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October 12, 2019

Definition of terrorism: Convict can’t be released on basis of reconciliation, says SC

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October 12, 2019

ISLAMABAD: A seven-member larger bench of the Supreme Court on Friday announced its judgment on the definition of terrorism and what cases could be tried in the Anti-Terrorism Courts (ATCs) under the Anti-Terrorism Act (ATA) 1997.

Authored by the Chief Justice of Pakistan Justice Asif Saeed Khosa, the judgment decreed that the release of a perpetrator on the basis of reconciliation was irreconcilable.

It declared that in an appropriate case, keeping in view the peculiar circumstances of the case, compounding of a coordinate compoundable offence may be considered by a court towards reduction of the sentence, within the permissible limits, passed for commission of a non-compoundable offence.

“In a terrorism case, a reduction in the sentence will not be automatically reduced after reconciliation between the parties,” it added. The apex court ruled that it would be the court’s discretion to consider reducing the offender’s sentence. The crime of terrorism is different from other crimes. The apex court further remarked that the trial court will consider reduction of the sentence after reconciliation in the terror case.

Constituted in April to settle the issue, the bench had reserved the judgment after discussing the ramifications of Anti-Terrorism Act (ATA) 1997 and “ambiguities” in the law making its implementation problematic.

The court had also deliberated on whether a settlement between the parties in a ‘terrorism’ case was admissible before the court. The verdict noted that the offence of ‘terrorism’ defined in Section 6 and punishable under Section 7 of the Anti-Terrorism Act, 1997 was not a compoundable offence but in many cases the offence of terrorism was committed simultaneously with commission of some other offence and such other coordinate offence may sometimes be a compoundable offence.

“The effect of compounding of such coordinate compoundable offence upon the non-compoundable offence of terrorism or some other non-compoundable offence is a question, which has been referred to the present Larger Bench for resolution,” says the verdict.

The court briefly narrated the circumstances in which the said question in some of the appeals and petitions, including Moinuddin and another V the State and others.

Similarly, the court answered the following questions;

(i) Can a non-compoundable offence be treated as a compoundable offence for the purpose of recording an acquittal in respect of that offence if a coordinate compoundable offence committed in the same case has been compounded by the relevant parties?

(ii) Can the sentence passed in a non-compoundable offence be reduced on the ground that a coordinate compoundable offence committed in the same case has been compounded by the relevant parties?

The court held that it had already been clarified in many a case that the non-compoundable offence of terrorism is an offence distinct and independent from any other coordinate offence also committed in the same case including the offences under sections 302, 365-A, 396 and 460, PPC, etc. and a reference in this respect may be made to the cases of Muhammad Amin v The State (2002 SCMR 1017), Muhammad Ali and others v The State and others (PLD 2004 Lahore 554), Muhammad Rawab v The State (2004 SCMR 1170), Muhammad Akhtar alias Hussain v The State (PLD 2007 SC 447) and Kareem Nawaz Khan v The State through PGP and another (2016 SCMR 291).

“It is hereby held that an offence which the law declares to be non-compoundable remains non-compoundable even if in a coordinate compoundable offence a compounding takes place between the relevant parties and, therefore, despite any compounding of the coordinate compoundable offence an acquittal cannot be recorded in the non-compoundable offence on that sole basis,” says the verdict.

The court declared that consideration of this factor vis-à-vis reduction of the sentence passed for commission of the non-compoundable offence lies within the discretion of the court and cannot be treated as automatic or as a matter of course.

The court clarified that in case of compounding of a coordinate compoundable offence reduction of a sentence passed or to be passed for commission of a non-compoundable offence may be considered on that ground by the following courts at the following stages of the case:

(i) by the trial court at the time of passing the sentence at the end of the trial; or

(ii) if compounding of the coordinate compoundable offence takes place at the appellate or revisional stage before a High Court or before this Court at the stage of petition for leave to appeal or appeal or review petition then a prayer for reduction of the sentence passed for commission of the non-compoundable offence may be made on that ground before the Court seized of the pending matter; or

(iii) if this Court has already passed a final order or judgment in a petition for leave to appeal or an appeal and no review petition has been filed so far then reduction of the sentence passed for the non-compoundable offence may be sought on the ground of compounding of the coordinate compoundable offence through filing of a review petition before this Court; or

(iv) if the remedy of filing of a review petition before this Court has already been exhausted then, there being no scope for filing of a second or subsequent review petition before this Court and a party to a case or anyone else interested in the matter being in no position to seek revisiting of an earlier order or judgment of this Court, the only remedy left for seeking reduction of the sentence passed for commission of a non-compoundable offence on the ground of compounding of a coordinate compoundable offence is to file a Mercy Petition before the worthy President of Pakistan who may, in his discretion, consider this aspect in the light of the judgments passed by this Court on the subject from time to time; or

(v) if the remedy of a Mercy Petition before the President has already been exhausted before compounding of the coordinate compoundable offence has taken place then after acceptance of the compromise by the competent court in respect of the coordinate compoundable offence the Superintendent of the relevant Jail shall, upon an initiative of the convicted prisoner, forward a fresh Mercy Petition to the President on behalf of that convicted prisoner seeking fresh consideration of the matter by him in respect of the sentence passed against the convicted prisoner for commission of the non-compoundable offence in the light of compounding of the coordinate compoundable offence committed by him.

“When seized of such a fresh Mercy Petition the President may, in his discretion, consider the matter of the convicted prisoner’s sentence passed for commission of the non-compoundable offence afresh in the light of the judgments passed by this Court on the subject from time to time”, the court held and directed its office to fix the appeals and petitions for hearing before its appropriate benches for their decision in terms of the legal position declared through the present judgment.