IN THE HIGH COURT OF SINDH, CIRCUIT COURT

LARKANA

Cr. Misc. Application No. D- 14 of 2022.

Present: Shamsuddin, J.

Amjad Ali Sahito, J.

Applicant: Liaquat Ali, through Mr. Athar Abbas Solangi,

Advocate.

Respondent No.1: The State through Mr. Aitbar Ali Bullo, Deputy

Prosecutor General.

Respondents No. 2, 3

and 5: Through Mr. Javed Ahmed, Advocate.

Respondents No.4 & 6. Through Mr. Safdar Ali Ghouri, Advocate.

Dates of hearing: 06.12.2022 and 07.12.2022.

Date of order: 07.12.2022.

Date of reasons: 13.12.2022.

O R D E R

Amjad Ali Sahito, J.- This criminal miscellaneous application is directed against the order dated 25.10.2022, passed by learned Judge, Anti-Terrorism Court, Larkana in Special Case No.12/2019, arisen out of F.I.R No.66 of 2019, registered at Police Station Hyderi, Larkana, for offences punishable under Sections 302, 384, 385, 386, 114, 337-H (2), 148, 149 P.P.C read with Sections 6 (k), 6/7 of Anti-Terrorism Act, 1997, whereby learned Judge has transferred the aforesaid case to learned Sessions Judge, Larkana, for its disposal in accordance with law alongwith connected cases registered under Crime No.67, 69, 70, 71 and 72 of 2019 P.S Hyderi, Larkana.

Brief facts of the case as disclosed in the FIR are that on 07.6.2019 at 1300 hours complainant Liaquat Ali lodged F.I.R at P.S Hyderi, Larkana, alleging therein that he owns houses and about three months back accused Wazir Ali alias Aziz Sangi, Mazhar Ali Sangi and Rafique Ahmed Sangi demanded “bhatta” Rs.200,000/- from him; else they will occupy the houses and will cause loss to them, therefore, due to fear, the complainant paid Rs.200,000/- as “bhatta” to criminals at 1.00 p.m. Thereafter, accused were demanding and harassing to complainant at different times for payment of Rs.500,000/- as “bhatta”. On eventful day, complainant, his cousin Allah Dino alias Ayaz aged about 36 years, nephew Sajjad Ali aged 22 years, his brohter Dhani Bux and cousin Moula Bux went at Channa Muhalla on two motorcycles in the Kherat of Talib Kalhoro. After having meals, they were returning towards their home and reached near the Otaq of accused Wazir Ali alias Aziz Sangi; thy saw Wazir Ali alias Aziz Sangi armed with repeater, Sher Ali armed with repeater, Rafique Ahmed armed with DBBL gun, Nazir Ali armed with DBBL gun, Rameez Ali armed with kalashnikov, Manzoor Ali armed with repeater, Azhar Ali armed with repeater, Safeer Ahmed armed with kalashnikov and Zulfiqar alias Basar armed with DBBL gun, who all came out from Otaq at 1245 hours. Accused Rameez, Safeer and Basar alias Zulfiqar instigated to other accused persons for murder of complainant party on the ground that despite demand of many times, they have not paid Rs.500,000/- “bhatta”, meanwhile accused Wazir Ali alias Aziz, Bashir and Nazir made direct fires upon Sajjad Ali with intention to cause his death, who fell down raising cry in receiving fires made by all three accused. Accused Azhar Ali, Manzoor Ali and Rafique Ahmed made direct fires upon Allah Dino alias Ayaz Ali who also while receiving the fire of above three accused fell down raising cry. The other accused made aerial firing in order to create harassment, therefore, public persons started running here and there. One passerby Hafeezullah son of Abdullah Gad made hakals to accused persons not to kill the persons, therefore, accused made direct fires upon him, who also fell down receiving injuries. Then all accused went away towards their houses. They saw Allah Dino alias Ayaz Ali Sajjad Ali and passerby Hafeezullah who all were lying dead due to firearm injuries. Hence, F.I.R was lodged accordingly.

On completion of usual investigation, the challan of the case was filed before learned Judge, Anti-Terrorism Court, Larkana.

It appears from the record that, prior to this application, the accused persons moved an application under Section 23 of the Anti-Terrorism Act, 1997, which was dismissed vide order dated 13.11.2019. As such, the accused persons challenged such order before this Court through Criminal Revision Appln. No. D- 28 of 2018; however the same was dismissed as not pressed vide order dated 07.4.2020, on the request of learned counsel for accused, as he intended to repeat such application before learned trial Court after recording of the evidence of the complainant and eye witnesses.

It further appears that after recording evidence of complainant and two eyewitnesses, an application under Section 23 of Anti-Terrorism Act, 1997, was repeated by the accused persons before learned trial Court i.e. Anti-Terrorism Court, Larkana, which was allowed and case was transferred to the learned Sessions Judge, Larkana, for its disposal in accordance with law, vide Order dated 25.10.2022 and that order has been challaned in these proceedings by the complainant.

Learned Advocate for applicant/ complainant mainly contended that, this is the case of demand and payment of “bhatta” and brutal murders of nephew and cousin of the complainant and injuring an innocent passerby, as such the offences would fall within the definition of terrorism as defined in Section 6 (k), 6/7 of Anti-Terrorism Act, 1997, read and coupled with Sections 302, 384, 385, 386, 114, 337-H (2), 148, 149 P.P.C. Per learned counsel, earlier application moved by accused persons for transfer of the case to Court of ordinary jurisdiction was dismissed by the same Court through an speaking order and such order was upheld by this Court; however after recording of evidence of complainant and two witnesses, the same Court has allowed similar request of accused persons and has transferred the case to Court of learned Sessions Judge, Larkana, while considering the grounds / material which was already available with the prosecution and inspite of the fact and no fresh ground existed. Learned counsel further contended that, the main grounds i.e. civil dispute between the parties, criminal record of the accused persons with regard to their involvement in “bhatta” cases, non-mentioning of date and time with regard to demand of “bhatta” by accused persons, and financial status and source of income of the complainant were already considered and attended by the same Court while dismissing earlier application. Per learned counsel the complainant and his witnesses have clarified during cross-examination that they are doing business of real estate and complainant is doing business of sale and purchase of Qingqi. Learned counsel empathized that it is well settled law that for repeating any application before any Court, there must be some fresh ground for filing subsequent application, which can only be entertained and considered, if the same discloses any fresh ground for similar relief. In support of his contentions learned counsel relied upon PLD 2015 S.C- 66 and PLD 2014 S.C-241. Learned counsel further added that sections applied in F.I.R i.e. 385, 386 P.P.C and Section 6 (k) and 7 of Anti-Terrorism Act, 1997, are scheduled offences and are exclusively triable by the Anti-Terrorism Court. Lastly, he prayed for setting aside of the impugned order and transferring of the case to Anti-Terrorism Court, Larkana, for its disposal.

Conversely, learned counsels appearing for accused persons/ respondents supported the impugned order, but could no controvert the submissions made by learned counsel for the applicant/ complainant. Learned counsel relied upon PLD 2020 S.C- 427, PLD 2020 S.C- 61 and SCMR 2016- 1754.

Learned D.P.G. however did not support the impugned order and concedes for grant of this criminal miscellaneous application.

It appears that, the learned Judge of Anti-Terrorism Court, Larkana, while declining the earlier application had taken into consideration all the grounds and other material available before him, however after recording evidence of complainant and two witnesses he has allowed the similar request made by the same accused persons mostly on same grounds, which is against the law settled by the Hon’ble Apex Court, as it is well settled law that second application can only be competent when fresh ground existed and agitated.

It is necessary to have a look over the allegations made in the FIR, material collected during investigation and surrounding circumstances in order to determine as to whether an offence would fall within the ambit of section 6 of Anti-Terrorism Act, 1997. It is also necessary to examine whether the ingredients of alleged offence have any nexus with the object of the case as contemplated under section 6, 7 and 8 thereof. Whether a particular act is an act of terrorism or not, the motivation, object, design and purpose behind the said act is to be seen. It is also to be seen as to whether the said act has created a sense of fear and insecurity in the public or in a section of the public or community or in any sect, there can be no second opinion that where action results in striking terror or creating fear, panic, sensation, helplessness and sense of insecurity among the people in the particular area it amounts to terror and such an action squarely falls within the ambit of section 6 of the Anti-Terrorism Act, 1997 and shall be triable by a Special Court constituted for such purpose.

From perusal of contents of the F.I.R, depositions of complainant and his two witnesses it prima-facie appears that the accused persons firstly obtained “bhatta” worth Rs.200,000/- from complainant and then they again demanded and harassed complainant at different times for payment of more amount worth Rs.500,000/- as “bhatta” and on his refusal, the accused persons made assault upon complainant party thereby caused death of two innocent persons and injured one passerby by making an indiscriminating firing on a public road and while leaving scene of offence they also made an aerial firing. These acts of accused prima-facie resulted into striking terror and sense of insecurity and fear in the public. Therefore, the Anti-Terrorism Court has exclusive jurisdiction in this case, as the action of the accused squarely falls within the ambit of section 6 (k) and 7 of Anti-Terrorism Act, 1997, read with Sections 302, 384, 385, 386, 114, 337-H (2), 148, 149 P.P.C, and such offences are the scheduled offences exclusively triable by the Anti-Terrorism Court in view of Section 13 of the Anti-Terrorism Act, 1997.

Consequently, in view of above, the instant criminal miscellaneous application was allowed vide short order dated 07.12.2022 and impugned order dated 25.10.2022 was set-aside. The case arisen out of F.I.R No.66 of 2019 registered at Police Station Hyderi, Larkana, along with connected cases registered under Crime No.67, 69, 70, 71 and 72 of 2019 P.S Hyderi, Larkana, is directed to be returned to the learned Judge, Anti-Terrorism Court, Larkana, with directions to proceed with case and decide it, in accordance with law. These are the reasons for short order dated 07.12.2022.

Needles to mention here that, the observations made hereinabove are for deciding the point of jurisdiction only. The trial Court shall not be influenced by such observations while deciding the case on merits.

Judge

Ansari