IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Misc. Application No. 979
of 2023
|
DATE |
ORDER
WITH SIGNATURE OF JUDGE. |
Present: Mr. Justice Naimatullah Phulpoto
Mr. Justice Khadim Hussain Tunio
16.01.2024
Mr.
Raj Ali Wahid advocate for the applicant
Mr.
Khadim Hussain Addl. P.G
Mr.
Hyder Farooq Jatoi advocate for the respondent/complainant
-.-.-.-.-.-.-.-
Naimatullah Phulpoto, J.- Through
this Criminal Misc. Application, applicant/accused Muhammad Zohaib Shafi has
called in question order dated 27.11.2023, passed by Anti-Terrorism Court No.II
Karachi on an application under Section 23 of ATA 1997 filed in Special Case
No. 422/2023, whereby application for transfer of the case to the court of
ordinary jurisdiction moved on behalf of the applicant/accused was dismissed.
2. Brief facts leading to the filing of
this application are that complainant Fahadul Islam lodged FIR bearing Crime
No. 570/2023 for offences under Sections 384/385/420/170/171 PPC read with
Section 7 of ATA 1997 at P.S Preedy, wherein it was alleged that complainant
contracted marriage with Mst. Mariyam in the year 2011, out of such wedlock he
has two sons. It is alleged that in January 2022, he was in Turkey, when his
parents informed him that they saw accused Muhammad Zuhaib with his wife in
objectionable condition. On such information, complainant came to Pakistan,
divorced his wife and obtained such Divorce Deed from concerned Union council. However,
it is alleged that accused Zuhaib while impersonating/claiming himself an
officer of Navy, got Divorce Deed cancelled from Union Council. On return of
the complainant from Turkey, accused threatened the complainant and extorted
Rs.10 lacs from him, which were paid to him by the complainant in presence of P.Ws
Chakar Khan and Zubair, but again accused demanded bhatta from the complainant,
hence complainant lodged the aforesaid FIR. After usual investigation, challan
was submitted against accused under Sections 384/385/420/170/171 PPC read with
Section 7 of ATA 1997.
3. Mr. Raj Ali Wahid learned advocate for
the applicant/accused argued that it is the case of family dispute, no incident
had occurred; that offences contained in the schedule to the Anti-Terrorism Act
1997 would fall within the definition of terrorism and terrorist activities but
the crimes committed due to private revenge/family dispute cannot be dragged
into the fold of terrorism and terrorist activities. In support of his
submissions, he relied upon the case of Ghulam Hussain and others vs. The State and others (PLD 2020 S.C 61).
4. Addl. P.G argued that from the contents
of FIR, it is clear that incident was result of family dispute and element of
terrorism is missing in the case. Addl. P.G did not support the impugned order
and frankly conceded that learned Judge, ATC has no jurisdiction to try this
case.
5. However, learned advocate for the
complainant argued that applicant/accused by putting the complainant in fear of
injury committed extortion of One Million Rupees. Lastly, argued that learned
trial court has rightly dismissed an application under Section 23 of ATA 1997 while
holding that this case is triable under the provisions of Anti-Terrorism Act
1997.
6. In order to appreciate the contentions
of learned counsel for the parties, we have perused the impugned order. Relevant
portion of the impugned order dated 27.11.2023 is produced as under:
“It is to be noted
that present applicant/accused Zohaib Shafi is clearly nominated in FIR with
specific role. Demand and receiving ransom amount in presence of witnesses is
clearly mentioned in same FIR. As per allegations, the accused Zohaib by
showing himself as Navy Officer threatened the officials of UC-27 Ratan Tallao,
District South, Karachi, and forced them to cancel the divorce deed, which was
earlier issued to the Complainant. Perusal of police papers reveals that one
Service Card of Navy in the name of applicant/accused was recovered from him at
the time of his arrest. Admittedly, accused Zohaib is not a Navy Officer, as he
claimed himself a businessman. Moreover, the Secretary of Union Council-27,
Ratan Tallao, District South, Karachi sent letter dated 16.06.2023 to the
Additional Director, Local Government, Sindh about an incident occurred on
15.06.2023, when Zohaib Shafi and the father in law of Fahad ul Islam came to
his office and not only extended threats but also forced the officials of same
Union Council to temper the divorce certificate…………”
7. After close scrutiny of the impugned
order and facts of the case, we have come to the conclusion that there was
family dispute in between complainant Fahad-ul-Islam and accused over the
matter of Mst. Maryam. FIR was registered under Sections 384/385/420/170/171
PPC read with Section 7 of ATA 1997. However, in view of specific personal motive/family
dispute set up by the prosecution, it is not the case to be tried under the
provisions of Anti-Terrorism Act 1997. In the case of terrorism “mens rea” was essentially the object to
carry out terrorist activities to overawe the State, the State institutions,
the public at large, destruction of public and private properties, assault on
the law enforcing agencies or the public at large. 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.
Reliance is placed upon the case of Ghulam Hussain and others vs.
The State and others (PLD 2020 S.C 61).
8. For the above stated reasons, we hold
that learned Judge, Anti-Terrorism Court has no jurisdiction to try this case.
Impugned order suffers from illegality and the same is set aside. Resultantly, instant
Crl. Misc. Application is allowed and the case is transferred from learned
Judge, Anti-Terrorism Court concerned to the Court of ordinary jurisdiction for
expeditious disposal in accordance with law.
JUDGE
JUDGE
Wasim
ps