2010 PLP 296 (MLD)

MIAN FASIH-UL-MULK, J.

We propose to dispose of Writ Petitions Nos. 197 and 198 of 2009 as common question of Jaw as to whether sections 6/7/21-L of the Anti-Terrorism Act, 1997 and 120B, P.P.C. in the facts and circumstances of cases registered vide F.I.R. Nos.216 and 217, dated 28-7-2008 registered under sections 302/109/34, P.P.C. at Police Station Sherwan were required to be added or not.

2. Through the instant writ petitions filed under Article, 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioners Muhammad Parwar Khan (in Writ Petition No.197 of 2009) and Gulfaraz Khan (in Writ Petition No.198/98) have questioned the impugned order of learned Additional District Judge-IV, Abbottabad, dated 20-4-2009, whereby revision petitions filed against the order, dated 16-2-2009 passed by learned Judicial Magistrate-II, Abbottabad declining the prayer of the petitioners for addition of sections 6/7/21-L of the Anti-Terrorism Act, 1997 and 120B, P.P.C. in case F.I.R. Nos. 216 and 217, dated 28-2-2008 registered under sections 302/109/34, P.P.C. at Police Station Sherwan, Abbottabad were dismissed.

3. Briefly stated the facts of the case are that upon report of present petitioners cases were registered vide F.I.R. Nos. 216 and 217, dated 28-7-2008 or the crime under sections 302/109/34, P.P.C. at Police Station Sherwan against unidentified culprits for commission of murders of brother/son of complainants. However, later on through the supplementary statement complainants charged the accused party by name for commission of offence. Later on learned Ilaqa Magistrate was requested through an application that sections 6 and 7/21-L Anti-Terrorism Act with section 120-B, P.P.C. be also added in the case, who rejected the petition on the ground that at present the Court of Magistrate cannot determine as to whether the present offence comes under the definition of Terrorism or not. Revision petition filed against the order, dated 16-2-2009 was also dismissed by the learned Additional Sessions Judge-IV, Abbottabad vide older, dated 20-4-2009. Hence, the present constitutional petitions.

4. Learned counsel for the petitioners contended that the culprits fired with .12 bore shot guns at the deceased Sarwar Khan for the purpose of intentional murder. Some of the shots hit Jamia Masjid of the village and surrounding shops and one to the deceased which caused his instantaneous death; that after the commission of crime in a brutal manner, it created a sense of immense fear and terror not only in the village but also in neighbouring villages and surrounding area.

5. Learned counsel further contented that the respondents Nos. 3 to 6 being annoyed on a Court marriage of one Javed Ahmed and Mst. Gul Jabeen Bibi daughter of respondent No. 5, conspired to get revenge from the deceased party and thereby committed the murder of brother/ son of complainant and as the crime spots are mosque and public place, therefore, sections 6/7/21-L of Anti-Terrorism Act, 1997 and section 120B, P.P.C. are relevant sections of law and applicable to the present case. Learned counsel added that almost similar are the facts and circumstances of case F.I.R. No.217 of even date in which the occurrence took place on main thoroughfare, a public place in the same manner.

6. As against that, the learned DAG opposed the contentions raised by the petitioner and supported the impugned orders of the Courts below.

7. We have heard learned counsel for the petitioner and learned DAG for the respondents and perused the record.

8. A perusal of record would show that the complainant in case F.I.R. No. 216 on information furnished by her sister-in-law went to the spot and saw his brother lying dead on the stairs of mosque. As per contents of F.I.R., the case against the accused party is allegedly shrouded in mystery as to how, under what circumstances and in what manner and at what time the deceased was done to death. Allegedly the deceased was aimed at due to enmity from behind at the path leading to the mosque and thereafter in the mosque from outside. Almost similar are the facts and circumstances of case F.I.R. No.217 of even date, in which the occurrence took place on main thoroughfare, a public place in the same manner, in which unknown culprit(s) allegedly murdered Imtiaz Khan at midnight of 27-7-2008 and report in this behalf was lodged after about 6/7 hours of the occurrence. Learned counsel has averred in the writ petitions and argued before us that the crimes were committed by the culprits because of their annoyance on Court marriage of the spouses mentioned above. It can be safely inferred that both the occurrences were the result of personal annoyance/enmity which have nothing to do with creation of terror or immense fear in the village or neighbouring surroundings specially so when they are unseen and un-witnessed occurrences.

9. The Anti-Terrorism Act; 1997 Was enacted with a view to provide for the prevention of Terrorism, sectarian violation and for speedy trial of heinous offences. To arrive at a just conclusion, it would be appropriate to reproduce section 6(2)(i) and (h) of Anti-Terrorism Act, 1997, as under:-- "(6) Terrorism.

(1) In this Act, "terrorism" means the use or threat of action where:-- (2) An "action" shall fall within the meaning of subsection (1), if it:-- (h) Involves firing on religious congregations, mosques, imambargahs, churches, temples and all other places of worship, or random firing to spread panic, or involves any forcible takeover of mosques or other places of worship; (i) creates a serious risk to safety of the public or a section of the public, or is designed to frighten the general public and thereby prevent them from coming out and carrying on their lawful trade and daily business, and disrupts civil life.

10. A plain reading of the above provisions of law would show that the cases in hand are neither covered under section 6(2)(i) nor the provision of section 6(2)(h) of Terrorism Act, 1997 would be attracted.

11. Keeping in view the facts and circumstances of the case, addition of sections 6/7/21-L of the Anti-Terrorism Act, 1997 and section 120B, P.P.C. to the cases in hand are not required and has been rightly denied by the Courts below.

12. In the wake of what has been discussed above, finding no force in these constitutional petitions, the same are hereby dismissed. The findings recorded above are tentative in nature and only relevant for the purpose of addition of above said sections of law and in no manner shall prejudice the trial Court. H.B.T./204/P Petition dismissed.