2013 P Cr (PLP)

NAIMATULLAH PHULPOTO, J.

Through this criminal revision application order dated 15-3-2012 passed by learned Special Judge Anti-Terrorism Court No.II, Karachi in three Special Cases Nos.750 of 2011 under sections 365/34, P.P.C. read with section 7 of ATA, 1 of 2012 under section '13(d) Arms Ordinance, 1965, and under section 13(d) Arms Ordinance, 1965, has been called in question, whereby transfer application was dismissed.

2. Brief facts of the prosecution case as disclosed in the F.I.R. are that one Muhammad Aslam lodged his report on 13-12-2012 at Police Station Saeedabad, alleging therein that on 6-11-2011 his cousin Ahsan Ahmad son of Ahmed Din left home but he did not return home in the evening. Complainant made search but without result. On 10-12-2011, 12-12-2011 and 13-12-2011 from mobile number of Ahsan Ahmad, relative of complainant namely Muhammad Shahzad Saeed received calls of a person without disclosing his identity and demanded ransom of Rs.3,800,000, in case of non-payment, it was stated that Ahsan Ahmed would not be released, threat of his murder was also issued. F.I.R. of the incident was lodged against unknown persons vide Crime No.750 of 2011 under section 365-A, P.P.C.

3. During investigation P.W. Ahsan Ahmed was recovered by the police. His 161, Cr.P.C. statement was recorded, who stated that on 6-11-2011 he was called by applicant Bismillah Khan and others to Al-Asif Square, Sohrab Goth. After taking meals, P.W. Ahsan Ahmad was detained by accused persons till payment of the amount due against him.

4. On completion of investigation challan was submitted against the applicants Bismillah Khan and Noushad in the Anti-Terrorism Court No.II, Karachi under sections 365-A and 780A(sic.), P.P.C.

5. An application under section 23 of the Anti-Terrorism Act, 1997 was moved before the learned Anti-Terrorism Court No.II, Karachi for transfer of the case from special Court to regular Court. Learned trial Court after hearing both the parties rejected an application vide order dated 15-3-2012 for the following reasons:-- "I have gone through the application filed by the advocate of the applicant which shows that three cheques were issued by the alleged abductee but this is serious matter. The abductee has, levelled allegation of kidnapping. Subsection 6(2) of A.T.A., 1997 deals with the case of ATC Courts which deals with kidnapping for ransom therefore I cannot grant this application, therefore it is rejected."

6. Mr. Abdul Wasey Kakar, advocate for the applicants mainly contended that from the facts and circumstances of the case, offence under section 365-A, P.P.C. is not made out. It was not the case of kidnapping for ransom, no scheduled offence has been committed, there was business transaction between P.W. Ahsan Ahmed and applicants. It is further submitted that applicants paid Rs.40,00,000 to the complainant party for running the PSO Petrol Pump. It is also argued that P.W. Ahsan Ahmed had issued three cheques on different dates on account of business deals. Lastly, it is submitted that trial before the Anti-Terrorism Court would be coram non judice and case may be transferred to the Sessions Court for the trial.

7. Mr. Ali Haider Saleem, A.P.-G. supported the impugned order of the trial Court and argued that section 365-A, P.P.C. is exclusively triable by Anti-Terrorism Court. However, after perusal of the statement of P.W. Ahsan Ahmed he pointed out that there was business dealing between the complainant party and appellants.

8. We have carefully heard the learned counsel for the parties and perused the relevant record.

9. From perusal of the F.I.R., 161, Cr.P.C. statement of P.W. Ahsan Ahmed and other material collected during the investigation, it transpires that there was business dealing between the parties, cheques were issued by the complainant party and the same were dishonoured. Therefore, ingredients of section 365-A, P.P.C. are not satisfied from the material collected during the investigation. Under section 6 of the Anti-Terrorism Act, 1997 terrorism is determined from the criminal act designed to create a sense of fear or insecurity in the minds of the general public disturbing even tempo of life and tranquillity of the society and other ordinary crimes like the present one, are not to be tried under the Anti-Terrorism Act, 1997. Learned Anti-Terrorism Court in its order has observed that three cheques were issued by abductee, Thus, on the basis of material available on record, it is observed that offence is not triable by Anti-Terrorism Court. Trial Court, while refusing application for transfer the case has committed illegality and passed impugned orders mechanically.

10. For the above stated reasons, we have come to the conclusion that learned Anti-Terrorism Court has no jurisdiction to try the case. Consequently, criminal revision application is allowed with direction to the trial Court to transfer the case to the Court of Session, having jurisdiction in the matter. MWA/B-2/K Application allowed.