Azhar Saleem Babar ; J.--Through captioned writ petition filed under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act. 1974 Section 81 of the Azad Jammu & Kashmir Anti- terrorism Act, '2014 has been challenged on the ground that the same is ultra-wires of Interim Constitution Act, 1974.
2. Precise facts forming background of the captioned petition are that Malik Zaffar Ali Awan, DSP/SDPO, lodged a written report at Police Station, Saddar, Muzaffarabad on 11.06.2014 stating therein that at 2:40 p.m that he received an information that at Chella Bandi Shafqat Kiani and others have murdered someone. On this information, he along with other police officials reached at the place of occurrence and found that Shafqat Kiani and others have murdered Zubair Shah S/o Nazir Shah R/o Center Plate by firing near Forest Check post. The offence of murder was reported by the brother of deceased namely Asif Ali Shah vide F.I.R. No 66/2014 and a case was registered against Shafqat Kiani and other co-accused. It was further alleged that at 05:00 P.m. he along with Abdul Ghani Revenue Officer and other police officials was busy in searching the accused-persons in kiani Mohallah. The accused listed in the challan with intention to kill started firing upon them with lethal weapons Kalashnikove and pistols and one Farrukh Kiani targeted his Gunman Waheed Ahmed constable with Kalashnikove which hit him at his head as a result whereof he fell down while accused Altaf Kiani fired at Imran Ahmed Constable No, 284, who got injured and fell down.
Waheed Ahmed constable succumbed to the injuries and died. On this report a case under Sections 302,324,353, 186,337,337/H-2,147,148,149, APC 13/20/65 Arms Act and 12/13 EHA was registered against the accused- petitioner and co-accused under F.I.R. No, 67/2014. After investigation of the case the of the case the police submitted challan before the District Court of Criminal Jurisdiction Muzaffarabad which was made over to the Additional District Court of Criminal Jurisdiction, Muzaffarabad for hearing and disposal under law. The statements of the accused under Section 242, Cr.P.C. were recorded on 11.02.2015, who pleaded not guilty, whereupon, the prosecution was asked to lead evidence in support of its case. The evidence of nine witnesses has been recorded so far. On 28.05.2016 police presented subsequent challan by adding 'Section 6 Anti-terrorism Act (ATA). Upon filing the subsequent challan the learned trial Court vide reference dated 28.05.2016 referred the matter for guidance and opinion to Shariat Court. The petitioner meanwhile challenged the provisions of Section 81 Anti-Terrorism Act, 2014 through the instant writ petition.
3. Syed Huzoor Imam Kazmi, the learned Advocate appearing for the accused-petitioner, vehemently argued that the reference made by the Additional District Court of Criminal Jurisdiction, Muzaffarabad is illegal because under law subsequent challan could not be filed without permission of the Court. The learned Advocate further argued that no evidence has been recorded by the police before filing subsequent challan except on the application of father of the deceased, Section 6 Anti-Terrorism Act (ATA) has been added. The learned Advocate contended that Azad Jammu and Kashmir Anti-Terrorism Act was promulgated and published on 13.10.2014 whereas offence in the present case took place on 11.06.2014 much earlier to the promulgation of the Azad Jammu and Kashmir Anti-Terrorism Act. The learned Advocate contended that under the relevant provisions of law, challan was rightly submitted before Additional District Court of Criminal Jurisdiction Muzaffarabad which has exclusive jurisdiction to try the offences listed therein and award punishment ordained by the Islami Tazeerati Qawaneen Nafaz Act, therefore. no other Court including the Anti-Terrorism Court is competent to take the cognizance or to proceed and award the punishment provided by the Islami Tazeerati Qawaneen Nafaz Act, 1974, The learned Advocate while referring to Section 23(5) of the Islami Tazeerati Qawaneen Nafaz Act contended that under the aforesaid Section, the offences mentioned in the aforesaid Act are triable by the Courts established under the Islami Tazeerati Qawaneen Nafaz Act, 1974 and no other Court is vested with the authority and jurisdiction to entertain any challan or decide any matter. The learned Advocate contencled that under the scheme of the Islami Tazeerati Qawaneen Nafaz Act, 1974 if .an offence is committed under some other law which is not triable by the Court constituted under Islamic Penal Laws ,even then the Courts constituted and established under the Islami Tazeerati Qawaneen Nafaz Act, 1974 arc: empowered to try such offence and award punishment to the accused provided under that law. The learned Advocate further contended that the Azad Jammu and Kashmir Anti-Terrorism Act has not been made applicable retrospectively as is evident from preamble of the Act, therefore, instant case cannot be transferred to Anti-Terrorism Court even under Section 81 of the Anti-Terrorism Act. The learned Advocate also argued that the Islami Tazeerati Qawaneen Nafaz Act, 1974 has been enforced under the command of the Constitution as has been laid down in Section 3 read with Section 31(5) of the Interim Constitution Act, 1974, therefore, procedure for trial and rights granted by the Islami Tazeerati Qawaneen Nafaz Act to an accused person cannot be taken away by any enactment or special law. The learned Advocate contended that in case of any conflict the provision of the Islami Tazeerati Qawaneen Nafaz Act, 1974 having constitutional backing has to be given preference over the other law even if enacted subsequently. The learned Advocate argued that neither the executive nor the Legislative Assembly is competent to enact any law, which curtails the rights guaranteed to an accused under the Islami Tazeerati Qawaneen Nafaz Act, 1974 as well as by the Azad Jammu and Kashmir Interim Constitution Act, 1974. In support of his submissions, the learned Advocate placed reliance on following cases:--
1. Muhammad Saddique vs. Inspector General of Police Punjab and others (PLD 2013 Lali. 85);
2. Ch. Muhammad Yousaf vs. The State and 04 others (2001 SCR 380);
3. Jahangir Akhter Awan and others vs. The State and 08 others (PLD 2000 Kar. 89);
4. 2001 YLR 3309;
5. 2012 SCMR 59;
5. Khawaja Arshad Mahmood, the learned Advocate appearing for the respondent-complainant, emphatically argued that the Azad Jammu and Kashmir Anti-Terrorism Act has been enforced on 13.10.2014 and under Section 14 of the Act a special forum of trial of the offences committed under the Act is established and at present Ehtesab Court Muzaffarabad and Mirpur have been notified by the Government as Anti-Terrorism Courts, therefore, reference has rightly been sent by the learned Additional District Criminal Court for transfer of the case to the appropriate Court. The learned Advocate further argued that Section 66 of Anti-Terrorism Act gives an overriding effect, wherein, it is provided that notwithstanding anything contained in the Code or any other law, the offences committed under the Anti-Terrorism Act, would be tried by the Courts established under Anti-Terrorism Act. The learned Advocate submitted that no other Court is vested with the jurisdiction to hear and dispose of the cases under the Anti-Terrorism Act. The learned Advocate referred to and relied upon Section 81 of the Anti-Terrorism Act and submitted that Legislature has wisely and competently given retrospective effect to the provisions of the Act. The legislature according to the learned Advocate, has empowered the Police/investigating Agency to submit the challan under the Anti-Terrorism Act regarding the offences which have been committed prior to the enforcement of this law and are being tried at present by any father Court. The learned Advocate submitted that change of forum dose not affect any right of the accused-petitioners because proceedings so far conducted by the trial Court in this case would be deemed to have been protected under Section 39(3) of the Azad Jammu and Kashmir Anti-Terrorism Act. The learned Advocate contended that reference is in line with the dictum of the apex Court of Azad Jammu and Kashmir laid down in Muhammad 4rshog1's case cited as 2016 SCR 1029. He argued that in the present case, life of a police constable has been taken brutally who was performing his lawful duty under the command of his superiors, therefore, subsequent challan has rightly been presented before the Court, hence, it cannot be said that subsequent challan could not be presented by the police before the Court which was trying the case under the Islamic Penal Law.
The learned Advocate further contended that there is no restriction on the powers of police to conduct, re-investigate and submit subsequent challan before the same or any other Court. The learned Advocate in support of his submissions placed reliance on following cases:--
1. Muhammad Arshad and another vs. The State and another (2016 SCR 1029)
2. Rana Abdul Ghaffar vs. Abdul Shakoor and 03 others (PLD 2006 Lah 64):
3. Asif Ali Zardari vs. Federation of Pakistan and others (2002 P.Cr. LJ 310)
6. We have taken into consideration respective arguments of the learned Advocates for the parties and gone through the record of the case. It may be stated at the outset that there are two orders available on file of Additional District Criminal Court Muzaffarabad dated 28.05.2016 Muhammad Bashir Kiani the petitioner has challenged the validity of order dated 28.05.2016 which reads as under: {{URDU TEXT}} 7.The complainant has produced a copy of letter dated 30.05.2016 passed by Additional District Criminal Court Muzaffarabad which forms part of written statement as Annexure RB/4. It reads as under:- {{URDU TEXT}}
8. Learned counsel for the petitioner has assailed the validity of order dated 28.05.2016, which in his view is a reference by the Court below. This version is not correct in view of available record because the Court below on 30.05.2016 has sent file of the case titled State vs. Shafqat Kiani and others for transfer of case. It has been mentioned by the Court below that because of filing of a subsequent report under Section 173, Cr.P.C. in offence under Section 6 Anti-terrorism Act, Additional District Criminal Court has no jurisdiction to proceed further with the case. There is no concept of filing reference by a criminal Court for opinion by Shariat Court. Although Islamic Penal Laws envisage a provision of reference under Section 23-A(9) but it has a limited scope. Such a reference may be filed in the Shariat Court when there is a difference of opinion between the Members of District Criminal Court. The Code of Criminal Procedure previously contained a provision for reference under Sections 432 and 433 but both the Sections have been omitted since long, so the case referred by Additional District Criminal Court Muzaffarabad shall be treated as a prayer for transfer of case to the appropriate Court.
9. The point for resolution by High Court in the titled case is that whether Section 81 ATA is contradictory to Interim Constitution Act, 1974 and whether ATA can be applied retrospectively? For convenience Section 81 of ATA, 2014 is reproduced as under:--
81. Punishment for Terrorist Act Committed before this Act:--Where a person has committed an offence before the commencement of this Act which if committed after the date on which this Act comes into force would constitute a Terrorist Act hereunder he shall be tried under this Act but shall be liable to punishment as authorized by law at the time the offence was committed.
10. A bare perusal of afore-produced provision of law reveals that an ATC is empowered to hear and adjudicate upon the case even if the offences have been committed prior to promulgation of Anti-terrorism Act (ATA). ATA came into force in the territory of Azad Kashmir through Act XL of 2014 on 13.10.2014. FIR No, 67/2014 against the petitioner-accused was registered with Police Station Saddar Muzaffarabad on 11.06.2014. Obviously, the aforesaid FIR was registered prior to promulgation of ATA. Section 81 ATA provides that a person shall be tried under ATA even if the offence has been committed prior to promulgation of ATA. Section 81 is found to be violative of Interim Constitution Act, 1974 for different reasons.
11. Section 3 of the Azad Jammu & Kashmir Interim Constitution Act, 1974 provides that "Islam shall be the State religion of Azad Jammu & Kashmir." Section 31(5) of the Act further provides that "no law shall be repugnant to the teachings and requirements of Islam as stated in the Holy Quran and Sunnah and all existing laws shall be brought in conformity with the Holy Quran and Sunnah."
Islamic penal Laws have been enacted in furtherance of Section 31(5) of the Interim Constitution Act, 1974, so these laws have the backing of Constitution and Islamic Penal Laws behind them. A law having constitutional backing cannot be overridden by a simple Act of Assembly. It may further be added here that Section 3 of Islami Tazeerati Qawaneen Nafaz Act, 1974 provides different kinds of punishment which have not been provided in the ATA. Following punishments have been provided in Islami Tazeerati (a)Qawaneen Nafaz Act; (b)Death sentence, (c)Hadd, (d)Qisas, (e)Ta'azir, (f)Diyyat, Deprivation from inheritance.
It may be explained that offence of murder under Section 302, PC is punishable with death as Qisas or Ta'azir, which falls within exclusive jurisdiction of District Criminal Court, whereas ATC is not empowered to award punishment as Qisas and Ta'azir or Diyyat. Moreover, offences of murder and hurt have been made compoundable through Islami Tazeerati Qawaneen Nafaz Act but such offences are not compoundable under ATA. It hardly needs to mention that compounding of an offence of murder or hurt has been provided in Quran and Sunnah, so such right cannot be snatched through an Act of Assembly. It may further be explained that under Section 23 of Islami Tazeerati Qawaneen Nafaz Act, Criminal Procedure Code has been amended and offences mentioned in the Act are subject to jurisdiction of District Criminal Courts and Tehsil Criminal Courts. The aforementioned Courts consist of two Members whereas ATC in Azad Kashmir consists of a single Judge. If Section 81 of ATA is allowed to apply to a case already subjudice before the District Criminal Court it would tantamount to snatch the right of an accused.
District Criminal Courts have been vested with powers to confer sentences mentioned in Section 3 of Islami Tazeerati Qawaneen Nafaz Act 1974 but such sentences cannot be awarded by an ATA without amending the whole scheme of Islami Tazeerati Qawaneen Nafaz Act 1974.
12. There is another important reason whereby application of section 81 of ATA is found violative of Interim Constitution Act. Fundamental rights have been guaranteed by the Constitution Act under Section 4. Superior Courts of Azad Jammu & Kashmir and Pakistan have always struck down any law made in violation of fundamental rights. Interim Constitution Act under Section 4(4) provides protection against retrospective Punishment. For convenience it is reproduced as under: "4. Protection against retrospective punishment:--No Law shall authorize the punishment of a person:-
(a) for an act or omission that was not punishable by law at the time of act or omission; or
(b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed."
13. The aforementioned fundamental right clearly provides that a person cannot be convicted for an offence which was not punishable by law at the time it was committed. It has already been mentioned that offences under FIR No, 67/2014 were reported to have been committed on 11.06.2014 whereas ATA came into force in Azad Kashmir on 13.10.2014 i,e, after around 4 months of alleged commission of offence. In these circumstances retrospective effect given in Section 81 of ATA is in violation of fundamental right of protection against such punishment. It is also worth mentioning that under Section 81 ATA an ATC has been vested with powers of awarding punishment under the law which was applicable at the time of commission of offence. It has already been mentioned that at the time of commission of offences under FIR No, 67/2014 the offences fell under the jurisdiction of District Criminal Court which was supposed to award any sentence provided in Section 3 of Islami Tazeerati Qawaneen Nafaz Act 1974. Obviously Anti-terrorism Court is not empowered to award a sentence provided in the aforesaid law. So also under Section 4(4) of Act 1974 a person can be convicted under a law which was applicable at the time of commission of that offence and a sentence of different kind cannot be awarded. If the matter at hand is examined in view of this provision of Act 1974 it reveals that the accused were liable to be sentenced (subject to proof) under Islamic Penal Laws but they are supposed to be convicted under Section 6 ATA which dose not speak of Qisas Hadd Ta'azir or Diyyat. So the accused may be given a penalty different from the one which was applicable at the time of commission of offence. This proposition would obviously offend the Interim Constitution Act 1974. So Section 81 of ATA cannot be implemented as has been provided in ATA. The matter of change of forum through substitution of law came up before their lordships in the supreme Court of Azad Jammu & Kashmir in case titled Prof. Syed Sadiq Hussain Shah vs. Azad Government and another [1998 SCR 27].The apex Court concluded the matter as follows: "The contention of the learned counsel for the appellant the that relevant date for the trial of the case in hand would be the date on which the challan was presented before the Magistrate or the Magistrate took the cognizance and not the date when the offence was committed is not tenable in view of the settled principles of law as reflected by the authorities discussed above. Similarly the argument of the learned counsel for the appellant that when the offence was committed the accused-respondent was liable to punishment under Section 337, A.P.C. but after the said amendments only the District Criminal Court was competent to try the accused under section 337- G, A.P.C, is also without any substance because the date on which the accused committed the offence Section 337-G A.P.C. For elucidating the matter Section 6(e) of the General Clauses Act is reproduced as under: "6. Effect of repeal. Where this Act or any Central Act or Regulation made after the commencement of this Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not:-- (a)
(b)
(c)
(d)
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.
(Underlining is ours)
It is clear from the above provision that the accused-respondent could be challenged under Section 337, A.P.C. in the Court of the Magistrate which had the jurisdiction to try the offences committed and not in the District Criminal Court."
In the referred case some other case from Pakistan jurisdiction was also discussed as follows: "In case reported as Karam Hussain v. Basharat Hussain [PLD 1991 SC (AJ&K) 27], it was held that if the change is not merely of procedural nature but it also affects the substantive rights, the statue cannot be given retrospective effect. It was observed that the amendment whereby sub-section
(2) of Section 24 of the Islamic Penal Laws Act, 1974 was deleted would not apply to the cases which were pending before the Sessions Judge and, thus, the same could not be transferred to the District Criminal Court constituted under the Islamic Penal Laws Act, 1974.
In case reported as Karam Hussain V The State [PLD 1989 Shariat Court (AJ&K) 11], it was held that the amendment brought in Section 24 of the Islamic Penal Laws Act, 1974 was not merely of procedural nature but affect the substantive provisions of law and had no retrospective operation.
Thus, it was observed that the cases pending before the Sessions Judge would not be affected and they would continue to proceed with the trials.
In case reported as Sona u. The State [PLD 1970 SC 264], it was observed that one of the effects of the repeal of law is that legal proceedings or remedy in respect of any of such rights, privileges, obligations, liabilities, penalty, forfeitures or punishment is not affected and any such investigation, legal proceedings, remedy may be instituted continued or even enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed at all.
In case reported as Muhammad Bashir V Muhammad Firdaus [PLD 1988 SC 232] it was observed that where a statue purports to transfer the jurisdiction over certain causes of action, it may operate retrospectively because the change of forum is a matter of procedure. But when in such a process any existing rights are also affected or retrospective operation causes inconvenience or injustice, then the Court will not, even in case of a procedural statue, favour an interpretation giving retrospective effect to the statue. It was further observed that the change of forums in the statue are not to be given retrospective effect, unless a clear intention to that effect was expressed; to deprive a person of a right of appeal to a superior tribunal is a right which is different from merely regulating the procedure.
In case reported as Asif Ali Zardari v. The State [1993 P.Cr.LJ. 7811, it was observed that a statute which impairs vested rights or the legality of past transactions or obligations of contract should not be held to operate retrospectively. However, the status which takes away or impairs the vested rights acquired under the existing laws or creates a new obligation or imposes a new duty or attaches a new disability in respect of transactions already past, must be presumed to be intended not to have retrospective effect unless a clear intention is expressed in that regard.
In case reported as State v. Sahib Dad [PLD 1981 AJ&K88] it was held that amendment under Section 24(2) of the Islamic Penal Laws Act 1974 cannot operate retrospectively and the cases being tried before the Sessions Judges would not be transferred to the District Criminal Courts consisting of Sessions Judge and Qazi."
14. It is pertinent to mention here that under Section 10 of Act 1974 the President has been empowered to grant pardons suspend or commute any sentence passed by any Court with the exception of sentences of Hadd Qisas and Diyyat Section 10 of the Act reads as follows: "President's power of pardon and reprieve..--The President shall have power to grant pardons reprieves and respites and to remit suspend or commute any sentence passed by any court Tribunal or other authority: Provided that this power shall not be exercised in respect of sentence of "Hadd" and "Diyyat"
An ATC is empowered to award sentence of death or imprisonment for life and with fine in the offence of murder under Section 6 so such sentence may be pardoned by the President under the afore-cited section whereas sentence of death by District Criminal Court cannot be pardoned by any authority including head of State and such right under Islamic Penal Law is vested with legal heirs of a victim only. In the case at had offences in FIR No, 67/2014 were triable by District Criminal Court when the offences were committed so a right under Section 10 of Act 1974 had accrued to heirs of the victim which would be done away with if the case is transferred to ATC. So far as verdict of Supreme Court of Azad Jammu & Kashmir ints and in view of Islamic Penal Laws. So it dose not apply to the instant case.
The upshot of above discussion i 2016 SCR 1029 is concerned points in the referred case were neither agitated nor argued before the Apex Court in the perspective of fundamental righs that provision of Section 81 of ATA 2014 to the extent of retrospectively is hereby held ineffective being against the provisions of the Azad Jammu & Kashmir Interim Constitution Act 1974 and the Islami Tazeerati Qawaneen Nafaz Act 1974. Writ petition stands accepted in the aforementioned manner.