 of the Actions (In Aid of Civil Power) Regulation, 2011 and Thirdly, during the proceedings of taking summary of evidence under Rule 13 of the Rules.
19. No doubt, the challenge made to the mode, manner and the time of the confessions made by the accused, under the ordinary criminal jurisprudence would seriously diminish the evidentiary value thereof. But in view of the limited scope available to this constitutional Court in evaluating the evidence and the repeated admission of guilt by the accused convict does not warrant interference in the impugned conviction awarded by the Military Court.
20. As far as the contention of the worthy counsel for the petitioner that the convict was not provided legal representation of his free choice, as was his Fundamental Right under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution") and Rules 23, 82, 83 and 87 of the Rules, it is noted that this issue was resolved in Said Zaman Khan's case supra, by Mr.Justice Faisal Arab in his separate note. It was opined;- "The Court in its anxiety to ensure that a crime may not go unpunished must not lose sight of the fact that the family members of the accused must be given information of his arrest or detention. If in the present case had there been no categorical admission of guilt by the convicted persons before the Magistrate, retrial would have been the right course to adopt. " (emphasis provided)
21. Thus, in the face of the bold repeated admission of guilt made by the accused, the impugned conviction and sentence does not warrant to be set aside on this ground alone. Moreover, in this regard, it is on record that when confronted, the convict did not oppose or protest the defending officer appointed to represent him before the Military Court under Rule 23 of the Rules.
22. Similarly, it was also argued by the worthy counsel for the petitioner that the prosecution had not obtained the requisite sanction of the Federal Government and that the appeal of the convict has not been considered and decided by the competent authority. In response, the worthy Deputy Attorney General produced copies of sanction of the Federal Government for trial of accused by Military Court, order of Court of Appeal whereby appeal filed by the convict was rejected and orders of confirmation of sentence and rejection of Mercy Petition by the Chief of Army Staff.
23. During the proceedings of the instant case, the worthy counsel for the petitioner placed on record an affidavit of Muhammad Daud son of Muhammad Razaq, purporting to be the attorney of the legal heirs of deceased Muhammad Razaq, who died in the incident for which Aziz-ur Rehman has been sentenced to death by the Military Court, wherein it was alleged that the legal heirs did not intend to proceed or prosecute the convict for the murder of their predecessor-in interest, Muhammad Razaq.
24. When the worthy Deputy Attorney General was confronted with the above contention, he vehemently opposed the same and emphasized that it could not be entertained by this Constitutional Court and that too at this belated stage.
25. It is an admitted position that Aziz-ur- Rehman has been convicted and sentenced to death essentially for using explosives to cause damage to property and the death of constable Muhammad Razaq.
26. What is crucial to consider is whether the pardon granted to Aziz-ur-Rehman by the legal heirs of Muhammad Razaq, if accepted as legally valid, free from any duress or coercion, would absolve Aziz-ur-Rehman from the impugned conviction and sentence passed by the Military Court.
27. When confronted, the worthy Deputy Attorney General vehemently contended that apart from the charge of causing death to Muhammad Razaq, Aziz-ur-Rehman has been charged and convicted for the offence of causing damage to property by use of explosive. In addition, it was also argued that the said offence, is not only non- compoundable but carries the punishment of death under section 3 of the Explosive Substance Act, 1908 ("Act of 1908") .
28. Keeping in view the striking features of the charges against Aziz-ur-Rehman, let us review the jurisdictional mandate of a Military Court to try a civilian for a civil offence, as provided under section 59 of the Army Act. The said provision reads:- "59.Civil Offences.- (1) Subject to the provisions of sub-section (2), any person subject to this Act who at any place in or beyond Pakistan commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section, shall be liable to be dealt with under this Act, and on conviction, to be punished as follows, that is to say ,-
(a) if the offence is one which would be punishable under any law in force in Pakistan with death or with imprisonment for life, he shall be liable to suffer any punishment assigned for the offence by the aforesaid law or such less punishment as is in this Act mentioned; and
(b) in any other case, he shall be liable to suffer any punishment assigned for the offence by the law in force in Pakistan, or rigorous imprisonment for a term which may extend to five years or such less punishment as is in this Act mentioned.
Provided that, where the offence of which any such person is found guilty is an offence liable to Hadd under any Islamic law, the sentence awarded to him shall be that provided for the offence in that law.
(3) The powers of a Court martial or an officer exercising authority under section 23 to charge and punish any person under this section shall not be affected by reason of the fact that the civil offence with which such person is charged is also an offence against this Act.
(4) Notwithstanding anything contained in this Act or in any other law for the time being in force a person who becomes subject to this Act by reason of his being accused of an offence mentione d in clause (d) of sub section (1) of section 2 shall be liable to be tried or otherwise dealt with under this Act for such offence as if the offence were an offence against this Act and were committed at a time when such person was subject to this Act; and the provisions of this section shall have effect accordingly ." (emphasis provided)
29. The bare reading of clause (a) of sub-section (1) of section 59 ibid clearly reveals that the quantum of sentence that can be awarded by a Military Court cannot go beyond that prescribed for the said offence under the ordinary penal laws enforced in Pakistan. This crucial issue came up before the Apex Court in Brig (Retd) F.B.Ali' s case (PLD 1975 SC 506), wherein the Hon`ble Court explained the limited scope of awarding punishments being restricted to clause (a) and (b) of section 59 of the Army Act. The apex Court opined that; "It is limited to an offence mentioned in clause (d) of sub-section (1) of section 2 of the said Act and its purpose is to make that offence triable under the Army Act as if it was an offence under the said Act and was committed at the time when such person was subject to the said Act. In the case of other civil offences, the provisions of sub-section (1) of section 59 are attracted. This sub section reads as follows;-
(1) Subject to the provisions of sub section (2), any person subject to this Act who at any place in or beyond Pakistan commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section, shall be liable to be dealt with under this Act, and on conviction, to be punished as follows, that is to say ,-
(a) if the offence is one which would be punishable under any law in force in Pakistan with death or with imprisonment for life, he shall be liable to suffer any punishment assigned for the offence by the aforesaid law or such less punishment as is in this Act mentioned; and
(b) in any other case, he shall be liable to suffer any punishment assigned for the offence by the law in force in Pakistan, or rigorous imprisonment for a term which may extend to five years or such less punishment as is in this Act mentioned.
This section seems to provide that if any person who is or has become subject to the Army Act, commits any civil offence, he shall be seemed to be guilty of an offence against the said Act and, if charged therewith, shall be liable to be tried by a Court Martial subject to the limitations mentioned in sub-section (2) and will be punishable as prescribed in clauses (a) and (b)
30. Now, when we canvas the ordinary penal laws relating to explosive and in particular the offence for which the convict was charged in the instant case, our attention was drawn by the prose cution to the provisions of the Explosive Substances Act, 1908 ("Act of 1908") , which reads;- "3.Punishment for causing explosion likely to endanger life or property . Any person who unlawfully and maliciously causes by any explosive substance and explosion of a nature likely to endanger life or to cause serious injury to property shall, whether any injury to person or property has been actually caused or not be punished with death or imprisonment for life." (emphasis provided)
31. Notwithstanding the punishment of death prescribed under section 3 of the Act of 1908, this Constitutional Court cannot lose sight of a more recent legislation relating to terrorism; The Anti Terrorism Act, 1997 ("Act of 1997"). This enactment is aimed to curb terrorism and it specifically provides in section 6 for offences relating to explosives, which reads;- "Section 6 Terrorism.-
(1) In this Act, terrorism means the use or threat of action where;
(a) the action falls with the meaning of sub-section (2), and (b).................................................................... ..
(c)...................................................................................... ..
(2) An action shall fall within the meaning of sub-section (1), if it; (a).................................................................... ..
(b)...................................................................................... ...
(c)....................................................................
(d)................................... ................................................ ..
(e)....................................................................
(ee) Involves use of explosives by any device including bomb blast or having any explosive substance without any lawful justification or having been unlawfully concerned with such explosive .
32. The punishment prescribed for the above act of terrorism relating to explosives under section 6(2)(ee) is provided in section 7 (1) (f f) in terms that;- "the act of terrorism committed falls under section 6(2)(ee), shall be punisha ble with imprisonment which shall not be less than fourteen years but may extend to imprisonment for life." (Emphasis provided)
33. Thus, what we have are two penal provisions prescribing two distinct punishments for the same offence. Faced with such circumstances, it is by now settled principle of safe administration of criminal justice that the accused is to be charged for an offence carrying a lesser punishment. Moreover , this Court has to appreciate the wisdom of the legislature, whereby it, while enacting a law to curb terrorism has expressly provided a lesser punishment for the offence relating to explosive. When faced with these two penal legislations regarding the same offence, the one more recent has to be given precedent and applied.
34. Keeping in view the above legal discourse, the recent move by the legal heirs of the sole deceased for which the convict was charged and the severity of the punishment of death awarded to him for causing death to Muhammad Razaq, this Constitutional Court finds it prudent and in the interest of justice that the said plea of Muhammad Daud, representing the legal heirs of Muhammad Razaq deceased, warrants to be at least considered for determining the quantum of sentence to be awarded. However , this Constitutional Court lacks the legal mandate to do so; the appropriate forum for the same is the Military Court itself. Thus, without passing any finding on the veracity of the affidavit produced by Muhammad Daud, this Court finds that the quantum of sentence awarded to the convict requires to be re-visited by the Military Court.
35. In conclusion, keeping in view the limited scope of judicial review mandated to this Court in the face of the repeated admission of guilt made by the convict, culminating in punishment award ed by the Court Martial, it would not be appropriate for this Court to interfere in the impugned conviction. However , as far as the quantum of sentence is concerned, this Court has serious reservations for awarding death sentence to the convict in view of the affidavit filed by Muhammad Daud son of Muhammad Razaq deceased, also purporting to be the attorney of all his legal heirs.
36. In view of the above deliberation, this Constitutional Court finds that:-
(1) The award of conviction by the Military Court to Aziz-ur-Rehman does not warrant interference by this Constitutional Court as it is not a case of no or insufficient evidence.
(2) The sentence awarded to Aziz-ur-Rehman son of Abdul Jalal, however , warrants interference by this Constitutional Court in view of the changed circumstances of the case owing to the affidavit filed by Muhammad Daud son of Muhammad Razaq deceased.
(3) The sentence of death awarded to Aziz-ur Rehman son of Abdul Jalal and the confirmation thereof passed by the Chief of Army Staff is set aside and the case is remanded back to the Military Court to consider the affidavit filed by Muhammad Daud son of Muhammad Razaq who also purports to be the attorney of all his legal heirs and thereafter proceed in determining the quantum of punishment to be awarded to Aziz-ur-Rehman.
Accordingly , for the reasons stated hereinabove, this writ petition is disposed of, in the above terms.