ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Criminal Revision Application No. 19 of 2021

Date

Order with signature of the Judge

Mr. Justice Naimatullah Phulpoto

Mr. Justice Shamsuddin Abbasi

11.01.2023

M/s Nadir Hussain Burdi & Shoukat Muhammad Ali advocate for the applicant

Mr. Yahya Iqbal advocate for the complainant

Mr. Ali Haider Saleem, Additional Prosecutor General

O R D E R

NAIMATULLAH PHULPOTO, J.-Through this Criminal Revision Application applicant/accused Faqeer Muhammad has called in question order dated 21.07.2020 passed by the learned Judge Anti-Terrorism Court No.I, Karachi in Special Case No. 655 of 2018 (arising out of FIR No.122/2018 registered at Police Station Orangi Town Karachi, for offence under Sections 364-A/34 PPC). After the usual investigation challan was submitted before the learned Judge, Anti-Terrorism Court No.I Karachi under Sections 364-A/ 302/ 376/ 201/ 311/ 109/ 34 PPC read with Section 7 of Anti-Terrorism Act 1997. During pendency of the case, an application under Section 23 of Anti-Terrorism Act, 1997, was moved before the learned trial Court, the same was dismissed while holding that Anti-Terrorism Court has the jurisdiction to try this case.

2. After filing of this Criminal Revision Application, notices were issued to the respondent/complainant as well as Prosecutor General, Sindh.

3. Learned advocate for the applicant/accused contended that learned Judge, Anti-Terrorism Court has no jurisdiction to try this case under the provision of Anti-Terrorism Act 1997. It is further argued that though this is a case of gang rape with a minor girl, but alleged offence had not created terror in the society. Lastly, it is submitted that mere gravity of an offence does not provide a valid yardstick for branding the act as terrorism. In support of his submissions, he has relied upon case of Ghulam Hussain and others vs. The State and other (PLD 2020 S.C 61).

4. Learned Additional Prosecutor General assisted by the advocate for the complainant argued that accused have committed gang rape with baby Rabia aged about 06 years, thereafter, committed her murder and during investigation sufficient evidence has been collected against them. Lastly, it is argued that offence had created terror in the society and learned Judge, Anti-Terrorism Court has rightly dismissed application under Section 23 of the Anti-Terrorism Act, 1997.

5. We have perused the contents of the FIR, 161 Cr.PC statements of the PWs, relevant material collected during investigation and impugned order. According to the case of prosecution, baby Rabia aged about 6 years left home on 12.04.2018 at 1:00 p.m and did not return back. During investigation, it transpired that she was subjected to rape and murdered by the accused persons. Investigation Officer found sufficient evidence against accused persons during investigation and submitted challan against them before learned Judge Anti-Terrorism Court- for offences under Sections 364-A/ 302/ 376/ 201/ 311/ 109/ 34 PPC read with Section 7 of Anti-Terrorism Act 1997. The crucial issue for consideration before this Court is whether learned Judge Anti-Terrorism Court has jurisdiction to try this case under the provisions of Anti-Terrorism Act, 1997. Apparently, in this case a minor girl was subjected to rape and murdered by the accused persons. From perusal of relevant material collected during investigation, it transpires that element of terrorism as defined by the Honourable Supreme Court in the case of Ghulam Hussain and others vs. The State and other (PLD 2020 S.C 61) is missing in this case. Principle laid down by the Honourable Supreme court in the case of Ghulam Hussain (supra) is reproduced as under:

“20. By way of summing up we may observe that, keeping in view the latest definition of “terrorism” contained in section 6 of the Anti-Terrorism Act, 1997, mere gravity or brutal nature of an offence does not provide a valid yardstick for branding the same as terrorism. In order to qualify as terrorism the motivation behind the offence has to be political in the extended sense of the word and, as provided in the United Kingdom law, “the use or threat is made for the purpose of advancing a political, religious or ideological cause” and the act has to be designed to destabilize the society at large. The history of crimes in the human society is replete with macabre, gruesome and horrifying offences shocking the society at large yet such crimes were never treated or accepted as terrorism because the motivation was personal and private. As against that even an unsuccessful attempt at sabotage of public supplies or services has readily been accepted as terrorism because the purpose behind the act is to destabilize the society at large. Even a petty theft in a house in a street is likely to create a sense of insecurity in the people living in that street, a rape of a young girl is bound to send jitters in every family having young girls living in the relevant locality, a murder in the vicinity surely creates a grave sense of fear in the inhabitants of the area, a bloodbath in furtherance of an on-going feud shocks the society as a whole, a massive fraud in a bank may send shockwaves throughout the banking and financial sectors and an offence committed against a member of any profession may render the other members of that profession feeling vulnerable and insecure. But all such offences are ordinary crimes distinguishable from terrorism because for the former the motivation is personal and private whereas for the latter the purpose has to be to destabilize the society at large. In this backdrop a premature, speculative, presumptive and imagery quantification of the effect of an action so as to determine the nature of the act as terrorism or not appears to be as unsure and subjective test and it would be safer and consistent to revert to the principle of nexus carved out by the Hon'ble Supreme Court of Pakistan which is not only now a statutory requirement but the same is also consistent with the first major enunciation of the relevant law by our Supreme Court and that too by a Bench larger than any other Bench deciding any of the other cases mentioned above”

6. In the present case, a minor girl was subjected to rape by accused persons and murdered. No doubt, offence is grave and brutal in nature but motivation is personal and private. In the offences of terrorism purpose is to destabilize the society at large therefore, keeping in view the definition of “terrorism” contained in Section 6 of the Anti-Terrorism Act, 1997 and authoritatively defined in the case of Ghulam Hussain (supra), we have no hesitation to hold that act of the accused does not qualify as an act of terrorism, thus, learned Judge, Anti-Terrorism Court-I, has no jurisdiction to try this case under the provisions of Anti-Terrorism Act 1997.

7. For the above stated reasons, impugned order dated 21.07.2020 is not sustainable under the law and the same is set aside. Learned Judge Anti-Terrorism Court-I, Karachi is directed to transfer the case to the court having jurisdiction in the case for expeditious trial in accordance with law. Resultantly, instant Criminal Revision Application is allowed.

J U D G E

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