2017 PLP 275 (YLRN)

ABDUL RASOOL MEMON, J.

The above captioned appeals have been filed against the judgment dated 01.09.2009 passed by learned Judge Anti-Terrorism, Court, Hyderabad in ATC Case No.317 of 2008 (Crime No.93 of 2008 of PS Bhit Shah) whereby both the appellants/accused were convicted under section 392, P.P.C. and sentenced to suffer R.I for five (5) years and to pay fine of Rs.25000/- each and in default thereof to undergo S.I. for two months. Appellant Naheed was also convicted under section 7(b) of Anti-Terrorism Act, 1997 and sentenced to suffer imprisonment for life and to pay fine of Rs.25000/- and in default thereof to undergo S.I. for two months more, he was further convicted under section 7 (h) of Anti-Terrorism Act and awarded R.I. for seven (7) years and fine of Rs.25000/- and in default thereof to undergo S.I. for two months. All the sentences awarded were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. was extended to both the appellants/accused. Since both the appeals are arising out of one and same judgment, therefore, the same are decided through this common order.

2. Brief facts of the prosecution case as narrated in the FIR are that a police party headed by Inspector Allan Khan Abbasi, SHO PS Bhit Shah, during course of patrolling on road leading from Bhit Shah Town to Bhit Shah. Mori when reached in front of Airport Bhit Shah at 0145 hours they saw a car standing on the road side in start position. One person was found sitting on the driver seat and the other was going to sit beside the driver seat, police asked them for checking of car, a person with tied hands stood up from eastern side of the road raising cries that car has been robbed from him. SHO Allan Khan and P.C. Manik went towards the driver and ASI Ghulam Qadir and P.C. Noor Muhammad went to other side of the car, on which accused made firing and police also in relation made firing. The SHO when tried to get the person sitting in the car down who made straight fire with his pistol upon SHO Allan Khan on his chest. P.C. Manik Khan caught hold said accused with pistol. Accused sustained injuries on his head during resistance, ASI Ghulam Qadir and P.C. Noor Mohammad apprehended the other accused. The injured accused, who made fire upon SHO, disclosed his name as Naheed Khan and the other as Nazeer Ali. Pistol of accused Naheed Khan was taken into police, custody and on checking found loaded with four live bullets. The pistol recovered from accused Nazeer Ali was found loaded with one bullet, which were un-licensed. After informing their higher officers, police referred the injured accused and SHO Allan Khan to Taluka Hospital Hala for treatment. The person was found tied disclosed his name as Ahmed son of Ibrahim Mallah and disclosed that his car was hired by the culprits from Matli and while going back they robbed it from him after tiding with string of his shalwar. ASI Ghulam Qadir prepared memo of arrest and recovery of weapons as well as car in presence of P.C. Manik Khan and P.C. Noor Mohammad. Then accused Nazeer and recovered property were brought at P.S. Hala, where ASI Ghulam Qadir lodged FIR on behalf of State. After completion of investigation case was challaned in the Court of law.

3. In view of section 21-M of the Anti-Terrorism Act, 1997 joint trial of offences was held wherein prosecution examined six (6) witnesses.

4. Statements of accused were recorded under section 342, Cr.P.C. wherein appellants/ accused denied the allegations and pleaded their innocence. However, neither they examined themselves on oath in disproof of the allegations as required under section 340(2), Cr.P.C. nor led any evidence in their defense. Learned Judge. Anti-Terrorism Court Hyderabad found both the appellants guilty for the commission of robbery of car and appellant/accused Naheed Khan was also held responsible for causing fire arm injury to SHO Allan Khan on his chest and convicted them as mentioned above vide impugned Judgment.

5. We have heard the arguments of Mr. Madad Ali Shah, Advocate for the appellant Nazeer Ali and Mr. Amjad Ali Sahito advocate for appellant Naheed Khan @ Naveed and Syed Meeral Shah the learned D.P.G. for the State.

6. Learned appellants' counsel attacked upon the impugned judgment mainly on the ground that from the prosecution story as set out in the FIR no scheduled offence seems to have been committed by the accused attracting provisions of sections 6 and 7 of ATA, 1997 but this is a simple case of robbery. According to learned counsel, the alleged causing of fire arm injury does not amount to an act of "terrorism" as contained in section 6 of the ATA and the injury to SHO Allan Khan at the most could be said causing hurt in committing robbery, hence learned Anti-Terrorism Court has no jurisdiction to try the case, as case, as such, the impugned judgment is liable to be set aside.

7. Learned D.P.G. Sindh contended that the appellants in furtherance of their common intention not only committed the robbery of the car in question but also made firing on Inspector Allan Khan SHO of PS. Bhit Shah, with intention of commit his murder, as such, their act apparently was designed to threat coerce and restrain the government officials from performing their lawful duties and such act created a sense of insecurity, as such, learned ATC has rightly exercised its jurisdiction. He further argued that the question of jurisdiction was not taken at initial stage by the appellants, therefore, same cannot be taken at appellate stage. He supported the impugned judgment.

8. We have given careful consideration to the arguments at bar and have gone through the record of the case.

9. It is settled law that a question of law can be raised at any stage as the point of jurisdiction goes to the very root of the case and renders the entire proceedings coram non judice, therefore, it could be taken even at appeal stage, as such the objection raised by learned Additional Advocate General Sindh on the point of jurisdiction is untenable. In this respect we are fortified by a dictum laid down in the case of Amanullah and others v. The State (PLD 2003 Quetta 11). So far as jurisdiction of the court in this case is concerned, in the case of Nazeer Ahmed and others reported in 2012 SCMR 517 it held that for bringing the case within the meaning of section 6 of the Anti-Terrorism Act, 1997 neither a motive nor intention for commission of the offence is relevant for the purpose of conferring jurisdiction on Anti-Terrorism Court but it is the act which is designed to create a sense of insecurity and to destabilize public at large which attract the provisions of section 6 of the ATA, 1997. In the case in hand, prosecution version is that at about 1-45 a.m. on a link road while committing robbery of the car a police party headed by Allan Khan, during routine patrolling, reached there and was attacked by the culprits. The nature of above allegations shows that the accused had not made attack on the police party to create any terror or sense of fear or insecurity in the people but all of a sudden on seeing the police party accused made firing in order to escape from wardat. From the entire resume, it is manifest on record that intention of accused was not at all to create sense of insecurity or destabilize the public-at-large, thus the design or purpose of the office as contemplated under section 6 of the Anti-Terrorism Act, 1997 is not attracted.

10. In view of the above principle laid down by the Hon'ble Supreme Court, we are of the considered opinion that the Anti-Terrorism Court had no jurisdiction to try the instant case, as such, the trial is vitiated and the impugned Judgment is untenable. As a consequence thereof the impugned judgment passed by Judge, ATC Hyderabad is hereby set-aside. The case is remanded. The Judge, ATC shall remit the case to the ordinary court having jurisdiction for its disposal according to law.

11. The observation given as above in the order shall not preclude the accused persons from applying for bail before the trial Court on any available ground. Appellant Nazir is on bail vide order dated 29.6.2010 which is converted into protective bail for 15 days from the date of announcement of this order, to enable him to appear in the trial court and move proper application for bail. HBT/N-12/Sindh Case remanded.