2016 P Cr. L J 1463

 

[Lahore]

 

Before Syed Iftikhar Hussain Shah and Sikandar Zulqarnain Saleem, JJ

 

NAWAZISH ALI and 3 others—Petitioners

 

Versus

 

The STATE and another—Respondents

 

Criminal Revision No.211 of 2014, decided on 12th January, 2015.

 

Anti-Terrorism Act (XXVII of 1997)—

 

—-Ss. 6, 7 & 23—Application for transfer of case from Anti-Terrorism Court to court of ordinary jurisdiction was dismissed—Validity—For determining the issue, whether the offence was triable under the Anti-Terrorism Act, 1997 or not, nature of offence had to be seen in the light of the averments as to how the same had been committed along with the particular place of incident; and further that by that act a sense of fear and insecurity in the society had been created in the minds of the people at large or not—Petitioners/accused persons, in the present case, armed with deadly weapon made criminal assault on the Police picket, causing murder of Sub-Inspector of Police and injuring passerby, thereby committed offence of “terrorism” triable by Anti-Terrorism Court—Place of incident was a Police picket, which was normally to be established so as to ensure safety and security to the people of the area—“Action” i.e. manner of the offence, involved in the matter, was an attack upon established Police picket—Such action would lead to an alarming situation and impression upon the people that if Police Officials, and Police posts were not safe, then what impact would be upon general public—Such would show the worst situation of lawlessness—Under such circumstances, not only vicinity of that area, but public at large, would have serious effect of insecurity, lawlessness and uncertainty in their routine life—Present case was not one of private vendatta, but action of accused persons reflected that it was a deliberate and intentional act—Prima facie, there was sufficient material on the file to suggest that accused had resorted to indiscriminate firing at the Police party—Act of petitioners fell within the purview of Ss.6 & 7 of Anti-Terrorism Act, 1997—Interference with or disruption of the duty of the public servants involved or coercion or intimidation of or violence against public servant, was “serious” enough to attract the definition of “terrorism”—Contention that alleged weapon used during the incident was .30 bore pistol, which was not an automatic weapon, whereas the provisions of Anti-Terrorism Act 1997, attracted only when the weapon used was Kalashnikov, or other allied automatic, weapon, was misconceived, as S.2(g) of the Anti-Terrorism Act, 1997 clearly denoted that “firearm” would mean any or all type and gauges of handguns, rifles and shotgun, whether automatic, semi-automatic or bolt action; and would include all other firearms as defined in Arms Ordinance, 1965—Well reasoned order, in absence of any error could not be interfered with— Revision petition was dismissed, in circumstances.

 

Mati-u-Rehman v. Anti-Terrorism Court, Faisalabad 2008 MLD 840 ref.

 

Sh. Muhammad Suleman for Petitioners.

 

Muhammad Ikram Ullah Khan, Deputy Prosecutor-General with Hasnat, S.I. for the State.

 

Zafar Mehmood, brother of deceased in person.

 

ORDER

 

Through this revision petition under section 435 read with section 439, Cr.P.C., the petitioners have challenged the validity of order dated 02.12.2014 passed by the learned Judge, Anti-Terrorism Court No. I, Rawalpindi whereby an application moved by the petitioners under section 23 of Anti-Terrorism Act, 1997 for transfer of the case to the court of ordinary jurisdiction has been dismissed.

 

  1. The brief facts of the case are that on the statement of Tanvir Hussain Shah, ASI complainant-respondent No. 2, a case FIR No. 109 dated 20.02.2014 was registered at Police Station Saddar Beroni, Rawalpindi under sections 302, 324, 353, 186, 34 read with section 7 of Anti-Terrorism Act, 1997 against the petitioners for an occurrence which took place on 20.02.2014 at about 2.30 a.m. alleging therein that on the day of occurrence Mehmood Ahmed, S.I. (deceased) received an information that the accused persons involved in case FIR No. 95 of 2014 dated 14.2.2014 registered under sections 506(ii), 380, 452, 427, 148, 149, P.P.C. at Police Station, Saddar Beroni, Rawalpindi and case FIR No. 108 of 2014 registered under sections 324, 148, 149, P.P.C. at Police Station Saddar Beroni, Rawalpindi were coming in vehicle No.1878-CS double cabin from Kutchery. Tanvir Hussain Shah, ASI complainant and Mehmood Ahmad, S.I. (deceased) along with other police employees stopped the said vehicle at pointed place whereupon the petitioners and their co-accused after de-boarding, started indiscriminate firing with their respective weapons. The complainant attributed fire shots to the petitioners and their co-accused which hit on different parts of the body of Mehmood Ahmad, SI who succumbed to the injuries whereas one passerby namely Waheed Abbas also sustained fire shots and thereafter the petitioners and their co-accused fled away from the scene of occurrence.

 

  1. After usual investigation, challan against the accused was submitted in the court of learned Judge, Anti-Terrorism Court No. I, Rawalpindi. During the trial, the petitioners moved an application under section 23 of Anti-Terrorism Act, 1997 for transfer of case to the court of ordinary jurisdiction and vide order dated 02.12.2014 passed by the learned Judge, Anti-Terrorism Court, Rawalpindi, said application has been dismissed through the impugned order. Hence, this revision petition before this Court.

 

  1. In support of this petition it has been argued by the learned counsel for the petitioners that according, to prosecution’s own story, the alleged weapon used during the incident was .30 bore pistol, which is not an automatic weapon whereas the provisions of Anti-Terrorism Act attracts only when the weapon used is Kalashnikov or other allied automatic weapon; that although the police official was killed during the occurrence reported in FIR No. 109/2014 dated 20.02.2014 under sections 302, 324, 353, 166, 34, P.P.C. read with section 7 of ATA but the incident did not strike terrorism or create any sense of insecurity in the public at large as the deceased was not done to death during the performance of his official duty; that no motive has been alleged by the prosecution in the FIR; that Nawazish Ali, Sajid and Abid petitioners are real brothers and they have been involved while widening a wide net due to enmity/rivalry with the PW Waheed Abbas; that no act of terrorism can be drawn from the contents of the FIR. Thus, a Court constituted under the Anti-Terrorism Act, 1997 clearly lack jurisdiction to try the petitioners, therefore, this petition may be accepted and case of the petitioners may be transferred to the court of ordinary jurisdiction.

 

  1. On the other hand, learned Deputy Prosecutor General opposes this petition on the grounds that charge has been framed after taking into consideration of the material available on file and four prosecution witnesses have been examined; that from the contents of FIR and statements of the eye-witnesses recorded under section 161, Cr.P.C. and other material available on record, provisions of sections 6 and 7 of Anti-Terrorism Act, 1997 are fully attracted in the case in hand; hence, the learned Judge, Anti-Terrorism Court, Rawalpindi has rightly dismissed the application of the petitioners.

 

  1. Issue involved in this revision petition is jurisdiction of Special Court and application of sections 6 and 7 of the Act.

 

  1. Section 6 of Anti-Terrorism Act, 1997 which defines “terrorism” is reproduced as under:-

 

[Terrorism.-(I) In this Act, “terrorism” means the use or threat of action where:

 

(a) the action falls with the meaning of subsection (2), and

 

(b) 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 a foreign government or population or and international organization] or create a sense of fear or insecurity in society; or

 

(c) 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, media persons, business community or attacking the civilian, including damaging property by ransacking, looting, arson or by any other means, government officials, installations, security forces or law enforcement agencies].

 

[Provided that nothing herein contained shall apply to a democratic and religious rally or a peaceful demonstration in accordance with law.]

 

(2) An “action” shall fall within the meaning of subsection (1), it:

 

(a) involves the doing of anything that causes death;

 

(b) involves grievous violence against a person or grievous bodily injury or harm to a person;

 

(c) involves grievous damage to property, [including government premises, official installations, schools, hospitals, offices or any other public or private property including damaging property by ransacking, looting or arson or by any other means.];

 

(d) involves the doing of anything that is likely to cause death or endangers a person’s life;

 

(e) involves kidnapping for ransom, hostage-taking or hijacking;

 

[(ee) ……………………………

 

(f) ……………………………..

 

[(g) involves taking the law in own hand, award of any punishment by an organization, individual or group whatsoever, not recognized by the law, with a view to coerce, intimidate or terrorize public, individuals, groups, communities, government officials and institutions, including law enforcement agencies beyond the purview of the law of the land;]

 

(h) ……………………………..

 

(i) ……………………………..

 

(j) ……………………………..

 

(k) ……………………………..

 

(l) ……………………………..

 

(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,

 

(n) involves serious violence against a member of the police force, armed forces, civil armed forces, or a public servant.

 

[(o) ……………………………..

 

(p) ……………………………..

 

(3) The use or threat or use of any action falling within subsection (2), which involves the use of fire-arms, explosives or any other weapon, is terrorism, whether or not subsection (1)(c) is satisfied.

 

[(3-A) …………………………

 

(4) ……………………………..

 

(5) ……………………………..

 

(6) ……………………………..

 

(7) ……………………………..

 

(a) ……………………………..

 

(b) ……………………………..

 

  1. For determining the issue whether the offence is triable under the Anti-Terrorism Act or not nature of offence has to be seen in the light of the averments that how the same has been committed along with the particular place of incident and further that by that act a sense of fear and insecurity in the society has been created in the minds of the people at large or not. According to the prosecution case the petitioners while armed with deadly weapons made criminal assault on police picket at Adyala near Kalyal Morr, caused murder of Mehmood Ahmad, S.I. and injured one passerby namely Waheed Abbas, 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 act 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. In the case in 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.

 

  1. Admittedly, in present case offence was committed on police picket, 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 official and a passerby namely Waheed Abbas was also injured, 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 Mati-u-Rehman v. Anti-Terrorism Court, Faisalabad (2008 MLD 840), wherein it has been held as under:-

 

“We have straight away observed that according to the allegations leveled in the FIR 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 officials 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 attracted the provisions of section 6(2)(m)(n) of Act, 1997.”

 

In the case in hand, prima facie, there is sufficient material on the file to suggest that the accused had resorted to indiscriminate firing at the police party as a result of which Mehmood Ahmad, S.I. was done to death and one passerby had also received injuries. Factum of firing by petitioners at the police party had been brought on the file and as such act of petitioners falls within the purview of sections 6 and 7 of Anti¬-Terrorism Act, 1997. Section 6(2)(m) of Anti-Terrorism Act, involves serious coercion or intimidation of a public servant in order to force him to discharge or to refrain from discharging his lawful duties. The word ‘serious’ has been defined by section 2(w) of the said Act to mean “dangerous to life or property”. From the facts of the case it is clear that interference with or disruption of the duty of the public servants involved or coercion or intimidation of or violence against such public servants was “serious” enough to attract the definition of ‘terrorism’ contained in section 6 of the Anti-Terrorism Act as Mehmood Ahmad, S.I. who was on official duty was done to death and one passerby namely Waheed Abbas had also received injuries during the incident of attack by the petitioners at the police party. Even otherwise, we have straight away observed that according to the allegations leveled in the FIR the petitioner and his co-accused had launched an assault upon members of the police force so as to deter them from performing their official duties, if such allegations are accepted as correct at their face value then the actus reus attributed to the petitioners prima facie attracted the provisions of section 6(2)(m)(n) of Act, 1997.

 

  1. So far as the contention of the learned counsel for the petitioners that the alleged weapon used during the incident was .30 bore pistol, which is not an automatic weapon whereas the provisions of Anti-Terrorism Act attracts only when the weapon used is Kalashnikov or other allied automatic weapon, is concerned, the same being misconceived has no force as section 2(g) of the Act clearly denotes that “firearm” means any or all types and gauges of handguns, rifles and shotguns, whether automatic, semi-automatic or bolt action, and shall include all other fire-arms as defined in the Arms Ordinance, 1965.”

 

  1. For the foregoing reasons, we do not find any error in the impugned order, which is well reasoned and accordingly this revision petition is dismissed.

 

HBT/N-6/L                                                                                          Petition dismissed.