IN THE HIGH COURT OF SINDH

BENCH AT SUKKUR

Constitutional Petition No. D-634 of 2020

Before:

Adnan-ul-Karim Memon and

Yousuf Ali Sayeed, JJ

Applicants : Abdul Wahid and another through Mr. Achar Khan Gabole, Advocate

The State : Through Mr. Aftab Ahmed Shar, APG

Complainant : Nemo

Date of hearing : 28.07.2020.

ORDER

YOUSUF ALI SAYEED, J - Being aggrieved by the Order made on 23.04.2020 in Special Case No.11/2019, Re: The State v. Abdul Wahid and others (the “Subject Case”) by the Anti-Terrorism Court, Ghotki at Mirpur Mathelo, dismissing their Application under S. 23 of the Anti-Terrorism Act, 1997 (the “ATA”) for transfer of the matter to the regular Court of Sessions, the Applicant have impuged such dismissal vide this Petition under Article 199 of the Constitution.

2. The Subject Case arises out of FIR No.70/2019 registered under Section 376 PPC read with Section 7 of the ATA at P.S. Adilpur, District Ghotki on 11.11.2019 by one Asadullah Mahar (the “Complainant”), alleging that the accused Applicants, Abdul Wahid and Khair Muhammad, entered his house on 26.10.2019 at about 3:00 PM and the former raped his daughter, Ayesha, aged about 10 years, whilst the latter held the Complainant and his two brothers-in-law at bay, at gunpoint.

3. Notice of the Petition was duly issued to the Complainant, who nonetheless did not come forward to contest the matter.

4. Proceeding with his submission, learned counsel for the Applicant contended that even if all of the allegations contained in the FIR were accepted as being correct for the sake of argument, the matter still did not constitute an act of “terrorism” for purposes of Section 6 of the ATA, as clarified vide the judgment of the Honourable Supreme Court dated 30.10.2019 in the case reported as Ghulam Hussain and others v. The State PLD 2020 Supreme Court 61. He specifically drew particular attention to Paragraph 16 of that judgment, which reads as follows:

“16. 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 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 the 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.

5. He submitted that the matter at hand did not meet the test of clauses (b) or (c) of S.6(1) of the ATA, and had wrongly been determined to constitute “terrorism”. He prayed that in light of the ratio of Ghulam Hussain’s case (Supra), the Application ought to be allowed, with the impugned Order being set aside and the Subject Case consequently being transferred to the Court of Sessions.

6. Resisting such a plea, the learned APG made a token endeavour to support the impugned Order, but on query posed could not offer any input as to how the offence of rape under S.376 PPC of itself qualified as terrorism.

7. A reading of the impugned Order reflects that while considering the judgment on Ghulam Hussain’s case (Supra), the learned ATC Judge sought to distinguish the matter on the basis that albeit it being stated in Paragraph 16 of the Apex Court’s judgment, as reproduced herein above, that the action specified in S.6(2) of the ATA would not qualify to be labeled or characterized as terrorism if taken in furtherance of personal enmity or private vendetta, in the present case no personal enmity or private vendetta had been shown in the FIR, hence that precedent was not applicable to the case, whereas the offence was considered by the learned Judge as being covered under the 3^rd Schedule to the ATA, and the showing of a pistol to the Complainant party was held to have caused terror and panic in the locality. In recording such a finding, the learned Judge considered his view to be fortified by the earlier judgment of the Honourable Supreme Court in the case reported as Imran Ali v. The State 2018 SCMR 1372, often referred to as “Zainab’s case”, which pertained to the abduction, rape and murder of a minor girl.

8. Having considered the matter, we find ourselves in disagreement with the reasoning of the learned ATC Judge, which is completely unsustainable in as much as it predicated on a gross misreading of the judgment in Ghulam Hussain’s case (Supra) and also overlooks the fact that the judgment in Zainab’s case was rendered earlier in time and did not entail any determination of what qualifies as “terrorism” under S. 6 of the ATA. Furthermore, as to the finding made with reference to the 3^rd Schedule, whilst the same indeed includes ‘kidnapping for ransom’ as a Scheduled Offence, which is also covered under S.6(2)(e), the instant case does not entail any abduction as such. Furthermore, as is apparent from the judgment in Ghulam Hussain’s case (Supra), whilst it was clarified that the actions specified in S.6(2) would not qualify to be labeled or characterized as terrorism if such actions are taken in furtherance of personal enmity or a private vendetta, the essence thereof is that an action falling under S. 6(2) would not constitute terrorism per se, unless there was a coincidence of any of the objectives specified in clause(b) of S. 6(1) or the use or threat of such action was intended to achieve any of the purposes mentioned in clause (c) thereof. Failing such a test, the action, albeit otherwise constituting an offence, would not qualify as “terrorism”, irrespective of how grave, shocking, brutal, gruesome or horrifying such action may be. In this regard, it would be appropriate to consider Section (6(1) of the ATA, which read as follows:

“6. Terrorism.---(1) In this Act, “terrorism” means the use or threat of action where:

(a) the action falls within the meaning of sub-section (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.

Provided that nothing contained herein shall apply to a democratic and religious rally or a peaceful demonstration in accordance with law.

9. In the matter at hand, where the alleged offence is shown to have been committed within the four walls of the Complainant’s home without there being any abduction and the use of a firearm by one of the Applicants to subdue the male relatives of the rape victim is also said to have taken within such confines, the ingredients of Section 6(1)(b) and (c) are conspicuously absent, and that being so, we are unable to concur with the determination of the jurisdictional point by the learned Judge of the Anti-Terrorism Court.

10. As such, the impugned Order clearly warrants correction, and the Petition is allowed accordingly, with the impugned Order being set aside and the Subject Case being transferred from the Anti-Terrorism Court, Ghotki at Mirpur Mathelo, to the ordinary Court of competent jurisdiction, for trial thereof in accordance with law.

Judge

Judge