HIGH COURT OF SINDH AT KARACHI

Criminal Rev. Application 127 of 2013

Present: Ghulam Sarwar Korai, J. Naimatullah Phulpoto, J.

Applicant: Nazakat Ali through Mr. Habib Ahmed, Advocate

Respondent: The State through Mr. Muhammad Iqbal Awan, Assistant Prosecutor General Sindh.

Complainant: Agha Mashooq Ali Khan through Mr. Muhammad Khan Burriro, Advocate

Date of hearing: 30.08.2013

Date of announcement: _________

O R D E R

NAIMATULLAH PHULPOTO, J.- Through the instant criminal revision application, Applicant Nazakat Ali has impugned order dated 19.07.2013 passed by learned Judge Anti-Terrorism Court No.III Karachi in Special Case No.27(III)/2013 “The State versus Nazakat Ali” under sections 302/34 PPC read with section 7 of the Anti-Terrorism Act, 1997 whereby an application under section 23 of the Anti-Terrorism Act, 1997 filed by the applicant/accused Nazakat Ali was dismissed.

2. Notice of this application was issued to the learned Prosecutor General Sindh and complainant.

3. Brief facts leading to the filing of instant application are that on 09.04.2013 at 2130 hours S.H.O. Agha Asadullah Khan of Police Station Preedy along with PC Nazakat Ali left the police station in his Car No.KG-469 for patrolling duty. When they reached at Daudpota Road crossing, Shahrah-e-Iraq, near Murshid Bazar they were attached by unknown persons, result whereof said S.H.O. sustained fire arm injury, his car went out of his control and collided with nearby traffic signal. One Muzzamil friend of complainant Agha Mashooq Ali, brother of the deceased Agha Asadullah Khan, narrated the said facts to the complainant, the latter directed him to let him talk with PC Nazakat Ali, gunman of S.H.O. Agha Asadullah Khan. PC Nazakat Ali (now accused) informed the complainant that said S.H.O. has received fire arm injury and he has been removed to the Civil Hospital. Complainant without any delay reached at Civil Hospital and got information from the concerned doctor and he told him that his brother has received head injury and he has expired. It is further alleged that P.C. Nazakat Ali was inquired about the incident but he was very much confused and could not reply satisfactorily. F.I.R. of the incident was lodged on 10.04.2013 vide Crime No.134/2013 under section 302/34 PPC read with section 7 of the Anti-Terrorism Act, 1997 at police station Preedy, Karachi.

4. Case was investigated by Inspector Muhammad Fayyaz. He inspected the place of incident, recovered car of the deceased from the place of occurrence, collected blood, empties of SMG rifle, one live bullet of SMG. The investigation officer had also recovered SMG rifle No.76887, Belt No.78613 from the possession of PC Nazakat Ali. During investigation 161 Cr.PC statements of the witnesses were recorded. Investigation Officer had also obtained C.C. TV footage of the incident. 164 Cr.PC statements of the PWs were also recorded. Accused Nazakat Ali admitted the commission of offence before the joint investigation team and stated that just to divert the attention of the public he got down from the car and fired in air. After usual investigation challan was submitted against the applicant/accused under section 7 of the Anti-Terrorism Act, 1997 read with section 302 PPC on 14.06.2013.

5. Application under section 23 of the Anti-Terrorism Act, 1997 was moved for transfer of case to Sessions Court, the same was rejected by the learned trial Court mainly for the following reasons:

“The cumulative effect of my above discussion is that the instant crime having nexus with section 6 of Anti-Terrorism Act, 1997. The subject offence has been committed with the object to terrorize the General Public as well as police personnel and the said murder had not taken place on the basis of any personal/private grudge. The precedent of Hon’ble Superior Court in case of Muhammad Riaz (NLR 2002 Criminal 369) referred by the learned advocate for the accused, with profound respect, it distinguishable to the facts of the present case. In the said case, deceased Mumtaz was ASI serving in Karachi, he belonged to Mianwali and during the days of occurrence he had come home on leave, he was murdered allegedly on account of private dispute of land. The Hon’ble Judge of Lahore High Court in aforementioned case also laid down the dictum that murder of a public servant including that of a member of Police Force would attract provisions of the Act of 1997, only if his murder had any nexus with his official capacity or with the discharge of his official duty. In this case, deceased Inspector Asadullah Khan was not exterminated due to private dispute and at the time of his killing he was on his duty, hence this Court is competent to try the accused of the subject crime and not lacking the jurisdiction. The instant application therefore, being meritless is dismissed accordingly.”

6. Mr. Habib Ahmed, advocate for the applicant/accused has mainly objected to the jurisdiction of the Anti-Terrorism Court, established under section 13 of the Anti-Terrorism Act, 1997. He has submitted that jurisdiction to try the offence of the murder is with ordinary Courts and trial by the Anti-Terrorism Court is an exception to the rule. Mr. Habib Ahmed has contended that mere fact that S.H.O. has been murdered is not sufficient per se to confer jurisdiction on Anti-Terrorism Court, according to the condition precedent that any addition to the commission of scheduled offence it should be coupled with act of terrorism as defined in section 6 of the Anti-Terrorism Act, 1997. Lastly it is contended that there is no evidence with the prosecution to establish that the applicant has committed alleged offence with intention to create a sense of fear and insecurity in the society.

7. Mr. Muhammad Iqbal Awan, Assistant Prosecutor General Sindh, has contended that S.H.O. while performing his duty has been murdered in this case and he was a member of Police, Anti-Terrorism Court has the exclusive jurisdiction to try the case.

8. We have carefully considered the respective contentions of the learned advocates for the parties and perused the relevant record.

9. We are of the considered view that during investigation, sufficient material has been collected to create a nexus between the scheduled offence allegedly committed by the applicant/accused and sections 6, 7 and 8 of the Anti-Terrorism Act, 1997. In the case of Eidal Khan Metlo versus Imam Ali alias Bali and another reported in 2013 PCr.LJ 526 this Court has observed as under:

“Admittedly in present case offence 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 v. Anti-Terrorism Court Faisal Abad reported in 2008 MLD 840, it is held as under:--

“We have straight away observed that according to the allegations 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 allegations are accepted as correct at their face value then the actus reus attributed to the petitioner and his co-accused prima facie attracts the provisions 6(2)(m)(n) of Act 1997.”

10. In section 6(2)(n) of the Anti-Terrorism Act, 1997 it is provided that An “action” shall fall within the meaning of subsection (1) if it “involves serious violence against the member of police force, civil armed force or a public servant”. In this case, the applicant/accused had launched an assault upon the member of police force (S.H.O.) as to deter him from performing his official duties and committed his brutal murder, if such allegations are accepted as correct on the basis of material available on record, apparently, actus reus attributed to the applicant/accused attracts the provisions of section 6(2)(m)(n) of the Anti-Terrorism Act, 1997. Applicant/accused was subordinate to S.H.O., by such act, he created sense of insecurity in police officials. Anti-Terrorism Court has exclusive jurisdiction to try the case and rightly charge has been framed by trial Court against the applicant/accused. No illegality or infirmity in the impugned order has been pointed out. It is based upon sound reasons. Therefore, order dated 19.07.2013 is maintained. Instant criminal revision application is without any merit, the same is dismissed with direction to the trial Court to proceed with the case expeditiously as provided in the Anti-Terrorism Act, 1997.

JUDGE

Gulsher/PA