2013 P Cr (PLP)

IRFAN SAADAT KHAN, J.

This Criminal Revision Application under section 439, Cr.P.C. read with section 561-A, Cr.P.C. has been filed against the order passed by the learned Judge of Anti-Terrorism Court No.I, Karachi (ATC), dated 8-2-2012 in Special Case No.72 of 2011, relating to F.I.R. No.428 of 2011, registered under sections 393/302/34, P.P.C. read with section 7, Anti-Terrorism Act, 1997 (ATA) at Police Station Shah Latif Town, Karachi. The said order was passed on an application under section 23 of the ATA filed by the accused Akbar Bacha and two others, which was allowed and the case was transferred from ATC to the Court of learned Sessions Judge, Malir, Karachi, for disposal in accordance with law. Being aggrieved with the said order the applicant/complainant has filed this revision application praying that as the action of the accused falls under the ambit of section 6 read with section 7 of the ATA, accused are to be tried by the ATC and not by an ordinary Court.

2. Briefly stated the facts of the case are that on 11-6-2011 at about 2025 hours the complainant went to his friend Asif Ali Shaikh at Telenor Franchise Commutation Shop, situated in Gulistan Society, Landhi. The complainant along with Abdul Basit Bhatti and his friend Asif Ali Shaikh, who is owner of the shop, were sitting in the shop, whereas security guard Sultan son of Naseer Ahmed was sitting outside the shop with his gun. Suddenly they saw on CCTV that three persons, duly armed with TT Pistols came on motorcycle and stopped in front of the shop with the intention to commit robbery. When these persons attempted to enter the shop the security guard Sultan tried to stop them on which these three persons started firing. The security guard also fired upon them with his gun, thereafter the owner of the shop Asif also came out of the shop with his pistol and on seeing this accused persons fired upon Asif Ali Shaikh as well and in retaliation Asif also fired upon them. Due to the firing of the accused persons guard Sultan and Asif received injuries and fell down and the accused escaped from the place on their motorcycle. The complainant and Abdul Samad took both the injured persons i.e. Asif and guard Sultan, in private vehicle, to Agha Khan Hospital for their medical treatment, where the Doctor confirmed that both had expired. The bodies of these two persons thereafter were shifted to Jinnah Postgraduate Medical Centre for necessary legal formalities.

3. Mr. Niamat Ali Randhawa, learned counsel appearing on behalf of the applicant/complainant, submitted that the learned Judge was not justified in allowing the application under section 23 of the ATA and transferring this case to the learned District and Sessions Judge without examining the record and looking at the facts pertaining to the case from the perusal of which it is clear that the accused by attacking the shop and firing indiscriminately, by which two persons had expired, had caused terror, in the area and a serious risk to the safety of the "public and frightened the general public to carry out their daily business affairs etc. According to the learned counsel the said action squarely falls under section 6(i) of the ATA and hence has to be triable by ATC. He further invited our attention to the statements, recorded under section 161, Cr.P.C., of Ghulam Abbas son of Sardar Khan and Ali Abid Hussain son of Khadim Hussain, who reside nearby the shop from which, according to the learned counsel, it is clear that the accused had terrorized the people living in the vicinity and this action, according to the learned counsel, falls under the relevant provision of the law and therefore the same is triable by ATC. In support of his contentions the learned counsel has relied upon the following decisions:-- (1) Nooruddin v. Nazeer Ahmed and others 2011 PCr.LJ 1370 (2) Mst. Najam-un-Nisa v. Judge, Special Court Constituted under Anti-Terrorism Act, 1997 (2003 SCMR 1323) (3) Mst. Raheela Nasreen v. The State and another (2002 SCMR 908) (4) Mirza Shaukat Baig and others v. Shahid Jamil and others (PLD 2005 Supreme Court 530) (5) Zahid Imran and others v. The State and others (PLD 2006 Supreme Court 109) (6) Gul Muhammad v. The State (PLD 2012 Balochistan 22) (7) Sher Ahmed v. Khuda-e-Rahim (2012 MLD 158) (8) Gul Muhammad v. The State (SBLR 2012 Sindh 456)

4. Mr. Zafar Ahmed Khan, learned Additional Prosecutor-General has supported the order passed by the ATC Judge and has stated that the accused persons came with an intention to commit robbery and upon failing started firing, which is evident from the F.I.R. and hence there was no intention to strike terror in the people or in any section of the people, thus, according to him, the ingredients of section 6 of the A.T.A. are not attracted and hence the application was rightly allowed by the learned ATC Judge and this revision application being devoid of any merit is liable to be dismissed.

5. We have heard both the learned counsel at considerable length and have perused the record and the decisions relied upon by them. Before dealing with the issue it would be pertinent if the relevant law be first examined: Section 6 of the ATA (a) .. .. .. .. .. .. .. .. (b) .. .. .. .. .. .. .. .. (c) .. .. .. .. .. .. .. .. (d) .. .. .. .. .. .. .. .. (e) .. .. .. .. .. .. .. .. (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 and thereby prevent them from coming out and carrying on their lawful trade and daily business, and disrupts civic life;

6. In the ATA cases it is to be seen that whether the act done has caused a threat or risk of safety among the public or a section of public or is designed to frighten the general public. These facts are to be gathered by looking at the F.I.R. lodged in this regard from which the entire prosecution case flows. From the accumulative reading of the F.I.R. it reflects that the complainant has categorically stated that the accused persons stopped in front of the shop of his friend deceased Asif Ali Shaikh with an intention to commit robbery and when they were stopped thereafter they fired upon the deceased persons.

7. Perusal of section 6 of the A.T.A. reveals that ATC has the jurisdiction to try the case, if an offence is made out with an intention to strike terror in the public or in a section of public. The act should be designed to create a sense of fear and insecurity in the minds of the general public. While examining such offence it is to be seen that the offence should have a nexus with the object of the act and the offence should be squarely covered under the relevant sections i.e. 6, 7 and 8 of the A.T.A. It is a trite proposition of law that a case is not triable by the ATC when any of the conditions laid down in section 6 of the A.T.A. are not fulfilled.

8. For determining the issue whether the case is triable by the ATC, nature of the offence is to be seen in the light of the averments made in the F.I.R. In the instant case it has not been denied by the learned counsel appearing on behalf of the applicant/complainant that in the F.I.R. it has categorically been mentioned that the accused came with an intention to commit robbery and failing which they started firing. In our view the striking of terror is a sine qua non for the application of the above provision of law. In order to determine whether any action falls under the ambit of section 6 of the A.T.A., the averments made in the F.I.R. and the allegations raised in this regard are of prime importance to determine the offence committed and in the instant case admittedly the accused had approached the shop of the deceased with an intention to commit robbery. In our view the cases registered against the accused pertaining to robbery with murder committed for private gains and offence in question had not been committed with the design or the purpose as contemplated under any of the provisions of section 6 of the A.T.A.

9. The first case relied upon by the learned counsel for the applicant/complainant i.e. Nooruddin v. Nazeer Ahmed and others (SBLR 2012 Sindh 130) authored by one of us namely Sajjad Ali Shah, J., was found to be quite distinguishable as in this case the accused climbed on the roof of the shop then broke the same and viciously murdered three persons. In the said case the Court after hearing the learned counsel came to the conclusion that the case is to be tried by the A.T.C. In the second cited case i.e. Mst. Najam-un-Nisa v. Judge, Special Court constituted under Anti-Terrorism Act, 1997 (2003 SCMR 1323) seven persons were butchered in a house at night and it was held that the said act falls under the parameters of terrorism. In the other cases referred to by the learned counsel for the applicant/complainant somewhat similar deliberation has been made. In our view the cases relied upon by the learned counsel for the applicant/complainant are distinguishable as there is no cavil to the proposition that any act which strikes terror fulfilling the parameters as enshrined in section 6 falls exclusively under the domain of terrorism. Thus viewing this case from this touchstone it is manifest that as per the complainant himself the accused had arrived at the shop of the deceased with an intention to commit robbery, which motive has categorically been mentioned in the F.I.R.

10. Hence the prerequisite to bring the case within the ambit of terrorism, in our view, apparently is lacking in the present case and the application filed by the accused under section 23 of the A.T.A. for transfer of case was rightly accepted by the A.T.C. Hence, this Criminal Revision Application is hereby dismissed. MWA/I-22/K Application dismissed.