2020 P Cr (PLP)

MUHAMMAD TARIQ ABBASI, J.

The instant Constitutional Petition, challenges the vires of an order dated 05.10.2015, passed by the learned Additional Sessions Judge, Mandi Bahauddin, whereby an objection raised by the present petitioner, that the case was triable by Anti-Terrorism Court, hence may be transmitted there, has been over ruled.

2. An FIR No. 392, dated 06.09.2008, under sections 365-B/ 336/337A(ii)/337F(iii)/376, P.P.C., at Police Station Saddar, District Mandi Bahauddin, was got lodged by the present petitioner, namely Zain-ul-Abideen, with the contentions that Azhar Hussain, present respondent No. 7 (hereinafter referred to as the respondent) and his two brothers namely Mazhar and Sajid (co-accused since acquitted) had abducted his sister Mst. Samia Khanam and they while sprinkling acid, had also caused injuries to her.

3. The respondent and his above named brothers (since acquitted), were found to be involved, hence challan against all, was prepared and forwarded to the Sessions Court, Mandi Bahauddin and entrusted to an Additional Sessions Judge of the said district. At that time, the respondent was a proclaimed offender, hence the proceedings, to the extent of his above named co-accused were carried on, during which the present petitioner as well as the above named lady, had got recorded their statements as PW-1 and PW-2 respectively, whereby both had exonerated the co-accused of the charge. Consequently, through judgment dated 03.01.2009, the above named co-accused were acquitted of the charge.

4. The respondent, who at the time of above mentioned proceedings, was a proclaimed offender, was arrested later on, hence the trial to his extent had commenced in the court of learned Additional Sessions Judge, Mandi Bahauddin, when an objection was raised from the petitioner's side that as during the occurrence, acid was thrown upon the above named lady, hence offence, being described in third Schedule of the Anti-Terrorism Act, 1997, was triable by Anti-Terrorism Court and as such the case may be forwarded to the said forum. But the learned trial court, through the order in question, had refused to allow the objection and accept the request.

5. The alleged occurrence towards abduction of Mst. Samia Khanam and causing her the injuries by throwing acid upon her was committed on 01.09.2008. At that time, neither any penal clause for hurt through corrosive substance (including acid) was available in the Pakistan Penal Code, 1860 nor in third Schedule of the Anti-Terrorism Act, 1997, any such offence was described, because sections 336-A and 336-B, were inserted in the Pakistan Penal Code, through amendment dated 28.11.2011, whereas in the above said Schedule, the offence of hurt through corrosive substance was included on 05.09.2012.

6. From the above mentioned, it is clear that at the time of commission of the alleged occurrence, neither the above mentioned provisions of P.P.C., regarding hurt by corrosive substance were in field nor in the above said Schedule of the Anti-Terrorism Act, 1997, any such offence was included.

7. Article 12 of the Constitution of Islamic Republic of Pakistan, 1973, protects every citizen of Pakistan, against retrospective punishment. The said Article reads as under:-

12. Protection against retrospective punishment.

(1) No law shall authorize the punishment of a person

(a) for an act or omission that was not punishable by law at the time of the act or omission; or (b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed. (2) Nothing in clause (1) or in Article 270 shall apply to any law making acts of abrogation or subversion of a Constitution in force in Pakistan at any time since the twenty-third day of March, one thousand nine hundred and fifty-six, an offence."

8. All the above mentioned, lead to the conclusion that an accused could not be tried and punished for an offence, which at the time of commission of occurrence, was not made punishable, as retrospective effect to a penal provision could not be given. If any case law is needed, to fortify this view, reference can be made to the cases "Muhammad Fazal and others v. Saeedullah Khan and others" (2011 SCMR 1137) and "Khizar Hayat v. The State" (2012 SCMR 1066).

9. Consequently, permission could not be granted, for trial of the respondent, for offence of hurt by acid throwing, described in the above said provisions and the Schedule. In this way, the objection of the petitioner before the learned trial court, for sending the case to Anti-Terrorist Court, was totally unjustified and as such rightly turned down, through the order in question.

10. Resultantly, the writ petition in hand, having no force or merit, is dismissed. JK/Z-11/L Petition dismissed.