2016 PLP 1840 (MLD)

IKRAMULLAH KHAN, J.

Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has called in question the judgment/order of learned Judge Anti-Terrorism Court, Hazara Division, Abbottabad dated 31.03.2016 whereby trial of the accused stood transferred to the ordinary court due to lack of jurisdiction by the Anti-Terrorism Court.

2. Brief but relevant facts of the case are that the accused-respondent namely, Junaid Khan, was charged for killing of the deceased namely, Khan Javed Khan in the court premises at Haripur and thus, a case bearing FIR No. 1135 dated 19.12.2015 was registered against him under Sections 302/109, P.P.C. read with Section 7 ATA, however, during the course of trial, learned counsel for the accused raised the plea of jurisdiction which was hotly contested between the parties the learned trial court while thoroughly discussing merits of the case, transferred the trial to ordinary court instead of Anti-Terrorism Court and, as such, the petitioner, who is complainant of the case, feeling aggrieved of the aforesaid order, filed the instant constitutional petition.

3. Learned counsel for the parties and the learned Additional Advocate General were heard and the available record gone through with their valuable assistance.

4. In case in hand, the most important question under discussion is that whether the commission of an offence of Qatl-i-Amd committed within the court premises would be triable by the Anti-Terrorism Court or ordinary court.

5. One set of argument, advanced on behalf of the accused-respondent, was that as the alleged offence was the outcome of personal enmity between the parties and it was a target killing which had neither created any sense of insecurity nor struck any terror, therefore, offence is a general one, how-so-high may be its gravity, could not come within the ambit of the definition of Act of Terrorism provided under Section 6 of the Anti-Terrorism Act, 1997, not triable by Anti-Terrorism Court.

6. As to that, learned counsel for the petitioner contended that the impugned judgment is against law, as the ATC would not only have exclusive jurisdiction to try offence falling within the ambit of the Anti-Terrorism Act, 1997 but also the offences, described in the schedule of the Act ibid. Further contended that the act of accused-respondent had not only created sense of insecurity and struck terror in the mind of general public, but also Judges, Advocates and all officials and police working there in the court. Reliance is placed on the case law reported as 1993 SCMR 462 titled "Muhammad Sharif v. Nawab Bibi".

7. I have heard learned counsel for the parties and gone through the record.

8. The occurrence admittedly being committed within the premises of court, while both the parties had appeared in connection of their cases, fixed on the day of occurrence.

9. The preamble of the Anti-Terrorism Act, 1997 would be the key for to know the import of the Act, 1997 which is reproduced below:-- "An Act to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences. Whereas it is expedient to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences and for matters connected therewith and incidental thereto."

10. Anti-Terrorism Act, 1997 has been brought for two fold purposes, on one hand, to provide for prevention of terrorism, sectarian violence and, on the other hand, for speedy trial of heinous offences and also for matters connected therewith and incidental thereto.

11. No doubt, in view of the definition of terrorism as provided under section 6 of the Act ibid only those offences does fall in the ambit of terrorism which by any way creates a serious risk to safety of the public a section of the public or is designed to frighten the general public and thereby prevents them from coming out and carrying on their lawful trade and duly business and disrupts civic life and to coerce and intimidate or overawe the Government, public, community or sects or to make a sense of fear or insecurity in society or the purpose is to advance a religious risk to safety of public etc. but the object and provision contained in section 13 of the Act could not be bypassed which reads as under:

"S.13. Establishment of (Anti-Terrorism Court). 1) For the purpose of providing for the speedy trial of the cases referred to in subsection (2) and subsection (3) of section 39-A and of scheduled offences, the Federal Government, or if so directed by the Government, the Provincial Government may establish by notification one or more Anti-terrorism Courts in relation to each territorial area as specified by the High Court.

12. Similarly, the Anti-Terrorism Court has also conferred upon the power to try any other offence than the scheduled offence with which the accused may, under the code, be charged at the same trial, in term of Section 17 of the Act, 1997 which reads as under:- "S.17. Powers of (Anti-Terrorism Court) with respect to other offences. When trying any scheduled offence, a (Anti-Terrorism Court) may also try any offence other than the scheduled offence with which the accused may, under the Code, be charged at the same trial." While, the provision contained in Section 21-G has conferred exclusive jurisdiction upon the Anti-Terrorism Court with regard to trial of cases falling within the ambit of the Act which reads as under:-- "S. 21-G. Trial of offences. All offences under this Act shall be tried by the Anti-Terrorism Court established under this Act."

13. No doubt, in view of Section 23 of the Act, 1997 where after taking cognizance of an offence, Anti-Terrorism Court is of the opinion that the offence is not a scheduled offence, it shall notwithstanding that it has no jurisdiction in view of Section 193, Cr.P.C., to try such offences, transfer the case for trial of such offence to any court having jurisdiction under the code, but there shall be definite conclusion and reasons for transferring the case and if it was not a scheduled offence.

14. It is very much clear that the Anti-Terrorism Court has not only exclusive jurisdiction of trial of offences committed under any provision of the Anti-Terrorism Act, 1997 but have to also try all other scheduled offences.

15. The Schedule of the Act has been amended through Act No.II of 2005 and item 4 would be read as under:-- "

4. Without prejudice to the generality of the above paragraphs, the Anti-Terrorism Court to the exclusion of any other Court shall try the offences relating to the following namely:- (i) Abduction or kidnapping for ransom; (ii) use of fire-arms or explosives by any device, including bomb blast in a mosque, Imambargah, church, temple or any other place of worship, whether or not any hurt or damage is caused thereby; or (iii) firing or use of explosives by any device, including bomb blast in the court premises."

16. The contention of learned counsel for the respondent that the Anti-Terrorism Court has the jurisdiction to take cognizance of the offences which fall within the ambit of Section 6 only is misconceived as thereafter the addition of item No.4 in the schedule, the offences, provided thereunder, shall also be exclusively triable by the Anti-Terrorism Court being heinous offences.

17. Apart from the above reasons, in the case of "Shahzad Arif Raza v. Special Judge Anti-Terorism Court" reported as 2012 PCr.LJ 1735 Lahore, the learned Lahore High Court is held in so far as the proposition of law with regard to the Act of terrorism is concerned as under:-- "Accused party while armed with fire-arms had attacked on the complainant party on its coming out of the court after hearing of a pre-arrest bail application, all the opponents while armed with the firearms attacked upon the complainant party, as a result of said attack six persons were injured and leg of one of the victims was amputated. The courts were closed and the Lawyers lodged a protest by observing strike for commission of heinous offence inside the court compound, where numerous persons including Advocates, their clerks, litigants, courts staff and Presiding Officers were present. Such act of barbarism was liable to be dealt with iron hands and under the Third Schedule of the Anti-Terrorism Act, 1997. It is the Anti-Terrorism Court which has been vested with the jurisdiction to try the cases of firing or use of explosive by any device including bomb blast in the court which has exclusive jurisdiction to try this case and the application filed under Section 23 of the Anti-Terrorism Act, 1997 has rightly been dismissed by the learned trial court."

18. The facts of the case in hand could not be distinguished from that of the ibid case, while the facts of the case, mentioned in the impugned judgment reported as PLD 2009 Supreme Court 11 titled "Bashir Ahmad v. Muhammad Siddique and others" is not attractive to the facts of the instant case, on which the learned Anti-Terrorism Court has placed its reliance.

19. In case in hand, one person has been murdered while he was attending his case within the compound of the court which is a scheduled offence, exclusively triable by the Anti-Terrorism Court.

20. For the reasons mentioned hereinabove, this writ petition is admitted and allowed. The impugned judgment is set-aside and the case be returned to the learned Anti-Terrorism Court concerned for further proceeding under the Anti-Terrorism Act, 1997. SL/237/P Petition allowe