HIGH COURT OF SINDH AT KARACHI
Cr. Rev. Application No.34 of 2012
Present: Sajjad Ali Shah, J.
Naimatullah Phuploto, J.
Applicant: Muhammad Sharif through Mr. Chaudhry Abdul Rasheed, Advocate.
Respondent No.1: Sagheer Ahmed alias Bhaya through Mr. Amir Mansoob Qureshi, Advocate.
Respondent No.2: The State through Mr. Ali Haider Saleem, Assistant Prosecutor General Sindh
Date of hearing: 26.02.2013
O R D E R
Naimatullah Phulpoto, J.-- This criminal revision application is directed against the order dated 06.10.2011, passed by learned Judge, Anti-Terrorism Court-I, Karachi in Special Cases Nos.08/2009 and 09/2009, registered at police station Awami Colony, Karachi, under sections 365-A, 302 PPC read with section 7(e) and (a) of the Anti-Terrorism Act, 1997 and section 13(e) Arms Ordinance, 1965.
2. Brief facts of the case as disclosed in the FIR are that on 31.01.2009 complainant Muhammad Sharif lodged his report alleging therein that he deals meat supply business in Gulshan Market, Korangi. On 30.01.2009 at 06:00 p.m. his son Zeeshan alias Sunny, aged about 23/24 years (now deceased) came at his shop in presence of PWs Asif, Noman and Irfan and disclosed that he had received a telephonic call from respondent Sagheer Ahmed alias Bhaya son of Amir Hasan to go with him to Hyderabad in connection with some work. Zeeshan further told his father that they would come back before 12:00 midnight. Complainant was waiting for his son till midnight, he received a call from his son. Complainant further disclosed that again he received telephonic call at 03:00 a.m., third call was also received by him and complainant was informed that his son was in possession of the caller. He should make arrangement of Rs.1 Crore for release of his son. Complainant was further informed that motorcycle of his son was parked at Quaidabad and culprits would contact him soon. Complainant lodged FIR at police station Awami Colony, it was recorded vide Crime No.50/2009 under sections 365-A/34 PPC. Complainant suspected that accused Sagheer and unknown persons were involved in the offence.
3. During investigation accused Sagheer Ahmed was arrested and on his pointation dead body of Zeeshan alias Sunny was recovered from an iron box. Accused Sagheer Ahmed produced unlicensed T.T. pistol along with one empty from his house. After usual investigation challan was submitted under section 365-A/302 PPC read with section 7 Anti-Terrorism Act, 1997 and under section 13(e) Arms Ordinance, 1965 in the Court of learned Administrative Judge, Anti-Terrorism Court, Karachi, the same was transferred to Anti-Terrorism Court-I, Karachi for disposal according to law.
4. During pendency of case an application under section 23 of the Anti-Terrorism Act, 1997 was moved on behalf of the accused/respondent Sagheer Ahmed. Learned Judge Anti-Terrorism Court-I through order dated 24.09.2009 allowed an application and transferred the case to the learned Sessions Judge, Karachi East.
5. Complainant Muhammad Sharif impugned the above noted order. This Court in Criminal Revision Application No.72/2009 (Muhammad Sharif versus Sagheer Ahmed and State) set aside the order of learned Judge, Anti-Terrorism Court-I, Karachi vide order dated 10.07.2009 while observing as under:
“Bare perusal of the FIR shows that after calling the deceased by way of deceitful means and inducing him to go with the accused to Hyderabad in connection with some work and thereafter keeping him in custody and demanding the ransom for his release clearly shows that prima facie the alleged offence of kidnapping for ransom has been made out, therefore, the case is exclusively triable by the Anti-Terrorism Court. Without recording any evidence, the transfer of the case through the impugned order to the Sessions Court, Karachi East does not appear to be an order in accordance with law. In the facts and circumstances of the case, the impugned order is not sustainable, therefore, we hereby allow this Criminal Revision Application and set aside the impugned order. We recall the case pending in the Sessions Court, Karachi East and remand the same to the Court of Judge, Anti-Terrorism Court No.1, Karachi for its trial and disposal according to law.”
6. During pendency of the case before the Anti-Terrorism Court-I, Karachi, another application was filed by accused Sagheer Ahmed for transfer of case to regular Court. Learned Judge Anti-Terrorism Court-I, Karachi vide order dated 23.11.2011 transferred the case to the Sessions Court Karachi East for want of jurisdiction. Said order dated 23.11.2010 was challenged by the complainant in Criminal Revision No.01/2012 before this Court. This Court vide order dated 11.03.2011 set aside the order dated 23.11.2010 and remanded the matter to the Anti-Terrorism Court-I, Karachi for deciding the Special Cases bearing No.8/2009 and 9/2009 afresh after hearing the arguments of the learned counsel for the parties. While dealing with the question of jurisdiction, directions were issued that trial Court will also decide as to whether offences did fall under the provisions of Section 6(1)(b) read with clause (d) and (e) of subsection (2) of Section 6 of the Anti-Terrorism Act, 1997 and there is any evidence of demand of ransom or not?
7. Learned Judge Anti-Terrorism Court-I, Karachi on the conclusion of the trial at the time of final arguments transferred the cases for the third time to the learned Sessions Judge Karachi East for want of jurisdiction while observing as under:
“So far as the question of falling of offence for committing murder of deceased u/s 6, 7 and 8 of Anti-Terrorism Act, 1997, is concerned, it is now well settle that, if action of commission of offence creates any panic and terror among the people of area and alleged terrorism act creates sense of fear of insecurity in the minds of people or any section of the society, then such offence falls u/s 6, 7 and 8 of Anti-Terrorism Act, 1997. Perusal of evidence brought on record in this case, shows that murder of deceased was committed because of personal vendetta, as the deceased was owing Rs.4 lacs against the accused, meaning thereby that there was dispute between accused and deceased over the money transaction, and as such circumstance which create terrorism as defined in Anti-Terrorism Act, 1997, are not available in this case.
In view of the above findings, I am of the view that this Court has got no jurisdiction to try these cases, as such I direct that R & Ps of both the cases be sent to District & Sessions Judge Karachi East, having jurisdiction, for disposal according to law.”
8. Mr. Chaudhry Abdul Rasheed, Advocate for the applicant/complainant Muhammad Sharif argued that this is the case of abduction for ransom and brutal murder of son of the complainant, offence would fall within the definition of terrorism as defined in Section 6(2)(a)(e) of Anti-Terrorism Act, 1997. He referred to the order passed by this Court in Criminal Revision Application No.72/2009 in order to show that this Court has already observed that prima facie alleged offence of kidnapping for ransom has been made out and cases are exclusively triable by Anti-Terrorism Court. Learned advocate for the applicant submitted that complainant has clearly deposed at trial that his son was kidnapped for ransom and was murdered and his dead body was recovered on the pointation of accused from iron box.
9. Mr. Amir Mansoob Qureshi, learned advocate for the accused/respondent Sagheer Ahmed alias Bhaya contended that no case of abduction for ransom and brutal murder of deceased has been made out from the evidence available on record. He has submitted that this Court by deciding the Criminal Revision Application No.01/2011 had observed that trial Court would decide the point of jurisdiction after recording evidence. He referred to the telephonic record produced in the evidence and argued that no ransom was paid and alleged offence is exclusively triable by regular Court. Impugned order does not suffer from any irregularity or illegality. He has placed reliance on the following cases:
1. Shaikh Muhammad Amjad versus the State (2002 PCr.LJ 1317)
2. Muhammad Yaqoob and others versus The State and others (2009 SCMR 527)
3. Mohabbat Ali and another versus the State (2007 SCMR 142)
4. Tariq Mahmood versus the State (2008 SCMR 1631)
5. Bashir Ahmed versus Muhammad Siddique and others (PLD 2009 Supreme Court 11)
6. Ch. Bashir Ahmad versus Naveed Iqbal and 7 others (PLD 2001 Supreme Court 521)
7. Muhammad Ikram and another versus Judge, Special Court-I and 2 others (2005 PCr.LJ 957)
10. In the case of Shaikh Muhammad Amjad versus the State (2002 PCr.LJ 1317) it has been held as under:-
“The determining factor is, that whenever the public, a section of public, a community or society becomes aware of the commission of offence either immediately on the commission of offence or at any subsequent time on discovery of the commission of offence, is put to the mental, psychological and physical condition envisaged in section 6(1)(b), it should be deemed to be an act of terrorism.”
11. In the case of Muhammad Yaqoob and others versus The State and others (2009 SCMR 527) it has been held as under:-
“Since in the instant case it has been established that motive behind the incident was previously strained relations between the parties and an iota of evidence has not been brought on record to show that object was not to kill the deceased but also to strike terror or create sense of fear or insecurity in the general public or community or any sect thereof, therefore, in our view section 7 of the Anti-Terrorism Act, 1997 was not attracted.”
12. In the case of Mohabbat Ali and another versus the State (2007 SCMR 142) it has been held as under:
“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.”
13. In the case of Tariq Mahmood versus the State (2008 SCMR 1631) it has been held as under:
“The instant case is clearly distinguishable as admittedly a feud existed between the parties over a piece of land prior to the occurrence. There is no independent evidence available on the record to show that the act of the respondents led to striking of terror among the masses. The site plan denies the claim of the complainant that the occurrence took place in a bazaar which was heavily populated. It is a well settled law that criminal cases should be tried and decided by the Courts having plenary jurisdiction until and unless extraordinary circumstances existed justifying the trial of the case by Special Courts.”
14. In the case of Muhammad Ikram and another versus Judge, Special Court-I and 2 others (2005 PCr.LJ 957) it has been held as under:
“Section 6(1) of the Anti-Terrorism Act, 1997 provides a criterion to determine where a criminal act was designed to create a sense of fear or insecurity in the minds of the general public disturbing even tempo of life and tranquility of the society, the same may be treated to be a terrorist act. Ordinary crimes are not to be dealt with under the Anti-Terrorism Act, 1997. A physical harm to the victim is not the sole criterion to determine the question of terrorism. What is to be seen is the psychological effect produced by the violent action or with the potential of producing such an effect on the society as a whole or a section thereof. There may be a death or injury caused in the process. Thus, where a criminal act is designed to create a sense of fear or insecurity in the minds of the general public disturbing even tempo of life and tranquility of the society, the same may be treated to be a terrorist act. In the present case, we prima facie find that the occurrence took place inside the house and a private motive was also ascribed.”
15. Mr. Ali Haider Saleem, learned Assistant Prosecutor General Sindh, argued that the case is exclusively triable under the provisions of Anti-Terrorism Act, 1997.
16. We have carefully heard the learned counsel for the parties, perused the relevant record and case law.
17. In order to determine as to whether an offence would fall within the ambit of section 6 of Anti-Terrorism Act, 1997 it is essential to have a glance over the allegations made in the FIR, material collected during investigation 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 section 6, 7 and 8 thereof. Whether a particular act is an act of terrorism or not, the motivation, object, design and 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 in a section of the public or community or in any sect, there can be no second opinion that where action results in striking terror or creating fear, panic, sensation, helplessness and sense of insecurity among the people in the particular area it amounts to terror and such an action squarely falls within the ambit of section 6 of the Anti-Terrorism Act, 1997 and shall be triable by a Special Court constituted for such purpose. For deciding the instant revision, it is found that this Court in Criminal Revision Application No.72/2009 by order dated 01.07.2009 has observed that from the bare perusal of the FIR it transpired that after calling the deceased by way of deceitful means and inducing him to go with accused to Hyderabad in connection with some work he was detained and ransom was demanded for his release and prima facie the alleged offence for kidnapping for ransom has been made out, the case is exclusively triable by Anti-Terrorism Court. Inspite of clear findings of this Court, above noted cases were transferred to the Court of Sessions by the learned Anti-Terrorism Court-I, Karachi vide order dated 29.04.2009. The said order of learned Judge, Anti-Terrorism Court-I, Karachi, was set aside by this Court in Criminal Revision Application No.01/2011 and the trial Court was directed to decide the Special Cases bearing No.8/2009 and 9/2009 afresh after hearing the arguments of the learned counsel for the parties and while dealing with the question of jurisdiction, directions were issued that trial Court will also decide as to whether offences did fall under the provisions of Section 6(1)(b) read with clause (d) and (e) of subsection (2) of Section 6 of the Anti-Terrorism Act, 1997 and that there is any evidence of demand of ransom or not? On conclusion of the trial without pronouncing the judgment cases were again transferred to the regular Court by order dated 06.10.2011.
18. Learned Judge, Anti-Terrorism Court has recorded entire evidence in the case. Complainant in his evidence recorded at Ex-6 has clearly deposed that his son was kidnapped for ransom and ransom was demanded by accused Sagheer Ahmed. Relevant portion of his evidence is reproduced as under:-
“On 30.01.2009 at 06:00 p.m. my son Zeeshan Ahmed was doing business of supply of meat, on that day after finishing his duty he came back on the shop at about 06:00 p.m. at Gulshan Market, 36-C, Korangi No.5. He informed me that he had received telephonic call of his hum-zulf Sagheer Ahmed and he had asked him to go with him to Hyderabad, at that time one friend of my son Zeeshan, namely, Asif my son Noman and my sister’s husband Irfan were sitting on my shop and the above facts were disclosed by him before all the above persons about the receiving of said telephone call from his Humzulf to go to Hyderabad, and they will come back at 12:00 midnight, after saying these words he left the shop and after 12.00 midnight passed away, we received telephone call in our house which was attended by my son Noman, and the call was that my son is with them and thereafter telephone call was disconnected. Again at 03.00 a.m. telephone call from the mobile No.0322-3519539 of Zeeshan was received and we were informed that my son has been kidnapped by them and they demanded ransom Rs.1,00,00,000/- for his release and further they will inform me after two days. Thereafter, at about 12 noon I went to P.S. Awami Colony to lodge the FIR and I lodged the FIR about kidnapping of my son against accused Sagheer Ahmed. I produce my FIR as Ex.6.”
19. A bare reading of FIR indicates that accused kidnapped the son of the complainant for ransom and committed his brutal murder. FIR was lodged vide crime No.50/2009 under sections 365-A PPC, challan was submitted before the Anti-Terrorism Court under sections 365-A/302 PPC read with section 7(a)(e) of the Anti-Terrorism Act, 1997 and the trial Court on the basis of material available before it framed the charge against the accused under sections 365-A, 302 PPC read with section 7(e) and (a) of Anti-Terrorism Act, 1997 and section 13(e) of the Arms Ordinance, 1965. We are of the firm opinion that jurisdiction of Anti-Terrorism Court has to be determined according to mandate of relevant penal provisions provided in section 6 of Anti-Terrorism Act, 1997, at the time of framing of the charge. In the present case, on the basis of FIR and other material collected during investigation there was sufficient substance before the trial Court to frame the charge against the accused under the above referred sections. During the trial the complainant has categorically deposed that his son was kidnapped and ransom of Rs.1 Crore was demanded from him and his son was murdered. In these circumstances, after recording the evidence, mere tentative assessment of the Anti-Terrorism Court that it has no jurisdiction is injudicious and contrary to the law. Moreover, in this case there was no enmity between the parties. Action of the accused resulted in striking terror and sense of insecurity among the people in a particular vicinity, it amounts to create terror in the business community. Therefore, Anti-Terrorism Court has exclusive jurisdiction in this case as the action of the accused squarely falls within the ambit of section 6 of the Act 1997. Reliance can be placed upon the cases of Najam-un-Nisa versus Anti-Terrorism Court (2003 SCMR 1323) and unreported judgment of Honourable Supreme Court of Pakistan, titled as Bashirullah v. The State dated 08th February 2001 passed in CPLA No.238/2000.
20. In the case of Najam-un-Nissa (supra) it is held as under:-
“3. 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 Anti-Terrorism Act, 1997 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.”
21. In the case Bashirullah (supra) the Honourable Supreme Court of Pakistan has been pleased to observe as under:-
“We have heard both sides at length and perused the file as well as various judgments cited at the bar. As far the facts of this case are concerned, there would be the determining factor as far the question of jurisdiction is concerned. In the instant case, complainant was deprived of his Daston Pick up and the driver was done to death in the same transaction, therefore, police rightly applied section 17(4) (“Haraabah”), of offences against Property (Enforcement of Hudood) Ordinance, 1979. Learned trial Court framed the charge under section 302/34 PPC as well as under section 17(4) (“Haraabah”) of offence against Property (Enforcement of Hudood Ordinance, 1979. At the conclusion of the trial benefit of doubt was given to the accused for lack of absolute proof as far as offence of Haraabah was concerned. But the offence of murder was established as they were accordingly convicted. The proposition in the instant case would be, if the complainant wanted to impugn the judgment by challenging acquittal of the accused for Haraabah offence, obviously, an appeal against acquittal had to be filed before the Federal Shariat Court and in such circumstances argument that appeal against conviction would be before the High Court, would be most illogical. Jurisdiction of Court has to be determined in such like cases at the time of framing of charge, which was exclusively of Shariat Court as far the present case is concerned.”
22. Consequently, impugned order dated 06.10.2011 is declared to be illegal and injudicious, same is not sustainable in law and it is hereby set aside. Revision application is allowed. Learned Anti-Terrorism Court-I is directed to proceed with case from day to day as provided under the provisions of the Anti-Terrorism Act, 1997 and decide the case according to law.
23. However, observations made herein above are for deciding the point of jurisdiction. The trial Court shall not be influenced by such observations while deciding the case on merits.