2002 PLP 908 (SCMR)

Date of hearing: 4th March, 2002. MUNIR A. SHEIKH, J.‑‑‑Through this petition, the petitioner seeks leave to appeal to call in question the legality of judgment dated 26‑8‑1999 of a Division Bench of the Lahore High Court, Rawalpindi Bench whereby Constitutional petition filed by the petitioner against the order of transfer or murder case to Anti‑Terrorism Court has been dismissed.

2. The facts of the case are that Major Sajjad Naseer who w serving officer in Pakistan Army was killed allegedly by the petitioner his wife in connivance with Wajid Faqir his Batman. A case under sections 302/201/34 P.P.C. was registered against the petitioner alongwith the Batman of the said deceased Major. The challan was submitted according to the learned counsel before the learned Additional Sessions Judge, a Court established under the general law from where it was transferred to the Anti‑Terrorism Court under the Anti‑Terrorism Act, 1997 for trial where it is pending.

3. The petitioner filed Constitutional petition challenging the said order of transfer of case to Anti‑Terrorism Court on the ground that the offence allegedly committed by her did not fall within the ambit of the said Act, therefore, her trial before the Anti‑Terrorism Court under the Act was without lawful authority. The Division Bench of the High Court, however, came to the conclusion that the offence allegedly committed by the petitioner fell within the ambit of section 6 of the Act which defines terrorist act, therefore, the same was triable exclusively by the Anti‑Terrorism Court established under the Act. The reasonings which prevailed with the Division Bench of the High Court to come to this conclusion were that if a Batman being a trusted person employed by an army officer murders his master in connivance with master's wife, the incident was likely to strike "terror" leading to feeling of "insecurity" among the army officers within the meaning of section 6(b) of the Act.

4. It will be useful to reproduce section 6(b) of the Act which reads as under:,‑ "(b) commits a scheduled offence, the effect of which will be, or be likely to be, to strike terror, or create a sense of fear and insecurity in the people, or any section of the people, or to adversely affect harmoney among different sections of the people."

5. Learned counsel for the petitioner firstly argued that none of the members of the Armed Forces made any statement that this alleged act of the petitioner had created either feeling of insecurity or was likely to strike terror.

6. We are afraid, the argument in our considered view is wholly fallacious. In order to determine whether a particular act of the accused for which he is being tried for criminal offence falls within the ambit of any of the provisions of the Act, it is not necessary to, record evidence of the witnesses to establish that the said act had, in fact, created terror or feeling of insecurity whereas the question of applicability of any of the provisions of the Act has to be decided by application of mind to the facts alleged in the F.I.R. and other attending circumstances.

7. From a bare reading of section 6(b) of the Act, it is manifest that it is not necessary that the offence as alleged had in fact, caused terror as the requirement of the said provision of law could be adequately satisfied if the same was likely to strike terror or sense of fear and insecurity in the people.

8. The learned Judges of the High Court came to the conclusion that a Batman who was a trusted person of an army officer if he kills as alleged his master in connivance with his (master's) wife, the same was likely to strike i terror or feeling of insecurity among the army officers which reasonings in our view are based on relevant consideration having logical nexus with the relevant law and do not suffer from any legal infirmity.

9. Learned counsel for the petitioner relied upon the rule laid down in the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445) and in particular the observations made at page 1493 of the report which are reproduced below to contend that merely because an army officer was killed would not itself be sufficient to attract the provisions of the Anti‑Terrorism Act:‑‑ It was urged by Mr. Gilani, learned counsel for some of the petitioners, that a perusal of the amended Schedule indicates that if the victim of a murder case under section 302, P.P.C. is a member of police, armed forces or civil armed forces or a public servant, the accused of such a case is triable under A.T.A. even if the murder had taken place on account of personal enmity and had nothing to do with the discharge of his official functions/duties. Whereas Ch. Muhammad Farooq, learned Attorney‑General, has submitted that in order to terrorise the public servants so that they may not discharge their functions/duties efficiently and effectively, the terrorists started killing public servants, for example, the Commissioner of Sargodha, a Secretary of the Provincial Government in Lahore, Superintendent of Police; Gujranwala, and the Managing Director, K.E.S.C., Karachi, were brutally murdered. According to him, the above acts of terrorism were intended and designed to create panic amongst the public servants. It will suffice to observe that if a Government servant or any other employee of the Government functionaries is murdered because he belongs to the above service and that there was no enmity or plausible reason for commission of the above offence such a killing is an act of terrorism within the ambit of the Act and can lawfully be included in the Schedule, but if the murder is committed solely on account of personal enmity, such a murder will have no nexus with the above provisions of the‑Act and will not be triable under the Act. However, this is a matter to be decided by the Special Court under section 23 of the Act, Special Court has been empowered to transfer a case to a regular Court if after taking cognizance of an offence, it is of the opinion that the offence is not a scheduled offence.

10. These observations have been made in relation to inclusion of offence of murder of civil servants, etc., in the schedule as a separate entity and do not in any manner have the effect of excluding from their applicability the other provisions of the Act such‑like section 6(b) (ibid) which if otherwise is applicable in the case of murder, may be of army man or a public servant as ordinary person on the touchstone of criteria i.e., the same had the tendency or the effect of likely to create terror or feeling of insecurity.

11. The judgment impugned in this petition does not suffer from any illegality, therefore; this petition has no force which is accordingly dismissed and leave refused. S.A.K./R‑39/L Leave refused.