MUHAMMAD SHARIF Versus State

RAJA FAYYAZ AHMED, C.J.- -- This appeal under section 25 of the Anti-Terrorism Act, 1997, has been directed against the judgment dated 19-6-2002 passed by the learned Anti-Terrorism Court, Mekran at Turbat in A.T.A. Case No.21 of 2002 whereby the appellant and co-accused Noor Hussain alias Noora were convicted under sections 337-A/ 353, P.P.C. and sentenced to imprisonment for three months' R.I. each.

Along with the memo. of appeal, Criminal Miscellaneous Application No.135 of 2004 has also been filed seeking for condonation of delay in not filing the appeal within the prescribed period of limitation on the grounds that the offences on which the appellant has been charged and convicted, are not scheduled offences, and; the learned Anti-Terrorism Court had no jurisdiction to try the case, hence; the proceedings drawn by the learned Anti-Terrorism Court and the judgment passed as a result of such proceedings, are void and without jurisdiction nor the alleged offences fall within the purview of sections 6 and 7 of the Anti-Terrorism Act, 1997, secondly; the services of appellant being a civil servant working as M.T. driver in Agricultural Engineering Department, Mekran Division at Turbat, have been terminated as a consequence of impugned judgment, therefore, the appellant being extremely constrained, was pursuing the departmental remedy against the termination of his services and could not file appeal within the stipulated period as provided under the law and thirdly; as the impugned judgment is a nullity in eye of law being void and without jurisdiction, therefore, no limitation for filing the appeal runs against the appellant.

2. The brief facts of the case are that case Crime No.44 of 2002 was registered against the appellant and Noor Hussain with P.S. Turbat District Kech on 3-5-2002, on receipt of written report Exh.P/2-A, addressed to the S.H.O./P.S. Turbat by Manzoor Ahmed, S.D.O./QESCO, Turbat Sub-Division. It was alleged in the written report that on 3-5-2002 the WAPDA staff namely Asghar Ali, Nasir Ali, Abdul Rauf and Maqdoom, members of the WAPDA recovery party along with Muhammad Hasil Line Superintendent-II, proceeded to the site for recovery of the arrears of WAPDA dues from a consumer bearing Account No.0027510, and; were to disconnect the electricity connection provided to the residential premises of the said consumer, and; the electricity meter was installed inside the house of the said consumer, when accused Muhammad Sharif (appellant) and Noor Hussain along with their companions attacked the WAPDA staff causing serious injuries to Muhammad Hasil, incharge of the party, as well as; damaged the WAPDA vehicle. After registration of the case under sections 337-A/504/353/34, P.P.C., investigation of the case was entrusted to A.S.-I. Sarwar Ali (P.W.5) by the S.H.O. P.S. Turbat. After completion of investigation incomplete challan for trial of the offence was submitted in the learned Anti-Terrorism Court, Mekran Division at Turbat on 22-5-2002, as the nominated accused persons could not be arrested for having been absconded after commission of the alleged offence. The learned Anti-Terrorism Court, after having perused the F.I.R., statements of P.Ws. recorded under section 161, Cr.P.C. during the course of investigation, medical certificate, site plan and other related documents took the cognizance of the offence on the same date i.e. 22-5-2002 and issued arrest warrants of the nominated accused persons. The arrest warrants, issued by the Court could not be executed and were returned as unserved by the Investigating Officer, whose statement was recorded by the learned Anti-Terrorism Court (hereinafter referred to as the trial Court) as such; in view of the statement of the Investigating Officer proclamation was issued under section 87, Cr.P.C. read with section 19(10) of Anti-Terrorism Act, 1997 requiring the accused to appear before the Court and such order was also directed to be published in daily newspapers. The publication as directed by the learned trial Court, was made in the newspapers for appearance of the accused persons, but they failed to appear before the Court, consequently; vide order, dated 1-6-2002 they were directed to be proceeded against and trial to commence in their absence. Mr. Zafar Ali, Advocate was appointed as counsel for the absconder accused persons at State expense, to whom documents relating to the case within the meaning of section 265-C, Cr.P.C. were supplied and the case was adjourned to 13-6-2002 for charge and prosecution evidence. Before the abovesaid date, both the nominated accused persons were arrested by the police, as such; complete challan Exh.P/5-D was submitted in the trial Court. Both the accused persons were produced before the Court on 13-6-2002 and they were indicted in view of the accusation as contained in the report and the incriminating material collected during the course of investigation appended with the final report and incomplete challan under sections 353/504/337-A/34, P.P.C. read with section 6(m) of Anti-Terrorism Act, 1997, to which they each pleaded not guilty. The prosecution in order to substantiate the accusation produced five witnesses namely Dr. Zakir Hussain, Medical Officer, D.H.Q. Hospital, Turbat (P.W.1), Manzoor Ahmed, S.D.O. Turbat Sub-Division/first informant (P.W.2), Muhammad Hasil, Line Superintendent QESCO/victim of the offence (injured) (P.W.3), Asghar Ali, LM-II, QESCO, Sub-Division, Turbat, member of the recovery party (P.W.4) and Sarwar Ali, A.S.-I./P.S., Turbat/Investigating Officer (P.W.5). Thereafter, the Special Prosecutor closed the prosecution case on 14-6-2002 by submitting application to such effect before the learned trial Court. Both the accused persons were examined by the learned trial Court under section 342, Cr.P.C. in the light of the accusation and the prosecution evidence produced at the trial, wherein they each denied and disputed the allegations and the incriminating pieces of evidence produced at the trial. Despite opportunity afforded to the accused persons they each did not opt to record their statements in defence in disproof of the charge within the meaning of section 340(2), Cr.P.C. nor produced any witness in defence. The learned trial Court after hearing the parties' learned counsel vide judgment impugned herein convicted and sentenced the appellant and co-accused Noor Hussain as hereinabove mentioned.

3. The learned counsel for the appellant, as well as the learned Advocate-General have been heard. Mr. Naeem Akhter strenuously contended that the cognizance of the offence taken by the learned Anti-Terrorism Court, Mekran at Turbat, proceedings drawn by the said Court in the case as well as; the judgment passed by it, are coram non judice, as at the face of it in view of the prosecution case no scheduled offence was alleged to have been committed by the accused persons nor the same attracted any of the provisions of sections 6 and 7 of the Anti-Terrorism Act, 1997; hence; the impugned judgment is a nullity in the eye of law and the appellant is/was at liberty to challenge the same at any time, but according to the learned counsel as the services of the appellant being a civil servant, working as M.T. driver in the Agricultural Engineering Department, Mekran Division at Turbat were terminated, therefore, he was pursuing the departmental remedy against the termination of his services being a matter of grave concern to him, without being actually aware of the consequences of the impugned judgment and eventually having known about the legal consequences of the judgment passed by the learned Anti-Terrorism Court, he assailed the same by filing the instant appeal. According to the learned counsel for want of complete lack of jurisdiction the proceedings drawn in the case by the learned Anti-Terrorism Court and the judgment passed as a result of such proceedings, are since a nullity in the eye of law, therefore, the inordinate delay in filing the appeal beyond the stipulated period of limitation would not be fatal to the appeal. According to the learned counsel the alleged disruption caused by the nominated accused persons in discharge of duties by the members of the QESCO recovery team, does not, nor every coercion, intimidation or violence against a public servant amount to an act of "terrorism" as contained in section 6 of the Anti-Terrorism Act, 1997. The alleged acts can be not taken and termed as "serious" disruption, "serious" coercion or intimidation or 'serious" violence being not dangerous to life or property as defined by section 2(w) read with section 6 (2), (1), (m) and (n) of Anti-Terrorism Act, 1997, hence; the learned Anti-Terrorism Court had no jurisdiction to try the case, as such; the impugned judgment irrespective of the inordinate delay in filing the appeal, is liable to be set aside. The learned counsel pointed out that the appellant and the co-accused Noor Hussain have been released from the prison after having undergone the sentence awarded to them each vide impugned judgment. He placed reliance on the judgment from Lahore jurisdiction in the case of Taj Muhammad v. The Judge, Anti-Terrorism Court and another reported in PLD 2003 Lah. 588.

4. The learned A.-G. mainly contended that the appeal being hopelessly barred by time, is liable to be dismissed on this score alone, and; even if it be assumed that the Anti-Terrorism Court had no jurisdiction to try the case, yet; the appellant was to file appeal within the stipulated period of limitation and not at his option. According to the learned A.-G. in cases of void orders or order passed without jurisdiction or complete lack of jurisdiction, the time for filing the appeal against such orders does not stop running, and; in the instant case against the impugned judgment dated 19-6-2002 appeal has been presented on 7-4-2004, therefore, the same is not condonable on any ground. The learned Advocate-General readily did not cite any case-law, however; undertook to provide list of the case-law, but till date no case-law has been cited or provided to the Court.

5. The contentions put forth on behalf of the parties have been considered in the light of the prosecution case and the evidence adduced at the trial. The relevant provisions of Anti-Terrorism Act, 1997 with specific reference to the section 6 read with section 7 and the schedules to the Act enacted in view of the provisions of section 2 have been considered. The case-laws from Lahore jurisdiction, cited by the appellant's learned counsel have also been carefully gone through. The brief facts relating to the case of Taj Muhammad v. The Judge, Anti-Terrorism Court and another reported in PLD 2003 Lah. 588 are that, the petitioner was the accused in F.I.R. No.30, registered with Police Station Green Town, Lahore on 16-1-2003 for the offences under sections 353/186, P.P.C. Section 7 of the Anti-Terrorism Act, 1997 and section 39-A of the Electricity Act, 1910, being tried at the relevant time by the learned Judge, Anti-Terrorism Court-II, Lahore. During the course of investigation of the said case, sections 379/337-A(ii)/337-L(ii), P.P.C. were added to the F.I.R. The petitioner and the co-accused in the case submitted an application under section 23 of the Anti-Terrorism Act, 1997 before the learned trial Court seeking transfer of the said criminal case to a Court of ordinary jurisdiction, but such application was dismissed by the learned trial Court vide order, dated 7-5-2003, which was assailed by the petitioner in the said case by filing writ petition before the Honourable Lahore High Court. The Honourable Bench seized of the matter after hearing the parties and going through the record observed that the main question calling for determination through the writ petition, was as to whether any "terrorism" as defined in section 6 of the Anti-Terrorism Act, 1997 was involved in this case or not and so as to determine jurisdiction of the Court constituted under the said Act trying this case. It was observed by the Honourable Court in view of the reported judgments i.e. 1994 SCMR 717; PLD 2001 SC 169 and 1992 PCr.LJ 2308 that it has already been held that the question of jurisdiction of a Special Court is to be considered with reference not only to the allegations contained in the F.I.R., but also in view of the facts of the case emerging during the investigation of such a case. In the light of the dictum laid down in the above quoted judgments, the Honourable Court adverting to the facts of the case noted that if the F.I.R. in the said case is to be taken into consideration then apparently some public servants had allegedly been obstructed from performance of their official duty and had also been assaulted upon by the accused party, but at the same time it is equally true that most of the allegations contained in the said F.I.R. had been found during the course of investigation of the case to be untrue. With reference to the allegations as contained in the F.I.R., it has been noted by the Honourable Court that the complainant in the said case maintained that he had been given blows with an iron rod on his head and nose and he had also received a brick bat injury on his left knee, but the Medico-legal Certificate issued in respect of the complainant showed that he had received only one scratch on the bridge of his nose and had not sustained any injury on his head or knee. Also, it was alleged in the F.I.R. that one of the accused persons had fired at the complainant with his revolver, but the bullet was stuck in the revolver and thus, the said attempt of firing remained abortive and it was also noticed by the Honourable Court that according to the F.I.R., apart from the complainant, three other public servants had also been beaten up by the accused party during the alleged occurrence, but the record of the investigation showed that two of these public servants were not medically examined, and; third one had sustained only a bruise on the right side of his face and no fire-arm was recovered during the investigation of the case and the use of an iron rod was also not found by the Investigating Officer to have been established. Thus, the Honourable Court in view of these factors available on record was prima facie convinced that the complainant party had resorted to quite a bit of exaggeration in the F.I.R. and an attempt was made therein to bolster and enhance the seriousness of the incident so as to attract the jurisdiction of Court constituted under the Anti-Terrorism Act, 1997 by holding that a minor and not so serious incident of an altercation and a push, shove or scuffle had apparently taken place at the spot with motivation other than bona fide, been given a colour by the complainant party of a graver matter involving 'terrorism', and; further it was observed by the Honourable Court that it is not every disruption of or interference with the duties of a public servant or every coercion intimidation or violence against a public servant, which attracts the definition of 'terrorism' contained in section 6 of the Act as what the provisions of section 6(2), (1), (m) and (n) of the said Act speak of is 'serious' interference, 'serious' disrupotion, 'serious' coercion or intimidation 'serious' violation against a public servant. The word 'serious' has been defined by section 2(w) of the said Act to mean 'dangerous to life or property. Accordingly; in view of the peculiar facts of the case it has been held that apparently nothing had been done by the accused party, which has been termed as dangerous to life or property and thus; the application of provisions of section 6(2) (1), (m), (n) appeared to be quite suspect. It has further been observed in view of the punishment provided under section 7 of the Anti-Terrorism Act, 1997 for the offences alleged in the said case to be surely much higher, strict and stringent as compared with the punishment provided for the same offence in the ordinary law. Accordingly; it was observed by the Honourable Court being conscious of the fact that while interpreting the provisions of the Anti-Terrorism Act, 1997 the Court has to construe the facts of the case strictly and the benefit, if any; arising in this regard has to be extended to the accused party, and; it was thus; held that the alleged interference or disruption of the duty of the public servant involved in the said case or coercion or intimidation of or violence against such public servants was not 'serious' enough to attract the definition of 'terrorism' contained in section 6 of the Act, and thus; a Court constituted under the said Act has no jurisdiction to try the said case consequently; the writ petition was accepted and the order impugned therein was set aside, the application of the petitioner in the case filed under section 23 of the Anti-Terrorism Act, 1997 was accepted and the criminal case ordered to be tried by an ordinary Court under the normal laws, by directing the learned Judge, Anti-Terrorism Court to transmit the record of the case to the learned Sessions Judge, Lahore.

Greatly been benefited of the interpretation and the observations made by the Honourable Lahore High Court in the above quoted reported judgment and the reference to the provisions of sections 6 and 7 and word 'serious' defined by section 2(w) of the Anti-Terrorism Act, 1997 it has become quite easier for me to adjudge prima facie and to determine in view of the material available with the learned Judge, Anti-Terrorism Court, collected during the course of investigation of the case including the F.I.R. as to whether an act of 'terrorism' as defined and contained in section 6 of the said Act, appeared to have been committed by the nominated accused persons, made punishable under section 7 of the Act and the Court constituted under the Anti-Terrorism Act, 1997 had the jurisdiction to try the offences, as well as; to prima facie assess in view of the evidence produced at the trial, if any; offence triable by such Court within the meaning of section 6 of the said Act was constituted or made out. It has been alleged by the first informant namely Manzoor Ahmed, S.D.O., QESCO, Turbat Sub-Division (P.W.2) in his written report that the WAPDA staff/party comprising of Asghar Ali, Nasir Ali, Abdul Rauf, Maqdoom along with Muhammad Hasil, Line-Superintendent-II proceeded for recovery of arrears of WAPDA charges from a consumer, holder of account No.0027510 and; to disconnect the electricity connections provided to residential premises of the said consumer when accused Muhammad Sharif (appellant) and Noor Hussain along with their companions attacked the WAPDA staff causing serious injuries to Muhammad Hasil, incharge of the party, as well as; damaged the WAPDA vehicle. During the course of investigation of the case victim of the offence namely Muhammad Hasil was produced before the Medico-legal Officer, D.H.Q. Hospital by the police for his medical examination. The Medico-legal Officer examined the injured brought to him with the history of assault, who noted a small cut on the left side of the nose of Muhammad Hasil, caused by blunt object and the nature of the injury was found to be simple and he issued medico-legal certificate to such effect. It is pertinent to note that the measurements of the small cut, noted by the Medico-legal Officer on the nose of the victim of the alleged offence, have not been mentioned in the M.L.C. nor during the course of investigation of the case, the blunt object allegedly used in causing such injury could be recovered by the Investigating Officer of the case. It is worthwhile to note that in the medico-legal certificate even the approximate duration of the injury, being fresh or otherwise, has not been mentioned, although; the medico-legal certificate shows that the injured was brought to the Medico-legal Officer, D.H.Q., Hospital, Turbat at about 1-45 p.m. on the date of alleged incident. It was alleged in the report made by the first informant that in the incident, the WAPDA vehicle was also damaged by the accused persons, but during the course of investigation of the case vehicle in question was not inspected by the Investigating Officer in respect of the alleged damage caused to such vehicle by the accused nor the same was produced at the trial by the prosecution. To substantiate such an allegation, inasmuch as none of the members of WAPDA party, who proceeded to the site and subjected to alleged attack by the accused persons uttered a word about the damage, if any; caused to the WAPDA vehicle by the accused persons. Hence; it can be safely concluded in view of the material produced before the learned trial Court that somewhat exaggeration relating to the alleged incident was made by P.W.2 regarding the damage allegedly caused by the accused persons to the official vehicle and it appears that the exaggeration was intentionally made with the view to show 'seriousness' of the alleged crime and to give jurisdiction to the Court to try the offence. It was alleged in the report that the members of the WAPDA team were subjected to attack by the accused persons and P.Ws. Muhammad Hasil and Asghar Ali have also alleged in their depositions at the trial that they including Nasir Ali, Abdul Rauf and Maqdoom were subjected to assault by the accused persons but none of them except Muhammad Hasil were produced before the Medico-legal Officer for examination, therefore, it can be safely assumed that except Muhammad Hasil none of them was subjected to attack or assault by the accused persons and had it been so, at least any other member of the WAPDA party must in all probabilities to have suffered any bruise or scratch or any minor injury on his person, thus; it can reasonably be believed even in view of the material produced to the Court before taking cognizance of the offence that to an extent exaggeration was made as regards the nature of the offence as against the one in actuality committed by the accused persons along with their companions and were it so, even if the attack was launched by the two nominated accused persons P.W.2 Muhammad Hasil would not have amongst the staff suffered a solitary simple cut injury on his nose. The extent of exaggeration of allegation as contained in the F.I.R., can further be adjudged in view of the allegation that the nominated accused persons along with their companions assaulted the WAPDA party, but during the course of investigation the Investigating Officer failed to point out in the light of the evidence collected by him about the involvement of any other person in the alleged assault, inasmuch as; the first informant did not support to such a plea/allegation at the trial, whereas; P.W. Muhammad Hasil (injured) alleged in his deposition before the Court that the accused Muhammad Sharif and Noor Hussain along with other companions made assault on them and similarly P.W. Asghar Ali reiterated the allegation that they were attacked by nominated accused persons along with their companions, but nothing incriminating was procured during the course of investigation of the case about the involvement of other persons in the case, and thus; it appears that deliberately an attempt was made to show seriousness of the alleged offence in order to give jurisdiction to the trial Court (Anti-Terrorism Court, Mekran at Turbat) to try the offence. Secondly, assuming for a moment that the WAPDA party, who had gone to the site and were acting in the discharge of duties were subjected to attack/assault by two nominated accused persons with the help and assistance of their companions (whose number even has not been disclosed), in all probabilities at least P.W. Muhammad Hasil to have suffered some injuries may be very minor other than the solitary simple injury sustained by him on the left side of his nose or any other member of the party to have had received some injury, in absence whereof even as per the material produced with the challan before the Court it was quite evident that an offence, serious in nature, was reported to the police to show that a 'serious' disruption and interference deterring the public servants from the discharge of their duties was committed, but such was not the case as alleged even in the light of the incriminating material placed before the trial Court to attract the relevant provisions of section 6 of the said Act. No doubt disruption and interference with the duties of the public servants was caused by the accused persons and a minor simple injury may be superficial in nature for want of necessary particulars lacking in the medico-legal certificate of the injured was caused, but such an act of violence against a public servant does not attract the definition of 'terrorism' contained in section 6 of the Act being not a 'serious' interference, 'serious' disruption, 'serious' coercion or intimidation of a 'serious' violation against a public servant within the meaning of section 2(w) of the said Act i.e. dangerous to life or property, hence; apparently the attributed act on the part of the accused persons does not amount to be dangerous to life or property and therefore, the application of provisions of section 6(2), (1) (m) and (n), appears to be out of question as well as; keeping in view the severe, strict and higher punishment of the offences provided in section 7 of the Anti-Terrorism Act, 1997, as compared to the punishment provided for the same nature of offence in the ordinary law, a Court while to adjudge the applicability of relevant provisions of the said Act, as has been laid down by the Honourable Lahore High Court in the above quoted judgment, to construe the facts of the case strictly and the benefit, if any; arising in this regard has to be extended to accused. In the instant case, as disclosed hereinabove the alleged act of violence against the public servant was not 'serious' enough to attract the definition of 'terrorism' contained in section 6 of the Act, and thus; the Court constituted under the said Act had no jurisdiction to try the case for complete lack of jurisdiction and the cognizance taken by the Anti-Terrorism Court of the offences in the light of the material produced with the challan and the proceedings of the case including the trial and the judgment finally passed by the said Court as a result of such proceedings being coram non judice are a nullity in the eye of law, consequently; the same being void and without jurisdiction, cannot sustain.

Reverting to the question of limitation it is an admitted feature of the case that after a lapse of considerable time period the instant appeal against the impugned judgment has been filed by a co-convict (appellant) seeking for setting side of the impugned conviction mainly on the ground that the learned trial Court in the abovesaid Act had no jurisdiction to try the case and also application for condonation of delay in filing the appeal much beyond the prescribed period of limitation has been filed on the grounds referred to in para. 3 of this judgment. It has consistently been held by the Superior Courts including the Honourable apex Court of the country that limitation will not run where an order is a nullity in the eye of law or an order passed in contravention of the mandatory provisions of law or an order passed in the proceedings found to be illegal and without jurisdiction and; bar of limitation can be ignored in respect of void orders which are nullity in the eye of law or ultra vires, which need not be formally set aside, but such would not be the case in relation to erroneous orders. A series of case-law on the point can be quoted and referred, however, a few of the reported judgments are cited hereinafter for reference and convenience i.e. Muhammad Shafi v. Mushtaq Ahmed through legal heirs and others 1996 SCMR 856, Syed Nazir Hassan v. The Settlement Commissioner and another PLD 1974 Lah. 434; Rashid Ahmed v. The State PLD 1972 SC 271; Malik Khawaja Muhammad and 24 others v. Marduman-e-Babar Kahol and 29 others 1987 SCMR 1543 and Mst. Rehmat Bibi and others v. Punnu Khan and others 1986 SCMR 962.

As it has been held hereinabove that the learned trial Court had no jurisdiction to try the offences, consequently; proceedings so conducted and the judgment passed as a result of such proceedings at the trial have been found to be void, without jurisdiction and a nullity in the eye of law for complete lack of jurisdiction in the peculiar facts and circumstances of the case discussed hereinabove, therefore, the appeal against such judgment in view of the above quoted case-law cannot be treated as hit by limitation, as no limitation against such order runs against the appellant. Consequently, the conviction of the accused (appellant) and the non-appearing co-accused including the judgment impugned herein are set aside. As the appellant Muhammad Sharif and Noor Hussain (non-appealing convict) were committed to the prison after their arrest by the learned trial Court and their warrants of commitment to serve out the sentence of imprisonment vide impugned judgment were also issued to the Deputy Superintendent, District Jail, Turbat by the learned trial Court and they both since undisputedly have suffered the awarded sentence of imprisonment, therefore, the case has not been ordered to be remitted to the Court of competent jurisdiction for trial of the offences against them under the normal law. The result is that this appeal is allowed in the above terms.

H.B.T./53/Q Appeal allowed.