' Validity/propriety of order, dated 4-1-1999; passed by learned Special Judge/Special Court Anti- Terrorism Bahawalpur-I, is called in question in this Constitutional petition.
2. Facts, briefly stated, giving rise to this petition are: that on 25-11-1985, one Muhammad Arshad lodged an F.I.R., at Police Station City Bahawalnagar alleging therein that he was resident of Khadim Colony, Bahawalnagar; that on the aforesaid day, his son Muhammad Awais Qadri/aged 7 years obtained one rupee from him in order to make some purchase from the shop of Muhammad Azam and went towards the said direction; that Zahid Pervez/petitioner seduced him and took him to the house of his uncle Dilawar Hussain where he started to commit carnal intercourse with him; that his son raised hue and cry; that on hearing it, the complainant along with P.Ws. Reached there and found the accused at the spot who attempted to run away but in vain and so he was apprehended. This F.I.R., was recorded under section 377, P.P.C., read with section 12 of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979. After investigation, the challan was put before the learned Special Court Bahawalpur-I for trial of petitioner.
3. Confronted with this situation, petitioner moved an application under section 23 of the Anti- Terrorism Act, 1997 (herein after to be referred to as Act)/alleging therein that act of child molestation was neither made punishable under the Act nor was put in the Schedule to it and so the Special Court, constituted under section 12 of the Act, had no jurisdiction to try the petitioner.
This application was contested and rejected by the learned Special Judge in following terms:-- "As scrutiny of the above definitions would reveal that child molestation covers actions or offences in which the victim is a child and child has been sexually abused or meddle with injurious or hostile intent etc. The commission of unnatural offence with a child is covered by such definition of child molestation.
' According to section 6(c) of Anti-Terrorism Act, 1997, the act of child molestation has been declared a terrorist act, which itself is, within the ambit of jurisdiction of this Court. However, 'punishment' will be as 'prescribed under the relevant' offences.
' The apprehension of the learned counsel for the petitioner in this regard appears to be ill- founded. The offence of child molestation is triable by Special Court."
' This is how this Constitution petition has come to this Court.
4. Learned counsel for the petitioner contended that neither the act of child molestation had been made punishable under the Act or in any provisions of P.P.C., and so the Special Court, constituted under the Act, had no authority whatsoever, to try the petitioner. Continuing the learned counsel stressed that the Court of ordinary criminal jurisdiction will be only the forum to try petitioner for offence under section 12 of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and section 377 of P.P.C. The learned A.A.-G. Appearing on behalf of the State, however, defended the impugned order.
5. Malik Farrukh Mahmood, Advocate was requested to appear as friend of Court. He complied with above directions and contended that the act of child molestation was treated as terrorist act under amended section 6 of the Act; that the aforesaid act was made punishable under amended section 7 of the Act. Learned counsel referred to sub-clause (ii) of amended section 7 of the Act to contend that acts referred to in paragraphs (b) and (c) of section 6 were made punishable under the relevant laws. These amendments, according to the learned counsel, were made by virtue of Ordinance IX of 1998 which was made effective from 24th October, 1998. Continuing, he suggested that the act of child molestation was punishable under section 364-A of Pakistan Penal Code; that the underlying objective of Ordinance IX of 1998 was' to make offence triable by Special Court under the Act so that its offender can be dealt with effectively and crime with regard to child, be curbed. On the above reasoning, he emphasised that this Court should supply the omission and read section 364-A, P.P.C., in Schedule to the Act. He relied upon Muhammad Ali etc. v. The State (PLD 1961 Dacca 447), Shakeel Ahmad v. The State (PLD 1972 Lah. 374) and Hasham Khan v. The State (PLD 1991 SC 567)..
6. We have heard the learned counsel for parts and the amicus curiae at a considerable length and attended to their conflicting submissions with care. Before we proceed further, we find it necessary to reiterate a well-settled rule of interpretation of statutes. That in construing penal statutes, care must be taken that these are construed strictly in accordance with the plain language of such statute; that the words of these acts are neither extended nor strained to fill up the defects/omissions left by the Legislature. It is not the duty of the Courts to add or amend the statutes. See Bashir and others v. Government (PLD 1959 Azad J&K 58), Muhammad Ali v. State Bank of Pakistan, Karachi (1973 SCMR 140) and Dad Muhammad Khan v. Bassa (PLD 1965 (W.P.) Lah. 77).
Craw fords, in his treatise known as Statutory Construction (1989 Reprint) at page 269 says that "omissions in a statute cannot, as a general rule, be supplied by Court". Thus, if a particular case is omitted from the terms of a statute, even though such an omission is within the obvious purpose of the statute and the omission appears to have been due to accident or inadvertence, the Court cannot supply the said omission. This is equally true where the omission was due to the failure of the Legislature to foresee the missing case. See Spowden v. Thompson 106 Ark. 517, 153 S.W. 823; In re Barnett's Estate 97 Calif. Ap. 138, 275 Pac. 453, Fouracre v. White, 30 Dela, 25. 102 Att. 186, People v.
Rogier 326 111.
310.
157. N.E. 177, Rural Independent School v. Maccracken (Lowa) 233 N.W. 147, State v. Trapp. 140 La.
425, 73 So. 255; Thatcher v. Cook 250 Mass, 188, 145 N.E. 256, Dworkin v. Caledonian Ins. Co. 285 Mo.
342, 226 S.W. 846; State v. Reneau, 75 Neb; 1, 104 N.W. 1151, 106 N.W. 451, Levberg v. SchuniRcher, 225 N.Y. 167, 121 N.E. 808, Plain Yield Motor Co. v. Salmon, 13 N.J. Misc. 4570, 180 Att 428, Ex Parte Brown, 21 E'.
O. 515, 114 N.W. 303; Hickman v. Wright, 141 Tenn. 412, 210 S.W. 447, Jordan v. S. Boston, 138 V. 938, 122 S.E. 265, Neacy v. Board of Supervisors, 144 Wis. 210, 128 N.W.
1063. Authorities on this topic, are so numerous that it will be exercise in futility to examine over here. However, we are persuaded to seek guidance from three precedents of Erstwhile High Court of West Pakistan namely Dad Muhammad Khan v. Bassa (PLD 1965 Lah. 77), Khizer Hayat and 5 others v. The Commissioner, Sargodha Division etc. (PLD 1965 (W.P.) Lah. 349) and Rehmatullah Khan v. The State (PLD 1965 Pesh. 162). These cases proceed on identical grounds: In Dad Muhammad Khan's case (PLD 1965 (W.P.) Lah. 77), his lordship Mr. Justice Sardar Iqbal said:--- "It amounts to reading words into the explanation to say that the existing licence shall be deemed to continue for a period of three years. A Court is not entitled to read words into an Act of the Legislature unless a clear reason for it is to be found within the four corners of the Act itself. Its duty is neither to add to, nor to take from a statute anything unless there are good grounds for thinking that the Legislature intended something which it has failed precisely to express. No such inference - is possible in the present case. In fact, these words cannot be added unless we take away from the provision the words 'until orders on the application have been made'. It is not permissible to make additions or alternations or to restore casus omissus in the statute without a suitable amendment. The Court cannot remedy either of these defects."
' Now we come to next authority (PLD 1965 (W.P.) Lah. 349). We have gone through this authority and find that this proceeds almost on totally similar factual background and raise same proposition of law. In this case, one Khizar Hayat and five of his colleagues were charged with offences under sections 363, 366, 368 and 376, P.P.C. F.I.R. Was registered in Police Station Noshehra, Sargodha on 25th February, 1962. It was alleged therein that petitioner had kidnapped Mst. Iqbal Khatoon/aged. 14 years/daughter of Maqsood Ali complainant; that on 23rd April, 1962, the aforesaid persons produced her before the Magistrate and got her statement recorded to the effect that she was a major and on her own married Khizar Hayat. In the light of that statement, the petitioners were released on bail and a report under section 173, Cr.P.C. Was put before the Court under sections 363, 366, 368 and 376, P.P.C. Mst. Iqbal Khatoon was recovered and was restored to complainant. On 6th of May, 1962 Mst. Iqbal Khatoon was again abducted by Khizar Hayat and a case under sections 363 and 366, P.P.C., was registered against him and others at Police Station Sadar, Sargodha. On 6th June, 1962, she was produced by the petitioner in the Court of Magistrate First Class, Sargodha, and her statement was recorded, wherein, she stated that she was wife of Khizar Hayat. Mst. Iqbal Khatoon was so allowed to accompany the accused. Thereafter, the trial of the aforesaid accused proceeded in the Court of competent jurisdiction till the 13th August, 1963 when the Commissioner Sargodha referred the question of guilt or innocence of the accused to the Tribunal constituted under West Pakistan Criminal Law (Amendments) Act, 1963. This was challenged by the petitioners by filing a Constitutional petition in the High Court of West Pakistan.
The question raised in the petition was referred to the larger Bench in following terms: "If a person is accused of more than one offence some of which are included in the First Schedule to the West Pakistan Criminal Law (Amendments) Act, 1963, and some are not so included and the evidence in proof of those offences is partly or wholly common, is it permissible for the Commissioner to refer those offences which are included in the Schedule to a Tribunal, leaving the other offences to be dealt with by the Courts under the Criminal Procedure Code, 1898."
' The Full Bench held that since the offences under sections 363, 366 and 368 were omitted from Schedule to West Pakistan Criminal Law (Amendments) Act, 1963, the Special Court had no jurisdiction to try said offence. Above answer was rendered by his Lordship Ortcheson, J. (then the Judge of High Court of West Pakistan) in following terms:-- - "With respect of the remaining offence transferred by the Commissioner, Sargodha, to the Tribunal in the case out of which this reference arises, namely that under section 366, P.P.C., it is no doubt true that an offence falling within the orbit of that section is merely an aggravated form of an offence under section 363, P.P.C., but the argument that a case under section 366 can, therefore, be transferred to the Tribunal cannot be accepted. As pointed out by our learned brother in their referring order, the First Schedule to the Act has made the aggravated form of dacoity, namely dacoity with murder (section 396) robbery or dacoity with attempt to cause death or grievous hurt (section 397) and attempt to commit robbery or dacoity when armed with a deadly weapon (section 398) transferable to a Tribunal along with what may be termed simple dacoity which is punishable under section 395, P.P.C. This raises a presumption that the question whether the aggravated forms of kidnapping or abduction should also be made triable by a Tribunal under the Act was considered by the Legislature and that the omission to do so was deliberate and not merely accidental. It is well-settled that Courts cannot extend a statute to meet a case for which provision has clearly and undoubtedly not been made. In this connection, the following passage from Crazies on Statute Law, Sixth Edn. From page 70 may be cited with advantage:--- ' The authorities on this subject are numerous and unanimous. 'No case can be found to authorise any Court to alter a word so as to produce a casus comics, said Lord Halsbury in Mersey Docks v.
Henderson. In Crawford v. Spooner, the Judicial Committee said: 'We cannot aid the Legislature's defective phrasing of an Act, we cannot add and mend, and by construction, make up deficiencies which are left there.' In 1951 in Magor and St. Mellons R.D.C. v. Newport Corporation. It was held by the House of Lords that a Court has no power to fill any gaps disclosed in an Act. To do so would be to usurp the function of the Legislature' .
' In other words, the language of Acts of Parliament and more especially of modem Acts must neither be extended beyond its natural and proper limits, in order to supply omissions or defects, nor strained to meet the justice of an individual case."
' His lordship went on to say:- "With the utmost respect, I entirely agree with the remarks of the learned author but they are controlled by the words emphasised above. Moreover, in the present case, the question involved is not that of the interpretation of the language of the Act, but of the effect of the omission to include certain sections of the Penal Code from the First Schedule. The case cited, is, therefore, not strictly in point. It is possible that section 368, P.P.C. Was omitted from the First Schedule to the Act by oversight but as pointed out in the above citation from Craies' Work on Statute Law, a Court has no power to fill any gaps disclosed in an enactment. The omission of sections 364, 364-A, 365 and 366 appears, for the reasons already given, to be deliberate. It may incidentally be stated with respect to section 365 that it carries the same maximum punishment as section 363 and cannot, therefore, be described as an aggravated form of the latter section, the only difference between the two being that whereas the scope of section 363 is confined to a particular form of kidnapping, section 365 also punishes abduction with the intent specified in the section."
' The same question cropped up again before the Full Bench of West Pakistan High Court at Peshawar. The rule enunciated in Khizar Hayat's case (PLD 1965 (W.P.) Lah. 349), was followed in this case and it was held that F.I.R., related to offence under section 109, P.P.C., that it was not inserted in the Schedule and so the Special Court had no jurisdiction to try that offence.
7. The ratio, deducible from the foregoing, is that penal statutes are to be accorded strict construction in accordance with golden rule of litra-legis and that ordinarily Courts are not authorized to supply omissions left by Legislature. Although, in exceptional circumstances, the Court may fill up the gap if it is found that on account of omission, the underlying objective of Legislature will be frustrated and statute will become wholly unworkable. The cases cited by the amicus curiae fall in the said category. Before we apply the above rules to the facts of the case in hand, we think expedient to have a rapid survey of the relevant provisions of Act. Anti-Terrorism Act, 1997 (XXVII of 1997) was promulgated on 20th August, 1997 with the following object as given in preamble:--- "Whereas, it is expedient to provide for the prevention of terrorism, sectarian violation and for speedy trial of heinous offences and for matters connected therewith and incidental thereto."
' Section 2 of the Act deals with definitions of various expressions employed in ibid. Section 2(e) gives the definition of scheduled offences. Section 6 gives the meaning of terrorist act, while section 7 makes it punishable. Section 8 restrains citizens from acts intended or likely to stir up sectarian hatred. Section 12 provides the constitution of Special Courts and confers jurisdiction upon them to try terrorist act and offences mentioned in Schedule. At this stage, it will be relevant to point out that Schedule was made under section 2(e) of the Act. In the first place, apart from other offences sections 295-A, 298-A, 364-A, 365, 365-A, 392 and 402 of P.P.C., and offences under subsection (4) of section 10 of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 were included in Schedule. Furthermore, attempt to commit the above offences was also put in the Schedule. This was, however, not the end of the matter. Soon thereafter, the Federal Government amended the Schedule in exercise of its powers under section 34 of the Act.
Paragraphs (b) and (c) in sections 2 and 2-A were amended in following terms:--- "For clause (b) in entry 2 the following shall be substituted, namely:---
(b) sections 295-A, 298-A, 364, 364-A, 365 and 396 and
(c) sections 392 to 395, 397 and 398.
' After entry 2 the following new entry shall be inserted, namely:--- (2-A) Any offence punishable under sections 6, 7, 8 or 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, if committed in committing any of the offences punishable under sections 392 to 398 of the Pakistan Penal Code."
' This was followed by yet another Notification on 13th December, 1997. Meanwhile, the various provisions of this Act were assailed before the superior judiciary and finally the Supreme Court decided that litigation in Mehram Ali's case (PLD 1998 SC 1445). In this decision, number of provisions of this Act were declared contrary to the Constitution. Pursuant to this decision Ordinance IX of 1998 was promulgated. Resultantly, we now so reach the aforesaid Ordinance.
Subsection (e) of section 2 of the Act was amended and scheduled offence was defined as follows:--- "Scheduled offence means a terrorist or sectarian related offence as set out in the Act or the Schedule hereto."
' Section 6 was amended in following terms:--- "6. Terrorist act:---A person is said to commit a terrorist act if he---
(a) in order to, or if the effect of his actions will be to, strike terror or create a sense of fear and insecurity in the people, or any section of people, or to adversely affect harmony among different sections of the people does any act or thing by using bombs, dynamite or other explosive or inflammable substances, or such fire-arms or other lethal weapons as may be notified, or poisons or noxious gases or chemicals in such a manner as to cause, or be likely to cause, the death of, or injury to, any person or persons, or damage to or destruction of, property on a large scale, or a widespread disruption of supplies of services essential to the life of the community, or threatens with the use of force public servants in order to prevent them from discharging their lawful duties; or
(b) commits a scheduled offence, the effect of which will be, or be likely to be, to strike terror, or create a sense of fear and insecurity in the people, or any section of the people, or to alternate any section of the people or to adversely affect harmony among different sections of the people; or
(c) commits an act of gang rape, child molestation or robbery coupled with rape as specified in the schedule to the Act."
Section 7 of the Ordinance reads as under:--- "7. Punishment for the terrorist act.--- ' Whoever commits terrorist act.---
(i) referred to in paragraph (a) of section 6, shall---
(a) if such act has resulted in the death of any person be punished with death; and
(b) in any other case, be punishable with imprisonment for a term which shall not be less than seven years but may extend to life imprisonment and shall also be liable to fine; and
(ii) referred to in paragraphs (b) and (c) of section 6 be liable to the punishment prescribed under the relevant."
' From the amended tub-clause (e) of section 2 it would seem that scheduled offence means a terrorist or sectarian-related offence as set out in the Act or Schedule thereto. Section 6 almost widens the definition of terrorist act and brings within its ambit an act which is committed in such a manner which creates terror or sense of fear and insecurity in the people or any section of the people or to alienate any section of people, or to adversely affect harmony among different sections of the people. By virtue of subsection (b) it is postulated that a person commits terrorist act if he commits a scheduled offence, the effect of which will be or to be likely to be to strike terror or create a sense of fear and insecurity in the people or any section of the people or to alternate any section of the people, or to adversely affect harmony among different sections of the people.
Sub-clause (c) of this newly-amended section enacts that any person who commits an act of gang rape, child molestation or robbery coupled with rape as specified in Schedule, commits terrorist act. Clearly the expression 'child molestation' has been put in section 6 and has been treated as an act of terrorism. The difficulty arises from section 7. It enacts that the terrorist act as defined in section 6 and put in scheduled offences has been made punishable under this provision.
Its sub-clause (ii) postulates that paragraphs (b) and (c) of section 6 be liable to the punishment prescribed under the relevant laws. Clearly, section 7 does not provide any punishment for act of child molestation. It only says that persons, charged with having committed the aforesaid act, shall be punished according to relevant provisions under Pakistan Penal Code or any other law in field.
For reasons best known to Legislature, the punishment of child molestation was/is not provided in amended section 7 of the Act. We agree with Malik Farrukh Mahmood, Advocate, that the offence of child molestation falls within the ambit of section 364-A of P.P.C. The aforesaid provision was/is not put in the Schedule. In the first instance, this was the part of the Schedule but nevertheless subsequently, it was omitted from it. So, is the case of section 12 of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and section 377, P.P.C. On this analysis we have, therefore, no option but to hold that the learned Special Court, constituted under section 12 of the Act, had no jurisdiction to try a person when he is charged under sections 364-A and 377 of P.P.C., and section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The above said penal provisions are not put in Schedule. On the above conclusions, we have no difficulty in saying that the impugned order passed by learned Special Court is clearly without jurisdiction and is of no lawful consequence. The same is declared as such.
8. As regards the authorities cited by the learned amicus curiae, we find that the said authorities proceed on dissimilar facts are not relevant to controversy in hand. However, we express our profound appreciation for the services he rendered to US.
9. As a result of the above conclusions, this Constitutional petition is allowed with the grant of requested reliefs. The learned Special Court shall immediately send the record of the case titled Zahid Pervez v. State (F.I.R. No,1043 of 1998), Police Station City, Bahawalnagar) to the concerned learned Sessions Judge, who shall proceed with the trial of the case himself and without wasting time. There shall be no order as to costs.