IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Crl. Jail Appeal No.D- 26 of 2015

DATE OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE.

Present:-

Mr. Justice Muhammad Saleem Jessar,J.

Mr. Justice Abdul Mobeen Lakho, J.

1. For orders on M.A.No.247 /22

2. For orders on M.A.No.248 /22

3. For hearing of main case.

Date of hearing. 29.09.2022

Mr. Habib-ur-Rehman Shaikh Advocate for Appellant/ accused.

Syed Sardar Ali Shah, Additional Prosecutor General, Sindh.

JUDGMENT

ABDUL MOBEEN LAKHO, J; Appellant Javed Iqbal son of Muhammad Iqbal who was booked in Crime Nos.144/2012 under Section 302, 324, 34 PPC r/w Section 6/7 ATA, 1997, Crime No.143/2012 under Section 13(d).Arms Ordinance, 1965 and Crime No.147/2012 under Sections 452, 353 PPC r/w Section 6/7 ATA, 1997 of Police Station Cantonment, Hyderabad. After investigation he was sent-up to face his trial before the Court of learned Anti-Terrorism Court, Naushehro Feroze vide Special Cases No.151, 152 and 153 of 2012 respectively (Re-State v. Javed Iqbal Shaikh and others), after full dressed trial the appellant was found guilty of the charges and therefore, was convicted and sentenced to serve out his servitude as under;

i). For the offence punishable u/s 302(b), 149 PPC r/w Section 6/7(a) of Anti-Terrorism Act, 1997 and sentenced to suffer “Imprisonment for Life” and to pay fine of Rs. 300,000/- (Three lacs), in case of default in payment of fine, he should suffer S.I. for six months more.

ii). For offence punishable u/s 353 PPC, he was sentenced to suffer Two years R.I and to pay fine of Rs. 50,000/- (Fifty thousand), in case of default thereof, he should suffer S.I. for three months more.

iii). For offence punishable u/s 13(d) Arms Ordinance, appellant was sentenced to suffer three years R.I. and to pay fine of Rs.10,000/- (Ten thousand, in case of default thereof, he should suffer S.I. for two months more.

All the sentences awarded to accused/appellant Javed Iqbal Shaikh were directed to run concurrently; however, benefit of Section 382-B Cr.P.C was also extended to him.

2. The case of prosecution shows that the deceased Mst. Raheela and Zulfiqar Ali Sahito filed constitution petition before Circuit of this Court at Hyderabad for protection. At 11:30 a.m, after interval the learned Judges of this Court came in the Court room accused Javed Iqbal took out Pistol made straight fire at Raheela which hit her and she fell down, appellant Javed Iqbal tried to shoot Zulfiqar, the husband but fire missed. Police personnel present there caught Javed Iqbal with pistol and Sodagar at spot, Raheela was taken to hospital by Shahnawaz and Asghar but she expired. Complainant thereafter came at Police Station and lodged the FIR on behalf of State and on 07.02.2022. Parties entered into compromise by way of application seeking directions.

3. Pursuant to directions issued the brother of deceased Mst. Raheela Shaikh, namely, Qasim Iqbal having CNIC No.45305-0398694-1 were examined in open Court. He submits that he has entered into compromise with the appellant Javed Iqbal and has no objection for grant of listed applications and acquittal of the appellant by way of compromise. Learned Additional Prosecutor General has very candidly accorded his no objection for grant of listed applications and acquittal of the appellant u/s 302(b) PPC by way of compromise which applications are hereby allowed.

4. Learned counsel for appellant submits that as far as application of Sections 6/7 ATA, 1997 is concerned, he submits that since the offence was committed due to personal grudge and vendetta therefore, ATA provisions would not attract hence, he submits that by granting the appeal impugned judgment may be set-aside. As far as Section 452 and 353 PPC are concerned, learned counsel submits Court room does not come within the meaning and ambit of dwelling house or the vessel; however, it is a place where everyone comes with a specific purpose. He further submits that appellant had not deterred any of the Officer of the Court or public functionary whilst alleged commission of the offence therefore, application of Section 353 PPC is also not applicable. He further submits that as far as recovery of offensive weapon, it was foisted upon him by the police and no independent person was made as its witness even the husband of lady who allegedly was available at the relevant time within the Court room had not lodged FIR of the incident and it was got registered by the Police Officer on behalf of the State. He next submits that appellant had been acquitted of the charges of Section 302 PPC by way of compromise hence, he deserves his acquittal in off-shoot case arisen out of FIR No.143/2021 Police Station Cantt. Hyderabad u/s 13(d) Arms Ordinance,1965. In support of his contention he places reliance upon the case of Manjhi v. The State (PLD 1996 Karachi 345).

5. Learned Additional Prosecutor General submits as far as application of Section 6/7 of ATA, 1997 is concerned, same were rightly applied by the Police, besides said sections are not compoundable, therefore, to that extent he opposes the appeal. He; however, could not controvert the fact that main offence was the result of personal vendetta for which the Honourable Supreme Court of Pakistan has already laid down the dictum in case of Ghulam Hussain and others v. The State and others (PLD 2020 Supreme Court 61), Muhammad Akram v. The State (2022 SCMR 18) and Munir Malik and others v. The State through P.G. Sindh (2022 SCMR 1494).

6. Heard arguments. Perused the record.

7. Admittedly, the appellant had not deterred any Police Officer or Officer of the Court whilst committing alleged offence therefore, application of Section 353 PPC was wrongly applied as none from the public functionary was made victim of the Crime. As far as, recovery of alleged offensive weapons is concerned the appellant has been acquitted of the charge of main crime under Section 302(b) PPC by way of compromise therefore, following the dictum of law when a person gets acquittal in main offence/crime he also deserves acquittal in an off-shoot case more particularly when no independent person was associated as attesting witness/mashir of the recovery proceedings though it was a Court room and allegedly was full of the inmates does not attract the provisions of Section 6 ATA, 1997.

8. The main thrust of the prosecution case is that when a murder taking place in the Court room that crime will come under the ambit of Section 7 ATA, 1997 and no compromise can then take place as the law does not permit for any compromise if the above section is applied. We taking guidance from the case of Ghulam Hussain and others with regard to application of 6/7 ATA, 1997, we agree with the contention of learned defence counsel that Honourable Supreme Court in the case of Ghulam Hussain and others (supra) conclusively determined definition of terrorism and has eloquently elaborated what action or threat of an action constitutes terrorism with reference to Section 6 of ATC, 1997. In paragraph 10 and 11 of the judgment has recalled all the precedent cases available on either side of divide defining constituents of terrorism in the background of section 6 of ATA, 1997. And finally after an detailed discussion in paragraph 13, 14 and 15 examining, among others, preamble to ATA, 1997 and jurisdiction of Anti-Terrorism Court under Section 12 of the said Act coupled with definition of scheduled offence in relation to the Third Schedule to the said Act has declared in paragraphs 16 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 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.” This has left no opacity to understand that merely creation of fear or insecurity in the society as a result of an action or threat of such an action is not by itself terrorism unless it is seen or shown that the motive or intention or design behind the action or threat of such action was to create fear or insecurity in the society, and that an action or its threat would not be terrorism when fear or insecurity is just an unintended consequence of a crime. Further an action, howsoever grave, shocking, brutal, gruesome or horrifying may be or it may fall under subsection (2) of Section 6 of the Act, it would not qualify to be termed as terrorism if it is not committed with the design or purpose specified or mentioned in clause(b) of ( c) of subsection (1) of section 6 of the said Act or if it is taken in furtherance of personal enmity or private vendetta. And in such event, a court of ordinary jurisdiction will have authority to try the case against the accused.

9. Notwithstanding, a reading of the Third Schedule reflects that besides the cases involving offences constituting terrorism and defined above, An Anti-Terrorism Court has been conferred jurisdiction to try all those cases involving heinous offences, which otherwise do not fall in the definition of terrorism, for speedy trial of such offences. The Honourable Supreme Court while dealing with such category of the cases has held in paragraph-13 of the judgment as under;

“13. A careful reading of the Third Schedule shows that an Anti-Terrorism Court has been conferred jurisdiction not only to try all those offences which attract the definition of terrorism provided by the Act but also some other specified cases involving heinous offences which do not fall in the said definition of terrorism. For such latter category of cases it was provided that although those offences may not constitute terrorism yet such offences may be tried by an Anti-Terrorism Court for speedy trial of such heinous offences. This distinction between cases of terrorism and cases of specified heinous offences not amounting to terrorism but triable by an Anti-Terrorism Court has already been recognized by this Court in the cases of Farooq Ahmed v. State and another (2020 SCMR 78), Amjad Ali and others v. The State (PLD 2017 SC 661) and Muhammad Bilal v. The State and others (2019 SCMR 1362). It has been clarified by this Court in those cases that such specified heinous offences are only to be tried by an Anti-Terrorism Court and that court can punish the person committing such specified heinous offences only for commission of those offences and not for committing terrorism because such offences do not constitute terrorism. For the purposes of further clarity on this issue it is explained for the benefit of all concerned that the cases of the offences specified in entry No. 4 of the Third Schedule to the Anti-Terrorism Act, 1997 all cases of those heinous offences which do not per se constitute the offence of terrorism but such cases are to be tried by an Anti-Terrorism Court because of their inclusion in the Third Schedule. It is also clarified that in such cases of heinous offences mentioned in entry No. 4 of the said Schedule an Anti-Terrorism Court can pass a punishment for the said offence and not for committing the offence of terrorism. It may be pertinent to mention here that the offence of abduction or kidnapping for ransom under section 365-A, P.P.C. is included in entry No. 4 of the Third Schedule and kidnapping for ransom is also one of the actions specified in section 7(e) of the Anti-Terrorism Act, 1997. Abduction or kidnapping for ransom is a heinous offence but the scheme of the Anti-Terrorism Act, 1997 shows that an ordinary case of abduction or kidnapping for ransom under section 365-A, P.P.C. is merely triable by an Anti-Terrorism Court but if kidnapping for ransom is committed with the design or purpose mentioned in clauses (b) or (c) of subsection (1) of section 6 of the Anti-Terrorism Act, 1997 then such offence amounts to terrorism attracting section 7(e) of that Act. In the former case the convicted person is to be convicted and sentenced only for the offence under section 365-A, P.P.C. whereas in the latter case the convicted person is to be convicted both for the offence under section 365-A, P.P.C. as well as for the offence under section 7(e) of the Anti-Terrorism Act, 1997. The same may also be said about the other offences mentioned in entry No. 4 of the Third Schedule to the Act pertaining to "Use of firearms 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", "Firing or use of explosive by any device, including bomb blast in the court premises", "Hurt caused by corrosive substance or attempt to cause hurt by means of a corrosive substance" and "Unlawful possession of an explosive substance or abetment for such an offence under the Explosive Substances Act, 1908 (VI of 1908)". Such distinction between cases of terrorism and other heinous offences by itself explains and recognizes that all heinous offences, howsoever serious, grave, brutal, gruesome, macabre or shocking, do not ipso facto constitute terrorism which is a species apart. Through an amendment of the Third Schedule any heinous offence not constituting terrorism may be added to the list of offences which may be tried by an Anti-Terrorism Court and it was in this context that the Preamble to the Act had mentioned "Whereas it is expedient to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences".

10. In the above paragraph, it has been clearly explained that an Anti-Terrorism Court has jurisdiction to try the heinous offences mentioned in entry No.04 of the Third Schedule in addition to the offences constituting terrorism. But in the first category of cases it can punish the accused only for commission of those offences and not under ATA, 1997 for committing terrorism. Further it has been held that the cases of heinous offences specified in entry No.04 of the Third Schedule to the Anti-Terrorism Act, 1997 are cases of those offences which do not per se constitute the offence of terrorism but such cases are to be tried by an Anti-Terrorism Court because of their inclusion in the Third Schedule.

14. Adverting now to the written submissions of the learned Attorney-General based upon the provisions of subsection (3) of section 6 of the Anti-Terrorism Act, 1997 we may straightaway observe that we have felt nothing but sympathy for the learned Attorney-General because he had to make some effort to make some sense of the said provisions which, with respect, make no sense to us. He has urged that subsections (1), (2) and (3) of section 6 of the said Act are to be read in conjunction. The said provisions 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 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 sector 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 herein contained 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 subsection (1), if it:

(3) The use or threat of any action falling within subsection (2) which involves the use of firearms, explosive or any other weapon is terrorism, whether or not subsection (1) (c) is satisfied.

Reading of subsections (1) and (2) of the said section together makes good sense, i.e. all the actions specified in subsection (2) shall constitute terrorism if they are committed with the 'design' mentioned in clause (b) of subsection (1) or are committed for the 'purpose' referred to in clause (c) of subsection (1) of that section. Subsection (3) of that section, however, provides that "The use or threat of any action falling within subsection (2) which involves the use of firearms, explosive or any other weapon is terrorism, whether or not subsection (1) (c) is satisfied" which means that if for commission of the actions mentioned in subsection (2) a firearm, an explosive substance or any other weapon is actually used or a threat regarding use of the same is extended then all such actions are to constitute the offence of terrorism even if the other requirements of clause (c) of subsection (1) of section 6 are not satisfied or fulfilled. The requirements that need to be satisfied for invoking clause (c) of subsection (1) of section 6 are that the use or threat of action should be for "the purpose of advancing a religious, sectarian or ethnic cause" or for the purpose of "intimidating and terrorizing the public, social sectors, media persons, business community" or for the purpose of "attacking the civilians, including damaging property by ransacking, looting, arson, or by any other means, government officials, installations, security forces or law enforcement agencies". If the said requirements and purposes mentioned in clause (c) of subsection (1) of section 6 do not need to be satisfied and if mere use or threat of use of a firearm, an explosive substance or any other weapon for commission of the actions mentioned in subsection (2) of section 6 is to ipso facto constitute the offence of terrorism then every murder committed (action under clause (a) of subsection (2) of section 6), every grievous bodily injury or harm caused (action under clause (b) of subsection (2) of section 6), every grievous damage to private property (action under clause (c) of subsection of section 6), doing anything that is likely to cause death or endangers a person's life (action under clause (d) of subsection (2) of section 6) or creating a serious risk to safety of the public or a section of the public (action under clause (i) of subsection (2) of section 6) even if committed with an ordinary stick, a brickbat or a stone when used as a weapon would constitute the offence of terrorism! Such trivializing of the diabolical offence of terrorism surely could not be the intention of the legislature when framing a law for the offence of terrorism which is a class apart and a species different from any other ordinary crime. In this context we have found the learned Additional Prosecutor-General, Punjab to be quite justified in maintaining that the provisions of subsection (3) of section 6 of the Anti-Terrorism Act, 1997 are quite problematic as they do not piece well with the remaining provisions of the said section as far as the matter of defining terrorism is concerned. He has also been found by us to be correct in submitting that if the provisions of subsection (3) of section 6 of the Anti-Terrorism Act, 1997, as they are worded, are to be given effect then the distinction between the peculiar offence of terrorism and most of the run of the mill offences committed in the society in routine would be obliterated. In this backdrop his submission that the provisions of subsection (3) of section 6 may be read down in order to save the main Act and its purposes has been found by us to be meriting serious consideration. We may add here that the Anti-Terrorism Act, 1997 was introduced about twenty-two years ago but in all these years, to the best of our knowledge, the provisions of subsection (3) of section 6 of that Act have never before been pressed into service in any reported case in the country. It appears that the Judges and lawyers in the country have found the said provisions to be so confusing and incentive-incompatible that they have kept themselves away from the same so far. It is about time that the legislature may like to have another look at the said provisions and to consider deleting or suitably amending the same so as to bring them in harmony with the remaining provisions of the Act.

15.  The resume of our legislative developments in the field of terrorism shows, as already observed in the case of Basharat Ali (supra), that with different laws and definitions of terrorist act or terrorism the emphasis has been shifting from one criterion to another including the gravity of the act, lethal nature of the weapon used, plurality of culprits, number of victims, impact created by the act and effect of fear and insecurity brought about or likely to be created in the society by the action. The last definition of a 'terrorist act' contained in section 6 of the Anti-Terrorism Act, 1997 squarely focused on the effect of fear and insecurity intended to be created by the act or actually created by the act or the act having the potential of creating such an effect of fear and insecurity in the society. It, however, appears that subsequently the legislature did not feel convinced of the aptness or correctness of that definition and resultantly the erstwhile definition of a 'terrorist act' contained in section 6 of the Anti-Terrorism Act, 1997 was repealed and a totally fresh and new definition of 'terrorism' was introduced through an amended section 6 of the Anti-Terrorism Act, 1997. The legislature had probably realized by then that an effect of an act may not always be a correct indicator of the nature of such an act as every crime, especially of violence against person or property, does create some sense of fear and insecurity in some section of the society and a definition of terrorism based upon the magnitude or potential of an effect created or intended to be created or having a potential of creating would necessarily require a premature, speculative and imaginary quantification of the effect so as to determine the nature of the act in order to decide about the jurisdiction of a criminal court to try such an act. That surely was an unsure test and the result of such a premature, speculative and presumptive test could vary from court to court and from Judge to Judge reminding a legal scholar of the Star Chamber and the early days of a Court of Equity in England where equity was said to vary with the size of the Chancellor's foot. The new definition of 'terrorism' introduced through the amended section 6 of the Anti-Terrorism Act, 1997 as it stands today appears to be closer to the universally understood concept of terrorism besides being easier to understand and apply. The earlier emphasis on the speculative effect of the act has now given way to a clearly defined mens rea and actus reus. The amended clause (b) of subsection (1) of section 6 now specifies the 'design' and clause (c) of subsection (1) of section 6 earmarks the 'purpose' which should be the motivation for the act and the actus reus has been clearly mentioned in subsection (2) of section 6 and now it is only when the actus reus specified in subsection (2) of section 6 is accompanied by the requisite mens rea provided for in clause (b) or clause (c) of subsection (1) of section 6 that an action can be termed as 'terrorism'. Thus, it is no longer the fear or insecurity actually created or intended to be created or likely to be created which would determine whether the action qualifies to be termed as terrorism or not but it is now the intent and motivation behind the action which would be determinative of the issue irrespective of the fact whether any fear and insecurity was actually created or not. After this amendment in section 6 an action can now be termed as terrorism if the use or threat of that action is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect, etc. or if such action is designed to create a sense of fear or insecurity in the society or the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause, etc. Now creating fear or insecurity in the society is not by itself terrorism unless the motive itself is to create fear or insecurity in the society and not when fear or insecurity is just a byproduct, a fall out or an unintended consequence of a private crime. In the last definition the focus was on the action and its result whereas in the present definition the emphasis appears to be on the motivation and objective and not on the result. Through this amendment the legislature seems to have finally appreciated that mere shock, horror, dread or disgust created or likely to be created in the society does not transform a private crime into terrorism but terrorism as an 'ism' is a totally different concept which denotes commission of a crime with the design or purpose of destabilizing the government, disturbing the society or hurting a section of the society with a view to achieve objectives which are essentially political, ideological or religious. This approach also appears to be in harmony with the emerging international perspective and perception about terrorism. The international perception is also becoming clearer on the point that a violent activity against civilians that has no political, ideological or religious aims is just an act of criminal delinquency, a felony, or simply an act of insanity unrelated to terrorism. This metamorphosis in the anti-terrorism law in our country has brought about a sea change in the whole concept as we have understood it in the past and it is, therefore, of paramount importance for all concerned to understand this conceptual modification and transformation in its true perspective.

11. We after taking guidance from the aforesaid decision of the Honourable Supreme Court and perusing facts of the case are of firm view that the allegations against the appellant of having committed murder of his alleged eloped sister with her paramour who later on became her husband in the Court room by using fire arm which offence according to prosecution case attracts the definition of terrorism and comes under the ambit of Section 6/7 ATA, 1997; however, rest of the offences are 302, 324, 34 PPC are compoundable. The offence of murder in the Court room was not an outcome of a design to achieve any of the objectives specified in clause (b) of subsection (1) of Section 6 of ATA, 1997 nor the same appear to be aimed at achieving any of the purposes mentioned in clause (c) of subsection 91) of Section 6 of ATA, 1997 to justify invoking jurisdiction of Anti-Terrorism Court but it was out of personal vendetta that this unfortunate incident had taken place in the Court room where a woman was killed by her brother. We agree that the incident of killing of his own sister was there but this crime at the most will come under the definition of 302 PPC.

12. In the light of above dictum coupled with the facts the main victim of crime, namely Zulfiqar the husband of the deceased as well her parent-in-laws by forgiving the appellant and entering into compromise and, the application of provisions of Section 6&7 of ATA are attracted hence of not much consequences. Consequently, instant Crl. Jail appeal is hereby allowed. Resultantly, the impugned judgment dated 22.01.2014 is hereby set-aside and the appellant Javed Iqbal son of Muhammad Iqbal Shaikh is hereby acquitted of the charges. The appellant is in custody; however, he shall be released forthwith if his custody is no longer required by the jail authorities in any other criminal custody case.

The appeal stands allowed and is disposed of alongwith listed applications.

J U D G E

J U D G E

Ihsan.