ORDER SHEET
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Criminal Transfer Application No. 79 of 2011
Present: Mr. Justice Shahid Anwar Bajwa
Mr. Justice Muhammad Ali Mazhar
Bakshoo ……………………………………………………Applicant
Versus
The State..………………………………………………..Respondent
For the Applicant: Mr.Ali Ahmed Khan
Advocate.
For the State: Mr.Zulifquar Ali Jatoi D.P.G.
Date of hearing: 20.12.2011.
Muhammad Ali Mazhar, J- The applicant has preferred this Application under Section 526 CR.P.C read with Section 561-A CR.P.C for the transfer of Special Case No.49/2010 “State versus Baksho” arising out of a Crime No.12/2009, lodged under Section 324, 353, 147, 148, 149 PPC and Section 07 of Anti-Terrorism Act, from the court of learned Judge Anti-Terrorism, Sukkur to any ordinary/regular court having jurisdiction.
2. In brief, the facts are that on 24.2.2009, the complainant SIP Sahib Dino Narejo lodged FIR as under:-
“That he was present at Police Station Andal Sundhrani where he received spy information that notorious dacoits Bakshoo Shar and Jumo Shar along with their gang are coming from katcha area, the complainant conveyed the information and on the orders of his superior officer left police station towards pointed place and saw 21 armed persons coming from northern side. PC Mughal Khan and Ali Gul disclosed that are notorious dacoits including the applicant. Accused Bhooro Shar and Suleman Chachar were with Guns and remaining with KKs. The police party in uniform stopped their vehicle at once and alighted and cautioned them to throw their weapons and surrender. The accused started straight firing on police party with the intention to commit their murder. In retaliation, police party also started firing with their official weapons on accused persons. During encounter PC Muhammad Ramzan Taghar raised cries that he has sustained gun shot injury on his right hand. The encounter continued for about half an hour when the police party narrowed the circle of accused persons by crawling towards them, the accused persons escaped by taking advantage of thick forests. PC Muhammad Ramzan had sustained gun shot injury on his middle finger of right hand. The complainant collected 32 empty bullets of 7.62 and 7 empty bullets of G-3 rifle from police side and from place of accused he collected 23 bullets of 7.62 and 4 empty cartridges of 12 bore which were sealed separately. The accused persons in league, armed with automatic weapons obstructed in the lawful duty by firing straight on police party with intention to commit their murder and caused injury to PC Muhammad Ramzan. The accused persons have created panic and terror in the area by indiscriminate firing with automatic weapons. The complainant fired 53 bullets from his official SMG”
3. The learned counsel for the applicant argued that an application under Section 23 of the Anti-Terrorism Act 197 was moved but without considering the material facts and allegation in the FIR, the learned trial court vide order dated 17.8.2011 dismissed the application. He further argued that the accused did not commit any intentional or pre-planned attack on the police party and when police surrounded them, they started firing on police party not to create any terror or panic but it was done with the intention of self defence and under the aforesaid circumstances no offence is made out under Sections 6 and 7 of the Anti Terrorism Act, 1997. He further argued that the trial court has wrongly assumed the jurisdiction and if any trial is conducted in the Anti Terrorism Court, it will be coram non judice. In support of his arguments, he relied upon an unreported judgment delivered by the learned divisional bench of this Court in Cr. Appeals No.92 and 93 of 2007, “Muhammad Shahban Vs. State” whereby the judgment passed by the Anti Terrorism Court was set aside and matter was remanded to sessions court to proceed and decide the case from the stage at which the case was finalized by Anti Terrorism Court without any necessity of recalling any witness and dispose of the case by a fresh decision.
4. The learned DPG, conversely argued that from the contents of FIR, it is clear that the learned Anti Terrorism Court has rightly taken the cognizance since according to the contents of the FIR, 21 armed notorious dacoits, the names of whom are already mentioned in the FIR, started firing on police party with the intention to commit their murder and in retaliation police party had also opened fire and during encounter PC Muhammad Ramzan was injured. Many empties of different types were recovered from the place of incident, therefore the act of the applicant and his accomplices fully comes within the ambit of clauses (m) and (n) of sub-section (2) of Section 6 of the Anti Terrorism Act, 1997, therefore the case is rightly being tried by the Anti Terrorism Court and this transfer application is liable to be dismissed.
5. The word “terrorism” used in sub-section (1) of Section 6 of the Anti Terrorism Act, 1997, means the use or threat of action where the action falls within the meaning of subsection (2) and 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 sect or create a sense of fear or insecurity in society or the use of threat is made for the purpose of advancing a religious, sectarian or ethnic cause, or intimidating and terrorizing the public, social sectors, business community and preparing or attacking the civilians, government officials, installations, security forces or law enforcement agencies. In subsection (2) of Section 6, various actions are mentioned in clause (a) to (q), which fall within the meaning of subsection (1) of Section 6, which defines the word “terrorism” but the relevant clauses for deciding the present transfer application are clauses (m) and (n), which are reproduced as under:-
(m) involves serious coercion or intimidation of a public servant in order to force him to discharge or to refrain from discharging his lawful duties ; or
(n) involves serious violence against a member of the police force, armed forces, civil armed forces, or a public servant.
6. In order to determine as to whether an offence would fall within the ambit of Section 6 of the Anti Terrorism Act, 1997, 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 whether the ingredients of alleged offence have 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 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. The judicial consensus seems to be that striking of terror is sine qua non for the application of the provisions as contained in Section 6 of the Anti Terrorism Act, which cannot be determined without examining the nature, gravity and heinousness of the alleged offence. Reference can be made to PLD 2009 SC 11. Though in the above judgment, the honorable supreme court affirmed the order passed by the Lahore High Court whereby the matter was withdrawn from ATC Court and sent to sessions court for trial but the guiding principle and ratio of judgment is fully attracted to determine in what circumstances the case is triable by ATC and or regular/normal courts. The hon’ble Supreme Court in its judgment reported in PLD 2006 SC 109 while relying on its own judgment reported in PLD 1995 SC 1, held that while applying a particular law, the court should take into consideration the object for which law has been enacted. The interpretation of the law should be placed in a manner which may advance the object and suppress the mischief for which the law in question might have been enacted and not to construe in a manner which may defeat the object of law.
7. According to the dictum laid down by the hon’ble Supreme Court (supra), it is essential for us to have a glance over the allegations made in the FIR and it is also required to examine whether the ingredients of the alleged offence have any nexus with the object of the case as contemplated under Sections 6, 7 and 8 of the Anti Terrorism Act, 1997. It is lucid from the allegations made in the FIR that the complainant received a spy information that notorious dacoit including the applicant along with his accomplices were coming from katcha area and the complainant on the orders of his superiors left the police station along with staff and reached to the pointed place in uniform and found 21 armed persons, who were identified by their names which are mentioned in the FIR. When the police party stopped them, they started indiscriminate firing. It is further stated that the police party warned them to surrender but instead of surrendering themselves, they started firing on police party. The said encounter continued for at least half an hour in which PC Muhammad Ramzan sustained gun shot injury on his right hand and when the police party tried to encircle them, they escaped from the place of incident. Many empties were recovered from the place of incident and complainant also fired 52 bullets from his official SMG. Upon simple glance, it is clear that the accused persons intimidated the public servants to refrain from discharging their lawful duties, which also involves serious violence against the members of the police force, therefore in our view the challan was rightly submitted in the Anti Terrorism Court for trial.
8. So far as the argument of learned counsel for the applicant who though admitted that the incident took place but according to him it was without any intention to create terror and panic but accused made firing for their survival in their self defence is a misconceived argument. The right of private defence is provided under Chapter IV of Pakistan Penal Code in “General Exceptions” and under Section 99 PPC the “Acts against which there is no right of private defence-Extent to which the right may be exercised” are provided. Section 99 of the PPC enumerates the limitations imposed on the exercise of right of private defence and the first condition enumerates that there is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done by a public servant acting in good faith under color of his office, though that act may not be strictly justifiable by law, the second condition provides that there is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under color of his office though that direction may not be strictly justifiable by law, and the third condition lays down that there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. It further provides that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
9. The learned counsel for the applicant referred to a judgment of divisional bench (supra), the fact of which are highly distinguishable and not attracted to the facts and circumstances of the instant case and we respectfully observe that perhaps, the relevant provisions of PPC relating to the right of self defence were not brought into the kind attention of the learned divisional bench in the aforementioned case. Even otherwise, the aforesaid judgment has no bearing to the circumstances relevant to the present case in which it is clearly mentioned in the FIR that police party in uniform cautioned the accused persons to throw their weapons and surrender but instead of surrendering, they started firing on police party. Right of self defence is always open to general limitations imposed by Section 99, PPC and there is no right of private defence if the public servant has acted in good faith and under color of his office. According to the FIR, it is manifestly clear that the accused persons had first attacked on the police party and in the retaliation, the police party started firing, therefore the plea of self defence advanced by the learned counsel for the applicant is without any rationale or justification. An action which involves serious coercion or intimidation of a public servant in order to force him to discharge or to refrain from discharging his lawful duties or involves serious violence against a member of the police force, armed forces, civil armed forces, or a public servant is terrorism as defined under Sub-section 1 of Section 6 of Anti-Terrorism Act. In the case in hand, the alleged encounter took place with the dacoits and if right of self defence in this peculiar circumstances of the case is accepted, it will tantamount to allow an unbridled license to the dacoits and or hardened criminals to kill, coerce and or intimidate the police force and public servants to refrain them from discharging their lawful duties which is against the scope and spirit of right of self defence guaranteed or as envisaged under the provisions of PPC.
10. At this juncture, we would like to refer to the case of Ch.Muhammad Yaqoob, reported in 1992 SCMR 1983, in which the honorable Supreme court held the right of self defence is to be used as a shield to ward off an warranted attack to persons or property but it can not be used as vehicle for provoking an attack. In other words, it is to be exercised as a preventive measure and not for launching an attack for retaliatory purpose. The court will have to examine the above question with reference to the facts of each case and keeping in view the state of mind of the person placed in the position of the person attacked who exercised the right of private defence. However, at the same time, keeping in view the importance and magnitude of Article 9 of the Constitution of Pakistan, it was further held that an encounter will not entitle a police party to kill indiscriminately the persons who are allegedly involved in the encounter as the basic requirement provided inter alia in Section 99 PPC, namely, “the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence” . The police personnel themselves can not be sole arbiter on the question whether the killing of certain persons in an alleged encounter was warranted by the facts of the case but it is for the competent court of law to decide. Article 9 of the Constitution envisages that no person shall be deprived of life or the liberty save in accordance with law, therefore, the public functionaries like police force are to act in aid of enforcement of the above constitutional provision rather than to violate the same and expose themselves to criminal prosecution.
11. This transfer application was dismissed vide our short order dated 20.12.2011 and above are the reasons for the same.
Judge
Sukkur:
Dated. 10.1.2012 Judge