2006 PLP 366 (YLR)

SHAMSUDDIN HISBANI, J.

This appeal is directed against the judgment dated 3-9-2004, passed by Judge Anti-Terrorism Court, Hyderabad and Mirpurkhas Divisions at Hyderabad, whereby the appellants Munir Ahmed and Raja Khan Siyal were convicted and sentenced to suffer life imprisonment and fine Rs.1,00,000 each, under section 302, P.P.C. and section 7, of the Anti-Terrorism Act, 1997, or in default whereof to undergo rigorous imprisonment for one year more. They were also convicted and sentenced to suffer rigorous imprisonment for five years and fine of Rs.50,000 each under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. In default of payment of fine, they were directed to suffer rigorous imprisonment for one year more. Appellant Rakhial Shah was convicted under section 109, P.P.C. and section 7 of the Anti-Terrorism (Amendment) Ordinance, 2001, and was sentenced to suffer rigorous imprisonment for five years plus fine of Rs.50,000 or in default whereof to undergo rigorous imprisonment for one year more. All the three appellants were extended benefit of section 382-B, of the Criminal Procedure Code.

2. The prosecution story briefly stated is that on 9-1-2002, appellants Munir Ahmed and Raja Khan armed with deadly weapons by show of force snatched away the motorcycle from complainant Iqbal Ahmed. H.C. Bakhat Hussain who had reached at the spot, was narrated the incident by the complainant. They chased the culprits and challenged them. One of the culprits had fallen from motorcycle and H.C. Bakhat Hussain grappled with him. The culprits fired at Bakhat Hussain who sustained fire-arm injury. Both the culprits decamped from the spot after leaving the stolen motorcycle. Meanwhile SIP Pir Mumtaz Ali and PC Ghulam Mustafa reached there and the injured was removed to hospital for treatment but he expired on the way.

3. After registering the first information report lodged by complainant Iqbal Ahmed, the Investigating Officer., S.I.P. Pir Mumtaz Ali prepared inquest report, inspected the scene of occurrence, recorded statements of witnesses, arrested appellants, recovered fire-arm weapons on their pointing and presented the charge sheet before the trial Court on completion of the investigation.

4. Appellants pleaded not guilty to the charge framed against them. The prosecution in order to establish the charge had examined ten witnesses before the trial Court. The ocular account of the incident is furnished by complainant Iqbal Ahmed and P.W., Ali Akbar. The medical evidence produced by the prosecution was not questioned by the defence and as such the same need not be discussed. The circumstantial evidence with regard to recovery of fire-arm weapons on pointing of the appellants was placed on record of the trial Court.

5. Appellants in their statements recorded under section 342, of the Criminal Procedure Code had denied the allegations. They did not examine themselves on oath in disproof the charge. Appellants had not produced any witness in defence.

6. Relying on the evidence adduced by the prosecution, the trial Court concluded that the prosecution was able to establish the charge against the appellants. They were accordingly convicted and sentenced as mentioned earlier. 6-A. Learned Advocate for appellants during the course of arguments, submitted that the offence was not scheduled offence and the Judge Anti-Terrorism Court had no jurisdiction to try the accused. According to him, after the promulgation of the Anti-Terrorism (Amendment) Ordinance, 2001, the offences in respect of vehicle snatching were not covered by the Anti-Terrorism Act, 1997; that the deceased Bakhat Hussain was not killed while performing his official duty. In support of this contention, he relied upon Farhan Zafar v. State PLD 2002 Karachi 311; Raees Alam v. State 2002 MLD 1949 and Ghazi Khan v. State PLD 2003 Karachi 71.

7. On the other hand, learned Assistant Advocate General and learned Advocate for the complainant party argued that there was reliable and trustworthy evidence placed on record to prove that the appellants were guilty for the offence charged with and they were rightly convicted by the trial Court. However, they were not able to controvert the arguments advanced by learned counsel for appellants on legal aspect of the case.

8. We have considered the arguments, gone through the material available on record, the case law cited at the bar and the relevant provisions of law.

9. The cases of vehicle snatching were made punishable under section 7-B, vide Ordinance IV of 1999, which was enforced on 27-4-1999, and such offences were inserted in section 7-A of Anti-Terrorism Act. Subsequently, vide amendment Ordinance No.XXIX of 2000 enforced on 24-7-2000, sections 7-A and B were deleted and section 6(d) was reconstituted wherein the ' said offences were made punishable under section 7(iii) of the Act. Again on 14th August, 2001, vide Ordinance XXXIX of 2001, several amendments were brought into the Act and section 6, of the Act, was substituted wherein all offences covered, earlier by section 6 (d) were not covered in new section 6 as amended. In view of this legal position, the offences in respect of vehicle snatching were no more triable by the Anti-Terrorism Court after the promulgation of Amendment Ordinance No.XXXIX of 2001, dated 14-8-2001.

10. The prosecution had not placed any material on record to show that the deceased while discharging his official duty sustained fire-arm injuries, which resulted in his death. Admittedly, deceased was not in police uniform at the relevant time. The Anti-Terrorism Court has jurisdiction to try the case if the facts of the case fall within the definition of "terrorism" as defined in section 6 of the Act, 1997. The very perusal of F.I.R. reveals that the deceased was killed when he had grappled with one of the culprits. The facts and circumstances of the prosecution case very clearly indicate that the culprits had no intention to commit murder of the deceased or any one else. The Investigating Officer. could have produced the entry recorded at the police station to establish that the deceased was on official duty while he was killed at the Vardat. 11 to 12 (sic).

13. P.W., Pir Mumtaz Ali, S.I.P., who conducted investigation, had deposed that deceased was on his duty but the material placed on record reveals that this improvement was made later on at the time of recording of the evidence of the witnesses, with the object to show that the offence was scheduled offence triable by the Anti-Terrorism Court. Merely because a policeman was killed is not sufficient ground for the trial of the case by the Anti-Terrorism Court. In the case of Muhram Ali and others v. State reported in PLD 1998 Supreme Court 1445, it was held by Honourable Supreme Court that the offences mentioned in the schedule of Anti-Terrorism Act should have nexus with the objects mentioned in sections 6, 7 and 8 of the Act.

14. Subsection (2) clause (e) of the newly inserted section 39-B of Anti-Terrorism Act deals to the effect of the cases pending before the Anti-Terrorism Court. Under this provision all such pending cases were to be transferred to the respective Courts of Session of the area or such other Courts of competent jurisdiction. It further provides that the transferee Courts shall proceed with the cases from the stage at which these cases were pending.

15. The record reveals that the alleged incident had taken place during January, 2002, whereas the amendment in the Act was made on 14-8-2001, thus, the Anti-Terrorism Court had' no jurisdiction even to take cognizance of the offence on 23-1-2002 when the challan sheet against the accused was presented before the said Court.

16. For the foregoing reasons, we are of the view that the Anti-Terrorism Court had no jurisdiction to try the instant case and the impugned judgment is set aside being untenable and without jurisdiction. The case is remanded with directions to the Anti-Terrorism Court to remit the same to the Court of Session having jurisdiction for commencing de novo trial. Above are the reasons of our short order dated 6-12-2005, which is reproduced as under: "Learned counsel for the parties have concluded their arguments. We are of the considered view, that the Anti-Terrorism Court had no jurisdiction to try the case. The trial was vitiated, and the judgment was untenable. As a consequence thereof, for the reasons to follow the judgment dated 3rd September, 2004, passed by Judge, Anti-Terrorism, Hyderabad and Mirpurkhas at Hyderabad, is hereby set aside. The case shall be remanded and retried. The Judge, Anti-Terrorism Court shall remit the case to the Court of Session having jurisdiction for commencing de novo trial. After the short order was passed learned counsel appearing for accused/appellant Rakhiyal, sub mitted that the said appellant was convicted and. sentenced to suffer imprisonment for five years out of which, he has remained in custody for about two and half years and, therefore, he may be released on bail. At the moment we are not inclined to accede to this request. However, the trial Court shall take into consideration this factum also, while deciding application for bail, if moved." H.B.T./M-4/K Case remanded.