IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Revision Application No.
235 of 2022
|
DATE |
ORDER
WITH SIGNATURE OF JUDGE |
Present: Mr. Justice Naimatullah
Phulpoto
Mr. Justice Amjad
Ali Sahito
1. For hearing of main
case
2. For hearing of M.A.No. 12314/2022
24.10.2023
Mr.
Muhammad Irfan advocate for the applicant/accused
Mr.
Khadim Hussain Addl. P.G
Complainant
present in person
-.-.-.-.-.-.-.-.
Naimatullah Phulpoto,
J.-Through this Criminal Revision Application, applicant/accused
Mudassir Khan has called in question order dated
20.09.2022 passed by learned Judge, Anti-Terrorism Court No. X, Karachi in
Special Case No.180/2020, whereby application under Section 23 of ATA 1997 for
transfer of case to regular court moved by the applicant/accused was dismissed,
while holding that learned Judge, ATC has jurisdiction in the matter.
2. Notice of this application was issued
to the respondents as well as Prosecutor General Sindh.
3. Learned advocate for the
applicant/accused mainly contended that this is a case of personal dispute
between the applicant/accused and the complainant party. Learned counsel for
the applicant/accused read out the contents of FIR, 161 Cr.P.C statements of
the PWs and other material collected by the I.O during investigation and argued
that trial by learned Judge, ATC would be without jurisdiction and order of the
trial Court is unsustainable under the law. In support of his contentions, he has
relied upon the case reported as Muneer Malik and
others vs. The State through P.G Sindh (2022 SCMR 1494).
4. Addl. P.G did not support the orders
passed by trial Court and frankly conceded that ATC lacks jurisdiction in the
matter because incident was the result of personal dispute between the parties.
Complainant who is present in person also submits that appropriate orders may
be passed in the matter.
5. After hearing learned counsel for the
parties, we have perused the contents of the FIR, 161 Cr.P.C statements of the
P.Ws and other material collected during investigation. We have also perused orders
passed by trial Court. It appears that occurrence,
which resulted due to personal enmity, element of terrorism is missing in this
case. Mere fact that such a crime was committed in a gruesome or it was case of
indiscriminate firing by itself would not be sufficient to bring the act within
the meaning of terrorism or terrorist activities. In the case of Waris Ali and 5 others vs. The State (2017 SCMR
1572), the Apex Court has held as under:
The careful reading of all the relevant provisions of Anti-Terrorism
Act, 1997 would show that the sole and primary object of the same is to curb
and eliminate terrorism and terrorist activities and also the groups involved
in the same, besides to eliminate the sectarian and factional violence
committed with the same object therefore, ordinary
crimes due to personal motive or revenge shall not be taken at par with acts of
terrorism or terrorist activities, the sole object of which is nothing but
to terrorize the society/community and the State as a whole. There is a sky
high difference between the crimes of the old category and the new one, for
which special law has been enacted.
6. In the case of Ghulam Hussain vs. State (PLD 2020 SC 61), it was held by the Apex
Court as under:
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 purpose
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 be 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.
7. We have come to the conclusion that incident
was result of personal enmity and element of terrorism is missing in this case.
While respectfully relying upon the above cited judgments, we have no
hesitation to hold that Anti-Terrorism Court lacks jurisdiction in the matter,
hence impugned order is not sustainable under the law. The same is set aside.
Trial Court is directed to transfer the case to the concerned regular Sessions
Court for its disposal in accordance with law.
8. Revision application is allowed in the
above terms.
JUDGE
JUDGE
Wasim ps