ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Revision Application No.26 of 2024

[ Bilal alias Tension vs. The State ]

              Present:

Mr. Justice Naimatullah Phulpoto

Mr. Justice Khadim Hussain Tunio 

18.03.2024

Mr. Nadeem Ahmed Azar, advocate for applicant/accused

Mr. Khadim Hussain Khuharo, Addl: P.G. Sindh

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Naimatullah Phulpoto, J.- Through this criminal revision application, applicant/accused Bilal alias Tension has called in question order dated 26.01.2024, passed by learned Judge, Anti-Terrorism Court-XIII, Karachi in Special Case No.471/2023, whereby an application under Section 23 of the Anti-Terrorism Act, 1997 made on behalf of the applicant/accused for transfer of the case to the Court of ordinary jurisdiction was dismissed.

2.         Learned advocate for the applicant/accused mainly contended that element of terrorism is missing in this case; no serious violence was committed to the police party; no injury was caused to any of the police officials, even the police mobile was not hit. It is further submitted that it was nighttime incident; no act of terrorism was committed by applicant/accused. In support of above contentions, reliance has been placed on the cases of Khuda-e-Noor versus The State (PLD 2016 SC 195), Waris Ali and 5 Others vs. The State (2017 SCMR 1572), Dilshad versus the State through A.A.G. Sukkur (2018 PCr.LJ Note 221) and Ghulam Hussain & Others versus the State & Others (PLD 2020 SC 61).

3.         Mr. Khadim Hussain Khuharo, Addl: P.G. Sindh, conceded to the contentions raised by the learned counsel for applicant/accused and submitted that learned Judge, Anti-Terrorism Court-XIII, Karachi lacks jurisdiction in the matter.

4.         In order to appreciate the contentions of learned counsel for the parties, we have perused the contents of FIR and other material collected during investigation as well as impugned order.

5.         Terrorism is defined in Section 6 of the Anti-Terrorism Act, 1997, which reads as under:

"6.  Terrorism---(1) In this Act, "terrorism" means the use or threat of action where:

(a)   the action falls within the meaning of subsection (2):

(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 herein contained shall apply to a democratic and religious rally or a peaceful demonstration in accordance with law". (bold added)

 

6.         Thus, ordinarily there are 2 limbs which need to be made out before an act can be classified as one of terrorism and fall within the purview of the ATA. i.e section 6(1)(a) and section 6(1)(b) or (c). Based on the facts and circumstances of this case it would appear that it is necessary to satisfy section 6(1)(a) and (b) along with the additional element of showing the requisite mens rea i.e intent.

 

7.         The Hon'ble Supreme Court in the recent of case of Shahbaz Khan v. Special Judge Anti-Terrorism Court Lahore (PLD 2016 SC 1) at P.6 held as under:

       "7. It is clear from a textual reading of section 6 of ATA that an action categorized in subsection (2) thereof constitutes the offence of terrorism when according to section 6(1)(b) ibid it is "designed" to, inter alia, intimidate or overawe the public or to create a sense of fear or insecurity in society. Therefore, the three ingredients of the offence of terrorism under section 6(1) (a) and (b) of ATA are firstly, taking of action specified in section 6(2) of ATA, secondly, that action is committed with design, intention and mens rea; and thirdly, it has the impact of causing intimidation, awe, fear and insecurity in the public or society.

8.         Sub-clause 2(n) ATA provides as under:

       "involves serious violence against a member of the police force, armed forces, civil armed forces, or a public servant".

 

9.         Thus, in our view section 6(1)(a), Anti-Terrorism Act, 1997 has been satisfied.

10.       The issue is now therefore whether section 6(1)(b) has been satisfied namely whether the use or threat of action, "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"; along with the requisite mens rea.

11.       In the case of Ghulam Hussain supra, the Supreme Court of Pakistan has held as under:-

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 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.”

 

12.       In the present case, incident had occurred at nighttime; no serious violence against a member of police force was committed; the persons of the locality were not terrorized in the incident; not a single injury was caused to the police officials, even the police mobile was not hit; the incident had occurred in an isolated place, near Shalimar Bus Stop, thus we are of the considered view that learned Judge, Anti-Terrorism Court concerned lacks the jurisdiction to try this case. Consequently, the impugned order is not sustainable under the law. Rightly reliance has been placed upon the case of Dilshad versus the State (2018 PCr.LJ Note 221) and Ghulam Hussain & Others versus the State & Others (PLD 2020 SC 61).

13.       For the above states reasons, we allow the instant criminal revision application and set aside the impugned order dated 26.01.2024 and direct the learned Judge, Anti-Terrorism Court-XIII, Karachi to return the case to the concerned Court of ordinary jurisdiction with immediate effect, in accordance with law. Needless to mention here that observations made hereinabove are tentative in nature for the purpose of deciding the point of jurisdiction and the Court of ordinary jurisdiction shall decide the case purely on merits.

14.       The instant criminal revision application is allowed in the above terms.    

    

      J U D G E

 

J U D G E

Gulsher/PS