1. ' MUHAMMAD ROSHAN ESSANI, J.--- The appellants Moulvi Noor Muhammad, Abdul Khalique, Asmatullah and Arbelow have challenged the conviction and sentence passed by the learned Special Judge for Anti-Terrorism Activities, Sukkur and Larkana Division at Sukkur on 15-5-1998 in Special Case No,3 of 1998 which was registered on the basis of F.I.R. No,229 of 1997 at Police Station Mirpur Mathelo under section 365-A, P.P.C.
2. ' The appellants Moulvi Noor Muhammad, Abdul Khalique and Asmatullah were convicted under section 365-A, P.P.C. Read with section 34 and were sentenced to suffer imprisonment for life and appellant Arbelow was awarded death sentence and a reference for confirmation of his death sentence was also made to this Court. The trial Court further ordered that moveable and immovable properties of all the appellants be forfeited to the extent of Rs,1,35,000. All the appellants were also sentenced to pay fine of Rs,30,000 each and in case of default in payment of said fine the appellants were to suffer rigorous imprisonment for 3 months more. The impugned judgment was passed on 15-5-1998.
3. ' The brief facts of the prosecution case as disclosed in the FIR, lodged on 16-12-1997 are that on 8- 10-1997 complainant Manzoor Ahmed alongwith his brother Munir Ahmed and Ali Ahmed proceeded for going to Karachi and when they reached a graveyard near Magsi Village suddenly four persons armed with kalashnikoves appeared and overpowered them.
4. ' The complainant and his brother Munir Ahmed made their escape good and hid themselves in a cotton field. The culprits, however, caught hold of Ali Ahmed and abducted him. After the departure of culprits the complainant and his brother came out of cotton field and went to police station.
5. They reported the incident to the police. After three days the complainant party received a letter wherein they were directed to contact with appellant Noor Muhammad for the release of abductee Ali Ahmed. The complainant and his brother approached Moulvi Noor Muhammad, who assured them that he will arrange their meeting with dacoits and that they need not worry. After a few days the appellant Noor Muhammad sent a message through appellant Abdul Khalique directing them to reach his house during the night as he had made arrangement for their meeting with the dacoits. The complainant party went to the house of appellant Noor Muhammad where appellant Asmatullah brought four dacoits namely Lal Bux Sudh, Sher Ali Sudh, Rasheed alias Bijlee Korai and an unknown dacoit after about 15/20 minutes. The negotiations were then made and Rs,5,40,000 was settled as amount of ransom between appellant Noor Muhammad and complainant party.
6. They were directed to bring ransom amount on next day for payment and thereafter abductee was to be released. On the next day, the complainant party went to the house of appellant Noor Muhammad, where appellants Abdul Khalique and Asmatullah were present. Complainant delivered ransom amount to them. After receiving the said ransom amount the appellant named above assured him that on next day they may take away their brother from the house of appellant Noor Muhammad at about 7-00 p.m. The complainant party went to the house of appellant Noor Muhammad on stipulated day and time. The abductee Ali Ahmed was brought by appellants Asmatullah and he was handed over to the complainant party. The reason for delay in lodging F.I.R.
7. Was said to be the issuance of threats of death given to abductee Ali Ahmed. It was only after his release that the complainant made an application to S.S.P. At his direction S.H.O. Police Station Mirpur Mathelo registered the F.I.R.
8. ' After usual investigation the appellants were sent up alongwith absconding accused Lal Bux Sudh, Sher Ali Sudh and Rasheed alias Bijlee Korai to stand trial on 12-1-1998.
9. ' The attendance of absconding accused could not be procured in spite of steps as provided under law and ultimately after completing the codal formalities they were declared as proclaimed offenders and such proclamation under section 87, Cr.P.C. Was issued against them.
10. ' The trial Court framed charge against the appellants to which they pleaded not guilty and claimed to be tried.
11. ' The prosecution in support of its case examined P.W.1 complainant Manzoor Ahmed Exh.28, P.W.II abductee Ali Ahmed Exh.29, P.W.III Munir Ahmed Exh.30, P.W.IV Mashir Muhammad Hassan Bozdar Exh.32, P.W.V Mashir Sahibdino Chachar Exh.33, P.W.VI Mashir Arshad Ali Exh.34, P.W.VIII S.H.O. Abdul Qudoos Kalwar Investigating Officer Exh.35. P.W. Munawar Ali was given up vide statement Exh.31.
12. The Public Prosecutor then closed prosecution side by his statement Exh.36.
13. ' The appellants were examined under section 342, Cr.P.C. They denied the prosecution case. The appellant Asmatullah further stated that he was implicated due to enmity. The appellant Arbelow also denied the prosecution case and he further stated that he was shown to P. Ws. Prior to identification test. He stated that A.S.-I. Irshad of same police station demanded Rs,25,000 as illegal gratification from him for his release and on his refusal to pay the said amount he was involved in present case.
14. ' We have heard Mr. Abdul Hale= Pirzada, learned counsel for the appellants and Mr. Syed Jalil Ahmed Hashmi learned Assistant Advocate-General on behalf of the State. The latter has supported the impugned judgment.
15. ' At the very outset the learned counsel for appellant stated that since the proceedings before the trial Court were coram non judice, the impugned judgment is liable to be set aside. He stressed that before dilating upon the appraisal of the evidence produced before the trial Court, this preliminary objection may be decided. With the consent of learned counsel of the parties we decided to first dispose of this preliminary objection.
16. ' The Anti-Terrorism Act (Act No,XXVII of 1997) hereinafter referred to as "Act" was promulgated on 20th August, 1997. The "Scheduled Offence" is defined under section 2(e) of the Act. It reads as under:--
(2) ...................................................................................
17. (a)
18. (b)
19. (c)
20. (d)
(e) "scheduled offence" means an offence specified in the Schedule to this Act and shall include an offence under this Act; (t)
21. (g)
22. (h)
23. ' The Schedule to the Act promulgated on 20-8-1977 is reproduced hereinunder in extenso:-- SCHEDULE [See section 2(e)]
(1) Any offence punishable under this Act.
(2) Any offence punishable under any of the following sections of the Pakistan Penal Code (Act XLV of 1860), namely:--
(a) section 302,--
(i) if committed with a cannon, grenade, bomb, rocket or a light or heavy automatic weapon;
(ii) if the victim is a member of police, armed forces or civil armed forces or is a public servant;
(iii) if there is more than one victim; or
(iv) the victim was subjected to cruelty, brutality, torture, or burning; and
(b) offences under sections 295A, 298A, 364, 364A, 365, 365A, 392 to 402 of the Pakistan Penal Code (Act No,XLV of 1860).
(3) An offence punishable under subsection (4) of section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance No,VI of 1979).
(4) Any attempt or conspiracy to commit or any abetment of any of the aforesaid offences.
24. (underlining is mine).
25. ' By S.R.O. 663(1)/97, dated 21st August, 1997 the Federal Government introduced following amendment in the Schedule to the Act, wherein section 365-A, P.P.C. Was omitted and not inserted.
26. The S.R.O. Is reproduced herein under for the purpose of ready reference:-- "S.R.O.663(1)/97.--- In exercise of the powers conferred by section 34 of the Anti-Terrorism Act, 1997 (XXVII of 1997), the Federal Government is pleased to direct that the following amendments shall be made in the Schedule to the said Act, namely--
(1) in entry 2--
(a) in clause (a)--
(i) in sub-clause (iii) the word "or" of the end shall be omitted;
(ii) in sub-clause (iv) for the word "and" at the end the word "or" shall be substituted; and
(iii) after sub-clause (iv) the following new sub-clause shall be added, namely--
(v) if committed for or in committing the offence of robbery or dacoity".
(b) for clause (b) the following shall be substituted, namely:- (b) sections 295-A, 298-A, 364, 364-A, 365 or 396; and
(c) sections 392 to 395, 397 or 398--
(i) if in committing any of the above offences the offender or offenders commits the offence of murder of Zina-bil-Jabr punishable under sections 6, 7, 8 or 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)'.
(2) 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 (VII of 1979), if committed in committing any of the offences punishable under sections 392 to 398 of the Pakistan Penal Code'."
27. The Federal Government by S.R.O. 1237(1)/97, dated 13-12-1997 again made amendments in the schedule to Act, whereby section 365-A, P.P.C. Was reinserted in the Act. It will be pertinent to reproduce the S.R.O. Hereinbelow for the sake of convenience:-- "S.R.O. 1237(1)/97.--- In exercise of the powers conferred by section 34 of the Anti-Terrorism Act, 1997 (XXVII of 1997), the Federal Government is pleased to direct that the following further amendments shall be made in the Schedule to the said Act, namely:-- ' In the Schedule--
(i) for entry 2 the following shall be substituted- ' (2) Any offence punishable under any of the following sections of the Pakistan Penal Code (Act XLV of 1860), namely--
(a) section 302--
(i) if committed with a cannon, grenade, bomb or rocket or
(ii) if the victim is a member of police, armed forces or civil armed forces or is a public servant; or
(iii) if committed during or while committing the offence of robbery or dacoity and committed after the commencement of this Act; or
(b) sections 295-A, 365, 365-A; and
(c) sections 392 to 395, 397 or 398, if in committing the offence, the offender or any of the offenders commits the offence of murder or Zina-bil-Jabr punishable under sections 6, 7, 8 or 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979) and committed after the commencement of this Act.
(2) for entry (2-A), the following shall be substituted, namely-- '(2-A) Any offence punishable under sections 6, 7, 8 or 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979), if committed in committing any of the offences punishable under sections 392 to 398 of the Pakistan Penal Code (Act XLV of 1860) and committed after the commencement of this Act'.
(3) for entry 3 the following shall be substituted, namely--
(3) Any offence punishable under subsection (4) of section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance No,VI of 1979), if committed after the enforcement of this Act' ."
28. ' The incident occurred on 8-10-1997 and challan was stibmitted before Special Judge, Anti- Terrorism Activities on 12-1-1998.
29. ' The perusal of Schedule to the Act and amendments reproduced hereinabove, which were introduced in the Act, clearly show that on the alleged date of the incident as well as on the date when the case was sent up, section 365-A, P.P.C. Was not triable by the Special Judge, Anti- Terrorism Activities.
30. ' Now the point that needs consideration is whether the objection with regard to jurisdiction can be raised at appellate stage? On the point our findings are in affirmative. In the case of Sabir Shah v.
31. Saad Muhammad Khan reported in PLD 1995 SC 66 it has been held 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. Question of jurisdiction is to be considered by the Court even though not raised by the parties and Court can go into the question of competence of forum and to the extent of vires of section.
32. ' In the case of Khadim Hussain v. State reported in 1999 YLR 1817 identical point for adjudication came up before a D.B. Of Lahore High Court and it was observed that section 364-A, P.P.C. Was deleted from Anti-Terrorism Act, 1997 and it was not a scheduled offence when occurrence was alleged to have taken place more over from the facts of the case no scheduled offence was made out, consequently, the conviction and sentence was set aside and case was remanded to Sessions Judge (sic).
33. ' This point also came up for consideration before a D.B. Of this Court in the case of Abdul Karim v.
34. The State reported in 1999 M LD 3236. It was observed therein that unless it was shown that from the facts of the case a scheduled offence was made out it could be tried by the Special Court under the Act but the same would not ipso facto bring the alleged act within the scope of "Terrorist Act".
35. The offences in question were neither scheduled offences, nor offences under the said Act, therefore, the impugned orders assigning the cases to Special Court for trial were set aside and the same were directed to be tried by the Sessions Court.
36. ' In the case of Naeem alias Naeema v. The State reported in 1992 SCM R 1617 in an identical situation the Honourable Supreme Court observed at page No,1620 as under:- "The above resume of amendments made in the Act of 1975 makes it abundantly clear that the Special Court was invested with the powers to try offences under the Arms Ordinance in respect of kalashnikov with effect from 7-11-1988. No doubt, on the date of recovery of kalashnikov Exh.P.l. From the possession of the accused/appellant the amending Ordinance had lapsed but through the subsequent amending ordinance the lapsed provisions were reintroduced with effect from 7-11- 1988 and through the last Act with effect from 2-11-1988. Needless to emphasise that the Act (ibid) is a procedural law and legally operates retrospectively but in view of the clear proviso contained in the subsequent amending Ordinances and the Act V of 1990 whereby the amendments were deemed to be retrospective, there cannot be the slightest doubt that the Special Court had no jurisdiction to try the offence with which the accused/appellant was charged and its order convicting him is perfectly within jurisdiction."
37. ' The very point in issue was, again agitated before the Honourable Supreme Court in the case of Javeed Nawaz v. The State reported in 1995 SCM R 1151, the relevant observations coupled with the facts are reproduced herein under:-- "The undisputed factsof the case are that the petitioner alongwith his co-accused were tried by the Special Court constituted under the Suppression of Terrorist Activities Act, 1975 for allegedly abducting Sheikh Muhammad Aftab on 22-4-1990 in case F.I.R. No,192, dated 22-4-1990 Police Station Gulberg, Lahore, convicted under section 365-A, P.P.C. And sentenced to life imprisonment and forfeiture of property in favour of State. An Appeal bearing No,861 of 1990 was filed before the High Court under section 7 of Act XV of 1975 and during the hearing of the appeal preliminary objection was raised that though at the time of the commission of the alleged offence, Ordinance 1 of 1990 promulgated on 17-3-1990 included section 365-A, P.P.C. To the Schedule of Offences but since the same was not placed before the National Assembly under the mandatory provision of the Constitution, it lapsed on 16-7-1990 and at the time of submission of challan on 20-9-1990 section 365-A having ceased to be a scheduled offence, the Special Court constituted under the Ordinance had no jurisdiction to try the case. Ordinance XI of 1990 was promulgated on 31-10-1990 amending the Schedule to include section 356-A, P.P.C. Which also lapsed on 2-2-1991 but section 2 thereof contained a deeming clause, according to which, the amendment was deemed to have been so inserted on the 3rd of September, 1989. The conviction and sentence of the appellant was ordered on 22-11-1990 when section 365-A, P.P.C. Was part of the Schedule and exclusively triable by the Special Court."
38. ' It was further observed as under:-- "The learned High Court, besides relying on the judgment of the Lahore High Court in Liaquat Pervaiz Khan v. Government of Punjab PLD 1992 I,ah. -517 also placed reliance on the judgment of this Court in case Muhammad Naeem The State 1992 SCM R 1617 in which, more or less, identical legal points were involved and it was held that retrospective effect could be given to the reintroduced Ordinance from an earlier date. The said judgment of this Court is still holding the field and so long as it is not dissented from in a later judgment by a larger Bench, is binding on all the Courts in Pakistan under Article 189 of the Constitution. In the Judgment cited by the learned counsel for the petitioner only leave to appeal has been granted as the point agitated involved question of general legal importance and interpretation of the provision of the Constitution and so long as authoritative judgment is not pronounced, one way or the other, the earlier judgments of this Court shall remain in force."
39. ' The crux of the above observations of the Honourable Supreme Court is that the "Act" is a procedural law and legally operates retrospectively and the amendments were deemed to be retrospective. The section 365-A, P.P.C. Was a part of the Schedule on the date of the promulgation of the Act and on the date of passing the conviction and sentence upon the appellants. The perusal of authority in case of Khadim Hussain v. The State reported in 1999 YLR 1817 (ibid) shows that the citations in case of Naeem alias Naeema (ibid) and Jaweed Nawaz (ibid) were not placed before the learned Bench of Lahore High Court, while deciding the case of Abdul Karim (ibid).
40. ' The upshot of the above discussion is that the proceedings before the learned trial Court were not "coram non judice", therefore, the preliminary objection raised by the learned counsel for the appellants is overruled. However, the appeal will be heard and decided on merits. The office is directed to fix the appeal according to roster.