2012 M L D 158
[Balochistan]
Before Muhammad Hashim Khan Kakar and Jamal Khan Mandokhail, JJ
SHER AHMED ---Petitioner
Versus
KHUDA -E-RAHIM ---Respondent
C.P. No.495 of 2011, decided on 13th October, 2011.
(a) Sup pression of Terrorist Activities (Special Courts) Act (XV of 1975) ---
----Ss. 4, 5 & 5 -A(7) ---Penal Code (XLV of 1860), Ss. 302/34 ---Double murder on
allegation of siyahkari ---Conviction of accused after his trial in absentia ---Validity ---
According to pr ovisions of Ss. 4 & 5 of Suppression of Terrorist Activities (Special
Courts) Act, 1975, an accused could be tried in absentia, where court was satisfied that
such absence was deliberated with a view to impede course of justice ---Court had ordered
publicat ion of proclamation against accused in three newspapers, but none of such
newspapers was available on record ---Special Court had failed to observe codal
formalities prior to declaring accused as absconder in circumstances.
Zaiullah Khan v. Khan v. Govt. of Punjab PLD 1989 Lah. 554 and Mehram Ali v.
Federation of Pakistan PLD 1998 SC 1445 ref.
(b) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975) ---
----Ss. 4 & 5 ---Penal Code (XLV of 1860), Ss. 302/34 ---Anti-Terrorism Act (XXVII of
1997), Ss. 3, 6, 13 [as amended by Anti -Terrorism (Amendment) Ordinance (XXXIX of
2011)] & 39(1) ---Constitution of Pakistan, Arts. 9 & 199 ---Constitutional petition ---
Double murder on allegation of siyahkari ---Conviction and sentence awarded to accused
on 27-10-1999 by Special Court after his trial in absentia ---Order of Sessions Judge
suspending such conviction/ sentence and directing fresh trial of accused on his
application made in November, 2010 under S. 5 -A(7) of Suppression of Terrorist
Activities (S pecial Courts) Act, 1975 ---Validity ---Special Court was not in existence on
the date of such application, rather its successor forum i.e. Anti -Terrorism Court
established under Anti -Terrorism Act, 1997, was in existence ---Suppression of Terrorist
Activitie s (Special Courts) Act, 1975 was repealed vide S. 39(1) of Anti -Terrorism Act,
1997, but acts done under Act of 1975 were given due protection by S. 39(2) of the Anti -
Terrorism Act, 1997 ---Accused had committed double murder on bald allegation of
siyahkar i in a brutal manner by means of firing with kalashinkov ---Such act of accused
being a Scheduled offence fell within ambit of S. 6(ii)(g) of Anti -Terrorism Act, 1997 and
his case was exclusively triable by Special Court constituted under S. 3 thereof ---Neither
law nor religion permitted so -called honour killing, which amounted to murder ---Such
iniquitous and vile act of accused was violative of Art. 9 of the Constitution ---Present
case was instituted under repealed Act of 1975, whereunder accused could be p unished by
Judge of Anti -Terrorism Court, if prosecution succeeded to establish his guilt ---High
Court set aside impugned order and directed Sessions Judge to transmit main case
along with such application to concerned Anti -Terrorism Court for its decision in
accordance with law.
Muhammad Akram Khan v. The State PLD 2001 SC 96 rel.
Abdul Ghani Mashwani for Petitioner.
Muhammad Qahir Shah for Respondent No.1.
Amanullah Kanrani, Advocate General and Miss Sarwat Hina, Addl. P.G. for the
State.
Date of hearing: 29th August, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J .---Brief facts, forming the back
ground of the instant writ petition, are that Crime No.3 of 1999, dated 30th May 1999,
under section 302 read with section 34 of the P.P.C., wa s lodged with levies station,
Deringar, District Mastung, by one Juma Khan, against respondent No.1 and his
companions, regarding the murder of Rehmatullah and Mst. Amina, on the allegation of
siyahkari. After submission of the challan, the trial, in absen tia, was conducted by the
Special Judge, Kalat at Mastung, under the Suppression of Terrorist Activities (Special
Court) Act, 1975 (hereinafter referred to as the "Act of 1975") and respondent No.1,
Khuda -e-Rahim, and his companions, viz, Ali Gul, Muhammad Afzal and Allah Gul were
convicted and sentenced to suffer life imprisonment with fine of Rs.100,000 (rupees one
lac only), payable to the heirs of the deceased.
2. The record is indicative of the fact that respondent No.1, after a lapse of about 11
years , moved an application under section 5 -A(7) of the Act of 1975, before respondent
No.2 i.e. the Sessions Judge, Kalat at Mastung, seeking the suspension of the order dated
27th October 1999, passed by the then Special Judge, Suppression of Terrorist Activi ties
Court. The Sessions Judge, Kalat at Mastung, after acceptance of the said application, set
aside the conviction order being passed in absentia in the following manner: --
"In view of above patent illegalities in trial of applicant/convict in absentia,
the applicant/convict entitled to be re -trial according to law. Accordingly, I
allow the application and the conviction/sentence awarded to the accused/
applicant vide judgment dated 27 -10-1999 is set aside. A copy of this order be
sent to Tehsildar Mastu ng for submission of challan against the applicant
namely Khuda -e-Rahim son of Sher Muhammad, so that fresh trial be
initiated against the accused. The Tehsildar be directed to complete the
challan within one week and submit before this court."
3. The peti tioner, being maternal uncle of deceased Rehmatullah, has filed the instant
petition, praying therein that the order dated 31st December 2010 be set aside, inter alia,
on the ground that the Sessions Judge, Kalat at Mastung lacks jurisdiction, either to pa ss
the said order or to try the respondent.
4. We have heard Mr. Abdul Ghani Mashwani, learned counsel for the petitioner as
well as Mr. Muhammad Qahir Shah, learned counsel for respondent No.1, Mr. Amanullah
Kanrani, learned Advocate General, Miss Sarwat Hina, Additional Prosecutor General
and have also gone through the record with their valuable assistance.
5. So far as the trial of respondent No.1 in absentia is concerned, the record reflects
that the STA Court ordered for publication of proclamation aga inst the accused persons in
three national daily newspapers, however, the record does not purport the copies of the
said newspapers, wherein the publications were made. Thus, there is force in the
contention of respondent's counsel about improper publicat ions. Subsection (4) of
Section 5 of the Act of 1975 clearly provides that an accused may be tried in his absence,
if the Court, after such inquiry as it deems fit, is satisfied that such absence is deliberate
and brought about with a view of impeding the course of justice. It further lays down that
an accused shall not be tried, unless a proclamation has been published in respect of him
in at least three national daily newspapers, out of which two shall be in Urdu language,
but in the instant case, there i s no material available on record, which would suggest that
proper publications were made in three national newspapers, meaning thereby the STA
Court had failed to observe the codal formalities prior to declaring respondent No.1 as
absconder. We are also a nxious of the fact that similar provisions were embodied in
subsection (10) of section 19 of the Anti -Terrorism Act, 1997 and subsection (4) of
section 8 of the Special Courts for Speedy Trials Act, 1987, but all the above mentioned
provisions regarding tr ial in absentia were declared to be violative of Article 10 of the
Constitution of Islamic Republic of Pakistan, 1973. In this regard, reference can be made
to the judgments of " Ziaullah Khan v. Govt. of Punjab " reported in PLD 1989 Lahore 554
and " Mehram Ali v. Federation of Pakistan " reported in PLD 1998 SC 1445. However, at
this juncture, a question arises as to whether the Sessions Judge, Kalat at Mastung, after
demise of the Act of 1975, had the jurisdiction to entertain an application under section 5 -
A(7) of the Act of 1975 for setting aside the conviction awarded to respondent No.1? The
answer is, admittedly, 'No'.
6. It would be relevant to mention here that, as observed above, the case in hand was,
admittedly, exclusively triable by the Special Cour t constituted under the Act of 1975.
The Court had to take cognizance of the offences, committed at the relevant time and not
on the date of the arrest of an accused. Admittedly, the occurrence took place on 29th
May 1999, while the respondent had approach ed the Court of Session by means of an
application under section 5 -A (7) of the Act of 1975 in the month of December, 2010,
when the Special Court, constituted under the Act of 1975, was not in existence, but,
admittedly, its successor forum i.e. the Anti -Terrorism Court established under section 13
of the Anti -Terrorism Act, 1997, amended through Ordinance No.XXXIX of 2011, was in
existence. The Act of 1975 was repealed vide Section 39(1) of the Anti -Terrorism Act,
1997, but the previous operations of law were given due protection by subsection (2) of
section 39 of the Anti -Terrorism Act, 1997, which speaks as under: --
"(2) Notwithstanding the repeal of the Suppression of Terrorist Activities (Special
Courts) Act, 1975 (XV of 1975) and the amendment of the Anti-Terrorism Act,
1997 (XXVII of 1997), by the Anti -Terrorism (Amendment) Ordinance, 2001 --
(a) every order, decision or judgment passed by any Anti -Terrorism Court constituted
under this Act or Special Court constituted under the Suppression of Terrori st
Activities (Special Courts) Act, 1975, or any Appellate Court before such repeal or
amendment shall remain in force and operative and the repeal or amendment
shall not affect the previous operation of the law or any thing duly done or
suffered or punishment incurred;
(b) every case, appeal and legal proceedings whatsoever filed or pending before any
Court under the Suppression of Terrorist Activities (Special Courts) Act, 1975,
including the High Court and the Supreme Court shall continue to be proceeded
with in accordance with law before the concerned Court of competent jurisdiction,
including the Court established under this Act, and all orders passed, decisions
made and judgments delivered whether in the past or which may be made
delivered he reafter by such concerned Court whether original, appellate or
revisional, shall be deemed to have been validly and competently made;
(c) all convictions made, punishments or sentences awarded by the Anti -Terrorism
Court or Special Court or an Appellate Co urt before such repeal or amendment
shall be executed as if the said Acts where in force;
(d) any investigation or inquiry under this Act or the Suppression of Terrorist
Activities (Special Courts) Act, 1975 made or instituted before the commencement
of th e Anti -Terrorism (Amendment) Ordinance, 2001, shall continue to be made
and proceeded with in accordance with law;
(e) all cases pending before the Anti -Terrorism Court or Special Court immediately
before the commencement of the Anti -Terrorism (Amendment) Ordinance, 2001,
if not covered by this Act or clauses (a) and (b) above, shall stand transferred to
the respective Courts of Session of the area or such other Courts of competent
jurisdiction where the cases were registered against the accused and such Co urts
shall proceed with the cases from the stage at which they were pending, without
the necessity of recalling any witnesses; and
(f) the Court of Session or, as the case may be, any other Court to which a case has
been transferred from the Anti -Terroris m Court or a Special Court under Clause
(d) shall try it in accordance with the provisions of the Code of Criminal
Procedure, 1898 (Act V of 1898), and the law applicable to such case."
7. After having gone through the above provisions of law, we have arri ved at a
confident conclusion that those pending cases, which do not constitute a terrorist act,
within the meaning of Anti -Terrorism Act, 1997, the same would be transferred and tried
by the respective Courts of Session, whereas the cases, which come with in the definition
of "terrorism" as provided in section 6 of the Anti -Terrorism Act, 1997, shall be tried by
the Special Court. A tentative perusal of the evidence would show that respondent No.1
had committed the murder of deceased persons. Rehmatullah an d Mst. Amina on the bald
allegation of siyahkari in a brutal manner by means of firing with Kalashinkov. The act of
the respondent, as alleged, comes within the ambit of clause (g) of subsection (ii) of
section 6 of the Anti -Terrorism Act, 1997, which is r eproduced herein below: --
"Involves taking the law in own hand, award of any punishment by an
organization, individual or group whatsoever, not recognized by the law, with a
view to coerce, intimidate or terrorize public, individuals, groups, communities,
Government officials and institutions, including Law Enforcement Agencies
beyond the purview of the law of the land."
Thus, case of the respondent was exclusively triable by the Special Court constituted
under section 3 of the Act of 1975 being a schedule d offence. The Hon'ble Supreme Court
of Pakistan, in case of " Muhammad Akram Khan v. the State " reported in PLD 2001 SC
96, has held that nobody has any right nor can any body be allowed to take the law in his
own hands to take the life of anybody in the n ame of "Ghairat". Neither the law of the
land nor religion permits the so -called honour killing, which amounts to murder.
Simpliciter, such iniquitous and vile act is violative of the fundamental rights as
enshrined in Article 9 of the Constitution of Isla mic Republic of Pakistan, 1973, which
provides that no person would be deprived of life or liberty, except in accordance with
law.
8. Since the case in hand was instituted under the provisions of repealed Act of
1975, therefore, under the provisi ons of Anti -Terrorism Act, 1997, the only restriction,
upon the Judge of the Anti -Terrorism Court, would be that in case the prosecution
succeeded to establish its case against the accused, he shall be liable to punishment as
authorized by the law, prevail ing at the time, when the offence was committed.
For the aforesaid discussion, this petition is accepted and the order dated 31st
December 2010 passed by the Sessions Judge, Kalat Division at Mastung is set aside. The
Sessions Judge concerned is directed to transmit the main case, along with the application
under section 5 -A(7) of the Suppression of Terrorist Activities (Special Courts) Act,
1975, filed by respondent No.1, to the concerned Anti -Terrorism Court. The Anti -
Terrorism Court concerned is directe d to dispose of the same strictly in accordance with
law, without being influenced by the observations made hereinabove, positively, within a
period of one month.
S.A.K./130/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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