2022 P Cr (PLP)

MUHAMMAD IQBAL KALHORO, J.

Applicant is facing trial as an accused in Special Case No.381/2018 emanating from FIR No.54/2017, under sections 365-A, 302, 202, 34, P.P.C., read with section 7(a) and (e) Anti-Terrorism Act, (ATA) 1997 at Police Station F.B.I. Area, Karachi before Anti-Terrorism Court No.II, Karachi and by means of this application is seeking its transfer to the court of ordinary jurisdiction. Previous to this, he filed an application under section 23 of the ATA, 1997 for the same relief before the trial court, which has been dismissed by the impugned order dated 05.09.2019.

2. Complainant has reported in FIR an incident of abduction of his son namely Azfar Imtiaz Siddiqui from U-Turn Sohrab Goth Karachi on 05.04.2017 by unknown accused ostensibly for ransom, when he was travelling in his car with the applicant. This story in fact was revealed by the applicant in response to queries of SHO CPLC where he being friend of son of complainant and the last person to see him had gone with him for reporting the matter. However, subsequently the applicant was arrested on 23.02.2018 and on his pointation the dead body of Azfar Imtiaz Siddiqui was found buried in a house rented by him.

3. Learned defense counsel has submitted that provision of ATA, 1997 are not attracted in the present case; that ingredients of section 365-A, P.P.C. are completely missing as there is nothing on record to suggest that deceased was abducted or killed for ransom or any demand thereof was made from the complainant; that complainant in his evidence has admitted that he had not received a call for ransom from any one; that learned trial court has miss-appreciated facts of the case and has wrongly concluded that the alleged offence falls within the mischief of ATC, 1997; that in the case of Ghulam Hussain and others v. The State (PLD 2020 Supreme Court 61), the honourable Supreme Court has conclusively that howsoever gruesome an action may be, if it is committed on account of outcome of a personal enmity or private vendetta, it would not be characterized as terrorism and provision of ATA, 1997 would not be applicable. In support of his contentions, he has relied the case law reported in PLD 2020 Supreme Court 61, 2015 PCr.LJ 316, 2018, PCr.LJ 324, 2019 SCMR 1365, 2020 SCMR 78 and 2019 SCMR 1362.

4. On the other hand. learned Special Prosecutor Rangers (Sindh), Additional Prosecutor General Sindh and learned counsel for the complainant have opposed this application and submitted that challan has been submitted among other, under section 365-A, P.P.C. so also the charge has been framed under said provision of law, which is exclusively triable by the Anti-Terrorism Court; that the applicant in his confession before the SSP under section 21-H, A.T.A., 1997 has admitted that deceased was abducted and done to death for ransom, which prima facie attracts provisions of said act.

5. We have heard the parties and perused the record including the case law cited at the bar and agree with contention of learned defense counsel that the Honorable Supreme Court in the case of Ghulam Hussain and others (supra) has conclusively determined definition of terrorism and has eloquently elaborated what action or threat of an action constitutes terrorism with reference to section 6 of ATC, 1997. In paragraphs 10 and 11 of the judgment has recalled all the precedent cases available on either side of divide defining constituents of terrorism in the background of section 6 of A.T.A., 1997. And finally after an erudite discussion in paragraphs 13, 14 and 15 examining, among others, preamble to said law and jurisdiction of Anti-Terrorism Court under section 12 of said Act coupled with definition of scheduled offence in relation to the Third Schedule to the said Act has declared in paragraphs 16 that "...for an action or threat of an action to be accepted as terrorism within the meaning of section 6 of the Anti-Terrorism Act, 1997 the action must fall in subsection (2) of section 6 of the said Act and the use or threat of such action must be designed to achieve any of the objectives specified in clause (b) of subsection (1) of section 6 of that Act or the use or threat of such action must be to achieve any of the purposes mentioned in clause (c) of subsection (1) of section 6 of that Act. It is clarified that any action constituting an offence, howsoever grave, shocking, brutal, gruesome or horrifying, does not qualify to be termed as terrorism if it is not committed with the design or purpose specified or mentioned in clauses (b) or (c) or subsection (1) of section 6 of the said Act. It is further clarified that the actions specified in subsection (2) of section 6 of the Act do not qualify to be labelled or characterized as terrorism if such actions are taken in furtherance of personal enmity of private vendetta." This has left no opacity to understand that merely creation of fear or insecurity in the society as a result of an action or threat of such an action is not by itself terrorism unless it is seen or shown that the motive or intention or design behind the action or threat of such action was to create fear or insecurity in the society, and that an action or its threat would not be terrorism when fear or insecurity is just an unintended consequence of a crime. Further an action, howsoever grave, shocking, brutal, gruesome or horrifying may be or it may fall under subsection (2) of section 6 of the Act, it would not qualify to be termed as terrorism if it is not committed with the design or purpose specified or mentioned in clause (b) or (c) of subsection (1) of section 6 of the said Act or if it is taken in furtherance of personal enmity or private vendetta. And in such event, a court of ordinary jurisdiction will have authority to try the case against the accused.

6. Notwithstanding, a reading of the Third Schedule reflects that besides the cases involving offenses constituting terrorism as defined above, an Anti-Terrorism Court has been conferred jurisdiction to try all those cases involving heinous offenses, which otherwise do not fall in the definition of terrorism, for speedy trial of such offences. The honorable Supreme Court while dealing with such category of the cases has held in paragraph 13 of the judgment as under:- "

13. A careful reading of the Third Schedule shows that an Anti-Terrorism Court has been conferred jurisdiction not only to try all those offences which attract the definition of terrorism provided by the Act but also some other specified cases involving heinous offences which do not fall in the said definition of terrorism. For such latter category of cases it was provided that although those offences may not constitute terrorism yet such offences may be tried by an Anti-Terrorism Court for speedy trial of such heinous offences. This distinction between cases of terrorism and cases of specified heinous offences not amounting to terrorism but triable by an Anti-Terrorism Court has already been recognized by this Court in the cases of Farooq Ahmed v. State and another (2020 SCMR 78), Amjad Ali and others v. The State (PLD 2017 SC 661) and Muhammad Bila v. The State and others (2019 SCMR 1362). It has been clarified by this Court in those cases that such specified heinous offences are only to be tried by an Anti-Terrorism Court and that court can punish the person committing such specified heinous offences only for commission of those offences and not for committing terrorism because such offences do not constitute terrorism. For the purposes of further clarity on this issue it is explained for the benefit of all concerned that the cases of the offences specified in entry No. 4 of the Third Schedule to the Anti-Terrorism Act, 1997 are cases of those heinous offences which do not per se constitute the offence of terrorism but such cases are to be tried by an Anti-Terrorism Court because of their inclusion in the Third Schedule. It is also clarified that in such cases of heinous offences mentioned in entry No. 4 of the said Schedule an Anti-Terrorism Court can pass a punishment for the said offence and not for committing the offence of terrorism. It may be pertinent to mention here that the offence of abduction or kidnapping for ransom under section 365-A, P.P.C. is included in entry No. 4 of the Third Schedule and kidnapping for ransom is also one of the actions specified in section 7(e) of the Anti-Terrorism Act, 1997. Abduction or kidnapping for ransom is a heinous offence but the scheme of the Anti-Terrorism Act, 1997 shows that an ordinary case of abduction or kidnapping for ransom under section 365-A, P.P.C. is merely triable by an Anti-Terrorism Court but if kidnapping for ransom is committed with the design or purpose mentioned in clauses (b) or (c) of subsection (1) of section 6 of the Anti-Terrorism Act, 1997 then such offence amounts to terrorism attracting section 7(e) of that Act. In the former case the convicted person is to be convicted and sentenced only for the offence under section 365-A, P.P.C. whereas in the latter case the convicted person is to be convicted both for the offence under section 365-A, P.P.C. as well as for the offence under section 7(e) of the Anti-Terrorism Act, 1997. The same may also be said about the other offences mentioned in entry No. 4 of the Third Schedule to the Act pertaining to "Use of firearms 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", Firing or use of explosive by any device, including bomb blast in the court premises". "Hurt caused by corrosive substance or attempt to cause hurt by means of a corrosive substance" and "Unlawful possession of an explosive substance or abetment for such an offence under the Explosive Substances Act, 1908 (VI of 1908)". Such distinction between cases of terrorism and other heinous offences by itself explains and recognizes that all heinous offences, howsoever serious, grave, brutal, gruesome, macabre or shocking, do not ipso facto constitute terrorism which is a species apart. Through an amendment of the Third Schedule any heinous offence not constituting terrorism may be added to the list of offences which may be tried by an Anti-Terrorism Court and it was in this context that the Preamble to the Act had mentioned "Whereas it is expedient to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences........" In the above paragraph, it has been clearly explained that an Anti-Terrorism Court has jurisdiction to try the heinous offences mentioned in entry No.4 of the Third Schedule in addition to the offenses constituting terrorism. But in the first category of cases it can punish the accused only for commission of those offences and not under ATA, 1997 for committing terrorism. Further it has been held that the cases of heinous offences specified in entry No.4 of the Third Schedule to the Anti-Terrorism Act, 1997 are cases of those offences which do not per se constitute the offence of terrorism but such cases are to be tried by an Anti-Terrorism Court because of their inclusion in the Third Schedule. While specifically mentioning offence of abduction or kidnaping for ransom, it has been stated that such offence under section 365-A, P.P.C. is included in entry No.4 of the Third Schedule and simultaneously is one of the actions specified in section 7(e) of the Anti-Terrorism Act, 1997. It follows therefore that whether it is an ordinary case of abduction or kidnapping for ransom under section 365-A, P.P.C. or kidnapping for ransom is committed with the design or purpose specified in clause (b) or (c) of subsection (1) of section 6 of the A.T.A., 1997, which will be an act of terrorism attracting section 7(e) of the said Act, the jurisdiction to try the same will lie only with an Anti-Terrorism Court. In the former case the accused is to be convicted and sentenced only for the offence under section 365-A, P.P.C. whereas in the latter case he will be convicted both for the offence under section 365-A, P.P.C. as well as for the offence under section 7(e) of the A.T.A., 1997.

7. With this scheme in mind, we have attended to the case of applicant. First Information Report is blind qua identity of the accused and is in fact based on narrative disclosed by applicant himself which however subsequently turned out to be misrepresentation. Applicant himself and co-accused Aasif Usman, a police official, who needed some money, hatched a conspiracy to abduct the deceased with an obvious reason to extort ransom. But on the caution of applicant qua revelation of his identity after his release, they changed their plan and instead decided to do away with the abductee, the motive nevertheless remained same. They executed their plan with this motive in mind and buried the body in a house rented by the applicant. However, the motive part could not materialize before subsequently things spilled over into bitterness between applicant and co-accused Aasif Usman when applicant on suspicion was arrested initially but he (Aasif Usman) did not help him out as promised and instead issued him threats. And why this plan was contrived at the first place is because the deceased had disclosed before the applicant, which they found tantalizing to go after him, that he wanted to invest 8/9 crores (80/90 million) in Bahria and Fazahia projects. All these facts which prima facie constitute an offense under section 365-A, P.P.C. have been revealed by the applicant himself in his confession before the SSP, Saddar Division, District South, which is relevant under section 21-H of A.T.C., 1997 and can be relied upon.

8. As against it, the entire emphasis of learned defense counsel to defeat jurisdiction of the Anti-Terrorism Court is on evidence of the complainant admitting that he had not received a call for ransom after missing of his son, which per him takes the case off the ambit of section 365-A, P.P.C. making it a simple murder case triable by the court of ordinary jurisdiction. If agreed, this approach would manifestly tend to overlook revelations made by the applicant in his confession regarding motive part i.e. extorting ransom behind commission of the alleged offense and its legal consequences. At this juncture when only complainant's evidence, who oblivious of real motive behind abduction of his son has merely reported the matter to the police, is on record, and the trial is yet to unfold, and the confession to be examined to evaluate its evidentiary value and its impact on factual merit of the case, it would be premature to hold that the case does not fall under section 365-A, P.P.C. and the Anti-Terrorism Court has no jurisdiction. This has brought us to an inevitable conclusion that application in hand for transfer of the case to the court of ordinary jurisdiction on the ground as stated above at this point of time must fail and is dismissed accordingly. The trial shall continue and only after it is established unimpeachably through the evidence of remaining witnesses that constituents of section 365-A, P.P.C. are lacking, the trial court may proceed to exercise its jurisdiction under section 23, A.T.A., 1997 or if so advised, the applicant may invoke the said jurisdiction for the same relief, which shall however be independent of this order. The application is disposed of in above terms. SA/S-101/Sindh Application dismissed.