' TARIQ PERVEZ KHAN, J.---Judgment of conviction authored by Mr. Akhtar Zarif Khan learned Presiding Officer of Anti-Terrorism Court (hereinafter referred to as ATC) stands assailed through six separate appeals bearing Nos.211, 212, 213, 214, 215 and 216 of 2002 filed by Mir Zaman, Nadeem, Samin, Ihsanullah, Jan Muhammad and Jamshed respectively as they are all co-appellants being co-accused in case No,624 dated 21-1-2000 of Police Station Noshera Kalan for offences under section 17(4) Haraba read with section 13, Arms Ordinance/section 4, Suppression of Terrorist Activities (Special Courts) Act, 1975, section 411 of Pakistan Penal Code.
2. These appeals have not been heard on merits but on point of jurisdiction. Some legal objections were raised right in the beginning of hearing of appeals by counsel appearing for the appellants and were to be answered by the State to be represented by learned Advocate-General, the details whereof shall follow, have been challenged on the following legal premises:--
(a) Occurrence in this case took place on 21-1-2000, judgment of conviction is recorded on 24-6- 2002 by ATC, Act XXVII of 1997 Anti-Terrorism Courts (hereinafter referred to as Act) was promulgated on 20-8-1997 but because no declaration of intent under section 3 of the Act by the Federal Government was made, the Act remained inapplicable in Province of N.W.F. And it became activated by virtue of amendment brought in the Act through Ordinance XXXIX of 2001 (hereinafter referred to as Ordinance) dated 14-8-2001. Therefore, trial held by ATC for an offence committed before the activation of Act would not be legal.
(b) That under the unamended Act ATC was to try scheduled offences and in Schedule appended with the Act offence of Haraba was not included. Even after Schedule was amended and reframed through Ordinance offence of Haraba is not included therein, therefore, trial held and conviction recorded by ATC Court will be without jurisdiction.
(c) Challan was filed in the Court of Special Judge constituted under Suppression of Terrorist Activities Act, 1975 on 10-5-2001 and before any proceeding could be further held, on 9-10-2001 under the order of Hon'ble the Chief Justice of this Court Judge Special Court was directed to hold the trial in Jail for security reasons. Charge was framed by Judge Special Court on 7-11-2001 on which date ATC stands established and constituted in the Province, therefore, charge could not have been framed by Judge Special Court as the Act of 1975 was repealed through Ordinance.
(d) That until 6-3-2002, 11 prosecution witnesses were examined but on 10-4-2002 learned Judge Special Court on his own, directly transferred the case to the ATC and under the Act or the Ordinance Judge Special Court could not have sent/transferred the case to ATC.
(e) That notwithstanding competency of Judge Special Court to transfer the case to ATC and notwithstanding whether the offence of Haraba was scheduled or not, ATC Court on transfer of the case should have reframed the charge and should have started the trial de novo. Evidence partially recorded by Judge Special Court could not have been received by ATC.
(f) ATC established under the Act can try only scheduled offences and according to the Schedule up to date it can try any offence under the Act whereby act of terrorism has been defined and made punishable under section 7 of the Act. Therefore, ATC could only record conviction under section 7 of the Act and not any other section of any other law.
3. The formulation of point as given above, does contain all such facts which are relevant to determine the question of legal importance raised in these appeals but for further convenience we re-capitulate some facts as under:-- ' On 21-9-2000 a Suzuki Van of Brinks Company involved in the carriage of cash amount from one Bank to another after has taken an amount of rupees twenty-five lacs (Rs,25,00,000) from United Bank Limited, Nowshera was proceeding to United Bank. Limited, Madani Charsadda but enroute five persons all armed with Kalashnikovs and repeater, shot-guns started firing at the Suzuki Van resulting in injuries to Samar Gul and Zulfiqar occupants of the Suzuki and the accused took away the cash amount as well as revolver. With their firing driver of the vehicle namely Tanosh was also hit. However, out of the three injured Tanosh and Zulfiqar later died.
' Challan was filed in the Court of Judge Special Court on 10-5-2001 but on 7-11-2001 charge was framed against six accused (appellants) on four counts. They were charged under section 17(3), under section 17(4) of the offence of Haraba, under sections 397/149 and under section 412, P.P.C. To which they pleaded not guilty.
' Thereafter prosecution was called upon io lead its evidence and until 6-3-2002 statement of 11 witnesses were recorded. It was on 10-4-2002 when the learned Judge Special Court formed opinion that in view of the facts and circumstance of the case as two persons.Were killed, one was wounded and because such occurrence has created panic/sense of fear' in general public, the case would, therefore, fall within the cognizance of ATC. He, therefore, sent the case to learned Judge ATC who from 19-4-2002 by examining P.W.12 commenced the proceedings from the stage it was left by Judge Special Court.
' As objection to the jurisdiction of the ATC was raised, arguments were addressed before the said Court but vide order-sheet dated 2-5-2002 and with reference to section 17 of the Act objection was overruled and finally on 24-6-2002 judgment of conviction delivered.
4. Learned counsel for the appellants while elaborating his submissions argued that under section 3 of the Act before resorting to the powers conferred under the Act the Federal Government, in view of commission of act of terrorism was to notify in the official Gazette, declaring that is so expedient for prevention and punishment of such offences' which are scheduled.
' It is argued that through Ordinance this section of Act has been omitted. Learned counsel referred to PLD 1998 Central Statutes page 3 where such declaration of intent was made by the Federal Government but in respect of Provinces of Punjab and Sindh. It is submitted that as the Act became operOve in Province of N.-W.F. After 14th of August,. 2001, therefore, any offence even if scheduled, notwithstanding the fact that offence of Haraba was not and is not covered under the Schedule to the Act, it only an ordinary Court which shall try the offence and not the Court constituted under the Act.
5. Contention is raised that under section 12 of the Act, scheduled offences shall be triable by ATC, meaning thereby, that only scheduled offences fail within the jurisdiction of Anti-Terrorism Court, therefore, trial under the charge i,e, section 17(3)(4) Haraba read with sections 397/412, P.P.C. Would be within jurisdiction of Courts other than ATC.
6. Next and the most stressed submission of the counsel for the appellants is that there is no provision in the Act including the amending Ordinance whereby a Court of ordinary jurisdiction can transfer a case to the ATC of which the Ordinary Court had already taken cognizance. In this regard reference is made to various provisions of Act where under section 28(1) only the Chief Justice of the High Court is empowered to transfer a case. Such power is again vested with Administrative Judge of the High Court under section 13(4) and that under section 23 of the Act, ATC can send a case to the ordinary Court if of the opinion that the offence does not fall under the Act, under section 12(2) it is the power of the Government where having regard to the security of the witnesses and fair trial a case can be transferred.
7. It is also argued that if it is held that the offence was triable by ATC and if even earlier any other Court has taken cognizance like Judge Special Court and even if transfer of case from Judge Special Court to the ATC was validly made, the ATC should have started with the trial de novo instead of continuing with the trial from the stage it was left by the earlier Court.
8. Lastly the contention raised is that ATC can only try scheduled offences and the perusal of Schedule would show that offences triable by ATC are given in 3rd Schedule which are as under:-- "(1) Any act of terrorism within the meaning of this Act including those offences which may be added or amended in accordance with the provisions of section 34 of this Act.
(2) Any other offence punishable under this Act.
(3) Any attempt to commit, or any aid or abetment of, or any conspiracy to commit, any of the aforesaid offences."
9. Replying to the contentions raised by counsel for the appellants, learned Advocate General submitted that he would concede to the extent that until 14th of August, 2001 Act of 1997 was not enforced in the Province and it was only thereafter that the Act was activated and powers under the Act were needed to be exercised for which ATC were established.
' It is the case of the State that under section 38 of the Act where a person has committed an offence even before the commencement of this Act, which offence if committed after the date on which the Act came into force and which constitute terrorist act, such offence can still be tried under the Act but the only exception would be that the accused shall be liable to punishment prescribed by law at the time when offence was committed.
10. It is argued on behalf of the State that numerous sections of the Act deal with the transfer of the case. Reliance is placed on section 12(2) and (3) where Government having regard to facts and circumstances of the case and in order to ensure fair trial can transfer a case from one area to ATC of another area.
' Under section 23 where ATC has taken cognizance but then is of the opinion that a particular offence is not a scheduled offence can transfer the case for trial to any other Court having jurisdiction under the Code i,e, Cr.P.C.
' Section 28 empowers the Chief Justice of the High Court concerned to order the transfer of a case from one ATC to another ATC.
' Learned counsel has also referred to section 39-B(2)(b) read with sub-clause (e) of the section and argued that these provisions deal with transfer of cases which were pending before the commencement of Act, and other than such powers, mentioned above, there is no provision of transfer. It is argued that where a case is taken up by ATC and because under section 12 of the Act there is power of ATC to take cognizance of scheduled offences, irrespective of the manner in which the case is received, it shall be within the competence and jurisdiction of ATC to hold the trial. Reference is made to section 19(3) of the Act empowering the ATC to take direct cognizance.
11. Learned Advocate-General also argued that wherever power of transfer is vested in any authority under the Act it also mentions that on transfer ATC receiving it shall proceed with the case from the stage it was left/sent by the earlier Court. Submission is made that evidence already recorded by Judge Special Court has been rightly acted upon and proceedings thereafter rightly continued by ATC.
' Learned Advocate-General in particular has made reference to section 12(3) and argued that cases pending in any Court before the establishment of ATC, by operation of law, shall stand transferred to ATC.
' His conclusion is that keeping in view the nature of offence and to curb the menace of terrorism, interpretation of the Act should be so construed that the Act would become workable and not to make any provision of it redundant.
12. Act XXVII of 1997 was promulgated for the prevention of terrorism, sectarian violence and for speedy trials of heinous offences and for matters connected therewith and incidental thereto.
' Under section 6 of the Act certain acts and offences were made terrorist act, which were punishable under section 7. However, through Ordinance promulgated on 14-8-2001, the Act was substantially amended and so was section 4.
6. According to section 6, for the first time "terrorism" was defined. It was made relatable to "actions". It defines that terrorism would mean "the use or threat of action designed to coerce and intimidate the Government or the public or a section of the public or sect or create a sense of fear or insecurity in society...".
' Acts of terrorism as defined in section 6 have been made punishable under section 7 of the Act.
' Jurisdiction of ATC has been determined under section 12 of the Act and it states that:-- "Notwithstanding anything contained in the Code or in any other law, a scheduled offence committed in an area in a Province shall be triable only by Anti-Terrorism Court exercising territorial jurisdiction in relation to such area."
' It is within the power of the Government that having regard to the facts and circumstances of the case if satisfied that in order to ensure a fair trial or for protection and safety of witnesses, any scheduled offence shall be tried by an Anti-Terrorism Court not within the territorial jurisdiction of which the offence is committed but in any other area, Government shall make a declaration to that effect.
' Under subsection (3) of section 12 wherever such declaration is made the prosecution in respect of such offence is to be instituted before that ATC with regard to which declaration is made or if one ATC having territorial jurisdiction had already commenced the trial, on making declaration by the Government the case shall stand transferred to such other ATC and on the transfer the Court shall proceed from the stage it was pending before first Court.
Similar powers are vested in Administrative Judge of a High Court so nominated while exercising powers under section 13(4) of the Act.
' Under section 17 of the Act, ATC while trying scheduled offence may also try any other offence other than the scheduled offence with which the accused may under the Code be charged at the same trial.
' Section 28 of the Act empowers the Chief Justice of the High Court to transfer a case from one ATC to another and on transfer the transferee Court shall not be bound to recall and rehear any witness who has given evidence and may act on evidence already recorded.
' Under section 19 of the Act powers of the ATC are specified and under its subsection it can take direct cognizance of an offence under the Act.
' Section 23 of the Act empowers ATC to transfer a case to regular Court where after taking cognizance ATC is of the opinion that the offence is not a scheduled offence.
13. The purpose of undertaking the above exercise is to show that it is the power of the Government, power of the Chief Justice of the High Court concerned, it is the power of the ATC to transfer the case. Former two from one ATC to another whereas the latter from itself to an ordinary Court constituted under any other law, but there is no express provision whereunder an ordinary Court seized of the matter may send/transfer the case to ATC.
14. As mentioned earlier in the opening part of our judgment that the instant case was registered under section 17(4) of Harraba read with section 13 of Arms Ordinance and section 411, P.P.C.
Whereas Judge Special Court framed charge against the appellants under sections 17(3), 17(4), 397/412/149, P.P.C. But none of these sections was scheduled to the Act as it was originally enacted, except section 397, P.P.C. However, by amending Ordinance of 14-8-2001 even section 397, P.P.C.
Has been omitted.
' Under the Schedule, as it exists today, ATC can try offences committed under the Act.
15. Section 6 of the Act has defined act of terrorism and all such acts or offences under the Act punishable under its section 7. As such Act is a self-contained law.
16. Questions that would require determination would be:--
(a) Whether Sessions Judge/Special Judge, Nowshera could have sent the case to ATC?
(b) If so, should the ATC to start de novo with the trial or to start with the proceedings from the stage it was received by him?
(c) Whether the ATC could convict the appellants without framing any charge of an offence under the Act?
17. Because under section 19 of the Act an ATC can directly take cognizance of the case we, therefore, hold that once the file was sent to it and the ATC was of the opinion that action committed by the accused falls ,within the purview of section 6 of the Act and the moment such opinion was formulated the offence would become one falling within the jurisdiction of ATC on the basis of section 12 of the Act. Cognizance, therefore, taken on receipt of the file by ATC would not be illegal.
18. Eleven prosecution witnesses were examined by Judge Special Court at Nowshera and on the basis of offences for which the charge was framed it was a Court of competent jurisdiction as because until 14-8-2001 no ATC was established / functioning in the Province of N.-W.F.P. Therefore, cognizance was rightly taken and so was charge framed and the evidence recorded. Evidence recorded by a Court of competent jurisdiction on the basis of charge framed by it would be legal evidence.
' It is, therefore, held that statements of 11 prosecution witnesses recorded by Judge Special Court at Nowshera was legal evidence and the Anti-Terrorism Court having taken cognizance but at later stage would be justified to proceed from the stage it took cognizance and could act on evidence already recorded.
19. The most crucial and important question involved in this case would be that if there is no denial that keeping in view the facts and circumstances of the case and if such facts are proved, the action of the appellants would fall within the definition of section 6 of the Act, and would be act of terrorism triable by Anti-Terrorism Court under the Act. If this be so, the second question would be that offences for which the appellants were charged under Suppression of Terrorist Activities (Special Courts) Act, are not scheduled offences but by virtue of definition as contained in section 6 such acts have become act of terrorism. Therefore, it was incumbent upon the learned Anti- Terrorism Court to have reframed the charge under section 6 read with section 7 of the Act. As we have held that Act is a self-contained law, it defines offences and also prescribes their punishment and under section 12 of the Act offences under the Act according to its III-Schedule are exclusively triable by Anti-Terrorism Court which was to take cognizance and try the offence but on the basis of charge under sections 6 and 7 of the Act.
20. Under section 32(2) of the Act the provisions of section 350, Cr.P.C. Have been made applicable before ATC.
' As through independent sections of the Act i,e, sections 12(3), 13(4) and 28 of the Act protection is given to evidence already recorded by a Court of equal jurisdiction and the ATC would start with the trial from the stage it is sent, therefore, insertion of section 350, Cr.P.C. In section 32 of the Act would be an additional power for proceeding on the basis of evidence already recorded by another Court.
21. Section 350(1) of Cr.P.C. Is followed by a proviso where it provides that if conviction is recorded by a Sessions Judge then the High Court is of the opinion that accused has been materially prejudiced may order a new inquiry or trial.
22. While concluding, we hold that initially the Court of STA has takencognizance and was within its competence. Having realized that the action committed in the offences constitutes act of terrorism it was rightly sent to ATC and ATC has rightly proceeded with the case on the basis of evidence already recorded but it was incumbent upon the ATC to have reframed the charge under section 6 read with section 7 of the. Act so to make offence triable by itself.
23. While accepting all these appeals, the conviction and sentence recorded on the charge framed by Court of Suppression of Terrorist Activities and conviction and sentence recorded for such offences which are not specifically given in Schedule to the Act are set aside and the case is remanded back to the learned ATC, Peshawar Division, Peshawar to reframe the charge as observed above and shall give opportunity after framing of charge to the accused if they may want to recall or re-examine any witness already examined and whether or not any witness is recalled and re-examined on the request of the accused, the learned trial Judge G shall re- examine accused under section 342, Cr.P.C. To such extent, including providing them the opportunity to produce defence if they so desire.
' After the above exercise is done, the learned trial Judge shall rehear the arguments and without being prejudiced by judgment of conviction already recorded by him and keeping in view the ingredients of section 6 of the Act shall form his independent opinion and decide the case on its own merits. The accused, if in custody, shall be produced before the said Court on 20-1-2003.
Murder Reference is returned as unanswered.