2017 PLP 442 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned criminal revision application, applicants Bukhshal Gopang and Ghulam Mustafa Junejo have impugned order dated 08.03.2016, passed by the Court of learned Special Judge, Anti-Terrorism Court, Hyderabad in ATA Case No.16/2016, arising out of Crime No.360/2015, lodged at Police Station Badin, under sections 302, 120(B), 337-H(2) and 35, P.P.C., read with sections 6/7 of Anti-Terrorism Act, 1997 (hereinafter referred as the Act whereby application under section 23 of the Act, filed by the applicants for transfer of the case to ordinary Court was dismissed.

2. Relevant facts spelt out are that complainant lodged FIR that his elder brother Muhammad Aslam was posted as Head Master of Primary School, who formed citizen alliance against Bhatta and Narcotics Mafia, and accused persons extended threats to kill him. On 17.12.2015, complainant was available in the town, while Muhammad Aslam was going to school on motorcycle, and near the shop of Ghulam Mustara accused Waleedad and Tariq Talpur made straight fires but same were missed. Accused Muhammad Mithal caused iron rod blow on the face of Muhammad Aslam, who fell down. Accused Dur Muhammad alias Duru made pistol fire which hit him on right side of chest, Ismail alias Foji made Kalashnikov fire which hit on his right side. Accused made aerial firing for creating terror and fled away. Complainant shifted the injured to Hospital but he succumbed to the injuries.

3. Learned Counsel for applicants vehemently contended that applicants and complainant party are disputed since 1983 and there are series of FIRs lodged by them against each other; that no act of terrorism has been spelt out from the contents of FIR and the learned trial Court has wrongly concluded the alleged offence falls under Section 6(2) of Anti-Terrorism Act, 1997. Learned counsel submitted that parties are disputed over the management of Dargah Lanwari Shareef and complaint party belongs to Group "A", while accused persons belongs to Group "B" of Dargah Lanwari Shareef and the alleged offence was a simple murder of the deceased due to their personal enmity, but complainant party being highly influential and having relations with ruling party lodged instant FIR by incorporating Sections of Anti-Terrorism Act, 1997, otherwise no act of accused persons has any nexus with the terrorism. Learned counsel lastly contended that complaint has falsely alleged that the deceased constituted Citizen Alliance against narcotic dealers as neither any case was lodged against the accused persons nor they are involved in such activities. Learned Counsel has relied on PLD 1987 SC 1445, PLD 2001 SC 521, PLD 2000 Karachi 89, PLD 2007 SC 571, 2008 SCMR 1631, 2014 PCr.LJ 1052.

4. While controverting the above submissions, learned Counsel for complainant contended that complainant was posted as Headmaster in Primary School, Lanwari Shareef, and he constituted citizen alliance against narcotics dealers, upon which accused party became annoyed and issued threats to the deceased; that the incident occurred in main Bazaar of Lanwari Shareef Town, and accused persons also made aerial firing to cause harassment in the public, hence section 6 of the Act is perceptibly attracted. Learned counsel vehemently contended that the mode of commission of the offence reflects the intention of accused persons, hence police has rightly inserted Section 6 of Anti-Terrorism Act, 1997. Learned Counsel relied on PLD 2003 SC 2024, 2002 SCMR 908 and 2002 SCMR 1225.

5. Learned D.P.G. appearing for the State, has supported the impugned order and adopted the arguments advanced by learned Counsel for complainant and further submitted that in view of the material available on record, learned trial Court has passed just and proper order. However, he candidly conceded that no material during investigation has been collected by the Investigating Officer that any sense of fear or insecurity was spread at the spot or shopkeepers closed their shops due to commission of alleged offence. Learned D.P.G. has relied upon 2013 YLR 1135.

6. While dealing with the question of act of terrorism, it would be beneficial to have a glance over the provisions of section 6 of the Act which is re-produced as follows:- "

6. Terrorism.

(1)

(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; (f) incites hatred and contempt on religious, sectarian or ethnic basis to stir up violence or cause internal disturbance; (g) involve stoning, brick-batting or any other form of mischief to spread panic; (h) involves firing on religious congregations, mosques, Imam Bargahs, 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 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; (1) 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 of 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."

7. It is significant to mention that per the preamble, the object of promulgation of Anti-Terrorism Act, 1997, was to control acts of terrorism, sectarian violence, other heinous offences and curb the terrorist activities as contemplated in section 6 of Anti-Terrorism Act, 1997.

8. Perusal of material emanates that applicants and complainant are inimical with each other since the year 1983. In fact, there is a dispute over the management of Dargah Lanwari Shareef, and after the death of Pir Gul Hassan Naqshbandi Siddiqui, one follower namely Faiz Muhamamd Korejo claimed that Pir Gul Hassan through his will nominated him as Dargah Nasheen referred as Group "A", while present accused party claimed that after the death of Pir Gul Hassan, the son of his daughter namely Pir Hassan Qadir is Gadhi Nasheen of Dargah Lanwari Shareef, referred as Group "B", as such dispute arose between the parties and the Group "A"/complainant party attacked upon Group "B"/accused party and committed murdered of seven persons and two persons sustained injuries, against which FIR No.11/1983 was registered at Police Station Badin, hence Government of Sindh sealed Dargah Lanwari Shareef. Thereafter in the year 1989, Group "A" committed murder of two persons of Group "B", for which FIR No.127/1989 was lodged with Police Station Badin. In the year 2009, Group "A" also committed murder of Group "B", and FIR No.128/ 2009 was registered with Police Station GOR, Hyderabad by Group "B". Thereafter, Group "A" registered FIR No.52/2003 with Police Station Badin against Group "B". Group "A" again lodged FIR No.105/2010 and FIR No.32/2015 against Group "B". It is significant to mention that Investigating Officer in Challan of instant crime has mentioned that complainant party belongs to Group "A", while accused party belongs to Group "B".

9. In the case of Bashir Ahmed v. Naveed Iqbal (PLD 2001 SC 521), the honourable Supreme Court of Pakistan has observed that "A person would commit a terrorist act if in order to, or, if the effect of his actions will be to strike terror or create a sense of fear and insecurity in the people, or any section of the people by doing an act or thing by using bombs, dynamite or other explosive or inflammable substances etc. is a sine qua non for the attraction of the provisions of section 6 of and the Schedule to the Act. In the instant case no doubt the offence committed was certainly most heinous in nature but it does not mean that it does qualify to be terrorist act within the contemplation of section 6 or the schedule to the act". In the case of Tariq Mahmood v. State (2008 SCMR 1631), the honourable Supreme Court has observed that "There is no independent evidence available on the record to show that the act of the respondents led to striking of terror among the masses. It is a well settled law that criminal case should be tried and decided by the court having plenary jurisdiction until and unless extraordinary circumstances existed justifying the trial of the case by Special Courts." In the case of Mohabbat Ali and another v. The State (2007 SCMR 142), the honourable Supreme Court has observed that "the provisions of Anti-. Terrorism Act, 1997 are required to be construed strictly and the benefit, if any arisen in that regard, has to be extended to the accused, whereas, in the absence of the element of terrorism, sense of insecurity in public at large and gravity and seriousness of the offence as detailed in various subsections of section 6, the provisions of sections 6, 7 and 8 of Anti- Terrorism Act, 1997 could not be attracted in each and every case."

10. While dealing with the application for Transfer of case from Anti-Terrorism Court to the Court of ordinary jurisdiction, it is incumbent upon the Court to scan the available material prudently and adjudge that what was the motive behind the commission of the offence as to whether accused was a terrorist and sectarian criminal who killed the innocent persons either to weaken the State or to cause damage to the parties of the rival sect or the offence was committed in wake of enmity. It is essential to examine that offence should have nexus with the object of the Act and is covered by its relevant provisions.

11. In the present case admittedly a feud existed between the parties over the management of Dargah Lanwari Shareef. No independent evidence has been collected by the prosecution to prima facie establish that the act of accused had created panic and stretched sense of insecurity and spread terror among the public at large available on the spot. Even there is no iota of evidence with the prosecution that due to murder of the deceased and alleged aerial firing of culprits, people present on the spot started running and due to panic the shopkeepers, shutter down their shops. Indeed, the alleged offence was not an act of terrorism but the factum of old animosity between both groups is reflected from lodgment of several FIRs against each other by them, and instant offence is exclusively outcome of personal vendetta and revenge. No extraordinary circumstances existed in present case to justify that the trial of the case should be conducted by Anti Terrorism Court. In view of the peculiar circumstances of instant case, the case-law cited by learned counsel for the complainant are distinguishable.

12. Considering the facts and circumstances referred supra, we are of the firm opinion that to constitute an offence of terrorism for the purpose of attracting any provision or schedule to Anti-Terrorism Act, 1997, the element of striking terror or creating of the sense of fear and insecurity in the public at large by doing any act or thing is essential and such act should be committed with the sole object to terrorize the people and to feel them insecure. The basic ingredients for the act of terrorism are missing in instant case, especially the factum of old animosity which is going on over the management of Dargah Lawari Shareef between both the groups, hence mere heinousness of the offence does not contemplate the act of terrorism within the parameters of section 6 or the schedule to the Anti-Terrorism Act, 1997. Indeed, every murder is a heinous crime against the society but same could not be tried by the Special Court of Anti-Terrorism Act, 1997. Consequently, order dated 08.03.2016 passed by the learned trial Court calls for interference by this Court and same is set-aside and learned trial Court is directed to return the challan to the Investigating Officer for its submission before the concerned Court for its adjudication in accordance with law. These are the reasons for short order dated 27.09.2016, passed by us, whereby instant criminal revision application was allowed, which is reproduced as under:- "For reasons to be recorded later on, instant criminal revision application is allowed as prayed and impugned order dated 08.03.2016 is set-aside. Learned trial Court is directed to return challan to I.O. of the case to submit before the Court having jurisdiction". WA/B-21/Sindh Revision allowed.