2007 PLP 1886 (YLR)

MIAN MUHAMMAD NAJAM -UZ-ZAMAN, J.

Appellant was tried by Special Judge, Anti-Terrorism Court No.IV, Lahore in case F.I.R. No.428 of 2003, dated 27-7-2003 for the offence under sections 353/324/427/34, P.P.C. read with section 13 of Pakistan Arms Ordinance XX of 1965 read with section 7 of Anti-Terrorism Act, 1997 registered at Police Station Manga Mandi, Lahore, who vide judgment dated 23-4-2005. Convicted and sentenced the appellant as follows. U/S 7(b) of A.T.A., 1997 Five years' R.I. and to pay Rs.10,000 as fine, or in default whereof to further undergo six months' RI. U/S 7(h) of A.T.A., 1997 Three years' R.I. and to pay Rs.5,000 as fine, or in default whereof to further undergo three months' S.I. U/S 13 of Pakistan Arms Ordinance XX or of 1965. Three years' R.I. and to pay Rs.5,000 as fine, in default whereof to further undergo three months' S.I. All the sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. was also extended in favour of the appellant. Feeling aggrieved by the impugned judgment the appellant has filed the instant appeal through jail.

2. Facts of the case according to the complaint Exh.P.A. by Farhat Abbad, Inspector/Elite Force, Lahore upon which formal F.I.R. Exh.P.A./1 was registered are that on 27-7-2003 at about 12.48 p.m., an emergency call on 15 made by Major Ijaz was received that a Car bearing No.9787/ML is coming towards Raiwind Shaheen Paper Mill from Line Store Mill, therefore, a vehicle be sent. Thereafter said Major Ijaz informed on telephone that he is also chasing the vehicle through tracker security system. After receiving the above information the complainant along with other police officials Asif Ali A.S.-I., Muhammad Riaz, Ahsan Qadar Muhammad Imran, Sajjad Akbar, Muhammad Shehbaz and Muhammad Ashraf constables all armed with fire-arm weapons set off on official Vehicle bearing No.LRC/2179. At Shell Petrol Pump on Multan Road the police party met Major Ijaz who told them that according to the information supplied by tracker the vehicle is moving in surroundings and its is expected that the accused may commit any other occurrence. The police party followed the car of P.W., Major Ijaz and in the meanwhile a Vehicle bearing No.2581/LRM was seen and P.W. Major Ijaz informed the police party that it is snatched vehicle having fake number plate. The complainant and the other police officials started chasing the snatched car whereupon the accused made straight firing at them and the bullets so fired hit the body of the official vehicle. The accused continued running and firing and thereafter turned the car from Multan Road to Manga Raiwind Road. Meanwhile the police officials of the Police Station Manga Mandi reached and joined the policy party. The vehicle run by accused when reached near Choki Factory Area Saddar Raiwind suddenly a cyclist came in front of them and in their effort to save the cycle rider the car came down and stuck up in the muddy/Kachi place. The accused resorted to straight firing at them and in exercise of their self-defence the police party also fired. Both the accused sustained injuries. After firing was stopped the police found the accused driving the car lying dead whereas the other co-accused whose name was Muhammad Nawaz presently facing trial was apprehended in an injured condition. The name of the accused who died in consequence of firing was known as Sharafat alias pappoo. A pistol .30 bore was found lying in the lap of Sharafat accused whereas a Kalashnikov with 20 bullets (live) and six magazine containing 451 bullets in all were recovered from accused Muhammad Nawaz. Two numbers Plates bearing No.9789/MI were also recovered from the dickey of the car, hence the present case.

3. After going through the record we have observed that in addition to offences falling under the Anti-Terrorism Act, 1997 provision of sections 324/353/427 etc., P.P.C. also attracted in the circumstances of the case but he learned trial Court while taking the cognizance of the matter framed the charges only under sections 7(b)/7(h)/7(g) of the Anti-Terrorism Act, 1997 along with for the offence falling under section 13 of Pakistan Arms Ordinance XX of 1965 while ignoring the offences allegedly committed by the petitioner falling under the ambit of Pakistan Penal Code. In cases titled Muhammad Amin v. The State (2002 SCMR 1017) and Muhammad Ali and others v. The State and others (PLO 2004 Lah. 554) it has already been held that the offences under the Pakistan Penal Code as well as offences mentioned Anti-Terrorism Act, 1997 are different offences and different charges are to be framed for the said offences but -since a glaring illegality has been committed by the trial Court whiles deciding, the matter, the impugned judgment is not sustainable and the matter is liable to the remanded back for fresh trial after framing the charges as required under the law. Accordingly while allowing this appeal, conviction and sentence of the appellant is set aside, the matter is remanded back to the trial Court to frame fresh charges and thereafter, proceed with the matter. Trial Court shall conclude the case within a period of four months from the date this judgment is received by the Court. During this period the appellant shall be treated as an under trial prisoner. N.H.Q./M-190/L Case remanded.