HIDAYATULLAH Versus THE STATE

ORDER

1. The applicants, through this criminal revision application under sections 435/439, Cr.P.C. have called in question the order dated 8-3-2003 passed by learned Sessions Judge, Larkana whereby he directed that the challan (charge-sheet) arising out of Crime No.01 of 2001 of Police Station, Qubo Saeed Khan for an offence punishable under sections 302, 324, 148, 149 and 114, P.P.C. be returned to the Court of Civil Judge and F.C.M., Shahdadkot with direction that he should return the challan to the concerned S.H.O. for presenting the same before the Court having jurisdiction under the Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinbelow to be referred to as STA Act). The accused was directed to appear before the S.H.O.

2. The facts of the case, as disclosed in the F.I.R. lodged by Allahdad on 9-1-2001 at Police Station Qubo Saeed Khan briefly stated are that complainant Allahdad, Sobdar, Gaman, Gaibi Khan and Deenar were going to village Imam Bux Jamali on motorcycles, when at about 11-30 a.m. they were attacked by the accused persons namely Akhtar empty handed, Anwar Ali and Munawar Ali armed with Kalashnikovs, Ghulam Mustafa and Serwar armed with guns, Hidayatulah armed with rifle, Deedar armed with pistol and Mehar empty-handed. Akhtar challenged the complainant party not to use the thoroughfare, on which Gaibi Khan replied that they would use it for going to their village. On instigation of Akhtar, Anwar fired from his Kalashnikov, which hit Gaibi Khan and he fell down, Munawar fired from his Kalashnikov, which hit Gaman, who also fell down and Hidayatullah fired from his rifle injuring Deenar. The other accused also made fires in the air. Gaibi Khan and Gaman died on the spot.

3. After usual investigation, the challan was submitted by the police on 14-3-2001 in the Court of Civil Judge and F.C.M., Shahdadkot, who after taking cognizance sent up the case to the Court of Session, Larkana. Learned Sessions Judge after hearing Mr. Altaf Hussain Surahio, counsel for accused and Mr. Jameel Ahmed Korai, counsel for the State, passed the impugned order by consent of both the aforementioned learned counsel as they conceded that the offence was exclusively triable by the S.T.A. Court.

4. I have heard Mr. Altaf Hussain Surahio, learned counsel for the applicants and Mr. Ali Azhar Tunio, learned Assistant A.-G. for the State.

5. Mr. Altaf Hussain Surahiyo admitted that he had conceded before the learned Sessions Judge that the offence was exclusively triable by the S.T.A. Court, but he explained that the instant revision application was moved in view of the law laid by the Honourable Supreme Court in the case of Allah Din v. State 1994 SCMR 717, wherein it has been observed that the jurisdiction of Special Court exercising powers under S.T.A. Act can be determined on the basis of F.I.R. and other material produced by the prosecution at the time of presentation of the challan, but the learned Sessions Judge has not considered the other material. On being questioned by this Court, he admitted that there is a clear version in the F.I.R. that co-accused Anwar and Munawar made fires from their Kalashnikovs. In this view of the matter, prima facie, there was evidence to show that during the commission of offence of Qatl-i-Amd Kalashnikovs were used, yet he argued that the Mashirnama of place of incident gives a different picture, as Kalashnikovs were found lying near the dean bodies. It goes without saying that such pieces of evidence can only be evaluated by the trial Court after examining material witnesses including the attesting witnesses, in whose presence the Mashirnama was prepared. At this stage, evidence on the face of it indicates use of Kalashnikovs, therefore, for the sole 'purpose of determining the jurisdiction, the material was conceivably sufficient to lead to an inference that the case fell within the ambit of Suppression of Terrorist Activities (Special Courts) Act, 1975 (S.T.A. Act).

6. Learned counsel for the applicants, however relied on an order of this Court passed in Criminal Revision Application No. 17 of 2002 wherein it was observed that presenting challan to Court under S.T.A. Act would amount to initiating fresh case under the S.T.A. Act and such position was not available as the S.T.A. Courts are not functioning and the case shall be disposed of by the Court having jurisdiction to try the case. There is no cavil to the observation that the case is to be tried by the Court having jurisdiction, but in the instant case as is clear from the facts that the Court having jurisdiction to try the case was the Special Court having jurisdiction under the S.T.A.I Act since the incident had taken place on 9-1-2001 that is to say, much before insertion of section 39-B in the Anti-Terrorism Act, 1997 through Ordinance XXXIX of 2001 which came into force on 14th August, 2001. For the sake of convenience, section 39-B is reproduced hereinbelow:--

7. [39-B. Repeal and savings.---(1) The Suppression of Terrorist Activities (Special Courts) Act, 1975 is hereby repealed.

(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 Terrorist 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 anything 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 hereafter 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 Court before such repeal or amendment shall be executed as if the said Acts were 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 the 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 or such other Courts of competent jurisdiction where the cases were registered against the accused and such Courts 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-Terrorism 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.]

8. Section 39-B was introduced, as would essentially appear from a plain reading of the contents thereof, with the object of, inter alia, saving and protecting the previous operation of law or anything duly done or suffered or punishment incurred despite the repeal of S.T.A. Act, 1975 and amendment of A.T.A. Act, 1997 through the amending Ordinance XXXIX of 2001. Various aspects, in this context, have been addressed to and dealt with under separate clauses of subsection (2) of this section of which relevant clause (b) would on bare perusal, indicate that the investigations and enquiries under the A.T.A. Act and S.T.A. Act, 1975 were saved laying down in express and unambiguous terms that an investigation or enquiry under the A.T.A. Act or S.T.A. Act, 1975 made or instituted before the commencement of the amending Ordinance i.e. to say 14th August, 2002, shall continue to be made and proceeded with in accordance with law. Although it is emphasised that such an investigation may be proceeded in accordance with law, but the intention of Legislature is clear front the word 'continue' used in this clause that it was to be continued within the scope of provision of law as if the previous law was in operation. If a construction is to be placed to the contrary, holding that the investigation in respect of an offence committed before 14-8-2001 shall be continued bur its result shall be covered by the new provision of law then the purpose of saving clause would become redundant. The amending provision of law is not to be interpreted as to defeat the purpose and objects for which it is introduced. The unavoidable construction that can be placed on the word 'continue' is that at the conclusion of the investigation the case is to be challaned within the scope of S.T.A. Act. 1975 in a Special Court as it then was and not in ordinary Court.

9. In the instant case the offence was committed on 9-1-2001 and investigation was taken up immediately thereafter and the challan under section 170, Cr.P.C. Was accepted by the concerned Court on 14-3-2001. The order of taking cognizance, reads that the offence was taken to be exclusively triable by the Courts of Session and the case was sent up accordingly to the Courts of Session. But the learned Sessions Judge, Larkana while dealing with the case noticed that the accused were armed with Kalashnikov, therefore, the offence was a scheduled offence within the meaning of S.T.A. Act and the Sessions Court has no jurisdiction. In view of the discussion made above a clear interpretation of clause (b) of section 39-B of A.T.A. Act would lead to positive conclusion that the case being a scheduled offence within the meaning of S.T.A. Act was exclusively triable by the S.T.A. Court and the challan was to be submitted in a Court constituted under the said Act, and the order of sending the case to Sessions Court was patently void and illegal.

10. It may be clarified that mere submission of challan is not terminus a quo for investigation and despite the fact that the cognizance was taken on 14-1-2001 the erroneous order of taking cognizance was not sustainable in law and the challan was to be put up before the Court having jurisdiction under the relevant law as it was in force at that time; the learned Sessions Judge was wholly justified in directing that the papers/challan be returned to the concerned police for presenting the same before the Court having jurisdiction at the relevant time.

11. A contention was raised by learned counsel for the applicant that K.K. were not recovered therefore the incident would not 17 fall within the purview of scheduled offence. This argument cannot be sustained as the F.I.R. and the other material indicate that some of the accused were armed with K.K. and even fires were made from K.K. by the accused persons. As held in Nasir Abdul Qadir v. State 2003 SCMR 472, irrespective of recovery of K.K. the jurisdiction to try the offence in the circumstances described above, would vest in the S.T.A. Court. The contention raised on these lines is as such without force.

12. Resultantly, the order passed by the learned Sessions Judge, Larkana, impugned through this revision application is free from any legal infirmity or drawback and is upheld due appreciation. The revision application is dismissed in limine. These are the reasons for the short order pronounced on 1-4-2003.

13. H.B.T./H-106/K Revision dismissed.