1. MUHAMMAD ROSHAN ESSANI, J.--- By this criminal miscellaneous application, applicant/accused Muhammad Sabir Roshan has sought quashment of proceedings pending against him before the Court of learned Special Judge, Anti-Terrorism, Mirpurkhas in Special Case No,37 of 1999, under sections 295-A, 295-B and 295-C. It arose out of F.I.R. No,285 of 1999 of Police Station Tando Adam, District Sanghar.
2. The brief facts of the prosecution case as disclosed by complainant Allama Ahmed Mian Hamadi in his F.I.R. Lodged at Police Station Tando Adam, District Sanghar on 18-11-1999, are reproduced herein under in extenso:-- "I report that I am member of Executive Committee of Khatam-eNabuwat and also Convenor for Province Of Sindh of Mujahideen Khatam-e-Nabuwat and also, I am Amir. On 16-9-1999, I was sitting alongwith Abdul Shakoor and Abdullah son of Noor Muhammad Thahim in the office of Khatam-e-Nabuwat, when one student of ow Madarasah brought a copy of fortnightly Sada- eSarfroshan which was read by us, in which, in columns Nos.1, 6 and also at another page in column No,4 statement of one Riaz Ahmed Gohar Shahi resident Khuda Ki Basti, Kotri was reproduced. It reads that his face (shape) appears on Hijr-e-Aswad from the day of creation, and Holy Prophet (p.b.u.h.) kissed the said Hijr-eAswad because it bore his shape i.e. Riaz Ahmed Gohar Shahi's, whom Holy Prophet identified. The Holy Prophet (p.b.u.h.) loved him very much and in fact both were living very happily in eternity before coming to this world (God forbid). Actually the name of the messengers and Prophets (p.b.u.h.) sent by Almighty Allah comes after our Holy Prophet (p.b.u.h.). Thereafter, the names of ' Asahabah' (companions) of Holy Prophet (p.b.u.h.) come, and then the names of his descendants. The persons against whom there was allegation of adultery and murder and who were recently involved in the charge of a attempting to commit rape with a girl in America, were arrested in America. Later on they were released on bail in America. Not only this, but he has also passed derogatory remarks about prayer, Zakat and Almighty Allah, as he says that there are 40 Paras of Holy Qur'an, out of which 30 are available in the shape of Holy Qur'an, while 10 are with Walies'. Qur'an says one thing while 10 paras. Speaks otherwise. According to Qur'an, Namaz (prayer) is compulsory, whereas 10 paras. Say that prayer is sin. The God is far away and there is no accessibility to him. The 10 paras. Say that God comes on earth in the shape of some times Khawaja and some time Data. There is also audio casettes to the above effect which I heard alongwith other witnesses. It has injured the religious feelings of the Muslims. Therefore, I made various applications in this respect. One application was made to the learned D.M. Sanghar who issued order on 17-11-1999 for registration of the F.I.R. I complain that abovementioned fortnightly issue of 15th August, 1999 shows that the following persons namely Editor Syed Zafar Kazmi, Wasi Muhammad Qureshi, Sub-Editor, Muhammad Sabir Roshan and Zubair Shami have injured the feelings of the Muslims by publishing the above statement. The accused Riaz Ahmed Gohar Shahi in his speech recorded in Audio Cassette has also contravened the injunctions as ordained by Allah in the Holy Qur'an and Sunnah so also the cannons of Islam and have thereby injured the religious feelings of the Muslims, therefore, he has committed offence punishable under sections 295-A, B, C, and section 8 of the A.T.A. Act."
3. During investigation police was not able to lay hands on the accused named in the F.I.R. And after usual investigation they were sent up in their absentia before the trial Court under charge-sheet, dated 23-11-1999, wherein they were shown as absconders.
4. The applicant/accused moved application under section 265-K, Cr.P.C. Before the trial Court which was dismissed by impugned order, dated 6-12-1999.
5. We have heard Mr. Qurban Ali Chuhan learned counsel for the applicant/accused and Mr. Muhammad Azeem Panhwar, learned counsel on behalf of the State. The latter supported the impugned order.
6. We have perused the material placed on record. It appears that the applicant/accused in spite of the knowledge of the pendency of the proceedings did not appear/surrender before the trial Court.
7. In this context it will be pertinent to reproduce herein under the relevant findings of the trial Court while passing the impugned order:- "In this case accused Muhammad Sabir Roshan as per the challan is absconder and has not surrendered, when it is the requirement of law that the accused must be before the Court unless his absence is dispensed with by the order of the Court. No reason is given about the absence of accused. The case-law given by the learned Counsel for the applicant/accused pertains to appeal from conviction, when the accused was absent from the lower Court on the ground that appeal is to be admitted as matter of right, which is his fundamental right but so far as trial is concerned, the accused must be present before the Court during the trial unless his absence is got condoned from the Court. I am, therefore, of the opinion that in absence of order of condonation of absence of accused during the trial before this Court, this application merits no consideration."
8. It is well-settled that fugitive from law and Courts loses some of the normal rights granted by the procedural as well as substantive law. The conduct of the accused person is very much relevant and cannot be ignored under any law or principle. Any one who by his conduct thwarts investigation or trial is not eligible to any discretionary relief.
9. The application under section 561-A, Cr.P.C. Against the order which is called in question, is not maintainable under the provisions of Anti-Terrorism Act, 1997. There is no specific provision in the Act for challenging the order of Anti-Terrorism Act Court by way of revision or criminal miscellaneous application under section 561-A, Cr.P.C. Only section in the Act is section 32 which makes the provisions of Criminal Procedure Code available for certain limited purposes, and in case they are not in consistent to any provisions of the Anti-Terrorism Act. The section 32 of Anti- Terrorism Act, 1997 is reproduced herein under for convenience sake:--
32. Overriding effect of Act.--- (1) The provisions of this Act shall have effect notwithstanding anything contained in the Code or any other law but, save as expressly provided in this Act, the provisions of the Code shall, in so far as they are not inconsistent with the provisions of Act, apply to the proceedings before Special Court; and for the purpose of the said provisions of the Code, a Special Court shall be deemed to be a Court of Sessions.
(2) In particular and without prejudice to the generality of the provisions contained in subsection
(1) the provisions of section 350 of the Code shall as far as may be, apply to the proceedings before a Special Court, and for this purpose and reference in those provisos to a Magistrate shall be construed as a reference to a Special Court."
10. The plain reading of the above provision of law shows that the provisions of the Code of Criminal Procedure are applicable to the extent that they are not inconsistent with other provisions of the Act.
11. For considering the question of applicability of sections 435, 439 and 561-A, Cr.P.C. The Court has to consider the effect of sections 25 and 31 of the Ati-Terrorism Act, 1997. It will be pertinent to reproduce hereunder the aforesaid provisions of the Act:-- "Section 25. Appeal.--- (1) An appeal against the final judgment of a Special Court shall lie to a High Court.
(2) Copies of the judgment of a Special Court shall be supplied to the accused and the Public Prosecutor free of cost on the day the judgment is pronounced and the record of the trial shall be transmitted to the High Court within three days of the decision.
(3) An appeal under subsection (1) may be preferred by a person sentenced by a Special Court on to High Court within seven days of the passing of the sentence.
(4) The Attorney-General or an Advocate-General may, on being directed by the Federal or a Provincial Government, file an appeal against an order of acquittal or a sentence passed by a Special Court within fifteen days of such order.
(5) An appeal under this section shall be heard and decided by an Appellate Tribunal within seven working days.
(6) .....................................................................................................................
(7) .....................................................................................................................
(8) Pending the appeal a High Court shall not release the accused on bail.
(9) Any appeal being before an Appellate Tribunal immediately before the commencement of the Anti-Terrorism (Amendment) Act, 1998, shall be deemed to be pending in the High Court.
(10) Where any person entitled to file an appeal before Appellate Tribunal immediately before the commencement of the Anti-Terrorism (Amendment) Ordinance, 1998, has not done so, he may, within seven days of such commencement, file an appeal before the High Court.
(11) Where an Appellate Tribunal has, at any time before the commencement of the Anti-Terrorism (Amendment) Ordinance, 1998, on appeal reversed an order or judgment passed by a Special Court an appeal may be filed against such order or judgment in the Supreme Court within thirty days of such commencement."
12. "Section 31. Finality of judgment.--- A judgment or order passed, or sentence awarded by a Special Court, subject to the result of an appeal under this Act shall be final and shall not be called in question in any Court."
13. The plain reading of section 31 of the Anti-Terrorism Act shows that judgment or order passed or sentence awarded by the Anti-Terrorism Court subject to the result of appeal shall be final/conclusive. It appears that the intention of the Legislature while enacting section 31 was that the trial was to be concluded within 7 days and so also appeal in the same period by the High Court. The section 25 of the Anti-Terrorism Act, 1997 is more clear on this aspect of the matter, as after the judgment is pronounced the copy of the same is to be supplied to the accused, as well as to the Public Prosecutor and record of the case is to be transmitted to the High Court within three days. Thus, the procedure under the Act is made automatic and the appeal is only permitted against the judgment or order of acquittal. The other orders become final as contemplated under section 31 of the Anti-Terrorism Act. Thus, sections 435, 439 and 561-A, Cr.P.C. Are inconsistent to the above provisions of the Anti-Terrorism Act. It is crystal clear that the order passed under Anti- Terrorism Act by Special Judge cannot be assailed/challenged by invoking revisional or inherent jurisdiction of this Court. The reason for the same is that only appeal is provided against the judgment of conviction or order of acquittal. The provisions of sections 25, 31 an 32 of the Anti- Terrorism Act, 1997 cannot be read in isolation but those are to be read in conjunction with each other, which do not permit the order passed by the Special Court to be challenged in revision or under inherent jurisdiction vested in this Court.
14. In this context we are fortified by the unreported D.B. Decision of this Court in Criminal Revision Application No,/6 of 1999, to which one of us namely Muhammad Roshan Essani, J., was a member.
15. The authorities in the cases of Moulana Dost Muhammad v. The State 1976 PCr.LJ 184, The State v.
16. Bashir and others PLD 1997 SC 408, Ahmed Sher and another v. The State PLD 1995 FSC 20, Muhammad Ashraf Khan Tareen v. The State 1996 SCM R 1747, Muhammad Ashfaq alias Chief v. The State 1998 PCr.LJ 1486, Aftab Shahban Mirani v. President of Pakistan and others 1998 SCM R 1863, Muhammad Iqbal Toor v. Mian Muhammad Ashraf 1986 PCr.LJ 503 and Mst. Ghulam Zohra v. The State and others 1969 PCr.LJ 67, cited by the learned counsel for the applicant/accused in support of his arguments advanced before us, are quite distinguishable from the facts and circumstances of the present case and they are of no help to the applicant/accused.
17. For the reasons stated hereinabove, we are of the considered view that application under section 561-A, Cr.P.C. For quashment of proceedings pending against the applicant/accused is not maintainable under law.
18. Consequently, the application stands dismissed alongwith the listed application.
19. Before parting with this matter we would like to mention that in the grounds of memo. Of application it is urged that the applicant/accused and several others are followers of Riaz Ahmed Gohar Shahi, likewise Soophies (mystics) i.e. Shah Abdul Latif Bhitai, Sachal Sarmast, Lal Shahbaz Qalandar, Bullay Shah and Baba Farid spread Islam through Soophism (mysticism) and by their teaching many non-Muslims were converted by them, but their teaching were never declared contrary to the Injunctions of Islam by the eminent Scholars. Since this point was not argued by the learned Counsel for the applicant/accused, and we have dismissed the present application on the point of maintainability, we, therefore, consider it unnecessary to discuss about the mysticism and teachings of the abovesaid saints.