2019 PLP 763 (YLR)

ABDULLAH BALOCH, J.

This order disposes of instant Constitutional Petition filed by the petitioners/accused Muhammad Anwar son Muhammad Khan and Qahir Khan against the order dated 18.10.2017 (hereinafter referred as impugned order") passed by the learned Special Judge, Anti-Terrorism Court-I, Quetta, (hereinafter referred as, "the trial Court") whereby the application under Section 23 of Anti-Terrorism Act filed by the petitioners was rejected.

2. Brief facts arising from the instant petition are that complainant Muhammad Javaid lodged FIR No.47 of 2017 with Police Station Civil Line, under Sections 147, 148, 149, 324, P.P.C., read with Section 7 ATA 1997,with the averments that on 11-03-2017 at 11:30 A.M. he along with his father Muhammad Zaman, elder brother Muhammad Dawood and paternal cousins Muhammad Asif and Shamsullah after proceeding before Additional Sessions Judge-VII, Quetta were going to a showroom of his father's friend at Adalat Road, Quetta, meanwhile, a vehicle bearing No.AYX-918 appears, wherein Muhammad Anwar, Mohbat Khan, Pervez Khan and Qahir Khan were present armed with pistols and daggers and Muhammad Anwar and Muhammad Khan started firing upon them with the intention to commit their murder, due to firing of Muhammad Anwar, Muhammad Dwood sustained injuries on his right thigh while Muhammad Asif received bullet injury to his right leg, as result whereof, they fell down and due to firing of Muhammad Khan, Muhammad Zaman sustained injuries on his right leg, Qahir Khan, Mohbat and Pervaiz attacked upon them with daggers, on attack of dagger of Qahir Khan his father Muhammad Zaman received severe injuries and on attack of dagger of Muhammad Khan his cousin Muhammad Asif received injuries on his thigh and he himself also received sharp injuries on his fingers and thereafter all the assailants fled away in their vehicle from the scene, motive behind the incident was alleged dispute of ancestral property at Killi Kotwal Siraghurgi.

3. After usual investigation the challan was submitted in the Court of Special Judge, ATC-I, Quetta and during the pendency of trial, the petitioners filed an application under Section 23 of Anti-Terrorism Act for transfer of case to ordinary Court having jurisdiction. After hearing the parties, the learned Special Judge, ATC-I, Quetta rejected the application of petitioners vide order dated 18- 10-2017.

4. The learned counsel for the petitioners contended that the impugned order passed by the learned Special Judge, ATC-I, Quetta is against the law and natural justice and also suffers from misreading, none reading and misappreciation of law; that the instant case does not fall within the ambit of Section of Anti-Terrorism Act as defined in Section 6 of ATC, in fact there is a civil dispute between the parties; that there is no direct evidence available on record against the petitioners to implicate them for commission of offence of terrorism; that whatsoever been alleged does not disclose the act of terrorism i.e. fear and insecurity among the general public; that the learned trial Court has failed to consider the above aspects of the case, which resulted in miscarriage of justice with the petitioners.

5. Conversely, the learned State counsel assisted by the counsel for the complainant strongly opposed the arguments so advanced by the learned counsel for the petitioners and contended that the petitioners have committed an offence of terrorism made unlawful assembly and made firing in a thickly populated area upon the complainant party, which has also created sense of fear and insecurity among the general public; that whatsoever has been committed by the petitioners was result of plan and designed; that the learned trial Court after proper appreciation of evidence has rightly rejected the application of the petitioners, which is not open for interference of this Court; that the acts so committed by the petitioners fall within the meanings of Section 6 of ATA Act, 1997, hence the petition is liable to be dismissed.

6. We have heard the learned counsel for the parties and perused the record minutely, which reveals that the complainant party registered FIR No.47 of 2017 with Police Station Civil Line, Quetta under Sections 147, 148, 149, 324, P.P.C. and Section 7 of ATA against the complainant with the averments as stated in the para 2 above.

7. The complainant party mainly alleged firing and assault through pistol and dagger by the petitioners and also alleged the motive behind the incident as civil dispute over the ancestral property falling in Killi Kotwal, Siraghurgi. It is pertinent to mention here that in the FIR nowhere it has mentioned that any aerial firing was made by the petitioners to create sense of fear and insecurity among the general public. Even otherwise, from the perusal of all material nothing has come on record to suggest that the petitioners have planned and desired the commission of offence, which created sense of fear and insecurity among the general public and the motive alleged behind the incident by the complainant itself was a civil dispute, which resulted, the commission of offence on the fatal day. However, the Court has to see whether the crime so committed by the petitioners fall within the provisions of "terrorism" or otherwise for convenience the relevant provision of subsection (2) of section 6 of terrorism are reproduced as under:-- "Section-6" 1) . "2). An "action" shall fall within the meaning of subsection (1), if it: (a) involves the doing of anything that causes death; (b) involves grievous violence against a person or grievous bodily injury or harm to a person; (c) involves grievous damages to property, [including government premises, official installations, schools, hospitals, offices or any other public or private property including damaging property by ransacking, looting or arson or by any other means]; (d) involves the doing of anything that is likely to cause death or endangers a person's life; (e) involves kidnapping for ransom, hostage-taking or hijacking; [(ee) involves use of explosives by any device including bomb blast [or having any explosive substance without any lawful justification or having been unlawfully concerned with such explosive.] (f) incites hatred and contempt on religious, sectarian or ethnic basis to stir up violence or cause internal disturbance; [(g) involves taking law in own hand, award of any punishment by an organization, individual of group whatsoever, not recognized by the law, with a view to coerce, intimidate or terrorize public, individuals, groups, communities, government officials and institutions, including law enforcement agencies beyond the purview of the law of the land.] (h) involves firing on religious congregations, mosques, imambargahs, churches, temples and all other places of worship, or random firing to spread panic, or involves any forcible takeover of mosques or other places of worship; (i) creates a serious risk to safety of public or section of the public, or is designed to frighten the general public and thereby prevent them from coming out and carrying on their lawful trade and daily business, and disrupts civil life; (j) involves the burning of vehicles or any other form of arson; (k) involves extortion of money (bhatta) or property; (l) is designed to seriously interfere with or seriously disrupt a communications system or public utility service; (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; (n) involves serious violence against a member of the police force, armed forces, civil armed forces, or a public servant; (o) involves in acts as part of armed resistance by groups or individuals against law enforcement agencies or (p) involves in dissemination, preaching ideas, teachings and belief as per own interpretation of FM stations or through any other means of communication without explicit approval of the Government or its concerned department".]

8. Bare perusal of the above provision of subsection (2) of Section 6 of Anti-Terrorism Act the contents of FIR does not disclose any act of terrorism. In this regard we are supported by judgment of Hon'ble Supreme Court of Pakistan in the case of "Mohbat Ali v. State" 2007 SCMR 142, wherein it was held that:-- "In order to determine as to whether offence would fall within the ambit of S.6 of Anti Terrorism Act, 1997, it would be essential to have a glance over allegations made in FIR, record of case and surrounding circumstances; it was also necessary to examine that ingredients of alleged offence had any nexus with the object of case as contemplated under sections 6, 7 and 8 of Anti-Terrorism Act, 1997

Whether a particular act was an act of terrorism or not, the motivation, object, design or purpose behind such act was to be seen and it was also to be seen as to whether such act had created a sense of fear and insecurity in public or any section of public or community or in any sect

Alleged offence took place because of previous enmity and private vendetta

Incident admittedly took place inside the fields of sugarcane and banana cultivated in jungle about 14/15 miles away from main road

Motive as alleged in FIR was also to be given specific attention which indicated that there was personal enmity between the parties over land and murder case of Haries of complainant

Intention of accused was not at all to create sense of insecurity or to destabilize public at large or to advance any sectarian cause

Design or purpose of offence as contemplated by provisions of S. 6 of Anti-Terrorism Act, 1997, was not attracted

Supreme Court converted petition by for leave to appeal into appeal and set aside the order passed by High Court

Supreme Court directed the Special Court to transmit record of the case to Sessions Judge for its disposal in accordance with law." (Bold added) And also in another case "Province of Punjab v. Muhammad Rafique and others PLD 2018 Supreme Court 178, it was held that:-- "Preamble of the Anti Terrorism Act, 1997 clearly indicated that the said Act was promulgated for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences

In cases of the terrorism, the mens rea should be an object to accomplish the act of terrorism and carrying out terrorist activities to overawe the state, the state institutions, the public at large, destruction of public and private properties, assaulting the law enforcing agency and even at the public at large in sectarian matters

Ultimate object and purpose of the offending act must be to terrorize the society but in ordinary crimes committed due to personal vendetta or enmity, such elements were always missing, so the crime committed only due to personal revenge could not be dragged into the fold of terrorism and terrorist activities." f. Constitution of Pakistan

Where any person was triable under the ordinary penal law then treating him under special law, not clearly applicable to him, would be a violation of the command of the Constitution. g. Interpretation of Statute

Whenever a penal statute required interpretation, it shall be interpreted in a way which favoured the accused person and not the prosecution or the State

Two interpretations of a statute should be interpreted in such manner that the interpretation favouring the accused should be adopted. "(Bold added)

9. In view of the above, provisions of law and settled principles the Hon'ble Apex Court, prima facie it appears that the case in hand does not fall within the meaning of terrorism, which is purely of personal vendetta, as admitted by the complainant himself, hence not triable by the Special Court. For the reasons discussed hereinabove, the petition is accepted and the impugned order dated 18-10-2017 is set aside with directions that the case file be transmitted from Special Judge ATC-I, Quetta to Sessions Judge, Quetta for trial in accordance with law. HBT/55/Bal. Petition accepted.