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Petitioner: Tariq Khan and others VS Respondent: The State
Court Name: Sindh High Court Judge(s): Muhammad Karim Khan Agha, Arshad Hussain Khan Title: Tariq Khan and others vs The State Case No.:Special Criminal A.T. Appeal No. 196, Special Criminal A.T. Acquittal Appeal
JUDGMENT
Reported As: 2022 P Cr. L J 558 Result: Order accordingly Judgment JUDGMENT MOHAMMED KARIM KHAN AGHA, J.---The appellant namely Tariq Khan has assailed the impugned judgment dated 21.11.2020 passed by the Anti-T errorism Court No.XVI, Karachi in Speci al Case No.562 of 2018 (New Special Case No.22 of 2018) arising out of Crime No. 91 of 2018 under sections 302/34, P.P.C. read with section 7, A.T.A., 1997 registered at PS Shahrah- e-Faisal, Karachi whereby he was sentenced under section 265-H(2), Cr.P.C. for causing death of the deceased Maqsood by firing, punishable under section 302, P.P.C., accused/appellant Tariq Khan was sentenced to death subject to confirmation by this court. He was also ordered to pay compensation of Rs.2,00,000/- (two lac) to the legal heirs of deceased under section 544-A, Cr.P.C. and in default of such payment he shall undergo SI for six months more. He was extended the benefit of section 382-B, Cr.P.C. 2. Appellant Ali Eidan has filed an appea l from jail impugning the judgment dated 24.11.2019 arising out of FIR No.41 of 2018, under sections 302/324/3 53/170/171/34, P.P.C. read with section 7 of A.T.A., 1997 registered at Police Station Shahrah-e-Faisal, Kaiachi whereby the appellant Ali Eidan was convicted for offence under section 265-H(2), Cr .P.C. as under:- (i) The accused Ali son of Eidan is hereby convicted for the offence under section 324, P.P.C. and he is hereby sentenced to rigorous imprisonment for ten (10) years and with fine of Rs.50000/- and in case of failure to pay the fine, he shall serve SI for six months more; (ii) The accused is hereby convicted for' the offence under section 353, P.P.C. and he is sentenced to undergo rigorous imprisonment for two (02) years and with fine of Rs:10000/- and in case of failure to pay the fine, he shall serve SI for three months more;
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(iii) The accused is hereby convicted for the offence under section 400, P.P.C. and he is hereby sentenced to rigorous imprisonment for ten (10) years and with fine of Rs.1,00,000/- and in case of failure to pay the fine, he shall serve SI for six months more; (iv) The accused is hereby convicted for the offence under section 171, P.P.C. and he is hereby sentenced to rigorous imprisonment for three (03) months; (v) The accused is hereby also convicted for the offence under section 322, P.P.C. and is liable to pay Diyat amount to the legal heirs of the_ deceased; he shall remain in custody until the payment of Diyat amount. (vi) The accused is hereby also convicted for the offence under section 23(I), S.A.A., 2013 and sentenced to undergo rigorous imprisonment for ten (10) years with fine of Rs.50000/- and in case of failure to pay the fine, he shall serve SI for six months more; The benefit of section 382-B, Cr .P.C. was also extended in favour of the accused. 3. The complainant Sher Muhammad filed an appeal against acquittal of Respondents/accused persons Tariq son of Jamshed Khan, Akber Khan son of Muhammad Yousuf, Abdul Waheed son of Shabeer Ahmed and PC Shaukat Ali son of Muhammed Ashraf who were acquitted by the Anti-T errorism Court No.XVI Karachi for offences under the ATA and P.P.C. (in respect of respondents Akber Khan, Abdul Waheed and PC Shaukat Ali) vide its judgment dated 21.11.2020 4. The brief facts of the prosecution case as per FIR No.91 of 2018 lodged by the complainant. Sher Muhammad son of Muhammad Fazal resident of Lines area, Karachi and permanently resident of Shaiwal stated that on 20.01.2018 his son tailor as profession left the house with his friend Rauf who was Rickshaw driver towards airport and at about 10:30 a.m. brother of Rauf came to his house and informed his daugh ter that he received a phone call that Maqsood was taken to Jinnah Hospital in emergency ward, as such they reached there where one police officer informed him that Maqsood was a dacoit who was killed in police encount er at Shahrah-e-Faisal, as such they also inquired from Rauf who also informed him that Maqsood was killed by the police. At that time the complainant was in Sahiwal and the deceased Maqsood was shifted to Sahiwal where he was buried. On 25.01.2018 accordingly he reached at Karachi and lodged the FIR against the above named police of ficer. 5. The brief facts of the prosecution as per FIR No.41 of 2018 lodged by complainant Syed Ali Hassan, SHO of Shahrah-e-Faisal, Karachi are that on 20.01.2018 while the complainant was on patrol along with staff received phone call of ASI Tariq about the accused who used to make robbery from the incoming airport passengers in white colour Toyota Corolla car No.BDP-21 1 who were signaled to stop at Shahrah-e- Faisal, Karachi but they started firing upon the police, the police also fired in retaliation, resultantly tyre of the car in which the suspects was driving was burst and the car hit the footpath at PAF Gate and the accused were trying to flee. On such information the complainant reached the place of incident where constable Shoukat Ali informed that accused were fleeing and ASI Tariq along with staff were following them. The complainant when reached at PAF gate found that one Rickshaw No.D-15-17123 was lying over turned and some persons were also lying there in injured condition. One of the injured lying there told him that he was Rickshaw passenger and when he was going in Rickshaw along with Rickshaw driver Maqsood and his friend , suddenly two persons wearing uniform similar to police uniform, first attempted to stop one motorcyclist who did not stop meanwhile they also tried to stop their rickshaw but rickshaw did not stop, they opened fire upon them resultantly the rickshaw overturned. He pointed out towards the persons who were lying there on the road were the same who stopped their rickshaw and made firing upon them owing to which the Rickshaw driver and his friend received firearm injuries. The police arrested the accused who disclosed his name as Ali Eidan. The police recovered from his possession one 30 bore pistol without number loaded with one round and from his body search, one black colour OPPO mobile phone and cash Rs.200/- were also recovered. The second injured accused disclosed his name as Babar Ali son of Jamal Aziz and from his possession the police recovered one .30 bore pistol without number loaded with one round in chamber and two in magazine and on his body search one black colour Q mobile and cash Rs.300/- were also recovered. The accused disclosed name of fleeing away accused as Arfeen. The police also seized two empties of 30 bore and two empties of .32 bore from the place of incident, so also recovered 4 empties of SMG from there. The accused were shifted to hospital. The police also searched the Toyota Corolla car and recovered one 222 rifle without number along with
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three rounds in magazine and one round in chamber , one black colour torch, one black colour dummy walky-talky set whereat HOM was inscribed, two police uniform shirts, one brown pant, two police caps, two number plates of car No.LED-8948, one white tape, three empties of .30 bore and three empties of 222 rifle were recovered. Accordingly FIRs were lodged against the accused persons. During investigation of the case, Maqsood succumbed to injuries and the accused Babar also died due to firearm injuries. 6. After completing usual investigation charge was framed against the accused persons to which they pleaded not guilty and claimed trial of their cases. At this stage it is worth pointing out that despite all the offences resulting from the same transaction a joint trial was not ordered and the FIR' s were challaned and tried separately which lead to two separate judgment arising out of the same incident. 7. The prosecution in order to prove its cases examined 11 witnesses in each case and exhibited various documents and other items. The statements of accused persons were recorded under section 342, Cr.P.C. in which they denied all the allegations levelled against them. After appreciating the evidence on record the trial courts convicted the appellants and acquitted some of the respondents and sentenced those convicted as set out earlier in this judgment vide two separate impugned judgments. Hence, the appellants have filed these appeals against their conviction and the complainant/appellant has filed an appeal against the acquittal of the respondents in his appeal against acquittal. 8. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgments dated 21.11.2020 and 24.11.2019 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition. 9. At the very outset learned counsel for the appellants. contended that the Anti-T errorism Court (ATC) had no jurisdiction to hear these cases and as such both the impugned judgments should be set aside and there appeals allowed. 10. This court therefore vide order dated 01.12.2021 framed the following legal issues for determination; (i) Whether the concerned court had jurisdiction to try the of fences and decide their case? (ii). In the event that such Court did not have jurisdiction to try the cases then what would be the legal consequences? 11. We also appointed Mr. Mahmood Akhtar Quershi as amicus curiae to assist us in determining the above two legal issues. Turning to the first Issue. Whether the ATC had the jurisdiction to try the offences so charged. 12. Learned counsel for the appellants and learned amicus curiae contended that based on the particular facts and circumstances of these cases and the prevailing case law the concerned ATC had no jurisdiction to try and decide these cases as the offences so charged did not fall within section 6 of the ATA which defined terrorism nor were such of fences so charged scheduled of fences falling within the purview of the ATA. 13. Learned counsel for the appellants placed reliance on the cases of Gul Muhammad v. The State and another (2002 PCr.LJ 1374), Farooq Ahmed v. The State and another (2020 SCMR 78), Amjad Ali and others v. The State (PLD 2017 Supreme Court 661), Muhammad Bilal v. The State and othe rs (2019 SCMR 1362 ), Ghulam Hussain and others v. The State and others (PLD 2020 Supreme Court 61), The State v. Muhammad Arif and 3 others (PLD 2012 Sindh 119), Muhammad Bilal alias Sulleman v. Federation of Pakistan through the Secretary Ministry of Law, Justice and Human Rights Division and 3 others (2011 PCr.LJ 411) and Muhammad Sharif v . Judge, Anti-T errorism Court and 5 others ( 2012 YLR 2448 ). 14. Learned amicus curiae placed reliance in respect of jurisdiction on the cases of Ghulam Hussain and others v. The State and others (PLD 2020 Supreme Court 61), Ali Gohar and others v. Pervaiz Ahmed and others (PLD 2020 Supreme Court 427), Farooq Ahmed v. The State and another (2020 SCMR 78), Muhammad Bilal v. The State and others (2019 SCMR 1362 ), Amjad All and others v. The State (PLD 2017 Supreme Court 661), Ali Nawaz and 5 others v. The State and 2 others (2021 PCr.LJ 909), Mura d All Bagalani and 5 others v. The State (2019 PCr.LJ 95) and Shahbaz Khan alias Tippu and others v. Special Judge Anti-T errorism Court No.3, Lahore and others (PLD 2016 Supreme Court 1).
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15. Learned Additional Prosecutor General Sindh appearing on behalf of the State has contended that although the ATC did not have jurisdiction to hear the cases as they did not fall within the purview of the ATA it could still pass judgment in respect of the P.P.C. offences which it has done. In support of his contentions he placed reliance on the cases of Nadeem Butt v. Special Courts Constituted under Anti-T errorism Act, 1997 (Presided by Sardar Mashkoor Ahmed), Camp At Dharampura, Lahore (2000 SCMR 1086 ), Ijaz Ahmad v. The State (2009 SCMR 99), Syed Mushahid Shah v. Federal Investigation Agency (2017 SCMR 1218), Waris Ali v. The State (2017 SCMR 1572 ), Tahir Mehmood alias Achoo v. The State (2018 SCMR 169), Shah Nawaz v. The State (2020 MLD 466) and Safarish Ali v. The State ( 2020 MLD 474 ). 16. Learned counsel for the appellants in the appeal against acquittal of the respondents however has contended that based on the particular facts and circumstances of the case the learned trial judge in both impugned judgments has wrongly concluded that the offences so charged based on the particular facts and circumstances of the case do bring them within the purview of section 6 of the ATA and that the ATC did have the jurisdiction to hear and decide the cases. In support of his contentions he placed reliance on the cases of The State v. Muhammad Arif and 3 others (PLD 2012 Sindh 119), Munawar Hussain v. Judge ATC II, Lahore (2017 PCr.LJ 46), Abdur Rab alias Ali Akber and others v. The State and others (2018 PCr.LJ 1313), Afaq Shafqat v. The State and 2 others (2018 PCr.LJ Note 22), Muhammad Umer Mangrio v. The State (2014 MLD 1813 ), Muhammad Bilal alias Sulleman v. Federation of Pakistan through the Secretary Ministry of Law, Justice and Human Rights Division and 3 others (2011 PCr.LJ 411), Muhram Ali and others v. The State and others (2016 PCr.LJ 961), Shahbaz Khan alias Tippu and others v. Special Judge Anti-T errorism Court No.3, Lahore and others (PLD 2016 Supreme Court 1) and Sadiqullah and another v . The State and another ( 2020 SCMR 1422 ). 17. Having heard the parties, perused the record and considered the relevant law including that cited at the bar we find that the ATC was extremely unlikely to have jurisdiction to hear and decide these cases for the following reasons; 18. At the outset we find that although the appellants application under section 23 of the Anti-T errorism Act, 1997 (ATA) to transfer the case from the ATC court to the court having ordinary jurisdiction as this was not an ATC case remained undecided (such application being filed shortly after the latest decision by the Supreme Court in the case of a Ghulam Hussain v. State (PLD 2020 SC 61) as what amounted to terrorism under the law) it is well settled that the question of jurisdiction can be raised at any stage of the proceedings especially in the case of a criminal appeal which is a continuation of the trial proceedings. In this respect reliance is placed on the case of Shaikh Muhammed Amjad v. State (2002 PCr.LJ 1317 (Kar) which held as under at P.1353 and 1354 whilst relying on a number of Supreme Court Judgments; "45. On the other hand, Mr. Raja Qureshi, learned Advocate-General, Sindh, and Mr. Ryas Khan, learned Special Public Prosecutor , submitted that the appellant could submit an application before the A.T.C. under section 23 of the A.T.A. for transfer of the case to the Court having jurisdiction but it was not done, and therefore, the appellant cannot be allowed to take this plea at the appellate stage. We are not persuaded to agree with the submission because the question of jurisdiction is a question of law and can always be raised by any party at any stage including the appeal. However , if the objection to the jurisdiction is taken at appellate stage it should not involve recording of further evidence and should be on the basis of material already available on record. We are, further of the opinion that so far, the question of jurisdiction of a Court is concerned, a Court itself is required before proceeding with the case to examine whether it has jurisdiction in law to procee d with the case or not. Merely because a party to the proceedings has not taken any objection to the jurisdiction, out of ignorance or for want of proper advice, shall neither debar a party from taking such objection at the appellate stage nor the silence of a party or even waiver shall confer jurisdiction on a Court not vested in it in law ." (bold added) 19. The latest law on what amounts to the offence of terrorism as defined under section 6 of the ATA was laid down by a larger Bench of the Supreme Court in the recent case of Ghulam Hussain (Supra) which held at P.131 Para 16 as under; "For what has been discussed above it is concluded and declared that for an action or threat of action to be accepted as terrorism within the meanings of section 6 of the Anti-T errorism Act, 1997 the action must fall in
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subsection (2) of section 6 of the said Act and the use or threat of such action must be designed to achieve any of the objectives specified in clause (b) of subsection (1) of section 6 of that Act or the use or threat of such action must be to achieve any of the purpose mentioned in clause (c) of subsection (1) of section 6 of that Act. It is clarified that any action constituting an offence, howsoever grave, shocking, bruta l, gruesome or horrifying, does not qualify to be termed as terrorism if it is not committed with the design or purpose specified or mentioned in clauses (b) or (c) of subsection (1) of section 6 of the said Act. It is further clarif ied that the actions specified in subsection (2) of section 6 of that Act do not qualify to be labeled or characterized as terrorism if such actions are taken in furtherance of personal enmity or private vendetta." (bold added) 20. Based on a glance of the FIR's and considering the particular facts and circumstances of this case we find that the learned trial court has correctly found in both the impugned judgments that the cases did not fall within the ambit of section 6 of the ATA so as to make them acts of terrorism which could be tried by the ATC. This has been acknowledged in both the impugned judgments in similar terms. For example the impugned judgment dated 21.11.2020 finds as under at para's 48 and 49. "48. Admittedly the accused is not previous criminal they are police officials and committed the offence of murder by exaggerating the use of force illegally . As far jurisdiction of this court regarding the offences discussed above whether fall under ATA or not, the answer of the same in absence of motive, design and intention of accused regarding terrorism as stipulated in section 6(1) (a) (b) which is sine qua non for attracting the jurisdiction of A.T.A., 1997 is missing in this case; hence in the light of definition of terrorism as given by honorable Supreme Court in case of Ghulam Hussain reported in PLD 2020 SC 61, the instant case does not fall under the offences of ATA, 1997. In the light of the case of Ghulam Hussain (supra) even the cases not falling under the definition of terrorism, are yet to be triable by ATC Courts, but such courts cannot convict the accused under Special Law as has been held in Ghulam Hussain's case in para-13 at page-125 as under:- "A careful reading of the Third Schedule shows that an Anti-T errorism Court has been conferred jurisdiction not only to try all those offences which attract the definition of terrorism provided by the Act but also some other specified cases involving heinous offences which do not fall in the said definition of terror ism. For such latter category of cases it was provided that although those offences may not constitute terrorism yet such offences may be tried by an Anti-T errorism Court for speedy trial of such heinous offences. This distinction between cases of terrorism and cases of specified heinous offences not amounting to terrorism but triable by an Anti-T errorism Court has already been recognized by this Court in the cases of Farooq Ahmed State and another (2020 SCMR 78), Amjad All and others v. The State (PLD 2017 SC 661) and Muhammad Bilal v. The State and others (2019 SCMR 1362 ). It has been clarified by this Court in those cases that such specified heinous offences are only to be tried by an Anti- Terrorism Court and that court can punish the person committing such specified heinous offences only for commission of those offences and not for committing terrorism because such offences do not constitute terrorism". 49. In case of Amjad Ali and others reported in PLD 2017 SC 661 the capital sentence was maintained under section 302, P.P.C. while conviction under section 7(a) of A.T.A., 1997 was set aside with observation that the case was rightly tried by Anti-T errorism Court, same view was taken by honourable Supreme Court while maintaining capital sentence under section 302, P.P.C. by setting aside sentence under section 7 of A.T.A., 1997 in cases reported in 2020 SCMR 78 and 2019 SCMR 1362 . 21. It appears that the learned ATC has come to the correct conclusion that the offences so charged did not fall within the purview of section 6 of the ATA by placing reliance on Ghulam Hussain's case (Supra) but appears to have erred in finding that it had jurisdiction to try the cases and render a judgment under the P.P.C. even if the case did not fall within the purview of section 6 of the ATA based on the fact that the offences so committed fell within the definition of a scheduled offence (which the learned trial court referred to as specified cases involving heinous offences) under the ATA by relying on the cases of Farooq Ahmed v. State and another (2020 SCMR 78), Amjad Ali and others v. The State (PLD 2017 SC 661) and Muhammad Bilal v. The State and others (2019 SCMR 1362 ). 22. The trial court rightly concluded that other types of heinous offences/cases not falling within the definition of section 6 of the ATA could still be tried by the ATC under the ATA and sentence handed down on conviction under
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the ordinary law (not under the ATA) and the ATC would have the jurisdiction to try these heinous offences which are referred to in the ATA as scheduled of fences. 23. The question therefore arises whethe r the offences/cases which the ATC convicted the appellants under the P.P.C. did fall under the definition of a scheduled offence under the ATA which would give the ATC the jurisdiction to try and decide such cases. 24. A scheduled offence under the ATA as per section 2(t), A.T.A. is defined as an offence as set out in the third schedule of the ATA. The Third schedule is set out below for ease of reference: THE THIRD SCHEDULE (Scheduled Of fences) [See Section 2(t)] (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 of fence punishable under this Act. (3) Any attempt to commit, or any aid or abetment of, or any conspiracy to commit, any of the aforesaid of fences. (4) Without prejudice to the generality of the above paragraphs, the Anti-T errorism Court to the exclusion of any other Court shall try the of fences relating to the following, namely:- (i) Abduction or kidnapping for ransom; (ii) use of fire-arms or explosives by any device, including bomb blast in a mosque, imam bargah, church, temple or any other place of worship, whether or not any hurt or damage is caused thereby; or (iii) firing or use of explosives by any device, including bomb blast in the Court premises. 25. Thus, the ATC court has rightly found that it can decide cases falling within the Third Schedule of the ATA even if they do not amount to terrorism however we find the reliance of the learned trial court on the authorities mentioned above to be misplaced keepi ng in view the particular facts and circumstances of this case and the particular facts and circumstances of the cases relied upon when read with the Third Schedule at serial No.4 (1, 2 and 3 having already been ruled out as section 6 is not applicable to the instant case by both the trial court itself and this court in this judgment). 26. This is because the offences referred to in the judgments relied upon fell squarely within the ambit of the Third Schedule at serial No.4. Namely , they were offences committed in religious places or court premises (Farooq Ahmed (Supra) concerned firing at a Court premises, Amjad Ali (Supra) concerned firing at a mosque and Muhammad Bilal (supra) concerned firing at a court premises. However the case before us does not meet any of the situations mentioned in the Third schedule at serial Nos. 1, 2, 3 or 4 and as such it appears extremely unlikely that the learned ATC had jurisdiction to decide these cases. Having found that the learned ATC was extremely unlikely to have jurisdiction to decide The cases the next issue is what are the legal consequences which follow . 27. On the basis that this court found that the concerned ATC had no jurisdictio n to hear the instant cases all learned counsel including the learned amicus curiae submitted that the legal consequences which should follow was the remand of the case to the ordinary trial courts except learned APG'who contended that based on the cases which he had relied upon the ATC could still hand down judgments under the P.P.C. They all…
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