2000 PLP 902 (YLR)

By this revision the State has challenged the order, dated 13‑9‑1939 passed by a Special Judge, Anti‑Terrorism Court No. II Karachi in Special Cases Nos.294 and 295 of 1999 arising out of Crime No. 176 of 1999 under section 302/353/324, P.P.C., of Police Station, Mominabad and a F.I.R. No. 177 of 1999 under section 13‑D of the Arm Ordinance as an off shoot of the above stated crime of same Police Station, whereby the Judge of Anti‑Terrorism Court No. II had transferred the aforesaid special cases for trial to the Sessions Court, Karachi West.

2. The facts in brief as narrated by complainant Karim Khan are that his cousin Afsareen Khan had stood surety for accused Shamsur Rehman alias Shamsoo Dakoo alias Khalid in a dacoity case. After some time the accused jumped his bail for which Afsareen Khan contacted his father and narrated him the trouble that he was facing for non -attendance of the Court by accused. Upon which the exchange of harsh words took place between them as a result of which Afsareen Khan slapped the father of accused Shamsur Rehman. Accused was annoyed for the said act of deceased and after about 10/15 days he returned to Karachi. On the day of incident while complainant was present in his house, a boy informed him that two persons in the hotel of Zairt Khan killed Afsareen Khan. The complainant while going to hotel saw two persons running away. The police and mohallah people were chasing them. There was a cross fire between accused and the chasing party including police as a result of which both the accused sustained fire‑arm injuries. Ultimately the present accused Shamsur Rehman was apprehended while another accused died on the spot. The complainant took up dead body of Afsareen Khan in a Suzuki to Abbasi Shaheed Hospital. The present accused disclosed the name. of another accused to be Hamid Khan.

3. The F.I.R., was initially recorded under section 302/353/324/34, P.P.C. None of the section was scheduled offence of Anti Terrorism Court. The police also recovered certain fire‑arm weapons for which separate F.I.R., was registered under section 13‑D of the Arms Ordinance against present accused bearing crime No.77 of 1999.

4. The police carried out investigation in the matter and submitted challan on 30‑6 1999 before Judicial Magistrate No. 1 Karachi West. Thereafter, challan was submitted before Administrative Judge, Presiding Officer of Anti‑Terrorist Court No. I, Karachi on 3‑8‑1999 by applying sections of the Act in addition to the aforesaid sections of P.P.C., in order to attract the jurisdiction of Special Court. In view of the aforesaid facts, the case was assigned to Court No. II of Anti Terrorism, Karachi.

5. The matter was examined by the learned Special Judge who came to the conclusion that section 7 of the Anti Terrorism Act had no applicability to the facts and circumstances of the instant case. He then transferred the case to Sessions Court.

6. It is contended by Mr. S. Jalil A. Hashmi that the ingredients of sections 6 and 7 are attracted in this case and Special Court has committed an error by sending the case to Sessions Court for trial as the accused had indulged themselves in cross‑fire with police.

7. Admittedly the weapons required under the Act to attract the jurisdiction of Special Court were not used in the commission of offence. The case was only assigned to Special Court by applying section 7 of the Act. The main ingredients of section 7 of the Anti‑Terrorism Act are not attracted in the present case as this incident has occurred due to previous incident of slapping to the father of accused and the intention was not to cause terror or create sense of fear and insecurity in the people. The reasons of vindication of family enmity and the motive have been displayed in the F.I.R. No doubt the people had gathered and chased the culprits in aid to police but the initial intention of accused was to take revenge from deceased.

8. In view of these facts, this case is in line with the dictum laid down by apex Court in Moharram Ali's case PLD 1998 SC 1445, wherein, it is held that murder committed due to personal enmity would not attract provisions of sections 6 and 7 of the Act and under these circumstances the matter would be tried by ordinary Civil Court.

9. Furthermore, the criminal revision against the order called in question cannot be maintained under the provisions of Anti Terrorism Act, 1997 (hereinafter referred to as Act). There is no specific provision in the Act for challenging the order by way of 1 revision. The only section in the Act is section 32 which makes the provisions of Cr.P.C., available for certain purposes, in case they are not inconsistent to any provision of Act. Section 32 of the Act reads as under: ‑‑ "

32. Overriding, effect of Act.‑‑‑(I) The provisions of this Act shall have effect notwithstanding anything contained in the Code or any other law but, save as expressly provided in this Act, the provisions of the Code shall, in so far as they are not inconsistent with the 'provisions' of this Act, apply to the proceedings before an Anti‑Terrorism Court and for. the purpose of the said provisions of the Code, an Anti‑Terrorism Court shall be deemed to be a Court of Sessions. (2) In particular and without prejudice to the generality of the provisions contained in subsection (1), the provisions of section 350 of the Code shall, as far as may be, apply to the proceedings before an Anti Terrorism Court and for this purpose any reference in those provisions to a Magistrate shall be construed as a reference to an Anti‑Terrorism Court."

10. Provisions of section 32 make the provisions of Code of Criminal Procedure applicable in case if they are not inconsistent with other provisions of Act as stated above. While considering the question of applicability of sections 435 and 439, Cr.P.C., sections 25 and 31 of the Act are to be examined and they read as under:‑‑‑ "Section

25. Appeal‑‑‑ (1) An appeal against the final judgment of an Anti‑Terrorism Court shall lie to a High Court. (2) Copies of the judgment of an Anti Terrorism Court shall be supplied to the accused and the public prosecutor free of cost on the day the judgment is pronounced and the record of the trial shall be transmitted to the High Court within three days of the decision. (3) An appeal under subsection (1) may be preferred by a person sentenced by an Anti‑Terrorism Court to a High Court within seven days of the passing of the sentence. (4) The Attorney‑General or an Advocate‑General may, on being directed by the Federal or Provincial Government, file an appeal against an order of acquittal or a sentence passed by an Anti‑Terrorism Court within fifteen days of such order. (5) An appeal under this section shall be heard and decided by a High Court within seven working days." "Section

31. Finality of‑judgment.‑‑ A judgment or order passed, or sentence awarded, by Anti‑Terrorism Court subject to the result of an appeal under this Act shall be final and shall not be called in question in any Court."

11. The bare reading of section 31 of the Act shows that judgment or order passed or the sentence awarded by the Anti‑Terrorism Court, subject to the result of an appeal shall be final. This section 31 is purposely enacted by the legislature, keeping in view that the trial is to be concluded within 7 days and so also the appeal by the High Court. Section 25 of the Act is more clear on the point as after the judgment is pronounced, the copy is to be supplied to accused as well as to Public Prosecutor and record is to be transmitted to the High Court within three days. Procedure is made automatic under the Act and the appeal is only permitted against the judgment of conviction and order of acquittal. All other orders become final in view of section 31 of Act. As such, sections 435 and 439, Cr.P.C., are inconsistent to the above provisions of the Act.

12. The order passed by Special Court cannot be challenged by way of revision as the appeal is provided only against the judgment of conviction and/or order of acquittal. The provisions of sections 25, 31 and 32 of the Act are to be read in' conjunction to each other and do not permit the order passed by Special Court be challenged in revision.

13. For the foregoing reasons, we are clear in our mind that criminal revision cannot be maintained.

14. We had dismissed this Criminal Revision in limine by a short order, dated 11‑11‑1999 and above are the reasons for the same. N.H.Q./S‑3/K Revision dismissed.