State vs Khaista Rehman

2013 M L D 1872

[Peshawar]

Before Assadullah Khan Chamkani and Muhammad Daud Khan, JJ

The STATE through Advocate-General---Appellant

Versus

KHAISTA RAHMAN---Respondent

Criminal Appeal No.224 of 2012, decided on 29th May, 2013.

(a)Anti-Terrorism Act (XXVII of 1997)---

----S. 7---Penal Code (XLV of 1860), Ss. 353, 324, 377, 342 & 506---Pakistan Arms Ordinance (XX of 1965), S. 13---Criminal Procedure Code (V of 1898), Ss.345, 417(2-A), 493 & Second Sched.---Act of terrorism, assault or use of criminal force to deter a public servant from discharge of his duty, attempt to commit qatl-e-amd, unnatural offences, wrongfully confining any person, criminal intimidation and possession of unlicensed arms---Appeal against acquittal---Compromise---Scope---Anti-Terrorism Act, 1997, was a special law---Private complainant or legal heirs had no right to compound the scheduled offences---Said offences were against the State but not only against individuals---Second Schedule of the Code of Criminal Procedure, 1998, provided that offences punishable under Ss.353 & 377, P.P.C. were not compoundable---Complainant was not competent to compound the offence under S.13 of Arms Ordinance, 1965---Compromise did not constitute valid ground for acquittal of the accused--- Trial Court was not vested with the powers to act upon the statements of the complainant and minor victim---Trial Court illegally acquitted the accused on the basis of compromise in non- compoundable offences---Judgment/order of Trial Court was illegal and without lawful authority and caused miscarriage of justice---Impugned judgment and order of acquittal was set aside and case was remanded for decision afresh.

Tahir Hussain and others v. Khaliq Dar and others 2003 MLD 1401 and Usman Ali and another v. The State 2007 PCr.LJ 1097 rel.

(b)Anti-Terrorism Act (XXVII of 1997)---

----Preamble---Object---Anti-Terrorism Act, 1997, was a special law purpose of which was to control terrorism---Schedule offences were made non-compoundable.

(c)Criminal Procedure Code (V of 1898)---

----S.493---Public prosecutor being incharge of the case, private counsel engaged could only assist the prosecutor---Abandoning prosecution witnesses by counsel for complainant without authority of public prosecutor was against the spirit of S. 493, Cr.P.C.

Muhammad Javaid D.A.-G. for the State.

Sajjad Anwar for Respondent.

Date of hearing: 29th May, 2013.

JUDGMENT

ASSADULLAH KHAN CHAMKANI, J.---This Criminal Appeal is directed against the Judgment and order dated 11-7-2012 passed by Administrative Judge, Anti Terrorism Court- (II), Malakand Division at Swat, whereby, accused-respondent Khaista Rahman, involved in case F.I.R. No. 368 dated 20-9-2011 under sections 353/ 324/377/342/506, P.P.C. read with section 7 of Anti Terrorism Act, 1997 and section 13 of Arms Ordinance, registered at Police Station, Saidu Sharif, District Swat, was acquitted of the charge.

2.Brief facts of the case are that Qasim Jan informed the S.H.O. Police Station, Saidu Sharif, that his nephew, namely, Ihsan Ullah had been abducted by someone from the road of Ahoon Baba. On such information, S.H.O. concerned visited the spot and during search three fire shots were made at the police party, which were retaliated by the police. The person present in the maize crop threw his pistol and was overpowered. Along with the person, one boy was also recovered, who told that he was a student of Class 8th of Swat Public School and after closing hours of the school, he along with Aziz-ur-Rehman was on the way home, when at 1500 hours reached near the field of Khaista Rehman, where Khaista Rehman was standing armed with pistol, who aimed pistol at him and took him to maize crop forcibly. He tried to compel him for sodomy and also criminally intimidated him, in the meanwhile, the police came. The concerned S.H.O. arrested accused Khaista Rehman on the spot and as such the above referred F.I.R. was registered.

3.After completion of investigation, challan against the accused-respondent was submitted in the Court of Anti-Terrorism Court at Fizaghat Swat. The trial Court charge sheeted the accused-respondent to which he pleaded not guilty and claimed trial. The prosecution produced as many as six (6) P.Ws. and, thereafter, closed the evidence on 24-5-2012. In the

meanwhile, learned Public Prosecutor, Anti Terrorism Court, filed an application under section 540, Cr.P.C. for summoning of P.Ws., namely, Muhammad Zaman, Sub-Inspector, and Zafar Khan, S.H.O., which was allowed, vide order dated 26-6-2012. It was on 11-7-2012, the learned Judge, Anti-Terrorism Court, acquitted the accused-respondent, vide the impugned judgment on the sole ground of compromise without touching other merits of the case, hence, the present appeal.

4.The learned D.A.-G. appearing on behalf of the State-appellant argued that Anti- Terrorism Act, 1997 is a special law; therefore, a private complainant has no right to compound the schedule offences as the same are mainly against the State and not against the individual. He further submitted that a private counsel has no right to abandon the prosecution witnesses, therefore, abandonment of P.W. Zafar Khan, S.H.O., on the statement of learned counsel, namely, Zohaib Hussain, Advocate, dated 11-7-2012 is against the law, therefore, the impugned judgment is liable to set aside.

5.On the other hand Mr. Sajjad Anwar, learned defence counsel, argued that section 7 of Anti-Terrorism Act is not applicable in the case. He further argued that a genuine compromise has been effected between complainant and accused party and the compromise is in the best interest of parties, therefore, supported the impugned judgment of trial court.

6.Arguments of learned counsel for parties heard and file perused.

7.Perusal of the record would reveal that the learned trial Court acquitted the accused- respondent, vide the impugned judgment, on the sole ground of compromise without touching other merits of the case. Admittedly, the accused-respondent is charged under sections 353/324/ 377/342/506, P.P.C. read with section 7 of Anti-Terrorism Act, 1997 and 13 of Arms Ordinance. The Anti-Terrorism Act, 1997 is a special law, enacted for prevention of terrorism, sectarian violence and for speedy trial of heinous offences, therefore, the private complainant or the legal heirs have no right to compound the scheduled offences, as those offences are mainly against the State and not only against individuals. If any authority is needed on the point, we may refer the cases Tahir Hussain and others v. Khalid Dar and others (2003 MLD 1401) and Usman Ali and another v. The State (2007 PCr.LJ Lahore 1097). Similarly, the schedule (II) of the Code of Criminal Procedure, 1898, provides that offences punishable under section 353/377, P.P.C. are not compoundable. Besides, complainant is also not competent to compound the offence under section 13 of Arms Ordinance. This being so, the compromise does not constitute a valid ground for acquittal of the accused-respondent. The learned trial Court was not vested with the powers to act upon the statements made by the complainant and minor victim and, thus, illegally acquitted the accused-respondent on the basis of alleged compromise in non-compoundable offences. The judgment/ order, therefore, is patently illegal and without lawful authority. Such orders cause miscarriage of justice and are liable to be set aside.

8.The arguments of learned D.A.-G. that P.W. Zafar Khan S.H.O. was abandoned by the counsel for complainant without the consent of public prosecutor, which is also not in accordance with law, is also convincing one because under section 493, Cr.P.C. Public Prosecutor is incharge of the case and any private counsel engaged could only assist the Prosecutor, thus, by abandoning P.W. Zafar Khan, the official witness, by counsel for complainant without the authority of Public Prosecutor was also against spirit of section 493, Cr.P.C. section 493 reads as thus:--

"Section 493: Public Prosecutor may plead in all Courts in cases under his charge; pleaders privately instructed to be under his direction. The Public Prosecutor may appear and plead without any written authority before any Court in which any case of which he has charge is under inquiry, trial or appeal, and if any private person instructs a pleader to prosecute in any Court any person in any such case, the Public Prosecutor shall conduct the prosecution and the pleader so instructed shall act therein, under his directions."

Consequently, this appeal is allowed, the impugned judgment and order of acquittal is set aside and the case is remanded to the Administrative Judge, Anti-Terrorism Court, Malakand Division, Swat, to decide it afresh in accordance with law expeditiously. Accused/ respondent Khaista Rahman present in Court, is taken into custody and he be dealt with in accordance with law.

Before parting with this judgment, it is worth to note that Anti-Terrorism Act is a special law enacted by the law makers with the purpose to control terrorism in the public at large and to minimize the mental and psychological strain and remove fear from the mind of the masses, that is why the law makers have made all the scheduled offences non-compoundable. It is noted with deep concern and dismay that Anti-Terrorism Courts do not strictly adhere to the provisions of Anti-Terrorism Act, 1997. Needless to say that in the present case most of the offences even on penal side and Arms Ordinance are non-compoundable, but the trial court has ignored this aspect of the case and acquitted the accused-respondent on the basis of compromise. Therefore, copy of this judgment be circulated to all the Anti-Terrorism Courts to follow the provisions of Anti- Terrorism Act in letter and sprits in future. Office is directed to send copy of this judgment to the Registrar, Peshawar High Court, Peshawar, for circulating the same to all the Anti-Terrorism Courts in Khyber Pakhtunkhwa for future guidance.

These are the reasons of our short order announced on 29-5-2013.

AG/317/P Case remanded.