IN
THE HIGH COURT OF SINDH AT KARACHI
Criminal
Revision Application No.43 of 2013
|
DATE: |
ORDER WITH SIGNATURE(S) OF JUDGE(S) |
---------------------------------------------------------------------------------------------
1.
For orders on M.A.No.1936/2013.
2.
For orders on office objection and reply
of Advocate at flag A.
3.
For Katcha Peshi.
4.
For hearing of M.A.No.1831/2013.
-------------------------------------------
M/s. Mohammad Ashraf
Kazi andWazir Hussain Khoso,
Advocates
for applicant Shah Rukh Jatoi.
Mr.
Faisal Siddiqui Advocate for Complainant.
Mr.
Saleem Akhtar Burriro Additional Prosecutor General Sindh.
------------------------------------------------------------------------
NAIMATULLAH
PHULPOTO, J.-- This Criminal Revision
Application is directed against the order dated 05.03.2013 passed by learned
Judge, Anti-Terrorism Court No.III, Karachi, in Special Case No.16(III)/2013
The State Vs. Shahrukh Jatoi and others registered at P.S Darakhshan under
Section 302/34 PPC.
2. Brief facts
of the prosecution case as disclosed in the FIR are that on 25.12.2012 at 0125
hours complainant Orangzaib lodged FIR alleging therein that on 24.12.2012 at
2330 hours, there was a quarrel between his son Shahzaib and some boys/accused,
namely, Shahrukh Jatoi, Siraj Talpur and others. Matter was settled then and
there. After the period of about 20 minutes, complainant received information
that his son Shahzaib has received firearm injuries and his friend has brought
him to Ziauddin Hospital. On hearing this news complainant along with PWs Talha
Alam and Danish Dosani went to the hospital and found his son lying dead.
Initial investigation was carried out by SI Nafees Ahmed. He prepared inquest
report, visited place of incident on the pointation of eye witness Mohammad
Ahmed Zubairi, secured nine bullets of pistol, two live bullets, pieces of
glasses and plastic cover of side mirror of Swift car driven by deceased Shahzeb
at the time of incident and recovered the said car. On 25.12.2012 it is alleged
that I/O recorded further statement of complainant Orangzaib, his wife Mst.
Ambreen, daughter Ms. Maha, eye witnesses namely 1. Mohammad Ahmed Zubairi, 2. Mohammad
Shah, 3. Abid Hameed and 4. Asghar Hussain. On the
basis of statements of P.Ws including the statements of members of the civil
society, the I/O added Section 354 PPC read with Section 7 ATA, 1997 and made
efforts for arrest of accused. It may be mentioned here that Honourable Supreme
Court of Pakistan took Suo Moto notice of the incident on 01.01.2013 and
investigation was entrusted to Inspector Mohammad Mubeen on the orders of SSP,
Investigation South. On 05.1.2013 accused Siraj Ali Talpur and Sajjad Ail Talpur
were arrested. On 09.01.2013 identification parade of accused was held through
P.Ws Abid Hameed and Asghar Hussain before Judicial Magistrate Karachi South.
On 10.01.2013, I/O arrested accused Sikandar Ali. On 11.01.2013 164 Cr.P.C
statements of P.Ws Mohammad Ahmed Zubairi and Mohammad Shah were recorded. I/O
during investigation could not collect any incriminating material against
accused Sikandar Ali to connect him in this case and he was released under
Section 497(2) Cr.P.C. Thereafter, breaking news came on media that main
accused Shahrukh Jatoi had left the country and was hiding himself at Dubai.
After completion of the formalities accused Shahrukh Jatoi was arrested and produced
before the trial Court. His identification parade was arranged through P.Ws
Abid Hameed and Asghar Hussain. On the pointation of accused Shahrukh I/O
secured unlicensed 9 MM Pistol containing four live bullets in its magazine
from the car AHN-022, Toyota mark-II, silver colour and it was seized. As the
pistol was unlicensed separate case u/s 13(e) Arms Ordinance, 1965 was
registered against accused Shahrukh on behalf of state. The empties secured
from the place of wardat and pistol were sent to the
Forensic Science Laboratory for report.
3. After
completion of the investigation, challan was submitted against the accused u/s 302/354/109/216/34
PPC read with Section 7 ATA, 1997 in the Anti-Terrorism Court No.III, Karachi.
4. An
application under Section 23 of Anti-Terrorism Act, 1997 for transfer of the
present case to the Court of ordinary jurisdiction was filed on 25.02.2013.
Notice was issued to the SPP. Learned Judge, Anti-Terrorism Court No.III,
Karachi, after hearing both parties dismissed application dated 05.03.2013 mainly
for the following reasons:-
“Examining the instant case with the
above yardstick of law, I am persuaded to agree with the learned advocate for
the complainant that murder of deceased Shahzaib has been committed by the
accused with sole object to set example for public at large more particularly the
parents of young daughter not to object the act of the accused or their
employee for teasing their young daughters. The further statement of the
complainant recorded on 25.12.2012, (on very night of registration of the FIR),
manifest that Miss Maha was teased by house servant (Ghulam Murtaza Lashari) of
Siraj Talpur, she made telephone call to her mother, the later issued
directions to deceased Shahzaib to go for rescue of his sister. Meanwhile,
bickering had taken place between Shahzaib and Siraj Talpur, Sajjad Talpur,
Shahrukh Jatoi, house servant, Salman Jatoi and Asif Lund. Shahrukh Jatoi and
Siraj Talpur were armed with pistols. They issued threats of dire consequences
to Shahzaib, the complainant endeavored to settle the dispute, he was directed by Siraj Talpur to seek pardon from his
employee by his son Shahzaib. On the direction of the complainant the deceased
did so. Even then the malefactors Shahrukh not accepted the said pardon and
while disclosing his identity of son of rich man namely Sikandar Jatoi declared
to exterminate Shahzaib. Thereafter, again started beaten the later, whom his father (the complainant) asked to leave the subject
place. The said deceased in his car alone went away,
he was followed by accused persons four in number in a car while making aerial firing.
Mohammad Ahmed Zuberi and Mohammad Shah friends of the deceased also followed
both the cars on the directions of the complainant. After sometime later
informed the complainant that deceased Shahzaib was attacked by the accused at
Khayaban-e-Behria and caused him fire arm injuries, who
was brought at Ziauddin Hospital but could not survive. The similar statement
has been advanced by Mst. Ambreen (mother of the deceased), Miss Maha so also
eye witnesses Mohammad Ahmed Zubairi and Mohammad Shah. Cropped up point need
attention is that when first bickering settled on the intervention of
complainant and deceased had sought excuse from the accused more particularly
from Ghulam Murtaza Lashari (maid servant), then there was no need/occasion to
exterminate the said deceased by the accused, but while did so the accused had
spread terror in the society and endeavored to send message for the general
public at large that, they are above the law and whatever they like they will
do so, no one can restrained them. The subject act of the accused created sense
of fear and insecurity in the vicinity people as evident from the statements of
Athar Nazeer, Kamran Siddiqui, Shehyar Irfan, Abdullah Sohail and Mohammad Ali,
resident of country club as well as adjacent area, who loudly speaks that due
to said grime act of the present perpetrators, fear has been created in the
area as well as amongst civil society. Their parents are not allowing them to
leave the houses after sunset. Significant to mention that the subject incident
had also unrest the civil society and they launched campaign of protest at the
road. This incident also attracted the attention of public at large even
residing at remote area as has been published in newspapers and televised in
all channels by media. The Hon’ble Supreme Court had also took
Suo Moto notice of the incident. The clear motive for the subject incident has
been introduced by the complainant, as well as P.Ws in their statements, i.e.
outraged modesty of Miss Maha by house servant of Siraj Talpur. Had the said
malefactor did not do so, the instant crime would have
not taken place. Therefore, I found no legal justification in the plea of
learned advocate for the accused that this case is lacking of motive. Indeed
creation of sense of fear in the society due to act of the accused for murder
of Shahzaib is coupled with motive indicated above. I have great honour and
respect for the decta laid down and observation made by the Hon’ble Superior
Courts in the precedents cited by the learned advocate for the accused, but I
am afraid that the same are not applicable in the facts and circumstances of
the present case.
The cumulative effect of my above
discussion is that the instant crime having nexus with section 6 of
Anti-Terrorism Act, 1997. In short subject offence has been committed with the
object to terrorize section of public and such act has explicitly created sense
of fear and insecurity in society, therefore, this Court is competent/having
jurisdiction to try the accused of the subject crime. The application being
merit less is dismissed accordingly.”
5. Mr. Mohammad Ashraf Kazi learned advocate
for applicant/accused Shahrukh Jatoi contended that all the sections applied in
the FIR are triable by Court of Sessions. I/O has wrongly added Section 354 PPC
read with Section 7 ATA of 1997 in the Challan. It is argued that no act of
terrorism has been committed by the applicant. There was enmity between the
parties as there was a quarrel before the commission of murder,
Anti-Terrorism Court has no jurisdiction to try case. It is further submitted
that trial court was influenced by media reports and alleged offence had not
created terror in the society as it was committed at night time in isolated
place. Lastly, it is argued that Anti-Terrorism Court has committed material illegality
while refusing the transfer of case to the ordinary court. In support of the
contention reliance has been placed upon the cases of Ahmed Jan Vs. Nasrullah and others (2012 SCMR 59), Bashir Ahmed Vs. Muhammad Siddique and
others (PLD 2009 SC 11) and Basharat Ali versus Special Judge,
Anti-Terrorism Court-II, Gujranwala (PLD 2004 Lahore 199).
In order to appreciate the case law
cited by learned advocate for the applicant/ accused we have gone through the
citations.
In the case
of Bashir Ahmed Vs.
Muhammad Siddique and others (PLD 2009 SC 11), the Honourable Supreme
Court has held as under:-
“After having gone through the entire
law as enunciated by this Court in different cases the judicial consensus seems
to be that striking off terror is sine qua non for the application of the
provisions as contained in section 6 of the Act which cannot be determined
without examining the nature, gravity and heinousness of the alleged offence,
contents of F.I.R its cumulative effect on the society or a group of persons
and the evidence which has come on record. There could be no second opinion
that where the action of an accused results in striking terror or creating fear, panic,
sensation, helplessness and sense of insecurity among the people in a
particular vicinity it amounts to terror and such an action squarely falls
within the ambit of section 6 of the Act and shall be triable by a Special
Court constituted for such purpose but in the instant case position is all together
different. Learned Special Court has no jurisdiction to try the offence as it
did not fall within the ambit of the Act and is triable by an ordinary Court
having jurisdiction.
In the case
of Ahmed Jan Vs.
Nasrullah and others (2012 SCMR 59), the Honourable Supreme Court has
held as under:-
“A bare reading of the F.I.R. indicates
that four accused, one armed with a pistol, one with knife and the remaining
with sticks, attacked the complainant party in consequence of which Sher Jan
died and Naseeb Ullah received injuries. No motive was alleged and the police
after due investigation submitted challan/report under section 173 Cr.P.C
before the learned Court of Session and the same was entrusted to an Additional
Sessions Judge, who transmitted it to the Special Court established under the
Anti-Terrorism Act, 1997. To assume jurisdiction under the afore-referred Act,
the Court has to examine the mandate of the relevant penal provision which is
section 6 of the Anti-Terrorism Court.”
In the case Basharat Ali versus Special Judge,
Anti-Terrorism Court-II, Gujranwala (PLD 2004 Lahore 199), it has been held as under:
“7. The
discussion made above shows, and shows quite clearly, that out of the various
facets of the world view about terrorism one factor is constant and that is
that in order to qualify as terrorism an act must be designed to achieve a
political and a larger objective and the same is not primarily directed against
the actual victims themselves who are treated merely as ‘collateral damage’. It
is also quite evident that the extent of the actual damage caused or injuries
inflicted by the act is not the determinative factor in this regard.”
6. Mr. Saleem
Akhtar Burriro learned Additional Prosecutor General assisted by Mr. Faisal
Siddiqui Advocate for complainant argued that on petty matter,
applicant/accused committed murder of a young boy by means of the pistol on
road along with his companions, such terrorist act of accused created terror in
the area. It is further submitted that accused had shown disrespect to the sister
of the deceased and on his protest committed his brutal murder. Effect of the
incident was such that the persons of the locality were terrorized and
protested against the applicant/accused. Lastly it is submitted that trial
Anti-Terrorism Court has taken the cognizance of case on the basis of FIR,
further statement of the complainant, 161 Cr.P.C statements of the P.Ws and
other material at the time of challan. In support of the contentions, reliance
has been placed on the cases reported as Nazeer
Ahmed and others Vs. Nooruddin and another (2012 SCMR 517), State through
Advocate General N.W.F.P Peshawar Vs. Muhammad Shafiq (PLD 2003 S.C 224), Mst.
Raheela Nasreen Vs. The State and another (2002 SCMR 908)
& Muhammad Ameen and 2 others Vs. Government of Sindh through Home
Secretary, Karachi and another (2013 YLR 632).
In the case
of Nazeer Ahmed and others Vs.
Nooruddin and another (2012 SCMR 517), the Honourable Supreme Court has
held as under:-
“We have heard the learned Advocate
Supreme Court and have perused the record. The learned High Court has examined
the material at length and has rightly concluded that the act of the
petitioners created sense of insecurity amongst the villagers and did
destabilize the public at large and therefore, attracts the provisions of
section 6 of the Anti-Terrorism Act. The learned Advocate Supreme Court in
support of his contentions has relied upon the Judgments reported in the case
of Mohabat Ali v. The State reported in 2007 SCMR 142 and the case of Bashir
Ahmed v. Muhammad Siddiq, reported in PLD 2009 SC 11, which are distinguishable
on facts. Neither the motive nor intent for commission of the offence is
relevant for the purpose of conferring jurisdiction on the Anti-Terrorism
Court. It is the act which is designed to create sense of insecurity and or to
destabilize the public at large, which attract the provisions of section 6 of
the AT Act, which in the case in hand was designed to create sense of
insecurity amongst the co-villagers.”
In the case
of State through Advocate General
N.W.F.P Peshawar Vs. Muhammad Shafiq (PLD 2003 S.C
224), the Honourable Supreme Court has held as under:-
“We have to see the psychological impact
created upon the minds of the people. It is also not necessary that the said
act must have taken place within the view of general public so as to bring it
within the encompass of the Act. Even an act having
taken place in a barbaric and gruesome manner, if it had created fear and
insecurity, would certainly come within the purview of the Act. Reference in
this regard is made to the case of Mst. Raheela Nasreen v. The
State and another 2002 SCMR 908 wherein the husband was killed by a Batman in
connivance with his wife inside the house. However, the case was tried
by the Special Court constituted under the Act as this act of the Batman, being
a trusted person employed by an army officer though committed inside the house,
was likely to strike terror leading to the feelings of insecurity among the
army officers in spite of the fact that they had not seen the incident.”
In the case
reported as Mst. Raheela Nasreen Vs. The
State and another (2002 SCMR 908), the Honourable Supreme Court has held as
under:-
“From a bare reading of section 6(b) of
the Act, it is manifest that it is not necessary that the offence as alleged
had in fact, caused terror as the requirement of the said provision of law
could be adequately satisfied if the same was likely to strike terror or sense
of fear and insecurity in the people.
The learned Judges of the High Court
came to the conclusion that a Batman who was a trusted person of an army
officer if he kills as alleged his master in connivance with his (master’s)
wife, the same was likely to strike terror or felling of insecurity among the
army officers which reasonings in our view are based on relevant consideration
having logical nexus with the relevant law and do not suffer from any legal
infirmity.”
In the case
of Muhammad Ameen and 2 others Vs.
Government of Sindh through Home Secretary, Karachi and another (2013 YLR
632), this Court has held as under:-
“Similarly
the facts and circumstances in the case of Mohabbat Ali reported in 2007 SCMR
142 referred to by the counsel for the Petitioners are also distinguishable to
the present case. In the said case it has been observed that alleged offence
has taken place due to previous enmity and private vendetta, but in the present
case the Petitioners have failed to establish previous enmity or private
vendetta at all and even if there is any enmity it is to be established through
evidence. In this regard our own High Court in the case of Nooruddin v. Nazeer
Ahmed reported in 2011 P.Cr.L.J., 1370 has held that the case cannot be
transferred on the basis of previous enmity as the same was not the sole
criterion to decide such point and that was upheld by the Honourable Supreme
Court of Pakistan in the case of Nazeer Ahmed v. Nooruddin reported in 2012
SCMR 517. Para-3 of the above judgment is reproduced hereunder:-
We
have heard the learned Advocate Supreme Court and have perused the record. The
learned High Court has examined the material at length and has rightly
concluded that the act of the petitioners created sense of insecurity amongst
the villagers and did destabilize the public at large and, therefore, attracts
the provisions of section 6 of the Anti-Terrorism Act. The learned Advocate
Supreme Court in support of his contentions has relied upon the judgments
reported in the case of Mohabat Ali v. The State reported in 2007 SCMR 142 and
the case of Bashir Ahmed v. Mohammad Siddiq, reported in PLD 2009 SC 11, which
are distinguishable on facts. Neither the motive nor intent for commission of
the offence is relevant for the purpose of conferring jurisdiction on the
Anti-Terrorism Court. It is the act which is designed to create sense of
insecurity and or to destabilize the public at large, which attract the
provisions of section 6 of the AT Act, which in the case in hand was designed
to create sense of insecurity amongst the co-villagers.”
7. We have carefully
heard learned counsel for the parties, perused the relevant record and case law
cited at Bar.
8. In
order to determine as to whether an offence would fall within the ambit of
section 6 of Anti-Terrorism Act, 1997 it is essential to have a glance over the
allegations made in the FIR, material collected during investigation and
surrounding circumstances. It is also necessary to examine whether the
ingredients of alleged offence have any nexus with the object of the case as
contemplated under section 6, 7 and 8 thereof. Whether a particular act is an
act of terrorism or not, the motivation, object, design and 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 in a section of the
public or community or in any sect, there can be no second opinion that where
action results in striking terror or creating fear, panic, sensation,
helplessness and sense of insecurity among the people in the particular area it
amounts to terror and such an action squarely falls within the ambit of section
6 of the Anti-Terrorism Act, 1997 and shall be triable by a Special Court
constituted for such purpose.
9. Section 6 of
the Anti-Terrorism Act, 1997 provides the definition of “terrorism”. In order
to better appreciate the legal position, section 6(b) of the said Act which
defines a “terrorist act” is reproduced as under:
“6. Terrorism.---(1) In this Act, “terrorism”
means the use or threat of action where:
(a) ………………………………………
(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 create a sense of fear or insecurity in society;”
10. A bare reading
of the above quoted provision of law makes it crystal clear that Courts have
only to see whether the “terrorist act” was such which would have the tendency
to create sense of fear and insecurity in the minds of the people or any
section of the society. The Honourable Supreme Court in a case reported as The
State through Advocate General, N.W.F.P. Peshawar v. Muhammad Shafiq PLD 2003
SC 224 has held as under:
“We
have to see the psychological impact created upon the minds of the people. It
is also not necessary that the said act must have taken place within the view
of general public so as to bring it within the encompass
of the Act. Even an act having taken place in a barbaric and gruesome manner,
if it had created fear and insecurity, would certainly come within the purview
of the act.”
11. In the present
case of accused Shah Rukh Jatoi, offence was committed on the road. By said act
of the accused, young boy was shot dead by automatic weapon over a petty
matter. It was terrorist act of the accused Shah Rukh, proudly saying to be son
of Sikandar Jatoi with sole object to set example for public at large, more
particularly the parents of young daughters not to object to the act of the
accused or their employee(s) for teasing their young daughter. The further
statement of the complainant recorded on 25.12.2012, manifests that Miss Maha
was teased by servant of accused Siraj Talpur, she made telephone call to her
mother, the later asked deceased Shahzaib to go for rescue of his sister. By
such act the accused created a sense of helplessness in minds of people. Impact
of the act was such that people of the area protested, came on roads, news
flashed in print and electronic media, Honourable Supreme Court of Pakistan
took suo-moto notice. Accused Shah Rukh being influential
person without joining the investigation succeeded to leave the country.
It is clear in this case that the act of accused Shah Rukh Jatoi was designed
to create a sense of fear and insecurity and helplessness in the minds of
general public disturbing the tempo of the life and tranquility of the society Provisions
of section 6 of the Anti-Terrorism Act, 1997 are fully attracted in this case. The impact of such act terrorized society at large by creating
panic and fear in their minds. There is no force in the contention of
learned advocate for the Applicant that present case does not fall within the
jurisdiction of Anti-Terrorism Court in absence of motive. In the case of Mirza
Shaukat Baig versus Shahid Jamil and others (PLD 2005 SC 530) it is held
that, “there
could be no second opinion that where the action of an accused results in
striking or creating fear, panic, sensation, helplessness and sense of insecurity
among the people in a particular vicinity it amounts to terror and such an
action squarely falls within the ambit of section 6 of the Act.” Arguments of learned advocate for the applicant that
murder has been committed on the basis of previous enmity and offence would not
fall within the jurisdiction of Anti-Terrorism Court is also without any merit
for the reasons that presence of personal enmity would not exclude the jurisdiction
of Anti-Terrorism Court. Neither motive nor intent for commission of offence is
relevant for the purpose of conferring jurisdiction on the Anti-Terrorism
Court. In the case of Nooruddin versus Nazeer Ahmed and 4 others (2011
PCr.LJ 1370) this precise argument was rejected, it was held that
enmity would not be the sole criteria to determine the jurisdiction of
Anti-Terrorism Court. Aforesaid judgment of this Court was upheld by Honourable
Supreme Court in the case Nazeer Ahmed and others Vs. Nooruddin and
another (2012 SCMR 517). Relevant portion is reproduced as under:
“We have heard the learned Advocate
Supreme Court and have perused the record. The learned High Court has examined
the material at length and has rightly concluded that the act of the
petitioners created sense of insecurity amongst the villagers and did
destabilize the public at large and therefore, attracts the provisions of
section 6 of the Anti-Terrorism Act. The learned Advocate Supreme Court in
support of his contentions has relied upon the Judgments reported in the case
of Mohabat Ali v. The State reported in 2007 SCMR 142 and the case of Bashir
Ahmed v. Muhammad Siddiq, reported in PLD 2009 SC 11, which are distinguishable
on facts. Neither the motive nor intent for commission of the offence is
relevant for the purpose of conferring jurisdiction on the Anti-Terrorism
Court. It is the act which is designed to create sense of insecurity and or to
destabilize the public at large, which attract the provisions of section 6 of
the AT Act, which in the case in hand was designed to create sense of
insecurity amongst the co-villagers.”
We, therefore, hold that act of accused Shah Rukh Jatoi
created sense of helplessness and insecurity amongst the people of Defence/Clifton
area, where offence was committed and did destabilize the public at large. As
such, provisions of section 6 of the Anti-Terrorism Act, 1997 are fully
attracted in this case. Therefore, present case would fall within the
jurisdiction of Anti-Terrorism Court. Order of learned trial Court dated 05.03.2013
did not suffer from any material irregularity or illegality, the same is
maintained. Trial Court is directed to decide the case expeditiously.
These are
the reasons for our short order announced by us on 24.04.2013.
JUDGE
JUDGE
Gulsher/PA