GULZAR AHMED, J.---The petitioner was implicated in F.I.R No.530 of 2009, under section 25-D, Telegraph Act and section 507, P.P.C. Read with section 7(b)(ff) Anti-Terrorism Act, 1997, Police Station Boat Basin, Karachi. The case was sent up for trial to the Anti-Terrorism Court-I, Karachi, who after trial has passed the judgment dated 25-5-2010, in which the Court has given the following finding:-- "The offence with which the accused stands charged were offences as defined in sections 6(2)(d) and 6(2)(ee) of Anti-Terrorism Act, 1997. From the evidence as discussed above the ingredients of section 6(2)(d) the doing of anything which is likely to cause death or endangers a person's life was required to be proved. There is evidence of P.W. SIP Muhammad Masood has proved that nothing was done to the Bilawal House or in the vicinity to endanger human life. It was just an obnoxious call to madadgar '15' that Bomb has been planted to blow up the Bilawal House. Neither any bomb was found at Bilawal House nor in the vicinity as deposed by above witness.
As regards the charge under section 6(2)(ee) explosive including bomb blast was required to be proved. Involving of use of such device including bomb blast has also not been proved. The site was inspected by the I.O. When he received this information and, also by Bomb Disposal Squad who had cleared the premises free from any explosive device including a bomb. Thus these charges are not proved.
In the circumstances both the charges are dropped, but it is proved that accused had committed criminal intimidation by anonymous communication, which is an offence punishable under section 507, P.P.C., which provides that who ever commits the offence of criminal intimidation by an anonymous communication, or having taken precaution to conceal the name or a body of the person from whom the threat comes, shall be punished with imprisonment of either description for a term which may extend to 2 years.
It has come in evidence that the accused had obtained a SIM in the name of his cousin Jibran, used it to make a call to Madadgar "15" police and disclosed that he had planted a bomb to demolish Bilawal House and then threw away the SIM in a WC to conceal the same and thus he had made an anonymous communication of criminal intimidation which had created insecurity among the police officers and resident of Bilawal House.
Point No. 3 I accordingly convict the accused Muhammad Bilal @ Sulleman son of Muhammad Shamshad Shaikh for offence under section 507, P.P.C. r/w section 17 of Anti-Terrorism Act, 1997 and sentence him to R.I for two years. The period during which accused remained in custody during trial will be continued towards the sentence under section 382-B, Cr.P.C.
Accused Muhammad Bilal (a Sulleman son of Muhammad Shamshad Shaikh present in custody and he is remanded to custody with conviction warrant to serve out the sentence."
2. It is contended by learned counsel for the petitioner that the impugned judgment is altogether illegal inasmuch as the Anti-Terrorism Court was not competent to convict and sentence the petitioner under section 507, P.P.C. As it was not a scheduled offence and provisions of section 17 of the Anti-Terrorism Act, 1997 (the Act) were not attracted in the matter. He has further contended that as the petitioner has not filed appeal against the said judgment as it has become time- barred, the petitioner seeks direction of granting him remissions. He has relied upon the cases of Muhammad Sharif v. The State (2005 PCr.L.J 941) and Munir Ahmed v. The State (2006 YLR 366).
3. Learned D.A.-G., on the other hand, has contended that the petitioner having been convicted under section 507, P.P.C., which being not a scheduled offence under the Act, he may be granted remissions.
4. Learned D.P.-G. Has opposed the petition and contended that there is no illegality in the impugned judgment and petitioner is also not entitled to the grant of remissions.
5. We have considered the submissions made by learned counsel for the parties and have gone through the record.
6. As noted from the operative part of impugned judgment which is quoted above, the Anti- Terrorism Court has given findings that charges under sections 6(2)(d) and 6(2)(ee) of the Act has not been proved against the petitioner and such charges are dropped and the only charge which was proved against the petitioner was that of criminal intimidation, which is an offence punishable under section 507, P.P.C. And convicted him under the said section read with section 17 of the Act and sentenced him to R.I. Of two years with benefit of section 382-B, Cr.P.C.
7. Section 17 of the Act provides for powers of Anti-Terrorism Court with respect to other offences.
Section 23 of the Act deals with power to transfer case to regular courts. Both the provisions are as follows:-- "(17) Powers of Anti-Terrorism Court with respect to other offences.-- When trying any scheduled offence, Anti-Terrorism Court may also try any offence other than the scheduled offence with which the accused may, under the Code, be charged at the same trial.
(23) Power to transfer cases to regular Courts.-- Where, after taking cognizance of an offence, Anti-Terrorism Court is of opinion that the offence is not a scheduled offence, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for trial of such offence to any Court having jurisdiction under the Code, and the court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence."
Section 17 allows the Anti Terrorism Court when trying any scheduled offence also to try any offence other than the scheduled offence with which the accused may be charged at the same trial. Section 23 provides that after taking cognizance of an offence, Anti-Terrorism Court is of opinion that offence is not a scheduled offence it shall notwithstanding that it has no jurisdiction to try such offence, transfer the case for trial of such offence to any Court having jurisdiction under the Code and the Court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence.
8. The apparent meaning which one can make out from the provisions of section 17 is that that Anti-Terrorism Court will have power to try non-scheduled offence only when it is trying scheduled offence i.e. Scheduled and non-scheduled offences can be tried together in one and the same trial.
Power to try non-scheduled offence will not be available to the Anti-Terrorism Court under this section when it is not trying any scheduled offence.
9. Once the Anti-Terrorism Court has tried the offence and has formed an opinion that the case of scheduled offence is not made out, in terms of section 23 it will have no jurisdiction to pass any judgment in the case rather the same will have to be transferred to the Court having jurisdiction under the Code who will proceed with The trial of the offence as if it had taken cognizance of the offence.
10. In the present case, though the Anti-Terrorism Court was trying offence under section 6 of the Act but at the final conclusion came to an opinion that the offence under section 6 of the Act has not been proved and thus dropped the charge under the said section. The Court, however, came to conclusion that charge of section 507, P.P.C. Has been proved against the petitioner and by invoking the provision of section 17 of the Act proceeded to convict the petitioner under section 507, P.P.C. Thus, when the Anti-Terrorism Court has formed an opinion that the only offence proved against the petitioner was of section 507, P.P.C., it ought not have proceeded to convict and sentence the petitioner for the reason that section 23 of the Act itself does not give jurisdiction to the Anti Terrorism Court to pass judgment on case of a non-scheduled offence. In lc the case of Nasir Masih v. The State and another (2008 PCr.LJ 713), a Full Bench of Lahore High Court has observed that mere commencement of trial is not a ground for disallowing the prayer of the 'petitioner as under section 23 of the Act, Anti-Terrorism Court in case of nonscheduled offence is duty bound to transfer it to the Court of ordinary jurisdiction.
11. In view of this legal position, only result that can follow from it is that the impugned judgment is without jurisdiction and nullity in the eye of law and cannot be maintained.
12. Having come to such conclusion the next point that needs to be considered is as to what is to be done about impugned judgment, which as discussed above, has been found to be without jurisdiction and nullity in the eye of law. The remedy against the judgment of Anti-Terrorism Court is by way of an appeal to the High Court under section 25 of the Act for which the limitation period is fifteen days from the passing of sentence. Thus, in order to do complete justice between the parties and to give effect to mandate of law, we convert this Constitutional Petition into Special Anti-Terrorism Appeal. Though the appeal is time-barred but as the very judgment of Anti Terrorism Court is without jurisdiction and nullity in the eye of law, no limitation against such judgment will run against the appellant. In this respect reference is made to the case of Muhammad Sharif v. The State (2005 PCr.LJ 941) (Supra)
13. We, therefore, allow this appeal, set aside the impugned judgment and remand the matter back to the Anti-Terrorism Court-I, Karachi for transmitting the case to the Court of Sessions Judge, Karachi-South for trial in accordance with law.
14. Office is directed to register this matter as Special Anti-Terrorism Appeal and to show its disposal as above.