This criminal appeal is directed against the order dated 21-9-2002 of the learned Judge, Anti- Terrorism Court, D.I. Khan whereby he convicted the appellants under section 7(d) of the Anti- Terrorism Act (Amendment) Ordinance, 2001, in case F.I.R. No,388 dated 2-9-2001, under sections 486/452/342/411/34, P.P.C. Read with section 7(c) of the Anti-Terrorism (Amendment) Ordinance, 2001 of P.S. Tank and sentenced each one of them to undergo twelve years R.I. And also to pay a fine of Rs,20,000 or in default of payment of fine, to undergo further six years S.-I. Each.
2. The brief facts, as alleged in the F.I.R. (Exh.PA), giving rise to this appeal, are that on the day of occurrence, complainant Mst. Abida Sherazi (P.W.2) alongwith her four minor children was present in her house. It was about 10.00 a.m. When three persons, out of whom, one had concealed his face with a blue coloured muffler and was wearing a black colour pent and the other two with white coloured chadars, duly armed with daggers, entered her house. After showing the daggers to the complainant, the accused asked her not to make any hue or cry. They then on daggers' points, took the complainant and her four children to a room and chained them from outside. They also chained the window of the room from outside, whereafter, they started taking valuable articles from the western room of the house and took the same to a car parked outside. After committing the offence, one of the appellants unchained the door and asked the complainant not to make any hue or cry for 15 minutes otherwise, she and her children would be done to death. When the accused decamped from the house, the complainant came out of her house to the street and raised an alarm, on which, sufficient people from the locality were attracted who chased the accused, out of whom, two were apprehended and brought to the spot alongwith the car and its driver. In the meantime, the police party arrived at the spot, to whom, the matter was reported. On checking of the house, it transpired that the accused had taken away: (i) One Television Luminar 20", (ii) One receiver, (iii) One V.C.R. Philips, (iv) One Deck, (v) two remote controllers, (vi) one suits- case with I&B, (vii) one pair of chappal and (viii) four video cassetes.
3. On the report of the complainant, Abdul Aziz Khan, the then S.H.O., P.S. Tank (P.W.8) drafted the murasila (Exh.PA/1) and sent the same to the P.S. For registration of the case. In the meantime, Haroor-urRashid, A.S.I. (P.W.4) also followed the police party to the spot. P.W. Abdul Aziz arrested the two accused namely; Muhammad Hanif and Hamidullah, the present appellants who were apprehended on the spot, whereafter, he started the investigation. The driver of the car, namely; Muhammad Aslam, the acquitted accused, was also arrested. As the complainant was slightly injured, as such, P.W. Abdul Aziz Khan, S.H.O. Prepared her injury sheet (Exh.PM/1) and sent her to the hospital for medical treatment. At the time of lodging of the report, the complainant also produced a dagger to P.W. Abdul Aziz Khan, S.H.O. Which he took into possession. P.W. Abdul Aziz Khan also took into possession the car alongwith its registration copy and driving licence of accused Muhammad Aslam. He also took into possession the stolen articles as already mentioned. He also took into possession one purse, Exh.PR. Produced by P.W. Abdullah, having been taken by him during the personal search of accused Muhammad Hanif which contained his national identity card and a sum of Rs,800, besides a pocket diary. He recorded the statements of the P.Ws., prepared the site-plan (Exh.PB) and later on, took into possession a black colour pent, P.16, shirt P.17 vide recovery memo. (Exh.PR/2), being worn by appellant Muhammad Hanif at the time of occurrence. During the investigation, the appellant disclosed to P.W. Abdul Aziz Khan, the name of the third accused as Salahuddin alias Raju but he was absconding. Accordingly, proceedings under sections 204/87, Cr.P.C. Were initiated against him. On completion of the investigation, P.W.
Abdul Aziz Khan submitted challan against the appellants and their co-accused Muhammad Aslam.
4. The appellants and their co-accused Muhammad Aslam were charged under sections 486/452/342/411/34, P.P.C. Read with section 7(c) of the Anti-Terrorism (Amendment) Ordinance, 2001, to which, they pleaded not guilty and claimed trial. In support of its case, the prosecution examined as many as nine witnesses, out of whom, complainant Mst. Abida Sherazi (P.W.2), Ghulam Abbas (P.W.6) and Shaukat Ali (P.W.7) furnished eye account of the occurrence while P.W.
Abdul Aziz Khan, as already stated, has mainly investigated the case whereas rest are formal witnesses.
5. On conclusion of the prosecution evidence, the appellants and their co-accused were examined under section 342, Cr.P.C. But they denied the charges against them. However, they neither produced any evidence in defence nor examined themselves under section 340(2), Cr.P.C. After going through the record and hearing the learned counsel for the accused and learned Public Prosecutor, the learned trial Court found the appellants guilty and convicted and sentenced them as aforesaid whereas co-accused Muhammad Aslam was acquitted.
6. I have heard Mr. Abdul Latif Khan Baloch, learned counsel for the appellants, learned Deputy Advocate-General for the State assisted by Mr. Hamidullah Khan Khattak, learned counsel for the complainant and have also perused the record.
7. The counsel for the appellants contended that while convicting the appellant, the learned trial Court has observed that the appellants have caused serious damage/loss to the property of the complainant, as such, their case falls within the ambit of clause (c) of subsection (2) of section 6 of the Anti-Terrorism (Amendment) Ordinance, 2001 (hereinafter called the Act) and liable to conviction under section 7(d) of the Act. However, it is purely a case of robbery by commission of lurking house trespass, falling under relevant sections of the P.P.C. And not a case falling under any clause of subsection (2) of section 6 or any other provision of the Act, as such, the learned trial Court had no jurisdiction to put the appellants and their co-accused to trial. In the alternate, he further contended, after pointing out some contradictions between the contents of the F.I.R. And the statement of P.W. Mst. Abida Sherazi complainant before the Court, that the appellants are liable to be acquitted.
8. I will not go into the merits of the alternate argument of the/learned counsel for the appellants because his first argument carries weight. Section 6(2)(c) of the Act speaks of, "involves grievous damage to property". It may be pointed out here that damage to property is quite a distinct act from dishonestly/forcibly taking property out of the possession of the owner/possessor. In the former case, damage is done to the property, whether movable or immovable, whether partially or totally, without taking possession of the property but in the latter case, movable property, vide definition of theft contained in section 378, P.P.C. Is dishonestly taken away of the possession of any person without damage to property, as such, the case of the appellants would not fall within the provision of section 6(2)(c) of the Act. In order to bring the case within the jurisdiction of the Special Court constituted under the Act, it will be necessary that the offence must fall in any of the provisions of clauses (a) to (n) of subsection (2) or (3) of section 6 of the Act and must fulfil one of the conditions laid down in clause (b) or clause (c) of subsection (1) of section 6 of the Act or in other words, an act will amount to terrorism only where the use of threat of action is designed to coerce and intimidate the Government or the public or a section of the public or community or sector creating a sense of fear or insecurity in society or the same is made for the purpose of advancing a religious, sectarian or ethnic cause but in the present case though one of the conditions laid down in section 6(1)(b) and (c) by creating a sence of insecurity in the society is available but the offence does not fall in any of clause (a) to (n) of subsection (2) of section 6 or within the provision of subsection (3) of the Act.
9. The learned Deputy Advocate-General contended that right from submission of challan till conclusion of the trial, none of the accused has raised any objection to the jurisdiction of the learned trial Court, as such, the same cannot be taken at this stage. In support of his arguments, he placed reliance on (i) 2002 SCMR (sic) and (ii) PLD 2003 Supreme Court 224. However, his argument is without force because both the cases cited by him pertained to murders committed in brutal and gruesome manner creating fear and insecurity in the localities and clearly falling within the purview of clause (a) of subsection (2) read with clause (b) of subsection (1) of section 6 of the Act, as such, these authorities are distinguishable from the facts of the present case. Accordingly, it is held that the learned Judge, Anti-Terrorism Court, D.I.Khan had no jurisdiction to try the appellants and their co-accused.
10. Consequently, on the acceptance of this appeal, the conviction and sentences of the appellants and acquittal of co-accused Muhammad Aslam are set aside and the case is remanded to the ordinary jurisdiction of learned Sessions Judge, Tank who shall conduct the trial of the appellants and their co-accused de novo in accordance with law. However, before conviction, the appellants and their co-accused were on bail but keeping in view the nature of the offences, let they shall remain in custody They shall be produced before the learned Sessions Judge, Tank as and when required but they would be at liberty to apply afresh for bail, if so advised and the learned trial Court would be expected to decide the same on merits. accordingly.