ORDER SHEET

ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

C.P.No.D-757 of 2012

Date of hearing

Order with signature of Judge

Present:

Mr. Justice Khadim Hussain Tunio,

Mr. Justice Irshad Ali Shah,

· For orders on office objection.

· For hearing of main case.

19.12.2018

Mr. Ali Nawaz Ghanghro, Advocate for the petitioner.

Mr.Rafique Ahmed Abro, Advocate for private respondents.

Mr.Khadim Hussain Khooharo, A.P.G for the State

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The petitioner/complainant by way of instant constitutional petition has impugned order dated 21.05.2017, passed by learned Judge, Anti Terrorism Court, Larkana, which reads as under;

“SIP Ghulam Shabir Janwary produced FIR bearing Crime No.48/2012 registered at P.S A-Section Shahdadkot on 01.05.2012 u/s 324, 114, 34 PPC alongwith P.S copy of application dated 15.05.2012, addressed to concerned Magistrate for return of FIR to him. From the bare contents of FIR no mention of offence of Terrorism as such the FIR is returned to SIO who presented the same before this Court”.

2. The facts in brief necessary for disposal of instant constitutional petition are that the petitioner/complainant lodged FIR with P.S A-Section Shahdadkot, which reads as under;

“Complaint is that my uncle Shafquat Ali belonged to Ahl-e-Shiyat. Manzoor Ahmed Solangi and others are his rivals. We have already lodged FIRs against them in that respect with P.S A-Section Shahdadkot, which has annoyed them a lot. Today, me, my uncle Shafquat Ali son of Ghous Bux by caste Haaro, r/o Dribh Muhalla Shahdadkot de-boarded from our motorcycle at Taxi Stand, Shahdadkot. There at about 10.00 a.m came four persons on two motorcycles, they were identified by us. On one motorcycle were Abdul Jabbar son of Azad Mengal with pistol and Ameer Jan son of Imdad Brohi empty handed and on other motorcycle Muhammad Nawaz son of Abdul Rasheed Solangi with K.K and Manzoor Ahmed son of Abdul Rasheed empty handed, all residents of Shahdadkot. Out of them, Manzoor Ahmed said to others being armed with pistols that Shafquat Ali should not be spared and to be killed. At the instigation of Manzoor Ahmed, Abdul Jabbar fired at Shafquat Ali with intention to commit his murder, who by sustaining that fire fell down on the ground. Accused then fled away on their motorcycles towards Bagga road. We could do nothing being empty handed and due to fear. Shafquat Ali was found sustaining fire shot injury at his flank, was bleeding and was crying, he was referred to Taluka Hospital Shahdadkot for treatment and therefrom we took him to Larkana Hospital. After leaving Shafquat Ali at Larkana, I have come to lodge report that above named accused in furtherance of their common intention to settle their grudge which they are having on the account of lodgment of FIRs against them, have seriously injured Shafquat Ali and his condition still in danger. I am complainant and investigation be made”.

3. It is contended by learned counsel for the petitioner /complainant that; the learned Judge Anti Terrorism Court, Larkana ought not to have returned the FIR of the incident to the police, as the offence alleged was relating to sectarian violence and was triable by Anti Terrorism Court. By contending so, he sought for reversal of the impugned order.

4. Learned A.P.G for the State and learned counsel for the private respondents sought for dismissal of the instant constitutional petition by contending that no sectarian violence is involved in the incident and cognizance of the case has already been taken by Court of ordinary jurisdiction and such cognizance has not been challenged by the petitioner/complainant before any other forum. In support of their contention, they relied upon cases of Bashir Ahmed Vs. Muhammad Siddique and others (PLD 2009 SC-11) and , 2). Mazhar Vs. The State (PLD 2003 Lahore-267).

5. We have considered the above arguments and perused the record.

6. In the case of Muhabat Ali and another Vs. The State (2007 SCMR 142), the Honorable Supreme Court of Pakistan has laid down the principles to determine the act of terrorism to attract the provision of Section 6 of the Act of 1997, by making following observation;

"In order to determine as to whether an offence would fall within the ambit of section 6 of the Act, it would be essential to have a glance over the allegations made in the FIR, record of the case and surrounding circumstances. It is also necessary to examine that the ingredients of alleged offence have any nexus with the object of the case as contemplated under sections 6, 7 and 8 thereof. Whether the particular act is an act of terrorism or not, the motivation, object, design or purpose behind the said Act is to be seen. It is also to be seen as to whether the said act has created a sense of fear and insecurity in the public or any section of the public or community or in any sect."

7. While examining the case in hand on the above touchstone, it is manifest on the face of record that the offence was reported by the petitioner/complainant to police with delay of about 13 hours, though the alleged offence took place at urban area, the motive alleged in the FIR was that the accused were having rival religious thoughts. There was no deep rooted enmity between them. No issues or threat or over awe to society or section of people or public is alleged in the case. Therefore, the question of creating terror in the minds of general public apparently has not arisen in the instant case; as the alleged offence has got no nexus with the section 6 of Anti-Terrorism Act, 1997. In these circumstances, the learned Anti Terrorism Court, Larkana was right to return the FIR of the incident to police for its presentation before the Court of ordinary jurisdiction by way of impugned order, which is not calling for any interference by this Court, in exercise of its constitutional jurisdiction. Consequently, the instant constitutional petition is dismissed.

JUDGE