2018 M L D 706
[Balochistan]
Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
ABDUL MAJEED--- Petitioner
Versus
SPECIAL JUDGE ANTI -TERRORISM COURT -I and another ---Respondents
C.P. No.960 of 2017, decided on 23rd October, 2017.
Penal Code (XLV of 1860) ---
----Ss. 302, 324, 320, 279, 337- G, 337- H & 427--- Anti-Terrorism Act (XXVII of 1997), Ss. 7
& 23 ---Qatl-i-amd, attempt to commit qatl- i-amd, qatl -i-khata by rash and negligent driving,
rash driving or riding on a public way, hurt by rash and negligent driving, hurt by rash and
negligent act, mischief causing damage to the amount of fifty rupees, act of terrorism ---
Petition for transfer of case from Anti -Terrorism Court to ordinary criminal court with
contention that the offences alleged against the petitioner were of rash and negligent driving or in alternate qatl -i-bisabab, ingredients of S. 6(m)(n) of the Anti -Terrorism Act, 1997,
therefore, were not attracted; case of petitioner was triable by the ordinary court and the prosecution with mala fide intention, had subsequently inserted S. 7 of Anti -Terrorism Act,
1997, to deprive both the parties from compromise ---Validity ---Prosecution case was that
accused (Member Provincial Assembly) was driving the vehicle speedily ---Traffic Sub -
Inspector signaled the vehicle to stop but it did not stop and hit the Traffic Sub- Inspector and
rider of a bicycle, due to which the cycle rider and Traffic Sub- Inspector were injured but
Traffic Sub -Inspector, succumbed to the injuries ---Record showed that matter was repo rted
promptly to the police ---Accused remained fugitive from law from 20th June, 2017 to 24th
June, 2017 and thereafter arrested on public pressure by the police ---Record revealed that
accused was driving the vehicle without a valid driving license ---Accus ed did not bother to
rescue the injured persons ---Circumstances showed that it was not a case of simple accident
due to rash and negligent driving ---Record transpired that there were other FIRs available on
record against the accused/petitioner, wherein on e of the FIR was lodged against him under
Ss. 365, 342, P.P.C. & S.6 of Anti -Terrorism Act, 1997, as such, the past conduct of the
accused could be adjudged from the said FIRs ---Such act of the petitioner had created a sense
of fear and insecurity amongst the police force and the general public---Record revealed that the manner in which the occurrence had taken place appeared repeatedly in news channels and daily newspapers ---CDs of the incident were also taken into possession by the
prosecution from the of ficial CCTVs and private channels, which further prima facie
highlighted the act of accused as that of "terrorism" ---Constitutional petition being devoid of
merits, was dismissed accordingly.
Kashif Ali v. The Judge, Anti -Terrorism Court -II, Lahore and others PLD 2016 SC
951 rel.
Kamran Murtaza and Naseebullah Tareen for Petitioner.
Naseer Ahmed Bangulzai, Additional A.G. and Saeed Ahmed Kakar for the State.
Date of hearing: 9th October, 2017.
JUDGMENT
ABDULLAH BALOCH,. J. ---Through this Constitutional Petition, the petitioner
seeks the following reliefs:-
"It is therefore, respectfully prayed that Order dated 22.8.2017 passed by learned
Special Judge Anti -Terrorism Court -I Quetta may kindly be set aside and by
accepting application under section 23 of ATA, 1997, petitioner's case may kindly be transferred from the Court of Special Judge Anti -Terrorism Court -I Quetta to any
Ordinary Court having jurisdiction, in the interest of law and justice."
2. Facts of the case are that on 20th June, 2017 the compla inant Asim Ali, Constable,
lodged FIR No.92/2017 at Police Station Civil Line Quetta under Sections 302, 324, 320, 279, 337/GH, 427, P.P.C. R/W Section 7 of ATA, 1997, stating therein that on the fateful day at about 07:05 p.m. he along with Haji Attaullah, TSI was present at his duty at G.P.O. Chowk Quetta, after closing the session of Provincial Assembly Sessions, the Chief Minister and M.P.As were passing through their vehicles, a vehicle bearing Registration No.BD -4381
of Chairman Public Accounts Commit tee, Balochistan Assembly was speedily appeared, TSI
Attaullah signaled the same to stop and the vehicles of other side were signaled to move, the said vehicle did not stop and hit the TSI namely Attaullah from back due to which TSI Attaullah fell down, th e said vehicle also hit a 2 -D car which was damaged badly and also hit
a bicycle, due to which bicycle rider became injured. Both injured were taken to hospital for
treatment in private vehicle, the driver of vehicle No.BD -4381 by taking the advantage of
traffic -hustle made his escape good.
3. After registration of FIR, the petitioner was arrested and he was subjected to
investigation. On completion of investigation, the challan of the case was submitted before the learned Special Judge, Anti -Terrorism Court -I, Quetta (hereinafter referred as, "the trial
Court"). In the meanwhile, the petitioner filed an application under Section 23 of the Anti -
Terrorism Act, 1997, before the trial Court for transfer of case to the ordinary Court, who after hearing the parti es, diminished the same, vide order dated 22nd August 2017.
4. The learned counsel for the petitioner contended that on the face of record, the
offence alleged against the petitioner is one of rushed and negligent driving or, in alternate, either Qatal -e-Bisabab, as such, does not fall within the ambit under section 6 (m) (n) of the
Anti-Terrorism Act, 1997; that the report under section 173, Cr.P.C. is prepared in the instant
case is manifestly connected with mala fide and the offences added by the Investi gation
Officer subsequently are based on no evidence, rather based on deliberate and motivated conjectures and surmises; that there is no iota of evidence available on record to attract the provisions of section 6(m)(n) of Anti -Terrorism Act, 1997; that the essential ingredients of
section 6 of ATA are missing in the case of prosecution; that the learned trial Court while passing the impugned order has improperly appreciated the facts involved in the case; that the petitioner is a law abiding citizen and we ll reputed political figure and he has falsely been
nominated in the instant case because the real culprit fled away, but the police just to fill the lacunas nominated and arrested the petitioner to save their skin; that the impugned order passed by the learned trial Court is based on gross misinterpretation of law and also suffers
from misreading and non -reading of documents are available on record, thus liable to be set -
aside.
5. Conversely, the learned Additional Advocate General assisted by the learned
Additional Prosecutor General vehemently opposed the arguments so advanced by the
learned counsel for the petitioner and contended that the manner in which the occurrence has taken place whereby a honest and dutiful Traffic Sargent in discharge of his duti es was hit by
the petitioner on the VIP road, the act of petitioner falls within the definition of terrorism; that after hitting the deceased Traffic Sargent, the petitioner further hit another vehicle and cyclist and thereafter left the place of occurrence with his armed gunmen, being a responsible public representative (MPA) his conduct also connect him with the commission of terrorist act; that due to such deliberate incident in a open road caused the death of deceased Traffic Sargent and also injured cy clist and thereafter escaped from the place of occurrence by show
of guns, created a sense of fear and insecurity amongst the general public, falls within the
domain of terrorism; that the challan has been submitted and trial has commenced and
sufficient e vidence available in prosecution case to connect the petitioner with the
commission of offence of terrorism; that the learned trial Court after proper appreciation of
record has rightly dismissed the application of the petitioner.
6. We have heard the lear ned counsel for the parties and minutely perused record, which
reveals that on the fatal day the Session of Provincial Assembly was going on, as the session
was adjourned, the vehicles of Chief Minister, Balochistan and other MPA's were going through the s aid road meanwhile a vehicle Pajero / Land Cruiser bearing No.BD 4381 white
colour was arriving from the Provincial Assembly on high speed also having number plate of Chairman Public Accounts Committee, Balochistan towards GPO Chowk, the deceased
Traffic S argent performing his duties signaled the said vehicle to stop and also signaled the
other side traffic to move, but instead of stopping the vehicle, the petitioner further accelerated the vehicle and hit the deceased Traffic Sargent and thereafter collided to another vehicle and also injured a cyclist, thereafter alighted from the Pajero/Land Cruiser along with armed persons and in spite of remaining over there and to take the injured to the hospital, the petitioner left the scene of occurrence, however, t he injured were taken by the police in
private vehicles to hospital, where the deceased succumbed to the injuries and the matter was promptly reported with the Police Station and the matter was telecast and exploited in social as well as in print media, ho wever, the petitioner remained fugitive from law till 24th June,
2017 and thereafter was arrested on public pressure by the police. The record further reveals the conduct of the petitioner being MPA he was driving the vehicle on a public road without a val id driving license. As per record his license was expired in the year 2010 and was not
renewed as required under the law, a person having no valid license is not allowed to drive a vehicle on the road, even otherwise, he did not bother to rescue the injure d persons.
7. As far as, the driving of said vehicle and incident is concerned, it is not disputed by
the petitioner in its petition, but however, disputed the offences of Anti -Terrorism imposed
upon him by the prosecution with mala fide intention. As per contention of the learned
counsel for the petitioner at the most the offences alleged against the petitioner is one of rash and negligent driving or in alternate Qatal -e-Bisabab, as such, the ingredients of Section 6
(m) (n) of the Anti -Terrorism Act, 1997 do not attract in the case at all. Even otherwise, the
case of petitioner is triable by the Ordinary Court, but the prosecution with mala fide intention has subsequently inserted the Section 7 of ATA, 1997, in the case of petitioner to deprive both the pa rties from compromise.
8. The objection raised by the learned counsel, relates to the interpretation of section 6
of the (ibid) Act containing the term, "design" inserted through a subsequent amendment, it
would be advantageous to reproduce Section 6 of the Act: --
"Terrorism .---(1) in this Act, "terrorism" means the use or threat of action where: -
(a) the action falls with the meaning of subsection (2) and
(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 a foreign government or population or an international organization) or create a sense of fear or insecurity in society: or
(c) the use of threat is made for the purpose of advancing a religious, s ectarian or
ethnic cause, {or intimidating and terrorizing the public, social sectors, media persons, business community or attacking the civilians, including damaging property by ransacking, looting, arson or by any other means, government officials, installations, security forces or law enforcement agencies}
(Provided that nothing herein contained shall apply to a democratic and religious rally or a peaceful demonstration in accordance with law)
(2) An "action" shall fall within the meaning of subsection (1), if it,
(a) involves the doing of anything that causes death:
(b) involves grievous violence against a person or grievous bodily injury or harm to a person.
(c) involves grievous damage to property, (including government premises, official installations, school, hospitals, offices or any other public or private property including damaging property by ransacking , looting or arson or by any other means)
(d) .
(e) .
(f) .
(g) .
(h) .
(i) .
(j) .
(k) .
(l) .
(m) involves serious coercion or inti midation of a public servant in order to force him
to discharge or to refrain from discharging his lawful duties;
(n) involves serious violence against a member of the police force, armed forces, civil
armed forces, or a public servant.
9. On plain reading of the above provisions of Section 6, the term design in connection
with commission of offence under Section 6 (m) (n) of Anti -Terrorism Act, 1997, our views
are supported by the judgment of Hon'ble Apex Court comprising of five judges in case of Kashif A li v. The Judge, Anti -Terrorism Court -II, Lahore and others reported in PLD 2016
Supreme Court 951, the relevant portion whereof reproduced as under: --
"13. It is clear from the FIR that the accused persons conceived a plan in their mind prior to the occur rence to disrupt the electoral process by eliminating the deceased
and his companions, and subsequently executed it. It has not been mentioned in the FIR that the accused party obstructed or waylaid the deceased, but they chased them
in order to execute a plan conceived in their minds. It was a pre -planned scheme and
to execute the same, the accused party chased the vehicles of the deceased and when
they reached near the vehicles of the deceased, they had opened fire due to which four persons lost their liv es and several others sustained firearm injuries. It was not only
confined to this but in fact the target killing was aimed to give a message to the voters and supporters of the deceased, the effect of which was to create a sense of fear or insecurity in t he voters and general public, as provided in Section 6 of the Act.
14. The contention of the learned Counsel for Respondent No.2 that the incident was a result of personal enmity would not exclude the case of the accused -Respondents
from the mischief of Se ction 6(2) of the Act. The manner in which the incident had
taken place and the time of occurrence should be taken note of, the effect of which was to strike terror in the supporters/voters and general public, therefore, the offence squarely falls within the contemplation of Section 6 (ibid). The other contention of the learned Counsel for the Respondent No.2 that the incident had taken place at an abandoned place and there was no passerby at that time, is contrary to the contents of the FIR, as the place o f occurrence was a public place and supporters and voters were
around with their cars. Furthermore, the contents of the FIR reflect that the crowd present during the occurrence started fleeing from the place due to the terror created by indiscriminate firing.
15. The supplementary statement recorded after more than a month has no legal value and inadmissible in evidence and cannot be used to contradict the contents of the FIR. The Anti -Terrorism Court while passing the impugned order dated 13.07.2010, whic h
was reversed by the High Court, has taken note of the events and correctly concluded that it has the jurisdiction. This Courts in the cases of Syed Saeed Muhamniad Shah v. The State (1993 SCMR 550), Amir Zaman v. Mehboob and others (1998 SCMR 685), Zulfi qar Hussain v. The State (2011 SCMR 379), Abid Ali v. The State (2011 SCMR
161) and Tahir Abbas v. The State (2003 SCMR 426), has held that supplementary statement recorded subsequently to the FIR can be viewed as improvements made to the witness's stateme nt, therefore, even if the supplementary statement of the
Complainant is discarded, then too, the contents of the FIR in the case in hand clearly establishes that the case is triable by the Anti- Terrorism Court, as it attracts the
mischief of Section 6 of the Act.
16. The contention of the Counsel for the Respondents that the parties have personal
enmity is also insignificant, as the personal enmity between the deceased and the Respondent No.2 could have been settled on any day and it is intriguing as to w hy the
Respondents chose that particular night before the dawn of the day of elections to settle his score with a popular running candidate in the elections by eliminating him from this world. To say that the mere reason that a motive of personal rivalry e xisted
in this particular case does not rule out the fact that anyone could have foreseen the impact of such an act on the supporters of the deceased candidate. It is important to notice that according to the FIR, cars and people present at the back started fleeing from the area of incident in fear. More importantly, the sudden murder of the deceased, on the night before the Election day, not just with a single bullet but with indiscriminate firing on him and his companions was something that had to be all over the news and media channels for weeks to come. The disturbed mental condition of voters, who were taken aback to know on the day of the polling that their chosen candidate was no longer alive, was a foreseeable and inevitable impact of the Respondents ' action. It was not a sudden reaction to a provocation that resulted in the
deceased's murder but a premeditated act, where Respondents found out the precise location of the deceased on the very busy night before the Election Day, and got him murdered. It was no doubt, a message to the general public conveying the lethal
consequences of any opposition to the murderers.
17. The judgment relied upon by the learned High Court in the case of Basharat Ali v. Special Judge, Anti -Terrorism Court -II, Gujranwala (PLD 2004 Lahore 199) was
overruled by this Court in the case of Mirza Shaukat Baig and others v. Shahid Jamil and othe rs (PLD 2005 SC 530), which is the correct law. It was held by this Court in
the case of Mirza Shoukat Baig (supra) that there could be no second opinion that where the action of an accused results in striking terror, or creating fear, panic sensation, hel plessness 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 tried by a Special Court constituted for such a purpose. Moreover, in S tate through Advocate General v. Muhammad Shafiq (PLD
2003 SC 224) it was held by this Court that the Courts are only required to see whether the terrorist act was such that it would have the tendency to create sense of fear or insecurity in the minds of t he people or any section of the society, as well as
the psychological impact created on the minds of the society, Whereas a strictly narrow interpretation of the term "design" in section 6 of the Act is undoubtedly one where a premeditated plan to create t error is the object behind the said act, we cannot
simply rule out from the ambit of section 6 an individual's action which is implemented in a setting where a creation of feeling of fear in the society was an inevitable consequence of the said act.
18. B efore parting with this judgment, we would like to observe that this Court cannot
lay down any hard and fast rules while interpreting Section 6 of the Act in order to conclude as to which of the cases is triable by the Anti -Terrorism Court, as in many
criminal cases, facts of the case are also one of the factors in determining the
jurisdiction of a criminal Court. However, we have attempted to generalize the principles which need to be applied by the Courts while deciding the jurisdiction of an Anti-Terrori sm Court. We expect that from now onwards, the Anti -terrorism Courts
as well as the High Courts would apply the principles set forth hereinabove and expedite the issue of jurisdiction of the Anti -Terrorism Courts which stands
streamlined hereinabove or otherwise to avoid any delay in proceedings. The
observations made in these proceedings pertaining to the accused in the case, who are facing trial before the concerned Anti -Terrorism Court, are tentative in nature, and
shall not come in the way of either par ty at trial.
19. For the aforesaid reasons, we, by our short order, has converted this Petition into Appeal and allowed the same, which reads as under:
"Heard the arguments . For the reasons to be recorded separately, this petition is
converted into appeal and, allowed; the impugned judgment dated 16.08.2010 in Writ Petition No.16742/2010, passed by learned Division Bench of the Lahore High Court is set aside; and, the criminal case arising out of FIR No.148/2009, P.S Township, Lahore, dated 18.02.2008 is tr ansferred to the concerned Anti -terrorism Court for
further proceedings in accordance with law. Since this criminal case pertains to the year 2008, the Anti -terrorism Court is further directed to expedite and ensure its
disposal within shortest time."
10. In view of the above judgment, we have to see that whether it is a simple case of road
accident took place suddenly or otherwise, but from the circumstances of case it appears that this is not a case of simple accident due to rush and negligent driving, but it has far reaching
effects on the moral of police force and a sense of fear and insecurity has prevailed among
them and their families that their lives and liberties are not save having no cost in the society, on the other hand adverse effect would also prevail in the mind of our VIP class that life and
liberty of a common man having no value just kill him and pay him compensation. It is further transpired from the record that certain copies of other FIRs are also available on record against the petition er, wherein FIR No.156/2009 dated 18th July 2009 lodged against
the petitioner under sections 365, 342, 6 of ATA too, as such, the past conduct of the petitioner could be adjudged from the said FIRs. In view of the above, the case in hand could not be safe ly said a sudden accident. It is important to notice that according to FIR and record
of prosecution case based on ocular account, the eye -witnesses of the case have fully
involved the petitioner in committing of crime in a manner to give a message and les son to
the police force that the law of land could not applicable and arrive in the way of VIPs. who are above the law. Such act of the petitioner has created a sense of fear and insecurity
amongst the police force and to the general public as well. The re cord further reveals that the
manner in which the occurrence has taken place was reportedly exploited and appeared
repeatedly in news channels and daily newspapers, CDs whereof also taken into possession by the prosecution from the official CCTVs and priva te channels, which further prima facie
highlights the act of petitioner as an act of terrorism, in view of the section 6 (2) (m) (n) ibid Act. On tentative assessment of record it appears that sufficient incriminating evidence are available against the pet itioner and already unanimously it was observed by this Court at bail
stage of petitioner that let the trial Court to record some relevant evidence first and thereafter the nature of case would become in surface, if at all no case of terrorism is made out, the
petitioner is at liberty to file a fresh application for such purpose.
In view of the above discussion, we have found no substance in the contention of the
learned counsel for the petitioner. The impugned order is well reasoning at this stage, which is not open for interference by this Court. The case laws relied upon by the learned counsel for the petitioner are distinguishable and not helpful to the petitioner.
For the above reasons, the petition being devoid of merits, is dismissed accordingly.
The observation made hereinabove are purely tentative in nature and shall not come in the
way of either of party at trial.
JK/139/Bal Petition 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,
let us know.