(i) whether compromise in the substantive offence i.e. Section 302(b) is genuine, and
(ii) whether Section 6 of the Anti Terrorism Act punishable under Section 7 thereof was applicable in the instant case.
As far as the first aspect of the case is concerned, there is no denial to this fact that the compromise between the parties has been affected with the intervention of the elders of the locality which fact is reported to be genuine by the learned Sessions Judge while making his report dated 25.11.2020. As far as the interest of the minors is concerned, it is clearly described in the report that Defence Saving Certificates to the tune of Rs.28,00,000/- have been purchased against the name of three minors of the deceased as share of their Diyat, as such the legal formalities of the law are fully adhered to. Hence the law of the land is fully applied as far as the first aspect of the case is concerned. So far as the question as to whether the provisions of Section 6 of the Anti Terrorism Act punishable under Section 7 thereof are applicable in the given circumstances, it is noteworthy that the petitioner had committed the crime due to very specific reason. It is nowhere mentioned that the petitioner is a person of desperate character having any previous antecedents of criminal activities, rather the offence was committed under the impulses of ‘ghairat’. The possibility cannot be ruled out that the petitioner could not afford the insult incurred because of the act of his wife and he has lost control and under the impulses of disgrace and humiliation he opted to commit the crime. The injury caused to the police personnel was not in direct conflict with the law enforcing agencies, rather as Mst. Sidra Nazir was in custody of the police constable the injury caused by him could be result of misdirected shot due to heat of passions. In United Kingdom, the framers of the law enacted an Act called “Homicide Act, 1957” in which they have dealt with such like situation under the ‘dictum’ ‘diminished liability’. It is a legal doctrine that absolves an accused person of part of the liability for his criminal act if he suffers from such abnormality of mind as to substantially impair his responsibility in committing or being a party to an alleged violation, which is committed due to love and affection and injury to reputation. The doctrine of diminished responsibility provides a mitigating defense in cases in which the mental disease or defect is not of such magnitude as to exclude criminal responsibility altogether. It is most frequently asserted in connection with murder cases requiring proof of a particular mental state on the part of the accused. While drawing analogy from said legislation when there is no allegation available on the record that the petitioner intended to cause injury to the police personnel stricto sensu and his only aim was to take the life of his wife under the impulses of ‘ghairat’, the situation has become altogether different. Even otherwise, the learned Trial Court had convicted the petitioner under Sections 337-D & 324 PPC for causing injury on the person of the police personnel and the said injured has also affected a compromise with the petitioner and has forgiven him and has also waived his right to collect Arsh equivalent to 1/3rd of Diyat. In the case reported as Ghulam Hussain Vs. The State (PLD 2020 SC 61), this Court has categorically held that only creating fear or insecurity in the society is not by itself terrorism unless the motive itself is to create fear or insecurity in the society and not when fear or insecurity is just a byproduct, a fallout or an unintended consequence of a private crime and mere shock, horror, dread or disgust created or likely to be created in the society does not transform a private crime into terrorism. In Farooq Ahmed Vs. The State (2020 SCMR 78), the accused had committed murder of a person in the premises of Sessions Court due to previous enmity and was convicted and sentenced under Section 302(b) PPC and Section 7 of the Anti Terrorism Act to death. However, during the pendency of his appeal before this Court, the parties entered into a compromise and this Court while accepting the compromise under Section 302 PPC, set aside the conviction and sentence of the petitioner under Section 7 of the Anti Terrorism Act on the ground that murder was committed due to personal enmity and the petitioner/convict did not want to create fear, insecurity or terror in the society. The same was the case in Dilawar Mehmood Vs. The State (2018 SCMR 593) wherein the murder was committed in a cattle market due to previous enmity and he was convicted and sentenced to death by the Trial Court under Section 302(b) PPC read with Section 7 of the Anti Terrorism Act, which was reduced to imprisonment for life by the High Court. During the pendency of the jail petition filed by the accused before this Court, the parties entered into a compromise and compounded the offence under Section 302(b) PPC. So far as the conviction and sentence of the petitioner under Section 7(a) of the Anti Terrorism Act is concerned, this Court set aside the same on the ground that the occurrence was the result of previous enmity between the parties, therefore, there was no element of terrorism. In view of the facts and circumstances narrated above, we are of the view that the provisions of Section 6 of the Anti Terrorism Act are not attracted in the present case, therefore, the conviction and sentence recorded under Section 7 of the Anti Terrorism Act is set aside. Now that when the parties have compromised the offence under Sections 302(b)/337-D/324 PPC and we have set aside the conviction and sentence under Section 7 of the Anti Terrorism Act, the only punishment left to the petitioner is under Section 353 PPC, which is not compoundable. However, we have been informed that the petitioner has already undergone the period of his sentence of 2 years RI.
CRIMINAL MISCELLANEOUS APPLICATIONS NO. 365-L/2020 AND 96-L/2021 IN/AND JAIL PETITION NO.491 OF 2017
Muhammad Akram vs The State
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