2001 PLP 491 (YLR)

Muhammad Hanif Khatana, Addl A.-G. with Ch. Nazir Ahmad for the State. Date of hearing: 20th April, 2001. This judgment will dispose Criminal Appeal No.275 of 2000 filed by. Muhammad Ilyas appellant who was convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and sentenced to 10 years' R.I. and also to undergo 10 years' R.I. and to pay a fine of Rs.50,000, in default 2-1/2 years R.I. under section 7(2) of Anti-Terrorism Act, 1997 by the learned Judge, Anti -Terroism Court, Faisalabad vide judgment, dated 28-2-2000.

2. Brief facts of the case are that Abdul Aziz got recorded his statement Exh.P.C. at 9-30 a.m. on 5-5-1998 with regard to an occurrence having taken place on 4-5-1998 alleging that on 4-5-1998 he alongwith Abdul Majeed (brother) and Nazir Ahmad was present in his house. His daughter aged 7/8 years went outside in the Bazar. She did not return. At about 11 a.m., the complainant alongwith Abdul Majid and Nazir Ahmad went for her search and when reached near the house of Muhammad Aslam, they heard the noise of cries of a child. The four-wall was locked. They peeped through the door and saw that Shalwar of Ruqia was removed and Muhammad Ilyas was committing Zina-bil -Jabr with her. The occurrence was witnessed by the complainant, Abdul Majeed and Nazir. On breaking open the door all the three entered and on seeing them Muhammad Ilyas ran away from the spot. The daughter of the complainant was smeared in blood.

3. After registration of the formal F.I.R. Exh.P.C./1 recorded by Muhammad Yaqoob, Head Constable, Noor Muhammad, S.-I. (P.W.8) proceeded to the place of occurrence, prepared the rough site plan of the place of occurrence Exh.P.E., recorded statements of the witnesses under section 161, Cr.P.C. on 8-5-1998 recorded the statement of Mst. Ruqia, arrested Muhammad Ilyas accused on 12-5-1998, got him medically examined and after completion of the investigation challaned the accused to face the trial.

4. At the trial, prosecution in order to prove its case produced 8 witnesses in all, then the learned P.P. tendered in evidence report of the Chemical Examiner Exh.P.F. and closed the prosecution case. Thereafter, statement of the appellant was recorded under section 342, Cr.P.C. in which he claimed innocence. After conclusion of the trial the appellant was convicted and sentenced as stated above.

5. Learned counsel for the appellant at the very outset has raised a preliminary objection and submitted that the learned Court constituted under the Anti-Terrorism Act, 1997 bad no jurisdiction to try the case because according -to him initially when the Anti-Terrorism Act, 1997 came into being, the offence of child molestation was not there. The inclusion of offence of child molestation was introduced by Act IV of 1999 dated 27-4-1999 which was supposed to take effect from 24-2-1999. Learned counsel submits that in this view of the matter, the conviction and sentence awarded to the appellant has to be set aside. He has relied on 1999 YLR 1817 Khadim Hussain v. The State.

6. Ch. Nazir Muhammad, Advocate has been appearing for the State. I had also asked Mr. Muhammad Hanif Khatana, learned Additional Advocate-General to render assistance. Both have conceded to the submissions made by learned counsel for the appellant after going through the amendment introduced through PLD 1999 Federal Statute.

7. I have heard learned counsel for the parties and have also gone through the A.T.A. Act. The learned Judge deriving his powers under Anti-Terrorism Act, 1997 had no jurisdiction to hear this case as initially in section 6 the words "child molestation" were not there but were added on 27-4-1999 vide Ordinance IV of 1999 and had to take effect from 24-2-1999. Admittedly, in the instant case, the occurrence had taken place on 4-5-1998 and the conviction was recorded on 28-2-2000. In this view of the matter, conviction and sentence awarded to the appellant under section 7(2) of A.T.A., 1997 is set aside. The case is remitted back to learned Sessions Judge, Faisalabad who will hold the trial himself and conclude the same within two months without fail after receipt of the record. Deputy Registrar (Judl.) is directed to ensure that the record is transmitted to the learned Sessions Judge, Faisalabad within a week without fail. N.H.Q./M-568/L Case remanded.