2013 Y L R 618
[Balochistan]
Before Muhammad Hashim Khah Kakar and Muhammad Noor Meskanzai, JJ
The STATE through Prosecution Gene ral---Appellant
Versus
NOOR UDDIN and 2 others ---Respondents
Criminal Acquittal Appeal No.254 of 2011, decided on 12th November, 2012.
(a) Penal Code (XLV of 1860) ---
---S. 302(b) ---Criminal Procedure Code (V of 1898), S. 417 (2 -A)---Anti-Terrori sm Act (XXVII
of 1997), S. 12(1) ---Qatl-e-amd---Appeal against acquittal ---Appreciation of evidence ---Incident
of "Karo Kari" ---Anti-Terrorism Court, jurisdiction of ---Scope ---Prosecution's case was that
nominated accused persons kidnapped the deceased, sh ifted him to a house, where an illegal
Jirga was held, whereafter deceased and a lady were murdered on the allegation of "Karo Kari" --
-Application was moved before the High Court to transfer the case from Trial Court to Anti -
Terrorism Court, but before de cision on said application, Trial Court hastily acquitted the
accused persons ---Validity ---Trial Court was not competent to adjudicate upon the matter in
view of the prosecution case ---Confessional statement of one of the accused before Judicial
Magistrate was indicative of the fact that two innocent persons were murdered on the allegation
of "Karo Kari", which justified the invocation of jurisdiction of Anti -Terrorism Court ---Trial
Court was not competent to try the accused persons, therefore acquittal ord er recorded by Trial
Court in favour of accused persons would not exonerate them from being tried by a court of
competent jurisdiction ---Appeal against acquittal was accepted, impugned order of Trial Court
was set aside and case was remanded to the Anti -Terrorism Court for de novo trial under the
provisions of Anti -Terrorism Act, 1997.
Gul Muhammad v. The State PLD 2012 Balochistan 22 rel.
(b) Anti -Terrorism Act (XXVII of 1997) ---
----S. 12(1) ---Anti-Terrorism Court, jurisdiction of ---Determination ---Question of jurisdiction
could be determined on the basis of F.I.R. and other material, which was produced by
prosecution at the time of presentation of the challan ---Court on the basis of such material was
required to decide whether cognizance was to be taken or not.
(c) Criminal Procedure Code (V of 1898) ---
----S. 403 ---Person once convicted or acquitted not to be tried for the same offence ---Scope ---
Section 403, Cr.P.C clearly demonstrated that no one should be punished or put in peril twice for
the same matter, but the prerequisite was that a person, who had been tried once, should have
been tried by a court of competent jurisdiction and, in case of conviction or acquittal, he should
not be tried again for the same offence.
Abdul Sattar Durra ni, Addl: P.G. for Respondents.
Syed Ayaz Zahoor for Respondents Nos.1 and 2.
Mehmood Sadiq Khokhar for Respondents Nos. 4 and 5.
Date of hearing: 5th November, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Complainant Munir Ahmed had
charg ed the accused/respondents for the murder of his brother Nazeer Ahmed and one Mst.
Zaubaida on the allegation of "Karo Kari" vide F.I.R. No.155 of 2006 registered at Sariab Police
Station, Quetta on 6th June, 2006. After arrest of some of the accused respo ndents, initially
challan was submitted in the Court of Judicial Magistrate and, on insertion of section 302 of the
Pakistan Penal Code, 1860 (P.P.C.), the same was transmitted to the Court of Sessions Judge,
Quetta and finally the same was transferred to the file of Sessions Judge (Ad hoc), Quetta (the
"trial Court") and it was entered as Sessions Case No.8 of 2011. The learned trial Court, after
recording evidence of the respective parties, acquitted the accused/respondents of the charge vide
judgment dat ed 29th August, 2011 (the "impugned judgment"), hence this appeal.
2. The instant appeal against acquittal was admitted to regular hearing; inter alia, on the
ground that only the Special Judge, empowered under the provisions of Anti -terrorism Act, 1997
(the "Act of 1997"), is competent to adjudicate upon the matter and the trial Court was not
competent to take cognizance of the matter, as the prosecution's case was that an illegal Jirga was
constituted and both the deceased persons were done to death on the bald allegation of "karo
kari".
3. Mr. Abdul Sattar Durrani, learned Additional Prosecutor -General (A.P. -G.), submitted
that an order, passed without jurisdiction, is nullity in the eyes of law and even if the
complainant has not objected to the juri sdiction of the trial Court at the time of trial, that would
not empower the trial Court to take cognizance of the matter, which is exclusively falling within
the jurisdiction of the Anti -terrorism Court, as the offence is a Scheduled Offence under the
provisions of the Act of 1997. He strenuously argued that the accused/ respondents were
acquitted of the charge by an incompetent Court of jurisdiction i.e. the trial Court and, thus, said
acquittal order was a wrongful exercise of the jurisdiction, not veste d with the trial Court.
4. Controverting the arguments raised by the learned A.P. -G., Messrs Syed Ayaz Zahoor
and Mehmood Sadiq Khokhar, learned counsel for the respondents, strenuously argued that
during the course of trial, the complainant/appellant ha d never objected to the competence and
jurisdiction of the trial Court to hold the trial and to record the evidence. The accused/
respondents, having been acquitted of the charge by the trial Court, have earned a right of double
presumption of innocence in their favour, thus, the acquittal order recorded by the trial Court
should not be normally interfered with by this Court. They, while concluding their arguments,
submitted that the accused/respondents, once having been tried and ultimately acquitted by th e
trial Court, could not be vexed twice for the same offence.
5. After hearing learned counsel for the parties, we have come to the irresistible conclusion
that the trial Court was not competent to adjudicate upon the matter, as the prosecution case was
that the nominated accused persons, after kidnapping Nazeer Ahmed, shifted him to the house of
absconding accused (Jameel Rind), where a Jirga was held and the abductee Nazeer Ahmed and
Mst. Zubaida were done to death on the allegation of "Karo Kari". In a case of Gul Muhammad v
The State PLD 2012 Balochistan 22, a Division Bench of this Court has observed as under: --
"14. We have noticed in a number of cases, specially committed in Naseerabad Division,
that the killing of innocent wife, sister and othe r female relatives, on the allegation of siyahkari,
has become a routine practice, rather a fashion, and it is high time we discouraged such
unwarranted and shocking practice resulting in double murder in the name of so -called 'honour
killing'. We are not impressed by the contention of the learned counsel for the appellant that
according to the prosecution's own showing, the occurrence is the result of siyahkari, as such; the
appellant is liable to be awarded lesser punishment under sec -tion 302(c) of the P .P.C. It is true
that, in the rural areas of Balochistan and especially in Naseerabad Division, the people do not
swallow such kind of insult, touching the honour of their womenfolk and usually commit murder
of alleged siyahkar in order to vindicate and re habilitate the family honour, but it is equally true
that no license can be granted to anyone to take the law of the land in his hands and start
executing the culprits himself instead of taking them to the Courts of law. The murder based on
Ghairat does no t furnish a valid mitigating circumstance for awarding a lesser sentence. The
killing of innocent people, specially the women on the pretext of siyahkari is absolutely un -
Islamic, illegal and unconstitu -tional. It is worth mentioning that the believers of Islam are not
even allowed to divorce them, without establishing their accusation. We profess our love for
Islam, but ignore clear Qur'anic injunctions regarding the rights of women. The Holy Qur'an in
Sura XXIV (NUUR) Verse 4 says:
"And those who launc h A charge against chaste women And produce not four witnesses,
(To support their allegation), ---Flog them with eight stripes; And reject their evidence ever after:
for such men are wicked transgressors ; ---"
In this regard, it would also be advantageou s to reproduce Hadith 837 Book 48 (Sahih
Bukhari), which speaks as under:
"Narrated Ibn Abbas: Hilal bin Umaiya accused his wife before the Prophet of
committing illegal sexual intercourse with Sharik bin Sahma.' The Prophet said, "Produce a proof
or el se you would get the legal punishment (by being lashed) on your back." Hilal said, "O
Allah's Apostle! If anyone of us saw another man over his wife, would he go to search for a
proof" The Prophet went on saying, "Produce a proof or else you would get the legal punishment
(by being lashed) on your back" The Prophet then mentioned the narration of Lian (as in the
Holy Book). (Surat -al-Nur: 24)
The crime of siyahkari is increasing in this part of the Province and innocent girls are
being killed under the w orst tradition of siyahkari or karokari. False and frivolous allegations are
levelled against the innocent girls and they are never heard. They are being treated as cattle,
which is also violation of the fundamental rights, enshrined in the Constitu -tion. In order to
prevent such crimes, Courts of law should take judicial notice, while trying such heinous crimes.
Our view got support from the judgement of Hon'ble Supreme Court of Pakistan -reported in
PLD 2001 SC 96, which is as under: --
"Legally and mora lly speaking, no body has any right nor can anybody be allowed to take
law in his own hands to take the life of anybody in the name of "Ghairat". Neither the law of the
land nor religion permits so -called honour killing which amounts to murder (Qatl -i-Amd)
simplicitor. Such iniquitous and vile act is violative of fundamental right as enshrined in Article
9 of the Constitution of Islamic Republic of Pakistan which provides that no person would be
deprived of life or liberty except in accordance with law and any custom or usage in that respect
is void under Article 8(1) of the Constitution.
In view of section 6(2)(g) substitution by Ordinance XXI of 2009, re -enacted Ordinance I
of 2010 dated 1 -2-2010 as well as above discussion, we are of the view that in c ase of an
unjustified murder by a person, who, on account of his immorality or to satisfy his brutal instinct,
takes the law in his own hands, is responsible for creating sensation and panic in the Society,
thus, the offences committed on the pretext of si yahkari after 1 -2-2010 squarely fall within the
domain of Anti Terrorism Act, 1997 and all the cases pending before the ordinary Courts stand
transfer to the Anti -Terrorism Courts."
6. The question of jurisdiction can be determined on the basis of F.I.R. and other material,
which is produced by the prosecution at the time of presentation of the challan. On the basis of
that material, the Court is required to decide whether cognizance is to be taken or not. In the
instant case, the confessional statement o f Muhammad Yousaf recorded by the Judicial
Magistrate, Pishin (P.W.17) under section 164 of the Cr.P.C. on 25th July, 2008 is indicative of
the fact that two innocent persons were done to death on the allegation of "Karo kari". In the
circumstances, materi al available with prosecution in this case is sufficient to justify the
invocation jurisdiction of the Anti -terrorism Court.
7. Adverting to the objection raised by the learned counsel for the respondents that an
accused person, having been tried once an d acquitted, would not be liable to be tried again for
the same offence. The contention has no legs to stand on, as section 403 of the Cr.P.C., furnishes
a complete answer to the said contention, which reads as under: --
403. Persons once convicted or ac quitted not to be tried for the same offence. (1) A
person who has once been tried by a Court of competent jurisdiction for an offence and
convicted or acquitted of such offence shall, while such conviction or acquittal remains in force,
not to be liable t o be tried again for the same offence, nor on the same facts for any other offence
for which a different charge from the one made against him might have been made under section
36, or for which he might have been convicted under section 237.
(2) A person acquitted or convicted for any offence may be afterwards tried for any distinct
offence for which a separate charge might have been made against him on the former trial
under S.235, subsection (1).
(3) A person convicted of any offence constituted by an y act causing consequences which
together with such act, constituted a different offence from that of which he was convicted, may
be afterwards tried for such last -mentioned offence, if the consequence had not happened, or
were not happened, or were not known to the Court to have happened, at the time when he was
convicted.
(4) A person acquitted or convicted of any offence constituted by any acts may,
notwithstanding such acquittal or conviction, be subsequently charged with, and tried for any
other offe nce constituted by the same acts which he may have committed if the Court by which
he was first tried was not competent to try the offence with which he is subsequently charged.
(5) Nothing in this section shall affect the provision of section 26 of the General Clauses Act,
1897, or section 188 of this Code.
8. The perusal of aforesaid provision of law clearly demonstrates that no one shall be
punished or put in peril twice for the same matter, but the prerequisite is that a person, who has
been tried o nce, should have been tried by a Court of competent jurisdiction and, in case of
conviction or acquittal, he shall not be tried again for the same offence, bid in the instant case,
the trial Court, being not competent to try the accused/respondents in the Scheduled Offence, its
acquittal order recorded in favour of accused/respondents shall not exonerate them to be tried by
a Court of competent jurisdiction.
9. It is worth mentioning that during course of the trial, the jurisdiction of the trial Court
was also challenged before this Court by means of Criminal Transfer Application No.109 of
2011, which was heard on 20th April, 2011 by a Division Bench of this Court and the same was
allowed. The operative portion whereof reads as under: --
"Thus, in view o f what has been stated and discussed herein above the case on the basis
of the F.I.R. No.155 of 2006 of Police Station, Sariab registered under section 365 read with
section 34, P.P.C. is transferred to the Court of Special Judge, Anti -Terrorism Court havi ng
territorial jurisdiction. After transfer of the case the said Special Judge shall proceed with the
case in accordance with law and decide it as early as possible."
But quite surprisingly, the trial Court, instead of waiting till the decision of the aforesaid transfer
application, which was reserved for pronouncement on 20th April, 2011, acquitted the
accused/respondents of the charge in a hasty manner on 28th September, 2011.
10. For the reasons stated above and without touching merits of the case, we accept this
appeal, set aside the impugned judgment of the trial Court dated 28th September, 2011 and
remand the case to the Anti -terrorism Court -I, Quetta for de novo trial under the provisions of
the Act of 1997. The respondents Noor -ud-Din, Jam al-ud-Din, Ghous -ud-Din, sons of
Muhammad Bakhsh, Nabi Bakhsh son of Bahawal Khan, Mir Wali Muhammad son of
Muhammad Baqa, Noorullah son of Ghous -ud-Din, Muhammad Asif son of Muhammad
Bakhsh, Jameel Ahmed Rind son of Haji Hameedullah, Khalil son of Dost Mu hammad, Mubarak
son of Eid Muhammad, Takari Sharbat and Amanullah shall remain on bail on the sureties
already submitted before the trial Court. However, since respondent Ghous -ud-Din alias Koko
son of Muhammad Bakhsh was in custody during course of the tr ial, therefore, he is directed to
furnish a surety bond of Rs.200,000 (Rupees two hundred thousand only) and PR bond of the
like amount to the satisfaction of the Anti -Terrorism Court -I, Quetta for his appearance and
facing the trial with a period of ten ( 10) days from the date of passing of this order, in case of
failure, he shall be taken into custody. The Special Judge, after observing codal formalities as
required under section 21 -L of the Act of 1997 and section 87 of the Cr.P.C. to procure the
attenda nce of absconding accused and shall conclude the trial within a period of three (03)
months, positively.
MWA/106/Q Case remanded.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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