IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

 

Crl. Misc. Appln. No.  D- 230 of 2012.

 

 Present:

                                                Mr. Justice Muhammad Shafi Siddiqui,

                                                Mr. Justice Syed Muhammad Farooq Shah.

 

 

Sunder Jakhrani.                                                                   ………...Applicant.

 

Versus

 

Haji Muhammad Noor & another.                                    ….…..Respondents.

           

 

                        Mr. Muhammad Iqbal Mahar, Advocate for applicant.

                        Mr. Athar Abbas Solangi, Advocate for complainant.

                        Mr. Naimatullah Bhurgri, State counsel.

~~~~

 

            Date of hearing:        31.01.2013.    

 

O R D E R

 

Syed Muhammad Farooq Shah, J-.         Applicant Sunder Jakhrani has preferred the captioned miscellaneous application under Section 23 of Anti Terrorism Act, 1997, read with Section 561-A Cr.P.C. for transfer of case No.42/2010 (re; St. vs. Sunder and others), from the Court of Special Judge Anti Terrorism, Jacobabad, to ordinary Court having jurisdiction i.e. Sessions Judge, Kashmore @ Kandhkot, on the facts and grounds as set forth in the application.

 

2.         Impugned is the order announced on 8th August, 2011, by the learned Incharge Judge, Special Anti Terrorism Court,/Sessions Judge, Jacobabad, in case crime No.86/2010, of P.S Buxapur, under Sections 302, 364, 148, 149 P.P.C, read with Sections 6/7 of Anti Terrorism Act, 1997, whereby a request made for transfer of the case to regular Court was declined. Since impugned order is a short one, therefore, it shall be advantageous to reproduce herein below its penultimate para.

 

                        “The bare perusal of F.I.R and other related material reveals that it were the present applicant/accused and the absconding culprits, who after having formed an unlawful assembly in prosecution of their common object not only abducted three persons as are named above, but thereafter committed their death by causing them fire shot injuries, thereby they crated a sense of fear and insecurity in society, which of course constitutes an offence of terrorism, as is defined by clause (b) to sub Section (1) to Section 6 of the Anti Terrorism Act, which of course is punishable under clause (a) to Section 7 of Anti Terrorism Act and is worth triable by this Court. For what has been stated above, it could be concluded safely that no transfer of this case to regular Court is made out; consequently the instant application is dismissed.”

 

3.         Material points for determination for transfer of the application from Anti Terrorism Court to ordinary Court involved in the instant application are that as to whether the case falls within the plenary jurisdiction of the normal Court or it should be tried by Anti Terrorism Court having jurisdiction, OR intent and motivation behind the crime irrespective of the fact, whether any fear or insecurity was actually created or not, OR the offence took place because of private enmity on personal vendetta and intention of the accused was to create sense of insecurity or to destabilize the society or in any section of public or community or any Sect, OR the occurrence was simply the result of personal enmity and the crime had not the effect of striking terror or creating a sense of fear and insecurity in the people as provided under Section 6 & 7 of Anti Terrorism Act, 1997.     

 

4.      We have considered the submissions advanced from both the sides and carefully perused the material available on record.

 

5.         Precisely, the relevant facts as narrated by one Haji Muhammad Noor in F.I.R bearing its No.86/2010, lodged at P.S Buxapur, District Kashmore @ Kandhkot on 24.5.2010, are that on fateful day he alongwith six other persons on two motorcycles were intercepted by nine armed persons, out of them they identified six persons having Kalashnikovs in their hands; took away deceased Wahid Bux, Dad Muhammad and Abdul Majeed at Mithal Jakhrani Laaro (Curve), and committed their brutal murder by firing burst of Kalashnikovs. It is further alleged that the accused persons duly armed with deadly weapons had abducted two brothers and one nephew of complainant and thereby created terror by causing their death by firing Kalashnikov burst at them.

 

6.         Learned counsel for the Applicant contended that the present applicant alongwith other accused have been challaned in the Anti-Terrorism Court, Jacobabad and the case has not been proceeded as yet. Mr. Muhammad Iqbal Mahar, Advocate, representing the applicant at the very outset contended that this is case of previous enmity between the parties, as the complainant himself stated that a “Fasila” of earlier dispute between both the parties was held but accused Barkat Jakhrani was dis-satisfied with the “Fasila”, antagonized with complainant party, used to utter the words that “I would fight with you (complainant party)”. It is next argued that this is a case of admitted inimical terms and personal vendetta between the parties; therefore, definition of terrorism is not attributed in the present case, as the offence has neither created any threat to a section of public or community or created sense of fear or insecurity in the society, therefore, the application of Section 6 & 7 of the Anti Terrorism Act 1997, does not apply. Learned counsel further urged that if the motive for the occurrence was previous enmity between the parties on account of some previous murders, the application of Section 6 & 7 of the Anti Terrorism Act 1997, which primarily requires the spread of sense of insecurity and fear in the common mind is lacking. Motive as alleged in the F.I.R is also to be given a special attention, which indicates that there was a previous enmity between the parties and since nothing was brought on record to show that occurrence created terror, panic or sense of insecurity amongst peoples by causing murder, therefore, the case do not fall within the ambits of Sections 6 & 7 of the Anti Terrorism Act 1997. In support of his contention learned counsel has placed his reliance on the case of Shoukat Ali v. Special Judge, Anti-Terrorism Court, No. IV, Lahore and 2 others (2009 P.Cr.L.J 1299), Bashir Ahmed v. Muhammad Siddique and others (P L D 2009 Supreme Court 11), Mohabbat Ali and another v. The State and another (2007 S C M R 142),  Tariq Mahmood v. The State and others (2008 S C M R 1631), and Muhammad Yaqoob and others v. The State and others (2009 S C M R 527).

 

7.         Conversely, Mr. Athar Abbas Solangi, Advocate representing complainant, assisted by learned State Counsel categorically rebutted the contentions made by learned counsel for the applicant and argued that the learned  Incharge Special Judge, Anti-Terrorism Court has correctly observed that the alleged offence has created a sense of fear and insecurity in society, as defined by clause (b) to Section (1) to Section 6 of the Anti-Terrorism Act, 1997, which of course is punishable under clause (1) to Section 7 of  Anti Terrorism Act, 1997, triable by Anti-Terrorism Court. It is next contended that sufficient material gathered by the prosecution depicts the heinousness and severity including nature of the offence, in which the applicant alongwith other accused caused murder of three innocent persons in front of their relatives after abducting them on gunpoint and in this way they have crated terror and fear amongst people of the locality. It is further contended that the trial Court has rightly considered all aspects of the case before determining the application of Section 6 & 7 of the Anti Terrorism Act, 1997, as the crime had been committed during daytime in a remote corner, did not remain un-noticed at the place of occurrence and the brutal murder certainly created terror and horror amongst the people. To support his contentions learned counsel for the complainant has placed his reliance on the cases of Mirza Shoukat Baig and others v. Shahid Jamil and others (P L D 2005 Supreme Court 530), Nooruddin v. Nazeer Ahmed and 4 others (2011 P.Cr.L.J  1370),  and Nazeer Ahmed and others v. Nooruddin and another (2012 S C M R 517).

 

8.         Undisputedly, the jurisdiction to decide whether a particular case did or did not fall within purview of its jurisdiction, lay with the Presiding Judge of Anti-Terrorism Court under the provisions of Section 23 of the Anti Terrorism Act, 1997, as held by the Apex Court in Mehram Ali’s case ( P L D 1998 Supreme Court 1445), and in Nadeem Butt v. Special Court ATC (2000 SCMR 1086).

 

9.         Perusal of the available record transpires that the alleged offence was committed on a path during daytime and it is an admitted position that after submission of challan in Anti-Terrorism Court, the prosecution could not examine the ocular/circumstantial/medical/expert witnesses nor otherwise any material was available to ascertain that no panic, fear and insecurity had been created in the minds of peoples  as apparently accused made reckless firing with Kalashnikovs i.e. rifles of prohibited bore, which had frightened the general public or not, therefore, at this premature stage the severity and nature of the alleged offence cannot be determined.

 

10.          For the forgoing reasons, we reached at the irresistible conclusion that mentioned points may be agitated and decided after recording the evidence of complainant and at-least two eyewitnesses/star witnesses by the prosecution and thereafter the applicant is set at liberty to repeat the application for transfer of the case from Anti-Terrorism Court to a Court of plenary jurisdiction, if so advised. Learned trial Court is directed to decide the case expeditiously, preferably within two months period and thereafter report shall be submitted through Deputy Registrar before this Court.

 

11.       The application is disposed of in the manner and terms mentioned above.

 

Judge

Dated:

 

Judge