IN THE HIGH COURT OF
SINDH
BENCH AT SUKKUR
Crl. Misc.
Application No. D-307 of 2019
Before:
Adnan-ul-Karim
Memon and
Yousuf Ali
Sayeed, JJ
Applicants : Muhammad
Hassan and another through Mr. Sohail Ahmed Khoso, Advocate
The
State : Through Mr. Aftab Ahmed Shar, APG
Complainant : Nemo
Date
of hearing : 28.07.2020.
ORDER
YOUSUF
ALI SAYEED, J - Being aggrieved by the Order made on 11.03.2019
in Special
Case No.56/2018, Re: The State v. Abdul Shakoor and others (the “Subject Case”) by
the Anti-Terrorism Court, Khairpur Mirs, 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, the Applicant have impuged such dismissal vide this Application under Section 561-A, Cr. P.C.
2. So as to frame the controversy in proper
perspective, it is pertinent to observe that the Subject Case arises out of FIR
No.10/2018 registered under Sections 302, 212, 120-B, 148, 149 PPC read with
Section 7 of the ATA at P.S. F. M. Narejo, Khairpur on 28.08.2018 by one Shahnawaz
Bhutto (the “Complainant”),
alleging that an attack had been staged at his Otaaq after sunset on 27.08.2018
by a group of thirteen persons carrying firearms, who allegedly opened fire
upon him and his male relatives present, with one of his nephews as well as a
cousin receiving multiple bullet injuries, to which they succumbed on the spot,
with the assailants then leaving the scene whilst engaging in aerial firing. As
per the FIR, that attack is said to have been precipitated by a feud ensuing
from an encounter that took place on 07.10.2016 between a police party including
a relative of the complainant and a group of persons including relatives of the
Otaaq attackers, resulting in fatalities on both sides and giving rise to the
registration of FIR No. 23/2016 at P.S. Faiz Muhammad Narejo, due to which
threats of retribution had been made coupled with demand for withdrawal of that
case.
3. As is apparent, the matter turns on a purely jurisdictional point surounding
the proper import of the term “terrorism” which has been defined as per Section
2(x) of the ATA as having the meaning assigned to it in Section 6, which in
turn reads 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;
(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 others means;
(d) involves the doing of anything that is likely to cause death or
endangers person’s life;
(e) involves kidnapping for ransom, hostage-taking or hijacking;
(ee) involves
use of explosive by any device including bomb blast [or having any explosive
substance without any lawful justification or having been unlawfully concerned
with such explosive;
(f)
incites hatred and contempt on religious, sectarian or ethnic basis to strip up
violence or cause internal disturbance;
(g)
involves taking the law in own hand, award of any punishment by an
organization, individual or group whatsoever, not recognized by the law, with a
view to coerce, intimidate or terrorize public, individuals, groups,
communities, government officials and institutions, including law enforcement
agencies beyond the purview of the law of the land;]
(h)
involves firing on religious congregation, mosques, imambargahs,
churches, temples and all other places of worship, or random firing to spread
panic, or involves any forcible takeover of mosques or other places of worship;
(i)
creates a serious risk to safety of the public or a section of the
public, or is designed to frighten the general public and thereby prevent them
from coming out and carrying on their lawful trade and daily business, and
disrupts civic life;
(j)
involves the burning of vehicles or any other serious form of arson;
(k) involves extortion of money
(“bhatta”) or property;
(l) is designed to seriously interfere with or seriously disrupt a
communication system or public utility service;
(m)
involves serious coercion or intimidation of a public servant in order to
force him to discharge or to refrain from discharging his lawful duties;
(n)
involves serious violence against a member of the police force, armed
forces, civil armed forces, or a public servant;
(o)
involves in acts as part of armed resistance by groups or individuals against
law enforcement agencies; or
(p)
involves in dissemination, preaching ideas, teachings and beliefs as per own
interpretation on FM stations or through any other means of communication
without explicit approval of the government or its concerned departments.
(3) The use or threat of use 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.
[(3A) Notwithstanding anything contained in sub-section (1), an action in
violation of a convention specified in the Fifth Schedule shall be an act of
terrorism under this Act.]
(4) In this section “action” includes
an act or a series of acts.
(5) In this Act, terrorism includes
any act done for the benefit of a proscribed organization.
(6) A person who commits an offence
under this section or any other provision of this Act, shall be guilty of an
act of terrorism.
(7) In this Act, a “terrorist” means:-
(a) an individual who has committed an
offence of terrorism under this Act, and is or has been concerned in the
commission, preparation, facilitation, funding or instigation of acts of
terrorism;
(b) an individual] who is or has been,
whether before or after the coming into force of this Act, concerned in the
commission, preparation, facilitation, funding or instigation of acts of
terrorism, shall also be included in the meaning given in clause (a) above.
4. Pursuant to notice issued, the Complainant had
appeared on 20.05.2020 and sought time to engage counsel, but remained absent
thereafter without any representation forthcoming on his behalf.
5. Proceeding with the matter, learned counsel
for the Applicant submitted that even if the allegations set out in the FIR were
taken at face value, the matter still did not constitute an act of “terrorism”
for purposes of Section 6 of the ATA, as per the judgment of the Honourable Supreme Court 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, which had
been forthcoming subsequent to
the impugned Order. He drew particular attention to Paragraph 16 of that
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.
6. He
submitted that, accordingly, the matter at hand did not meet the test of clauses (b) or (c) of S.6(1) of the ATA, and had
wrongly been determined to constitute “terrorism”. He prayed
that in light of the ratio of Ghulam
Hussain’s case (Supra), the Application ought to be allowed, with the impugned
Order being set aside and the Subject Case consequently being transferred to
the Court of Sessions.
7. Resisting
such a plea, the learned
APG sought to support the impugned Order by contending that the matter did not
fall within the framework of the judgment in the case of Ghulam Hussain
(Supra). He contended that the attack that was the subject of the FIR and
formed the corpus of the Subject Case was one of “terrorism” as it had been stated
in the FIR that the genesis thereof lay in the encounter underpinning FIR No.
23/2016 registered at P.S. Faiz Muhammad Narejo, which had inter alia been challaned under Sections 6 and 7 of the ATA and
sent up for trial by an Anti-Terrorism Court. He submitted that as the attack
of 27.08.2018 was a result of enmity arising from that earlier encounter, this
matter similarly qualified to be categorized accordingly.
8. Having
examined the impugned Order from the standpoint of the overall scheme of Section
6 of the ATA in light of the judgment in the case of Ghulam Hussain (Supra), it
is apparent that the Honourable Supreme Court has essentially read down S. 6(3)
and declared 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. Furthermore, it merits consideration that the judgment
goes 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.
9. In the matter at
hand, the ingredients of Section 6(1)(b) and (c) are
conspicuously absent, and that being so, we are unable to
concur with the contentions of the learned APG or the determination of the
jurisdictional point by the learned Judge of the Anti-Terrorism Court, Khairpur Mirs. Needless to say, the Special Case
as may have ensued on the basis of FIR No. 23/2016 is not before us, and we
would be remiss in making any observation as to that case, other than to state
that the alleged link between that matter and the action forming the basis of
the present FIR does not suffice to bring such action with the scope of
terrorism, as circumscribed by the judgment in Ghulam Hussain’s case.
10. Upon presentation of the Application, the
office had raised an objection as to its maintainability with reference to a
judgment of a learned Division Bench of this Court in the case reported as
Allah Nawaz and another v. The State 2010 MLD 1412, where it had been held that
neither Sections 435, 439 Cr. PC. nor S.561-A Cr. P.C. could be invoked to
challenge and impugn an order passed by the Anti-Terrorism Court under S.23 of
the ATA, but recourse under Article 199 of the Constitution remained available
in appropriate cases. As we have determined the matter on merits and are of the
view that the impugned Order warrants correction, the Application is
accordingly converted into a Constitutional Petition and allowed, with the impugned
Order being set aside and the Subject Case being transferred from the Anti-Terrorism Court, Khairpur Mirs,
to the regular Court of competent jurisdiction for trial in accordance with
law.
Judge
Judge