P L D 2010 Quetta 52
Before Qazi Faez Isa C. J. and Syeda Tahira Safdar, J
SOORAT KHAN ---Petitioner
Versus
ANTI -TERRORISM COURT, SIBI and 7 others ---Respondents
Constitutional Petition No.46 of 2009, decided on 23rd December, 2009.
(a) Anti -Terrorism Act (XXVII of 1997) ---
----S. 6---Terrorism ---Meaning ---"Terrorism" means the use or threat of "action" where the
"action" falls within the meaning of sub -section (2) of S.6 of the Anti -Terrorism Act, 1997,
and creates a serious risk to safety o f the public or a section of the public, or is designed to
frighten the general public and thereby prevents them from coming out and carrying on their
lawful trade and daily business, and disrupts civil life.
Mirza Shaukat Baig v. Shahid Jamil PLD 2005 SC 530 ref.
(b) Interpretation of statutes ---
----Court cannot pick and choose one or two sentences or a few words for academic purpose
and scholarly interpretation by ignoring the objects and reasons for the promulgation of the
Act and its preamble.
Mirza Shaukat Baig v. Shahid Jamil PLD 2005 SC 530 ref.
(c) Anti -Terrorism Act (XXVII of 1997) ---
----Ss. 6 & 32 ---Explosive Substances Act (XI of 1908), Ss.3/4/5 ---Constitution of Pakistan
(1973), Art. 199 ---Constitutional petition ---Jurisdiction ---Complainant had no enmity with
any person, nor had he nominated any individual in the promptly lodged F.I.R. ---Explosive
device was allegedly used in order to force the employees of Chamalung Security Force
constituted by the Government, to give up their employment and dissuade others from joining
the said Force ---Son of the complainant had allegedly been killed in the incident by stepping
on a mine ---Case thus fell within the definition of "terrorism" as contained in S.6 of the Anti -
Terrorism Act, 1997, and was triable by the Special Judge, Anti -Terrorism Court ---Criminal
Procedure Code, 1898, being not applicable to Anti -Terrorism Act, 1997, by virtue of S.32
thereof, reference of Trial Court to Schedule II of the Criminal Procedure Code, 1898, in the
impugned order, was misplaced ---Order of the Trial Court having the powers of Anti -
Terrorism Court directing the transfer of the case to the ordinary Court of competent
jurisdiction was, consequently, set aside with direction to Trial Court to proceed with t he trial
itself in accordance with law ---Constitutional petition was accepted accordingly.
Muhammad Mushtaq v. Muhammad Ashiq PLD 2002 SC 841; Bashir Ahmed v. Muhammad
Siddique PLD 2009 SC 11; Muhammad Yaqoob v. State 2009 SCMR 527; Zia Ulalh v. Specia l
Judge 2002 SCMR 1225 and Mirza Shaukat Baig v. Shahid Jamil PLD 2005 SC 530 ref.
Muhammad Qahir Shah for Petitioner.
Nasarullah Khan Achakzai Addl. A.G. for Respondents.
Imran ul Haq Khan for Respondents 3 to 7.
Date of hearing: 3rd December, 20 09.
JUDGMENT
QAZI FAEZ ISA, C J. ---The petitioner has filed this Constitutional Petition seeking to set
aside the order dated 31 -3-2009 passed by Anti Terrorism Court, Sibi, whereby the challan
was returned and it was ordered that the case be presen ted before the Court of competent
jurisdiction. The instant matter pertains to F.I.R. No.4 of 2008 lodged at Police Station
Lasezai, District Kohlu under sections 3, 4 and 5 of the Explosive Substances Act, 1908 by
Surat Khan, wherein it was alleged that h is son Muhammad Ibrahim was killed on 7 -12-2008
at 10 -30 a.m. when he stepped upon a mine. Subsequently, Surat Khan (complainant)
submitted a statement on stamp paper, whereby he nominated certain individuals and stated
that they had threatened that if his son did not give up his employment in Chamalung
Security Force he would be killed. The case proceeded before the Additional Sessions Judge,
Kohlu who recorded the statements of the witnesses namely P.W. 1 Surat Khan
(complainant), P.W.2 Taj Muhammad, P.W. 3 Rab Nawaz and P.W.4 Dr. Sahib Khan, M.S.,
DHQ Hospital, Kohlu. It transpires that the Additional Sessions Judge, after recording such
statements came to the conclusion that the Anti Terrorism Court is empowered under the
Anti-Terrorism Act, 1999 (herein referred to as the "Act") to try the case.
2. To better understand the controversy it would be appropriate to reproduce section 6 of the
Act, which defined "terrorism" as under: ---
"6. Terrorism ---(1) In this Act, `terrorism' means the use or threat of action where:
(a) the action falls within the meaning of subsection (2), and
(b) the use of 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 create a sense of fear
or insecurity; or
(c) the use of threat is made for the purpose of advancing a religious, sectarian or
ethnic cause."
Subsection (2) of section 6 of the Act, inter alia provides that the stipulated `action' falls
within the meaning of subsection (1), if it:---
"(a) involves the doing of anything that causes death;"
(d) involves the doing of anything that is likely to cause death or endangers a person's
life;"
(e) involves use of explosives by any device including bomb blast."
(m) involves serious coercion or intimidation of a public servant in order to force him
to discharge or to refrain from discharging his lawful duties; or
(n) involves serious violence against a member of the police force, armed forces, civil
armed forces, or a public servan t."
In view of the fact that a mine/bomb was used which caused death Clause (a) of subsection
(1) of section 6 of the Act is satisfied. However, since the word `and' follows the said Clause
(a) Clause (b) too of section 6 must be satisfied. The complaina nt had alleged that neither his
son (who was killed) nor he had any enmity with any person, however they had been
threatened to give up employment with Chamalung Security Force and in case they did not
do so they would face grave consequences.
3. Miss Sa rwat Hina, learned counsel for petitioner has stated that the case ought to have been
tried by the Anti Terrorism Court, Sibi as the death of Muhammad Ibrahim was the result of
an act of `terrorism' as defined in the Act and placed reliance upon the follow ing cases: ---
Muhammad Mushtaq v. Muhammad Ashiq PLD 2002 SC 841
Bashir Ahmed v. Muhammad Siddique PLD 2009 SC 11
4. Mr. Zahoor Ahmed Shahwani, learned Prosecutor -General adopted the arguments of
learned counsel for the petitioner and stressed that a mine was used to coerce and intimidate
the public in general and the local community in particular and force them not to take up
employment with the said security force and those who had taken up such employment to
give up the same and had created sense of fear and insecurity.
5. On the other hand, Mr. Imran -ul-Haq, learned counsel for the private respondents relied
upon the judgments of the Honourable Supreme Court; Muhammad Yaqoob v. State 2009
SCMR 527 and Bashir Ahmed v. Muhammad Siddique PLD 2009 S C 11. The latter case was
also relied upon by the learned counsel for the petitioner and learned Prosecutor General.
6. It has to be seen whether the facts and circumstances of the case in the light of the
provisions of the Act and the precedents of the Honourable Supreme Court the case is to be
tried by the Anti -Terrorism Court or by the regular Courts. In this regard the Honourable
Supreme Court has laid down certain principles that can be gleaned from reported judgments.
In the case of Zia Ullah v. Spe cial Judge, 2002 SCMR 1225, an Advocate was killed in the
vicinity of the Court (but not within the Court premises) as a result of indiscriminate firing of
a pistol. The Honourable apex Court held that, "learned Advocate who was in his robe and on
his way to Court to conduct trial of a murder case was murdered in a brutal and merciless
manner and an Assistant Sub -Inspector of Police was injured within the Court vicinity which
resulted in terror, fear and sensation". The Honourable Supreme Court therefore wi thdrew the
case from the Additional Sessions Judge and transferred it to the Anti -Terrorism Court.
The Honourable Supreme Court in the judgment reported in Muhammad Yaqoob v. State
2009 SCMR 527 held that, "in order to bring a particular act within the a mbit of section 7, it
is to be seen as to whether the said act had created sense of fear or insecurity in public or in
any section of public or community or any sect, or the occurrence was simply the result of
previous enmity or personal vendetta".
In th e judgment reported in Bashir Ahmed v. Muhammad Siddique PLD 2009 SC 11, the
Honourable apex Court held that, "from the facts of case, the definition of terrorism is not
attracted as the said offence has neither created any threat to coerce or intimidate o r 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". In this case the complainant party was fired upon by the
accused in front of their house on account of previous enmi ty and vendetta. Accordingly, the
Honourable Supreme Court concluded that the said act did not meet with definition of
`terrorism' contained in the Act.
In the case of Muhammad Mushtaq v. Muhammad Ashiq, PLD 2020 SC 841, four persons
while on their way t o attend the District Court were murdered by firing of a Kalashnikov at a
public place and in broad -day-light. The honourable Supreme Court held that, "the Lahore
High Court fell in error by taking into consideration only the element of the alleged enmity
existing between the parties. The High Court failed to advert to the terrorizing effect of the
occurrence created on the minds of the people at large and of the concerned locality and
passerby who had no means to ascertain the background or motive for the crime or the enmity
of the parties inter se". It was further held that, "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 thereof. There m ay 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
treated to be terr orist act".
The judgment reported in Mirza Shaukat Baig v. Shahid Jamil PLD 1005 SC 530 pertained to
dacoity committed and indiscriminate firing resorted to by nine persons with fire -arms, which
resulted in the murder of four persons in a bazaar at 9 -15 a.m. The Honourable Supreme
Court held that the word `action' appearing in clause (a) of sub -section (1) of section 6 of the
Act is significant and the matter is not controlled by the words `designed to' appearing in
clause (b) thereof and held that, "it i s an exhaustive section and does not revolve around the
word `designed to' as used in section 6(1)(b) of the Act or mens rea but the key word, in our
opinion is `action' on the basis whereof it can be adjudged as to whether the alleged offence
falls within the scope of section 6 of the Act or otherwise? The significance and the import of
word `action' cannot be minimized". The Honourable Supreme Court further held that, "after
having gone through the provisions as contained in section 6 of the Act we are of the firm
opinion that `terrorism' means the ..use or threat of `action' where the `action' falls within the
meaning of subsection (2) of section 6 of the Act and creates 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 and daily business, and
disrupts civil life shall amount to terrorism as enumerated ins section 6 of the Act. As pointed
out earlier we cannot pick and choose one or two sentences or a few words for academic
purpose and scholarly interpretation by ignoring the object and reasons for the promulgation
of Act and its preamble". The Honourable apex Court concluded that the case should be tried
by the Special Court constituted under the Act.
7. Adverting to the facts of the instant case the complainant had no enmity with any person,
no individual was nominated in the promptly lodged F.I.R., and an explosive device was used
in the commission of the offence. It was also alleged that the same was used in order to force
those employed with Chamalung Security Force constituted by the Government to give up
such employment and dissuade others from joining the said Force. The facts of the case
would thus bring the mat ter within the definition of `terrorism' as contained in section 6 of
the Act and in our considered, view, the case should be tried by -the Special Judge, Anti
Terrorism Court, Sibi. It would not be out of place to mention that section 32 of the Act
stipul ates that the Act shall have effect notwithstanding anything contained in the Criminal
Procedure Code or any other law; accordingly, the reference in the impugned order to
Schedule -II of the code was misplaced. The Act is a special legalization enacted by
Parliament and designed "to provide for the prevention of terrorism, sectarian violence and
for speedy trial of heinous offences stipulated" as stipulated in the preamble of the Act. It was
held by the Honourable Supreme Court in the case of Shaukat Baig v . Shahid Jamil (supra)
that if there is any doubt with regard to meaning of any particular provision the preamble may
be considered to arrive at the proper interpretation. Whilst we do not think there is any doubt
with regard to the import of the defined w ord `terrorism' in section 6 of the Act. Even if for
the sake of argument there was any ambiguity the preamble would conclusively resolve the
same in favour of the case being tried by the Special Court.
8. For the foregoing reasons, we set aside the impu gned order dated 31 -3-2009 passed by
Special Judge, Anti -Terrorism Court, Sibi and direct the said Special Judge to proceed with
the trial in accordance with the provisions of the Act.
Petition is allowed in the foresaid terms, but with no order as to co sts.
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