Order Sheet
IN THE HIGH COURT OF SINDH BENCH
AT SUKKUR
C. P. No.
D – 1665 of 2018
Cr. B. A. No. D – 517 of 2018
Cr. B. A.
No. D – 586 of 2018
Present.
Mr.
Justice Naimatullah Phulpoto &
Mr. Justice Zulfiqar Ali Sangi.
Date of hearing: 21.01.2020
Date
of Order: 21.01.2020
Mr. Irshad Hussain Dharejo assisted by Mr. Irfan
Ahmed Baloch, Advocates for petitioner in CPD-1665/2018 and for applicant /
accused in Cr.B.A.No.D-586/2018.
Syed Jaffar Ali Shah, Advocate for applicant /
accused in Cr.B.A.No.D-517/2018.
Mr. Zulfiqar Ali Jatoi, Addl. P. G and Mr. Abdul
Rahman Kolachi, D. P. G.
O R D E R
NAIMATULLAH PHULPOTO, J.
Through the instant Constitution Petition, petitioners Parvez Ali, Lal Gul,
Deedar and Meeral accused have called in question order dated 12.05.2016 passed
by learned Judge, Anti-Terrorism Court, Khairpur, in Special Case No.27/2013,
whereby learned trial Court while deciding an application under Section 23 of
Anti-Terrorism Act, 1997, held that this is the case to be tried under the
provisions of Anti-Terrorism Act, 1997. Notice of this petition was issued to
the respondents. In the connected bail applications complainant Abdul Ghafoor
appeared before the Court on 22.11.2018 and requested for time to engage the
counsel and time was granted to him. Thereafter, complainant did not appear.
2. Brief
facts leading to the filing of the petition are that complainant Abdul Ghafoor
lodged his report at Police Station, Kumb on 16.05.2013 at 1900 hours alleging
therein that accused persons committed murder of Advocate Shamsuddin in his
house near Kumb for taking revenge of Feroz Gul son of accused Lal Gul. It is
further alleged in FIR that accused had created terror at the time of
commission of the offence. Complainant lodged FIR against the accused under
Sections 302, 452, 337-H(2), 148, 149, PPC and 7 Anti-Terrorism Act, 1997. After
usual investigation, challan was submitted against the accused under Sections
302, 452, 148, 149, 337-H (2) PPC and 7 Anti-Terrorism Act, 1997. Thereafter,
accused persons moved an application under Section 23 of ATA before the trial
Court for transfer of the case to the Court of ordinary jurisdiction, but it
was declined vide order dated 12.05.2016.
3. M/s
Irshad Hussain Dharejo and Syed Jaffar Ali Shah, counsel for the petitioners /
accused mainly contended that learned Judge, Anti-Terrorism Court has no
jurisdiction to try the case as offence has been committed due to enmity and
inside the house. It is further argued that element of terrorism is missing in
this case. In support of submissions, reliance is placed upon the case of Waris
Ali and 5 others V/S The State (2017 SCMR 1572) and unreported judgment dated 30.10.2019 passed by Hon’ble Supreme Court in Criminal
Appeals No. 95 and 96 of 2019, Civil Appeal No. 10-L of 2017 and Criminal
Appeal No. 63 of 2013 in the cases of Ghulam Hussain etc. v. The State etc.
4. Mr.
Zulfiqar Ali Jatoi, learned Additional Prosecutor General concedes to
contention of learned advocate for accused that it is the case of the dispute
between the parties over previous murder and incident had occurred inside the
house. It is further submitted that element of terrorism is missing in this
case. Learned Additional P.G recorded no objection for transfer of case to the
Court of ordinary jurisdiction for trial in accordance with law.
5. We
have carefully heard the learned counsel appearing for the parties and perused
the impugned order carefully.
6. The
bare fact that the crimes of the personal motive are committed in a gruesome or
detestable manner, by itself would not be sufficient to bring the act within
the meaning of terrorism or terrorist activities. It is observed that for an
action or threat of action to be accepted as terrorism within the meanings of
Section 6 of Anti-Terrorism Act, 1997, the action must fall in subsection (2)
of Section 6 of said Act and the use or threat of such action must be designed
to achieve any of the objectives specified in clause (b) of subsection (1) of
Section 6 of that Act or the use or threat of such action must be to achieve
any of the purposes mentioned in clause (c) of subsection (1) of Section 6 of
that Act. It is clarified that any action constituting an offence, howsoever
grave, shocking, brutal, gruesome or horrifying, does not qualify to be termed
as terrorism if it is not committed with the design or purpose specified or
mentioned in clauses (b) or (c) of subsection (1) of Section 6 of the said Act.
It is further clarified that the actions specified in subsection (2) of Section
6 of that Act do not qualify to be labeled or characterized as terrorism if
such actions are taken in furtherance of personal enmity or private vendetta.
Reliance is placed upon an unreported
judgment dated 30.10.2019 passed by Hon’ble Supreme Court in Criminal
Appeals No. 95 and 96 of 2019, Civil Appeal No. 10-L of 2017 and Criminal
Appeal No. 63 of 2013 in the cases of Ghulam Hussain etc. v. The State etc.
7. We
have perused the contents of F.I.R, 161 CrPC statements of PWs and other
material collected during investigation. Admittedly, present incident occurred,
due to personal enmity and incident had occurred inside the house. The bare
fact that crime was committed in gruesome manner, by itself would not be
sufficient to bring the act within the meaning of terrorisms or terrorist
activities. Actions specified in subsection (2) of Section 6 of that Act do not
qualify to be labeled or characterized as terrorism if such actions are taken
in furtherance of personal enmity or private vendetta. We have no hesitation to
hold that learned Judge, Anti-Terrorism Court, Khairpur, has no jurisdiction to
try this case. Consequently, C. P. No.
D-1665 of 2018 is allowed. Consequently,
case pending before learned Judge, Anti-Terrorism Court, Khairpur, is
transferred to the concerned Court of ordinary jurisdiction for trial in
accordance with law.
8. As
regards the Bail Application Nos. D – 517 and 586 of 2018, learned
counsel appearing for the applicants in both the bail applications, in the view
of above orders, do not press the same and state that they would approach the
ordinary Court of jurisdiction, the same are dismissed as not pressed.
__________________
J U D G E
__________________
J U D G E
Abdul Basit