Muhammad Hashim Khan Kakar, J.--Brief facts, forming the back ground of the instant writ petition, are that crime No. 03 of 1999, dated 30th May 1999, under Section 302 read with Section 34 of the PPC, was lodged with levies station, Deringar, district Mastung, by one Juma Khan, against Respondent No. 1 and his companions, regarding the murder of Rehmatullah and Mst. Amina, on the allegation of siyahkari. After submission of the challan, the trial, in absentia, was conducted by the Special Judge, Kalat at Mastung, under the Suppression of Terrorist Activities (Special Court)
Act, 1975 (hereinafter referred to as the "Act of 1975") and Respondent No. 1, Khuda-e-Rahim, and his companions, viz, Ali Gul, Muhammad Afzal and Allah Gul were convicted and sentenced to suffer life imprisonment with fine of Rs. 100,000/- (rupees one lac only), payable to. he heirs of the deceased.
2. The record is indicative of the fad that Respondent No. 1, after a lapse of about 11 years, moved an application under Section 5A(7) of the Act of 1975, before Respondent No. 2 i.e. the Sessions Judge, Kalat at Mastung, seeking the suspension of the order dated 27th October 1999. passed by the then Special Judge, Suppression of Terrorist Activities Court. The Sessions Judge, Kalat at Mastung, after acceptance of the said application, set aside the conviction order being passed in absentia in the following manner: "In view of above patent illegalities in trial of applicant/convict in absentia, the applicant/convict entitled to be re-trial according to law. Accordingly, I allow the application and the conviction/ sentence awarded to the accused/ applicant vide judgment dated 27-10-1999 is set-aside. A copy of this order be sent to Tehsildar Mastung for submission bf challan against the applicant namely Khuda-e-Rahim son of Sher Muhammad, so that fresh trial be initialed against the accused. The Tehsildar be directed to complete the challan within one week and submit before this Court. "
3. The petitioner, being maternal uncle of deceased Rehmatullah, has filed the instant petition, praying therein that the order dated 31st December 2010 be set aside, inter alia, on the ground that the Sessions Judge, Kalat at Mastung lacks jurisdiction, either to pass the said order or to try the respondent.
4. We have heard Mr. Abdul Ghani Mashwani, learned counsel for the petitioner as well as Mr. Muhammad Qahir Shah, learned counsel for Respondent No. 1, Mr. Amanullah Kanrani, learned Advocate General, Miss. Sarwat Hina, Additional Prosecutor General and have also gone through the record with their valuable assistance.
5. So far as the trial of Respondent No. 1 in absentia is concerned, the record reflects that the STA Court ordered for publication of proclamation against the accused persons in three national daily newspapers, however, the record does not purport the copies of the said newspapers, wherein the publications were made. Thus, there is force in the contention of respondent's counsel about improper publications. Sub-section (4) of Section 5 of the Act of 1975 clearly provides that an accused may be tried in his absence, if the Court, after such inquiry, as it deems fit, is satisfied that such absence is deliberate and brought above with a view of impeding the course of justice. It further lays down that an accused shall not be tried, unless a proclamation has been published in respect of him in at least three national daily newspapers, out of which two shall be in Urdu language, but in the instant case, there is no material available on record, which would suggest that proper publications were made in three national newspapers, meaning thereby the STA Court had failed to observe the codal formalities prior to declaring Respondent No. 1 as absconder. We are also anxious of the fact that similar provisions were embodied in sub-section (10) of Section 19 of the Anti-Terrorism Act, 1997 and sub-section (4) of Section 8 of the Special Courts for Speedy Trials Act. 1987, but all the above mentioned provisions regarding trial in absentia were declared to be violative of Article 10 of the Constitution of Islamic Republic of Pakistan, 1973. In this regard, reference can be made to the judgments of "Ziaullah Khan v. Govt. of Punjab" reported in PLD 1989 Lahore 554 and "Mehram Ali v. Federation of Pakistan" reported in PLD 1998 SC 1445. However, at this juncture, a question arises as to whether the Sessions Judge, Kalat at Mastung, after demise of the Act of 1975, had the jurisdiction to entertain an application under Section 5-A(7) of the Act of 1975 for setting aside the conviction awarded to Respondent No. 1? The answer is, admittedly, 'No'.
6. It would be relevant to mention here that, as observed above, the case in hand was, admittedly, exclusively triable by the Special Court constituted under the Act of 1975. The Court had to take cognizance of the offences, committed at the relevant time and not on the date of the arrest of an accused. Admittedly, the occurrence took place on 29th May 1999, while the respondent had approached the Court of Session by means of an application under Section 5-A (7)' of the Act of 1975 in the month of December, 2010, when the Special Court, constituted under the Act of .1975, was not in existence, but, admittedly, its successor forum i.e. the Anti-Terrorism Court established under Section 13 of the Anti-Terrorism Act, 1997, amended through Ordinance No. XXXIX of 2011, was in existence. The Act of 1975 was repealed vide Section 39(1) of the Anti-Terrorism Act, 1997, but the previous operations of law were given due protection by sub-section (2) of Section 39 of the Anti- Terrorism Act, 1997, which speaks as under: "(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 (Amendment) Ordinance, 2001-- (a)every order, decision or judgment passed by any Anti-Terrorism Court constituted under this Act or 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 any thing 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 with in 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 where in force; (d)any investigation or inquiry under this Act or the Suppression of Terrorist Activities (Special Courts) Act, 1975 made of constituted before the commencement of the Anti-Terrorism (Amendment) Ordinance, 2001, shall continue to be made and proceeded with in accordance with law;
(e) all cases pending before the Anti-Terrorism Court or Special Court immediately before the commencement of the 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 Session 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; and
(f) the Court of Session 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. After having gone through the above provisions of law, we have arrived at a confident conclusion that those pending cases, which do not constitute a terrorist act, within the meaning of Anti- Terrorism Act, 1997, the same would be transferred and tried by the respective Courts of Session, whereas the cases, which come within the definition of "terrorism" as provided in Section 6 of the Anti-Terrorism Act, 1997, shall be tried by the Special Court. A tentative perusal of the evidence would show that Respondent No. 1 had committed the murder of deceased persons: Rehmatullah and Mst. Amina on the bald allegation of siyahkari in a brutal manner by means of firing with Kalashinkov. The act of the respondent, as alleged, comes within the ambit of clause (g) of sub- section (ii) of Section 6 of the Anti-Terrorism Act, 1997, which is reproduced herein below: "Involves taking the law in own hand, award of any punishment by an organization, individual or group whatsoever, not recognized by the law, with a view to coerce, intimidate or terrorize public, individuals, groups, communities, Government officials and institutions, including Law Enforcement Agencies beyond the purview of the law of the land."
Thus, case of the respondent was exclusively triable by the Special Court constituted under Section 3 of the Act of 1975 being a scheduled offence. The Hon'ble Supreme Court of Pakistan, in case of 'Muhammad Akram Khan v. The State" reported in PLD 2001 SC 96, has held that nobody has any right nor can anybody be allowed to take the law in his own hands to take the life of anybody in the name of "Ghairat". Neither the law of the land nor religion permits the so-called honour killing, which amounts to murder. Simplicitor, such iniquitous and vile act is violative of the fundamental rights as enshrined in Article 9 of the Constitution of Islamic Republic of Pakistan, 1973, which provides that no person would be deprived of life or liberty, except in accordance with law.
8. Since the case in hand was instituted under the provisions of repealed Act of 1975, therefore, under the provisions of Anti-Terrorism Act, 1997, the only restriction, upon the Judge of the Anti- Terrorism Court; would be that in case the prosecution succeeded to establish its case against the accused, he shall be liable to punishment as authorized by the law, prevailing at the time, when the offence was committed.
For the aforesaid discussion, this petition is accepted and the order dated 31st December 2010 passed by the Sessions Judge, Kalat Division at Mastung is set aside. The Sessions Judge concerned is directed to transmit the main case, along with the application under Section 5-A(7) of the Suppression of Terrorist Activities (Special Courts) Act, 1975, filed by Respondent No. 1, to the concerned Anti-Terrorism Court. The Anti-Terrorist Court concerned is directed to dispose of the same strictly in accordance with law, without being influenced by the observations made hereinabove, positively, within a period of one month.