2023 P Cr. L J Note 40
[Balochistan (Sibi Bench)]
Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ
ASIF KHAN---Petitioner
Versus
ANTI -TERRORISM COURT, DERA ALLAH YAR and another ---Respondents
Constitutional Petition No. (s) 76 of 2020, decided on 21st May, 2020.
(a) Anti -Terrorism Act (XXVII of 1997) ---
----S. 6 & Third Sched. Entry No.4 ---Anti-Terrorism Court, jurisdiction of ---Determination --
-To determine as to whether a particular case is triable by Anti -Terrorism Court or a court of
ordinary jurisdiction, the court had to tentatively examine the record comprising of FIR,
investigation report and final report submitted under S. 173, Cr.P.C.
(b) Penal Code (XLV of 1860)---
----Ss. 365- A & 34 ---Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 23---Kidnapping or
abducting for extorting property, valuable securities, common intention, act of terrorism ---
Application for sending the case from Anti -Terrorism Court to regular court was dismissed---
Validity ---Accused was charged that he and others armed with rocket launchers came in the
house of the complainant and forcibly abducted his brother and nephew for ransom amount
of Rs. 2,000,000--- Record showed that during the course of investigation the abductees were
recovered and their statements were recorded under S. 161, Cr.P.C., before the police and under S. 164, Cr.P.C., before the Judicial Magistrate, who also stated in their statements that the accused abducted them for ransom ---Bare reading of the FIR in the present case revealed
that complainant duly reported the alleged forcible abduction of his brother and nephew ---
Purpose of lodging the FIR was merely to ignite the process of law ---During the course of
investigation after recording the statements of alleged abductees, the prosecution built up its case that the accused and co -accused had been claiming ransom from the abductee---Alleged
offence, therefore, prima facie, attracted the provision of S. 2(n) of the Anti -Terrorism Act,
1997 which was exclusively triable by the Anti -Terrorism Court as provided in the Third
Schedule of the said Act ---Tentative assessment of the record showed that the Anti -
Terrorism Court had rightly assumed the jurisdiction and framed charge against petitioner ---
Petition for transfer of case from Anti -Terrorism Court was dismissed in limine.
Ghulam Hussain and others v. The State PLD 2020 SC 61 and Farooq Ahmed v. The
State 2020 SCMR 78 rel.
Muhammad Asif Reki for Petitioner.
Naveed Qambrani for the Complainant.
Abdul Latif Kakar, A.P.G. for the State.
Date of hearing: 18th May, 2020.
ORDER
ROZI KHAN BARRECH, J. ---Petitioner has invoked the constitutional jurisdiction
of this court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to
impugn the order dated 20.01.2020 passed by Anti -Terrorism Court -I Dera Allah Yar at Dera
Murad Jamali (hereinafter 'trial court').
2. Brief facts leading to this writ petition are that one Asghar Ali son of Karam Ali
lodged FIR No. 31 of 2019 dated 5.11.2019 under sections 365- A and 34, P.P.C. at Levies
Thana District Jhal Magsi against the petitioner Asif Khan and others with the allegation that on 4.11.2019 at 5:00 a.m. the accused/petitioner and others armed with rocket launchers came in the house of the complainant and forcibly abducted Mahram Ali and Allah Dina to demand ransom amount of Rs.2,000,000/ -.
After completion of usual investigation challan was submitted before the trial court,
whereafter the petitioner/accused filed an application under section 23 of the Anti -Terrorism
Act, 1997 (the "Act") for transfer of the case to ordinary court. The trial court after hearing arguments rejected the same vide order dated 20.01.2020. Hence this petition.
3. We have heard the learned counsel for the parties and have examined the entire
material available on record.
4. To determine as to whether a particular case is triable by Anti -Terrorism Court or a
court of ordinary jurisdiction, the court has to tentatively examine the record comprising of FIR, investigation report and final report submitted under section 173, Cr.P.C. The contents of the FIR narrated by the complainant in his application submitted before the Tehsildar Concerned reveal that his brother and nephew were abducted by the petitioner and co-accused persons armed with rocket launchers for ransom. During the course of investigation the abductees namely Mahram Ali and Allah Dina were recovered and their statements were recorded under section 161, Cr.P.C before the police and under section 164, Cr.P.C before the Judicial Magistrate, who also stated in their statements that the accused abducted them for ransom. After completion of investigation challan was submitted before the trial court.
5. Whether with the given facts, the case was triable by the ATC is to be resolved in the
light of the provisions of the Act and Code of Criminal Procedure 1898.
At the outset it will be expedient to reproduce the provisions of section 365- A, P.P.C.,
section 2(n) and relevant extract of Third Schedule of the Anti -Terrorism Act, 1997 which
read below: --
"365 -A, P.P.C. Kidnapping or abducting for extorting property, valuable security,
etc.:
Whoever kidnaps or abducts any person for the purpose of extorting from the person
kidnapped or abducted, or from any person interested in the person kidnapped or abducted, any property, whether movable or immovable, or valuable security, or to compel any person to comply with any other demand, whether in cash or otherwise, for obtaining release of the person kidnapped or abducted, shall be punished with
(death or) imprisonment for life and shall also be liable to forfeiture of property."
"Section 2 of Anti -Terrorism Act, 1997: In this Act, unless there is anything
repugnant in the subject or context;
(n) "Kidnapping for ransom" means the action of conveying any person from any
place, without his consent, or by force compelling or by any deceitful means inducing him, to go from any place, and unlawfully detaining him and demanding or attempting to demand, money, pecuniary or other benefit from him or from another person, as a condition of his release."
"The Third Schedule:
(1) Any act of terrorism within the meaning of this Act including those offences which may be added or amended in accordance with the provisions of section 34 of this Act.
(2) Any other offence punishable under this Act.
(3) Any attempt to commit, or any aid or abetment of, or any conspiracy to commit, any of the aforesaid offences.
(4) Without prejudice to the generality of the above paragraph, the Anti -Terrorism
Court to the exclusion of any other Court shall try the offences relating to the following, namely: -
(i) Abduction or kidnapping for ransom.
(ii)
(iii)
6. Bare reading of the FIR in this case reveals that complainant duly reported the alleged
forcible abduction of Mahram Ali and Allah Dina by the petitioner and co- accused. It is
established that purpose of lodging the FIR is merely to ignite the process of law. During the course of investigation after recording the statements of alleged abductees, the prosecution built up its case that the petitioner and co -accused have been claiming ransom from the
abductee. The alleged offence therefore prima facie attracts the provision of section 2(n) of the ATA which is exclusively triable by the Anti -Terrorism Court as provided in the Third
Schedule of the said Act.
7. As is evident from the referred item of third schedule that offence of abduction or
kidnapping for ransom is exclusively triable by Anti -Terrorism Court. On tentative
assessment of the record, as referred herein above, the learned Anti -Terrorism Court has
rightly assumed the jurisdiction and framed charge against petitioner. Reliance in this behalf
is placed on the case titled as Ghulam Hussain and others v. The State (PLD 2020 SC 61) and Farooq Ahmed v. The State (2020 SCMR 78).
In view of the above discussion, we could not find any merit in the instant petition for
interference in the impugned order of the Judge Anti -Terrorism Court -I Dera Allah Yar at
Dera Murad Jamali. Hence instant petition stands dismissed in limine.
JK/133/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.