These appeals are directed against the judgment dated 3-4-2002 passed by the learned Special Judge, Anti-Terrorism Court, Mekran at Turbat by which he convicted the appellants under section 7(b) of the Anti-Terrorism Act, 1997 (hereinafter called as Act) and sentenced R.I. Each of them for a period of 5 years and fine of Rs,5,000 each and in default of payment of fine to further suffer S.I. For a period of 6 months each. The appellants have also been convicted under section 392, P.P.C. And sentenced to suffer R.I. For 5 years each and fine of Rs,5,000 each and in default of payment of fine to further suffer S.I. For a period of 6 months each. The benefit of section 382-B, Cr.P.C. Was, however, extended in favour of the appellants. Appellants Ahmed Shah and Majid alias Iltaf preferred criminal appeals through Jail Authorities. Since in all of the above mentioned appeals, common questions of law and facts are involved and arising out of one and the same judgment, therefore, they are taken together and will be disposed of by one and the same judgment.
2. The occurrence is stated to have taken place on 28-1-2002 at 6-00 .p.m. Near orchard of Taj Muhammad. The report of the occurrence was made by complainant Hafiz son of Ahmed vide Exh.P/1-A alleging therein that he was going on his motorcycle (Mignit) green colour towards his house, when he reached orchard of Taj Muhammad, he stopped his motorcycle and went for urine.
It is stated that when the complainant sat on his motorcycle, three persons, two on a motorcycle super green in colour and another Honda motorcycle 125 black colour came towards the complainant. It is stated that one of them slapped the complainant and asked him to leave the motorcycle. It is alleged that two of them took out their pistols and pointed towards complainant. It is stated that the complainant left the motorcycle. It is further stated that the above persons directed the complainant to run away. It was alleged that while running one of them made a fire upon the complainant which did not hit him. It is stated that the appellants were arrested by the levies personnel on 19-1-2002. It is stated that the stolen motorcycle alongwith motorcycle of the appellants were found on Hambian Road by P.W.5 Muhammad Khan stated to have been thrown there by the accused persons.
3. After usual investigation, the appellants were sent up to face their trial under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, before the learned Sessions Judge, Turbat. The case was, however, sent by the learned Sessions Judge to learned Judge, Anti- Terrorism Court, Makran Division at Turbat.
4. On 28-3-2002, charge under sections 6/7 of the Anti-Terrorism Act, 1997 read with section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, was framed by the learned Special Judge against the appellants, to which they pleaded not guilty.
5. In support of its case, the prosecution examined, P. W.1 Hafiz, P.W.2 Sardar Rafique, P.W.3 Abdul Qadir Baloch, Judicial Magistrate, P.W.4 Abdul Salam, P.W.5 Muhammad Khan, P.W.6 Muhammad Rahim and P.W.7 Sher Muhammad, Investigating Officer.
6. In their statements recorded under section 342, Cr.P.C. The appellants disputed the case of the prosecution and pleaded their innocence. When asked as to why the prosecution witnesses had deposed against them, to which they replied to the trial Court that since levies personnel caused injury to Ahmed Shah, therefore, they made false statements on oath nor led any evidence in their defence.
7. The learned Judge, A.T.C., Makran Division at Turbat, formulated the following points for determination:
(1) Whether on 28-1-2002 at about 6-00 p.m. Near Taj Muhammad orchard all the three accused came on two motorcycles bearing green colour and a Honda 125 bearing black colour and in furtherance of common intention, while making show of force snatched motorcycle of complainant?
(2) Whether the act of accused endangered the life and created a sense of fear and insecurity?
(3) If aforenoted point is determined in affirmative, then what offence has been made out and what should be the quantum of sentence?
8. The learned Court after assessm ent of the evidence believed the prosecution story by resolving both the points Nos.1 and 2 in the affirmative. The learned trial Court after assessment of the evidence however, came to the conclusion that the evidence as per provisions of section 7 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 is lacking but the prosecution has, however, established its case under Tazir. According to learned trial Court, the appellants in furtherance of their common intention, snatched motorcycle belonging to complainant Hafiz on gun point and they also made a fire upon complainant which not only stroke a sense of fear and insecurity but also endangered the life of complainant. The learned Judge accordingly convicted the appellants in the manner hereinabove mentioned. Hence these appeals.
9. I have heard Mr. H. Shakil Ahmed, Advocate learned counsel for the appellants and Raja Amir, Advocate learned counsel for State.
10. Learned counsel for appellants, submitted that the offence under section 17(3) of the .Offences Against Property (Enforcement of Hudood) Ordinance, 1979 which was alleged against the appellants did not fall within the purview of Schedule to Anti-Terrorism Act and the Special Judge was not competent to try the case being a non-scheduled offence, therefore, the conviction and sentence recorded by the trial Court are not warranted by law. He further submitted that even otherwise, there is no such evidence which can warrant conviction of the appellants under the provisions of said Act. He, therefore, suggested for remand of the case to learned Sessions Judge, Turbat where, the challan was submitted and the appellants were sent to face their trial as the case was triable by the learned Sessions Judge, Turbat.
11. On the other hand, the acceptance of the appeal has been resisted by the learned counsel representing the State and has also stated that the learned Special Judge had the jurisdiction.
12. After having given my anxious consideration to the arguments advanced by the learned counsel for the parties and perusing the relevant record with their assistance, I am of the view that the alleged offence does not have any nexus with section 6 of the Schedule of the A.T.A..
1997. In the absence whereof the jurisdiction of the Special Court Anti-Terrorism is not attracted.
The learned counsel representing the State failed to demonstrate as to how the alleged offence could be said to have created sense of fear and insecurity in the general public. There is no such evidence/material that the act on the part of appellants created sense of fear and insecurity amongst people. Question of jurisdiction being a question of law could always be raised by any party at any stage including the appeal. Court itself is required before proceeding with the case to examine, whether it has jurisdiction in law to proceed or not? Merely because a party to the proceedings has not taken any objection to the jurisdiction out of ignorance or for want of proper advice, shall neither debar a party from taking such objection at the appellate stage nor the silence of a party or even waiver shall confer jurisdiction of a Court not vested in it in law. Question of jurisdiction goes to the very root of the case and renders the entire proceedings coram non judice thereby vitiating the entire proceedings and making the judgment illegal and void. A matter, ordinarily, has to be dealt with in 'general jurisdiction and unless a case falls squarely within special jurisdiction. The case in hand relates to snatching of motorbike which offence prima facie would, be punishable under the provisions of Offences Against Property (Enforcement of Hudood)
Ordinance, 1979. Mere asking complainant to leave motorcycle and run away hardly created sense of fear and insecurity in the public. A vague allegation about show of fire-arms was levelled by the complainant in the report. The prosecution only attributes a single fire to one of the appellants, while the complainant was running away and there is nothing on record that the complainant had offered any resistance which compelled the appellants to open fire. There is no recovery of the empty from the place where motorcycle is stated to have been snatched, which hardly makes a terrorist act. The manner the occurrence is stated to have taken place, the confessional statement of appellant Majid alias Iltaff, selling of liquor by the complainant at the place of occurrence, finding of stolen property by P.W.5 Muhammad Khan, Constable Excise and circumstances of the case hardly bring the act within the purview of provisions of the said Act and the offence committed by the appellant, obviously, had. No nexus with object of the A.T.A., 1997 and cognizance of the case could not have been taken by the Special Court. It may further be pointed out that when there is suppression of truth from both sides, the Court is authorized by law to draw its own inference and decide a case accordingly. Further comments in the case by this Court would prejudice either of the party during proceedings to be conducted by the lower Court. The Honourable Supreme Court in the authority reported in PLD 2001 SC 521 have made the following observations:-- "A person would commit a terrorist act if in order to, or. If the effect of his actions will be to strike terror or create a sense of fear and insecurity in the people, or any section of the people..." In the instant case as the facts of the case reveal, the alleged sprinkling of the spirit on the person of the victim was within the boundary walls of the appellant's house. It was not in public and, therefore, the element of striking terror or creating sense of fear and insecurity in the people, or any section of the people is not made discernible in the F.I.R. And for that matter on the record of the case as a whole. Similarly the perusal of the Schedule to the Act also indicates that the element of striking terror or creation of sense of fear and insecurity in the people or any section of the people by doing an act or thing by using bombs, dynamite or other explosive or inflammable substances etc. Is a sine qua non for the attraction of the provisions of section 6 of the Schedule to the Act (Underlining is provided by us for emphasis). In the instant case no doubt the offence committed was certainly most heinous in nature but it does not mean that it does qualify to be a terrorist act within the contemplation of section 6 or the Schedule to the Act. In this context, we can do no better than refer to the observation of-this Court in the case of Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 at page 1492: However, it may be observed that the offences mentioned in the Schedule should have nexus with the object of the Act and the offences covered by sections 6, 7 and 8 thereof. It may be stated that section 6 defines terrorist acts, section 7 provides punishment for such acts, and section 8 prohibits acts intended or likely to stir up sectarian hatred mentioned in clauses (a) to (d) thereof. If an offence included in the Schedule has no nexus with the above sections, in that event notification including such an offence to that extent will be ultra vires' ."
In PLD 2002 Karachi 311 it has been held that admittedly the cases of vehicle-snatching and criminal trespass (illegal Qabza) after the amendment of Ordinance XXXIX of 2001 are not covered by Anti-Terrorism Act, therefore, the same are no more triable by Anti-Terrorism Court. In PLD 2002 Karachi 152 the following observations have been made:-- "The contention of Mr. Aijaz Batalvi that the trial on two charges; one under section 402-B, P.P.C.; and the other under section 7(ii) of A.T. Act was not warranted in law also does not carry weight. In this regard the observations made in Niaz Ali v. State (PLD 1961 (W.P.) Lahore 269) by his lordship Sajjad Ahmed, J, as he then was, may be referred to which are reproduced below: Section 26 of the General Clauses Act provides a bar to double punishment for the same offence, although a person is liable to be prosecuted and punished for an act of omission constituting an offence and falling under two or more enactments. In other words there is no bar to a trial or a conviction for the same act which is an offence under different enactments, but there is a bar to a punishment being awarded twice for the same offence. In such a case it would be quite in order to record the convictions separately and award concurrent sentences if they are of imprisonment, but in no case can an accused person be made to suffer any extra punishment by way of duplication for the same offence. In the present case, the punishment is illegal inasmuch as it imposes a fine of Rs,50 under each of the two enactments making a total of Rs,100. The extra fine of Rs,50 for the offence under one or other of the counts is, therefore, not legal involving, as it does, a duplication of punishment for the same offence."
13. It is also pertinent to note that in .a case of vehicle-snatching in Criminal Appeal No,17 of 2002 of this Court, learned Law Officer was of the view that the learned Judge ATC had no jurisdiction; relevant para. Of the same is reproduced below for the sake of facility:-- "Learned Additional Advocate-General at the very outset submitted that the learned Judge, Anti- Terrorism Court, Khuzdar was not legally competent to try the case being a non-scheduled offence and the case was triable by the learned Sessions Judge, Khuzdar as the occurrence is stated to have taken place on 10-9-2001. He has stated that on 14th August, 2001. Amendments were brought into the Act vide Ordinance (XXXIX of 2001) where section 6 of the Act was substituted along with the Schedule. He has further submitted that in view of Anti-Terrorism (Amendment) Ordinance, 2001, the offence involved in this case is not triable under the Anti-Terrorism Act (XXVII of 1997) and the case was to be tried by a Court of Session."
14. For what has been stated above, it is proved that the judgment under appeal is not sustainable in the eyes of the law on the touchstone of the authorities referred hereinabove.
15. In view of the above position, the impugned judgment is set aside and the case is sent to learned Sessions Judge, Mekran at Turbat, wherefrom It was sent to learned ATC, for adjudication as a session's case strictly in accordance with law. The record since received be sent to the learned Sessions Judge, Turbat.