ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Misc. Appln. No.D-139 of 2013.

DATE

OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE

1. For orders on office objection as Flag ‘A’.

2. For Katcha Peshi.

06.5.2014

Mr. Habibullah G. Ghouri, advocate for the applicant.

Mr. Ali Nawaz Ghanghro, advocate for the complainant.

Mr. Imtiaz Ali Jalbani, A.P.G.

-.-.-.-.-.-.-.-.

Through this Crl. Misc. Application, applicant/accused have impugned the order dated 06.2.2013, passed by the learned Judge, Anti-Terrorism Court, Larkana in Special Case No.1 of 2011, whereby an application for transfer of the case was dismissed.

2. Brief facts of the prosecution case as disclosed in F.I.R are that on 07.1.2011 at 1930 hours Khadim Hussain son of Mir Hassan lodged his report at Police Station Ratodero stating therein that he is working as Sub-Inspector. He has served as SHO at various Police Stations of District Kamber Shahdadkot. On 07.1.2011, he along with his relative Munwar Ali and his brother Khadim Hussain and Gulab son of Ali Anwar Magsi, on the Car of Munwar Ali, and driver Saleem S/o Abdul Ghani by caste Solangi proceeded to Hafiz Abdul Qadir Siyal at Ratodero, from where they boarded in said Car and were returning back from Ratodero to Shahdadkot through Ratodero Shahdadkot road, when at about 5:.30 p.m, they reached near Sirnh-Wara Jalbani, from Southern and Northern sides of the road 12 culprits armed with deadly weapons, whose faces were opened appeared. Accused persons were 1) Barkat s/o Haji armed with G-III Rifle, 2) Ahmed s/o Geo armed with Klashnikov, 3) Amb s/o Sher Muhammad alias Sheroo having G-III Rifle 4) Razak s/o Ali Sher armed with Klashnikov, all by caste Jatoi, R/o house own near Sim Bago Jatoi, Taluka Ratodero, 5)Raheem Bux s/o Qaisar Kharos, R/o Hassan Kharos armed with Klshnikov, 6)Mirchoo s/o Oghan Kharos, R/o Sanjar Kharos armed with Klashnikov, and 6 unidentified accused, out of them 4 accused were armed with Klashnikov and two accused were armed with Guns. Accused persons by show of weapons got Car of complainant party stopped. After identifying complainant it is alleged that accused started firing from their weapons upon them with intention to commit their qatl-i-amd. It is alleged that accused Barkat Jatoi fired shot from his G-III Rifle upon Munwar Ali Magsi which hit him on right side of his abdomen. Accused Ahmed Jatoi fired straight shots from his Klashnikov upon Driver Saleem Solangi, which hit him on his abdomen and back side of chest. The accused Amb Jatoi fired straight shots from his G-III Rifle upon him, with intention to commit his qatl-i-amd which hit him on his right leg thigh. Accused made indiscriminate firing then decamped towards Northern side. Complainant saw that Munwar Ali Magsi and Driver Saleem Solangi died of injuries on the spot. Thereafter complainant lodged F.I.R, it was recorded vide Crime No.03/2011 under section 302, 324, 148, 149, PPC R/w section 6/7 Anti-Terrorism Act, 1997 at Police Station Ratodero.

3. Mr. Habibullah G. Ghouri, learned advocate for applicant/accused mainly contended that Sub-Inspector Khadim Hussain, complainant in this case, was not on official duty at the time of the incident. He has further argued that Investigation Officer has wrongly submitted challan in the Anti-Terrorism Court. According to Mr. Ghouri, no act of terrorism has been committed by the applicant/accused.

4. Mr. Imtiaz Ali Jalbani, A.P.G assisted by advocate for complainant seriously opposed the application and argued that offence was committed on main Ratodero-Shahdadkot Road by means of sophisticated weapons Sub-Inspector Khadim Hussain was the target of the assailants and indiscriminate firing was made in which SIP was saved. Driver Saleem Solangi and Munwar Ali by sustaining firearm injuries died. It is also argued that it is not the case of the personal enmity between the two parties. Lastly it is argued that offence falls under section 6(n) of Anti Terrorism Act, 1997. Reliance has been placed upon the case of Nadeem Butt versus Special Court Constituted Under Anti-Terrorism Act, 1997 (2000 SCMR 1086).

5. We have carefully heard the learned counsel for the parties and perused the relevant record.

6. 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 whether 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 tribal by a Special Court constituted for such purpose.

7. 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,”

8. 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”.

9. In the present case accused persons have committed offence on the main road. Target was Sub-Inspector Khadim Hussain. It is immaterial that S.H.O was not on duty at the time of violence. In the result of indiscriminate firing by automatic weapons two persons have lost their lives. Sub-Inspector was attacked. Act of accused on main road in brutal manner created fear and insecurity to the general public. Moreover act of the accused apparently involves serious violence against the members of the police force, as such case prima facie falls under section 6(n) of Anti-Terrorism Act, 1997, therefore, Anti-Terrorism Act has the exclusively jurisdiction to try the case. Therefore, we do not find merit in the above application and the same is dismissed. These are the reasons of our short order dated 06.5.2014.

Judge

M.Y.Panhwar/**