21. Protection of Judges, [....] Counsel, Public
Prosecutor, witnesses and persons concerned with Court proceedings.--(1) The
Court may, subject to the availability of resources, make such necessary orders
to take such measures, as it deems fit, within available resources, for the protection
of a witness, judge, [Member] [* * *] public prosecutor, counsel and other
persons concerned in proceedings for an offence under this Act, which may also
include the following measures:--
(a) Proceedings may be held in camera, or
under restricted entry of members of the public, where necessary for the
protection of the judge, [Member] witnesses or a victim's family members or to
prevent persons from crowding or storming the Court to intimidate the judge
[Member] or to create a threatening atmosphere;
(b) The names of judges, [Members] counsel,
public prosecutor, witnesses and persons concerned with Court proceedings shall
not be published; and
(c) During any inquiry, investigation or
Court proceedings, whenever the matter of the identification of the accused
arises, adequate protection shall be provided to a witness identifying any
accused, in order to protect the identity of the witness from the accused.
(2) For purposes of protection of the judges,
[Members] accused, witnesses, prosecutors and defence counsel and anyone
concerned with the Court proceedings, the Government may adopt such other
measures as may be appropriate or may be proscribed [and the Armed Forces shall
also provide comprehensive protection and securing to the judges, members,
accused, witnesses, prosecutors, investigators, defence counsel and all those
concerned in the Court proceedings].
(3) The Government shall extend protection to a
judge, [Member] a counsel, public prosecutor and the witnesses during
investigation of an offence and proceedings under this Act, and thereafter, as
may considered necessary.]
[21-A. Cordons for Terrorist Investigation.--(1) An
area is a cordoned area for the purposes of a terrorist investigation under
this Act, if it is so designated under this section.
(2) A designation may be made only by an officer
not below the rank of a [Deputy Superintendent of Police or a member of a Joint
Investigation Team] if he considers it expedient for the purposes of a
terrorist investigation.
(3) If a designation is made orally, the officer
making it shall confirm it in writing, as soon as is reasonably practicable.
(4) The officer making a designation shall
arrange for the demarcation of the cordoned area, so far as is reasonably.
(5) An area may be designated a cordoned area for
a maximum period of fourteen days, which may be extended in writing from time
to time, with each extension specifying the additional period:
Provided that a
designation shall have no effect after 28 days beginning with the day on which
it was made.
(6) Where a person knows or has reasonable cause
to suspect that a terrorist investigation is being conducted or is proposed to
be conducted, a person commits an offence if he--
(a) discloses to another, or others,
anything which is likely to prejudice an investigation; or
(b) interferes with material which is likely
to be relevant to an investigation.
(7) Whosoever commits an offence under
sub-section (6) shall be liable on conviction to imprisonment for a term not
less than six months and not exceeding two years, and fine.
(8) It is a defence for a person charged with an
offence under sub-section (6) to prove--
(a) that he did not know and had no
reasonable cause to suspect that the disclosure or interference was likely to
affect a terrorist investigation; or
(b) that he had reasonable excuse for the
disclosure or interference.
(9) For the purposes of this section--
(a) a reference to conducting a terrorist
investigation includes a reference to taking part in the conduct of, or
assisting, a terrorist investigation; and
(b) a person interferes with any material if
he falsifies it, conceals it, destroys it or disposes of it, or if he causes or
permits another to do any of these things.
21-B. Terrorist investigation.--(1) A policeman in
uniform, [or a member of a Joint Investigating Team] may--
(a) order a person in a cordoned area to
leave immediately,
(b) order a person immediately to leave the
premises which are wholly or partly in or adjacent to a cordoned area,
(c) order the driver or person in charge of
a vehicle in a cordoned area to move it from the area immediately.
(d) arrange for the removal of a vehicle from
the cordoned area,
(e) arrange for the movement of a vehicle
within a cordoned area;
(f) prohibit or restrict access to a
cordoned area by pedestrians or vehicles,
(g) enter and search any premises in a
cordoned area if he suspects anyone concerned with terrorism is hiding there,
(h) search and arrest any person he
reasonably suspects to be a person concerned in terrorism :
Provided that any search of a person shall be done by a
Police person of the same sex; or
(i) take possession of any property in a
cordoned area he reasonably suspects is likely to be used for the purposes of
terrorism.
21-C. Training.--(1) Weapons Training: A person
commits an offence if he provides, without valid authorization from the
competent authority, any instruction or training in the making or use of--
(a) fire-arms;
(b) explosives; or
(c) chemical, biological, and other weapons.
(2) A person commits an offence if he provides
without valid authorization from the competent authority, any instruction or
training to any child under sub-section (1) and, conviction, shall be liable to
a term of imprisonment of not less than ten years and fine.
(3) A person commits an offence if he receives
instruction or training from anyone, without valid authorization from the
competent authority, to give such instruction or training or invites another,
specifically or generally, to receive such unauthorized instruction or training
in the making or use of--
(a) fire-arms;
(b) explosives; or
(c) chemical, biological, and other weapons.
(4) A child commits an offence if he provides,
without valid authorization from the competent authority, any instruction or
training, or if he receives such unauthorized instruction or training or
invites another, specifically or generally, to receive such unauthorized
instruction or training in the making or use of--
(a) fire-arms;
(b) explosives; or
(c) chemical, biological, and other weapons.
(5) A child guilty of an offence under
sub-section (4) shall be liable on conviction to imprisonment for a term not
less than six months and not exceeding five years.
(6) A person guilty of an offence under
sub-sections (1) and (3) shall be liable on conviction to imprisonment for a
term not exceeding ten years, or fine or with both.
(7) Training in Terrorism--
(a) A person commits an offence if he
provides, generally or specifically, any instruction or training in acts of terrorism.
(b) A person commits an offence if he
receives any instruction or training in acts of terrorism or invites another,
specifically or generally, to receive such instruction or training.
(c) A person guilty of an offence under
sub-sections (a) and (b) shall, on conviction, be liable to imprisonment of
either description for a term of not less than one year and not more than ten
years and fine.
(d) A person is guilty of an offence if he
provides, any instruction or training in acts of terrorism to a child, and on
conviction, shall be liable
on conviction to
imprisonment of either description for a term not less than
one year and not more than ten years and fine.
(e) A child commits an offence if he
provides, generally or specifically, any instruction or training in acts of
terrorism, and on conviction, shall be liable to imprisonment for a term not
less than six months and not more than five years;
(f) A child commits an offence if he
receives, generally or specifically, instructions or training in acts of
terrorism, and on conviction, shall be liable to imprisonment for a term not
less than six months and not more than five years.
(8) A Court by which a person is convicted of an
offence under this section, may order the forfeiture of any thing or property
which it considers to have been in the person's possession for purposes
connected with the offence, after giving any person, other than the convicted
person, who claims to be the owner or is otherwise interested, an opportunity
of being heard.
COMMENTARY
An offence of terrorism
can be tried only by an
21-D. Bail.--(1) Notwithstanding the provisions of
Sections 439, 491, 496, 497, 498, 498-A and 561-A of the Code, no Court, other
than an Anti-Terrorism Court, a High Court or the Supreme Court of Pakistan,
shall have the power or jurisdiction to grant bail to or otherwise release an
accused person in a case triable by an Anti-Terrorism Court.
(2) All offences under this Act punishable with
death or imprisonment [* * * ] exceeding three years shall be non-bailable.
Provided that if there
appear reasonable grounds for believing that any person accused of non-bailable
offence has been guilty of an offence punishable with death or imprisonment for
life or imprisonment for [...] less than ten years, such person shall [....] be
released on bail.
(3) Subject to sub-section (2), the Court may
admit a person to bail, unless satisfied that there are substantial grounds for
believing that the person, if released on bail (whether subject to conditions
or not), would--
(a) fail to surrender to custody;
(b) commit an offence while on bail;
(c) interfere with a witness; otherwise
obstruct or attempt to obstruct the course of justice, whether in relation to
himself or another person; or
(d) fail to comply with the conditions of
release (if any).
(4) In exercising its powers in relation to a
person seeking bail under this Act, the Court shall have regard to such of the
following considerations (as well as to any others which it considers
relevant)--
(a) the nature and seriousness of the
offence with which the person is charged;
(b) the character, antecedents, associations
and community ties of the person;
(c) the time which the person has already
spent in custody and the time which he is likely to spend in custody if he is
not admitted to bail; and
(d) the strength of the evidence of his
having committed the offence.
(5) Without prejudice to any other power to
impose conditions on admission to bail, the Court admitting a person to bail
under this section may impose such conditions as it considers--
(a) likely to result in the person's
appearance at the time and place required, or
(b) necessary in the interests of justice or
for the prevention of crime.
(6) It shall be lawful for the person to be held
in military or police protective custody in accordance with the conditions of
his bail.
(7) The Government or the Court may, under this
Section, at any time, in respect of a person charged of an offence under this
Act, if it considers it necessary, by special or general order, direct special
arrangements to be made as to the place at which the person is to be held in
order--
(a) to prevent his escape; or
(b) to ensure his safety or the safety of
others.
COMMENTARY
Power of
Anti Terrorism Act, 1997
was a special law within the meaning of S.41, P.P.C. and where a statute had
created a special procedure for the trial of such offence, it was that
procedure that must be followed and not the ordinary procedure. (2005 P.Cr.L.J.
768)
Cancellation of
pre-arrest bail-Application for--Jurisdiction of Anti-Terrorism Court .
Pre-arrest bail granted to accused by Judge,
Police Officers were the
accused in the present case, who, during the operation in a jail, had restored
to indiscriminate firing killing a number of persons; prima facie no caution,
care or tactics were adopted to carry out the operation; investigation was
carried out in a partial and dishonest manner; clothes and crime weapons were
not taken into custody just to spoil the case of the prosecution; Site plan had
not shown as to from where the police party had fired; doctor who had examined
one of the deceased had given report showing favour to the police party; trial
Court was yet to decide as to whether operation was undertaken in good faith or
not after recording evidence; State Counsel could not refute that it was not
only gross criminal negligence of the accused who had ordered for the operation
and by implication, S. 302, P.P.C. still held the field. All the accused police
officers were present at the spot at the time of operation. No case of bail
before arrest, in favour of petitioners accused was made out in circumstances.
Bail petition of the accused was dismissed. Another accused who came in the
jail premises along with mother of one of the under-trial prisoners, used
filthy language about the accused under-trial prisoners and it was then that
they were infuriated. Said accused also remained absconder for sufficiently
long time and there was apprehension that he will abscond after he was allowed
bail, the provisions of S. 21D, Anti-Terrorism Act, 1997 were also attracted to
his case. 2005 PCr.LJ 768.
High Court or the
Supreme Court only have the jurisdiction to grant bail or release an accused
person on bail in a case triable by
21-E. Remand.--(1) Where a person is detained for
investigation, the Investigating Officer, within twenty-four hours of the
arrest, excluding the time necessary for the journey from the place of arrest
to the Court, shall produce the accused before the Court, and may apply for
remand of the accused to police custody, [or custody of any other Investigation
Agency joined in the investigation] for which the maximum period allowed may be
fifteen days:
Provided that, where an
accused cannot within twenty-four hours be produced before the Court, a
temporary order for police custody, [or custody of any other Investigation
Agency joined in the investigation] not exceeding twenty-four hours may be
obtained from the nearest Magistrate for the purpose of producing the accused
before the Court within that period.
(2) No extension of the time of the remand of the
accused in police custody, [or custody of any
other Investigation Agency
joined in the investigation] shall be allowed, unless
it can be shown by the Investigating Officer, to the satisfaction of the Court
that further evidence may be available and the Court is satisfied that no
bodily harm has been or will be caused to the accused:
Provided that the total
period of such remand shall not exceed thirty days.
(3) The Court shall be deemed to be a Magistrate
for purposes of sub-section (1).
21-F. Remissions.--Notwithstanding anything
contained in any law or prison rules for the time being in force, no remission
in any sentence shall be allowed to a person, other than a child, who is
convicted and sentenced for any offence under this Act, unless granted by the
Government.
COMMENTARY
Accused was sought to be
released from Jail by allowing remissions granted to the convicted persons by
the President of Pakistan from time to time. Authority which had granted
remissions had withheld the same in the case of convicts of terrorist acts.
Accused having been found guilty under S.7 of the Anti-Terrorism Act, 1997, was
not entitled to grant of remissions as per instructions contained in the
Circulars relied upon and placed on, record on behalf of accused. Grant of
remissions to the accused being a child under S.21-F of the Anti-Terrorism Act,
1997, was also irrelevant as the same could be granted in accordance with the
said Circulars and the Court could not substitute its opinion while exercising
jurisdiction under S.491, Cr.P.C.. Detention of accused in Jail could not be
declared as illegal because according to the report of the Superintendent Jail
he had still to undergo about 15 years imprisonment. Petition was dismissed in
circumstances. (2006 YLR 91)
21-G. Trial of offences.--All offences under this
Act shall be tried [exclusively] by the
COMMENTARY
Jurisdiction of
21-H. Conditional admissibility of
confession.--Notwithstanding anything contained in the Qanoon-e-Shahadat, 1984
(President's Order No. 10 of 1984) or any other law for the time being in
force, where in any Court proceedings held under this Act the evidence (which
includes circumstantial and other evidence) produced raises the presumption
that there is a reasonable probability that the accused has committed the
offence, any confession made by the accused during investigation without being
compelled, before a police officer not below the rank of a District
Superintendent of Police, may be admissible in evidence against him, if the
Court so deems fit:
Provided that the
District Superintendent of Police before recording any such confession, had
explained to the person making it that he is not bound to make a confession and
that if he does so it may be used as evidence against him and that no District
Superintendent of Police has recorded such confession unless, upon questioning
the person making it, the District Superintendent of Police had reason to
believe that it was made voluntarily; and that when he recorded the confession,
he made a memorandum at the foot of such record to the following effect:
"I have explained
to (....name....), that he is not bound to make a confession and that, if he
does so, any confession he may make may be used as evidence against him and I
believe that this confession was voluntarily made. It was taken in my presence,
and was read over to the person making it and admitted by him to be correct,
and it contains a full and true account of the statement made by him.
(Signed)
Superintendent of Police."
COMMENTARY
Accused were arrested
long before date of alleged occurrence. Recovery of hand-grenades from
possession of accused was not witnessed by any independent witness. Police
officials, no doubt were as good witnesses as any other from the public, but
when in a case the very occurrence on the alleged date and spot was highly
doubtful, recovery of incriminating material in the absence of independent
witness, had to be looked askance at. Alleged confessional statement of accused
though had been recorded after fulfilling all legal formalities, but same
having been recorded by a police officer, would cast a serious doubt on its
voluntariness despite its admissibility under S. 21-H of Anti-Terrorism Act,
1997. (2004 MLD 1337)
21-I. Aid and abetment.--Whoever aids or abets any
offence, under this Act shall be punishable with the maximum term of same
imprisonment provided for the offence or the fine provided for such offence or
with both.
21-J. Harbouring.--(1) A person commits an offence
if he harbours any person who has committed an offence under this Act.
(2) A person guilty of an offence under
sub-section (1) shall be liable on conviction to punishment as provided in
Sections 216 and 216-A of the Pakistan Penal Code, 1860 (Act XLV of 1860).
COMMENTARY
Accused, who were
doctors, were convicted and sentenced for causing disappearance of evidence of
offence, and harbouring offender who had escaped from custody. Allegation
against accused persons was that they had provided medical treatment and
harboured one who was involved in a crime. Prosecution had relied upon evidence
of a witness who was declared hostile and his evidence was not sufficient to
prove said allegation without any corroborative piece of evidence. No
allegation was available against accused that they had given false information
to screen offender, but prosecution case rested upon allegation that accused
caused evidence of commission of offence of crime to disappear. Prosecution was
required to prove that accused had knowledge that offence was committed and
evidence of that offence was caused to disappear by them, but prosecution had
not produced any evidence to show that any evidence collected by prosecution in
said crime was caused to be disappeared by accused. Main ingredients of S.201,
P.P.C. under which accused were convicted, were not attracted in the case.
Special Prosecutor had conceded that provisions of S.216, P.P.C. were also not
applicable in the case. Prosecution had also failed to produce any evidence to
prove alleged harbouring of accused involved in the crime. Confession of an
accused could be used against co-accused if they were being tried together for
one and the same offence. Accused were not tried together with the
Doctors/accused persons. Allegation made in confessions could not be used as
circumstantial evidence against accused persons. Said confessional statements
carried no weight. Prosecution was required to prove case against accused
beyond reasonable doubt and then defence could be examined in juxtaposition
with prosecution case. Weakness in defence, if any, would not be taken
adversely against the accused. Prosecution having failed to prove case against
accused, there was no justification to examine defence of accused in detail.
Prosecution having failed to prove case against accused, their conviction and
sentence, were set aside and they were acquitted and set at liberty. (2006 YLR
1317)
21-K. Offences triable by way of summary
procedure.--All offences under this Act punishable with imprisonment for a term
of not more than six months with or without fine shall be tried by way of
summary procedure.
COMMENTARY
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, moved the trial Court for extension of time which was granted from time
to time. Lastly on relevant date accused moved another application for
extension of time which was dismissed and accused was simultaneously convicted
as he was found guilty of not submitting challan within time which fell within
ambit of contempt of Court in terms of S.19(2) of Anti-Terrorism Act, 1997--Accused
was convicted and sentenced to suffer simple imprisonment for seven days
without issuing him any show-cause notice or framing charge against him and
without recording his evidence or statement under provisions of S.32 of
Anti-Terrorism Act, 1997. Provisions of Criminal Procedure Code, 1898 were
applicable before
Anti
of Criminal Procedure
Code, 1898 for trial of class of cases mentioned in S.21-K of
Anti-Terrorism Act,
1997. Ss. 262 to 265 of Chap. XXII of Criminal Procedure Code, 1898 were
not inconsistent with
any provision of
the said Act. No
such procedure having been
adopted in convicting and sentencing accused, conviction and sentence awarded
to him by trial Court were set aside and case was remanded to trial Court for
further proceedings and trial in accordance with law. (2003 PCRLJ 1468)
21-L. Punishment for an Absconder.--Whoever being
accused of an offence under this Act, absconds and avoids arrest or evades appearance
before any inquiry, investigation or Court proceedings or conceals himself, and
obstructs the course of justice, shall be liable to imprisonment for a term not
less than [five years] and not more than [ten years] or with fine or with both.
COMMENTARY
Manner in which the
incident took place and the presence of the absconding accused at the place of
occurrence were not open to any doubt. Eye-witnesses being not inimical towards
the accused were natural and independent witnesses. Mere fact of the witnesses being
levies personnel, would not make them interested as they had no reason
to substitute the absconding accused for the real killer. Incriminating
articles recovered in the case, according to the report of Chemical Examiner,
were stained with human blood. Ocular testimony was corroborated by medical
evidence, circumstantial evidence and abscondence of the accused. No mitigating
circumstance for awarding lesser penalty of imprisonment for life was available
in favour of accused who had committed the brutal murder without any
justification acting as a desperate and hardened criminal sharing common
intention. Conviction and sentences of accused were upheld in circumstances
answering the murder reference in affirmative. (2005 PCRLJ 794)
21-M. Joint trial.--(1) While trying any offence
under this Act, a Court may also try any other offence with which an accused
may, under the Code of Criminal Procedure, 1898, be charged, at the same trial
if the offence is connected with such other offence.
(2) If, in the course of any trial under this Act
of any offence it is found that the accused person has committed any other
offence under this Act or any other law for the time being in force, the Court
may convict an accused for such other offence and pass any sentence authorized
by this Act or, as the case may be, such other law, for the punishment
thereof.]
COMMENTARY
Under provisions of S.12
of Juvenile Justice System Ordinance, 2000, accused being Juvenile, could not
be awarded punishment of death and they could not be ordered to labour, etc..
In view of clear bar contained in the law, which was applicable to facts and
circumstances of the case, petition for enhancement of sentence was not
competent. Legislature had clearly provided maximum punishment for the Juvenile,
who was covered under Juvenile Justice System Ordinance, 2000. Petition for
enhancement of sentence to death, was not maintainable and same was dismissed.
(2006 YLR 1036)