Section 21 Anti Terrorism Act (ATA),1997

Section 21 : Protection of Judges, Counsel, Public Prosecutor, witnesses and persons concerned with Court proceedings

2023 YLR 1274 QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD ANWAR VS State

497—Explosive Substances Act (VI of 1908), S. 5—Anti-Terrorism Act (XXVII of 1997), Ss. 7, 11-F(i), 11-N & 21(i)—Making or possessing explosives under suspicious circumstances—Bail, refusal of—Scope—Accused sought bail after arrest in an FIR registered under S. 5 of Explosive Substances Act, 1908 and Ss. 7, 11-F(i), 11-N & 21(i) of Anti-Terrorism Act, 1997—Tentative assessment as per material available on record transpired that allegedly explosive substance along with prima wire had been recovered from the accused and prima facie, no animosity had been alleged against the prosecution by the accused which could result in false implication of the accused in the case—Application was dismissed, in circumstances.

2020 MLD 850 LAHORE-HIGH-COURT-LAHORE

Hafiz IMRAN alias ABBAS alias HAMZA VS State

Ss. 365-A, 395 & 342—Anti-Terrorism Act, (XXVII of 1997), Ss.21(j) & 7—-Kidnapping or abducting for extorting property, valuable securities, dacoity, wrongful confinement, abetting, terrorism—Appreciation of evidence—Benefit of doubt—Accused were charged for kidnapping a foreigner from his residential room, caused him injury on his head while inflicting blow with butt of pistol and took him with themselves; while leaving place of occurrence accused persons also snatched mobile phones from other two persons—Admittedly, occurrence took place at 03:00/03:15 a.m. and no source of light had been claimed by the prosecution—One prosecution witness during his statement though introduced source of light but it was found as dishonest improvement—Neither any source of light had been taken into possession nor shown in site plan prepared by Investigating Officer—Prosecution case was that CCTV cameras were installed at the place of occurrence but neither said cameras nor any CCTV footage/movie was produced before the court—Prosecution could not produce any valid reason for non-production of the same and also could not establish through any cogent material that said CCTV camera was not functional at that time—Prosecution case was that there was a Security Guard in the building where alleged occurrence took place but prosecution could not bring on record any material during investigation or trial of the case to prove that there was a Security Guard at the relevant time—Witness had further stated that he did not know whether site plan was drafted on his pointing out in his presence and even he could not tell about number of rooms in the house i.e. place of occurrence and also could not tell that either there was any wire on the boundary wall—Said witness also could not tell that after how much time of the occurrence police had arrived—Prosecution case was that two witnesses along with their other companions were got tied in office at ground floor with ropes/string of shalwar (azarband) and solution tape was stuck at their mouths—Assailants, thereafter, took one witness with them to upper storey of the house and then abducted the foreigner—Two witnesses joined identification parade, but one witness was not present during identification parade, on that score also, the identification parade was of no help to the case of prosecution—Actual role of appellant in abduction could not be unearthed during identification parade, which was fatal for the prosecution—Prosecution had failed to prove its—Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

2020 MLD 850 LAHORE-HIGH-COURT-LAHORE

Hafiz IMRAN alias ABBAS alias HAMZA VS State

Ss. 365-A, 395 & 342—Anti-Terrorism Act, (XXVII of 1997), Ss. 21(j) & 7—-Qanun-e-Shahadat (10 of 1984), Art. 22—Kidnapping or abducting for extorting property, valuable securities, dacoity, wrongful confinement, abetting, terrorism—Appreciation of evidence—Delay in conducting test identification parade—Effect—Record showed that appellant was arrested and was kept in police custody and sent to judicial lockup on the next day for the purpose of identification parade—Identification parade was held after seven days under the supervision of Judicial Magistrate—Question was as to where appellant was kept by the police and why he was not immediately sent to judicial lockup—Objection of the accused at the time of identification parade that his pictures were made and shown to the prosecution witnesses, was not without substance and there was every possibility regarding exposing of his identity to the prosecution witnesses—Said fact ipso facto would minimize the value of identification parade, thus was fatal for the case of prosecution—Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

2020 MLD 850 LAHORE-HIGH-COURT-LAHORE

Hafiz IMRAN alias ABBAS alias HAMZA VS State

Ss. 365-A, 395 & 342—Anti-Terrorism Act, (XXVII of 1997), Ss. 21(j) & 7—-Kidnapping or abducting for extorting property, valuable securities, dacoity, wrongful confinement, abetting, terrorism—Appreciation of evidence—Recovery of weapon of offence on the pointation of accused—Reliance—Scope—Record showed that a pistol was recovered on the pointation of the accused—Prosecution’s case was that no firearm weapon was used in the occurrence and only a butt blow of pistol was given to abductee, but admittedly recovered pistol was not blood stained—No report regarding working condition of the ‘pistol’ had been obtained and produced by the prosecution—Said recovery, therefore, was inconsequential and of no help to the case of prosecution—Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

2020 MLD 850 LAHORE-HIGH-COURT-LAHORE

Hafiz IMRAN alias ABBAS alias HAMZA VS State

2020 YLR 676 KARACHI-HIGH-COURT-SINDH

AFAQ AHMED VS State

Ss. 302, 324, 353, 109 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 21—Qanun-e-Shahadat (10 of 1984), Art. 129(g)—Criminal Procedure Code (V of 1898), S. 161—Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, abetment, common intention—Act of terrorism—Appreciation of evidence—Benefit of doubt—Hearsay evidence—Withholding of evidence—Non-production of material witness due to security concerns—Effect—Two police constables were on patrol when they signaled a motorbike to stop but its riders sped away and the constables chased them—Motorbike was chased into a street whereupon four persons came in the way of constables and an exchange of hot words followed whereupon said four persons fired at the constables, one of them died—Complainant was not an eye-witness to the firing and had allegedly reached the place of incident within a few minutes of the occurrence after being informed by his friend through mobile phone—Friend of complainant was a foundational witness of the prosecution case as it was his narration of the events to the complainant over the phone which led the complainant to go to the scene and formed basis of the FIR—Friend of complainant was not examined by the prosecution to corroborate the complainant’s FIR especially in respect of the shooting of the deceased nor was any CDR (Call Data Record) produced by the prosecution to support such conversation— Impugned judgment although mentioned that the friend of complainant did not give evidence due to security concern but it was a weak argument for him not to give evidence as the court could always provide adequate security to a witness—Non-examination of the friend of complainant was an important omission by the prosecution as their case was built on the hearsay evidence—Statement under S. 161, Cr.P.C. could never replace the value/ weight of evidence given under oath which was tested through cross-examination—Friend of complainant was originally on the calendar of witnesses and was later on given up, therefore, Art. 129(g) of Qanun-e-Shahadat, 1984 came into play whereby it could be presumed that had the friend of complainant been produced he might not have given evidence favourable to the prosecution’s case—Impugned judgment was set aside, in circumstances and by extending benefit of doubt, accused was acquitted of the charge.

2018 PLD 836 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD JAWAD HAMID VS Mian MUHAMMAD NAWAZ SHARIF

21(d)—Criminal Procedure Code (V of 1898), Ss. 435 & 439—Revision petition—Maintainability—Order passed by a Court under Anti-Terrorism Act, 1997, during proceedings of a case—Anti-Terrorism Court was subordinate/inferior court to the High Court—Under the Anti-Terrorism Act, 1997 no restriction had been imposed for filing of revision petition—High Court had the visitorial power over the Anti-Terrorism Court, therefore, it could entertain petitions in the nature of those covered by Ss.435 & 439, Cr.P.C, except to the extent of grant of bail or release of an accused in a case triable by Anti-Terrorism Court, in light of restriction imposed under S. 21(d) of the Anti-Terrorism Court, 1997.

2018 YLR 1302 LAHORE-HIGH-COURT-LAHORE

MUKHTAR alias MOKHI VS State

Ss. 302(b), 148 & 149—Anti-Terrorism Act (XXVII of 1997), Ss. 7(a) & 21(L)—Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, act of terrorism, absconsion—Appreciation of evidence—Benefit of doubt—Prosecution case was that accused party armed with dagger, Kalashnikovs, 223-bore guns, assaulted on the complainant party, made firing indiscriminately upon the complainant party, as a result of which three persons died—Motive for the occurrence was stated to be previous enmity between the parties—Record showed that two persons including complainant claimed to be present in the next room and witnessed the occurrence—Complainant/son of a deceased narrated the episode of the crime in his evidence before the court, but his said tenor did not synchronize with the narrative related by the witness in the crime report—Human response in a crisis situation could not be hypothesized with empirical exactitude, nonetheless, given antecedents, inter se relationship and the duration for which the occurrence lasted, made presence of complainant extremely improbable as being so closely situated, he could not evade notice by the assailants and thus, being a choice target, escaped consequences thereof—Said situation irresistibly suggested that complainant was not physically present at the crime scene—Position taken by both the eye-witnesses that they mutely witnessed the family members being slaughtered by peeping through door apertures was ludicrous to say the least—Attempts made by the complainant to bring his testimony in line with medical evidence through improvement, duly confronted, impinged upon his testimony-Seemingly, there was no occasion for eye-witness to stay overnight with the complainant party—Said witness had admitted that he resided in his house situated in village—Attempt of eye-witness to furnish a comprehensive account of the occurrence despite being confined in the adjoining room in the midst of a winter night could not be received without suspicion—Said witness had resorted to improvements to be in a unison with complainant—Source of light was yet another factor heavily militating against the prosecution case—Delayed postmortem examination during the following night commencing from 9.10 p.m. onwards admitted enough space to infer that inquest reports as well as the crime report were not prepared at points of time mentioned therein, and thus, deliberations, consultations and guesswork could not be ruled out—In the present case, two young lads and an aging old man at the fag-end of his life could not be choice targets when the accused had an axe to grind more aptly against the complainant who could have been located by the assailants without much hassle—Conviction of accused could not be maintained on the basis of a positive forensic report alone—Said circumstances inexorably pointed upon the veracity of prosecution case—Appeal was allowed and accused persons were acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.

2015 YLR 805 LAHORE-HIGH-COURT-LAHORE

DILAWAR MEHMOOD alias DULLI VS State

302(b)—Anti-Terrorism Act (XXVII of 1997), Ss.7 & 21(L)—Qatl-i-amd, act of terrorism—Appreciation of evidence—Sentence, reduction in—FIR was promptly lodged which had excluded every doubt that the complainant had deliberated or consulted anybody before the registration of the case—Parties being known to each other before the incident, question of mistaken identity of accused persons, did not arise—Nothing had been deposed as to motive of the case—Ocular account, had been found hinging upon the statements of the complainant, the real brother of the deceased and other prosecution witness, not related to the complainant party, whereas other eye-witness, was renounced as being unnecessary by the prosecution—Defence failed to create any dent, or to uproot the presence of the prosecution witnesses at the place of occurrence at the relevant time—Accused and absconding co-accused, both held Kalashnikov at the relevant time, while riding a bike and mounted murderous assault, resulting in causing injuries to death of the deceased at the spot—Both after raising Lalkaras, had started firing on the deceased resulted in his death—Medical evidence also corroborated the ocular account—Prolonged, unexplained abscondence of accused, had been proved on the record, beyond shadow of reasonable doubt—Kalashnikov, was not sent to the office of Forensic Science Laboratory to ascertain about its present condition as to workability or otherwise—No crime empty was taken into possession from the spot, but was recovered after a period of about 2-1/2 years of the occurrence—Prosecution had proved its case beyond shadow of reasonable doubt against accused, but quantum of sentence could be reduced, for the reason, that; prosecution had not been able to pinpoint any particular injury caused by accused which had caused the death of the deceased—Quantum of sentences imposed upon accused, was commuted to imprisonment for life from death sentence—All other sentences awarded to accused would remain enforced and would run concurrently with benefit of S. 382-B, Cr.P.C.

2015 PCrLJ 1380 LAHORE-HIGH-COURT-LAHORE

SAFEER AHMAD VS State

Ss. 7 & 21—Anti Terrorism trial—Police witnesses—Absence of private witnesses—Effect—Police witnesses cannot be brushed aside merely on bald allegation that they happened to be employees of police department—In cases of terrorism, people from public try not to indulge themselves as witnesses of occurrence so as to avoid further enmity with terrorists.

2014 YLR 1814 LAHORE-HIGH-COURT-LAHORE

ABDUS SATTAR VS State

Ss. 302(b), 324 & 353—Anti-Terrorism Act (XXVII of 1997), Ss.7, 21(L) & 34—Qatl-e-amd, attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, act of terrorism, common intention—Appreciation of evidence—Benefit of doubt—Matter was reported to the Police without any loss of time—Occurrence had taken place at night time, but prosecution had not been able to prove the source of light at the time of occurrence—Presence of the eye-witnesses at the place of occurrence at the relevant time, was highly doubtful—Testimony of prosecution witness caused doubt in the prosecution version, when he deposed before the court that acquitted accused persons admitted their participation in the alleged occurrence through extra-judicial confession along with accused persons—Medical evidence had not been found in line with the ocular account in toto—Such fact had caused doubt in the prosecution case—Presence of the prosecution witnesses, also caused doubt as to their conduct at the place of occurrence—Delayed dispatching of the empties as well as the crime weapons, had made the credibility of the positive report of the Ballistic Expert dubious—Recovery of motorcycle, allegedly being driven by accused at the time of his arrest, carried no value, because the whole record, except the memo did not convey/prove the same to have been used in the commission of crime—Prosecution having failed to prove its case against accused persons beyond shadow of reasonable doubt, impugned judgment of conviction and sentence, passed by the Trial Court, were set aside; they were acquitted of the charges imputed against them, by extending them benefit of doubt, and were set at liberty, in circumstances.

2014 PCrLJ 726 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ASIF VS State

497(2)—Penal Code (XLV of 1860), Ss. 302, 324, 353, 109, 34, 427, 201 & 186—Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7 & 21(l)—Qatl-e-amd, attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, abetment, common intention, mischief causing damage to the amount of fifty rupees, causing disappearance of evidence of offence, or giving false information to screen offender, obstructing public servant in discharge of public functions, acts of terrorism—Bail, grant of—Further inquiry—Co-accused persons allegedly killed police officials and other deceased persons—Allegation against accused was that he drove the co-accused persons to the place of occurrence—Accused was only ascribed role of conspiracy in the F.I.R.—Occurrence was committed by four unknown persons, but subsequently, complainant made supplementary statement indicating that accused was driving the car in which the co-accused persons came at the spot and resorted to firing—Accused was found innocent during investigation and in report under S. 173, Cr.P.C. his name was put in Column No.2—One of the co-accused who was assigned a role similar to that of accused had already been released on bail—Accused was also the complainant of an earlier case, wherein a deceased of the present occurrence and his brother were nominated for the crime, therefore, probability of false implication of accused in the present case could not be ruled out—Accused was no more required for further investigation—Case was one of further inquiry—Accused was released on bail in circumstances.

2014 PCrLJ 102 LAHORE-HIGH-COURT-LAHORE

Rana MUHAMMAD TAHSEEN VS State

497— Penal Code (XLV of 1860), Ss. 302, 324, 337-A(i), 337-F(iii), 353, 427, 186, 109, 201 & 34—Anti-Terrorism Act (XXVII of 1997), Ss.7 & 21(i)—Qatl-e-amd, attempt to commit qatl-e-amd, causing Shajjah-i-Khafifah, Mutalahimah, assault or criminal force to deter public servant from discharge of his duty, mischief, obstructing public servant in discharge of public function, abetment, causing disappearance of evidence of offence, common intention, act of terrorism—Bail, grant of—Two co-accused had been allowed bail by the Trial Court—Role of accused was that he being in league with main accused at the time of occurrence left the official vehicle, and he was not caused injuries by any one, so his involvement was apparent—Accused (a police official) was investigator of the earlier case of his Police Station, his connection with the complainant of said case, over telephone, could not be considered as a role of being involved with the other co-accused—Nothing had been recovered from accused during investigation—Matter regarding involvement of accused, and the extent to which he was liable, could only be determined after recording of evidence—Report of Doctor indicated that accused was patient of hepatitis and suffering from Diabetes, neuropathic pain and other diseases, which could not properly be taken care of in Jail—Further detention of accused in jail would serve no useful purpose—Bail was granted.

2012 YLR 1273 PESHAWAR-HIGH-COURT

AKHTAR ABBAS VS State

Ss. 302(b), 324, 427, 148 & 149—Anti-Terrorism Act (XXVII of 1997), Ss.7 & 21—West Pakistan Arms Ordinance (XX of 1965), S.13—Qatl-e-amd, attempt to commit qatl-e-amd, mischief, act of terrorism and recovery of unlicensed arms—Appreciation of evidence—Identity of accused had sufficiently been proved without identification parade—Identification of accused, who got injured in the occurrence, was further corroborated by the recovery of .30 bore pistol from his possession at the time of his arrest—Forensic Science Laboratory had match ed the said pistol with the empties recovered from the spot and were found to have been fired from the said pistol—Both prosecution witnesses were natural witnesses and their presence on the spot was proved at the time of occurrence—No improvement, contradiction or discrepancy was noticed in the statements of said witnesses, their testimony was trustworthy and confidence inspiring and despite lengthy cross-examination, nothing had been pointed out on their part for false implication and false statement—Nothing had been established by defence to indicate that either they had ill-will against accused or any motive to falsely implicate him—Defence could not point out any defect in medical evidence and the post mortem examination of the deceased—Medical evidence had corroborated ocular evidence and supported the prosecution case in toto—Recovery of pistol and empties from the spot, also supported the eye-witness’s version and that was a strong circumstance connecting accused with the guilt—Forensic Science Laboratory’s report, had sufficiently connected accused with the offence and strongly corroborated the ocular evidence as well as entire prosecution case—Motive given in the F.I.R. was sectarian issue, which stood proved because deceased belonged to opposite sect and was social worker for his community—Incident was reported to Police very quickly and there was no probability for the complainant to falsely implicate accused—Strong case having been made out against accused, he was rightly convicted—Place of occurrence was a busy area and occurrence had caused panic in the general public; and had also promoted tension between two religious sects—Deceased and injured who were innocent, were killed brutally—Action of accused had resulted in creating fear and insecurity in the general public, which amounted to terrorism—Murder of innocent person in view of sectarian difference, amounted to Fasad-fil-Irz—Accused was not entitled to any leniency—Death sentence awarded to accused was confirmed, in circumstances.

2012 YLR 1778 LAHORE-HIGH-COURT-LAHORE

NADEEM HUSSAIN VS State

497(4)—Penal Code (XLV of 1860), Ss.302/109/147/148/149—Anti-Terrorism Act (XXVII of 1997), Ss.7/21(i)—Police Order (22 of 2002), Art.155(c)—Qatl-e-amd—Bail, grant of—Contents of F.I.R., of course, were not shock free, but courts had to decide the cases within the framework of law—Accused was not nominated in the F.I.R. and he had been implicated in the case by the complainant through his supplementary statement after five days of the incident—Police after thorough investigation had found the accused innocent and placed his name in column No.2 of the challan—Non-granting of bail after the commencement of the trial primarily related to practice of the court, whereas the law did not bar grant of bail—Right of a person in a bail matter was involved and where practice and right would go simultaneously, the right would prevail—Even under S.497(4), Cr.P.C. bail could be granted at any stage of the case—Accused was admitted to bail in circumstances.

2011 YLR 1512 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD NAWAZ VS State

Ss. 337-J, 457, 380, 353, 109 & 411—Anti-Terrorism Act (XXVII of 1997), Ss.7 & 21—Criminal Procedure Code (V of 1898), S.35—Causing hurt by means of poison, lurking house-trespass or house-breaking by night, theft in dwelling house, assault or criminal force, dishonestly receiving stolen property and terrorism—Appreciation of evidence—Main accused was proved to be master mind of the occurrence—Major portion of the looted amount had been recovered from accused–All prosecution witnesses, who were, served intoxicating food, had categorically deposed against the accused—Guilt of said accused having been proved beyond any shadow of doubt, his counsel had not advanced any argument suggesting his innocence in the incident but had only argued with regard to the quantum of sentence and converting sentences awarded to accused from consecutive to concurrent—Accused had rightly been awarded maximum sentence provided for the offences; and he did not deserve any leniency to be shown qua the magnitude of the punishment–Argument of the counsel for accused that accused could not be awarded sentence beyond 14 years and it would be in violation of proviso (a) to subsection (2) of S.35, Cr.P. C. had force–Said legal infirmity arisen in the case, could be rectified, if the sentences awarded to accused on 6 counts, under various offences in one and the same trial were ordered to run concurrently, instead of consecutively—Court had committed illegality by not providing any sentence in case of default in payment of fine imposed upon accused—Trial Court had also failed to provide any sentence in lieu of non-payment of compensation under S.544-A, Cr.P.C.—High Court ordered that, accused would suffer further simple imprisonment for 6 months in such default—Accused was entitled to benefit of S.382-B, Cr. P. C.

2011 YLR 1512 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD NAWAZ VS State

Ss. 337-J, 457, 380, 353, 109 & 411—Anti-Terrorism Act (XXVII of 1997), Ss.7 & 21—Causing hurt by means of poison, lurking house-trespass, or house-breaking by night, theft in dwelling house, assault or criminal force, dishonestly receiving stolen property and terrorism—AppreciaÂtion of evidence—Only role attributed to two accused persons was that of facilitating the transaction of the looted money—Prosecution had failed to prove their involvement in the commission of the offence—Only a meagre amount had been recovered from said accused persons, which instead of proving the prosecution case, had advanced the defence version of accused persons—Both accused were driver by profession and element of mens rea, in their act of transporting main accused towards different places, was not proved by any cogent and convincing evidence—Involvement of accused persons in any of the offences charged against them being highly doubtful, their convicÂtion by the Trial Court, was not justified—Conviction and sentence were set aside and accused were released.

2011 YLR 1512 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD NAWAZ VS State

Ss. 337-J, 457, 380, 353, 109 & 411—Anti-Terrorism Act (XXVII of 1997), Ss.7 & 21—Causing hurt by means of poison, lurking house-trespass or house-breaking by night, theft in dwelling house, assault or criminal force, dishonestly receiving stolen property and terrorism—Appreciation of evidence—Presence of two accused persons at the time of incident was proved by cogent and reliable evidence—One of said accused was a Police Constable and at the relevant time was posted at the place of occurrence—Other accused who was private person, belonged to the village of main accused—Both said accused having not taken intoxicated meal served by accused, their connivance and knowledge of plan of main accused, was established—During the investigation recovery of a part of looted amount had been effected from both said accused—Such fact had ruled out their false implication in the case—Said accused were connected with the commission of the offence during investigation—No direct evidence being available to prove the offences charged against the accused persons, it would serve the interest of justice, if their sentences were modified and reduced to that of already undergone by them—Order accordingly.

2010 PLD 428 LAHORE-HIGH-COURT-LAHORE

HAMMAD ABBASI VS SUPERINTENDENT, CENTRAL ADYALA JAIL, RAWALPINDI

401—Anti-Terrorism Act (XXVII of 1997), Ss. 7(a), 7(d), 21-1 21-F—Penal Code (XLV of 1860), Ss. 302/149 &148—Constitution of Pakistan (1973), Arts.9, 25 & 199—Acts of terrorism, aid and abetment, qatl-e-amd, rioting with deadly weapons—Constitutional petition—Remissions, grant of—Accused having been convicted and sentenced under the Anti-Terrorism Act, 1997, had been refused all kinds of remissions by Jail Authorities vide S.21-F of the said Act—Article 25 of the Constitution had provided that all the citizens living in Pakistan were equal before law and entitled to equal protection of law, i.e. all persons subjected to law should be treated of similar nature and alike under all circumstances and conditions, both in privileges conferred and in the liabilities imposed; it must be amongst equals—Equality had to be between persons placed in the same set of circumstances—Similarly, there should be one set of rules for every convict under any law and that the forum of trial and the procedure may be different and the punishments under same laws may be more stringent as compared to the other enactments, but after conviction the convict should be governed under the Prison Rules and not under the law pertaining to conviction—Petitioner, in the present case, had been convicted and sentenced by the Anti-Terrorism Court and was not being granted special and ordinary remissions under the Jail Manual—Purpose of remissions was to reform the prisoner that it might be incentive to reform himself with the purpose to get earlier release, which would be a good gesture towards prisoners and society—Denial of remissions to the convicts under Anti-Terrorism Act, 1997, and allowing the same to those convicted under the Anti-Corruption Laws by the Provincial Government, would be discriminatory; besides once the benefit of S.382-B, Cr.P.C. was granted to a convict, then how the benefit of remissions could be withheld to that convict—Refusal of remission to such convict would tantamount to deprive him of his liberty within the contemplation of Article 9 of the Constitution, which provides that “No person shall be deprived of life or liberty save in accordance with law”—Section 21-F of the Anti Terrorism Act, 1997, was consequently declared as ultra vires of the Constitution and liable to be struck down and Jail Authorities were directed to grant all the remissions to the petitioner, which had been denied to him per S.21-F of the Anti Terrorism Act, 1997—Constitutional petition was allowed accordingly.

2010 PLD 270 LAHORE-HIGH-COURT-LAHORE

ZAKI UR REHMAN LAKHWI VS Malik MUHAMMAD AKRAM AWAN

Ss. 7/11-F(5)(6)/11-J/11-N/11-V/21/21-C—Penal Code (XLV of 1860), Ss.302/34/109—Prevention of Electronic Crimes Ordinance (IV of 2008), Ss.11/17/19—Passports Act (XX of 1974), S.6—Foreigners Act (XXXI of 1946), S.14—Criminal Procedure Code (V of 1898), Ss.164, 540-A & 512—Qanun-e-Shahadat (10 of 1984), Art.43—Constitution of Pakistan (1973), Art.199—Terrorism, Qatl-e-amd, abetment offence relating to passport—Constitutional petition—Quashing of order—Principal accused was reportedly arrested in India as a result of terrorist attack and on the basis of his statement recorded there under S.164, Cr.P.C. before a Magistrate, present accused and his co-accused had been arrested in the case after an inquiry conducted in Pakistan—In none of three successive interim challans submitted by the prosecution in the Trial Court the principal accused was shown as an accused person or as an absconder—Application moved by the present accused under S.265-K, Cr.P.C. for acquittal had been dismissed by the Trial Court by impugned order—Validity—Confessional statement of an accused could be used against his co-accused in the same case, but until and unless a person was shown as accused therein, his statement could not be used against his co-accused, which was the pre-condition under Art.43 of the Qanun-e-Shahadat, 1984—Contention that principal accused was not shown as an accused in S.173, Cr.P.C. report and by mere mentioning his name in the F.I.R., and on the basis of his alleged confessional statement before a Magistrate in India, he could not be given a status of co-accused of the present accused seemed to be technically sound—Trial Court while applying S.540-A(2), Cr.P.C. had exempted the appearance of principal accused and his co-accused and separated their case from the case of present accused and proceeded further by framing the charge—Principal accused had been taken by Trial Court as an accused in the case—Absconder or a person who never appeared before the court to face trial, his case was not covered under S.540-A(2), Cr.P.C.—Without having enforced the attendance of accused under Arts. 87 and 88, Cr.P.C. and proceeding under S.512, Cr.P.C.; separation of the trial was not lawful—Presence of accused before the court for application of S.540-A, Cr.P.C. was necessary and if subsequently he became incapable of remaining before the court, then he might apply for dispensation of his attendance and court might pass an appropriate order—Procedure adopted by Trial Court while applying S.540-A(2), Cr.P.C. for separation of the trial of alleged principal accused, therefore, was totally illegal and to that extent the impugned order was set aside—As regards the dismissal of the application of accused under S.265-K, Cr.P.C., Trial Court had framed the charge while applying judicial mind and trial had commenced—At such stage it was not appropriate for High Court to go into deeper appreciation of evidence in exercise of its constitutional jurisdiction or to discuss the merits or demerits of the case—Contention about the admissibility of the aforesaid statement of the principal accused and other material available on record, would be seen by Trial Court after recording some relevant evidence—Since after framing of the charge no evidence had been recorded in the case, application under S.265-K, Cr.P.C. at that stage was not maintainable and the same had rightly been dismissed by Trial Court and the impugned order to that extent was upheld—Accused could move such application before Trial Court at proper stage after recording of evidence—Constitutional petition was disposed of accordingly.

2009 SCMR 916 SUPREME-COURT

GHULAM MUSTAFA VS State

Ss. 302(b)/34, 324/34, 384/34, 337-F(ii), (iii), (vi), 353/34, 3241/149 & 337-A(v)—Anti-Terrorism Act (XXVII of 1997), Ss.7 & 21(E) – Appraisal of evidence—Prosecution witnesses had improved their statements at the trial, besides being related to the deceased and insured persons None of the accused was put to any identification test—Medical evidence was silent about the type of weapon used in the occurrence, which even otherwise could never he a primary source of evidence for the crime, but was only corroborative of the same—Recoveries of fire-arm from the accused being inconsequential did not corroborate the ocular version—Parties admittedly were inimical towards each other—If enmity would persuade a person to commit a crime then it would also be sufficient to falsely implicate same person from the other side in the crime—If evidence on record warranted a doubt in the credibility of witnesses regarding one set of accused, then indeed their testimony regarding another set of co-accused would have to he considered with caution and could not be accepted without strict corroboration from other independent and credible sources—No corroborative piece of evidence was available to substantiate the eye witnesses, whose ocular account regarding the second set of co-accused had been disbelieved by both the Courts below—Veracity and credibility of the eye witnesses being full of contradictions and doubts, benefit of the same had to go to the accused—Accused were acquitted in circumstances.

2009 YLR 933 PESHAWAR-HIGH-COURT

GUL BAZ VS State

Ss. 324/353/34—Anti-Terrorism Act (XXVII of 1997), Ss. 7(b) (h) & 21(H)—West Pakistan Arms Ordinance (XX of 1965), S.13—Explosive Substances Act (VI of 1908), Ss.3/4—Appreciation of evidence—Accused was a fugitive from law at the time of his arrest in a murder case, who, when chased by the police, had fired at the police party with his Kalashnikov which was also retaliated by the police in defence—Huge quantity of illicit arms and ammunitions had been recovered from the direct conscious and physical possession of accused with no plausible explanation therefor—Accused had voluntarily confessed his guilt before prosecution witness who had fulfilled all the legal formalities in that behalf; and accused, without any force or coercion, had admitted his accusation and said admission was admissible in evidence under the provisions of S.21(11) of Anti-Terrorism Act, 1997—Accused had failed to show any animosity towards the prosecution witnesses—Prosecution case was fully supported from the recoveries effected from the spot of occurrence—Positive report of Bomb Disposal Squads, the effectively firing at the police party with intention to kill them which also created terror and panic in the locality, had fully brought home the charge to accused—Prosecution case was fully proved against accused—Counsel for accused had failed to prove any illegality or irregularity in the impugned conviction of the Trial Court which was the result of sound appraisal of evidence brought on record and to which no exception could be taken by the High Court.

2009 PCrLJ 573 NORTHERN AREAS CHIEF COURT

ITRAT HUSSAIN VS State

497—Anti-Terrorism Act (XXVII of 1997), Ss.6/7/21(D)(4)—Bail, grant of—Accused had been arrested soon after the occurrence in January, 2005—After his arrest the trial could not be concluded within a reasonable time due to non-availability of Anti-Terrorism Court’s Judge for a considerable period—When the trial came close to pronouncement of judgment, one of the alleged absconding accused in the same case was arrested—Ultimately, the Judge had no option except to re-start the trial, pending judgment against accused—Accused, in circumstances, had to wait for conclusion of trial against the newly arrested accused—No provision existed in the relevant or general law that judgment could partially be announced against those who had faced trial—Plea of hardship, in circumstances found existed in favour of accused—Co-Âaccused, who had been attributed similar role, had already been released on bail by Chief Court—Rule of consistency demanded that accused too was entitled for the same treatment.

2007 PCRLJ 652 QUETTA-HIGH-COURT-BALOCHISTAN

GHULAM MUSTAFA VS DAROO KHAN

—S. 417—Penal Code (XLV of 1860), S.302(b)—Anti-Terrorism Act (XXVII of 1997), Ss.6(i), 7(h)—Appeal against acquittal—Only reasoning for acquittal of accused persons was that statements of prosecution witnesses under S.161, Cr.P.C., were recorde

2007 YLR 581 KARACHI-HIGH-COURT-SINDH

PAK AMERICAN SOLIDARITY SOCIETY VS GOVERNMENT OF SINDH

—S. 21—West Pakistan Maintenance of Public Order Ordinance, (XXXI of 1960), S.3–Protection of witness who was detenu—Detenu, even if was witness in a serious offence under Anti-Terrorism. Act, 1997 order for his protection could only be passed by a

2006 YLR 1036 QUETTA-HIGH-COURT-BALOCHISTAN

NIAMATULLAH VS ABDUL QAHAR

–Ss. 302(b) & 34—Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.7 & 10(3)—Anti-Terrorism Act (XXVII of 1997), S.21-M(2)—Juvenile Justice System Ordinance (XXI! of 2000), S.12—Sentence, enhancement of—Competence—Under prov

2006 PCRLJ 921 KARACHI-HIGH-COURT-SINDH

REFERENCES BY JUDGE SPECIAL COURT-II (C.N.S.): In the matter of VS REFERENCES BY JUDGE SPECIAL COURT-II (C.N.S.): In the matter of

—S. 9—Anti-Terrorism Act (XXVII of 1997), Ss.12, 13 & 21(g)—Juvenile Justice System Ordinance (XXII of 2000), Ss.4 & 5—Jurisdiction of Anti-Terrorism Court to try juvenile offender—On reading S.21(g) of Anti-Terrorism Act, 1997 and S.12 thereof,

2005 SCMR 1936 SUPREME-COURT

Mst. MUKHTAR MAI VS ABDUL KHALIQ

–Ss. 10(3), 10(4) & 11—Anti-Terrorism Act (XXVII of 1997), Ss.7(c) & 21(1)—Penal Code (XLV of 1860), Ss.149/109—Constitution of Pakistan (1973), Arts.185(3) & 203-DD—Appeal against acquittal of accused by High Court—Leave to appeal was granted

2004 YLR 1106 QUETTA-HIGH-COURT-BALOCHISTAN

MOHIB ALI VS THE STATE

—-Ss. 21(L) & 19(12)—Penal Code (XLV of 1860), S.344—Competency—Impugned order whereby the application of accused filed under S.19(12) of the Anti-Terrorism Act, 1997, was dismissed being not the final judgment, was not appealable and appeal again