2004 PLP 1075 (MLD)

SH. HAKIM ALI, J.‑‑‑Beginning with the arguments of the learned counsel appearing on behalf of the petitioners, the same are summarized in the following words:‑‑ "To bow one's head before the superior is a sign of respect. To say or stress upon one's demand is a gesture of disrespect. To talk about for the enhancement of pay is an offence. To present the case of Clerks with meager pay is an act of terrorism."

2. Narrating the occurrence, a high ranking officer of Irrigation Department, namely: Syed Akhtar Hussain, Chief Engineer, Bahawalpur Zone, got an F.I.R. registered with Police of Civil Lines Police Station, Bahawalpur on 4‑6‑2003, against the petitioners as well as other accused. The information goes on telling the story of incident in these words that on 4‑6‑2003 at about 2‑10 P.M. the informent was ‑busy in his office, performing the official works, while Brigadier (retired) Farrukh Hussain of District Chakwal and Syed Muhammad Shah D.S.P. (retired) of District Lahore, were present in his office in connection with some official work when Farrukh‑ur‑Rehman Azhar, Divisional President of APCA alongwith 18 persons (detailed description is noted in the F.I.R.) and 8 unknown persons entered into the room after opening the door forcibly and started dirty abusive language. As per F.I.R, the informant tried to pacify them but this act had provoked and they tried to assault him. As per informant, they had entered into the office to commit his murder. The accused had also tried to break the table of office of the aforesaid informant due to which the electricity wires were disconnected. After hearing the hue and cry, witnesses (description of whom, has been given in the F.I.R.) had intercepted and had saved the life of the informant by closing the door of the office inside. According to the version of the F.I.R. the person who had gathered had formed an unlawful assembly and tried to attack the petitioner again but due to the arrival of employees (details whereof car, be found in the F.I.R.) the informant was saved by` closing the door. As the accused remained unsuccessful, so they continued to raise the slogans. After the police reached at the spot, the accused, above mentioned, decamped.

3. The police after having registered the above said F.I.R., found, prima facie, Commission of offences under sections 353, 427, 148, 149, 186, 452, 506, P.P.C. Some of the accused who were arrested by the police were brought to the learned Judicial Magistrate 1st Class, Bahawalpur for grant of their judicial remand from 7‑6‑2003 to 30‑6‑2003.

4. The accused were heard as well as the State which had appeared to support the case of the police but the learned Magistrate on 7‑6‑2003, after having found the offences except section 452, P.P.C., mentioned in the F.I.R. bailable, directed their release upon .bail, while section 452, P.P.C. was found inapplicable to the facts, and ordered its, deletion. After the deletion of section 452, P.P.C., the learned Magistrate directed the release on bail 'of the accused subject to furnishing of their security bond amounting to Rs.30,000 with one surety in the .like amount to the satisfaction of that Court. This bail order passed by a competent Court provoked the information as well as irked the Police and they immediately acted to counter it by adding section 7 of Anti‑Terrorism Act, 1997 to the offences allegedly committed by the accused. Thus, the file instead presenting to the learned Magistrate was presented to the learned Judge of Anti‑Terrorism Court, Bahawalpur on 9‑6‑2003. While the accused persons were already in custody with the Police. The learned Judge, Anti‑Terrorism Court, Bahawalpur granted the judicial remand of the accused from 9‑6‑2003 to 22‑6‑2003 through a separate order entertaining the challan and declaring the alleged prima facie Commission of the offences under clauses (m) and (n) of section 6(2) of Anti Terrorism Act, 1997. So, this order, dated 9‑6‑2003 passed by learned Judge, Anti‑Terrorism Court has been assailed in this writ petition.

5. The learned counsel while arguing the case has submitted that the contents of F.I.R. even if be accepted true and correct, for the sake of arguments, do not attract the provisions of section 6 or 7 of the Anti‑Terrorism Act, 1997. It has further been forcefully argued that the transmission of the case from the ordinary criminal Court to the Court of learned Judge, Anti‑Terrorism Court was a mala fide move without any lawful justification and, therefore, the order, dated 7‑6‑2003 passed by District Police Officer and .its confirmation by learned Special Judge by declaring the applicability of section 7 of Anti‑Terrorism Act, 1997 to be justified on 9‑6‑2003, be declared illegal and without lawful authority.

6. The learned Assistant Advocate‑General, Mr. Ahmed Mansoor Chishti, appearing on behalf of the State has vehemently supported the case of the respondents. According to the learned Assistant Advocate -General, it was a serious matter as the public servant was attacked and restrained from performing his public duty. Therefore, the transfer of case from ordinary criminal Court to that of Anti‑Terrorism Court was legally justified.

7. We have considered the arguments of the learned counsel appearing on behalf of the parties and have perused minutely the record of the case.

8. The contents of the F.I.R. as have been narrated in the above noted para, clearly depict that the ingredients of section 6 were not attracted to facts of the case. Section 6 of the Anti Terrorism Act, 1997 contains 7 sub sections. While defining the word "terrorism", the Act has envisaged the three situations. firstly, (a) when the use or threat of action falls within the meaning of subsection (2) of section 6 of the Act, or (b) the use or threat is designed to, coerce or 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. From the deeper examination of these wordings of this section, the use or threat of action must be to coerce or intimate or overawe the Government. There is nothing in subsection (b) to suggest that the public servant is also included in it. While clause (c) of subsection (1) of section 6 is clearly not applicable to the facts of this case. So far as clause (a) of subsection (1) of section 6 is concerned, the word has been defined in subsection (2) of section 6 of the Anti‑Terrorism Act, 1997. The words used in sub‑clause (m) and (n) of subsection 2 of section 6 of the Anti‑Terrorism Act, 1997 as relied upon by the learned Judge, Anti -Terrorism Court are to be examined to see as to whether these were applicable to the facts of the case or not Words used are as under:‑‑ (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. In both clauses (m) and (n) the word "serious" is an important one, which had not been used without its beneficial mode. The definition of the words serious has also been provided by clause (w) of section 2 of the aforesaid Act, which defines it as "dangerous to life or property". It is an admitted fact as is evident and revealed from the facts in the F.I.R. that the alleged accused were having no weapon of any kind in their hands but had used only the abusive language which could not be termed as a serious one, attracting the provisions of section 6 of the Anti- Terrorism Act, 1997. According to the information given by the informant in the F.I.R, the accused were provoked `when the informant had allegedly tired to advise them. All the efforts‑stated in the F.I.R. are stated to be an attempt only. From the bare reading of the F.I.R., it does not appeal to the sense and cannot suggest that serious coercion or intimidation of a public servant had allegedly occurred at the time of alleged occurrence. No harm having been caused to the informant or to any other person to his life and property, it could not give an impression or create any apprehension in the public, for the Commission of an act of a serious nature, inviting the applicability of the word "terrorism". As stated by the learned counsel for the petitioner, the representation of the Clerks' Association had infuriated superior officer of the Organization and that had led to an exchange of hot words and altercation which could not be considered and fall within the definition and clause o: terrorism.

10. Moreover, the forwarding of the case from the ordinary criminal Court to that of Anti‑Terrorism Court was without assigning any reason and had been clearly a motivated action on the part of police, at the time and stage particularly when bail was granted to the accused, and section 7 Anti‑Terrorism, Act, 1997 was added, it gives a clear impression of mala fide on the part of the police who had added the section merely to satisfy the desire of vengeance of a superior official of a Government department who was annoyed due to the representation of the office bearers of APCA. The impugned order, dated 9‑6‑2003 having been passed without assigning any sound reasons for entertaining the case in tie Court of Anti‑Terrorism, cannot be, maintained and sustained by us. Therefore, we declare it illegal and without lawful authority Consequently the case is to return and tried by the ordinary Court of criminal jurisdiction. With these observations, the writ petition is accepted. However, it may be clarified here that the observations or remarks, should not be used and the mind of the trial Court shall not be prejudiced while deciding the case, which should be finalized upon its own merits. N.H.Q./M‑61/L Petition accepted.