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 
(Against the judgment dated 16.03.2015 passed by the Lahore 
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 
(Against the judgment dated 13.08.2015 passed by the Lahore 
High Court, Multan Bench, Multan in Criminal Revision No. 267 of 
2015) 
 
 
Zafar Hussain, etc.  
…Appellants 
 
 
 
 
 
versus 
The State, etc. 
…Respondents 
 
 
Criminal Appeal No. 19 of 2018 
(Against the judgment dated 27.01.2015 passed by the Lahore 
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 
 
Civil Appeal No. 1772 of 2008, etc.  
 
 
3
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 
Civil Appeal No. 1772 of 2008, etc.  
 
 
4
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 
Civil Appeal No. 1772 of 2008, etc.  
 
 
5
(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.  
 
Criminal Appeal No. 391 of 2015 
Civil Appeal No. 1772 of 2008, etc.  
 
 
6
(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.   
 
Criminal Appeal No. 19 of 2018 
(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. 
Civil Appeal No. 1772 of 2008, etc.  
 
 
7
 
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) 
Civil Appeal No. 1772 of 2008, etc.  
 
 
8
 
“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 
Civil Appeal No. 1772 of 2008, etc.  
 
 
9
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 
Civil Appeal No. 1772 of 2008, etc.  
 
 
10
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. 
Civil Appeal No. 1772 of 2008, etc.  
 
 
11
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, 
Civil Appeal No. 1772 of 2008, etc.  
 
 
12
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) 
Civil Appeal No. 1772 of 2008, etc.  
 
 
13
 
“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 
Civil Appeal No. 1772 of 2008, etc.  
 
 
14
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 
Civil Appeal No. 1772 of 2008, etc.  
 
 
15
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 
Civil Appeal No. 1772 of 2008, etc.  
 
 
16
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 
Civil Appeal No. 1772 of 2008, etc.  
 
 
17
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 
Civil Appeal No. 1772 of 2008, etc.  
 
 
18
(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 
Civil Appeal No. 1772 of 2008, etc.  
 
 
19
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 
Civil Appeal No. 1772 of 2008, etc.  
 
 
20
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, 
Civil Appeal No. 1772 of 2008, etc.  
 
 
21
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. 
 
Civil Appeal No. 1772 of 2008, etc.  
 
 
22
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 
Civil Appeal No. 1772 of 2008, etc.  
 
 
23
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 
Civil Appeal No. 1772 of 2008, etc.  
 
 
24
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.   
 
Civil Appeal No. 1772 of 2008, etc.  
 
 
25
(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 
 
Civil Appeal No. 1772 of 2008, etc.  
 
 
26
(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 
Civil Appeal No. 1772 of 2008, etc.  
 
 
27
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 
