IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

C. P. No. D- 114 of 2019

Before;

Mr. Justice Muhammad Iqbal Mahar

Mr. Justice Irshad Ali Shah

1. For orders on CMA No.450/2019 (U/A)

2. For orders on office objection at flag ‘A’

3. For orders on CMA No.451/2019 (Ex.A)

4. For hearing of main case

5. For orders of CMA No.452/2019

Date of hearing: 24.01.2019

Date of decision: 24.01.2019

Mr. Ubedullah K.Ghoto Advocate for the Petitioner

ORDER

Irshad Ali Shah, J; The petitioner by way of instant constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, has sought for the following relief;

“(a) That this Honourable Court may graciously be pleased to set-aside the impugned order dated 16.01.2019 passed by the learned Judge Anti-Terrorism Court, Ghotki at Mirpur Mathelo and transfer the Special Case No.1/2018 (2/2018) State Versus Nawaz alias Ali Nawaz and others u/s 302, 324, 147,148, 149, 114 PPC & 7 A.T.A. Crime No.97/2006 Police Station Wasti Jiwan Shah District Ghotki from the Court of learned Judge Anti-Terrorism Court, Ghotki at Mirpur Mathelo to ordinary court.

(b) That this Honourable Court also be pleased to suspend the operation of impugned order dated 16.1.2019 passed by the learned Judge Anti-Terrorism Court Ghotki at Mirpur Mathelo and to restrain him not to record the evidence of the complainant and P.Ws, till the final decision of the instant petition.

(c) That this Honourable Court may further be pleased to declare that the order dated; 30.10.2006 passed by the learned Judge Anti-Terrorism Court-II, Sukkur and Larkana Division at Sukkur is a speaking and well reason order passed in accordance with law and maintain the same.

(d) That this Honourable Court may be pleased to set-aside the order dated; 14.3.2008 passed by this Honourable Court in Cr.T.A.No.S-65 of 2006 Re- Abdul Hakeem Shar Versus Ali alias Ali Bux and others, null and void the same was passed without hearing of the petitioner.

(e) Any other relief which this Honourable Court may deems fit and suitable in the circumstances of the case and in the interest of justice.

2. The facts in brief necessary for disposal of instant constitutional petition are that as per FIR the petitioner with rest of the culprits allegedly after having formed an unlawful assembly in prosecution of their common object being armed with Rocket Launchers and kalashnikvos not only committed death of Mst. Haleema, Mst. Sughran and Mst. Marvi but caused fire shot injuries to Mst. Bagul and Mst. Mehnaz by resorting to Terrorism. The incident was reported to the police by complainant Abdul Hakeem. On investigation, the case was challaned by the police before learned Civil Judge and Judicial Magistrate Ubauro, by placing the name of petitioner in column No.2 of the challan sheet. Subsequently, on application of the complainant Abdul Hakeem the case was withdrawn from the file of learned trial Court (Sessions Judge Ghotki) and it was assigned for its disposal to the Court of Judge Anti-Terrorism Sukkur by this Court vide order dated 14.03.2008 which was passed in Criminal Transfer Application No.S- 65 of 2006 Re;
“Abdul Hakeem v. Ali alias Ali Bux and others”. The order so passed by this Court was impugned by the petitioner before Honourable Supreme Court of Pakistan by way of filing a Civil Petition No.Nil/2018, same on 27.12.2018 was not pressed by the petitioner with permission to file an application u/s 23 of the Anti-Terrorism Act, 1997 before learned Judge Anti-Terrorism Court Ghotki at Mirpur Mathelo. Consequently, the petitioner filed an application u/s 23 of the Anti-Terrorism Act, 1997 before learned Judge Anti-Terrorism Court Ghotki at Mirpur Mathelo. It was not opposed by the complainant by way of filing his statement yet was dismissed by learned Judge Anti-Terrorism Court Ghotki at Mirpur Mathelo vide his order dated 16.01.2019, which the petitioner has impugned before this Court by way of instant constitutional petition.

3. It is contended by learned counsel for the petitioner that there is tribal enmity between the parties as such the learned Judge Anti-Terrorism Court Ghotki at Mirpur Mathelo ought not to have dismissed the application of the petitioner for transfer of his case to the court of ordinary jurisdiction, which even otherwise according to him was not opposed by complainant Abdul Hakeem by filing his statement. By contending so, he sought for setting aside of the impugned order with direction to learned Judge Anti-Terrorism Court Ghotki at Mirpur Mathelo to transfer the case of the petitioner to the Court of ordinary jurisdiction for its disposal according to law.

4. We have considered the above arguments and perused the record.

5. There is no denial to the fact that the case when was pending before the Court of ordinary jurisdiction was transferred to the Court of Special jurisdiction by this Court by way of order dated 14.03.2008 which was passed in Cr. Transfer Application No.S-65/2006. It was challenged by the petitioner before Honourable Supreme Court of Pakistan by way of filing a Civil Petition No.Nil/2018 re; “Moula Bux alias Bagro Dhaundho v. The State through PG Sindh”. It was not pressed by the petitioner with opportunity to file an application u/s 23 of the Anti-Terrorism Act, 1997 before learned Judge Anti-Terrorism Court Ghotki at Mirpur Mathelo, for transfer of his case to the Court of ordinary jurisdiction, which he did and his such application was dismissed by learned Judge Anti-Terrorism Court Ghotki at Mirpur Mathelo by way of his order dated 16.01.2019, which the petitioner has impugned before this Court by way of instant Constitutional petition. The only grievance with the petitioner which is indicated of the circumstances is that learned Judge Anti-Terrorism Court Ghotki at Mirpur Mathelo ought not to have dismissed his application for transfer of his case as it was not opposed by the complainant. It is settled by now that the jurisdiction could not be assigned to the Courts with the consent of the parties, but on merits of the case.

6. Section 6 of the Anti-Terrorism Act of 1997, reads 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 or 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 a foreign government or population or an international organization] or create a sense of fear or insecurity in society; or

(c) the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause [or intimidating and terrorizing the public, social sectors, media persons, business community or attacking the civilians, including damaging property by ransacking, looting, arson or by any other means, government officials, installations, security forces or law enforcement agencies.]

(2) An "action' shall fall within the meaning of subsection (1), if it;

(a) involves the doing of anything that causes death;

(b) involves grievous violence against a person or grievous bodily injury or harm to a person;

(c) involves grievous damage to property [ including government premises, official installations, schools, hospitals, offices or any other public or private property including damaging property by ransacking, looting or arson or by any other means];

(d) involves the doing of anything that is likely to cause

death or endangers a person's life;

7. In the instant matter, the three innocent ladies have been killed brutally and in addition to them, two more innocent ladies have been injured in premeditated and pre-planned manner by resorting to indiscriminate firing with rocket launchers and Kalashnikovs allegedly by the petitioner and others, which apparently created a sense of insecurity and terror amongst the people of neighbourhood, such act obviously was/is falling within ambit of Section 6 of Anti-Terrorism Act, 1997.

8. In case of Kashif Ali vs. Judge, Anti-Terrorism Court No.II, Lahore and others (PLD 2016 SC-951), It has been held by Honourable Court that;

“it would be essential to have a glance over the allegations leveled in the FIR, the material collected by the investigating agency and the surrounding circumstances, depicting the commission of offence. Whether a particular act is an act of terrorism or not, the motivation, object, design or purpose behind the said Act has to be seen. The term "design" which has given a wider scope to the jurisdiction of the Anti-terrorism Court excludes the intent or motive of the accused. In other words, the motive and intent have lost their relevance in a case under Section 6(2) of the Act. What is essential to attract the mischief of this Section is the object for which the act is designed.”

9. From above, it is clear that in order to determine the application of Section 6 of the Act, the claimed motive was / is not of much importance but it would be the design (manner) which the culprit(s) chooses to achieve. In other words, if an offence is designed in such a manner that ultimate effect thereof would result in striking general public or those intending to do a lawful act which the targeted person or person(s) did then such offence would squarely would fall within mischief of Section 6(2) of the Anti Terrorism Act, 1997, as was further detailed by the Hon’ble Supreme Court in the case of Kashif Ali (supra) by making the following observation;

“14. The contention of the learned Counsel for Respondent No.2 that the incident was a result of personal enmity would not exclude the case of the accused-Respondents from the mischief of section 6(2) of the Act. The manner in which the incident had taken place and the time of occurrence should be taken note of, the effect of which was to strike terror in the supporters / voters and general public, therefore, the offence squarely falls within the contemplation of section 6 (ibid). ….

10. For what has been discussed above, it could be concluded safely that learned Judge, Anti-Terrorism Court, Ghotki at Mirpur Mathelo has committed no illegality by dismissing the application u/s 23 of Anti-Terrorism Act, 1997 of the petitioner, for transfer of his case to Court of ordinary jurisdiction, which could be made right by this Court by way of instant constitutional petition.

11. Above are the reasons of short order dated 24.01.2019 whereby the instant constitutional petition was dismissed in limine along with listed applications.

Judge

ARBROHI