2017 P Cr. L J 1371
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Zaheer ud Din Kakar, JJ
BIBI ZAWAR--- Petitioner
Versus
SESSIONS JUDGE QUETTA and 2 others ---Respondents
C.P. No. 252 of 2017, decided on 18th May, 2017.
(a) Anti -Terrorism Act (XXVII of 1997) ---
----S. 6(1)(b) ---Act of "terrorism" ---Determination as to whether an offence would fall within the
ambit of "terrorism" ---Essential ingredients to form an act of "terrorism" were the allegations
made in the FIR; material collected during investig ation and surrounding circumstances ---To see
as to whether the ingredients of alleged offence had any nexus with the object of the case as
contemplated under Ss. 6, 7 & 8 of Anti -Terrorism Act, 1997---Motivation, object, design and
purpose behind the said act was to be seen in order to determine as to whether a particular act
was an act of terrorism or not ---Action resulted in striking terror or creating fear, panic,
sensation, helplessness and sense of insecurity among the people in the particular area would
amount to terror ---Such action would squarely fall within the ambit of S. 6 of the Anti -Terrorism
Act, 1997 and would be triable by Anti -Terrorism Court.
(b) Penal Code (XLV of 1860) ---
----Ss. 302, 324, 365, 147, 148 & 149---Anti -Terrorism Act (XXVII of 1997), Ss. 6(b), 7(e) &
23---Qatl -i-amd, attempt to commit qatl- i-amd, kidnapping or abduction with intent secretly and
wrongfully to confine a person, rioting, rioting armed with deadly weapon, unlawful assembly ---
Application for transfer of case from ordinary criminal court to Anti -Terrorism Court by way of
inserting S. 7, Anti -Terrorism Act, 1997---Scope ---FIR showed that due to indiscriminate firing
of the accused persons at the house of the complainant -petitioner, resulted in the murder of two
perso ns, causing injuries to five other persons and abduction of two persons fell within the ambit
of S. 6, Anti -Terrorism Act, 1997---Action of the accused resulted in striking terror and sence of
insecurity amongst the people in the vicinity, which amounted t o create terror in the area ---
Circumstances established that Anti- Terrorism Court had exclusive jurisdiction in the case as the
action of accused squarely fell within the ambit of S. 6, Anti -Terrorism Act, 1997---
Constitutional petition was allowed with th e direction to the concerned Investigating Officer to
insert S. 7, Anti -Terrorism Act, 1997 in the FIR.
Ch. Bashir Ahmad v. Naveed Iqbal and 7 others PLD 2001 SC 521; Mst. Raheela
Nasreen v. The State and another 2002 SCMR 908; Muhammad Mushtaq v. Muhamma d Ashiq
and others PLD 2002 SC 841; Nazeer Ahmed and others v. Nooruddin and another 2012 SCMR
517 and Nooruddin v. Nazeer Ahmed and 4 others 2011 PCr.LJ 1370 rel.
Sher Baz for Petitioner.
Arbab Tahir for Respondent No.2.
Saleem Baloch, A.A. -G. for the State.
Date of hearing: 24th April, 2017.
JUDGMENT
ZAHEER -UD-DIN KAKAR, J. ---Through instant petition by invoking jurisdiction of
this Court, the petitioner prays as under:
"It is therefore, in view of the above narrated facts it is respectfully prayed that the case
titled as The State v. Agha Shehr Yar and others may kindly be transferred from the
Court of Sessions Judge, Quetta/respondent No.1 to concerned ATC Court by way of
inserting the section 7, A.T.A. in the FIR No.4 of 2014 of L.S Zehri, District Khuzdar in
the interest of justice, equity and fair play."
2. Precisely stated facts of the case are that on the report of petitioner, FIR No. 4 of 2014,
under sections 302, 324, 365, 147, 148, 149, P.P.C., Levies Thand Zehri was registered with the
alleg ations therein that on 06.2.2014, at about 6:45 a.m. she was present in her house situated at
Gut Zehri, meanwhile, respondent No.2 along with co- accused persons had attacked upon her
house by way of opening firing due to which Bashir Ahmed and Mst. Rubina died at the spot,
whereas Fazal Din, Mst. Madina, Abdul Sattar, Mst. Farida and Mst. Taj Bibi sustained injuries.
The accused persons forcibly took away her two sons namely Irfan Anwar and Farhaad Anwar.
3. From perusal of the record it appears that prior to the instant petition, the petitioner filed
Criminal Transfer Application No.588 of 2014, before this Court for transfer of the case from the
Court of Judicial Magistrate, Khuzdar to any other Court at Quetta. This Court vide order dated
20.3.2015 accepted the application in the following manner:
"So, with consent of DAG and Special Prosecutor, the case FIR No.4 of 2014 lodged
with Thana Levies, Zehri Khuzdar pending for the purpose of proceedings under section
512, Cr.P.C. is transferred to the file of Sessions Judge, Quetta for further transmission of
case for the purpose of proceedings under section 512, Cr.P.C. to the Court of Judicial
Magistrate here at Quetta. Needless to observe, that further proceedings, i.e. original trial
shall also be conducted here at Quetta by the Sessions Judge, Quetta. Thus, the
application stands disposed of in above terms."
4. Learned counsel for the petitioner contended that provisions of section 6 of ATA are fully
attracted in this case. Incident was committed in a bruta l manner, in which two innocent persons
were murdered, whereas five were seriously injured and two sons of the petitioner were also
forcibly taken away by the culprits. Finally, he prayed for insertion of section 7 of the Anti -
Terrorism Act, 1997 (ATA) and transfer of the case to Anti -Terrorism Court.
5. Conversely, learned counsel for respondent No.2 as well as learned APG vehemently
opposed the petition and submitted that the ingredients of section 6 of ATA, 1997 are not
attracting in this case, hence pra yed for dismissal of the petition.
6. We have heard the learned counsel for the parties and have gone through record of the
case with their assistance. In order to determine, as to whether an offence would fall within the
ambit of section 6 of the Anti -Terrorism Act, 1997, it is essential to h ave a glance over the
allegations made in the FIR, material collected during the 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 sections 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 where 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 triable by a Special Court, constituted for such purpose. For deciding the instant
petition, it is found that a s per FIR, due to the indiscriminate firing of the accused persons in the
house of the complainant (petitioner) resulted in the murder of two persons, causing injuries to
five other persons and abduction of two persons fall within the ambit of section 6, A .T.A., 1997.
Moreover, action of the accused resulted in striking terror and sense of insecurity among the
people in a particular vicinity, it amounts to create terror in the area. Therefore, we are of the
considered view that the Anti -Terrorism Court has exclusive jurisdiction in this case as the action
of the accused squarely falls within the ambit of section 6 of the Act of 1997. Reliance can be
placed upon the following judgments of the Hon'ble Supreme Court of Pakistan:
"In the case of Ch. Bashir Ahmad v. Naveed Iqbal and 7 others (PLD 2001 SC 521), the
Hon'ble Supreme Court has held as under:
"8. A person would commit a terrorist act if in order to, or if the effect, of his actions will
be to strike terror or create a sense of fear and insecurity in th e people, or any section of
the people......". In the instant case as the facts of the case reveal, the alleged sprinkling of
the spirit on the person of the victim was within the boundary walls of the appellant's
house. It was not in public and, therefore , the element of striking terror or creating sense
of fear and insecurity in the people, or any section of the people is not made discernible
in the FIR and for that matter on the record of the case as a whole. Similarly the perusal
of the Schedule to the Act also indicates that the element of striking terror or creation of
sense of fear and insecurity in the people or any section of the people by doing an act or
thing by using bombs, dynamite or other explosive or inflammable substances etc. is a
sine qua non for the attraction of the provisions of section 6 of and the Schedule to the
Act (underlining is provided by us for emphasis).
In the case of Mst. Raheela Nasreen v. The State and another (2002 SCMR 908), the
Hon'ble Supreme Court has held as under: --
"(6) We are afraid, the argument in our considered view is wholly fallacious. In order
to determine whether a particular act of the accused for which he is being tried for
criminal offence falls within the ambit of any of the provisions of the Act, it is n ot
necessary to record evidence of the witnesses to establish that the said act had, in fact,
created terror or feeling of insecurity whereas the question of applicability of any of the
provisions of the Act has to be decided by application of mind to the facts alleged in the
FIR and other attending circumstances.
(7) From a bare reading of section 6(b) of the Act, it is manifest that it is not
necessary that the offence as alleged had in fact, caused terror the requirement of the said
provision of law coul d be adequately satisfied if the same was likely to strike terror or
sense of fear and insecurity in the people.
(8) The learned Judges of the High Court came to the conclusion that a Batman who
was a trusted person of an army officer if he kills as alleged his master in connivance
with his (master's) wife the same was likely to strike terror or feeling of insecurity among
the army officers which reasonings in our view are based on relevant consideration
having logical nexus with the relevant law and do not suffer from any legal infirmity."
In the case of Muhammad Mushtaq v. Muhammad Ashiq and others (PLD 2002 SC 841),
the Hon'ble Supreme Court has held as under: -
"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 a whole or a section ther eof. There
may be a death or injury caused in the process. Thus where a criminal act is designed to
create a sense of fear or insecurity in the minds of the general public disturbing even
tempo of life and tranquility of the society, the same may be treate d to be a terrorist act.
There may be just a few killings, random or targeted, resorted to with single mindedness
of purpose. But nevertheless the impact of the same may be to terrorize thousands of
people by creating a panic or fear in their minds.
(8) In the present case, we, prima facie, find that the occurrence took place during the
peak hours of the day on the busy Court Road near the District Courts, Lahore, wherein
four persons while on their way to attend the Court were allegedly murdered by the use of
Kalashnikovs. The cumulative fall -out of the occurrence as to the time, place and manner
of the act created a sense of the fear and insecurity in society. The case was, therefore,
triable by the Anti- terrorism Court established under the said Act in vi ew of its peculiar
facts and circumstances as also the law and order situation prevailing in the country. In
the case Ziaullah (supra) a similar view as taken by this Court in somewhat similar
circumstances."
In the case of Nazeer Ahmed and others v. Nooru ddin and another (2012 SCMR 517), the
Hon'ble Supreme Court has held as under: -
"(3) We have heard the learned Advocate Supreme Court and have perused the record.
The learned High Court has examined the material at length and has rightly concluded
that the act of the petitioners created sense of insecurity amongst the villagers and did
destabilize the public at large and, therefore, attracts the provisions of section 6 of the
Anti-terrorism Act. The learned Advocate Supreme Court in support of his contentions
has relied upnon the judgments reported in the case of Mohabat Ali v. The State reported
in 2007 SCMR 142 and the case of Bashir Ahmed v. Muhammad Siddiq, reported in
PLD 2009 SC 11, which are distinguishable on facts. Neither the motive nor intent for
commission of the offence is relevant for the purpose of conferring jurisdiction on the
Anti-terrorism Court. It is the act which is designed to create sense of insecurity and or to
destabilize the public at large, which attract the provisions of section 6 of the A.T, Act,
which in the case in hand was designed to create sense of insecurity amongst the co -
villagers."
In the case of Nooruddin v. Nazeer Ahmed and 4 others (2011 PCr.LJ 1370), the learned
High Court of Sindh has held as under: -
"16. Examining t he case in hand on the above touchstone, we cannot subscribe the view
articulated by the learned counsel for the respondent that the case is triable by the
Sessions Court only for the reason that it is a case of previous enmity. It is clearly
deducible tha t the offence was committed in the manner, which was enough to create a
sense of insecurity or to destabilize the public at large and amounts to terrorism as
enumerated in section 6 of the Act".
7. Keeping in view, the dicta as laid down in the aforementioned judgments, we have no
hesitation to reach at the irresistible conclusion that ingredients of section 6 ATA are fully
attracted in this case. Thus, the petition is allowed with direction to the concerned Investigating
Officer to insert section 7, A.T.A. in FIR No.04/2014 of Levies Thana Zehri and the Sessions
case bearing No.24 of 2016 pending before the Sessions Judge, Quetta, is hereby transferred to
the Court of Anti -Terrorism -I, Quetta.
JK/81/Bal. Petition allowed.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.