The State Vs Atif Khan

Judgment Sheet

IN THB PESHAWAR HIGH COURT, ABBOTTABAD

BENCH

JUDICIAL DEPARTMENT

Cr.Appeal No. 246-A/202 I

TT]DGMElYT Date ofhearing... ........f4.05.2025.

Appellant (State) By Mr. Shoaib Ali, Assistant Advocate General' Re spondent (Atif Khan) Rt Xl*l{*l jll::1, Advocate

SADIO ALI. J.- State through learned Advocate General Khyber Pakhtunkhwa by way of filing writ petition bearing No.47612016 has challenged the order dated 18.02.2016 passed by learned Judge, Anti-I'errorism Court, Hazara Division Abbottabad, whereby the petition of accused- rcspondent for oompromise u'as allowed, howcver, al a bclatcd stage on the request of learned Additional Advocate General the same was convertcd into a criminal appeal and subsequently d the oflice had been issued direction for necessary entry in the rclevant record on 08.12.2021, hencc, thc writ petition was converted into instant appcal.

2.Ilrief facts, lbrming matrix of thc case, are that the accused-rcspondent (Ati[ Khan) has been convicted under Section 302 (b) PPC read

with Section 7 of the Anti-'terrorism Act, 1997 for committing murder of deceased (Nasim) in the premises of Sessions Court Abbottabad and sentenced to death with a fine of Rs.2,50,000/- or in default to suffer further two (02) years S.I by the learned Judge, Anti-Terrorism Court, Hazara Division, Abbottabad vide judgment dated 31.05.2005. He has also been convicted under Section 324 PPC read with Section 7 of the Anti- Terrorism Act, 1997 for attempting at the life of complainant (Sajjad) and sentenced to two (02) years R.I with a fine of Rs.50,000/- or in default to sul'ler threc (03) months S.I.

Aggrieved of his conviction and sentences. the accused-respondcnt had challenged .,:r, the ibid judgment before this court by way of filing Cr.Appeal No. 6212005, which was dismissed vide judgment dated 14.12.2005. Yet optimistic fbr his acquittal, the accused-respondent c had filed Criminal Petitions No. 37 & 39 of 2006 before the august Supremc Court of Pakistan, which was also dismissed vide judgment dated 26.04.2001. On 21.05.2015 the accused- respondent submitted a misoellaneous criminal

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application for suspension of execution of his death sentence before the leamed District Judge Abbottabad as the learned Judge, Anti-Terrorism Court Abbottabad was on training, and vide order dated 27 .05.2015 his sentence was ordered to be suspended till arrival of the Presiding Judge on 02.06.2015. The learned Judge, Anti-Terrorism Court, Hazara Division, Abbottabad vide order dated 29.06.2015 dismissed the application. The order is reproduced below for ready reference: - "Counsel .fo, the convict/petitioner present. PP for the state alongwith the father of deceased also present. In furtherance of order No.06 dated 19/06/2015 of this court, the record of the case was destroyed during a fire in the record room and hence ,s not available. Asking the counsel it transpires that neither had the issue of jurisdiction of the Anti Terrorism Court .ril was raised or decided by the courts. This court further perused the following judgments:-

1.Nazak Hussain Versus The State PLD 1996 Supreme Court p-l78

2.Shahid Zalizr and 3 others Versus The State PLD 2014 Supreme Court P-

3 Mohammad Nawaz Versus The State PLD 2014 Supreme Court P-383 It ,s gathered from the above that clearly the offences under ATA, 1997 are non compoundable and where a compromise has taken place the courts above have only reduced the sentence. The question whether the offence falls within the definition of Anti Terrorism Act, 1997 or not cannot be decided by the trial court at this stage as it would tantamount to reviewing the iudgmenls of all the courts throughout. Since this issue has yet not been discussed by the superior courts, the petition for compounding the offince ,s herebY dismissed. The warrants of execution shall not be issued until the matter is decided by the superior courts for which the counsel seelcs l0 (ten) days time. File be consigned to record room after its completion."

d 3. Felt aggrieved from the ibid order, the accused-respondents had come to this court by filing Cr.Revision No. 2l-N2015. This court vide order dated 20.01.2016, while sctting aside the impugned order, remanded the case back to learned Judgc, Anti-Terrorism Court, Ifazara Division, Abbottabad with direction to decide the

sarne alresh after application of judicial mind to all aspccts of the case, within a reasonable time, but in no case beyond the period of one month.

A.fter remand, the learned Judge, Anti-Terrorism Court recorded statements of father of the deccased alongwith the elders of the locality and acoeptcd the petition of acoused-respondent on the basis of compromise vide order dated 18.02.2016, hence, the instant appeal by the State through learned Aclvocatc General I(hyber Pakhtunkhwa

4.We have heard arguments of learned Assistant Advocate General and learned counsel appearing on behalf of the aocused-respondent and goue tlrough the record with their able assistance.

5.I'hc learned Assistant Advocate (ieneral v,hiir: rolyinp, ripon the juclgrncnts clelivered by the -/ llon'lrle Suprr:me Court of Pakistan in the case of "lWultutnmad Vs. Ihe Slsle" reported as 2004 SCMR 1170 and in the casc ol "Kareem WtL{&aA_Vs. The_f!@: reportcd as 2019 SCil{R l'l4l argled that oncc a conviction has becn taken place nnder Sections 302 I 324 PI>C rearl .,vith Section 9 (a) (b) of the Anti-'ferrorisnr Act 1997 by thr: learned 1.rial oourt, n'l;ictr attaincci

finality upto the Hon'ble Supreme Court of Pakistan, then the learned trial court was having no jurisdiction to accept the compromise as it has become functus officio. He further contended that offences under Anti-Terrorism Act are non- compoundable, hence, provisions of Section 345 Cr.P.C are not applicable. He lastly argued that this court while remanding the case back to learned trial court has never directed it to accept the compromise rather directed to decide the matter on legal I factual ground, however, thc learned trial court while traveling beyond its jurisdiction has reviewed its own order as well as order of this court and Flon'ble Supreme Court of Pakistan by allowing the miscellaneous application of the accused-respondent, thus, requested for setting aside of the impugned order.

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6.To the contrary, learned counsel dil appearing on behalf of the accused-respondent has placed reliance on the judgment delivered by Flon'ble Supreme Court of Pakistan in the case of "Irfan & another Vs. MuhqM onother" reported as 2016 SCMR 1190 and contended with vehemencc that almost in identical

nature case, where the Hon'ble Supreme Court while maintaining death sentence and dismissing leave to appeal, filed by the accused therein, has undo the death sentence awarded to the accused therein on the ground that separate sentence had not been awarded to them under Section 7 (a) of the ATA rather they were sentenced to death under Sections 302 404 I 34 PPC read with Section 7 (a) of the ATA.

1 There is no cavil to the proposition that offence under Section 7 of the Anti-Terrorism Act, 1997 is non-compoundable but this court has to see that whether separate charge was framed against the accused-respondent and whether he has been convicted and sentenced under the separate head or with any other section of law of the Pakistan Penal Code, 1908? In order to meet the above, we deem it appropriate to reproduce the concluding paragraph of the judgment delivered s$ by the learned trial court, which reads as under: - "In yiew of above, I found accused Atif Khan son of Anwar Khan guilty of offince u/s 302 (b) PPC read with section 7 of the Anti Terrorism Act, 1997 and sentenced him with death

subject to confirmation by Peshawar High Court, Abbottabad Bench and a fine of Rs.2,50,000/- (rupees two lac and fifty thousand only) or in default thereof to undergo two years simple imprisonment. The fine if recovered shall be paid to the legal heirs of the deceased u/s 544-A Cr.P.C. He ,s found guilty of offence u/s 324 PPC read with section 7 of the Anti Terrorism Act, 1997 and sentenced to undergo two years R.I and a fine of Rs.50,000/- 9rupees fi.rty thousand only) or in defoult to suffer 3 months S.I. The amount o.f fine if recovered be given to the complainant. The other co- accused nomely Haji Muhammad Riaz, Moheen Ullah Khan and Arshad Khan are acquitted of the charges levelled against them. The case property be kept intact till the period of appeal or revision. A CertiJied copy of the d judgment under my signature is given to the accused and Public Prosecutor free of cost. File be cosigned to RRG after its completion."

l'he ibid judgment of conviction has attained finality as it remained intact up to the Hon'ble Supreme Court of Pakistan. From the above quoted findings it has become crystal clear

that the accused-respondent was convicted and sentenced not only under Section 7 of the Anti- Terrorism Act, 1997 but also under Section 302

(b)PPC through a joint head of charge framed against him.

8.Careful examination of the judgments, relied upon by learned Assistant Advocate General, divulges that in Muhammad Rowab's case the accused was convicted under Section 365- A PPC read with Section 7 (e) of the Anti- Terrorism Act, 1997 and both the offences were not compoundable, theretbre, the Hon'ble Supreme Court while dismissing thc appeal held as under: -

"There ,s no denying the facl that section 365-A PPC read with Section 7 (e) of the Anti-Terrorism Act, 1997 is not compoundable. The provision as contained in section 345 (7) Cr.P.C d$ have been couched in such a plain and simple language that there is hardly any scope for any inlerpretation except that a non-compoundable offence carutot be made compoundable by this court for the simple reason that no amendment, deletion, insertion of addition could be made by this court

ond it could only be done by the Legislature as this aspect of the matter falls in its exclusive domain of jurisdiction. The provisions as contained in section 345 Cr.P.C cannot be stretched too fo, by including the non-compoundable offence therein under the garb of humanitarian grounds or any other extraneous consideration. The offences committed by the appellant are not of grave and alarming nature but the same are against the society as a whole and cannot be permitted to compound by any individual on any score whatsoever. h may be noted that tabulation of the offences os made under section 345 Cr.P.C, being unambiguous remove all doubts, uncertainty and must be taken as complete and comprehensive guide for compounding the offinces. "

J Similarly, the case of Kareem Nawaz Khan's was also found on different footing as in that case too the accused therein was also separately charged under Section 7 (a) of the Anti- Terrorism Act, 1997 besides Section 302 (b) PPC.

As the accused therein had compromised the matter with legal heirs of deceased, therefore, he

was acquitted under Section 302 (b) PPC, however, his sentence recorded under Section7 (a) of the Anti-Terrorism Act, 1997 was converted into a scntence of imprisonment for life while <;onsidering compromise in the coordinate offence as a valid ground for reduction of sentence of death to imprisonment for life.

9.Now, we would like to discuss lrfan's case, whereupon learned counsel for the accused- respondent has relied upon. In the referred case the accused therein had been charged with both compoundable and non-compoundable offences (like in the instant case) and the learned trial court while recording conviction though has committed gross error in not recording separate conviction and sentence for non-compoundable offence, however, not only the high court but even thc d Hon'ble Supreme Court of Pakistan had maintained death sentence on one count. In the rcfereed casc as well as in the instant casc it was bounden duty of the learned trial court under the provisions of Section 361 (2) & (3) Cr.P.C that after finding the accused guilty of one or more offences, upon recording conviction, separate

sentence was to be recorded but when a specific sentence for a distinct offence was not awarded, it could not be construed that same was impliedly awarded. The Hon'ble Supreme Court of Pakistan while delivering its verdict in the referred case has held as under: -

6.(Jnder the provisions of section 367(2) and (3), Cr.P.C. it is mandatory for the Court that after finding the accused guilty of one or more offinces, upon recording conviction, separate sentence must be clearly awarded to the accused so convicted otherwise il would be illegal being in violation of lhe mandatory provisions cited above. In this case, no separate sentence was awarded to the appellanls under section 7(a), A.T A by the Trial Court or the High Court, as explained above. This legal aspect of vilal importance, conveniently escaped from the notice of the Trial Court and the learned High d$ Court in the second round when the appellants were seeking acquittal on the basis of compromise under section 302(b), P.P.C. alone, because it cannot be construed nor it lJ permissible under the law to hold that lhe appellants were impliedly sentenced to imprisonment for life under section

7(a), A.T.A. as well. The provision of section 367, Cr.P.C. provides that the Court determine first the guilt of the accused and then to pass judgment of conviction where-after the sentence shall follow.

Being inseparable and integral part of conviclion, unless specifically awarded, il cannot be assumed to the prejudice of the accused that he/they were also sentenced under section 7(a), A.T.A. by applying the rule of implication because the law provides the passing of specific sentence for a distinct offince and if it is not awarded, it cannot be construed that same was impliedly awarded as the very judgment to that extent becomes illegal and violative of the mandatory provisions of subsections (2) and (3) of section 367, Cr.P.C.

7.Both the offences under sections 302 and 404, P.P.C. are compoundable and when the State/Prosecution has not d taken any exception to the legal error, so committed by the Trial Court and thereafter by the High Court in the first round of litigation then, at this belated slage, it cannot agitate that the necessary modification be made in the conviction and sentences of the appellants and they be further

convicted and sentenced under section 7(a), A.T.A. as well, because the matter is now past and closed lransaction and cannot be re-opened.

B. Even otherwise, the applicability of section 7(r), A.T.A. was a begging question because the ingredients constituting that offence are missing in the case, however, at this stage, we are not suppose to further discuss this aspect of the matter.

9.We are of the considered view that both the foras below have committed legal eruor by nol accepting the compromise on the ground that the appellants were also charged and convicted by the lrial Court under section 7(a), A.T.A. The learned ASC for the State was unable to controvert this legal position, emerging out of the two judgments, referred to above and when he was asked that what the State would gain if the compromise is refused, when the legal heirs of' the deceased have received a handsome dd compensation amount as Diyat fro* the appellants, he was unable to satisfy the Court in any manner.

10.From the above quoted judgment of the Apex Court it has become crystal clear that the

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learned trial court has rightly acquitted the accused-respondent on the basis of compromise in both the offences as he had been convicted and sentenced under Section 302 (b) PPC read with Section 7 of the Anti-Terrorism Act, 1997 whereas under the provisions of Section 367 (2) and (3) of the Cr.P.C it was mandatory for the learned trial court that after finding the accused guilty of one or more offences, upon recording conviction, separate sentence must be clearly awarded to the accused, so convicted, otherwise it would be illegal being in violation of the mandatory provisions cited above, therefore, at this stage it cannot be agitated that the necessary modification shall be made in the conviction and sentences of the accused-respondent and he be further convicted and sentenced under Section 7 of the J Anti-'ferrorism Act, 1997 as well because, as held by the llon'blc Supreme Court of Pakistan, thc matter is now past and closed transaction and cannot be re-opened

11.From the overall combined discussion this court feels no hesitation to hold that the learned trial court while acquitting thc accuscd-

respondent on the basis of compromise has committed no illegality or irregularity, calling for interference of this court. Resultantly, this appeal, l bcing without any substan<;e, is hereby dismisscd.

Announced

JU d, c

JUDGE

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