IN THE HIGH COURT OF SINDH

BENCH AT SUKKUR

 

Crl. Misc. Application No. D-16 of 2020

 

 

                                Present:- Adnan-ul-Karim Memon &

                                                Yousuf Ali Sayeed, JJ

 

 

Applicant               :        P.C. Nasir Hussain, through Asim Malik, Advocate.

 

The State               :        Through Sardar Ali Shah, DPG.

 

Date of hearing      :        16.07.2020.

 

 

ORDER

 

YOUSUF ALI SAYEED, J -      Briefly, the backdrop to the matter is that on 27.02.2020, the present Applicant was apparently on patrol as a member of a five-man police party, which was stopped at Race-Course Road near Royal Plaza Sukkur by one Imdad Ali Shah, who informed them of the presence of four armed men at his residence situated on the 3rd floor of that building. It is said that they espied the assailants upon reaching that spot at about 0005 hours, who opened fire, with two bullets striking the Applicant. Thereafter, two of the assailants were apprehended whilst attempting to flee whereas the others managed to make good their escape. FIR No.28/2020 was then registered accordingly at Police Station ‘A’ Section, Sukkur (the “FIR”) under Sections 324, 353, 34 PPC read with Section 7 of the Anti-Terrorism Act, 1997 (the “ATA”), however an Application under S. 23 of the ATA was moved by the arrested accused in in Special Case No. 12/2020 arising from said FIR, which was allowed by the learned Judge, Anti-Terrorism Court-I, Sukkur vide Order dated 10.06.2020, whereby the matter was transferred along with its amalgamated cases to the Sessions Judge, Sukkur, for disposal according to law. Being aggrieved, the Applicant has impugned that Order vide this Application under Section 561-A, Cr. P.C., relying upon S.6(2)(n) of the ATA.

 

2.     As the controversy at this stage turns on a purely jurisdictional point gravitating around S.6 of the ATA, it would be appropriate to reproduce S.6(1) as well as the relevant part of sub-section (2) thereof for ready reference, 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.

                

 

(2) An “action” shall fall within the meaning of sub-section (1), if it:

 

…

(n)  involves serious violence against a member of the police force, armed forces, civil armed forces, or a public servant;

 

 

 

                 …”

 

 

 

3.     Proceeding with his submissions, learned counsel for the Applicant submitted that as this was a case where the accused had been implicated in firing upon and injuring police personnel with deadly intent, the same fell within the scope of S.6(2)(n), hence properly came within the ambit of the ATA and the purview of an Anti-Terrorism   Court.

 

 

4.     Having examined the impugned Order in juxtaposition with the material placed on record, we have observed that the learned Judge of the Anti-Terrorism Court noted that the accused had apparently come to the spot of the encounter in the context of a matrimonial dispute involving Imdad Ali Shah, who by the time of the encounter had already made a complaint in that regard at P.S. ‘A’ Section, Sukkur, giving rise to the registration of FIR No. 27.2020, and was of the view that the facts and circumstances alleged in the FIR did not disclose any of the ingredients necessary for an act to constitute terrorism, as set out in Section 6(1) of the ATA.

 

 

5.     The learned DPG also supported the impugned Order, and, indeed, when the scheme of S.6 of the ATA is examined, it is apparent that sub-section (2) thereof cannot be read in isolation, but is to be viewed in juxtaposition with the conditions specified under sub-section (1) thereof, as settled vide the seminal judgment of the Apex Court in the case reported as Ghulam Hussain and others v. The State PLD 2020 Supreme Court 61 whereby the scope of ‘terrorism’ within the meaning of Section 6 was clarified. The relevant part of that judgment (i.e. Para 16) 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.

 

 

6.     As it transpires, from our own reading of the matter in light of S.6 of the ATA, viewed through the prism of the judgment in Ghulam Hussain’s case (Supra), we concur with the assessment of the learned Judge of the Anti-Terrorism Court that the ingredients of Section 6(1)(b) and (c) are conspicuously absent, and on query posed learned counsel for the Applicant was unable to demonstrate the presence of any of those elements.

 

 

7.     In parting, it merits consideration that upon presentation of the instant Application, the office had raised an objection as to its maintainability with reference to a judgment of a learned Division Bench of this Court in the case reported as Allah Nawaz and another v. The State 2010 MLD 1412, where it had been held that neither Sections 435, 439 Cr. PC. nor S.561-A Cr. P.C. could be invoked to challenge and impugn an order passed by the Anti-Terrorism Court under S.23 of the ATA, but recourse under Article 199 of the Constitution remained available in appropriate cases. Whilst we would have been inclined to convert and treat this Application accordingly had a proper case been made out, under the given circumstances, with the matter being devoid of merit, such a need does not arise and the main Application is hereby dismissed, along with all miscellaneous applications.

 

 

                                                                                      Judge

 

                                                          Judge