1999 PLP 2644 (MLD)

FAQIR MUHAMMAD KHOKHAR, J.

The petitioner calls in question the order dated 20-1-1998 passed by the learned Special Judge, Anti Terrorism, Faisalabad, holding that the case against the petitioner was exclusively triable by the Special Judge. A case F.I.R. No.546, dated 2-7-1997 was registered against the petitioner and others under sections 302/452/365/ 337-L (ii) /337-L (iv)/337-H(ii)/148/149, P.P.C., at Police Station Ghulam Muhammad Abad, Faisalabad. on the complaint of Muhammad Arshad. It was stated in the F.I.R. that the petitioner, Asghar Ali, armed with gun, Tariq alias Bao armed with 30 bore automatic pistol, Imtiaz armed with iron rod and two unknown persons armed with sticks came to the house of the complainant and gave the bell. The petitioner and other co-accused allegedly entered the house and dragged Muhammad Akbar, the brother of the complainant to their house. The deceased allegedly sustained blunt injuries at the hands of the petitioner and other co -accused. The accused threw Muhammad Akbar outside the house. He was removed to the Allied Hospital, Faisalabad, where he succumbed to the injuries. The motive for the offence was that deceased Muhammad Akbar had admonished the petitioner for making a noise under intoxication. The police submitted the challan against the petitioner and other co-accused before the learned Special Judge on the lines of the F.I.R.

3. Learned counsel for the petitioner argued that the prosecution material did not disclose an offence under section 365 P.P.C. so as to justify the trial by the learned Special Court.

4. On the other hand, learned counsel for the complainant argued that the case was exclusively triable by the learned Special Court inasmuch as the deceased Muhammad Akbar had been kidnapped for consideration. Learned Assistant Advocate General, Punjab, has stated that the petitioner and other co- accused had caused the injuries to the deceased mercilessly which did make a case for exclusive trial by the learned Special Judge.

5. We have heard the learned counsel for the parties and gone through the F.I.R. and other available record in order to determine whether the case was exclusively triable by the learned Special Judge. There is no allegation in the F.I.R. or even in the final police report under section 173, Cr.P.C. that the petitioner and other co-accused had kidnapped the deceased with intent to cause secret and wrongful confinement which was essential ingredient to attract the offence under section 365, P.P.C. Similarly there is nothing on the record to show that the deceased had been kidnapped for ransom or other consideration so as to fall under the provisions of section 365-A, P.P.C. In our tentative assessment, the deceased had been kidnapped in order to be murdered this constituted an offence under section 384, P.P.C. not falling within the schedule of the Anti-Terrorism Act, 1997, as amended by Notification dated 13-12-1997 issued by the Government of Pakistan, Ministry of Law, Justice, Human Rights and Parliamentary Affairs, Islamabad. Since the petitioner and other co-accused are not prima facie guilty of scheduled offence, they are not liable to be tried by the learned Special Court, constituted under the Anti-Terrorism Act, 1997. We are not expected to make deeper appreciation of prosecution case or the defence plea. Reference may be made to the case of Allah Din and 18 others v The State and another (1994 SCMR 717).

6. For the foregoing reasons, the impugned order dated 20-1-1998 passed by the learned Special Judge, Anti-Terrorism, Faisalabad, is declared to be without lawful authority and of no legal effect. Consequently, the case shall be sent to the Court of competent jurisdiction for trial. This writ petition is accepted with no order as to costs. Q.M.H./M.A.K./A-271/L Petition accepted.