P L D 2021 Balochistan 94
Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ
Malik MEHRULLAH KHAN ---Petitioner
Versus
MUHAMMAD HAYAT and 3 others ---Respondents
Constitutional Petition No. 493 of 2020, decided on 2nd July, 2020.
(a) Anti -Terrorism Act (XXVII of 1997) ---
----S. 6 ---Act of 'terrorism' ---Scope ---Courts, for determining the issue whether a case is
triable under the Anti- Terrorism Act, 1997 or not, are required to examine the FIR (First
Information Report), the statements recorded under S.161, Cr.P.C., the material collected by
the investigating agency and other documents available with the prosecution---Inclusion of
surrounding circumstances, depicting the commission of the offence, prima facie permits taking into consider ation the documents/material, came on to surface with regard to previous
enmity or dispute.
(b) Anti -Terrorism Act (XXVII of 1997) ---
----S. 6---Act of 'terrorism' ---Scope ---Terrorists operate on a level different from that on
which ordinary criminals oper ate, their operations and tactics are different and the offence of
terrorism is more connected with the object and design behind an action than with the action itself ---Terrorism is not primarily directed against the actual victims themselves who are
treated merely as 'collateral damage' ---Extent of the actual damage caused or injuries
inflicted by the act is not the determinative factor in this regard---Ferocious action against neutrals that had no dogmatic, conceptual or religious aims is just an act of c riminal
delinquency, a crime, or simply an act of senselessness unrelated to "terrorism".
Criminal Appeals Nos.95 and 96 of 2019, Civil Appeal No.10- L, and Criminal
Appeal No.63 of 2013 rel.
Amanullah Batezai for Petitioner.
Respondents: None present.
Date of hearing: 24th June, 2020.
ORDER
ROZI KHAN BARRECH, J .---By means of instant petition under Article 199 of the
Constitution of Islamic Republic of Pakistan, 1973, the petitioner has called in question the
validity of the order dated 18.06.2020 (her einafter "the impugned Order") passed by learned
Additional Sessions Judge (MCTC) Harnai (hereinafter "the appellate Court") whereby
application for transfer of the case to the Court of Anti Terrorism Court was dismissed.
2. Consciously the facts for dispo sal of the instant petition are that on.18.06.2020 the
complainant Haji Humayun Shah lodged FIR No.24 of 2008 at Police Station Saddar Harnai for an offence under sections 302, 34, P.P.C. with the averments that on the aforementioned date he along with his son Dilawar Shah, Malik Gul Shah Khan and Rehman Shah went to
Khozi Khula for a tribal settlement in a Parado vehicle bearing registration No.1K2. After returning from the said place they were coming towards Harnai. In the way they take a short break at I njeer area for the purpose of drinking water. Meanwhile, two persons namely
Muhammad Hayat son of Muhammad Din and Meer Gul son of Murtaza alias Khan Bahadur being equipped with deadly weapons while riding a racer motorcycle arrived there and opened fire upon the vehicle as result complainant's son Dilawar Shah and Gul Shah Khan died at the spot while complainant and Rehman Shah rescued themselves.
3. After completion of investigation challan was submitted before the trial Court under
section 512, Cr.P.C., and on conclusion of trial the accused was arrested and supplementary challan was submitted before the trial Court. The complainant filed an applicat ion for
transfer of case to the Court of Anti Terrorism Court before the learned Additional Sessions Judge (MCTC) Harnai and the same was dismissed on 18.06.2020. Hence this petition.
4. We have heard the learned counsel for the petitioner and have minutel y gone through
the available record. For determining the issue whether a case is triable under the Anti Terrorism Act, 1997 or not Courts are required to examine the FIR, the statements recorded
under section 161 Cr.P.C., the material collected by the inve stigating agency and other
documents available with the prosecution. The inclusion of surrounding circumstances, depicting the commission of the offence, prima facie permits taking into considering the documents/material, came on to surface with regard to the previous enmity or the dispute.
Under these circumstances, question to be decided in this constitution petition is that whether in view of the circumstances and facts mentioned supra, the act of the accused persons constitute an offence falling within the scope of terrorism as envisaged under section 6 of Anti Terrorism Act, 1997 or otherwise. The terrorists operate on a level different from that on which ordinary criminals operate, their operations and tactics are different and the offence of terrorism is more concerned with the object and design behind an action than with the
action itself. In order to qualify as terrorism an act must be designed to accomplish a larger objective and the same is not primarily directed against the actual victims themselv es who
are treated merely as 'collateral damage'. It is also quite evident that the extent of the actual damage caused or injuries inflicted by the act is not the determinative factor in this regard. A ferocious action against neutrals that has no dogmatic , conceptual or religious aims is just an
act of criminal delinquency, a crime, or simply an act of senselessness unrelated to terrorism. The august Supreme Court of Pakistan in the recent judgment passed in the Criminal Appeals Nos.95 and 96 of 2019, Civi l Appeal No.10- L, and Criminal Appeal No.63 of 2013 has
enunciated the following binding principle: -
"For what has been discussed above it is concluded and declared that for an action or threat of action to be accepted as terrorism within the meanings of section 6 of the
Anti Terrorism Act, 1997 the action must fall in subsection (2) of section 6 of the said
Act and the use or threat of such action must be designed to achieve any of the objectives specified in clause (b) of subsection (1) of section 6 of t hat Act or the use
or threat of such action must be to achieve any of the purposes mentioned in clause (c) of subsection (1) of section 6 of that Act. It is clarified that any action constituting
an offence, howsoever grave, shocking, brutal, gruesome or horrifying, does not
qualify to be termed as terrorism if it is not committed within the design or purpose
specified or mentioned in clause (b) or (c) of subsection (1) of section 6 of the said Act. It is further clarified that the actions specified in subs tation (2) of section 6 of
that Act do not qualify to be labeled or characterized as terrorism if such actions are taken in furtherance of personal enmity or private vendetta".
Thus, in our view there is no evidence to suggest that the alleged offence was
committed by the accused with any design, purpose, intention and mens rea of causing terrorism.
In view of what has been discussed above, the order dated 18.06.2020 passed by
learned Additional Sessions Judge, (MCTC) Harnai is upheld and the petition fil ed by the
petitioner is hereby dismissed in liminie.
SA/219/Bal. Petition dismisseThis 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,
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