This appeal has been directed under section 25 of Anti-Terrorism Act, 1997 (hereinafter called as Act) against the judgment dated 21-3-2003 passed by the learned Judge of Anti-Terrorism Court, Turbat Camp at Dera Murad Jamali by which, he convicted the appellant Qaiser Khan son of Abdul Hakeem under section 7(c) of the said Act and sentenced him to suffer R.I. For 7 years and to pay fine of Rs,5,000 to victim Ahmed Khan. The benefit of section 382-B, Cr.P.C. Was also extended in favour of appellant.
2. The occurrence is stated to have taken place on 4-10-2002 at about 6-00 p.m. When the complainant and his brother Ahmed Khan were present at their land situated near Goth Abdullah Khan Umrani Kohn where, Hussain Bakhsh, driver was ploughing the land by means of tractor. The report of this incident was made by complainant liaquat Ali on 5-10-2002 vide F.I.R. Exh.P/1-A. The allegation against the appellant was to the extent that he alongwith absconding accused Muhammad Zaman, Muhammad Nawaz and Shah Nawaz equipped with Kalashnikov came from watercourse and started firing upon brother of complainant. It is stated that as a result of such firing Ahmed Khan received bullet injuries and fell down and the assailants after commission of offence escaped from the place of occurrence. After registration of the case, the investigation of the case was taken in hand by Abdul Aziz, Tehsildar Tumbo. The injured was sent to hospital. He inspected the place of occurrence and prepared site-plan vide Exh.P/6A, secured 15 empties of Kalashnikov from the place of occurrence He also recorded statements of prosecution witnesses under section 161, Cr.P.C. Accused-appellant Qaiser Khan is stated to have been arrested on 16-2- 2002. After usual investigation, the challan was submitted to learned Sessions Judge, Dera Murad Jamali who made over the case to learned Additional Sessions Judge, Dera Murad Jamali for trial.
It is stated that on 20-11-2002 charge under section 324/34, P.P.C. Was framed by the learned Additional Sessions Judge. It is stated that the case was then transferred to the Court of Judge Anti-Terrorism Court.
3. On 21-2-2003 charge under section 324, 34, 337-F/W section 7(b) of Anti-Terrorism Act, 1997 was framed against the appellant to which, he pleaded not guilty and against the absconding accused, it was presumed that they pleaded not guilty.
4. In support of its case, the prosecution examined P.W. 1 Liaquat Ali, P.W.2 Ahmed Khan, P.W.3 Hussain Bakhsh, P.W.4 Abdul Nabi, P.W.5 Muhammad Siddique, Medical Officer and P.W.( Abdul Aziz, Tehsildar/ Investigation Officer.
5. In his statement recorded under section 342, Cr.P.C. The appellant has disputed the case of prosecution and pleaded his innocence. Neither he made his statement on oath nor led any evidence in his defence.
6. The learned Special Judge formulated the following points for determination:--
(1) Whether on 4-10-2002 at about 6-00 p.m. Near Goth Abdullah Umrani Kohang Ahmed Khan sustained fire-arm injuries?
(2) Whether accused Qaiser along with absconding accused, Muhammad Zaman, Muhammad Nawaz and Shah Nawaz in furtherance of their common intention made murderous assault upon Ahmed Khan and caused him grievous bodily injuries?
(3) If afore noted points are determined in affirmative then what offence is made out and what should be the quantum of sentence?
7. Learned Judge after assessm ent of the evidence resolved Points Nos.1 and 2 in the affirmative and came to the conclusion that all four accused persons in furtherance of their common intention equipped with Kalashnikovs by way of firing launched murderous assault upon P.W. Ahmad Khan and caused him injuries. Learned Judge while resolving Point No,3 treated this act on the part of appellant and absconding accused to have created sense of fear and insecurity besides, endangering the life of victim and found them guilty under section 7(c) of the Anti-Terrorism Act, 1997. The appellant along with absconding accused was accordingly convicted under section 7(c) of the said Act. The absconding accused were also convicted under section 21-L of the said Act and sentenced in absentia and to suffer R.I. For 3 years. The sentences were ordered to run concurrently and their sentences against absconding accused were ordered to commence after their arrest.
8. Feeling aggrieved, the appellant then preferred the present appeal which has been filed under section 25 of the said Act.
9. I have heard Mr. Ikhtiar Khan Marghazani, Advocate learned counsel for the appellant and Mr. Abdul Rahim Mengal, Assistant Advocate-General for the State while Haji Muhammad Sadiq Ghumman, Advocate has appeared for Complainant.
10. Learned counsel for the appellant contended that the offence alleged against the appellant did not fall within the purview of section 6 of the Anti-Terrorism Act nor the prosecution claimed that the offence was designed to create fear or insecurity in the society therefore, the conviction and sentence recorded by the trial Court are not warranted by law as the learned lower Court had no jurisdiction to adjudicate upon the matter. Learned counsel has further submitted that the learned Additional Sessions Judge was not justified for transferring of the case which was pending trial in the said Court and the application for transfer of the case from the Court of Judge Anti-Terrorism Court was dismissed without any justification as the learned Judge had absolutely no jurisdiction.
He has, therefore, suggested for remand of the case to the learned Additional Sessions Judge, Dera Murad Jamali Where, the case was pending trial before its transfer to the Court of Special Judge.
11. Learned Assistant Advocate-General keeping in view the circumstances of the case has conceded the position that the learned Anti-Terrorism Court had no jurisdiction as the case was triable by the regular Court. The acceptance of the appeal has however, been resisted by the learned counsel for the complainant by stating that the instant case falls within the ambit of section 6 therefore, the learned Judge Anti-Terrorism Court had the jurisdiction.
12. After hearing the learned counsel for the parties and perusing the relevant record with their assistance, I am of the view that assumption of jurisdiction in the matter by the Special Court Was not justified as prima facie, the case did not involve the element of terrorism and had no nexus with the object of the Anti-Terrorism Act, 1997 and its section 7 as it was a simple case under section 324, P.P.C. And was not committed in a manner which struck terror or created a sense of fear and insecurity in the people or in a section of people except in the ordinary sense of insecurity created at the time of commission of every crime.
13. In the instant case charge was framed on 20-11-2002 by the learned Additional Sessions Judge under section 324/34, P.P.C. On 10-12-2002 the case was transferred without any reason. The learned Special Judge took cognizance on 17-1-2002 and has not bothered to examine as to whether, the offence as alleged in the present case has any nexus with the terrorism or with the object of Anti-Terrorism Act, 1997. An application was made but the same was rejected on 17-3- 2002. The reasons for bringing the case within the ambit of terrorism are given in the judgment but the same are not reasonable as to bring the case within the ambit of Terrorism Act.
14. It is also pertinent to note that amendments were brought about in the Pakistan Penal Code, 1860 and the Code of Criminal Procedure, 1898 to bring them in conformity with Injunctions of Islam as laid down in the Holy Qur'an and Sunnah through Ordinance and subsequently, through Act II of 1997. This Act received the assent of the President on the 10th April, 1997. Section 324 after amendment reads as under:-- "324. Attempt to commit Qatl-i-Amd.--Whoever does any act with such intention or knowledge, and under such circumstances, that, if he by that act caused Qatl, he would be guilty of Qatl-i- Amd, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and, if hurt is caused to any person by such act, the offender shall (in addition to the imprisonment and fine as aforesaid) be liable to the punishment provided for the hurt caused: Provided, that, where the punishment for the hurt is Qisas which is, not executable, the offender shall be liable to Arsh and may also be punished with imprisonment of either description for a term which may extend to seven years."
15. Islamic law in cases relating to offences enumerated in Chapter XVI of Pakistan Penal Code, 1860 is to be applied in view of the provisions of section 338-F of the Code. According to second part of section 324, if hurt is caused to any person by such act, the offender shall in addition to the imprisonment and fine as aforesaid be liable to the punishment provided for the hurt caused and according to proviso added to such section where, the punishment for the hurt is Qisas which is not executable, the offender shall be liable to Arsh and may also be punished with imprisonment of either description for a term which may extend to seven years.
16. Section 338-F, P.P.C. Requires that while interpreting and applying the provisions of Chapter containing the above mentioned provisions, the Court is to be guided by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. In other words, by virtue of the provisions of section P.P.C.
In the matter of interpretation and application of the law relating to Qisas and Diyat, the Court is to be guided by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. It may further be stated that according to the provisions of section 4(a) of the Enforcement of Shariah Act, 1991, all the conflicts or doubts in the provisions of all the statutes are to be resolved in accordance with the Injunctions of Islam. The Criminal law, thus has to be interpreted, applied and enforced in a manner so as to achieve the objectives for which, the amendments were brought about while considering or interpreting the law relating to hurt, the Islamic Law would be followed.
17. The observations made in para. 28 of the judgment reported in PLD 1992 Lah. 99 are noteworthy, the same are reproduced below for the sake of facility:- "28. If we look at Article 2A, it will appear that the Legislature itself, conferred overwhelming position, on the Law of Allah and has made the man-made law subordinate to it. If that be so, can any Judge refuse to follow that position, as he is under oath to preserve, protect and defend the Constitution? If the Article 2A is effective and enforceable the sovereignty belongs not to the people or the Parliament, but Allah. Can then Article 2A be violated, defied or defeated? It must be appreciated that Article 270-A does equalize all the Articles of the Constitution, as regards their existence and enforce ability and insists that they all being valid will co-exist with each other but with their own weight and importance. In that situation the application of Article 268(6)'`-will pose no problem."
18. Admittedly, neither the case has been registered under section 7(c) of the Anti-Terrorism Act, 1997 nor the investigation was carried out under the provisions of aforesaid Act nor the challan was submitted to the said Court by the prosecution. The punishment awarded by the learned Judge ATC, Court for the offence appears to be not according to law with the principles of Islamic dispensation of criminal justice.
19. In view of the above position, the impugned judgment is set aside and the case is remanded to the learned Special Judge with direction to send the same to the Court of learned Additional Sessions Judge, Dera Murad Jamali and said Court should start the proceedings from the stage where the case was on 10-12-2002 strictly in accordance with law and dispose of the case as early as possible. The appeal stands disposed of in the above terms. These are the reasons for the short order made on 8-5-2003.