Haji Allah Nazar V. Special Judge Anti-Terrorism Court-II, Quetta,
Bench: Abdul Qadir Mengal
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This case involved a dispute between two parties over ownership of a leased mining area in Balochistan. A complaint was filed alleging that the petitioners forcibly stopped laborers at an iron ore mine and damaged machinery worth five lakh rupees. Although the underlying offenses were relatively minor property crimes like trespass and mischief, the case was charged under the Anti-Terrorism Act and sent to a Special Judge of the Anti-Terrorism Court. The petitioners asked for the case to be moved to an ordinary Sessions Court, arguing it did not actually involve terrorism, but the Special Judge refused, saying the accused had used force to create panic and fear.
The Balochistan High Court disagreed. It held that for a case to qualify as terrorism under the Anti-Terrorism Act, there must be both a scheduled offense and a genuine intention to create terror, fear, or insecurity in society at large. The court found that this dispute was rooted in a personal disagreement over property ownership between two parties, not an attempt to spread terror in the community. Cases arising from personal enmity or private revenge do not fall within the scope of the anti-terrorism law, even if some force or intimidation was used.
As a result, the court ruled that the Special Judge's order was illegal and ordered the case to be transferred out of the Anti-Terrorism Court to the ordinary Magistrate's Court. This decision matters because it clarifies the boundary between ordinary criminal disputes and terrorism cases, preventing misuse of anti-terror
یہ مقدمہ بلوچستان میں ایک لیز شدہ کان کنی کے علاقے کی ملکیت کے تنازع سے متعلق دو فریقین کے درمیان اختلاف پر مبنی تھا۔ ایک شکایت درج کرائی گئی جس میں الزام لگایا گیا کہ درخواست گزاروں نے لوہے کی کان پر مزدوروں کو زبردستی روکا اور پانچ لاکھ روپے مالیت کی مشینری کو نقصان پہنچایا۔ اگرچہ بنیادی جرائم نسبتاً معمولی نوعیت کے تھے، جیسے کہ حدود میں ناجائز داخلہ اور شرارت، تاہم یہ مقدمہ انسدادِ دہشت گردی ایکٹ کے تحت درج کیا گیا اور انسدادِ دہشت گردی عدالت کے خصوصی جج کو بھیج دیا گیا۔ درخواست گزاروں نے استدعا کی کہ مقدمہ عام سیشن عدالت کو منتقل کیا جائے کیونکہ اس میں دہشت گردی کا کوئی عنصر شامل نہیں تھا، مگر خصوصی جج نے یہ کہتے ہوئے درخواست مسترد کر دی کہ ملزمان نے خوف و ہراس پھیلانے کے لیے طاقت کا استعمال کیا تھا۔
بلوچستان ہائی کورٹ نے اس فیصلے سے اختلاف کیا۔ عدالت نے قرار دیا کہ کسی
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2012 P Cr. L J 178 [Balochistan] Before Abdul Qadir Mengal and Jamal Khan Mandokhail, JJ Haji ALLAH NAZAR and others ---Petitioners Versus SPECIAL JUDGE ANTI -TERRORISM COURT -II, QUETTA and others --- Respondents
C.Ps. Nos. 601 and 616 of 2011, decided on 27th September, 2011.
Anti -Terrorism Act (XXVII of 1997) ---
----Ss. 6, 7 & 28 ---Penal Code (XLV of 1860), Ss. 427/109, 447, 147, 148 & 149 --- Mischief causing damage to the amount of five lac rupees, criminal trespass ---Transfer of case to ordinary court ---Offences against accused were of simple nature like trespass or damage to a property of the opponent, which were punishable not more than two years --- Record had shown that a dispute of personal nature existed between th e parties for the determination of ownership of leased area ---For cases of terrorism, falling under Ss.6 & 7 of the Anti -Terrorism Act, 1997, there must be not only Scheduled Offence under S.6 of the Anti -Terrorism Act, 1997, but also mens rea for creating intentional sense of terror or fear or insecurity in the society ---Cases having background of personal enmity and taking private revenge, did not fall within the ambit of Ss.6 & 7 of the Anti -Terrorism Act, 1997 ---Special Judge, was not justified to rejec t application of accused for sending matter to the Court of Sessions Judge ---Order of Special Judge was illegal as matter in question was within the domain of the regular courts ---Cases were ordered to be withdrawn from the court of Special Judge and trans ferred to the court of Judicial Magistrate concerned for disposal in accordance with law, in circumstances. Muhammad Wassay Tareen and Abdul Wadood Khan for Petitioners (in C.P. No. 601 of 2011). Abdul Wadood Khan for Petitioners (in C.P. No. 616 of 2011 ). Atiq Ahmed Khan, D.P. -G. for Respondents (in both Petitions). Date of hearing: 8th September, 2011.
JUDGMENT
ABDUL QADIR MENGAL, J. ---These Constitutional Petitions under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, aris ing out from the order dated 15 -8-2011, passed by the Special Judge. ATC -II, Quetta, whereby, the application of the petitioners were rejected for sending the matter to the Court of Sessions Judge, holding that, as the petitioners have stopped the work of the respondent by show of force and created panic or sense of fear, therefore, Courts of Ordinary jurisdiction having no jurisdiction over the matter to try the same.
2. The facts as has been mentioned in the impugned order dated 15 -8-2011, were that, one Masood Anwar filed a written report on 22 -5-2011, vide F.I.R. No.7 of 2011, that, the petitioners collectively on 22 -5-2010 at 10 -00 a.m., came to their mines of Iron Ore, and forcibly stopped the labourers from the work of their mines, they als o damaged the machinery of the mines to receive them damage of Rs.5,00,000 (Rupees Five Lacs).
3. The Tehsildar after lodging the F.I.R. under sections 427/109, 447, 147, 148 and 149, P.P.C., inspected the place of incident, prepared the sketch of the same . On completion of the investigation, challan the matter before the Court of Special Judge ATC -II, Quetta, by adding sections 6 and 7 of the Anti -Terrorism Act, 1997.
4. We have heard M/s. Muhammad Wassay Tareen and Abdul Wadood Khan, Advocates, for the Pe titioners, while Mr. Atiq Ahmed Khan, Deputy Prosecutor -General, heard for the Respondents.
5. After hearing the both sides, we have also perused the order dated 15 -8-2011, passed by the Special Judge ATC -II, Quetta. Admittedly, the offences in which the c ase has been registered are of simple nature like the trespass or receiving damage to a property of the opponent more than Rs.50,000 (Rupees Fifty Thousand), which are punishable not more than two years.
6. Again, the record shows that, a personal nature o f dispute existed between the parties, for the determination or ownership of the leased area. Whereas, in the cases of Anti-Terrorism, falling under sections 6 and 7 of the Anti -Terrorism Act, 1997, there must be not only a schedule offence falling under s ection 6 of the Anti -Terrorism Act, 1997, but there must also be mens rea for creating intentional sense of terror or fear or insecurity in the society.
7. Cases in which having background of personal enmity and taking private revenge, do not fall within t he ambit of sections 6 and 7 of the Anti -Terrorism Act, 1997.
8. So being, the order of the Special Judge ATC -II, Quetta, dated 15 -8-2011, is illegal one and the matter comes within the dominion of the regular Courts, therefore, we are inclined to withdraw the cases files from the Court of Special Judge ATC -II, Quetta, and transfer it to the Court of Judicial Magistrate concerned for disposal in accordance with law. With the above, the both petitions are disposed of. H.B.T./122/Q Case transferred.