Section 25 Anti Terrorism Act (ATA),1997

Section 25 : Appeal

2022 YLRN 45 KARACHI-HIGH-COURT-SINDH

Syed MUHAMMAD FAROOQ VS USMAN GHANI PAUL

Ss. 337-A (i),337-H(2), 353, 384, 385, 386, 512, 147, 148, 149 & 186—Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 25 (4A)—Shajjah-i-khafifah, hurt by rash or negligent act, assault or criminal force to deter public servant from discharge of his duty, extortion by putting a person in fear of death or grievous hurt, rioting armed with deadly weapons and terrorism—Appreciation of evidence—Appeal against acquittal—Complainant was aggrieved of judgment passed by Trial Court whereby accused persons were acquitted of the charge—Validity—Appeal against acquittal was distinct from an appeal against conviction—Presumption of double innocence was attracted in former case and acquittal could only be interfered with when it was found to be capricious, arbitrary and perverse—Trial Court advanced valid and cogent reasons in acquitting accused persons—High Court declined to interfere in judgment passed by Trial Court as complainant failed to bring to the fore any palpable legal justification to disturb findings of acquittal— Appeal was dismissed, in circumstances.

2021 PCrLJ 612 KARACHI-HIGH-COURT-SINDH

Syed MUHAMMAD TEHSEEN VS State

Ss. 302(b) & 427—Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7 & 25(4A)—Pakistan Arms Ordinance (XX of 1965), S. 13(d)—Explosive Substances Act (VI of 1908), Ss. 3 & 5—Qatl-i-amd at mosque/Imam Bargah, act of terrorism—Appreciation of evidence—Benefit of doubt—Complainant lodged FIR against accused persons for committing act of terrorism causing qatl-i-amd at a mosque/Imam Bargah—Case of accused was on a different footing to the case of co-accused—Accused was not arrested from the spot, he was not injured and no recovery was made from him and identification parade was already discarded—High Court declined to interfere in order of acquittal—Appeal was dismissed in circumstances.

2021 YLR 1641 ISLAMABAD

Ch. AAMIR SHAHZAD VS MUHAMMAD MAKKI

Chap. XXXI—Anti-Terrorism Act (XXVII of 1997), S.25—Qanun-e-Shahadat (10 of 1984), Arts.117 to 122—Burden to prove—Appellate Court, duty of—If defence version fails, even then prosecution has to stand on its own legs—Duty of High Court to thrash out each and every aspect while considering principle of law in terms of Arts. 117 to 122 of Qanun-e-Shahadat, 1984, in matter of appeal.

2021 YLR 1641 ISLAMABAD

Ch. AAMIR SHAHZAD VS MUHAMMAD MAKKI

Ss.417(2) & 561-A—Anti-Terrorism Act (XXVII of 1997), 25 (4-B)—Appeal against acquittal—Maintainability—Special leave to appeal, non-seeking of—Conversion of proceedings—Inherent powers of High Court—Maxim actus curiae neminem gravabit—Applicability—Mistake of advocate—Act of Court—Complainant-appellant instead of seeking special leave to appeal against acquittal of all accused persons, preferred direct appeal, which was admitted by High Court for regular hearing and accused persons were summoned—Validity—Complainant-appellant could be rescued under S.561-A, Cr.P.C., in order to meet ends of justice—Complainant-appellant could not be burdened due to mistake of his counsel as well as office of High Court, who did not consider law in true perspective at initial stage—Appeal was filed within time but no special leave to appeal was obtained nor any such order was passed—No bar existed to consider such appeal as an application for special appeal and allow the same while giving effect from date of admission—High Court could not sit as silent spectator and watch that who committed the mistake—Every Court inherited powers to ensure justice was done and if foul play was visible, Judge had to rectify the same—High Court committed a mistake while entertaining the appeal directly at its initial stage and the same could not be considered against complainant-appellant who also did not apply law in a proper manner—High Court invoking inherent powers in terms of S.561-A, Cr.P.C. and relying upon principle actus curiae neminem gravabit, that no one should be prejudiced by the act of Court, condoned application for special leave—Objection was set aside in circumstances.

2021 MLD 860 FEDERAL-SHARIAT-COURT

NOOR KHAN VS State

S.365-A—Anti-Terrorism Act (XXVII of 1997), Ss.25 & 32—Kidnapping for ransom—Appeal against final judgment of Anti-Terrorism Court before Federal Shariat Court—Maintainability—Record showed that since the principal offence whereby the accused had been convicted, was S.365-A, P.P.C., death penalty had been awarded, rest of the offences were ancillary thereto—According to S.17 read with S.21-H of the Anti-Terrorism Act, 1997 any other offence committed in the same series of the act falling within any other law was also triable by the Anti-Terrorism Court—Conviction recorded and sentence awarded under S.395, P.P.C., on that analogy might be treated ancillary to the principal offence and the appeal would lie before the forum provided by Anti-Terrorism Act, 1997—Federal Shariat Court, in circumstances, transferred the appeal to the High Court of Sindh, accordingly.

2020 PLD 106 QUETTA-HIGH-COURT-BALOCHISTAN

ABDULLAH UMAR VS State

Ss. 11-F(2), 11-F(5), 11-F(6)& 25—Limitation Act (IX of 1908), S. 5—Membership, support and meetings relating to a proscribed organization, collection of money for proscribed organization—Appeal—Condonation of delay—Scope—Appeal was time barred by five months and seven days as it was required to be filed within a period of fifteen days from the date of impugned order as per S.25 of the Anti-Terrorism Act, 1997—Said Act was a special statute and it overrode the general law—Accused had also filed an application under S.5 of the Limitation Act, 1908, for condoning the delay—Section 5 of Limitation Act, 1908, would be applicable subject to provision 29 of the Anti-Terrorism Act, 1997 which provided that if time was provided under any statute for filing appeals etc, which was different from the time mentioned in the Schedule attached to the Limitation Act, 1908, then S.5 of Limitation Act, 1908 would not be applicable unless it was made applicable by the statute under which the appeal was filed—No provision in the Anti-Terrorism Act, 1997 authorized the court to invoke the provisions of S.5 of the Limitation Act, 1908—Time provided under the Anti-Terrorism Act, 1997 for filing the appeal was different from the time provided in the Schedule attached to the Limitation Act, 1908, for filing such appeal—Section 5, Limitation Act, 1908 would not be applicable in the present case, hence the delay could not be condoned by invoking S.5 of the Limitation Act, 1908—Appeal against conviction was dismissed accordingly.

2020 PCrLJ 1084 LAHORE-HIGH-COURT-LAHORE

State VS MUHAMMAD ESA

25(4)—Limitation Act (IX of 1908), Ss. 5 & 25—Criminal Procedure Code (V of 1898), Ss. 417 & 421—Appeal against acquittal—Condonation of delay—Maxim, actus curiae neminem gravabit—Applicability—Scope—Attested copy, non-availability of—Accused persons were acquitted of the charge by Trial Court—Appeal against judgment passed by Trial Court was filed beyond the period of 30 days from the date when judgment was pronounced—Plea raised by authorities was that copy of judgment was not supplied by Trial Court and delay was caused in procuring attested copy of the same—Validity—Even if the copy was not supplied either to the public prosecutor or the accused, there existed no bar under S. 25(4) of Anti-Terrorism Act, 1997, in filing an appeal after obtaining copy of judgment on their own—Maxim, actus curiae neminem gravabit had no applicability—Provision of S. 421, Cr.P.C. also permitted filing of appeal in the form of a petition in writing accompanied by a copy of judgment appealed against, however at the same time the Court to which appeal was presented, if requested could have dispensed with such requirement—Acquittal of the charge recorded by Court of competent jurisdiction was not appealable and was deemed to be final—Acquittal could be challenged in certain circumstances within a period of limitation prescribed by law—Request for condonation of delay by invoking jurisdiction of superior courts, in the larger interest of justice, if made, could only be entertained on showing that delay in filing appeal was caused either by an act of acquitted accused or by circumstances of some compelling nature beyond human control—High Court declined to condone the delay caused in filing of appeal against acquittal as the same was filed beyond the prescribed period of limitation i.e. 30 days from the date of pronouncement of judgment—Appeal was dismissed in circumstances.

2019 PCrLJ 297 QUETTA-HIGH-COURT-BALOCHISTAN

The STATE VS FAIZ MUHAMMAD alias FAIZULLAH

365-A—Anti-Terrorism Act (XXVII of 1997), Ss. 6(2)(e) & 25—Criminal Procedure Code (V of 1898), S. 417—Kidnapping for ransom—Appeal against acquittal—Appreciation of evidence—Death of abductee—Forensic evidence—Authorities assailed order passed by Trial Court under S. 265-K, Cr.P.C. where accused were acquitted of charge of murder of abductee after kidnapping—Authorities contested that extra-judicial confession of accused as well as recovery of dead body of abductee upon pointing of accused were sufficient grounds for conviction—Validity—Extra-judicial confession as well as confession of accused persons revealed discovery of new facts as well as discovery of remains of abductee—Forensic Science Laboratory report received in negative had diminished evidentiary value of both extra-judicial confession and confessional statement of accused—Such statements were not recorded voluntarily, otherwise accused could have pointed out exact grave of deceased and discovered remains which could have matched with blood relations—Case of prosecution was doubtful and Trial Court while delivering order of acquittal had rightly extended benefits of such doubts in favour of accused and rightly they were acquitted of the charge—Accused, after acquittal earned presumption of double innocence and acquittal orders were not interfered with until and unless it was proved on record that same was perverse, contrary to record, fanciful and not sustainable—High Court declined to interfere in judgment passed by Trial Court as same was neither perverse, fanciful nor ridiculous or contrary to record rather same was based on proper appraisal of material available on record—Appeal was dismissed in circumstances.

2019 PCrLJ 640 PESHAWAR-HIGH-COURT

Inspector Syed RAHIM VS State

Ss. 25 & 27—Police Rules, 1934, R.25.2(3)—Defective and improper investigation—Awarding of symbolic punishment by Anti-Terrorism Court—Appeal—Scope—Symbolic punishment of fine of Rs.10,000 was awarded to appellants/Police Officers for conducting improper and defective investigation in a criminal case of kidnapping for ransom—Accused were acquitted and the Police Officers were punished after giving notices for conducting deffective investigation—Validity—Record showed that the local police neither registered the FIR nor order of the Magistrate for conducting enquiry was obtained—Even record of the enquiry was not made available so as to ascertain as to what proceedings were conducted by the Police Officer who was entrusted with enquiry—Such conduct of the Police Officer gave rise to the suspicion that he might have suppressed material facts and evidence which could lead to conviction of the accused—Zamima and fard khulasa dated 1.3.2012 showed production of accused before the Judicial Magistrate within 8.30 to 1200 hours, wherefrom their judicial remand was obtained and they were handed over to jail authorities—Record of the case falsified the said facts showing the arrest and recovery at 16.40 hours on 1.3.2012, thus created doubt about its authenticity—SHO handed over motorcars to the DSP immediately after the alleged recovery, without a court order or proper procedure—Handing over the cars to a Police Officer who had nothing to do with investigation of the case was not only misconduct but also a criminal offence by the Police Official—Police failed to enquire and collect evidence about the fact of abduction of abductee in the area where he was allegedly carring out business of cloth—Said Officer had failed to bring the enquiry file on the judicial record in order to ascertain the whole proceedings conducted since abduction of abductee till the date of registration of FIR—Circumstances established not only dereliction in duty but also misconduct and commission of criminal offence of breach of trust on the part of the accused Police Officers entrusted with investigation of the case, making them liable not only to summary proceedings, but also disciplinary action—Appeal was dismissed accordingly.

2019 YLR 355 LAHORE-HIGH-COURT-LAHORE

AZIZ AHMAD VS Syed IRSHAD HUSSAIN SHAH

Ss. 302, 324, 353, 186, 148 & 149—Anti Terrorism Act (XXVII of 1997), S. 25—Qatl-i-amd, attempt to commit qatl-i-amd, assault and criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, rioting armed with deadly weapons, unlawful assembly—Appreciation of evidence—Appeal against final order under S.25, Anti-Terrorism Act, 1997—Scope—Prosecution case was that on the fateful day, a police contingent headed by Inspector in hot pursuit for the arrest of the accused of homicide was confronted by outlaws, duly nominated as well as unknown, variously armed, as a result whereof, Inspector was caught in the line of fire—Group of proclaimed offenders joined the accomplices from the opposite direction—Both sides exchanged fires for almost three hours and as the guns went silent, from amongst the accused, seven were spotted dead—Accused, eight in number, were apprehended at the spot while the remainders took to heels—Accused came up with their own story, related by complainant, he arrayed as many as 18-accused, comprising Police Officials as well as members of opposite clan, for playing havoc with the family with colossal loss of life as well as properties—Private complaint filed by complainant against eighteen accused came up before the court, but the court after recording cursory evidence declined to issue process, hence the revision—Validity—Section 25 of the Anti Terrorism Act, 1997, provided an appeal against the final order—High Court’s authority to issue an appropriate writ, inter alia, in the form of mandamus or certiorari was far much wider than statutory jurisdiction to examine correctness, legality or propriety of any finding—Argument that a contra construction of the Act would expose the aggrieved person to the risk of denial of remedy did not hold water—Revision petition being misconceived was held as incompetent, thus, failed.

2019 PLD 527 ISLAMABAD

MUHAMMAD SIKANDAR VS State

Ss. 6, 7, 8 & 25—Act of terrorism—Appreciation of evidence—Causing terror—Proof—Accused was convicted and sentenced in committing acts of terrorism by using his family as human shields while deadlocking main road in federal capital armed with automatic weapons and ammunition—Accused assailed conviction and sentence passed by Trial Court on grounds that his actions did not constitute terrorism—Validity—Offence of terrorism was constituted as design was to create psychological impact of creating a sense of fear and insecurity relatable to general public, society or a section thereof—Offences mentioned in schedule must have nexus with object of statute and contemplated under Ss.6 to 8 of Anti-Terrorism Act, 1997—For offence of terrorism to be constituted it was not necessary that victims were actually harmed or that terror was caused; it was sufficient if design of intended act was likely to create terror, a sense of fear and insecurity amongst general public, society or section thereof—Mens rea and actus reus contemplated in Anti-Terrorism Act, 1997 coexisted, in the present case—High Court declined to interfere in conviction and sentence awarded by Trial Court as prosecution had proved charge against accused beyond reasonable doubt and that there were no mitigating circumstances for handing down a lesser sentence—Appeal was dismissed in circumstances.

2018 PLD 131 PESHAWAR-HIGH-COURT

NIAZ BEEN VS State

S.426(2-B)—Anti-Terrorism Act (XXV of 1997), Ss.7 & 25(8)—Penal Code (XLV of 1860), Ss. 324, 353 & 34—Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism—Suspension of sentence and grant of bail, application for—Accused, who was convicted and sentenced by the Anti-Terrorism Court, filed appeal before High Court, which was dismissed and leave to appeal against order of High Court was granted by the Supreme Court—Pending appeal before the Supreme Court, accused filed application under S.426(2-B), Cr.P.C., before the High Court for suspension of sentences and grant of bail till the final decision of appeal pending before the Supreme Court—Under the provision of subsection (8) of S.25 of Anti-Terrorism Act, 1997, sentences awarded by a Special Court, could not be suspended by High Court during the pendency of appeal—Provisions of S.426(2-B), Cr.P.C., had provided that for the suspension of sentence, granting leave to appeal by the Supreme Court was one of the conditions, but the sentence, could only be suspended, if the High Court would think it fit, meaning thereby that discretion still rested with the High Court—In the present case, the first requirement (granting leave) to avail the remedy under S.426(2-B), Cr.P.C., was satisfied, but at the same time, accused was required to show that during the pendency of appeal before the Supreme Court, appeal could not be disposed of within the stipulated period; the judgment sought to be suspended, suffered from legal error and accused was on bail during the appeal before the High Court—While dealing with an application under S.426(2-B), Cr.P.C., neither the merits of the case nor reappraisal of the evidence was permitted—In the present case, during the pendency of appeal before High Court, accused were not on bail—Accused/applicants, had not been able to show good grounds to give them relief by adhering to the provisions of S.426(2-B), Cr.P.C.—Application was dismissed in circumstances.

2018 YLR 2658 KARACHI-HIGH-COURT-SINDH

Nawab SIRAJ ALI VS State

Ss. 6, 7 & 25—Criminal Procedure Code (V of 1898), S. 345 (2)—“Act of terrorism”—Appreciation of evidence—Compounding of offence—Personal vendetta—Effect—Plea raised by accused persons was that any act done under personal vendetta was not an “act of terrorism”—Validity—Motive concluded by Trial Court was personal vendetta and essential element of creating terrorism in public was never established nor attempted—Case prima facie fell in the category of cases not liable to be tried by Special Court—As there was personal vendetta, provision of S.6 of Anti-Terrorism Act, 1997, was misapplied by police as well cognizance and trial was not proper—High Court set aside judgment passed by Special Court and remanded the case to Sessions Court for de novo trial and that Court would be competent to decide application for compromise within the four corners of law—Appeal was allowed accordingly.

2018 PCrLJ 1179 KARACHI-HIGH-COURT-SINDH

SIRAJUDDIN VS State

Ss. 25 & 19(12)—Conviction and sentence in absentia—Direct appeal to High Court—Scope—Person convicted and sentenced in absentia could file direct appeal before High Court without first making an application before the Trial Court.

2018 YLR 889 Gilgit-Baltistan Chief Court

GHULAM HAIDER VS State

13—Anti-Terrorism Act (XXVII of 1997), S. 25—Possession of arm without license—Rifle was recovered from accused which was owned by an absconding accused—Accused was booked for offence under S. 13 of Arms Ordinance, 1965 and convicted by Anti-Terrorism Court—Validity—Proceedings undertaken by Anti-Terrorism Court under S. 13 of Arms Ordinance, 1965 were unwarranted and conviction was also illegally awarded to accused—Case was remanded to the court of competent jurisdiction (Judicial Magistrate) for trial.

2017 YLR 674 KARACHI-HIGH-COURT-SINDH

Sardar ZULFIQAR VS State

Ss.427 & 227—Penal Code (XLV of 1860), Ss. 302, 324, 353, 337-A(i), 337-F(i), 337-F(iii) & 149—Anti-Terrorism Act (XXVII of 1997), S.25—Accused was found innocent and his name was placed in column No.2 of challan—Government had withdrawn prosecution against accused consequently Public Prosecutor filed application under S.494, Cr.P.C., which was allowed by Trial Court discharging the name of accused from the case—Said order was challenged but petition was withdrawn by counsel for complainant—Later on, Public Prosecutor filed application under S.227, Cr.P.C., for alteration of charge in result of which accused was declared absconder and sentenced in absentia for imprisonment for life—Trial Court was not competent to sit over the order passed by his predecessor without any fresh material, therefore, not only trial of accused as well as conviction was against the law as Public Prosecutor was allowed to withdraw from prosecution of accused—Appeal against conviction was allowed accordingly.

2017 PCrLJN 234 KARACHI-HIGH-COURT-SINDH

SHER HAKEEM VS State

Ss. 6(2)(ee), 7(ff) & 25—Explosive Substances Act (VI of 1908), Ss. 4 & 5—Sindh Arms Act (V of 2013), S. 23(1)-A—Criminal Procedure Code (V of 1898), S. 342—Terrorism, recovery of explosives and arms—Appreciation of evidence—Mis-description of explosive—Failure to confront accused with evidence in his statement under S. 342, Cr.P.C.—Hand grenades and pistol were recovered from accused and he was convicted by Trial Court on different charges and various sentences were imposed maximum upto fourteen years of imprisonment—Validity—FIR and memo of arrest and seizure specified incendiary/explosive device recovered from accused to be a ‘hand grenade’ and the same formed basis of charge and thereafter consistently referred to by such description in the depositions of prosecution witnesses—Inspection Report showed that the subject of what was examined were ‘rifle grenades’—Such glaring and obvious contradiction could not be reconciled and was fatal to prosecution’s case, especially as the same was based on alleged factum of recovery—High Court dispelled plea of lack of expertise on the part of police personnel—Letter addressed to Senior Superintendent of Police seeking permission for the matter to be tried under S. 7 of Anti-Terrorism Act, 1997, whilst referring to the recovery of ‘hand grenades’ also recorded that the same were defused through Bomb Disposal Unit Report—Such report of Bomb Disposal Unit did not appear to form part of record of trial—Accused was not confronted with the Bomb Disposal Unit Report at the time of statement under S. 342, Cr.P.C.—Such omission precluded the documents from being used as evidence against him at trial—No material was available to controvert such omissions and irregularities—High Court set aside conviction and sentence awarded to accused as such factors served to create appreciable doubt as to the veracity of prosecution case—Appeal was allowed in circumstances.

2017 PCrLJN 215 Gilgit-Baltistan Chief Court

Haji DAULAT KARIM VS State

25—Expunction of remarks against police officer—Accused-appellant was the Investigating Officer of a criminal case, wherein injured witness was only the eye witness of the occurrence—Accused-appellant had recorded statement of the said eye witness after about one year eight months and fifteen days of the occurrence—Said conduct of the accused-appellant was amounted to misconduct—Trial Court had directed the concerned authority to take strict disciplinary action against the said Investigating Officer/accused/appellant of the criminal case—Validity—Record showed that parties to the case had admitted that investigation of the occurrence was not handed over to the accused-appellant soon after the occurrence—Investigation of the occurrence was handed over to the accused-appellant on 11.6.2007, while the occurrence took place on 11.10.2005—Accused-appellant had recorded the statement of injured eye-witness of the occurrence on 26.6.2007—Fact that a number of police officer had conducted investigation of the case soon-after the occurrence and did not record statement of the injured eye-witness till 11.6.2007 was not disputed—Investigation of the case when handed over to the accused-appellant, he recorded statement of injured eye-witness only after fifteen days after the investigation was handed over to him—Circumstances suggested that disciplinary action may be operated against all other police officers who conducted investigation of the case except the appellant—Appeal was allowed by expunging the findings/remarks of the Trial Court but only to the extent of appellant.

2016 PCrLJ 522 QUETTA-HIGH-COURT-BALOCHISTAN

The STATE through Public Prosecutor, ATA VS ABDUL BARI

Ss. 302, 324, 436, 147, 148 & 149—Anti-Terrorism Act (XXVII of 1997), Ss. 7(a) & 25— Pakistan Arms Ordinance (XX of 1965), S.13-D—Criminal Procedure Code (V of 1898), Ss. 417 & 540—Qatl-i-amd, attempt to commit qatl-i-amd, mischief by fire or explosive, rioting armed with deadly weapons, terrorism and recovery of unlicensed weapons—Appreciation of evidence—Appeal against acquittal—Failure to produce case property—Material witness, summoning of—Negligence of Special Prosecutor—Accused persons were arrested and after recovery of unlicensed weapons from their possession, recovery memos were attested by prosecution witnesses, who were cited as prosecution witnesses in challan—Due to negligence of Special Prosecutor neither those material witnesses were examined nor case property was produced—Trial Court after conclusion of trial acquitted all accused persons—Validity—Trial Court while dealing/passing judgment had completely ignored the principal objective with which provision under S.540, Cr.P.C. was brought into the statute—Trial Court while conducting trial had not even bothered to verify whether prosecution exhausted its material witnesses along with the case property, therefore, judgment passed by Trial Court could not be sustained and the same was set aside—High Court directed Trial Court to declare complainant as hostile and record the statements of attesting witnesses of recovery memos along with case property—High Court further directed Trial Court to provide opportunity to parties to produce their evidence and to decide the case afresh—Appeal was allowed accordingly.

2016 PLD 93 QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD ABDULLAH VS State

426(1)(2-B)—Penal Code (XLV of 1860), S.302—Anti-Terrorism Act (XXVII of 1997), Ss.7 & 25(8)—Qatl-i-amd and act of terrorism—Suspension of sentence—Procedure—Appeal filed by the accused against conviction by the Trial Court was dismissed by High Court against which leave to appeal was granted by the Supreme Court—Contention of accused was that there was no possibility of the appeal being disposed of in near future by the Supreme Court, he was entitled for grant of bail—Validity—For suspension of sentence granting leave to appeal was one of the conditions but the sentence could only be suspended if the High Court thought it fit and discretion still rested with the High Court—Accused was required to satisfy the High Court to suspend the sentence that appeal could not be disposed of within the stipulated period; judgment sought to be suspended suffered from a legal error; convict was on bail during the appeal pending before the High Court and legal bar for suspension of sentence did not exist—Merits of the case could not be touched nor reappraisal of evidence was permitted while deciding the application under S.426(2-B), Cr.P.C.—Provisions of S.426(2-B), Cr.P.C. did not apply to the present case—Convict could not be released on bail during the pendency of appeal as contemplated by S.25 of Anti-Terrorism Act, 1997—Bar of S.25 of Anti-Terrorism Act, 1997 was fully attracted in the present case which being a special law would prevail upon S.426(2-B), Cr.P.C.—Application for suspension of sentence was dismissed in circumstances.

2016 PLD 21 PESHAWAR-HIGH-COURT

WAQAR AHMAD VS State

Ss. 25 & 27—Police Rules, 1934, R.25.2(3)—Defective and improper investigation—Awarding of symbolic punishment—Appeal before High Court against order of Anti-Terrorism Court—Scope—Symbolic punishment of the fine of Rupees four thousand, having been awarded to appellant/DSP for improper and defective investigation in a criminal case, appellant had filed appeal under S.25 of Anti-Terrorism Act, 1997 before High Court—Appellant, had contended that alleged abductee in the case in question, having exonerated the accused of the charges, there was no likelihood of conviction of accused in that case, and not a single contradiction was found in the evidence of the prosecution—Contention was repelled as appellant (DSP) having been held responsible for defective/improper investigation under S.27 of Anti-Terrorism Act, 1997, he could not take shelter under statement in the court wherein the alleged abductee had exonerated accused facing trial—Issues raised by counsel for the appellant, had no nexus with defective investigation, on the basis of record of the case and particular record of investigation conducted by appellant—Appellant, failed to take honest steps for investigation to dig out the truth, which was his primary duty under the law—Response of the appellant to the charges and observation of the court, were far from satisfactory as he could not point out a single instance in his defence controverting said charges/observations of the court—Conclusion could be that it was a case of defective investigation on the part of the appellant—Several other factors contributing to defective/improper investigation could be there, but such factors would not absolve an Investigating Officer to conduct a proper investigation, which was his primary duty and under no circumstances should advance lame excuses for his failure to perform duty—Such conduct had eroded confidence of the general public in the Police in general, and Investigating Agency in particular, which was touching the lowest ebb of its credibility—High Court observed that investigation by the Police, formed backbone of criminal justice system and Investigating Officer, enjoyed authority in the matter of investigation, and such authority, would unquestionably, demanded accountability, which had been envisaged in S.27 of Anti-Terrorism Act, 1997—Award of symbolic punishment of fine of rupees four thousand on the appellant, did not call for interference by High Court.

2016 PCrLJ 1815 PESHAWAR-HIGH-COURT

STATE through Advocate-General Khyber Pakhtunkhwa, Peshawar VS SADAM

5—Anti-Terrorism Act (XXVII of 1997), Ss.7 & 25(4)—Possessing explosive material—Appeal against acquittal—Reappraisal of evidence—No illegality, infirmity or improbability was found in the impugned judgment of acquittal passed by the Trial Court, as it had been passed strictly in line with the settled principles of law—Trial Court, disbelieved the ocular version furnished by prosecution witnesses, by holding that they were not only found contradicting each other on material facts, but also found at variance about places of recovery of material—Record was silent about any search warrant obtained from the competent court for conducting raid on the premises—No independent witness i.e. Nazim or Elder of the locality had been associated during raid, which was clear violation of S.103, Cr.P.C.—Live rounds of different bore allegedly recovered, were sent to Fire Arms Expert after delay of 3 days; and were received in Forensic Science Laboratory after delay of 9 days, for which no explanation had been offered by the prosecution—Nothing was on record to show as to in whose safe custody said five rounds were lying during the period—Recovered explosive materials were examined in Bomb Disposal Unit after about two months, despite those were stated to be alive and dangerous—Bomb Disposal Expert, who examined the explosive material, had not been examined by the prosecution, which had made prosecution case doubtful—Trial Court, lawfully and consciously considered all said facts before formulating an opinion of innocence in favour of accused, which was not open to any exception—Reasons recorded by the Trial Court for the acquittal of accused, were in line with the evidence on record and circumstances mentioned therein—No defect was found in the reasoning recorded by the Trial Court as court had acted strictly in accordance with law and principles governing the safe administration of criminal justice.

2016 PCrLJ 879 PESHAWAR-HIGH-COURT

MUHAMMAD FAIZAN alias FAIZI VS State

Ss. 6, 7, 12, 23 & 25—Penal Code (XLV of 1860), S. 376(2)—Rape—Forum of trial—Anti-Terrorism Court—Jurisdiction—Two accused were convicted by Anti-Terrorism Court under S. 376(1), P.P.C. and sentenced to imprisonment for fourteen years and ten years respectively, while female accused was acquitted of the charge—Validity—Anti-Terrorism Court was vested with jurisdiction under S.12 of Anti-Terrorism Act, 1997, only to try cases under Anti-Terrorism Act, 1997—Word “shall” used in S. 23 of Anti-Terrorism Act, 1997, left no discretion with Anti-Terrorism Court once it had formed opinion that the offence was not a scheduled offence—When Anti-Terrorism Court formed opinion that offences were not scheduled offences, then it was incumbent upon it to transfer the case for trial to Court of ordinary jurisdiction—Case could be transferred under S. 23 of Anti-Terrorism Act, 1997, after taking cognizance of offence by Anti-Terrorism Court—High Court set aside conviction and sentence passed by Anti-Terrorism Court and the case was transferred to court of ordinary jurisdiction for decision afresh—Appeal was allowed in circumstances.

2016 PCrLJ 722 LAHORE-HIGH-COURT-LAHORE

ABDUL SATTAR VS State

Ss. 7(b) & 25—Penal Code (XLV of 1860), Ss. 324 & 336—Attempt to commit qatl-i-amd, itlaf-i-salahiyyat-i-udw, act of terrorism—Appreciation of evidence—Accused along with another, was alleged to have thrown acid on face of victim causing serious injuries to her body –Accused was convicted and sentenced, whereas, the co-accused were acquitted—Validity—Medical evidence had fully supported ocular account of occurrence—Incident took place inside house, so presence of witnesses there was quite natural—Statement of victim was sufficient to uphold conviction and sentence—Two eye-witnesses, victim and her mother, both were consistent in their statement qua culpability of accused—Statement of victim had also been corroborated by two medical officers—Bottle of acid had been recovered from accused during investigation— Motive was not always sine qua non for proof or disproof of guilt—All three sentences were ordered to run concurrently instead of consecutively—Prosecution had fully established its case against appellant— Appeal was dismissed accordingly.

2016 PCrLJ 1130 KARACHI-HIGH-COURT-SINDH

DADOO alias WADDAN VS State

2016 YLR 1683 Gilgit-Baltistan Chief Court

TAHIR ALI TAHIR VS State

Ss. 124-A & 189—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7, 25 & 32—Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.71(2)—Writ petition—Sedition, threat of injury to public servant, act of terrorism—Transfer of case—Prima facie, an offence under S.124-A, P.P.C., was made out, which offence was triable by a court of session exclusively and not by the special court—Appeal was provided under S.25 of Anti-Terrorism Act, 1997 and no remedy was available against an interim order passed by Anti-Terrorism Court—High Court was under legal obligation to interpret the law; and give effect to any provision of law; and provide justice to the needy people by exercising their constitutional powers; and those powers could not be curtailed on one or the other pretext—High Court, had the jurisdiction to grant any appropriate relief to any party by converting one type of proceeding, provided the jurisdiction of the court would remain intact—Section 32 of Anti-Terrorism Act, 1997, though had an overriding effect, and only an appeal was provided under S.25 of Anti-Terrorism Act, 1997, Chief Court had ample powers under Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 to grant relief to the parties, when the court was of the view that dictates of justice so demanded—By accepting writ petition order/judgment passed by Anti-Terrorism Court, was set aside, and case was transferred from Anti-Terrorism Court to the Court of Session for trial—Trial Court would dispose of the case on merits.

2015 PLD 401 SUPREME-COURT

DISTRICT BAR ASSOCIATION, RAWALPINDI VS FEDERATION OF PAKISTAN

Ss. 2, 3 & Preamble—Pakistan Army Act (XXXIX of 1952) [as amended by the Pakistan Army (Amendment) Act (II of 2015)], Preamble—Anti-Terrorism Act (XXVII of 1997), Ss. 19 & 25—Penal Code (XLV of 1860), Preamble—Protection of Pakistan Act (X of 2014), Preamble— Constitution of Pakistan, Art. 184(3)—Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution challenging the Constitution (Twenty-first) Amendment Act, 2015 and Pakistan Army (Amendment) Act, 2015—Military Courts—Trial of civilians in Military Courts—Constitutionality—Contention that civilians accused of certain offences should face a â€œspeedy trialâ€ in Military Courts due to the extraordinary situation and circumstances existing in Pakistan, which demanded special measures for speedy trial of certain offences relating to terrorism, waging of war or insurrection against Pakistan—Validity—Offences relating to terrorism, waging of war or insurrection against Pakistan and acts threatening the security of Pakistan were offences recognized and catered for by the Pakistan Penal Code, 1860, Anti-Terrorism Act, 1997 and the Protection of Pakistan Act, 2014 and the only declared purpose for making it permissible for Military Courts constituted under the Pakistan Army Act, 1952 to try such offences was â€œspeedy trialâ€of such offences—However, a comparison of Ss. 19 & 25 of the Anti-Terrorism Act, 1997 with the relevant provisions of the Pakistan Army Act, 1952 showed that a trial and an appeal under the Anti-Terrorism Act, 1997 were far speedier than those under the Pakistan Army Act, 1952, making it evident that the actual purpose for making it permissible for military courts to try civilians was not â€œspeedy trialâ€ but something else and that undisclosed something else could not be achieved through or delivered by the normal courts of the country which were trained to dispense and achieve nothing but justice according to law—Present spate of terrorism in Pakistan might be a momentary phase or phenomenon, therefore, it may be imprudent to compromise or injure the permanent moral, religious and Constitutional value of justice for tackling such transitory menace—Phenomenon of terrorism in Pakistan might have devoured thousands innocent citizens, soldiers and policemen but compromising justice for combating such menace may be a death knell for the value system of the entire nation—Pakistan Army (Amendment) Act, 2015 was unconstitutional, without lawful authority and of no legal effect, and all trials and appeals decided by the Military Courts deriving authority from the Pakistan Army (Amendment) Act, 2015 were to be treated as non est—Since Pakistan Army (Amendment) Act, 2015 was unconstitutional, therefore, the Constitution (Twenty-first) Amendment Act, 2015 lost its raison d’etre, efficacy and utility—Constitutional petition was partially allowed accordingly. [Minority view]

2015 PCrLJ 1364 QUETTA-HIGH-COURT-BALOCHISTAN

NABEEL VS State

Ss. 302(b), 324, 353 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 25—Criminal Procedure Code (V of 1898), Ss. 407 & 410—Qanun-e-Shahadat (10 of 1984), Arts. 129, Illus. (g) & 22—Qatl-i-amd, attempt to commit qatl-i-amd, criminal force to deter public servant from discharge of his duty, common intention and terrorism—Appeal against acquittal/conviction—Appreciation of evidence—Motive—Prosecution failed to show that accused persons either belonged to any criminal gang or banned organization or there was any personal enmity or grudge between the accused and personnel attacked—No occasion existed for accused persons to make firing upon said personnel by endangering their lives just for nothing—Prosecution case lacked motive behind occurrence, and false implication of accused could not be ruled out of consideration—Trial Court could convict accused even without any motive but in view of facts of the case, implication of accused in case was highly doubtful.

2015 PCrLJ 1364 QUETTA-HIGH-COURT-BALOCHISTAN

NABEEL VS State

Ss. 302(b), 324, 353 & 34—-Anti-Terrorism Act (XXVII of 1997), S. 7 & 25—Criminal Procedure Code (V of 1898), Ss. 407 & 410—Qanun-e-Shahadat (10 of 1984), Arts. 129, Illus (g) & 22—Qatl-i-amd, attempt to commit qatl-i-amd, criminal force to deter public servant from discharge of his duty, common intention and terrorism—Appeal against acquittal/conviction—Appreciation of evidence—Benefit of doubt—Accused persons were alleged to have opened fire on F.C. personnel and escaped and on chasing when the personnel tried to enter the house where accused persons were hiding, accused persons again opened fire resulting in death of one of the personnel and injuries caused to two of them—Trial Court convicted one of the accused persons awarding sentence of imprisonment on multiple charges and acquitting the others—Two incidents took place, first, when accused party opened fire upon patrolling personnel and escaped, and secondly, when personnel attempted to enter the house and accused persons made firing upon them which resulted in death of one personnel and injuries to two—Admittedly F.C. personnel were patrolling in armed condition when first firing was made upon them but they made no counter firing and only chased the accused; said assertion was not natural, believable and rational and Trial Court rightly disbelieved the prosecution story to that extent—No specific role was attributed to accused persons—Incident allegedly took place at dark night, attacked F.C. personnel who did not know the accused nor did they know their names, even no specific role had been assigned by witnesses to accused persons—After arrest of accused, their identification parade was essential to be conducted in view of facts and circumstances of case—In case of absence of identification parade for identity, involvement of convict-accused in commission of offence was doubtful—Witnesses during trial failed to identify accused persons as assailants—Prosecution failed to show that accused persons either belonged to any criminal gang or banned organization or there was any personal enmity or grudge between the accused and personnel attacked—No occasion existed for accused persons to make firing upon said personnel by endangering their lives just for nothing—Prosecution case lacked motive behind occurrence, and false implication of accused could not be ruled out of consideration—Trial Court could convict accused even without any motive but in view of facts of the case, implication of accused in case was highly doubtful—Sufficient arms and ammunition were allegedly recovered from accused persons, but prosecution failed to lodge separate F.I.R. under Arms Ordinance, 1965, nor any evidence was produced showing recovery of arms from any of the accused persons—Arms and ammunition could not be linked with convict-accused—No witness was produced who had seen the incident—Evidence of said two injured personnel was best piece of evidence, but the same was dropped without any reason or justification—Presumption under illus. (g) of Art. 129 of Qanun-e-Shahadat, 1984 could fairly be drawn that examination of said two witnesses would have been unfavourable to prosecution—Prosecution was not bound to produce each and every witness, but if prosecution had failed to produce such witnesses who were star witnesses, and whole story was allegedly witnessed by them, it made prosecution story doubtful—Evidence available on record was not of such character which could be relied upon to convict a person on charges of capital punishment—Trial Court had rightly appreciated facts and circumstances of case to the extent of acquittal of co-accused persons, but had mis-appreciated the same to the extent of convict accused—Prosecution failed to prove charge against all accused persons beyond any shadow of doubt—Any doubt arising in prosecution case must be resolved in favour of accused—Conviction of the accused could not be maintained—Acquittal of co-accused was neither arbitrary nor perverse or contrary to evidence available on record—High Court accepted appeal of accused, set aside conviction order of Trial Court and acquitted the accused from all charges, dismissing appeal against acquittal and upheld acquittal order of co-accused.

2015 PLD 218 PESHAWAR-HIGH-COURT

WAQAR AHMAD VS State

2015 YLR 2036 KARACHI-HIGH-COURT-SINDH

IMDAD VS State

Ss. 19(12) & 25—Anti-Terrorism Court convicting and sentencing convict in absentia—Options available with convict—Convict in such circumstances could either approach the Anti-Terrorism Court within the stipulated period with a request to set-aside his conviction recorded in absentia, in terms of S. 19(12) of Anti-Terrorism Act, 1997, by showing that he did not abscond deliberately from the court during trial, or convict could surrender before the High Court by filing an appeal under S.25 of Anti-Terrorism Act, 1997 with a prayer to set-aside the conviction awarded in absentia and to acquit him on merit or remand the matter to Anti-Terrorism Court for fresh trial by setting aside the impugned judgment.

2015 YLR 2036 KARACHI-HIGH-COURT-SINDH

IMDAD VS State

Ss. 19(12) & 25—Constitution of Pakistan, Arts. 9 & 10—Anti-Terrorism Court convicting and sentencing accused in absentia without providing him an opportunity of being heard—Remand of case to Anti-Terrorism Court for decision afresh—Scope—Accused persons were convicted and sentenced in absentia by Anti-Terrorism Court—Pleas of accused persons were that they were never served with court notices by the Anti-Terrorism Court; that they were convicted and sentenced in absentia which was in violation of Arts. 9 & 10 of the Constitution, and that they had voluntarily surrendered before the High Court—Validity—All accused persons were convicted by Anti-Terrorism Court in absentia, hence no opportunity whatsoever to defend their case on merit was provided to them—Impugned judgment of Anti-Terrorism Court also did not suggest that the accused had deliberately avoided process of the court or remained willfully absent from court—Impugned judgment of Anti-Terrorism Court by which accused persons were convicted in absentia was set-aside, case was remanded back to the Anti-Terrorism Court to decide the same afresh after providing accused persons proper opportunity of being heard, and it was held that they would remain on bail during trial—Accused persons were directed to surrender before Anti-Terrorism Court—Appeal was disposed of accordingly.

2015 YLR 764 KARACHI-HIGH-COURT-SINDH

JAVED VS State

Ss.6 (k), 7 & 25 (8)—Penal Code (XLV of 1860), Ss.385, 386 & 506-B—Criminal Procedure Code (V of 1898), S.561-A—Taking Bhatta (Extortion of money)—Suspension of sentence—Delay in deciding appeal—Inherent jurisdiction of High Court—Bar on suspension of sentence—Accused was convicted by Trial Court and sentenced to five years of imprisonment—Validity—Appeal was to be decided within 7 days and more than two years had passed—Much more time would be required to hear the appeal and dispose of, as there was tremendously heavy backlog of such appeals filed earlier than that of accused—Accused remained in jail throughout the period ever since his arrest—High Court treated the case of accused as one of hardship and suspended the sentence—Bail was allowed in circumstances.

2015 PCrLJ 281 Gilgit-Baltistan Chief Court

Mir SHAKEEL UR REHMAN VS GOVERNMENT OF GILGIT-BALTISTAN t

Ss. 526 & 561-A—Anti-Terrorism Act (XXVII of 1997), Ss.25, 31 & 32—Transfer of case to other court—Quashing of proceedings, petition for—Petitioner fugitive from law—Effect—Contention of petitioner was that since Trial Judge was in a hurry in holding the trial against the petitioner by violating the mandatory provisions of law, petitioner, therefore, lacked confidence in the Trial Judge—Petition was opposed with the contentions that petitioner being fugitive from law, could not seek any relief from the court and that petition filed by the counsel appointed by alleged general attorney of the petitioner, could be considered, unless he would surrender himself before the court of law—Validity—Petitioner was absconder, and trial against him was in progress, and petitioner was represented by the counsel appointed by the court—Petition for transfer of case and quashing the proceedings had been filed by counsel on the authority given by alleged general attorney of the petitioner—Such petition on behalf of the petitioner, could not be held to be “petition” by which relief could be granted to petitioner—Fugitive from law could not be awarded relief, unless he surrendered before the court—Petitioner, failed to point out any ground requiring transfer of case from the court of Trial Judge to any other court—Expeditious trial in cases of terrorism, was the requirement of special law and the concept of said law was nothing, except the disposal of cases on day to day basis and appeal decided within a specific time-frame—Adverse opinion against the Trial Judge, in circumstances, could not be taken—Petition was dismissed, and parties were directed to appear before the Trial Court on date already fixed for further proceedings, in circumstances.

2015 MLD 1374 Gilgit-Baltistan Chief Court

State VS SHAKEEL AHMAD

Ss.6, 7, 21-H, 21-L & 25—Penal Code (XLV of 1860), Ss. 302, 34, 114 & 109—Qanun-e-Shahadat (10 of 1984), Art.40—Criminal Procedure Code (V of 1898), S.417(2-A)—Constitution of Pakistan, Arts.13(b) & 25—Qatl-i-amd, common intention, abetment—Appeal against acquittal—Reappraisal of evidence—Statements of accused recorded by Superintendent of Police, did not contain the proper and clear answers given by accused persons to questions put to them, which could suggest that confessions of accused were voluntary within the contemplation of S.21-H of Anti-Terrorism Act, 1997—Said statements had lost its effectiveness for becoming a piece of evidence—Statement recorded under S.21-H of Anti-Terrorism Act, 1997, could not be used as exclusive piece of evidence, upon which conviction could be based, if said statement was not corroborated by a strong piece of evidence—Said statement, would be treated just a piece of evidence, which would be read along with the other material on record—Section 21-H of Anti-Terrorism Act, 1997, was repugnant to Arts.13(b) & 25 of the Constitution—Prosecution claimed that a .30 bore pistol was recovered at the pointation of accused, which version, was substantiated by prosecution witness; but, in court it turned out to be different one, in description of pistol, rather it was 163 mm and not 30 bore, which had made the recovery doubtful—Recovery of pistol, could not be treated as corroborative piece of evidence—Site-plan prepared at the pointation of accused, could not be termed in pursuance of Art.40 of Qanun-e-Shahadat, 1984, as in order to bring the case within the ambit of Art.40, prosecution must establish that information conveyed by accused, actually led to the recovery of same and that said fact was unknown to the Police, and it was for the first time derived from the accused—Just after the occurrence, the Police had visited the spot, and on the pointation of eye-witness, Investigating Officer, prepared the site-plan—Conditions laid down under Art.40 of Qanun-e-Shahadat, 1984, were not attracted in the case—Each and every piece of evidence, collected by Investigating Officer in the case, to connect accused with the offence, suffered with doubts and infirmities—No conviction could be based on such evidence in circumstances—Appeal against acquittal was dismissed being meritless.

2014 GBLR 137 SUPREME-APPELLATE-COURT

State VS SUFI ALI

153-A—Anti-Terrorism Act (XXVII of 1997), Ss.8, 9 & 25—Criminal Procedure Code (V of 1898), Ss.196 & 417(2)—Promoting enmity between different groups, act of terrorism—Appeal against acquittal—Case was registered on information with the delay of almost 20 days—Procedure—Police Officer was duty bound to send report to the Magistrate concerned forthwith—Police Officer did not send any such report to the Magistrate, which had caused a serious doubt about the secret information and proceedings by the Police Officer—Case could not be registered with promptitude, which had made the case of prosecution doubtful—Prosecution witnesses had stated that they were never associated with the investigation of the case nor their statements under S.161, Cr.P.C., were ever recorded by the Investigating Officer—Inference could be drawn that witnesses had not seen accused persons while committing the offence—Whole exercise undertaken by the Investigator, while collecting the incriminating material from accused persons, was rendered futile—Such kind of evidence could not be relied upon for conviction and sentence, particularly, when appeal was against acquittal—Cognizance in the offence under S.153-A, P.P.C., could not be taken to any court in view of S.196, Cr.P.C.—Registration of FIR in such a manner was void ab initio—Offence under S.153-A, P.P.C., could not be termed as an offence against individual, rather it was an offence against the State—Court would take the cognizance of offence punishable under S.153-A, P.P.C., upon a complaint made by Federal Government or Provincial Government or some officer so empowered in that behalf by any of the two Governments—No sanction was accorded, entitling the Judge Anti-Terrorism Court to take the cognizance of the offence under S.153-A, P.P.C.—Case in an offence under S.153-A, P.P.C., could not be proceeded on the report prepared under S.173, Cr.P.C.—Non-adherence and observance of the provisions of S.196, Cr.P.C., rendered the subsequent proceedings a nullity—Where a condition for the exercise of jurisdiction, was not fulfilled, the whole proceedings, subsequent thereto would become coram non judice, and would have no legal effect, and would render the whole exercise, not only illegal, but also without jurisdiction—Accused was presumed to be innocent, unless found guilty—Supreme Appellate Court, could not substitute its own finding, unless it was found that the findings of the Chief Court, were based on mis-reading of the evidence leading to miscarriage of justice—Judgment of the Chief Court, whereby, accused persons were acquitted, was unexceptional, and did not require any interference, in circumstances.

2014 PCrLJ 410 QUETTA-HIGH-COURT-BALOCHISTAN

GHULAM DASTAGEER VS State

Ss. 516-A, 367 & 561-A—Anti-Terrorism Act (XXVII of 1997), Ss.7 & 25—Confiscated vehicle, custody of—Jurisdiction of Trial Court—Direction of Supreme Court—Trial Court confiscated vehicle in question and declined its custody on the plea that the same would be review of its own judgment—Validity—Confiscation order did not fall within the definition of “judgment” as contemplated under S.367, Cr.P.C.—Supreme Court permitted appellant to file application before Trial Court and also directed Trial Court to entertain the application and decide the same—Trial Court was bound to decide entitlement of appellant regarding vehicle in question on its own merits—Trial Court erred in law by dismissing application on such erroneous unwarranted and unjustified reason—High Court set aside order passed by Trial Court and remanded the application for decision afresh—Appeal was allowed accordingly.

2014 PCrLJ 1750 PESHAWAR-HIGH-COURT

GHAZI MARJAN VS State

Ss. 25 & 27—Conviction of Investigating Officers—Principles of natural justice—Show-cause notice was not issued to the accused persons regarding omissions/commission in investigation—Under S.27 of the Anti-Terrorism Act, 1997 delinquent Investigating Officers could be convicted but principles of natural justice required that no one should be punished without giving opportunity of being heard and defended—Conviction of accused violated principles of natural justice enshrined in maxim “audi alteram partem” i.e. no one should be condemned unheard—Appeal was accepted and accused were acquitted.

2014 PLD 213 LAHORE-HIGH-COURT-LAHORE

MANZOOR AHMAD VS State

Rr. 5 & 6—Anti-Terrorism Act (XXVII of 1997), S.25—Lahore High Court Notification dated 10-4-1982—Appeal—Murder Reference—Transfer of appeal from Bench of High Court to Principal Seat of High Court—Appellant sought transfer of his appeal under the Anti-Terrorism Act, 1997 along with connected Murder Reference to the principal seat of the High Court from the Bench of the High Court at place “M”—Held, that Lahore High Court Notification dated 10-4-1982 did provide option to the appellant to choose the forum where appellant would like his/her matter in appeal along with connected murder reference, to be heard—Complainant had also given her consent for such transfer—Application for transfer was allowed, in circumstances.

2013 PLD 39 QUETTA-HIGH-COURT-BALOCHISTAN

THE STATE through Assistant Advocate-General, Ex-Officio and Public Prosecutor Balochistan VS ABDUL WADOOD

7—Anti-Terrorism Act (XXVII of 1997), Ss.18 & 25—Criminal Procedure Code (V of 1898), S.492—Appeal—Assistant Advocate General—Locus standi to file appeal—Scope—Objection was raised to maintainability of appeal on the ground that appeal filed by Assistant Advocate General was not filed by competent person—Validity—At the relevant time Advocate General and Assistant Advocate General were conducting cases on behalf of the State before High Court, therefore, it was presumed that Assistant Advocate General was duly empowered to file appeal—Objection was overruled in circumstances.

2013 MLD 899 PESHAWAR-HIGH-COURT

The STATE through Advocate-General Khyber Pakhtunkhwa, Peshawar VS ATTAUR REHMAN

Ss.365-A, 342 & 343/34—Anti-Terrorism Act (XXVII of 1997), Ss.7 & 25(4)—Criminal Procedure Code (V of 1898), S.417—Kidnapping or abducting for extorting property, wrongful confinement and common intention—Appeal against acquittal—Appreciation of evidence—After recording of evidence, Trial Court acquitted all accused persons—Validity—In F.I.R. no one was cited to have witnessed the occurrence but then paternal cousin of complainant was introduced as prosecution witness for the first time to record his statement before investigating officer to the effect that he had witnessed the occurrence of abduction of complainant at the hands of accused—House of the prosecution witness was adjacent to that of the complainant, who in his examination-in-chief referred to abduction of a girl by accused and in the same breath he stated that later on he came to know that the girl was his cousin but such statement was recorded on 27th day of occurrence—Case of complainant was full of glaring contradictions and material discrepancies, therefore, Trial Court had no choice but to acquit accused and its judgment was unexceptionable which called for no interference—High Court declined to interfere in judgment of acquittal passed by Trial Court.

2013 YLR 520 KARACHI-HIGH-COURT-SINDH

RIZWAN VS FEDERATION OF PAKISTAN through Secretary Ministry

Ss. 25(5) & 25(8)—Constitution of Pakistan, Art. 199—Constitutional petition—Maintainability—Delay in conclusion of appeal—Suspension of sentence—Release of accused on bail pending appeal under Anti-Terrorism Act, 1997—Scope—Sentence of five years whether a ‘short sentence’—Accused persons were convicted and sentenced by the Anti-Terrorism Court for a minimum term of 5 years imprisonment—Contentions of accused persons were that under S. 25(5) of Anti-Terrorism Act, 1997, appeal had to be decided in seven days, but due to backlog of appeals in the High Court, there was no possibility of conclusion of appeal in near future; that out of total sentence of five years, accused persons had already passed one year in jail and were entitled to bail on grounds of their “short sentence”—Prosecution contended that High Court had no jurisdiction to grant bail in a constitutional (writ) petition and that there was a complete embargo under S. 25(8) of Anti-Terrorism Act, 1997, on grant of bail during pendency of appeal—Validity—High Court could suspend the sentence and grant bail during pendency of appeal under constitutional (writ) jurisdiction in cases of Anti-Terrorism Act, 1997—Accused persons were convicted for five years, which was a short sentence; one year had already elapsed and there was no likelihood of regular hearing of appeal in near future—Apprehension existed that if the accused persons were not released on bail during pendency of appeal, they would undergo their entire sentence before the final decision—Constitutional petition was allowed, sentence awarded by Anti-Terrorism Court was suspended and accused persons were granted bail.

2013 MLD 1469 KARACHI-HIGH-COURT-SINDH

MUHAMMAD SHOAIB VS State

Ss. 6(2)(b)(k), 7(c)(h), 19(12) & 25—Constitution of Pakistan, Arts.9 & 10—Act of terrorism—Conviction in absentia—Options for accused—Accused had two options in law in case of conviction recorded in absentia; firstly, to approach the Trial Court within the stipulated period with a request to set aside his conviction recorded in absentia, in terms of S.19(12) of the Anti-Terrorism Act, 1997 by showing that he did not abscond deliberately from the court during the trial and secondly to surrender before High Court by filing an appeal under S.25 of the Anti-Terrorism Act, 1997 with a prayer to set aside the conviction awarded in absentia; and to acquit him on merit or to remand the matter to the Trial Court for fresh trial by setting aside impugned judgment.

2012 PCrLJ 1871 QUETTA-HIGH-COURT-BALOCHISTAN

THE STATE through Additional Prosecutor ATA VS HASHIM KHAN

Ss. 302, 324, 147,. 148 & 149—Anti-Terrorism Act (XXVII of 1997), Ss.7 & 25(4)—Criminal Procedure Code (V of 1898), 5.265-F— Qutl e-amd, attempt to Qatl-e-amd and rioting armed with deadly weapons—Appeal against acquittal—Appreciation ‘ of evidence—Essential witnesses, summoning of—Duty of Court—Complainant assailed judgment passed by Trial Court, whereby accused were acquitted of the charge—Validity—Contents of F.I.R. disclosed presence of eye-witnesses at the site and one of them was cited as witness but name of the most important person did not appear in calendar of witnesses–Investigating officer during course of investigation was bound to give names of eye-witnesses or other material witnesses in the list of prosecution witnesses and should have made efforts to locate them and procure their attendance before Trial Court, which had’ not been done—Even Trial Court also failed to adopt legal course, neither issued summons thereby calling material and eye-witnesses to get acquainted with real, aspect of the case and to administer justice—All witnesses which were essential to unfolding of narrative on which prosecution was based, should have been called by prosecution, whether In the result effect of their testimony was for or against the case for prosecution—Trial Court was empowered under S.265-F(2), Cr.P.C. to ensure that proper witnesses, who were acquainted with facts of prosecution case should have been produced before it but the same was not done—Trial Court failed to fulfil its liability, therefore, in absence of material witnesses Ito decision could be arrived at—High Court set aside judgment passed by Trial Court and case was remanded for retrial and decision afresh by calling necessary witnesses of both the parties—Appeal was allowed accordingly.

2012 PLD 224 LAHORE-HIGH-COURT-LAHORE

Sh. MUHAMMAD NAWAZ AKRAM VS State

Ss. 427/149, 337-F(iii)/149 & 148—Anti-Terrorism Act (XXVII of 1997), S.25(8)—Constitution of Pakistan, Art.199—Constitutional jurisdiction—Scope—Suspension of sentence—Despite the bar contained in S.25(8) of Anti-Terrorism Act, 1997, High Court was not deprived of the jurisdiction to release a convict on bail during the pendency of his appeal, under the extraordinary constitutional jurisdiction—Constitutional petition, therefore, was maintainable—Thirty one co-accused in the case had been acquitted by Trial Court—Offences under which the accused had been convicted and sentenced did not fall within the Scheduled offences, punishable under the Anti-Terrorism Act, 1997—Jurisdiction of Trial Court as well as legality of the impugned judgment required reappraisal of evidence on record—Sentence of two years’ R.I. awarded to accused was short and their appeal was not likely to be heard in the near future—Every apprehension existed that before decision of their appeal accused would have undergone their entire sentence, in case they were not released on bail and in that event it would be impossible to compensate them for their illegal detention in jail, if ultimately they were acquitted in their appeal—On the contrary, in the event of dismissal of their appeal by High Court, accused if released on bail, could be rearrested for undergoing their remaining sentence—Question of length of sentence undergone by accused was immaterial in the such circumstances—Sentence of accused was suspended and they were released on bail accordingly.

2012 PCrLJ 696 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ARIF VS NAZEER AHMED

Ss. 435, 439 & 561-A—Anti-Terrorism Act (XXVII of 1997), Ss.25, 31 & 32—Penal Code (XLV of 1860), Ss.365-A/337-A(i)/337-F(v)/382/ 420/468/471/148/149—Kidnapping or abduction for extorting property etc., causing hurts, theft after preparation made for causing death etc., cheating, forgery for purpose of cheating, using as genuine a forged document, rioting armed with deadly weapons—Criminal revision—Maintainability—Impugned order had been passed by the Anti-Terrorism Court—Anti-Terrorism Act, 1997, had no provision for challenging the order of Anti-Terrorism Court by way of revision under Ss.435, 439, Cr.P.C. or any application under 5.561-A, Cr.P.C.—Sections ’25, 31 and 32 of the Anti-Terrorism Act, 1997, which were to be read in conjunction with each other, did not permit the order passed .by Special Court to be challenged in revision or under the inherent jurisdiction of High Court—Revision petition, therefore, was not maintainable under the law–However, Trial Court had passed the impugned order on the basis of the preliminary statements of the complainant and his witnesses and taking into consideration copies of the medico-legal reports and the cheques etc. brought on record and had rightly summoned the petitioner as an accused in the private complaint—Said order was well-versed from every angle and did not suffer from any legal infirmity—Revision petition was consequently dismissed in limine being not maintainable in law.

2011 PCrLJ 411 KARACHI-HIGH-COURT-SINDH

MUHAMMAD BILAL alias SULLEMAN VS FEDERATION OF PAKISTAN through the Secretary Ministry of Law, Justice and Human Rights Division

Ss. 6(2)(d), 6(2)(ee), 7(b)(ff), 17, 23 & 25—Penal Code (XLV of 1860), S.507—Telegraph Act (XIII of 1885), S.25-D—Constitution of Pakistan, Art.199—Constitutional petition—Trial by Anti-Terrorism Court—Scope—Act of terrorism likely to cause death or endanger a person’s life, act of terrorism that involves use of explosives by any devise including bomb blast, criminal intimidation by anonymous communication—Accused contended that Anti-Terrorism Court was not competent to convict him of non-scheduled offence as provisions of S.17 of Anti-Terrorism Act, 1997 were not attracted in his case—Validity—Offences under S.6(2)(d) and S.6(2)(ee) of Anti-Terrorism Act, 1997 were not proved against the accused—Only offence proved against accused was that of criminal intimidation under S.507, P.P.C. which was not a scheduled offence—Anti-Terrorism Court was empowered to try a non-scheduled offence only along with/in addition to scheduled offence(s) at the same trial under S.17 of Anti-Terrorism Act, 1997 which did not empower an Anti-Terrorism Court to try non-scheduled offence when said court was not trying a scheduled offence—Under S.23 of Anti-Terrorism Act, 1997 Anti-Terrorism Court was bound to transfer the case of non-scheduled offence to any court having jurisdiction to try such offence—Once Anti-Terrorism Court had formed the opinion that the only offence proved against the accused was criminal intimidation under S.507, P.P.C., the court should not have proceeded to convict the accused of the offence as S.23 of Anti-Terrorism Act, 1997 did not confer jurisdiction on said court to pass judgment on non-scheduled offence—Mere commencement of trial was not a ground to decline transfer of case under S.23 of Anti-Terrorism Act, 1997—Impugned judgment being. without jurisdiction and nullity in the eyes of law, could not be maintained—Constitutional petition was, therefore, converted into special Anti-Terrorism-appeal–No limitation would run against the judgment of Anti-Terrorism Court on the ground that such judgment was passed without jurisdiction—Appeal was allowed; impugned judgment was set aside and case was remanded to the Anti-Terrorism Court for transfer to the Court of Session for trial in accordance with law.

2011 PLD 70 KARACHI-HIGH-COURT-SINDH

THE STATE through ADVOCATE-GENERAL SINDH VS TAJ MUHAMMAD

Ss…302, 324, 393, 398, 34—Anti-Terrorism Act (XXVII of 1997), Ss.7(i)(a) & 25 (4)—Qanun-e-Shahadat (10 of 1984), Art.22—Criminal Procedure Code (V of 1898), 5.417—Qatl-e-amd, attempt to commit QatlÂe-amd and dacoity—Appeal against acquittal—Identification parade—Delay—Effect—Non-mention of description of accused in F.LR.—Accused shown to prosecution witnesses—Complainant assailed acquittal of accused by Trial Court on the ground that accused had been rightly identified by prosecution witnesses during identification parade—Validity–Picking of accused by prosecution witness in identification parade before Magistrate was of no significance as the witness claimed to have had already seen the accused earlier at the time of his arrest—Even otherwise prosecution witnesses could have seen only partial glimpse of face of culprit and that too at a time when they were in the state of terror, therefore, identification test held after two months of such occurrence was not of much value—Simple identification of accused in delayed identification parade was not material especially when no specific role of accused in commission of crime was described during that identification parade—Trial Court had appraised relevant evidence available on record by making threadbare examination of each relevant piece of evidence, supported by reasons based on record and no prosecution evidence, incriminating in nature was misread or omitted from consideration or not appraised in its true perspective—Judgment of acquittal was unexceptionable and did not suffer from any factual or legal infirmity and the same was based on fair and legal appreciation of evidence on record with sound reasons—Judgment of acquittal did not call for interference by High Court as double presumption of innocence was attached to the accused—Complainant failed to show that findings of Trial Court were perverse, illogical, artificial, ridiculous or based on misÂreading of evidence leading to miscarriage of justice—Appeal was dismissed in circumstances.

2011 PCrLJ 227 Gilgit-Baltistan Chief Court

JUMA KHAN VS State

302(b)—Anti-Terrorism Act (XXVII of 1997), Ss.7(a) & 25—Qatl-e-amd and terrorism—Plea for a lesser punishment on ground of extremely old age—Cold blooded murder of deceased having fully been proved from the gathered material on record, accused deserved no leniency in the matter—Accused had made full preparation by arming himself to the teeth by a loaded shotgun as well as a loaded pistol planting himself at the spot from where the deceased (doctor) had to pass after attending his clinic—Accused had a motive and had shown that it was a deliberate well planed execution—Accused, in circumstances, did not deserve any leniency for his act done at old age—Courts should not exercise the option and privilege of giving lesser punishment for offences for which the law had laid out punishment—Privilege of reduction as well as the forgiving and pardoning the offender should be with the complainant or the relevant legal heirs of the deceased—Relaxation of sentence claimed by accused was unfounded and the privilege of the same could not be extended to accused, simply because he was of very old age (92 years) or infirm—Death sentence awarded to accused under S.302(b), P.P.C. and 7(a) of Anti-Terrorism by Administrative Judge Anti-Terrorism, was maintained and murder reference made under S.374, Cr.P.C. and S.25 of Anti-Terrorism Act, 1997, was confirmed, in circumstances.

2011 PLD 1 FEDERAL-SHARIAT-COURT

Mian ABDUR RAZZAQ AAMIR VS FEDERAL GOVERNMENT OF ISLAMIC REPUBLIC OF PAKISTAN

25—Constitution of Pakistan, Art.203-DD—Offences in cases relating to Hudood—Vires of statute—Federal Shariat Court declared that S. 25 of the Anti-Terrorism Act, 1997 does not make provision for filing an appeal before the Federal Shariat Court in cases where the Anti-Terrorism court decides a case relating to some of the Hudood offences included in the Schedule as from 21-8-1997; said omission is violative of Art.203-DD of the Constitution—Federal Government should rectify this error by the target date fixed by Federal Shariat Court otherwise the rider to the effect that “but where a private complaint or a First Information Report or information, as stipulated in 5.190 of the Code of Criminal Procedure, relating to an offence falling within the purview of ten categories of Hudood Offences (mentioned in the present judgment), is decided by any court exercising criminal jurisdiction under any law of the land, the appeal therefrom shall lie to the Federal Shariat Court.” shall be read at the end of clause (i) of S.25 after omitting the full stops—Federal Shariat Court directed that present declaration shall take effect as from 22nd June, 2011 by which date necessary steps be taken by the Federal Government to amend the impugned laws in conformity with present declaration whereafter the impugned provision shall cease to be effective and this judgment of the Federal Shariat Court will be operative as on 22-6-2011.

2011 PLD 1 FEDERAL-SHARIAT-COURT

Mian ABDUR RAZZAQ AAMIR VS FEDERAL GOVERNMENT OF ISLAMIC REPUBLIC OF PAKISTAN

Ss. 9, 48, 49 & 51—Anti-Terrorism Act (XXVII of 1997), Ss.25 & 21-D—Constitution of Pakistan, Art.203-DD—Jurisdiction of Federal Shariat Court charged with “Hudood” offences and grant or refusal of bail—Scope—Offences relating to narcotic drugs are within the purview of “Hudood” and consequently an order, final or interim including grant or refusal of bail, passed by any court, special or ordinary, under any law, regarding an offence relating to “Hudood” is within the jurisdiction of the Federal Shariat Court and no other court, including a High Court, has the power to entertain bail matter or an appeal or revision in any such matter—Federal Shariat Court directed . that text of Ss.48 & 49 of Control of Narcotic Substances Act, 1997 has now to be suitably amended to restore jurisdiction of Federal Shariat Court in matters relating to enforcement of “Hudood”-No legal instrument, other than constitutional amendment, can limit or ignore the exclusive jurisdiction of Federal Shariat Court mandated under Art.203-DD of the Constitution—Similarly if an offence of the nature of “Hudood” is tried under Anti-Terrorism Act, 1997 the appeal in all such cases under S.25 of the said Act, or for that matter bail under S.21-D of the said Act shall lie before the Federal Shariat Court and not a High Court—Federal Shariat Court directed that consequently two steps will have to be taken to set the matter right that words “Federal Shariat” shall be substituted for the words “High Court” occurring in Ss.48(i) and 49(i) of Control of Narcotic Substances Act, 1997 and that a rider will have to be put in S.25 of the Anti-Terrorism Act, 1997 to state that appeal in cases relating to Hudood shall lie to the Federal Shariat Court—Any order, interim or final, passed by a Court constituted under Anti-Terrorism Act, 1997, in relation to a Hadd offence, shall be appealable or revisable only before the Federal Shariat Court—Wordings of S.25 Anti-Terrorism Act, 1997 should be suitably amended to make it clear that a High Court shall have jurisdiction in all cases under the Act except “Hudood” matters—Present findings shall become operative after the specified period—Ss.48 & 49 of Control of Narcotic Substances Act, 1997 and S.25 of Anti-Terrorism Act, 1997 are violative of Art.203-DD of the Constitution to the extent that the jurisdiction of the Federal Shariat Court is ousted in matters relating to grant of bail or hearing appeals or ordering transfer of cases from one court to another court in cases registered or charged with “Hudood” offences—Federal Shariat Court directed that present declaration shall take effect as from 22nd June, 2011 by which date necessary steps be taken by the Federal Government to amend the impugned laws in conformity with the present declaration whereafter the impugned provision shall cease to be effective and present judgment of the Federal Shariat Court will be operative as on 22-6-2011.

2009 SCMR 527 SUPREME-COURT

MUHAMMAD YAQOOB VS State

25(4-A) [as added by Anti-Terrorism (Second Amendment) Act, 2004 (II of 2005)]—Insertion of subsection (4-A) in S.25 of the Anti-Terrorism Act, 1997—Effect—Amendment brought in Anti-Terrorism Act, 1997, vide subsection (4-A), of S.25 by the Anti-Terrorism (Amendment) Act, 2004, being purely procedural in nature, has to govern the pending cases/proceedings as well, because it had not taken away any right vesting in the accused.

2009 PCrLJ 955 PESHAWAR-HIGH-COURT

SIKANDAR KHAN VS State

Ss. 324/353/148/149—Anti-‘Terrorism Act (XXVII of 1997), Ss.7(b), 9(b) & 25—Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.22—West Pakistan Arms Ordinance (XX of 1965), S.13—Appreciation of evidence—Recovery of arms and ammunitions were made from the possession of accused persons which was duly witnessed by marginal witness of the recovery, who had fully supported the case of the prosecution—All the prosecution witnesses had faced the test of lengthy cross-examination by the defence, but nothing favourable to accused persons had come out from their mouths—Defence had failed to shatter the case of the prosecution—Prosecution witnesses were all unanimous on all material points—Medical Officer who had examined accused who resisted his arrest and during the scuffle between the Police party and accused had sustained injuries, his medico legal report also supported the case of the prosecution—Both accused persons and absconding co-accused had attempted to commit robbery and to loot the passengers sitting inside the Bus and they had created terror and panic in the whole surroundings area—Empties had been recovered during the spot inspection, which were sent to Forensic Science Laboratory for analysis and its report was in positive—Accused had failed to produce any documentary proof with regard to the recovered arms and ammunitions—Accused were reasonably linked with the commission of the offence charged with—Prosecution had been able to prove its case against accused persons beyond any shadow of reasonable doubt—Trial Court, in circumstances, had rightly appraised the evidence brought on record—Impugned judgment of the Trial Court based on correct legal footings and correct appraisal of evidence, could not be set at naught by High Court—Counsel for accused had failed to point out any illegality, irregularity, misreading or non-reading of evidence so as to create a dent in the case of the prosecution, or legal infirmity, perversity in the impugned judgment of conviction which was accordingly maintained.

2009 PCrLJ 257 LAHORE-HIGH-COURT-LAHORE

ATTA ULLAH alias HASNAIN alias HASSAN VS State

426(2-B)—Anti-Terrorism Act (XXVII of 1997), S.25(8)—Suspension of sentence—High Court pending the appeal of convict, could suspend the sentence under S.426, Cr.P.C., but in cases tried by Anti-Terrorism Court, the said powers, were not available in view of bar contained in S.25(8) of Anti-Terrorism Act, 1997—When a court could not exercise a power of releasing accused on bail during the pendency of appeal before it, said jurisdiction could not be exercised even after the decision of appeal by invoking provisions of S.426(2-B), Cr.P.C.

2009 MLD 1198 KARACHI-HIGH-COURT-SINDH

ALI HASSAN VS State

Ss. 6(2)(e), 19(12) & 25–Conviction in absentia, remedy for—Two options were available, in law, to a person convicted in absentia; he could request the Trial Court to set aside his conviction under S.19(12) of the Anti-Terrorism Act, 1997 by showing that he did not abscond and could also file appeal under S.25 of the said Act—Filing of application under S.19(12) of the Anti-Terrorism Act, 1997 was not an indispensable condition for filing appeal under S.25 of the Act–Powers of the Appellate Court were wider than the powers of the Trial Court in the matter of setting aside conviction in absentia—Trial Court, after setting aside the conviction, would proceed to try accused in his presence; while the Appellate Court after setting aside the conviction could remand the case to the Trial Court for fresh trial or could even acquit him on merits—If a case was fit for acquittal on merits, it would be futile to conduct fresh trial—If a person convicted in absentia was entitled to acquittal on merits, he could not be forced to undergo the botheration of trial—Under S.25 of Anti-Terrorism Act, 1997, nothing was to suggest that a person convicted and sentenced in absentia, could not file appeal without first making application under S.19(12) of said Act.

2008 MLD 1611 QUETTA-HIGH-COURT-BALOCHISTAN

LIAQUAT ALI VS State

Ss. 302(b) & 365—Anti-Terrorism Act (XXVII of 1997), Ss.7(a)(c) & 25—Appreciation of evidence—Benefit of doubt—F.I.R. in the case was lodged after a delay of six days—Statements of alleged abductees were also recorded after considerable delay and even after their release, none of them had named accused persons—F.I.R. did not show the names of the witnesses who were present at the site—Neither the F.I.R. was lodged promptly nor statements of the witnesses were recorded with promptitude and said delay had not been explained—Even the statements of alleged eye-witnesses were not interlinked and interconnected as the witnesses did not show presence of the other alleged eye-witnesses; they had also failed to explain that despite the fact that they were present in the area, they did not come forward for recording their statements at the earliest possible time—Even the complainant stated that he got recorded the complaint after delay of five days—Delay per se though could not be sufficient to discard the statement, but statements had to be considered in the light of facts and circumstances of the case—In the present case, two tribes were inimical to each other on the excavation of coal and dispute was over the mining area—Witnesses, despite being residents of the area, had kept mum for a long period and did not get recorded any statement implicating accused persons at the earliest possible time–Police Officer, who registered case, had failed to perform his duty in recording the F.I.R. and he waited for the complaint to be filed, which had further caused suspicion of the allegations levelled against accused persons—In view of delay in recording the F.I.R:, delay in recording the statements of the witnesses under S.161, Cr.P.C., which had not been explained, either by the Investigating Officer or the witnesses and the discrepancies in the statements of the witnesses, as well as the fact that accused were not named by the alleged abductees, prosecution had failed to prove the case against accused persons beyond shadow of doubt—Extending benefit of doubt, impugned judgment was set aside and accused persons were acquitted of the charge, in circumstances.

2008 PLD 74 LAHORE-HIGH-COURT-LAHORE

ALLAH DIN VS SPECIAL JUDGE, ANTI-TERRORISM COURT NO.1, LAHORE

25(8)—Constitution of Pakistan (1973), Art.199—Constitutional jurisdiction—Scope—Bail, grant of—-Despite the bar under S.25(8) of the Anti-Terrorism Act, 1997, High Court can release a convict on bail during the pendency of his appeal—Jealously guarding its authority qua the grant of relief to an aggrieved/deserving person by the Court of competent jurisdiction is very natural—Spirit/Theme of Anti-Terrorism Act, 1997, is to provide speedy justice that is why under S.25(5) of the said Act the Appellate Tribunal is required to decide the appeal within seven days and thus debarring the Appellate Authority from releasing the convict on bail during the pendency of his appeal was understandable, but it seems that the Legislature while making the said provisions of law has ignored that if the appeal is not decided within the said period and remained pending for many years due to heavy workload of the Court, then what kind of relief is available to the convict if otherwise his ease is that of corum-non-judice, or short sentence or when the convict is suffering from ailment which could not be treated in the jail hospital—Inordinate delay in prosecution of a criminal case amounts to abuse of process of law/Court and in such like situation accused/convict earns the right for the grant of bail—In spite of the bar under’ S.25(8) of the Anti-Terrorism Act, 1997, qua the release of a convict on bail daring the pendency of his appeal, High Court is not deprived of the authority/jurisdiction to grant said relief under extraordinary constitutional jurisdiction in view of Art.199 of the Constitution—High Court,. therefore, in exercise of its extraordinary constitutional jurisdiction in exceptional cases can suspend the sentence of convict during the pendency of his appeal when satisfied that it is a case of corum-non-judice or there is inordinate delay in disposal of appeal or the sentence is short and there is no possibility of hearing of appeal in near future and where the convict during the pendency of his appeal before the Appellate Bench develops an ailment of the nature that keeping him in detention/confinement may result into his death and that he cannot be provided requisite treatment under detention in the Government or other hospitals—Subsection (8) of 5.25 of the Anti-Terrorism Act; 1997, being harsh in nature and contrary to the principles of natural justice was recommended by the High Court to be suitably amended.

2007 PLD 277 KARACHI-HIGH-COURT-SINDH

ATHAR NAEEM alias WAQAS CHAUDHRY VS State

—Ss. 7(e) & 25—Penal Code (XLV of 1860), S.365-A—Limitation Act (IX of 1908). S.5—Condonation of delay—Appeal, in the present case, against judgment of Anti-Terrorism Court which was to be filed within 7 days from date of judgment, as per S.25 o

2007 PCRLJ 340 KARACHI-HIGH-COURT-SINDH

MUHAMMAD ASHRAF KHAN VS State

—Ss. 232, 236, 237, 238(2) & 265-D—Penal Code (XLV of 1860), Ss.120-B & 324—Anti-Terrorism Act (XXVII of 1997), Ss.7(b) & 25—Appeal against judgment of Anti-Terrorism Court—Framing of charges—Appellants/accused had confessed their guilt before

2006 YLR 954 QUETTA-HIGH-COURT-BALOCHISTAN

ABDUL MAJEED VS State

—S. 13(e)—Anti-Terrorism Act (XXVII of 1997), Ss.6(3) & 25—Appreciation of evidence—Witnesses had corroborated each other on material point and proved the factum of recovery—Said witnesses were subjected to lengthy cross-examination but no mater

2006 PLD 290 LAHORE-HIGH-COURT-LAHORE

ATTA ULLAH VS GHULAM RASOOL

—Ss. 410, 417(2-A) & 439—Anti-Terrorism Act (XXVII of 1997), Ss.25 & 32—Constitution of Pakistan (1973), Art.199—Constitutional petition—Appellate, revisional and visitorial jurisdiction of High Court—Scope—High Court could hear appeals not

2006 PCRLJ 33 LAHORE-HIGH-COURT-LAHORE

Mst. SHAHEENA NARGIS VS DISTRICT POLICE OFFICER, BAHAWALNAGAR

—S. 491—Anti-Terrorism Act (XXVII of 1997), Ss.11-EEE & 25—Habeas Corpus petition—Petitioner in her petition under S.491, Cr.P.C. had challenged arrest and detention of her husband caused by District Police Officer under orders of Home Secretary t

2005 PCRLJ 1442 QUETTA-HIGH-COURT-BALOCHISTAN

State VS Jamadar MUHAMMAD KHAN

—S. 320(b)—Anti-Terrorism Act (XXVII of 1997), Ss.7(a) & 25—Appeal against acquittal—Appeal against acquittal of accused having been filed under S.25 of the Anti-Terrorism Act, 1997, by the Additional Advocate-General, the same was not maintainabl

2005 PCRLJ 1442 QUETTA-HIGH-COURT-BALOCHISTAN

State VS Jamadar MUHAMMAD KHAN

—S. 25—Appeal against acquittal—Competency—“Attorney-General” or “Advocate-General” only are competent to file appeal against acquittal of accused on the directives of respective Governments—No third category by way of “Additional Advocate-Gener

2005 PCRLJ 1442 QUETTA-HIGH-COURT-BALOCHISTAN

State VS Jamadar MUHAMMAD KHAN

–S. 417—Anti-Terrorism Act (XXVII of 1997), S.25—Appeal against acquittal—Principles—Courts should be slow to interfere with the judgment of acquittal, unless it has done gross injustice in the administration of criminal justice or is perverse or

2005 PCRLJ 941 QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD SHARIF VS State

—Ss. 337-A, 353, 504 & 34—Anti-Terrorism Act (XXVII of 1997), Ss.2, 6, 7 & 25—Appreciation of evidence—Jurisdiction of Anti-Terrorism Court—Appeal, limitation for—Disruption and interference with duties of public servant, no doubt was caused b

2005 MLD 1620 QUETTA-HIGH-COURT-BALOCHISTAN

State VS RAHIM DAD

—Ss.365-A, 302, 102-B, 109 , 449 & 34—Anti-Terrorism Act (XXVII of 1997), S.25—Appeal against acquittal—Appeal had neither been filed by the competent person i.e., the Advocate-General, nor any directions had been issued by the Federal or Provinci

2005 PCRLJ 369 LAHORE-HIGH-COURT-LAHORE

GHULAM HUSSAIN VS HAIDER ALI alias HAIDRI

-S. 417—Explosive Substances Act (VI of 1908), S.4—Anti-Terrorism Act (XXVII of 1997), S.25—Appeal against acquittal—Accused were tried by Anti-Terrorism Court under S.4 of Explosive Substances Act, 1908 on complaint/statement of appellant, but ac

2005 MLD 1093 LAHORE-HIGH-COURT-LAHORE

ALI KAMAL VS State

—S. 13—Anti-Terrorism Act (XXVII of 1997), Ss.7(h) & 25–Â Appreciation of evidence—Place of recovery was a thickly populated area, but no Mashir/independent witness was cited as recovery witness–Â Both recovery witnesses were police employees—

2005 YLR 1283 KARACHI-HIGH-COURT-SINDH

HASAN AKHTAR VS State

—S.25—Penal Code (XLV of 1860), Ss.302(b)/149 & 324/149—Appeal by absconders—Competency—Absconders who have not surrendered before the Court after their conviction cannot file appeal through their Advocate.

2005 YLR 1283 KARACHI-HIGH-COURT-SINDH

HASAN AKHTAR VS State

—Ss.302(b)/149 & 324/149—Anti-Terrorism Act (XXVII of 1997), Ss.25 & 19(12)—Appeal, competency of—Accused had been convicted and sentenced in absentia by the Anti-Terrorism Court and they had not surrendered either before the Trial Court or before

2005 PCRLJ 105 KARACHI-HIGH-COURT-SINDH

ABDUL KAREEM VS SPECIAL JUDGE, ANTI-TERRORISM ACTIVITIES COURT, LARKANA and Sukkur Division at Sukkur and another

—-S. 561-A—Anti-Terrorism Act (XXVII of 1997), S.25(3)—Contempt of Court Act (LXIV of 1976), S.3—Setting aside order of conviction–Converting petition into appeal—Provision of appeal having been provided in Anti-Terrorism Act, 1997, petition fo

2005 PLD 270 KARACHI-HIGH-COURT-SINDH

State VS SHER ZAMAN

–Ss. 25(4) & 7—Penal Code (XLV of 1860), Ss. 302, 394 & 34–ÂAppeal against acquittal—Prosecution version revealed that after the occurrence, looted coach was taken to the hospital; two conductors, driver of the coach and three constables were prese

2004 YLR 1106 QUETTA-HIGH-COURT-BALOCHISTAN

MOHIB ALI VS THE STATE

—-S. 25—Appeal—Appeal under S.25 of the Anti-Terrorism Act, 1997, lies only against the final judgment and not against other orders.

2004 PLD 16 QUETTA-HIGH-COURT-BALOCHISTAN

AMIR VS THE STATE

—-S. 7—Anti-Terrorism Act (XXVII of 1997), S.25—Appeal against conviction in absentia—Competency—Absconder—Where an accused is fugitive from law and has not surrendered to the process of law, his appeal is not entertained and is dismissed by r

2004 MLD 1523 PESHAWAR-HIGH-COURT

SAKHI JAN VS THE STATE

—-Ss. 324/353—Anti-Terrorism Act (XXVII of 1997), Ss. 7/25—West Pakistan Arms Ordinance (XX of 1965), S. 13—Appreciation of evidence—Police officials had claimed to have taken part in encounter and arrested accused with rifle of 7.62 bore and li

2004 PCRLJ 121 LAHORE-HIGH-COURT-LAHORE

AMIR ZAMAN VS Syed AMER ABBAS

—-S. 417(2-A)— Anti-Terrorism Act (XXVII of 1997), Ss.6, 7, 8 & 25(4)—Penal Code (XLV of 1860), Ss.302/341/342/353/365/365-A/392/394/412/34—West Pakistan Arms Ordinance (XX of 1965), S.13–Appeal against acquittal and revision for enhancement of s

2004 MLD 152 KARACHI-HIGH-COURT-SINDH

THE STATE VS NAWAB KHAN SARHADI

—-Ss.8(d) & 25—Appeal against acquittal—Allegation against accused was that after their search, audio cassettes and books were secured from each of them which contained abusive and insulting material to certain sect of Islam and by such material sec

2004 PCRLJ 1756 FEDERAL-SHARIAT-COURT

TAHIR MEHMOOD VS THE STATE

—-Ss. 20 & 24—Penal Code (XLV of 1860), S.412—Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 25—Criminal Procedure Code (V of 1898), Ss.28(c) & 29(1)(2)—Appeal before Federal Shariat Court–Competency—Court, though by dint of Proviso one to S. 24

2003 PCRLJ 1086 PESHAWAR-HIGH-COURT

MIR ZAMAN VS ZUBAIR

—-S.17(3)(4)—West Pakistan Arms Ordinance (XX of 1965), S.13–Penal Code (XLV of 1860), Ss.397/412/149—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7, 12, 19, 23, 25 & 28—Appreciation of evidence—Transfer of case to Anti-Terrorism Court —Challan

2003 MLD 1401 LAHORE-HIGH-COURT-LAHORE

TAHIR HUSSAIN VS KHALIQ DAR

—-S.25(4)—Criminal Procedure Code (V of 1898), S.417(2-A)—Appeal against acquittal—Right of appeal is created by a statute, and cannot be provided by implication or by inference—Under provisions of S.25(4) of Anti-Terrorism Act, 1997 only State

2003 CLD 1797 KARACHI-HIGH-COURT-SINDH

SULEMAN VS MANAGER, DOMESTIC BANKING, HABIB BANK LTD.

—S.41—United Nations (Security Council) Act, 1948; S.2–Constitution of Pakistan (1973), Arts. 23, 24 & 199—Anti Terrorism Act (XXVII of 1997), Ss. 11-B, 11-C, 11-E, 11-H, 11-I, 11-J & 25—Constitutional petition—Freezing of Bank accounts of Trus

2003 PCRLJ 1468 KARACHI-HIGH-COURT-SINDH

S.-I. Kazi SHAHID ALI VS THE STATE

—-Ss. 19(1)(2)(14), 21-K, 25 & 32—Contempt of Court—Summary procedure—Accused being police officer was investigating a criminal case, but he, having not completed investigation within time as provided under S.19(1) of Anti-Terrorism Act, 1997, mov

2003 PCRLJ 762 KARACHI-HIGH-COURT-SINDH

THE STATE VS AZEEM SHAKIR alias TARA

—-Ss. 7(iii), 6(d), Sched., Items (1), (4) & 25(4)—Penal Code (XLV of 1860), Ss.386/324/353/34—Criminal Procedure Code (V of 1898), S.417(1)—Appeal against acquittal—Eye-witnesses including the complainant had fully supported the prosecution cas

2003 PCRLJ 216 KARACHI-HIGH-COURT-SINDH

THE STATE VS MUHAMMAD UMAR alias CHOTOO

——Ss. 302/324—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7, 8, 19(10) & 25(4)—Criminal Procedure Code (V of 1898), Ss.417, 439 & 561-A—Acquittal of accused tried in absentia—Validity—Prosecution itself had prayed Anti-Terrorism Court to try a

2003 PLD 111 KARACHI-HIGH-COURT-SINDH

THE STATE VS FAISAL MUSHTAQ

–S. 392—Anti-Terrorism Act (XXXVII of 1997), Ss.7 & 25(4)—West Pakistan Arms Ordinance (XX of 1965), S.13-D—Appeal against acquittal–report of motorcycle-snatching had been lodged within 15 minutes of the incident rat the police station—Admitted

2002 PCRLJ 2041 PESHAWAR-HIGH-COURT

THE STATE VS AHMED ZAMAN KHAN

Anti-Terrorism Act 1997 —-S. 25—Limitation Act (IX of 1908), Ss.29(2)(a) & 12(2)—Appeal against acquittal—Limitation—Appeal was time-barred by one day which day was consumed in obtaining copy of the judgment—Section 12(2), Limitation Act excluded the period of time consumed in obtaining copy of the judgment and the day on which impugned judgment was pronounced—Operation of S.12(2), Limitation Act, 1908 was ousted only if there was any provision of law contained in a special or local law to this effect as per S.29(2)(a), Limitation Act, 1908—Anti-Terrorism Act, 1997 being a special law had not ousted the operation of S.12, Limitation Act, 1908, therefore, one day which was genuinely spent in obtaining copy of the impugned judgment had to be excluded from the limitation period of 15 days—Appeal filed against acquittal was within time in circumstances.

2002 PCRLJ 779 LAHORE-HIGH-COURT-LAHORE

GHULAM HUSSAIN ALIAS RAFAQAT VS THE STATE

—-S. 392(b)/34—Anti-Terrorism Act (XXVII of 1997), S.25—Criminal Procedure Code (V of .1898), S.164—Retracted confessional statement–Evidentiary value—Trial Court disbelieved oral evidence produced by prosecution and relied upon confessional st

2002 MLD 1853 KARACHI-HIGH-COURT-SINDH

STATE through Advocate-General, Sindh VS MUHAMMAD ASGHAR

Anti-Terrorism Act 1997 —-S.25(4)—Penal Code (XLV of 1860), S.365-A—Appeal against acquittal—Inherent discrepancies in evidence of prosecution witnesses–Complainant, in cross-examination had admitted that F.I.R. was registered after arrest of accused and recoveries effected, whereas claim of prosecution was that F.I.R. was registered 45 minutes after occurrence—Spot investigation, in view of admission of complainant, was fatal for prosecution—Complainant had also admitted in cross-examination that he knew the co-accused since 3/4 years, but he had not mentioned names of accused in F.I.R.—Two things were overlapping from such admission of complainant; firstly that either occurrence had not taken place in the manner as narrated by complainant and secondly that something was being suppressed by complainant—Evidence of witnesses who were brothers, had shown that they had not spoken the truth before Trial Court and their evidence was not inspiring confidence—Prosecution had failed to prove factor of ransom—Recovery was also doubtful and identification of accused was not arranged–Conduct of complainant appeared to be dubious—In absence of any infirmity in judgment of Trial Court whereby accused were acquitted, judgment of Trial Court could not be interfered with in appeal.

2002 PLD 152 KARACHI-HIGH-COURT-SINDH

MIAN MUHAMMAD NAWAZ SHARIF VS THE STATE

—-S. 417—Anti-Terrorism Act (XXVII of 1997), Ss.25(4) & 32—Penal Code (XLV of 1860), S.402-B—Appeal against acquittal—Principles–Golden rule of caution that imbues every statute dealing with adjudication on point of fact, to be given supersedin

2002 PLD 8 KARACHI-HIGH-COURT-SINDH

THE STATE VS MIAN MUHAMMAD SHAHBAZ SHARIF

Anti-Terrorism Act 1997 —-S. 25(4)—Appeal against acquittal—Maintainability—Advocate-General had been authorised and directed by the Provincial Government by necessary Notification and letters to file appeals against acquittal and for enhancement of sentence of accused in accordance with the provisions of S.25(4) of the Anti-Terrorism Act, 1997—To prosecute or enforce a matter judicially included as of necessity the power or the right to file the required appeals by the person, who had been authorised to pursue the appeals—Any act on the part of the Advocate-General would give the suggestion or lead to the presumption that he had been duly authorized and directed to do so—Letter issued by the Provincial Government; addressed to the Advocate-General conveying necessary sanction to prefer appeal against the impugned judgment, had been legally brought on record in accordance with the procedure—Accused had not been able to establish beyond any reasonable doubt that the requirement of S.25(4) of the Anti-Terrorism Act, 1997 had not been complied with—Petitions seeking the appeals to be dismissed in limine were dismissed in circumstances.

2001 YLR 3300 KARACHI-HIGH-COURT-SINDH

STATE VS ALAIN HINGORJO

Anti-Terrorism Act 1997 —-S. 25(4)—Limitation Act (IX of 1908), S.5—Appeal against acquittal —Limitation–Unexplained delay – of 28 days—Period prescribed in special or local law would prevail over that of Limitation Act, 1908–Prosecution was also to be treated at par with ordinary citizen—Delay of each day was to be explained for condonation of delay–Appeal was dismissed in limine.

2000 YLR 1634 LAHORE-HIGH-COURT-LAHORE

THE STATE VS BASHIR AHMAD

—–S. 417(1)—Anti-Terrorism Act (XXVII 1997), S.25(4) — Sections 302(b)/149, 324/149 & 148—Appeal against acquittal, F.I.R. in the attending circumstances was not a belated one—Defence version of the occurrence was neither reasonable nor plausib

2000 YLR 2668 KARACHI-HIGH-COURT-SINDH

THE STATE VS KHALID MOIN

—-Ss. 25, 31 & 32—Criminal Procedure Code (V of 1898), 5.435/439—Penal Code (XLV of 1860), S.365-A1386/387/34–Revision against the order passed under AntiTerrorisrn Act, 1997, whether maintainable–Sections 435 & 439, Cr. P. C. being repugnant to t

2000 YLR 902 KARACHI-HIGH-COURT-SINDH

THE STATE VS SHAMSHUR REHMAN

—-S.302/353/324—West Pakistan Arms Ordinance (IOC of 1965), S.13-D—AntiTerrorism Act (XXVII of 1997), Ss.6, 7, 25, 31 & 32—Criminal Procedure Code (V of 1898), 5.435/439—Case transferred by Special Court to Sessions Court—Revision petition, ma

2000 PCRLJ 1781 KARACHI-HIGH-COURT-SINDH

STATE VS SHAHID HAFEEZ

Anti-Terrorism Act 1997 —-S. 25—Criminal Procedure Code (V of 1898), S.417—Penal Code (XLV, of 1860), S.302/109/34—Appeal against acquittal—Name of accused did not figure in the F.I.R. and subsequent identification test had not been held–Features and description of culprits were not given in the F. I. R.—Statements of alleged eye-witnesses were recorded after 17 days with no explanation for said inordinate delay—Accused, who were Government employees were on their duties at the relevant time —Arrest of accused was under dispute and evidence of witnesses suffered. from material discrepancies—Complainant was not eye-witness of occurrence, but he received information about death of his wife from someone else and complainant lodged F.I.R. without naming any, person —Eye (witnesses who resided far away from the place of incident and not stated reasons for going to the place of incident at relevant time—Both eye-witnesses had materially contradicted each other —Mashir and Investigating Officer had contradicted each other in respect .of date of arrest of accused and said arrest and recovery of any weapon did not implicate accused or connect him with commission of murder—Accused by producing oral as well as documentary evidence had proved that he was on his duty at relevant time—Trial Court in circumstances had rightly acquitted the accused—Acquittal order based on evidence on record not suffering from any misreading or non=reading of evidence and not being perverse and illegal, could not be interfered with in appeal.

2000 PCRLJ 1729 KARACHI-HIGH-COURT-SINDH

FARIDA SAJID VS MUHAMMAD BAQIR ALI SHAH

Anti-Terrorism Act 1997 —S. 25—Criminal Procedure Code (V of 1898), S.417—Penal Code (XLV of 1860), S.302/460—Appeal against acquittal—No ocular evidence in respect of murder of deceased was available—Complainant had seen his deceased wife dead on bed with some :injuries on her person—No eyewitness of occurrence was available and only evidence against accused was that police had recovered some golden ornaments on pointation of accused after his arrest—Complainant had not specified alleged robbery of ornaments in F.I.R. but informed police after about five days of occurrence that some of the ornaments were missing from his house —Chhuri allegedly used in occurrence was stated to have been taken by accused from prosecution witness, but said prosecution witness denied the statement saying that Chhuri recovered from accused was not the same which he had handed over to the accused—Nobody had seen the accused coming into or going out of the house or around the scene of offence at relevant time—Merely because some of the ornaments, which did not figure in the F.I.R., were recovered from accused would not be safe reason to award conviction to him—Trial Court, therefore, had rightly acquitted accused persons on the ground, of discrepancies in the case—Judgment of Trial Court which was not perverse, illegal or ridiculous and did not suffer from misreading of evidence leading to miscarriage of justice, . was not set aside in appeal against acquittal.

2000 PCRLJ 1583 KARACHI-HIGH-COURT-SINDH

NOOR MUHAMMAD VS STATE

Anti-Terrorism Act 1997 —-Ss. 2(e) & 25—Penal Code (XLV of 1860), S.365-A—Proceedings before Special Judge—Competency—Offence under S.365-A, P.P.C. was not triable by Special Judge on the alleged date of incident as well as on the date when case was sent for trial—Accused contended that since proceedings before a Special Judge were coram non judice, judgment of Special Judge was liable to be set aside—Anti-Terrorism Act, 1997 being procedural law, would legally operate retrospectively and amendments in the Act would be deemed to be retrospective—Section 365-A, P.P.C. was a part of Schedule on the date of promulgation of said Act and on the date of passing conviction and sentence upon accused—Proceedings before Special Court were, thus, not “coram non judice”.

2000 PCRLJ 1434 KARACHI-HIGH-COURT-SINDH

STATE VS LAI MUHAMMAD

Anti-Terrorism Act 1997 —-S. 25—Criminal Procedure Code (V of 1898), S.417—Penal Code (XLV of 1860), S.365-A/34—Appeal against acquittal—Alleged abductees had not supported prosecution case against the accused—One of the abductees was declared hostile by prosecution and was cross-examined by Special Public Prosecutor—No clue was found to the effect that accused were involved in abduction of alleged abductees—One of the alleged abductees had stated that accused present in the Court were not same while other abductee had stated in his evidence that accused present in the Court were the same whose names were given by police, but nowhere in his testimony he had said a word against accused except that their names were given by police—Accused, in circumstances, could not be convicted on capital charge merely on assumptions and conjectures—When abductees had turned their story and Mashir of recovery had not supported the case, only evidence of police officials and Investigating Officer would not be sufficient to bring home guilt of the accused—Trial Court had rightly acquitted accused finding that case of prosecution against accused was doubtful—Judgment of Court below based on evidence on record and not being perverse, illegal and not suffering from misreading of evidence leading to miscarriage of justice, could not be interfered with in appeal.

2000 PCRLJ 1418 KARACHI-HIGH-COURT-SINDH

STATE VS ANIS BAWANI

Anti-Terrorism Act 1997 —-Ss. 25 & 32; –Limitation Act (IX of 1908), Ss:5 & 29(2)(a)(b)—Appeal against acquittal—Limitation for—-Delay, condonation of—Appeal against acquittal which- was to be filed before Special Court within fifteen days as provided under S.25 of Anti-Terrorism Act, 1997 was filed after twenty-five days from expiry of prescribed period of 15 days and the delay was not properly explained—Period of limitation as prescribed in Special or Local Law was to prevail over that of Limitation Act, 1908 particularly where such period was prescribed by a special or local law which was different from the Limitation Act, 1908—Period prescribed in special or local law would prevail over the Limitation Act, 1908—Provisions of S.5 of Limitation Act, 1908 would not, in circumstances, be. applicable to appeal under Anti Terrorism Act, 1997 in view of bar contained under. S.29(2)(a)(b) of Limitation Act, 1908.

2000 PCRLJ 1306 KARACHI-HIGH-COURT-SINDH

GULIN KHAN VS STATE

—-S. 417(2-A)—Anti-Terrorism Act (XXVII of 1997), S.25—Penal Code (XLV of 1860), S.302/392/34—Appeal against acquittal—Evidence produced by prosecution was wholly insufficient, ocular testimony was not trustworthy to establish identity of accuse

2000 PCRLJ 1195 KARACHI-HIGH-COURT-SINDH

MUHAMMAD SABIR ROSHAN VS STATE

Anti-Terrorism Act 1997 —-Ss. 25, 31 & 32—Criminal Procedure Code (V of 1898), Ss.435, 439 & 561-A—Revisional or inherent jurisdiction of High Court not available to assail an order passed by Special Court—Sections 25, 31 & 32 of the Anti-Terrorism Act, 1997, which are to be read in conjunction with each other, do not- permit the order passed by Special Court to be challenged in revision or under inherent jurisdiction of High Court.

2000 PCRLJ 562 KARACHI-HIGH-COURT-SINDH

FAZAL-UR-REHMAN VS BEGUM SUGHRA HAQUE

Anti-Terrorism Act 1997 —-S. 25—Penal Code (XLV of 1860), S.402-B/365-A/34—Appreciation of evidence —Factum , of hijacking aero plane was not denied by the accused persons and the same was admitted in the statements recorded under S.342, Cr.P.C.—Accused persons admitted that they were arrested trickly inside the aero plane alongwith pistols and did not plead animosity with the officials who arrested them—Accused persons had accepted the incident, did not examine themselves on oath and nothing was stated in defence—Prosecution had produced sufficient convincing, reliable and trustworthy evidence on record to establish the charge against the accused persons—Conviction and sentence of death awarded by the Trial Court to the accused persons was maintained.

2000 PCRLJ 299 KARACHI-HIGH-COURT-SINDH

PAHLWAN VS STATE

Anti-Terrorism Act 1997 —-S. 25—Penal Code (XLV of 1860), S.365-A/149—Abduction–Appreciation of evidence—Accused persons were charged for abducting and receiving ransom—Natural and true account with regard to the act of abduction and payment o)’ ransom was furnished by prosecution witnesses and such evidence was proved beyond any doubt—Recovery of empty shells of Kalashnikov from the place of occurrence further strengthened the factum of abduction at gun point—Accused persons could not prove their innocence after the prosecution had discharged its burden as the same was required under S.8, Anti-Terrorism Act, 1997—Sentence and conviction of imprisonment for life awarded by Trial Court was maintained.

1998 PLD 1445 SUPREME-COURT

MEHRAM ALI VS FEDERATION OF PAKISTAN

25—Constitution of Pakistan (1973), Arts.175 & 203—Appeal–Provision of S.25 of the Anti-Terrorism Act, 1997 is not valid in its present form as the same militates against the concept of independence of Judiciary and Arts. 175 & 203 of the Constitution—Section 25 of the Act needs to be suitably amended so as to vest the Appellate power in a High Court instead of Appellate Tribunal and to use the words “High Court” in place of “Appellate Tribunal”–Such declaration by Supreme Court, however, will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to this order.

1998 SCMR 1156 SUPREME-COURT

MEHRAM ALI VS FEDERATION OF PAKISTAN

Anti-Terrorism Act 1997 —-S. 25—Constitution of Pakistan (1973), Arts.175 & 203—Appeal–Provision of S.25 of the Anti-Terrorism Act, 1997 is not valid in its present form as the same militates against the concept of independence of Judiciary and Arts. 175 & 203 of the Constitution—Section 25 of the Act needs to be suitably amended as to vest the Appellate power in a High Court instead of Appellate Tribunal and to use the words “High Court” in place of “Appellate Tribunal”–Such declaration by Supreme Court, however, will not affect the trials already conducted and convictions recorded under the Act and the pending trials may continue subject to this order.

1998 PLD 347 LAHORE-HIGH-COURT-LAHORE

MEHRAM ALI VS FEDERATION OF PAKISTAN

Anti-Terrorism Act 1997 Ss. 24 & 25—Constitution of Pakistan (1973), Arts. 199 & 203—Appeal–Appellate forum —Jurisidicton of High Court—Extent—Notwithstanding finality given to the judgments and orders passed under Anti-Terrorism Act, 1997, same can be judicially reviewed by the High Court under Art. 199 of the Constitution of Pakistan—High Court also has the power to supervise and control over working of Trial Court as provided by Art.203 of the Constitution of Pakistan.

1998 PLD 217 KARACHI-HIGH-COURT-SINDH

SHAKIR ALI VS THE STATE

Anti-Terrorism Act 1997 Ss. 302/364-A & 377—Anti-Terrorism Act (XXVII of 1997), Ss.25 & 26–Appreciation of evidence—Evidence against accused consisted of last seen in company of the victim, evidence with regard to identification of accused in identification parade, medico–legal evidence confirming and corroborating the commission of unnatural offence on the victim followed by unnatural death as a result of strangulation and voluntary confession of accused before Deputy Superintendent of Police—Prosecution case rested on natural, straightforward and direct evidence furnished by a girl aged about seven years who was co student with the victim—Said witness in fact and in law was presumed to be innocent with least motive and desire to implicate accused falsely—Witness deposed in straightforward manner that accused was present on the day of incident who took deceased with him, where after she returned home and on being asked by mother of deceased she told her that deceased was taken away by the accused—Witness had even pointed out place from where deceased was kidnapped and identified accused in lower Court as well as in identification parade held under supervision of Judicial Magistrate—Trend of cross examination of that witness showed nothing to suggest that she had any ulterior motive to support prosecution case unnecessarily or to involve innocent person falsely—In order to assess intelligence of witness of tender age, Trial Court had put certain questions to her and Trial Court certified that it was satisfied of her intelligent replies before recording her evidence on oath—Other prosecution witness who had given corroborative and supporting evidence, was also an independent and unconcerned witness—Such witness was put to identification parade held in respect of accused after his arrest in which that witness successfully identified accused—Evidence of that witness was in line with testimony of-minor girl and did not suffer from any inherent infirmity–Evidence with regard to last seen had found further support and corroboration from the evidence leading to identification parade of accused—Prosecution witnesses correctly picket out accused and nothing was available to suggest that there was any irregularity or illegality in holding such parade—No defect lacuna or inconsistency had been shown to exist to brush aside that piece o circumstantial evidence which tended to connect accused directly with commission offence—With regard to commission of unnatural act by accuses on the victim followed by his culpable homicide by means of strangulation adequate and convincing evidence was furnished by doctor who performed post mortem examination on the dead body of victim—Medico-legal evidence on face of it conclusively proved unnatural death of victim preceded by commission o sexual intercourse—Even otherwise factum with regard to commission o: unnatural offence by accused with the victim had not been disputed before Court—Accused made a voluntary confession before Police Officer who was Deputy Superintendent of Police who was not questioned during course of cross examination–Ordinarily under provision of S.164, Cr.P.C. a judicial confession was to be recorded by a First Class Magistrate and under Art.38 of Qanun-e Shahadat, 1984 confession made to Police Officer would not be permissible against accused and confession by accused while in Police custody would not be proved against accused, but one exception had been provided in S.26 of Anti Terrorism Act, 1997 according to which if confession was made by a person who had committed robbery or docoity with murder or raps, before a Police Officer not below the rank of a Deputy Superintendent of Police, could be proved against such accused—Deputy Superintendent of Police before recording confessional statement of accused having completed all formalities, such confessional statement was of much importance and could be proved against accused—Accused failed to prove his plea of alibi which proved to be an afterthought as same was not taken by accused during cross-examination of the witnesses—Prosecution having proved its case by most probable, plausible and confidence inspiring evidence, accused was rightly convicted and sentenced in circumstances. —[Confession].

1998 PCRLJ 850 KARACHI-HIGH-COURT-SINDH

HYDERABAD ELECTRONIC INDUSTRIES LTD. VS SONY CORPORATION

Anti-Terrorism Act 1997 —-S. 25—Penal Code (XLV of 1860), S.302/392/397/34–Appeal against acquittal—Maintainability—Right of appeal could be claimed as matter of course but has to be conferred by statute—Right of appeal against order of acquittal passed by Special Judge, Anti-Terrorism Court had been conferred under S.25(4) of Anti-Terrorism Act, 1997, only on Federal and Provincial Governments who could in their discretion and wisdom direct appropriate Officer to file appeal against such order—In absence of any provision for an acquittal appeal at the instance of, a private party, appeal against order of acquittal passed by Special Judge, Anti-Terrorism Act, 1997, filed by first informant, was not maintainable—Appeal being creature of statute must be specifically provided for by law and no party could claim right of appeal without being conferred with such right—Whenever Legislature wanted to extend right of appeal; it extended same by positive legislation and whenever it did not want to extend that right, it did not make legislation.