' This judgment will dispose of Criminal Appeal No,1157 of 1998 against judgment, dated 7-12-1998, passed by learned Special Judge, Special Court Anti-Terrorism, Faisalabad Division, Faisalabad whereby the appellants were convicted under section 302(b), P.P.C. Read with section 34, P.P.C. And sentenced to life imprisonment as Ta'zir and to pay a fine of Rs,50,000 each or in default thereof, to further undergo RI. For three years each. The fine if recovered was ordered to be paid to the legal heir. The appellants were also convicted under section 7 of the Anti-Terrorism Act, 1997 and sentenced to life imprisonment and to pay a fine of Rs,50,000 each or in default thereof to further undergo R.I. For three years and the Criminal Revision No,561 of 1998 filed by the complainant praying that judgment, dated 7-12-1998 be revised and punishment awarded to respondents/accused be enhanced to death sentence from life imprisonment. Both the sentences were ordered to run concurrently. Benefit of section 382(b), Cr.P.C. Was also given.
2. Briefly stated the prosecution case is that complainant Muhammad Akram lodged F.I.R. No,346 of 1997, dated 15-10-1997 under section 302/ 34, P.P.C. At Police Station Saddar Gojra, District Toba Tek Singh, that on 15-10-1997 at about 5-00 p.m. He alongwith his brother Muhammad Younis, his nephew Muhammad Usman son of Muhammad Younis and Muhammad Ashraf son of Haji Allah Ditta, caste Jatt resident of Chak No,369/J.B. Was coming back from his Dera to the village. His brother Muhammad Younis was ahead of them. When they reached the road opposite to the Dera of Ali Muhammad son of Muhammad Bukhish accused near sugarcane crop, all of a sudden Aurangzeb alias Zaibi, armed with .12 bore gun, Husnain accused armed with pistol, Shaukat alias Kala armed with .12 bore gun emerged there from the sugarcane crop. Husnain raised Lalkara that a lesson be taught to the 'complainant party for filing a civil suit against them. On that Shaukat alias Kala fired a straight shot with his gun at Muhammad Younis which hit him at his left thigh.
Aurangzeb fired a shot with his gun which hit Muhammad Younis at his right buttock who fell down.
Husnain made firing in the air. The accused exhorted that if any one would come forward, he would face the same consequence. After that the accused fled away while firing in the air. Due to fear the complainant party could not interfere. Muhammad Younis was being transported in injured condition to the hospital but he succumbed to the injuries on the way. '
3. The motive for the occurrence was that the complainant had landed property adjoining to the land of the accused Ali Ahmad etc. And a case was pending trial in the Civil Court against the accused party regarding the demarcation of the said land. Therefore, in order to take revenge of that suit all the aforesaid three accused murdered Muhammad Younis on the abetment and conspiracy of Ali Muhammad, Ali Ahmad, Waris Ali and Liaqat Ali accused.
4. After completing the investigation, the accused were challaned to the trial Court to face trial.
Shaukat alias Kala appellant was declared innocent by the police and was placed in column No,2 of the challan. The learned trial Judge, however, summoned him to face the trial.
5. The appellants had urged that the Special Trial Judge was in fact a corum non judice. No doubt the deceased in this case was public servant as a school teacher, but allegedly he was murdered due to civil litigation over a piece of land between the parties. The intent and purpose of the legislation enforcing this special law is to give protection to the civil as well as military authorities and public servants who are concerned with Law-Enforcing Authorities. This law point needs serious consideration by this Court.
6. On the other hand learned counsel for the complainant has submitted that as there was an act of terrorism, the Special Judge had got jurisdiction to hear and decide the case.
7. I have given the consideration to the valuable arguments on both sides.
8. Whenever a question of jurisdiction is raised, the Court before whom it is raised, must decide it first. The jurisdiction of a Special Court is given in section 12 of the Anti-Terrorism Act, 1997. It reads:- - "Section 12. Jurisdiction of (Anti-Terrorism Court).--- (1) Notwithstanding anything in the Code or in any other law, a scheduled offence committed in an area in a Province shall be triable only by (the Anti-Terrorism Court) exercising territorial jurisdiction in relation to such area.
(2) Notwithstanding anything contained in subsection (1), if, in respect of a case involving a scheduled offence committed in any area, the Government having regard to the facts and circumstances of the case, is satisfied that in order to ensure a fair trial, or for the protection and safety of witnesses, that such offence should be tried by (an Anti-Terrorism Court) established in relation to any other area, the Government may make a declaration to that effect.
Explanation.--- Where (an Anti-Terrorism Court) is established in relation to two or more areas, such Special Court shall be deemed for the purpose of this subsection, to have been established in relation to each of such area.
(3) Where a declaration is made in respect of an offence committed in an area in Province, any prosecution in respect of such offence shall be instituted only in an Anti-Terrorism Court established in relation to such area, and, if any prosecution in respect of such offence is pending immediately before such declaration in any other Court, the same shall stand transferred to such (Anti-Terrorism Court) and such (Anti-Terrorism Court) shall proceed with such case from the stage at which it was pending at that time without the necessity of recalling any witnesses."
' In the case of Mehram Ali v. The State PLD 1998 SC 1445 it was observed:- '"It was urged by Mr. Gilani, learned counsel for some of the petitioners, that a perusal of the amended Schedule indicates that if the victim of a murder case under section 302, P.P.C. Is a member of police, armed forces or civil armed forces or a public servant, the accused of such a case is triable under A.T.A. Even if the murder had taken place on account of personal enmity and had nothing to do with the discharge of his official functions/duties. Whereas, Ch Muhammad Farooq, learned Attorney-General, has submitted that in order to terrorist the public servants so that they may not discharge their functions/duties efficiently and effectively, the terrorist started killing public servants, for example, the Commissioner of Sargodha, a Secretary of the Provincial Government in Lahore, Superintendent of Police, Gujranwala, and the Managing Director, K.E.S.C.
Karachi, were brutally murdered. According to him, the above acts of terrorism were intended and designed to create panic amongst the public servants. It will suffice to observe that if a Government servant or any other employee of the Government functionaries is murdered because he belongs to the above service and that there was no enmity or plausible reason for commission of the above offence, such a killing is an act of terrorism within the ambit of the Act and can lawfully be included in the Schedule, but if the murder is committed solely on account of personal enmity, such a murder will have no nexus with the above provisions of the Act and will not be triable under the Act. However, this is a matter to be decided by the Special Court as under section 23 of the Act, Special Court has been empowered to transfer a case to a regular Court if after taking cognizance of an offence, it is of the opinion that the offence is not a scheduled offence.
'We are, therefore, of the view that the above section 34 is not ultra vires, but the offences mentioned in the Schedule should have nexus with the object of the Act and the offences mentioned in sections 6, 7 and 8 of the Act, as held by us in the short order."
10. In order to bring the case within the ambit of Anti-Terrorism Act the weapon of offence must be of the kind mentioned in the Schedule and also used and that the act had resulted in terrorism.
Where any such ingredients is lacking the ordinary Court will have jurisdiction and not the Special Judge. In the instant case the weapon of offence is not of the kind that is mentioned in the Schedule. There is alleged civil litigation going on between the parties regarding demarcation of land as such, the case does not come under the definition of terrorism. The Special Judge, Anti- Terrorism Court, had no jurisdiction to try this case, and the proceedings conducted by him were corum non judice, as such the criminal appeal merits to be allowed and the case is remanded to the Sessions Judge, Toba Tek Singh who shall proceed afresh giving full opportunity to both sides to place their respective case before him. The appellants shall be treated on bail during the pendency of trial subject to their furnishing bail bonds in the sum of Rs,2,00,000 each with one surety each in the like amount each to the satisfaction of trial Court.