' S.A. RABBANI, J.--- In the F.I.R., lodged in this case at Police Station Saudabad on 30-12-1998, unwitnessed murder of three members of a family in their house was reported. Through the fourth member of the family viz. Asma Nawab, the police found her own involvement in the crime as well as clue of three other culprits namely Javed Ahmed Siddiqui, Farhan Khan and Wasim Ahmed.
Deceased persons were parents and brother of Asma Nawab.
2. Statements of these accused persons disclosed commission of another offence also i,e, robbery of cash, bonds and ornaments. The case was, therefore, sent up for trial before Anti-Terrorism Court No,1, Karachi. Where the four accused persons were charged as under:- "That you on or about 23-12-1998 from 8 a.m. To 9-30 a.m. In the house D.2-133, Malir Colony, Karachi in furtherance of your common intention armed with toy pistols and knives entered into the said house and committed robbery of cash, bonds and ornaments of deceased and thereafter intentionally caused Qatl-e-Amd of Nawab Ahmed, Asif Ahmed and Mst. Abrar Khatoon, the effect of which was to strike terror and create sense of fear and insecurity in the people and thereby committed offences punishable under sections 392, P.P.C. And 7(i)(9a), Anti-Terrorism Act read with sections 302, 34, P.P.C. And within the cognizance of this Court.
' And I hereby direct that you be tried by this Court on the abovesaid charges.
' This the 11th day of June, 1999.
(Sd,) Judge, Anti-Terrorism Court No,1, Karachi."
3. After trial, the Court convicted all the four accused under section 392 read with section 34, P.P.C.
And three of them also under section 7(i)(b) of Anti-Terrorism Act, 1997 read with section 302(b) and section 34, P.P.C. These three were sentenced to death in addition to rigorous imprisonment and fine awarded to all the four. From this conviction and sentence, all the convicts have filed separate appeals.
4. Mr. A.Q. Halepota, learned counsel for appellant Farhan raised a preliminary question about the jurisdiction of the Anti-Terrorism Court to try this case. Learned Advocates appearing for other appellants adopted the stand and arguments of Mr. Halepota.
5. Besides pointing out patent error in the charge that the date of offence has been mentioned as 23-12-1998, instead of 30-12-1998, and a mention that four accused entered into the house, whereas the fourth Asma Nawab was already in the house which was her own residence, Mr. Halepota contended that the question is whether upon the allegations made by the prosecution, the case falls within the meanings of section 6 of Anti-Terrorism Act, 1997?
6. He submits that the weapon, alleged by the prosecution, used in the killing is not one mentioned in section 6(a) of the Anti-Terrorism Act. This provision covers a death caused by use of bombs, dynamite, 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 the present case, death was caused by sharp-cutting weapon such as knife. This, is also, not a case of a threat, with use of force, to prevent a public servant from discharging lawful duty. In view of these facts on record, section 6(a) of the Anti-Terrorism Act, 1997 is not attracted.
7. Section 6(b) of the Act is attracted in case of commission of a scheduled offence. According to the prosecution case, two crimes have been committed in this case; first Qatl-e-Amd under section 302, P.P.C. And secondly, robbery under section 392, P.P.C. An offence under section 302 is a scheduled offence if (i) it is committed with a canon, grenade, bomb, rocket, or (ii) the victim is a member of police, armed forces, civil armed forces, or is a public servant. Both these conditions are not available in the present case.
8. If a death is caused during or while committing robbery; or if in committing the offence of robbery the offender commits murder, the offence would fall in the Schedule.
9. Mr. Halepota contends that it is the case of the prosecution in itself that the victims were killed after the commission of robbery which is evident from the charge, which mentions that the accused committed robbery of cash, bonds and ornaments of deceased and thereafter, intentionally caused Qatl-e-Amd. He submits that according to confessional statement of appellant Farhan, which has been relied upon by the prosecution, the deceased were killed after robbery in order to destroy the evidence. According to him, the words "during", "while" and "in", used in the Schedule, connote a span of period between, and confined to, the start of the offence of robbery to its completion. He based his submissions Qn the meanings assigned to these words in "Websters New World Thesaurus.
10. Mr. Jalil Hashmi, learned A.A.-G. Contends that the offences of robbery and murder were committed at the same time and no line, with reference to time, can be drawn between the two offences. We would be inclined to agree with the learned A.A.-G. Had this been the prosecution case. There is no eye-witness of the incident, and the details of the commission of the offence have come to the knowledge of the prosecution only through confessional statements of the accused. In those statements, they have not said that they committed murders on any resistance by the persons killed to the robbery, or, in any way, to facilitate the robbery. If those statements are to be relied upon, the killings would be believed to have been done after the commission of robbery in order to destroy evidence, and this is the inference drawn by the trial Court itself, which is reflected from the charge.
11. An offence of robbery has been made a scheduled offence if, to facilitate this offence, a death is caused. This is not the case here. What has been discussed above adequately establishes that, according to the prosecution case itself, the offence committed in this case is not covered by section 6 of the Anti-Terrorism Act, 1997. A charge under section 7 of this Act is not, therefore, valid.
This, consequently, affects determination of jurisdiction of trial Court. Since the offences committed in this case are not covered by section 6, or Schedule to the Anti-Terrorism Act, 1997, the Anti- Terrorism Court with a jurisdiction under section .12 of this Act, was not legally competent to try this case. The conviction and sentences of all the four appellants, having been awarded by the Court having no jurisdiction, are set aside and the case is remanded to the Sessions Court, Karachi East for trial afresh. All the four appeals stand disposed of accordingly.