HIGH COURT OF SINDH AT
KARACHI
Criminal
Revision Application No.65 of 2012
Present: Sajjad Ali Shah, J.
Naimatullah Phuploto,
J.
Applicants: Bismillah
and Noushad Ahmed through Mr. Abdul Wasey Kakar, Advocate.
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Respondent: The State through Mr. Ali Haider Saleem, Assistant Prosecutor
General Sindh.
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Date of
hearing: 30.01.2013
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JUDGMENT
Naimatullah Phulpoto, J.— Through
this criminal revision application order dated 15.03.2012 passed by learned
Special Judge Anti-Terrorism Court No.II, Karachi in
three Special Cases Nos.750/2011 under sections 365/34 PPC read with section 7
of ATA, 01/2012 under section 13(d) Arms Ordinance, 1965, and 01/2012 under
section 13(d) Arms Ordinance, 1965, has been called in question, whereby
transfer application was dismissed.
2. Brief
facts of the prosecution case as disclosed in the FIR are that one Muhammad Aslam lodged his report on 13.12.2012 at police station Saeedabad, alleging therein that on 06.11.2011 his cousin Ahsan Ahmad son of Ahmed Din left home but he did not
return home in the evening. Complainant made search but without result. On
10.12.2011, 12.12.2011 and 13.12.2011 from mobile number of Ahsan
Ahmad, relative of complainant namely Muhammad Shahzad
Saeed received calls of a person without disclosing
his identity and demanded ransom of Rs.3,800,000/-, in case of nonpayment, it
was stated that Ahsan Ahmed would not be released,
threat of his murder was also issued. FIR of the incident was lodged against
unknown persons vide Crime No.750/2011 under section 365-A PPC.
3. During
investigation PW Ahsan Ahmed was recovered by the
police. His 161 Cr.PC statement was recorded, who
stated that on 06.11.2011 he was called by applicant Bismillah
Khan and others to Al-Asif Square, Sohrab Goth. After taking meals, PW Ahsan
Ahmad was detained by accused persons till payment of the amount due against
him.
4. On
completion of investigation challan was submitted
against the applicants Bismillah Khan and Noushad in the Anti-Terrorism Court No.II,
Karachi under sections 365-A and 780A PPC.
5. An
application under section 23 of the Anti-Terrorism Act, 1997 was moved before
the learned Anti-Terrorism Court No.II, Karachi for
transfer of the case from special Court to regular Court. Learned trial Court after hearing both the parties rejected an application
vide order dated 15.03.2012 for the following reasons:
“I have gone through the application filed by the advocate of
the applicant which shows that three cheques were issued by the alleged abductee but this is
serious matter. The abductee has leveled allegation of kidnapping. Subsection
6(2) of ATA, 1997 deals with the case of ATC Courts which deals with kidnapping
for ransom therefore I cannot grant this application, therefore it is
rejected.”
6. Mr.
Abdul Wasey Kakar, advocate
for the applicants mainly contended that from the facts and circumstances of
the case, offence under section 365-A PPC is not made out. It was not the case
of kidnapping for ransom, no scheduled offence has been committed, there was business transaction between PW Ahsan Ahmed and applicants. It is further submitted that
applicants paid Rs.4,000,000/- to the complainant
party for running the PSO Petrol Pump. It is also argued that PW Ahsan Ahmed had issued three cheques
on different dates on account of business deals. Lastly, it is submitted that
trial before the Anti-Terrorism Court would be coram-non-judice and case may be transferred to
the Sessions Court for the trial.
7. Mr.
Ali Haider Saleem, A.P.G.
supported the impugned order of the trial Court and argued that section 365A PPC
is exclusively triable by Anti-Terrorism Court. However,
after perusal of the statement of PW Ahsan Ahmed he
pointed out that there was business dealing between the complainant party and appellants.
8. We
have carefully heard the learned counsel for the parties and perused the
relevant record.
9. From
perusal of the FIR, 161 Cr.PC statement of PW Ahsan Ahmed and other material collected during the
investigation, it transpires that there was business dealing between the
parties, cheques were issued by the complainant party
and the same were dishonoured. Therefore, ingredients
of section 365A PPC are not satisfied from the material collected during the
investigation. Under section 6 of the Anti-Terrorism Act, 1997 terrorism is
determined from the criminal act designed to create a sense of fear or
insecurity in the minds of the general public disturbing even tempo of life and
tranquility of the society and other ordinary crimes like the present one, are
not to be tried under the Anti-Terrorism Act, 1997. Learned Anti-Terrorism
Court in its order has observed that three cheques
were issued by abductee. Thus, on the basis of material available on record, it
is observed that offence is not triable by
Anti-Terrorism Court. Trial Court, while refusing application for transfer the case
has committed illegality and passed impugned orders mechanically.
10. For
the above stated reasons, we have come to the conclusion that learned
Anti-Terrorism Court has no jurisdiction to try the case. Consequently,
criminal revision application is allowed with direction to the trial Court to
transfer the case to the Court of Sessions, having jurisdiction in the matter.
JUDGE
JUDGE
Karachi, dated
Feb.
___, 2013
Gulsher/PA