2001 PLP 1785 (SCMR)

SYED DEEDAR HUSSAIN SHAH, J.‑‑‑We intend to dispose of these four petitions by a common order as they arise out of the same question of law and fact involved in the common judgment passed by the learned High Court of Sindh dated 7‑4‑2000 whereby appeals filed by the petitioners were dismissed.

2. Brief f‑Wits of the case are that complainant Muhammad Akhtar along with P. W. Haji Muhammad Akram were going to Stock. Exchange Building situated at M.A. Jinnah Road. Because of a procession they had to park their Car No.ACL 468 to Tower. P.W. Muhammad Akram, leaving the complainant in the car, walked towards Stock Exchange Building. In the meantime while Muhammad Akram was watiting for the complainant, five persons emerged and on the pistol point snatched the car and drove the same towards I.I. Chundrigar Road. The complainant met P.W. Muhammad Akram on the way. While they were following the car they found a police mobile standing at I.I. Chundrigar Road. They informed the S.H.O. Asif Usman who was sitting in the mobile about the incident who took them in the mobile and chased the car and at railway crossing they came across the car where an exchange of firing took place in which petitioner Syed Kausar Abas received injuries. All the four petitioners, namely Syed Kausar Abbas, Syed Asif Hussain, Syed Zulfiqar Ali and Zubari Hussain were apprehended, whereas another culprit namely Jaffer made his escape good Police recovered one unlicensed pistol and four live bullets from Syed Kausar Abbas and one pistol and three live bullets from Syed Asif Hussain. Police brought the property and the petitioners at police station where Crime No.260 of 1999 under sections 395,397,353,324, 34 and 511, P.P.C. read with section 7B of the Anti‑Terrorism Act was lodged by the complainant. Two other cases under section 13(d) of the Arms Ordinance were also lodged against them being Crimes Nos.261 and 262 of 1999 at the same police station.

3. After usual investigation the police submitted charge‑sheet before the Anti‑Terrorism Court No.

1. At the conclusion of the trial, the petitioners were convicted under section 7‑B of the Anti‑Terrorism Act, 1997 read with section 34, P.P.C. and were sentenced to suffer R.I. for 7 years and also to pay a fine of Rs.25,000 each and in default to further undergo R.I. for 1‑1/2 years. The petitioners filed their respective appeals before the learned High Court which were dismissed as mentioned hereinabove.

4. Mr. Shafi Muhammadi, learned Advocate Supreme Court for the petitioners contended that the incident took place on 1‑10‑1999 and Notification No.SRP 1237(1)/97 was issued on 13‑12‑1999 whereby Schedule in the Anti‑Terrorism Act was amended and offences under section 2(b) and (c) by the Schedule were taken out from the purview of the Act as such the Judge, Anti‑Terrorism Court had no jurisdiction and the trial under the circumstances was coram non judice. He cited Pir Sabir Shah v. Shad Muhammad (PLD 1995 SC 66) and submitted that point of jurisdiction can be raised at any stage. He further contended that there are two versions of the incident, one is of prosecution and the other is that the petitioners were participants of the rally.

5. Mr. Sarwar Khan, learned Addition Advocate‑General pointed out that Anti‑Terrorism (Second Amendment) Ordinance XIII of 1999 was promulgated on 27‑8‑1999 by which new sections 7‑A and 7‑B were inserted which read as under:‑‑ . "7‑A. Creation of civil commotion. 'Civil commotion' means creation of internal disturbances in violation of law or intended to violate law, commencement or continuation of illegal strikes, go- slows, lock‑outs, vehicles snatching or lifting, damage to or destruction of State or private property, random firing to create panic, charging bhatha, acts of criminal trespass (illegal qabza). 7‑B. Punishment for creating civil commotion.‑‑Whoever commits an act of civil commotion shall be punished with rigorous imprisonment for a term which may extend to seven years and with fine." Learned Additional Advocate‑General further states that the incident took place on 1st October, 1999 and the trial Court keeping in view the above amendment rightly convicted and sentenced the petitioners under section 7‑B of the Act, that the petitioners were apprehended with the car snatched by

6. We have considered the arguments of the learned counsel for the parties: As regards point of jurisdiction due to Second Amendment mentioned hereinabove, Ordinance XIII of 1999 was promulgated on 27‑8‑1999 whereby sections 7‑A and 7‑B of the Act were inserted. From the prosecution story which has come on record, it is crystal clear that offence punishable under section 7‑A of the Act was committed and the trial Court very rightly convicted the petitioners under section 7‑B of the Act. With due deference, the case of Pir Sabir Shah (supra) is not relevant to the present case inasmuch as the petitions were charge‑sheeted by the police for an offence which was conginzable by the Anti‑Terrorism Court No.

1. Charge was accordingly framed and after conclusion of the trial the petitioners were convicted.

7. As regards contention of the learned counsel for the petitioners that there are two versions of the incident, one is of prosecution and the other is that the petitioners were participants of the rally, it is crystal clear from the evidence adduced by the prosecution that petitioners snatched the car from the complainant at the pistol point and took away the same which was subsequently recovered by the police. Petitioners were arrested and two unlicensed T.T. Pistols were also secured from them. From the above evidence, the second version that petitioners were participants of the rally is not borne out. On the contrary, two D.Ws. Abbas Hussain and Zamanat Hussain were examined who had disclosed that there was a rally of some sect of Muslims and they heard fire‑arm shots. Both the D.Ws. were cross examined by the Special Prosecutor and their evidence was not rightly considered be the trial Court. It has also come in evidence that petitioner Kausar Abbas during the incident received injuries which fact is supported by medical evidence.

8. We have thoroughly examined the evidence. Both the Courts below have properly appreciated and analysed the evidence. We also do not find any misreading or non‑reading in the evidence or any jurisdictional error in the impugned order. For the aforesaid facts and reasons, we are of the considered view that the petitions are devoid of merits and substance which must fail. Consequently, the same are hereby dismissed and leave is refused. N.H.Q./Z‑16/S Leave refused.