ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Misc. Appln. No. D-998 of 2018

D­­­­­­­­­­­ate                                       Order with signature of Judge

Present:

 Mr. Justice Muhammad Iqbal Mahar

 Mr. Justice Irshad Ali Shah

For hearing of main case

1.     For orders on MA No.6628/2018 (S/A)

2.     For hearing of main case

 

Date of hearing       14.02.2019

Date of order           21.02.2019

 Mr. A.R Faruq Pirzada Advocate for applicant/complainant

M/s  Ather Abbas Solangi and Safdar Ali G.Bhutto Advocates for private respondents

Mr. Zulfiqar Ali Jatoi, Additioinal PG for State

>>>>>>>…<<<<<<<<<

IRSHAD ALI SHAH J, The applicant by way of instant Criminal Miscellaneous Application u/s 561-A Cr.PC has impugned order dated 13.11.2018 passed by learned Judge, Anti-Terrorism Court-I, Sukkur, whereby he on application under Section 23 of Anti‑Terrorism Act 1997, transferred case of the applicant for its trial to Court of ordinary jurisdiction.

2.                The facts in brief necessary for disposal of instant Criminal Miscellaneous Application are that an FIR was lodged by applicant with Police Station Mehar, alleging therein that the private respondents with rest of the culprits after having formed an unlawful assembly and in prosecution of their common object have committed Qatl-e-Amd of Mukhtiar, Karamullah and Qabil Hussain as they were going to form “Tamoondar Council” (Council of Elders) of their community, which was disliked by Sardar Khan Chandio (Chief of Chandio Community). During course of investigation, respondents 2 and 3 sought for pre-arrest bail. On conclusion of investigation, the police submitted challan of the case before the learned Judge Anti-Terrorism Court at Naushahro Feroze by placing the names of respondents 2 and 3 in column No.2 of the charge sheet. The applicant by way of making an application probably under Section 193 Cr.P.C sought for joining of the respondents 2 and 3 as accused in his case. It was dismissed by learned Judge, Anti-Terrorism Court Naushahro Feroze vide his order dated 24.02.2018, which was impugned by the applicant before this Court by way of filing Criminal Miscellaneous Application No.D-179/2018. It was accepted by this Court vide order dated 29.06.2018 whereby the impugned order of learned Judge Anti-Terrorism Court Naushahro Feroze was set aside. Consequently, pre-arrest bail granted to respondent No.3                    (Burhan Chandio) on filing of Cr. Misc. Application No.D-187/2018 vide order dated 29.06.2018 was recalled while pre-arrest bail granted to respondent No.2 (Sardar Khan Chandio) was maintained. The orders passed by this Court as indicated above, were impugned by respondents 2 and 3 by way of filing Criminal Appeal No.382/2018 and Criminal Petition No.738/2018 before Honourable Supreme Court of Pakistan, those were disposed on 13.09.2018 with the following observation;

“After hearing the learned counsel for the parties, a consensus has been arrived at between the parties that the impugned Orders of the learned High Court dated 29.06.2018 passed in Cr. Misc. Application No.D-187/2018 and order dated 27.06.2018 passed in Cr. Misc. Application No.D-179/2018 are set aside. Similarly, both the Orders dated 24.02.2018 passed by the learned Judge, Anti-Terrorism Court, Naushahro Feroze (one relating to report under Section 173 Cr.P.C and the other relating to the release of Burhan Chandio) are also set aside. The matter shall be deemed to be pending before learned Judge, ATC, to whom the case has been transferred who shall consider all matters pending before it as raised by the learned counsel for the parties and the State and decide the same without being influenced by any earlier observation made by the learned Judge, ATC or by the learned High Court by way of the impugned Orders.”

 

3.                    In the meanwhile, the case of the applicant was transferred from Anti-Terrorism Court Naushahro Feroze to that of Anti-Terrorism Court-I Sukkur, who in start of argument framed three points for determination, which reads as under;

(i)        Whether the offence reported in FIR No.20/2018 PS ‘A’ Section Mehar, District Dadu, does not fall within the definition of Section 6 A.T.Act, 1997?

(ii)       Whether the placing of name of accused Sardar Khan in Column-II of challan and discharge of accused Burhan Khan U/s 173 Cr.P.C are justifiable?

(iii)      Whether accused Sardar Khan and Burhan Khan are entitled for the concession of pre-arrest anticipatory bail?

 

 4.                   Learned Judge, Anti-Terrorism Court-I, Sukkur on hearing of the parties passed the impugned order, the operative part whereof reads as under;

“Aggregating my discussion, I form my opinion that offence allegedly committed the by the accused persons, does not come within the ambit of Section 6 of A.T Act, 1997 and jurisdiction of this Court is barred. Only the offence of terrorism creating sense of fear and insecurity, helplessness even committed on the ground of enmity can be tried by this Court but this case is not of such nature. Therefore, restraining me to answer the remaining two points, I allow the application U/s 23 A.T Act, 1997 and transfer the case to the learned Sessions Judge, Dadu, in whose territorial jurisdiction, the offence had taken place. The accused persons present in the custody are remanded to their respective custody to be produced before the learned Sessions Judge, Dadu and accused persons present on interim pre-arrest anticipatory before this Court granted by learned Judge, Anti-Terrorism Court Naushahro Feroze, are directed to attend the Court of Sessions Judge Dadu, on 01.12.2018. Order accordingly.”

 

5.                    It is contended by learned counsel for the applicant that three innocent persons were done to death by the private respondents and others in a very brutal manner only for the reason that they stood against the hegemony of their ‘Nawab’ which constitute an act of terrorism, as such the case of the applicant was to have been tried by learned Judge Anti-Terrorism Court-I Sukkur. By contending so, he sought for setting aside of the impugned order with direction to learned Judge Anti-Terrorism Court-I Sukkur to proceed with the case in accordance with law. In support of his contentions, he relied upon cases of                Mst. Raheela Nasreen vs. The State and another (2002 SCMR 908), (2) Mirza Shaukat Baig and others vs. Shahid Jamil and others (PLD 2005 SC 530), (3) Kashif All vs. The Judge, Anti-Terrorism Court No.11 Lahore and others (PLD 2016 SC 951), (4)  Nazeer Ahmed and others vs. Nooruddin and another (2012 SCMR 517), (5) Muhammad Sajjad and others vs. Rab Nawaz and 2 others (2013 MLD 1599), (6) Nooruddin vs. Nazeer Ahmed and 4 others (2011 P.Cr. L J 1370), (7) Muhammad Irfan Tufail vs. inspector General of Police Punjab Lahore and 5 others (2011 P.Cr.LJ 1384), (8) Abdul Aziz vs. Muhammad Punhal and 2 others (2017 MLD 1321), (9) Bibi Zawar vs. Sessions Judge Quetta and 2 others                      (2017 P.Cr. L J 1371) and (10) Tanveer Hussain vs. The State and another (2018 P.Cr. L J Note 21).

6.                Learned Additional PG for State and learned counsel for the private respondents have sought for dismissal of the instant Criminal Miscellaneous application by contending that the deceased were done to death by their enemies in order to satisfy their long standing enmity with them, such act has got no nexus with terrorism or terrorist act. In support of their contention, they relied upon cases of Waris Ali and others vs. The State (2017 SCMR 1572), 2. Fazal Dad vs. Colonel (Rtd) Ghulam Muhammad Malik and others (PLD 2007 SC 571), 3. Bashir Ahmed vs. Muhammad Siddiq and others (PLD 2009 SC 11), 4. Umar Farooq and others vs. Judge Anti-Terrorism Court Mirpur Khas and others (2014 P.Cr. L J 1052) and (5) Hazoor Bux and another vs. The State and another (PLD 2012 Sindh-469).

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

8.                    Section 6 of the Anti-Terrorism Act of 1997, reads as under;

“6. Terrorism. --- (1) In this Act, “terrorism" means the use or threat of action where:

(a)   the action falls within the meaning of subsection (2), and

 

(b)   the use or threat is designed to coerce and intimidate  or overawe the Government or the public or a section of the public or community or sect [or a foreign government or population or an international organization] or create a sense of fear or insecurity in society; or

 

(c)       the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause [or intimidating and terrorizing the public, social sectors, media persons, business community or attacking the civilians, including damaging property by ransacking, looting, arson or by any other means, government officials, installations, security forces or law enforcement agencies.]

 

(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 damage 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;

 

 

9.                    In case of Kashif Ali (supra) in order to determine, whether an offence falls within the ambit of Section 6 of the Act or otherwise, it was observed by Hon’ble Apex Court that;

 

“it would be essential to have a glance over the allegations leveled in the FIR, the material collected by the investigating agency and the surrounding circumstances, depicting the commission of offence. Whether a particular act is an act of terrorism or not, the motivation, object, design or purpose behind the said Act has to be seen. The term "design" which has given a wider scope to the jurisdiction of the Anti-terrorism Court excludes the intent or motive of the accused. In other words, the motive and intent have lost their relevance in a case under Section 6(2) of the Act. What is essential to attract the mischief of this Section is the object for which the act is designed.”

 

10.                  From above, it is clear that in order to determine the application of Section 6 of the Act, the claimed motive was / is not of much importance but it would be the design (manner) which the culprit(s) chooses to achieve. In other words, if an offence is designed in such a manner that ultimate effect thereof would result in striking general public or those intending to do an unlawful act which the targeted person or person(s) did then such offence would squarely fall within mischief of Section 6(2) of the Anti Terrorism Act, 1997, as was further detailed by the Hon’ble Apex Court in the case of Kashif Ali (supra) by making the following observation;

“14. The contention of the learned Counsel for Respondent No.2 that the incident was a result of personal enmity would not exclude the case of the accused-Respondents from the mischief of section 6(2) of the Act. The manner in which the incident had taken place and the time of occurrence should be taken note of, the effect of which was to strike terror in the supporters / voters and general public, therefore, the offence squarely falls within the contemplation of section 6 (ibid). ….

 

11.                  In FIR of the present case, it is clearly disclosed by the applicant that the private respondents and others were having grudge against the deceased on account of formation of ‘Tamoondari Council’ (Council of Elders) seemingly to give an end to hegemony of their Sardar /Chief (Sardar Khan Chandio) and he in order to satisfy such grudge, arranged for attack upon the complainant party whereby three innocent persons lost their lives. The manner in which the private respondents and others have acted prima facie was not to settle some score or personal enmity with the complainant party but seems to leave a message to general public or to say the Chandio Community thereby conveying them the lethal consequences, if someone is found to be involved in formation of ‘Tamoondari Council’ (Council of Elders) against their Sardar/Chief. Such object prima facie was/is appearing from date, time and place of the incident, which the private respondents and others have chosen for committing the alleged offence, which obviously created a sense of insecurity and terror not only amongst the inhabitant of the neighborhood/locality/society, but amongst the entire Chandio Community, therefore, the act on the part of private respondents and others obviously was falling within ambit of Section 6 of the Anti‑Terrorism Act, 1997.

12.                  The case law which is relied upon by learned counsel for the private respondents is on distinguishable facts and circumstances. In case of Waris Ali and others (supra), the parties were having a blood feud since long and object to be achieved was to take revenge for the previous enmity. The instant case is not covering the previous grudge but something beyond that, the private respondents and others in order to safeguard their hegemony have arranged for death of the deceased. In case of Fazal Dad (supra) parties were disputed over possession of landed property. In the instant matter, there is no dispute between the parties over possession of landed property. In case of Bashir Ahmed  (supra) there was previous enmity between the parties. In the instant case the issue of hegemony is involved. In case of Umar Farooq (supra) there arose dispute between the workers of two rival political parties over installation of their party flags. In the instant case there is no political dispute between applicant and the private respondents on installation of their party flags. In case of Hazoor Bux (supra) simple case of intended theft led to murder of two persons. In the instant case no theft was intended but the deceased were done to death by the private respondents and others by resorting to indiscriminate violence, only to maintain their hegemony over brothery people.

 

13.                  In view of the facts and reasons discussed above, the impugned order could not be sustained; it is set aside with direction to learned Judge Anti-Terrorism Court-I Sukkur to proceed with the matter further in accordance with law.

14.                  Instant Criminal Miscellaneous Application along with listed application stands disposed of along with listed application in above terms.

Judge

Judge

ARBROHI