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Petitioner: MUHAMMAD AYAZ alias CHEENA and otherss VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Muhammad Mujeebullah Siddiqui, Muhammad Afzal Soomro Title: MUHAMMAD AYAZ alias CHEENA and otherss vs THE STATE Case No.: Special A.T.As. Nos.15, 35 and 37 of 2002 Date of Judgment:2004-08-06 Reported As: PLD 2004 Karachi 652 Result: Case remanded
JUDGMENT
JUDGMENT MUHAMMAD MUJIBULLAH SIDDIQUI, J.-An anomalous situation has emerged giving rise to a very ticklish issue requiring consideration by this Court. The relevant facts are that accused Muhammad Ayaz, Jan Haider and Sardar Khan were challaned to face trial on the allegation of vehicle snatching and thereby committing offence punishable under section 392/34, P.P.C. The challan was however, submitted before Incharge, Anti Terrorism Court and the case was transferred to Judge, Anti Terrorism Court No, IV, Karachi. The learned Judge Anti Terrorism Court framed charge against all the three accused persons for the offence punishable under section 7 of the Anti Terrorism Act, 1997 read with section 392/34, P.P.C. The offence was alleged to have been committed on 8-5-2001 and the charge was framed on 7-3-2002. All the three accused persons pleaded not guilty to the charge. Mr. Khan Pervaiz Chang, learned Judge Anti Terrorism Court No, IV, Karachi, tried the case and convicted all the three accused.Persons by judgment, dated 12-3-2002 holding that all the three accused were guilty of committing offence punishable under section 7 of the Anti Terrorism Act, 1997 read with section 392/34, P.P.C. After conviction for the act of car snatching all the three accused persons were sentenced to undergo R.I. For 10 years each and to pay fine of Rs,10,000 each, and in default to undergo further R.I. For one year. All the three accused persons filed separate appeals assailing conviction and sentences. The appeal at the instance of accused Muhammad Ayaz alias Cheena which was filed through an advocate was registered as Special Anti Terrorism Appeal No,15 of 2002. Accused Jan Haider and Sardar Khan preferred Jail appeals through Superintendent Central Prison Karachi. Their appeals were registered as Special Anti Terrorism Jail Appeals Nos. 35 and 37 of 2002 respectively.
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All the three accused persons were un-represented before the Anti Terrorism Court. Accused Jan Haider and Sardar Khan who preferred jail appeals were un-represented before this Court as well. The Special Anti Terrorism Appeal No,37 of 2002 was placed before a Division Bench of this Court comprising Muhammad Roshan Essani, J (now retired on superannuation) and Sarmad Jalal Osmany, J. Accused Sardar Khan argued his appeal in person which was disposed of vide judgment, dated 15-5-2002. A perusal of the judgment shows that the accused prayed for reduction in the sentence. Mr. Habib Ahmed, A.A.-G. Appeared for the State and apprised the learned Division Bench that the conviction and sentence awarded under section 392, P.P.C. By Anti Terrorism Court was not legal. The learned AAG, stated that after the amendments introduced in Anti Terrorism Act, the offence of vehicle snatching was no more triable by the Anti Terrorism Court and consequently, the accused persons could not be convicted for the offence punishable under section 392, P.P.C. The accused persons could be convicted under section 7-B or 7(iii) of the Anti Terrorism Act, 1997, for which maximum sentence provided in law was 7 years. The learned Judges sitting on the Division Bench considered the contentions raised by the learned AAG and traced out the history of relevant provisions in the Anti Terrorism Act, 1997 till the amendments introduced vide Ordinance XXXIX of 2001. After tracing out the history of amendments introduced in the Anti Terrorism Act, it was observed as follows:-- "The result is that the cases relating to robbery and dacoity with murder or Zina committed during the commission of said. Offences and vehicle snatching etc are no more triable by the Anti Terrorism Court after the promulgation of Ordinance XXXIX of 2001." It was further observed that the dacoities and robberies are punishable under the provisions of Pakistan Penal Code. The maximum sentence under section 392, P.P.C. Is 10 years and fine and if the offence is committed on highway the maximum sentence is 14 years and fine. It was further observed that the "maximum sentence for the offence of robbery in respect of vehicle snatching under Anti Terrorism Act, is 7 years. There are different laws for the two different forums for the trial and punishment of the offences of vehicles snatching. The one is general whereas another is special. The special law is subsequent one. It is well settled that special law has overriding effect and it will prevail over the general law." The appeal was disposed with the following findings:-- "The crux of the above discussion is that the cases relating to vehicle snatching could be tried under section 7-A or 6(d) of the Anti Terrorism Act and are made punishable under section 7-B or 7(iii) of the Act. The maximum sentence of the offences stated herein above is up to 7 years and fine. It is also well settled that if an offence is punishable under two different statutes then the statute carrying lesser punishment is to be given preference. In view of the above facts and circumstances of the case the appellant/accused is convicted and sentenced .To suffer R.I. For 7 years and fine of Rs,10,000 (Rupees ten thousand). In default of the payment of fine he shall suffer RI for 6 months more. The appellant/accused was given benefit of section 382-B, Cr.P.C. By the trial Court, the same is extended to him." Special A. T. Jail Appeal No,35 of 2002 at the instance of Jan Haider came for hearing before the same learned Division Bench on 16-5-2002. This appeal was also disposed of by the judgment authored by Muhammad Roshan Essani, J (now retired). Accused Jan Haider was also stated to have contended while arguing the appeal in person that the sentence awarded was too severe which may be reduced. It is stated in the judgment, dated 16-5-2002 that Mr. Habib Ahmed, learned AAG conceded to the contention of accused. He stated that the conviction and sentence awarded under section 392, P.P.C. To the appellant/accused by the trial Court was illegal as the offence of vehicle snatching was no more triable by the A.T. Court and therefore, the accused could not be convicted for the offence punishable under section 392, P.P.C. By the A.T. Court. However, he could have been convicted under section 7-B or 7(iii) of the ATA, 1997 for which maximum sentence
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provided under the law is 7 years. In this judgment also the learned Division Bench observed that the cases relating to robbery and dacoity with murder or Zina committed during the commission of said offences and vehicle snatching etc. Were no more triable by the A.T. Court, after promulgation of Ordinance XXXIX of 2001. It was further observed that the cases relating to vehicle snatching could be tried under section 7-A or 6(d) of the A.T. Act and are made punishable under section 7-B or 7(iii) of the Act. Support in this view was taken from the judgment delivered by the same learned Division Bench one day earlier in the case of co-accused Sardar Khan. Ultimately conviction was maintained and sentence was reduced to R.I. For 7 years and fine of Rs,10,000, in default whereof accused Jan Haider was to suffer R.I. For 6 months more. The Special A.T. Jail Appeal No, 15 of 2002 at the instance of accused Muhammad Ayaz alias Cheena which was filed through an advocate came up for regular bearing before a Bench comprising Ghulam Nabi Soomro, J. (now retired) and Muhammad Mujeebullah Siddiqui, J, on 13- 2-2004. On the said date Mr. Habib Ahmed, learned A.A.-G. Pointed out that Special A.T. Jail Appeals at the instance of co-accused Jan Haider and Sardar Khan bearing Nos.35 and 37 of 2002 were decided by a Division Bench comprising Muhammad Roshan Essani and Sarmad Jalal Osmani, JJ. It was pointed out by the learned A.A.-G., that with the amendments inserted by Ordinance XXXIX of 2001, dated 15-8-2001 and by virtue of the provisions contained in section 39-C(2)(e) the case was required to be transferred to the Court of Session. It was further pointed out that the question pertaining to jurisdiction of ATC has been considered by two Division Benches of this Court in the case of Farhan Zafar and others v. The State PLD 2002 Karachi 311 and Ghazi Khan v. The State PLD 2003 Karachi, 71. In both the above judgments, the amendments inserted by Ordinance XXXIX of 2001 in the A.T. Act were considered and it was held that after the promulgation of said Ordinance on 15-8-2001, the A.T. Court had no jurisdiction to try the cases of vehicle snatching. In the case of Ghazi Khan, the judgment of A.T. Court convicting the accused for the offence punishable under section 392/34, P.P.C. Read with section 7-13 of the A.T. Act was set aside and the case was remanded to the Sessions Court having jurisdiction for further proceedings. In the case of Farhan Zafar, a case pending before the A.T. Court for vehicle snatching was directed to he transferred to the Sessions Court for further proceedings in accordance with the law. Incidentally in both the above cited cases Mr. Habib Ahmed, AAG, appeared for the State and in the case of Farhan Zafar, the judgment was authored by Ghulam Nabi Soon-iro, J. In the above circumstances, Ghulam Nabi Soomro, J. While sitting with Muhammad Mujibullah Siddiqui, J. Observed that in Spl: A.T.J. Appeals Nos. 35 and 37 of 2002, at the instance of co- accused Sardar Khan and Jan Haider, the point of jurisdiction was not considered. It was observed that it would be appropriate if the appeal at the instance of Muhammad Ayaz alias Cheena was placed before a Bench in which one Judge who was on the Bench deciding the appeals of the co- accused and was still available is a member. The office submitted a note seeking orders from the Hon'ble Chief Justice if special Bench be constituted for hearing of appeal so as to include Sarmad Jalal Osmai, J. However, the Hon'ble Chief Justice ordered that the appeal be fixed according to Roster. In the above circumstances, Special A.T.A. No 15 of 2002 at the instance of Muhammad Ayaz came for hearing before us on 26-7-2004. Mr. Habib Ahmed, learned A.A.G. Again pointed out that with the amendments inserted through Ordinance XXXIX of 2001, dated 15-8-2001 in the A.T. Act, 1997, the offence of vehicle snatching was no more triable by the Anti Terrorism Court and was required to be transferred to the regular Court. However, the learned Anti Terrorism Court instead of transferring the case in pursuance of section 39-C(2)(e) tried the case and convicted appellant Muhammad Ayaz alongwith co-accused Sardar Khan and Jan Haider. He submitted that the provisions contained in section 39-C(2)(e) which read as follows are very clear:--
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"(39)-C(2)(e) All the cases pending before the Anti-Terrorism Court or (Special Court) immediately before the commencement of the Anti-terrorism (Amendment) Ordinance, 2001, if not covered by this Act or clauses(a) and (b) above, 'shall stand transferred to the respective Courts of session of the area or such other Courts of competent jurisdiction where the cases were registered against the accused and such Courts shall proceed with the cases from the stage at which they were pending, without the necessity of recalling any witness." He further submitted that the question of ouster of jurisdiction of ATC already stands decided by the two judgments of this Court referred to above. He has further submitted that subsequent to the amendments introduced in A.T. Act, 1997, the ATC have no jurisdiction to try the case of vehicle snatching and the present appeal is bound to succeed. The impugned judgment, conviction and sentence being without jurisdiction is liable to be set aside and the case is liable to be remanded and transferred to the Sessions Court having jurisdiction for disposal according to law. Learned AAG, submitted that so far, Special A.'I'.A. No, 15 of 2002 at the instance of Muhammad Ayaz alias Cheena is concerned, the proposition is very simple. However, an extraordinary situation arises giving rise to complication and anamolous state of affairs. He has submitted that appellant Muhammad Ayaz and co-accused Jan Haider and Sardar Khan were sent-up for the trial of same offence. They were tried together by ATC and were convicted by same judgment. Now if the appeal at the instance of Muhammad Ayaz which is bound to succeed, is accepted and the case is remanded to Sessions Court for re-trial of Muhammad Ayaz the situation which will emerge would be that one accused shall be tried separately and two co-accused namely Jan Haider and Sardar Khan who were also convicted by the same judgment, which is without jurisdiction, shall be serving out their sentences as convicted persons. The situation would be paradoxical and discriminatory on the face of it which militates against the fundamental right of equal protection of law guaranteed in Article 25(1) of the Constitution of Islamic Republic of Pakistan. He however, submitted that in spite of manifest injustice done to co-accused Jan Haider and Sardar Khan because of non-availability of a counsel to them and up-holding of their conviction by a judgment which is palpably without jurisdiction, the judgments, dated 15-5-2003 and 16-5-2003 passed by another Division Bench of this Court cannot be altered, reviewed or re-called because of the bar contained in sections 369 and 430, P.P.C. We were of the opinion that the earlier two judgments by another Division Bench of this Court, disposing of the appeals at the instance of the co-accused Jan Haider and Sardar Khan, were result of inadvertence and mistake and out of ignorance of the law contained in section 39-C(2) (e) of the ATA, and the two earlier Division Bench judgments of this Court in the case of Farhan Zafar, dated 6-2-2002 and Ghazi Khan, dated 8-10-2002, thus rendering the judgments per incuriam and liable to be recalled. According to our view the gross error which was apparent on record and was floating on surface could be rectified by recourse to the provisions contained in section 561-A, Cr.P.C. However, before passing any judgment in this behalf we deemed it fit to examine the issue in depth and to find out whether we had any power or authority to undo the manifest injustice, caused to the co-accused Jan Haider and Sardar Khan by an act of the. Court which on the face of it was a result of lack of assistance to the earlier Division Bench. We therefore, requested Mr. Azizullah K. Shaikh, advocate who was present in the Court to act as amicus curiae and assist the Court in arriving at the correct conclusion in our endeavour to undo the injustice which was pricking our judicial conscience. Mr. Shaikh, very candidly agreed to assist the Court as amicus curiae. He stated that prima facie he is of the view that the mistake committed in the disposal of appeals at the instance of co-accused can be rectified but some time was required for, research of case law on the point.
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The hearing was adjourned to 29-7-2004 to enable Mr. Azizullah K. Shaikh, advocate to do the research and we also engaged ourselves in research to find out a solution to grave situation. Without doing any violence to any specific prohibition contained in law and without exceeding our jurisdiction. Co-accused Jan Haider and Sardar Khan were also directed to be produced in Court who are undergoing sentences as reduced by the judgments, dated 15-5-2003 'and 16-5-2003. On 29-7-2004, we heard Mr. Azizullah K. Shaikh, learned amicus curiae and the learned A.A.G. At the very outset we would like to record our gratitude and appreciation for the research done and the pains taken by Mr. Azizullah.K. Shaikh in assisting us with a sublime purpose of furthering the ends of justice. But for the erudite arguments addressed by Mr. Azizullah K. Shaikh, very ably supported with the case law probably we would not have been able to cope-up with very extraordinary situation, so conveniently, as we have been able to do, which shall be demonstrated presently. Mr. Azizullah K. Shaikh, contended that there is no provision for review of a judgment in criminal matters and in ordinary course there is a bar contained in this behalf by virtue of the provisions in sections 369, 424 and 430, Cr.P.C. He was however, of the view that in extraordinary circumstances a deviation is permitted by recourse to section 561-A, Cr.P.C. Which reads as follows:-- "561-A. Saving of inherent power of High Court. Nothing in this Code shall be deemed to limit or affect inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." He maintained that by virtue of the non obstante clause, contained in section 561-A, Cr.P.C. The High Court can exercise its inherent power to prevent abuse of the process of any Court or otherwise to secure ends of justice. He proceeded on to argue that in the present case it is undeniable fact that learned A.T. Court tried accused Muhammad Ayaz alias Cheena, Sardar Khan alias Tikka and Jan Haider, for the commission of offence punishable under section 392/34, P.P.C., without having jurisdiction in this behalf. Thus, the entire judgment against all the three accused persons was without jurisdiction. The provisions contained in section 39-C(2)(e) inserted by Ordinance XXXIX of 2001 are very clear and require no interpretation. The above provision read with other amendment in sections 6 and 7 of the A.T. Act have been examined threadbare in two Division Bench judgments of this Court in the case of Farhan Zafar and Ghazi Khan (ibid). Now there is no room for holding any view that the ATC had jurisdiction to try all the three accused persons. While deciding appeals at the instance of Jan Haider and Sardar Khan, another Division Bench of this Court up-held the conviction and reduced the sentence by inadvertence. The leaned Judges remained oblivious of the provisions contained in section 39-C(2)(e) inserted by Ordinance XXXIX of 2001, although the amendments introduced in sections 6 & 7, ATA by the same Ordinance were duly referred to. Likewise the two earlier judgments on the point of jurisdiction in respect of vehicle snatching were not brought to the notice of learned Judges. Thus, the appeals at the instance of two co-accused were disposed of by mere reduction in the sentences out of ignorance and inadvertence tendering the judgments per incuriam. He has referred to the definition of expression "pet incuriam" in the law dictionaries. In Black's Law Dictionary, this Latin expression has been defined to mean, "through inadvertence". In the Ballentine's Law Dictionary, the expression is defined to mean, "through carelessness; through inadvertence; through lack of care". He has further argued that there can be no cavil to the proposition that an order/judgment without jurisdiction is void and nullity in law. An order/judgment without jurisdiction being void ab initio cannot be clothed with legality merely because it has been up-held in appeal or revision by inadvertence. We agree with the proposition that any super structure on such void order during the course of appeal/revision shall not have the effect of providing legal cover and an order/judgrnent without jurisdiction shall continue to be void and nullity in law, notwithstanding a per incuriam order/judgment in appeal or revision.
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Mr. Azizullah K. Shaikh, forcefully argued that an order/judgment manifestly against the provisions of law and particularly on the point of jurisdiction does not enjoy the same protection under sections 369, 424 or 430, Cr.P.C. As an order/judgment with jurisdiction enjoys. He has vociferously maintained that an erroneous order with jurisdiction is not amenable to alteration or review by the High Court in exercise of inherent jurisdiction under section 561-A, Cr.P.C. Because it would amount to transgress express provisions of law containing bar in this behalf and the inherent jurisdiction under section 561-A, Cr.P.C. Shall be adverted to when there is no express provision in law. However, an order/judgment which is apparent on the face of record to be without jurisdiction does not enjoy any such protection and can be re-called in exercise of inherent jurisdiction under section 561-A, Cr.P.C. It would not amount to alteration or review of the order/judgment but it would be merely a rectification, without any re-appraisal of evidence, reinterpretation of any law and re- application of mind or any process of long drawn arguments or reasoning and shall be for the purpose of preventing the abuse of the process of Court and to secure the ends of justice. We are persuaded to agree with this proposition as well. Referring to the facts of the present case, he contended that it is absolutely necessary to recall the two judgments in order to avoid the discriminatory treatment to co-accused Jan Haider and Sardar Khan and to provide equal protection of law to them. Mr. Azizullah K. Shaikh, submitted that the judgments, dated 15-5-2003 and 16-5-2003, deciding the appeals at the instance of co-accused Jan Haider and Sardar Khan can be re-called on the principle of the judgments being per incuriam and on the basis of stare decisis. He submitted that so far, the judgments sought to be re-called being per incuriam is concerned, no further arguments are required as it is an admitted position. As regards stare decisis, he has referred to various judgments in support of his contention. The first judgment is in the case of Crown v. Habibullah, PLD 1952 Lahore 587. The judgment was delivered by a Division Bench of the Lahore High Court comprising Muhammad Munir, C.J. And Kayani, J. In this case the appeal against conviction under section 302, P.P.C. Was dismissed and the sentence of transportation for life was enhanced to death, without expressly directing that the accused be hanged by neck till they are dead. An application under section 561-A, Cr.P.C. Was submitted for correction in the judgment and direction in terms of section 368, Cr.P.C. The objection that after signing of judgment the High Court was not empowered under section 561-A, Cr.P.C. To pass further orders in terms of section 368, Cr.P.C. Reference was made to the case of Raju v. Emperor AIR 1928 Lah.- 462. It was held in the cited case that, "The instances of inherent powers possessed by the High Court given in section 561-A, to make such orders as may be necessary to give effect to its decision, or to prevent abuse of the process of any Court, have always been assumed by Courts of record. The first class of cases comes under the well-established principle that whenever anything is required to be done by law, and it is found impossible to do that thing unless something not authorized in express terms be also done, then that something else will be supplied by necessary. Intendment". His Lordship Jutice Kayani, further observed that, "The High Court is not given, nor did it ever possess an unrestricted and undefined power to make any order which it might please to consider was in the interest of justice. Its inherent powers are as much controlled by principle and precedent as are its express powers by statute". Reference was made to two cases Nagappa Vyankappa Sali v. Emperor AIR 1931 Born. 529 and Emperor v. Rashbehari Singh AIR 1934 Pat. 551. In Bombay case a prayer was made by the appellant under section 397, Cr.P.C. That his sentence of 7 years imprisonment be made concurrent with two other sentences in different cases and on an objection being raised by the Crown counsel that this could have done only by the trial
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Court, it was held that the terms of section 423 and of section 561-A seemed to be wide enough to enable an order of the kind to be made. In the Patna case, a reference was made by the Sessions Judge to the High Court for correcting an illegality in revision. The appeal preferred by the convict before High Court was dismissed at the first hearing and the notice was issued in the revision petition. The question arose whether the revision petition could be heard after the appeal has been dismissed. It was held by a Single Judge that under section 561-A the mistake could be corrected. Another judgment from English jurisdiction Mellor v. Swire LR (1885) 30 Ch. D. 239 was referred. Opinion of Cotton L.J. Was reproduced which reads as follows:-- "But although it is Only in special circumstances that the Court will interfere with an order which has been passed and entered, except in cases of mere slip or verbal inaccuracy, yet in my opinion the Court has jurisdiction over its own records, and if it finds…
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