ISLAMABAD: In a judgement that would have far-reaching consequences, the Supreme Court on Friday held that terrorism cases would remain non-compoundable even if the aggrieved parties pardoned the guilt of an offender in other less heinous crime committed simultaneously.

In the 27-page verdict, the apex court spelled out a detailed guideline to be adhered to in the days to come on how to deal with non-compoundable offence under the Anti-Terrorism Act (ATA) 1997 when other coordinate compoundable offences were also committed at the same time.

The judgement, announced in the open court by a seven-judge larger bench, answered a number of questions by explaining the effect of compounding of coordinate compoundable offence upon non-compoundable offence of terrorism. Authored by Chief Justice Asif Saeed Khosa, the verdict also cited a number of judgements on the same question and observed that answers to the controversy were already available but in a scattered form.

In its 27-page verdict, apex court spells out guidelines to deal with the offence under Anti-Terrorism Act

“Thus the fresh judgement is necessary to consolidate all available solutions,” it explained while clarifying that parties even could not invoke the Supreme Court’s original jurisdiction under Article 184(3) or 187(1) of the Constitution for reopening an already concluded case.

Earlier, it was argued that the Supreme Court should attend to such matters in exercise of its jurisdiction under these articles by revisiting the previous judgement to safeguard the interest of justice.

One of the questions posed by the Supreme Court itself during the course of the hearing was that could a non-compoundable offence be treated as a compoundable offence for acquittal if a coordinate compoundable offence committed in the same case had been compounded by the relevant parties.

Justice Khosa explained in the verdict that the non-compoundable offence of terrorism was an offence distinct and independent from any other coordinate offence committed in the same case. “Thus 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,” the verdict said.

Therefore, it added, despite any compounding of the coordinate compoundable offence an acquittal could not be granted in the non-compoundable offence on that sole basis.

The next question was can the sentence passed in a non-compoundable offence be reduced on the ground that a coordinate compoundable offence committed in the same case had been compounded by the relevant parties. The answer in the judgement was that consideration of reduction of the sentence lies within the discretion of the court seized with the matter and cannot be treated as automatic.

The third question was which of the courts would reduce the sentence in respect of a non-compoundable offence. The Supreme Court explained that the trial court could reduce the sentence at the end of trial.

“If the settlement between the parties reached in the coordinate compoundable offence at the appellate or revisional stage before a high court or the Supreme Court at the stage of appeal or review petition, then a prayer for reduction of the sentence passed for commission of the non-compoundable offence can be raised before the court seized with the pending matter.

“In case the Supreme Court has already passed a final order or judgement in an appeal but no review petition was 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 the apex court,” the verdict explained.

Similarly, it said, if the remedy of filing of a review petition before the apex court had already been exhausted and there being no scope for filing of a second or subsequent review petition, the only remedy for the reduction of sentence passed for the commission of non-compoundable offence would be to file a mercy petition before the president. The president may in his discretion consider this aspect in the light of judgements passed by the Supreme Court on the subject from time to time, the verdict said.

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 jail, upon an initiative of the convicted prisoner, will forward a fresh mercy petition to the president, seeking fresh consideration of the matter, the judgement said.

When seized with 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 judgements passed by the apex court.

Published in Dawn, October 12th, 2019