ORDER SHEET
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Criminal Transfer Application No. 84 of 2011
Present: Mr. Justice Shahid Anwar Bajwa
Mr. Justice Muhammad Ali Mazhar
Gul Muhammad …………….……………………………Applicant
Versus
The State..………………………………………………..Respondent
For the Applicant: Mr.Ali Ahmed Khan
Advocate.
For the State: Syed Sardar Ali Shah A.P.G.
Date of hearing: 20.12.2011.
Muhammad Ali Mazhar, J- The applicant has preferred this Application under Section 526 CR.P.C read with Section 561-A CR.P.C for transfer of Special Case No.58/2010 “State versus Gul Ahmed & others” arising out of a Crime No.150/2010, lodged under Section 353, 427, 435, 337/F (v), 147, 148, 149, PPC and 7 ATA pending in the Court of learned Judge Anti-Terrorism, Sukkur to any ordinary Court having jurisdiction.
2. The complainant ASI Fayaz Ahmed Abbasi lodged FIR on 30.09.2010 which reads as under:-
“The complainant along with other staff duly armed with weapons and in uniform, left police station for performing official duty at Public School Sukkur on flood affected people in official police mobile. When reached at Public School Sukkur, we saw that police parties from PS Site Area, PS Bagerji, PS Tamachani and PS Airport, in their official vehicles, were already present for duty. As the crowd of the flood affected people for receiving “Watan cards” was very huge, we along with the help of Nadra staff, allowed the people inside one by one as per their number. SP Investigation Sukkur, in his official vehicle with his gunman and ASP U.T with his gunman, in his official vehicle also reached there. At about 11.30, more crowd gathered and we asked them not to leave the queue when two persons, obstructed lawful duty, pushed the police and broke the row, and then about 100 persons broke the queue and started hurling the stones on us. The mob brought lathis and sticks and broken the front wind screen of official vehicle No.SP-7473 and also hit on both sides of the vehicle. Other unidentified people broke down the front wind screen of official vehicle No.SP-5947 PS Bagirji, in which driver PC Zulifquar Ghumro was present, and also damaged other private and official vehicles. Meanwhile two persons hit lathee blows on PC Ghulam Murtaza while he was trying to save his motorbike and also broke his right leg at knee and set ablaze his motor bike for creating Terrorism. In the meantime the complainant with two police officials caught hold of both the persons, and other police party and police officers reached there and about 100 unidentified persons began fleeing out of Public School Sukkur. Due to non availability of private Mashirs, HC Nawab Ali, who had hit mark on his nose, and HC Irshad Ahmed were appointed mashers and we interrogated both the arrested persons of their names and address who disclosed their names as Liaquat Ali and Gul Muhammad who along with 100 other unidentified escaped persons in league obstructed lawful duty, hurling stones, damaged Govt and private vehicles and a motor bike and severely injured PC Ghulam Murtaza, HC Nawab Ali and PC Samiullah and set ablaze PC Ghulam Murtaza’s motor bike and committed the offence U/S 147, 148, 149, 353, 427, 435, 337(f) PPC and 7 ATA”.
3. The learned counsel for the applicant argued that an application under Section 23 of the Anti-Terrorism Act was moved which was dismissed by the trial court vide order dated 7.10.2011 without considering the material facts. It was further averred that the alleged incident took place without any intention of the accused party to create any terror or panic but they had simply gathered to collect Watan Card from NADRA for their survival and it is clear from the contents of the FIR that large number of people had gathered only for the purposes of obtaining Watan Card and not to attack upon the police party, therefore the jurisdiction to try the case assumed by the Anti Terrorism Court is unwarranted under the law as the basic ingredients required to be fulfilled for trial of any case in Anti Terrorism Court are lacking.
4. The learned APG argued that since the accused persons intentionally attacked upon the police party and also caused Lathis’ blows and injuries not only to the police personnel but also damaged the government vehicles, therefore Section 7 of the Anti Terrorism Act has been rightly inserted in the FIR and the Anti Terrorism Court has rightly assumed the jurisdiction to try the offences mentioned in the FIR. He further argued that the accused persons have created violence to refrain the police personnel from discharging their lawful duties.
5. After hearing the arguments of the learned counsel, we have reached to an irresistible conclusion that in order to satisfy and to determine whether case is triable by the Anti Terrorism Court or the normal court, it is essential to have a glance over the allegations made in the FIR. It is also incumbent upon this Court to evaluate whether ingredients of offence have any nexus with the object of case as contemplated under Sections 6, 7 and 8 of the Anti Terrorism Act. Whether a particular act is an act of terrorism or not, the motivation, object, design or purpose behind the said act is to be seen. It is also to be seen as to whether the said act has created a sense of fear and insecurity in the public or any section of the public or community or in any sect. Judicial consensus seems to be that striking of terror is sine qua non for the application of the provisions as contained in Section 6 of the Anti Terrorism Act, which cannot be determined without examining the nature, gravity and heinousness of the alleged offence. If any authority is required in support of the above, the same is available in the case reported in PLD 2009 SC 11. In another judgment reported in PLD 2006 SC 109, the hon’ble Supreme Court while relying on its own judgment reported in PLD 1995 SC 1, held that the court should take into consideration the object for which law has been enacted. The interpretation of the law should be placed in a manner which may advance the object and suppress the mischief for which the law in question might have been enacted.
6. Now we have to take into consideration the allegations made in the FIR to examine whether the ingredients of the alleged offence have any nexus with the object of the case as contemplated under Sections 6, 7 and 8 of the Anti Terrorism Act. It is clear from the allegations incorporated in the FIR that the police party reached at Public School Sukkur where flood affected persons were receiving Watan Card and police allowed them to collect their cards one by one according to their turn. It is further stated that on the same day at about 11:30 a.m., huge crowd had gathered and police party called upon them not to break the queue, when two persons obstructed their lawful duties and broke the row and then hundred other persons broke the queue and started hurling stones upon the police party and the huge mob brought Lathis and sticks and broken down the wind screen of official vehicles. Meanwhile to persons hit Lathis’ blows on PC Ghulam Murtaza and also set ablaze his motorbike and hundred un-identified persons fled away from Public School Sukkur.
7. In the judgment reported in PLD 2003 Lahore 585, the learned divisional bench held that according to the scheme of the Anti Terrorism Act, 1997, it is not every disruption of or interference with the duties of a public servant or every coercion, intimidation or violence against a public servant which attracts the definition of ‘terrorism’ contained in Section 6 of the Anti Terrorism Act and what the provisions of Section 6 (2) (1), (m) and (n) of the said Act speak of is a ‘serious’ interference, ‘serious’ disruption, ‘serious’ coercion or intimidation or ‘serious’ violence against a public servant. The word ‘serious’ has been defined by Section 2(w) of the said Act to mean “dangerous to life or property”. A minor and not so serious incident of an altercation and a push, shove or scuffle taking place at the spot had apparently been given a color by the complainant of a graver matter involving ‘terrorism’. In the aforesaid case, the learned bench arrived at a conclusion that the interference with or disruption of the duty of the public servants involved or coercion or intimidation of or violence against such public servants was not ‘serious’ enough to attract the definition of ‘terrorism’ contained in Section 6 of the Anti Terrorism Act and thus a court constituted under the said Act has no jurisdiction to try case.
8. The purpose of launching Watan Cards in the flood affected areas was to facilitate the victims in getting the relief. In the aftermath of the 2010 floods, the Government of Pakistan established a cash compensation scheme to provide immediate relief to the most severely impacted among the affected persons. According to the Watan Scheme for Flood Relief: Protection Highlights 2010-2011, the disaster seriously damaged public infrastructure, including roads, bridges, schools, health, and education facilities. Families lost their crops, livestock and agricultural land, essential for their livelihoods. Their homes were damaged or destroyed completely, leaving millions homeless and displaced. The aim of scheme was to provide a rapid alternative source of assistance to affected families in the flood areas and alleviate and ease their sufferings and losses suffered or sustained by the flood victims.
9. It appears from the scenario as projected in the FIR that mob neither gathered for any act of terrorism nor created a sense of fear or insecurity in the public or any section of public or community or any sect. It is also not clearly spelt out in the FIR that the above action was design to coerce and intimidate or overawe the government or the public or a section of public or community or sect or create a sense of fear or insecurity in society or it was a use of threat for the purpose of advancing a religious, sectarian or ethnic cause, or intimidating and terrorizing the public, social sectors, business community and preparing or attacking the civilians, government officials, installations, security forces or law enforcement agencies. It is manifesting from the allegations raised in the FIR that crowd simply gathered to collect their Watan Card, which shows that there was no preplanned concert or intention to attack the police. It is also clear that public gathered for collection of Watan Card were not armed with any weapon except the allegation that they attacked upon the police party through Lathis. It is quite obvious that due to some delay or mismanagement, mob infuriated under some kind of frustration and they broke the queue but no efforts are shown to have been made by the police to disperse the mob though they had an option to use tear gas to diffuse the public pressure if any. It is also commonly seen that in such type of events, possibility of some untoward incidents can not be ruled out where people gathered/assembled in a large scale, therefore, in order to avoid any mishap or calamity, this was the responsibility of organizers to ensure and make proper and swift arrangements and system for distribution of cards so that the rights of flood affected people might have been delivered promptly. On the contrary, police force deployed to control and provide security to the public has made out a case of terrorism under the provisions of Anti-Terrorism Act against the public which gathered there to receive Watan Cards according to government policy and announcement. However, while observing this, we do not mean to prejudice the case of prosecution on merits that no offence has been made out but we are observing this only to express our concern that at the best the offences charged with in the FIR are triable by the ordinary/normal courts and not by Anti Terrorism Court in which court will decide the case on the basis of evidence whether the applicant was victim or aggressor.
10. This transfer application was allowed by our short order dated 20.12.2011 with the direction to transfer the case relating to crime No.150/2010 of police station Abad from Anti Terrorism Court Sukkur to the court of Sessions Judge, Sukkur. Above are the reasons for the said short order.
Judge
Sukkur:
Dated: 10 .1.2012 Judge