' ABDUL HAMEED DOGAR, J.---The appellants have called in question judgment dated 11-4-1998, passed by the learned Judge, Special Court Anti-Terrorism, Hyderabad & Mirpur Khas Division at Hyderabad in Special Case No,3 of 1998 (The State v. Moinuddin and others) and convicted them under sections 302 and 34, P.P.C. And sentenced them to death. Appellant Moinuddin was also convicted under section 324, P.P.C. And sentenced to suffer R.I. For 7 years and fine of Rs,10,000 and in default whereof to suffer further R.I. For one year more. However, the appellants were extended benefit of section 382-B, Cr.P.C. Towards computation of their sentences.
2. Precisely the facts of the prosecution case are that on 7-2-1998 at about 3 p.m. a relative of appellant Moinudin started urinating in front of house of the complainant Syed Akhlaq Hussain and at that time complainant's brother Asmat and one Mansoor Q Bholo were standing there. On their objection exchange of harsh words took place between them and thereafter, appellant Jalaludin along with few boys arrived at Khuda Hafiz Board and forcibly took away Mansoor @ Bholo with them and maltreated him. He was rescled on intervention by the .Complainant and his brother Afzal. The matter was settled in Shaheen Estate Agency and the parties became satisfied. On 8-2- 1998 at about 11.15 hours the appellants and two unknown culprits arrived on motor-cycle at the Cool Corner of complainant's brother Irfan, located in front of his house and inquired about his brother and asked him to call him, upon which Irfan called Afzal, to whom the appellants told that they have not accepted the 'Faislah' (decision) and would take revenge and saying so appellant Moinuddin took out pistol and pointed the same towards the face of Rehmat and fired at him and bullet hit on the front side of his face. Thereafter appellant Jalaluddin also took out a pistol and fired at complainant's brother Afzal, which hit his forehead and he fell down. He also fired at complainant's brother Asmat, who was standing on the roof of his house, but the same did not hit him. Both injured subsequently expired while being shifted to Liaquat Medical College Hospital, Hyderabad. The appellants and co-accused Shahzada were arrested and such charge-sheet was put up before the abovementioned Court, wherein Naveed Khanzada was shown as absconder.
3. A formal charge was framed against the appellants and co-accused, to which they did not plead guilty and claimed trial.
4. At trial the prosecution examined P. Ws. Muhammad Murad Tapedar, Dr. Ghulam Muhammad Sanjarani, complainant Syed Akhlaq Hussain, Azmat Hussain, Mansoor @ Bholoo, Mrs. Rubina Shaheen, Karimullah, Farzand Ali, Muhammad Younus, Muhammad Suleman, Khursheed Ahmed, Abbas and Aamir Hussain, Additional S.H.O. And closed its side.
5. The appellants in their respective statements recorded under section 342, Cr.P.C. Denied the case of prosecution and claimed innocence and pleaded that they have been falsely implicated in this case due to enmity. They neither examined themselves on oath nor led any evidence in defence.
6. The learned trial Court framed the following points for determination:--
(1) Whether death of deceased Rehmat Hussain and Afzal Hussain was caused on 8-2-1998?
(2) Whether both the deceased were killed by fire-arm injuries?
(3) Whether accused Moeen fired at Rehmat and accused Jalal fired at Afzal Hussain and thereby committed the murder of both brothers and accused Moeen fired at Azmat who was standing on roof but he was saved?
(4) Whether deceased Rehmat Hussain was police constable at the time of his death? {5) Whether the incident of making urine and beating P.W. Bhuloo one day before the day of incident has happened?
(6) Whether accused Shahzad was also with the accused Moeen and Jalal at the same time when the accused fired at Rehmat Hussain and Afzal Hussain?
7. On assessm ent of evidence, the appellants were found guilty and were convicted and sentenced as above, whereas co-accused Shahzada was acquitted.
8. We have heard Messrs A.Q. Halepota and M.A. Kazi, the learned counsel appearing on behalf of the appellants, Mr. A.M. Naqvi, the learned counsel appearing on behalf of the complainant and Mr. Habib Ahmed; Assistant Advocate-General appearing on behalf of the State at length and have gone through the record and proceedings of the case.
9. At the very outset the learned counsel for the appellants contended that the learned trial Court had no jurisdiction to take cognizance in the matter and had, thus, acted beyond its jurisdiction as such the entire proceedings became coram non judice. According to them from plain reading of F.I.R. As, well as the evidence adduced at trial, provisions of section 6 of the Anti-Terrorism Act, 1997, prior as we as after amendment do not attract. The incident in this case had occurred purely on a private dispute and had no nexus with the above provisions of law, as such the Court was devoid of the jurisdiction to try the appellants. In support of contention they placed reliance on the case of Mehram Ali v. The State, reported in PLD 1998 SC 1445 and urged that it is a fit case to be tried afresh by the Court of competent jurisdiction.
10. Mr. A.M. Naqvi, the learned counsel for the complainant, frankly conceded to the contentions that the trial Court had no jurisdiction and the complainant has no objection if the matter is remanded to the Court of learned Sessions Judge, Hyderabad, which in fact has the jurisdiction in the matter. He simply urged for an expeditious trial.
11. Mr. Habib Ahmed, the learned Asstt. A.-G., opposed the contentions raised at Bar and argued that the trial Court was fully competent to try such offence as being included in Schedule and the conviction and sentence was properly recorded. According to him the case of Mehram Ali (ibid) would not be applicable in this case as the Hon'ble Supreme Court has specifically observed that the trials already concluded and convictions recorded under the Act would not be effected.
12. From the plain reading of F.I.R. As well as the evidence recorded at trial, it is obvious that the incident had occurred due to private dispute between appellant party and complainant party. No doubt deceased Rehmat Ali was a police constable, but he was murdered solely on account of personal enmity while he was inside his house and as such the said murder has no nexus with the act of terrorism within the ambit of section 6 of the Act. This aspect of the case has been elaborately dealt with by the Hon'ble Supreme Court in the case of Mehram All (ibid), wherein at page 1493 it has been held as under:-- " It will suffice to observe that if a Government servant or any other employee of the Government functionaries is murdered because he belongs to the above service and that there was no enmity or plausible reason for commission of the above offence, such a killing is an act of terrorism within the ambit of the Act and can lawfully be included in the Schedule, but if the murder is committed, solely on account of personal enmity, such a murder will have no nexus with the above provisions of the Act and will not be triable under the Act."
13. Irrespective of above, the Hon'ble Supreme Court in the above case has observed that decision will not effect the trial already conducted and conviction recorded under the Act and the pending trials may continue subject to this order. Since the appeal is a continuation of trial as such the case of Mehram Ali (ibid) is fully applicable in all respects with the case of the appellants.
14. A Division Bench of this Court in the case of Muhammad Ashfaq @ Chief and 18 others v. The State, reported in PLJ 1987 Criminal Cases Karachi 1220 in its para-graph 26 has defined the word "trial" as under:-- "The words trial includes proceedings in appeal."
15. Accordingly we set aside the conviction and remand the case to the Court of learned Sessions Judge, Hyderabad for fresh disposal in accordance with law within six months positively.
' With the above observations this appeal stands disposed of.