1. NIZAM HUSSAIN SIDDIQUI, C.J.--The petitioners have impugned Notification No,PS/US/HD/154/98, dated 9-2-1999, issued by respondent No,1, Home Secretary, Government of Sindh, whereby Sessions Case No,1029 of 1997, being Crime No,117 of 1997 of Police Station Saddar, presently pending before learned Sessions Judge, Karachi, South, was ordered to be transferred to respondent No,2, Special Judge Court No,7, acting under the Anti-Terrorism Act, 1997, hereinafter called the 'Act'. The petitioners have also challenged the order, dated 19-7-1999, of said Sessions Judge, directing to send its R&P to the respondent No,2 for its disposal according to law. The F.I.R. Of aforesaid case was registered on 20-5-1997 at 8-00 p.m., showing the date and time of occurrence as 19-5-1997 at 5-30 p.m. It was lodged by complainant Dr. Abdul Jalil Shaikh and was registered under section 365, P.P.C. According to F.I.R., complainant's younger brother, namely, Dr. Abdul Qudoos, was kidnapped by some unknown culprits. It is alleged that investigation revealed that Dr. Abdul Qudoos (deceased) was called by petitioner No,1, Jahangir Akhtar Awan, through his wife/accused Mst.Zubeda, on 19-5-1997 and was murdered by him and thereafter said petitioner disposed of the dead body. It appears that the complainant moved an application under subsection (3) of section 12 of the Act before said Sessions Judge, for transferring the case to respondent No,2 on the ground that it was covered by the Act and that the deceased was a public servant, and at the relevant time was serving as the Assistant District Health Officer, Karachi South. Also, it was urged that deceased was brutally murdered and the case was exclusively triable by the respondent No,2. Learned Sessions Judge vide detailed order, dated 31-7-1998, rejected said application. However, he by order, dated 19-7-1999, transferred the case to respondent No,2 on an application, dated 12-6-1999 filed on behalf of the State. Only point for consideration in this matter is that, whether or not, under the circumstances, the case could be transferred to respondent No,2. Mr. Gulzaman Khan, learned counsel for the petitioners, contends that 'the Act' received assent of the President on 16th August, 1997, and was published in the gazette of Pakistan Extraordinary on August 20, 1997, and it was made applicable for the whole Province of Sindh by Notification, dated 15th September, 1997, of Ministry of Law, Justice, Human Rights and Parliamentary Affairs, and since the offence was committed on 19th May, 1997, therefore, the provisions of the Act could not be invoked, as the offence was committed much prior to the Act came into force. As against above, Mr. Shaukat H. Zubedi, learned counsel for the complainant, argued that, though the Act came in force after the offence was committed, yet, by virtue of section 38 of the Act, its provisions could be involved with the exception that the punishment would be as prescribed by law at the time the offence was committed. For applicability of section 38 (ibid), the offence committed earlier before the Act came in force, be such as to constitute a "Terrorist Act" which has been defined in the Act and its relevant portion is as follows:-- "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 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 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 adversely affect harmony among different sections of the people; or ............................................................................................................................. ............................................................................................................................. Mr. Gulzaman Khan, in reply, submitted that the provisions of section 38 (ibid) would not override the provisions of the Constitution, which is a Supreme Law of the country. He referred to Article 12 of the Constitution, which reads as under:- "12(1). 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 the 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.
(2) Nothing in clause (1) or in Article 270 shall apply to any law making acts of abrogation or subversion of a Constitution in force in Pakistan at any time since the twenty-third day of March, one thousand nine hundred and fifty-six, an offence." It is noted that aforesaid Article of the Constitution provides protection against retrospective punishment. A perusal of the aforesaid Article reveals that for an offence by penalty greater than or of a kind different from the penalty prescribed by law for that offence at the time it was committed, above Article would be attracted. It would also be attracted if the subsequent law alters the rule of evidence to the prejudice of the accused or otherwise alters the situation to his disadvantage. It is noted that if the case is decided under the provisions of Act, the appeal period would only be of 7 days, while under Article 155 of the Limitation Act, 1908, it is of 60 days.
2. Subsection (8) of section 19 of the Act, provides that adjournment for more than two days is not to be granted. It is true that the cases be decided as early as possible and the causes of delay be eliminated but at the same time there could he justification for granting adjournment for more than two days. This concession is available to the accused under Cr.P.C. But not under the Act.
3. Another important distinguishing feature is that under section 20 of the Act, a person convicted for an offence by the Anti-Terrorism Court shall be awarded the maximum punishment prescribed by law for the offences, unless for reasons to be recorded the Court decides to award a lesser punishment. Under the provisions of P.P.C., it is provided that the offender shall be punished with the imprisonment for a term which may extend to the period, which is prescribed for each of the offence separately. The rule, as per section 20 of the Act, is to award maximum punishment and lesser punishment is exception. Under P.P.C., invariably maximum punishment is prescribed and it is left to discretion of the Court to award sentence, it deems fit. Under section 30 of the Act, modified application of certain provisions of Criminal Procedure Code is to be applied. Although. Cr.P.C. Is applicable to the cases registered under the Act, but at the same time the procedure will be followed which is prescribed in the Act, if it is in conflict with Cr.P.C. Under subsection (3) of section 30 of the Act, the accused are not entitled to the benefit of sections 439, 491, 496, 497, 498 and 506- A of the Criminal Procedure Code, to which they are entitled under Cr.P.C. We are of the view that Article 12 of the Constitution is attracted to this case. Next point to be considered is, whether the alleged act attributed to the petitioners constitutes a "terrorist act" within the meaning of the Act. It is the case of prosecution that deceased was murdered brutally and the dead body was cut into 10 to 12 pieces. With reference to above plea, alleged confession is to be seen. It is mentioned therein that the deceased stated before the petitioner No,1 that he had illicit terms with his (petitioner's) wife. According to prosecution, thereafter the petitioner killed the deceased with a hammer, which is not a weapon. Further, the confession shows that the petitioner, in order to dispose of the dead body, secretly cut it into pieces and threw it away. He had taken all possible steps to conceal the offence. The deceased at the time of occurrence was not discharging his official duties but was there in his private capacity. An act of terrorism is a preplanned and organized system of intimidation. Its requisites and attributes are that such act and its effects are made known to the people and widely circulated with exaggeration. It is neither hidden nor disguised. It means an act which is committed with the sole object to terrorise the people and to feel them insecure. These ingredients are not in the instant case. The case whether it proceeds before the respondent No,2 or before Sessions Judge, Karachi South, will be decided by a Sessions Judge. Mr. Shaukat Hussain Zubedi, .Learned counsel for the complainant, explains that if the case is heard by respondent No,2, it would be decided much earlier than by Sessions Judge, Karachi South.
4. Accordingly, the impugned notification is struck down to the extent of the case in question and impugned order dated 19-7-1999 is set aside. Learned Sessions Judge, Karachi South is directed to keep this matter on his file and to decide it on merits, as early as possible, preferably within four months from receipt of the order. In above terms, the petition is allowed.