MUMTAZ ALI KHAN RAJBAN and another vs FEDERATION OF PAKISTAN and others

NAZIM HUSSAIN SIDDIQUI, J.--This judgment will dispose of Civil Petitions Nos.1636-L and 1675-L of 2000, which require interpretation of various provisions of the Suppression of Terrorist Activities (Special Courts) Act, 1975, hereinafter referred to "the Act of 1975" and the Anti-Terrorism Act, 1997 (Act No,XXVII of 1997), hereinafter called "the Act of 1997". In Petition No,1636-L of 2000 leave to appeal is sought against judgment dated 8-2-2000 of a Division Bench, Lahore High Court, whereby Writ Petition No,901 of 2000 was dismissed, while in Petition No,1675-L of 2000 the judgment dated 5-6-2000 of a Division Bench of the said Court has been impugned, whereby Writ Petition No,10389 of 2000 was dismissed.

2. Briefly stated the facts of Petition No,1636-L of 2000 are that on 1-3-1998 at about 3-30 p.m.

Amjad Ali, Safdar Ali, Faiz Khan alias Mumtaz Khan, Ghazanfar Abbas and complainant were coming by a Pajero Jeep No,QAE/5116, which was being driven by Amjad Ali and when they reached Basti Munir Abad at about 4-30 p.m. They found a Car No,JGR/3414 parked on the right side of Abadi and its inmates were Muhammad Ali alias Mummi, Hubdar, Talib etc. They were armed with Kalashnikovs and they fired upon Haji Amjad Ali, Faiz Khan alias Mumtaz Khan, Chazanfar Abbass Shah, and Safdar Ali Haji Amjid, Safdar Ali and Faiz Khan alias Mumtaz Khan sustained fire-arm injuries and expired. Ghazanfar Abbass, however, survived. It is alleged that the occurrence took place at the instance of Mumtaz Ali Khan, petitioner. On completion of investigation, charge-sheet was submitted before Special Court, Suppression of Terrorist Activities, Faisalabad.

3. The relevant facts of Petition No:1675 are that F.I.R. No,191 of 2000 dated 19-4-2000, under sections 302, 148, 149, P.P.C. Read with section 7 of the Act, 1997, was registered at Police Station City Gojra, District Toba Tek Singh, on the allegations of Ishtiaq Ahmed complainant, that on aforesaid date, he alongwith Muhammad Siddique had come to Gojra and had gone to visit Abdul Latif, a Professor of Government Municipal Degiee College, Faisalabad, who had come to Government Degree College, Gojra for conducting B.A. Examination. At about 4-45 p.m. They reached near the gate of Government College, Gojra, Professor Abdul Latif and Khalid Hussain met them. Professor told them that at morning time in the examination hall, Shahzaa alias Toti alias Shera was found copying and he prohibited him from doing so and he (latter) threatened him with the dire consequences saying that his father was the President of Gojra Bar Association and he would see him (Professor).

Meanwhile a Suzuki Car came at the gate of College and 4 boys emerged from it. They signalled towards the Professor. Afterwards, complainant came to know that their names were Shahzad alias Toti alias Shera, Sharafat Ali, Muhammad Anwar and Sajid Christian. Sajid Christian was driving the car. The complainant, Muhammad Siddique and Professor went on foot towards Lari Adda, Gojra, when they reached Chowk Gadda Khana, near a mosque at about 6-10 p.m. a Suzuki car came and from it abovenamed persons came out. Shahzad and Sharafat were armed with iron grips and Muhammad Anwar and Sajid Christian with Dandas. A motorcycle came there and 3 boys were riding on it. They were armed with Sotas and they joined Shahzad and others. Shahzad raised Lalkara and said the Professor would be taught a lesson for not allowing him to copy in the examination hall. Thereafter, Professor was first attacked by Shahzad and then by Sharafat Ali.

Shahzad gave iron fist below to the Professor, which hit him below the bone of rib on the left side of the chest. Others caused Dandas and Sotas blows to the Professor, who succumbed to the injuries on the spot. Zahid, Imran, Muhammad Afzal and Shahid were apprehended at the scene of offence.

4. Dr. A. Basit, Advocate Supreme Court, learned counsel for the petitioners contends that the Special Court under the Act of 1975, has no jurisdiction to hold trial and that the trial shall be held by learned Court of Session, constituted under the Code of Criminal Procedure, 1898. He also submitted that above contention was turned down by the Special Court on the ground that, since, according to F.I.R. And report under section 173, Cr.P.C. Kalashnikov/semi-automatic weapons were used in commission of the offence, therefore, the Special Court had jurisdiction under the Act of 1975. He also argued that the Act of 1997 had impliedly repealed the Act of 1975, as such, the Court under the Act of 1975 no longer remained competent to hold trial for said offence. He also urged that since the Act of 1975 impliedly stood repealed and kalashnikov stood omitted from the Schedule of the Act of 1997 and that the occurrence being the result of family dispute and not an act of terrorism, the Special Court constituted under the Act of 1997, also had no jurisdiction to hold trial, therefore, the case was to be tried by ordinary Court, established under the act of criminal procedure.

5. With reference to Petition No,1675, learned counsel argued that the case was not covered by section 6 of the Act of 1997, as the deceased was not murdered with fire-arms or any weapon mentioned therein.

6. It would be advantageous to reproduce paragraph (a)(ii) and (c) of the Schedule of the Act, 1975, which are as under:-- ".........(a)(ii)(a) section 302 or section 307, if committed in the course of the same transaction in which an offence specified in this paragraph or paragraphs (b) and (c) is committed, or in addition to or in combination with such offence. ..(c) any offence punishable under the Arms Act, 1878 (XI of 1878), or any offence punishable under any of the following sections of the West Pakistan Arms Ordinance, 1965 (West Pakistan Ordinance No,XX of 1965), namely, sections 8, 9 and 10, if committed in respect of a cannon, grenade, bomb or rocket; or a light or heavy automatic or semi-automatic weapon such as Kalashnikov, G-III Rifle or any other type of assault rifle... ...

7. Perusal of above provisions unequivocally postulates that in case the weapon is used, as mentioned in above provisions, the Special Court, in view of section 4 of the Act of 1975, shall have exclusive jurisdiction for trying such cases.

8. It is absolutely clear that in the crime covered by Petition No,16364L of 2000 Kalashnikov was used. In the case reported as Allah Din and 18 others v. The State and another 1994 SCM R 717, this Court while dealing the issue of jurisdiction of the Special Court, observed as follows:-- "... ...We are in agreement with view expressed in the reported judgment mentioned above, and further observe that 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 has to decide whether cognizance is to be taken or not. In the instant case incident is seen by six eye-witnesses and on our query whether eye-witnesses have supported the allegation in F.I.R. About use of Kalashnikov like weapon, learned counsel for the petitioners replied in the affirmative. In the circumstances material available with prosecution in this case is sufficient to justify invocation of jurisdiction by the Special Court."

9. As regards the plea of alleged repeal of the Act, 1975 by necessary implications, it is significant to note that the general rule is that no repeal can be implied, unless there is an express repeal of an earlier Act by the later Act, or unless it is established that the two Acts cannot stand together.

However, a repeal by implication is possible, as laid'down in N.S. Bindra's Interpretation of Statutes, Eighth Edition, page 829/830 in the following circumstances:-- "(1) If its provisions are plainly repugnant to a subsequent statute.

(2) If the two standing together would lead to wholly absurd consequences.

(3) If the entire subject-matter of the first is taken away by the second ..."

10. Adverting to the provisions of the aforesaid two Acts, now it is to be seen if they can stand together or not. The purpose of the Act, 1975 is of suppressing acts of sabotage, subversion and terrorism and to provide for speedy trial of offence committed in furtherance of or in connection with such acts. The Schedule of this Act enumerates the offences, which are triable under this Act.

This includes the offences of Chapter IV of the Pakistan Penal Code, which are offences against the State.

11. The object of the Act, 1997 primarily is to prevent terrorism, sectarian violence and speedy trial of heinous offences. It is true that this Act to some extent contains the substantive law, but primarily it is procedural in nature. This Act is covered up Item No,1, para.No,1 of Federal Legislative List in the 4th Schedule of the Constitution being relatable to the defence of Federation and by Items Nos.1 and 2 of the Concurrent Legislative List, which deals criminal law/criminal procedure etc. The Act was enacted for promotion of social justice and eradication of social evils, which had arisen at alarming rate.

12. Although some of the offences triable under these two Acts are common, for example offences punishable under sections 121, 121-A, 122-B, 123, 365-A, 402-A, 402-B, 302(c), 392, 395, 397, 398, P.P.C., yet, there are many other offences under various Acts/Rules which are triable under one of these Acts and not both.

13. In view of above, it cannot be said that the provisions of the Act of 1975 are repugnant to the provisions of the Act of 1997 nor it can be contended that they cannot stand together. Their subject-matters are different. Neither all provisions of the Act of 1997 are substitute of the provisions of the Act of 1975 nor the provisions of the Act, 1975 are inconsistent with the Act of 1997.

In fact, their applicability is governed by different criteria. It is not necessary that all offences falling under one broad category shall be dealt with under the same statute. The offences relating to heroin, narcotics substance are dealt with both under the Customs Act, 1969 and Control of Narcotic Substances Act, 1997, but the provisions of these two Acts are invoked under different circumstances. The Customs Act is attracted in case of smuggling, while Control of Narcotic Substances Act controls the production, processing and trafficking of drugs and substances.

14. Accordingly, we hold that the Act of 1975 is not impliedly repealed by the Act of 1997.

15. Section 6 of the Anti-Terrorism Act, 1997 reads as under:-- "6. Terrorist act.--A person is said to commit a terrorist act if he,--

(a) in order to, or if the effect of his actions will be to, strike terror or create a sense of fear and insecurity in the people, or any section of the people, does any act or thing by using bombs, dynamite or other explosive or inflammable substances, or such fire-arms or other lethal weapons as may be notified, or poisons or noxious gases or chemicals, in such .a manner as to cause, or be likely to cause, the death of, or injury to, any person or persons, or damage to, or destruction of, property on a large scale, or a widespread disruption of supplies of services essential to the life of the community, or threatens with the use of force public servants in order to prevent them from discharging their lawful duties, or

(b) commits a scheduled offence, the effect of which will be, or be likely to be, to strike terror, or create a sense of fear and insecurity in the people or any section of the people, or to adversely affect harmony among different sections of the people, or

(c) commits an act of gang rape, child molestation, or robbery coupled with rape as specified in the Schedule to this Act; or

(d) commits an act of civil commotion as specified in section 7-A."

16. It is contended with reference to Petition No,1675 that the act of the petitioner does not fall within the ambit of "Terrorism Act" as defined in above-quoted section. Precisely stated the contention is that Professor Abdul Latif, deceased only prevented the petitioner from copying in the examination hall and immediately thereafter nothing happened and that the threat, as contemplated in above section, shall precede before a public servant is prevented from discharging his lawful duties.

Learned counsel argued that at the time of occurrence the deceased was not performing any official duty, as such, alleged threat in the examination hall did not bring the case within the purview of above-quoted section. The contention is devoid of any force. The threat was translated into reality, and the deceased was killed. It is not necessary that the force must have been used immediate after the threat. The act of the petitioner squarely fell within the scope of "terrorist act", for the reasons that as a consequences of said threat the deceased was killed. Besides in the examination hall, as well as, in the college every body knew about it. It struck terror and also created sense of fear and insecurity amongst people in general and Teachers/Professors in particular.

17. We hold that impugned judgments of the High Court are perfectly correct and no interference is warranted. Leave to appeal is refused and the petitions are dismissed.