2012 PLP 1938 (YLR)

Through the instant constitutional writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Asrar Ahmed Khan/ petitioner has called into question the vires of impugned order dated 19-10-2011, passed by learned Judge Anti-Terrorism Court Sargodha, Camp at Faisalabad; whereby application of the petitioner and others filed under section 23 of the Anti-Terrorism Act, 1997, (hereinafter to be referred as "the Act 1997:) seeking transfer of their case from the Anti-Terrorism Court to the court of ordinary jurisdiction was dismissed. 2.???????? Facts of the case succinctly required for determination of the is in hand are that on the complaint of Liaquat Ali Chatha, Executive District Officer (Revenue), Faisalabad, the petitioner along with three named and 10/11 unknown persons was booked in case F.I.R. No.1628 of 2010, dated 31-12-2010, offence under sections 283, 290, 291, 324, 353, 435, 506, 186, 148, 149, P.P.C., read with section 7 of the Anti-Terrorism Act, 1997, lodged at Police Station Peoples Colony, Faisalabad. After submission of challan the learned Anti-Terrorism Court summoned the petitioner and others to face trial. During the trial proceedings, the petitioner and others moved an application under section 23 of 'the Act 1997'; seeking for transfer of their case to the court of ordinary jurisdiction on the ground that facts of the case did not attract the provisions of section 6/7 of 'the Act 1997'. The learned Judge, Anti-Terrorism Court Sargodha, Camp at Faisalabad, in terms of order dated 19-10-2011 dismissed the application, which is under challenge through the instant constitutional petition. 3.???????? Learned counsel for the petitioner while opening his arguments states that learned Anti-Terrorism Court has passed the impugned order in a stereotype manner without taking into consideration the material floating on the record. Learned counsel vehemently submits that according to the averments of the F.I.R., firing has been alleged, however, no crime empty was collected from the place of occurrence and even although senior officers of the administration including DSP and heavy police contingent were present along with their subordinates, however, nobody received a single injury. It is next argued that according to prosecution version 3 official and 2 private vehicles were set on fire, however, none of those has been taken into possession by the Investigating Officer. Learned counsel further contends that the only bus, which was set on fire belongs to the petitioner and it cannot be said that one person shall destroy his own property. The next argument of learned counsel for the petitioner is that although the occurrence allegedly took place in a thickly populated area, however, no private witness has been associated during the course of investigation. In these circumstances, learned counsel for the petitioner urges that case against the petitioner and others does not attract the provisions of sections 6/7 of 'the Act 1997' especially when while disposing of bail petition of the petitioner, the learned Anti-Terrorism Court had observed that according to Investigating Officer, the petitioner was not present at the place of occurrence at the time of occurrence and the prosecution case was doubtful. Learned counsel finally prays for setting aside the impugned order and transfer of case to the court of ordinary jurisdiction. 4.???????? On? the? other? hand,? learned? A.A.-G. while supporting the impugned order fully opposes the contentions raised on behalf of the petitioner. Learned Law Officer submits that the contents of the crime report find full support from the statements of the prosecution witnesses under section 161, Cr.P.C.? and the? learned Anti-Terrorism Court while attending each and every aspect of the case, rightly dismissed the application of the petitioner. 5.???????? We have heard the arguments advanced from both sides and gone through the record available on file. 6.???????? According to the contents of the crime report, the complainant along with other senior officials of district administration including DSP and S.H.O. with heavy police contingent was present at the place of occurrence in connection with campaign against encroachments when the petitioner and other accused persons while armed with firearm weapons not only blocked Abdullahpur Chowk, rather also made firing and threw stones on the police employees. However, astonishingly none of the police officials or any other member of the district administration present at the place of occurrence, received a single injury. Moreover, the Investigating Officer could not collect a single empty from the place of occurrence. The fact also remains that nevertheless the complainant had mentioned 10/11 unknown persons as accused persons, however, till today none of them could be brought as an accused person in the case. 7.???????? Before recording our observations we may mention here that promulgation of Anti-Terrorism Act, 1997 by the legislature was with an intent: "An Act to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences". Admittedly the case of the petitioner is not covered within the meaning of sectarian hatred falling within the ambit of section 8(d)(i) of 'the Act 1997' and only terrorist activity has been alleged against the persons mentioned in the crime report. 'Terrorism' has been defined in section 6 of 'the Act 1997' and it would be advantageous to go through its provisions, which reads as under:-- ??????????? [

6. Terrorism.

(1) In this Act, "terrorism" means the use or threat of action where:-- (a)??????? the action falls with the meaning of subsection (2), and (b)??????? the use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society; or (c)??????? the use of threat is made for the purpose of advancing a religious, sectarian or ethnic cause, for intimidating and terrorizing the public, social sectors, business community and preparing or attacking the civilians, Government officials, installations, security forces or law enforcement agencies]. (2)??????? ? (a)??????? ? (b)??????? ? (c)??????? ? (d)??????? ? (e)??????? ? (ee)????? involves use of explosives by any device including bomb blast] (f)???????? ? (g)??????? ? (h)??????? ? (i)???????? creates a serious risk to safety of public or a section of the public, or is designed to frighten the general public an thereby prevent them from coming out and carrying on their lawful trade and daily business, and disrupts civil life; (j)???????? ?." If the above provisions of section 6 of the Act are examined on the touchstone of the facts mentioned in the crime report and the material available on the record, it becomes crystal clear that facts of the case, in stricto sensu, do not attract the provisions of any section of 'the Act, 1997'. In these circumstances, we are constrained to hold that the learned Anti-Terrorism Court Sargodha, Camp at Faisalabad was not justified in rejecting the application of the petitioner filed under section 23 of the Act, especially when while disposing of the bail petition of the petitioner, it had observed that according to the Investigating Officer the case seemed to be doubtful. 8.???????? For the foregoing reasons, while allowing this constitutional petition and setting? aside? the ?impugned? order? dated? 19-10-2011, passed by learned Judge, Anti-Terrorism Court Sargodha, Camp at Faisal-abad, we have been persuaded to direct? that case F.I.R. No.1628 of 2010, dated? 31-12-2010, offence under sections 283, 290, 291, 324, 353, 435, 506, 186, 148, 149, P.P.C., read with section 7 of the Anti-Terrorism Act, 1997, lodged at Police Station Peoples Colony, Faisalabad is triable by court of ordinary jurisdiction. Hence, learned Judge, Anti-Terrorism Court Sargodha shall transfer the file of the case to ordinary court of competent jurisdiction for its trial afresh. 9.???????? Writ petition is allowed in the above terms. N.H.Q./A-20/L??????????????????????????????????????????????????????????????????????????????????? Petition allowed.