2002 PLP 1225 (SCMR)

Laws Cited

Representation

• Khan Muhammad Vehniwal, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Petitioner.
• Chaudhry Afrasiab Khan, Advocate Supreme Court and Anwar H. Mir, Advocate-on-Record for Respondents Nos.3 to 8.
• Date of hearing: 22nd March, 2002.
• ----S.6 [as substituted by Anti-Terrorism (Amendment) Ordinance (XXXIX of 2001)) & S.23---Penal Code (XLV of 1860), Ss.302/324/148/149-- Constitution of Pakistan (1973), Arts. 185(3.) & 199---Constitutional petition before High Court---Transfer of case to regular Court---Murder of Advocate in Court vicinity and injuring Assistant Sub-Inspector of Police with fire arms---Special Court rejected transfer application of accused, but High Court accepted their Constitutional petition and withdrew the case from Special Court and transferred the same to Sessions Judge---Validity---Alleged murder of Advocate in Court vicinity, who was in his robe, had been committed in a wanton, reckless and brutal manner, and one Assistant Sub-Inspector of Police had been injured by means of the fire-arms---Deceased Advocate was on his way to Court to conduct trial of a murder case, while Assistant Sub -Inspector of Police was going to get his statement recorded in a criminal case---Occurrence was the result of indiscriminate firing causing sensation and wave of panic, which amounted to sense of insecurity not only amongst a section of public, but community of Advocates as well---Gravity of the offence could not be diminished or minimized merely on the ground that alleged occurrence had not taken place exactly within the Court premises-- Examination of provisions of S.6(i)(b), (2)(a)(m)(n) would render irresistible conclusion that alleged occurrence fell within the ambit of S.6 of Anti -Terrorism Act, 1997---Invocation of Constitutional jurisdiction by filing Constitutional petition by accused after recording of statements of six witnesses in the case demonstrated propensity to get the trial prolonged for reasons best known to them---Contents of F.I.R. had neither been read properly nor understood in its true perspective, which had resulted in serious miscarriage of justice on the one hand and had protracted the trial on the other without any fault of the affected party---Impugned order could not be termed as speaking one, but was perfunctory having been passed in a cursory manner by ignoring the objects and reasons for the enactment of Anti- Terrorism Act. 1997---High Court had not taken into consideration previous orders passed in this regard by High Court, which had resulted in confusion and serious miscarriage of justice---Supreme Court converted the petition into appeal and accepted the same and set aside the impugned order.
• Ch. Muhammad Akram, Advocate Supreme Court for the State.
• 2. Briefly stated the facts of the case are that Zia Ullah (petitioner) got lodged F.I.R. bearing No.125, dated 30-3-2000 at Police City Chiniot, alleging therein that while he was proceeding alongwith his father Hameed Ullah, Advocate High Court (deceased), Attaullah and Hidayatullah towards Court and reached at Wakilon Wali Gali near Municipal Committee when Shaukat Hayat, Aslam Khan, Amir Abdullah, Amanullah, Arif Masood, Sanaullah and Zulfiqar emerged at the scene duly armed with pistol and started indiscriminate firing as a result whereof Mr. Hameed Ullah, Advocate was killed and Akbar Khan, Assistant Sub-Inspector of Police sustained injuries who was present there to get his statement recorded before the learned trial Court. A case was accordingly registered under sections 302, 324, 148 and 149, P.P.C. and challan was submitted in the Anti-Terrorism Court, Faisalabad. An application was moved by the respondents that the alleged occurrence took place due to personal enmity and thus the case being outside the purview of Anti-Terrorism Court be transferred to learned District and Sessions Judge, Jhang. The said application was rejected by means of a comprehensive order dated 22-9-2001 which was assailed before learned Lahore High Court, Lahore by means of writ petition bearing No. 18526 of 2001 which was accepted vide judgment impugned and case was withdrawn from the Anti-Terrorism Court, Faisalabad and transferred to learned Sessions Judge, Jhang, hence this petition.
• 3. We have heard at length the learned counsel on behalf of the parties and have carefully examined the entire record. Let us mention here at the outset that the impugned order cannot be termed as speaking one but on the contrary it is perfunctory and appears to have been passed in a cursory manner by ignoring the objects and reasons for the enactment of the Anti -Terrorism Act, 1997. The alleged murder was committed in a wanton, reckless and brutal manner and resultantly learned Advocate who was in his robe was done to death in Court vicinity. The gravity of the offence could not be diminished or minimized merely on the ground that alleged murder was riot committed exactly within the Court premises as pressed time and again by the learned counsel for the respondents. It is to be noted that one A Assistant Sub-Inspector of Police was seriously injured by means of fire arms. We are not having the slightest doubt while holding that the alleged occurrence must have caused fear, panic and wave of sensation and thus the matter squarely falls within the ambit and jurisdiction of Special Court. The contents of F.I.R. have neither been read properly nor understood in its true perspective which resulted in serious miscarriage of justice on the one hand and protracted the trial on the other without any fault of the affected party. It is worth mentioning that the statements of about six witnesses have been recorded and thereafter invocation of Constitutional jurisdiction by filing writ petition by the respondents demonstrates propensity to get the trial prolonged for the reasons best known to them. It is not conceivable that on the one hand the prevailing judicial system is blamed for inordinate delay but when a serious attempt is made for the expeditious disposal of the case B the affected parties tried their best to create numerous hurdles under the garb of law to get it delayed. The case in hand can be cited as a classic example for such trend. The learned Sessions Judge is Presiding Officer of the Special Court constituted under the Anti-Terrorism Act, 1997 and his judgment can be assailed before High Court and ultimately this Court, hence the question of any prejudice does not arise. In our considered view no bar whatsoever has been imposed under the Anti-Terrorism Act, 1997 that such cases could not have been tried by the Special Court. Mr. Hameed Ullah, Advocate was on his way to Sub-Divisional Court Chiniot to enter appearance in a murder, case and Akbar Khan, Assistant Sub-Inspector of Police was going to get his statement recorded in a criminal case got registered under sections 302, 324, 148 and 149, P.P.C. It is an admitted feature of the case that indiscriminate firing was made which caused the fateful occurrence and created sensation and wave of panic which amounts to sense of insecurity not only amongst a C section of public but community of Advocates as well. We have given a careful consideration to the relevant provisions of the Anti-Terrorism Act, 1997 and we are of the view that if the accumulative effect of the provisions as contained in sections 6(i) (b), 6 (2) (a) (m) and (n) is examined the only irresistible conclusion would be that the alleged occurrence falls within the ambit of section 6 of Anti-Terrorism Act, 1997. It is observed with grave concern that the learned Division Bench has ignored order dated 18-6-2001 passed by a learned Single Bench of the same High Court and relevant portion whereof is reproduced hereinbelow for ready reference:--
• 4. We have examined the case-law as cited at the bar by the learned counsel-for the respondents. In so for as the dictum as laid down in case titled Abdul Karim v. State (1999 MLD 3236) is concerned at is not applicable being distinguishable as in the said case there was police encounter but neither any police officer was killed nor injured while one of the accused was killed by police and thus the alleged encounter was a bit suspicious. Besides that it escaped from the notice of learned counsel for respondents that section 6 of the Anti-Terrorism Act, 1997 was substituted by the Anti- E Terrorism (Amendment) Ordinance (XXXIX) 2001, on 15th August, 2001 which is capable enough to meet all sort of such eventualities. Similarly the dictum as laid down in case titled Bashir Ahmad v. Naveed Iqbal (PLD 2001 SC 521) cannot be made applicable in this case for the simple reason that the alleged sprinkling of the spirit on the person of victim was within the boundary wall of the appellant's house which was not a public place and accordingly the elements of striking terror or create sense of fear and insecurity were found missing. Insofor as the case in hand is concerned a learned Advocate who was in his robe and on his way to Court to conduct trial of a murder case was murdered in a brutal and merciless manner and an Assistant Sub-Inspector of Police was injured within the Court vicinity which resulted in terror, fear 'and sensation. It is to be noted that order dated 22-9-2001 passed by learned trial Court is well reasoned which has been set aside without any lawful justification. As mentioned hereinabove the impugned judgment is without any reasoning and the learned Division Bench did not bother to have gone through the relevant provisions of the Anti-Terrorism Act, 1997 and the objects and reasons for its enactment. Besides that the learned Division Bench has not taken into consideration the previous orders passed in this regard by learned Lahore High Court, Lahore for the reasons best known to them.

Headnotes / Summary

Judgment & Decree