IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Criminal Appeal No.D-03 of 2017

Present:

Mr. Justice Muhammad Iqbal Mahar.

Mr. Justice Amjad Ali Sahito

Appellants : Akhlaq Hussain Jokhio and Qurban Ali Gadhi,

Through Mr.Iftikhar Ali Arain Advocate.

Complainant : Through Mr. Nisar Ahmed Bhanbhro Advocate.

The State : Through Mr. Abdul Rehman Kolachi, Assistant

Prosecutor General.

Date of hearing : 28-08-2018

Date of Judgment: 28-08-2018

J U D G M E N T

Amjad Ali Sahito, J.–Appellants, namely, Akhlaq Hussain and Qurban Ali were tried by learned Judge, Anti-Terrorism Court, Naushehro Feroze in special case No. 44 of 2015 re: State-Versus Akhlaqu Ahmed and others for offences under sections 386, 506/2, 500, 502, 34 PPC read with section 7 of ATA, 1997, emanating from crime No. 68 of 2015 registered with Police Station, Halani and by judgment dated 09.01.2017, they were convicted and sentenced as under:

i. For an offence under section 500 PPC, both appellants were sentenced to suffer R.I for 05-years and fine of Rs. 50,000/- each and in case of default thereof, to suffer S.I for 06-months more.

ii. For an offence under section 501 PPC, they were sentenced to suffer R.I for 02-years.

iii. Both the sentences were ordered to run concurrently.

2. Briefly, the relevant facts of the prosecution case for disposal of instant appeal are that on 06.05.2015 complainant Shahid Ikram lodged FIR of the incident alleged to have taken place on 25.02.2015 alleging therein that he is Advocate by profession and used to look after the business of his father. About two years back, Akhlaq Ahmed and Qurban came in his office at Bahlani and disclosed that he is a big businessman and they belong to different newspapers and if he wants to keep his respect secure then he pay them Rs. 50,000/- per month as Bhatta and in case of failure, they will publish defamatory news and articles in newspapers which will affect his reputation. On which complainant came under harassment and paid Rs. 50,000/- Bhatta to them. After taking Bhatta, both accused issued threats to him that if he will make a complaint to anyone about Bhatta then they will not spare him and kill him. Both accused used to come to him on each and every month for taking Bhatta. At last, complainant became nervous by giving them Bhatta. On 25.02.2015, complainant along with witnesses Asghar Khan and Munawar Ali was present in his office when at about 5.00 p.m, both accused came to the office of complainant on motorcycle and demanded Bhatta as usual, on which complainant paid Rs. 20,000/- and said them that he had paid them a lot of money and they may not come again for Bhatta money, on which accused took out pistol and issued threats that he may not be killed with pistol, but by way of publishing defamatory news and articles in newspapers. The complainant moved such application to SP Naushehro Feroze, but no response. Ultimately, on the orders of learned Justice of Peace, Naushehro Feroze, the above FIR was registered.

3. After registration of FIR, the investigation was conducted and Challan was submitted against the appellants showing names of Athar Hussain and Dargahi as absconders, who were subsequently declared as proclaimed offenders and their case has been kept on dorment file by the trial court.

4. The charge was framed against the appellants by the trial court to which they pleaded ‘not guilty’ and claimed trial. At trial, the prosecution examined PW-1 ASI Mewo Khan, PW-2 Maqbool Islam, PW-3 Shahid Ikram, PW-4 Asghar Khan Kashmiri and PW-5 Inspector Hamid Ali Jumani.

5. In their statements recorded in terms of section 342 CrPC, both appellants claimed their innocence and denied the prosecution allegations. Both appellants neither examined themselves on oath to disprove the prosecution allegations nor led any evidence in their defence.

6. The learned trial Court after hearing the learned counsel for parties and on assessment of the evidence, convicted and sentenced the appellants, as stated above vide judgment dated 09.01.2017, which they have impugned before this court by way of filing instant Crl. Appeal.

7. Learned counsel for the appellants contended that since offence under sections 500 & 501 PPC has no nexus with the terrorism, therefore, it cannot be tried by the court constituted under the Anti-Terrorism Act, 1997 as it is not scheduled offence. He prayed that impugned judgment may be set-aside and case may be sent to the court of ordinary jurisdiction for further trial.

8. Learned counsel appearing on behalf of the complainant as well as learned DPG have conceded the arguments advanced by learned counsel for the appellants.

9. We have heard learned counsel for the parties and have minutely gone through the record with their able assistance.

10. On the evaluation of evidence brought on record, we found that initially the FIR was registered under sections 386, 506/2, 500, 502, 34 PPC read with section 7 of ATA, 1997. After concluding trial, the learned trial court has observed in para-17 of the impugned judgment that “Admittedly complainant and PW have not given the details of the payment of Bhatta amount during two years. Total amount disclosed by PW-Asghar Khan Kashmiri becomes Rs. 2,20,000/- and the cash book in which payments were entered has not been produced before the court. This witness has contradicted the statements of complainant. As such the allegation of receiving of Bhatta amount from the complainant becomes doubtful”. In view of the above observation by the learned trial court, allegation of receiving Bhatta has not been proved.

10. Now the question is this when the learned trial court was of the view that allegation of receiving Bhatta has not been proved then how the appellants can be convicted for a non-scheduled offence. The jurisdiction was assumed by the Anti-Terrorism Court on the ground that Bhatta is a scheduled offence and falls within the definition of section 6(2)(k) of ATA, 1997. At this juncture, it would be necessary to refer to section 23 of ATA, 1997 which is aimed to deal with such like situation. The same is reproduced herein below.

“23. Power to transfer cases to regular Courts.—Where, after taking cognizance of an offence, [an Anti-Terrorism Court] is of opinion that the offence is not a scheduled offence, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for trial of such offence to any Court having jurisdiction under the Code, and the Court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence”.

11. From a perusal of section 23 of ATA, 1997, it is evident that after taking the cognizance of an offence, if the Anti-Terrorism Court is of the opinion that the offence is not a scheduled offence then it shall transfer the case for trial of such offence to the court having jurisdiction. In the present case, the learned trial court convicted the appellants under sections 500 & 501 PPC, which are not scheduled offences triable by Anti-Terrorism Court.

12. For the foregoing reasons, we are of the view that the Anti-Terrorism Court had no jurisdiction to award sentence for offences punishable under sections 500 & 501 PPC, which are non-scheduled offences. Accordingly, the impugned judgment dated 09.01.2017, passed by the trial court is set-aside being untenable and without jurisdiction and the case is remanded with directions to the Anti-Terrorism Court to remit the case to the court of Sessions having jurisdiction under the Code, and the transferee court may proceed with the trial of the offence. The appellants are present on bail. Their bail bond stands cancelled and surety discharged. The appellants were on bail at the time of impugned judgment, therefore, they shall remain on same bail subject to furnishing fresh affidavit of surety before the transferee court.

13. The instant Crl. Appeal stands disposed of in the above manner.

JUDGE

JUDGE-