2001 P Cr (PLP)

GHULAM MAHMOOD QURESHI, J.‑‑‑ Through this common judgment we propose to dispose of Writ Petitions Nos. 16678 of 1999, 16083 of 1999 and 231 of 2000 as common question of law and fact is involved in all the three writ petitions.

2. The main Writ Petition bearing No. 16678 of 1999 was admitted to regular hearing to consider the point that the petitioner cannot be tried by Anti‑Terrorist Court constituted under the Anti‑Terrorism Act, 1997, as the offence in question is not a scheduled offence. The case subject‑matter to the Constitutional petition has been sent to the Special Court constituted under the Anti‑Terrorism Act, 1997. Before entrusting this case to the said Court Provincial Government appointed one‑man Tribunal consisted of Mr. Kazim Ali Malik, Sessions Judge, Mianwali, who held the petitioner and other members of police party guilty and submitted report. On the basis of the abovesaid report F.I.R. No.178 of 1999, dated 23‑6‑1999 under sections 302, 201, 148, 149 and 197, P.P.C. read with sections 6, 7 and 9 of Anti‑Terrorism Act, 1997 was registered at Police Station Mangtanwala, District Faisalabad. The prominent feature of the case is that there was an alleged encounter between the deceased and the police. The distinctive characteristic of the case is that no police personnel was injured or killed, while five persons who were killed in consequence of encounter, had allegedly committed two dacoities earlier and they were accused in F.I.R ‑No.137 of 1999 and F.I.R. No.139 of 1999, dated 17‑5‑1999 under section 395, P.P.C. registered at Police Station Mangtanwala.

3. Mt. Nazeer Ahmad Ghazi, Advocate learned counsel for the petitioner .has argued that the contents of the F.I.R. do not constitute the offence which brings the case of the petitioner within the jurisdiction of the Court of respondent No. 1 as the same are not scheduled offences. It is further argued that the provisions of sections 6, 7 and 9 and the Schedule attached to the Anti‑Terrorism Act has no nexus with the circumstances of the case and the above sections have been inserted with mala fide intention.

4. Criminal Miscellaneous No.73 of 2000, submitted on behalf of legal heirs of the persons who were killed in police encounter was allowed vide order, dated 23‑2‑2000 and they were impleaded as respondents in the main petition. Mr. Muhammad Anwar Sipra. Advocate, learned counsel for the legal heirs of the applicants has tried to argue that the case of the accused police officials .was rightly sent to the Anti‑Terrorist Court being act of terrorism.

5. Learned Assistant Advocate‑General has argued that in view of the provisions of sections 6, 7 and 38 of the Anti‑Terrorism Act, 1997 the offences are triable by Special Court constituted under the said Act and this petition is not maintainable.

6. Admittedly the offence in question is not scheduled offence nor offences under this Act.

7. To better appreciate the arguments advanced by learned counsel for the parties we would like to reproduce the contents of section 6, which are as under: "

6. Terrorist act:‑‑‑ 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."

8. Though terrorism has not been defined in the Act but the definition given as under:‑‑ "'terrorist act' has the meaning assigned to it in section 6." While scheduled offence has been defined as under:‑‑ "'scheduled offence' means a terrorist or sectarian related offence as set out in this Act or the Schedule hereto." In Muhammad Afzal and others v. S.H.O. and others 1999 PCr.LJ 929, it was observed as under:‑‑ "Terrorism may be defined as use of violence or terror, or threat of violence against a section of population, an establishment institution to attain objectives of that organization. These objectives could be political, socio‑economic, ethnic, ideological or religious."

9. During arguments, the learned A.A.G. has admitted that the above offences are not scheduled offences and has tried to argue that the same is covered under section 6 of the Act. This argument has got no force for the simple reason that under section 5 of the Anti‑Terrorism Act, it is the duty of the Police Officer, or member of the armed forces, or civil armed forces, who is present or deployed in any area may, after giving sufficient warning, use the necessary force to prevent the commission of terrorist acts or scheduled offences, and in so doing shall, in the case of an officer of the armed forces or civil armed forces, exercise all the powers of a Police Officer under the Code. It is for the trial Court to decide whether the police officials involved in this case, while performing their duty were legally justified to commit the act attributed to them or whether the alleged police encounter was fake or otherwise.

10. For the reasons discussed above, Constitutional Petitions Nos. 16678 of 1999 and No.16083, of 1999 are allowed. Resultantly assumption of jurisdiction by the Special Court in the matter is declared to be without lawful authority. The prosecution is directed to submit the cases before the appropriate Sessions Court having jurisdiction in the matter.

11. Writ Petition No.231 of 2000 is dismissed. N.H.Q./M‑442/L Order accordingly.