In The Supreme Court of Pakistan: Moinuddin, Etc. Versus The State, Etc

IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Asif Saeed Khan Khosa, CJ
Mr. Justice Mushir Alam
Mr. Justice Manzoor Ahmad Malik
Mr. Justice Sardar Tariq Masood
Mr. Justice Ijaz Ul Ahsan
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Syed Mansoor Ali Shah
Civil Appeal No. 1772 of 2008 and Civil Miscellaneous

Application No. 1990 of 2015
(Against the judgment dated 14.07.2008 passed by the High Court
of Sindh, Karachi in Constitution Petition No. D-1372 of 2008)
Moinuddin, etc.
…Appellants
versus
The State, etc.
…Respondents
Civil Petition No. 1708 of 2011

(Against the judgment dated 09.06.2011 passed by the Lahore
High Court, Lahore in Writ Petition No. 6915 of 2011)
Abdul Rehman
…Petitioner
versus
The State, etc.
…Respondents
Civil Appeal No. 253 of 2015

High Court, Lahore in Writ Petition No. 21957 of 2012)
Muhammad Qaiser alias Billa

…Appellant
versus
The learned District & Sessions Judge/Judge ATC No. 1,
Faisalabad, etc.
…Respondents
Criminal Petition No. 988 of 2015

Civil Appeal No. 1772 of 2008, etc. 2
(Against the judgment dated 29.01.2015 passed by the High Court

of Sindh at Sukkur in Criminal Revision Application No. 40-D of
2014)
Waryam, etc.
…Petitioners
versus
The State
…Respondent
Criminal Appeal No. 391 of 2015

High Court, Multan Bench, Multan in Criminal Revision No. 267 of
2015)
Zafar Hussain, etc.

…Appellants
versus
The State, etc.
…Respondents

High Court, Lahore in Criminal Appeal No. 98-J of 2014, Criminal
Appeal No. 324 of 2014, Criminal Appeal No. 337 of 2014 an
Capital Sentence Reference No. 11-T of 2014)
Kalay Khan
…Appellant
versus
The State
…Respondent
In attendance: Mr. Shahid Azeem, ASC

Mr. Javed Iqbal Raja, ASC
Mr. Burhan Moazam Malik, ASC
Mian Pervaiz Hussain, ASC
Syed Tayyab Mehmood Jaffari, ASC
Mr. Muhammad Ishtiaq Ahmed Raja, ASC
Raja Abdul Ghafoor, AOR
Malik Ghulam Mustafa Kandwal, ASC
Mr. Kamran Murtaza, ASC
Mr. Abid Hussain Saqi, ASC
Mr. Muhammad Sadiq Baloch, ASC
Ch. Munir Sadiq, ASC
Mr. Zulfiqar Khalid Maluka, ASC
Mr. Khadim H. Sandhu, ASC
On Court’s Notice: Mr. Sajid Ilyas Bhatti, Deputy

Attorney-General of Pakistan
Mr. Tariq Mehmood Jehangiri,
Advocate-General, Islamabad
Mr. Ahmed Awais, Advocate-
General, Punjab
Ch. Faisal Farid, Additional
Advocate-General, Punjab
Mr. Ahmed Raza Gillani, Additional
Prosecutor-General, Punjab
Barrister Shabbir Hussain Shah,
Additional Advocate-General, Sindh
Mr. Salim Akhtar, Additional
Prosecutor-General, Sindh
Mr. Zahid Yousaf Qureshi,
Additional Advocate-General,
Khyber Pakhtunkhwa
Syed Baqar Shah, State Counsel,
Balochistan
Mr. Ayaz Khan Swati, Additional
Advocate-General, Balochistan
Date of hearing: 02.04.2019
JUDGMENT
Asif Saeed Khan Khosa, CJ.: The offence of ‘terrorism’

defined in section 6 and punishable under section 7 of the Anti-
Terrorism Act, 1997 is not a compoundable offence but in many
cases the offence of terrorism is 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. The circumstances in which
this question has arisen in the present cases are briefly narrated
as follows:
Civil Appeal No. 1772/2008

(Moinuddin and another v The State and others)
The appellants were convicted and sentenced to death under
section 302(a), PPC read with section 7 of the Anti-Terrorism Act,
1997 besides having been convicted and sentenced for some other
offences. The appellants’ appeal was dismissed by the High Court

and their appeal before this Court was also dismissed. The
appellants then filed a Criminal Suo Motu Review Petition before
this Court which too was dismissed and their Mercy Petition was
subsequently dismissed by the President of Pakistan. Later on the
parties entered into a compromise but the same was disallowed by
the trial court and the appellants’ Constitution Petition against the
said order was dismissed by the High Court which order was
challenged before this Court and the matter was referred to the
present Larger Bench to determine whether a compromise in
respect of the offence of murder can be treated as a mitigating
circumstance for reducing the sentence of death under section 7 of
the Anti-Terrorism Act, 1997 to imprisonment for life at such a
stage or not. Through an order passed on 22.04.2015 in Civil
Miscellaneous Application No. 1990 of 2015 this Court had
suspended execution of the appellants’ sentences of death during
the pendency of their main appeal.
Civil Petition No. 1708 of 2011

(Abdul Rehman v The State and another)
The petitioner was tried by the Anti-Terrorism Court, Sargodha
and was convicted and sentenced to death under section 302(b),
PPC as well as under section 7 of the Anti-Terrorism Act, 1997
besides having been convicted and sentenced for some other
offences. The petitioner’s appeal was dismissed by the High Court
and his appeal before this Court also met the same fate. Thereafter
the petitioner filed Criminal Review Petition 65 of 2010 before this
Court which was also dismissed vide order dated 11.11.2010. The
petitioner then filed an application before the Anti-Terrorism
Court, Sargodha seeking permission to compound the offences
against him. The said application was rejected by the said court
vide order dated 18.02.2011 which order was upheld by the High
Court on 16.08.2011 and the petitioner has challenged the said
order before this Court through this petition.
Civil Appeal No. 253 of 2015

(Muhammad Qaiser @ Billa v The learned District & Session

Judge/Judge ATC No. 1, Faisalabad and others)
The appellant was tried by the Anti-Terrorism Court, Faisalabad
and was convicted and sentenced to death for the offence under
section 302(b), PPC as well as for the offence under section 7 of the
Anti-Terrorism Act, 1997 besides having been convicted and
sentenced for some other offences. The appellant’s appeals were
dismissed by the High Court and also by this Court and his
convictions and sentences were upheld. The appellant then filed a
Criminal Suo Motu Review Petition before this Court which was
dismissed and his Mercy Petition was also rejected by the
President of Pakistan. In a subsequent round the appellant’s
application for compromise was dismissed by the trial court and
the High Court refused to interfere in the same. Leave to appeal
was granted by this Court to examine the effect of a compromise in
the compoundable offences on the sentence passed under section
7 of the Anti-Terrorism Act, 1997 which offence is non-
compoundable.
Criminal Petition No. 988 of 2015

(Waryam and another v The State)
The petitioners were tried by the Anti-Terrorism Court, Sukkur and
were convicted and sentenced to imprisonment for life for the
offence under section 302(b), PPC and also for the offence under
section 7 of the Anti-Terrorism Act, 1997 besides having been
convicted and sentenced for some other offences. The petitioners’
appeal was dismissed by the High Court and their Jail Petition
filed before this Court was also dismissed. Subsequently the
parties entered into a compromise but the trial court refused to
give effect to it and later on a revision petition filed by the
petitioners in that regard was dismissed by the High Court which
order was assailed by the petitioners before this Court through a
Criminal Suo Motu Review Petition which is being treated as the
instant petition.

(Zafar Hussain and another v The State and others)

The appellants were convicted by the trial court for the offence
under section 396, PPC and were sentenced to death and they
were also convicted for the offence under section 302(c), PPC and
were sentenced to rigorous imprisonment for 10 years and later on
their convictions and sentences had been upheld and maintained
by the High Court as well as this Court. The appellants then filed
Criminal Review Petition 106 of 2015 before this Court which was
also dismissed vide order dated 08.09.2015. Subsequently the
parties entered into a compromise but the trial court refused to
give effect to it and a revision petition filed by the appellants in
that regard before the High Court was also dismissed. Leave to
appeal was granted by this Court to consider whether the
sentences of death awarded to the appellants for the offence under
section 396, PPC, which is a non-compoundable offence, could be
converted into imprisonment for life in view of the compromise
affected between the parties in the coordinate compoundable
offence.

(Kalay Khan v The State)
The appellant was convicted by the trial court for the offences
under section 302(b), PPC and section 7(a) of the Anti-Terrorism
Act, 1997 and was sentenced to death for both the said offences
besides having been convicted and sentenced for the offences
under section 324, PPC, section 148, PPC and section 7(c) of the
Anti-Terrorism Act, 1997. During pendency of the appellant’s
appeal before the High Court the complainant party entered into a
compromise with the appellant leading to his acquittal from the
charge under section 302(b), PPC and conversion of his sentence of
death under section 7(a) of the Anti-Terrorism Act, 1997 to
imprisonment for life. Leave to appeal was granted by this Court to
examine the effect of a compromise in connection with a
compoundable offence on the conviction and sentence recorded for
an offence under the Anti-Terrorism Act, 1997 which offence is
non-compoundable.
2. We have heard the learned counsel for the parties and the
learned law officers at some length and with their assistance we
have attended to the factual and legal issues involved in these
cases as well as the precedent cases available on the subject.
3. We find that three questions emerging from the facts of the

present cases need to be answered and they are as follows:
(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?
(iii) If the answer to question No. (ii) is in the

affirmative then at what stage and by which court or
forum reduction in the sentence passed in respect of a
non-compoundable offence be ordered, if deemed
warranted in the circumstances of the case?
4. A careful perusal of different precedent cases decided by this

Court shows that the answers to all these questions are already
available in such cases but they are in a scattered form and the
same need to be consolidated so that the above mentioned
questions may be answered with clarity and any confusion in that
regard may be removed. The relevant extracts from such precedent
cases are reproduced here for facility of reference:
Muhammad Rawab v The State

(2004 SCMR 1170)
“3. Heard Dr. Babar Awan, learned Advocate Supreme Court

on behalf of appellant and learned Advocate-Generals for the
State. The pivotal question which needs determination would be
as to whether parties can be allowed to compound the offences
which are not compoundable by virtue of the provisions as
contemplated in section 345, Cr.P.C. specially in view of the
specific bar as mentioned in subsection (7) of section 345, Cr.P.C.
There is no denying the fact that section 365-A, P.P.C. read with
section 7(e) of the Anti-Terrorism Act, 1997 is not compoundable.
The provisions as contained in section 345(7), Cr.P.C. have been
couched in such a plain and simple language that there is hardly
any scope for any interpretation except that a non-compoundable
offence cannot be made compoundable by this Court for the
simple reason that no amendment, deletion, insertion or addition
could be made by this Court and 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 far 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. It may be noted that tabulation of the offences as
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 offences. The judicial
consensus seems to be that “The Legislature has laid down in this
section the test for determining the classes of offences which
concern individuals only as distinguished from those which have
reference to the interests of the State and Courts of law cannot go
beyond that test and substitute for it one of their own. It is
against public policy to compound a non-compoundable offence,
keeping in view the state of facts existing on the date of
application to compound. No offences shall be compounded
except where the provisions of section 345, Cr.P.C. are satisfied
as to all matters mentioned in the section”. (Emphasis provided).
4. The above judicial consensus is based on the following

authorities:--
Dalsukhram Hargovandas v. Charles DeBretton 28 Bom.

326; Meenakshi Sundarammal v. Subramaniam Ayyar AIR
1955 Mad. 369; Akshoy Singh v. Rameshawar Bagdi AIR
1917 Cal. 705; Mt. Rani v. Mt. Jaiwanti AIR 1925 Nag.
395; Crown v. Muhammad Hussain PLD 1950 Lah. 86;
Gurunarayan Das and others’s case AIR 1948 Pat. 58;
Agha Nazarali Sultan Muhammad v. Emperor AIR 1941
Sind 186; Emperor v. Jarnally and others AIR 1925 Lah.
464; Ghulam Rasool v. State 1999 MLD 3085;
Muhammad Asif v. State 1991 MLD 1026; Noor
Muhammad alias Noora v. State 1992 SCMR 2079;
Muhammad Nazir alias Jeera v. State PLD 2001 Lah. 212;
Muhammad Anwar v. State 1986 MLD 1111; Nawab-ul-
Hassan v. State 2003 SCMR 658 and Yousaf Ali v. State
2002 SCMR 1885.”
Ghulam Farid alias Farida v The State

(PLD 2006 SC 53)
“5. The offence of dacoity is not compoundable either under

pure Islamic Law or under the statutory law of Pakistan,
therefore, the contention of the learned counsel that
notwithstanding the circumstances under which the murder had
taken place, Qatl with no distinction is compoundable in Islam

and the bar of statutory law would not be applicable, has no
substance. There is concept of right of Afw and Badal-e-Suleh in
a case of Qatl-i-Amd, punishable under section 302(a), P.P.C., as
Qisas and this right can also be exercised with permission of
Court in a case in which punishment of death is awarded as Tazir
under section 302(b) but the concept of Afw and Badl-e-Suleh
under the existing law has not been made applicable to a case
under section 396, P.P.C., in which death is awarded for murder
taken place during the course of committing dacoity and thus the
Court cannot competently give effect to a compromise in a non-
compoundable offence against the policy of law. The petitioner in
the present case was awarded sentence of death under section
396, P.P.C. for murder as Tazir which had taken place during the
course of committing dacoity and the offence under section 396,
P.P.C., being not compoundable, the provision of sections 309
and 310, P.P.C., read with 338(E), P.P.C., could not be made
applicable to give effect to a compromise in a non-compoundable
offence under the law. In the matter of interpretation and
application of provision of Chapter XVI, P.P.C., in respect of the
offences mentioned therein or the matters ancillary or akin
thereto Court can seek guidance from Holy Quran and Sunnah as
provided in section 338(F), P.P.C., but the Court cannot bring a
non-compoundable offence within the purview of section 345,
Cr.P.C., by virtue of section 338-F, P.P.C., for the purpose of
compounding it on the basis of compromise. This is settled law
that Courts can interpret the provisions of law but cannot change
or substitute such provisions and also cannot go beyond the
wisdom of law. The contention of the learned counsel that the
compromise between the parties at least could be treated a
mitigating circumstance for the purpose of lesser punishment,
has also no substance. This Court while upholding the judgment
of the High Court by virtue of which conviction and sentence
awarded to the petitioner by the trial Court was maintained, has
already dismissed the petition for leave to appeal. The present
petition has arisen out of the proceedings in a miscellaneous
application moved by the petitioner for his acquittal on the basis
of his compromise with the legal heirs of the deceased, therefore,
in these proceedings, it was not possible for the High Court to re-
open the case on merits in exercise of its powers under section
561-A, Cr.P.C., and similarly this Court is not supposed to
undertake such an exercise under Article 187 of the Constitution
of Islamic Republic of Pakistan and consider the question relating
to the quantum of sentence on the basis of compromise between
the parties in such a heinous offence which is considered a crime
against the Society.”
M. Ashraf Bhatti and others v M. Aasam Butt and others

(PLD 2006 SC 182)
“7. In view of the facts that parties have compromised the

matter and compensation has already been received by the
complainants therefore, permission is accorded to compound the
offence under section 345(2), Cr.P.C. Now we would advert to
examine whether in the cases like one in hand where brutal
murder of two young boys has been committed when they were
confined in judicial lock-up, in a shocking manner which has
outraged the public conscience, the convicts are liable for
punishment on the principle of Fasad-fil-Arz. The facts of the case
and material available on record reveal that petitioners/convicts
have committed crime in a brutal manner of the deceased who
were confined in lock-up. Therefore, considering them sitting
ducks, they took the law in their hands, without caring that
police stations or Court premises are considered such places
where law protects the life of citizens. Therefore, in exercise of
jurisdiction under section 311, P.P.C. the sentence of death of the

two convicts namely Naheeb Butt alias Bhutto and Moazzam Butt
is reduced from death to life imprisonment under section 302,
P.P.C. and under section 7(b) of A.T.A. on both the counts.
Similarly sentences awarded to Muhammad Aasam and Shahbaz
alias Dodi for imprisonment of life under section 302(b), P.P.C. is
reduced to 14 years and sentence awarded to them for life
imprisonment under section 7(b) of A.T.A. is kept intact on both
the counts with benefit of section 382-B of Cr.P.C., which has
already been extended to them by the Lahore High Court.
Remaining sentences awarded to them are kept intact. All the
sentences shall run concurrently.”
Muhammad Akhtar alias Hussain v The State

(PLD 2007 SC 447)
“2. The petitioner after having been unsuccessful in his

attempts to secure his acquittal in the case initiated making
efforts to effect a compromise with the complainant party and in
this respect he submitted an application before the trial Court for
his acquittal on the basis of the compromise. His this application
was dismissed by the trial Court against which a writ petition was
filed before the High Court. The case was remanded back by the
High Court to the Anti-Terrorism Court (the trial Court) with the
direction to give findings with regard to the compromise between
the parties. This time the trial Court while allowing the
compromise to the extent of charge under section 302(b), P.P.C.,
acquitted the petitioner from the said charge whereas his
application to the extent of conviction and sentence on the charge
under section 7 of the ATA, 1997 was dismissed. The petitioner
again approached the High Court through a Constitution Petition
questioning the legality of the order on the ground that the
conviction and sentence of the petitioner under section 7 of the
ATA, 1997 is the outcome of the main charge under section
302(b), P.P.C. and since the petitioner has already been acquitted
from the said charge he is also entitled to be acquitted from the
charge under section 7 of the ATA, 1997. However, his this plea
was not accepted by the High Court and his writ petition was
dismissed and now the present petition.
3. The learned counsel for the petitioner has vehemently

contended, as submitted before the High Court, that after the
acquittal of the petitioner under section 302, P.P.C. he was
entitled to the acquittal under section 7 of the ATA, 1997 which is
the offshoot of the main offence under section 302, P.P.C.
4. We have attended to his this contention. Whatever the

nature or status of an offence but for the purposes of the
compromise it will be seen as to whether the offence/the section
of law for which the compromise is requested is compoundable
under the law or not. The offences which are compoundable have
been mentioned in section 345(1), Cr.P.C. Since the offence is
under section 7 of the ATA, 1997 for which a death penalty has
been prescribed does not find its mention in the aforesaid section
in the category of the offences which are compoundable, and both
the Courts below have rightly disallowed the compromise. In this
respect reliance can be placed on the case of Muhammad Rawab
v. The State 2004 SCMR 1170. The relevant extract from the
judgment in which leave was granted in order to examine, inter
alia, the following:--
“2. ------- The question whether the Court can

permit the parties to compound the offences which
are not mentioned in section 345, Cr.P.C. specially
when there is a bar under section 345(7) of Cr.P.C.
for entertaining a compromise in the offences not

mentioned in section 345, Cr.P.C.”
The Court while dismissing the appeal held:--
“3. ------- The pivotal question which needs

determination would be as to whether parties can
be allowed to compound the offences which are not
compoundable by virtue of the provisions as
contemplated in section 345, Cr.P.C. specially in
view of the specific bar as mentioned in subsection
(7) of section 345, Cr.P.C. There is no denying the
fact that section 365-A, P.P.C. read with section
7(e) of the Anti-Terrorism Act, 1997 is not
compoundable. The provisions as contained in
section 345(7), Cr.P.C. have been couched in such
a plain and simple language that there is hardly
any scope for any interpretation except that a non-
compoundable offence cannot be made
compoundable by this Court for the simple reason
that no amendment, deletion, insertion or addition
could be made by this Court and 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 far 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. It may be
noted that tabulation of the offences as 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 offences. The judicial consensus
seems to be that “The Legislature has laid down in
this section the test for determining the classes of
offences which concern individuals only as
distinguished from those which have reference to
the interests of the State and Courts of law cannot
go beyond that test and substitute for it one of
their own. It is against public policy to compound a
non-compoundable offence, keeping in view the
state of facts existing on the date of application to
compound. No offences shall be compounded
except where the provisions of section 345, Cr.P.C.
are satisfied as to all matters mentioned in the
section.”
The aforesaid judgment was followed by this Court in another

case, Ghulam Farid alias Farida v. The State PLD 2006 SC 53.
5. We have also considered the question of reduction of

sentence in view of the compromise arrived at between the
parties. Since the matter before us is not in the regular
proceeding arising out of the conviction and sentences passed by
the trial Court and his appeal before the High Court and then a
petition before this Court but after the decision having been
rendered by this Court dismissing the petition of the petitioner
against the order of his conviction and sentence and while
dismissing the petition by this Court, his conviction and
sentences under section 302/34, P.P.C. and section 7 of the ATA,
1997 were kept intact. So once the findings have been given on
merits by this Court, then it would not be appropriate to enter the
merits of the case again to consider the reduction of sentence in
an offence which is not compoundable. In this respect the
relevant portion of paras. 4 and 5 of the judgment passed in the
case of Ghulam Farid (supra) are reproduced hereinbelow:--
“4. ------- There is no cavil to the proposition

that the Courts at all levels without any legal
impediment, while deciding the criminal cases on
merits, in the regular proceedings, can consider
the compromise of an offender with the victim or
his legal heirs, as a mitigating circumstance for the
purpose of question of sentence in a non-
compoundable offence but after final disposal of a
criminal matter, Courts cannot assume
jurisdiction to re-open the case on merits in
collateral proceedings arising out of miscellaneous
application. The petitioner after losing the case on
merits, before the trial Court, the High Court and
also before this Court in regular proceedings
moved an application to the Court of first instance
for his acquittal on the basis of his compromise
with the legal heirs of the deceased wherein he also
made an alternate prayer of reduction in sentence -
------
5. ------- This is settled law that Courts can

interpret the provisions of law but cannot change
or substitute such provisions and also cannot go
beyond the wisdom of law. The contention of the
learned counsel that the compromise between the
parties at least could be treated a mitigating
circumstance for the purpose of lesser
punishment, has also no substance. This Court
while upholding the judgment of the High Court by
virtue of which conviction and sentence awarded to
the petitioner by the trial Court was, maintained,
has already dismissed the petition for leave to
appeal. The present petition has arisen out of the
proceedings in a miscellaneous application moved
by the petitioner for his acquittal on the basis of
his compromise with the legal heirs of the
deceased, therefore, in these proceedings, it was
not possible for the High Court to re-open the case
on merits in exercise of its powers under section
561-A, Cr.P.C., and similarly this Court is not
supposed to undertake such an exercise under
Article 187 of the Constitution of Islamic Republic
of Pakistan and consider the question relating to
the quantum of sentence on the basis of
compromise between the parties in such a heinous
offence which is considered a crime against the
Society.”
6. The findings of the Courts below by not granting

permission to compound the offence under section 7 of the ATA,
1997 are in accordance with law and particularly in view of the
bar as contained in subsection (7) of section 345, Cr.P.C. We find
no illegality in the orders impugned herein and which does not
deserve any interference. Resultantly we see no force in this
petition, leave is declined and the petition dismissed.”
Muhammad Nawaz v The State

(PLD 2014 SC 383)
“8. It is to be noted that the act of terrorism, though is

interlinked with the principal offence i.e. 302(b), P.P.C., falls
under a different provision of law i.e. section 6(2)(n) of ATA.
Deceased Muhammad Mumtaz was on official duty at the time of
the occurrence as it is evident from the statements of P.Ws. that
he was in uniform and was causing arrest of nominated accused
along with raiding police party but to terrorize the police the
accused opened fire, which caused his (Muhammad Mumtaz)
death and also created obstruction in the discharge of their duty.
Sentence under section 302(b) attracts the provision of section
353, P.P.C., which he has already undergone. Thus, the offence
under section 6(2)(n) of ATA also stands established against the
petitioner, which provides the meaning of terrorism and any such
action that falls within the meaning of said section, involving
serious violence against a member of the police force, armed
forces, civil armed forces, or a public servant. This offence stood
established, in view of the facts and circumstances narrated
hereinabove, particularly, accepting the conviction/sentence
under section 302(b), P.P.C. as he has entered into compromise
with the deceased, however as far as the second count of death
sentence under section 7 ATA is concerned, it has got its own
implications and is not compoundable under section 345
subsections (5) and (7) of Cr.P.C. This Court examined this very
proposition in the case of Muhammad Rawab v. State (2005
SCMR 1170), reliance on which has also been placed by the
Sessions Judge when the compromise under section 302(b),
P.P.C. and 7 of ATA was submitted. Learned Special Judge gave
effect the compromise only to the extent of 302(b), P.P.C., whereas
compromise under section 7 ATA was not allowed to be
compounded in view of the law referred to hereinabove.
9. However, this fact can also not be over sighted that in

respect of murder of Muhammad Mumtaz, Constable, the
petitioner was also sentenced to death and now the parties have
compounded the offence under section 302(b), P.P.C. and
according to the record compensation has also been paid.
Therefore, question for quantum of sentence under section 7 of
ATA can be examined in view of the judgment in the case of M.
Ashraf Bhatti v. M. Aasam Butt (PLD 2006 SC 182) wherein after
the compromise between the parties sentence of death was
altered to life imprisonment.
10. It is to be noted that both the sentences i.e. death and life
imprisonment are legal sentences, therefore, under the
circumstances either of them can be awarded to him. Thus in
view of the peculiar circumstances noted hereinabove, sentence of
death under section 7 ATA, 1997 is converted into life
imprisonment without extending benefit of section 382-B, Cr.P.C.
as the same was not allowed by the trial Court, first appellate
Court as well as by this Court in the judgment under review.
11. Accordingly, compromise between the parties is accepted

to the extent of conviction under section 302(b), P.P.C. and the
petitioner is acquitted of the charge. However, the death sentence
under section 7 of ATA is converted into life imprisonment and
the review petition is disposed of.”
Shahid Zafar and 3 others v The State

(PLD 2014 SC 809)
“9. Insofar as the compounding of the offences is concerned

by the appellants reached through compromise with the legal
heirs of the deceased, it would be seen that Section 7 (a) of the
Anti Terrorism Act, 1997 is not compoundable and hence the
learned High Court correctly dismissed such compromise

applications. Even otherwise we are of the opinion that the cruel
and gruesome murder of the deceased who had been begging for
his life from the appellants certainly amounted to Fasad-Fil-Arz
within the meaning of Section 311, P.P.C. and hence there could
not be any question of acceptance of compromise between the
parties. However having said as much we are also aware that in
the case of Muhammad Nawaz (Supra) this Court had converted
the sentence of death to that of life imprisonment under Section
7(a) of the Anti Terrorism Act 1997 where the legal heirs had
compounded the matter with the accused as in the present case.
Consequently we would partly allow Criminal Appeal No.8-K of
2014 by directing that the sentence of death imposed upon the
appellant Shahid Zafar be reduced to life imprisonment.”
Kareem Nawaz Khan v The State

(2019 SCMR 1741)
“3. Karim Nawaz Khan petitioner had allegedly murdered his

sister, a brother and a sister-in-law by firing at them with the use
of a Kalashnikov in an incident taking place at about 12.00 Noon
on 03.06.2007 inside the house of Muhammad Khan complainant
in village Whandi Shiapur in the area of Police Station Moch,
District Mianwali in the backdrop of a motive based upon a
dispute between the parties over some ancestral property. With
these allegations the petitioner was booked in case FIR No 101
registered at the above mentioned Police Station soon after the
incident and after a regular trial the petitioner was convicted on 3
counts of an offence under section 302(b), P.P.C. and was
sentenced to death on each count and to pay compensation and
Diyat to their heirs of the deceased. The petitioner was also
convicted by the trial court for an offence under section 7(a) of the
Anti-Terrorism Act, 1997 and even on that count of the charge he
was sentenced to death and to pay fine. The petitioner was
additionally convicted by the trial court for an offence under
section 21-L of the Anti-Terrorism Act, 1997 and for the said
offence he was sentenced to rigorous imprisonment for five years
and to pay fine. The petitioner challenged his convictions and
sentences before the High Court through an appeal which was
dismissed and all his convictions and sentences recorded by the
trial court were upheld and confirmed by the High Court.
Thereafter the petitioner approached this Court through Criminal
Petition No. 1245-L of 2010 but the said petition was also
dismissed by this Court on 05.06.2012 and leave to appeal was
refused to him. Hence, the present review petition before this
Court.
4. On 05.06.2012 this Court had dismissed Criminal Petition

No. 1245-L of 2010 after attending to the merits of the petitioner’s
case and it had been held by this Court that the courts below
were justified in convicting and sentencing the petitioner and in
upholding and confirming his sentences. Through the present
review petition it has been brought to this Court’s notice that
after passage of the said order by this Court upholding and
maintaining the petitioner’s convictions, and sentences the heirs
of all the three deceased had entered into a compromise with the
petitioner which compromise was presented before the trial court,
i.e. the Anti-Terrorism Court, Sargodha and vide judgment dated
19.02.2014 the learned Judge, Anti-Terrorism Court, Sargodha
was pleased to accept the said compromise on all the three
counts of the charge under section 302(b), P.P.C. whereas the
said compromise was rejected to the extent of the petitioner’s
convictions and sentences for the offences under sections 7(a)
and 21-L of the Anti-Terrorism Act, 1997. We have gone through
the said order passed by the trial court on 19.02.2014 and have
noticed that the trial court had felt satisfied regarding
genuineness and completion of the acclaimed compromise
between the parties. Through the present review petition the
learned counsel for the petitioner has urged that in view of the
compromise affected between the parties vis-à-vis the offences
under section 302(b), P.P.C. the sentence of the petitioner for the
offence under section 7(a) of the Anti-Terrorism Act, 1997 may be
reduced from death to imprisonment for life. In support of this
submission the learned counsel for the petitioner has referred to
the cases of Muhammad Nawaz v. State (PLD 2014 SC 383),
Shahid Zafar and 3 others v. The State (PLD 2014 SC 809) and M.
Ashraf Bhatti and others v. M. Aasam Butt and others (PLD 2006
SC 182). The learned Additional Prosecutor-General, Punjab
appearing for the State has submitted that in above mentioned
precedent cases this Court had indeed utilized a compromise
between the parties for reduction of a convict’s sentence of death
to imprisonment for life on a charge under section 7(a) of the
Anti-Terrorism Act, 1997 and, thus, the matter of reduction of the
petitioner’s sentence on such score in the present case lies within
the discretion of the Court.
5. After hearing the learned counsel for the parties and going
through the record we have noticed that the appellant was very
closely related to all the three murdered persons in this case, i.e.,
he was a brother of two of the deceased and a brother-in-law of
the third deceased and the incident in issue had taken place
because of a dispute between the parties over some ancestral
property. According to the prosecution itself there was no enmity
between the parties and the present incident had taken place half
an hour of an earlier incident wherein the petitioner and the
deceased and some others had quarreled with each other while
discussing the matter of ancestral property. It could, thus, be
said that in the absence of any on-going enmity between the
parties the present occurrence had taken place because of some
very recent provocation offered to the petitioner by the
complainant party while discussing the issue regarding ancestral
property. It may, therefore, be a case not of grave and sudden
provocation but a case which was based upon some provocation
recently offered to the petitioner although the same was not
sudden. In a case of such a situation this Court has held that the
least that a Court can do in such a case is to reduce the sentence
of death to imprisonment for life and a reference in this respect
may be made to the case of Ghulam Abbas v. Mazhar Abbas and
another (PLD 1991 SC 1059). There is an additional factor
available in this case for reduction of the petitioner’s sentence of
death to imprisonment for life and that is that a valid compromise
had been arrived at between the parties which has already been
allowed by the trial court vis-à-vis three counts of the charge
under section 302(b), P.P.C. In the cases of Muhammad Nawaz v.
The State (PLD 2014 SC 383), Shahid Zafar and 3 others v. The
State (PLD 2014 SC 809) and M. Ashraf Bhatti and others v. M.
Aasam Butt and others (PLD 2006 SC 182) this Court has already
considered a valid and accepted compromise in the coordinate
offence to be a valid ground for reduction of a sentence of death
into imprisonment for life on the charge of terrorism or of a non-
compoundable offence.
6. For what has been discussed above this review petition is

allowed, the order under review dated 05.06.2012 passed by this
Court in Criminal Petition No. 1245-L of 2010 is recalled, the said
petition is converted into an appeal and the same is partly
allowed with the result that the sentence of death passed against
the petitioner/appellant for the offence under section 7(a) of the
Anti-Terrorism Act, 1997 is converted into a sentence of
imprisonment for life. The order passed by the trial court

regarding payment of fine on that charge is maintained but it is
ordered that in default of payment of fine he shall undergo simple
imprisonment for six months. On account of a valid compromise
having been arrived at between the heirs of the three deceased
and the present appellant, which compromise had already been
allowed by the trial court, his convictions and sentences on three
counts of the charge under section 302(b), P.P.C. are set aside
and he is acquitted of the said counts of the charge. The
appellant has already served out his sentence of imprisonment for
the offence under section 21-L of the Anti-Terrorism Act, 1997
which shall be deemed to have run concurrently with his other
sentence of imprisonment. The appellant shall be allowed the
benefit under section 382-B, Cr.P.C. as far as his reduced
sentence under section 7(a) of the Anti-Terrorism Act, 1997 is
concerned. This review petition and the appellant’s petition
converted into an appeal are disposed of in the terms noted
above.”
5. The situation is altogether different in cases where the

convictions and sentences of convicts have already attained finality
after decision of their review petitions by this Court. Order XXVI
Rule 9 of the Supreme Court Rules, 1980 provides as follows:
“After the final disposal of the first application for review no

subsequent application for review shall lie to the Court and
consequently shall not be entertained by the Registry.”
There is, thus, no scope for maintainability of a second or

subsequent review petition before this Court after the first review
petition has been decided. It is sometimes argued that in such a
situation, particularly in a case of extreme hardship, this Court
may attend to the matter in exercise of its jurisdictions under
Articles 184(3) or 187 of the Constitution or may resort to
revisiting the earlier order or judgment in order to safeguard the
interests of justice but such arguments have consistently been
rejected by this Court in the past. In many previous cases this
Court has consistently held that after exhausting the review
jurisdiction of this Court a party to a case cannot invoke Articles
184(3) or 187(1) of the Constitution for reopening the same case. It
has also been held by this Court that the question whether an
interpretation of law in any earlier order or judgment of this Court
needs to be revisited or not is a question to be decided by this
Court upon its own initiative and no party to a case or any other
interested person can approach this Court for revisiting its earlier
orders or judgments. The following precedent cases may be

referred to in this respect:
Khalid Iqbal and 2 others v Mirza Khan and others

(PLD 2015 SC 50)
“12. The question of maintainability of the 2nd Criminal

Review Petition on the ground that this Court has to do complete
justice by invoking Article 187(1) of the Constitution is also
misconceived. The provisions of Article 187(1) cannot be attracted
in the present case, as this Court has already recorded findings
against the petitioner by the Judgment dated 28-2-2001, against
which review was also dismissed and there was no ‘lis’ pending
before this Court warranting exercise of its jurisdiction under
Article 187(1) of the Constitution, besides Rule 9 of the Order
XXVI of the Supreme Court Rules, bars 2nd Review Petition.
There is a distinction between right of a party to approach the
Court and jurisdiction of the Court to do complete justice on its
own. Once this Court has finally determined the right of the
petitioner in the judgment dated 28-2-2001, holding him guilty,
the petitioner through 2nd Review Petition, cannot reagitate it. If
such a Review Petition is allowed to be entertained, it will land in
a situation where findings of this Court against a party will never
attain finality.
13. This, however, does not mean that the jurisdiction of this
Court is barred by any restriction placed by the Constitution;
there is no Article in the Constitution which imposes any
restriction or bar on this Court to revisit its earlier decision or
even to depart from them, nor the doctrine of stare decisis will
come in its way so long as revisiting of the judgment is warranted,
in view of the significant impact on the fundamental rights of
citizens or in the interest of public good. This issue was fully
comprehended and answered in the case titled Regarding
pensionary benefits of the Judges of Superior Courts from the Date
of their respective retirements, irrespective of their length of service
as such Judges (PLD 2013 SC 829 at page 993). The relevant
portions are reproduced herein below:--
“3. My learned brother has exhaustively dealt

with the question of maintainability, which is a
threshold proposition of the matter, and in this
behalf extensive reference to the case-law has also
been made. I therefore have no intention to add
any superfluity to that, however, my approach to
the proposition is quite simple, plain and facile, in
that, the Supreme Court of Pakistan is the apex
Court of the country. It is the final, the utmost and
the ultimate Court, inter alia, in relation to, (a)
resolving disputes inter se the parties before it, (b)
securing and enforcing the fundamental rights of
the citizen/person, when those (rights) are in issue
before the Court, in any of its jurisdiction, either
original or appellate or suo motu, (c) the
interpretation and the enunciation of the law of the
land, (d) examining and adjudging the legislative
Acts and the executive order/actions of the State,
in the exercise of its power of judicial review, (e) the
exercise of original jurisdiction as per the mandate
of Article 184 of the Constitution, (f) the advisory
jurisdiction within the parameter of Article 186 of
the Constitution, (g) the review of its decision
(judgments) (see Article 188) (h) a special

jurisdiction conferred upon this Court by any law.
And above all the power to do complete justice (see
Article 187). In terms of Article 189 of the
Constitution, “Any decision of the Supreme Court
shall, to the extent that it decides question of law or
is based upon or enunciates a principle of law,
(emphasis supplied) be binding on all other courts in
Pakistan”. Moreover, according to Article 190 “All
executive and judicial authorities throughout
Pakistan shall act in aid of the Supreme Court”.
4. The aforestated legal position explains and

highlights the true magnitude and the supremacy
of this Court in regard to the dispensation of
justice in the country and the enunciation and the
declaration of the law by it. As the law laid down
by the (apex) Court, and the order(s) passed by it,
being the paramount and ultimate in nature, has
to be imperatively and mandatorily followed,
obeyed and adhered to by all the concerned.
Reading Articles 189 and 190 conjointly, and while
keeping in view the scheme of the Constitution, the
very purpose, the pivotal position and the status of
this Court (prescribed above), it is expedient that
correct law should be pronounced by the apex
Court. And pursuant to the above object and due
to the venerated position of this Court, the Court is
cumbered with, inviolable responsibility, and a
sacred duty, to interpret, declare and enunciate
the law correctly, so that it should be followed,
obeyed and adhered to purposively and in letter
and spirit, by all the other organs of the State
(including all other Courts in Pakistan) strictly
inconsonance with the true aim of the
aforementioned Articles. It may be pertinent to
mention here, that any invalid enunciation of law,
shall contravene and impugn the very character,
and attribute(s) of this Court and such bad/wrong
law shall cause drastic adverse effects on the
socioeconomic, political, geographical, ethnic,
cultural aspects and dynamics of the nation, the
society, the people at large and the State in
presentee or in futurio. In the above context,
reference can also be made to Article 4 of the
Constitution which enshrines (inter alia) an
inalienable right of every citizen to be dealt with in
accordance with the law, obviously this shall mean
the law that is, correctly laid down by this Court.
As it is a cardinal principle of justice, that the law
should be worn by the Judge in his sleeves and
justice should be imparted according to the law,
notwithstanding whether the parties in a lis before
the Court are misdirected and misplaced in that
regard. Therefore, if any law which has been
invalidly pronounced and declared by this Court,
which in particular is based upon ignorance of any
provisions of the Constitution, and/or is founded
on gross and grave misinterpretation thereof; the
provisions of the relevant law have been ignored,
misread and misapplied; the law already
enunciated and settled by this Court on a specific
subject, has not been taken into account, all this,
inter alia, shall constitute a given judgment(s) as
per incuriam; and inconsistent/conflicting decision
of this Court shall also fall in that category. Such

decision undoubtedly shall have grave
consequences and repercussions, on the State, the
persons/ citizens, the society and the public at
large as stated above. Therefore, if a judgment or a
decision of this Court which is found to be per
incuriam (note: what is a judgment per incuriam
has been dealt with by my brother), it shall be the
duty of this Court to correct such wrong verdict
and to set the law right. And the Court should not
shun from such a duty (emphasis supplied). For
the support of my above view, I may rely upon the
law laid down in the dicta Lt. Col. Nawabzada
Muhammad Amir Khan v. The Controller of Estate
Duty, Government of Pakistan, Karachi and others
(PLD 1962 SC 335 at page 340):--
“Where, however, there is found to be

something directed by the judgment
of which review is sought which is in
conflict with the Constitution or with
a law of Pakistan, there it would be
the duty of the Court, unhesitatingly
to amend the error. It is a duty which
is enjoined upon every Judge of the
Court by the solemn oath which he
takes when he enters upon his
duties, viz., to “preserve, protect and
defend the Constitution and laws of
Pakistan” But the violation of a
written law must be clear.”
M. S. Ahlawat v. State of Haryana and another (AIR

2000 SC 1680):--
“15. To perpetuate an error is no

virtue but to correct it is a compulsion
of judicial conscience.”
Bengal Immunity Co. Ltd., v. State of Bihar and

others (AIR 1955 SC 661):--
“19. Reference is made to the

doctrine of finality of judicial
decisions and it is pressed upon us
that we should not reverse our
previous decision except in cases
where a material provision of law
has been overlooked or where the
decision has proceeded upon the
mistaken assumption of the
continuance of a repealed or expired
statute and that we should not differ
from a previous decision merely
because a contrary view appears to
us to be preferable.
It is needless for us to say that we

should not lightly dissent from a
previous pronouncement of this court.
Our power of review, which
undoubtedly exists, must be
exercised with due care and caution
and only for advancing the public
well being in the light of the
surrounding circumstances of each

case brought to our notice but we do
not consider it right to confine our
power within rightly fixed limits as
suggested before us.
If on a re-examination of the question

we come to the conclusion, as indeed
we have, that the previous majority
decision was plainly erroneous then
it will be our duty to say so and not
to perpetuate our mistake even when
one learned Judge who was party to
the previous decision considers it
incorrect on further reflection
(emphasis supplied by me).
In Superintendent and Remembrancer of Legal

Affairs, West Bengal v. Corporation of Calcutta (AIR
1967 SC 997) it is held:-
“If the aforesaid rule of construction

accepted by this Court is inconsistent
with the legal philosophy of our
Constitution, it is our duty to correct
ourselves and lay down the right rule
(emphasis supplied by me). In
constitutional matters which affect
the evolution of our policy, we must
more readily do so than in other
branches of law, as perpetuation of a
mistake will be harmful to public
interests. While continuity and
consistency are conducive to the
smooth evolution of the rule of law,
hesitancy to set right deviations will
retard its growth. In this case, as we
are satisfied that the said rule of
construction is inconsistent without
republican polity and, if accepted,
bristles with anomalies, we have no
hesitation to reconsider our earlier
decision.”
The question, however, shall be as to how this duty

should be discharged and the object of correcting
the wrong law, and setting it (the law) right should
be achieved. One of the obvious ways of doing so
is, when a party to the lis seeks review of the
wrong judgment in terms of Article 188 of the
Constitution. But what, if that remedy is not
availed for any reason, or even if availed by the
concerned, is discarded by the Court (again by
committing an another wrong). Whether thereafter,
such a wrong decision on the point of law, cannot
be remedied and interfered with, revisited or set
aside at all or in other words, even if a judgment
which is patently per incuriam, infinitely should be
left outstanding, allowing it to become the liability
of this Court and our legal/judicial system, for all
future times. And the (this) Court and the system
should be fettered by it, and held as a captive
thereto, leaving it intact to pervade and permeate
serious prejudice in perpetuity to the persons/
citizens of the country and even the State,
compelling them, to be dealt with by a

wrong/invalid law, despite it having come to the
notice of the Court, through any means
whatsoever, that such decision suffers from patent
and gross vice, and it is vividly a judgment per
incuriam by all references. The answer is “No”. In
my candid view the approach to leave such a
decision to stay intact shall be ludicrous and shall
lead to drastic effects as indicated above. Rather in
such a situation this Court, having special position
in our judicature (judicial system as highlighted
above) shall have the inherent, intrinsic and inbred
power (jurisdiction) vested in it, (a) to declare a
judgment per incuriam; (b) decline to follow the
same as a valid precedent, (c) and/or to set it
aside. For the exercise of jurisdiction in that regard
and for the discharge of the duty as mentioned
earlier, it is absolutely irrelevant and immaterial
vide (via) which source it (decision) has come to the
notice of the Court. The Court once attaining the
knowledge of such a blemished and flawed decision
has the sole privilege, to examine the same and to
decide about its fate, whether it is per incuriam or
otherwise. In this context, it may be mentioned, for
example, if while hearing some case, it is brought
to the attention of the Court by the member(s) of
the Bar; or during the hearing of any matter, the
Court itself finds an earlier judgment to be per
incuriam; or if a Judge (Judge of this Court) in the
course of his study or research, comes across any
judgment which in his view is per incuriam or if
any information through the Registrar of the Court
is passed on to the honourable Chief Justice of the
Court or to any other Judge (of this Court), by any
member of the Bar, or the member of the civil
society (any organization/group of the society) that
a judgment is per incuriam (note: without the
informant having any right or locus standi of
hearing or the audience, until the matter is set out
for hearing in the Court and the Court deems it
proper to hear him), the Court in exercise of its
inherent suo motu power and the duty mentioned
above (emphasis supplied) shall have the due
authority and the empowerment to examine such a
judgment, in order to ascertain and adjudge if the
law laid down therein is incorrect or otherwise.
And if the judgment is found to be per incuriam, it
shall be dealt with accordingly. In such a situation
(as earlier stated) it shall not be of much
significance, as to who has brought the vice of the
judgment to the notice of the Court or through
which channel it has reached there. Rather, the
pivotal aspect, the object, the concern and the
anxiety of this Court should be to examine the
judgment and if it is per incuriam to set the law
right with considerable urgency.”
On perusal of the paragraphs referred to hereinabove, we can

safely reach a conclusion that this Court has absolute powers to
re-visit, to review and or to set aside its earlier judgments/orders
by invoking its Suo Motu Jurisdiction under Articles 184(3), 187
or 188 of the Constitution. The Powers of this Court to exercise its
inherent jurisdiction under the above referred Articles of the
Constitution are not dependant upon an application of a party.
14. The learned counsel has contended that the petitioner has
the fundamental rights, under Articles 9 and 25 of the
Constitution to seek protection of his liberty as a citizen of this
country. We are not persuaded by this contention of the learned
Advocate Supreme Court of the petitioner. The protection of the
term “liberty” used in this Article would not cover the petitioner,
who was convicted by this Court, and had exhausted all the legal
remedies available in law, against his conviction and sentence.
The findings of this Court against the petitioner had attained
finality, which could not be undone on the basis of the judgment
in the case of Dilawar Hussain (supra) which came, later in time,
and had distinct facts. Therefore, the contention of the learned
Advocate Supreme Court that Article 9 of the Constitution
protects the life and liberty of the petitioner is without force. As
far as the discrimination under Article 25 of the Constitution is
concerned, the petitioner has not been discriminated against at
all. This Court has decided his case on the basis of the material
produced at trial. The petitioner could not plead discrimination of
lesser sentence by relying on the case of Dilawar Hussain (supra),
as every case needs to be decided on its own merits and the
decision of one case will not regulate the quantum of sentence in
the other case, nor it could attract the term ‘discrimination’ as
used in Article 25 of the Constitution.
15. For the aforesaid reasons, we hold that 2nd Criminal

Review Petition of the petitioner is not competent and the
judgment dated 28-2-2001, in Criminal Appeal No. 23/1997, and
the order dated 6-3- 2008 in Criminal Review Petition
No.12/2001, passed by this Court having attained finality, cannot
be impugned once the petitioner has exhausted all his legal
remedies. Mere delay on the part of executive to execute the
sentence of the petitioner would not give him a right to approach
this Court and have his decision reversed on the aforestated
grounds.”
Syed Shabbar Raza Rizvi and others v Federation of

Pakistan, Ministry of Law and Justice Division through
Secretary, Islamabad and others
(2018 SCMR 514)
“There is another aspect of the matter which is of considerable

importance i.e. the maintainability of these petitions. In this
context, it is held that the petitioners had the remedy of
challenging the judgment, if they were aggrieved of the same, by
filing review petitions, which they did attempted so to do but
could not succeed. They were a party in Khurshid Anwar
Bhinder's case (supra) and their respective submissions were
rejected and the review applications were accordingly dismissed
as being not maintainable; besides observing that the judgment
impugned, being in the supreme national interest, there hardly
appeared any justification for review. Further, the petitioners
contested the contempt notices in Justices (R) Iftikhar Hussain
Chaudhry's case (supra) and then Intra Court Appeals in Justice
Hasnat Ahmed Khan's case (supra) but without any measure of
success. All the points raised in the said cases/judgments have
been re-agitated through the present petitions. In such a
situation, the petitions under Article 184(3) are absolutely
incompetent and not maintainable. Where a person has/had the
opportunity of filing a review or appeal against a judgment, and
either files a review/appeal and fails, or does not avail that
opportunity, or fails to become a party in any pending
review/appeal filed by another person against the same
judgment, then he has no right to re-agitate the matter through a
petition under Article 184(3) ibid. Article 184(3) ibid is a
constitutional provision which is meant for the purposes of

enforcement of fundamental rights, where there is a question of
public importance involved. It cannot be exercised as a parallel
review jurisdiction by the court, especially when the remedy of
review has already been availed or declined. Yes, a judgment of
this Court can be considered to be per incuriam but it is for the
Judges to revisit any such judgment, if and when pointed out by
any person during the course of hearing of any other case. Such a
finding would be premised on the Court finding the same
judgment to be against any provision of the Constitution or the
law, or the principle(s) already settled by a larger Bench of the
Court. It is not the right of a person, who would have no locus
standi under Article 184(3) of the Constitution, to file such a
petition, particularly in the situation where the review jurisdiction
has been invoked and the same (review) has been dismissed;
thus, such judgment (under review) can never be challenged by
virtue of filing independent proceedings under Article 184(3) of
the Constitution. This would be an abuse of the process of law
and is absolutely impermissible. Resultantly, we do not find any
merit in these petitions which are accordingly dismissed.”
Akhter Umar Hayat Lalayka and others v Mushtaq Ahmed

Sukhaira and others
(2018 SCMR 1218)
“Second review is barred by law and no party can now approach

this Court for a second review, however, this Court has absolute
power to re-visit its earlier judgments/orders by invoking its Suo
Motu Jurisdiction under Articles 184(3), 187 or 188 of the
Constitution. This Power is not dependant upon an application of
any party and it was so held in the case of Khalid Iqbal v. Mirza
Khan (PLD 2015 SC 50), in the following words:-
“12. The question of maintainability of the 2nd

Criminal Review Petition on the ground that this
Court has to do complete justice by invoking Article
187(1) of the Constitution is also misconceived. The
provisions of Article 187(1) cannot be attracted in
the present case, as this Court has already recorded
findings against the petitioner by the Judgment
dated 28-2-2001, against which review was also
dismissed and there was no 'lis' pending before this
Court warranting exercise of its jurisdiction under
Article 187(1) of the Constitution, besides Rule 9 of
the Order XXVI of the Supreme Court Rules, bars
2nd Review Petition. There is a distinction between
right of a party to approach the Court and
jurisdiction of the Court to do complete justice on its
own. Once this Court has finally determined the
right of the petitioner in the judgment dated 28-2-
2001, holding him guilty, the petitioner through 2nd
Review Petition, cannot re-agitate it. If such a
Review Petition is allowed to be entertained, it will
land in a situation where findings of this Court
against a party will never attain finality.
13. This, however, does not mean that the

jurisdiction of this Court is barred by any restriction
placed by the Constitution; there is no Article in the
Constitution which imposes any restriction or bar on
this Court to revisit its earlier decision or even to
depart from them, nor the doctrine of stare decisis
will come in its way so long as revisiting of the
judgment is warranted, in view of the significant
impact on the fundamental rights of citizens or in

the interest of public good. ... …
On perusal of the paragraphs referred to

hereinabove, we can safely reach a conclusion that
this Court has absolute powers to re-visit, to review
and or to set aside its earlier judgments/orders by
invoking its Suo Motu Jurisdiction under Articles
184(3), 187 or 188 of the Constitution. The Powers
of this Court to exercise its inherent jurisdiction
under the above referred Articles of the Constitution
are not dependant upon an application of a party.”
The same view has been reiterated in a recent judgment dated

5.1.2018 passed in the case of Syed Shabbar Raza Rizvi v.
Federation of Pakistan (2018 SCMR 514).”
6. In view of the legal position already declared by this Court in

the above mentioned precedent cases the questions posed above
are answered as follows:
(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?
It has 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.
(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?
It is 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. It is further 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.
(iii) If the answer to question No. (ii) is in the

affirmative then at what stage and by which court or
forum reduction in the sentence passed in respect of a
non-compoundable offence be ordered, if deemed
warranted in the circumstances of the case?
It is 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.
7. The office is directed to fix the captioned appeals and

petitions for hearing before appropriate Benches of this Court for
their decision in terms of the legal position declared through the
present judgment.
Chief Justice
Judge Judge
Judge Judge
Judge Judge
Announced in open Court at Islamabad on 11.10.2019.
Chief Justice
Islamabad
11.10.2019
Approved for reporting.
Arif

In The Supreme Court of Pakistan: Moinuddin, Etc. Versus The State, Etc

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IN THE SUPREME COURT OF PAKISTAN

Civil Appeal No. 1772 of 2008 and Civil Miscellaneous

Civil Petition No. 1708 of 2011

Civil Appeal No. 253 of 2015

Muhammad Qaiser alias Billa

Criminal Petition No. 988 of 2015

(Against the judgment dated 29.01.2015 passed by the High Court

Criminal Appeal No. 391 of 2015

Zafar Hussain, etc.

Criminal Appeal No. 19 of 2018

In attendance: Mr. Shahid Azeem, ASC

On Court’s Notice: Mr. Sajid Ilyas Bhatti, Deputy

Date of hearing: 02.04.2019

Asif Saeed Khan Khosa, CJ.: The offence of ‘terrorism’

Civil Appeal No. 1772/2008

offences. The appellants’ appeal was dismissed by the High Court

Civil Petition No. 1708 of 2011

Civil Appeal No. 253 of 2015

(Muhammad Qaiser @ Billa v The learned District & Session

Criminal Petition No. 988 of 2015

Criminal Appeal No. 391 of 2015

(Zafar Hussain and another v The State and others)

Criminal Appeal No. 19 of 2018

3. We find that three questions emerging from the facts of the

(i) Can a non-compoundable offence be treated as a

(ii) Can the sentence passed in a non-

(iii) If the answer to question No. (ii) is in the

4. A careful perusal of different precedent cases decided by this

Muhammad Rawab v The State

“3. Heard Dr. Babar Awan, learned Advocate Supreme Court

4. The above judicial consensus is based on the following

Dalsukhram Hargovandas v. Charles DeBretton 28 Bom.

Ghulam Farid alias Farida v The State

“5. The offence of dacoity is not compoundable either under

taken place, Qatl with no distinction is compoundable in Islam

M. Ashraf Bhatti and others v M. Aasam Butt and others

“7. In view of the facts that parties have compromised the

jurisdiction under section 311, P.P.C. the sentence of death of the

Muhammad Akhtar alias Hussain v The State

“2. The petitioner after having been unsuccessful in his

3. The learned counsel for the petitioner has vehemently

4. We have attended to his this contention. Whatever the

“2. ------- The question whether the Court can

for entertaining a compromise in the offences not

The Court while dismissing the appeal held:--

“3. ------- The pivotal question which needs

The aforesaid judgment was followed by this Court in another

5. We have also considered the question of reduction of

“4. ------- There is no cavil to the proposition

5. ------- This is settled law that Courts can

6. The findings of the Courts below by not granting

Muhammad Nawaz v The State

“8. It is to be noted that the act of terrorism, though is

9. However, this fact can also not be over sighted that in

11. Accordingly, compromise between the parties is accepted

Shahid Zafar and 3 others v The State

“9. Insofar as the compounding of the offences is concerned