' MUHAMMAD HASHIM KHAN KAKAR, Munir Ahmed had charged the accused/respondents for the murder of his brother Nazcer Ahmed and one Mst. Zaubaida on the allegation of "Karo Kari" vide F.I.R. No.155 of 2006 registered at Sariab Police Station. Quetta on 6th June.
2006. After arrest of some of the accused respondents, initially challan was submitted in the Court of Judicial Magistrate and, on insertion of section 302 of the Pakistan Penal. Code, 1860 (P.P.C.), the same was transmitted to the Court of Sessions Judge, Quetta and finally the same was transferred to the file of Sessions Judge (Ad hoc), Quetta (the "trial Court") and it was entered as Sessions Case No.8 of 2011. The learned trial Court, after recording evidence of the respective parties, acquitted the accused/respondents of the charge vide judgment dated 29th August,. 2011 (the "impugned judgment"), hence this appeal.
2. The instant appeal against acquittal was admitted to regular hearing; inter alia, on the ground that only the Special Judge, empowered under the provisions of Antiterrorism Act, 1997 (the "Act of 1997"), is competent to adjudicate upon the matter and the trial Court was not competent to take cognizance of the matter, as the prosecution's case was that an illegal Jirga was constituted and both the deceased persons were done to death on the bald allegation of "karo kari".
3. Mr. Abdul Sattar Durrani, learned Additional Prosecutor-General (A.P.-G.), submitted that an order, passed without jurisdiction, is nullity in the eyes of law and even if the complainant has not objected to the jurisdiction of the trial Court at the time of trial, that would not empower the trial Court to take cognizance of the matter, which is exclusively falling within the jurisdiction of the Anti- terrorism Court, as the offence is a Scheduled Offence under the provisions of the Act of 1997. He strenuously argued that the accused/ respondents were acquitted of the charge by an incompetent Court of jurisdiction i.e. The trial Court and, thus, said acquittal order was a wrongful exercise of the jurisdiction, not vested with the trial Court.
4. Controverting the arguments raised by the learned A.P.-G., Messrs Syed Ayaz Zahoor and Mehmood Sadiq. Khokhar, learned counsel for the respondents, strenuously argued that during the course of trial, the complainant/appellant had never objected to the competence and jurisdiction of the trial Court to hold the trial and to record the evidence. The accused/ respondents, having been acquitted of the charge by the trial Court, have earned a right of double presumption of innocence in their favour, thus, the acquittal order recorded by the trial Court should not be normally interfered with by this Court. They, while concluding their arguments, submitted that the accused/respondents, once having been tried and ultimately acquitted by the trial Court, could not be vexed twice for the same offence.
5. After hearing learned counsel for the parties, we have come to the irresistible conclusion that the trial Court was not competent to adjudicate upon the matter, as the prosecution case was that the nominated accused persons, after kidnapping Nazeer Ahmed, shifted him to the house of absconding accused (Jameel Rind), where a Jirga was held and the abductee Nazeer Ahmed and Mst. Zubaida were done to death on the allegation of "Karo Kari". In a case of Gul Muhammad v The State PLD 2012 Balochistan 22, a Division Bench of this Court has observed as under:-- "14. We have noticed in a number of cases, specially committed in Naseerabad Division, that the killing of innocent wife, sister and other female relatives, on the allegation of siyahkari, has become a routine practice, rather a fashion, and it is high time we discouraged such unwarranted and shocking practice resulting in double murder in the name of so-called 'honour killing'. We are not impressed by the contention of the learned counsel for the appellant that according to the prosecution's own showing, the occurrence is the result of siyahkari, as such; the appellant is liable to be awarded lesser punishment under section 302(c) of the P.P.C. It is true that, in the rural areas of Balochistan and especially in Naseerabad Division, the people do not swallow such kind of insult, touching the honour of their womenfolk and usually commit murder of alleged siyahkar in order to vindicate and rehabilitate the family honour, but it is equally true that no license can be granted to anyone to take the law of the land in his hands and start executing the culprits himself instead of taking them to the Courts of law. The murder based on Ghairat does not furnish a valid mitigating circumstance for awarding a lesser sentence. The killing of innocent people, specially the women on the pretext of siyahkari is absolutely un-Islamic, illegal and unconstitu tional. It is worth mentioning that the believers of Islam are not even allowed to divorce them, without establishing their accusation. We profess our love for Islam, but ignore clear Qur'anic injunctions regarding the rights of women. The Holy Qur'an in Sura XXIV (NUUR) Verse 4 says: "And those who launch A charge against chaste women And produce not four witnesses, (To support their allegation),---Flog them with eight stripes; And reject their evidence ever after: for such men are wicked transgressors ;---"
' In this regard, it would also be advantageous to reproduce Hadith 837 Book 48 (Sahih Bukhari), which speaks asunder: "Narrated Ibn Abbas: Hilal bin Umaiya accused his wife before the Prophet of committing illegal sexual intercourse with Sharik bin Sahma.' The Prophet said, "Produce a proof or else you would get the legal punishment (by being lashed) on your back." Hilal said, "0 Allah's Apostle! If anyone of us saw another man over his wife, would he go to search for a proof" The Prophet went on saying, "Produce a proof or else you would get the legal punishment (by being lashed) on your back" The Prophet then mentioned the narration of Lian (as in the Holy Book). (Suratal-Nur: 24)
' The crime of siyahkari is increasing in this part of the Province and innocent girls are being killed under the worst tradition of siyahkari or karokari. False and frivolous allegations are levelled against the innocent girls and they are never heard. They are being treated as cattle, which is also violation of the fundamental rights, enshrined in the Constitution. In order to prevent such crimes, Courts of law should take judicial notice, while trying such heinous crimes. Our view got support from the judgement of Hon'ble Supreme Court of Pakistan-reported in PLD 2001 SC 96, which is as under:- "Legally and morally speaking, no body has any right nor can anybody be allowed to take law in his own hands to take the life of anybody in the flame of "Ghairat". Neither the law of the land nor religion permits so-called honour killing which amounts to murder (Qatl-i-Amd) simplicitor. Such iniquitous and vile act is violative of fundamental right as enshrined in Article 9 of the Constitution of Islamic Republic of Pakistan which provides that no person would be deprived of life or liberty except in accordance with law and any custom or usage in that respect is void under Article 8(1) of the Constitution.
' In view of section 6(2)(g) substitution by Ordinance XXI of 2009, re-enacted Ordinance I of 2010 dated 1-2-2010 as well as above discussion, we are of the view that in case of an unjustified murder by a person, who, on account of his immorality or to satisfy his brutal instinct, takes the law in his own hands, is responsible for creating sensation and panic in the Society, thus, the offences committed on the pretext of siyahkari after 1-2-2010 squarely fall within the domain of Anti Terrorism Act, 1997 and all the cases pending before the ordinary Courts stand transfer to the Anti-Terrorism Courts."
6. The 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 basis of that material, the Court is required to decide whether cognizance is to be taken or not. In the instant case, the confessional statement of Muhammad Yousaf recorded by the Judicial Magistrate, Pishin (P.W.17) under section 164 of the Cr.P.C. On 25th July, 2008 is indicative of the fact that two innocent persons were done to death on the allegation of "Kara kari". In the circumstances, material available with prosecution in this case is sufficient to justify the invocation jurisdiction of the Anti- terrorism Court.
7. Adverting to the objection raised by the learned counsel for the respondents that an accused person, having been tried once and acquitted, would not be liable to be tried again for the same offence. The contention has no legs to stand on, as section 403 of the Cr.P.C., furnishes a complete answer to the said contention, which reads as under:--
403. Persons on'ce convicted or acquitted not to be tried for the same offence. (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not to be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 36, or, for which he might have been convicted under section 237.
(2) A person acquitted or convicted for any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under S.235, subsection (I).
(3) A person convicted of any offence constituted by any act causing consequences which together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequence had not happened, or were not happened, or were not known to the Court to have happened, at the time when he, was convicted.
(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.
(5) Nothing in this section shall affect the provision of section 26 of the General Clauses Act, 1897, or section 188 of this Code.
8. The perusal of aforesaid provision of law clearly demonstrates that no one shall be punished or put in peril twice for the same matter, but the prerequisite is that a person, who has been tried once, should have been tried by a Court of competent jurisdiction and, in case of conviction or acquittal, he shall not be tried again for the same offence, bid in the instant case, the trial Court, being not competent to try the accused/respondents in the Scheduled Offence, its acquittal order recorded in favour of accused/respondents shall not exonerate them to be tried by a Court of competent jurisdiction.
9. It is worth mentioning that during course of the trial, the, jurisdiction of the trial Court was also challenged before this. Court by means of Criminal Transfer Application No.109 of 2011, which was heard on 20th April, 2011 by a Division Bench of this Court and the same was allowed. The operative portion whereof reads as under:-- "Thus, in view of what has been stated and discussed herein above the case on the basis of the F.I.R. No.155 of 2006 of Police Station, Sariab registered under section 365 read with section 34, P.P.C. Is transferred to the Court of Special Judge, Anti-Terrorism Court having territorial jurisdiction. After transfer of the case the said Special Judge shall proceed with the case in accordance with law and decide it as early as. Possible."
' But quite surprisingly, the trial Court, instead of waiting till the decision of the aforesaid transfer application, which was reserved for pronouncement on 20th April, 2011, acquitted the accused/respondents of the charge in a hasty manner on 28th F - September, 2011..
10. For the reasons stated above and without touching merits, of the case, we accept this appeal, set aside the impugned judgment of the trial Court dated 28th September, 2011 and remand the case to the Anti-terrorism Court-I, Quetta for de novo trial under the provisions of the Act of 1997.
The respondents Noor-ud-Din, Jamal-ud-Din, Ghous-ud-Din, sons of Muhammad Bakhsh, Nabi Bakhsh son of Bahawal Khan, Mir Wali Muhammad son of Muhammad Baqa, Noorullah son of Ghous-ud-Din, Muhammad Asif son of Muhammad Bakhsh, Jameel Ahmed Rind son of Haji Hameedullah, Khalil son of Dost Muhammad, Mubarak son of Eid Muhammad, Takari Sharbat and Amanullah shall remain on bail on the sureties already submitted before the trial Court. However, since respondent Ghous-ud-Din alias Koko son of Muhammad Bakhsh was in custody during course of the trial, therefore, he is directed to furnish a surety bond of Rs.200,000 (Rupees two hundred thousand only) and PR bond of the like amount to the satisfaction of the Anti-Terrorism Court-I, Quetta for his appearance and facing the trial with a period of ten (10) days from the date of passing of this order, in case of failure, he shall be taken into custody. The Special Judge, after observing codal formalities as required under section 21-L of the Act of 1997 and section 87 of the Cr.P.C. To procure the attendance of absconding accused and shall conclude the trial within a period of three (03) months, positively.