RAHMAT HUSSAIN JAFFERI, J.---This judgment will dispose of the Special Anti-Terrorism Appeal No,101 of 1999 and Confirmation Case No, 36 of 1999 as they arise out of a common judgment.
2. The present appeal has been directed against the judgment dated 29-6-1999 passed by Anti- Terrorism Court No,VI, Karachi, In A.T.A. Case No,131 of 1999 State v. Ahmed Shah and another under sections 392, 324, 302, P.P.C. read with section 34, P.P.C. by which the learned Judge had convicted the appellants under section 392, P.P.C. And sentenced them to suffer R.I. for 10 years and to pay fine of Rs,10,000 each, or in default thereof to suffer S.I. for 6 months. The appellant Ahmed Shah was further convicted under section 324, P.P.C. and sentenced to suffer R.I. for 10 years and to pay fine of Rs,30,000 with a direction that in case the fine is realised the same shall be paid to injured Arsalan as compensation under section 544-A, Cr.P.C., or in default thereof, to suffer S.I. for one year. The appellant Aurangzeb was convicted under section 302, P.P.C. read with section 7(i)(a) of Anti Terrorism Act, 1997 (hereinafter referred to as ATA, 1997) and sentenced to death and to pay fine of Rs,100,000 which shall after its recovery be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. or in default thereof to suffer S.I. for two years. The benefit of section 382-B, Cr.P.C. was extended to both the appellants.
3. The facts giving rise to the present appeal are that the complainant Haji Nawab owned. a Towel Sewing Factory situated Plot No,8687, Sector 4/D, Orangi Town, Karachi. On 22-7-1998 after paying salary to the labourers he left the factory at about 4-15 p.m. having a white cloth bag containing cash of Rs,2,622. When he reached in front of Jeelani Clinic, two young boys came there who on pistol point snatched the white bag containing cash of Rs,2,622 and started running. The complainant raised cries on which several persons arrived there and then they started following the culprits. In the meanwhile a police mobile party also arrived there. The culprits seeing the public and police party following them started firing from their pistols at them with a result that a girt Kanwal aged about 11/12 years and another child Arsalan aged about 8/9 years received pistol shot injuries. The police were successful in apprehending both the culprits. On inquiries the culprits disclosed their names as Ahmed Shah and Au. rangzeb (the present appellant). A pistol from each of the appellant loaded with bullets was secured so also the white cloth bag containing cash of the complainant from the possession of appellant Ahmed Shah. Thereafter, the appellants and the property were taken to the police station alongwith complainant and P.Ws. Zarshan Zaman, Jamroz Khan and Muhammad Yousaf. The complainant lodged the report which was recorded on the same date at 5-10 p.m.
4. The matter was investigated by Inspector Jehan Khan Niazi who received the custody of appellants, property and cloth bag containing cash of Rs,2,622. He visited the place. of Wardat from where blood-stained earth was secured. On 23-7-1998 he went to Jinnah Hospital as the deceased girl Kanwal had died where he prepared inquest report and obtained a death certificate of the deceased Kanwal. On 24-7-1998 the father of the deceased girl brought the blood-stained clothes of the deceased which he received. The property was sent to Ballistic Expert for examination and report. After completing the usual investigation the case was challaned before the Anti-Terrorism Court, Karachi Division from where the case was received by the Administrative Judge Anti- Terrorism Courts, Karachi Division. The case was assigned by Administrative Judge Anti-Terrorism Courts, Karachi Division to Anti-Terrorism Court No,VI, Karachi for disposal according to law.
5. On 16-9-1999 a charge under section 392 read with section 34. P.P.C. and section 7 of ATA, 1997 was framed against both the appellants, whereas charge under. section 324, P.P.C. was framed against the appellant Ahmed Shah and charge under section 302, P.P.C. was framed against the appellant Aurangzeb. They pleaded not guilty to the charges.
6. In support of the case the prosecution examined P.W.1 complainant Haji Nawab, P.W.2 Muhammad Yousaf, P.W.3 Zarshan Zaman, P.W.4 Jamroz Khan, P.W.5 Zafar Iqbal, P.W.6 Sayed Saeed Shah, P.W.7 S.I.P. Muhammad Yousaf, P.W.8 Rehat Shah, P.W.9. Dr. Sayed Saeed Hyder, P.W.10 S.I.P.
Abdul Wahid, P.W.11 Dr. Abdul Khalique, P. W.12 Inspector Jehan Khan Niazi.
7. The appellants in their statements recorded under section 342, Cr.P.C. denied all the allegations of the prosecution. The appellant Ahmed Shah in his further statement stated that he was falsely involved in the case due to his friendship with appellant Aurangzeb as the complainant warned him not to allow appellant Aurangzeb to sit on his shop otherwise he would face dire consequences. The appellant Aurangzeb in his further statement stated that he was employee of the complainant in his factory, where had tried to form a union of labourers but his services were terminated by the complainant with a warning that he would be involved in some cases.
8. The appellants neither examined on oath nor led any evidence in their defence.
9. After considering the material available on the record the trial Court formed opinion that the appellants had robbed the complainant; that appellant Ahmed Shah had caused pistol shot injuries to Arsalan whereas appellant Aurangzeb caused fire-arm injuries to baby Kanwal who died on-the next day in the hospital, therefore, the appellants were convicted and sentenced as mentioned above under the impugned judgment. The appellants being dissatisfied with the said judgment have preferred the appeal. As the trial Court had awarded death sentence to the appellant Aurangzeb, therefore, a reference has been sent for confirmation of death sentence.
10. We have heard the arguments of the Advocates for the appellants, A.A.-G. for the . State and perused the record with their assistance.
11. Learned Advocate for the appellants have stated that the matter has been compromised between the legal heirs of the deceased Kanwal, Wali of Arsalan and the appellants, therefore, the said compromise may be accepted and the appellants may be acquitted. On the other hand learned A.A.-G. has stated that both the appellants were convicted under section 392, P.P.C. and appellant Ahmed Shah was further convicted under section 324, P.P.C. whereas appellant Aurangzeb was also convicted under section 302, P.P.C. read with section 7(i)(a) of ATA, 1997, but out of above convictions, sections 324 and 302, P.P.C. are compoundable whereas sections 392, P.P.C. and 7(i)(a) of ATA. 1997 are not compoundable, therefore the Court cannot grant permission to compound the offences. In reply to the arguments of the learned A.A.-G., the learned Advocate for appellants have stated that they are not pressing the appeals on merits but permission to compounding the offences viz. sections 324 and 302, but a lenient view may be taken in awarding the sentence in non-compoundable offences. Alternatively, they have argued that provisions of section 7(i)(a) of ATA, 1997 are not attracted as the same have no nexus with the then section 6 of ATA, 1997. Learned A.A.-G. has conceded that the offences under sections 324 and 302, P.P.C. are compoundable with the permission of Court as required under section 345(2), Cr.P.C., therefore, he has no objection if permission to compound the offences may be granted in respect of compoundable offences but he has stated that there is no case for reduction of sentences with regard to non-compoundable offences. He has further stated that provisions of section 6 of ATA, 1997 are attracted in the circumstances of the present case.
12. It is pointed out that an application under section 345(2), Cr.P.C. bearing C.M.A. No,116 of 2002 was filed for grant of permission to compound the offences. On 18-5-2002, the said application, with the relevant record was sent to the trial Court to ascertain the genuineness of the compromise and report. The trial Court conducted the required inquiries and reported that the compromise arrived at in between the parties was genuine which was made out of their free-will and choice and without any coercion, fraud or intimidation vide report dated 29-8-2002. Thus, the offences punishable under sections 302 and 324, P.P.C. have been compounded. Now it is to be seen as to whether section 345, Cr.P.C. is applicable in the present proceedings or not.
13. Under section 32 of ATA, 1997 the provisions of Criminal Procedure Code have been made applicable if they are not inconsistent with the provisions of ATA, 1997. The said provisions read as under:- "32. Overriding effect of Act.---(1) The provisions of this Act shall have effect notwithstanding anything contained in the Code or any other law but, save as expressly provided in this Act, the provisions of the Code shall, insofar as they are not inconsistent with the provisions of this Act, apply to the proceedings before a Anti-Terrorism Court; and for the purpose of the said provisions of the Code, an Anti-Terrorism Court shall be deemed to be a Court of Session.
(2) In particular and without prejudice to the generality of the provisions contained in subsection (1), the provisions of section 350 of the Code shall, as far as may be, apply to the proceedings before an Anti-Terrorism Court, and for this purpose any reference in those provisions to a Magistrate shall be construed as a reference to Anti-Terrorism Court."
14. We have gone through the ATA, 1997 but could not find any provision by which the offences have been made compoundable. There is also, no provision in it by which the parties cannot compound the offences. As such, by virtue of section 32 of ATA, 1997 the provisions of section 345, Cr.P.C. are applicable as they are not inconsistent with any provisions of ATA, 1997. Under section 345(2), Cr.P.C. the offence punishable under section 302, P.P.C. is compoundable by the legal heirs of the victim whereas section 324, P.P.C. is compoundable by the person against whom the offence is committed.
15. As regards the offences punishable under section 7(i) of ATA, 1997 and section '392, P.P.C. the said offences have not been shown in the 1st and IInd Columns of the Table of section 345, Cr.P.C., therefore, they are not compoundable under the provisions of section 345, Cr.P.C.
16. Before we give our finding on the above point, we would like to examine as to whether Anti- Terrorism Court had jurisdiction to try the case, in the light of definition of "terrorims" as defined under section 6 of ATA, 1997 as stood on the date of offence, because original said definition was completely changed by subsequent amendment as available at the time of trial and also in the light of decision given by the Hon'ble Supreme Court of Pakistan in a case of Muharam Ali v.
Federation of Pakistan (PLD 1998 SC 1445).
17.The incident of this case took place on 22-7-1998. At that time, while committing an offence punishable under section 392, P.P.C., if the offender commits an offence of murder, only, then it was triable by ATA, 1997 as required under Serial No,2(c) of the then Schedule appended to the ATA, 1997. As such when the offence was committed the Anti-Terrorism Court had jurisdiction to try the case. It is pertinent to point out that the ATA, 1997 was challenged before the Hon'ble Supreme Court of Pakistan in the case of Muharam Ali (supra) and at pages 1492 and 1495 it has been observed as under:-- "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 like 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.
"We may state that above declarations in respect of the provisions of the Act referred to hereinabove will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to the above as ordered by us in the short order...."
18. Thus, after decision of the Hon'blele Supreme Court of Pakistan in the above case the Anti- Terrorism Courts had jurisdiction to try the case, if the offences mentioned in the Schedule of ATA, 1997 had nexus with the object mentioned in sections 6, 7 and 8 of the ATA, 1997.
19. Keeping in view the above position of law it is to be seen whether the facts of the case attract the provisions of the then section 6 of ATA. 1997 as stood on the date of offence viz. 22-7-1998 which reads as under:-- "Terrorist act.---Whoever, to strike terror in the people, or any section of the people, or to alienate any section of the people or to adversely affect harmony among different sections of the people, does any act or thing by using bombs, dynamite or other explosive or inflammable substances, or tire-arms, or other lethal weapons or poisons or noxious gases or chemicals or other substances of a hazardous nature in such a manner as to cause, or to be likely to cause the death of, or injury to, any person or persons, or damage to, or destruction of property or disruption of any supplies of services essential to the life of the community or displays fire-arms or threatens with the use of force public servants in order to prevent them from discharging their lawful duties commits a terrorist act."
20. From the above provision it is clear that if an offender with intention to strike terror in the people or in any section of the people etc. commits scheduled offence then only he will be subject to jurisdiction of Anti-Terrorism Court.
21. In order to arrive at the above conclusion that facts of the case are to be examined. As already mentioned above that the complainant was going by foot having a bag containing cash of Rs,2,622 at about 4-15 p.m. when he reached in front of Jeelani Clinic, two young boys armed with pistols snatched the said bag and started running. The complainant raised cries on which several persons arrived there. The police mobile also came there. They followed the appellants but when the appellants saw that they were being followed they fired from their pistols which hit a girl Kanwal aged about 11/12 years and a boy Arsalan aged about 8/9 years and. subsequently the girl Kanwal succumbed to her injuries.
22. From the above facts it is clear that the intention of the appellants was to commit the robbery but when they were being followed by the police and the people they, in order to save themselves from the situation, fired at the police party which hit two children who were present at the place of Wardat. Thus, the intention of the appellants were not to strike terror in the people or any section of the people while committing the robbery. Their intention was to commit a simple offence of robbery but when they were put in difficult situation they fired from their weapons in order to save themselves. As such, ingredients of section 6 of ATA, 1997 are missing from the case. Therefore, the Anti-Terrorism Court had no jurisdiction to try the case.
23. In view of the above position when the Anti-Terrorism Court had no jurisdiction to try the case, then the appellants cannot be tried, convicted and sentenced by the said Court, hence the conviction and sentence awarded under the impugned judgment is set aside. The case is remanded to the trial Court for its transfer to the regular Court having jurisdiction in the matter as required under section 23 of ATA, 1997.
24. Consequently, the appellants' appeal is allowed in the above terms. Reference of confirmation of the sentence is rejected.