MANZOOR AHMAD MALIK, J.---Jail Petition No, 135 of 2014 and Crl. M.A. No, 75-1, of 2017 and Crl. M.A.
250-L of 2014: For reasons mentioned in the application (Crl. M.A. 250-L of 2014), the same is allowed and delay in filing the jail petition is condoned.
2. Having faced trial in case FIR No, 236 dated 19.09.2007, offence under sections 302/109, P.P.C. and sections 7 and 21(L) of the Anti-Terrorism Act, 1997, registered at Police Station Kundian District Mianwali, the petitioner Dilawar Melunood alias Dulli was convicted/sentenced by the learned trial Court vide its judgment dated 07.12.2010 as under:- "......Consequently accused is convicted, under section 302(b), P.P.C. read with 7 and 21-L of the Anti-Terrorism Act, 1997.
27. hence Dilawar Mahmood alias Dulli 'is sentenced to death penalty by way of Tazir. ....He is ordered to pay compensation under section 544-A, Cr.P.C. Rs, 200000.00 (two lac) to the legal heirs of deceased and in case of non-payment of compensation he will undergo 6 months' S.I.
28. Accused is also sentenced to death with fine of Rs, 100000.00 under section 7(a) of the Anti- Terrorism Act, 1997. In default of payment of fine he will further undergo six months' S.1
29. he is convicted under section 21-L of A.T.A., 1997 and is sentenced 10 years' R.I."
3. The criminal appeal filed by the convict-petitioner was dismissed by the learned High Court.
However, the murder reference was not answered in the affirmative and the sentence of death awarded to the petitioner under two heads was reduced to imprisonment for life each. Benefit of section 382-B, Code of Criminal Procedure was extended to the petitioner. The amount of compensation as well as fine and sentence in default thereof were not disturbed. Thereafter, the petitioner filed the instant jail petition for leave to appeal.
4. During pendency of jail petition, a Criminal Miscellaneous Application (bearing No, 75-L of 2017) was filed by the convict-petitioner on the premise that with the interference of the respectables of the locality, a compromise has been effected between the petitioner and legal heirs of the deceased Muhammad Afzal and that the legal heirs of deceased have pardoned the petitioner in the name of Almighty Allah, therefore, the petitioner may be acquitted of the charge and released.
In this regard, a report was requisitioned from the learned Special Judge, Anti-Terrorism Court, Sargodha qua the genuineness of the compromise. The said report has since been received vide letter dated 22.03.2017, a perusal whereof reveals as under:- As per lists, the deceased was survived by the following legal heirs only as Mst. Hakiman Bibi (mother) and one of the brothers of deceased namely, Muhammad Asghar (complainant of the case) have passed away after the registration of this case:-
(i) Muhammad Yasin (father)
(ii) Muhammad Akram (brother)
(iii)Muhammad Ashraf (brother)
(iv) Balqees Bibi (sister)
(v) Nafeesa Bibi (sister)
(vi) Kousar Parveen (sister)
(vii)Shabnam Iqbal (sister)
(viii)Aasma Naureen (sister)
(ix) Saeed Ahmad (son of deceased's Brother)
(x) Muhammad Ajmal (son of deceased's Brother)
(xi) Muhammad Azam Tariq (son of deceased's Brother)
(xii)M. Asfand Yar (son of deceased's Brother)
All the above mentioned legal heirs of the deceased have been examined by this court, all of whom affirmed the fact of voluntary compromise between the parties with the accused/ convict namely Dilawar alias Dulli in case FIR No, 236, dated 19.09.2007, P.S. Kundian, district Mianwali explaining that they had voluntary pardoned the afore-named accused in the name of Allah Almighty by waiving their respective right of Qisas and Diyat and that now they have no objection on his acquittal from this case. All the legal heirs of the deceased have also furnished their respective affidavits Mark-A to Mark-J before this Court. Two of the sons of deceased's brother Muhammad Asghar (since dead) namely, Akasha Rehman and Muhammad Wajid have been found to be minors, so diyat amount to the extent of their respective shares valuing Rs,5304/- each was ordered to be deposited in the National Saving Centre whereupon the accused party produced their Defence Saving Certificates valuing Rs, 5500/- each bearing Nos, EA117650, GB976199, GB976198 and EA117649 before this Court which were accordingly handed over to their elder brother Saeed Ahmad being their natural guardian and in this regard his separate statement was also recorded by this court wherein he pardoned the aforesaid convict/ accused on behalf of his minor brothers after receiving the amount of Diyat in the shape of their Defence Saving Certificates whereas copies of the said certificates have been annexed with the file of this case. This Court is satisfied with the voluntary nature of the compromise amongst the parties and also that the interest of the minors have also been safeguarded."
5. In view of the report of the learned Special Judge, Anti-Terrorism Court, Sargodha, the learned Law Officer states that he too has no objection if the said compromise is accepted and petitioner is acquitted of the charge under section 302(b), P.P.C. only because provisions of Anti-Terrorism Act, 1997 are not compoundable.
6. During the course of arguments, learned counsel for the petitioner vehemently contended that the learned Courts below have also convicted the petitioner under the provisions of Anti-Terrorism Act, 1997 without adverting to the fact that the said provisions are not attracted in the circumstances of the present case. Therefore, we have undertaken a detailed scrutiny of the evidence available on record in order to see whether the provisions of the Anti-Terrorism Act, 1997 are attracted to the present case or not. The occurrence in this case took place at cattle Market, Kundian. It is alleged by the prosecution that petitioner along with his co-accused Muhammad Arshad (P.O.) armed with Kalashnikovs came at the spot and made straight firing at deceased Muhammad Afzal, as a result whereof the latter succumbed to the injuries. The motive behind the occurrence as stated in the FIR was previous enmity. Having a look at the time of occurrence, place of occurrence, the mode and manner of the occurrence and the alleged motive between the parties coupled with other circumstances, we are of the considered view that provisions of Anti- Terrorism Act, 1997 are not attracted in this case and the learned Courts below have erred in law in convicting/sentencing the petitioner under the said provisions of the Anti-Terrorism Act, 1997.
7.For what has been discussed above, Criminal Miscellaneous Application (bearing No, 75-L of 2017) is accepted and the compromise arrived at between the parties is hereby allowed. The conviction/sentence of the petitioner under section 302(b), P.P.C. is hereby set aside and he is acquitted of the charge to that extent on the basis of the compromise between the parties.
Besides, in view of discussion in Para 6 above, Jail Petition No, 135 of 2014 is converted into an appeal and the same is allowed. The conviction/sentence of the appellant Dilawar Mehmood alias Dulli under section 7(a) and section 21(L) of the Anti-Terrorism Act, 1997 are hereby set aside and he is acquitted of the aforesaid charges as well. He is ordered to be released forthwith if not required to be detained in any other case.
Crl. Petition No, 318-L of 2014
8. Through this petition, the petitioner who is father of deceased Muhammad Afzal seeks enhancement of sentence of respondent No,2 from imprisonment for life to death. None has appeared on behalf of the petitioner, perhaps for the reason that a compromise has already been effected between the parties and the petitioner side has forgiven respondent No,2 in the name of Almighty Allah. It is also evident from perusal of the report submitted by learned Special Judge, Anti-Terrorism Court, Sargodha regarding the aforesaid compromise that petitioner Muhammad Yasin who is father of the deceased Muhammad Afzal and one of the legal heirs appeared before the learned Special Judge, Anti-Terrorism Court, Sargodha and got recorded his statement to the effect that he had voluntarily forgiven respondent No,2 in the name of Almighty Allah. In view of the said compromise, this Court has already acquitted respondent No, 2 Dilawar Mehmood alias Dulli in the connected jail petition as alluded to in Para 7 above and has also set aside his conviction/sentence on merits under the provisions of the Anti-Terrorism Act, 1997. Therefore, the instant petition for enhancement of sentence has lost its relevance which is dismissed accordingly.