2016 P Cr (PLP)

Crime report bearing No. 582 of 2013 was registered initially under sections 324 and 34 with addition of offence under section 302 of The Pakistan Penal Code, 1860 (Act No. XLV of 1860) (hereinafter called "Act No. XLV of 1860") at Police Station Ratta Amral, Rawalpindi.

2. Report under section 173 of The Code of Criminal Procedure, 1898 (Act V of 1898) (hereinafter called "The Code") was submitted before the Court of Session at Rawalpindi with onward entrustment to a learned Additional Sessions Judge, Rawalpindi. The learned Court of ordinary jurisdiction concluded that the case is triable by the Court constituted under the provisions of The Anti-Terrorism Act, 1997 (XXVII of 1997) (hereinafter called "Act XXVII of 1997") and in pursuance of opinion sent reference to learned Sessions Judge, Rawalpindi and the learned Court of Session referred the matter to learned Anti-Terrorism Court, Rawalpindi who returned the same to the court of ordinary jurisdiction with the conclusion that the court of ordinary criminal jurisdiction cannot transfer the case to the Anti-terrorism court. Matter was examined by the Prosecution Branch and through opinion dated 12th of February, 2015, challan was directed to be sent to the court of ordinary criminal jurisdiction.

3. The petitioner being complainant of FIR is aggrieved of the opinion of Prosecution Agency and seeks its annulment.

4. Learned counsel for the petitioner contended that contents of FIR clearly reveal that case is triable by Anti-terrorism Court and opinion of Prosecution Branch is against the mandate of law. Elaborating the argument, it was submitted that there was specific accusation that assault was made upon complainant party as it was representing the accused of Shia sect involved in the occurrence of "Ashoor Day".

5. Controverting the arguments, learned counsel for the respondents Nos. 4 to 6 submitted that no exception can be taken to the opinion impugned holding that case is triable by the court of ordinary criminal jurisdiction as there is no material to suggest sense of fear or insecurity in the society. Further submitted that the learned Judge, Anti-terrorism Court, Rawalpindi rightly concluded that ordinary court cannot send the case to the court established under The Act XXVII of 1997.

6. The learned Law Officers endorsed the arguments canvassed by the learned counsel for the petitioner.

7. Question of competency of learned Sessions Judge to send the case to the Anti-Terrorism Court stands settled by the learned Division Bench of this Court through order dated 28th of January, 2015 while deciding Writ Petition No 254 of 2015 filed by the petitioner and as such it is not required to be examined.

8. Perusal of opinion assailed reveals that learned Law Officer concluded that keeping in view the contents of FIR, statements of witnesses under section 161 of The Code, it cannot be held that in view of occurrence (in which Mazhar Ali, brother of the complainant ultimately died), sense of fear and insecurity was created in society.

9. The word "Terrorism" has been defined in section 6 of The Act XXVII of 1997 highlighting the different eventualities falling within the mischief of expression under reference. Section 6 ibid is divided into three clauses (a), (b) and (c). In order to cover the case within the definition of terrorism, there must be use or threat of action. The word "action" has been defined in clause (a) read with subsection (2). To cover the case within the mischief of "Terrorism" in cases covered under clause (a), there is another pre-requisite, reference of which has been made in clause (b). Subsection (1) is to be read with clauses (a) and (b) in view of use of word "and" in clause (a). If any action or threat does not suggest any of the ingredient mentioned in clause (b), it would not be an act of terrorism despite attraction of subsections (1) (2) and clause (a) of section

6. However, clause (c) is an independent provision also defining terrorism. It is to be noted that after clause (b), the word "or" has been used clearly suggesting that any action mentioned in clause (c) would also be an act of terrorism and in order to apply clause (c), conditions mentioned in clause (b) are not required to be attracted.

10. Clause (c) of Section 6 deals with the eventuality of use or threat for the purpose of advancing a religious, sectarian cause etc. The words "or intimidating and terrorizing the public ......" added by The Act XX of 2013 in the clause are not to be read together with the expression " ...... for the purpose of advancing a religious, sectarian or ethnic cause". If any action or threat is covered in the later mentioned expression, it would be considered an act of terrorism despite non-attraction of amendment made through The Act XX of 2013.

11. Keeping in view the intention of legislature and scheme of section 6 of The Act XXVII of 1997, as discussed, now we will examine the facts of present case.

12. In order to attract section 6 ibid, allegations contained in the crime report and statements of witnesses recorded under section 161 of The Code are to be examined. According to the accusation contained in the FIR lodged by the petitioner, he along with his brothers, Mazhar Ali (deceased), Azmat Ali and sisters, Tahira Bano and Uzma Mubarik, Advocates (all Shia by faith), was coming back to his home after attending "Majlis-e-Aza" When unidentified assailants started firing causing injuries to Mazhar Ali who ultimately died. The petitioner and his two sisters are advocates by profession. It also specifically finds mentioned that attack was made upon complainant party as they are representing the accused belonging to Shia faith arrayed in the occurrence held on the day of "Ashoor".

13. In view of the above state of facts and law, prima facie, there was an action within the meaning of section 6(c) of The Act XXVII of 1997 for the purpose of advancing religious and sectarian cause. Opinion formulated by prosecution agency assailed by way of present writ petition is against the mandate of provision referred to and as such while accepting the writ petition, it is held that the case exclusively falls within the domain of the court constituted under the Anti-Terrorism Act, 1997 (Act XXVII of 1997).

14. The Prosecution Branch while observing codal and legal formalities shall submit Report under section 173 of The Code to the court of competent jurisdiction without loss of time. MH/A-151/L Petition allowed.