IN THE HIGH COURT OF SINDH

BENCH AT SUKKUR

Crl. Misc. Application No. S-868 of 2019

Applicant : Notan Lal, through Muhammad Yousaf Leghari, Advocate, along with Syed Abdul Latif Shah & Hadi Bux Bhatt, Advocates

The State : Through Khaleel Ahmed Maitlo, DPG

Complainant : Abdul Aziz Khan, through Niaz Muhammad Ghumro Advocate

Date of hearing : 13.07.2020.

ORDER

YOUSUF ALI SAYEED, J - Briefly, the backdrop to this matter is that FIR No.213/2019 was registered at Police Station ‘A’ Section, Ghotki under Section 295-C, PPC (the “FIR”) on 14.09.2019 at 10.30 pm on information provided by one Abdul Aziz Khan, it being averred by him that his son was a 11^th grade student at the Sindh Public School Ghotki, who had returned from School later than usual that day in a perplexed state and when questioned had informed him that the Applicant, who is said to be the head of the School, had come to his classroom at about 12.30 pm and used language that was derogatory of the Holy Prophet (PBUH) in his presence and that of other classmates. Following his arrest, the Applicant moved an application for bail under Section 497 Cr. P.C from the learned Sessions Judge, Ghotki, who dismissed the same vide an Order dated 28.11.2019 on the ground that he lacked jurisdiction as the offence constituted “terrorism” within the contemplation of Section 6(2)(f) of the Anti-Terrorist Act, 1997 (the “ATA”), hence fell within the purview of an Anti-Terrorism Court. Vide this Application under Section 561-A, Cr. P.C, the Applicant has impugned the propriety of that determination.

2. As the controversy at this stage turns on a purely jurisdictional point gravitating around S.6 of the ATA, it would be appropriate to reproduce S.6(1) as well as the relevant part of sub-section (2) thereof for ready reference, which read as follows:

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

(a) the action falls within the meaning of sub-section (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.

Provided that nothing contained herein shall apply to a democratic and religious rally or a peaceful demonstration in accordance with law.

(2) An “action” shall fall within the meaning of sub-section (1), if it:

(a) …

(b) …

(c) …

(d) …

(e) …

(ee) …

(f) incites hatred and contempt on religious, sectarian or ethnic basis to stir up violence or cause internal disturbance;

(g) …”

3.    Proceeding with his submissions, learned counsel for the Applicant pointed out that after the initial investigation had been carried out, a challan had been presented in the Court of the concerned Judicial Magistrate, who after taking cognizance had then correctly sent the matter up to the learned Sessions Judge for trial as per the frame work in place under the Cr.P.C. He submitted that the Applicant was innocent and had been falsely implicated, but even if the allegations set out in the FIR were regarded as being correct for the sake of argument, the same still did not conceivably constitute a case of inciting hatred or contempt on a religious, sectarian or ethnic basis, whether to stir up violence or cause internal disturbance or otherwise, which were the necessary elements of S. 6(2)(f) of the ATA. He argued that the learned Sessions Judge had erred in his reading of the FIR and interpretation of the aforementioned provision of the ATA and submitted that the impugned Order was bad in law and ought to be set aside.

4. Opposing the Application, learned counsel for the Complainant supported the impugned Order and contended that in the instant case the matter rightly fell with the ambit and purview of the Anti-Terrorism Court in view of Section 6(2) (f) of the ATA, as the offence had been committed in the setting of a classroom, which according to him was a public space. In an endeavor to bolster his contention as to S.295-C constituting “terrorism”, learned counsel placed reliance on the judgment of learned Single Judge of the Islamabad High Court reported at PLD 2017 Islamabad 218, and had the temerity to overzealously state that whilst the Complainant had shown restraint till now through recourse to the criminal justice system, the utterances of the Applicant ought to have been met on the spot with the sword. Such a stance is unfortunate and is to be deprecated. The Complainant is cautioned to continue to exercise due restraint and ensure that his future conduct in the matter remains within the bounds of law.

5. For his part, the learned DPG also supported the impugned Order but could not further expound as to how the case fell within the definition of ‘terrorism’ for the purpose of the ATA.

6. Having examined the matter and considered the arguments advanced at the bar, it merits consideration at the outset that as per the procedural scheme in place Under the Cr. PC, the offence under S.295-C PPC is triable by the Court of Sessions. This is borne out by the long line of case law on the subject, including the matter of Asia Bibi v. The State PLD 2019 Supreme Court 64, which serves as a case in point as the chain of litigation leading up to the culmination of proceedings before the Honourable Supreme Court commenced with a sessions trial. Indeed, the learned DPG as well as learned counsel for the Complainant were called upon to show any instance where such offence had of itself been tried under the ATA, but were unable to do so.

7. Furthermore, if the scheme of S.6 of the ATA is examined, it is apparent that sub-section (2) thereof cannot be read in isolation, but is to be viewed in juxtaposition with the conditions specified under sub-section (1) thereof, as settled vide the seminal judgment of the Apex Court in the case reported as Ghulam Hussain and others v. The State PLD 2020 Supreme Court 61, whereby the scope of ‘terrorism’ within the meaning of Section 6 was clarified. The relevant part of that judgment (i.e. Para 16) reads as follows:

“16. For what has been discussed above it is concluded and declared that for an action or threat of action to be accepted as terrorism within the meanings of Section 6 of the Anti-Terrorism Act, 1997 the action must fall in subsection(2) of section 6 of the 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 the 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.

8. As it transpires, the ingredients of Section 6(1)(c) are conspicuously absent in the instant case, and that being so the alleged act cannot be categorized or deemed as ‘terrorism’ under the ATA.

9. It is for these reasons that the impugned Order was set aside vide a short Order made in open Court on 13.07.2020 with the learned Sessions Judge, Ghotki, being directed to decide the Applicant’s bail application afresh within a period of 10 days of receipt of that Order.

JUDGE

Ihsan