P L D 2004 Karachi 290 (PLP)

2. The case of prosecution, according to F.I.R. lodged by complainant Muhammad Rashid at Risala Police Station, is that on 24‑4‑2001 at about 8‑00 a.m. the complainant left on motorcycle bearing Registration No.KAP‑3937 belonging to his brother Samiullah for poultry shop which was situated at Nanka Para, Karachi. At about 8‑15 a.m., while he was negotiating a speed breaker at a distance of 10/15 paces from the shop, all of a sudden two culprits intercepted him and took out the key from motorcycle switch and gave him a push, with the result he fell down on the ground and both the culprits rode the motorcycle. The culprit on pillion took out pistol and aimed at the complainant threatening him to keep away and not‑ to raise alarm, but the driver, who attempted to start the motorcycle could not succeed. Availing the opportunity, the complainant caught hold of the culprit holding pistol and raised an alarm which attracted Haji Muhammad Sadiq, Qamaruddin and Muhammad Azeem, who reached the scene immediately. The culprit, who was in driving seat made his escape good, while the pillion rider namely the appellant was apprehended with his pistol with the help of witnesses. The pistol was found to contain 5 live rounds in the magazine. The appellant, alongwith motorcycle and pistol, was taken to police station where F.I.R. was lodged; and after usual investigation the case was challaned. The case was tried by Anti Terrorism Court No.4, Karachi where charge was framed and witnesses were examined and at the conclusion of trial the appellant was convicted and sentenced as mentioned earlier.

3. We have heard Mr. Iftikahr Ali Hashmi, learned counsel for the appellant and Mr. Habib Ahmad, learned Assistant Advocate‑General for the State.

4. The main legal issue involved in this case is that the trial was coram non judice. It may be pointed out that the offence had taken place on 24‑4‑2001, but after the amendment introduced through Ordinance No.XXXIX of 2001 all the cases covered by section 39‑B(2)(e) of Anti Terrorism Act, 1997 essentially stood transferred to the ordinary Courts after 14‑8‑2001. The trial, in the instant case, was in progress and judgment was delivered on 6‑11‑2001. It is, therefore, contended that since the offence of vehicle snatching had been taken out from the schedule the trial could not be conducted by the Anti‑Terrorism Court. Mr. Habib Ahmed learned Asstt. Advocate‑General concedes to this in view of the provisions section 39‑B(2)(e) of Anti‑Terrorism. Act, 1997. which runs as under:‑‑ 39‑B(2)(e).‑‑All cases pending before the Anti‑Terrorism Court or Special Court immediately before the commencement of the Anti‑Terrorism, (Amendment) Ordinance, 2001, if not covered by this Act or clauses (a) and (b) above, shall stand transferred to the respective Courts of Sessions of the area or such other Courts of competent jurisdiction where the cases were registered against the accused and such Courts shall proceed with the cases from the stage at which they were pending, without the necessity of recalling any witnesses; and"

5. In order, to comprehend the consequential effect of the above amendment as related to, the instant case it is essential to mention that vehicle snatching was a "terrorist act" or so to say an offence triable by the Anti‑Terrorism Court within the meaning of section 6(d) of the Anti Terrorism Act, 1997 as introduced by Ordinance XXIX of 2000 (with effect from 24‑7‑2000). which runs as under:‑‑ "

6. Terrorist Act.‑‑A person is said to commit a terrorist act if he. (d) commits an act of vehicle snatching or lifting damage to or destruction of, State or private property, random firing to create, panic, charging bhatta or criminal trespass (illegal qabza)."

6. Section 6, was extensively amended through the Ordinance No.XXXIX of 2001 but the amended section 6 did not include the offence of vehicle snatching or lifting.

7. In result thereof the instant case, by way of statutory provisions of section 39‑B(2)(e) of the Anti‑Terrorism Act, 1997, stood transferred to ordinary Court, but the learned Anti‑Terrorism Court continued with the trial and delivered, the judgment. Consequently, we agree with the learned counsel for appellant and Mr. Habib Ahmed, learned Assistant Advocate‑General that the trial was coram non‑judice and the finding of conviction followed by sentence rendered by such Court could not be sustained in law. Accordingly, the conviction and sentence for both the offences are set aside. The cases relating to the offence of vehicle snatching/robbery and the offence under section 13(d) of Arms Ordinance are hereby bifurcated and are remanded to the trial Court for forwarding the same for trial in accordance with the law by the Court of competent jurisdiction. The appeal stands disposed of. H.B.T./M‑21/K Case remanded.