IN THE HIGH COURT OF SINDH

BENCH AT SUKKUR

Constitutional Petition No. D-558 of 2020

Before:

Adnan-ul-Karim Memon and

Yousuf Ali Sayeed, JJ

Applicants : Meer Hazar Khan Chandio and others through Mr. Achar Khan Gabole, Advocate

The State : Through Mr. Aftab Ahmed Shar, APG

Complainant : Nemo

Date of hearing : 28.07.2020.

ORDER

YOUSUF ALI SAYEED, J - Through this Petition under Article 199 of the Constitution, the Petitioners have impugned the Order made on 16.05.2020 by the Anti-Terrorism Court, Naushahro Feroze (the “ATC”) in Special Case No.27/2017, Re: The State v. Meer Hazar Khan Chandio and others (the “Subject Case”), dismissing their Application under S. 23 of the Anti-Terrorism Act, 1997 (the “ATA”) for transfer of the matter to the regular Court of Sessions.

2. The backdrop to the matter is that the Subject Case arises out of FIR No.01/2017 registered under Sections 386, 302, 324, 504, 149 PPC read with Section 7(1)(a)(c)(h) of the ATA at P.S. Boriri on 09.01.2017 by one Asad Ali Chandio (the “Complainant”), alleging that on the very date of the FIR, he and other relatives had been the victims of a murderous attack at the hands of a group of assailant, including the Applicants, all armed with pistols or assault rifles, some of whom are said to have fired upon the Complainant’s party, with three persons from amidst their number being struck by bullets and succumbing to their injuries. Such attack is said to have taken place in the vicinity of the agricultural land of the Complainant’s grandfather, after which the assailants are said to have continued firing indiscriminately, whilst withdrawing into the sugarcane field, with a passerby also thus sustaining injuries. The motive for the attack is stated to have been non-payment of Bhatta (extortion money).

3. The juridicational point that falls to be decided turns on whether such a matter properly qualifies as “terrorism” within the ambit of S. 6(2)(a)(b) and (k), read with Section 6(1) of the ATA, stipulating 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)   involves the doing of anything that causes death;

(b)   involves grievous violence against a person or grievous bodily injury or harm to a person;

…..

(k) involves extortion of money (“bhatta”) or property;”

4. Apropos the Application under S. 23 of the ATA, the contention raised by the Petitioners before the ATC was that the alleged offence did not so qualify for purposes of S.6, in view of the authoritative interpretation of the statutory provision by the Honourable Supreme Court in terms of its judgment dated 30.10.2019 in Criminal Appeals No. 95 and 96 of 2019, Civil Appeal No. 10-L of 2018 and Criminal Appeal No. 63 of 2013, reported as reported as Ghulam Hussain and others v. The State PLD 2020 Supreme Court 61.

5. As it transpires, prior to the aforementioned judgment in Ghulam Hussains case (Supra), applications on a jurisdictional plane had earlier been moved by the Petitioners before the ATC, but met a similar fate, with Crl. Revision Application No. D-11/2017 having then firstly been filed before the Circuit Court, Larkana, which was disposed of vide Order dated 17.04.2018 with a direction to file a fresh application before the ATC after material evidence was lead, and following the dismissal of such fresh application, the matter had then then come up before this Bench through Constitutional Petition No.D-197/2019, which was disposed of vide an Order dated 19.12.2019 in the following terms:

“Through this constitutional petition, petitioners/accused have called in question order dated 16.01.2019 passed by learned Judge, Anti-Terrorism Court, Naushahro Feroze in special case No. 27/2017 whereby an application under section 23 Anti-Terrorism Act 1997 was dismissed while holding that learned Judge, Anti-Terrorism Court had jurisdiction to try the case under the provision of Anti-Terrorism Act, 1997.

Learned counsel for petitioner submits that Hon’be 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 has held that cases of the personal enmity shall not be tried under the provision of Anti-Terrorism Act, 1997.

D.P.G concedes to the legal position, as enunciated in the aforesaid judgment of Honourable apex Court.

Counsel for the petitioner submits that evidence has been recorded and it has come on record that there is no enmity between the parties. While disposing of this petition, it is ordered that trial Court shall decide the point of jurisdiction in the light of law declared by Hon’ble Supreme Court in the aforesaid judgment. Counsel for the petitioner may repeat an application before trial Court, the same shall be decided, on priority basis, before proceeding further, in accordance with law.

In the view of above, constitutional petition is disposed of in above terms.”

6. As such, the impugned Order reflects the determination of the ATC on the point of jurisdiction following the referral of the matter by this Court for decision on that point specifically on the touchstone of the judgment of the Apex Court in the case of Ghulam Hussain (Supra).

7. Notice of the Petition was duly issued to the Complainant, who nonetheless did not come forward to contest the matter. Proceeding with the case, learned counsel for the Petitioners pointed out that despite the clear direction of this Court, the learned judge of the ATC had failed to consider the judgment of the Apex Court and had fallen back on the same reasoning resulting in the dismissal of the earlier applications moved by the Petitioners. Indeed, a perusal of the impugned Order reflects this to be the case and shows that despite the Order made by this Court in Constitutional Petition No. D-197/2019 and Ghulam Hussain’s case (Supra) also being cited by counsel, the learned ATC judge did not care to examine the same or consider the finding of the Apex Court as to the proper scope of S.6 of the ATA. Instead, the mere fact that three persons had been murdered through the use of lethal weapons and a passerby had been injured was considered to have created sense of fear and insecurity in minds of people of vicinity and public and thus held to constitute “terrorism” so as to trigger the jurisdiction of the ATC. The impugned Order goes on to state inter alia that:

“Applications of same nature were filed by applicants/accused which were already dismissed by this court on merits vide order dated: 22.11.2017 & 16.01.2019. Word “TERRORISM” has a wide meaning for the purpose of assessment, as to whether sense of fear and insecurity spread amongst the public at large. Moreover, legislature has neither provided any immunity nor relaxation that in case of previous enmity the case would not be tried by Anti-Terrorism Court, but courts has only to see the manner and act which creates sense of fear and insecurity in the minds of people or any section of society also to see psychological impact created by such act upon minds of people, it is not necessary that incident must have taken place within the view of general public, even an act having taken place in a Barbaric and gruesome manner, if created sense of fear and insecurity in society, comes within the purview of Anti terrorism Act, 1997. Facts and circumstances of case laws relied by learned advocate for applicants/accused are distinguishable from the facts and circumstances of the present case.”

8. By contrast, in Paragraph 14 of the judgment in the case of Ghulam Hussain (Supra), the Honourable Supreme Court, while considering the import of S. 6 of the ATA, observed that:

“Reading of subsections (1) and (2) of the said section together makes good sense, i.e. all the actions specified in subsection (2) shall constitute terrorism if they are committed with the ‘design’ mentioned in clause (b) of subsection (1) or are committed for the ‘purpose’ referred to in clause (c) of subsection (1) of that section. Subsection (3) of that section, however, provides that “The use or threat of any action falling within sub-section (2) which involves the use of firearms, explosive or any other weapon is terrorism, whether or not sub-section (1)(c) is satisfied” which means that if for commission of the actions mentioned in subsection (2) a firearm, an explosive substance or any other weapon is actually used or a threat regarding use of the same is extended then all such actions are to constitute the offence of terrorism even if the other requirements of clause (c) of subsection (1) of section 6 are not satisfied or fulfilled. The requirements that need to be satisfied for invoking clause (c) of subsection (1) of section 6 are that the use or threat of action should be for “the purpose of advancing a religious, sectarian or ethnic cause” or for the purpose of “intimidating and terrorizing the public, social sectors, media persons, business community” or for the purpose of “attacking the civilians, including damaging property by ransacking, looting, arson, or by any other means, government officials, installations, security forces or law enforcement agencies”. If the said requirements and purposes mentioned in clause (c) of subsection (1) of section 6 do not need to be satisfied and if mere use or threat of use of a firearm, an explosive substance or any other weapon for commission of the actions mentioned in subsection (2) of section 6 is to ipso facto constitute the offence of terrorism then every murder committed (action under clause (a) of subsection (2) of section 6), every grievous bodily injury or harm caused (action under clause (b) of subsection (2) of section 6), every grievous damage to private property (action under clause (c) of subsection (2) of section 6), doing anything that is likely to cause death or endangers a person’s life (action under clause (d) of subsection (2) of section 6) or creating a serious risk to safety of the public or a section of the public (action under clause (i) of subsection (2) of section 6) even if committed with an ordinary stick, a brickbat or a stone when used as a weapon would constitute the offence of terrorism! Such trivializing of the diabolical offence of terrorism surely could not be the intention of the legislature when framing a law for the offence of terrorism which is a class apart and a species different from any other ordinary crime.

9. The Apex Court then went on to specifically declare that an action falling under S. 6(2) would not of itself constitute terrorism, but would require the coincidence of any of the objectives specified in clause(b) of S. 6(1) or the use or threat of such action must be to achieve any of the purposes mentioned in clause (c) thereof, failing which the action, albeit otherwise constituting an offence, would not qualify as “terrorism”, irrespective of how grave, shocking, brutal, gruesome or horrifying such action may be, and has also gone on to clarify that the actions specified in S.6(2) would not qualify to be labeled or characterized as terrorism if such actions are taken in furtherance of personal enmity or a private vendetta. A finding to that effect is encapsulated in Paragraph 16 of the judgment, which 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.

10. In the factual matrix presented by the case at hand, such coincidence of factors is conspicuously absent and the finding to the effect that the murderous attack of itself created a sense of fear and insecurity in the minds of the people of the vicinity and public is untenable as it is shown to have taken place away from any general population and on a path running through private agricultural land. Indeed, the overall conception of “terrorism” arrived at in the impugned Order is far removed from what has been laid down in terms of Ghulam Hussain’s case (Supra), and even the learned APG did not support the impugned Order and conceded that the finding recorded therein was at odds with the principle enunciated by the Apex Court.

11. Under such circumstances, we are constrained to record our disapproval of the manner in which the matter has been dealt with, in disregard of the directions of this Court and overlooking the aforementioned judgment, especially as it scarcely needs to be emphasized that any decision of the Honourable Supreme Court, to the extent that it decides a question of law or is based upon or enunciates a principle of law, is binding on all other courts in Pakistan. Needless to say, it is expected that the learned Judge of the ATC would exercise utmost care and caution in future on both counts so as to ensure that there is no recurrence of such an oversight.

12. In view of the foregoing discussion, it is apparent that the impugned Order suffers from error, hence the Petition is allowed with the impugned Order being set aside and the Subject Case accordingly being transferred from the ATC for trial by the ordinary Court of competent jurisdiction.

Judge

Judge