MUHAMMAD ALAM, J.---Through this criminal appeal, appellants have challenged their conviction/sentence passed through judgment/ conviction order dated 25-08-2015, passed by the learned Judge Anti-Terrorism Court No,1, Gilgit Baltistan, Gilgit. Through impugned order, the learned trial court has passed the following judgment/sentence:--
74. In the light of the above discussions, I hold that the prosecution has proved the guilt of the accused Shakeel Ahmad and accused Ahmad Hussain for committing rape with Miss Haleema Sadia (PW-1), hence, I convict accused Shakeel Ahmad and accused Ahmad Hussain under section 376, P.P. C. read with section 34, P.P.C. read with section 7(e) of the Anti-Terrorism Act, 1997 and sentence them to death. They shall be hanged by their neck till they be dead. Accused Shakeel Ahmad and accused Ahmad Hussain are also hereby convicted under section 377, P.P.C. read with section 34, P.P.C. and sentence them to imprisonment for 10 years each. Accused Shakeel Ahmad and accused Ahmad Hussain are also convicted under section 363, P.P.C. read with section 34, P.P.0 and sentence them to imprisonment for 7 years each and also fine of Rs,100,000/- (Rupees one hundred thousand only) each. Accused Shakeel Ahmad and accused Ahmad Hussain are also convicted under section 392, P.P.C. read with section 34, P.P.C. read with section 7(h) of the Anti-Terrorism Act, 1997 and sentence them to imprisonment for ten years and to pay fine of Rs,100,000/- (Rupees one hundred thousand only) each. Accused Shakeel Ahmad and accused Ahmad Hussain are also hereby convicted under section 506(2), P.P.C. read with section 34, P.P.C. read with section 7(C) of the Anti-Terrorism Act 1997 and sentence them to imprisonment for 7 years.
75.Benefit of section 382(b), Cr.P.C. be given to the convicts-accused.
76.Warrant of commitment for sentence of death of convicts-accused Shakeel Ahmad and Ahmad Hussain be sent to the Superintendent, District Jail Gilgit for safe custody till the execution of sentence of death.
77.Copy of Judgment given to the convicts-accused free of cost and directed them that they can file appeal before the Hon'ble GilgitBaltistan Chief Court within fifteen (15) days against the sentence of death and imprisonments awarded to them. Copy of Judgment also given to learned Public Prosecutor free of cost.
78.Record of the case be transmitted to the Hon'ble GilgitBaltistan Chief Court, as provided under section 25 of the Anti-Terrorism Act, 1997 read with section 374, Cr. P. C.for confirmation of death sentence awarded to convicts-accused Shakeel Ahmad and Ahmad Hussain."
2. As the trial court is a special court of the court of judge Anti-Terrorism and the trial proceedings have been conducted by the trial court under the special law of Anti-Terrorism Act, 1997, therefore, the special law is referred as ATA hereunder.
3. SHO Women Police Station Skardu chalked FIR No,02/2015, Exh.PW-2/A, in the said police station against appellants in the light of application dated 07-03-2015 of the complainant, who is herself the victim of occurrence. The circumstances of the occurrence found fully elaboration in the said application, which the trial court has marked as Exh.PW-1/A. In the said application, complainant has reported that, at about 5pm, on 05-03-2015, she was returning to her home from the tuition centre. When she reached the link road towards her home, a white car No,GLT-01- 0664, coming from back side passed ahead and parked in front of her, blocking the road. Two young men came out of the car and one of them caught her arm while the second caught her legs and forcibly threw her into the car. One of them forced her to sit in the rear seat while another drive the car. FIR lodger cried but the car was being driven very forcibly towards Sadpara. Both the said accused took the complainant a little away from the CM House and parked the vehicle. Both the appellants committed rape turn by turn with the complainant while parking the car on road side. Appellants took the mobile of the complainant and prepared naked videos. Appellants threatened the complainant of dire consequences if complainant disclosed the occurrence. After chalking FIR, police prepared challan and submitted the same in the court, who after completing the trial proceedings, passed the impugned conviction/sentence. The above referred operative part of the conviction/sentence shows that the trial court has convicted and sentenced appellants under section 7(e) of the Anti-Terrorism Act also, besides convicting them for other sections of P.P.C., that appellants were charge sheeted for.
4. We have heard learned counsel for parties at length and learned Deputy Advocate General also.
We have thoughtfullyconsideredarguments advanced by the learned counsel for parties. Learned counsel for appellants mainly argued that:-- a) The trial court had no jurisdiction to try the case as the occurrence was bound to be tried by the ordinary courts. b) Learned trial court wrongly sentenced appellants for the offence of section 7(e) of Anti- Terrorism Act, without framing charge of the appellants for the said offence.
On the other hand, learned Deputy Advocate General was of the opinion that trial of the appellants by the judge Anti-Terrorism was correct.
5. We have heard learned counsel for parties and learned Deputy Advocate General on the above referred two questions raised by the learned counsel for appellants. Counsel for parties argued pro and contra the above two questions raised by the counsel for appellants. Counsel for appellants was of the opinion that the complete trial of the appellants is illegal as the trial court has no jurisdiction, and in support of the same contention, he relied on case law referred in:-- 1) 2005 M LD 1096 Lahore 2) 1999 YLR 1716 Lahore 3) 2012 SCM R 517 4) 2013 PCr.LJ 1720 Sindh Learned Deputy Advocate General opposed the contention of the counsel for appellants but did not submit any case law.
6. While giving answer to the above two questions raised by the counsel for appellants, we feel that discussion of prosecution evidence will adversely affect the prosecution case, therefore, we avoid the same. In our opinion, both the questions raised by the counsel for appellants, are very sound and purely legal. From plain perusal of FIR, it is evident that the occurrence is an occurrence of forcible abduction with the intention of committing rape. FIR further contains report of commission of the forcible rape, therefore, all the said offences are of ordinary nature and trial of the same by ordinary criminal courts is sufficient and correct. Our superior judiciary has repeatedly not approved trial of rape cases by special courts. Moreover, it is also admitted that the learned trial court has convicted appellants under section 7(e) of ATA without framing any charge for the said offences, which is an irregularity in its nature. We are, therefore, of the opinion that learned trial court must have sent the case to ordinary courts as and when appellants were charge sheeted for trial. In our opinion, conducting of trial by a special court is against all norms of criminal administration of justice and ordinary courts are very competent to try all cases of ordinary nature.
The ATA is a special law and courts established under the said law are special courts to try very special cases. The trial of the appellants by the trial court is against the principle laid down in the above referred case law also.
7. We, therefore, set aside impugned conviction/sentence order and direct for transfer of charge sheet/challan of the case to the court of Sessions Judge Skardu, who should complete all trial proceedings of the appellants after denovo trial of the appellants. For doing so, the trial court will obviously have to expunge all sections of ATA. Court of learned Sessions Judge Skardu will reframe charge sheet of the appellants afresh for offences of P.P.C. in the light of charge sheet/challan and then complete all remaining trial proceedings. Appellants are in judicial lock-up and the court of Sessions Judge Skardu is free to grant judicial remand from time to time till completion of trial proceedings. Appeal is accepted partly in the above terms and Murder Reference No,4/2015 answered accordingly. This file be consigned to record.