IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

 

Criminal Revision Application No. D- 04 of 2011.

 

Present:

Mr. Justice Syed Hassan Azhar Rizvi.

                                      Mr. Justice Salahuddin Panhwar.

           

Eidal Khan Metlo.                             .…..Applicant/complainant.

 

Versus

 

The State.                                                   …………Respondent.

         

          Mr. Athar Abbas Solangi, Advocate for applicant.

          Mr. Sarfraz Khan Jatoi, Advocate for respondent No.1.

          Mr. Muhammad Yaqoub Dahani, State counsel.

 

Date of hearing:   09.08.2012.

Date of Order:      09.08.2012.

 

O R D E R

 

Salahuddin Panhwar, J:         The present criminal revision application is directed against the order dated 03.12.2010, passed by Anti Terrorism Court, Larkana in special case no. 34 of 2010 (Re-The state versus Imam Ali alias Balli and others), whereby the learned judge allowed the application under section 23 of Anti Terrorism Act, filed by accused, and transferred the special case to the court of sessions judge.

 

2.       For proper appraisal of issue relating to jurisdiction of Anti Terrorism Court, it will be important to reproduce F I R being a root document of prosecution which is under.

 

                   “It is complained on behalf of the State that, we namely, P.C Habibullah, PC Zamir Hussain Channa, PC Shahzado, PC Mehmood Ali were posted at Police picket Syed Bachal Shah at Dadu Canal Bridge by Police station Bakrani for 24 hours. On 11.07.2010 we were present on duty, meanwhile at 7.00 p.m. eight persons armed with weapons emerged from the garden. We saw and identified them to be Wazir, having kalashnikov in his hand, 2. Imam Ali alias Balli, armed with gun, 3. Ismail armed with Rifle 4.Manthar, armed with gun 5. Azam, armed with repeater 6. Doulat, having gun, while other accused were unidentified who were seen by us and we can identify them if see them again. We introduced ourselves as police and asked them to stop. They made straight fire upon us with intention to commit our murder. We at-once took position and fired in our defence upon accused persons and proceeded ahead. Meanwhile, accused Wazir fired with his kalashnikov upon PC Shahzado which hit him and he fell down while raising cry. The firing continued for fifteen minutes and stopped from accused side. We went ahead and saw that while running the kalashnikov of accused Wazir had fallen down and he ran away towards garden. After him accused Ismail also ran towards garden and his rifle was also fallen down, while accused Wazir and Ismail ran away towards guava garden. Rest of accused ran away towards garden while making aerial firing. Thereafter, we took the weapons, left by the accused and then saw that PC Shahzado had sustained one firearm injury over the navel at abdomen and he was bleeding and succumbed to injuries within our sight. We conveyed such information to our high ups and sent the dead body of P.C Shahzado to civil hospital, Larkana. Then with the help of police of P.S Bakrani and other police stations we traced the foot prints of accused, which ended at protective bund (bank). For whole the night we traced the foot prints and then brought the weapons fallen down from the accused and report the matter that above accused having deadly weapons conspired with each other, deterred in lawful duty of police and with intention to commit murder made firing. The accused Wazir Jatoi fired with his kalashnikov and murdered PC Shahzado. I have fired 25 bullets from my official SMG, while other staff will give the details of bullets fired by them.”

 

3.       The record reveals that after registration of F.I.R, the police arrested accused Imam Ali alias Balli, Wazir, Ismail, Manthar, Azam, Doulat and Nusrat and recovered one kalashnikov, one rifle and one gun from the accused .On 20.9.2010, the case was challaned before Anti Terrorism Court, Larkana. Accused persons filed application under Section 23 of Anti Terrorism Court Act, 1997, questioning the jurisdiction of Anti Terrorism Court. After hearing the parties, the Special Judge, Anti Terrorism Court, Larkana allowed the application while returning the special case in question to ordinary Court by observing that “the complainant as well as eyewitnesses have not stated in their statements and F.I.R about firing in order to create harassment, fear, terror and insecurity in the minds of General Public.”

 

4.       Counsel for the applicant has inter-alia, contended that this is a fit case falling within definition of Section 6 of the Anti Terrorism Act, 1997; that accused persons, armed with deadly weapons attacked upon police-picket and caused murder of a police constable Shahzado; there is no allegation that complainant and accused have any private vendetta; that place of incident is police picket Syed Bachal Shah at Dadu Canal Bridge, which is the way of passing of peoples; police picket was established there to save the people from bandits; this is case of fear and terrorism as police officials while performing their duties were being attacked by the culprits, therefore, this case falls within sub section (m) and(n) of Section 6 of the Anti Terrorism Act, 1997.  In support of his arguments, learned counsel relied upon case of Nooruddin v. Nazir Ahmed (2011 P.Cr.L.J 1370),

 

5.       Conversely, counsel for the accused party has argued that the offence had happened in a far-flung area, therefore, question of sense of insecurity did not arise; that this case pertains to Section 353 i.e. purely triable by ordinary Court; that in statements under Section 161 Cr.P.C of the witnesses nothing is stated that because of this act sense of fear or insecurity was developed.

 

6.       Learned State counsel also supported the contention of accused counsel and defended the impugned order. 

 

7.       We have heard counsel for the parties, perused the entire record, and have also gone through the case law.

 

8.       Issue involved in this revision is jurisdiction of Special court and application of section (s) 6 & 7 of the Act.

 

9.       According to prosecution case accused persons armed with deadly weapons made criminal assault on police picket Syed Bachal Shah at Dadu Canal Bridge, caused murder of constable Shahzadu, thereby committed offence of terrorism triable by Anti Terrorism court. Under these circumstances, question  to be decided in this criminal revision  is that whether in view of the circumstances and facts mentioned supra-, the acts of the accused persons constitute an offence falling within the scope of terrorism as envisaged under section 6 of anti terrorism act  1997 or otherwise.

 

10.     To elaborate the issue, involved in the matter it is incumbent to examine the authoritative proposition of law laid down by Honourable Supreme Court in various cases, in case of Mirza Shoukat Baig and others versus Shahid Jamil and others reported in PLD 2005 SC 530, it is observed as under:--

 

“The language as employed in the section is unambiguous,  plain ,and simple which hardly requires any scholarly interpretation and is capable enough to meet all kinds of terrorism . it is an exhaustive section and does not revolve around the word “designed to” as used in section 6(1),(b) of the act or mens rea but the key word , in our opinion is  “action” on the basis whereof it can be adjudged as to whether the alleged offense falls within the scope of section 6 of the act or otherwise.? The significance and the import of word “action” cannot be minimized and requires interpretation  in a broader prospective which aspect of the matter has been ignored by the High court and the scholarly interpretation as made in the judgment impugned has no nexus with the provisions as  contained in section 6 of the Act, the ground realities , objects and reasons, the dictums laid down by this court and is also not  in consonance with the well- entrenched principles of interpretation of criminal statutes”.

 

11.     In case of Nazeer Ahmed and others versus Noorudin and others reported in 2012 SCMR 517, it is held as under:--

 

“Neither the motive nor intent for commission of the offence is relevant for the purpose of conferring jurisdiction on the Anti Terrorism Court. It is the act which is designed to create sense of insecurity or to destabilize public at large, which attracts the provision of section 6 of Act”.

    

12.     Regarding the contention of respondent/accused counsel that offence was committed in far flung area and no public vicinity was there so offence would not fall within scope of terrorism seems to be without substance because the principles, so laid down by Honourable Supreme Court, referred above, leaves nothing ambiguous that while deciding applicability of section 6 & 7 of the Act the ‘action’ carries weight than the “designed to”. In the case hand the place of incident is a police picket which is normally to be established in the area so as to ensure safety and security to the people of the area. The “action” i.e. manner of the offence, involved in the matter, is an attack upon so established police picket. Such action leads to an alarming situation and impression upon the people that, If police officials and police posts are not safe then what impact will be upon general public. This would rather show that this is the worst situation of lawlessness, and no doubt under these circumstances, not only vicinity of that area but public at large will have serious effect of insecurity, lawlessness and uncertainty in their routine life. In case of Mst Najim UN Nisa versus Special Court ATA reported in 2003 SCMR it is held as under:--

                               

“Needless to mention here that a crime of the kind in hand committed in even in remote corner does not remain unnoticed in the area in which it is committed or even in the country on account of the print and electronic media”.

 

13.     Admittedly in present case offense was committed on police post, police officials were deterred from their official duties, candidly. This is not a case of private vendetta, and action of accused persons reflects that it was a deliberate and intentional action of causing an assault at the police picket being armed with deadly weapons which even resulted in murder of one police constable, therefore, the “action”, involved in the matter cannot be presumed to have remained unnoticed by the locality nor can be said to be an ordinary offence. We are supported in our such view with the case of Matau Rehman versus Anti Terrorism Court Faisal Abad reported in 2008 MLD 840, it is held as under:--

 

                 “We have straight away observed that according to the allegation leveled in the F I R. the petitioner  and his co accused had launched an assault upon members  of the police force and  some revenue officials so as to deter them from performing their official duties and had caused injuries to as many as seven police officers, if such allegation are accepted as correct at their face value then the actus reus attributed to the petitioner and his co accused prima facie attracts the provision 6 (2)(m)(n) of Act 1997.

 

14.     In case of Akhtar Hussain versus Special judge ATC Lahore reported in 2005 YLR 2336, it is held as under:--

 

                   “A close scrutiny of the F I R would show that the accused injured namely   Abdul Rehman director and the deceased  Abdul jabbar/ibra director, were employee of WAPDA as in the complaint/petition. Even if the accused entertained the suspicious that injured and deceased officials of WAPDA  was responsible for his transfer , his act certainly  fell within the mischief  of section 6(a)(b)(m)(n) of A T A as it amounted to coercion  and intimidation of a public servant  in order to force him to refrain from discharging his lawful duties . the resultant fear or sense of insecurity  coupled with conjointly with a motive which inherits in itself the eliminate the determined and defined  under the law would be certainly bring the pale of Anti Terrorism Act 1997”.

 

15.     We have examined the impugned order of Anti Terrorism Court, wherein it is observed that “the complainant as well as eyewitnesses have not stated in their statements and F.I.R  about firing in order to create harassment, fear, terror and insecurity in the minds of General Public”, thus case was transferred to the ordinary/regular Court. This approach is contrary to the law and principles so laid down by the superior Courts to deal with the issue of application of the Section (s) 6 & 7 of the Act. In case (s) the witnesses are supposed to disclose about the manner of offence and the circumstances in which they have seen the occurrence. How it can be expected from an eye witness of an offence to analyze the effect of the incident upon the public at large or otherwise. It is the duty of the investigating agency to gather the evidence and define the gravity of the offence according to the sections applicable and submit challan accordingly in the court of law having jurisdiction. Simultaneously it is the duty of the trial court to examine the whole record in administrative capacity before taking cognizance and decide the nature of the case for the purpose of jurisdiction subsequently for framing the charge. 

 

16.     Keeping in view the facts and circumstance of the present case and binding effect of dicta laid down by Honourable Supreme Court, this is a case of terrorism falling within the jurisdiction of Anti Terrorism Court.  Thus impugned order dated 03.12.2010 is illegal, unjust and not maintainable under the law.

 

 17.    We have allowed the criminal revision by short order and these are the detailed reasons.

 

 

                                                                Judge

 

                                        Judge