Section 38 : Punishment for terrorist act committed before this Act
2015 PLD 307 SUPREME-COURT
ZAFAR IQBAL VS State
302(b)—Anti-Terrorism Act (XXVII of 1997), Ss.7(a) & 38—Criminal Procedure Code (V of 1898), S.537—Qatl-i-amd, act of terrorism—Reappraisal of evidence—Error or material irregularity in conviction recorded by Trial Court—Correction of error in judgment—Scope—Incident had taken place prior to commencement of Anti-Terrorism Act, 1997—Trial Court convicted and sentenced the accused to death under S.7(a) of the Anti-Terrorism Act, 1997, and dropped the charge under S.302, P.P.C. at the time of pronouncement of judgment—Crime in question was committed on 10th of January, 1994 (before the operation of the Anti-Terrorism Act, 1997) therefore the accused could not have been convicted under S.7(a) of the Anti-Terrorism Act, 1997—Section 38 of the Anti-Terrorism Act, 1997 stipulated that in respect of the offences committed before the commencement of the said Act, the convicted person, “shall be liable to punishment as authorized by law at the time the offence was committed.”—Trial court, therefore, could only have punished the accused under S.302, P.P.C., and not under S.7(a) of the Anti-Terrorism Act, 1997—Question for determination in such circumstances was as to whether there had been a mistrial or materially defective trial on account of the fact that the Trial court had (erroneously) convicted the accused under S.7(a) of the Anti-Terrorism Act, 1997, and dropped the charge under S.302, P.P.C, at the time of the passing of judgment—Record showed that accused was charged under both S.7(a) of the Anti-Terrorism Act, 1997, and S.302, P.P.C.–Record also showed that charge was read out to the accused and he understood the same—Had the accused, in the present case, been convicted under S.302(b), P.P.C. it would have left him with a window of opportunity to effect a compromise with the heirs of a deceased, therefore to such extent his conviction under S.7(a) of the Anti-Terrorism Act, 1997, could be categorized as a failure of justice—Supreme Court, while exercising power under S.537, Cr.P.C, altered the conviction of accused from S.7(a) of Anti-Terrorism Act, 1997, to one under S.302(b), P.P.C. as ta’zir, while payment of compensation of one hundred thousand rupees to the heirs of each deceased was maintained—Appeal was dismissed accordingly.
2007 SCMR 116 SUPREME-COURT
MAQBOOL AHMAD and another VS State
10(4)(3)—Anti-Terrorism Act (XXVII of 1997), S.38—Constitution of Pakistan (1973), Art.12—Procedural and substantive law—Retrospective effect—Scope—Trial Court convicted accused/appellant under S.10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and sentenced him to life imprisonment—High Court upheld the finding of Trial Court—Accused contended that, he was not to be charged and convicted under S.10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, for the reason that the said section was introduced through amendment in December, 1997 whereas offence had taken place on 5-6-1997; that S.10(3) of the Ordinance was applicable in the case of accused and that accused was not to be tried by Anti-Terrorism Court as offence was committed by accused before promulgation of Anti-Terrorism Act, 1997—Validity—Accused had committed offence on 5-6-1997 when according to S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, punishment for offence committed by, accused was to extend to 25 Years and whipping numbering 30 stripes but S.10(4) of the Ordinance was introduced after date of commission of offence, hence, no punishment was to be awarded under said section, being in glaring violation of Art.12 of. the Constitution—Person accused of having committed an offence before commencement of Anti-Terrorism Act, 1997 was to be tried by the Court constituted under the said Act but punishment awarded was to be in accordance with law prevailing at the time when offence was committed; provided the offence otherwise constituted a terrorist act—Trial of accused by Anti-Terrorism Court was in accordance with law as being protected by S.35 of Anti-Terrorism Act, 1997–Imprisonment for life awarded to accused was reduced to imprisonment for 20 years.
2006 PLD 64 LAHORE-HIGH-COURT-LAHORE
Rana ABDUL GHAFFAR VS ABDUL SHAKOOR
Ss. 6, 12, 38, 28 & Third Schedule [as amended by Anti-Terrorism (Second Amendment) Act, 2004 (II of 2005)]—Penal Code (XLV of 1860), S.365-A read with S. 34—Constitution of Pakistan (1973), Arts. 199 & 12- Constitutional petition—Abduction or kidnapping for ransom—“Terrorism”—Transfer of case—Jurisdiction—Sentence—Procedure—Trial, in the present case was being held by Additional Sessions Judge and during the said trial the Anti-Terrorism (Second Amendment) Act, 2004 was enacted by which offence of “abduction or kidnapping for ransom” was included in the Third Schedule appended with the Anti-Terrorism Act, 1997 making such offence triable exclusively by an Anti-Terrorism Court constituted under the Anti-Terrorism Act, 1997—Complainant (petitioner) submitted application before the Anti-Terrorism Court invoking jurisdiction of that Court, under S.12 of the Anti-Terrorism Act, 1997 seeking calling for the record of the case from the Court of Additional Sessions Judge so that the case could be tried by the Anti-Terrorism Court—Application of the complainant was, however, dismissed by the Judge, Anti-Terrorism Court—Validity—Held, after introduction of the Anti-Terrorism (Second Amendment) Act, 2004, the case had to be transferred to Anti-Terrorism Court because now only such a Court as constituted under the Anti-Terrorism Act, 1997 had the exclusive jurisdiction to try the same and sentence, if any, to be passed against any accused person found guilty, in the case by the Judge, Anti-Terrorism Court; could not be greater than, or of a kind different from the sentence prescribed by the relevant law for the relevant offence at the time the said offence was committed—Change of forum of trial by operation of law was ordinarily applicable to all pending cases and retrospectivity or otherwise of application of such law was not a relevant consideration in that regard—Judge, Anti-Terrorism Court, was not justified in dismissing the complainant’s application seeking transfer of the case in circumstances—High Court clarified that keeping in view the provision of Art. 12 of the Constitution as well as of S.38, Anti-Terrorism Act, 1997, Judge, Anti-Terrorism Court shall see to it that in case of conviction of any accused person in the present case the punishment to be awarded to such convict shall not be greater than, or of a kind different from, the punishment prescribed by the law for the relevant offence at the time the offence was committed and the Judge, Anti-Terrorism Court shall proceed with the trial of the present case from the stage at which it was pending immediately before transfer of the case by the High Court through the present judgment and in this regard the Judge shall be guided by the provisions of S.28(2) of the Anti-Terrorism Act, 1997.
2003 PLD 142 PESHAWAR-HIGH-COURT
MUHAMMAD AKRAM VS THE STATE
365-A—Suppression of Terrorist Activities (Special Courts) Act (X of 1975), S.2 & Sched–Anti-Terrorism Act (XXVII of 1997), Ss.6, 38 & 39-B [as inserted by Anti-Terrorism (Amendment) Ordinance (XXXIX of 2001)]—Constitution of Pakistan (1973), Art. 199—Constitutional petition—Case against accused fell within the definition of “terrorism” as envisaged in cls.(a) & (e) of subsection (2) of S.6 of the Anti-Terrorism Act, 1997, which was triable by the Anti-Terrorism Court—Accused if proved guilty would be liable to punishment as provided in law, at the time when the offence was committed—Offence having been committed before the commencement of the Anti-Terrorism Act, 1997, case against accused was ordered to be transferred from Sessions Court to Anti-Terrorism Court for trial within the meaning of S.38 of the Anti-Terrorism Act, 1997—Constitutional petition was accepted accordingly.
2002 PLD 841 SUPREME-COURT
MUHAMMAD MUSHTAQ VS MUHAMMAD ASHIQ
Anti-Terrorism Act 1997 —-S. 38—Punishment for terrorist act committed before the promulgation of Anti-Terrorism Act, 1997—Where a person had committed an offence before the commencement of the Act, which if committed after the date on which the Act came into force would constitute a terrorist act, he shall be tried by the Court constituted under the Act but shall be punished as authorized by law prevailing at the time when offence was committed.
2002 YLR 420 LAHORE-HIGH-COURT-LAHORE
GHULAM SHABBIR VS THE STATE
Ss. 302/324/337-A (ii) /149—Anti Terrorism Act (XXVII of 1997), Ss. 6, 7, 9 & 38—Appreciation of evidence—Unlawful assembly—Common intention—Motive behind the occurrence was that the deceased was President of a sectarian group and accused party belonged to a different sect and due to religious differences between the parties occurrence took place and accused party took life of deceased and caused injuries to complainant and their companions–Occurrence being result of a sectarian hatred, would constitute an act of terrorism—Defence version was not supported by any evidence direct – or circumstantial in rebuttal to prosecution evidence to establish that complainant and deceased were not victims of aggression at the hands of accused party–Evidence on record had proved that deceased while proceeding in company of complainant was attacked by the accused and co-accused being present there had participated in the attack—All the accused persons would be deemed to have formed an unlawful assembly in furtherance of their common object—Ample evidence was on record to show that accuses, being member of unlawful assembly committed riot which ended in murder of deceased—Accused being member of unlawful assembly would equally be responsible Jot murder of the deceased—Injuries sustained by two of the accused would not ipso facto be an evidence either aggression of complainant party or free fight between the parties–Accused while armed with deadly weapons, by showing force and violence in furtherance of their common object having committed murder of deceased and caused injuries to witnesses, would be vicariously responsible for murder—No exception could be taken to the finding of guilt of accused except one co accused who was an old man of seventy years and admittedly was empty-handed and played no active role in the occurrence and had been declared innocent by the Investigating Officer—Said co-accused was acquitted of the charges and was released and conviction of remaining accused persons was maintained for committing intentional murder of the deceased—Sentence of 10 years rigorous imprisonment to the accused was converted into life imprisonment by the High Court–Conviction and sentence under Ss. 324 & 149, P. P. C. being not justified, accused were acquitted for charge under Ss. 324 & 149, P. P. C.
2002 PLD 19 LAHORE-HIGH-COURT-LAHORE
KHALIL-UR-REHMAN VS THE STATE
Ss. 7 & 38—Terrorist act committed prior to promulgation of Anti-Terrorism Act, 1997—Conviction under S.7 of Anti-Terrorism Act, 1997–Validity–Case could have been tried by Anti-Terrorism Court but the punishment could not have been given under the provisions of new dispensation and in such cases the existing law at the relevant time had to be applied—Conviction under S.7 of Anti-Terrorism Act, 1997 was set aside in circumstances.
2002 PLD 152 KARACHI-HIGH-COURT-SINDH
MIAN MUHAMMAD NAWAZ SHARIF VS THE STATE
Ss. 402-A & 402-B—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7(ii) & 38—Hijacking—Act of terrorism—Word “likely” used in S.6(2) of the Anti-Terrorism Act, 1997—Significane and scope —Sentence—Procedure–Contention of the prosecution was that offence of hijacking punishable under S.402-B though having not been included in the Schedule to Anti-Terrorism Act, 1997 at the time of its promulgation but was inserted at a later stage by way of an amendment after the commission of the offence in the present case constituted a “terrorist act” and was triable by Anti-Terrorism Act, 1997–Validity—Act of attempt of hijacking had been proved beyond doubt by the prosecution and was punishable under S 402-B, P. P.C. –Hijacking in the manner committed in the present case was by itself likely to create a sense of fear and insecurity not only in the inmates of the plane but also in the people generally—Word “likely” as used in S.6(b) of the Anti-Terrorism Act, 1997 in essence brought the act committed by the accused within the fold of definition of “terrorist act”—Offence of committing terrorist act having been made out, separate sentence of such offence was not called for in view of S.7(ii) of the Anti-Terrorism Act, 1997—Principles.
2000 SCMR 1773 SUPREME-COURT
MUHAMMAD ASLAM VS STATE
S.38—Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)(4)—Penal Code (XLV of 1860), S.72—Convicting the accused for offence not included in the Schedule of Anti-Terrorism Act, 1997—Jurisdiction of Special Court—Offence was committed prior to the time while accused was charged with S.10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1997, which was a scheduled offence but was convicted under S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 which was not a scheduled- offence—Validity—. Special Court under S.38 of Anti-Terrorisrn Act, 1997 and S.72; P.P.C. had rightly convicted the accused persons under S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
2000 PLD 89 KARACHI-HIGH-COURT-SINDH
JAHANGIR AKHTAR AWAN VS THE STATE
Ss. 365 & 302—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 38—Constitution of Pakistan (1973), Arts. 12 & 199—Constitutional petition–Retrospective punishment—Quashing of Notification and order of transfer of case to Special Court—Offence had been committed much prior to the Anti Terrorism Act, 1997 came into force and was not governed by S.38 of the Anti-Terrorism Act, 1997—Accused had killed the deceased with a hammer which was not a weapon and according to his confession he, in order to dispose of the dead body, had secretly cut it into pieces and threw the same away—All possible steps had been taken by the accused to conceal the offence—Act of accused, in circumstances, was not a terrorist act as envisaged by S.6 of the Anti-Terrorism Act, 1997—Notification and the order transferring the case to the Special Court constituted under the Anti-Terrorism Act would attract provision of Art.l2 of the Constitution—Notification and Order of transfer were consequently set aside with the direction to Sessions Judge to keep the matter on his file and decide the same on merits within a specified period.
1998 PLD 347 LAHORE-HIGH-COURT-LAHORE
MEHRAM ALI VS FEDERATION OF PAKISTAN
38—Constitution of Pakistan (1973), Art. 12—Retrospective punishment, protection against—Acts of which accused were found or alleged to have committed were offences at the time of commission of those offences and carried the same punishment which had been awarded to them by the Special Court/Appellate Tribunal under Anti-Terrorism Act, 1997—Mere fact that accused were liable to be tried by the Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 and after the promulgation of Anti-Terrorism Act, 1997, by the Special Courts under the said Act, would not militate or offend against Art. 12 of the Constitution of Pakistan especially when no prejudice had been shown to have been caused to the accused
1998 PLD 203 LAHORE-HIGH-COURT-LAHORE
MUKHTAR AHMA VS PROVINCE OF PUNJAB
Anti-Terrorism Act 1997 S. 38—Constitution of Pakistan (1973), Art. 12—Punishment for terrorist’s act committed before commencement of Anti-Terrorism Act, 1997—Change of forum of trial—Effect on legality of trial—Where quantum of penalty awarded to accused was not being enhanced from what it was at the time when offence was committed but only the forum of trial had been changed by operation of law, there was no violation of Art. 12 of the Constitution.
1998 PCRLJ 1758 LAHORE-HIGH-COURT-LAHORE
SHER MUHAMMAD VS STATE
Anti-Terrorism Act 1997 —S. 38 & Sched. para. 2—Murder—Zina-bil-Jabr—Retrospective operation of Anti-Terrorism Act, 1997—Conditions regarding commission of murder or Zina-bil-Jabr and commission of the offence after the commencement of the Anti-Terrorism Act, 1997 mentioned under para.2(c) of the Sched are relevant only qua Ss.392 to 395, 397 & 398, P.P.C.—As regards offence of murder covered under para. 2(a)(i) & (ii) of the Sched. Special Court has exclusive jurisdiction to try the same even if the offence was committed before the enforcement of the said Act.
1998 MLD 1411 LAHORE-HIGH-COURT-LAHORE
MEHRAM ALI VS FEDERATION OF PAKISTAN
Anti-Terrorism Act 1997 —-S. 38—Constitution of Pakistan (1973), Art. 12—Retrospective punishment, protection against—Acts of which accused were found or alleged to have committed were offences at the time of commission of those offences and carried the same punishment which had been awarded to them by the Special Court/Appellate Tribunal under Anti-Terrorism Act, 1997—Mere fact that accused were liable to be tried by the Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 and after the promulgation of Anti-Terrorism Act, 1997, by the Special Courts under the said Act, would not militate or offend against Art. 12 of the Constitution of Pakistan especially when no prejudice had been shown to have been caused to the accused.