2011 M L D 950
[Quetta]
Before Mrs. Syeda Tahira Safdar and Jamal Khan Mandokhail, JJ
AZIZULLAH ---Applicant
Versus
THE STATE ---Respondent
Criminal Transfer Application No.2 of 201 0, decided on 15th March, 2011.
Anti -Terrorism Act (XXVII of 1997) ---
----Ss. 6, 7 & 28 ---Penal Code (XLV of 1860), Ss.302(b)/34 & 324 ---Qatl-e-amd and
attempt to commit qatl -e-amd---Terrorism ---Transfer of case front court of ordinary
jurisdiction to court of Special Judge, Anti -Terrorism Court ---Application for ---Case was
sought to be transferred from the files of Sessions Judge to court of Special Judge, Anti -
Terrorism Court, on the grounds that accused were absconding; that the offence had been
committed on main road; that incident had created severe fear and panic in the area and that
the offence was an act of terrorism and fell within the ambit of Anti -Terrorism Act, 1997 ---
Validity ---Offence alleged to have been committed by accused persons, was with the motive
to kill the victims by firing with Kalashnikov ---Act was committed on a highway on basis of
past enmity existed between both the parties as per contents of F.I.R. ---Intended action
though had caused loss of life and caused hurt, but only t hat fact would not constitute an
offence to bring same within the purview of terrorism and it was to be established, that
alleged act created any sense of insecurity in general; or even to a particular section of
society; or threat or sense of fear had bee n created due to the same ---In the present case,
though one person had lost his life and other sustained serious injuries, but ingredient
required for forming an offence under S.6 of Anti -Terrorism Act, 1997, which was
intimidation or overawe, either the g overnment or section of public, was missing ---
Application for transfer of case was dismissed, in circumstances.
PLD 2010 QTA 52; Muhammad Mushtaq v. Muhammad Ashiq PLD 2002 SC 84L 2009
SCMR 527; PLD 2009 SC 11; 2002 SCMR 1225 and PLD 2005 SC 530 ref.
Muhammad Qahir Shah for Applicant.
Nemo for the State.
ORDER
MRS. SYEDA TAHIRA SAFDAR, J .-It is contention of the applicant, that he being
complainant of F.I.R. No.70 of 2009, Police Station Kuchlak, District Quetta, repot -fed an
incident, occurred on 5 -8-2009, whereby due to firing with Kalashnikov, by the accused
persons, named in F.I.R., his brother Haji Muhammad died at the spot, while his brother
Wazir Muhammad was seriously injured, who is still ender treatment at Agha Khan Hospital,
Karachi. It is his contention, that after completion of investigation, case was challaned, which
is, pending before the court of Additional Sessions Judge -VI, Quetta. The applicant through
instant application, sought transfer of, the case, from the files of Session s Judge, Quetta, to
the court of Special Judge, Anti -Terrorism Court, Quetta. It is his contention, that as the
accused persons are absconding till present, while the offence had been committed on main
Quetta -Chaman Road, and the incident created severe fe ar and panic in the area, thus the
offence is an act of terrorism, and falls within the ambit of Anti -Terrorism Act, 1997.
According to the applicant, though he had tiled an application for the purpose, before the trial
Court, who without passing an order directed him to approach this Court. Hence present
application.
While arguing the matter, leaned counsel for the applicant, mostly contended, that the offence
committed by the accused persons, clearly falls within the definition of act -of terrorism,
but the police while lodging the report due to some oversight, omitted to mention section 7
of Anti --Terrorism Act, 1997. The learned Counsel contended, that keeping in view the
nature of the offence, only Anti -Terrorism Court, has the jurisdiction in the matt er. He placed
his reliance on Judgments reported in: --
PLD 2010 QTA, Page -52, PLD 2002 SC, Page 841, 2008 SCMR, Page 527, PLD
2009 SC Page 11, 2002 SCMR Page 1225 and PLD 2005 SC Page 530.
The perusal of record reveals, that the complainant Azizullah, while nominating accused
persons namely Masood, Saifullah, Muhammad Din and Abdul Hanan, reported the incident,
occurred on 5 -8-2009, at 9 -30 p.m., whereby the accused persons made indiscriminate firing
with Kalashnikov on his brothers, who sustained bulle t injuries, while Haji Muhammad died
at the spot, and Wazir Muhammad was seriously injured. None of the nominated persons got
arrested, thus on submission of challan, the trial Court, after recording statements of private
witnesses, directed to keep the fi le in dormant, till arrest of accused persons, through order
dated 29 -11-2010. Through instant application, the applicant sought addition of offence,
punishable under section 7 of Anti -Terrorism Act, 1997, in list of alleged offences, thereby
the case be t ransferred to the Court of Special Judge, constituted under Provisions of Anti -
Terrorism Act, 1997. Section -6 of the Anti -Terrorism Act, 1997, defines the term
"Terrorism", while section 7 of the Act, provides the punishment for the acts of terrorism.
Section 6 of the Act XXVIII of 1997 states as under: --
[Section 6 Terrorism .---(1) In this Act, "terrorism" means the use or threat of action: --
(a) the action falls within the meaning subsection (2), and
(b) the use or threat is designed to coerce and i ntimidate 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; or
(c) the use or threat is made for the purpose of advancing a religious, sectarian or
authentic cause or intimidating or terrorizing the public, social sector, business
community and preparing or attacking the civilians, the government officials.
installations, security forces or law enforcing agencies,
(2) An "action" shall fall within the meaning of su bsection (1), if it:
(a) involves the doing of anything that causes death;
(b) involves grievous violence against the persons or grievous bodily injury or harm to a
person;
(c) involves grievous damage to property, including government premises, off icial
installations, schools, hospitals, offices or any other public property;
(d) involves the doing of anything i.e. likely to cause death or endangers a person's life;
(e) involves kidnapping for ransom hostage taking or hijacking;
(ee) involves use of explosives by any device including bomb blast;
(f) incites hatred and contempt on religious, sectarian or ethnic basis to up violence or
cause internal disturbance;
(g) involves taking the law in own hand, award of any punishment by an originati on,
individual or group whatsoever, not recognized by the law, with a view to coerce,
intimidate or. terrorise public individuals, groups, communities, government officials
and institutions, including Law enforcement agencies beyond the purview of the law
of the land; and
(h) involves firing on religious congregations, mosques, Im amgargahs, churches,
temples and all other places of worship, random firing to spread panic, or involves
any forcible take over of mosque or other places of worship;
(i) create s a serious risk to safety of the public or a section of the public, or is designed to
frighten the general public and thereby prevent them from coming out and carrying
on their lawful trade or daily business, and disrupts civil life;
(j) involves the bu rning of vehicles or any other serious form of arson;
(k) involves extortion of money ("bhatta ") or property;
(l) is desired to seriously interfere which or seriously disrupt a communications system
or public utility service;
(m) "Omitted";
(n) involves serious violence against a member of the police force, armed forces, civil
armed forces, or a public servant;
(o) involves in acts as part of armed resistance by groups or individuals against law
enforcement agencies;
(p) involves in disseminati on, preaching ideas, teachings and beliefs as per own
interpretation on FM stations without explicit approval of government or its
concerned departments.
(3) The use or threats of use of any action falling with in subsection (2), which involves
the use o f firearms, explosives or any other weapon, is terrorism, whether or not
subsection (1)(c) is satisfied,
(4) in this section "action" includes an act or a series of acts.
(5) In this Act, terrorism includes any act done for the benefit of a proscribed origination.
(6) A person who commits an offence under this section or any provision of this Act,
shall be guilty of an act of terrorism.
(7) In this Act, "terrorist" means:
(a) a person who has committed an offence of terrorism under this Act, and i s or has been
concerned in the commission, preparation or instigation of acts of terrorism;
(b) A person who is or has been, whether before or after the coming into force of this Act,
concerned in the commission, preparation or instigation of acts of ter rorism, shall also be
included in the meaning given in clause (a) above.
While plain reading the contents of this section reveals that, an action, which falls within the
meaning of subsection (2) amounts to an act of terrorism, with condition, that it co mes within
the purview of clauses (b) and (c) of subsection (I) of section 6 of the Act. The nature of the
action must be of a sort which coerce or intimidate or overawe either the Government, Public,
a Section of Public, a community or a sect. The act in addition creates a sense of fear or
insecurity in the Society or any one of its section or to general public or, even to the
Government. In the case tilted as Muhammad Mushtaq v. Muhammad Ashiq, reported in
PLD Supreme Court 2002 Page 841, the honourable S upreme Court held:
"It would thus appear that ordinary crimes are not to be dealt with under the Act. A
physical harm to the victim is not the sole criterion to determine the question of
terrorism. What is to be seen is the psychological effect produced by the violent action
or with the potential of producing such an effect on the society as whole or a section
thereof. There may be a death or injury caused in the process. Thus where a criminal
act is designed to public disturbing even tempo of life and tr anquility of the society,
the same may be treated to be terrorist act. There maybe just a few killings, random or
targeted, resorted to with single mindedness of purpose. But nevertheless the impact
of the same may terrorise thousands of people by creating a panic or fear in their
minds."
The Hon'ble Supreme Court of Pakistan, while discussing the provisions of Anti -Terrorism
Act, 1997, in detail in appeal titled as Mirza Shaukat Bail; v. Shahid Jamil, reported in PLD
2005, (Supreme Court 530) held:
"After having gone through the entire law as enunciated by this Court in different
cases the judicial consensus seems to be that striking of terror in 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.1.R, its cumulative effects on the society or a group of persons
and the evidence which has come on record. In so far as the factum of intention is
concerned that cannot be evaluated without examining the entire which aspect of the
matter squarely falls within the jurisdictional domain of he Court constituted under
the Act and such question cannot be decided by invocation of Constitutional
jurisdiction without scrutinizing all the circumstances in a broader prospect by
keeping in view the ground realties in mind. There could be no second opinion that
where the action of an accused resulted in striking terror or creating fear, panic,
sensation, helplessness and sense of insecurity amongst 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. What was the real intentio n of the offence could only be adjudged on the
basis of evidence which cannot be determined by invocation of constitutional
jurisdiction and learned Special Judge who is usually a Senior Sessions Judge can
take care of the matter which can be transferred b y him if it does not fall within his
jurisdictional domain. There is no denying the fact that it was never the inattention of
legislature that every offence irrespective of the nature of the offence and its overall
impact on the society or a section of soc iety must be tried by the Anti -Terrorism court
but the question as to whether such trial shall be conducted or not initially falls within
the jurisdictional domain of Anti -Terrorist Court which cannot be interfered within
the absence of sufficient lawful j ustification which appears to be lacking in these
cases. It is, however, obligatory for such Courts to watch carefully the nature of
acquiring and examine the entire record with diligent application of mind to determine
as to whether the provisions as cont ained in the Act would prima facie be attracted or
otherwise? Where such Courts are of the view after taking cognizance of the offence
that the alleged offence does not fall prima facie under the provisions of the Act it
must transfer the same to regular C ourt without loss of time."
Keeping in mind the judgments cited above, while dilating the facts of present case, it is
observed that the offence alleged to have been committed by the accused persons, was with
the motive to kill the victims by making firi ng with Kalashnikov. The evidence, placed on
record, reveals that the act was committed on a highway, on basis of past enmity, existed
between both the parties, as per contents of F.I.R, though the intended action caused loss of
life and caused hurt, but o nly this fact does not constitute an offence, to bring it within the
purview of terrorism. It is to be established, that the alleged act creates any sense of
insecurity in general, or even to a particular section of society or threat or sense of fear has
been created due to the same. In present case, though one person lost his life, and other
sustained serious injuries, but the second ingredient, required for forming an offence under
section 6 of the Act XXVII of 1997, is missing in present case.
In view of above discussion, the applicant has failed to establish his contention. The
application is dismissed, being without merits.
H.B.T./14/Q Application dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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