IN THE HIGH COURT OF
SINDH, BENCH AT SUKKUR
Cr. Tr. A No: D-35/2009
Present:-
Mr. Muhammad Ather Saeed
&
Mr. Munib Akhtar,
J.J.
Date of hearing:
Sheral: Applicant.
Versus
Sajan alias
Sajoo and others: Respondents.
Mr. A.R Faruq
Pirzada for applicant in Cr.Tr.35/09.
Mr. Zulfiqar Ali
Sangi for applicant in Cr.MA-44/09
Mr. Qurban Ali
Malano for respondents.
Mr. Zulfiqar Ali
Jatoi, Deputy Prosecutor General.
J U D G M E N T
Muhammad
Ather Saeed, J ---
This Criminal Transfer Application has been filed for transfer of the Case No.
222/2007 State versus Sajjan Ali alias Sajoo and others, Crime No. 155/2007 for
offences under Section 302, 324, 337-H-2, 452, 147, 148, 149, PPC pending in
the Court of 1st Additional Sessions Judge, Ghotki to the Court of
Anti-Terrorism, Sukkur.
2. Brief
facts of the Case are that the Applicant in this Case had got an FIR registered
being FIR No. 155/2007 in P.S: Ghotki, District Ghotki on
3. We
have heard Mr. A.R Faruq Pirzada and Mr. Zulfiqar Ali Sangi, the learned
Counsel for the Applicant/Complainant, Mr. Qurban Ali Malano, the learned
Counsel for the Respondents and Mr. Zulfiqar Ali Jatoi, the learned DPG for the
State.
4. The main contention of the learned
counsel for the applicant is that the offence for which the above F.I.R has
been filed is a heinous offence and falls under the definition of scheduled
offences which can only be tried under Section 12 of the Anti-Terrorism Act,
1997 by the Anti-Terrorism Court. The learned counsel took us through the
preamble of the Anti-Terrorism Act, 1997 to point out that the Act was
legislated to provide for the prevention of terrorism, violence and for speedy
trials of heinous offences. He then took us through the various provisions of
section 6 of this Act including section 6 (1) (b) and sections 6 (2) (a), (2)
(b), and (2) (d) to point out that the alleged crime and the offences fell
under this section and are therefore covered by the definition of scheduled
offences and have to be tried by the Anti-Terrorism Court. In support of his
contention, he has relied upon the following cases:
(1) Muhammad Latif v. State,
(PLD 2008 SC 503),
(2) Shaukat Baig v. Shahid Jamil,
(PLD 2005 SC 530),
(3) State v. Muhammad Shafiq,
(PLD 2003 SC 224),
(4) Najam-un-Nisa v. Judge, Special Court,
(2003 SCMR 1323)
(5) Muhammad Mushtaq v. Muhammad Ashiq
(PLD 2002 SC 841).
5. His main reliance was on the
judgment of Hon'ble Supreme Court in the case of Mirza Shaukat Baig quoted
supra wherein the Hon'ble Supreme Court has held that mens rea has been
excluded for the purposes of section 6 of Anti-Terrorism Act, 1997 and even if
it cannot be proved that the alleged act was committed with the predetermined
mind to spread terror among the public at large or a community in general then
also the said act can be said to be an act of terrorism and will fall under the
provisions of the Anti-Terrorism Act, 1997 and will have to be tried by the
Anti-Terrorism Court.
6. The learned counsel for the applicant
further submitted that for an offence to fall within section 6 of the ATA,
there are two requirements; 1, that the offence should be heinous; 2, that the
offence should have the impact of creating terror in the minds of the general
public. In this connection he relied upon a judgment of a DB of this court in
the case of Muzamil v. State (2010 P.Cr.L.J 98) wherein this Court had
dismissed the application filed by the applicant for transfer of his case from
ATC to Sessions Court holding that the act of the accused in slaughtering two
children and murdering three other persons was an act of terror which had
created sense of terror and insecurity in the minds of the general public and
therefore, fell within the ambit of section 6 (1) (b) read with subsection (2)
of Section 6. The learned counsel then stressed that the judgment of a DB is
binding on this DB and therefore, this DB has only two options: to follow the
judgment or if this DB does not find itself in agreement with that judgment, to
refer the matter to Hon’ble Chief Justice for the constitution of a larger
bench. He quoted a number of cases on this point but we are not recording the
same as we are aware that it is a settled proposition that a judgment of the DB
of this Court is binding on another DB. The learned counsel submitted that all
these judgments are of three-member Bench and relied on a judgment in the case
of Jawad Mir Muhammadi v. Haroon Mirza (PLD 2007 SC 472) where the Hon'ble
Supreme Court has laid down the procedure for reconciliation of two conflicting
judgment of the Court given by the judges of equal strength. The learned
counsel also argued on the fact that if the offence is heinous it has to be
tried by the Anti-Terrorism Court and in this connection relied upon the
judgments in the case of State v. Abdul Malik (PLD 2000 Lahore 449) and Naeem Akhtar v. State (PLJ 2003 SC 147).
Mr.Pirzada also referred to the judgment of Hon'ble Supreme Court in the case
of Bashir Ahmed v. Muhammad Siddique (PLD 2009 SC 11) which has been relied
upon by the learned counsel for the respondents and submitted that in that case
the court favourably considered the judgment of Lahore High Court in the case
of Basharat Ali v. Special Judge, ATC Gujranwala (PLD 2004 Lahore 199). He
submitted that the
7. Adding to the arguments of
Mr.Pirzada, Mr.Sangi, the other learned counsel for the complainant/applicant
submitted that one of the injured persons has had his arm maimed by the firing
which took place at the time of alleged incident and relied upon the definition
of “grievous” given in clause (j) of section 2 of the Anti-Terrorism Act, 1997
to argue that even if this injury was the only injury committed in the incident
then also it is enough to bring the crime within the ambit of Anti-Terrorism
Act, 1997.
8. He relied upon the
provisions of section 6 (2) (e) which deals with kidnapping for ransom and
submitted that kidnapping for ransom is a scheduled offence under the
provisions of Anti-Terrorism Act, 1997 although kidnapping does not create a
sense of terror and insecurity. He then relied upon section 6 (2) (b) which
involves grievous violence against a person or grievous bodily injury or harm
to a person. He then took us to the definition of the word “grievous” given in
subsection (j) of Section 2 of the ATA and submitted that this definition
includes disfigurement and one of the victims of this offence has lost the use
of his right hand and has become permanently handicapped.
9. Mr. Qurban Ali Malano,
learned counsel for the respondents strongly opposed the arguments of the
learned Counsel for the Applicant. His first contention was that according to
the F.I.R, the incident had taken place in a forest which is not in the
vicinity of any township or village and it had taken place due to the previous
enmity and therefore, did not fall within the provisions of Section 6 of the
Anti-Terrorism Act, 1997. He relied upon a judgment of the Hon'ble Supreme
Court in the case of Mohabat Ali v. State (2007 SCMR 142) wherein it was
specifically held that under the above circumstances the act will not
constitute an act of terror falling within the ambit of section 6 of
Anti-Terrorism Act, 1997.
10. The
learned counsel for the respondents while making further submissions once again
reiterated his argument that no sense of terror or insecurity was created as
the offence took place on the basis of enmity as according to him the present
applicants had initially murdered some relatives of the accused persons and had
gone into hiding in a forest and the offence had taken place in the forest and
was not publicized by the media also and therefore, does not fall within the
ambit of section 6 and 7 of the ATA. He heavily relied upon the Judgment of the
Honourable Supreme Court in the case of Bashir v. State, reported in PLD 2009
SC 11, wherein the Hon'ble Supreme Court had in identical circumstances refused
to transfer the case to
11. Mr.Zulfiqar
Ali Jatoi, Deputy Prosecutor General appearing on behalf of State adopted the
arguments of Mr.A.R.Faruq Pirzada and Mr.Zulfiqar Ali Sangi, learned counsel
for the applicant.
12. We
have examined the case in the light of the arguments of the learned Counsel and
have carefully perused the records of the case and the Judgments relied on by
the learned Counsel.
13. As
rightly observed by the Honourable Apex Court in its Judgment in the case of
Bashir Ahmed quoted supra, relied on by the learned Counsel for the
Respondents, the first thing which has to be done to determine as to whether an
offence would fall within the ambit of Section 6 of the Anti-Terrorism Act,
1997, is to have a glance over the allegations made in the FIR, records of the
case and surrounding circumstances. Before we reproduce the FIR which is the
subject matter of this case, we would like to recollect the facts on the basis
of which Mr. Qurban Ali Malano, the learned Counsel for the Respondents, has
argued that the case does not fall within the ambit of Section of the
Anti-Terrorism Act, 1997 as it has not had the effect of creating a sense of
terror and insecurity in the minds of
public at large. This statement has been made by the learned Counsel by stating
that the house in which the incident occurred and where the 05 murders took
place is situated in a jungle, miles away from the nearest inhabited locality
and was publicized neither in the Television Media nor in Broadcast Media or in
Press Media, and therefore, since the incident was not publicized, therefore,
it could not have the effect of creating terror and insecurity in the minds of
the general public.
14. In
the light of this factual position narrated by the learned Counsel for the
Respondents, we consider it convenient to reproduce the FIR No. 155/2007 of
P.S: Ghotki which is the subject matter of this case:-
“The
complaint of complainant is that is there is dispute with Sajan @ Sajo Suhriani
with Muhamadani tribe on the matter of Karap and Abdul Sattar @ Sataroo Muhammadani
and other also accompanied with them.
Namely Nawab
S/O Abdul Majeed aged about 20 years, Bahram S/O Gul Hassan aged about 22
years, Shahnawaz S/O Gul Hassan aged about 15 years are sons of my cousin and
Mst. Gul Khatoon aged about 70 years is my aunt, Mst. Beebul wife of Gul Hassan
Muhammadani aged about 40 years is wife of my cousin and girl Jeejal D/O Abdul
Majeed aged 6 years is daughter of my cousin, Mst. Daria Khatoon W/O Noor Beg
aged about 19 years is my cousin and Haji Ghulam Nabi S/O Foj Ali and Shah Ali
S/O Dur Mohammad are my cousins, we all are residing jointly in one house. Last
night we woke up the barking of dogs and on the light of torch saw accused (1)
Sajan @ Sajo S/O Sher, (2) Abdul Khalique S/O HYamzo, (3) Ibrahim, (4)
Mushtaque, both sons of Shah Dost, (5) Gul Bahar S/O Abdul Rehman, (6) Nooro
S/O Amanullah, (7) Wahid S/O Raza Mohammad, (8) Abdul Ghani S/O Ghulam Nabi,
(9) Guji S/O Ghulam Rasoo, (10) Bashir S/O Noor Mohammad, (11) Raja S/O Ghulam
Nabi, all by caste Suhriani, R/O village Abdul Khalique Suhriani Taluka
Kandhkot, District Kashmore, (12) Abdul Sattar @ Sataroo, S/O Lal Mohammad,
(13) Ali Hassan, (14) Gul Hassan, both sons of Peer Jan by caste Muhammadani,
R/O near Burdi, Taluka Kandhkot and 4 unidentified, all armed with K.Ks entered
in the house, out of them Sajan @ Sajoo challenged that they would not spare
you and kill, you, saying so all accused straight fired upon us, fires made by
Sajoo hit Nawab, fires made by Mushtaque hit Mst. Gul Khatoon, fire made by Gul
Bahar hit Mst. Beebul, fires made by Gujar, Bashir, Raja and Abdul Sattar @
Sataroo hit Shahnawaz and fires of Ali Hassan hit Daria Khatoon, who raised
cries and fell down, accused Gul Hassan and unidentified jaccused fired upon
me, (2) Haji Ghulam Nabi and (3) Shah Ali, but we fortunately remained unhurt,
then all accused went away while firing in the air. We found injuries on the
persons of Nawab on his upper portion of leg, right arm and leg, Mst. Gul
Khatoon sustained firs on chest, Mst. Beebul sustained fire on shoulder, blood
was oozing from their injuries and were expired and Jeejal received fires on
palm of her, left hand, upper portion of left leg, and right foot and to
Shahnawaz on right hand, under left shoulders, left hand and left foot and Mst.
Daria Khatoon on upper portion of right leg, blood was oozing from their
injuries and they were injured. I with the help of Haji Ghulam Nabi, Shah Ali
and other villagers took dead bodies and injured to Taluka Hospital Ghotki,
where girl Jeejal expired due to her injuries. I left the P.Ws there and went
to Police Station and now complained that the above accused with their common
object having deadly weapons forcibly entered jinto the house and made straight
fires from K.Ks with intention to commit murder and had murdered Nawab,
Shahnawaz, Mst. Gul Khatoon, Mst. Beebul and girl Jeejal and also injured
Shahnawaz and Mst. Daria Khatoon and went away by making aerial firing, I am
complainant just be done.”
15. From
a perusal of the above FIR, it is evident that personal enmity was existing
between the accused party and the complainant party and allegedly the accused
party armed with sophisticated and unsophisticated weapons attacked the house
of the complainant and his family and immediately resorted to firing left,
right and center which resulted in death of 05 members of the complainant’s
family and badly injured one teenaged boy and a minor girl and also maimed the teenaged
boy badly.
16. In
the light of above perusal of the FIR and the facts of the case, we will now
examine the Judgments relied on by the learned Counsel. We will first take up
the Judgments relied on by the learned Counsel for the Applicant.
17. The
main Judgment which has been relied on by the learned Counsel for the Applicant
is the Judgment of the Honourable Supreme Court in the case of Mirza Shoukat
Baig quoted supra. In this case a Bench comprising of three Judges while
hearing Petitions for leave to Appeal against two Judgments of the learned
Lahore High Court allowed the Appeals and set aside the impugned Judgments
passed by the learned Lahore High Court, whereby the learned Lahore High Court
had held in a case which involved decoity in open bazaar coupled with 04
murders not to be offences falling within the schedule of offences under the
Anti-Terrorism Act, 1997 and had held that the Anti-Terrorism Court had no
jurisdiction and the jurisdiction lay with the Sessions Court. The Honourable
Apex Court after exhaustively examining its earlier Judgments on this point
came to the conclusion that the offences mentioned in the Appeal which have
been stated above fall within the jurisdiction domain of the
18. The
second Judgment of the Honourable Supreme Court relied on by the learned
counsel is in the case of Mohammad Shafique quoted supra, wherein a Bench of
the Honourable Supreme Court comprising of three Judges held as under:-
“S. 6--- “Terrorist
Act”---Connotation---Commission of act must not have necessarily created panic
and terror among the people---Courts have only to see whether the terrorist act
was such which would have the tendency to create sense of fear or insecurity in
the minds of the people or any section of society and its psychological impact
on their minds---Such act also must not have necessarily taken place within the
view of general public---Act having taken place in a barbaric and gruesome
manner which has created fear and insecurity certainly falls within the purview
of the Anti-Terrorism Act.”
19. The
third Judgment relied on by the learned Counsel for the Applicant was the
Judgment in the case of Najm-un-Nisa. In
this case, the
“The venue of the commission
of a crime; the time of occurrence, the motive which had led to the commission
of a crime and the fact whether the said crime had or had not been witnessed by
the public at large are not the only factors determining the issue whether a
case did or did not fall within the parameters of the ATA of 1997. The crucial
question is whether the said crime had or had not the effect of striking terror
or creating a sense of fear and insecurity in the people or any section of the
people. Needless to mention here that a crime of the kind in hand committed
even in a remote corner does not remain unnoticed in the area in which is
committed or even in the country on account of the print and electronic media.
Seven persons being butchered in a house at night is not the kind of occurrence
which would not create terror and horror in the people or any section of the
people.”
20. The
fourth case viz. Mohammad Mushtaque quoted supra, in which the Honourable
Supreme Court has held as under:-
“In the present case, we,
prima facie, find that the occurrence took place during the peak hours of the
day on the busy Court Road near the District Courts,
21. Another
Judgment on which reliance was placed by the learned Counsel for the Applicant
is the Judgment of the Honourable Supreme Court in the Case of Mohammad Latif,
quoted supra. In this case the Honourable Supreme Court had upheld the Judgment
of the learned Lahore High Court confirming the penalty of death pronounced by
the Judge,
“To deprive a soul from his berth is the
most sinful act;
to take the life of a human being is the
most reprehensible, satanic act;
as the death of one human is the death of
whole of the Humanity;
the life of human being is a precious
gift of Almighty Allah. The Creator of Universe;
no one can be allowed to snatch it away
through his vicious act.”
22. Mr.
Qurban Ali Malano, the learned Counsel for the Respondents had relied on a
couple of Judgments of the Honourable Supreme Court and the Judgment of the
Full Bench of the Lahore High Court in the case of Basharat Ali, quoted supra.
The main case relied on by the learned Counsel which he stated was the latest
Judgment of the Honourable Supreme Court on this point is the case of Bashir
Ahmed versus Mohammad Saddique, quoted supra, which is also a Judgment of three
Judges. In this case an application was made for the transfer of the case to
the Court of Ordinary Jurisdiction which was dismissed and then against such
dismissal a writ Petition was filed before a D.B of learned Lahore High Court
which was accepted by the learned Lahore High Court and the case was
transferred to the Sessions Court and the Appeal against the order of the
learned Lahore High Court was dismissed. The facts of this case as narrated in this
Judgment are detailed below:-
“The facts which we have been
able to gather from the record of the case are, that on the day of occurrence
i.e. 30-8-2006 at about 1.00 p.m. complainant Bashir Ahmed, Ameer Ali alias
Bhutto his brother and others, were on the way in motorcars from Sharaqpur
Sharif to village ‘Fatoowala’. When they reached near the haveili of Naseem
alias Mithoo, all of sudden respondents Mohammad Siddique, Mohammad Yaqoob,
Mohammad Khalid Mahmood and Mohammad Idrees and others, duly armed, emerged
from the said ‘haveili’ and started firing at the complainant party, as a
result of which, four persons namely Ameer Ali alias Bhutto, Jamil Ahmed,
Mohammad Ashraf and Mushtaq Ahmed lost their lives and Mohammad Arfakhshand
sustained serious injuries. After accomplishing the mission, respondents made
good their escape, while making aerial firing, creating terror, insecurity and
traumatic effect in the locality. The motive leading to the incident was stated
to be blood fed enmity between the parties.”
23.
In this Judgment the
Honourable Supreme Court has held as under:-
“After having gone through
the entire law as enunciated by this Court in different cases the judicial
consensus seems to be that striking off terror is sine qua non for the
application of the provisions as contained in section 6 of the Act which cannot
be determined without examining the nature, gravity and heinousness of the
alleged offence, contents of FIR, its cumulative effect on the society or a
group of persons and the evidence which has come on record. There could be no
second opinion that where the action of an accused results in striking terror
or creating fear, panic, sensation, helplessness and sense of insecurity among
the people in a particular vicinity it amounts to terror and such an action
squarely falls within the ambit of section 6 of the Act and shall be triable by
a Special Court constituted for such purpose but in the instant case position
is all together different. Learned
24. The
learned Counsel had also relied on a Judgment in the case of Mohabat Ali quoted
supra. In this case the offence took place in the field of Sugarcane and Banana
about 14/15 miles away from the main road and the Honourable Supreme Court held
as under:-
“In order to determine as to
whether an offence would fall within the ambit of section 6 of the Act, it
would be essential to have a glance over the allegations made in the FIR,
record of the case and surrounding circumstances. It is also necessary to
examine that the ingredients of alleged offence has any nexus with the object
of the case as contemplated under sections 6, 7 and 8 thereof. Whether a
particular act is an act of terrorism or not, the motivation, object, design or
purpose behind the said Act is to be seen. It is also to be seen as to whether
the said Act has created a sense of fear and insecurity in the public or any
section of the public or community or in any sect. Examining the case in hand
on the above touchstone, it is manifest on the face of it that the alleged
offence took place because of previous enmity and private vendetta. The
incident admittedly took place inside the fields of sugarcane and banana
cultivated in jungle about 14/15 miles away from the main road. Motive as
defined in the FIR is also to be given a specific attention which indicates
that there was a personal enmity between the parties over the land and murder
case of Haries of complainant.”
25. A perusal of the above
extracts of the Judgments jrelied on by the learned Counsel reveals that the
majority of the Judgments of the Honourable Apex Court support the stand taken
by the learned Counsel for the Applicant that the crime allegedly committed by
the Respondents in an heinous one and is deadly enough to create a sense of
insecurity and panic in the minds of all sections of general public and terrorize
the minds of all the persons who learn about it.
26.
Out of the three
Judgments which have been relied on by the learned Counsel for the Respondents,
one is the Judgment in the case of Basharat Ali quoted supra which is the
Judgment of the learned Lahore High Court which has been set aside by the
Honourable Apex Court vide its Judgment in the case of Shoukat Baig quoted
supra. The second Judgment that is the Judgment in the case of Mohbat Ali
quoted supra, is a Judgment of a two member Bench, and therefore, it will not
prevail over Judgments of three member Benches. Although the third Judgment
that is the Judgment in the case of Bashir Ahmed quoted supra, is a Judgment of
a three member Bench but in this Judgment reliance has been placed on the
Judgment in the case of Basharat Ali quoted supra without realizing that the
above Judgment has been set aside by the Honourable Apex Court, as mentioned
above and no longer held the field. Although the facts of this case are
somewhat similar to the facts of the case in hand, but far the above reason, it
will not prevail over the other three member Bench Judgments of the Honourable
Apex Court.
27. On
a perusal of the Judgments of the Honourable Apex Court in the case of Mohammad
Shafique versus Najm-un-Nisa, quoted supra, we are of the opinion that the
facts of these cases are somewhat similar to the facts of this case, and the
specification of ingredients of an offence which will fall within the ambit of
section 6 of the Anti-Terrorism Act, 1997 given in the Judgment of the
Honourable Apex Court in the case of Shoukat Baig quoted supra, applies
squarely to the offence in this case.
28. The
gist of the above discussion is that respectfully following the above Judgments
of the Honourable Apex Court, we are of the considered opinion that the offence
in the above cases falls within the ambit of Sections 6 and 7 of the
Anti-Terrorism Act, 1997, and therefore, the right forum to adjudicate the
above offence is the Anti-Terrorism Court and not the Sessions Court.
29. We,
therefore, allow this Criminal Transfer Application and direct the Sessions
Judge, Ghotki to immediately transfer the case to
30. This
Criminal Transfer Application is disposed of in the above manner.
Judge
Judge
Rashid