REFERENCE MADE BY ATC NO XVI KHI (Appellant) VS ASI TARIQ KHAN S/O JAMSHED (Respondent)

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IN THE HIGH COURT OF SIND H, KARACHI

Present:

Mn f ustice Mohammail Kaim Khan Aght Mr. J ustice Arshail Hussain Khary

SPL. CR. A.T. APPEAL NO.196 OF2O2O

CONF. CASE NO.O8 OF2O2O

Appellant: Tariq Khan son of famshed Khan through I\,I/s. Aamir Maneoob Qureehi and lftikhar Ahmed Shah, Advocatee Respondent: The State through Mr. Muhammad Iqbal Awan, Additional Prosecutor General, Sindh.

sPL. CR. A.T.IAIL APPEAL NO.204 OF 2020 Appellant: Ali Eidan son of Eidan, through Mr. Amir Saeed Channa and Mise.

Murik Nizam Shaikh, Advocatee Reapondent: The State through Mr. M uhammad Iqbal Awan, Additional Proeecutor General, Sindh.

sPL. CR. A.T. ACQUITTAL APPEAL NO.209 OF 2020 Appellant: Sher Muhammad 8on of Muhamrnad Fazal through Mr.

Muhammad libran Naeir, Advocate Respondent: The State through Mr. Muhammad Iqbal Awary Additional Prosecutot Gener Sindh.

Amicus Curiae Appointed by the Mr. Mehmood Akhtar Qureshi, Court in all appeals: Advocate Date of Hearing: 07.72.202L and 09.72.2021 Date of Announcement: 23.12.202L ru DGMENT MOHAMMAD M KHAN A HA, I:- The appellant namelY Tariq l(han has assailed the impugned judgment dated 27.77.2020 passed by the Anti Terrorism Court No.XVI, Karachi in Special Case No.562 of 2018 (New Special Case No.22 of 2018) arising out of Crime No.91 of 201.8 under section 302/34PPC r,/w section 7 ATA7997 registered at PS Shahrah-e-Faisal, Karachi whereby he

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was sentence d u/ s.265-H(2) Cr.PC for causing death of the deceased Maqsood by hring, punishable u/ s.302 PPC, 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 /- (tuo lac) to the legal heirs of deceased u/s.54LA Cr.PC and in default of such payment he shall undergo SI for six months more' t He was extended the benefit of 5.382 (B) Cr.PC.

2.Appellant Ali Eidan has filed an appeal from jail impugning the judgment dated 24.17,2019 arising out of FIR No.41' of 2078, under Section 302/324/g5g/170/177/34 PPC r/w Section 7 of ATA 7997 rcgistered at I€ Shahrah-e-Faisal, Karachi whereby the appellant Ali Eidan was convicted for offence u/ s.265-H(2) Cr.PC as under:-

D Th" accused Ali s/o Eidan is hereby convicted f9r th9 offence u/s.S24PPCandheisherebysentencedtorigorousimprisonment 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 u/s'353 Pf'C and he is sentenced to undergo rigorous imprisonment for two-(02) years and with fine of Rs.10d00/--and in case of failure to pay the fine, he shall serve SI for three months more;

iii)The accused is hereby convicted for the offence u/s'400 PI'C and he is hereby sentenced tb rigorous imprisonment for ten (10) years and with fine of Rs.1,0O000 /- and in case of failure to pay the fine' he shall serve SI for six months more;

The accused is hereby convicted for the offence u/ s'777 Pf'C and he iv) is hereby sentenced to rigorous imprisonment for three (03) months;

v)The accused is hereby also convicted for the offence u/s'322PPC and is liable to pay Diyat amount to the legal heirs of the deceased; he shall remainln'cusiody until the payment of Diyat amount' The accused is hereby also convicted for the offence u/s'23(I)

SAA

vr) for ten (10) 2013 and sentenced tt undergo rigorous imprisonment to pay the fine' years with fine of Rs'50000/-"and in case of failure he shall serve SI for six months morei The benefit of section 382-8 Cr'P'C was also extended in favour of the accused.

acquittal of

3.The complainant Sher Muhammad filed an appeal against Khan son of Respondents/accused Persons Tariq son of Jamshed !Gan' Akber v Muhammad Yousuf, Abdul Waheed son of Shabeer Ahmed and PC Shaukat Ali

s/o Muhammed Ashraff who were acquitted by the Anti-Terrorism Court of respondents No.XVI Karachi for offences under the ATA and PPC (in resPect

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Akber Kharu Abdul Waheed and PC Shukat Ali) vide its judgment dated

4.The brief facts of the prosecution case as per FIR No'91. of 2018 lodged by the complainant Sher Muhammad s/o MuhammadFazal 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 am brother'of Rauf came to his house and informed his daughter 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 encounter 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 shiJted to Sahiwal where he was buried. on 25.01.2018 accordingly he reached at Karachi and Iodged the FIR against the above named police officer'

5.The brief facts of the prosecution as Per FIR No'41 of 2078 lodged by complainant syed Ali tlassan, sHo of shafuah-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 inrormation the complainant reached the place of incident where constable shoukat Ali injormed 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 their to stop one motorcyclist who did not stop meanr'vhile they also tried to stop the rickshaw but rickshaw did not stoP, they opened fire upon them resultantly rickshaw overfurned, He pointed out towards the persons who were lying there

on the road were the same who stopped their rickshaw and made firing upon

themowingtowhichtheRickshawdriverandhisfriendreceivedfirearm

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injuries. The police arrested the accused who disclosed his name as AIi 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 OPPTO mobile phone and cash Rs.200/- were also recovered. The second injuted accused disclosed his name as Babar Ali s/o lamal 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 9f 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 three rounds in magazine and one round in chamber, one black colour torclU one black colour dummy walky-talky set whereat HOM was inscribed, two police uniform shirts, one brown Paint/ two Police caPs, two number plates of car No'LED-8948' one white tape, tluee empties of 30 bore and three emPties of. 222 rifle wete recovered. Accordingly FIRs were lodged against the accused persons. During investigation of the case, Maqsood succumhd 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 ordeled and the FII{s were challoned 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 oI denied accused persons were recorded under Section 342CI'P'C in which they all the allegations leveled against them. After appreciating the evidence on record the trial courts convicted the appellants and acquitted some of the judgment respondents and sentenced those convicted as set out earlier in this 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' t

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8.The facts of the case as well as evidence produced before the hial court find an elaborate mention in the impugned judgments dated ?11.77.2020 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' g. At the very outset learned counsel for the appellants contended that the Anti-Terrorism 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 01.72.2021 framed the following legal issues for determination;

i)Whether the concerned court had iurisdiction to try the offences 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 iurisdiction to try the offences ao charged.

72.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 offences.so charged scheduled offences 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 (2002P. Cr.L! 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' v' The State and others (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 2072

v sindh 119), Muhammad Bilal alias sulleman v. Federation of Pakistan through the Secretary Ministry of Law, ]ustice and Human Rights Division and 3 others (P. Cr.Ll 411) and Muhammad Sharif v. )udge, Anti-Terrorism Court and 5 others (2012 YLR 2448).

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74.Learned amicus curie 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 4}7),Farooq Ahmed v. The state and another (2020 scMR 78), Muhammad Bilal v. The state and others (2019 SCMR 7362), Amiad Ali and others v. The State (PLD 2077 Supreme Court 561), Ali Nawaz and 5 others v' The State and 2 others (2021, P CI.LJ 909), Murad Ali Bagalani and 5 othere v' The state (2o1gP Cr.Lf 95) and Shahbaz Khan alias Tippu and others v. special ]udge Anti-Terrorism Court No.3, Lahore and others (PLD 201'6 Supreme Court I).

15.Learned Addl. 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 itcould still pass judgment in

respect of the PPC 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 Terrorism Act, 1997 (Preeided by Sardar Mashkoor Ahmed)' Camp At Dharampura, Lahore (2000 SCMR 1086),Iiaz Ahmad v The State (2009 SCMR 99), Syed Muehahid Shah v Federal Investigation Agency (2017 SCMR 1218)' Waris Ali v The State (2017 SCMR 1572),Tahir Mehmood @ Achoo v The State (2018 SCMR 169), Shah Nawaz v The state (2020 MLD 466) and sararish Ali v The State (2020Ildl-D 474).

76.Learned counsel for the appellants in the appeal against acquittal of 'the respondents however has contended that based on the particular facts and judgments circumstances of the case the learned trial judge in both impugned lacts has wrongly concluded that the olfences so charged based on the particular 6 of and circumstances of the case do bring them within the purview of section 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' v' Muhammad Arif and 3 others (PLD 20-12 Sindh 119), Munawar Hussain ]udge ATC II, Lahore (2077 P CI.LJ 46),Abdur Rab alias Ali Akber and others v. The State and others (201.8 P Cr.LJ 7313), IJ:aq Shafqat v' The State and 2 others (2018 P CI.LJ Note 22), Muhammad Umer Mangrio v' The State

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MLD 18L3), Muhammad Bilal alias Sulleman v. Federation of Pakistan through the secretary Ministry of Law, and Human Rights Division and 3 |ustice others (P, CI.LJ 477),Muhram Ali and others.v' The State and others

(201'6P

Cr.Li 961), Shahbaz Khan alias Tippu and others v' Special |udge Anti',

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Terrorism Court No.3, Lahore and others (PLD 2016 Supreme Court I) and Sadiqullah and another v. The State and another (2020 9CMR1'422)'

12.Having heard the parties, perused the record and considered the relevant Iaw 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 Terrorism Act7997 (ATA) to transfer the case from the

ATC court to the court having ordinary jurisdiction as this was not an ATC case

decision remained undecided (such application being liled shortly after the latest by the Supreme Court in the case of Ghulam Huseain V State (PLD 2020 SC 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 ttris

respect reliance is placed on the case of Shaikh Muhammed Amiad V State (2002 P.Cr.LJ 1317 (Kar) which held as under at P.1353 and 1.354 whilst relying on

a number of Supreme CourtJudgments;

-45. On the other hand, Mtr' Raia Qureshi' ,le-arned Adaocate-General,Sindh,andMr,llyasKnn,lea.rned.Sp,e-cial Public Ptosecutar, submitted that the appellant could subm.tt nn application iefore' the A'T'C' under seciion 23 of tht A'T'A' for not ttansfer of tli cote to the Court haoing juisdiction.but ,it ?as done, anil iirrpn, the appellant cannit'be allowed to take this plea at the appellai stage. Wi are not persuailed to 48tee utith the submission becautre the question of iuisdiction is a question of lau: qnil can alutays be taiseil by.any P"ry :! *ny.:tqge incluiting the appeiL Horoeoer, i/ the obleyfon. to the iurisdiciion is tiien at appellate stage lt-should .not,inttolzse 'tecoiling of on the basis of fufiher eaiilbnce anil sioulil be material it iriai aoailable on record' We ate' further of the

opinion that so far, the question of jurisdiction. of o..,C:,1-" it cionctrned, a Couit itself is requiredbefore proceeding with the,case to examine iither ithas iuisdiction in'law to proceed with the has not takcn case or not. Ivfetety because'a par$ to the proceedings any obiectiin to itu iu'ismciion,'out of ignorancc or for want of proper'adaice, shall neither debar a pmly frory taking such-o-bjection at the appeiki ,t'g' no' the silencc ofl'party o.r ea:: waiuer,shall added) confer juisdictionin a Court not oested in it in law" ftold I 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 which held at Supreme Court in the recent case of Ghulam Hussain (Supra) P.13L Para 16 as under;

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4sr ,,For what has been iliscussed abooe it is concluded and declared that for an action or threat of action to be accepted as terroism within the meanings of section 6 of tfu Anti-Terroism Act, 7997 the action must fall in subsection (2) of xcion 6 of the said Act and the use or threat of action must be- -*:hin clause (b).of itesigned to aihieoe any o/ the obiectioes specifed subiction (1) of section 6 of that Act or the use or threat of such action must be to achieae any of the pur7ose mentiotud in clau* (c) of subsection (1) of section 6 of thai Act. It is claifieil that any action constituting an offence, howsoeaer graoe, shocking, brutal, gruesofle ot honifying, does not qualify to be termeil as tertorism if it is not with the-desigi or purpose specifieil or mentioneol in "o*iittid clauses (b) or (c) of subseition (7) oI section 6 of the said Act' lt is clarifieil tiat the actions specified in su,bsection (2) of section further

of that Act ilo not qualify io be labeleil or characteized as teiorism if such actions'are iaken in furthetaflce of personal mmity or pioate aendetta," (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 by section 6 of the ATA so as to make them acts of .terrorism which could be tried the ATC. This has been acknowledged in both the impugned judgments in similar terms. For example the impugned judgment dated 2\'77'2020 finds as under at para's 48 and 49 -48. Admittedty the accused is not previous ciminal they y-e pa.ile ofiaAs anil committed the offence of muriler by exaggerating the use of fotce illegally' As- abo.tte whether fall far juisdiction oy iiiit couit regarding the-;ffences--aiscussed undcr ATA or not, the onrri, of tie same in absence of mothte' .design yl which intention o7 accusei regarding teiorism as stipulated in Section-5T)@)(b) is sine qu'a non ftt fit rcUig the iuisdiction'f AT.A 1'9.97.is mis,sing in this giuen by-h7no1abl.e Supteme case; heice in the light of def"nitioi of tenorism'as Court in case of Ghilam Hissain reported in PLD 2020 sc 67, the instant use does not fall uia", *r" offences of ATA, L997' In thc light of.the cye of Ghulam Hussain(supra),,,,th"casesnotfallingunderthedefinitionoftenoism,arc yet to be tiauie bv ATC Courts, but sich courts cannot conaict the accused "under at Page' Special Law"as has been held in Ghulnm Hussain case in para-73 '125 as under:-

"A careful reailing of the Third Schedule shows thnt an Anti- Terroism C.ouft fus'bua conferred iutisdiction not only to try all those ffinces which sttract the defnition of terro.ism prottided Uy"*re ect but also some other spe-ciferl .cases intt.ohting 'heinous oXrnrrt which do not fall in the said definition.of terroism'Forsuchlattercategoryof'casesitwasprollidedthat although those ffinces may not anstitute terroism yet such l offencis mau be tied by an Anti-Tenoism Coutt for speedy tial ii such liinou, olfeices. This distinction between cases of ierrortsm and casei'of specified luinous ofrnu! not amou.nting to terroism but tiaite by in Anti-Terroism Caurt has already o' been recognized by this iourt in the cases of Eercoq Ah.meil State anil arrothA Q020 SCMR 7l),'Amiad Ali anil othets o' The State (PLD 2077 SC 667) qnd Muhammail Bilal *',

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State anil otherc (2079 SCMR 7362). It has been clanfed by this Court in those cases that such specified heircus offences ate only to be tied by an Anti-Terroism Court and that court can punish the person committing such specifed heinous offences only for commission of those offences and not for committing .furroismbewuse such ffinces do not constifute tettoism".

49.In cnse of Amiait Att I Othets reporteil in PLD 2077 SC 667 tlu capital sentence was maintained u/s 302 PPC while conaiction u/s 7(a) of AfA, 1.997 was set aside with obseroation that the case was ightly tried by Anti- Terroism C-ourt, same oiew was taken by honourable supreme Court while maintaining capital sentenct rls 302 PPCW setting aside sentenu unilet section 7 of ATA, ISSi i, cases reported in 2020 SCMR 78 and 2079 SCMR 7362'

27.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 PPC 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 offencc (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 AIi and others v' The State (PLD 2017 SC 661) and Muhammad Bilal v. The state and others (2019 SCMR

22.The trial court rightly concluded that other gPes 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 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 scheduleil oflences.

23.The question therefore arises whether the offences/cases which the ATC convicted the appellants under the PPC did fall under the definition of a scleduledoffence undetthe ATA which would give the ATC the jurisdiction to try

and decide such cases.

t 24. A scheduled ffince under the ATA as per Section 2(t) ATA 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:

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THE THIRD SCHEDULE

(Scheduled Offences) [See Section 2(t)]

(1)Any act of terrorism within the meaning of thisAct incl.uflS those offencei which may be added or amended in accordance with the provisions of section 34 of this Act.

(2)e.y other oflenie punishable under this Act'

(3)Any attempt to commit, or any aid or abetrnent of, or any conspiraiy to commit, any of the aforesaid offences' (4) Without prejudice to the generality of the above paragraphs' the Anti-Terrorism Court to thJ exclusion of any other Court shall try the offences 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, imambargah, church' temple or any other place of *o.thip, 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 rightty found that it can decide cases falling within the Third Schedule of the ATA even iJ they do not amount to terrorism however we find the reliance of the learned trial court on the authorities and mentioned above to be misplaced keeping in view the particular facts of the cases circumstances of this case and the particular facts and circumstances relied upon when read with the Third Schedule at serial No'4 (1'2 and 3 having case by both already been ruled out as section 6 is not applicabte to the instant the trial court itself and this court in this judgment)'

26.This is because the offences referred to in the judgments relied upon fell NamelY' they squarely within the ambit of the Third Schedule at serial No'4' (Earcoq Ahmed were offences committed in religious places or court premises at a (hupra) concerned fiing at a Coutt premises, Amiait Ali (Supra) concerned fiing premises' However moique anil Muhammad Bilal (supra) concemed fiing at a coult in the Third the case before us does not meet any of the situations mentioned 'scheduleatserialNo,sl,2,Sot4andassuchitappearsertremelyunlikelythat the learned ATC had jurisdiction to decide these cases' t Having found that the learned ATC wae extremely unlikely 1" liJ" jurisdi"ction to decide the cases the next issue is what are the legal consequences which follow.

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27.On the basis that this court found that the concerned ATC had no jurisdiction 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 telied upon the ATC could still hand down judgments under the PPC' They all conceded with upmost deference and respect, including the learned APG, that the cases cited by them including the learned APG concerning the knocking out of the ATA convictions when the cases were tried by an ATC court and therealter sentencing the accused under the ordinary law were all passed prior to Ghulam Hussain's case (Supra) which has now changed this jurisdictional position and the abiliry to hand down sentences for offences under the PPC only as it specifically restricted the

jurisdiction of ATCs to offences under the ATA.

28.They also conceded with upmost deference and respect that in those cases no serious challenge had been made to the ATA provisions and in particular when they were found inapplicable no arguments had been heard or the considered on what would be the legal consequences of the ATC hearing caseandpaesingajudgmentdespitehavingnolawfuljurisdiction.Following and Ghulam Hussain's case (Supra) it seems to be with uPmost deference quite apparent that the ATC cannot hear and decide a case unless it falls respect within Section 6 of the ATA or is a scheduled offense and right up to the time arguments it can and must (especially as the language used in when it hears final section 23 ATA is mandatory and not directory) transfer the case to an ordinary the case court for decision iJ based on the particular facts and circumstances of 6 ATA or is a and evidence so recorded it neither falls within the ambit of section scheduled offense under the ATA.

29.Furthermore, with upmost deference and respect to allow offences which defeat tire did not fall within the ATA to be tried and decided by an ATC might courts and would purpose of establishing an ATC as distinct from the ordinary of case not have lead to the necessity of the Supreme Court clarifying the sort which can be heard by the ATC in Ghulam Hussain's case (Supra)'

30.The question might also arise in terms of Articles 4 and 25 of the by a special Constitution why a case triable under the ordinary law was tried under the ATA court (ATC) under a special law (ATA) especially when offences are not compoundable and debar remission' It might be argued that no harm has

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L4 8l been done,/prejudice caused to the accused by passing sentence under the ordinary law by an ATC but then what would be the purpose of Section 23 ATA or why not make all courts in which PPC offences have beerr committed additionally ATC courts and have no ordinary courts so as to enable ATC to try both PPC cases and ATC cases and then hand down a sentence based on whether the offence was found to fall within the ATA or PPC. This was clearly not the legislative intent. In this respect it is notable that offences not falling within the ATA can be tried by the ATC provided that they are Part of the same transaction as an offence falling within the ATA. For example, a murder is committed which falls within the purview of the ATA and at the same time an unlicensed firearm is recovered from the accused from his arrest on the spot after the murder. Under these circumstances it makes complete sense to try both the offences together in a joint trial one being an ATA offence (murder with design, PurPose and intent to create terror) and the other being a non ATA offence i.e possession of an unlicensed firearm under the sindh Arms Act 2013 (SAA) as this will serve the ends of justice by assisting the court in ascertaining the true facts and circumstances of the case to enable it to reach a just and fair decision after appreciating the evidence on record as contemplated by Section 21 (M) ATA which ties in with sections 77 and 19 of the ATA in terms of the procedure to be followed and powers to be exercised by the ATC whilst hearing such cases' The ATC can then convict for the murder under the ATA and also convict for an offense for the unlicensed weaPon under the SAA which is not an offence falling within the purview of the ATA. For offences under the ATA also being tried along side non ATA offences but linked/connected to the offence under the ATA reliance is placed on the cases of The State V Muhammed Asif (Supra) and Munawar Hussain (Supra). significantly, there is no provision in the ATA for a non ATA offence to be tried exclusively by an ATC i'e an offence not falling within the purview of Section 6 ATA or bein g a scheduled ffince under the ATA'

31.Learned counsel for the appellants contended that the case should be remanded back to an ordinary trial court which should conduct a de novo trial especially as according to learned counsel for appellant Tariq Khan the appellant

was not initially charged under the ATA but under the ordinary law by the ATC

ATA

5 which then apparently switched the charge and surreptitiously added the earlier section to the charge. He produced a certified photo copy of this so called charge without the ATA sections which had been replaced unbeknownst to the

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appellant and as such the appellant did not know the charge which he had to defend himself against.

32.Learned APG, learned amicus curiae and leamed counsel for the appellant in the appeal against acquittal contended that the case should be remanded back to the ordinary trial court which should only hear fresh arguments in the matter and then re write the judgment based on the evidence on record whilst ignoring any question and answer (if any) in the appellant's 5'342 Cr'PC statements this court concerning any acts of terrorism since it has already been decided by that these were not cases which the ATC had the jurisdiction to ffy. Learned reliance,on amicus curiae in support of his contentions in this respect has placed the cases of Muhammad Yaqoob v. The State (PLD 2019 Supreme Court Tahir Mehmood @ Achoo v. the State and another (2018 SCMR 169), Warie Ali and 5 others v. The State (2017 SCMR 1572), Kashif Ali v' The ludge' Anti' 951)' Ch' Terrorism Court No.II, Lahore and others (PLD 2076 Supreme Court and Khuda'e' Shaukat AIi v. Haji ]an Muhammad and others (2017 SCMR 533) Noor v. The State (PLD 2016 Supreme Court)'

33.We have given careful and anxious consideration to the contentions of the dealt with' parties to which stage the cases should be remanded to or otherwise S4,Withregardtothecontentionthattheoriginalchargehadbeentampered we find with we do not find that this would legally justify a de novo trial' Firstly of the so called this contention as some what of an after thought as no original mentioning "original charge" from which the certified copy allegedly came not never the ATA was found with the R@Ps and even otherwise the appellant throughout the made any obiection to this so called tampering with the charge trial despite it happening at the very outset of the trial' Even if it were the case the case) we do that the charge was tampered with (which we do not find to be on the not find such tampering to be of any particular significance based is because secondly particular facts and circumstances of the instant case. This the so called original charge apparently did not include the ATA however in our

viewthismakeslittle,ilanpdifferenceastheappellantwasnotconvictedunder the ATA. Thirdly, even if there was no mention of the ATA in the so called * exactly the same tampered with charge all other parts of the charge remained andassuchtheappellantwasonfullnoticeofthecaseinwhichhehadtodefend no prejudice was caused to him' Fourttrly when the char€ewas, himself and thus

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amended to change the date of occurrence it made specilic reference to offences under the ATA.

35.We must also consider this aspect of the case from a practical as well as legal perspective. For example, if after recording all the evidence in the instant

cases but before hearing final arguments the trial court could have b:ansferred

this case under the ATA to the ordinary court.for hearing if the learned trial and the judge came to the conclusion that he had no jurisdiction to hear this case case then on such transfer to the ordinary courts it would have proceeded before have been no the ordinary court at the stage of final arguments' There would need to conduct a de novo trial or re record any evidence. The ordinary court

having competent jurisdiction would have simply heard final arguments and

pronounced judgment.

g6.Incapitalcaseswhenacertainmaterialwitnessisnotcrossexamined'by occasion sets aside the one of the defense counsel of the accused this court on impugnedjudgmentandremandsthecasebacktotheconcernedtrialcourtfor thelimitedPurposeofrerecordingtheevidence(evidenceinchief,cross the accused defense examination and re examination) of that wihress before commencing a de novo counsel and thereafter rewriting the judgment without prejudiced in trial as in such circumstances the convicted accused has been case the appellants have not respect of only one witness whereas in the irutant justilication for ordering a de been prejudiced at all. There is neither any need or novo trial in such cases.

he has to

37.In this case once we find the charge conveys to the accused what defendhimselfagainstwhichwefindithasdoneandthattheevidencewas before an ordinary court recorded in accotdance with law as it would have been and has been we find that the accused has not been prejudiced at trial guaranteed his full due process righe as laid down under Article 10 (A) of the

Constitutionandassuchthereisnolegaljustificationforremandingthecase would only,leave the back for a do novo trial which if taken as a precedent accused in jail longer and completely clogg up the work of the trial courts and

delaytrialsbeingheardwhichwouldnotbeintheinterestsofjusticeandassuch , legal way out can be found' we find that both the cases should, unless any other purpose of hearing final be remanded to the concerned trial court for the arguments.

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38.In this respect in the case of Muhammed Bilal V Suleman (2011 RCT.LJ 411) which was decided by a Division Bench (DB) of this court in a case where it was found that the ATC had no jurisdiction to hear the case but still handed down a conviction under the PPC it was held as under at P.415;

"9. Once tlu Anti-Terroism Court fus tied tlu ofena and has not made out, formed an opinion that the case of scheduled offence is in terms of section 23 it will hatte no iuisdiction to pass any judgment -the in the case rather the same usill haue to be ttansfened to Court haaing juisdiction under the Code wlw will ptocted with the tial of the off nn ot if it had taken cognizance of the oflenu.

1,0.In the prcsent case, though the Anti-Terorism Cgurt was trying ffince uniler section 6 o/ the Act but at the final cinclusilon caffie to an opinion that the offence undet sectiotl 6 of the Act has not been prooeil anil thus-ihoppeil the charge uniler the saiil section, The Court, howeoer, c*fi'e to conclusion that charge of section 507, PPC has been ptoaed against the petitioier and by inaoking -the ptooislon of siction ll of ihe Act proceeileil to conaict the petitioner under sectlon 50i PPC, it ought not to haae ptoceeiled to conoict and sentence the petiti1ner for the reasot' that section 23 of the Act itself itoei not gioe iuisiliction to the Anti'Teroism Court tu piss iuilgmit oi case of a non-scheduleil o[e1tc7' In the casi of iasiiMasih u. The State and another Q008 PCr'LI 713), a FulI Bench of I'ahare High C'ourt has -obseraed that mere ,o**rno*rnt of triit is not a giund fot disallowing the prayer of the petitioner as under section 23 of-the Act, Anti-Tenoism Court i, io* of non-schcduled offence is duty bound to transfer in to tlw Caur t of or dinary i urisdictio n.

11.In oiew of this bgal position, only tesult.thnt.can follow ftom it is that the i*pugnei iu'dgment is without iuisdiction and nullity in the eye of lnw and cnnnotbe maintained'

72.Haoing cotne to such conclusion the next point that needs- to be coniileted is as to what is to be done about impugnyl juilgmmt, uhich as iliscusseil aboae, has been founil to be 'wiihout jurisilictiotr and nullity in the eye of remedy !1*'The ls by way of an against ihe idgment of Anti'Tettorism Court ipp,eat to ihe"ttigh iowt uniler Section 25 of the Act for *irirh th, limitaiion period is fifteen ilays lrom the passing of smtence. Thus, in otilet to do complete iusticebetween the i"in anil to gioe effect to manilate of laty, ute comtert this Constitutionat* p etiiion into Special Anti'Terroism Appeal' fnoigl, the appeal is time'baned but as the oery iyag:1:tt o! AntiTetroriim Coutt is without iurisiliction anil nullity in thc eye of lau, no limitation against such iuilgwent will run igoi;;t ihe appellant. In this iespect-teferelce is maile to the o7 Muiammail Sharif a The State Q005 PCr'LI 947) , "Zu (supra).

73.We, theteJote, allow this appeal set asiile.the impugneil iuagnent anil remanil the mattet back to the Anti-Tertotism 'ioi*-t, Karachi for ttansmitting the 7rye to the Court of iiiiioitjiisq Kor""hi-south fot trial in accorilance with lau." (bold added)-

I

hls

39.Another DB of this court recently in the case of Muhammed Ahmed Siddiqui V Abdul Abid (PLD 2021 Sindh L) albeit in a civil case where it found that the concerned court had no jurisdiction to hear and decide the case rejected the idea of a de novo trial and instead sent the case to the correct court to decide without the need of re recording any evidence at P.13. pata 16 in the following terms;

'1.6. The judgment is ba*d on effofleous reasoning and inarect expositioi ofiaw therefore the impugud iudgment and deoee daled si-0s-20rc" are set sidc. Since the eoiilmce has aheady been rccorded thereJore to saoe time anil aztoiil fu*hcr protructeil litigation, wi ilo not ileem it apptoryrtl! b ilircct de nooo triil, howeoel the matter is remanileil back to the learueil District anil Sessions luilge, Karachi, Cenfial to conslgn the matter to the concerned. Senior Cioil ludge as on otilinary suit for ileciston on metlts aftet consiilaing the pleailings and widence lead by the parties." (bold added)

40.Another DB, except this time from the Peshawar High Court, in the case of Muhammed Faizan V The state (2016 P.Cr.LJ 894 in similar circumstances to the instant cases where it was argued that a de novo trial should be held the court came to the conclusion that this was not necessary and that the case be transferred to the ordinary courts to be continued from the at the stage of final arguments without re recording any evidence at P.882 in the following terms at para's 5,6 and 8;

"5. The woril ,shall' useil in the section leattes no discretion tpith the Anti' Terrorisms Court once it fotms opinion that the offence is-n9t l scheiluleil offence.Inthiscase,theteisnoiloubtthattheleatnedAnti-Tenoism tlourt formeit the opinion that the offetces werc ,rot scheduleil offences, therefore, it zoas iniumbent upon the learneil ludge Anti-Terrorisms court to iansfer the carse for trial to the Courtt of oriinary iuris.iliction. The language of the sechon is also clear with regatil to the stage.uhen the i, be transferteil unilet the prooision, uthich is a/ter taking "ai cognizance of the iffence by the Anti'Terrorisms Court' Oboiously' not oily cognizin", *i, takei by the Anti-Tetro sms Coutt' but trial uas alsoconilucteilanitjuilgment"wasrenilereilontheconclusionoftial.

6.Hatlingsaidthat,wefoundnosecondopinionaboutremandoft|ucasetothe Coufi of 1rdinary juisdiction undtr tlu Cr'P 'C' for proueding with. tial of the offencei as if it fiid tukcn cognizance of t!-case' lt may not be out of place to on-'ttrotts.premix while I i\int out hire that the learrid ludge,"ATC, proceeiled 'hotding that superior Courts hid i'aa'a cases under orilinary,law -w.ithout de noootrials,astherewasdifferenceindecisionofcasesinappealanddeciqionat the trial stage. enyhoii it is an established principle of .l7w that a pissed without iurisiliction is nultity in tle ye. o/ laro' There iuilgment 'wai also coflseflsus that tie learneil fudge, ATC, arioeil at the conclusionn l6

LI?LI

that the offences with which the accuseil were not scheiluleil offenccs while rccoiiting iuilgment, therefore, thete was no neeil o/ ile noao trial, anil the oritiniry C-ourt,sas to proceed with the case from the stage of final decision,

7.Thzre were, howeuer, luated arguments whethtr the accused would enioy tlu pre-judgment status i.e, to remain-on bail or confine in jail, or their conoiction |n 'the'cai and sentence awarded to them would hnae any beaing on tluir erstwhile status, but the arguments endeil on the agreed note that with setting asidc _the judgment, conttiition and sentence, the-accuseil would reoert back to theit pre-judgment posi tion.

8.In oiew of the forgoing discussion, the impugrcd iudgment dated 05'03'.20.75 of the learned luige,-AT'C, Abbottabad is xt asiile, togelut yith try conaiction ind sentences'thireunderi anil the case stands transfe*eil to the Coutt_ of learneil Sessions fuilge, Mansehra, /or ilecision aftesh afier prottiililg opportunity of heaing to the parties." (bold added)

41,. In the cases in hand even at the time of final arg'uments the ATC could have transferred these cases to the ordinary courts if it was of the view that the

cases did not fall under the ATA and they would have continued at the stage of

final arguments without the need to re record any evidence thus to us it is quite within logical that having held that it was extremely unlikely that the cases fell the ambit of the ATA and unless another legal way out can be found ,the cases

have been transferred to the ordinary courts for the limited purpose of ought to hearing final arguments and then rewriting fresh judgments' A Legal Alternative to remand.

42.There might yet be another legal alternative, as opposed to remand' of convicted dealing with such type of cases where an ATC has tried a Person and ambit him for an offence under the PPC which prima facie did not fall under the of the ATA and which prima facie the ATC had no jurisdiction to hear and decide keeping in view the following factors;

(a)onaccountofthedefinitionofanoffencefallingunderSection6ofthe ATA since Ghulam Hussain's case (Supra) it has become in many casesincreasinglydifficultfortheATCtodeterminewhetherthecase is one whicn iils within the purview of the ATA unless it is a scheduled offense not in the Third Schedule and not falling within Section6ATA.Thus,iJtheATCconvictsanaccusedundersection6of the ATA or for a scheduled offence the situation may arise' as in thie jurisdiction i'e , case, of the appellant first arguing on the point-of court on whether the ofience fetl within the purview of the ATA' If this appeal was to find that the offence so convicted was not an ATA oifl.,"" but onllan offence under the PPC which could not be tried by the ATC as it'lacked jurisdiction then in a number of appeals this to would result in the case being remanded back to the ordinary courts re hear arguments and then re write the judgment' r-

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(b)This would result in the already huge back loq of criminal cases growing further before the trial courts which would further delay the iecldin! of criminal cases which would leave the accused rotting in jail for even longer before there appeal was decided'

(c)The reality it apPears is that in a majority of cases where the ATA offences were knocked out of the charge by this court on appeal and which were sent back to the ordinary courts to re hear final arguments and then re writing the judgmentt tn" pag*"nt is extremely likely to be the same except the lori't i.tiot would only be under the ordinary Iaw (i.e PPC) and not under the ATA since logically if an accused is u"qritt"d of the ordinary offence then it would have most probably followed that he would also have been acquitted under the ATA however when an accused is convicted under the ATA he is usually convictedundertheordinarylawforPlaCoffencesreadwiththeATA he as well so logically iI he is convicted df the ordinary PPCoffences willstillbeconvictedofthesameoncethecaseisremandedexceptnot beingreadwiththeATA.Thisisbecauseinessencetheactusreusand mens rea of the ordinary offence have already been proven I:1 tr" additional special mens rla/r"q,rirements (design, P:?ot: *1i":""0 for terrorism will simply be lacking as defined in the ATA as (Supra) interpreted by the Supre'rne Court in Ghulam Hussain's case

(d)The question then emerges of what useful purpose or benefit will such remand serve for the a[pellant who will remain behind bars during this period of remand u"a *iU most likely be convicted for the

PPC

offences for which he was charged. The answer aPPeius to be very to little, if any, and will in fact 5e extremely likely to 9nf1 servl prejudice tim further ae he is likely to be again-convicted in resPect of t:t e orair,ary PPC offences and hig appeal further delayed' and

(e)In our view we find that it would be more practical for the speedy efficient administration of criminal justice in this country and benefit the appellant iJ this court took a dynamic approach 11d.in |he lnteresti of justice and decided ATA ippeals whilst considering the jurisdictionai aspects as well as merits at the same time' (Q To take any other approach might cause chaos in the hearing of ATC also may appeals whereby cases might coi-rtinually be remanded which riir" issrr"s undlr Articles 10(A) and 13 of the Constitution' (g) If this court heard such cases the result would most likely be as

follows;

(i)If this court found that the ATA was attracted and the PPC offences Proven the conviction would be maintained and the Court in appellant could then without delay move the Supreme appeal.

not attracted but the PPC liif f tnis court found that the ATA was offences had been Proven then, this court would acquit the appeltant in respeci of the ATA offences but maintain A his the appellant conviction in respect of the PPC offences and then could once again'without delay move the Supreme Court in.appeal (iii) If this court found that thsATA was not attracted and the PPC the offences had noi been proven then this court would 4cquit

4su accused of the PPC offences and he would be released unless wanted in any custody case.

43.We find that the above approach as mentioned in para 42 to be preferable for all concerned (the appellant, the State and the efficient administration of the criminal justice system). The question is under the Constirution and the law can this court proceed in this manner? We find that we can based on the following reasons;

(a)We have already found that if we were to remand the cases it would be at the stage of final arguments and re writing of the judgment and thus il eflect *" hu," already found that all the evidence already recorded remains in tact.

(b)That appeals under the ATA are moved under section 25 ATA to the High Court.

(c)That appeals to the High Court are regulated by section 4?i Cr'PC which is set out below for ease of reference;

"section 423 CI.PC. Powers of Appellate Court in dispoeing of appeal.--(1) The Appetlate Court shall then send for the record of the case, if such.ecordls not already in Court. Alter perusing ty+ t:t?i{' and hearing the appellant or his pleader, i{ he appears'-and tn9 nultic Prosecutorlif he appears, and, in case of an appeal under section A, subsection (2) oisection 417, the accused, if he appears' the !o3rt may, il it.o.,rii"., that there is no su1ficient ground for interfering dismiss the appeal, or may

(a)in an appeal from an order of acquittal, r€verse such order and or direct that further inquiry be made, or that the accused be retired sent for trial to the Couri of Session or the High Court as the case to may be, or find him guilty and pass sentence on him according law;

(b)in an appeal from a conviction, (1) reversethe finding and sentence by a and u.qrit o. discharge the accused, or order him to be retired Court Lf competent iurisdiction subordinate to such Appellate Court or sent for trial, or

(2)alter the finding, maintaining the sentence, or ' with or without altering the finding, reduce the sentence, or the

(3)with or without such reduction and with or without altering ii.,air,g; alter the nature of the sentence, but, subject to the provisions I of sectlon 106, sub-section (3), not so as to enhance the same'

(c)in an appeal from any other order, alter or reverse such order;

(d)make any amendment or any consequential or incidental order that may be just or ProPet',

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44.A plain reading of section 423 CI.PC apPears to indicate that this court'on appeal has the power to knock out the ATC conviction whilst maintaining a conviction under the PPC or acquit the appellant'completely. The only restriction apPears to be on enhancement of such sentences. This appears to the view adopted by the Supreme Court prior to the Ghulam Hussian's case (Supra) as shown through the cases cited by the leamed APG and eoen afier Ghulam Hussains's case (Supra) it appeafs that the Supreme Court is sticking to this- approach, i.e when an appeal passed by an ATC comes before it it can and does some times set aside the ATC conviction but instead of remanding the case for arguments on the PPC offences and ordering the re writing of the judgment either convicts or acquits the appellant for the PIaC offence so charged' For example, in the recent case of Hadi Bux V State (Criminal Appeal No'348 of 2020) dated 29.77.2027 the Supreme Court whilst hearing an appeal against conviction passed by an ATC and upheld by this court upheld the conviction under section 365 (A) PPC but acquitted the appellants under the ATA in the following terms at para's2,3 and 4 as set out hereunder in material par!

"2........8oth tfu aurts belou had rightly appraiseil anil reappraixd t!.u the entire eaidence anil founil that prosecution had prooed the case against appellants and also concurrently concluileil regarding.the guilt of the appellants.We on our indePendeit ettaluatiolof the eaidence aoai.lable are notabletodffirwiththes,aiilconclusionsofaroffenczunilerxction365- A PPC is concemcd. Consequently, this appeal to the extent-of conoiction unilet section 365-A PPC reail with section 34 PPC is maintained and sentence of impisonment for life and forfel\r1 of property to the extent of rupiu fifty thousand each and in case of default 'to "igo'out impisonment.wi.!,h. Uerc,lt, of furiur unilergo sii months seition 382-8, Cr.p'C., is maintalned and ihe appeal to this extent is dismissed.

3.Howeaer, we obseroe that there is nothing on recotd to prooe that this occurtence has any nexus with terrorisffi "or ony roitness said so, ln that eoentuaiity, in aiew of a larget Bench iudgment '@l]O of this Court reporteil as-Ghulam Hussain o' the State ZOZO SC 67), the conitiction under section 7(e) of the Act 7997 is not sustainable. Consequently, the saiil conoiction and sentence under section 7(e) of the Act, tbgl is set'asiile arul the appellants are acquitted only io the efient of 7(e) of the Act 7997' Howeoel as alreaiy stated tteir conoiction anil smtence unilet section 365'A PPC is maintaineil.

4.With the abwe modification in the conaiction and sentenu' this appeal is partly alloweil".hold added)

45.Thus, based on the above discussion and being fortified by the above referred recent supreme court judgment in the interests of justice and for the and decide the benefit of the appellants we hereby hold that this court can hear

Ll 1g

appeals before us even if pima facie the jurisdiction of the ATC's to hear such cases might have been extremely doubtful.

46.Before parting with this judgment we would like to express our gratitude to all the learned counsel for their able assistance especially that of learned amicus curiae Mr.Mahmood Akhtar Quereshi.

47 The office shall fix the appeals for regular hearing on merits on26.01.2022 at 10:00 a.m with notice to all concerned.

,.rlralr-1

JUDGE

E

2l