ASSADULLAH KHAN CHAMMKANI, J.- Our this common judgment shall dispose of the instant Criminal Appeal, filed by appellant-convict Akhtar Muhammad, Cr.A. No.94-P/2014, titled, "Rehmat Ullah etc Vs the State" and Cr.A. No.179-P/2014, titled, "Said Jamal alias Mane etc Vs the State", as well as Cr.A. No.304-P/2014, titled, "State Vs Said Jamal etc", filed by the State for enhancement of sentence of the convicts, as identical questions of law are involved in all the three.
2. Instant appeal has been filed by appellant Akhtar Muhammad against the judgment dated 11.06.2013, rendered by learned Judge Anti-Terrorism Court-I, Peshawar, whereby he being charge sheeted under section 365-A PPC read with section 7 (e) ATA, has been convicted and sentenced to undergo life imprisonment, but under which section of law or offence, has not been clearly mentioned in the judgment while co-accused Dunya Gul, Daud, Israf and Israr, have been declared as Proclaimed Offenders and perpetual warrants of arrest have been issued against them.
3. Cr.A. No.94-P/2014 has been filed by appellants 1. Rehmat Ullah and 2. Fazl-e-Subhan alias Asad, against the judgment dated 17.01.2014, passed by learned Judge Anti-Terrorism Court, Mardan, whereby each of them has been convicted and sentenced under section 365-A/34 PPC read with S.7 (e) ATA to undergo imprisonment for life alongwith forfeiture of their proprieties in favour of the State, whereas co-accused Bakhtiar alias Sheena and Nawab Ali, have been declared as Proclaimed Offenders, followed by issuance of perpetual warrants against them.
4. Cr.A. No.179-P/2014, has been filed by appellants Said Jamal alias Mane and Rambel, against the judgment dated 25.03.2014, handed down by learned Judge Anti-Terrorism Court-III, Peshawar, whereby each of them has been convicted under section 365-A PPC read with S. 7 (e) ATA of 1997 and sentenced to undergo life imprisonment, despite that no charge under section 7 (e) ATA has been framed against the appellants.
5. In all these appeals, before arguments on merits of the cases, the following legal points remained under consideration during the course of arguments:- i) Whether non-compliance of the provisions of S.19 (10) against absconding co-accused, would vitiate the onward proceedings in the the trial of the arrested accused/ appellants convicts? ii) Whether the appellants have been confronted with clear and specific charge by providing them proper opportunity to defend themselves or have been prejudiced in their defence by confronting them with ambiguous charge-sheets? iii) Whether the appellants have been convicted and sentenced in accordance with law or otherwise? iv) Whether the offence under section 365-A PPC, if does not have any nexus with the object of sections 6, 7 and 8 of the Anti-Terrorism Act, 1997, will even then be triable by the Anti Terrorism Court or an ordinary Court?
6. To answer the first point, we would like to reproduce S.19 (10) Anti Terrorism Act, 1997 for ready reference and convenience:- "19 (10) Any accused person may be tried in his absence if the Anti Terrorism Court, after such inquiry as it deems fit, is satisfied that such absence is deliberate and brought about with a view of impeding the course of justice: Provided that the accused person shall not be tried under this sub-section unless a proclamation has been published in respect of him in at least [in one daily newspaper including Sindhi language] requiring him to appear at a specified place within seven days failing which action may also be taken against him under section 88 of the Code: Provided further, that the court shall proceed with the trial after taking the necessary steps to appoint an advocate at the expenses of the State to defend the accused person who is not before the Court.
Explanation:- An accused who is tried in his absence under this sub-section shall be deemed not to have admitted the commission of any offence for which he has been charged].
In the first two appeals, some absconding co-accused have been declared as Proclaimed Offenders, however, they have not been tried in absentia as contemplated under sub-section 10 of S.19 Anti Terrorism Act 1997, therefore, the point for determination before us is what would be the effect of non-compliance of Provisions of sub-section 10 of section 19 of Anti Terrorism Act, on the fate of trial of arrested coaccused/appellants. Despite our thorough search, we do not find any case law of the Hon'ble Supreme Court on the point, however, we have certain judgments of the august Apex Court and the learned High Courts of the country, where the cases of the accused tried in absentia have been dealt with and trial of accused in absentia has been held to be violative of articles 9 and 10 (1) of the constitution. The observations of the Hon'ble Supreme Court in Paragraph No.14 of the judgment in case titled, "Mir Ikhlaq Ahmad and another Vs the State"
(2008 SCM R 951) reads as under:- "In view of the above, we feel that the trial of the appellants, in absentia, undertaken by the Special Judge, Anti Terrorism Court, was violative of articles 9 and 10 (1) of the Constitution and section 10(11-A) of the Anti Terrorism Act, 1997, thus cannot be allowed to sustain. Furthermore, the appellants were not afforded any opportunity of hearing and thus, they were condemned unheard which is contrary to the principle of natural justice. We are convinced that the judgments, convictions and sentences rendered and awarded by both the Courts, in the absence of the appellants, to their extent are not sustainable under the law and violative of the Constitution and law, which has necessitated the retrial of the case. Appeal Allowed".
The august Apex Court has reaffirmed the same view in case titled, "Arbab Khan Vs the State" (2010 SCM R 755) in the following words:- "Trial in absentia is violative of Arts.9 and 10 (1) of the Constitution. Condemning of accused without affording an opportunity of hearing is also contrary to the principles of natural justice"
The Hon'ble Lahore High Court has also followed the view of the Hon'ble Supreme Court in case titled, "The State Vs Khurram Shahzad and others" (2011 M LD 378) by holding that "trial of accused in absentia is violative of articles 9 & 10 (1) of the Constitution and contrary to the principles of natural justice and as such is not sustainable under the law". Similar, is the view of the Hon'ble Sindh High Court in case titled, "Muhammad Shoaib and other Vs the State" (2013 M LD 1469), "that trial in absentia was violative of Arts.10 (1) and 10-A of the Constitution. Accused had not been afforded an opportunity of being heard and they were condemned unheard which was contrary to the principles of natural justice as well. The case was remanded in the circumstances". The view of the august Balochistan High Court in case titled, "Abdul Majeed Vs the Accountability Judge-I, Quetta and others" (2012 P Cr. L. J 1647" is also the same.
7. No doubt, the Hon'ble Supreme Court in authoritative judgment in case titled, "Mehram Ali and others' Vs Federation of Pakistan and others" (PLD 1998 Supreme Court 1445), while dilating upon the provisions of clause (b) of subsection (10) of section 19 Anti Terrorism Act, has held that it is violative of Article 9 as well as 10 (1) of the Constitution of Islamic Republic of Pakistan and thus has no legal effect, but it may be noted that rest of section 19 was held to be a valid piece of legislation.
In case titled, "Malik Iftikhar Ahmad Vs Ali Asghar and another" (PLD 1957 SC (AJ&K) 47, the august Supreme Court Azada Jammu and Kashmir has discussed the golden principles of natural justice in these words:- "It is not possible to give an exact definition of the principles of natural justice as the requirements of natural justice must depend on the circumstances of each case.
However, some of the important principles of natural justice violation whereof have been considered by Courts to be sufficient grounds for quashing the decision are (i) that a man cannot be a judge in his own cause; (ii) that no party is to be condemned unheard; (iii) that the party must in good time know the precise case he is to meet; and (iv) that a party is entitled to know why a matter has been decided against him. If, in an action, any one of the principles enumerated above are not followed, that action must be struck down. The principle of 'audi alteram partem' i.e. a person cannot be condemned unheard is a time honoured principle. Therefore, where an order to the prejudice of a party is made without hearing him, as for instance, where the privilege granted to a person, is withdrawn without giving a show-cause notice, the order being bad in law, is to be ignored and struck down.
Holy Qur'an well recognizes principles of natural justice. Satan (Iblis) for his rebellious arrogance and jealous disobedience to Command of Allah to bow down to Adam punished only after being asked to explain his conduct. Holy Prophet (peace be upon him) call for explanation of Hatib before deciding his guilt. Rule of natural justice stems from Islamic Jurisprudence and to be complied with as a command like any other Quranic law".
8. We are not confronted with the case of the accused who have been tried as well as convicted and sentenced in absentia, but we have referred the above judgments for guidance in the matter, combined study whereof suggests that trial in absentia is violative of Articles 9 and 10 (1) of the Constitution, therefore, we are firm in our view that non-compliance of the provisions of subsection 10 of section 19 Anti Terrorims Act, against the absconding co-accused by the learned Trial Courts in the instant cases, would not vitiate the trial of the appellants. Besides, under subsection 14 of S.19 Anti Terrorism Act, the Anti Terrorism Courts have been given powers of a Court of Sessions for the purpose of trial of any offence, and shall try such offence as if it were a court of Sessions as far as may be in accordance with the procedure prescribed in the Code for trial before a Court of Sessions. Keeping in view the provisions of subsection 14 of S.19 Anti Terrorism Act,1997, the learned Trial Courts exercising the powers of Court of Sessions under subsection 14 of section 19 ATA, have proceeded the absconding co-accused within the meaning of S.512 Cr.P.C. and have been declared them as Proclaimed Offenders, followed by issuance of perpetual warrants of arrest.
9. Now coming to the second point involved in the case. We would like to first reproduce the charge-sheet of each case with which the appellants-convicts have been confronted:- Cr.A. No.341-Ap/2013.
"That you accused on 28.11.2012 at 1845 hours within the criminal jurisdiction of Police Station Pabbi alongwith your absconding co-accused Dunya Gul, Daud, Israf, Israr and Abdul, forcibly on gun point abducted Shehzad Noor, Ishfaq ur Rehman, Awais Muhammad and Muhammad Noman while they were going in Shahzad Noor's motorcar No.BB.2320, Peshawar, from near GPS Dadar Abad, Dag Ismail Khel and kept them in illegal confinement in a castle shape house situated in tribal area. That the abductee families on phone were asked for ransom. That on receipt of ransom of sixty lacs from the complainant and twenty lacs from the other abductees, they were set free and you thereby committed an offence punishable under section 365-A PPC read with section 7
(e) ATA within my cognizance.
Cr.A. No.94-P/2014 That on 07.02.2013 at 05.00 hours, you accused Rehmatullah and Fazle Subhan alongwith your absconding co-accused Bakhtiar alias Sheena and Nawab Ali in the prosecution of the common object of you all, forcibly abducted complainant Noor Muhammad in his motorcar bearing registration No.XLI.9015/LWG for the purpose of ransom on pistol point at the abetment and instigation of your co-accused Birdadar and Fazlur Rehman on the fasle pretext of taking them from Shumlo Camp to Torham in lieu of Rs.3200/- as fare on Gohati Sikandarey road, snatched Nokia mobile phone set having SIM No.0344-9789729, cash amount of Rs.10,000/- alongwith registration copy of the motorcar and kept him in illegal confinement for 29 days and thereafter release him on payment of Rs.12,30,000/-. That out of the ransom amount, you accused Fazle Subhan alias Asad received your share of Rs.88,000/- out of which Rs.50,000/- were recovered from your house on your pointation while Rs.7,00,000/- were recovered from the house of you accused Rehmatullah on your pointation which you had kept for distributing the same later on.
Your this act also created a sense of fear and insecurity in the society and thereby committed an offence punishable under section 365-A/149 PPC read with S.7 (e) ATA which is within the cognizance of this Court.
Secondly, that on the same date, time and place you accused Biradar and Fazlur Rehman abetted your above named co-accused facing trial and absconding co-accused for the purpose of committing the above mentioned offence which also created a sense of fear and insecurity in the society and thereby committed an offence punishable under section 365-A/109 PPC read with S.7
(e) /21-I ATA and within the cognizance of this court.
Cr.A. No.179-P/2014.
That on 31./07.2013 in between 06.13 to 1300 hours, near the fields of complainant situated at Tambal Baz village falling within the criminal jurisdiction of Police Station Daudzai, you the above named accused alongwith your other absconding co-accused namely Ferdos and Sabir in prosecution of your common intention, abducted PW Muhammad Umar s/o Mashooq Khan (father of complainant) for the purpose of ransom and further on 16.08.2013 the local police during raid conduct at your house situated at village Larama Gulabad, recovered the abductee from inside your house and you were arrested from your house. Your aforesaid offence constitute an offence punishable under section 365-A/34 PPC which is in the cognizance of this court.
10. The charge-sheets referred to above in all the three cases are ambiguous which do not speak specifically as to under which offence or law the appellants have been confronted with the charge thereby causing prejudice to the appellants in their defence. Similarly, the convictions and sentences of the appellants recorded by the learned Trial Court in each case, are also on same footing, from which one cannot ascertain as to under which statute the appellants have been convicted and sentenced. The thorough perusal of the charge-sheet, in Cr.A. No.341 P/2013, depicts that it does not specifically determine as to whether the appellant has been charge sheeted under section 365-A PPC or section 7 (e) ATA, being framed in a single head. Similar, is the position of charge-sheet in Cr.A. No.94-P/2014, wherein the appellants have been charge sheeted under section 365-A/149 PPC read with section 7 (e) ATA in single head as well as under section 109 PPC read with S.7 (e)/21-I ATA. Though in Cr.A No.179-P/2014, the appellants have been rightly charge sheeted under section 365-A PPC, but wrongly convicted under section 365-A read with section 7 (e) ATA 1997 as has had not been confronted with a charge under section 7 (e) ATC. In the above two first appeals, the conviction and sentences of the appellants are uncertain from which one cannot determine as to whether the appellants have been convicted under section 365-A PPC or under the provisions of Anti Terrorism Act.
11. It is well settled principle of law that charge against accused shall be specific, fair and clear in all respects to provide an opportunity to the accused to defend himself/herself in due course of trial.
The charge shall be clear and by no means, confused to prejudice the accused. Charge is a precise formulation of specific accusations made against an accused person, who is entitled to know its nature at the early stage. Its aim is to explain to the accused as correctly and precisely as well as concisely as possible the allegations with which the accused is to be confronted. The charge must convey to the accused with sufficient transparency and in clear terms what the prosecution intends to prove against the accused. It shall contain all essential details as to time, place as well as specific manner of the alleged offence, the manner in which the offence was committed with full description of the accusation so as to afford the accused an opportunity to explain the accusations with which he is confronted. The prime object and the principle of framing charge shall be, to make aware the accused, of the substantive accusations which are to be proved by the prosecution with clear intention and with unambiguous description of the offence so as to enable the accused to defend himself. Guidance in this regard may be derived from S.A.K Rehmani's case (2005 SCM R 364). Section 232 of the Cr.P.C. empowers the appellate Court that in case it is found that on account of omissions of particulars in framing charge, the accused has been prejudiced and has not been provided an opportunity of clear understanding of the charge to defend himself, it may direct a fresh trial or even quash the conviction. Section 232 Cr.P.C. speaks as under:- "S.232. Effect of material error:- (1) If any Appellate Court, or the High Court or [Court of Session] in the exercise of power of revision or its power under Chapter XVII, is of opinion that any person convicted of an offence was misled in his defence by the absence of a charge by any error in the charge, it shall direct a new trial to be held upon a charge framed in whatever manner it thinks fit.
(2) If the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction".
As per obligatory provisions contained in S.233 Cr.P.C. for every distinct offence, a separate charge shall be framed in order to enable the accused to defend the accusation leveled against him.
Section 233 Cr.P.C. runs as under:- "S.233. Separate charges for distinct offences: For every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately, except in the cases mentioned in sections 234, 235, 236 and 239 Cr.P.C.
S.235 Cr.P.C. provides a proper mechanism for trial of an accused, charged for more than one offence, according to which if, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence. Sub-section (2) of S.235 Cr.P.C. further clarifies the situation, according to which if the alleged acts constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial, for each of such offence. Sub-section 3 of S.235 Cr.P.C. says that if several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with and tried at one trial for, the offence constituted by such acts when combined and for any offence constituted by any one, or more, of such acts.
The following illustrations shall further clear the above provision of S.235 Cr.P.C.
A commits house-breaking by day with intent to commit adultery, and commits in the house so entered adultery with B's wife. A may be separately charged with, and convicted of, offences under section 454 and 497 PPC.
A entices B, the wife of C, away from C, with intent to commit adultery with B, and then commits adultery with her. A may be separately charged with, and convicted of, offences under sections 498 and 497 PPC.
12. According to S.2 (t) "Scheduled Offence" means an offence as set out in the Third Schedule. Abduction or kidnapping for ransom has been inserted in the Third Schedule of Anti Terrorism Act, therefore, S.365-A PPC is a schedule offence which is similar to offence under Anti Terrorism Act punishment of which has been provided under section S.7 (e) Anti Terrorism Act.
Both the offences are identical except that the quantum of punishment of both the offences slightly varies from each other. The punishment provided under section 7 (e) ATA for the offence of kidnapping for ransom or hostage taking is death or imprisonment for life. Abduction or kidnapping for ransom has been added in the Third Schedule to Anti Terrorism Act, but its punishment has not been provided therein, rather its punishment has been provided under Pakistan Penal Code under section 365-A PPC i.e. death or imprisonment for life and forfeiture of property. The forfeiture of property in addition to death or imprisonment for life under section 365-A PPC, is the point of variation in the sentences of two offences, therefore, the accused is to be charge sheeted under section 7 (e) of ATA and under section 365-A PPC, separately. In case of proof of the charge of abduction for ransom, if the offences had nexus with the object of S.6, Anti Terrorism Act, the accused would be convicted under section 7 (e) of the Anti Terrorism Act, otherwise under section 365-A PPC. However, at the same time, accused would not be convicted under both the offences.
The Anti Terrorism Courts have been established in view of the provisions contained in S.13 of Anti Terrorism Act, 1997. All offences with regard to use or threats of actions, as enunciated under section 6 of the Act and all offences mentioned under third schedule, shall be exclusively triable by the Anti Terrorism Court alongwith other offences with which the accused may, under the Code be charged at the same trial, as provided under S.17 of the Act, 1997. The Anti-Terrorism Court can also try other offences with which an accused may under the Cr.P.C. be charged at the same trial if the offence is connected with such other offence. For instance, if an accused is charged under section 7 (a) Anti-Terrorism Act and under S.302 PPC, he shall be separately charge sheeted under section 7 (a) of the Act, 1997 and under section 302 PPC and on proof of the charges can be convicted and sentenced under each of the two sections of law, as the one relates to Special Law while the other relates to ordinary law. But in case of an offence of the Anti Terrorism Act and scheduled offence, the accused though would be charge sheeted separately, but would be convicted under only one offence keeping in view the proof available on the record.
13. We have observed that the learned Anti Terrorism Courts have framed charges of the offences under the Anti Terrorism Act, 1997, Offence of the Third Schedule as well as connected offences of the Pakistan Penal Code under single head by simply mentioning at the end of the charge "and you thereby committed an offence punishable under section 365-A PPC read with S.7
(e) Anti Terrorism Act, 1997" or S.365-A/149 PPC read with S.7 (e)/21-I, Anti Terrorism Act, which is a wrong exercise of law on the subject. In such like cases, separate charge-sheet would be formulated under each offence of each statute as well as Offence of the Third Schedule of Anti Terrorism Act. Similar, should be the case, in other offences relating to Anti-Terrorism Act, 1997 and general law with which an accused is charged and is being tried alongwith the special law or schedule offences in one trial. However, in case of an offence under section 7 (e) ATA and 365-A, PPC, punishment will be inflicted only under one section of law.
14. Various provisions provided under the Act of 1997, confer exclusive jurisdiction upon the Anti Terrorism Court to take cognizance and try not only scheduled offence, but also those connected with or arising out of the schedule offence. All the offences under section 6 of the Anti Terrorism Act, 1997 and offence under the third schedule attached to Anti Terrorism Act, 1997, would be exclusively triable by the Anti Terrorism Court or offences connected with the schedule offence. The Anti Terrorism Court can inflict punishment upon the accused, if found guilty under any provision contained in S.6 of the Anti Terrorism Court with the corresponding punishment provided under S.7 of the Act or provided under schedule offence, but cannot award sentence under both the offences i.e. under section 7 of the Act as well as the schedule offence. However, in case of an offence under the Anti Terrorism Act and general law, the Court can inflict separate punishments under each offence of the two enactments.
15. The answer to a point as to whether the offence mentioned in the Third Schedule of Anti Terrorism Act, would be triable by the Anti Terrorism Court only when it has nexus with the object of terrorism otherwise the same would be tried by an ordinary Court, can be found in section 13 of the Anti Terrorism Act, 1997, which says:- "S.13 [Establishment of Anti-Terrorism Court (1) For the purpose of providing for the speedy trial of the cases {under this Act]}, of schedule offences, the Federal Government, or if so directed by the Government, the Provincial Government may establish by notification one or more Anti-Terrorism Court in relation to {each territorial area as specified by the High Court concerned}.
The words {under this Act} used in S.13 clarify trial of the cases under the Anti Terrorism Act and the words "of scheduled offences" speak about the trial of the scheduled offence as according to S.2
(t) "Scheduled Offence" means an offence as set out in the Third Schedule. So it is abundantly clear that the offences mentioned in the Third Schedule to Anti Terrorism Act, 1997, even having no nexus with the object or terrorism would be exclusively triable by the Anti Terrorism Act, 1997 and not by an ordinary Court.
16. In these case, it is not certain as to under which offence, the appellants have been charge sheeted and then convicted and sentenced. Section 367 Cr.P.C. deals with the language of judgment and its contents. According to sub-section (2) of Section 367 Cr.P.C. the judgment shall specify the offence (if any) of which and the section of the Pakistan Penal Code or other law under which the accused is convicted and the punishment for which he is sentenced.
17. As stated above, S.365-A PPC, by itself is a scheduled offence having similarity with section 7 (e)
Anti Terrorism Act 1997, except that both slightly vary in terms of quantum of sentence. Both the offences are exclusively triable by the Anti Terrorism Court. The Anti Terrorism Court can try other offence with which an accused may under the PPC be charged at the same trial if the offence is connected with the offences of Terrorism or the schedule offence attached to ATA, but in such a situation charge under each offence shall be distinct and separate and similar would be the position of punishment under each offence separately and unambiguously. The Anti Terrorism Court can inflict punishment upon the accused, if found guilty under any provision contained in section 6 of the Anti Terrorism Court with the corresponding punishment provided under S.7 of the act or punishment provided under the schedule offence, but cannot inflict sentence upon an accused for an offence under S.7 ATA as well as under schedule offence, identical to the offence under section 7 ATA. In such circumstances, punishment under one offence shall be inflicted.
18. In view of the above discussed, we have reached to an irresistible conclusion that that appellants have been prejudiced by not confronting them with specific charge and have been deprived of their right of defence. Similarly, their convictions and sentences recorded by the learned Trial Courts, in the circumstances, cannot be held to be in accordance with law, therefore, we by allowing these appeals, set aside the conviction and sentences of the appellants, recorded and awarded by the learned Trial Courts vide impugned judgments and remand the cases to the learned Trial Courts concerned for trial de novo, right from the stage of framing fresh formal charge against the appellants. On setting aside the impugned judgments, Cr.A. No.304-P/2014, titled, "State Vs Said Jamal etc" having become infructuous, stands dismissed as such. During this period the appellants shall remain as under trial prisoners. The learned Trial Court shall conclude the trial expeditiously. Office is directed to send the record to the learned Trial Court within two days, without fail.
19. Before parting with the judgment, we deem it appropriate to refer to the judgment rendered by one of us Justice Assadullah Khan Chammkani, almost on identical points in Cr.A. No.40-P/2015 titled, " Khurram Qazafi Mansoor Vs the State", decided on 16.09.2015, wherein the following directions had been issued to the Judges of the Anti Terrorism Courts of Khyber Pakhtunkhwa:- "The Additional Registrar (Judicial) of this Court is directed to send copy of this judgment forthwith, with intimation to this Court, to the Judges of the Anti-Terrorism Courts Khyber Pakhtunkhwa, for their future guidance and strict compliance in cases pending trial before their Courts and in the freshly submitted cases, so as to decrease the agonies of the accused involved in such like cases because if the exercise of formulation of ambiguous charge sheets, remain in field, it will open a Pandora's box through remand of cases to the Anti Terrorism Courts in the Province, and the accused already in custody in such like cases, will suffer for no fault on their part".