P L D 2020 Lahore 332 (PLP)

CH. ABDUL AZIZ, J.

The instant petition moved under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is directed against order dated 24.06.2019 passed by learned Judge, Anti-Terrorism Court, Bahawalpur Division Bahawalpur (hereinafter referred to as the "Impugned Order") whereby he transferred the case arising out of FIR No.211/2018 dated 05.05.2018 registered under sections 302,364,148 and 149 P.P.C. at Police Station City Liaqatpur, District Rahim Yar Khan to the court of ordinary jurisdiction.

2. Concisely, stated the facts of the case which led to the filing of instant petition are to the effect that on 02.05.2018 at about 12:00 Noon, Imran son of Parveen Bibi (complainant) was present in his house; that one Saifal son of Muhammad Aslam Bhatti took Imran along with him on his motorcycle Honda CG-125 which was purchased on installments; that when Imran did not return home till evening, Parveen (complainant) went to the house of Saifal but he was not present there; that the mobile phone of Muhammad Imran was found switched off and despite search efforts no clue of Imran was found; that on 05.05.2018 Parveen Bibi (complainant) came across Muhammad Jumshaid and Muhammad Sadiq who informed her that on 02.05.2018 Imran was seen while heading towards Qasimwala Bungla in the company of Saifal etc; that when Parveen Bibi and other witnesses went to the forest area they found a dead body lying there, which was identified as of Imran from shoes, clothes and motorcycle; that Muhammad Imran was done to death after merciless torture and his dead body was mutilated by pouring acid upon it. After completion of investigation, report under section 173, Cr.P.C. was submitted in Anti-Terrorism Court, Bahawalpur Division Bahawalpur but it was opined by the learned Special Judge, Anti-Terrorism Court that since offence under section 336-B P.P.C. does not attract, hence he lacks jurisdiction to try the case; resultantly, the case was transferred to the court of ordinary jurisdiction through the Impugned Order.

3. It is contended by learned counsel for the petitioner that it is specifically mentioned in the crime report that the dead body was mutilated by pouring acid thereupon in order to render it unidentifiable; that according to Third Schedule of Anti-Terrorism Act, 1997 the offence of hurt caused by corrosive substance is triable by the Special Court; that the allegation of mutilating the dead body through acid was well supported by the postmortem of the deceased; that the Special Judge, ATC had no jurisdiction to pass the order for transfer of the case to the court of ordinary jurisdiction without recording of prosecution evidence and that since the Impugned Order is contrary to judicial as well as statutory directions, hence suffers from perversity, thus is liable to be set-aside.

4. On the other hand, learned law officer assisted by learned counsel for the respondents came forward with the submissions that the case in hand is to be tried by the court of ordinary jurisdiction as from the facts and circumstances, the same does not fall within the purview of either section 6 of Anti-Terrorism Act, 1997 or its Third Schedule; that it reasonably spells out from the crime report that the acid was thrown upon the deceased not before his death but subsequent thereto for the purpose of concealing his identity; that even from the postmortem report it emerges that the death of the deceased cannot be opined to have been taken place due to acid burns and that even otherwise no allegation of terrorism is involved in this case, thus no exception can be taken about the Impugned Order.

5. Arguments heard. Record perused.

6. It evinces from the scanning of record that the case in hand was registered regarding the unnatural death of one Muhammad Imran, whose corpse was found lying in a forest with the marks of acid burns. Initially, the case was registered under sections 302,364,148 and 149, P.P.C., however during probe the offence under section 336-B, P.P.C. was also added. The offence under section 336-B, P.P.C. stands attracted if hurt is caused through corrosive substance. Since the causing of hurt by corrosive substance or any attempt to do so was included in the Third Schedule of Anti-Terrorism Act, 1997, hence report under section 173, Cr.P.C. was submitted in the Special Court. Before proceeding any further, we consider it appropriate to reproduce Item 4(iv) of Third Schedule annexed with Anti-Terrorism Act, 1997 whereby causing of hurt through corrosive substance was made triable under the same Act. The relevant portion of the Third Schedule is being reproduced hereunder:- "

4. Without prejudice to the generality of the above paragraph, the Anti-Terrorism Court to the exclusion of any other Court shall try the offences relating to the following, namely:- (i) .. (ii) . (iii).. ........................................ (iv) Hurt caused by corrosive substance or attempt to cause hurt by means of a corrosive substance;" The plain reading of item 4 (iv) mentioned above unfolds that according to intent of legislature, only cases of causing hurt through corrosive substance are made triable by a Special Court constituted under Anti-Terrorism Act, 1997 and not the cases of death caused through same manner. It needs no mention that corrosive substance is defined in the explanation of section 336-A, P.P.C. in the following terms:- "In this subsection, unless the context otherwise requires, "corrosive substance" means a substance which may destroy, cause hurt, deface or dismember any organ of the human body and includes every kind of acid, poison, explosive or explosive substance, heating substance, noxious thing, arsenic or any other chemical which has a corroding effect and which is deleterious to human body." It alludes, inexorably, from the autopsy report that the dead body was mutilated by pouring acid thereupon but even then, in our wisdom, the case does not fall within the jurisdiction of Special Court constituted under Anti-Terrorism Act, 1997. While holding so, we have in our minds that firstly, the complainant herself mentioned in the crime report that the acid was poured upon the corpse of the deceased after his death. Secondly, the medical officer even after the receipt of report from PFSA expressed his inability to opine with certainty about the actual causes which led to the death of Muhammad Imran (deceased). Thirdly, the case in hand is of homicidal death and not of causing hurt as the latter stands for causing injury to a living person. We are mindful of the fact that if a person loses his life after the receipt of some injuries, then the perpetrator is to be held guilty only for causing death and not to be indicted or punished for the kind of injuries inflicted by him. In support of our afore-mentioned view, we feel pressing need to mention here as to how the expression "hurt" is defined in section 332(1) P.P.C. Since only the word "hurt" is used in item 4 (iv) of Third Schedule of Anti-Terrorism Act, 1997, hence for advantage sake section 332(1) is being reproduced which is as under:- "

332. Hurt. (1) Whoever causes pain, harm, disease, infirmity or injury to any person or impairs, disables [disfigures, defaces] or dismembers any organ of the body or part thereof of any person without causing his death, is said to cause hurt." A meticulous examination of above-mentioned provision of law reveals that the expression "hurt" stands only for harm or injury etc which is inflicted without causing the death of the victim. If the harm, infirmity or injury caused by the perpetrator ends with the death of the victim, he can only be convicted under section 302 P.P.C. and not for the kind/nature of injury caused by him. Likewise, such an accused can only be indicted with the accusation of committing "qatl-i-amd" and can in no manner be charged with the nature of hurt caused by him. In these circumstances, when accused persons cannot be charged or convicted for causing hurt through corrosive substance then the case does not attract the mischief of Item 4 (iv) of the Third Schedule of Anti-Terrorism Act, 1997. As a necessary corollary, the jurisdiction of Anti-Terrorism Court is ousted and the case in hand comes within the purview of ordinary criminal court. It needs no scholarly discussion to prove that Anti-Terrorism Court derives its jurisdiction under section 12 of Anti-Terrorism Act, 1997 which is extended only to the extent of scheduled offences and is exclusive to that extent. Now the question arises that what is the material on the basis of which class of cases to be tried by court established under Anti-Terrorism Act, 1997 is to be ascertained. In this regard, it is observed by us that question of jurisdiction is to be determined from the nature of accusation contained in crime report and statements of witnesses, material collected during investigation and placed before the court along with report under section 173, Cr.P.C. While holding so, we are guided by the case law reported as Allah Din and 18 others v. The State and another (1994 SCMR 717), wherein the Hon'ble apex Court while deciding the question of jurisdiction of Special Court constituted under erstwhile law relating to catering with the menace of terrorism in the country called as Suppression of Terrorist Activities (Special Courts) Act, 1975, observed as under:- "We are in agreement with view expressed in the reported judgment mentioned above, and further observe that question of jurisdiction can be determined on the basis of F.I.R. and other material which is produced by the prosecution at the time of presentation of the challan." On the touchstone of above observation of the Hon'ble Supreme Court of Pakistan, we have perused the record and have found that the solitary reason upon which the case was placed before Anti-Terrorism Court is the use of corrosive substance for maiming the dead body of Muhammad Imran. Hence, in accordance with what has been discussed above, we have also gone through the Impugned Order passed by learned Judge, Anti-Terrorism Court, Bahawalpur Division Bahawalpur and have not come across any perversity warranting our interference. Resultantly, the petition in hand is dismissed as having no merits. MH/P-14/L Petition dismissed.