ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Misc. Appln. No.D-12 of 2022.

Sajid Hussain Mangrani v. The State & another

Present:

Mr. Justice Adnan Iqbal Chaudhry,

Mr. Justice Zulfiqar Ali Sangi,

Mr. Farhat Ali Bugti, Advocate for the Applicants.

Mr. Ali Anwar Kandhro, Addl. P. G.

Date of hearing : 14.02.2023.

Date of Decision : 15-03-2023.

Crime No.05/2022, PS Garhi Yaseen.

u/s 302, 148, 149, 114, 120(B) PPC,

6/7 ATA.

Adnan Iqbal Chaudhry J.- The Applicants, named as accused persons in the aforesaid crime by invoking section 561-A Cr.P.C have challenged order dated 27.8.2022 whereby their application under Section 23 of the Anti-Terrorism Act, 1997 [ATA], for transfer of case to the ordinary/Sessions Court, was dismissed by the Anti-Terrorism Court, Shikarpur [ATC].

2. Per FIR, complainant Israr Ahmed reported that the accused party extended murderous threats to the complainant party over a land dispute; that on 31.01.2022, around 06:20 p.m, when the complainant party (six persons) were in village mosque for magrib prayers, they heard hakals and saw/identified the accused party (nine persons) including the Applicants entered the mosque with firearms; that from the accused party, Shafquat Hussain, Sajid Hussain, Wahid Hussain, Imran Ali, Ghulam Sabir Mungrani and Nizam Din Marfani opened fires with Kalashnikovs upon Imdad Ali, Dilshad Ali and Shamshad of the complainant party killing them on the spot. The FIR was initially lodged for offences under Sections 302, 148, 149, 114 PPC. Fifteen empties were recovered from the mosque along with blood-stained carpet. Given these facts, Sections 6 and 7 of the ATA, 1997 were added to the challan submitted before the ATC, Shikarpur.

3. The grounds urged by the Applicants for transfer of case from ATC were that since prior enmity was acknowledged by the complainant in the FIR, the question of ‘terrorism’ did not arise and that the investigation had verified that on the day of the incident the Applicants were confined to Central Prison, Hyderabad in another crime. The application was declined by observing that the incident apparently had taken place in a mosque where others were also present for magrib prayers, and that in the given circumstances, the design was to create terror.

4. Before us, learned counsel for the Applicants has reiterated the grounds narrated above. On the other hand, the learned Additional Prosecutor General submitted that the offence of firing on a religious congregation and mosque was specifically covered as terrorism under Section 6 (2) (h) of the ATA, 1997, therefore, this was not a case where the Court was required to discover the intent of action.

5. Heard the learned counsel and perused the record.

6. We agree with the learned Additional Prosecutor General, albeit for a somewhat different reason, that for the present purposes, this Court is not required to delve into the question whether the offence was one of terrorism or not.

7. Section 23 of the ATA is the power of ATC to transfer a case for trial to a Court having jurisdiction under the Cr.P.C. where, after taking cognizance of an offence the ATC is of the opinion that the offence is not a ‘scheduled offence’. Per Section 2(t), a scheduled offence means an offence as set-out in the Third Schedule. For the purposes of Section 23 of the ATA, the Third Schedule can be segregated into two parts. The first part comprises of offences covered by Clauses 1 to 3, which would include the offence of ‘terrorism’ under Section 6 of the ATA. The second part comprises of offences covered by Clause 4 which reads:

“4. Without prejudice to the generality or the above paragraphs, the Anti-terrorism Court to the exclusion of any other Court shall try the offences relating to the following, namely:-

(i) Abduction or kidnapping for ransom;

(ii) use of fire arms or explosives by any device, including bomb blast in a mosque, imambargah, church, temple or any other place of worship, whether or not any hurt or damage is caused thereby; or

(iii) firing or use of explosive by any device, including bomb blast in the court premises.”

8. Thus, an offence falling under Clause 4 supra is triable exclusively by the ATC. However, Clause 4 is not to say that offences thereunder automatically become ‘terrorism’ within the meaning of Section 6 of the ATA, rather the intent is only to give jurisdiction to the ATC to try such offences. Therefore, even if an offence listed in Clause 4 of the Third Schedule to the ATA does not constitute ‘terrorism’ within the meaning of Section 6 of the ATA, it is nonetheless triable by the ATC by reason of the exclusive jurisdiction bestowed upon it by Clause 4. In such circumstances, the ATC is competent to award punishment albeit only for the offence under Clause 4 and not for the offence of ‘terrorism’. That is the pronouncement of the Supreme Court in Ghulam Hussain v. The State (PLD 2020 SC 61), and most recently in Nawab Siraj Ali v. The State (2023 SCMR 16).

9. In the case before us, the Applicants seek transfer under Section 23 of the ATA of an offence that alleges the use of firearms in a mosque. The case is clearly covered by clause 4 (ii) of the Third Schedule to the ATA, and therefore triable exclusively by the ATC. The grounds taken in the transfer application are essentially grounds of defense, and not relevant for the purposes of Section 23 of the ATA. The question whether the alleged offence also constituted the offence of terrorism under Section 6 of the ATA, is one that will be determined by the ATC upon trial. With that observation, this application is dismissed. Having concluded so, we do not examine whether against the order impugned the appropriate remedy was a revision instead of an application under section 561-A Cr.P.C.

JUDGE

Qazi Tahir PA/*