' CH. EJAZ YOUSUF, J.--- This appeal is directed against the judgment, dated 31-10-1998, passed by the learned Additional Sessions Judge, Rawalpindi, whereby respondents Zafar Iqbal and Arshed Mehmood were acquitted of the charges under section 302/34, P.P.C. Read with section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
2. Briefly stated, the prosecution case as gathered from the record is that on 9-7-1997 at 8-00 a.m.
Report was lodged by one Mst. Azeeba Kauser with Police Station Mandra, District Rawalpindi, wherein it was alleged that the complainant being married was residing in Dhoke Bhatt. Her mother namely Mst. Ghulam Sakina was scheduled to visit her on 8-7-1997, but she did not reach the destination. On 9-7-1997, however, at about $-00 am. Her uncle namely Muhammad Haleem came to her house and told her that her mother had left village Mangot for Dhoke Bhatt on 8-7-1997. It was further alleged in the complaint that on receiving above information she started searching for her mother and when she reached the place known as "Bhatt Wali Kassi", she found the dead body of her mother with her throat cut. It was alleged that some unknown persons had murdered her. On the stated allegations formal F.I.R. Bearing No,139 was registered at the said police station under section 302, P.P.C. And investigation was carried out in pursuance thereof. On the completion of investigation the accused/ respondents were challaned to the Court for trial.
3. Charge under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 302/34, P.P.C. Was framed against the respondents to which they pleaded not guilty and claimed trial.
4. At the trial, the prosecution in order to prove the charge and substantiate the allegations levelled against the accused/respondents produced 19 witnesses, in all whereafter the respondents were examined under section 342, Cr.P.C. They, however, neither produced evidence in their defence nor opted to appear as their own witnesses in terms of section 340(2), Cr . P.C.
5. It would be pertinent to mention here that initially the case was tried by the Judge, Special Court Anti-Terrorism, Rawalpindi and statements of P.Ws.1 to 10 were recorded by him but thereafter, it was transferred to the Court of Additional Sessions Judge, Rawalpindi. It has been mentioned in the impugned judgment that transfer of the case took place as a result of amendment made in the Schedule of the Anti-Terrorism Act, 1997 as thereafter, the "Special Court" seized to have jurisdiction.
It appears, that after transfer of the case the learned Additional Sessions Judge without examining the question "as to whether the respondents subsequent to transfer of the case, were required to be charged again or the P.W. Already examined were liable to be recalled or re-examined, proceeded with trial of the case and decided the same after recording statements of the rest of the P.Ws.
6. We have heard Ch. Ameer Muhammad Khan, Advocate, learned counsel for the appellants, Ch. Zamarrud Hussain, Advocate, learned counsel for the respondents, Mr. Muhammad Sharif Janjua, Advocate, learned counsel for the State and have also gone through the record of the case with their assistance.
7. It has been mainly contended by the learned counsel for the appellant that the trial in the instant case was not conducted by the trial Court, in accordance with law, inasmuch as after transfer of the case from the Special Court Anti-Terrorism, to the Court of Additional Sessions Judge, the transferee Court, under the law, was required to proceed afresh with the trial of the case because the proceedings carried out by the Special Court were patently without jurisdiction. In order to supplement his contention learned counsel for the appellant has submitted that since on 8-7-1997, when the offence was committed the Anti-Terrorism Act was not in existence and was promulgated subsequently, therefore, Special Court was not competent to try the offence. He pleaded that in the situation, under the law, trial of the offence, punishable under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 could have only been conducted by a Court constituted under the Hudood Ordinance, therefore, the proceedings carried out by the Special Court were not valid and, thus, could not have formed part of the record of the instant case.
8. Messrs Ch. Zamarrud Hussain, Advocate, learned counsel for the respondents and Muhammad Sharif Janjua, Advocate learned counsel for the State, on the other hand, though both initially attempted to argue that since case was transferred from the Special Court Anti-Terrorism to the Court of Additional Sessions Judge, Rawalpindi as a result of amendment in the Schedule of the Anti-Terrorism Act, 1997, therefore, the transferee Court without caring for validity or otherwise of the proceedings carried out earlier by the Special Court, should have proceeded with trial of the case from the stage of its transfer. However, when confronted with the proposition that Anti- Terrorism Act, 1997, (hereinafter referred to as "the Act") was promulgated on 20-8-1997 whereas the offence was committed prior thereto on or about 8 or 9-7-1997, candidly conceded and submitted that in view of above said factual position the Special Court notwithstanding change in the Schedule of the Anti-Terrorism Act, has had no jurisdiction to try the case and thus, trial of the case was void ab initio.
9. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the relevant record carefully with their assistance. Admittedly, the occurrence took place in the night between 8-7-1997 and 9-7-1997, whereas, Anti-Terrorism Act, 1997, was promulgated on 20-8-1997 and it was published in the Gazette of Pakistan Extraordinary, Part I on 20th August, 1997. To the Province of Punjab, it was applied vide Gazette Notification, dated 21-8-1997. Though record does not indicate that what was the nature and kind of the Amendment on account whereof the case was transferred from the "Special Court" to the Court of Session, but it appears that perhaps it was due to the amendment made in section 6 of the said Act whereby existing definition of "Terrorism Act" was substituted by four different clauses i.e, (a), (b), (c) and (d) and the Acts of gang rape, child molestation or robbery coupled with rape as, specified in the Schedule of the said Act were also brought in the ambit of "the Act" vide Ordinance No,XIII of 1999, dated 27th August, 1999. Needless to point out that an offence punishable under section 19(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as "the Ordinance") was already a Schedule offence in the originally promulgated Anti- Terrorism Act. Be that as it may, since Anti-Terrorism Act, having been promulgated subsequently was not holding the field at the time of the commission of the offence, therefore, in our view, the special Court had no jurisdiction to try the offence. It is well-settled by now, that an offender is liable only under the existing law and a statute cannot be applied or given effect retrospectively. So much so, a procedural law even, cannot be given retrospective effect unless it is specifically provided in the enactment itself. In this view, we are fortified by the observations made in the following reported judgments:--
(1) Maulvi Muhammad Jameel and others v. The State PLD 1965 SC 681 and (2) Hafiz Abdul Karim v.
The State PLD 1959 (W.P.) Lahore 883.
' And nothing of the sort appears in the Anti-Terrorism Act, 1997. Reference in this regard may usefully be made to subsection (3) of section 1 of "the Act" which provides that the "Act" shall come into force at once. In the wake of above it, thus, proceeds that, the respondent could have been charged and tried only, under the law existing and applicable on the day of occurrence and undoubtedly, it was the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and thereunder "the offence" could have been tried only, by a Court of Session. Section 5 of the Code of Criminal Procedure provides that all offences under the P.P.C. Or any other law for which, no separate procedure for trial is provided under that enactment, shall be tried in accordance with the provisions of the Code. Section 5, Cr.P.C. Reads as follows:--
5. Trial of offences under Penal Code.--- (1) All offences, under the Pakistan Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to provisions hereinafter contained.
(2) Trial of offences against other laws.--- All offences, under any other law shall be investigated, be inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."
' Whereas, section 29 of the Criminal Procedure Code postulates that offences under other laws, when any Court is mentioned in this behalf in such law, be tried by such Court. It would be advantageous to reproduce hereinbelow section 29 as well, which reads as follows:-- "Section 29. Offences under other laws.---(1) Subject to other provisions of this Code, any offence under any other law shall when any Court is mentioned in this behalf in such law be tried by such Court.
(2) When no Court is so mentioned, it may be tried by the High Court or subject as aforesaid by any Court constituted under this Code by which such offences shown in the eighth column of the Second Schedule to be triable.
' Provided that the offences punishable with imprisonment for a term not exceeding three years, with or without any other punishment, shall be tried by the Executive Magistrates."
10. Having regard to the explicit provisions of sections 5 and 29, Cr.P.C. As well as the provisions contained in Chapter 22-A of the Code of Criminal Procedure, which provide for trial of offences before High Courts and Court of Sessions, it may be pointed out here that under the law, not only trial of a case has to be conducted by the Court competent to try the offence but proceedings must be carried out in the "prescribed manner" which shall follow a judgment of acquittal or conviction as provided by section 265-H of the Criminal Procedure Code.
11. In view of the above discussion we are inclined to hold that since the Anti-Terrorism Act, 1997 was not in existence on the day when the offence was committed, therefore, the Court constituted thereunder too, has had no jurisdiction to try the offence. That being so, the proceedings carried out by the learned Special Judge, Anti-Terrorism Act were patently without jurisdiction. This view receives support from the case of Abdul Rashid and 5 others v. The State and others reported as PLJ 1990 Lah. 532 (sic).
12. In the circumstances, there is no escape from remand of the case. Consequently, the impugned judgment, dated 31-10-1998 passed by the learned Additional Sessions Judge, Rawalpindi is set aside and the case, with consent of the parties, is remanded to the trial Court for its decision afresh, in accordance with law.