Order Sheet

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

C.    P.    No. D – 1665 of 2018

Cr. B. A. No. D – 517   of 2018

Cr. B. A. No. D – 586   of 2018

 

Present.

Mr. Justice Naimatullah Phulpoto &

Mr. Justice Zulfiqar Ali Sangi.

 

 

Date of hearing:  21.01.2020

Date of Order:     21.01.2020

 

Mr. Irshad Hussain Dharejo assisted by Mr. Irfan Ahmed Baloch, Advocates for petitioner in CPD-1665/2018 and for applicant / accused in Cr.B.A.No.D-586/2018.

Syed Jaffar Ali Shah, Advocate for applicant / accused in Cr.B.A.No.D-517/2018.

Mr. Zulfiqar Ali Jatoi, Addl. P. G and Mr. Abdul Rahman Kolachi, D. P. G.

 

O R D E R

NAIMATULLAH PHULPOTO, J. Through the instant Constitution Petition, petitioners Parvez Ali, Lal Gul, Deedar and Meeral accused have called in question order dated 12.05.2016 passed by learned Judge, Anti-Terrorism Court, Khairpur, in Special Case No.27/2013, whereby learned trial Court while deciding an application under Section 23 of Anti-Terrorism Act, 1997, held that this is the case to be tried under the provisions of Anti-Terrorism Act, 1997. Notice of this petition was issued to the respondents. In the connected bail applications complainant Abdul Ghafoor appeared before the Court on 22.11.2018 and requested for time to engage the counsel and time was granted to him. Thereafter, complainant did not appear.

 

2.         Brief facts leading to the filing of the petition are that complainant Abdul Ghafoor lodged his report at Police Station, Kumb on 16.05.2013 at 1900 hours alleging therein that accused persons committed murder of Advocate Shamsuddin in his house near Kumb for taking revenge of Feroz Gul son of accused Lal Gul. It is further alleged in FIR that accused had created terror at the time of commission of the offence. Complainant lodged FIR against the accused under Sections 302, 452, 337-H(2), 148, 149, PPC and 7 Anti-Terrorism Act, 1997. After usual investigation, challan was submitted against the accused under Sections 302, 452, 148, 149, 337-H (2) PPC and 7 Anti-Terrorism Act, 1997. Thereafter, accused persons moved an application under Section 23 of ATA before the trial Court for transfer of the case to the Court of ordinary jurisdiction, but it was declined vide order dated 12.05.2016.

 

3.         M/s Irshad Hussain Dharejo and Syed Jaffar Ali Shah, counsel for the petitioners / accused mainly contended that learned Judge, Anti-Terrorism Court has no jurisdiction to try the case as offence has been committed due to enmity and inside the house. It is further argued that element of terrorism is missing in this case. In support of submissions, reliance is placed upon the case of Waris Ali and 5 others V/S The State (2017 SCMR 1572) and unreported judgment dated 30.10.2019 passed by Hon’ble Supreme Court in Criminal Appeals No. 95 and 96 of 2019, Civil Appeal No. 10-L of 2017 and Criminal Appeal No. 63 of 2013 in the cases of Ghulam Hussain etc. v. The State etc.

 

4.         Mr. Zulfiqar Ali Jatoi, learned Additional Prosecutor General concedes to contention of learned advocate for accused that it is the case of the dispute between the parties over previous murder and incident had occurred inside the house. It is further submitted that element of terrorism is missing in this case. Learned Additional P.G recorded no objection for transfer of case to the Court of ordinary jurisdiction for trial in accordance with law.

 

5.         We have carefully heard the learned counsel appearing for the parties and perused the impugned order carefully.

 

6.         The bare fact that the crimes of the personal motive are committed in a gruesome or detestable manner, by itself would not be sufficient to bring the act within the meaning of terrorism or terrorist activities. It is observed that for an action or threat of action to be accepted as terrorism within the meanings of Section 6 of Anti-Terrorism Act, 1997, the action must fall in subsection (2) of Section 6 of 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 that 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 with the design or purpose specified or mentioned in clauses (b) or (c) of subsection (1) of Section 6 of the said Act. It is further clarified that the actions specified in subsection (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. Reliance is placed upon an unreported judgment dated 30.10.2019 passed by Hon’ble Supreme Court in Criminal Appeals No. 95 and 96 of 2019, Civil Appeal No. 10-L of 2017 and Criminal Appeal No. 63 of 2013 in the cases of Ghulam Hussain etc. v. The State etc.

 

7.         We have perused the contents of F.I.R, 161 CrPC statements of PWs and other material collected during investigation. Admittedly, present incident occurred, due to personal enmity and incident had occurred inside the house. The bare fact that crime was committed in gruesome manner, by itself would not be sufficient to bring the act within the meaning of terrorisms or terrorist activities. Actions specified in subsection (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. We have no hesitation to hold that learned Judge, Anti-Terrorism Court, Khairpur, has no jurisdiction to try this case. Consequently, C. P. No. D-1665 of 2018 is allowed. Consequently, case pending before learned Judge, Anti-Terrorism Court, Khairpur, is transferred to the concerned Court of ordinary jurisdiction for trial in accordance with law.

 

8.         As regards the Bail Application Nos. D – 517 and 586 of 2018, learned counsel appearing for the applicants in both the bail applications, in the view of above orders, do not press the same and state that they would approach the ordinary Court of jurisdiction, the same are dismissed as not pressed.

 

 

 

                                                                                    __________________

                                                                                                J U D G E

 

                                             __________________

           J U D G E

 

 

Abdul Basit