ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Crl.Rev.Appln.No.93 of 2014

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Order with signature of Judge

1. For orders on office objection & reply of Adv.at Flag-A

2. For Katcha Peshi

3. For hearing of MA No.4948/14

22.10.2014

Mr.Aamir Mansoob Qureshi, advocate for applicants

Mr.Abdul Majeed Khoso, advocate for complainant

Mr.Abrar Ali Khaichi, APG

………

This Crl.Rev.Application has been preferred against the order dated 14.05.2014, passed by the Anti-Terrorism Court No.III, Karachi, on the application moved by the applicants under Section 23 of the Anti-Terrorism Act, 1997, in Special Case No.37(iii) of 2013, which was dismissed.

Learned counsel for the applicants argued that initially the case was registered only under Section 302 PPC at PS Darakhshan. However, the District Public Prosecutor, South, Karachi, had given his opinion on 13^th June, 2013 after scrutinizing all police papers that the police has not applied proper sections of law i.e., Section 6 & 7 of the Anti-Terrorism Act, 1997. He further stated that the I.O., is required to do the needful and submit his report under Section 173 Cr.P.C., before the competent court of law having jurisdiction, after scrutinizing legal opinion of learned District Public Prosecutor. Learned counsel further argued that on the directions of this court, in C.P.No.D-3108/2013, re-investigation was conducted by A.D., Khwaja, ADGIP Training Sindh, Karachi, in which also he considered the entire record including statements of eyewitnesses recorded by the I.O., in which also, apparently no case under section 7 of Anti-Terrorism Act, 1997, was made out. He further submits that even statements of witnesses recorded under section 161 Cr.P.C., do show that case is not triable by the Anti-Terrorism Court. Learned counsel argued that the trial court failed to

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consider the crucial facts while deciding application under Section 23 of Anti-Terrorism Act, 1997.

On the contrary, learned counsel for complainant argued that it was a broad daylight incident which was also widely reported in the print and electronic Media which created sense of fear and insecurity amongst the public at large. While learned APG argued that learned trial court while passing impugned order, did not consider all ingredients which are necessary to see before trying the case under Anti-Terrorism Act and no definite findings in connection with applicability of Section 23 have been given in the impugned order. So it would be appropriate to remand the matter back with the directions to the trial court to decide the application afresh.

We have gone through the impugned order. Learned trial court only relied upon the judgment of this court reported in 2014 PCrLJ 43, in which this court held that:-

“Perusal of the available record transpires that the alleged offence was committed on a path during daytime and it is an admitted position that after submission of challan in Anti Terrorism Court, the prosecution could not examine the ocular/circumstantial/ medical/expert witnesses nor otherwise any material was available to ascertain that no panic, fear and insecurity had been created in the minds of people as apparently accused made reckless firing with Kalashnikov i.e. rifles of prohibited bore, which had frightened the general public or not, therefore, at this premature stage the severity and nature of the alleged offence cannot be determined.”

Learned trial court further observed in the impugned order that evidence has not been recorded and charge is to be framed, hence this application was dismissed. We have no hesitation in our minds to hold that

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at the time of deciding the application under Section 23 of Anti-Terrorism Act, 1997, no doubt the prime consideration is to see the contents of FIR as to whether any case of Terrorism is made out or not? Secondly other material available on record such as statements recorded under Section 161 Cr.P.C., and statements recorded under Section 164 Cr.P.C., are also to be considered. What happened in this case is not only that the order for re-investigation was passed by this court and Section 6 & 7 were inserted on the basis of opinion given by District Public Prosecutor. So it requires application of mind by trial court on the touchstone of Section 6 & 7 of Anti-Terrorism Act, 1997 which can only be decided once entire material available on record is considered in totality to see whether the alleged incident created sense of fear or insecurity in the society or not. There are so many judgments of hon’ble Supreme Court available including judgments of this court as well as other High Court which provide ample guidance to decide such type of application which has not been done in this case. Recently in the judgment reported in SBLR 2014 Sindh 924, authored by one of us, (Mr.Justice Naimatullah Phulpoto), it was held as under :-

“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 the secion of the public or community or in any sect, there can be no

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second opinion that where action results in striking terror or creating fear, panic, sensation, helplessness and sence 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 purposed.”

As a result of above discussion, impugned order is set aside and trial court is directed to decide the application afresh within a period of 10 days after hearing learned counsel for accused, complainant as well as Special Prosecutor. Compliance report should be submitted to this court through MIT-II.

J U D G E