IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Revision Appln.No. D-13 of 2018

 

 

Date of hearing

 

Order with signature of Judge

 

                                      Present:.

                                                 Mr. Justice Khadim Hussain Tunio,

          Mr. Justice Irshad Ali Shah,

 

 

·                      For orders on office objection as flag “A”

·                      For orders on M.A.No.5107/2018.

·           For hearing of main case.

 

Date of hearing :    04.12.2018

Date of decision:    19.02.2019

                   Mr. Habibullah G. Ghouri, Advocate for applicants

Mr. Sharafuddin Kanhar, A.P.G

Complainant Ashiq Ali Samo in person.

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O R D E R

 

Irshad Ali Shah, J;- The applicants by way of instant criminal revision application has impugned order dated 15.10.2018, passed by learned Judge Anti-Terrorism Court, Larkana, whereby their application u/s 23 of Anti-Terrorism Act, 1997 for transfer of their case to court of ordinary jurisdiction was dismissed with the following observation;

“No doubt, FIR was lodged U/Ss 302, 114, 34, 338-B, 337-H(2) PPC, which offences are triable by the Court of Sessions. After lodging of FIR, the copy was sent up to the concerned Court of Civil Judge & Judicial Magistrate, Larkana and was not sent to this Court for cognizance. However, after investigation, Section 386 PPC was added on the basis of statements U/S 164 Cr.PC, whereby the witnesses have deposed that about three months prior to incident, the accused Ashiq Ali Jatoi came at the house of complainant situated at Ayoub Colony and demanded Bhatta of Rs.5000/- on the ground that he used to receive such amount of Bhatta from each Artist. The Sections 6 and 7 of Anti Terrorism Act were also added, which are triable by this Court and challan was submitted in Court accordingly. Hence, without leading evidence on record it cannot be adjudicated at this stage that no case of Bhatta is made out even though such fact is not mentioned in FIR. Thus, the application filed U/S 23 Anti-Terrorism Act 1997 for transfer of case to ordinary Court merits no consideration at this stage, therefore, the same is hereby dismissed”.

 

 

2.                          The narration of the facts is well disclosed in FIR which reads as under;

“Complaint is that Mst.Samina daughter of Iqbal by caste Samo r/o Ayoub Colony, Larkana, aged about 20/22 years was my wife, she was singer/artist. She was running pregnancy of eight months. On account of circumcision ceremony of sons of Niaz Hussain Junejo, my wife Mst.Samina, me and my friend Mumtaz Ali son of Samandar Ali Magsi, r/o Shahdadkot, went at village Kanga through our driver Barkat Ali son of Houte Khan Samo, r/o 1st Family Line, Jacobabad. The program was arranged at plot of Irshad Ali Jatoi in village Kanga. My wife Mst.Samina as usual was signing a song at Stage, while we were sitting on front chairs. The bulbs were glowing, at about 10.30 p.m, there came accused Tariq Ali son of Muhammad Yousif by caste Jatoi, r/o village Kanga, Taluka Larkana, with two unknown culprits, whose faces were open and could be identified, if are seen again, they were armed with pistols, they by pointing their pistols asked my wife Mst.Samina that she may sing a song in standing position. On that my wife Mst.Samina told to them that she is running pregnancy as such she could not sing a song in standing position. On hearing so, they asked my wife Mst.Samina that if she would not sing a song in standing position, then she may be ready for death. At the instigation of unknown culprits, accused Tariq Ali Jatoi fired at my wife Mst.Samina when she was giving instructions to his co-artist/associates. My wife Mst.Samina sustained fire shot injury on her back which crossed through her chest. She by raising cries fell down. We raised cries and then accused went away by making aerial firing. We could do nothing being empty handed. Mst.Samina was found unconscious, she was taken to Causality Hospital at Larkana through Car where she died at 11.15 p.m. I related the incident to SHO P.S Kanga on phone. Then we arranged for postmortem on dead body of Mst.Samina through the police. It was told to us by the lady doctor that baby in womb of Mst.Samina has also died. Now I have come at P.S to lodge report that accused Tariq Ali Jatoi with two unknown culprits have killed my wife as she was not singing a song in standing position as per his choice and baby in her womb has also died. I am complainant and action be taken”.

 

3.                On investigation, the applicant was reported upon by the police to face trial before Anti-Terrorism Court, Larkana, for offence punishable u/s 302, 337-H(2), 338-B, 386, 114, 34 PPC r/w Section 6/7 of ATA Act, 1997.

4.                At trial, the applicants by way of making an application under section 23 of ATA Act, 1997 sought for transfer of their case to the competent Court of ordinary jurisdiction, their such application was dismissed by learned Judge, Anti-Terrorism Court, Larkana, by way of order, which the applicants have impugned before this Court by way of instant criminal revision application, as stated above.

5.                It is contended by learned counsel for the applicants that it was simple murder case which took place without any                pre-mediation or planning. It has been put within the schedule of Anti-Terrorism Act, 1997 by the police, in excess of its authority by inserting Section 386 PPC and 6/7 of Anti-Terrorism Act, 1997 without lawful justification. By contending so, he sought for reversal of the impugned order with direction that the case of the applicants to be tried by the Court of ordinary jurisdiction.

6.                Learned A.P.G for the State has sought for dismissal of instant criminal revision application by contending that the impugned order is well reasoned.

7.                The complainant has recorded no objection to transfer the case of the applicants to the court of ordinary jurisdiction by stating that there was no demand of ransom/Bhatta by the applicants and this penal section has been applied by the police in case of its own accord malafidely by way of his further statement and 161 Cr.PC statements of the witnesses. By stating so, he filed his written statement to such effect.

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

9.           At the outset, we would say that there are certain offences the happening whereof themselves make them triable by the Special Court while there are other (ordinary crimes) the fate thereof is dependant upon defined terms of design or purpose thereof.

10.              Perusal of the record shows that the incident has taken place during course of stage performance by deceased Mst.Samina. The FIR of the incident does not contain any of the penal section which may put the incident within the ambit of Terrorism or Terrorist Act. It is, prima facie, matter of record that the penal sections, which have put the incident/offence within ambit of Anti-Terrorism Act, have been included by the police subsequently, on the basis of further statement of the complainant and 161 Cr.PC statements of the witnesses. Here, we would say that there are certain offences which, squarely, fall within schedule of Act while there are other (ordinary crimes) the fate thereof is dependant upon defined terms of design or purpose thereof.

11.                      Prima facie, it is undisputed that inclusion of scheduled offence (386 PPC) is based on subsequent statement (s) of complainant and witnesses which, allegation of demand of “Bhatta” on the part of applicant is disowned by complainant by way of filing his statement before this Court, therefore, very root of impugned order has been shaken. In that changed situation, the impugned order could not be sustained however, we refrain ourselves from making any comments on legality of changed position and consequences thereof rather would leave it open to be attended by trial Court. Accordingly, impugned order is set aside with direction to learned trial Court to pass fresh order while taking into count the totality of changed situation. Needless to add that since the question of jurisdiction is always decisive towards legality of a decision, hence the trial Court may call complainant and witnesses so as to examine genuineness or otherwise of their statements towards demand of Bhatta which a court, while taking cognizance, can competently do.

                    

12.              The instant criminal revision application is disposed of in above terms.

 

                                                                                            JUDGE

                                                               JUDGE