IN THE HIGH COURT OF SINDH AT KARACHI
Criminal
Revision Application No.26 of 2024
[ Bilal alias Tension vs. The State ]
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
-------------------------------------------------
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