2023 PLP 10 (YLRN)

SYED ARSHAD HUSSAIN SHAH, C.J.

This Criminal Petition for Leave to Appeal arises out of impugned judgment dated 20.10.2020 passed by the learned Gilgit-Baltistan Chief Court in Criminal Revision No. 14 of 2020 whereby, Criminal Revision No. 14 of 2020 filed by the present petitioners was dismissed and judgment/Order dated 15.09.2020 passed by the learned Anti-Terrorism Court No. I G.B. in Criminal Miscellaneous No. 40 of 2020 was maintained.

2. Facts in brief are that present petitioners were booked in the FIRs Nos. 12/2020, 13/2020, 14/2020, 15/2020, 16/2020, 17/2020 and 18/2020 registered under sections 302/34/147/148/ 149, P.P.C. and 6/7 of the Anti-Terrorism Act, 1997 with Police Station Nomal District Gilgit on 25.05.2020. The situation which led to registration of these FIRs against present petitioners were that accused/petitioner No. 1 opened fire on deceased Farjat Hussain who got bullet on his back with the collusion of his co-accused Fakhar Alam while accused Fakhar Alam also opened fire on deceased Saleem Abbas with common intentions of killing them. Remaining co-accused/ petitioners also opened fire. As a result, Farjat Hussain and Saleem Abbas received bullet injuries and proceeded to Hospital and in mid way, Farjat Hussain expired while deceased Saleem Abbas expired in DHQ Hospital Gilgit. The case was to be proceeded by the learned Anti-Terrorism Court Gilgit. Meanwhile, the present petitioners filed Criminal Misc. Application No. 40/2020 under section 23 of the Anti-Terrorism Act, 1997 before the learned Anti-Terrorism Court No. 1 for transferring of the case to any ordinary Court of competent jurisdiction on the ground that the circumstances under which the incident took place did not attract sections 6/7 of ATA while these sections were inserted in FIR with mala fide intentions. The learned Anti-Terrorism Court, after adjudicating upon the matter, dismissed the application under section 23 of the Anti-Terrorism Act, 1997. Being aggrieved and dissatisfied with the judgment/order of the learned Trial Court, the petitioners approached the learned GB Chief Court by way of Cr. Revision No. 14/2020, which too met the same fate, hence the instant Cr. Petition for leave to appeal before this Court.

3. Learned counsel for present petitioners argued that in view of nature and circumstances prevailed with the incident, sections 6/7 of Anti-Terrorism Act, 1997 did not attract to the present case and it could have been transferred to any other Court of competent jurisdiction for adjudication, while the learned Courts below did not appreciate the nature and circumstances involved in the present case, hence the judgment/orders passed by the learned Chief Court was not sustainable in the eyes of law and was liable to be set aside on this score alone. Learned counsel for the petitioners next contended that sections 6/7 of ATA were inserted in the FIRs with mala fide intentions because the incident had taken place at Naltar Bala which is native village of petitioners, so the question of creating of terror, horror and fear at their own village did not arise. It was next contended that the incident took place at Naltar Bala while the FIRs lodgers belong to village Naltar Paine, hence it is beyond the imagination that fear and horror was created in Naltar Paine which could provide justification for insertion of sections 6/7 of ATA, while these material facts have altogether been ignored by the learned Courts below therefore, the judgments/orders passed by the learned Courts below were not sustainable and were liable to be set aside. It was next argued by learned counsel for petitioners that FIR lodgers forcibly entered in Naltar Bala with a mob equipped with arms who themselves created horror and fear in the locality, but Police Station Nomal extended mala fide favour to the FIR lodgers, as such the act(s) of creating horror and fear by FIR lodgers themselves could not be attributed to present petitioners so as to attract sections 6/7 of ATA. Learned counsel for petitioners further maintained that since judgments/orders of both the learned Courts below were a result of non-appreciation of correct circumstantial aspects of accident as well as misinterpretation of provisions of relevant law and prayed that the same may please be set aside by allowing the present petitioners to be tried by an ordinary Court of competent jurisdiction. On the other hand, learned Prosecutor General for State and learned counsel for the complainant in defense of the impugned judgment repudiated the arguments of the learned counsel for the petitioners on various factual and legal grounds and submitted that in view of situation prevailed with the incident, sections 5/7 of ATA were rightly inserted in the FIR. They further argued that the way, manner and circumstances which lead to the unfortunate incident created a wave of fear, terror and insecurity throughout Gilgit-Baltistan. It was further argued by learned Prosecutor General and counsel for the complainant that after accident, both the villages had become no go areas for the inhabitants inasmuch as it also resulted in attacking on the concerned police station, hence it was a fit case for insertion of sections 6/7 of ATA. Concluding their submissions, learned Prosecutor General and counsel for the complainant prayed that impugned judgments/orders of the learned Courts below may please be maintained to meet the ends of justice and equity.

4. We have given our anxious consideration to the arguments advanced by learned counsel for both the parties and have also gone through the record as well as impugned judgments/orders of the learned Courts below.

5. First of all, in order to thrash out the factual position of the case as to whether the circumstances which led to taking place of the unfortunate incident necessitated insertion of sections 6/7 of the Anti-Terrorism Act, 1997 or not. The facts and circumstances which resulted in occurrence of the untoward incident were reported to be playing of music by victim party in front of Masjid during prayer time where the petitioners' party tried to stop the victim party from playing the music during prayers time. This act of victim/complainant party enraged the petitioners to open indiscriminate firing which took away two lives. This unfortunate incident took place between people of two factions, one belonging to Shia and the other Suni sect. It would not be out of place to mention here that when we put a glance in the history of GB region, particularly with reference such incidents, it is noticed that this sort of incidents between these factions in GB region caused entrapping of entire society within no time which culminated into immediate reaction from both the sides resulting in losses of number of innocent people and property and created fear, horror, terror and insecurity amongst the general public in entire region. Not only the people of that particular area where such untoward incidents originated could come out from their homes, but the people of entire region belonging to all walks of life feared to come out from their homes so as to avoid loss to their lives and property besides creation of fear and hesitation in carrying out their routine business besides serious disturbance of civic life of citizens of Gilgit-Baltistan. As such, people of GB region have already witnessed loss of thousands of innocent people for no fault of their but due to the undesired acts committed by some miscreants. In the case in hand, perusal of file as well as in consideration of arguments advanced by counsel of both the parties, revealed that there was no previous enmity between the two groups which could provide justification for terming this unfortunate incident as result of their previous enmity between the parties. As far as contention of learned counsel for the petitioner that the incident took place in the native village of petitioners therefore, there cannot be a question of creation of terror, fear and insecurity at their own village is concerned, we are not convinced with his submissions. Though the incident took place in native village of petitioners, yet not between the people of their native village (Naltar Bala) alone or between the people of same sect, but the incident occurred between people of village Naltar Bala and Paine that too between people of two factions which, besides loss of two precious human lives, prompted fear, terror, resentment and insecurity amongst the people of both factions across GB coupled with serious disturbance of peaceful atmosphere and civic life of citizens of GB.

6. In the circumstances as explained herein above, whether commission of acts as of that done by present petitioners attracted provisions of Anti-Terrorism Act, 1997 or those provisions were inserted with ulterior motives as claimed by the petitioners, before we form our own opinion, it would be necessary to highlight the purpose and the object behind enactment of ibid Act and then to consult with the relevant provisions of ibid Act to reach to a just and fair conclusion. From decades, in Pakistan menace of terrorism has been a prime problem for the state to be curbed to save the life and property of citizens of Pakistan. Therefore, the Anti-Terrorism Act, 1997 was a significant measure of State towards dealing with and elimination of the menace of terrorism from the country. The intent and object of enactment of this Act has been manifested from its preamble, which provides as follows: "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. " Section 12 of the Anti-Terrorism Act, 1997 confers jurisdiction to try the scheduled offences exclusively on the Special Courts constituted under this Act. This Act, particularly with reference to definition of "terrorist acts" and with a view to achieve the object and purpose of promulgation of the Act, has undergone number of amendments, which would also be discussed in latter paras of this judgment. Initially in this Act, "terrorist act" was defined in Section 6 in the following terms: "Whoever, to strike terror in the people, or any section of the people, or to alienate any section of the people or to adversely affect harmony among different sections of the people, does any act or thing by using bombs, dynamite or other explosive or inflammable substances, or fire-arms, or other lethal weapons or poisons or noxious gases or chemicals or other substances of a hazardous nature in such a manner as to cause, or to be likely to cause the death of, or injury to, any person or persons, or damage to, or destruction of, property or disruption of any supplies of services essential to the life of the community or displays fire-arms, or threatens with the use of force public servants in order to prevent them from discharging their lawful duties commits a terrorist act." Under this Act, for commission of offences/acts set-forth in section 6 above, section 7 of the Act specified various punishments. Section 8 of the Act defined an offence regarding stirring up sectarian hatred and section 9 of the said Act provided for punishment for the offence under section

8. The Schedule of the said Act read as follows: "

1. Any offence punishable under this Act.

2. Any offence punishable under any of the following sections of the Pakistan Penal Code (Act XLV of 1860), namely:- (a) section 302, (i) if committed with a cannon, grenade, bomb, rocket or a light or heavy automatic weapon; (ii) if the victim is a member of police, armed forces or civil armed forces or is a public servant; (iii) if there is more than one victim; or (iv) the victim was subjected to cruelty, brutality, torture or burning; and (b) offences under sections 295-A, 298-A, 364, 364-A, 365, 365-A, 392 to 402 of the Pakistan Penal Code (Act No. XLV of 1860).

3. An offence punishable under sub-section (4) of section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance No. VII of 1979).

4. Any attempt or conspiracy to commit or any abetment of any of the aforesaid offences. " The core and essence or the pith and substance of a 'terrorist act' defined by this Act was striking terror in the people or any section of the people or alienating any section of the people or adversely affecting harmony among different sections of the people. The emphasis appeared to be on the gravity of the offence and its effect upon the general populace rather than on the actual motivation behind the act.

7. The definition of 'terrorist act' contained in section 6 above contained in the Act was subsequently amended through the Anti-Terrorism (Second Amendment) Ordinance, 1999 (Ordinance No. XIII of 1999). The new definition introduced through the above amendment reads as under: "A person is said to commit a terrorist act if he - (a) 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, does any act or thing by using bombs, dynamite or other explosive or inflammable substances, or such fire-arms or other lethal weapons as may be notified, or poisons or noxious gases or chemicals, in such a manner as to cause, or be likely to cause, the death of, or injury to, any person or persons, or damage to, or destruction of, property on a large scale, or a widespread disruption of supplies of services essential to the life of the community, or threatens with the use of force public servants in order to prevent them from discharging their lawful duties; or (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 harmony among different sections of the people; or (c) commits an act of gang rape, child molestation, or robbery coupled with rape as specified in the Schedule to this Act; or. (d) commits an act of civil commotion as specified in section 7-A." Through this amendment the focus on the effect of the action was extended to a potential or likely effect besides the actual effect of the action and the focal point still remained the effect of the action rather than the incentive or inspiration behind the same.

8. Subsequently, the Act of 1997 was amended through the Anti-Terrorism (Amendment) Ordinance, 2001 (Ordinance No. XXXIX of 2001) whereby, the Schedule of the Act containing various offences to be tried under the said Act was done away with and the term 'terrorist act' contained in section 6 of the Act was substituted and replaced by the term 'terrorism' with the following definition: "(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 (2) An "action" shall fall within the meaning of subsection (1), if it: (a) involves the doing of 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; (f) incites hatred and contempt on religious, sectarian or ethnic basis to stir up violence or cause internal disturbance; (g) involves stoning, brick-batting or any other form of mischief to spread panic; (h) involves firing on religious congregations, mosques, imambargahs, 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 the 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 communications 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.

9. From careful reading of the definition of "terrorism" provided in section 6 of the Anti-Terrorism Act, 1997, (Amendment) Ordinance, 2001 (Ordinance No. XXXIX of 2001) and keeping in mind the circumstances which led to the unfortunate incident, it is established without any shadow of doubt or hesitation that acts committed by present petitioners fit in subsection 1(i) of section 6 of Anti-Terrorism Act, 1997 thus fully attract section

6. Be that as it may, during the course of arguments, learned counsel for the present petitioners was repeatedly asked to satisfy the Court with factual, circumstantial and legal justifications whether the commission of criminal act by present petitioners did not attract subsection 1(i) of section 6, he could not convince the Court by justify his version so as to bring the act committed by present petitioners outside the definition of subsection 1(i) of section 6 of the ibid Act requiring trial by the Special Court(s) constituted under the Anti-Terrorism Act. Therefore, in this view of the matter, giving a direction to Special Court(s) to lay off its hands from trying the scheduled offences under the Act and to let the offences be tried by a ordinary Court of competent jurisdiction would be against the object and spirit of Anti-Terrorism Act, 1997, save otherwise provided for doing so in any other case(s) under any circumstances fit for exclusion of jurisdiction of Anti-Terrorism Court from that case(s). The way, manner and circumstances under which the present petitioners committed the crime and in view of aftermaths of the present incident, subsection 1(i) of section 6 of the Anti-Terrorism Act, fully attracts. Again for ease of reference, subsection 1(i) of section 6 of the Anti-Terrorism Act is reproduced below: (i) creates a serious risk to safety of the 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" We observe that the incident immediately after its occurrence created serious risk to safety of public and property which frightened the general public and prevented them from coming out and carrying on their lawful trade and daily business and disrupted the civic life of people of the concerned area in particular and other parts of GB region in general, which as explained in para 5 above, cannot be sustained by people of this region any more. Therefore, we hold that the acts committed by the present petitioners in the way and manner are the acts of "terrorism" fully attracting sub-section 1(i) of section 6 of the Anti-Terrorism Act and do not warrant for exclusion of jurisdiction of the learned Anti-Terrorism Act so as to leave them to be tried by a Court of an ordinary jurisdiction.

10. In addition to the above, it is further observed that transferring of cases from Special Courts constituted under the Anti-Terrorism Act, 1997 to other ordinary Courts on the directives of superior Courts on whims and wishes of accused party, save otherwise provided under any law or under special circumstances, would tend to defeat and spoil the very purpose and object of enactment of the Anti-Terrorism Act, 1997 which provides for the prevention of terrorism, sectarian violence and speedy trial of heinous offences. Therefore, in view of above legal position, the circumstances which culminated into the unfortunate offence and aftermath of the unfortunate incident, it would not be just and appropriate and against the spirit of the enactment of the Act to direct the Special Court(s) to lay off hands from exercising the jurisdiction and powers entrusted upon him by the ibid Act. Therefore, we do not find any legal or circumstantial justification to interfere with well reasoned and well founded judgments/orders of the learned Courts bellow.

11. In view of what has been discussed above, we do not find any illegality or infirmity in the impugned judgment which could call for interference of this Court hence, leave in the instant criminal petition for leave to appeal is refused. As a result, the impugned judgment dated 20.10.2020 passed by the learned GB Chief Court in Criminal Revision No. 14/2020 stands maintained. These were the reasons of our short order dated 13.03.2021 which is reproduced herein below: "Arguments pro and contra heard in detail. For the reasons to be recorded later, leave in the above Criminal P.L.A. No. 43/ 2020 is refused. The impugned judgment dated 20.10.2020 passed by the learned Gilgit-Baltistan Chief Court in Criminal Revision No. 14/2020 is maintained".

12. The assessment in this judgment is tentative in nature and shall have no effect on the trial before the learned Trial Court, if he arrives at any other conclusion on the basis of record and evidences to be led by respective parties. SA/40/GB Leave refused.