2012 PLP 59 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

This appeal by leave of the Court is directed against the judgment dated 6-5-2003 passed by a learned Division Bench of the High Court of Balochistan, Quetta vide which appellant's constitutional petition was dismissed and the judgment of the learned Special Judge, Anti-Terrorism Court-I, Quetta dated 22-3-2003 was affirmed. Vide the latter judgment the learned Special Judge had dismissed appellant/accused's application to transfer the case (registered vide F.I.R. No. 39 of 2002 dated 2-5-2002 under sections 302/324/337-ADF/34, P.P.C. at Levies Station, Pishin for the murder of Sher Jan) to a Court of ordinary jurisdiction under the Criminal Procedure Code as it had no nexus with the mischief of the penal provisions of the Anti-Terrorism Act, 1997. The aforementioned case was transferred to the said Court by the learned Additional Sessions Judge in whose Court the police had submitted the final report under section 173, Cr.P.C. In dismissing the application, the learned Special Judge relied on a judgment of this Court reported at Ziaullah v. Special Judge Anti Terrorist Court (2002 SCMR 1225) and found that prima facie the incident of murder coupled with the assault on the injured persons had been committed in the broad daylight; that it must have created a fear and insecurity amongst the people and that it was a case attracting the mischief of sections 6 and 7 of the Anti-Terrorism Act, 1997.

2. Learned counsel for the appellant submitted that the alleged occurrence, subject matter of the case registered vide F.I.R. No.39 of 2002 had no nexus with section 6 of the Anti-Terrorism Act; that even as per allegation, the accused were motivated to avenge a previous enmity; that admittedly there was no allegation of creating terror in the F.I.R. and that the Courts below have not correctly appreciated the import of section 6 of the Anti-Terrorism Act, 1997, as interpreted by this Court.

3. Learned Additional Prosecutor-General did not oppose the appeal as according to him even before the learned High Court of Balochistan, Quetta when the impugned judgment was passed, the learned Advocate-General, Balochistan had conceded that it was not a fit case to be tried by the Special Court and before this Court on 5-6-2003 when leave was granted.

4. We have heard learned counsel for the appellant as also learned Additional Prosecutor-General, have gone through the impugned judgment and have considered the precedent case-law.

5. Leave was granted by this Court vide the order dated 5-6-2003 which reads as follows:-- "

3. Learned counsel contended that the case registered against the petitioner does not fulfill the criteria laid down under section 6 of the Act 1997 for the purpose of trial by the Special Judge. According to him, admittedly, in this case no lethal firearms were used by the petitioner and other persons, as it was a usual free fight between two factions, which had taken place at the spur of the moment without any previous criminal intimidation. He further pointed out that according to the prosecution, pistol was used by one Haji Moula Dad but he has been discharged by the prosecution under section 169, Cr.P.C. Learned counsel argued that the learned Division Bench of the High Court had not strictly applied criteria laid down under section 6 of the Act, 1997 for transferring the case from ordinary Court to the Special Judge under the Act 1997. It was also pointed out by him that Special Judge had himself taken cognizance of the fact that in this case investigation was not conducted honestly and properly by the Tehsildar/Investigating Officer has been convicted/ sentenced, who has filed an appeal, which is pending before the High Court. It was also his version that the case arising out of F.I.R. No.40 of 2002, in which lethal fire arms were used has been transferred on the file of ordinary Court under the Criminal Procedure Code whereas instant case, in which there is no allegation of using the fire arms by the petitioner or other persons, has been transferred to the Special Judge. Therefore, rule of consistency demands that the case of the petitioner should have also been placed for trial before the Court functioning under the Criminal Procedure Code.

4. In response to notice Mr. Salahuddin Mengal, Advocate-General appeared and stated that though learned High Court has rejected the writ petition but even before High Court he was of the opinion that instant case is not triable by the Special Judge as it does not fulfill the conditions of section 6 of the Act, 1997.

5. No one has appeared on behalf of the respondent-complainant despite issuing notice by the office.

6. After hearing learned counsel for the petitioner as well as Advocate-General, we grant leave to appeal, inter alia, to examine the contentions noted hereinabove."

6. A bare reading of the F.I.R. indicates that four accused, one armed with a pistol, one with knife and the remaining with sticks, attacked the complainant party in consequence of which Sher Jan died and Naseeb Ullah received injuries. No motive was alleged and the police after due investigation submitted challan/report under section 173, Cr.P.C. before the learned Court of Session and the same was entrusted to an Additional Sessions Judge who transmitted it to the Special Court established under the Anti-Terrorism Act, 1997. To assume jurisdiction under the afore-referred Act, the Court has to examine the mandate of the relevant penal provision which is section 6 of the Anti-Terrorism Court and it reads as under:-- "

6. Terrorism. (1) In this Act, "terrorism" means the use or threat of action where: (a) the action falls within 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 or threat is made for the purpose of advancing a religious, sectarian or ethnic cause [or 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) An "action" shall fall within the meaning of subsection (1), if it: (a) involves the doing or anything that causes death; (b) involves grievous violence against a person or grievous bodily injury or harm to a person; (c) involves grievous damage to property; (d) involves the doing of anything that is likely to cause death or endangers a person's life; (e) involves kidnapping for ransom, hostage-taking or hijacking; (ee) involves use of explosives by any device including bomb blast; (ee) incites hatred and contempt on religious, sectarian or ethnic basis to stir up violence or cause internal disturbance; (f) involve stoning, brick-batting or any other form of mischief to spread panic; (g) involves firing on religious congregations, mosques, Imam Bargahs, churches, temples and all other places of worship, or (h) 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 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; (j) involves the burning of vehicles or any other serious form of arson; (k) involves extortion of money (Bhatta) or property; (l) is designed to seriously interfere with or seriously disrupt a communication system or public utility service; (m) involves serious coercion or intimidation of a public servant in order to force him to discharge or to refrain from discharging his lawful duties; or (n) involves serious violence against a member of the police force, armed forces, civil armed forces, or a public servant. (3) The use or threat or use of any action falling within subsection (2), which involves the use of fire-arms, explosives or any other weapon, is terrorism, whether or not subsection 1(c) is satisfied. (4) In this section "action" includes any act done for the benefit of a proscribed organization. (5) In this Act, terrorism includes any act done for the benefit of a proscribed organization. (6) A person who commits an offence under this section or any other provision of this Act, shall be guilty of an act of terrorism. (7) In this Act, a "terrorist" means; (a) a person who has committed an offence of terrorism under this Act, and is or has been concerned in the commission, preparation or instigation of acts of terrorism; (b) a person who is or has been, whether before or after the coming into force of this Act, concerned in the commission, preparation or instigation of acts of terrorism, shall also be included in the meaning given in clause (a) above."

7. In Bashir Ahmed v. State (PLD 2009 SC 11) by considering the law laid down in Basharat Ali v. Special Judge, Anti-Terrorism Court-II (PLD 2004 Lahore 199), a judgment authored by one of us (Asif Saeed Khan Khosa, J), Bashir Ahmed v. Naveed Iqbal and others (PLD 2001 SC 521) and Muhammad Mushtaq v. Muhammad Ashiq and others (PLD 2002 SC 841), the case in question was held not to be triable by a Special Court established under the Anti-Terrorism Act, 1997 because "The motive for the occurrence is enmity inter se the parties on account of some previous murders. In this view of the matter, we are of the opinion that since motive was enmity inter se the parties, the application of section 7 of the Act, which primarily requires the spread of sense of insecurity and fear in the common mind is lacking in the present case. The occurrence neither reflects any act of terrorism nor it was a sectarian matter instead the murders in question were committed owing to previous enmity between the two groups."

8. For what has been discussed above, this appeal is allowed and the impugned judgment is set aside. The record shall be transmitted to the Trial Court forthwith. Criminal M.A. 143 of 2005

9. Since the main appeal has been allowed, this Criminal M.A. has become infructuous and is disposed of accordingly. M.H./A-52/SC Appeal allowed.