P L D 2020 Balochistan 106
Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ
ABDULLAH UMAR ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 113 of 2020, decided on 30th June, 2020.
(a) Anti -Terrorism Act (XXVII of 1997) ---
----Ss. 11- F(2), 11 -F(5) & 11 -F(6)---Membership, support and meetings relating to a
proscribed organization, collection of money for proscribed organization---Appreciation of
evidence--- Prosecution case was that accused was working for proscribed organizat ion and
collecting chanda/donation for the said organization---Accused pleaded guilty and confessed his guilt ---Record revealed that accused was intimated about the charge and its consequences
and show cause notice was also given to him under S.243, Cr.P.C . but accused remained
consistent with his statement--- Trial Court after fulfilling codal formalities recorded his
confessional statement ---Once a person, involved in a criminal case, wanted to plead guilty
to the charge levelled against him and placed him self at the mercy of the court, he became a
friend of the court and the court always took lenient view in respect of his sentence ---Trial
Court had rightly taken a lenient view in respect of the sentences recorded against the
accused, which were neither il legal nor contrary to the punishments provided under the
relevant law ---Even otherwise, by virtue of the provisions of S.412, Cr.P.C. accused, who
pleaded guilty to the charge, had no right of appeal against his conviction but he could
maintain an appeal o nly to the extent of the legality of the sentence passed against him by the
Trial Court ---Appeal against conviction was dismissed accordingly.
(b) Anti -Terrorism Act (XXVII of 1997) ---
----Ss. 11 -F(2), 11- F(5), 11- F(6)& 25---Limitation Act (IX of 1908), S. 5---Membership,
support and meetings relating to a proscribed organization, collection of money for proscribed organization ---Appeal ---Condonation of delay--- Scope ---Appeal was time barred
by five months and seven days as it was required to be filed withi n a period of fifteen days
from the date of impugned order as per S.25 of the Anti -Terrorism Act, 1997--- Said Act was
a special statute and it overrode the general law ---Accused had also filed an application
under S.5 of the Limitation Act, 1908, for condoning the delay---Section 5 of Limitation Act,
1908, would be applicable subject to provision 29 of the Anti -Terrorism Act, 1997 which
provided that if time was provided under any statute for filing appeals etc, which was different from the time mentioned i n the Schedule attached to the Limitation Act, 1908, then
S.5 of Limitation Act, 1908 would not be applicable unless it was made applicable by the statute under which the appeal was filed ---No provision in the Anti -Terrorism Act, 1997
authorized the court to invoke the provisions of S.5 of the Limitation Act, 1908---Time
provided under the Anti -Terrorism Act, 1997 for filing the appeal was different from the
time provided in the Schedule attached to the Limitation Act, 1908, for filing such appeal ---
Section 5, Limitation Act, 1908 would not be applicable in the present case, hence the delay
could not be condoned by invoking S.5 of the Limitation Act, 1908--- Appeal against
conviction was dismissed accordingly.
Syed Saleem Akhtar for Appellant.
Date of hear ing: 25th June, 2020.
JUDGMENT
ROZI KHAN BARRECH, J. ---This Criminal Appeal is directed against the order
dated 3rd December, 2020 (hereinafter "the impugned order") passed by learned Special
Judge Anti -Terrorism Court -I, Quetta (hereinafter "the trial Court") in, FIR No. 47 of 2019,
dated 14.11.2019 under sections 11F(2), (5) and (6) of the Anti -Terrorism Act, 1997 ("the
Act") Police Station CTD Quetta, whereby the appellant confessed his guilt before the learned trial Court so he was convicted and sentenced under Section 11(F) of the Act and sentenced to s uffer R.I. for six months with fine of Rs.4000/ - in default whereof he was
directed to suffer S.I. for fifteen days. He was further convicted under subsection (1) of section 11- F of the Act and sentenced under subsection (2) of section 11- F of the Act to
suffer R.I. for six months with fine of Rs.1000/ - and in default of payment of fine to suffer
S.I. for ten days with benefit of Section 382- B, Cr.P.C.
2. The prosecution story, in brief, as per contents of FIR, are that on 14.11.2019
complainant Muhammad At iq Khan IP registered the FIR No. 47 of 2019 with the averments
that he received spy information that one suspected person is collecting fund for banned organization Falah -e-Insaniat Foundation, upon one constable was sent to accused with a
currency note o f Rs.1000/ -. The accused received the same and issued a receipt of Falah
Insaniat Foundation. The constable told that the name of the accused working for proscribed organization is Abdullah, whereafter the accused was arrested from Nawan Kili for collectin g
chanda/donation for the proscribed organization Falah Insaniat Foundation. Hence the crime report.
3. After completion of usual investigation challan of the case was submitted before the
trial court. On 02.12.2019 charge was framed against the accused/appellant to which he pleaded guilty and confessed his guilt. A show -cause notice was given to the accused as to
why he should not be convicted on basis of pleading guilty to which he gave no plausible explanation except, that he being poor person be dealt w ith leniently.
4. A show -cause notice was given to the appellant by the trial Court as to why he should
not be convicted on the basis of his plea of guilt, he gave no plausible explanation except,
that he being poor person be dealt with leniently.
5. After hearing arguments of the parties and considering the relevant aspects of the case
in the light of plead guilty, the learned trial Judge vide impugned order dated convicted and
sentenced the appellant as mentioned in para- 1. Being aggrieved, the appellant filed a
revision petition bearing No. 10 of 2020 under sections 435 and 439 Cr.P.C. before this court on 11.05.2020. Through Cr.M.A. No. 124 of 2020 filed on 21.05.2020, learned counsel for the appellant solicited permission of this court to convert the re vision petition into criminal
appeal being filed under section 25 of the Act. The said application was accepted vide order dated 17.06.2020 passed by this court, whereafter the revision petition was converted into
Criminal Appeal bearing No.113 of 2020.
5(sic). We have heard the learned counsel for the appellant and have also gone through the
record of the case with his valuable assistance.
6. Record clearly reveals that the appellant was intimated about the charge and its
consequences and show -cause notice was also given to him under section 243, Cr.P.C. The
appellant remained consistent with his statement. The trial Court after fulfilling codal
formalities recorded his confessional statement. It is a common practice that once a person,
involved in a criminal case wants to plead guilty to the charge leveled against him and places
himself at the mercy of the court, he becomes a friend of the court and the court always takes lenient view in respect of his sentence. The trial Judge has rightly taken a lenient v iew in
respect of the sentences recorded against the appellant, which are neither illegal nor contrary
to the punishments provided under the Act. Even otherwise, by virtue of the provisions of
section 412, Cr.P.C. an accused, who pleaded guilty to the char ge has no right of appeal
against his conviction but he can maintain an appeal only to the extent of the legality of the sentence passed against him by the learned trial Court.
7. The appellant was convicted on 3rd December 2019 and the criminal revision petition
bearing No. 10 of 2020 was filed under sections 435 and 439, Cr.P.C. on 11.5.2020 before this court along with an application under section 5 of the Limitation Act, 1908 for condonation of delay in filing the revision petition.
8. The criminal revi sion petition against the impugned order is not maintainable in law
under the provisions of the Act. There is no specific provision in Act for challenging the
order by way of revision application. By section 32 of the Act the Code of Criminal
Procedure, 18 98 has been made applicable for certain purposes. In case the provisions of
Cr.P.C. are inconsistent to any provision of the Act, those are to be struck down. It will be
pertinent to reproduce herein under section 32 of the Act for ready reference:
"32. Overriding effect of Act.---(1) The provisions of this Act shall have effect notwithstanding anything contained in the Code or any other law but, save as
expressly provided in this Act, the provisions of the Code shall, in so far as they are not inconsistent with the 'provisions' of this Act, apply to the proceedings before an
Anti-Terrorism Court and for the purpose of the said provisions of the Code, an Anti -
Terrorism Court shall be deemed to be Court of Session.
(2) In particular and without prejudice to the generality of the provisions contained in
subsection (1), the provisions, of section 350 of the Code shall, as far as may be,
apply to the proceedings before an Anti -Terrorism Court and for this purpose any
reference in those provisions to a Mag istrate shall be construed as a reference to an
Anti-Terrorism Court. "
Bare reading of section 32 of the Act shows that the provisions of the Code of
Criminal Procedure, 1898 are applicable to the extent that they are not inconsistent with other provisions of the Act. While considering the question of applicability of section 435,
Cr.P.C. it is essential to glance over sections 25 and 31 of the Act. For the sake of convenience both provisions are reproduced here under:
"Section 25. Appeal.--(1) An Appeal against the final judgment of an Anti- Terrorism
Court shall lie to a High Court.
(2) Copies of the judgment of an Anti - Terrorism Court shall be supplied to the
accused and the Public Prosecutor free of cost on the day of the judgment is
pronounced and t he record of the trial shall be transmitted to the High Court within
three days of the decision.
(3) An appeal under subsection (1) may be preferred by a person sentenced by an
Anti-Terrorism Court to a High Court within seven days of the passing of the
sentence.
(4) The Attorney- General or an Advocate -General may, on being directed by the
Federal or Provincial Government, file an appeal against an order of acquittal or a
sentence passed by an Anti -Terrorism Court within fifteen days of such order.
(5) A n appeal under this section shall be heard and decided by a High Court within
seven working days."
"Section 31. Finality of judgment." ---A judgment or order passed, or sentence
awarded, by Anti -Terrorism Court subject to the result of an appeal under thi s Act
shall be final and shall not be called in question in any Court."
The perusal of section 31 of the Act shows that the judgment or order passed or
sentence awarded by the Anti -Terrorism Court, subject to the result of an appeal shall be
final. The wi sdom behind enacting section 31 of the Act by the Legislature appears to be that
trial shall be concluded within 7 days and so also the appeal by High Court. The section 25 of the Act postulates that after judgment is pronounced, the copy is to be supplied to the
accused as well as to Public Prosecutor and record of the case is to be transmitted to the High Court within three days. The entire procedure has been made automatic. The appeal is only
provided against the judgment of acquittal or conviction and a ll the other orders become final
as contemplated under section 31 of the Act. Thus the sections 435 and 439, Cr.P.C. are
repugnant to the provisions of the Act reproduced hereinabove.
9. The order passed by the Special Court cannot be challenged/ assailed by way of
revision as the appeal is provided only against the judgment of conviction or acquittal. The provisions of sections 25, 31 and 32 of the Act are to be read in conjunction and not in
isolation to each other. They do not permit to challenge the order passed by Special Court in
revision.
10. The learned counsel tried to cover the limitation by filing the revision petition under
sections 435 and 439, Cr.P.C. before this court, which was subsequently converted into criminal appeal under section 25 of t he Act by this court vide order dated 17.06.2020 on the
application filed by learned counsel for the appellant.
11. Apparently the appeal is time barred by five months and seven days as the appeal is
required to be filed within a period of 15 days from the date of impugned order as per section
25 of the Act. The Act is a special statute and it overrides the general law. Section 32 of the
Act provides that the Act has an overriding effect, which has already been reproduced herein
above.
12. The appellant has also filed an application under section 5 of the Limitation Act, for
condoning the delay. Section 5 of Limitation Act, would be applicable subject to provision
29 of the said Act, which provides that if a time is provided under any statute for filing
appeal etc, which is different from the time mentioned in the Schedule attached to the
Limitation Act, then the section 5 would not be applicable unless it is made applicable by the
statute under which the appeal is filed.
13. There is no provision in the A ct, to authorize the court to invoke the provisions of
section 5 of the Limitation Act. The time provided under the Anti -Terrorism Act for filing
the appeal is different from the time provided in the Schedule attached to the Limitation Act
for filing such appeal. Thus, section 5 would not be applicable in the instant case; hence the
delay cannot be condoned by invoking section 5 of the Limitation Act.
As stated above, the sentences are quite legal and appropriate. Since, there is no force
in the instant ap peal which is also barred by time, therefore same is dismissed.
JK/97/Bal. Appeal dismisseThis 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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