Sher Muhammad Khan, J.--Appellants Asfar Ali alias Afsar Khan and Taj Mal sons of Misal Khan r/o Bangi Khan Khojari, Bannu, were convicted by learned Additional Sessions Judge-V, Bannu, vide Judgment/Order dated 22.04.2009 and sentenced to punishment with death under Section 302 (a)
PPC on two counts with fine of Rs: 1,00,000/- each, in default of payment of fine they were further ordered to undergo six months S.I. Each of the appellants were also burdened to pay compensation 'of Rs, 3,00,000/- to the legal heirs of each deceased under Section 544-A Cr.P.C. or in default to undergo further six months S.I, in case FIR No, 112 dated 15.09.1991 under Sections 302/324/34 PPC Police Station, Cantt: Bannu.
2. They have filed the instant appeal, praying therein that the Judgment/Order of conviction be set aside inter alia on the ground that the learned trial Court lacked jurisdiction to try the appellants.
3. Without dilating upon the merit of the case learned counsel for the appellants stressed that the question of jurisdiction of the trial Court is of vital importance, therefore, be decided first.
4. He argued that the occurrence, took place in the year 1991 and according to the contents of FIR the appellants were charged for firing with Kalashnikovs at the deceased Adil Zaman and Noor Jan alias Jan. According to him, in the light of allegations leveled against the appellants in the FIR, their case was exclusively triable by the Special Court constituted under Section 3 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter called Act of, 1975). Section 4 of the Act ibid, provides that notwithstanding anything contained in the Code the scheduled offences shall be triable exclusively by the Special Court, as per schedule appended under Section 2(b) of the Act ibid, if read with amended Ordinance No, XXV of 1988 & Ordinance No, X of 1989 and Act No, V of 1990 applicable w,e,f, Nova 1988. Reported in PLD 1991 Central Statute 106. Therefore, the cognizance of the offence, in the light of the above mentioned provision of law, was exclusively to be taken by the Special Court and not by any ordinary Court of Sessions but in the instant case the cognizance has been taken by learned Additional Sessions Judge-V, Bannu, who was not empowered or authorized as a Special Judge for the trial of the instant case. His next contention was that the said Act was repealed vide Section 39(1) of the Anti-Terrorism Act, 1997 vide Ordinance No, XXXIX of 2001.
Sub-section (2) of Section 39 of the said Act provides certain protections, and indemnity to the past proceedings etc. He argued that cases which were to be decided by the Special Court under, the Act of 1975, were to be tried by the Courts constituted under Anti-Terrorism Act, 1997 after the abolition of the Special Courts constituted under the Act of 1975 because the newly established Anti-Terrorism Courts are successors of the old Courts in respect of the cases which were triable by that Courts before the promulgation of Anti-Terrorism Act, 1997. In support of his arguments he referred to the Judgment, delivered in case titled Syed Azmat Ali Shah & others versus The State & others PLD 1999 Peshawar 39, wherein it is has been ruled:-- "----Ss.. 4 & 5---Court of a Special Judge under Suppression of Terrorist Activities (Special Courts)
Act, 1975, had exclusive jurisdiction to deal with matters involving scheduled offences and was a Court of original jurisdiction--All remands etc. must be obtained from Special Court and from no other Court at all---Accused from date of arrest, having not been produced before Special Court, their detention was without lawful authority and such illegality could not be legalised or regularised by. any subsequent order passed at a belated stage even by a Court of competent jurisdiction".
He also placed reliance on the Judgment titled Muhammad Akram versus The State reported in PLD 2003 Peshawar 1'42 and PLD 2005 Supreme Court 530 titled Mirza Shaukat Baig & others versus Shahid Jamil & others.
5. Learned counsel for the complainant and DAG for the state in rebuttal argued that though the occurrence has taken place in the year 1991 and at that time the Special Courts constituted under the Act of 1975 had exclusive jurisdiction to try the case of the appellants, but as they remained absconders for more than 17 years and were arrested on 20.06.2008, when that Special Courts were not in existence and the Ordinary Courts of law had to take cognizance and try the accused, therefore, the Judgment/Order of the learned trial Court is not without jurisdiction and the appeal filed the appellants be decided on merits.
6. We have gone through the relevant provisions of law referred' to by the learned counsels for the appellants. We are of the opinion that the case in hand was admittedly exclusively triable by Special Court constituted under the Act of 1975. The Courts had to take cognizance of the offences, committed in the relevant time and not on the date of the arrest of accused. In the case in hand the relevant time (with reference to jurisdiction of Special Court) would be date of occurrence and not that of arrest. In the instant case admittedly accused were arrested on 20.06.2008 but the case was registered on 15.09.1991, which was exclusively triable by Special Courts constituted under the Act of 1975 at that time. That Courts, admittedly were not in existence at the time of the arrest of the accused but its successor forum, the Anti-Terrorism Court established under Section 13 of the Anti- Terrorism Act, 1997, amended through Ordinance No, XXXIX of 2001 was in existence. The Act of 1975 was repealed vide Section 39(1) of the Anti-terrorism Act, 1997 but the previous operations of laws were given protection by sub-Section (2) of Section 39 of the Act ibid is in the following words:-- "(2) Notwithstanding the repeal of the Suppression of Terrorist Activities (Special Courts) Act, 1975 (XV of 1975) and the amendment of the Anti-Terrorism Act, 1997 (XXVII of 1997), by the Anti- Terrorism Act (Amendment) Ordinance, 2001-- (a) Every order, decision or judgment passed by any Anti-Terrorism Court constituted under this Act of Special Court. constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, or any Appellate Court before such repeal or amendment shall remain in force and operative and the repeal or amendment shall not affect the previous operation of the law or anything duly done or suffered or punishment incurred; (b)Every case, appeal and legal proceedings whatsoever filed or pending before any Court under the Suppression of Terrorist Activities (Special Courts) Act, 1975, including the High Court and the Supreme Court shall continue to be proceeded within accordance with law before the concerned Court of competent jurisdiction, including the Court established under this Act, and all orders passed, decisions made and judgments delivered whether in the past or which may be made delivered hereafter by such concerned Court whether original, appellate or revisional, shall be deemed to have been validly and competently made; (c)All convictions made, punishments or sentences awarded by the Anti-Terrorism Court or Special Court or an Appellate Court before such repeal or amendment shall be executed as if the said Acts were in force; (d)Any investigation or inquiry under this. Act or the Suppression of Terrorist Activities (Special Courts) Act, 1975 made or instituted before the commencement of the Anti-Terrorism (Amendment) Ordinance, 2001, shall continue to be made and proceeded within accordance with law.
(e)All cases pending before the Anti-Terrorism Court or Special Court immediately before the commencement of Anti-Terrorism Amendment Ordinance, 2001, if not covered by this Act or clauses (a) and (b) above shall stand transferred to the respective Courts of Sessions of the area or such other Courts of competent jurisdiction where the cases were registered against the accused and such Courts shall proceed with the cases from the stage at which they were pending, without the necessity of recalling any witnesses; (f)The Court Sessions or, as the case may be, any other Court to which a case has been transferred from the Anti-Terrorism Court or a Special Court under Clause (d) shall try it in accordance with the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), and the law applicable to such case".
7. The above provision of law is very clear and leaves no doubt for taking a different view, therefore, in the light of above provision of law we are of the view that the learned Additional Sessions Judge- V, Bannu had no jurisdiction to try the appellants in the case which exclusively fell within the jurisdiction of Anti-Terrorism Court established in 1997, hence, without going into the merits of the case, this appeal is accepted, the judgment/order of the learned Additional Sessions Judge-V, Bannu dated 22.04.2009 is set aside and the case is remanded back to the Anti-Terrorism Court, Bannu for de-novo trial. The learned Anti-Terrorism Court is directed to take cognizance of the case and conclude the trial within the shortest possible time but not exceeding four months from the date of the receipt of file and commence the trial of the, case strictly in accordance with law.
The learned trial Court is at liberty to form his own independent view of the evidence so recorded by the prosecution and deliver fresh Judgment.
8. As the above appeal has been accepted and the conviction and sentence is set aside, therefore, the Murder Reference No, 3 of 2009 is answered in negative.