IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

C. P No. D- 1683 of 2017

Crl. Misc. Application No. D – 930 of 2017

Present:-

Mr. Justice Muhammad Iqbal Mahar

Mr. Justice Irshad Ali Shah

Data of hearing. 28.02.2019

Date of decision. 28.02.2019

Mr. Hadi Bux Bhatt, Advocate for the petitioner in C.P No.D-1683/2017

Mr. Habib-ur-Rehman Shaikh Advocate for applicant in Cr. Misc. Application No.D- 930/2017

Mr. Abdul Rehman Kolachi, Deputy Prosecutor General

O R D E R

Irshad Ali Shah, J; The facts leading to passing of this order are that an FIR with regard to murder of Mst. Nazia Kausar and Irshad Ali coupled with baby Tanzila under allegation of ‘Karap’ was lodged, on behalf of State by SIP Mumtaz Hussain Mari with Police Station Pir Wasan. After due investigation, the petitioner and applicant were reported upon by the police to face trial for the above said offence before the Judge, Anti‑Terrorism Court, Khairpur, they by way of filing their separate applications under section 23 ATA, 1997, sought for transfer of their case to the competent Court of Ordinary jurisdiction for its trial in accordance with law, which were dismissed by learned Judge, Anti-Terrorism Court Khairpur vide his order dated 11.08.2017 with the following observation;

“in the present incident accused persons committed three murders of deceased namely Mst. Nazia Kausar, Irshad and one baby Tanzila with fire arm weapons and out of them one victim baby Tanzila was minor aged about 8/9 months and due to such act of accused persons panic, terror and sense of insecurity created in the locality hence Section 6 of ATA, 1997 fully attracted and this court is competent to proceed with the case.”

3. The dismissal of their applications the applicant and petitioner have impugned before this Court by way of filing an application under Section 561‑A, Cr.P.C and Constitutional petition under Article 199 of the Islamic Republic of Pakistan, 1973, those now are being disposed of by this Court through single order.

4. It is contended by learned counsel for the applicant and petitioner that the incident has taken place inside of the house which is not a public place, the incident was sudden in its nature, it has created no insecurity amongst the public, two separate FIRs one by Muhammad Rafique (Crime No.101/2017 of P.S Pir Wasan) and another by Mst. Rubina Shaheen (Crime No.115/2017 of P.S Pir Wasan) have already been lodged by the relative of the said deceased and cognizance of such cases has already been taken by the Magistrate having jurisdiction and such cases now are pending adjudication before the Court of ordinary jurisdiction. By contending so, they sought for transfer of the case of the applicant and petitioner to the competent Court of ordinary jurisdiction for its trial in accordance with law, in order to avoid conflicting judgments.

5. Learned DPG for the State has sought for dismissal of the instant criminal miscellaneous application and Constitutional petition by supporting the impugned order by contending that the offence which the applicant and petitioner has committed is heinous in nature and it has created insecurity amongst the local inhabitants.

6. We have considered the above argument and perused the record.

7. Admittedly, three separate FIR(s) of the incident have been lodged with P.S Pir Wassan, one on behalf of the State and others by the individuals. It has come on record that the FIRs lodged by the individuals were recommended by the police to be cancelled under ‘C’ class, such recommendation was not accepted by learned Magistrate having jurisdiction and he then took the cognizance of the incident, such cognizance obviously is not impugned by either of the party before any other forum and such cases now are pending adjudication before the competent court of ordinary jurisdiction. It is true that three persons (male, female and a baby) have been done to death, on the basis of allegation of ‘Karap’, but there could be made no denial to the fact that the incident has taken place inside of the house which is not a public place and there is nothing on record which may suggest that it was preplanned incident, which may call for its adjudication by the Court constituted under the provisions of Anti-Terrorism Act, 1997.

8. In case of Province of Punjab through Secretary Punjab Public Prosecution Department and another Vs. Muhammad Rafique and others (PLD 2018 SC-178), it has been held by the Honourable Apex Court that;

“----S. 6 & Preamble---Cases not attracting the provisions of Anti-Terrorism Act, 1997---Scope---Personal vendetta or enmity---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”.

9. For what has been discussed above, the impugned order is set aside. Consequently, the case of the applicant and petitioner is directed to be transferred by learned Judge, Anti-Terrorism Court Khairpur to the competent Court of ordinary jurisdiction for its disposal in accordance with law.

10. The instant Criminal Miscellaneous Application and Constitutional Petition stand disposed of in above terms.

Judge

ARBROHI