2018 P Cr (PLP)

ZAHEER-UD-DIN KAKAR, J.

This criminal revision petition has been filed against the order dated 02.6.2016 "the impugned order", passed by the Special Judge, Anti-terrorism Court-I, Quetta "the trial Court" where the application under Section 23 of Anti-Terrorism Act, 1997 (A.T.A., 1997) for transfer of the case to an ordinary court of criminal jurisdiction from Special Court was rejected.

2. Precisely stated, the facts of the case are that on.18.10.2011, the complainant lodged a case vide FIR No.205 of 2011, under sections 302, 147, 148, 149, P.P.C. at Shalkot Police Station, Quetta alleging therein that on the fateful day he was present on his duty. At about 11:50 a.m. he received information from his home that accused persons Mohabbat Khan, Salimullah, Kalimullah, Khalilullah, Khalil-ur-Rehman and Najibullah, who are his relatives came to his house and made firing as a result of which, his daughter namely Abrira aged about 16 years was seriously injured, later in time succumbed to injuries. The motive behind the act was abduction of Abrira in 2010 by the accused and her return by their (accused) mother. The persons nominated in the FIR were not arrested, thus, incomplete challan was submitted before the Court of Sessions Judge, Quetta. The proceedings of this case was stayed by this Court vide order dated 24.10.2014 till decision of the private complaint filed by the complainant.

3. Thereafter, Mst. Shani Qayum, the wife of (Abdul Qayum the complainant of FIR No.205 of 2011) filed an application under section 22-A, Cr.P.C. before the Court of Additional Sessions Judge-IV, Quetta for lodging of second FIR against the petitioners, but the trial Court rejected the application. The order upheld up to the Hon'ble Supreme Court. Thereafter, Mst. Shani Qayum filed a private complaint against the petitioners with the allegation of committing murder of deceased Abrira on account of honour killing.

4. On the complaint, the trial commenced and on 19.12.2013, the charge was framed by the Additional Sessions Judge-IV, Quetta to which the petitioner pleaded not guilty. Thereafter, the trial Court recorded statement of Mst. Shani and Dr. Ali Mardan, Medico-legal Officer. Thereafter, the complaint was transferred to the Anti-Terrorism Court-I, Quetta by the order of this Court. On 16.6.2015, Judge, Anti-Terrorism Court-I, Quetta framed charge under sections 302, 34, P.P.C. read with section 7 of ATA to which the petitioners pleaded not guilty and claimed trial. The trial Court recorded statements of complainant Mst. Shani and Medico Legal Officer.

5. During pendency of the case, an application under section 23 of A.T.A., 1997 was moved on behalf of accused (petitioners). The trial Court through order dated 02.6.2016 rejected the application, hence this petition.

6. Learned counsel for the petitioners contended that the impugned order passed by the trial Court is against law and facts; that the trial Court has mis-appreciated the facts of the case; that the provisions of section 6, A.T.A., 1997 not attracted in this case, thus, the same is liable to be set aside and the case be transferred to an ordinary Court of criminal jurisdiction. In support of his contention, the learned counsel for the petitioner has placed reliance upon PLD 2016 SC 195.

7. On the other hand, the learned State counsel assisted by the learned counsel for respondent No. 1 opposed the petition and supported the impugned order.

8. We have heard, the learned counsel for the parties and have gone through the available record. In order to determine, as to whether an offence would fall within the ambit of section 6 the Anti-Terrorism Act, 1997, it is essential to have a glance over the allegations made in the private complaint, filed by Mst. Shani Qayum, in which she specifically stated that her daughter was murdered in the name of honour killing by the petitioners, material collected during the investigation and surrounding circumstances. It is also necessary to examine whether the ingredients of alleged offence have any nexus with the object of the case as contemplated under sections 6, 7 and 8 thereof. Whether a particular act is an act of terrorism or not, the motivation, object, design and purpose behind the said act is to be seen. It is also to be seen as to whether the said act has created a sense of fear and insecurity in the public or in a section of the public or community or in any sect, there is no cavil to the proposition that where action results in striking terror or creating fear, panic, sensation, helplessness and sense of insecurity among the people in the particular area it amounts to terror and such an action squarely falls within the ambit of section 6 of the Anti-Terrorism Act, 1997 and shall be triable by a Special Court, constituted for such purpose. On the above touchstone, if one goes through the record of the case, one could reach to an irresistible conclusion that the case of the petitioners does not fall within the ambit of Anti-Terrorism Act, 1997. It is settled law that while deciding the question of jurisdiction, it would be necessary to examine that the ingredients of alleged offence has any nexus with the object of Anti Terrorism Act, 1997. The Hon'ble Supreme Court of Pakistan, in its landmark judgment titled as Khuda-e-Noor v. The State reported in PLD 2016 SC 195 defined section 6 of the Anti-Terrorism Act, 1997 and declared that the honour killing does not fall within the ambit of section 6 of ATA and transferred the case from the Anti-Terrorism Court to a Court of Ordinary jurisdiction. The relevant para 4 of the said judgment is reproduced herein below: "The case in hand was a case of a private motive set up in the FIR and during the trial the motive setup in the FIR was changed by the prosecution and an element of honour killing was introduced but even that did not change the character of the offence which was nothing but a private offence committed in the privacy of a home with no design or purpose contemplated by section 6(1)(b) or (c) of the Anti-Terrorism Act, 1997. We have, thus, entertained no manner of doubt that the allegations leveled against the appellant and his co-accused in the present criminal case did not attract the jurisdiction of an Anti-Terrorism Court, the learned Sessions Judge. Mastung was not justified in transferring the case to an Anti-Terrorism Court and the High Court was also not legally correct to dismissing the appellants' revision petition. This appeal is, therefore, allowed, the impugned order passed by the learned Sessions Judge, Mastung as well as the High Court of Balochistan, Quetta set aside and it is declared that the appellants' case is to be tried by a Court of ordinary jurisdiction."

9. Keeping in view, the dicta as laid down in the aforementioned judgment, we have no hesitation to reach at the irresistible conclusion that ingredients of section 6, ATA are not attracted in this case. Thus, the criminal revision petition is allowed and the impugned order dated 02.6.2016, passed by the trial Court is set aside. The Special Case No.102 of 2015 pending adjudication before the Anti-Terrorism Court-I, Quetta is transferred to the Court of Additional Sessions Judge-IV, Quetta, with direction to decide the case according to law, preferably within a period of three months. JK/105/Bal. Petition allowed.