FAHIM AHMED SIDDIQUI, J.---The appellants, through the instant criminal appeal assailed the Order of learned Presiding Officer of ATC, Mirpurkhas passed on 20-12-201 1, whereby they were convicted under section 27 Anti- Terrorism Act, 1997 and sentenced to undergo S.I. for 4 months each.
2. The facts are depicted from the joint Show-Cause Notice served upon all the appellants by the trial court, which is as under: "1. That you ASI Rasool Bux got registered FIR No. 72/2008 dated 10-08-2008 at 12:45 p.m. at Police Station Jhudo under sections 324, 353, 147, 148 and 149, P.P.C., narrating therein that you along with police party including PW-3 SIP Abdul Sattar and Police Constable Imdad Illahi and others to arrest the accused persons in Crime No.71/2008 under sections 364-A, 506(2), 147, 148 and 149, P.P.C. dated 10-08-2008 of Jhudo Police Station which FIR based on false and fictitious allegations and the result of the case was that the accused were declared innocent and acquitted under sections 265-K, Cr.P.C. by learned that and Additional. Sessions Judge Mirpurkhas vide Order dated 28-10-2009 passed in Sessions Case No. 145 of 2008 :
2. That on the basis of a false case in FIR No. 71/2008 you got registered another FIR No. 72/ 2008 which too was nothing but concoctions and fabrication and the case was cancelled in Anti-T errorism Court of Mirpurkhas all the provisions of sections 6/7 Anti-T errorism Act 1997 were not attracted at all.
3. That in the present case the FIR consisted imaginary _false story which proved to be false by this court as such you along with SIP Abdul Sattar , Head Constable Imdad Illahi and SIP Mir Muhammad by. sharing common intention to get the innocent accused in this case punished produced with the case, with the result that all the accused persons were convicted to suffer rigorous imprisonment for 24 years in absentia 30-07-2010.
4. On appeal the honourable High Court of Sindh, Circuit Court Hyderabad set aside the judgment and remanded the case for de novo trial, after conclusion of the trial in this case the version of the prosecution proved to be false and the accused were declared innocent, as such you along with other 3 police officials named above have failed to pursue the case properly and also have acted malafidely and in breach of your duties.
5. By your above-mentioned misconduct the accused persons have suffered the rigors of the proceedings of this case for three years, one month and 20 days for which suffering physical and mental loss the victim innocent accused persons need to be compensated at all.
6. All of you (1) ASI (Retired) Rasool Bux (2) SIP Abdul Sattar (3) HC Imdad Illahi and (4) SIP Mir Muhammad are therefore called upon to explain individually as to why each of you should not be punished by summary proceeding lender section 27 of the Anti-T errorism Act, 1997."
3. In response to the above Show-Cause Notice the appellants submitted their replies. They also appeared before the trial Court and submitted their unconditional apology . The learned presiding officer of the trial Court acknowledged the said apology as admission to their guilt and at once pronounced the impugned Order and considering the said apology as mitigating circumstances the aforesaid sentence were awarded. However , the trial Court suspended the sentence and relea sed the appellants on furnishing surety in the sum of Rs. 100,000/- each with directions to them to file appeal within 15 days before this Court.
4. The learned counsel for the appellants argued the matter at length. According to him, the appellants are innocent and they have already surrendered themselves before the trial Court by tendering apology . He submits that the trial Court have to show grace and accept the apology . Regarding merits of the case, his contention is that the appellants have properly explained their position in their replies to Show Cause Notices while conviction and sentence without trial is not warranted under the law .
5. The learned D.P.G. supported the contention of the learned counsel for the appellants by submitting that sentence without trial, is not proper .
6. After hearing the arguments, we have examined the entire material available in the record of the case. We have also gone through the record and proceedings of main case, which have provided a basis for the proceedings under section 27 ATA and pronouncement of the impugned order . Before discussing further , we think it proper to reproduce section 27 Anti-T erroEism Act, 1997, which reads as under: "27. Punishment for defective investigation . If a special Court or "a High Court" comes to conclusion during the course of or at the conclusion of the trial that the investigating officer , or other concerned officers have failed to pursue the case property and in breach of their duties it shall be lawful for such Court or, as the case may be "High Court" to punish the delinquent officers with imprisonment which may extend to two years, or with fine or with both by resort to summary proceedings."
7. From the above provision of law, it is clear that the proceedings against the investigation officer and other concerned. officers can only be initiated in case of failure to pursue the case properly and in breach of their duties.
In the instant case, the learned trial judge has proceeded against the policemen on the ground that they have initiated a false case against the accused persons nominated in the aforesaid criminal case. It is a fact that in the FIR No. 72/2008, sections 6 and 7, ATA are not inserted. It is also a fact that the Investigation Officer has recommended the case for disposal under C-class (not true and not maliciously false) but the learned and Special Public Prosecutor of Anti-T errorism Court has directed to submit Final Report in the ATC. It is worth mentioning that the facts have been explained by the appellants in their replies/explanations to Show-Cause Notices issued to them. We are of the opinion that the learned trial Court has to consider this fact and after tendering their unconditional apology , the same should be accepted by showing grace and elegance.
8. However , there is another aspect of the case which pertains to the modernist style in which the sentence was pronounced by the learned trial Court. The act of the appellants is not an act of 'content at the face of the court' where the court is empowered to pronounce sentence without trial. In every other case including the contempt of court cases, it is the requirement of law that a proper charge should be framed upon the delinquent persons so that they may be able to defend themselves properly . This essential, natural and legal requirement of law was overlooked by the learned trial Court, as such the sentence pronounced by the court below is unwarranted under the law and the same cannot be sustained.
9. The upshot of the above discussion is that the charge against the appellants under section 27, ATA Was Not Established; As Such They Are Acquitted of the Same. The Appellants Are Presently on Bail; Their Bail Bond Is cancelled and a surety is discharged.
10. These are the reasons for our short order pronounced on 29-09-2017.