' ABDUL HAMEED DOGAR, J.---Appellants Muhammad Ashraf, Ghulam Ali Murtaza and Muhammad Nadeem have assailed judgment, dated 18-5-1999 passed by Mr. Hussain Baldish Khoso, Judge, Anti-Terrorism Court No,IV, Karachi, whereby they were convicted under section 7 of the Ordinance read with section 34, P.P.C. And sentenced to suffer R.I. For 7 years. However, they were extended benefit of section 382-B, Cr.P.C. Towards computation of their sentence.
2. Briefly the facts of the prosecution case are that on 18-11-1998 at 4 p.m. One unknown person handed over a letter to Khan Zareen, Chowkidar of complainant Feroz Alam, and asked him to deliver the same to the complainant. Accordingly the said Chowkidar handed over the said letter to the complainant on his return to his house, in which it was found that a sum of Rs,10,00,000 was demanded as Bhatta from him. Thereafter some unknown persons contacted the complainant on telephone from time to time and demanded Bhatta and also issued him threats of murder and dire consequences in case of its non-payment. The complainant contacted Citizen Police Liaison Committee ('CPLC') and apprised them of the facts, which provided him CLI facility on mobile telephone and his other telephones were kept under observation. On 20-11-1998, the culprits again contacted the complainant on telephone and demanded the amount and the conversation was taped. Similarly on the same day at about 9-30 p.m. They again contacted the complainant but the conversation could not be taped due to technical fault. It was on 21-11-1998 that the complainant went to P.S. North Nazimabad and lodged the F.I.R. Under section 7 of the Ordinance read with section 34, P.P.C. After recording F.I.R. Police started investigation and CPLC officials earmarked the police party for apprehending the culprits. On 22-11-1998 the complainant again received telephone call at about 16-30 hours from some unknown culprits. Since CPLC officials were already with him at that time, as such they instructed him to prolong the conversation and in the meanwhile they informed the police party at P.S. North Nazimabad for apprehending culprits.
The said police party raided telephone booth, situated in Orangi Town and apprehended the culprits. The complainant alongwith officials of CPLC when reached the telephone booth found all the 3 culprits (the appellants) apprehended by the police. They disclosed their names as Muhammad Ashraf, Ghulam Ali Murtaza and Muhammad Nadeem (the appellants). On completion of investigation the appellants were sent up to face trial before the Military Court.
3. The charge was framed against the appellants that they in furtherance of their common intention by intending to charge Bhatta demanding an amount of Rs,10,00,000 in violation of law from complainant Feroze Alain and created civil commotion, an offence punishable under section 7 of the Ordinance read with section 34, P.P.C., to which they pleaded not guilty.
4. During trial before the Military Court the prosecution examined complainant Feroz Alam, First Class Magistrate Syed Safdar Hussain, Chowkidar Khan Zareen, Magistrate Muhammad Azeem, Expert Ghulam Akbar Jaffri, S.I.P. Rao Muhammad Ihsan, Judicial Magistrate Sayyeda Parveen Shah, A.S.-I. Ikramuddin and P.W. Syed Usman Ali and then the prosecution closed its side. The charge- sheet was put up before the Military Court under section 7 of Pakistan Armed Forces (Acting in Aid of Civil Power) Ordinance, 1998 (Ordinance XII of 1998) (hereinafter referred to as the "Ordinance").
5. The case was still pending before the Military Court, when Ordinance XII of 1998 was repealed in view of judgment of the Hon'ble Supreme Court and section 7A of the Anti-Terrorism Activities Act, 1997 (hereinafter referred to as the "Act") with regard to civil commotion was introduced vide Ordinance No,IV of 1999 in the Anti-Terrorism Activities Act, 1997 on 27-4-1999. In view of repealed Ordinance, the matter was sent to the Anti-Terrorism Court for trial. Accordingly it was on 13-5- 1999, the statements of the appellants were recorded under section 342, Cr.P.C., wherein they simply denied to have committed the offence. About their examination on oath they replied that they had given statements on oath before the Military Court, whereas did not lead any defence.
6. The learned trial Court framed the following point for determination:
(1) Whether from 18-11-1998 to 21-11-1998 through . Letter and telephone calls accused Muhammad Ashraf, Ghulam Ali Murtaza and Muhammad Nadeem @ Alam in furtherance of their common intention demanded Rs,Ten lacs as Bhatta from complainant Feroze Alam resident of Block F, North Nazimabad and also issued threats of murder to him, as alleged by the prosecution?
7. On assessm ent of evidence the appellants were found guilty of the charge and were convicted and sentenced as stated above.
8. We have heard Mr. Nishan Ali Baig, the learned counsel appearing on behalf of the appellants and Mr. Syed Jalil A. Hashmi, the learned Assistant Advocate-General, on behalf of the State at length and have gone through the record and proceedings of the case in minute particulars.
9. The learned counsel for the appellants contended that the impugned judgment is not sustainable in law as the trial Court had no jurisdiction to pass the same. According to him Ordinance XII was repealed as per the orders of the Hon'ble Supreme Court passed on 16-2-1999, whereby the Military Courts were dissolved and in view of the said judgment Ordinance No, IV of 1999 dated 27-4-1999 was introduced on 27-4-1999, as such the subsequent trial by the Anti- Terrorism Court was coram non judice. He next argued that the prosecution has failed to produce any independent witness to establish its case, but on the contrary entirely interested evidence has been produced on record. According to them the identification parade is invalid and inadmissible in evidence for the reasons that the identifying witnesses had seen the appellants in custody prior to the arrangement of identification parade. He further submitted that no role of any sort has been assigned to appellant Ghulam Ali Murtaza, as such he cannot be said to have any intention of commission of offence with the other appellants. He lastly contended that the appellants are youngsters and have no previous record and alternatively some leniency may be extended in their sentence.
10. On the other side the learned A.A.-G. Vehemently controverted the contentions of the appellants' counsel and argued that the prosecution has fully established its case beyond any shadow of doubt. According to him the complainant as well as other witnesses have fully supported the case of prosecution against the appellants not only on the demand of Bhatta, but also on their red- handed arrest from the telephone booth at Orangi Town while demanding Bhatta amounting to Rs,10,00,000 and extending threats to the complainant.
11. Before dilating upon the merits of the case, it would be appropriate to refer the background of section 7A of the Act concerning creation of civil commotion in the Act.
12. In order to curb the acts of terrorism in the Province of Sindh, particularly in Karachi, Military Courts were established vide the Ordinance, whereby the said Courts were empowered to try offences mentioned in its section 6 and Schedule attached thereto. In the case of Sheikh Liaquat Hussain and others v. The Federation of Pakistan and others reported in PLD 1999 SC 504, the Hon'ble Supreme Court in Constitutional Petitions Nos.37, 38, 42 and 43 of 1998 and No,4 of 1999 alongwith Civil Review Petitions Nos 1 to 5 of 1999, wherein vires of the Ordinance .Were challenged, declared the Ordinance as unconstitutional, without lawful authority and of no legal effect and further directed that the cases pending wherein sentences have already been awarded but the same have not been executed shall stand set aside and the cases shall be transferred to Anti- Terrorism Court, already in existence or which may be created in terms of guidelines provided in the said judgment. Evidence already recorded in such cases and the pending cases shall be read as evidence in the cases provided that same shall not affect any of the powers of Presiding Officer of Anti-Terrorism Court in that regard as is available under the law. Sentences and punishments already awarded and executed in the cases were treated as past and closed transaction. In view of the guidelines of the Hon'ble Supreme Court section 39-A was introduced and the Ordinance was repealed by Second Amendment Ordinance, 1998 (XVII of 1997) (hereinafter referred to as the "repealed Ordinance"). By its subsection (2), all cases including cases before a Court of Appeal, which were pending under the repealed Ordinance, stood transferred to Anti-Terrorism Courts having jurisdiction under the Act. The cases so transferred were to proceed from the stage where the same were left by the Military Court. The cases which were transferred from the Court of Appeal, were to be decided on the basis of evidence already recorded after hearing the parties.
Accordingly an amendment was brought in the Act by Ordinance IV of 1999 dated 27-4-1999 which was made effective retrospectively from 24-2-1999, whereby sections 7A and 7B about creation of civil commotion and its punishment were introduced in the Act.
13. The appellants were initially charge-sheeted under section 6 of the Ordinance before the Military Court and while the case was pending there the said Ordinance was repealed and the case was received by way of transfer by Anti-Terrorism Court No,IV, which convicted and sentenced the appellants under section 7B of the (Amendment) Ordinance No,IV of 1999 in the Act.
14. The word "Bhatta" was for the first time included in section 6 of the Ordinance as an offence within the ambit of civil commotion and after its repeal it was introduced in the Act by Ordinance No,IV of 1999. By way of Ordinance No,XIII of 1999, promulgated on 27-8-1999 an amendment was brought in section 7B of the Act, whereby the words "er with fine or with both" were omitted and section 7B was made punishable with imprisonment which may extend to years and with fine.
15. For the sake of convenience sections 7A and 7B of the Act are reproduced below: "7A. Creation of civil commotion.---'Civil Commotion' means creation of internal disturbances in violation of law or intended to violate law, commencement or continuation of illegal strikes, go-slows, lock-outs, vehicle snatching or lifting, damage to or destruction of State or private property, random firing to create panic, charging Bhatta, acts of criminal trespass (illegal Qabza), distributing, publishing or pasting a handbill or making graffiti or wall-chalking intended to create unrest or fear or create a threat to the security of law and order or to incite the commission of an offence punishable under Chapter VI of the Pakistan Penal Code (Act XLV of 1860).
7B. Punishment for creating civil commotion.---Whoever commits an act of civil commotion shall be punished with rigorous imprisonment for a term which may extend to seven years and with fine."
16. The term "Bhatta" has not been defined in the Act. It has been derived from Urdu language and its Urdu meaning would be It in fact constitutes an offence of extortion in P.P.C. The word "extortion" has been explained in section 383, P.P.C., which reads as under: "383. Extortion.---Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security or anything signed or sealed which may be converted into a valuable security, commits 'extortion'.
17. To constitute the offence threat of injury to a person, dishonest intention, inducement and delivery of property or valuable security are its essential elements. From the facts and the evidence on record if the above ingredients are established, the offence of extortion is complete. Threat to put a person in fear of physical injury in order to extort money would be sufficient to constitute the offence of "Bhatta".
18. In the case in hand F.I.R. Has been registered under section 387, P.P.C. And on its perusal it transpires that the appellants had demanded Rs,10,00,000 as "Bhatta". From complainant Feroz Alam through letter which was handed over to P.W. Khan Zareen, Chowkidar, and also by making repeated telephone calls and on its failure issued threats to face the consequences. The complainant and P.W. Khan Zareen have categorically derosed at trial that the appellants had demanded Bhatta and were apprehended while making telephone call to the complainant. The above version has been fully supported by P.Ws. S.I.P. Rao Muhammad Ehsan, A.S.-I. Ikramuddin and Syed Usman Ali.
19. P.W. S.I.P., Rao Muhammad Ehsan was duty officer at P.S. North Nazimabad where complainant lodged F.I.R., which was recorded by him. P.W. A.S.-I. Ikramuddin was appointed as investigating officer. He visited the place of Vardat, recorded statements of P.Ws. Khan Zareen and Syed Usman Ali under section 161, Cr.P.C. On 22-11-1998 he received wireless message and after getting instructions from D.S.P. And S.H.O. Proceeded to Booth No,14 located at Orangi Town and apprehended appellants Ashraf, Ghulam Ali Murtaza and Nadeem, who were having conversation with the complainant on telephone. He snatched the telephone from appellant Ashraf and confirmed that the talk was being made with the complainant. He recovered one wristwatch, purse containing N.I.C., one card of Institute of Technology, one telephone diary containing the list of telephone numbers including that of Feroz Alam and one purse containing Rs,20 and few other papers and cards. He got conducted the identification parade of the appellants through P.Ws.
From Judicial Magistrate P.W. Syed Parveen Shah. The investigating officer also received a cassette in which the conversation was recorded in-between the complainant and appellarg Ashraf.
20. P.W. Ghulam Akbar Jafferi, the Handwriting Expert, deposed that he received disputed letter from P.S. North Nazimabad alongwith 3 others specimen handwritings and found that the disputed letter (Exh. 5) and the three specimen signatures had resemblance with each other and were signed by the same person.
21. On the other side, the appellants have failed to disprove the case of prosecution and simply pleaded that they were innocent and were falsely implicated in the case. They in their respective statements under sections 342 and 340(2), Cr.P.C. Claimed that they were innocent and were falsely implicated due to the enmity. Admittedly, they have not furnished any explanation of their being apprehended from telephone booth while talking on telephone with the complainant and asking for payment of Rs,10,00,000 as Bhatta. It would be pertinent to note that all the appellants have admitted in their statements that they were arrested by police on 21-11-1998 at 7-30 p.m.
Which goes to show that all of them were apprehended at one and the same time, which has confirmed their involvement in the offence. None of them has suggested any particular enmity either with the complainant or with the police, as such we are left with no option but to come to the conclusion that the prosecution has fully proved the case against the appellants.
22. The contention of the learned counsel that the trial Court had no jurisdiction to convict the appellants is devoid of force. The Hon'ble Supreme Court in the case of Sheikh Liaquat Hussain (ibid), on 17-2-1999 declared the Ordinance unconstitutional, without lawful authority and of no legal effect. In view of the judgment, the Ordinance was repealed and by repealed Ordinance an amendment was brought in the Act through (Amendment) Ordinance, 1999 (IV of 1999) dated 27- 4-1999 but was made effective from 24-2-1999. The case in hand was transferred from Military Court to Anti-Terrorism Court No,I, from where it was transferred to the trial Court since Ordinance No,IV of 1999 was made effective from 24-2-1999, as such the moment the case was received, the trial Court was competent to try the case as having the jurisdiction. So far next contention of the learned counsel for the appellants, the witnesses are natural and are not interested P.W. Khan Zareen is the Chowkidar of the complainant, whereas others are official witnesses, as such they cannot be termed to be interested. There seems to be no defect in holding identification parade.
P.Ws. Khan Zareen had picked up appellant Ashraf in the identification parade correctly, to be the culprit, who handed over him the letter and also identified him to be the same at trial. So far case against appellant Ghulam Ali Murtaza is concerned, he too was apprehended from telephone booth while asking the complainant to arrange for the demanded money, thus he shared a common intention with other appellants in the commission of offence and is equally responsible.
This is not a case where appellants deserve any leniency in the sentence.
23. For what has been discussed above, we are of the considered opinion that the prosecution has fully proved the charge under section 7-A of Ordinance No,IV of 1999 against appellants Muhammad Ashraf, Ghulam Ali Murtaza and Muhammad Nadeem, who were rightly convicted and sentenced, but instead of section 7 of the Ordinance, 1999, conviction and sentence should have been for an offence under section 7B of the Act. Accordingly the conviction and sentence of appellants is maintained under section 7B of the Act.
24. With the above modifications, the appeal is dismissed.
' These are the reasons of our short order dated 29-9-1999.