' KH. MUHAMMAD SHARIF, J.---This judgment will dispose of Murder Reference No,15 of 1998 and Criminal Appeal No,49 of 1998, which has been filed by Khadim Hussain son of Nazeer Ahmad, aged 19/20 years, who was convicted and sentenced by Special Judge, Special Court-I, Anti-Terrorism, Bahawalpur for kidnapping/abducting Mst. Tayyaba Urooj daughter of the complainant, namely, Imam Din as under:
(i) Under section 364-A, P.P.C., he was sentenced to death.
(ii) Under section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979, he was sentenced to undergo 25 years' R.I. With 30 stripes.
(iii) Under section 302, P.P.C., he was sentenced to death. He was further directed to pay compensation to the parents of the deceased under section 544-A, Cr.P.C., amounting to Rs,50,000 and in default thereof he shall ungero for further six months S.I.
' All the sentences were ordered to run concurrently.
2. The occurrence in this case took place on 13-6-1998 at 6-15 p.m. While the matter was reported to the police by Haji Imam Din father of Mst. Tayyaba Urooj, a minor girl aged about 5/6 years, through F.I.R. Exh.P.C. Bearing No,232 of 1998, dated 15-6-1998 at 6-30 p.m.
3. Brief facts of the case are that on 13-6-1998 at evening time daughter of Haji Imam Din, complainant of this case, stepped out from Vler house. When she did not come to her house, her parents started her search. In the meanwhile, P.Ws, told them that Khadim Hussain accused and minor Tayyaba Urooj were seen on a bicycle. Thereafter, complainant and P.Ws. Went to the house of Khadim Hussain but he did not meet them. When accused met them he admitted that he had brought Mst. Tayyaba Urooj but left her at her house, On the next day, Punchayat was held at the Dern of Ch. Munir Ahmad and accused Khadim Hussain admitted that he had abducted Mst, Tayyaba Urooj and after committing Zina-bil-Jabr he killed her, The participants of the 'Panchayati came at Police Station and complainant got recorded his statement, vide Exh.P.C. On 15-6-1998 at 6-30 p.m.
4. Appellant was arrested is this case, he was challaned, tried by Special Judge, Special Court, Anti- Terrorism, Bahawalpur and was sentenced as mentioned above.
5. Learned counsel for the appellant has raised preliminary objection before us about the jurisdiction of the trial Court, He submits that the learned trial Court had no jurisdiction to try the case under section 364-A, P,P.C., read with section 302, P.P.C., and section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979. He submits that Anti-Terrorism Act, 1997 came into an existence after getting the assent from the President of Pakistan on 16-8.1997, He submits that in the original Schedule of the Act, section 364-A, P.P.C., was there but vide Notification S.O.R. No,1237 of 1997 which VMS issued on 13-12-1997. Sec don 364-A, P,P.C., was deleted from its Schedule. He further submits that in fact, the Investigating Officer did not know this fact that section 364-A, P.P.C.
Had already been deleted from its Schedule so he submitted the challan before the Special Judge, Anti-Terrorism. He further submits that an application, challenging the jurisdiction of Special Judge, to hear this case, was made before him on 24-11-1998 and in this regard, notice was given to the State for 27-11-1998 and on 27-11-1998, the learned Special Judge dismissed the said application of the appellant and tried the case which is illegal in the eyes of law and he declared as null and void and without jurisdiction, He has relied upon PLO 1995 SC 66 (titled as Pir Sabir Shah v. Shad Muhammad Khan, Member, Provincial Assembly, N.-W.F.P. And another), Head notes 11 & C at page
68. He has also relied upon 1999 M LD 2644, titled as Asghar Ali alias Bhola v. Special Judge, Anti- Terrorism (Punjab), Faisalabad.
6. On the other hand, learned counsel for the State submits that after the dismissal of application about the jurisdiction of the learned trial Court, appellant neither approached this Court nor any application was made in this behalf.
7. We have heard the learned counsel for the parties and have also gone through the relevant provision of law. Learned State Counsel is unable to rebut the submissions made by learned counsel for the appellant. We may observe here, that at the time of inception of the Anti-Terrorism Act, 1997, which came into force on 16-8-1997, section 364-A, P.P.C., was therein as a scheduled offence and could have been tried by the learned Special Court but due to an amendment in the Schedule which came on 13-12-1997, section 364-A, P.P.C. Was deleted, It was held in 1999 M LD 2644, the judgment cited by learned counsel for the appellant, that section 364, P.P.C. Did not fall within the Schedule of Act, as amended by Government of Pakistan vide Notification, dated 13-12- 1997. Through this judgment learned O.B. Of this Court had held that an accused were not prima fade guilty of scheduled offence under section 365/365-A but were prima facie guilty of non- scheduled offence under section 364, P.P.C., their trial by Special Court under Anti-Terrorism Act was without lawful authority, and accepted accused's writ petition with this declaration and transferred the case to the Court of competent jurisdiction for trial".
8. Full Bench of Hon'ble Supreme Court of Pakistan consisting of twelve Hon'ble Judges while deciding the case of Pir Sabir Shah, titled as Pir Sabir Shah v, Shad Muhammad Khan, Member, Provincial Assembly, N.-W.F.P, an& another, reported in PLO 1995 SC 66 in Headnote B, "that question of jurisdiction is very important and fundamental in nature and if a forum has no jurisdiction, the same cannot be conferred upon it by consent of the parties, that Court has to consider the question of jurisdiction even though not raised by the parties", Details have been given in this regard at page 102 of this esteemed judgment,
9. We have gone through both the judgments very minutely and we are of the considered opinion, that section 364-A, P.P.C., was not a scheduled offence on 13-6-1998 when this occurrence alleged to have been taken place, even none of the offences committed by the appellants were scheduled offences on the day of occurrence. The facts of the case also do not fall within the definition of Terrorist Act.
10. We have no other option but to accept this appeal on the ground that learned Special Judge, Special Court-1, Anti-Terrorism, Bahawalpur had no jurisdiction to try the case against the appellant as none of the offences with which appellant was charged was a scheduled offence on the day of occurrence,
11. In this view of the matter, we accept this appeal, set aside the conviction and sentence, as ordered by the learned trial Court, appellant will be taken out from the death cell by the Jail Authorities but will remain in judicial custody in New Central Jail, Bahawalpur and we remand this case to the learned Sessions Judge, Bahawalpur for fresh trial and direct him to hear this case himself and to conclude the trial of this case on day to day basis Within one month on the receipt of order of this Court. We also direct, Deputy Registrar (Judicial), Lahore High Court, Bahawalpur Bench, Bahawalpur to send the Lower Court records of this case along with copy of today's judgment to the learned Sessions Judge, Bahawalpur within seven days from today without fail.
With these observations, this appeal and murder reference filed by the appellant is disposed of.