Section 6 Anti Terrorism Act (ATA), 1997

Section 6: Terrorism

2021 PCrLJ 90 QUETTA-HIGH-COURT-BALOCHISTAN

UBAIDULLAH VS State

497—Anti-Terrorism Act (XXVII of 1997), Ss. 11-F(2)(5) & 6—Proscribed organization, terrorism—Bail, grant of—Further inquiry—Allegation against the accused was that he was collecting donation from the people for proscribed organization but none from the locality from whom the donation was collected was associated as a witness—Maximum punishment provided under the relevant provision was not more than five years, as such the offence did not fall within the prohibitory clause of S. 497, Cr.P.C.—Grant of bail in offence not falling within the prohibition clause of S. 497, Cr.P.C. was a rule and refusal an exception—Accused was admitted to bail, in circumstances.

2021 PLD 94 QUETTA-HIGH-COURT-BALOCHISTAN

Malik MEHRULLAH KHAN VS MUHAMMAD HAYAT

6—Act of ‘terrorism’—Scope—Courts, for determining the issue whether a case is triable under the Anti-Terrorism Act, 1997 or not, are required to examine the FIR (First Information Report), the statements recorded under S.161, Cr.P.C., the material collected by the investigating agency and other documents available with the prosecution—Inclusion of surrounding circumstances, depicting the commission of the offence, prima facie permits taking into consideration the documents/material, came on to surface with regard to previous enmity or dispute.

2021 PLD 94 QUETTA-HIGH-COURT-BALOCHISTAN

Malik MEHRULLAH KHAN VS MUHAMMAD HAYAT

6—Act of ‘terrorism’—Scope—Terrorists operate on a level different from that on which ordinary criminals operate, their operations and tactics are different and the offence of terrorism is more connected with the object and design behind an action than with the action itself—Terrorism is not primarily directed against the actual victims themselves who are treated merely as ‘collateral damage’—Extent of the actual damage caused or injuries inflicted by the act is not the determinative factor in this regard—Ferocious action against neutrals that had no dogmatic, conceptual or religious aims is just an act of criminal delinquency, a crime, or simply an act of senselessness unrelated to “terrorism”.

2021 MLD 1305 LAHORE-HIGH-COURT-LAHORE

ABDUL RAUF alias KALA VS State

6—Penal Code (XLV of 1860), Ss. 302(b) 324 & 34—Qatl-i-amd, attempt to commit qatl-i-amd, common intention—Appreciation of evidence—Terrorism—Scope—Accused were charged for committing murder of four persons and injuring one person of complainant party—For determining the issue whether the offence fell within the realm of Anti-Terrorism Act or not, the nature of offence was to be seen in the light of mode of occurrence—In the present case, a specific motive resulting into occurrence had been alleged, which was private and of personalized nature and had no nexus with S.6 of Anti-Terrorism Act, 1997; it could not be said that the same fell within the ambit of Anti-Terrorism Act, 1997—Motive for the occurrence in case was personal enmity inter-se the parties, as such S.7 of Anti-Terrorism Act, 1997 did not attract—Convictions and sentences of the accused under Anti-Terrorism Act, 1997 were set-aside, in circumstances.

2021 YLR 851 KARACHI-HIGH-COURT-SINDH

ZOHAIB VS State

Ss. 302, 337-H(2) & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Qatl-i-amd, rash and negligent act, common intention, act of terrorism—Appreciation of evidence—Act of terrorism— Applicability— Scope—Accused and his co-accused were charged for committing murder of Police Constable—No terror or harassment to anyone was caused at the time of incident—Alleged incident was committed in odd hours of the night, nobody from public was attracted through which it could be deduced that the offence/action allegedly committed by the accused or it was designed or it had created sense of insecurity or fear in the mind of public at large—Deceased at the time of alleged incident had not disclosed that at which police station he was posted for which prosecution also failed to produce any reliable document showing that the deceased was even a Police Official bearing valid badge—Deceased was not in police uniform—Complainant, who was also a Police Officer, had not mentioned any thing in his FIR or deposed before the Trial Court that deceased was posted at a specific police station; therefore, was going to perform his lawful duties and was done away with by the culprits—Trial Court had wrongly taken cognizance and tried the case—Appeal against conviction was allowed, in circumstances.

2021 YLR 851 KARACHI-HIGH-COURT-SINDH

ZOHAIB VS State

Ss. 302, 337-H(2) & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Qatl-i-amd, rash and negligent act, common intention, act of terrorism—Appreciation of evidence—Benefit of doubt—Accused and his co-accused were charged for committing murder of a Police Constable—Accused was nominated in the FIR with role of causing fire shot injury to deceased, however, the fire shot made by him missed and did not prove to be fatal—Co-accused, who allegedly caused murder of the deceased, was killed in an encounter—Accused, against whom vicarious liability was alleged, could not be held responsible for causing murder of the deceased—Police had not establish said charge against the accused—Appeal against conviction was allowed, in circumstances.

2021 YLR 851 KARACHI-HIGH-COURT-SINDH

ZOHAIB VS State

Ss. 302, 337-H(2) & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Qatl-i-amd, rash and negligent act, common intention, act of terrorism—Appreciation of evidence—Discrepancies in the prosecution case—Scope—Accused and his co-accused were charged for committing murder of Police Constable—Record showed that the Medico-Legal Officer in his cross-examination had categorically stated that he did not know the name of Police Official who had handed over dead body to him and there was overwriting in police letter as well as post-mortem notes—Post-mortem notes showed that in the column of police station, the name of police station was mentioned which later was corrected—All such features showed that the offence was not committed in a manner as had been reported—Such a major discrepancy had created a lot of doubts into the veracity of prosecution evidence which would always go in favour of the accused—Appeal against conviction was allowed, in circumstances.

2021 YLR 851 KARACHI-HIGH-COURT-SINDH

ZOHAIB VS State

Ss. 302, 337-H(2) & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Qatl-i-amd, rash and negligent act, common intention, act of terrorism—Appreciation of evidence—Motive not proved—Scope—Accused and his co-accused were charged for committing murder of Police Constable—Prosecution had not established whether the deceased was victim of any enmity or otherwise—Motive was an essential piece of evidence, which always furnished support to the prosecution case as to involvement of the accused in the offence allegedly committed by him—Circumstances established that the prosecution had failed to prove its charge against the accused—Appeal against conviction was allowed, in circumstances.

2021 YLR 851 KARACHI-HIGH-COURT-SINDH

ZOHAIB VS State

Ss. 302, 337-H(2) & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Qatl-i-amd, rash and negligent act, common intention, act of terrorism—Appreciation of evidence—Recovery of crime empties from the place of incident— Reliance— Scope— Accused and co-accused were charged for committing murder of Police Constable—Record showed that the Investigating Officer had secured four empties from the scene of incident—Said empties were neither produced before the Trial Court nor were sent to the Forensic Science Laboratory/Ballistic Expert so as to establish the factum of fire shot made by one weapon or from different weapons—Said features germinated from the prosecution case themselves show that the prosecution had failed to prove its charge against the accused beyond reasonable doubt—Appeal against conviction was allowed, in circumstances.

2021 PCrLJ 612 KARACHI-HIGH-COURT-SINDH

Syed MUHAMMAD TEHSEEN VS State

Ss. 302(b) & 427—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Pakistan Arms Ordinance (XX of 1965), S. 13(d)—Explosive Substances Act (VI of 1908), Ss. 3 & 5—Qatl-i-amd at mosque/Imam Bargah act of terrorism—Appreciation of evidence—Triple murder causing fear, panic and terror in society—Complainant lodged FIR against accused persons for committing act of terrorism causing Qatl-i-amd at a mosque/Imam Bargah—Object, design and intent to attack mosque and detonate suicide bomb inside mosque was in order to create terror and insecurity in minds of public and in particular on sectarian grounds—Such was done in order to create fear and terror amongst a sect/community and even make them too afraid even to conjugate at their place of worship—Offence so charged fell squarely within purview of Anti-Terrorism Act, 1997—If accused had an individual grievance with a particular member of the sect then he would have murdered him alone at some other place or alone in mosque rather than targeting whole sect in mosque at prayer time where maximum number of local members of sect were gathered at one place with a suicide bomber whilst shouting anti-Sect slogans—High Court declined to interfere in conviction and sentence awarded by Trial Court—Appeal was dismissed in circumstances.

2021 PCrLJ 612 KARACHI-HIGH-COURT-SINDH

Syed MUHAMMAD TEHSEEN VS State

Ss. 302(b) & 427—Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7 & 25(4A)—Pakistan Arms Ordinance (XX of 1965), S. 13(d)—Explosive Substances Act (VI of 1908), Ss. 3 & 5—Qatl-i-amd at mosque/Imam Bargah, act of terrorism—Appreciation of evidence—Benefit of doubt—Complainant lodged FIR against accused persons for committing act of terrorism causing qatl-i-amd at a mosque/Imam Bargah—Case of accused was on a different footing to the case of co-accused—Accused was not arrested from the spot, he was not injured and no recovery was made from him and identification parade was already discarded—High Court declined to interfere in order of acquittal—Appeal was dismissed in circumstances.

2021 PCrLJN 65 KARACHI-HIGH-COURT-SINDH

ABDUL GHAFOOR VS State

Ss. 365-A, 343 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Kidnapping for ransom, wrongful confinement for three or more days, common intention, act of terrorism—Appreciation of evidence—Benefit of doubt—Accused were charged for kidnapping the son of complainant for ransom—Record showed that the complainant and his witnesses in their evidence had stated that the culprits demanded a handsome amount but abruptly agreed to an amount of Rs. 5,00,000—Allegedly, the ransom amount was paid to the culprits, and it was seen by the witnesses, who had concealed themselves—Complainant himself had contradicted his version of delivery of the ransom amount to the accused persons in his evidence to the stance taken by him in the FIR—Complainant had stated in the FIR that he had paid ransom amount of Rs. 5,10,000/- but at the time of identification parade, he identified one of the accused by disclosing that he was the one who demanded Rs. 5,00,000/- as ransom from him—Record transpired that the police had informed the complainant party about the arrest of the accused persons and then the rest of the process had taken place—Record did not speak about the source of information to the police, which urged the police to believe about the involvement of the co-accused persons with the commission of the crime—Record showed that one of the accused was maternal cousin of the alleged victim but his name had not been given in the FIR despite the fact that the FIR was lodged after release of the victim—Said accused in his statement recorded under S. 342, Cr.P.C. stated that he had enmity with complainant party over property, therefore, he had been falsely implicated in the present case—If statement of said accused was put in juxtaposition with the prosecution case, it had further thickened the clouds of doubt regarding the prosecution case—Prosecution could not establish its case during trial beyond the reasonable doubt—Appeal against conviction was allowed, in circumstances.

2021 PCrLJN 65 KARACHI-HIGH-COURT-SINDH

ABDUL GHAFOOR VS State

Ss. 365-A, 343 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Kidnapping for ransom, wrongful confinement for three or more days, common intention, act of terrorism—Appreciation of evidence—Benefit of doubt—Delay of about eight days in lodging the FIR—Effect—Accused were charged for kidnapping the son of complainant for ransom—Record showed that FIR was lodged by the complainant after eight days of the incident—No explanation was available for such a long delay in putting the wheel of the law in motion—Appeal against conviction was allowed, in circumstances.

2021 PCrLJN 65 KARACHI-HIGH-COURT-SINDH

ABDUL GHAFOOR VS State

Ss. 365-A, 343 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Qanun-e-Shahadat (10 of 1984), Art. 22—Kidnapping for ransom, wrongful confinement for three or more days, common intention, act of terrorism—Appreciation of evidence—Benefit of doubt—Joint identification parade—Effect—Magistrate, who conducted the identification parade of two suspected persons, had deposed that he arranged twenty dummies and two marginal witnesses for identification parade and directed the suspected persons to mingle in the row of dummies at a position of their choice—Memorandum produced by the Magistrate did not clarify the mode and style of identification and it appeared from the memo that both the witnesses were called at the same time to pick the real culprits—Suspected persons were neither asked to change their position nor it reflected from the record that a chance was given to them to change their position—Magistrate himself admitted during cross-examination that he did not ask the suspects to change their position—Record showed that only two accused/appellants were directed to be identified while the third one who was also present there was not placed for the test of identification amongst the row of dummies—Whole process of identification, in circumstances, became doubtful and the same could not be relied upon.

2021 PCrLJN 65 KARACHI-HIGH-COURT-SINDH

ABDUL GHAFOOR VS State

Ss. 365-A, 343 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Kidnapping for ransom, wrongful confinement for three or more days, common intention, act of terrorism—Appreciation of evidence—Benefit of doubt—Recovery of ransom amount from the accused—Reliance—Scope—Accused were charged for kidnapping the son of complainant for ransom—Alleged recovery of ransom amount from appellants was effected but the memos of recovery did not show the numbers of currency notes to substantiate the recovery—Besides, non-production of the alleged recovered amount had also caused a serious dent in the prosecution case.

2021 PCrLJN 65 KARACHI-HIGH-COURT-SINDH

ABDUL GHAFOOR VS State

Ss. 365-A, 343 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Kidnapping for ransom, wrongful confinement for three or more days, common intention, act of terrorism—Appreciation of evidence—Benefit of doubt—Call data of cell phone was not on record—Effect—Accused were charged for kidnapping the son of complainant for ransom—Prosecution case was that the appellants had called at the mobile phone of the complainant regarding the ransom amount—No data of alleged mobile phone number had been collected during the investigation in order to ascertain as to whether the complainant received calls from such phone number—Appeal against conviction was allowed, in circumstances.

2021 PCrLJN 50 KARACHI-HIGH-COURT-SINDH

SHARAFAT JATOI VS State

Ss. 365-A, 324, 353 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Kidnapping or abducting for extorting property, valuable security, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention—“Terrorism”—“Act of terrorism”—Scope—Accused persons were alleged to have abducted the son and grandson of complainant and engaged in an encounter with the police on being stopped—First Information Report was lodged with a delay of two days—Neither alleged abductees nor the accused persons had received any bullet injury—Complainant had not deposed that the accused persons had demanded ransom—Investigating Officer had fired 9/10 bullets but he had not collected empties from the place of incident—Motorway police had claimed that they had arrested the accused persons—Trial Court had acquitted the accused persons from the charge of encounter—Prosecution had failed to prove the guilt of accused persons beyond reasonable doubt—Appeal was allowed and the accused persons were acquitted of the charge.

2021 PCrLJN 1 KARACHI-HIGH-COURT-SINDH

ABU BAKAR alias ABU VS State

Ss. 4 & 5—Sindh Arms Act (V of 2013), S. 23(1)(a)—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Criminal Procedure Code (V of 1898), S. 103—Recovery of explosive substance and firearms, act of terrorism— Appreciation of evidence—Benefit of doubt—Recovery—Non-association of private person—Scope—Prosecution case was that a hand-grenade and a pistol .30-bore with loaded magazine having six live rounds were recovered from the possession of accused, who failed to produce any valid licence of the recovered items—Record showed the arrival entry No. 10 dated 7.4.2019 at 1800 hours, which was made at police station, did not show the names of police official/subordinate staff including mashirs of the case—Said aspect of the case created serious doubt in the prosecution story—Accused, despite having weapon and hand-grenade, was arrested easily without causing any resistance—Alleged incident took place on 7.4.2019 at about 4:30 p.m. and place of occurrence was thickly populated area, which was surrounded by shops, houses and people were available there, despite availability of people, complainant failed to obtain the services of any independent person to witness the event—Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt, admittedly alleged hand grenade was without detonator, which meant that the same was useless and harmless, therefore, S. 7 of the Anti-Terrorism Act, 1997, had wrongly been applied in the case just to create jurisdiction of Anti-Terrorism Court—Nothing on record that the accused remained indulged in such type of activities in the past—Appeal against conviction was allowed, in circumstances.

2021 PCrLJN 1 KARACHI-HIGH-COURT-SINDH

ABU BAKAR alias ABU VS State

Ss. 4 & 5—Sindh Arms Act (V of 2013), S. 23(1)(a)—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Recovery of explosive substance and firearms, act of terrorism—Appreciation of evidence—Contradictions in the statements of witnesses—Scope—Prosecution case was that a hand-grenade and a pistol .30-bore with loaded magazine having six live rounds were recovered from the possession of accused, who failed to produce any valid licence of the recovered items—Memo of arrest and recovery showed that the hand-grenade allegedly recovered from the accused was of brown colour, while contradicting that fact, Investigating Officer in his examination-in-chief had deposed that the alleged recovered hand grenade was of green colour—Not only that, clearance certificate issued by Bomb Disposal Unit and inspection report of hand-grenade showed that the alleged hand grenade was of green colour—Memo of arrest and recovery showing the description of alleged hand-grenade as “ARGES HDGR 69” embossed on it, but clearance certificate issued by the Bomb Disposal Unit and inspection report of hand-grenade showed different descriptions of said hand-grenade—Memo of arrest and recovery showed one .30 bore pistol was with embossed words allegedly recovered from the accused whereas, Forensic Science Laboratory Report showed incomplete description of the pistol, which made the prosecution story doubtful—False implication of the accused in cases could not be ruled out—Appeal against conviction was allowed, in circumstances.

2021 PCrLJN 1 KARACHI-HIGH-COURT-SINDH

ABU BAKAR alias ABU VS State

Ss. 4 & 5—Sindh Arms Act (V of 2013), S. 23(1)(a)—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Recovery of explosive substance and firearms, act of terrorism—Appreciation of evidence—Delay in sending the recovered items for analysis—Effect—Prosecution case was that a hand-grenade and a pistol .30-bore with loaded magazine having six live rounds were recovered from the possession of accused, who failed to produce any valid licence of the recovered items—Pistol and hand-grenade were allegedly recovered from the accused but said pistol was received by the forensic department for examination after the delay of about two (2) days and hand-grenade was inspected by the Bomb Disposal Unit after the delay of about twenty two (22) hours, for which no satisfactory explanation had been furnished—Alleged weapon and hand grenade were retained by whom during the intervening period had also not been explained by the prosecution—Prosecution had failed to prove its case against the accused beyond any shadow of doubt, in circumstances—Appeal against conviction was allowed, in circumstances.

2021 MLD 40 ISLAMABAD

FARRUKH IMTIAZ KHOKHAR VS GOVERNMENT OF PAKISTAN through Secretary Ministry of Interior, Islamabad

Ss. 6, 7, 11-B, 11-D, 11-EE & Fourth Sched.—Member of proscribed organization—Proscription of a person—Pre-conditions—Appellant was aggrieved of placing his name in list maintained under Fourth Sched. to Anti-Terrorism Act, 1997—Validity—For the purpose of proscription of a person, the State was to demonstrate that the person was involved in cases under Ss. 6 & 7 of Anti-Terrorism Act, 1997, or was an office bearer, activist or associate with an organization notified in terms of S. 11-B of Anti-Terrorism Act, 1997 for proscription of organization by Federal Government or was member of such organization which was under observation in terms of S. 11-D of Anti-Terrorism Act, 1997, or he was involved in terrorism or sectarianism—Authorities failed to place on record any material to show that appellant was a member of proscribed organization or involved in terrorist funding—Authorities failed to justify any ground which made the basis of ex-parte notification for placing name of appellant under S. 11-EE of Anti-Terrorism Act, 1997 in Fourth Sched. attached thereto—High Court directed the authorities to remove name of appellant from the list and set aside the notification issued in such regard—Appeal was allowed in circumstances.

2021 PLD 255 ISLAMABAD

NAVEED HAYAT MALIK VS State

S.497—Anti-Terrorism Act (XXVII of 1997), Ss.6(a)(b), 7 & 21-D—Terrorism—Bail, grant of—Discretion, exercise of—Petitioner was arrested for assaulting Chief Justice of Islamabad High Court, detaining him in his chamber and obstructing him from performing his functions—Validity—Petitioner was in judicial custody and investigation to his extent stood concluded—Petitioner was senior member of bar and he was a candidate for election as President, Islamabad High Court Bar Association—Nothing was to be recovered from petitioner and his continuous incarceration would not serve any purpose—Bail was a discretionary matter and such discretion was to be exercised with caution and in accordance with law—Bail was allowed, in circumstances.

2021 PLD 255 ISLAMABAD

NAVEED HAYAT MALIK VS State

Ss. 2, 6(1) & 6(2)—Penal Code (XLV of 1860), S.21—“Public servant”—Scope—Judge is included in Anti-Terrorism Act, 1997, as “public servant”—Coercing or intimidating a Judge from performing duties tantamount to an “act of terrorism” under Ss.6(1) & 6(2) of Anti-Terrorism Act, 1997. ?

2021 MLD 163 Gilgit-Baltistan Chief Court

SAJJAD HUSSAIN VS State

Ss. 324, 114 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7 & 21-H—Qanun-e-Shahadat (10 of 1984), Art. 38—Criminal Procedure Code (V of 1898), S. 265-K—Attempt to commit qatl-i-amd, abettor present when offence is committed, common intention, terrorism—Confession to police officer not to be proved—Appreciation of evidence—Accused assailed the dismissal of his application filed under S.265-K, Cr.P.C.—Accused was not directly charged in the FIR rather the FIR was lodged against unknown persons—No incriminating article was recovered from the possession of accused—Sole evidence against the accused was his confessional statement recorded under S.21-H of Anti Terrorism Act, 1997 and that too by the Superintendent of Police—Accused had retracted from the confessional statement and it had no evidentiary value as any confession made before the police was not admissible in evidence unless corroborated by other strong circumstantial evidence, which was lacking in the case—Role of accused was quite similar with the role of co-accused persons who had already been acquitted by the Trial Court, therefore, the accused was also entitled to be acquitted—Revision petition was allowed and the accused was acquitted of the charges, in circumstances.

2021 YLRN 57 Gilgit-Baltistan Chief Court

NOOR AZAM VS State

Ss. 302, 367-A, 337, 201, 404 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Qatl-i-amd, kidnapping for ransom, causing shajjah, causing disappearance of evidence of offence, or giving false information to screen offender, dishonest misappropriation of property possessed by deceased person at the time of death, common intention, act of terrorism—Appreciation of evidence—Sentence, reduction in—Accused were charged for committing sodomy and murder of son of complainant after kidnapping him for ransom—None was nominated by the complainant and later on when the father of deceased gathered some information, he raised his finger towards the accused—Said accused were later on arrested and when investigated, they confessed their guilt before the police—Investigating Officer recorded the statements of witnesses of last seen as the deceased was seen alive in the company of the accused and was never seen again alive—Statements of father of the deceased and witnesses were not challenged by the defence—Said witnesses were natural witnesses of the events and defence had not been able to point out any legal infirmity to reap any benefit in favour of the accused—Father of the deceased appeared before the trial court and got recorded his statement—No suggestion was put to that witness for false implication of the accused in the case after the occurrence—Post-mortem report was in line with the other prosecution evidence and lent full support to the case of prosecution—Version given by witnesses at the very outset was consistent, straight forward, which was corroborated by medical evidence, motive and recoveries—Prosecution witnesses had no rancour, enmity, ill will or motive to falsely implicate the accused in crime of heinous nature—Evidence of prosecution was worthy of credence and had rightly been believed by the Trial Court—Case of prosecution was based on circumstantial evidence, there was no direct evidence on record regarding sodomy and subsequent murder—Sentence of death was converted by High Court to life imprisonment, while maintaining the conviction and appeal was disposed of with said modification in sentence.

2020 SCMR 2096 SUPREME-COURT

State VS AHMAD OMER SHAIKH

Ss. 302(b), 120-A, 362 & 365-A—Anti-Terrorism Act (XXVII of 1997), Ss. 6(a) & 7—Constitution of Pakistan, Art. 185(3)—Kidnapping and murder of a foreign journalist, criminal conspiracy—Trial Court convicted the accused and co-accused persons under Ss. 120-A, 365-A & 302, P.P.C., read with Ss. 6(a) & 7 of the Anti-Terrorism Act, 1997—Accused was sentenced to death, whereas the co-accused persons were sentenced to imprisonment for life with fine—High Court altered conviction of accused to that under S. 362, P.P.C. and sentenced him to 7-years rigorous imprisonment, whereas the co-accused persons were acquitted of the charges—Plea on behalf of prosecution that with a web of circumstances, inescapably implicating the accused and co-accused persons with the commission of the crime, there was hardly an occasion to acquit them from the charge, particularly when the High Court itself maintained conviction and sentence on the charge of abduction qua the accused; that various incriminating pieces of evidence, both physical as well as scientific, constituted an uninterrupted/ continuous chain that inexorably linked the deceased with the accused and co-accused persons; that forensic evidence, generated without any possibility of human interference, conclusively proved the homicidal death of deceased subsequent to his abduction; that since charge of abduction having nexus with terrorism was upheld by the High Court, the acquittal from the coordinate charges was not a possible option through any mode of appraisal of evidence; that the prosecution successfully proved the conspiracy hatched to induce/ensnare the deceased to travel to another city, where he was abducted and murdered; that the relevant witnesses had identified the accused; that the source generating the emails was traced through forensic means by associating internet service providers; that recovery of digital apparatus i.e. laptop, scanner, polaroid as well as zoom cameras, used by the accused and co-accused persons to communicate with the deceased’s family, established a continuous chain of circumstances pointing upon their culpability, which was additionally reinforced by the confessional statements of the two co-accused persons, leaving no space for the High Court to entertain any hypothesis other than guilt of accused and co-accused persons—Supreme Court granted leave to appeal, inter alia, to reappraise the evidence so as to consider the said contentions, and directed that till the next date of hearing, the accused and co-accused persons shall not be released from prison.

2020 SCMR 2096 SUPREME-COURT

State VS AHMAD OMER SHAIKH

2020 SCMR 1422 SUPREME-COURT

SADIQ ULLAH VS State

Ss. 6 & 23—Penal Code (XLV of 1860), S. 302(b)—Transfer of case from Anti-Terrorism Court to court of ordinary jurisdiction—“Terrorism”—Scope—Personal dispute—Female medical student allegedly murdered over refusal of marriage—Held, that there were no benign murders nor the aftermaths of violence endured by its victims and anguish suffered by their families could be quantified in an empirical gauge—Magnitude of every murder and concomitant loss impacted the surroundings differently, which inevitably were gripped by fear and shock, however, the intensity of brutality and loss of life, consequent thereupon, by themselves did not bring a violent act within the contemplated purview of “terrorism”—“Terrorism” was a distinct phenomena achieved through violent means and ends other than settlement of personal scores—While the tragedy in the present case that befell upon the deceased girl evolved profound shock and deserved to be appropriately visited on the strength of evidence, so as to ensure justice to her family, it nonetheless, could not be equated with “terrorism”—Case was withdrawn from the Anti-Terrorism Court and entrusted to the concerned Sessions Judge, who was directed to conclude the trial in jail premises by recording evidence of the remaining witnesses—Petition for leave to appeal was converted into appeal and allowed accordingly.

2020 SCMR 116 SUPREME-COURT

ABDUL HAQ VS State

6(2)(e)—Penal Code (XLV of 1860), S. 365-A—Kidnapping or abduction for ransom—Reappraisal of evidence—Benefit of doubt—Alleged abductee returned home on his own with some marks of violence on his wrist and ankle joints, and disclosed to the Investigating Officer that he was let off 3/4 days before his return—Abductee, in his statement before a Magistrate, did not mention the date of his return—Prosecution’s reliance on the injuries endured by the abductee, allegedly during his captivity faded into insignificance, particularly in the absence of duration thereof in the medico legal certificate—Complainant, who was the real brother of the abductee, appeared in the witness box but did not point his finger on the accused persons—Complainant being the real brother of the abductee, was expected to bring on record the information subsequently shared with him by the abductee—Abductee massively improved upon his previous statements and was duly confronted with his deviations—Abductee also admitted his acquaintance with one of the accused persons, his co-villager, while evasively avoiding a query regarding pendency of different civil and criminal cases instituted by said accused persons against the abductee as well as the complainant—Similarly, in his examination-in-chief, the abductee did not name another accused person as being one of the culprits; while denying litigation between the two families, he however, admitted that both the accused persons in question were real brothers inter se, and lived in the same neighbourhood—No importance could be attached to the identification parade, conducted under magisterial supervision in such backdrop—In the totality of circumstances, the prosecution case was not free from doubt—Convictions of accused persons and life time sentences awarded consequent thereupon could not be sustained merely on the basis of some superficial healed wounds, genesis whereof was also shrouded in mystery of time and space—Petitions for leave to appeal, were converted into appeals and allowed and accused persons were acquitted of the charge.

2020 SCMR 78 SUPREME-COURT

FAROOQ AHMED VS State

Ss. 6 & 7—Act of terrorism — Murder committed due to personal enmity—Provisions of Ss. 6 & 7 of the Anti-Terrorism Act, 1997 would not be attracted if the murder was committed to avenge private enmity. ?

2020 SCMR 78 SUPREME-COURT

FAROOQ AHMED VS State

Ss. 6(1)(b) & 7—Penal Code (XLV of 1860), S. 302(b)—Act of terrorism, qatl-i-amd—Reappraisal of evidence—Murder committed due to previous enmity—Provisions of Ss. 6 & 7 of the Anti-Terrorism Act, 1997, not attracted in a case of personal enmity—Held, that at a point between the Sessions Court and its canteen the accused along with co-accused persons fired at the deceased and killed him—Alleged motive for the crime was that the deceased had murdered a brother of one of the co-accused—Motive of the crime was thus previous enmity—Accused was arrested on the spot and the weapon of offence was also recovered from him—Nothing was available on the record to show that the accused wanted to create fear or insecurity or terror in or around the Court premises—After shooting the deceased the accused did not offer resistance and was arrested by the police along with the weapon of offence—Since the accused had committed the offence to avenge the murder committed by the deceased, his action would not fall under the ambit of S. 6 of the Anti-Terrorism Act, 1997—Conviction of accused under S. 7 of the Anti-Terrorism Act, 1997 was set aside, in circumstances.

2020 PLD 61 SUPREME-COURT

GHULAM HUSSAIN VS State

6 & Third Sched. Entry No.4—Anti-Terrorism Court, jurisdiction of—Scope—Heinous offences specified under Entry No.4 to Third Sched. of the Anti-Terrorism Act, 1997, that did not constitute terrorism—Such heinous offences did not per se constitute the offence of terrorism but were to be tried by an Anti-Terrorism Court because of their inclusion in the Third Sched.—In such cases an Anti-Terrorism Court could punish the person committing such specified heinous offences only for commission of those offences and not for committing terrorism because such offences did not constitute terrorism—Supreme Court observed that definition of ‘terrorism’ contained in S. 6 of the Anti-Terrorism Act, 1997 (‘the Act’) as it stood at present was too wide and the same included many actions, designs and purposes which had no nexus with the generally recognized concept of what terrorism was; that including some other heinous offences in the Preamble and the Third Sched. to that Act for trial of such offences by an Anti-Terrorism Court when such other offences did not qualify to be included in the definition of “terrorism” put an extra and unnecessary burden on such courts and caused delay in trial of actual cases of terrorism; that the Parliament may consider substituting the present definition of ‘terrorism’ by a more succinct definition bringing it in line with the international perspectives of that offence and focusing on violent activities aimed at achieving political, ideological or religious objectives and that the Parliament may also consider suitably amending the Preamble to the Act and removing all those offences from the Third Sched. to the Act which offences had no nexus with the offence of terrorism.

2020 PLD 61 SUPREME-COURT

GHULAM HUSSAIN VS State

6(2)—“Terrorism”—Offence committed due to personal enmity or vendetta—Actions specified in subsection (2) of S.6 of the Anti-Terrorism Act, 1997 did not qualify to be labeled or characterized as terrorism if such actions were taken in furtherance of personal enmity or private vendetta.

2020 PLD 61 SUPREME-COURT

GHULAM HUSSAIN VS State

6(3)—“Terrorism”—Section 6(3) of the Anti-Terrorism Act, 1997—Scope—Subsection (3) of S.6 of the Act, provided that “The use or threat of use of any action falling within subsection (2) which involves the use of firearms, explosive or any other weapon is “terrorism”, whether or not subsection (1)(c) is satisfied” which meant that if for commission of the actions mentioned in subsection (2) of S.6, a firearm, an explosive substance or any other weapon was actually used or a threat regarding use of the same was extended then all such actions were to constitute the offence of terrorism even if the other requirements of cl.(c) of subsection (1) of S. 6 were not satisfied or fulfilled—Provisions of S.6(3) of the Act were quite problematic as they did not piece well with the remaining provisions of S. 6 as far as the matter of defining “terrorism” was concerned—If provisions of subsection (3) of S.6 of the Act, as they were worded, were to be given effect then the distinction between the peculiar offence of terrorism and most of the run of the mill offences committed in the society in routine would be obliterated—Supreme Court observed that the legislature may like to have another look at the provisions of S.6(3) of the Act and to consider deleting or suitably amending the same so as to bring them in harmony with the remaining provisions of the Act.

2020 PLD 61 SUPREME-COURT

GHULAM HUSSAIN VS State

6—“Terrorism”—Historical account of different acts, events, episodes and phenomena that have from time to time been perceived or understood in different parts of the world to be “terrorism”, provided. ?

2020 PLD 61 SUPREME-COURT

GHULAM HUSSAIN VS State

Ss. 6 & 7(e) & Third Sched. Entry No.4—Penal Code (XLV of 1860), S. 365-A—Explosive Substances Act (VI of 1908), Ss. 4(b), 5 & 6—Terrorism, kidnapping or abduction for ransom, possessing explosives—Offences mentioned under Entry No. 4 to Third Sched. of the Anti-Terrorism Act, 1997—Conviction for such offences under the Anti-Terrorism Act, 1997—Scope—Offence of abduction or kidnapping for ransom under S.365-A, P.P.C. was included in Entry No. 4 of the Third Sched. to the Anti-Terrorism Act, 1997 and kidnapping for ransom was also one of the actions specified in S.7(e) of the Anti-Terrorism Act, 1997—Abduction or kidnapping for ransom was a heinous offence but the scheme of the Anti-Terrorism Act, 1997 showed that an ordinary case of abduction or kidnapping for ransom under S.365-A, P.P.C. was merely triable by an Anti-Terrorism Court but if kidnapping for ransom was committed with the design or purpose mentioned in cl. (b) or cl. (c) of subsection (1) of S.6 of the Anti-Terrorism Act, 1997 then such offence amounted to terrorism attracting S.7(e) of that Act—In the former case the convicted person was to be convicted and sentenced only for the offence under S. 365-A, P.P.C. whereas in the latter case the convicted person was to be convicted both for the offence under S.365-A, P.P.C. as well as for the offence under S.7(e) of the Anti-Terrorism Act, 1997—Same rule may also be applied to the other offences mentioned in Entry No. 4 of the Third Sched. to the Act pertaining to “Use of firearms or explosives by any device, including bomb blast in a mosque, imambargah, church, temple or any other place of worship, whether or not any hurt or damage is caused thereby”, “Firing or use of explosive by any device, including bomb blast in the court premises”, “Hurt caused by corrosive substance or attempt to cause hurt by means of a corrosive substance” and “Unlawful possession of an explosive substance or abetment for such an offence under the Explosive Substances Act, 1908”—Such distinction between cases of terrorism and other heinous offences by itself explained and recognizes that all heinous offences, howsoever serious, grave, brutal, gruesome, macabre or shocking, did not ipso facto constitute terrorism which was a species apart.

2020 PLD 61 SUPREME-COURT

GHULAM HUSSAIN VS State

Ss. 6(1) & 6(2)—“Terrorism”—Acts constituting terrorism in terms of S.6 of the Anti-Terrorism Act, 1997 (‘the Act’)—Scope—‘Actus reus’ and ‘mens rea’ for terrorism—Scope—For an action or threat of action to be accepted as terrorism within the meanings of S.6 of the Anti-Terrorism Act, 1997 the action must fall in subsection (2) of S.6 of the said Act and the use or threat of such action must be designed to achieve any of the objectives specified in cl. (b) of subsection (1) of S.6 of Act or the use or threat of such action must be to achieve any of the purposes mentioned in cl. (c) of subsection (1) of S.6 of that Act—Requirements that needed to be satisfied for invoking cl.(c) of subsection (1) of S.6 were that the use or threat of action should be for “the purpose of advancing areligious, sectarian or ethnic cause” or for the purpose of”intimidating and terrorizing the public, social sectors, media persons, business community” or for the purpose of “attacking the civilians, including damaging property by ransacking, looting, arson, or by any other means, government officials, installations, security forces or law enforcement agencies”—Clause (b) of subsection (1) of S.6 specified the ‘design’ and cl.(c) of subsection (1) of S.6 earmarked the ‘purpose’ which should be the motivation for the act and the actus reus had been clearly mentioned in subsection (2) of S.6—Only when the actus reus specified in subsection (2) of S.6 was accompanied by the requisite mens rea provided for in cl.(b) or cl.(c) of subsection (1) of S.6 that an action could be termed as ‘terrorism’—Thus, it was not the fear or insecurity actually created or intended to be created or likely to be created which would determine whether the action qualified to be termed as terrorism or not but it was the intent and motivation behind the action which would be determinative of the issue irrespective of the fact whether any fear and insecurity was actually created or not—Any action constituting an offence, howsoever grave, shocking, brutal, gruesome or horrifying, did not qualify to be termed as terrorism if it was not committed with the design or purpose specified or mentioned in cls. (b) or cl.(c) of subsection (1) of S.6 of the Act—Action could be termed as terrorism if the use or threat of that action was designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect, etc. or if such action was designed to create a sense of fear or insecurity in the society or the use or threat was made for the purpose of advancing a religious, sectarian or ethnic cause, etc.—Creating fear or insecurity in the society was not by itself terrorism unless the motive itself was to create fear or insecurity in the society and not when fear or insecurity was just a by product, a fallout or an unintended consequence of a private crime—Mere shock, horror, dread or disgust created or likely to be created in the society did not transform a private crime into “terrorism”—“Terrorism” was a totally different concept which denoted commission of a crime with the design or purpose of destabilizing the government, disturbing the society or hurting a section of the society with a view to achieve objectives which were essentially political, ideological or religious—Violent activity against civilians that had no political, ideological or religious aims was just an act of criminal delinquency, a felony, or simply an act of insanity unrelated to “terrorism”.

2020 PLD 427 SUPREME-COURT

ALI GOHAR VS PERVAIZ AHMED

Ss. 6 & 23—Penal Code (XLV of 1860), S. 302(b)—Triple murder over a private dispute relating to chiefdom of a tribe—Act of terrorism—Scope—Present case related to rivalry over the chiefdom of a tribe, and thus was essentially a private dispute between two families within a tribe—Admittedly the accused side and complainant party were closely related to each other through marriage—No doubt the facts recorded in FIR depicted a shocking, brutal, and gruesome crime leading to a triple murder case, but the very design and purpose leading to the crime being a private dispute relating to tribal ascendancy would result in keeping the same outside the scope of the term “terrorism” within the contemplation of the Anti-Terrorism Act, 1997—Anti-Terrorism Court had rightly transferred the case to an ordinary criminal court—Petition for leave to appeal was converted into an appeal and allowed accordingly.

2020 PLD 427 SUPREME-COURT

ALI GOHAR VS PERVAIZ AHMED

6—“Act of terrorism”—Scope—No matter how grave, shocking, brutal, gruesome or horrifying the offence, it would not fall within the scope of terrorism, if it was not committed with the design or purpose specified or mentioned in cl. (b) or (c) of subsection (1) of S.6 of the Anti-Terrorism Act, 1997 (‘the Act’)—Even if an offence fell squarely within the scope specified in subsection (2) of S.6 of the Act, it would not constitute the offence of terrorism, if the same was in furtherance of a private dispute or vendetta.

2020 YLR 1241 QUETTA-HIGH-COURT-BALOCHISTAN

MOHIBULLAH VS State

Ss. 302, 324 & 353—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, act of terrorism—Public servant not in official uniform—Accused was alleged to have murdered one of the levies officials when he was trying to arrest the accused on account of engagement in an altercation with another group—Validity—Act of accused was not committed with design or purpose specified in clause (b) or (c) of subsection (1) of S.6, Anti-Terrorism Act, 1997—Such act did not fall within the ambit of “terrorism” because only the deceased was targeted who was not wearing official uniform—None of the other levies officials had received any injury and the deceased had received only one fireshot injury on his person—Conviction of accused under S.7, Anti-Terrorism Act, 1997 recorded by Trial Court was set aside and he was acquitted of the charge.

2020 PCrLJ 1228 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ASIF VS SPECIAL JUDGE, ANTI-TERRORISM COURT

6—“Act of terrorism”—Prerequisites—Only that action is to be accepted as terrorism which action falls within purview of S. 6(2) of Anti-Terrorism Act, 1997—Such action which is committed with a ‘design’ or ‘purpose’ specified in S. 6(1)(b) or (c) of Anti-Terrorism Act, 1997 irrespective of gravity of an offence, shocking nature of violence committed or mere fear and insecurity generated or likely to be generated by commission of a brutal, gruesome or heinous act are not to be treated as yardsticks for determining whether action is labeled as ‘terrorism’ or not.

2020 PCrLJ 1228 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ASIF VS SPECIAL JUDGE, ANTI-TERRORISM COURT

Ss. 6(1)(b)(c), 7 & 23—Penal Code (XLV of 1860), Ss. 302, 324 & 427—Act of terrorism—Jurisdiction of special court—Transfer of case—Complainant lodged FIR against accused persons for causing qatl-i-amd, attempt to qatl-i-amd and causing loss to property—Accused persons were aggrieved of order passed by Anti-terrorism court whereby their application for transfer of case to court of ordinary jurisdiction was dismissed—Validity—Motive for alleged offences was nothing but personal enmity and private vendetta—Motivation on part of accused persons was not to overawe or intimidate government, etc., or to destabilize society at large or to advance any sectarian cause, etc.—Intention of accused persons had not depicted or manifested any ‘design’ or ‘purpose’ as contemplated by S. 6(1)(b) or (c) of Anti-Terrorism Act, 1997—Actus reus attributed was not accompanied by necessary mens rea so as to brand actions as “terrorism” triable exclusively by a special court constituted under Anti-Terrorism Act, 1997—High Court set aside order passed by Anti-terrorism Court as same was without lawful authority and of no legal effect—High Court accepted application filed by accused persons under S. 23 of Anti-Terrorism Act, 1997 and declared their case to be triable by court of ordinary jurisdiction—Constitutional petition was allowed accordingly.

2020 PCrLJ 807 LAHORE-HIGH-COURT-LAHORE

State VS JUDGE ANTI-TERRORISM COURT, FAISALABAD

6—“Terrorism”—Murderous assault on the police in order to save oneself from arrest—Scope—Question requiring determination by the court was whether the alleged act of the accused and his co-accused of launching murderous assault on the police party, who had intercepted and recovered narcotic substance from him, was accompanied by a “design” or “purpose” within the ambit of subsection (1)(b) & (c) of S. 6 of the Anti-Terrorism Act, 1997 in order to attract any of the categories specified in subsection (2) thereof or not—Allegation was serious one but it was not accompanied by the design of creating the sense of fear and terrorism—Theme for insurgence of the provisions was specifically mentioned as an act designed to coerce, intimidate or overawe the government or the police or section of the public to create the sense of insecurity, fear and panic in the society—Alleged act of the accused was the result of his attempt to save himself from the arrest, which did not fall within the categories specified under subsection (2) of S. 6 of the Anti-Terrorism Act, 1997—Allegations leveled against the accused did not attract the jurisdiction of Anti-Terrorism Court—Impugned order did not suffer from any illegality, perversity or jurisdictional defect warranting interference by the High Court—Revision petition was dismissed in limine.

2020 PCrLJ 714 LAHORE-HIGH-COURT-LAHORE

ABDUL RASHEED alias SOMI VS State

6—“Terrorism”—Scope—Terrorists operate on a level different from that on which ordinary criminals operate, their operations and tactics are different and the offence of terrorism is more concerned with the object and design behind an action than with the action itself—Action taken, in order to qualify as “terrorism”, must be designed to accomplish a larger objective and primarily the act must not be directed against the actual victims themselves who are treated merely as ‘collateral damage’—Extent of the actual damage caused or injuries inflicted by the act is not the determinative factor in this regard—Ferocious action against neutrals that has no dogmatic, conceptual or religious aims is just an act of criminal delinquency, a crime, or simply an act of senselessness unrelated to terrorism.

2020 PCrLJ 714 LAHORE-HIGH-COURT-LAHORE

ABDUL RASHEED alias SOMI VS State

Ss. 23 & 6—“Terrorism”—Power to transfer cases to regular courts—Personal enmity—Scope—Old feud between the parties has always been considered as one of the circumstances to bring a case out of the scope of “terrorism” because normally in such like matters the prime object is always to settle personal score rather than creating a sense of terrorism.

2020 PCrLJ 714 LAHORE-HIGH-COURT-LAHORE

ABDUL RASHEED alias SOMI VS State

Ss. 23 & 6—“Terrorism”—Power to transfer case to regular court—Material to be considered—Scope—Court, in order to determine whether a case is triable under the Anti-Terrorism Act, 1997 or not, is required to examine the FIR, the statements recorded under S. 161, Cr.P.C., the material collected by the investigating agency and other documents available with the prosecution—Inclusion of surrounding circumstances, depicting the commission of the offence, prima facie permits taking into consideration the documents/material that comes onto surface with regard to the previous enmity or the dispute.

2020 PCrLJ 714 LAHORE-HIGH-COURT-LAHORE

ABDUL RASHEED alias SOMI VS State

Ss. 23 & 6—“Terrorism”—Power to transfer cases to regular court—Enmity between the two groups—Absence of mens rea—Scope—Petitioner assailed order passed by Judge Anti-Terrorism Court whereby he had dismissed the application under S. 23, Anti-Terrorism Act, 1997 for transfer of case to the court of ordinary jurisdiction—Prosecution case was that an altercation had taken place between two groups over the dispute pertaining to seating of passengers from the bus stand which resulted in exchange of fires with each other resulting into death of three persons and injuries to others—Evidentiary material collected during investigation indicated that the occurrence had takenplace in consequence of personal enmity as there existed a long history of litigation between the parties on the issuance of license of a particular bus stand and the said litigation was pending before the High Court till date, which clearly reflected existence of personal enmity between the two groups—Prime object of the parties was to settle personal score rather than to create a sense of “terrorism”—No evidence was available to suggest that the action was taken with any design, purpose, intention and mens rea of causing “terrorism”—High Court directed Judge Anti-Terrorism Court to transfer the record of case to the court of ordinary jurisdiction—Revision petition was allowed accordingly.

2020 MLD 817 LAHORE-HIGH-COURT-LAHORE

ABDUL HASEEB YOUSAF VS State

Ss. 11-N & 6(2)(p)—Fund raising for proscribed organization—Preaching ideas as per one’s own interpretation—Appreciation of evidence—Benefit of doubt—Scope—Accused was charged for cellecting funds for proscribed organization—Police recovered receipts of a Trust and motorcycle under his use containing the names of proscribed organization on the front and rear number plate—Prosecution did not produce any notification that the Trust was a banned organization or subsidiary body of the proscribed organization, as such collection of funds, specially on the receipts of said Trust, in no manner constituted any offence—No investigation was conducted from the angle that in whose name the motorcycle was registered and as such the same could not be connected with the accused in any manner, whatsoever—No case could be registered under Anti-Terrorism Act, 1997 against any individual for mentioning prohibited/objectionable words—Prosecution had failed to bring on record any piece of evidence, which connected the accused with banned organization in any capacity—Appeal was allowed and the accused was acquitted of the charge.

2020 PLD 332 LAHORE-HIGH-COURT-LAHORE

Mst. PARVEEN BIBI VS State

6 & Third Sched, Item 4(iv)—Penal Code (XLV of 1860), Ss.336-B, 302, 364, 148 & 149—Constitution of Pakistan, Art. 199—Constitutional petition—Qatl-i-amd, kidnapping and hurt caused by corrosive substances—Transfer of case—Anti-Terrorism Court, jurisdiction of—Complainant lodged F.I.R. for qatl-i-amd of her son and mutilation of his dead body with acid—Trial Court transferred case to court of ordinary jurisdiction as it did not attract provisions of Anti-Terrorism Act, 1997—Validity—Dead body was mutilated by pouring acid thereupon but even then, case did not fall within jurisdiction of special court constituted under Anti-Terrorism Act, 1997—Complainant herself mentioned in crime report that acid was poured upon corpse of deceased after his death—Medical officer even after receipt of report from Forensic Science Agency expressed his inability to opine with certainty about actual causes which led to death of deceased—Case was of homicidal death and not of causing hurt as latter stood for causing injury to a living person—High Court declined to interfere in transfer of case as there was no perversity—Constitutional petition was dismissed in circumstances.

2020 PCrLJN 19 LAHORE-HIGH-COURT-LAHORE

ZAIN-UL-ABIDEEN VS ADDITIONAL SESSIONS JUDGE

561-A—Penal Code (XLV of 1860), Ss. 365-B, 336, 337-A(ii), 337-F(iii) & 376—Anti-Terrorism Act (XXVII of 1997), S. 6—Kidnapping, abducting or inducing woman to compel for marriage etc., Itlaf-i-Salahiyat-i-Udw, shajjah-i-mudihah, mutalahimah and rape—Quashing of order—Objection raised by the petitioner that the case was triable by Anti-Terrorism Court, was overruled—Validity—Record showed that the alleged occurrence towards abduction of sister of the petitioner and causing her injuries by throwing acid upon her was committed on 01.09.2008—At that time, neither any penal clause for hurt through corrosive substance, including acid, was available in the Penal Code, 1860 nor in Third Schedule of the Anti-Terrorism Act, 1997, any such offence was described, because Ss. 336-A & 336-B were inserted in P.P.C. from 28.11.2011—Offence of hurt through corrosive substance was included in the Schedule of Anti-Terrorism Act, 1997 on 05.09.2012—Circumstances clearly showed that at the time of commission of the alleged occurrence, neither the said provisions of P.P.C., regarding hurt by corrosive substance were on the statute book nor in the Schedule of the Anti-Terrorism Act, 1997, any such offence was included—Accused could not be tried and punished for an offence which at the time of commission of occurrence was not made punishable—No retrospective effect to a penal provision could be given—Circumstances established that the objection of the petitioner before the Trial Court, for sending the case to Anti-Terrorism Court, was unjustified and as such rightly turned down, through the order in question—Constitutional petition having no force or merit, was dismissed accordingly.

2020 YLR 1843 KARACHI-HIGH-COURT-SINDH

ALI NAWAZ VS State

365-A—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Qanun-e-Shahadat (10 of 1984), Art. 22—Abduction for ransom—Appreciation of evidence—Delay in registration of FIR—Identification parade—Benefit of doubt—First Information Report was registered 5 days after incident of abduction for ransom wherein brother of complainant was allegedly abducted by accused persons—Accused persons were identified during identification parade—Names of dummies were not mentioned and only one identification parade was held in respect of two abductees—Dummies were same and identification parade of three accused persons was not conducted separately—No specific role was assigned to accused persons in the identification parade—Only putting hands on accused persons by witnesses was not sufficient to believe that those were the same accused persons who had committed offence—Such identification parade could not be relied upon for awarding punishment for imprisonment for life—Burden to prove guilt was upon shoulders of prosecution who was bound to prove its case beyond shadow of reasonable doubt—If single circumstance had created doubt in case of prosecution, its benefit was to go to accused not as a matter of grace but as a matter of right—High Court set aside conviction and sentence awarded to accused persons by Trial Court and acquitted them of charge—Appeal was allowed, in circumstances.

2020 YLR 1719 KARACHI-HIGH-COURT-SINDH

SHAHZAD alias KALAY KHAN VS State

4 & 5— Sindh Arms Act (V of 2013), S. 23(1)(a)—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Criminal Procedure Code (V of 1898), S. 103—Recovery of explosive substance and firearms—Appreciation of evidence—Recovery—Non-association of private person—Scope—Bomb, pistols .30 bore and six live bullets were recovered from both the accused persons—Plea raised by accused persons was that private persons were not made witnesses violating provisions of S.103, Cr.P.C.—Validity—Incident was night time occurrence due to which private public was not available on road and place of arrest was an abandoned area—Recovery was affected at about 0240 hours and it was not possible for police to arrange for private witnesses at odd hours of the night—Such non-association of private witnesses was not fatal to the case of prosecution—Police officials were as good as private witnesses and their testimony could not be discarded merely for reason that they were police officials unless accused persons had succeeded in giving dent to statements of prosecution witnesses and proved their mala fide or ill-will against accused—Bomb Disposal Unit reports so also Forensic Science Laboratory reports were against accused persons and were in line with case of prosecution—All witnesses furnished ocular evidence and supported case of prosecution and no enmity was suggested against accused persons—Prosecution witnesses were cross-examined at length but there were no major contradictions in their evidence to lead that witnesses were not trustworthy—High Court declined to interfere in conviction and sentence passed by Trial Court—Appeal was dismissed in circumstances.

2020 PLD 473 KARACHI-HIGH-COURT-SINDH

ABDUL RAHEEM VS State

Ss. 6 & 7—Act of terrorism—Appreciation of evidence—Confessional statement of co-accused—Effect—Accused was charged on the basis of judicial confession made by principal accused wherein he was nominated—No corroborative evidence was available against accused and he was not picked out from CCTV/CD footage of murder of deceased— Accused was not named by any prosecution witness regarding his involvement in crime—No recovery was made from accused—No CDR data connected accused with the offence—High Court declined to rely upon confessional statement of principal accused without independent corroborative evidence—High Court set aside the conviction and sentence awarded to accused by Trial Court and acquitted accused of the charge—Appeal was allowed in circumstances.

2020 PLD 473 KARACHI-HIGH-COURT-SINDH

ABDUL RAHEEM VS State

302(b)—Sindh Arms Act (V of 2013), Ss. 23(1)(a), 24 & 25—Anti-Terrorism Act (XXVII of 1997), Ss.6(2) & 7(a)—Qatl-i-amd, recovery of firearm, and act of terrorism—Appreciation of evidence—Bhatta, demand of—Striking terror in community—Proof—Deceased was a businessman who was allegedly murdered by accused as he had refused to pay Bhatta—Accused had demanded Bhatta from deceased and when deceased refused to pay he shot him 2 to 3 times in cold blood—Motive for murder that deceased refused to pay Bhatta stood proved and accused was the sole murderer whose firing led to death of deceased—Such was a cold blooded murder carried out in a brutal manner which had behind it the object, design and intent to send a signal to all businessmen that if they refused to pay Bhatta, they would meet the same fate as the deceased—Act committed by accused was to create insecurity, fear and terror within the business community—High Court observed that no leniency was to be shown by Court and a deterrent sentence was the appropriate one in order to send a loud and clear message to all persons who were engaged in such heinous crimes—Such accused should not accept any leniency from the Court and if they were engaged in such heinous crimes it was done so at their own peril—Such persons must be made aware that if they were to play with fire then they could be burnt—High Court maintained death sentence awarded to accused by Trial Court—Appeal was dismissed in circumstances.

2020 PCrLJ 1373 KARACHI-HIGH-COURT-SINDH

NADEEM alias CHITTA VS State

Ss. 4 & 5—Sindh Arms Act (V of 2013), S. 23(1)(a)—Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 6(2)(ee)—Criminal Procedure Code (V of 1898), S. 103—Attempt to cause explosion or for making or keeping explosive with intent to endanger life or property—Possessing explosives under suspicious circumstances—Unlicensed possession of arms—Search to be made in presence of witnesses—Act of terrorism—Appreciation of evidence—Benefit of doubt—Un-natural conduct—Safe custody—Failure to seal case property—Corroboratory evidence, non-availability of—Effect—Accused was alleged to have been found in possession of two bombs, one .30 bore pistol with loaded magazine, 35 live bullets, one automatic stand gun of .30 bore along with rounded shape magazine and two straight magazines—Accused was not found connected with any militant group—Police had not associated private witnesses despite being present, in a well-populated area—Prosecution case had failed to satisfy the test of reasonableness on the ground that when the accused was loaded with such weapons, why did he not make a single fire or resisted his arrest—Tampering with case property could not be ruled out as some of the same was not sealed—Scrutiny of prosecution evidence revealed that grenades found on the person of accused were shown to have different serial numbers at various places—Safe custody of the case property at police station and safe transit to experts was also not established—Evidence of police officials did not appear to be trustworthy, thus required independent corroboration, which was lacking in the case—Prosecution had failed to bring guilt to the accused person’s doorsteps beyond any taint or shadow of doubt, therefore, High Court while extending benefit of doubt to the accused, acquitted him of the charge—Appeal against conviction was allowed, in circumstances.

2020 MLD 1387 KARACHI-HIGH-COURT-SINDH

MUHAMMAD KHAN VS State

Ss. 427, 435 & 506(2)—Anti-Terrorism Act (XXVII of 1997), S. 6(2)(c)—Grievous damage to property, mischief causing damage to the amount of fifty rupees, mischief by fire or explosive substance with intent to cause damage, criminal intimidation—Appreciation of evidence—Benefit of doubt—Non-production of burnt property—Non-production of fireman—Effect—Engineer, Irrigation Department reported the police that he received a letter from Assistant Executive Engineer along with an application of Project Manager informing that they were present on the site when they saw one of the accused having jerrican in his hand and the other two nominated accused having matchboxes in their hands with other 20 unknown persons on the site, threatened them and forcibly set the pipeline on fire—Held; Appellants were protesting about non-payment of compensation and the executing agency and their contractors were bent upon to execute the work without satisfying the villagers, whose lands were acquired for the project—Prosecution witnesses were directly or indirectly under the influence of the complainant—Eye-witnesses pretended to be the witnesses of the incident—Incident allegedly took place on Friday when the work of pipeline was not being carried out as it was weekly holiday—Time of incident was exactly the same when the Jummah prayer was being offered—Availability of eye-witnesses on the aforesaid date and time was highly doubtful especially when it came on record that the campsite of contract was situated miles away from the place of incident—Eleven pipes were burned while 12 pipes were saved but neither the burnt pipes nor the safe pipes were produced before the court as ‘real or article evidence’—Prosecution had produced some pieces of burnt pipes but ashes were not produced—Fire Brigade was called for extinguishing the fire but no fireman or their officer was examined before the Trial Court—Prosecution case was not free from doubt—Benefit of doubt went in favour of the accused—Appeal was allowed, in circumstances.

2020 MLD 1344 KARACHI-HIGH-COURT-SINDH

Syed MEHROZ MEHDI ZAIDI alias MEHDI BADSHAH VS State

Ss. 4/5—Sindh Arms Act (V of 2013), S. 23(1)(a)—Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 6(2)(ee)—Criminal Procedure Code (V of 1898), Ss. 164 & 364—Recovery of explosive substance, firearms and terrorism—Appreciation of evidence—Confessional statement—Mandatory requirements, non-compliance of—Benefit of doubt—Accused was convicted by Trial Court on the basis of his confessional statement recorded during investigation—Magistrate while recording confessional statement of accused failed to discharge his duty in accordance with law and did not put relevant questions to accused to ascertain that the confession was voluntarily, true and without any inducement—Such confession lost its evidentiary value—High Court extended benefit of doubt to accused, set aside conviction and sentence awarded by Trial Court and acquitted him of the charge—Appeal was allowed, in circumstances.

2020 MLD 512 KARACHI-HIGH-COURT-SINDH

WALI MUHAMMAD VS State

Ss. 4(b) & 7—Anti-Terrorism Act (XXVII of 1997), Ss. 7(1)(ff) & 6(2)(ee)—Sindh Arms Act (V of 2013), Ss. 23(1)(a) & 24—Criminal Procedure Code (V of 1898), S. 342—Attempt to cause explosion or for making or keeping explosive with intent to endanger life or property, restriction on trial of offence, usage of explosives by any device including bomb blast or having any explosive substance without any lawful justification, possession of firearm and ammunition—Examination of accused—Scope—Prosecution case was that the accused persons were found to be in possession of the explosive substances and firearms, for that they were booked and reported upon by the police—Prosecutor contended that no question with regard to the reports of ballistic/forensic expert were put to any of the accused during the course of their examination under S.342, Cr.P.C.; that such omission could not be overlooked, that record did not speak of availability of the sanction/consent of the Provincial Government which was necessary for such proceedings in terms of S.7 of Explosive Substances Act, 1908 and that case be remanded for re-writing of the judgment by the Trial Court—Validity—Impugned judgment was set aside with direction to the Trial Court to rewrite the judgment after curing the defects which were pointed out by the prosecution and by providing the chance of hearing to all the concerned—Appeals were disposed of accordingly.

2020 YLRN 95 KARACHI-HIGH-COURT-SINDH

MEER MUHAMMAD VS State

Ss. 386, 506(2) & 34—Anti Terrorism Act (XXVII of 1997), Ss. 6 & 7—Extortion by putting person in fear of death or grevious hurt, criminal intimidation, common intention, act of terrorism—Appreciation of evidence—Benefit of doubt—Accused was charged for demanding of “Bhatta” in the shape of plot and Rs. 100,000/- from complainant, else he would be killed—Record showed that the complainant had given two versions of the incident; one in application filed under S.22-A, Cr.P.C., wherein he narrated the date of the incident of demanding “Bhatta” and issuing threats of murder as 5.01.2018—Complainant had disclosed in the FIR date of incident as 17.01.2018; question was as to on which date the incident had taken place—Said fact created doubt in the prosecution story—No criminal record against the appellant- accused showing his involvement in terrorist activities—Accused was an advocate by profession—Allegation of demanding “Bhatta” could not be established as no material had been collected against the appellant-accused during investigation, which might have justified to conclude that he was guilty of the alleged offence—Admittedly, the appellant-accused had been tried along with co-accused who had been acquitted by Trial Court while disbelieving the prosecution evidence and his acquittal had not been challenged by the complainant—Case of the appellant-accused appeared to be at par with the case of acquitted accused, hence, same set of evidence could not be relied upon against the accused without independent corroboration, which was lacking in the case—Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

2020 YLRN 70 KARACHI-HIGH-COURT-SINDH

MOHAMMAD KHAN VS State

Ss. 302, 324, 353, 399, 402, 148 & 149—Anti Terrorism Act (XXVII of 1997), Ss. 6 & 7—Sindh Arms Act (V of 2013), S. 23(i)(a)—Criminal Procedure Code (V of 1898), S. 342—Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his public duty, making preparation to commit dacoity, assembling for the purpose of committing dacoity, rioting armed with deadly weapon, unlawful assembly, act of terrorism, possessing illicit weapon—Appreciation of evidence—Specific plea taken by accused—Effect—Accused had alleged that he was arrested from his home with his wife—Accused recorded his statement on oath in that regard—However, there was no evidence to prove that accused was arrested from his home along with his wife as in that case he would have also been recovered from the illegal detention—Appeals were dismissed, in circumstances.

2020 YLRN 70 KARACHI-HIGH-COURT-SINDH

MOHAMMAD KHAN VS State

Ss. 302, 324, 353, 399, 402, 148 & 149—Anti Terrorism Act (XXVII of 1997), Ss. 6 & 7—Sindh Arms Act (V of 2013), S. 23(i)(a)—Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his public duty, making preparation to commit dacoity, assembling for the purpose of committing dacoity, rioting armed with deadly weapon, unlawful assembly, act of terrorism, possessing illicit weapon—Appreciation of evidence—Ocular account supported by medical and circumstantial evidence—Prosecution case was that accused along with co-accused started direct firing upon police with intention to kill them when they were intercepted, police took shelter and retaliated in their defence and encircled the accused, resultantly only appellant/ accused was arrested with his Kalashnikov—One Police Official was hit by accused’s firing and died—Ocular account of the incident had been furnished by two witnesses including complainant—Depositions of the eye-witnesses showed that there was no material contradiction therein and all those witnesses were consistent and unshaken although they were subjected to lengthy cross-examination—Unnatural death of Police Official was not disputed by any one—Accused had alleged that Police Official died somewhere else and the present accused was falsely implicated in the crime—No reason whatsoever had been put forth for such substitution—Inquest report of Police Official revealed that the date and time of his death was 6.20 a.m.—Medical Officer, who conducted post-mortem of the deceased, stated that he started the post-mortem at 6.55 a.m. and that time rigor mortis was not developed—Said witness further deposed that time in-between death and post-mortem was about one hour—Said statement fully supported the prosecution case that deceased Police Official was killed in the police encounter at about 6.20 a.m.—Circumstantial evidence also supported the ocular and medical evidence—Report of Ballistic Expert showed that the recovered bullets were fired from the rifle recovered from the accused—Circumstances established that prosecution had proved that the deceased was killed at the place of wardatas indicated in the FIR and was killed in the manner and mode as alleged by the prosecution, and that the accused was apprehended at the spot by the police—Appeals were dismissed, in circumstances.

2020 YLRN 69 KARACHI-HIGH-COURT-SINDH

SANAULLAH VS State

2020 YLRN 69 KARACHI-HIGH-COURT-SINDH

SANAULLAH VS State

Ss. 302, 324, 353 & 34—Anti Terrorism Act (XXVII of 1997), Ss. 6 & 7—Sindh Arms Act (V of 2013), S.23(i)(A)—Police Rules, 1934, R. 25.2(3)—Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism, possessing illicit weapons— Appreciation of evidence—Benefit of doubt—Interested witnesses—Reliance—Scope—Prosecution case was that, a police contingent headed by SHO was in hot pursuit for the arrest of the accused from a hotel—Accused, on seeing police, in order to create fear, terror and harassment amongst general public made firing, due to which a Head Constable was hit and died at the spot, accused fled away—On the same day, on receiving secret information, that the accused had taken shelter in an abandoned otak of their uncle, police party reached there—On seeing the police party, the accused made straight firing with intention to kill them and police party retaliated in defence and apprehended the accused with weapons—In the present case, all police witnesses were subordinate to the complainant and therefore interested in the outcome of the case, it would not be appropriate to accept the evidence of their eye-witnesses as gospel truth—Material contradictions existed in their evidence and no independent person had been examined by the prosecution to lend some corroboration to their evidence—Reliance on testimony of such witnesses was declined.

2020 YLRN 69 KARACHI-HIGH-COURT-SINDH

SANAULLAH VS State

Ss. 302, 324, 353 & 34—Anti Terrorism Act (XXVII of 1997), Ss. 6 & 7—Sindh Arms Act (V of 2013), S. 23(i)(A)— Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism, possessing illicit weapons—Appreciation of evidence—Benefit of doubt—Prosecution case was that a police contingent headed by SHO was in hot pursuit for the arrest of the accused from a hotel—Accused, on seeing police, in order to create fear, terror and harassment amongst general public made firing, due to which a Head Constable was hit and died at the spot, accused fled away—On the same day, on receiving secret information that the accused had taken shelter in an abandoned otak of their uncle, police party reached there—On seeing the police party, the accused made straight firing with intention to kill them and police party retaliated in defence and apprehended the accused with weapons—Ocular account of the incident had been furnished by three eye-witnesses—Surprisingly in presence of four Police Officials, both the accused committed murder of their fellow but said Police Officials armed with arms and ammunition did not resist nor made a single fire of any consequence upon the accused—Accused also fired upon Police Officials but none of them received any injury nor any bullet hit on police mobile available there—Police mobile was parked in front of the hotel, people were present there, the accused persons indiscriminately fired but not a single person received any scratch to believe that the incident had happened in the manner as alleged—In the memo of place of incident, nowhere it was mentioned that any bullet marks were noticed on the wall of the hotel or near it—Official witness, in his cross-examination, had admitted that encounter had continued for forty minutes and admittedly police had not resisted the accused—Complainant/SHO allegedly started preparation of memos at place of incident and a letter for post-mortem and the dead body was sent to hospital—Claim of the complainant/SHO was that after completing all documentary evidence, he came to police station and lodged FIR—Letter to Medical Officer, however, showed outward number along with stamp—Danishnama and Lash Chakas Form also bore SHO stamp, but memo of place of incident and dead body only bore signature of the SHO and witnesses, which would show that Danishnama, the letter to Medical Officer and Lash Chakas Form were prepared at police station and therefore had come to bear stamp of the SHO, which was against the evidence of SHO—Said official had informed police station through phone that there was a quarrel with the police in city and directed three Police Officials to report to pointed place, but such fact had not been disclosed by SHO in his evidence—Facts remained that the distance between police station and place of encounter was 500 feet and noise of fire shots must have reached there but even then the Police Officials did not reach the place of incident—Record showed that all the Police Officials were present in front of the hotel and in their presence, the accused entered the hotel, committed murder and fired upon them but they could not do anything to stop it or stop accused from entering the hotel and firing upon the deceased which seemed an anomaly keeping in view story of the prosecution case that police had advance information about the accused being criminals involved in terrorist activities—Independent and vital piece of evidence available with prosecution was the bullet recovered from the dead body of the deceased—Same was not helpful to the prosecution that it was handed over to the incharge Forensic Division in a sealed condition for its examination and was received by office of incharge Forensic Division but as per report, no definite opinion could be expressed regarding one crime bullet due to lack of sufficient data for examination—Circumstances suggested that the three eye-witnesses who claimed to be present at the scene of the crime were in fact not present there and their testimonies were not confidence inspiring— Apparent promptitude in reporting the matter to police and registration of FIR was hardly of any avail to the prosecution because the post-mortem on the dead body of the deceased was conducted after unexplained delay of six hours—Appeal against conviction was allowed, in circumstances.

2020 YLRN 69 KARACHI-HIGH-COURT-SINDH

SANAULLAH VS State

2020 YLRN 69 KARACHI-HIGH-COURT-SINDH

SANAULLAH VS State

Ss. 302, 324, 353 & 34—Anti Terrorism Act (XXVII of 1997), Ss. 6 & 7—Sindh Arms Act (V of 2013), S.23(i)(A)—Police Rules, 1934, R.25.2(3)—Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism, possessing illicit weapons—Appreciation of evidence—Benefit of doubt—Defective and improper Investigation— Reliance—Scope—Prosecution case was that on the fateful day, a police contingent headed by SHO was in hot pursuit for the arrest of the accused from a hotel—Accused, on seeing police, in order to create fear, terror and harassment amongst general public made firing, due to which a Head Constable was hit and died at the spot, accused fled away—On the same day, on receiving secret information that the accused had taken shelter in an abandoned otak of their uncle, police party reached there—On seeing the police party, the accused made straight firing with intention to kill them and police party retaliated in defence and apprehended the accused with weapons—Record showed that the Investigating Officer had only fulfilled formalities without going into details of the case and did not try to find out whether the incident took place in the manner as alleged or not—All the prosecution witnesses had admitted in cross-examination, that the place of incident was thickly populated area but the Investigating Officer could not detect any person present at place of incident to make him witness or at least recorded his statement in support of the fact that incident had taken place there—Investigating Officer had not even recorded statement of the owner of the hotel, waiters, owner of the cabin, which was situated at the distance of five feet, or any other person from locality to believe the incident having taken place in the manner and at the place as disclosed by the police—Conduct of Investigating Officer showed abysmal standard of the investigation in a murder case in which a Police Official was murdered.

2020 YLRN 29 KARACHI-HIGH-COURT-SINDH

ABDUL QADIR VS State

498-A—Penal Code (XLV of 1860), Ss. 302, 365-A, 452, 114, 147, 148 & 149—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)—Qatl-i-amd, kidnapping or abduction for extorting property, valuable security, etc., house-tresspass after preparation for hurt, assault or wrongful restraint, abettor present when offence is committed, punishment for rioting, rioting armed with deadly weapon, unlawful assembly, act of terrorism, and haraabah—Bail, refusal of—Applicants/accused belonging to police department sought bail in the FIR lodged against them for killing the son of complainant at the instance of one of the accused persons—Applicants/accused contended that the deceased was killed in encounter with the police; they had been declared innocent during investigations and the Investigating Officers had recommended the case for its disposal under “B” class—Senior Superintendent of Police who conducted the inquiry had found the alleged encounter as “fake” and Trial Court after trial had also acquitted the accused of the encounter—Essential requirements for grant of pre arrest bail were lacking in the case—Mere recommendation for disposal of the case under cancel class was not sufficient for extraordinary relief of pre arrest bail, in view of the fact that all the applicants/accused were police officials—Sufficient material was available on the record to connect the applicants with the commission of alleged offence falling within the prohibitory clause of S. 497, Cr.P.C.—-Application was dismissed, in circumstances.

2020 PCrLJN 14 KARACHI-HIGH-COURT-SINDH

HASSAN VS State

Ss. 365-A, 215 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Kidnapping or abduction for extorting property, valuable security etc., causing disappearance of evidence of offence, common intention, acts of terrorism—Appreciation of evidence—Benefit of doubt—Accused were charged for committing abduction of nephew of complainant for ransom—Record showed that initially the complainant nominated two persons when the complainant and his nephew rushed at the place where he was called on phone to come along with ransom amount for release of the abductee, they identified accused and saw them having T.T. pistols—Complainant also found his nephew abductee on motorcycle with them—Subsequently, complainant in his further statement however, complainant had implicated accused-appellants—Other nephew of complainant/witness also implicated said accused-appellants in his further statements—Record reflected that both the said witnesses were not eye-witnesses of the incident—Said witnesses had not furnished any source during further statement or before the Trial Court—Star witness of the incident was the alleged abductee who was recovered by the police as stated by Investigating Officer on 21.05.2013 while he was on patrolling duty—Abductee had identified the said persons, who boarded him on their motorcycle by saying that his brother had called him—On the last day of his confinement, co-accused had disclosed him that he had received the ransom amount from his parents and he would be freed—Later on abductee was brought at an abandoned place where accused left him after folding his eyes and issued threats for dire consequences, if he unfolded his eyes—Abductee had further stated that after some time police came there and brought him at police station—Police informed his parents and handed over his custody to the parents—Police recorded the statement of abductee and also produced him before Magistrate for recording his statement under S. 164, Cr.P.C.—Identification parade was held before the Magistrate and abductee identified the accused-appellants—Abductee admitted in cross-examination that he had given the names of accused on the instance of his brother—Abductee had stated that at the time of conducting the identification parade of accused persons only the accused were present and no other person was with them—Abductee had not given the names of co-accused as well as main accused in his statement under S. 164, Cr.P.C.— Further statement of complainant recorded after 2-1/2 months of recovery of abductee could not be taken into consideration when the complainant in his FIR had specifically nominated accused persons duly armed with T.T. pistol along with abductee whose hands and feet were tied—Alleged abductee in his evidence had disclosed that he was informed by the accused persons that they had received the ransom amount from his parents but that piece of evidence was not supported by any of the witnesses during their evidence as to whether they had paid ransom amount or not—Admittedly, the incident was un-seen—Complainant and his nephew/witness were not eye witnesses of the incident—Evidence of the abductee remained in field, but his evidence was contradictory, which was dubious—Document produced by the accused-appellants in their statement under S. 342, Cr.P.C. regarding their confinement prior to arrest falsified the version of prosecution—Defence witness was not shattered by the prosecution—Circumstances established that prosecution had failed to establish its case beyond any shadow of doubt—Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

2020 MLD 437 Gilgit-Baltistan Chief Court

REHMAT JAN VS WALI UR REHMAN

S.302/34—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Murder due to family dispute, common intention—Scope—Act of terrorism—Scope—Complainant sought insertion of Ss. 6 & 7 of Anti-Terrorism Act, 1997 in the FIR—Earlier, Division Bench of the High Court had, after hearing both the parties, allowed the criminal revision petition of accused and transmitted his case to the Sessions Judge for further proceedings by holding that Anti-Terrorism Court had no jurisdiction in the case of accused—Validity—FIR was lodged against unknown persons and the present accused persons were arrested later on during investigation—Investigation revealed that due to some family dispute accused persons had committed murder of the deceased and accordingly the case was registered by police under ordinary law and remand of the accused was also obtained from the court of Judicial Magistrate—Section 6 of Anti-Terrorism Act, 1997 did not attract to the case—Division Bench had rightly directed the police officials to delete Ss. 6 & 7, Anti-Terrorism Act, 1997 from the case of accused, which was inserted later on in the case on the direction of Anti-Terrorism Court—Writ petition, being not maintainable, was dismissed.

2020 PCrLJN 131 Gilgit-Baltistan Chief Court

NAEEM ULLAH VS State

498—Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7 & 21-D—Penal Code (XLV of 1860), Ss. 302 & 34—Qatl-i-amd, common intention—Act of terrorism—Pre-arrest bail, confirmation of—Non-availability of direct evidence—Further inquiry—Scope—Contents of FIR revealed that one unknown person had allegedly opened fire on the deceased while he was offering prayer—Complainant had expressed his suspicion that the petitioners, seeking pre-arrest bail, might have murdered the deceased—Widow and son of deceased had pointed towards another person as they had seen him holding a pistol at the gate of the mosque—Investigating Officer had failed to collect any direct evidence showing involvement of petitioners in the commission of alleged crime—Reasonable grounds for believing that the petitioners were guilty of abetment in the commission of murder were not available on record—Matter required further inquiry into the guilt of petitioners—Pre-arrest bail granted to the petitioners was confirmed, in circumstances.

2019 SCMR 2014 SUPREME-COURT

HAROON BIN TARIQ VS State

302(b)—Anti-Terrorism Act (XXVII of 1997), Ss. 6(1)(n) & 7—Qatl-i-amd, acts of terrorism—Reappraisal of evidence—Conviction and sentence under S. 7 of Anti-Terrorism Act, 1997 set aside while that under S. 302(b), P.P.C. maintained—Stray bullet—Deceased not the intended target—Ocular account supported by forensic evidence inescapably pointed upon the culpability of the accused in terms of the role assigned to him—Insofar as conviction of accused under S. 7 of the Anti-Terrorism Act, 1997 was concerned, misfortune, brought the deceased police official in the line of fire; he was not the intended target of the assailants nor deputed at the crime scene to perform any officially assigned task—No independent verification was available on record to establish that the deceased directed himself to the assailants in order to disengage or overpower them and in the process received fire shot during grappling them from a close blank—On the contrary, medical evidence contradicted the prosecution case, as there was no blackening on the margins of solitary entry wound, therefore, possibility of a stray bullet could not be viewed as entirely unrealistic, particularly in the presence of as many as sixteen (16) casings, secured from the spot, unambiguously suggesting volley of fires—Death of deceased did not attract the mischief of S. 6(1)(n) of the Anti-Terrorism Act, 1997—Consequently, conviction and sentence of accused under S. 7 of the Anti-Terrorism Act, 1997 was set aside.

2019 SCMR 1365 SUPREME-COURT

AKHMAT SHER VS State

Ss. 6, 7(a) & 21-L—Penal Code (XLV of 1860), S. 302(b)—Qatl-i-amd, act of terrorism—Reappraisal of evidence—Convictions under the Anti-Terrorism Act, 1997, setting aside of—Personal dispute/ vendetta—Special jurisdiction under the Anti-Terrorism Act, 1997 had been created to deal with situations enumerated in S. 6 thereof—Personal pursuits and vendettas, carried out through violence fell outside the ambit of S. 6 of the Anti-Terrorism Act, 1997—In the present case, both the deceased fell victim to a business rivalry and, thus, the accused persons were not actuated by the designs contemplated under the said Act, therefore, their convictions under Ss. 7(a) & 21-L of the Anti-Terrorism Act, 1997 and sentences consequent thereupon were set aside, whereas the remainder of their convictions as well as sentences were kept intact.

2019 SCMR 1285 SUPREME-COURT

MUHAMMAD FAISAL ABBAS VS State

Ss. 302(b), 324 & 392—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7(a)—Qatl-i-amd, attempt to commit qatl-i-amd, robbery, act of “terrorism”—Reappraisal of evidence—Sentence, reduction in—Robbery with murder in a shop not an act of “terrorism”—Predominant purpose behind the crime was robbery at gunpoint, which had no nexus with the situations enumerated under S. 6 of the Anti-Terrorism Act, 1997—Occurrence took place inside a shop impact whereof though grievously devastating for the witnesses, however could not be said to have spilled over to the public at large—In such peculiar facts and circumstances of the case, conviction of accused under S. 7 of the Anti-Terrorism Act, 1997, was not sustainable and set aside accordingly—Consequently, penalty of death awarded to the accused was altered into imprisonment for life—Appeal was dismissed accordingly.

2019 PLD 40 QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD NASEEM VS State

6—“Act of terrorism”—Ascertainment—Whether an offence fell within the ambit of S. 6 of Anti-Terrorism Act, 1997, it was essential to have a glance over the allegations made in the FIR, material collected during investigation and surrounding circumstances as well as the ingredients of “terrorism” as provided under Ss. 6 & 7 of the Act, 1997.

2019 PCrLJ 297 QUETTA-HIGH-COURT-BALOCHISTAN

The STATE VS FAIZ MUHAMMAD alias FAIZULLAH

365-A—Anti-Terrorism Act (XXVII of 1997), Ss. 6(2)(e) & 25—Criminal Procedure Code (V of 1898), S. 417—Kidnapping for ransom—Appeal against acquittal—Appreciation of evidence—Death of abductee—Forensic evidence—Authorities assailed order passed by Trial Court under S. 265-K, Cr.P.C. where accused were acquitted of charge of murder of abductee after kidnapping—Authorities contested that extra-judicial confession of accused as well as recovery of dead body of abductee upon pointing of accused were sufficient grounds for conviction—Validity—Extra-judicial confession as well as confession of accused persons revealed discovery of new facts as well as discovery of remains of abductee—Forensic Science Laboratory report received in negative had diminished evidentiary value of both extra-judicial confession and confessional statement of accused—Such statements were not recorded voluntarily, otherwise accused could have pointed out exact grave of deceased and discovered remains which could have matched with blood relations—Case of prosecution was doubtful and Trial Court while delivering order of acquittal had rightly extended benefits of such doubts in favour of accused and rightly they were acquitted of the charge—Accused, after acquittal earned presumption of double innocence and acquittal orders were not interfered with until and unless it was proved on record that same was perverse, contrary to record, fanciful and not sustainable—High Court declined to interfere in judgment passed by Trial Court as same was neither perverse, fanciful nor ridiculous or contrary to record rather same was based on proper appraisal of material available on record—Appeal was dismissed in circumstances.

2019 PCrLJ 665 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD JAWAD HAMID VS Mian MUHAMMAD NAWAZ SHARIF

Ss. 203, 204, 435 & 439—Anti-Terrorism Act (XXVII of 1997), S. 6—Private complaint—Dismissal of complaint or summoning of accused—Revisional jurisdiction of the High Court—Scope—Orders of Anti-Terrorism Court dismissing of complaint or summoning of the accused were amenable to the revisional jurisdiction of the High Court as provided under the Criminal Procedure Code, 1898.

2019 PCrLJ 516 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD IDREES VS SPECIAL JUDGE, ANTI-TERRORISM COURT

Ss. 6, 7 & 23—Penal Code (XLV of 1860), Ss. 302 & 324—“Act of terrorism”—Scope—Private motive—Effect—Accused was aggrieved of dismissal of his application whereby Trial Court declined to delete S. 7 of Anti-Terrorism Act, 1997—Validity—In order to attract provision of Anti-Terrorism Act, 1997, act complained of must have a serious nexus with provision of S. 6 of Anti-Terrorism Act, 1997—To exercise jurisdiction under Anti-Terrorism Act, 1997 ‘design’ or ‘purpose’ behind action coupled with mens rea to constitute offence of terrorism was sine qua non—Trial Court had not taken it into consideration while deciding application of accused—Nothing was available on record to show that life and liberty of large number of persons in village was put in danger because of firing of accused party—In absence of solid and admissible evidence mere conjectures and surmises how strong might be, could not substitute reality—Occurrence had taken place as a result of private motive between parties—High Court declared addition of S. 7 of Anti-Terrorism Act, 1997 in FIR and submission of challan before Anti-Terrorism Court to be illegal and without lawful authority—High Court directed Special Judge Anti-Terrorism Court to transfer record of case to court of ordinary jurisdiction for further proceedings in accordance with law— Constitutional petition was allowed in circumstances.

2019 YLR 2316 KARACHI-HIGH-COURT-SINDH

MUHAMMAD PARYAL VS State

Ss. 302 & 384—Anti-Terrorism Act (XXVII of 1997), Ss. 6(2)(k) & 7(h)—Qatl-i-amd, extortion, extortion of money or property, act of terrorism—Appreciation of evidence—Motive was not proved—Effect—Prosecution had examined nine witnesses, out of them eight witnesses had not supported the motive/demand of bhatta by the accused—Only one eye-witness had supported the prosecution motive for demand of bhatta—Police Officer/witness, who was on duty at police line, had stated in his cross-examination that being line officer of police line, he had not received any such complaint against accused—Investigating Officer in cross-examination had admitted that he had not heard any complaint of the accused in the past—Rest of the witnesses being Police Officials posted at police line had admitted that previously no complaint was received against the accused regarding demand of bhatta—Prosecution eye-witness had not been corroborated by any of the cited witnesses regarding demand of bhatta—Whether demand of money was for the purpose of bhatta or otherwise, no evidence had been led by the prosecution during the course of trial in that regard—Even the quantum of bhatta had not been disclosed by any of the witness—Prosecution had failed to prove the motive, in circumstances, hence, real cause of occurrence remained shrouded in mystery.

2019 YLR 2316 KARACHI-HIGH-COURT-SINDH

MUHAMMAD PARYAL VS State

Ss. 302 & 384—Anti-Terrorism Act (XXVII of 1997), Ss. 6(2)(k) & 7(h)—Qatl-i-amd, extortion, extortion of money or property, act of terrorism—Appreciation of evidence—Sentence, modification of—Prosecution case was that accused, a police constable, demanded bhatta from younger brother of complainant, on refusal, accused committed his murder—Ocular testimony was furnished by the prosecution in the shape of statements of complainant and two witnesses—Record showed that complainant was not eye-witness and only two persons were eye-witness of the incident—One eye-witness had deposed that on the day of occurrence, he along with other eye-witness was talking to deceased, accused came and demanded money from the deceased to which he replied that today he had no money and he would pay on the next day—Harsh words were exchanged, accused angrily went to the police line and then fired twice at deceased, who fell down on the ground and they shifted him to hospital but he died on the way—Other eye-witness of the occurrence had also supported the version of said eye-witness—Record showed that there had not been any serious challenge to presence of said private eye-witnesses at place of incident nor there was any denial to claim of friendship of said witnesses with the deceased—Accused had also brought nothing on record against eye-witnesses as well as complainant which could justify replacement of real culprit with accused—Eye-witnesses were friends of deceased whose words were believed by complainant, hence, it did not appear to be believable that both of them agreed in substitution of real culprits with innocent person/accused when undeniably the incident was of day-light—Prosecution had examined Police Constable/witness, who was performing his duty on the main gate of police line—In his evidence, said witness had deposed that on the day of incident, his duty was on main gate of police line, accused was also assigned duty at main gate with him—Said witness had stated that he went to sit in the guard room to check the mail, during that accused took his SMG rifle and immediately fired at deceased, standing in front of the gate—Accused had fired two rounds, one hit on the right chest and the other on the right cheek of the deceased, who fell down and other Police Officials came there, apprehended the accused and recovered SMG from him—Said witness had supported the evidence of private eye-witnesses and since the defence never denied murder of deceased in consequence of fires from SMG then it was under obligation to explain otherwise the fact resulting into death of deceased by use of SMG, which was never attempted by defence—Direct evidence of eye-witnesses, duly supported by other witnesses/Police Officials showed that the availability of witnesses at the venue of occurrence at the relevant time was quite natural—Witnesses had sufficiently explained the date, time and place of occurrence as well as each and every event of occurrence in clear manner—Said witnesses had also explained the mode and manner of taking place of the occurrence, qua the culpability of the accused—Multiple questions were asked to shatter the confidence of said witnesses and also their presence at the scene of occurrence, but defence could not extract anything from both eye-witnesses as well as other Police Officials and they remained constant on all material points—Record transpired that there was no denial to arrest of the accused along with weapon, used in commission of the offence, which was also a strong corroboration to ocular account—In the present case, ocular account of eye-witnesses was substantiated by the Medical Officer, who conducted post-mortem on the dead body of the deceased—Prosecution never brought any substantial evidence/ material on record to establish demand of bhatta—Mere use of word bhatta would never justify punishment for offence under S. 6 of the Anti-Terrorism Act, 1997—Prosecution had successfully proved its case against accused through ocular account furnished by complainant and eye-witnesses, duly supported by Investigating Officer and Police Officials as well as Medical Officer, hence conviction and sentence under S.302(b), P.P.C. was maintained, however, conviction and sentence for offence punishable under Ss.6(2)(k) & 7(h) of the Anti-Terrorism Act, 1997 was set aside—Appeal was dismissed with said modification.

2019 YLR 2316 KARACHI-HIGH-COURT-SINDH

MUHAMMAD PARYAL VS State

Ss. 302 & 384—Anti-Terrorism Act (XXVII of 1997), Ss. 6(2)(k) & 7(h)—Qatl-i-amd, extortion, extortion of money or property, act of terrorism—Appreciation of evidence—Recovery of crime weapon, empties and other articles— Reliance— Scope— Record transpired that Investigating Officer sent recovered crime weapon and empties to Forensic Science Laboratory and report showed that crime empties were fired from the SMG, in question—Clothes of deceased and blood-stained earth were sent to the Chemical Examiner, report of which was positive—Said evidence showed that death of deceased was unnatural at the hands of accused.

2019 YLR 1260 KARACHI-HIGH-COURT-SINDH

NAZAR MUHAMMAD VS State

Ss. 6 & 23—Act of terrorism—Transfer of case—Robbery—Double murder—Accused were aggrieved of order passed by Trial Court declining to transfer case to court of ordinary jurisdiction—Validity—Accused persons had planned and robbed the deceased at his shop with firearms and robbery took place in broad daylight in bazaar where members of public were present and when owner of shop resisted the robbery, he was shot in cold blood in front of members of public—When other members of public tried to intervene, they were warned off by accused persons, threatening them with pistols—Another person who tried to intervene was again shot dead in cold blood by accused persons in front of public—While making their escape good, accused persons deliberately made aerial firing in order to scare off and terrorize public and in particular, minority community to whom victims belonged—High Court declined to interfere in order passed by Trial Court as same was based upon valid and sound reasons and was in consonance with provisions of relevant law—Accused persons failed to point out any legal infirmity in same as act of terrorism was carried out by accused persons during robbery, murders and aerial firing and same fell within purview of Anti-Terrorism Act, 1997—Revision was dismissed in circumstances.

2019 PCrLJ 549 KARACHI-HIGH-COURT-SINDH

ALLAHYAR VS JUDGE, ANTI-TERRORISM COURT NAUSHAHRO FEROZE

Ss. 302, 324, 379, 504, 147, 148 & 149—Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7 & 23—Qatl-i-amd, attempt to commit qatl-i-amd, theft, intentional insult with intent to provoke breach of peace, rioting, rioting armed with deadly weapons, unlawful assembly, act of terrorism—“Terrorism”—Scope—Petition for transfer of case from Anti-Terrorism Court to ordinary criminal court, dismissal of—Petitioners contended that previous enmity existed between the parties and there was compromise between the parties and complainant admitted the compromise and had no objection for the transfer of present case to the ordinary court, enabling them to file application for compromise and resolve their issue on permanent basis—FIR did not disclose enmity between the parties—Validity—Record showed that motive of the incident was, prima facie, old blood-feud between the parties, which had always been considered as one of the circumstances to bring a case out of scope of “terrorism”—Normally, in such like matter, the prime object was always to settle personal score rather than creating a sense of terrorism—Question of jurisdiction was not to be dependent upon consent or wish of a party but was to be decided/determined on defined criterion—Act of compromise for promoting harmony between two parties was worth appreciating but that alone would never be decisive for determining question of jurisdiction of Special Court—Record transpired that fact of old enmity/private vendetta was deliberately concealed by complainant so as to give jurisdiction to special court, hence in such eventuality no objection, given by complainant at such stage, might be taken as one of the circumstances for determining jurisdiction—Exceptions defined for taking cognizance by special court even in existence of private vendetta between parties, prima facie, were not available—First Information Reports lodged by the accused party and compromise between the parties as well as place of incident and the manner in which the incident had happened, showed that it was not a case of “terrorism”—Application was allowed accordingly.

2019 PCrLJ 549 KARACHI-HIGH-COURT-SINDH

ALLAHYAR VS JUDGE, ANTI-TERRORISM COURT NAUSHAHRO FEROZE

Ss. 6 & 12— Criminal Procedure Code (V of 1898), S. 173—Jurisdiction of Anti-terrorism court—Determination—Scope—While deciding the issue of jurisdiction, courts were required to examine FIR, statements recorded under S. 161, Cr.P.C., mashirnamas and other documents available with the prosecution.

2019 PCrLJ 201 KARACHI-HIGH-COURT-SINDH

MAJID alias DODO VS State

561-A—Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7 & 23—Penal Code (XLV of 1860), Ss. 302, 324, 337-H(2), 148 & 149—Qatl-i-amd, attempt to commit qatl-i-amd, rash or negligent act to endanger human life, rioting, unlawful assembly, terrorism—Transfer of case to court of ordinary jurisdiction—Act of terrorism, motive and manner—Effect— Jurisdiction of Anti-Terrorism Court— Scope— First Information Report was registered against applicants, and other accused, who were allegedly running gambling and narcotic dens in their neighbourhood which was objected by complainant party—Accused in order to maintain their supremacy in the neighbourhood, formed unlawful assembly and committed murder of one of the members of complainant party by causing him fire shots and butt blows—Applicants/accused contended that both parties being neighbors had dispute between them, provisions of Anti-Terrorism Act, 1997 were not applicable—Complainant contended that applicants, along with others, had committed an act of terrorism by creating insecurity amongst the people of neighbourhood by committing murder of the deceased in a brutal manner—In determining the applicability of S. 6 of the Anti-Terrorism Act, 1997, the claimed motive was not of much importance but it would be the design(manner) which the culprit chose to achieve the object—If an offence was designed in such a manner that ultimate effect thereof would result in striking general public or those intending to do a lawful act which the targeted person or persons did, then such offence would fall within the mischief of S. 6(2) of Anti-Terrorism, 1997—Occurrence, in the present case, was not an act of sudden reaction but a premeditated and preplanned act on the part of applicants and others—Manner in which the applicants and others had acted prima facie was not to settle some personal score but seemed to leave a message to people of neighbourhood, thereby conveying them lethal consequences in objecting their wrongful and unlawful act—Such object, prima facie appeared from date, time and place the applicants and others had chosen for committing the offence, which obviously created a sense of insecurity amongst the people of neighborhood or society—Act on the part of applicants and others fell within the ambit of S. 6 of the Anti-Terrorism Act, 1997—Judge Anti-Terrorism Court was right to dismiss application of the applicants under S. 23 of Anti-Terrorism Act, 1997 for transfer of their case from his Court to court of ordinary jurisdiction for the trial—Criminal miscellaneous application was dismissed accordingly.

2019 PCrLJ 95 KARACHI-HIGH-COURT-SINDH

MURAD ALI BANGALANI VS State

Ss. 6(1)(b)(c), (2)(n)(m) & 23—Criminal Procedure Code (V of 1898), S. 439—“Terrorism”—Application for transfer of case from Anti-Terrorism Court to Court of ordinary jurisdiction—Secluded area of offence—Accused were aggrieved of order passed by Anti-Terrorism Court, declining to transfer the case to court of ordinary jurisdiction—Validity—No evidence was available to suggest that action was taken by accused with any design, intention and mens rea of causing “terrorism”—Area of incident was a secluded area and it did not have impact of causing intimidation, awe, fear and insecurity in public or society—No members of public were around to witness or even hear the action—When police officials were confined in a room and were made to be photographed in the company of ladies, such incident also took place in closed room—Actions against police were though of very serious nature and were to be discouraged and dealt with iron hand as in effect such were the attacks on society as a whole, yet such attacks could only be dealt with under the relevant and applicable law—Actions allegedly taken by accused against police did not fall within the ambit of Anti-Terrorism Act, 1997—Material/evidence did not meet the requirements of S. 6(1)(b) or (c) of Anti-Terrorism Act, 1997—High Court set aside the order passed by Anti-Terrorism Court and the trial was transferred to criminal court of competent jurisdiction—Revision was allowed in circumstances.

2019 PCrLJN 128 KARACHI-HIGH-COURT-SINDH

DHANI BUX VS State

Ss. 365-A & 34—Anti-Terrorism Act (XXVII of 1997), S. 6(2)(e)—Kidnapping for ransom, common intention, act of terrorism—Appreciation of evidence—Benefit of doubt—Identification parade was conducted belatedly and containing discrepancies—Statement of complainant and other witnesses were totally contradictory in respect of time, place of identification and procedure of identification—Judicial Magistrate categorically stated that he had not asked any questions to the minors to test their competency for identification test parade—Memo of the identification parade showed that at the time of identification there were only nine dummies amongst them, three accused persons were mixed up, meaning thereby that the ratio of accused and dummies was only 1 : 3, which was far more less than the required ratio—Accused was not identified by one of the witnesses—Another aspect requiring consideration was that the accused persons were arrested on 30 October, 2006 and it had also come on the record that the alleged abductees were produced in police station on 8th November, 2006—Such identification parade did not improve the case of prosecution. [Para. 8 of the judgment]

2019 PCrLJN 128 KARACHI-HIGH-COURT-SINDH

DHANI BUX VS State

Ss. 365-A & 34—Anti-Terrorism Act (XXVII of 1997), S. 6(2)(e)—Kidnapping for ransom, common intention, act of terrorism—Appreciation of evidence—Contradictions in statement of witnesses—Effect—In the present case, there were series of contradictions in the depositions of witnesses—Complainant had stated that the identification test was done in the chamber of Judicial Magistrate after Jumma Prayer but the other witnesses including the Judicial Magistrate and minors disclosed that the identification was done in the early hours of the day—Facts come on the record through the complainant that the lady accused as well as co-accused were arrested from a place nearby a college but the prosecution witness/husband of lady accused said that she was arrested from home—Such contradictions were fatal to the prosecution case. [Para. 7 of the judgment]

2019 PCrLJN 128 KARACHI-HIGH-COURT-SINDH

DHANI BUX VS State

Ss. 365-A & 34—Anti-Terrorism Act (XXVII of 1997), S. 6(2)(e)—Kidnapping for ransom, common intention, act of terrorism—Delay in lodging FIR—Effect—Inordinate delay in lodging the FIR which had not been plausibly explained within the body of FIR—Such inordinate delay was fatal to the prosecution case. [Para. 6 of the judgment]

2019 PCrLJN 128 KARACHI-HIGH-COURT-SINDH

DHANI BUX VS State

Ss. 365-A& 34—Anti-Terrorism Act (XXVII of 1997), S. 6(2)(e)—Kidnapping for ransom, common intention, act of terrorism—Appreciation of evidence—Benefit of doubt—Accused were charged for kidnapping the sons of complainant for ransom—Record showed that the alleged abductees had already reached home at the time of lodging the FIR, but said fact was not mentioned in the same—Alleged payment of ransom was not mentioned in FIR—Record transpired that the complainant and witnesses were not in agreement on vital point of their statements—Complainant had deposed that he received information about the abduction of his children on 6.10.2006 just after the incident and he disclosed the same on 15.10.2006 but no report was lodged—Complainant had stated that he had informed the police about the entire facts and police disclosed that they had arranged Nakabandi, but no FIR was lodged—Complainant further stated that from the second day of abduction to onward, they received series of telephone calls from the accused persons from a landline number but during investigation no record of such phone calls was collected to establish said aspect of the assertion of the complainant—Complainant had alleged that an amount of Rs. 535,000/- and some gold ornaments were handed over to the accused persons through lady accused in civil hospital, but no recovery of ransom amount or gold ornaments was effected from any of the accused persons—Complainant had deposed that at the time of delivery of ransom amount, husband of lady accused and his brother also went to civil hospital along-with lady accused—Delivery of ransom amount was made to the accused in the hospital while they were waiting outside and subsequently she disclosed that she had delivered the bag containing amount and ornaments to a person aged about 24/25 years—Record showed that Investigation Officer informed the complainant that the accused persons were in their custody and he took his children firstly to police station and then to the court—Complainant and his children went to the court with police—Both of them were fully tutored before the Trial Court and their evidence remained shaky on the vital points of their depositions—One of the minors said that at the time of abduction lady accused opened the door of the car and sat in with them but the other minor stated that she was not accompanying them in the car—One child stated that he could not say as to for what purpose he had appeared in the court—Sole evidence of the minors could not be relied and the same required corroboration and which was missing in the case—Prosecution failed in bringing the guilt of the accused persons at home, in circumstances—Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court. [Paras. 6, 7, 8, 9 & 10 of the judgment]

2019 PCrLJN 48 KARACHI-HIGH-COURT-SINDH

ATTA MOHAMMAD VS State

497 (2)—Penal Code (XLV of 1860), Ss. 302, 324, 353, 148 & 149—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Qatl-i-amd, attempt to commit qatl-i-amd, assault on public servant, rioting armed with deadly weapon, unlawful assembly, act of terrorism—Bail, grant of—Further inquiry—Vicarious liability—Rule of consistency—Applicability— Dying declaration— Scope— Complainant (police official) while patrolling with other police official stopped a suspicious vehicle—Petitioner, along with four accused, alighted from the vehicle and main accused made firing on complainants companion (Police official) who sustained injuries and later died—Petitioner contended that his case fell under further inquiry as bail had already been granted to one of the co-accused with almost similar attribution—Petitioner was behind the bars for the last two years—Petitioner though had been nominated in the FIR but neither any specific role nor any overt act had been attributed to him except that he, having a pistol, alighted from the vehicle along with the main accused (who made straight fire on the deceased)—Soon after the alleged incident, injured police official was taken to the hospital where SHO concerned, in the presence of medical executive recorded his dying declaration, wherein he categorically stated that main accused had fired at him directly and even had not taken the name of the petitioner—Question of vicarious liability of the petitioner with regard to his common intention for committing alleged offence would be determined at the trial—Tentative assessment of record called the case of the petitioner as one of further inquiry as envisaged under S. 497(2), Cr.P.C.—Record revealed that another co-accused had been admitted to bail; said co-accused was identified by the witnesses during the identification parade and Kalashinkov was allegedly recovered from his possession—Case of the petitioner was at par with the said co-accused therefore, principle of consistency also applied in the case of petitioner, which demanded equal treatment to the petitioner—Bail was granted to the petitioner, in circumstances.

2019 PLD 527 ISLAMABAD

MUHAMMAD SIKANDAR VS State

6(1)(b), (c) & (2)—“Act of terrorism”—Mens rea and actus reus—Essential ingredients—Essential ingredients relating to mens rea and actus reus explicitly mentioned in S.6(1)(b) or (c) and S.6(2) of Anti-Terrorism Act, 1997 respectively must coexist and coincide.

2019 PLD 527 ISLAMABAD

MUHAMMAD SIKANDAR VS State

6—“Act of terrorism”—Connotation—No matter how gruesome, violent or heinous an act or commission of offense may be, it would not constitute an “act of terrorism” within its meaning contemplated under Anti-Terrorism Act, 1997 unless mens rea and actus reus explicitly mentioned therein coincides and coexists.

2019 PLD 527 ISLAMABAD

MUHAMMAD SIKANDAR VS State

Ss. 6, 7, 8 & 25—Act of terrorism—Appreciation of evidence—Causing terror—Proof—Accused was convicted and sentenced in committing acts of terrorism by using his family as human shields while deadlocking main road in federal capital armed with automatic weapons and ammunition—Accused assailed conviction and sentence passed by Trial Court on grounds that his actions did not constitute terrorism—Validity—Offence of terrorism was constituted as design was to create psychological impact of creating a sense of fear and insecurity relatable to general public, society or a section thereof—Offences mentioned in schedule must have nexus with object of statute and contemplated under Ss.6 to 8 of Anti-Terrorism Act, 1997—For offence of terrorism to be constituted it was not necessary that victims were actually harmed or that terror was caused; it was sufficient if design of intended act was likely to create terror, a sense of fear and insecurity amongst general public, society or section thereof—Mens rea and actus reus contemplated in Anti-Terrorism Act, 1997 coexisted, in the present case—High Court declined to interfere in conviction and sentence awarded by Trial Court as prosecution had proved charge against accused beyond reasonable doubt and that there were no mitigating circumstances for handing down a lesser sentence—Appeal was dismissed in circumstances.

2019 PLD 453 ISLAMABAD

HAROON RASHID VS FOP through Secretary, Ministry of Interior

Ss. 2(1)(a), 4 & 8 & Sched.—Anti-Terrorism Act (XXVII of 1997), S. 6—Extradition to foreign country/non-treaty State—Terrorism—Schedule to the Extradition Act, 1972, did not contain the term terrorism, thus the same was not an extradition offence—His Lordship observed that the term terrorism should be specified in the Schedule to the Extradition Act, 1972—Constitutional petition was disposed of.

2019 YLR 2445 Gilgit-Baltistan Chief Court

MUHAMMAD ISMAIL VS State

S.302—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Qatl-i-amd, terrorism Diyat, payment of, to the victims of terrorism— Petitioner sought implementation of order passed by Trial Court, upheld by Supreme Appellate Court, whereby it had directed the State to pay diyat amount to the legal heirs of victims—Trial Court dismissed the petition on the ground that as a uniform policy Provincial Government had paid Rs. 3,00,000 as compensation to the legal heirs of all the families who were victims of violence and terrorism and lost their lives—Validity—Case was not untraced one—One accused had stood trial and was acquitted— Provincial Government having paid a sum of Rs. 3,00,000 each to the legal heirs of all the families, whose nears and dears had lost their lives in the violence of terrorism—Petition was dismissed.

2019 YLR 1903 Gilgit-Baltistan Chief Court

EHSANULLAH VS State

Ss. 302, 427 & 34—Anti Terrorism Act (XXVII of 1997), Ss. 6 & 7—Criminal Procedure Code (V of 1898), S. 164—Qatl-i-amd, mischief causing damage to the amount of fifty rupees, common intention, act of terrorism—Appreciation of evidence—Confessional statement—Scope—Prosecution case was that some unknown terrorists murdered the deceased and his vehicle was found in damaged condition along with his dead body—Killing of the deceased was a result of “terrorism”—Record showed that senior police officer had recorded the confessional statement of accused persons—Said confessional statements of the accused persons transpired that the same were voluntary, which were corroborated by recovery of weapons of offence, autopsy report, report of arms expert and their extra judicial confessional statements—Senior police officer had appeared as witness, who recorded confessional statements of the accused after fulfilling codal and legal formalities, and his statement could not be shattered by defence in his cross-examination—Medico legal report of the deceased supported the prosecution version—Circumstances established that prosecution had succeeded to prove its case beyond any shadow of doubt against the accused and his co-accused, so far as the other co-accused was concerned, no overt act of effective firing was attributed to him by the prosecution witnesses in their statements and neither any weapon of offence nor any other incriminating material had been recovered from his possession nor on his pointation—Appeal against accused and co-accused was dismissed, in circumstances while other co-accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

2019 YLR 1903 Gilgit-Baltistan Chief Court

EHSANULLAH VS State

Ss. 302, 427 & 34—Anti Terrorism Act (XXVII of 1997), Ss. 6 & 7—Qatl-i-amd, mischief causing damage to the amount of fifty rupees, common intention, act of terrorism—Prosecution case was that some unknown terrorists murdered the deceased and his vehicle was found in damaged condition along with his dead body—Appreciation of evidence—Recovery of weapons of offence from accused and empty shells—Reliance—Scope—Record showed that one .30-bore pistol/weapon of offence was recovered by police on the pointation of the accused in presence of marginal witnesses—Another 30-bore pistol was recovered by police on the pointation of co-accused in presence of marginal witnesses—Police had recovered one empty shell and one pellet of .30-bore pistol from the damaged vehicle of the deceased in presence of witnesses—Police had also recovered one empty shell of .30-bore pistol from the place of occurrence—Record transpired that weapons of offence, empty shells and sika goli of .30-bore pistols were sent by the prosecution to National Forensic Science Arms for analysis and expert opinion—Report of expert being positive supported the prosecution version.

2019 PCrLJ 1310 Gilgit-Baltistan Chief Court

SHER KHAN VS State

497—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Penal Code (XLV of 1860), Ss. 427, 457 & 34—Act of terrorism, mischief causing damage to the amount of fifty rupees, lurking house trespass or house-breaking by night in order to commit an offence punishable with imprisonment, common intention—Bail, refusal of—Crime against society—Girls Primary School was burnt into ashes by unidentified accused persons—Petitioners (three in number) were neither nominated in the FIR nor any incriminating material evidence was available on record—Record revealed that petitioners were hardened criminals and their acts of burning the school had maligned the country at international level—Offence committed by the petitioners was an offence against the society—Chief Court observed that such type of hardened and desperate criminals could not and should not be let loose on the society—Bail was refused to the petitioners, in circumstances.

2019 PCrLJ 57 Gilgit-Baltistan Chief Court

SHOAIB AHMAD VS State

Ss. 302, 364-A, 377 & 34—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 32—Juvenile Justice System Ordinance (XXII of 2000), S.14—SRO No.572(I)/2012, dated 3-5-2012—Qatl-i-amd, kidnapping or abducting a person under age of fourteen, sodomy, common intention, act of terrorism—Trial by Anti-Terrorism Court—Accused persons, raised the objection that they being minors, their trial by Anti-Terrorism Court was coram non judice and they were to be tried under Juvenile Justice System Ordinance, 2000 and that case was not that of terrorism, but that of murder and was to be tried by the court of ordinary jurisdiction—Contentions of counsel for accused persons were wholly misconceived, as offence committed by minors could validly be tried by Anti-Terrorism Court as S.32 of Juvenile Justice System Ordinance, 2000 had provided that the said provision was in addition to and not in derogation of any other law—Contention that the trial of accused persons was coram non judice did not hold the field, thus repelled—Objection that case of accused persons was that of murder, therefore, was to be tried by the court of ordinary jurisdiction, was without foundation as notification SRO No. 572(I)/2012, dated 30-5-2012, had conferred the powers of Juvenile Court to the Judge, Anti-terrorism Court.

2019 PCrLJ 57 Gilgit-Baltistan Chief Court

SHOAIB AHMAD VS State

6—Procedure of Juvenile Court—Interpretation, applicability and scope of S.6, Anti-Terrorism Act, 1997—Section 6 of the Act defines the offences falling in the category of “Terrorism”—Provisos to said section had shown that the section was divided into two main parts; the first part contained in S.6(1)(h) and (c) of the Act, deals with the mens rea and makes a mention of the “design” or the “purpose” behind an action and the second part falling in S.6(2) of the Act specifies that the action taken when coupled with the mens rea, would constitute an offence—Critical study of S.6(2) of the Act, depicts that the intention of legislature was very clear—If use of threat or action would create serious risk to the safety of the public or section of public; the same was designed to frighten general public and thereby prevented them from coming out and carry out their ordinary pursuit business, lawful trade, daily business or disrupted the civil life or tempo of life, same would definitely fall within the definition of “terrorism”.

2019 PCrLJ 57 Gilgit-Baltistan Chief Court

SHOAIB AHMAD VS State

Ss. 302, 364-A, 377 & 34—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Qatl-i-amd, kidnapping or abducting a person under age of fourteen, sodomy, common intention—Appreciation of evidence—Crime detected through CCTV footage and accused was arrested, who disclosed the fact of burying the dead body of the deceased in a cave; which was later on recovered on the pointation of accused in the presence of marginal witness—Post-mortem on the dead body was conducted on the same day—Injuries on the person of the deceased, were sufficient to cause death and the time which elapsed between death and postmortem was more than 24 hours, which also coincided with the time of disappearance of the deceased child—Both the prosecution witnesses remained un-shattered despite lengthy and exhaustive cross-examination—After the amendment knocked in Art.164, Qanun-e-Shahadat, evidence procured through modern devices, was admissible in evidence—Last seen evidence was available in the shape of CCTV footage and it had also come on record that deceased was never seen alive till his dead body was recovered on the pointation of accused—Statement of prosecution witness, who was uncle of deceased, was also in line with the statement of other prosecution witness and both the statements were consistent on all material particulars—Weapon of offence (knife) recovered on the pointation of accused was sent to Chemical Examiner and the report was positive—One blood-stained stone was also recovered from the place of occurrence on the pointation of accused—Chemical Examiner also confirmed that the blood-stains present on the last worn clothes of the deceased and the one present on the stone, were of the same group—Site plan prepared by Investigating Officer and exhibited in court, was admissible in evidence—Case of accused, was not a case of kidnapping or abduction as on offer to purchase some fire crackers, the deceased himself willingly accompanied accused persons; it could not be said that deceased was either kidnapped or abducted as per mandate of S. 364-A, P.P.C.—Police report submitted under S.173, Cr.P.C., showed the motive of murder was that prior to the incident, accused were committing sodomy with the deceased—Motive of murder and such statement had not been challenged either way—Conviction under S.377, P.P.C., was valid and maintained—Conviction of accused under S.302, P.P.C., read with Ss.6 & 7 of Anti-Terrorism Act, 1997, was maintained and murder reference was answered in affirmative.

2019 PCrLJ 57 Gilgit-Baltistan Chief Court

SHOAIB AHMAD VS State

Ss. 302 & 34—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Qatl-i-amd, common intention, act of terrorism— Appeal for enhancement of sentence—Conversion of appeal into revision—Main accused was convicted and sentenced to death while two co-accused were awarded life imprisonment—Main accused had injured the deceased in a barbaric manner; two co-accused remained on guard and facilitated in the accomplishment of the task—Accused persons were not suffering from lack of maturity while committing the said brutality nor were unaware of the consequences—Where the circumstances justified that accused persons had acted prudently although in a perverse manner, neither juvenility nor the young age of accused would come to rescue them from the harshest penalty which could be given in such like cases—Accused persons were rightly convicted and sentenced; however, the age of two co-accused had been shown 13 years each respectively, their sentence of life imprisonment could not be enhanced to death—Young age in heinous offences was always not considered a decisive factor and the quantum of sentence would vary from case to case—Appeal was converted into revision and was dismissed, in circumstances.

2019 MLD 1424 Gilgit-Baltistan Chief Court

State VS IMRAN HUSSAIN

Ss. 324, 114 & 34—Anti -Terrorism Act (XXVII of 1997), Ss. 6, 7 & 21-L—Criminal Procedure Code (V of 1898), S.417—Attempt to commit qatl-i-amd, abettor present when offence was committed, common intention, act of terrorism—Appeal against acquittal—Appreciation of evidence—Prosecution case was that some unknown persons/culprits opened fire on the brother of complainant, which hit his face—Accused persons were acquitted by the Trial Court, whereas proclaimed offender was convicted under S. 21-L of the Anti Terrorism Act, 1997—Admittedly accused-respondents were not directly charged in the FIR rather it was registered against unknown culprits, despite the fact that the occurrence took place in the bazaar at day time as evident from the contents of FIR—No eyewitness had witnessed the occurrence and no weapon of offence had been recovered from the possession of the accused persons or on their pointation—Identification parade of the accused persons was not held after their arrest—In the present case, prosecution had produced confessional statements of the accused persons recorded by a police officer, but said statements were retracted by the accused persons—Possibility could not be ruled out that the confessional statements recorded by the police officer were tutored one, hence the same had no evidentiary value—Appeal against acquittal having no material was dismissed, in circumstances.

2019 MLD 1034 Gilgit-Baltistan Chief Court

SADDAM VS State

Ss. 395 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7 & 21-H—Criminal Procedure Code (V of 1898), S. 164—Dacoity, common intention, act of terrorism—Confessional statement of accused—Procedure—Accused must be produced before a Judicial Magistrate for recording his confessional statement—Statement under S.21-H of the Anti-Terrorism Act, 1997, howsoever transparent, could not be a substitute of confessional statement recorded under S.164, Cr.P.C.—Confessional statement recorded under S.21-H of the Anti-Terrorism Act, 1997 was always treated as suspected piece of evidence, until and unless it was shown by the prosecution that there were some compelling circumstances which were beyond the control of the Investigating Agency to produce the accused before a judicial Magistrate—No such compelling circumstances had been stated by the prosecution—Confessional statement of the accused recorded under S.21-H of Anti-Terrorism Act, 1997 was of no consequence, in circumstances.

2019 MLD 1034 Gilgit-Baltistan Chief Court

SADDAM VS State

Ss. 395 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Dacoity, common intention, act of terrorism—Appreciation of evidence—Benefit of doubt—Prosecution case was that accused along with his co-accused equipped with weapons broke into the check post with rope and looted official weapons and other articles on gunpoint—Record showed that none of the witness of the ocular account had stated a single word about the involvement of the accused nor identified him either in any identification parade or even in the trial court—Circumstantial evidence was also not worth reliance—No recovery had been effected on the pointation of the accused—Confessional statement of the accused was recorded by the Police Officer, which was not admissible in evidence—Circumstances established that no evidence worth reliance was available against the accused and all the evidence produced by the prosecution were defective—Appeal was accepted and accused was acquitted from the charges, in circumstances.

2019 MLD 570 Gilgit-Baltistan Chief Court

MUHAMMAD QAYUM KHAN VS State

497—Penal Code (XLV of 1860), Ss. 120-B, 123-A, 124-A & 153-B—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Pakistan Arms Ordinance (XX of 1965), S. 13—Criminal conspiracy, condemnation of the creation of the State and advocacy of abolition of its sovereignty, sedition, inducing students, etc. to take part in political activity, act of terrorism, possessing unlicensed weapons—Bail, refusal of—Allegation against the accused-petitioners was that they were members of anti-State organization, got subversive books/material containing anti-State and hatred material against the State and integrity of the country—Material collected during investigation, prima facie suggested that accused-petitioners were active members of an anti-state organization—In order to constitute a prima facie case against them, it was not necessary as to what part had been played by each of them and who was the principal offender and who was offender of lesser degree—Determination of degree of offence would tantamount to prejudice their case at that stage, when their trial had yet to take place—No ill-will or malice was attributed by the accused-petitioners against the Investigating Agencies—Act of the accused-petitioners fell within the definition of FITNA, which had been termed graver offence than murder—Accused-petitioners advertently wanted to crucify the interest of State at the altar of personal gains and did not deserve any concession—Bail petitions were dismissed in circumstances.

2019 PCrLJN 81 Gilgit-Baltistan Chief Court

JAWAHIR KHAN VS State

Ss. 302, 324, 353, 454, 500, 506(2) & 337-A—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, lurking house trespass or house breaking in order to commit offence, defamation, criminal intimidation, causing shajjah, act of terrorism—Appreciation of evidence—Prosecution case was that the accused had demanded installation of special line in his house from Shift Incharge of Public Works Department and on refusal by the said Incharge he hurled threats and abused him and thereafter entered into the substation, made firing due to which, one person died and complainant sustained injury on middle finger of his right hand—Accused was arrested red-handed and two pistols were taken into custody by the police—Scribe of FIR in the present case, who was also injured, rendered ocular account of the incident—Material aspects of said Scribe’s testimony was further augmented by the account of occurrence rendered by two witnesses—All the witnesses were eye-witnesses and the sequence in which the occurrence had taken place, had been meticulously brought on record by the said witnesses—Even the colour of clothes worn by the assailant had been told by the person lodging the FIR—Injured witness had lucidly explained the occurrence, visit of the accused to the place of occurrence, his demand of installation of special line, refusal of deceased, hurling of threats and abuses by the accused, his arrival after a few minutes having pistols in both hands discriminate firing over the witnesses, arrival of police and arrest of accused with the weapon of offence, was a common stance in the testimony of all the eye-witnesses including the injured one—Presence of witnesses on the spot, the opening of fire shots, witnesses receiving injuries and arrival of police had not only been established by the prosecution but by defence as well—Questions posed in cross-examination by the defence had reconfirmed the entire occurrence—Statement of another eye-witness was also in line with the rest of the eye-witnesses—During the cross-examination, said witness had stated that due to fear the people were running outside and only the Police personnel entered into the substation—Said particular statement portrayed the exact picture of what generally happened in such like situation—Witnesses, who rendered the ocular account being employees of the substation where the incident had taken place, were the most natural witnesses—Medical evidence ended up with the conclusion that fatal gunshot injury to vital organs heart and lungs, and cardio-vascular collapse worked in tandem to make the person breath his last—Accused was arrested on the spot and Investigating Officer took both the pistols in custody—SHO confirmed with respect to the call made by deceased and deputation of Police officials was yet another circumstance which added to the credibility of the sequence of events which had taken place on the relevant day and was sufficient to discard even a remote suspicion that said set of evidence was either a manipulated one or was carved by the prosecution—Evidence of marginal witness to the recovery of pistols lend credence to the ocular account furnished by the witnesses—Circumstances established that accused let loose a wave of savagery, took the life of deceased who died in harness and made a motivated and determined attempt at the life of rest for a frail motive which in all probabilities was quite incapable of generating such inhuman reaction—Appeal was dismissed, in circumstances.

2018 SCMR 397 SUPREME-COURT

MUHAMMAD ABBAS VS State

302(b)—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Constitution of Pakistan, Art. 185(3)—Qatl-i-amd and terrorism—Accused was convicted by Trial Court and sentenced to death on six counts, which was affirmed by High Court—Validity—Leave to appeal was granted by Supreme Court in order to reappraise the evidence.

2018 SCMR 397 SUPREME-COURT

MUHAMMAD ABBAS VS State

Ss. 302(b) & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Qatl-i-amd and terrorism— Mitigating circumstances— Common intention—Quantum of sentence—Trial Court convicted accused and sentenced him to death on six counts, and the same was affirmed by High Court—Plea raised by accused was that there were mitigating circumstances available towards reduction of sentence—Validity—No eye-witness had deposed that accused had actually fired at any of the deceased or caused any injury to any person—Extra-judicial confession attributed to co-accused confirmed such aspect of the matter as according to the same, accused merely accompanied his co-accused to the place of occurrence and remained present with motorcycle at the spot and had not caused any injury to any person during the incident in issue—Although a firearm was allegedly recovered from custody of the accused during investigation yet the firearm never stood connected with alleged offence—Accused was arrested way back in year 1997, and he remained behind the bars ever since—In terms of role attributed to accused, he did not deserve maximum sentence provided for the offence in question—Supreme Court altered sentence of death on six counts to imprisonment for life on six counts and also reduced amount of fine and compensations awarded to accused.

2018 SCMR 397 SUPREME-COURT

MUHAMMAD ABBAS VS State

Ss. 63, 65 & 302(b)—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Criminal Procedure Code (V of 1898), S. 544-A—Qatl-i-amd and terrorism—Fine and compensation—Quantum—Imprisonment in lieu of fine and compensation—Scope—Fine and compensation to legal heirs of deceased persons were also imposed upon the accused and in case of non-payment he was to undergo imprisonment—Validity—Fines imposed upon accused on each of the relevant counts were excessive and even sentences of imprisonment to be undergone in default of payment of fine were on the higher side—Order passed by Trial Court regarding payment of compensation by accused to heirs of each deceased was inappropriate and warranted interference—Supreme Court reduced amounts of fine and compensation each to Rs.50000/- on six counts or in default of payment thereof to undergo simple imprisonment for six months—Appeal was allowed accordingly.

2018 PLD 178 SUPREME-COURT

PROVINCE OF PUNJAB through Secretary Punjab Public Prosecution Department VS MUHAMMAD RAFIQUE

6 & Preamble—Cases attracting the provisions of Anti-Terrorism Act, 1997—Pre-requisites—Creating terror or sense of insecurity in the general public—Courts while deciding the question of attraction of the provisions of the Anti-Terrorism Act, 1997 had to see the manners in which the incident had taken place including the time and place and should also take note of whether the act created terror or insecurity in the general public—Where the action of the accused resulted in striking terror or creating fear, panic and sense of insecurity among the people in a particular vicinity, it amounted to terror within the ambit of S.6 of the Act—Courts were required to see whether the terrorist act was such that it would have the tendency to create the sense of fear or insecurity in the minds of the general public as well as psychological impact created in the mind of the society—Courts could form their opinion after going through the facts, circumstances and material so collected by the police in the case.

2018 PLD 178 SUPREME-COURT

PROVINCE OF PUNJAB through Secretary Punjab Public Prosecution Department VS MUHAMMAD RAFIQUE

6 & Preamble—Cases not attracting the provisions of Anti-Terrorism Act, 1997—Scope—Personal vendetta or enmity—Preamble of the Anti-Terrorism Act, 1997 clearly indicated that the said Act was promulgated for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences—In cases of the terrorism, the mens rea should be an object to accomplish the act of terrorism and carrying out terrorist activities to overawe the state, the state institutions, the public at large, destruction of public and private properties, assaulting the law enforcing agency and even at the public at large in sectarian matters—Ultimate object and purpose of the offending act must be to terrorize the society but in ordinary crimes committed due to personal vendetta or enmity, such elements were always missing, so the crime committed only due to personal revenge could not be dragged into the fold of terrorism and terrorist activities.

2018 PLD 178 SUPREME-COURT

PROVINCE OF PUNJAB through Secretary Punjab Public Prosecution Department VS MUHAMMAD RAFIQUE

Ss. 6 & 23—Transfer of case from Anti-Terrorism Court to court of ordinary jurisdiction—Scope—Personal enmity over property—Admittedly there was a dispute of a plot where the occurrence took place—Prosecution’s own case was that the complainant had filed a civil suit and on his application for initiation of contempt proceedings against the accused persons, a bailiff of the Court was appointed—Application of contempt of court and appointment of bailiff triggered the enmity which resulted in the present occurrence—Allegedly five persons fired specifically at complainant’s wife (deceased) hitting on her legs, but till that time there was no allegation of creating terror and insecurity in the general public—Subsequently, it was alleged that 26 persons, in order to create terror and insecurity in the general public, made indiscriminate firing, but, such allegation was not supported from any source as neither any crime empty was recovered from the place of occurrence nor anybody else received even a scratch on his person due to said indiscriminate firing—Due to the alleged indiscriminate firing not a single bullet hit on the walls of the plot in question which were 2.3 feet high—Furthermore, according to the complainant party, two police constables, who were guarding the complainant, were present at the place of occurrence, but it was not alleged by the prosecution that they were restrained by the accused persons to discharge their duties or anybody fired upon them or threatened them—Bailiff of the court and police constables, never claimed that they were fired at or they were threatened by the accused persons, instead they were subsequently introduced as accused persons in the case for abatement—Perusal of the allegations levelled in the FIR, the material so collected by the investigating officer and other surrounding circumstances of the case, showed that the present case was not triable under the provisions of the Anti-Terrorism Act, 1997—Appeal was dismissed accordingly.

2018 YLR 1782 QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD SADIQ VS SPECIAL JUDGE, ANTI-TERRORISM COURT-II, QUETTA

Ss. 392, 511, 353, 337-A, 337-D, 186, 147, 148 & 149—Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7 & 23—Robbery, attempting to commit offence punishable with imprisonment for life or a shorter term, assault or criminal force to deter public servant from discharge of his duty, shajjah, jaifah, obstructing public servant in discharge of public functions, rioting, rioting armed with deadly weapons, unlawful assembly, act of terrorism—Dismissal of petition for transfer of case from Anti-Terrorism Court to ordinary criminal court—Petitioners contended that provisions of S.6 of Anti-Terrorism Act, 1997 were not attracted in the case and offences mentioned in the FIR had no nexus with the definition of said section of the Act—Validity—Prosecution case was that petitioners committed offences on the main road, target was Security Force Officers—During scuffle, officials sustained injuries and petitioners tried to snatch official weapons from Security Force personnel—Petitioners were overpowered and Security Force personnel recovered different types of weapons and rounds from the possession of petitioners—Act of the petitioners on the main road created fear and insecurity to the general public—Act of the petitioners apparently involved serious violence against the members of the law enforcing agency, as such, case prima facie fell under S.6(m) and (n) of Anti-Terrorism Act, 1997—Anti Terrorism Court therefore, had exclusive jurisdiction to try the case—Constitutional petition was dismissed in circumstances.

2018 YLR 1782 QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD SADIQ VS SPECIAL JUDGE, ANTI-TERRORISM COURT-II, QUETTA

Ss. 6 & 12—Criminal Procedure Code (V of 1898), S.173—Jurisdiction of Anti-Terrorism Court—Determination—Anti-Terrorism Court, for taking cognizance and conducting trial of offences was to see that on what basis allegations were made in the FIR; that what was the material collected during investigation and surrounding circumstances; that whether alleged offence had any nexus with the object of the case; that particular act was act of terrorism or not; that there existed motivation, object, deign and purpose behind the act; that act had created fear and insecurity in the public or in a section of public or community or in any sect; that act had created fear, panic, sensation, helplessness and sense of insecurity among the people in the particular area—All said ingredients amounted to terror and as such fell within the ambit of S.6 of the Anti-Terrorism Act, 1997 and would be triable by Anti-Terrorism Court.

2018 PCrLJ 422 QUETTA-HIGH-COURT-BALOCHISTAN

ABDUL REHMAN alias LALO VS Mst. SHANI QAYYUM

Ss. 302, 147, 148 & 149—Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7 & 23—Qatl-i-amd, rioting, rioting armed with deadly weapons, unlawful assembly, act of terrorism—Dismissal of petition for transfer of case from Anti-Terrorism Court to an ordinary criminal court—Petitioners contended that impugned order was against law and facts and provisions of S. 6 of Anti-Terrorism Act, 1997 were not attracted in the case—Validity—Complainant of the FIR had specifically stated that her daughter was murdered in the name of honour killing by the petitioners—Record showed that ingredients of S. 6, Anti-Terrorism Act, 1997 were not attracted in the present case—Petition was allowed by setting aside order passed by the Trial Court and case was transferred to the court of ordinary jurisdiction.

2018 PCrLJ 422 QUETTA-HIGH-COURT-BALOCHISTAN

ABDUL REHMAN alias LALO VS Mst. SHANI QAYYUM

Ss. 6 & 12— Criminal Procedure Code (V of 1898), S. 173—Jurisdiction of Anti-Terrorism Court— Determination— Scope—Jurisdiction of Anti-Terrorism Court for taking cognizance and conducting trial of offences was to be initially determined on the basis of material collected during investigation and surrounding circumstances—Court was to see that ingredients of alleged offence had any nexus with the object of the case; that particular act was act of terrorism or not; that there existed motivation, object, design and purpose behind the act; that act had created sense of fear and insecurity in the public or in a section of public or community or in any sect; and that act had created fear, panic, sensation, helplessness and sense of insecurity among the people in the particular area—All said ingredients amounted to “terror” and as such fell within the ambit of S. 6 of the Anti-Terrorism Act, 1997 and would be triable by Anti-Terrorism Court.

2018 YLRN 169 PESHAWAR-HIGH-COURT

AMAN ULLAH VS MUHAMMAD ASHFAQ

365-A—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Kidnapping or abduction for extorting property, valuable security etc., act of terrorism—Appreciation of evidence—Benefit of doubt—Prosecution case was that on 30.8.2012 four persons made brother of complainant to sit in the car and then drove away—Complainant could not know the purpose for which his brother went with the said persons—Complainant could not guess whether his brother on his own went with the four persons or he was forced to go with them—Complainant entreated that his brother be traced out and recovered—On 25.10.2012, the abductee appeared before the local police and charged the accused persons for his abduction for ransom—Record showed that the abductee was recovered on 6.10.2012 till 25.10.2012 but neither he nor complainant reported to the local police about his release from the captivity—Charging the accused at a belated stage was fatal to the prosecution—Plausible explanation had not been given for the delay caused in implicating the accused, therefore, no reliance could be placed on the testimony of the prosecution witnesses—Record transpired that accused was identified through identification parade by the witness on 22.11.2012 and prior to holding the identification parade, accused were produced before the Trial Court on 1.11.2012 and the possibility of their showing to the identifier could not be ruled out—Identifier did not point out the specific role played by the accused in the crime—No importance could be attached to the identification parade in such circumstances—Prosecution had relied upon the ransom amount recovered from the accused persons but witness had not named any specific accused to whom he had paid the ransom—Alleged recovery of ransom amount paid, was recovered on the pointation of accused on 31.10.2012, statedly having been buried in ground by the accused—Such fact did not appeal to mind as no person would ever bury currency notes in ground—On the basis of same set of evidence, Trial Court had acquitted co-accused persons, against which neither the complainant nor the State had filed any appeal—No significant difference in the roles of all the accused was available, therefore, acquittal of the co-accused persons and its non-challenging had caused colossal damage to the prosecution—Prosecution had not proved its case against the accused beyond any reasonable doubt, benefit of which, would resolve in favour of accused—Accused was acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

2018 PLD 1 PESHAWAR-HIGH-COURT

MUHAMMAD AYAZ VS SUPERINTENDENT DISTRICT JAIL, TIMERGARA, DISTRICT LOWER DIR

59(1)(a)—Explosive Substances Act (VI of 1908), Ss. 4 & 5—Anti-Terrorism Act (XXVII of 1997), Ss. 6(2)(ee) & 7(1)(ff)—Designing vehicle for a terrorist act, attacking law enforcement agencies, possessing firearm and explosives—Quantum of sentence awarded by Field General Court Martial—Scope—Bare reading of S.59(1)(a) of the Pakistan Army Act, 1952 clearly revealed that the quantum of sentence that could be awarded by a Military Court could not go beyond that prescribed for the said offence under the ordinary penal laws enforced in Pakistan—Accused (a civilian) was awarded the death sentence by Field General Court Martial—Two striking features of the present case were that; firstly, the accused was not charged for the death of any person; and secondly he was not charged for actually causing an explosion—Charge against the accused was not for the act of causing an explosion—In fact, accused was charged for planting an explosive device, which act could fall under the offences provided under Ss. 4 & 5 of the Explosive Substances Act, 1908, which at best carried maximum punishment for life and not death—Punishment for offence involving use of explosive by any device given under S.7(1)(ff) of the Anti-Terrorism Act, 1997 also provided a maximum sentence of imprisonment for life but not death—Death sentence awarded to the accused by the Military Court warranted interference by the High Court in its Constitutional jurisdiction, as the Military Court lacked legal jurisdiction to award death penalty for the charges framed upon the accused—Sentence of death awarded to accused and the confirmation thereof passed by the Chief of Army Staff was set aside and the case was remanded back to the Military Court either to revisit the quantum of punishment awarded or to alter the charge framed against the accused and thereafter proceed against him under the law—Constitutional petition was disposed of accordingly.

2018 YLRN 188 LAHORE-HIGH-COURT-LAHORE

JALIL AHMED KHAN VS State

Ss. 6 & 7—Act of terrorism—Petitioner in a constitutional petition sought direction to the SHO to invoke provisions of S.6 of the Anti-Terrorisim Act, 1997—Petitioner had alleged that respondents accompanied by eight unknown persons, variously armed, encircled their vehicle, opened indiscriminate fire, in daylight, at a thoroughfare, resulting into injuries to a passerby—Such act of respondents was not only struck terror but was also capable of creating a sense of fear and insecurity amongst the public at large, thus was squarely cognizable under S.6 of the Anti-Terrorism Act, 1997—Validity—Record showed that respondents lodged a case of homicide against the petitioner and his brothers and that he along with prosecution witnesses was on way to attend proceedings therein, when they came under assault—Motive cited in the crime report was a reference to yet another murder case wherein complainant’s younger brother was allegedly murdered by the respondents—Conclusion, in such a situation, could be that alleged assault was not for the achievement of purpose contemplated by the Anti-Terrorism Act, 1997—Mere incidence of crime at public place, ipso facto would not bring the event within the mischief of S.6 of the said Act—Case was still at the investigative stage and High Court could not interfere with investigative processes in exercise of its Constitutional jurisdiction—Constitutional petition was dismissed.

2018 YLR 2658 KARACHI-HIGH-COURT-SINDH

Nawab SIRAJ ALI VS State

Ss. 6, 7 & 25—Criminal Procedure Code (V of 1898), S. 345 (2)—“Act of terrorism”—Appreciation of evidence—Compounding of offence—Personal vendetta—Effect—Plea raised by accused persons was that any act done under personal vendetta was not an “act of terrorism”—Validity—Motive concluded by Trial Court was personal vendetta and essential element of creating terrorism in public was never established nor attempted—Case prima facie fell in the category of cases not liable to be tried by Special Court—As there was personal vendetta, provision of S.6 of Anti-Terrorism Act, 1997, was misapplied by police as well cognizance and trial was not proper—High Court set aside judgment passed by Special Court and remanded the case to Sessions Court for de novo trial and that Court would be competent to decide application for compromise within the four corners of law—Appeal was allowed accordingly.

2018 YLR 1875 KARACHI-HIGH-COURT-SINDH

SIRAJ VS State

Ss. 6 & 7—Penal Code (XLV of 1860), Ss. 324, 353, 186—Explosive Substances Act (V of 1908), Ss.4 & 5—Sindh Arms Act (V of 2013), S.23 (i)(a)—Terrorism, attempt to commit qatl-i-amd, recovery of weapon, use of explosive substance—Police encounter—Proof—Appreciation of evidence—Accused persons were alleged to have committed police encounter and they were convicted by Trial Court and sentenced variously maximum up to imprisonment for fourteen years—Validity—Nobody received any injury from police side even no bullet was hit to police mobile during the encounter—Trial Court was silent in judgment with regard to police encounter, therefore, S.7 of Anti-Terrorism Act, 1997 was misapplied—High Court set aside conviction and sentence to the extent of S. 7 of Anti-Terrorism Act, 1997 awarded to accused persons—Recovery of alleged articles from possession of accused persons though were independent offenses and as S. 7 of Anti-Terrorism Act, 1997 was wrongly applied, sentence awarded to accused persons with regard to recovery of articles was reduced to one which they had undergone—High Court maintained conviction but reduced sentence to one which accused had already undergone and fines imposed were also remitted—Appeals were dismissed in accordingly.

2018 YLR 1875 KARACHI-HIGH-COURT-SINDH

SIRAJ VS State

Ss.6 & 7—Act of terrorism—Proof—Applicability of S.7, Anti-Terrorism Act, 1997—Every section of Anti-Terrorism Act, 1997, has independent definition and punishment for offences—Prosecution is obliged to prove the same as per requirement of law, besides proving allied offences—Section 7, Anti-Terrorism Act, 1997 has been applied, therefore, it is to be seen whether before applying S.7 of Anti-Terrorism Act, 1997, requirement of S.6 of Anti-Terrorism Act, 1997 has been fulfilled—Such aspect is to be seen with allegation on record and as to whether material collected by investigating officer and surrounding circumstances depicted commission of offence and whether a particular act is an act of terrorism or not—Motivation, object, design or purpose behind act has to be seen.

2018 YLR 1584 KARACHI-HIGH-COURT-SINDH

MUHAMMAD ASLAM VS State

Ss. 6 & 7(h)— Penal Code (XLV of 1860), Ss. 384 & 386— Extortion, demanding Bhatta and aerial firing— Appreciation of evidence— Benefit of doubt—Accused was convicted by Trial Court and sentenced to imprisonment for five years— Validity— Trial Court could not have convicted and sentenced an accused for offense under S. 7(h) of Anti-Terrorism Act, 1997 as mere firing in area for bhatta did not ipso facto bring case within purview of S. 6 of Anti-Terrorism Act, 1997 so as to brand action as terrorism— Ingredients for extortion of money were not satisfied, bhatta money, pistol and empties were not sealed at the spot—Overwriting was noticed in Mushirnama of arrest and recovery without explanation by prosecution—Several circumstances existed which created reasonable doubt in the case of prosecution—If a single circumstance which created reasonable doubt in a prudent mind about guilt of accused, accused was entitled to benefit not as a matter of grace and concession but as a matter of right— High Court set aside conviction against accused by extending him benefit of doubt— Accused was acquitted in circumstances.

2018 YLR 1455 KARACHI-HIGH-COURT-SINDH

NAZAR MUHAMMAD VS State

Ss. 302, 310-A & 201—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Qatl-i-amd, giving a female in marriage or otherwise in badl-e-sulah, causing disappearance of evidence of offence, or giving false information to screen offender, act of terrorism—Appreciation of evidence—Benefit of doubt—Prosecution case was that the daughter of complainant left his house with her paramour who returned his daughter after few days—Accused/appellants, who were uncle and cousin of the complainant thereafter took the daughter of complainant to their house for some time in order to avoid further disgrace—Complainant and his wife used to visit his daughter from time to time, at the house of accused-appellants but on one such visit, she was not present in the house—Accused-appellants had informed the complainant who had reached there with two witnesses, that she did not want to remain there and wanted to go out of their house—Daughter of complainant was murdered by accused and buried in the ditch to preserve the family honour—Record showed that complainant and his two relatives were the key prosecution witnesses—Said witnesses in the FIR and in their statements recorded under S.164, Cr.P.C. had stated that accused-appellants had murdered the deceased but resiled before the Trial Court and refused to support the prosecution case—Said witnesses stated that accused-appellants had told them that deceased had left their house, they and other relatives searched for her and came to know that her dead body was buried near the graveyard—Witnesses denied that they had changed their evidence due to compromise, threat, inducement or for any other reason—Dead body was exhumed which was identified by the complainant as his daughter—Said witnesses were declared to be hostile—Names of the accused-appellants had been added by the police—Circumstances established that prosecution failed to prove its case against the accused beyond reasonable doubt—Accused-appellants were acquitted by setting aside conviction and sentence recorded by the Trial Court.

2018 YLR 1455 KARACHI-HIGH-COURT-SINDH

NAZAR MUHAMMAD VS State

2018 PCrLJ 1313 KARACHI-HIGH-COURT-SINDH

ABDUR RAB alias ALI AKBER VS State

Ss. 6 & 12—Criminal Procedure Code (V of 1898), S. 173—Jurisdiction of Anti-terrorism Court—Scope and extent—Anti-Terrorism Court for taking cognizance and conducting trial of offences, had to make tentative assessment with reference to allegations levelled in the FIR, the materials collected by the investigation agency and the surrounding circumstances, depicting the commission of the offence.

2018 PCrLJ 1064 KARACHI-HIGH-COURT-SINDH

SAJJAD alias SAJJU VS State

Ss. 6 & 7—Penal Code (XLV of 1860), Ss. 324, 394, 353 & 34—Terrorism, attempt to commit qatl-i-amd, voluntary causing hurt in committing robbery, assault or criminal force to deter public servant from discharge of his duty—Appreciation of evidence—Complainant (police) alleged that three unknown accused persons fired straight upon a constable (injured) who was posted as guard at the bungalow of an Additional District and Sessions Judge—During investigation accused persons were arrested but after their arrest no identification parade was held—Identification of the accused on headlights of vehicle and street light was weak source of identification and in peculiar circumstances of case it was highly doubtful—Identification of the culprits before the Trial Court was unsafe to rely for conviction—Investigating Officer arrested the accused persons on the ground that he had spy information that accused persons were involved in the commission of the offence—Injured had deposed that in fact there were six accused persons but had not described the features of the accused in his statement under S.161, Cr.P.C.—Evidence of injured was not straightforward and confidence inspiring—Injured witness would not be relied upon ipso facto because of injuries but it had to be examined that whether the evidence was trustworthy and confidence inspiring—No piece of evidence had been produced by the prosecution to connect the accused persons in the commission of the offence—Appeal was allowed accordingly.

2018 PCrLJ 976 KARACHI-HIGH-COURT-SINDH

Syed ZAKI KAZMI VS State

Ss. 3 & 4—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7— Act of terrorism, causing explosion likely to endanger life and property, making or possessing explosives substance—Appreciation of evidence—Benefit of doubt—Prosecution case was that the accused along with his co-accused lobbed two hand grenades towards (Diplomatic) Consulate consecutively, one hit the gate and the other landed inside the Consulate—Record showed that complainant, other police officials and Rangers’ personnel were present at the place of occurrence but they did not act to either apprehend the accused or try to chase them and did not fire a single shot on them—Such conduct of the police and other officials alleged to be present at the spot did not appeal to a prudent mind and gave the impression that they were not present there at the relevant time—No explanation was available as to how the accused escaped unscathed without any resistance or retaliation mounted by law enforcement agencies—Prosecution had not submitted any document (daily diary) to establish the duty of the said police officials and others at the Consulate on the day of incident—Investigating Officer had admitted that the police officials who had identified the accused at police station were posted at police station on the day of incident—If the said police officials were posted at police station then how their presence could be assumed at the place of incidence without any documentary evidence to show their deployment there—Prosecution had failed to lead confidence inspiring evidence to establish presence of the complainant and other witnesses at the spot on the relevant date—Prosecution produced a witness, who was estate agent/property dealer, appeared to be a chance witness and had not been able to satisfactorily prove his presence at the spot on the relevant date—Circumstances established that prosecution failed to prove its case beyond any shadow of doubt, benefit of which would resolve in favour of accused—Accused was acquitted by setting aside the conviction and sentence recorded by the Trial Court.

2018 PCrLJ 586 KARACHI-HIGH-COURT-SINDH

ZAHOOR AHMED alias ABDUL KARIM VS State

Ss. 302, 324, 353 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7 & 23—Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism—Act of terrorism—Scope—Transfer of case from ordinary criminal court to the Anti-Terrorism Court was challenged on the ground that after eight years, Trial Court had passed the order for resubmitting the final report before the Anti-Terrorism Court and that prosecution case was fit for trial before the ordinary criminal court—Validity—Prosecution case was that encounter took place between accused persons and the police wherein one police Head Constable died due to firing by the accused persons—Act of firing at police, when they were discharging their duties, was actually an “act of terrorism” and such persons were required to be tried by the Anti-Terrorism Court only—Offence, therefore, fell in the ambit of Third Schedule of Anti-Terrorism Act, 1997, which was, triable by Anti-Terrorism Court—Criminal Miscellaneous Application was dismissed accordingly.

2018 PCrLJ 586 KARACHI-HIGH-COURT-SINDH

ZAHOOR AHMED alias ABDUL KARIM VS State

Ss. 302, 324, 353 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7 & 23—Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism—Anti-Terrorism Court, jurisdiction of—Involvement of accused in an act of serious violence against member of the police force, armed forces, civil armed forces, or a public servant was an act of terrorism and would be triable by the Anti-Terrorism Court.

2018 PCrLJ 324 KARACHI-HIGH-COURT-SINDH

WASEEM YOUSUF VS State

Ss. 6, 7 & 23—Penal Code (XLV of 1860), Ss. 386, 419, 170 & 34—Application for transfer of case from Anti Terrorism Court to the court of ordinary jurisdiction was dismissed—Validity—Prosecution case was that son-in-law of complainant was kidnapped by some persons for ransom—Accused being friend of complainant introduced a person as Colonel of Rangers Intelligence and given assurance that he would manage for the recovery of his son-in-law in lieu of Rs. three crore—Complainant had managed Rs. thirty lac which was forcibly snatched by the said person, thus committed cheating and fraud on behalf of Rangers for damaging their reputation—Accused had alleged that, in the present case, neither any weapon had been used nor the complainant party had been put under any fear, therefore, the act did not come within the definition of “terrorism”—Material on record showed that the ingredients required to meet the definition of “kidnapping for ransom” as laid down in S. 2(n), Anti-Terrorism Act, 1997 lacked in the present case and accused had not even been charged under said section—Record showed that evidence of complainant had been recorded before the Anti-Terrorism Court and he deposed that the accused had committed robbery—Circumstances and facts of the case showed that accused-applicant attempted to mislead the complainant by using the name of the Rangers in attempting to extract money from the complainant—Said offence took place in a small private room secretly and was not within the knowledge of public—No uniform was ever worn to indicate that any Rangers personnel was involved—Public had no idea that unscrupulous persons were using the name of the Rangers to create a sense of fear or insecurity in society or amongst the business community by suggesting that the Rangers were involved in extortion of kidnapping for ransom—Material on record showed that said matter involved the complainant and the accused-applicant and the other accused alone and not the public at large, which act did not intimidate or terrorize the business community or the public at large who remained completely unaware of the same—No intention was on record from where it could be inferred that the act was designed to terrorize the general public or society at large—Circumstances established that present was not the case of extortion of money falling within the scope of Anti-Terrorism Act, 1997—Ingredients of S. 6(1)(b) or (c) Anti-Terrorism Act, 1997 had not been made out, as such case did not fall within the ambit of the said Act—Criminal revision petition was allowed, case was ordered to be transferred to the ordinary criminal court.

2018 PCrLJ 324 KARACHI-HIGH-COURT-SINDH

WASEEM YOUSUF VS State

Ss.6, 7 & 23—Penal Code (XLV of 1860), Ss. 386, 419, 170 & 34—Act of terrorism—Determination—Principles—In order to consider whether offence was made out under the Anti-Terrorism Act, 1997, the material on record and the surrounding circumstances were to be considered.

2018 MLD 1621 KARACHI-HIGH-COURT-SINDH

MALOOK VS State

Ss. 324, 332, 353, 337-H(2), 337-A(i), 337-F(i), 504, 147, 148 & 149—Anti-Terrorism Act (XXVII of 1997), Ss. 6 &7—Attempt to commit qatl-i-amd, causing hurt, assault or criminal force to deter public servant from discharge of his duty, act so rashly or negligently as to endanger human life or the personal safety of others, causing shajjah-i-khafifah, causing damiyah, intentional insult with intent to provoke breach of the peace, rioting, rioting armed with deadly weapon, unlawful assembly, act of terrorism—Appreciation of evidence—Benefit of doubt—Prosecution case was that Military Intelligence arrested an Indian Agent—Said Agent cried by calling helper and thereafter 9/12 persons armed with deadly weapons assaulted on the Military Intelligence team and made firing upon them—Complainant party resisted but as the accused persons were more in number, complainant party received injuries, therefore, the accused persons forcibly took away the Agent from their captivity—Prosecution, in order to establish the case, produced as many as nine witnesses—Record showed that police had charged eleven accused, whereas six were acquitted of the charge and remaining five were convicted—Incident took place at about 2.30 a.m., but the source of identification had not been disclosed by the prosecution witnesses—Despite odd hours and in absence of any source of identification, the complainant party had identified all the accused with parentage under very tense position, particularly when indiscriminate firing had taken place—Admittedly, there was delay of 21-hours in lodging of FIR, which suggested that FIR had been lodged after due consultation and deliberation—Both the parties were armed with sophisticated weapons and they made straight fires upon each other but none from either side had received any single injury, which was unbelievable—Such fact was also denied by circumstantial evidence—Trial Court had acquitted the accused from the charge of firing upon the complainant party—Mashirs of place of the incident, who, was Army personnel, admitted the fact that police did not secure any empty from the place of incident—Evidence of prosecution witnesses appeared to be unreliable, untrustworthy and unbelievable—Trial Court acquitted some of the accused by extending the benefit of doubt and convicted some of the accused from the charge on the same set of evidence without any legal justification—In the present case, fatal injury caused to complainant was attributed to one of the co-accused, who had died during the pendency of the case—Circumstances established that prosecution case was full of doubts, benefit of which would resolve in favour of accused persons—Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court.

2018 MLD 1377 KARACHI-HIGH-COURT-SINDH

MUHAMMAD SHAFIQ VS State

Ss. 324, 353 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Explosive Substances Act (VI of 1908), Ss. 4 & 5—Sindh Arms Act (V of 2013), S. 23(1)(a)—Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism, causing explosion likely to endanger life or property, attempt to cause explosion of, for making or keeping explosion with intent to endanger life or property, possessing unlicensed arms—Appreciation of evidence—Benefit of doubt—Prosecution case was that police party while on patrol duty, had seen three persons walking on foot and signaled them to stop—Persons so signaled instead of stopping opened fire on the police party—Police retaliated and arrested said three persons/accused and three grenades and pistols were recovered from their possession—Allegedly, accused persons fired six rounds directly at the police party from a relatively short distance—Police party discharged one hundred and one rounds directly at the accused persons—Record showed that none of the members of police party, the accused, the police mobile or any other property or vehicle was injured or hit in the encounter—Prosecution had given exact number of bullets fired but only ten empties were recovered which discharged from the weapons of the police party—Facts and circumstances established reasonable doubt about the encounter, benefit of which would resolve in favour of accused persons—Accused were acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

2018 MLD 1377 KARACHI-HIGH-COURT-SINDH

MUHAMMAD SHAFIQ VS State

Ss. 324, 353 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Explosive Substances Act (VI of 1908), Ss. 4 & 5—Sindh Arms Act (V of 2013), S. 23(1)(a)—Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism, causing explosion likely to endanger life or property, attempt to cause explosion of, for making or keeping explosion with intent to endanger life or property, possessing unlicensed arms—Appreciation of evidence—Recovery of weapons of offence from accused persons—Allegation on the accused persons was that they made firing on the police party—Pistols and grenades were recovered from the possession of accused persons—Reports of Bomb Disposal Unit showed that three recovered grenades were without detonators—Police party returned to the police station at 0140 hours but Bomb Disposal Unit was not summoned till 1224 hours—Prosecution had not been able to explain the delay or where and how the hand grenades were kept during said period—Delay had given rise to the inference that the occurrence, if any, did not take place in the manner projected by the prosecution and the time was consumed in making effort to give coherent attire to the prosecution case—Disparity between the weapons allegedly recovered and the weapons produced in evidence existed—Report of Forensic Science Laboratory showed that three .30-bore test empties were sealed and sent back to the Investigating Officer—None of the witnesses had produced said parcel in evidence—Make, model, color or any identification mark of the seized pistols or the grenades was not mentioned in the memo. of arrest and recovery of the grenades—Circumstances established reasonable doubt about the veracity of prosecution case, benefit of which would resolve in favour of accused persons—Accused were acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.

2018 MLD 1116 KARACHI-HIGH-COURT-SINDH

IMRAN MALIK VS State

507—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Criminal Procedure Code (V of 1898), S. 103—Criminal intimidation by an anonymous communication, act of terrorism—Appreciation of evidence—Benefit of doubt—Prosecution case was that the police received telephonic calls from unknown person, issuing threat that he would commit suicide bomb attack within city and that before the blast, he would make aerial firing to create terror and would firstly kill prominent doctors by way of target killing and also to kill the general public—Police conveyed the messages on wireless control and put the city police on high alert—Prosecution produced telephone operators, who received telephone calls and put the police on high alert—-Complainant, Investigating Officers and witnesses of recovery and arrest of accused were also produced to prove the charge against the accused—Evidence of the telephone operators and complainant was found to be convincing and corroborated not only through their oral evidence but also through their actions and steps as was supported by the various roznamcha entries, which came on record during trial—None of these witnesses were damaged on cross-examination—Statements of said witnesses under S. 161, Cr.P.C. were recorded promptly and no major contradictions were found in their statements—Said factors showed that the calls were that made and received and the contents were that of a threat to the public but did not connect the accused with the commission of offence—Record showed that there was no eye-witness to see the accused while making such calls—No recording of call of accused was available on the basis of which exact words could be captured—None of the witnesses who actually heard the caller over the phone were ever confronted with the voice of the accused to see if the same had likeness—Memo of arrest and recovery did not show that mobile phone and SIM were damaged but when exhibited, the same was found damaged—Representative of the phone company stated that calls had been made through the recovered SIM but he was unable to say whom the SIM belonged to—Investigating Officer proved that phone and SIM were in working order by making a call to the Police Officer/witness but no such call was shown on the computerized record relating to the recovered SIM—Said Police Officer/witness did not confirm that such call was made to him—Neither the phone nor SIM were sealed as admitted by the Investigating Officer but he was contradicted by the evidence of recovery witness, which showed that phone and SIM were sealed on the spot—Record showed that Investigating Officer received secret information that accused was the caller and he was available at railway pattack at the time of his arrest—Investigating Officer after the receipt of secret information had plenty of time to arrange for independent witnesses but he failed to do so—Investigating Officer deposed that accused was arrested in the day time from a busy area and 5 or 6 persons were gathered at the time of arrest of accused but none of them was made as independent witness—Evidence of Investigating Officer showed that he asked the said persons to become witness but all refused—Witness in contradiction of Investigating Officer stated that no person gathered at the time of arrest despite same being a busy road—Witness stated that secret information was received whilst they were out on patrol but Investigating Officer stated that he received secret information whilst they were at the police station—Delay of over three hours in arresting the accused from a place which was only two kilometers away from the police station remained unexplained and did not appeal to reason that the accused had allegedly been giving very serious threats about causing terrorist relating activities—No entry to leave the police station was made by the Investigating Officer, which alone could be fatal for the prosecution case—Record transpired that there was no evidence that a description of appearance of accused was ever given—Newspaper articles produced by the accused at trial were unchallenged and indicated that such threatening calls were still being made to the police after the arrest of the accused, which was the indication that the police might have got the wrong person—Circumstances established that prosecution had not been able to prove that the accused was the person who made the threats to police by telephone—Accused was acquitted in circumstances by setting aside the conviction and sentence recorded by the Trial Court.

2018 MLD 1116 KARACHI-HIGH-COURT-SINDH

IMRAN MALIK VS State

507—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Criminal intimidation by an anonymous communication, act of terrorism—Contradictions in the statements of witnesses—Effect—Number of contradictions between the evidence of Investigating Officer and recovery witness regarding the arrest and recovery of the accused existed—Said contradictions would be fatal to the prosecution case—Accused could not be convicted on the basis of said major contradictions and without strong, credible and reliable corroborative evidence.

2018 MLD 345 KARACHI-HIGH-COURT-SINDH

MEHBOOB VS State

Ss. 302, 365-A & 201—Anti-Terrorism Act (XXVII of 1997), S. 6(2)(a)—Criminal Procedure Code (V of 1898), Ss. 164 & 342—Qatl-i-amd, kidnapping or abduction for extorting property, valuable security etc., causing disappearance of evidence of offence, or giving false information to screen offender, doing anything that caused death—Appreciation of evidence—Confession of accused—Effect—Prosecution case was that accused-appellant kidnapped the minor son of complainant for ransom but murdered the child—Complainant, father of the deceased child had given the entire episode of the incident—Evidence of complainant remained unchallenged and un-rebutted on all material particulars of the case—Accused got recorded his confessional statement before the Judicial Magistrate—Judicial Magistrate appeared and deposed that after observing legal formalities and providing sufficient time to accused for reflection, he recorded the confessional statement of accused, wherein he admitted that he had kidnapped the boy for ransom and killed him—Accused had admitted in his statement recorded under S. 342 Cr.P.C. that he had kidnapped the boy for ransom—Accused stated that he did not receive the ransom amount from the complainant and he murdered the child—Accused admitted that after killing the boy, he buried the dead body in sand dunes—Accused also admitted that he voluntarily made confessional statement before Judicial Magistrate regarding kidnapping the minor for ransom and intentionally caused his death—All the incriminating pieces of evidence were put to the accused for his explanation, he admitted the same to be true and correct—Accused examined himself on oath in which he had admitted the case of prosecution—Circumstances established that prosecution had proved its case against the accused for the reasons that accused pleaded guilty to the charge and the trial court for its satisfaction, recorded prosecution evidence—Appeal against conviction was dismissed in circumstances.

2018 MLD 345 KARACHI-HIGH-COURT-SINDH

MEHBOOB VS State

Ss. 302, 365-A & 201—Anti-Terrorism Act (XXVII of 1997), S. 6(2)(a)—Qatl-i-amd, kidnapping or abduction for extorting property, valuable security etc., causing disappearance of evidence of offence, or giving false information to screen offender, doing anything that caused death—Appreciation of evidence—Defence plea—Scope—Defence had alleged that accused-appellant was of unsound mind and incapable of making his defence—Record showed that such plea was neither raised before the Investigating Officer nor at the stage of trial—Even before the High Court, at the time of arguments, no request had been made for referring the accused-appellant for his medical examination—Accused seemed to be a hardened criminal therefore, plea raised by defence appeared to be an afterthought and the same was not accepted—Appeal against conviction was dismissed in circumstances.

2018 MLD 345 KARACHI-HIGH-COURT-SINDH

MEHBOOB VS State

2018 YLRN 289 KARACHI-HIGH-COURT-SINDH

SHER ZAMAN through Jail Superintendent, Karachi VS State

Ss. 4 & 5—Anti Terrorism Act (XXVII of 1997), Ss. 6(2)(ee) & 7—Use of explosives by any device including bomb blast, attempt to cause explosion, making or keeping explosives with intent to endanger life and property, making or possessing explosives under suspicious circumstances, act of terrorism—Appreciation of evidence—Benefit of doubt—Prosecution case was that on spy information, police apprehended the accused and on his personal search, police recovered 9-MM pistol loaded with one live bullet in its chamber and seven live bullets in its magazine, 30-bore pistol loaded with five bullets and two magazines containing five live bullets each as well as one rifle grenade—Case being of spy information, complainant did not bother to associate with him any independent person of the locality although, place was a thickly populated area—No plausible explanation was offered by the prosecution as to why police did not associate any independent person to witness the arrest and recovery proceedings—Allegedly, accused on seeing the police party, started firing upon them and in retaliation, police party also fired with sophisticated weapons—Surprisingly, during the encounter, nobody received any injury from either side—No bullet hit the police vehicle—Mashirnama showed that a private person was cited as mashir, but prosecution had failed to produce said person in witness box—No explanation had been tendered by prosecution to justify the non-production of said witness—Said act of withholding of most material witness would create an impression that the said witness, if would have been brought into the witness box, might not have supported the prosecution case—Said factor caused a dent in the prosecution case, therefore false implication of the accused could not be ruled out—Evidence and documents available on record were contradictory to each other on material particulars of the case—Allegedly, as per FIR, one rifle grenade was recovered from the accused, while charge was framed describing the number of rifle grenade as different which did not match with the number mentioned in the FIR and mashirnama—Challan sheet showed the number of recovered rifle grenade quite different—Complainant in his evidence had described the number of rifle grenade altogether different—Expert of Bomb Disposal Unit in his evidence had produced clearance certificate, which did not show any number of said rifle grenade—Alleged rifle grenade was recovered from the accused on 2.4.2013 at 0200 hours but inspection report showed that same was inspected at about 1700 hours at police station, after the delay of fourteen hours—Possibility of tampering with the alleged rifle grenade at police station could not be ruled out—Prosecution had failed to establish safe custody of rifle grenade at police station—Trial Court, in circumstances, had failed to establish that act of accused created sense of terror—No evidence was led on said point, therefore, the element of “terrorism” was missing in the case—Mashirnama showed that one 9MM pistol and one 30-bore pistol along with live bullets were recovered from the accused, but there was nothing on record to show as to whether accused was separately challaned for said offences or alleged recovered weapons and live bullets were sent to the Forensic Laboratory for report or not—Admittedly, incident took place during the midnight—Source of identification had not been mentioned and under which light, police had prepared the mashirnama of arrest and recovery—Number of infirmities/ lacunae, existed in the case which had created serious doubt in the prosecution case, benefit of which, would resolve in favour of accused—Appeal was allowed and accused was acquitted in circumstances.

2018 YLRN 96 KARACHI-HIGH-COURT-SINDH

ABDUL RAZAK VS State

365-A—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Criminal Procedure Code (V of 1898), S. 103—Kidnapping or abduction for extorting property, valuable security etc., act of terrorism—Appreciation of evidence—Benefit of doubt—Prosecution case was that servant of complainant took his son aged about 2Â½ to 3 years out of the house, but did not come back—Complainant received a phone call on his mobile phone from a caller, who told that his son was kidnapped and rupees one crore were required for his release—Record showed that most of the evidence for kidnapping rested against servant of the complainant as he was named in the FIR—Complainant’s own statement was that according to his wife, it was his servant who left the house with the minor abductee to get juice—Allegedly, servant of the complainant was found and arrested with the abducted minor—Allegedly, abductee was recovered by the police through operation which took place at the graveyard—Police officials/eye-witnesses who made the recovery of the abductee and were present when accused were arrested, were not able to recognize the accused in the court—Complainant had deposed that Police Officer had told him that his son was recovered and could be taken from him—Complainant went to the police station and received his son—Said statement of the complainant was contradictory, major in nature, to all the police officials/witnesses who were a part of the team involved in the recovery of the abductee—Memo of arrest and recovery, which specifically stated that the complainant and his brother were both at the time of the arrest and recovery of the abductee—Brother of complainant was not called as a prosecution witness—Statement of the complainant showed that no police operation took place at the grave yard and abductee was not recovered from there—Role of accused could have been foisted on them by the police especially when there was no independent witness—Despite the fact that police acting on spy information, had more than enough time and opportunity to take independent witness with them as the recovery was allegedly made in morning hours; such was a violation of S.103, Cr.P.C.—No Call Data Record was produced to show that any call was actually made to the mobile phone of complainant by any of the caller—No mobile phone was recovered from any of the accused at the time of their arrests—No confessional statement from any of the accused was on record—Complainant had not arranged money after the alleged ransom demand—No motive had been shown as to why the servant of complainant or any of the other accused wanted to kidnap the son of complainant—Circumstances established that prosecution had failed to prove its case beyond a reasonable doubt, benefit of which would resolve in favour of accused—Accused persons were acquitted by setting aside conviction and sentence recorded by the Trial Court.

2018 YLRN 96 KARACHI-HIGH-COURT-SINDH

ABDUL RAZAK VS State

365-A—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Kidnapping or abduction for extorting property, valuable security etc., act of terrorism—Appreciation of evidence—Delay in lodging FIR—Effect—Delay of few days in lodging the FIR, in a kidnapping of child for ransom case, was not fatal to the prosecution case—Parents, in such cases, were frantically looking for their missing child—Before deciding to register FIR, as a last resort, once the realization finally sets in that their child was not with a friend or relative and was missing.

2018 PCrLJN 221 KARACHI-HIGH-COURT-SINDH

DILSHAD VS State

6—“Terrorism”—Ingredients—Three ingredients of the offence of terrorism under S.6(1)(a) and (b) of Anti-Terrorism Act, 1997 are firstly, taking of action specified in S.6(2) of Anti-Terrorism Act, 1997; secondly, that action is committed with design, intention and mens rea; and thirdly, it has the impact of causing intimidation, awe, fear and insecurity in the public or society.

2018 PCrLJN 221 KARACHI-HIGH-COURT-SINDH

DILSHAD VS State

Ss. 6, 7 & 23—Penal Code (XLV of 1860), Ss. 324, 353, 402 & 399—Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, assembling for purpose of committing dacoity, making preparation to commit dacoity, terrorism—Application for transfer of case to ordinary court—Police had alleged that an encounter took place between seven to ten police officers and eight to ten criminals—No body from the police side was injured and no damage was caused to any police mobile during the encounter which made the case of ineffective firing—No independent eye-witness or Mashir was associated—Finding in the impugned order that the encounter created panic terror and sense of insecurity in the mind of the people of the locality and the elements of terrorism as defined in S. 6, Anti-Terrorism Act, 1997 were fully attracted, was without force—Action did not fall within the definition of S. 6 Anti-Terrorism Act, 1997 since it had not been shown to be committed with design, intention and mens rea; and it had no impact of causing intimidation, awe, fear and insecurity in the public or society for simple reason that the incident occurred in an isolated place where nobody apart from the police and alleged dacoits were present—Rule of law and due process rights mandate respect of all citizens even those suspected of the most heinous crimes—Application for transfer of case from Anti-Terrorism Court to ordinary criminal court was allowed accordingly.

2018 PCrLJN 158 KARACHI-HIGH-COURT-SINDH

SAJJAD ALI VS State

Ss. 324, 353, 385, 386, 506-B & 34—Anti-Terrorism Act (XXVII of 1997), S. 6(2)K—Pakistan Arms Ordinance (XX of 1965), S. 13-D—Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, putting person in fear of injury in order to commit extortion, extortion by putting a person in fear of death or grievous hurt, criminal intimidation, common intention, act of terrorism, possessing unlicensed weapon—Appreciation of evidence—Record showed that complainant had substantiated the case of the prosecution during his evidence and all the other prosecution witnesses and the material adduced in evidence had supported and corroborated the prosecution case during the trial—Complainant remained consistent in his statement and the version of the complainant had also been supported by the Police Official witnesses, which had been corroborated by the material adduced in evidence—No contradictions in the statements of the prosecution witnesses on material points were found—FIRs in the present case were recorded with promptitude—Circumstances established that prosecution had been able to prove the case against the accused beyond any shadow of doubt—Impugned judgment did not suffer from misreading or non-reading of the evidence, which did not call for any interference—Appeal was dismissed in circumstances.

2018 PCrLJN 50 KARACHI-HIGH-COURT-SINDH

MEHRULLAH VS State

Ss. 498 & 498-A—Penal Code (XLV of 1860), Ss. 302, 324, 395, 148 & 149—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Explosive Substances Act (VI of 1908), Ss. 3 & 4—Qatl-i-amd, attempt to commit qatl-i-amd, dacoity, rioting armed with deadly weapon, unlawful assembly, causing explosion, attempt to cause explosion or for making or keeping explosive with intent to endanger human life and terrorism—Bail, refusal of—Accused persons were implicated by the prosecution witnesses in their statements recorded under S. 161, Cr.P.C. wherein they had also assigned the role of causing firearm injuries to deceased persons as well as injured persons in furtherance of common object—Medical evidence was in line with the ocular version and eye-witnesses had also implicated the present accused persons—Empties were also shown to be secured from the place of occurrence—Mala fides though had been pleaded by accused but not to the complainant, prosecution witnesses or the police—Delay in lodging of FIR had been fully explained by the complainant—Prima facie sufficient incriminating material was available against the accused persons to connect them with the commission of alleged offence of murder of six persons—Accused persons had failed to make out case for grant of pre-arrest bail—Bail was refused accordingly.

2018 PCrLJ 1719 ISLAMABAD

Malik TARIQ AYUB VS State

Ss. 6, 7 & 23—Act of terrorism—Determination of—In order to determine, whether the offence fell within the meaning of ‘terrorism’ it was necessary to examine the allegations levelled in the FIR; the material collected by the Investigating Agency and the surrounding circumstances—Jurisdiction of Anti-Terrorism Court, under Anti-Terrorism Act, 1997 had been broadened by the use of the word ‘design’ in S.6 of the said Act—Where action of accused resulted in striking terror, creating fear, panic, sensation, helplessness and sense of insecurity among the people in a particular vicinity, it would amount to “terror” and such action would fall within the ambit of S. 6 of the Anti-Terrorism Act, 1997—Terrorist created sense of fear or insecurity and psychological impact on the minds of people or any section of the society—Determining factor of act of “terrorism” was the ‘design’ of accused in the commission of offence which had created a sense of panic, fear and helplessness in public or any segment of the public—Question of applicability of S.7 of Anti-Terrorism Act, 1997 could not be adjudged solely on the basis of available record—Recording of the prosecution evidence albeit some material evidence was essential—Trial Court erred in just following the record and not appreciating the essence of ‘test’ which could only be established through evidence—Impugned order was set aside.

2018 YLR 1888 GILGIT-BALTISTAN-SUPREME-APPELLATE-COURT

State VS MUHAMMAD NADEEM

Ss. 302, 324, 34 & 109—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Qatl-i-amd, attempt to commit qatl-i-amd, common intention, abetment, act of terrorism—Appeal against acquittal—Reappraisal of evidence—No evidence was available on record against respondent/ accused, except his absconsion, which could not be proved by the prosecution as intentional and deliberate—Name and address of accused was also wrongly mentioned in the warrants etc., due to which accused was not aware about the trial of the case and consequent sentence for imprisonment was awarded by the Trial Court—No charge was framed by the Trial Court after the arrest of accused—Judgment of the Trial Court was passed in absentia, which was violative of Fundamental Rights of accused—Chief Court had rightly set aside the judgment of the Trial Court—No indulgence was warranted by the Supreme Appellate Court—Petition for leave to appeal was converted into appeal and was dismissed—Impugned judgment passed by Chief Court was maintained, in circumstances.

2018 MLD 1102 GILGIT-BALTISTAN-SUPREME-APPELLATE-COURT

SUHAIL KAMAL VS State

Ss. 324, 34, 341, 147, 148, 149 & 427—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 21-L—Attempt to commit qatl-i-amd, common intention, act of terrorism, wrongful restraint, rioting, mischief causing damage—Reappraisal of evidence—Benefit of doubt—Trial Court convicted and sentenced the accused person—Chief Court, upheld their conviction/sentences in appeal—Validity—Prosecution witness had not attributed any specific role to the accused persons in commission of the alleged offence—No material was available on record except the confessional statements of accused persons, which were not admissible unless corroborated by independent witnesses, or supported by strong circumstantial evidence—Both courts below had failed to consider said facts therefore, judgments so delivered by the courts below were the result of misreading, non-reading and non-appreciation of the evidence on record—Prosecution had failed to prove the case against accused persons beyond the shadow of doubt—Accused persons were acquitted by giving them the benefit of doubt—Judgments of Trial Court and Chief Court, were set aside, in circumstances.

2018 YLR 2501 Gilgit-Baltistan Chief Court

TAHIR IQBAL VS State

497—Penal Code (XLV of 1860), Ss. 365, 368, 341 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Kidnapping and abducting with intent to secretly and wrongfully confine person, wrongfully concealing or keeping in confinement kidnapped or abducted person, wrongful restraint, common intention, act of terrorism—Bail, grant of—Compromise—Prosecution case was that the accused and co-accused persons kidnapped the complainant and his daughter—Motive behind the occurrence was stated to be that Nikah of daughter of complainant was performed with the accused but later on, due to some difference between the couple, the relationship was broken—Complainant/ abductee appeared before the court and got recorded his statement to the effect that on the intervention of Jirga members, he and his wife did not want to proceed with the case against the accused persons and they had no objection if the accused persons were released on bail—Admittedly, offences under Ss. 365-B & 368, P.P.C. and under Ss. 6 & 7 Anti-Terrorism Act, 1997 were not compoundable, however, fact remained that parties had voluntarily compounded the matter and the complainant party had forgiven the accused persons and they had no objection if the accused/petitioners were released on bail—Compromise was a good ground for release of the accused/petitioners on bail—Where the complainant party was no longer willing to prosecute the matter any further, Court could not compel it to do so—Accused were admitted to bail in circumstances.

2018 YLR 1412 Gilgit-Baltistan Chief Court

ADNAN HUSSAIN VS State

Ss. 302, 324 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7— Pakistan Arms Ordinance (XX of 1965), S. 13-D—Qatl-i-amd, attempt to commit qatl-i-amd, common intention, act of terrorism and recovery of unlicensed weapon—Appreciation of evidence—Circumstantial evidence—Accused were charged for the murder of the deceased—Circumstantial evidence was furnished by the brother of the deceased—Statement of said witness was recorded by the police under S.161, Cr.P.C. after three days of the occurrence—Statement of said witness could not be used as a circumstantial evidence as no recovery of motorbike of the accused or its further identification had been conducted through said witness.

2018 YLR 1412 Gilgit-Baltistan Chief Court

ADNAN HUSSAIN VS State

Ss. 302, 324 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Pakistan Arms Ordinance (XX of 1965), S. 13-D—Qatl-i-amd, attempt to commit qatl-i-amd, common intention, act of terrorism and recovery of unlicensed weapon—Appreciation of evidence—Benefit of doubt—Accused were charged for the murder of the deceased—Ocular account was furnished by the complainant—Presence of complainant at the place of occurrence was not disputed but it was evident that he lodged FIR of the occurrence but did not either named the accused or even their features—No identification parade was held to identify the culprits after their arrest, which was mandatory requirement of law—Direct evidence of complainant, in circumstances, was of no avail to the prosecution—Circumstances established that prosecution had failed to establish its case beyond any shadow of doubt, benefit of which would resolve in favour of accused—Accused were acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.

2018 YLR 1412 Gilgit-Baltistan Chief Court

ADNAN HUSSAIN VS State

Ss. 302, 324 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7— Pakistan Arms Ordinance (XX of 1965), S. 13-D—Qatl-i-amd, attempt to commit qatl-i-amd, common intention, act of terrorism and recovery of unlicensed weapon—Appreciation of evidence—Confessional statement—Reliance—Accused were charged for the murder of the deceased—Record showed that confessional statement of the accused was recorded by the Police Officer on 4.2.2014, while the statement of co-accused was recorded by another Police Officer on 23.1.2015 and after recording of conditional confessional statements, they were committed to judicial custody—Confessional statements recorded by Police Officer would not be admissible in evidence—Statements of Investigating Officer and two Senior Police Officers were on record and completely silent to the effect that there existed some extra ordinary or compelling circumstances for non-production of the accused before a Judicial Magistrate—Such statements could not be termed as confessional statement of the accused.

2018 YLR 1412 Gilgit-Baltistan Chief Court

ADNAN HUSSAIN VS State

Ss. 302, 324 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Pakistan Arms Ordinance (XX of 1965), S. 13-D—Qatl-i-amd, attempt to commit qatl-i-amd, common intention, act of terrorism and recovery of unlicensed weapon—Appreciation of evidence—Recovery of weapon of offence from accused—Reliance—Scope—30-bore pistol was allegedly recovered from accused on his pointation on 28.1.2014, while he was arrested on 10.1.2014—Investigating Officer submitted application to Judicial Magistrate to depute a Magistrate as the accused was willing to get the weapon of offence recovered—On the same day, Naib Tehsildar was deputed but recovery was effected on 28.1.2014 and no reasons had been shown for said delay—Recovery of crime weapon after eighteen days of arrest of accused raised a question mark regarding its genuineness—Five crime empties were recovered on 9.1.2014, the day of occurrence—Record showed that crime weapon was recovered on 28.1.2014 but the same were received in the office of Forensic Expert on 10.4,2014 and report was issued on 5.5.2014—Crime articles were sent to expert after inordinate delay of about three months twelve days and that too together, which created doubts about the authenticity of the report.

2018 PCrLJ 930 Gilgit-Baltistan Chief Court

MUHAMMAD NADEEM VS State

Ss. 302, 324, 34 & 109—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7, 19(2)(10) & 21-L—Criminal Procedure Code (V of 1898), S.353—Qatl-i-amd, attempt to commit qatl-i-amd, common intention, abetment, act of terrorism—Trial in absentia—Appreciation of evidence—Trial in absentia under S.19(10) of Anti-Terrorism Act, 1997, was a departure from the normal procedure of trial of a criminal case—Fair trial was an inherent right of an accused guaranteed by Constitution, as well as by Chapter-II of Gilgit-Baltistan Self-Governance and Empowerment Order, 2009; which had stipulated that trial in absentia of accused would be violation of his Fundament Rights—Accused, in the present case, was tried in absentia and no charge was framed against him—After arrest of accused, instead of sending him to judicial lock up, he was handed over to joint investigation team for further investigation—Challan against accused was submitted in the Anti-Terrorism Court and instead of framing the charge, Trial Court opted to decide application of accused under S.19(12) of Anti-Terrorism Act, 1997 and upheld the sentence awarded to him in absentia—Held, conviction of accused in the case, was handed down against him without following the mandatory provision of law and without affording an opportunity of hearing to accused—When after investigation challan was submitted before the Trial Court, the Trial Court was bound to frame the charge and afford a fair opportunity of defence to accused, which had not been done—Provisions of S.19(10) of the Anti-Terrorism Act, 1997, were a departure from general law and if the conviction had to be recorded in absentia, the Trial Court must adhere and observe the procedure provided therein in letter and spirit—In the present case, particulars of accused were recorded in a casual and lethargic manner, and it could not be said with exactitude that process of law was duly and properly sent on proper address of accused—Stance taken by accused that he was unaware of any proceedings against him, was to be accepted as correct—When there were two possibilities before the court, the one which favoured accused, should be adopted—Accused due to incomplete particulars and wrong address, remained unaware of any proceedings, which aspect of case had not been taken into consideration by the Trial Court and Trial Court dismissed application under S.19(12) in a hasty manner and without proper application of judicious mind—Prosecution had failed to connect accused with the commission of offence—Judgment of Trial Court was set aside and accused was directed to be released forthwith, in circumstances.

2018 PCrLJ 410 Gilgit-Baltistan Chief Court

State VS ZULFIQAR ALI alias KAMO

Ss. 302, 324, 337-E, 109 & 34—Explosive Substances Act (VI of 1908), Ss. 3 & 4—Criminal Procedure Code (V of 1898), Ss. 345(2) & 265-K—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah, abetment, common intention, causing explosion likely to endanger life or property, act of terrorism—Compromise—Application for acquittal—Parties during pendency of the case, effected compromise and the accused-respondents were acquitted from the charges on the basis of said compromise—Prosecution challenged the order of acquittal on the ground that compromise was defective as certain persons, who had no locus standi to effect compromise had appeared on behalf of legal heirs of the deceased and injured—Validity—Record showed that Trial Court accepted the statements of unauthorized persons for effecting compromise, which made the compromise defective—Said inherent defect in the compromise could not be cured by any means—Section 345(2), Cr.P.C. did not permit such a proxy on behalf of any victim—Appeal was accepted by the Chief Court by setting aside order of acquittal and remanded the matter with the direction to summon the legal heirs and injured, record their statements and pass appropriate order.

2018 MLD 577 Gilgit-Baltistan Chief Court

State VS SHAH RAEES KHAN

497(5)—Penal Code (XLV of 1860), Ss. 324, 506 (2), 147, 149 & 109—Anti-Terrorism Act (XXVII of 1997), S. 6 & 7—Terrorism, attempt to commit qatl-i-amd, criminal intimidation, rioting, unlawful assembly, abetment—Petition for cancellation of bail, dismissal of—Accused persons were arrested for raising slogans, using filthy language and for firing upon rival group—Nothing was pointed out persuading to exercise discretion in favour of complainant—Petition for cancellation of bail was dismissed.

2018 MLD 505 Gilgit-Baltistan Chief Court

IKRAM ULLAH VS State

497(2)—Penal Code (XLV of 1860), Ss.302, 34 & 188—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Arms Ordinance (XX of 1965), S.13—Qatl-i-amd, common intention, disobedience to order duly promulgated by public servant, act of terrorism, possessing unlicensed arms—Bail, grant of—Further inquiry—Accused was not directly charged in the FIR for opening fatal shots on the deceased—Indiscriminate firing was opened by accused party, one of the bullets hit the deceased—Identity of main culprit, whose fire shot hit the deceased, remained doubtful and debatable; as all the accused persons were attributed general firing and no specific allegations of firing were attributed to the accused—Accused, though remained absconder for a considerable long time, but abscondance alone, without any overt act, would not by itself be sufficient to sustain conviction on a capital charge—All the four co-accused arrested in the present case with similar allegations, had already been released on bail—Case of accused, was also one of further inquiry under S.497(2), Cr.P.C.—Accused, was admitted to bail, in circumstances.

2018 MLD 314 Gilgit-Baltistan Chief Court

State VS ZAHEER-UD-DIN

377—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7, 12 & 23—Criminal Procedure Code (V of 1898), Ss.417(2-A) & 345—Sodomy, act of terrorism—Appeal against acquittal—Appreciation of evidence—Compromise—Accused was booked for offence under S.377, P.P.C., but during investigation Ss.6 & 7 of Anti-Terrorism Act, 1997, were also added and after completion of investigation, challan was sent to the Court of Anti-Terrorism—Trial Court recorded statements of father, mother, one uncle of the victim and some Jirga members to the effect that a compromise had been effected between the parties—Trial Court on the same date, acquitted accused from the charges—Validity—Trial Judge, had accepted the compromise, illegally and passed acquittal judgment in excess of his jurisdiction; because the offence was not one of ‘Terrorism’ and Trial Judge wrongly and illegally took cognizance of the case under S.12 of the Anti-Terrorism Act, 1997—Trial Court should have sent back the case to ordinary court of jurisdiction, even if no application under S.23 of Anti-Terrorism Act, 1997 was filed by the either party—Trial Court instead of laying off its hands, jumped into the case and assumed jurisdiction and despite resistence from State Counsel that case of sodomy was not compoundable, accepted compromise and acquitted accused from the charges on the same day—Such urgency, was because of some extraneous considerations and not to advance the cause of justice—Appeal filed by the State was accepted by the Chief Court and impugned judgment passed by the Anti-Terrorism Court, was set aside—Provisions of Ss. 6 & 7 of Anti-Terrorism Act, 1997, being not attracted to the case, same were deleted from the challan and case was transferred from the Anti-Terrorism Court to the Sessions Judge for assuming adjudication and to start trial of accused.

2018 MLD 253 Gilgit-Baltistan Chief Court

WANG JIAN QIU VS State

13—Foreigners Act (XXXIX of 1946), Ss.3 & 4—Anti-Terrorism Act (XXVII of 1997), Ss.6(2)(i) & 7(h)—Criminal Procedure Code (V of 1898), Ss.265-E & 412—Possessing unlicensed arms, act of terrorism—Appreciation of evidence—Pleading guilty—Accused who was a foreigner, at the time of framing of charge, pleaded guilty and showed reluctance to produce any defence—Show-cause notice as per S.265-E, Cr.P.C., was served upon the accused—Accused submitted reply to said notice and requested the court to take lenient view—Trial Court held that offences against accused had fully been proved and accused had voluntarily confessed his guilt in the open court in presence of his counsel as well as public prosecutor—Trial Court convicted accused under S.7(7) of the Anti-Terrorism Act, 1997 and sentenced him to undergo imprisonment for five years—Accused was also convicted under S.13 of Pakistan Arms Ordinance, 1965 and sentenced to undergo for four years—Validity—Conviction recorded on admission of guilt could not be challenged in appeal as provided under S.412, Cr.P.C., except about quantum of sentence—Accused was provided opportunity to defend—Accused was found in possession of huge quantity of arms/ammunition at the Pak-China border—Keeping of such a huge quantity of arms/ammunition, had shown ill-intention of accused; if he would not have arrested before hand, it could have created a big dent in Pak-China relations and defame Pakistan at international level–Court could not sit in isolation and could take notice of changing surroundings and its approach must be dynamic and not static—Conviction of accused recorded under S.7(h) of Anti-Terrorism Act, 1997, was set aside as he was apprehended before execution of his design, while the sentence of 4 years’ imprisonment recorded under S.13 of Pakistan Arms Ordinance, 1965, was maintained—-Weapons recovered from accused, were confiscated in favour of the State.

2018 YLRN 290 Gilgit-Baltistan Chief Court

SABIR ALI VS Qari ASIF

Ss. 324, 341, 392, 148, 149, 353 & 186—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Attempt to commit qatl-i-amd, wrongful restraint, robbery, rioting, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public function, act of terrorism—Appreciation of evidence—Police Officer who lodged FIR, though named accused persons in the FIR, but during course of cross-examination, admitted that there were 60/70 persons present over there; he also admitted that he could not tell the name of the person who tutored the name of accused to him—Statement of injured was full of material contradictions/ improvements— Presence of injured witness was established because of stamp of injuries on his person, but whatever he stated about salient features of the case, could not be accepted as gospel truth—Statement of injured witness who intentionally and deliberately improved upon his earlier statements, could not and should not be believed, when same was contradicted from host of the circumstances of the case—Trial Court, while acquitting accused had awarded compensation to the injured—No infirmity existed in the impugned judgment of Trial Court—Appeals against acquittal were dismissed in circumstances—Compensation awarded to injured victim, was maintained.

2018 YLRN 271 Gilgit-Baltistan Chief Court

AKHTAR VS State

497(2)—Penal Code (XLV of 1860), Ss.324, 148 & 149—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Attempt to commit qatl-i-amd, rioting, act of terrorism— Bail, grant of— Further inquiry—Section 324, P.P.C., would attract only when alleged offence was an attempt to murder—No allegation attracting the provisions of Ss.6 & 7 of the Anti-Terrorism Act, 1997 was levelled, therefore, application of said provisions of law was a question of further inquiry—Complainant had levelled allegation against 59 persons and it was not clear that who among the alleged assailants had any intention to murder any of the complainants—Questions as to whether occurrence was a sudden quarrel or something preplanned and whether the alleged firing caused any injury to any of the complainants named in the FIR or not were yet to be determined—First Information Report was silent as to who among assailants had caused injury to the complainant side—Question as to whether only the accused persons were responsible for opening fire resulting injuries to the complainant party was yet to be determined—Said aspect of the case was a question of further inquiry—Accused was directed to be released on bail immediately, in circumstances.

2018 YLRN 198 Gilgit-Baltistan Chief Court

SULTAN ALI VS State

Ss. 302(b) & 109—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Qatl-i-amd, abetment, act of terrorism—Appreciation of evidence—Trial Court convicted and sentenced co-accused and acquitted accused—Neither the State nor the complainant filed any appeal against the acquitted accused—Appeal filed by co-accused against his conviction and sentence, was dismissed by the Chief Court and Supreme Appellate Court set aside the judgment of the Trial Court up to the extent of accused and remanded the matter to the Trial Court for decision afresh on its merits in accordance with law—Application filed by accused before the Trial Court for maintaining acquittal order earlier passed by the Trial Court having been turned down by the Trial Court, accused had filed present appeal—Matter which had finally been decided by the Supreme Appellate Court, could not be adjudicated—Appeal being misconceived, was dismissed, in circumstances.

2018 PCrLJN 139 Gilgit-Baltistan Chief Court

NADEEM SHAH VS State

Ss. 4 & 5—Penal Code (XLV of 1860), S.188—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 23-A—Pakistan Arms Ordinance (XX of 1965), S.13—Criminal Procedure Code (V of 1898), S.526—Possessing weapon of offence and material of explosive—Disobedience to order duly promulgated by public servant—Petition for transfer of case from court of Anti-Terrorism to ordinary court of competent jurisdiction—First Information Report showed that occurrence was of an ordinary nature and Police had recovered a .30 bore pistol and a very negligible quantity of ordinary explosive from one accused person—Nothing was on record showing any attempt on the part of accused persons for using weapon of offence or explosive allegedly recovered from them for purpose of terrorism—Only evidence, available on record against accused persons, was mere recovery of weapon of offence and the material of explosive, normally used in developing lands, etc.—Present case was triable by the ordinary court and not by the court of Anti-Terrorism—Anti-Terrorism Court was a special court and was meant to try only special cases involving the offence of terrorism—Court of ordinary jurisdiction was the most suitable forum for hearing and trying ordinary cases—Chief Court, while allowing petition, directed that challan of FIR be sent to ordinary court for trial of the case.

2017 SCMR 1572 SUPREME-COURT

WARIS ALI VS State

Ss. 6 & 7(a), 7(b) & 7(c)—Act of terrorism—Mens rea—Scope—In cases of terrorism, “mens rea” was essentially the object to carrying out terrorist activities to overawe the State, the State institutions, the public at large, destruction of public and private properties, assault on the law enforcing agencies or the public at large—Ultimate object and purpose of such acts was to terrorize the society or to put it under constant fear, while in ordinary crimes committed due to personal vengeance/blood feud or enmity, the element to create fear or sense of insecurity in the society or public by means of terrorism was always missing.

2017 SCMR 1572 SUPREME-COURT

WARIS ALI VS State

Ss. 6 & 7—Act of terrorism—Scope—Occurrence which resulted due to a personal motive/enmity for taking revenge did not come within the fold of “terrorism”—Mere fact that a crime for personal motive was committed in a gruesome or detestable manner, by itself would not be sufficient to bring the act within the meaning of terrorism or terrorist activities—Furthermore, in certain ordinary crimes, the harm caused to human life might be devastating, gruesome and sickening, however, this by itself would be not sufficient to bring the crime within the fold of terrorism or to attract the provisions of Ss. 6 or 7 of the Anti-Terrorism Act, 1997, unless the object intended to be achieved fell within the category of crimes, clearly meant to create terror in people and/or sense of insecurity.

2017 SCMR 533 SUPREME-COURT

Ch. SHAUKAT ALI VS Haji JAN MUHAMMAD

Ss. 6, 7 & 23—Penal Code (XLV of 1860), Ss. 324, 148 & 149—Transfer of case from Anti-Terrorism Court to court of ordinary jurisdiction—Prosecution alleged that nine nominated accused along with 5/6 other persons resorted to indiscriminate firing as a result whereof nine persons from the complainant side sustained multiple firearm injuries—Investigating officer, however, stated that only 11 empties of two different bores i.e. .30 bore and .12 bore were recovered during inspection of the spot—FIR also alleged that all the nominated accused were armed with multiple firearms but during investigation only .30 bore pistol and a 12 bore gun were recovered at the instance of only one accused—Empties secured from the spot and the recovered weapons were sent to the Forensic Science Laboratory (FSL) for analysis and the report of FSL was in the negative—All the five prosecution witnesses (some of whom were injured) recorded their statements before the Magistrate under S. 164, Cr.P.C., wherein they by and large exonerated the nominated accused persons by stating that they did not know as to who fired at them; that none of the nominated accused fired at them nor they saw any weapon in the hands of any of the nominated accused persons—Prima facie, it appeared from the facts of the case that altercation between the parties occurred all of a sudden when the procession of the complainant side on winning the election was passing in front of house of accused party and there was no prior ‘object/design’—Allegations levelled in the FIR, the material collected by the investigating agency during course of investigation and other surrounding circumstances showed that present case was not triable by the Anti-Terrorism Court—High Court had rightly directed the Anti-Terrorism Court to transfer the record of present case to the court of ordinary jurisdiction—Petition for leave to appeal was dismissed accordingly.

2017 SCMR 162 SUPREME-COURT

Sajid Rasheed Qureshi VS Manawar Ahmed

Ss. 6(1) & 6(2)(a), (f)—

2017 SCMR 162 SUPREME-COURT

Sajid Rasheed Qureshi VS Manawar Ahmed

6— ??

2017 SCMR 162 SUPREME-COURT

Sajid Rasheed Qureshi VS Manawar Ahmed

Ss. 6(2)(a), (f) & 12— ??

2017 PLD 661 SUPREME-COURT

AMJAD ALI VS State

Ss. 6, 7(a) & Third Sched. Item No. 4(ii)—Terrorism—Reappraisal of evidence—Act of terrorirsm—Scope—-Anti-Terrorism Court, jurisdiction of—Power of Court to convict and sentence an accused—Scope—Occurrence in issue had developed in many phases—Accused persons started firing in a mosque, chased the victims in a street and then followed them inside the complainant party’s house and throughout they kept on firing and murdered three persons and injured another—Mere firing at one’s personal enemy in the backdrop of a private vendetta or design did not ipso facto bring the case within the purview of S.6 of the Anti-Terrorism Act, 1997 so as to brand the action as terrorism—In the present case there was no ‘design’ or ‘object’ contemplated by S.6 of the Anti-Terrorism Act, 1997—By virtue of Item No.4(ii) of the Third Schedule to the Anti-Terrorism Act, 1997 a case became triable by an Anti-Terrorism Court if use of firearms or explosives, etc. in a mosque, imambargah, church, temple or any other place of worship was involved in the case—Said entry in the Third Schedule only made such a case triable by an Anti-Terrorism Court but such a case did not ipso facto become a case of terrorism for the purposes of recording convictions and sentences under S.6 read with S.7 of the Anti-Terrorism Act, 1997—Present case had, thus, rightly been tried by an Anti-Terrorism Court but the said Court could not have convicted and sentenced the accused persons for an offence under S.7(a) of the Anti-Terrorism Act, 1997 as it had separately convicted and sentenced the accused persons (under S.302(b), P.P.C) for the offences of murder, etc. committed as ordinary crime—Appeal was partly allowed and the accused persons’ convictions and sentences recorded for the offence under S.7(a) of the Anti-Terrorism Act, 1997 were set aside.

2017 PLD 37 QUETTA-HIGH-COURT-BALOCHISTAN

NASEEBULLAH VS SPECIAL JUDGE, ANTI-TERRORISM COURT-II, QUETTA

Ss. 6(2)(a)—Penal Code (XLV of 1860), Ss.302(b), 364-A, 367-A, 376 & 377—Criminal Procedure Code (V of 1898), Chap. XXXIV [Ss.464-475]—Terrorism, qatl-i-amd, kidnapping, rape and sodomy—Appreciation of evidence— Lunatic, trial of—Procedure—Accused was convicted by Trial Court and was variously sentenced maximum up to imprisonment for life—Plea raised by accused was that he was suffering from Schizophrenia and needed proper medical treatment—Validity—Provisions of Ss.464, 465 & 466, Cr.P.C. related to unsoundness of mind at the time of inquiry or trial and not at the time of commission of offence—Once Court reached to conclusion that accused facing trial was of unsound mind and consequently incapable of making his defence, the trial was to be postponed—Such person could be released under S.466, Cr.P.C., on sufficient surety given that he would be properly taken care of and would be prevented from doing injury to himself or to any other person or for his appearance when required by Court—Court was also empowered to direct accused to be detained in safe custody in such a place and manner as it could think fit, if the Court was of the view that bail should not be taken or sufficient security was not given—Mere making of an application on behalf of a person committed for trial, that he was of unsound mind, was not sufficient to necessitate holding of an inquiry—When it appeared to the Court or the Court had reason to believe that accused could be of unsound mind, inquiry was necessary and the question, whether accused person was of unsound mind or not and incapable of making his defence, had to be decided prior to framing of charge and recording of evidence—If Court was unable to detect simulation that accused could be of unsound mind, such question had to be tried as a fact and medical evidence on the point was an indispensible necessity—High Court set aside conviction and sentence awarded to accused and case was remanded to Trial Court to decide the matter in terms of statutory provisions as contained in Chap. XXXIV, Cr.P.C.— Appeal was allowed in circumstances.

2017 PCrLJ 1371 QUETTA-HIGH-COURT-BALOCHISTAN

BIBI ZAWAR VS SESSIONS JUDGE QUETTA

6(1)(b)—Act of “terrorism”—Determination as to whether an offence would fall within the ambit of “terrorism”—Essential ingredients to form an act of “terrorism” were the allegations made in the FIR; material collected during investigation and surrounding circumstances—To see as to whether the ingredients of alleged offence had any nexus with the object of the case as contemplated under Ss. 6, 7 & 8 of Anti-Terrorism Act, 1997—Motivation, object, design and purpose behind the said act was to be seen in order to determine as to whether a particular act was an act of terrorism or not—Action resulted in striking terror or creating fear, panic, sensation, helplessness and sense of insecurity among the people in the particular area would amount to terror—Such action would squarely fall within the ambit of S. 6 of the Anti-Terrorism Act, 1997 and would be triable by Anti-Terrorism Court.

2017 PCrLJ 1371 QUETTA-HIGH-COURT-BALOCHISTAN

BIBI ZAWAR VS SESSIONS JUDGE QUETTA

Ss. 302, 324, 365, 147, 148 & 149—Anti-Terrorism Act (XXVII of 1997), Ss. 6(b), 7(e) & 23—Qatl-i-amd, attempt to commit qatl-i-amd, kidnapping or abduction with intent secretly and wrongfully to confine a person, rioting, rioting armed with deadly weapon, unlawful assembly—Application for transfer of case from ordinary criminal court to Anti-Terrorism Court by way of inserting S. 7, Anti-Terrorism Act, 1997—Scope—FIR showed that due to indiscriminate firing of the accused persons at the house of the complainant-petitioner, resulted in the murder of two persons, causing injuries to five other persons and abduction of two persons fell within the ambit of S. 6, Anti-Terrorism Act, 1997—Action of the accused resulted in striking terror and sence of insecurity amongst the people in the vicinity, which amounted to create terror in the area—Circumstances established that Anti-Terrorism Court had exclusive jurisdiction in the case as the action of accused squarely fell within the ambit of S. 6, Anti-Terrorism Act, 1997—Constitutional petition was allowed with the direction to the concerned Investigating Officer to insert S. 7, Anti-Terrorism Act, 1997 in the FIR.

2017 YLR 461 PESHAWAR-HIGH-COURT

KHAN JAVED KHAN VS State

Ss. 302, 324, 109, 148 & 149—Explosive Substances Act (VI of 1908), Ss. 3 & 4—Anti Terrorism Act (XXVII of 1997), Ss. 6 & 7—Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting, causing explosion, act of terrorism—Jurisdiction of Anti-Terrorism Court—Scope—Case was transferred by the Special Court constituted under Anti-Terrorism Act, 1997 to an ordinary court on the ground that occurrence was the result of personal enmity between the parties, therefore case did not fall under the jurisdiction of Anti-Terrorism Court—Petitioner had assailed the said order with the assertion that occurrence had taken place during election campaign of the complainant when six persons were done to death and two were injured and that act of accused persons was designed to create fear and sense of insecurity amongst the public-at-large—Post-mortem reports of two deceased showed that they sustained blast injuries, which brought the case within jurisdiction of Anti-Terrorism Court—Accused persons had alleged that occurrence took place on account of family feud and had no nexus with terrorism and that case of personal vendetta did not fall within the jurisdiction of Anti-Terrorism Court—Validity—Admittedly, six persons were shot dead and two were injured during the occurrence—Accused persons had chosen the days of election campaign of the complainant for committing the offence—Post-mortem reports of two deceased showed that firearms and hand grenades were used in the occurrence as they had received “Blast Injuries” during ambush made by the accused—Provisions of Ss.6(ee) & 7(ff) of the Anti-Terrorism Act, 1997 were attracted in the incident in circumstances—Mode of occurrence indicated that it was neither the case of sudden flare up nor that of provocation—Incident was pre-planned under the garb of family feud with design to cause fear and sense of insecurity amongst the public and people of the constituency of the complainant—Circumstances had brought the case of complainant within the jurisdiction of Anti Terrorism Court—Constitutional petition was allowed and case was sent to the Anti-Terrorism Court.

2017 PCrLJ 527 PESHAWAR-HIGH-COURT

AHMAD ALI VS State

Ss. 302, 365-A, 364, 347, 147, 148, 149 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7 & 23—Qatl-i-amd, kidnapping for extortion, kidnapping in order to murder, rioting, common object, common intention, act of terrorism—Transfer of case from Anti-Terrorism Court to ordinary criminal court was sought contending that criminal proceedings against the accused before the Anti-Terrorism Court were without jurisdiction, without lawful authority and of no legal effect—Validity—Prosecution story was that accused kidnapped the deceased for extorting money, confined him in illegal custody and thereafter murdered the deceased—Record showed that accused kidnapped the victim for the purpose of ransom—Act of the accused created insecurity in the society—Offence, therefore, fell in the ambit of Third Schedule of Anti-Terrorism Act, 1997, which was triable by Anti-Terrorism Court.

2017 PCrLJ 527 PESHAWAR-HIGH-COURT

AHMAD ALI VS State

Ss.302, 365-A, 364, 347, 147, 148, 149 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6(1)(b) & 12—Act of terrorism, qatl-i-amd, kidnapping for extortion, kidnapping in order to murder, rioting, common object, common intention and act of terrorism—Anti-Terrorism Court, jurisdiction of—If the offence of murder and other offences causes terror and fear in general public and thereby attracted the definition of S. 6(1)(b) of A.T.A., it would be triable by the Ant-Terrorism Court—Circumstances for taking cognizance by the Anti-Terrorism Court could be determined after recording evidence as to whether an offence of terrorism was made out or otherwise.

2017 PCrLJ 505 PESHAWAR-HIGH-COURT

SHAH SIM KHAN VS State

6— “Terrorism”— Scope— Essential ingredients— Three ingredients for determination of offence of terrorism were (i) taking of action specified in S. 6(2) of Anti-Terrorism Act, 1997 (ii) action committed with design, intention and mens rea (iii) causing intimidation, awe, fear and insecurity in the public or society.

2017 PCrLJ 505 PESHAWAR-HIGH-COURT

SHAH SIM KHAN VS State

Ss. 6, 7 & 8—Khyber Pakhtunkhwa Arms Act (XXIII of 2013), Ss. 15 & 17—Possession of un-licensed manufacture, sale or repair of arms and ammunition, unauthorized transportation of arms and ammunition, unlicensed possession of arms and ammunition terrorism— Appreciation of evidence— “Terrorism”—Essential ingredients—Complainant (police) alleged that they received information about transportation of a huge lot of arms and ammunitions by a car which was apprehended and recovery of ammunition was made from its secret cavities—Effect—Mere recovery of huge quantity of ammunition without producing the cogent and concrete evidence showing that accused belonged to a terrorist organization would not saddle accused for commission of an offence attracting “terrorism”—Ingredients for determination of offence of terrorism were first taking of action specified in S. 6(2) of Anti-Terrorism Act, 1997, second action committed with design, intention and mens rea and third causing intimidation, awe, fear and insecurity in the public or society—All such ingredients were not attracted to the facts and circumstances of present case—Prosecution had based its opinion with regard to use of ammunition for the purpose of terrorist activities merely on assumption and presumption which in the given circumstances could not be acceded to—Appeal was allowed and case was remanded accordingly for decision afresh.

2017 MLD 586 PESHAWAR-HIGH-COURT

SHAFIQ VS State

Preamble & S.6—Object and purpose of the Act—Object to promulgate Anti-Terrorism Act, 1997 was to control the terrorism, sectarian violence and other heinous offences defined in S. 6 of the Act—Speedy trial of such offences was the object of the Anti-Terrorism Court.

2017 MLD 586 PESHAWAR-HIGH-COURT

SHAFIQ VS State

Sched. III, Ss. 6, 7 & 23—Explosive Substances Act (VI of 1908), S. 5—Application for transfer of case from Anti-Terrorism Court to the court of ordinary jurisdiction was dismissed—Validity—Prosecution case was that huge quantity of arms, ammunition and explosive substances were recovered from the possession of accused—Offences, falling under the ambit of Sched. III of Anti-Terrorism Act, 1997 and having nexus with Ss. 6, 7 & 8 of the said Act would be triable by the Anti-Terrorism Court—Question of jurisdiction of the Special Court had to be considered with reference not only to the offence mentioned in the Schedule, but allegation contained in the FIR and provision of Ss. 6, 7 & 8 of the Act would be taken into account—If offence committed by a person falling under the definition of “terrorism” as envisaged in S.6 of the Anti-Terrorism Act, 1997 same would be triable by the Anti-Terrorism Court—Record of the present case, showed that accused was found in possession of huge quantity of arms, ammunition and explosive substances without any legal justification—Offence of accused fell within the meaning of S.6(2)(ee) of the Act, which created serious risk to the safety of public or a section of public and created a distress and panic in the masses—Said offence, therefore would be triable by the Anti-Terrorism Court—Constitutional petition was dismissed accordingly.

2017 MLD 586 PESHAWAR-HIGH-COURT

SHAFIQ VS State

Sched. III, Ss. 6, 7 & 23—Explosive Substances Act (VI of 1908), S. 5—Transfer of case from Anti-Terrorism Court to the court of ordinary jurisdiction—Application for transfer of case, dismissal of—Validity—Prosecution case was that huge quantity of arms, ammunition and explosive substances were recovered from the possession of accused—Unlawful possession of an explosive substance or abetment for such an offence under the Explosive Substances Act, 1908, was an act of “terrorism”—Said offence would be triable by the Anti-Terrorism Court being empowered under the—Constitutional petition was dismissed accordingly.

2017 PLD 55 PESHAWAR-HIGH-COURT

AKHTAR MUHAMMAD VS State

365-A—Anti-Terrorism Act (XXVII of 1997), Ss. 2(t), 6, 7(e), 8, 13, 17 & Third Schedule—Kidnapping or abducting for extortion of property, valuable security, etc., act of Terrorism—Appreciation of evidence—Jurisdiction of Anti-Terrorism Court—Scope—Question before High Court was as to whether the offence under S. 365-A, P.P.C., if having no nexus with the object of Ss. 6, 7 and 8 of Anti-Terrorism Act, 1997, would still be triable by the Anti-Terrorism Court or an ordinary court—Under S.2(t) of Anti-Terrorism Act, 1997, ‘Scheduled Offence’ meant an offence as set out in the Third Schedule of the Act—Abduction or kidnapping for ransom had been inserted in the Third Schedule of Anti-Terrorism Act, 1997; therefore, S. 365-A, P.P.C. was a Scheduled Offence, which was similar to offence under Anti-Terrorism Act, 1997, punishment of which had been provided under S. 7(e) of the Act—Both offences were identical except that the quantum of punishment of both the offences slightly varied from each other—Punishment provided under S. 7(e) of Anti-Terrorism Act, 1997 for the offence of kidnapping for ransom or hostage taking was death or imprisonment for life—Abduction or kidnapping for ransom had been added in the Third Schedule to Anti-Terrorism Act, 1997, but punishment thereof had not been provided therein; rather, the punishment had been provided under S. 365-A, P.P.C., that was death or imprisonment for life and forfeiture of property—Forfeiture of property, in addition to death or imprisonment for life under S. 365-A, P.P.C., was the point of variation in the sentences to the two offences; therefore, the accused was to be charged under S. 7(e) of the Act and under S. 365-A, P.P.C. separately—In case of proof of the charge of abduction for ransom, if the offences had nexus with the object of S.6 of Anti-Terrorism Act, 1997, the accused would be convicted under S.7(e) of the Act, otherwise under S. 365-A, P.P.C.; however, at the same time, the accused would not be convicted under both the offences—All offences with regard to use or threat of actions under S.6 of the Act, and offences mentioned under the Third Schedule, would be exclusively triable by Anti-Terrorism Court along with offences with which the accused might be charged under the Code (P.P.C.) at the same trial, as provided under S.17 of the Act—Anti-Terrorism Court could also try other offences with which an accused might under the Code be charged at the same trial if the offence was connected with such other offence—If accused was charged under S. 7(a) of the Act and under S. 302, P.P.C., then he would be separately charge sheeted under S.7(a) of the Act and under S. 302, P.P.C., and on proof of the charges, the accused could be convicted and sentenced under each of the two sections of the laws, as one related to special law while the other related to ordinary law—However, in case of an offence under Anti-Terrorism Act, 1997 and scheduled offence, the accused though would be charge sheeted separately, but he would be convicted under only one offence keeping in view the proof available on the record—Words ‘under this Act’ used in S. 13 of Anti-Terrorism Act clarified trial of the cases under Anti-Terrorism Act, 1997, and the words ‘of scheduled offences’ spoke about the trial of scheduled offence as according to S. 2(t) of the Act, ‘Scheduled Offence’ meant an offence as set out in the Third Schedule—Offences mentioned in the Third Schedule, even having no nexus with the object or terrorism, would be exclusively triable by Anti-Terrorism Act, 1997 and not by an ordinary court.

2017 PLD 653 KARACHI-HIGH-COURT-SINDH

RIZWAN AHMED QURESHI VS State

439—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Penal Code (XLV of 1860), Ss. 353, 385, 386 & 34—Telegraph Act (XIII of 1885), S.25-B—Sindh Arms Act (V of 2013), S.23(i)-A—Terrorism, Bhatta, recovery of weapon—Supervisory jurisdiction and revisional jurisdiction of High Court—Scope—Appeal, non-filing of—Benefit of doubt—Accused was convicted by Trial Court and sentenced variously maximum up to imprisonment for five years but he did not assail his conviction and sentence—High Court acquitted co-accused persons who had filed their appeals—Validity—High Court, had control and superintendence over courts below and could exercise visitorial jurisdiction in respect of matters which did not fall under ambit of appeals—Revisional jurisdiction could be exercised by the High Court in respect of courts below in cases where appeal or leave to appeal was not to be filed—Such jurisdiction was very wide and could be exercised whenever facts calling for its exercise or brought to the notice of the Court, where the order of Trial Court was illegal and superficial based on misconception of law and facts and quite contrary—High Court could exercise jurisdiction to correct, manifest, illegal or to prevent gross miscarriage of justice—Jail authorities were directed to release the accused as his co-accused were also acquitted of the charge—Accused was also acquitted in circumstances.

2017 PLD 653 KARACHI-HIGH-COURT-SINDH

RIZWAN AHMED QURESHI VS State

Ss. 6 & 7—Penal Code (XLV of 1860), Ss.353, 385, 386 & 34—Telegraph Act (XIII of 1885), S.25-B—Sindh Arms Act (V of 2013), S.23(i)-A—Terrorism, Bhatta, Extortion, recovery of weapon—Police encounter—Proof—Appreciation of evidence—Accused persons faced trial for demanding Bhatta by issuing a slip to complainant and also made threatening telephone calls—Accused persons were convicted by Trial Court and sentenced variously maximum up to imprisonment for five years—Validity—Handwriting on Bhatta slip was not got matched not voice was identified—No confessional statements of accused persons was on record—Names of accused persons were not mentioned in the FIR and they were supposed to be produced before Magistrate for holding identification parade but no such parade was held—First Information Report though showed that police encounter took place for few minutes in-between-police and accused persons but neither any damage was caused to the police vehicle nor any injury was caused to any police official—Such fact remained in mystery and created doubt in prosecution case—Police officials narrated different stories in their statements regarding alleged raid, seizure, recovery and property shown in Court and the same could not be safely relief upon for conviction of accused persons—Prosecution failed to prove its case against accused persons and Trial Court did not appreciate evidence properly—High Court set aside conviction and sentence awarded by Trial Court and all accused persons were acquitted of the charge—Appeal was allowed accordingly.

2017 YLR 1026 KARACHI-HIGH-COURT-SINDH

RASHID VS State

Ss. 302(b), 353, 148, 149 & 114—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, rioting armed with deadly weapon, common intention, abetment, act of terrorism—Appreciation of evidence—Recovery of weapon of offence from accused—Allegation against accused persons was that they made direct firing at deceased/police official—Accused persons had also made aerial firing with intention to create harassment and fled away after committing qatl-i-amd of deceased/police official—Weapon of offence, (pistol) had been recovered from the possession of accused—Said pistol was sent to the Ballistic Expert for examination along-with the empties recovered from the crime-scene—Report of Ballistic Expert showed that empties recovered from the place of occurrence were fired from the said weapon of offence—Recovery of pistol from the possession of accused, which was found to be used in the commission of offence, was yet another piece of evidence, which supported the prosecution case—Six empties of 9 m.m. bore, four empties of 30-bore and ten empties of Kalashnikov were recovered from the place of incident—Said recovery corresponded exactly with the claim of prosecution relating to aerial firing made by the accused persons at the spot for spreading terror—Appeal against conviction was dismissed in circumstances.

2017 YLR 1026 KARACHI-HIGH-COURT-SINDH

RASHID VS State

Ss. 302(b), 353, 148, 149 & 114—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, rioting armed with deadly weapon, common intention, abetment, act of terrorism—Appreciation of evidence—Benefit of doubt—Allegation against accused persons was that they made direct firing at deceased/police official—Accused persons had also made aerial firing with intention to create harassment and fled away after committing qatl-i-amd of deceased/police official—FIR showed that co-accused was armed with Kalashnikov but no role was attributed to him—Co-accused was only alleged to be sitting inside the car—Complainant and eye-witnesses had not assigned him any role either, except firing in the air—Co-accused, in his statement under S. 342, Cr.P.C. had submitted copies of some medical documents, indicated him to be a disabled person—No incriminating article was recovered from co-accused, which lent any credence to the allegations leveled against him—Facts and circumstances established reasonable doubt about the presence of co-accused at the spot, and his sharing common intention with the main accused, benefit of which would resolve in favour of co-accused—Appeal against accused was dismissed while co-accused was acquitted by extending him benefit of doubt.

2017 YLR 1026 KARACHI-HIGH-COURT-SINDH

RASHID VS State

Ss. 302(b), 353, 148, 149 & 114—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, rioting armed with deadly weapon, common intention, abetment, act of terrorism—Appreciation of evidence—Ocular account corroborated medical evidence—Allegations against accused persons were that they made direct firing at deceased/police official—Accused persons had also made aerial firing with intention to create harassment and fled away after committing qatl-i-amd of deceased/police official—Complainant/eye-witness had given detailed account of the incident, which was supported by witnesses—No material contradiction had come on record in spite of lengthy cross-examination—Evidence of witnesses was consistent and confidence-inspiring, which showed that accused and other two co-accused committed murder of deceased with fire-arms—Accused was arrested near the place of occurrence, while trying to flee—Post-mortem report of deceased showed three fire arm injuries on his body which was in conformity with the evidence of prosecution witnesses—No material contradiction in the evidence of witnesses which would have suggested false implication of accused was found—Circumstances established that accused was responsible for committing murder of the deceased—Appeal against conviction was dismissed in circumstances.

2017 PLD 464 KARACHI-HIGH-COURT-SINDH

Moulvi IQBAL HAIDER VS FEDERATION OF PAKISTAN

Art. 63(1)—Anti-Terrorism Act (XXVII of 1997), S.6—Protection of Pakistan Act (X of 2014), Preamble—Disqualifications for membership of Provincial Assembly—Telephonic speech delivered by head of a political party against the State and its organs—Respondents, who were elected members of Provincial Assembly and belonged to the political party in question heard the telephonic speech during a sit in strike and were accused of not taking any steps to stop the speech and thereby allegedly facilitated the offence—Petitioner filed reference against the respondents before the Speaker of the Provincial Assembly seeking their disqualification in terms of the Art.63 of the Constitution—Held, that none of the situations envisaged under Art.63(1)(a) to (p) of the Constitution under which a Member of Majlis-e-Shoora (Parliament) could be disqualified, had been cited by the petitioner, on the contrary, on the basis of some vague allegations against the founder leader of a political party, and in the absence of any concrete material produced by the petitioner, reference was filed before the Speaker of the Provincial Assembly for seeking disqualification of respondents—No direct allegation was made against the respondents for having committed any offence, which may attract any of the provisions of the Constitution or the provisions of Anti-Terrorism Act, 1997 or Protection of Pakistan Act, 2014—Admittedly, nothing had been attributed to respondents, which may suggest that they had raised any Anti-State slogans or facilitated or participated in any activity which could possibly attract any cognizable offence under Anti-Terrorism Act, 1997 or the Protection of Pakistan Act, 2014—Petitioner did not file the authenticated audio or written version of the purported telephonic speech, nor established any overt role of respondents toward knowledge, facilitation or even participation in respect of objectionable part of such telephonic audio speech—Respondent were the elected Members of Provincial Assembly and represented the will of the large number of voters in their respective constituencies, who had casted their votes in favour of respondents, therefore, in the absence of any valid reasons as provided under Art.63 of the Constitution they could not be de-seated on the basis of mere whims and baseless allegations by some individual, who did not prima facie have any locus standi or cause of action even to file such reference—Constitutional petition was dismissed accordingly.

2017 PCrLJ 1280 KARACHI-HIGH-COURT-SINDH

MUHAMMAD AKBAR KHAN VS SHO P.S. GARHI KHAIRO, DISTRICT JACOBABAD

Ss. 190, 193 & 526(3)—Anti-Terrorism Act(XXVII of 1997), Ss. 6, 7 & 23—Transfer of case from court of ordinary jurisdiction to Anti-Terrorism Court—Scope—Allegations against the accused petitioner were that they assaulted upon the complainant party with deadly weapons; in consequence of which nine persons received injuries, out of which six succumbed to injuries—Accused party in order to spread terror, fired Rocket Launcher upon the complainant party—Accused persons joyously fired in the air—Police submitted challan before the court of ordinary jurisdiction—Court of ordinary jurisdiction holding that case against the accused petitioner was triable by Anti-Terrorism Court and sent the case to the Anti-Terrorism Court—Validity—Record showed that neither accused nor other side had been heard and the court of ordinary jurisdiction had straightway decided the question of jurisdiction thereby causing miscarriage of justice—Such findings being against the principles of natural justice, were patently illegal and liable to be set aside—Constitutional petition was allowed and matter was remanded to the court of ordinary jurisdiction with the direction to issue notice to Prosecutor General, accused and complainant party and after hearing all the concerned, pass appropriate order.

2017 PLD 387 KARACHI-HIGH-COURT-SINDH

MUHAMMAD RASHID VS State

Ss. 6, 7(a) & 23—Penal Code (XLV of 1860), S. 302—Murder—Act of terrorism—Ingredients—Accused were aggrieved of order passed by Anti-Terrorism Court, declining to transfer case to court of plenary jurisdiction—Plea raised by accused persons was that ingredients of terrorism were missing in the case—Validity—Case of murder did not automatically become an act of terrorism under Anti-Terrorism Act, 1997—In addition to murder, other ingredients which formed a part of S.6 of Anti-Terrorism Act, 1997 also needed to be satisfied based on facts and circumstances of each case—Such additional ingredients included whether act was designed to coerce and intimidate or overawe government or public or a section of public or community or sect or foreign government or population or any international organization or created a sense of fear or insecurity in society along with necessary intent—Deceased was a senior activist of a major political party and her murder was intended to spread fear amongst other members/potential voters of that political party shortly before re-election in the constituency—Such offence of murder fell within ambit of S.6 Anti-Terrorism Act, 1997 as other ingredients had also been met—High Court declined to interfere in order passed by Anti-Terrorism Court—Revision was dismissed in circumstances.

2017 MLD 1535 KARACHI-HIGH-COURT-SINDH

GHULAM ABBAS VS State

497—Penal Code (XLV of 1860), Ss. 324, 353, 392, 337 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6/7—Sindh Arms Act (V of 2013), S. 23-A—Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharging of his duty, robbery, shajjah, common intention, act of terrorism, possessing unlicensed arms—Bail, grant of—Principle—When reasonable doubt existed with regard to the participation of accused in the crime or about the truth or probability of the prosecution case and the evidence proposed to be produced in support of the charge, accused would not be deprived of benefit of bail.

2017 MLD 1535 KARACHI-HIGH-COURT-SINDH

GHULAM ABBAS VS State

S.497—Penal Code (XLV of 1860), Ss. 324, 353, 392, 337 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6/7—Sindh Arms Act (V of 2013), S. 23-A—Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharging of his duty, robbery, shajjah, common intention, act of terrorism, possessing unlicensed arms—Bail, grant of—Further inquiry—Accused was charged in FIR for firing on police party with the intention to kill them when police party raided for the arrest of accused wanted in another criminal case—Record showed that son of accused had been killed in the alleged incident and wife of accused had sustained injuries in the incident but Investigating Officer had suppressed the injuries—Prosecution case was that there was exchange of fires from both sides with sophisticated weapons in which only one Police Official of the police party received firearm injury on his non-vital part of the body—Facts and circumstances suggested that ingredients of S. 324, P.P.C. and S. 7 Anti-Terrorism Act, 1997 were yet to be determined at trial—Prima facie, case against the accused required further inquiry—Accused was therefore, allowed bail in circumstances.

2017 MLD 1321 KARACHI-HIGH-COURT-SINDH

ABDUL AZIZ VS MUHAMMAD PUNHAL

S.6—Jurisdiction of Anti-Terrorism Court, determination of—Complainant had challenged the order passed by Anti-Terrorism Court, by which it was directed the Investigating Officer to submit challan of accused before the ordinary criminal court—Validity—Commission of any act, creating fear and insecurity in any Section of people would fall within the ambit of case as contemplated under S. 6 of Anti-Terrorism Act, 1997 and Anti-Terrorism Court would assume the jurisdiction for trial of such a case.

2017 MLD 1321 KARACHI-HIGH-COURT-SINDH

ABDUL AZIZ VS MUHAMMAD PUNHAL

Ss.302, 364-A, 201 & 377—Anti-Terrorism Act (XXVII of 1997), Ss. 6(b), 7(e) & 23—Qatl-i-amd, kidnapping a person under the age of ten, causing disappearance of evidence of offence, un-natural offence, act of terrorism—Application for transfer of case from Anti-Terrorism Court to ordinary criminal court was allowed—Validity—Prosecution case was that accused kidnapped the minor son of complainant, murdered him by strangulation after committing carnal intercourse and then his body was thrown in river—Dead body of the deceased boy was recovered from the river—When dead body of the minor boy was taken out from river and brought for burial, it would have certainly caused not only shock to the parents and close relatives but also created fear and insecurity amongst the people of vicinity having children of same age—Offence committed in presence of people could not only create insecurity in the minds of people but its impact upon minds of people was to be seen—In the present case, the way the boy was kidnapped, sexually assaulted, killed by strangulation and thrown into river, recovery of dead body in such mutilated shape was not only the kind of occurrence which would not create terror and horror in the people or any section of people but the onlookers must have felt fear and insecurity on seeing the barbaric and callous manner in which the innocent boy was killed—Such act of the accused was not only heinous but would come within the definition of “terrorism”—Application was therefore, allowed and case was directed to be tried by Anti-Terrorism Court.

2017 YLRN 449 KARACHI-HIGH-COURT-SINDH

ZAHOOR AHMED VS State

Ss. 6, 7 & 23—Penal Code (XLV of 1860), Ss.302, 324, 311, 387, 148 & 149—Qatl-i-amd, attempt to commit qatl-i-amd, ta’zir after waiver or compounding of right of qisas in qatl-i-amd, putting person in fear of death or of grievous hurt in order to commit extortion, rioting armed with deadly weapon, common intention, unlawful assembly act of terrorism—Transfer of case from Anti-Terrorism Court to ordinary criminal court was sought contending that proceedings against the accused party before the Anti-Terrorism Court were without jurisdiction, without lawful authority and of no legal effect—Validity—Record showed that there was a personal enmity between the parties over a piece of land—No allegation of sectarian and religious issues and no threat or over-awe to society or section of people or public was alleged in the case—Admittedly, one of the deceased was public servant but he was not on official duty at the time of occurrence—No criminal record was available against the accused, which showed their involvement in terrorist activities or land grabbing— Allegation regarding demanding “Bhatta” by the accused/ applicant could not be established—Record showed that counter FIR had been lodged by the accused party against the complainant party—In both the FIRs, Ss. 6 & 7 of the Act of 1997 were applied but only the case of counter FIR was returned by the Court with the direction to submit the same before the court of ordinary jurisdiction—Application of accused party to transfer the case of complainant to the court of ordinary jurisdiction was dismissed—High Court observed that dispute was between the complainant party and accused party over possession of government plot on lease basis—Question of creating “terror” in the minds of general public had not arisen, thus the alleged offence had no nexus with Ss. 6 & 7 of Anti-Terrorism Act, 1997—Petition was allowed accordingly.

2017 YLRN 443 KARACHI-HIGH-COURT-SINDH

TAJ MUHAMMAD alias TAJO RIND VS State

Ss. 302, 324, 353, 404, 365 & 149—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, dishonest misappropriation of property possessed by deceased person at the time of his death, kidnapping or abducting with intent secretly and wrongfully to confine person, unlawful assembly, terrorism—Application of evidence—Name of accused was mentioned in FIR and prosecution case was silent as to how the accused was known to the complainant and other witnesses—Witnesses had deposed against accused in unequivocal manner that he was armed with Kalashnikov and hand grenade and in order to commit murder of police officials and to rob arms and ammunitions from the Police Station, he had made direct firing—No material showing enmity of Police Officials against accused or to falsely implicate him was available—Accused was not alleged to have been involved in any other criminal case—As to how witnesses were able to identify accused on the day of incident was not clear—Witness had stated that he identified accused and others in the light of bulbs installed in Police Station but Investigating Officer in his cross-examination revealed that there was no electricity bulb in the Police Station or in its surroundings but there were gas-lamps providing light to Police Station—Site-plan and sketch had shown points where either electric bulbs or gas lamps providing light to police station were installed—One witness who got injured and his brain was protruding out slightly, allegedly regained his senses after about 20 minutes of the receiving head injury and identified culprits exactly by names, which was highly improbable and doubtful—Looted arms and ammunition was recovered subsequently from ditches or from abandoned places and not from any of the accused—Bullet casings were not sent to Forensic Expert for report—FIR was registered after the delay of almost eight hours—Keeping in view evidence of eye-witnesses, Investigating Officer, medico-legal officer and tapedar in juxtaposition, it would lead to an irresistible inference of innocence of accused—While extending benefit of doubt to the accused he was acquitted of the charge—Appeal was allowed accordingly.

2017 YLRN 442 KARACHI-HIGH-COURT-SINDH

BUKHSHAL VS SPECIAL JUDGE (ANTI TERRORISM), HYDERABAD

6— “Terrorism”— Essential elements—To constitute an offence of terrorism for the purpose of attracting any provision or Schedule to Anti-Terrorism Act, 1997, the element of striking terror or creating of sense of fear and insecurity in public at large by doing any act or thing was essential—Such act should be committed with the sole object to terrorize the people and to feel them insecure.

2017 YLRN 442 KARACHI-HIGH-COURT-SINDH

BUKHSHAL VS SPECIAL JUDGE (ANTI TERRORISM), HYDERABAD

Ss. 6, 7 & 23—Penal Code (XLV of 1860), Ss. 302, 120-B, 337-H(2) & 34—Qatl-i-amd, criminal conspiracy, hurt, common intention—Act of terrorism—Scope—Transfer of case to court of ordinary jurisdiction—Validity—Accused persons had impugned the order passed by Special Judge, Anti-Terrorism Court whereby application under S.23, Anti-Terrorism Act, 1997 filed by accused persons for transfer of case to ordinary Court was dismissed—Feud existed between the parties over the management of a Dargah—No independent evidence had been collected by prosecution to prima facie establish that the act of accused had created panic and stretched sense of insecurity and spread terror among the public at large present on the spot—Even there was no iota of evidence that people present on the spot started running and due to panic the shopkeepers shutter down their shops—Alleged offence was not an “act of terrorism” but the factum of old animosity between both groups which was reflected from lodgment of several FIRs—No extra-ordinary circumstances existed in the present case to justify that trial of case should be conducted by Anti-Terrorism Court— Revision application was allowed accordingly.

2017 YLRN 275 KARACHI-HIGH-COURT-SINDH

NAZEER ALI alias NAZEER VS State

392—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7(b), (h)—Robbery, act of terrorism—Appreciation of evidence—Prosecution version was that at 1:45 am. on Link Road, while, committing robbery of the car, a Police party, during routine patrolling, reached there and was attacked by the culprits—Accused, or per allegations, had not made attack on the Police party to create any terror, or sense of fear, or insecurity in the people, but all of a sudden on seeing the Police party, accused made firing in order to escape from wardat—Intention of accused, was not at all to create sense of insecurity, or de-stabilize the public-at-large—Design, or purpose of the offence as contemplated under S.6 of Anti-Terrorism Act, 1997 was not attracted—Anti-Terrorism Court, had no jurisdiction to try the present case—Trial was vitiated and the impugned judgment being untenable, was set aside—Case was remanded to judge Anti-Terrorism Court, which would remit the case to the ordinary court having jurisdiction for its disposal according to law.

2017 PCrLJN 246 KARACHI-HIGH-COURT-SINDH

MASHOOQUE ALI VS State

377—Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7 & 23—Sodomy—Application for transfer of case from Anti-Terrorism Court to ordinary criminal court with contention that proceedings against the accused before the Anti-Terrorism Court in the present offence would not fall within the ambit of S. 6, Anti-Terrorism Act, 1997 and trial before Anti-Terrorism Court under S. 7, Anti-Terrorism Act, 1997 would be coram non judice—Validity—Prosecution case was that accused was armed with pistol and he had taken the minor son of complainant to a room and committed sodomy with him by force—Record showed that accused committed act of sodomy in a room—Motive of the accused was only to commit unnatural offence—Application of S. 7, Anti-Terrorism Act, 1997, which primarily required spread of sense of insecurity and fear in people lacked in the present case—Circumstances established that Anti-Terrorism Court had no jurisdiction to try the offence, as it did not fall within the ambit of Anti-Terrorism Act, 1997 and was triable by an ordinary criminal court having jurisdiction—Application for transfer of case to ordinary court was allowed.

2017 PCrLJN 234 KARACHI-HIGH-COURT-SINDH

SHER HAKEEM VS State

Ss. 6(2)(ee), 7(ff) & 25—Explosive Substances Act (VI of 1908), Ss. 4 & 5—Sindh Arms Act (V of 2013), S. 23(1)-A—Criminal Procedure Code (V of 1898), S. 342—Terrorism, recovery of explosives and arms—Appreciation of evidence—Mis-description of explosive—Failure to confront accused with evidence in his statement under S. 342, Cr.P.C.—Hand grenades and pistol were recovered from accused and he was convicted by Trial Court on different charges and various sentences were imposed maximum upto fourteen years of imprisonment—Validity—FIR and memo of arrest and seizure specified incendiary/explosive device recovered from accused to be a ‘hand grenade’ and the same formed basis of charge and thereafter consistently referred to by such description in the depositions of prosecution witnesses—Inspection Report showed that the subject of what was examined were ‘rifle grenades’—Such glaring and obvious contradiction could not be reconciled and was fatal to prosecution’s case, especially as the same was based on alleged factum of recovery—High Court dispelled plea of lack of expertise on the part of police personnel—Letter addressed to Senior Superintendent of Police seeking permission for the matter to be tried under S. 7 of Anti-Terrorism Act, 1997, whilst referring to the recovery of ‘hand grenades’ also recorded that the same were defused through Bomb Disposal Unit Report—Such report of Bomb Disposal Unit did not appear to form part of record of trial—Accused was not confronted with the Bomb Disposal Unit Report at the time of statement under S. 342, Cr.P.C.—Such omission precluded the documents from being used as evidence against him at trial—No material was available to controvert such omissions and irregularities—High Court set aside conviction and sentence awarded to accused as such factors served to create appreciable doubt as to the veracity of prosecution case—Appeal was allowed in circumstances.

2017 PCrLJN 230 KARACHI-HIGH-COURT-SINDH

KAMRAN KHAN alias DOCTOR VS State

Ss. 6 & 23—-Police Act (V of 1861), S. 22—Transfer of cases to ordinary criminal courts—Act of terrorism—‘Terror’ and ‘terrorism’—Distinction and scope—Act of terrorism—Scope—Murder of a policeman—Attack on the symbol of the State’s authority—Anti-Terrorism Court turned down the application for transfer of the case to ordinary criminal court—Accused took the plea that since the deceased police officer was not on duty at time of the incident, therefore, the offence did not fall under S. 6 of Anti-Terrorism Act, 1997 and the case was to be tried by ordinary criminal court—State counsel contended that the deceased policeman was to be treated always on duty under the law—Validity—Case of murder in terms of S. 6 of Anti-Terrorism Act, 1997 did not automatically become an “act of terrorism” under the Act, the other ingredients, which formed part of S. 6 of the Act, also needed to be satisfied based on the facts and circumstances of each case—Difference between ‘terror’ and ‘terrorism’ was the design and purpose understood in the criminal jurisprudence as mens rea—In case of ‘terror’ the act, or the actus reus was not motivated to create fear and insecurity in the society at large, but the same was actuated with a desire to commit a private crime against targeted individuals, etc., and the fear and insecurity created by the act in the society at large was only an unintended consequence or a fall out thereof; whereas, in case of ‘terrorism’, the main purpose was the creation of fear and insecurity in the society at large and the actual victims, by and large, were not the real targets—Real test to determine whether a particular act was an act of ‘terrorism’ or not was the motivation, object, design or purpose behind the act and not the consequential effect created by such act—Brutality or scale of the crime did not necessarily bring the case within the purview of Anti-Terrorism Act, 1997, but the intention behind the act, which could be inferred from the facts and circumstances of the case, was one of the many factors for determining whether or not a case of murder was an ordinary case of murder to be tried by the ordinary criminal courts or a case of murder which would amount to ‘terrorism’ coming within the ambit of Anti-Terrorism Act, 1997—High Court observed that Pakistan was passing through turbulent times in terms of threats to its internal security, and the law and order situation had been in poor state for many years; hence, prevailing sense of insecurity existed amongst members of public—Courts, nevertheless, could not allow themselves to be blinded by the current situation in respect of acts of ‘terrorism’ being carried out in the country and treat every crime, such as murder, as falling under Anti-Terrorism Act, 1997 in a mechanical fashion—Facts, circumstances and intention behind each offence must be considered and correct law in terms of jurisdiction must be carefully applied—Fact that the murdered person was a policeman, would not bring the act within the ambit of S. 6(2)(n) of Anti-Terrorism Act, 1997, and motive behind the murder of the policeman was to be established first—In case the motive for the murder was on account of private dispute and did not escalate beyond his murder as opposed to intimidating or terrorizing the police force or the public then the same might not fall within S. 6 of the Act—In the present case, however, nothing was shown to the effect that the deceased policeman had any enmity with any one; the deceased was in a crowded hotel in broad day light during the middle of the day where other members of the public would have been present, when two unknown persons came on motorcycle and shot him three times and took away his service pistol—Whether or not the deceased was on duty at time of the incident was of little significance—Deceased had been killed because he was policemen with a view to spread fear not only amongst servicing members of the police force but also members of the public, who were present nearby—Attacks on, and murder of, members of the police force, which had become quite frequent occurrence in recent times, must be regarded as crimes of the most serious nature, and the same needed to be discouraged and dealt with firmly—Since role of the police, by and large, was to serve and protect the public on behalf of the State, and as such, an attack on the police could be regarded as attack against a symbol of the State’s authority—Even if the deceased were not the police officer, his cold blooded murder, based on the facts and circumstances of the case, must have been intended to place a sense of fear and insecurity, especially amongst those present at the time of the incident or in the locality of the incident—Anti-Terrorism Court had rightly held that the offence was not a case of simple murder—Impugned order was upheld—Revision petition was dismissed accordingly.

2017 PCrLJN 147 KARACHI-HIGH-COURT-SINDH

NAEEM ULLAH NIAZI VS State

6 (2)(ee)—Explosive Substances Act (XI of 1908), Ss. 4 & 5—Sindh Arms Act (V of 2013), S. 23(1)(a)—Criminal Procedure Code (V of 1898), S. 103—Use of explosives by any device, keeping explosive with intent to endanger life or property, possessing unlicensed arms—Appreciation of evidence—Sentence, reduction in—Defence objected that no independent witnesses were associated at the time of search, which was violation of S. 103, Cr.P.C.—Validity—In searches which took place in broad daylight in a crowded area, it would not be fatal to a case if independent witnesses were not associated with the search—Law could not be ignored on this issue but its lack of application would not be fatal to a case where the crime was serious and other evidence was compelling—No enmity, bias or mala fide had been shown against the prosecution witnesses, who happened to be Police Officers—Police Officers were as good as any other witness in respect of searches—Circumstances established that non-association of independent witnesses at the time of searches would not be fatal—Appeal against conviction was dismissed, however the sentence was reduced from imprisonment for fourteen years to imprisonment for ten years.

2017 PCrLJN 147 KARACHI-HIGH-COURT-SINDH

NAEEM ULLAH NIAZI VS State

6 (2)(ee)—Explosive Substances Act (XI of 1908), Ss. 4 & 5—Sindh Arms Act (V of 2013), S. 23(1)(a)—Use of explosives by any device, keeping explosive with intent to endanger life or property, possessing unlicensed arms—Appreciation of evidence—Sentence, reduction in—Prosecution case was that one hand grenade and one .30-bore pistol along with three live rounds in its magazine were recovered from the possession of accused—Witness/initiator stated the details of arrest and recovery, which was similar to the FIR, filed by him—Statement of witness produced by prosecution was fully corroborating the statement of initiator—Witnesses were not damaged by cross-examination— Evidence of prosecution witness was corroborative, reliable and trustworthy but contained only a few minor inconsistencies, which had no effect on the outcome of the case—Accused had alleged in his statement recorded under S. 342, Cr.P.C., that police had falsely implicated him in the case because he was son of a retired head constable and police held a departmental grudge against him—No such allegation was put to any of the prosecution witness—No witness was called by the accused to prove said version, which showed that same was an afterthought—During cross-examination of the prosecution witnesses, it was not suggested that no recovery had been made from accused of either the hand grenade or the pistol—Positive reports of Forensic Science Laboratory and Bomb Disposal Squad were available on the record—Circumstances and facts established that prosecution had proved its case against the accused beyond a reasonable doubt based on corroborative and reliable oral as well as documentary evidence, which was not dented during the cross-examination, however, accused was said to be a first offender and the sole bread winner of his family, therefore appeal was dismissed but sentence was reduced from fourteen years to ten years.

2017 PCrLJN 147 KARACHI-HIGH-COURT-SINDH

NAEEM ULLAH NIAZI VS State

6(2)(ee)—Explosive Substances Act (XI of 1908), Ss. 4 & 5—Sindh Arms Act (V of 2013), S. 23(1)(a)—Use of explosives by any device, keeping explosive with intent to endanger life or property, possessing unlicensed arms—Appreciation of evidence—Sentence, reduction in—Consent of Provincial Government for trial of case—Requirements—Accused objected that consent of the Provincial Government had not been obtained to try the offence under the Explosive Substances Act, 1908, therefore, the trial had been vitiated—Validity—Evidence of the prosecution witnesses showed that some kind of consent had been acquired from the Provincial Government—If consent had not been obtained from the Provincial Government and trial was conducted under the Anti-Terrorism Act, 1997 before the Anti-Terrorism Court, it was not necessary to obtain such consent as per S. 19(8b) of the Anti-Terrorism Act, 1997—Section 19(8b) provided that if the consent or sanction of the appropriate authority, where required, was not received within 30 days of the submission of the challan in the court, the same would be deemed to have been given or accorded—Anti-Terrorism Act, 1997 was a special law and would prevail over other laws—Lack of consent under S. 7 of Explosive Substances Act, 1908 in the present case was of no effect—Appeal against conviction was dismissed, however the sentence was reduced from imprisonment for fourteen years to ten years.

2017 PCrLJN 77 KARACHI-HIGH-COURT-SINDH

MUHAMMAD NAEEM VS State

Ss. 384, 386 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6(2)(k) & 7—Extortion by putting a person in fear of death or grievous hurt, common intention and terrorism—Appreciation of evidence—Benefit of doubt—Bhatta, receiving of—Negotiation between the complainant and culprits about the amount were going on between 10.6.2013 and 12.6.2013; during that period, complainant did not go to the police to inform about the alleged incident—Complainant gave Bhatta amount on 12.6.2013 at about 6.00 p.m. to the culprits and on the same day at about 10.00 p.m. the culprits were shown to the complainant in lockup—FIR was lodged after the visit of complainant at the Police Station where the culprits were locked—Complainant recognized one accused only—Weapon of offence was recovered on the pointation of accused—No evidence was available with the prosecution against the co-accused—Such circumstances created doubt about the veracity of prosecution story, benefit of which resolved in favour of accused—Appeal filed by accused, in circumstances, was dismissed, with the modification that the sentence awarded to him by the Trial Court was reduced to the period already undergone, while the appeal of co-accused was allowed and conviction and sentences recorded by Trial Court were set aside.

2017 PCrLJN 77 KARACHI-HIGH-COURT-SINDH

MUHAMMAD NAEEM VS State

Ss. 384, 386 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6(2)(k) & 7—Extortion by putting a person in fear of death or grievous hurt, common intention and terrorism—Appreciation of evidence—Benefit of doubt—Omission on the part of Investigating Officer—Effect—Accused were not arrested in the present case nor they were arrested at the spot—Victim/brother of complainant did not lodge any complaint against the accused persons—Investigating Officer had arrested the accused persons only to show his performance before their highups—Accused persons were already in police custody in some other case and locked up at some other police station—Complainant recognized accused and weapon of offence was also recovered on the pointation of accused—No evidence against co-accused was available with the prosecution—Such circumstance had created reasonable doubt about the veracity of prosecution case, benefit of which resolved in favour of accused—Appeal filed by accused was dismissed, with the modification that the sentence awarded to him by the Trial Court was reduced to the period already undergone, while the appeal of co-accused was allowed and conviction and sentences recorded by Trial Court were set aside.

2017 PCrLJN 77 KARACHI-HIGH-COURT-SINDH

MUHAMMAD NAEEM VS State

Ss. 384, 386 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6(2)(k) & 7—Extortion by putting a person in fear of death or grievous hurt, common intention and terrorism—Appreciation of evidence—Sentence, reduction in—Complainant had alleged that two boys came on bike to collect Bhatta amount of Rs. 80,000—Complainant had only identified accused but there was no evidence against the co-accused—Recovery was made on the pointation of accused—Mere presence of the co-accused in the lockup was not sufficient to connect him with the commission of offence—Appeal by accused was dismissed, with the modification that the sentence awarded to him by the Trial Court was reduced to the period already undergone, while the appeal of co-accused was allowed and conviction and sentences recorded by Trial Court were set aside.

2017 PCrLJN 77 KARACHI-HIGH-COURT-SINDH

MUHAMMAD NAEEM VS State

Ss. 384, 386 & 34—Anti-Terrorism Act (XXVII of 1997), Ss.6(2)(k) & 7—Extortion by putting a person in fear of death or grievous hurt, common intention and terrorism—Appreciation of evidence—Bhatta, receiving of—Proof—Prosecution case was that some persons made a telephone call to the brother of complainant and demanded Rs. ten lac as Bhatta and were extended threats to kill him in case of non-payment—Case of prosecution hinged around the evidence of two witnesses—Main victim and star witness of prosecution who received telephone call of alleged accused persons was not cited as witness—Said victim was never examined at any stage of trial—Complainant had faced the accused persons but he recognized only one accused—Evidence against the accused was that the empties which were recovered from the place of incident were fired from the pistol recovered from the possession of accused—Co-accused was not recognized by the complainant—Testimony of other prosecution witness showed that he was almost, with the complainant but his evidence was hearsay only received through the complainant—Appeal filed by accused was dismissed, with the modification that the sentence awarded to him by the Trial Court was reduced to the period already undergone, while the appeal of co-accused was allowed and conviction and sentences recorded by Trial Court were set aside.

2017 PLD 218 ISLAMABAD

Salman Shahid VS Federation of Pakistan

Ss. 6(2)(f) & (p)—Penal Code (XLV of 1860), S. 295-C—Use of derogatory remarks, etc., in respect of Holy Prophet (p.b.u.h.)—Act of “terrorism”—Scope— ?

2017 PLD 55 HIGH-COURT-AZAD-KASHMIR

The STATE through Advocate General of the State of J&K, Muzaffarabad VS MUHAMMAD IDREES JARRAL

497(5)—Penal Code (XLV of 1860), Ss.324, 337-F(i)(iv), 337-G, 353, 279 & 34—Anti-Terrorism Act (XXVII of 1997), S.6(2)—Attempt to commit qatl-i-amd, causing Damiah, Mudihah, hurt by rash or negligent driving, rash driving, assault or criminal force, common intention—Bail, grant of—During investigation offences under S.324, P.P.C., and S.6(2) of Anti-Terrorism Act, 1997 were added, but later on after investigation same had been deleted by the Police as no evidence could be recorded in relation to those offences—After completion of evidence challan had been submitted for the offences under Ss.337-F(i)(iv), 337-G, 353, 279 & 34, P.P.C. and in view of punishment provided for said offences, case of accused persons did not come within the ambit of prohibited clause of S.497, Cr.P.C.—Investigation in the case had been completed and challan had been submitted before the Trial Court—Accused persons were no more required for investigation—Bail in such like cases, was rule and its refusal was an exception—If the court of competent jurisdiction had released accused on bail, very strong and exceptional grounds were required to cancel the same—No allegation was on record to the effect that accused persons after the occurrence had committed any other offence; or they had misused the concession of bail; or they were tampering or interfering with the prosecution evidence—In absence of exceptional grounds or circumstances, order granting bail by the Trial Court, did not require any interference by High Court.

2017 YLR 1665 Gilgit-Baltistan Chief Court

SARDAR ALI VS State

497—Penal Code (XLV of 1860), Ss. 188, 341, 295-A & 298-A—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Disobedience to order duly promulgated by public servant, wrongful restraint, deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs, use of derogatory remarks etc., in respect of holy personages—Bail, grant of—Further inquiry—Accused and one hundred other persons allegedly took out a procession in violation of an agreement with the local administration and chanted slogans—Contention that no sanction was required for registration of case under S. 295-A Penal Code, 1860 was misconceived— Provisions of S. 196, Cr.P.C. were mandatory in nature and non-compliance had brought the case of accused persons within the compass of further inquiry under S. 497(2), Cr.P.C.—Bail was granted accordingly.

2017 YLR 1232 Gilgit-Baltistan Chief Court

ASSAD ULLAH VS State

497—Penal Code (XLV of 1860), Ss.302 & 34—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7, 19(7)(8), 21-D & 21-L—Qatl-i-amd, common intention, act of terrorism—Bail, grant of—No substantial progress had been made towards conclusion of the trial of the case, even after lapse of over 3 years—Speedy and fair trial was an inherent right of accused guaranteed by the Constitution, as well as by Part II of Gilgit-Baltistan (Self-Empowerment and Governance) Order, 2009—Liberty of a person, could not be curtailed, except in accordance with law—Accused was granted bail.

2017 YLR 936 Gilgit-Baltistan Chief Court

SHAKEEL AHMED VS State

Ss. 376, 377, 363, 392, 506, 337-A & 34—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Rape, unnatural offence, kidnapping, robbery, criminal intimidation, causing Shajjah, common intention, act of terrorism—Appreciation of evidence—Jurisdiction of special court of terrorism—Transfer of case to ordinary criminal court—Forcible abduction with intention of committing rape—FIR, containing report of commission of forcible rape—Said offence being of ordinary nature, trial of the same by ordinary criminal court was sufficient and correct—Trial Court had convicted accused persons under S.7(e) of Anti-Terrorism Act, 1997 without framing any charge for the said offence, which was an irregularity—Trial Court must have sent the case to ordinary court when accused persons were charge-sheeted for trial—Conducting of trial by a Special Court, was against all norms of criminal administration of justice as ordinary courts were competent to try cases of ordinary nature—Impugned order of conviction/ sentence was set aside and chief court directed the transfer of charge-sheet/ challan of the case to the Court of Session Judge, who would complete all trial proceedings of accused persons after de novo trial of accused persons—Trial Court would have to expunge all sections of Anti-Terrorism Act, 1997.

2017 PCrLJ 1669 Gilgit-Baltistan Chief Court

NADEEM ABBAS VS State

Ss.302, 34 & 376—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Qatl-i-amd, common intention, rape, act of terrorism—Appreciation of evidence—Benefit of doubt—Occurrence in the case was an unseen one devoid of the presence of any eye-witness—Prosecution version was that deceased while being unconscious was raped by accused, but the negative report of Pathologist regarding the presence of spermatozoa in the vaginal swabs of the deceased belied the prosecution version—Medical team was bound to unearth the cause of death and to come up with accurate and credible findings in that regard, but the exhumation report revealed that the same had been done in a routine manner—None of the quoted methods had been applied to dig out the truth nor there existed a finding that the employment of said methods was either not possible or there were any sort of impediments in doing so—Evidence adduced by the prosecution was barren to such an extent that it was quite incapable of germinating the seed of conviction in any manner—Motive as alleged by the prosecution saw the light of the day only after accused persons made confessional statements recorded under S.21-H of Anti-Terrorism Act, 1997—If for the sake of argument, the confessional statements of accused persons were considered to be correct despite their legal infirmity, even then same were not probative enough to yield positive results for the prosecution—“Memory Card”, which laid the foundation of whole transaction, neither was recovered from accused nor any evidence was put forth by the prosecution regarding the fate of said memory card—Mortar which could have been used to erect the superstructure of prosecution’s case turned into rubbles because of the happy go lucky behaviour shown with respect to the collection of corroboratory evidence by both the Investigating Officers—Venue of occurrence as depicted in the site plan, negated prosecution version—Dining hall where the deceased was allegedly hanged was adjacent to the sleeping room where all the under-training nurses, who were fourteen in number used to sleep—Testimony of prosecution witness was of vital importance since it unraveled a number of mysterious knots of the controversy—No last seen evidence was available which could even remotely suggest that the deceased was either rang up or taken out by co-accused—Chronological sequence of certain happenings which occurred during the course of investigation and the recoveries effected, also had a telling effect on the prosecution case—Recovery of pillow; was also of no avail to the prosecution case—If the same was taken to be the weapon of offence, the exhumation report by virtue of which the Medical Board found ligature marks, dashed down to the ground, because ligature could be anything used to compress the throat to block the air supply—Evidence of extra-judicial confession also cut a sorry figure with respect to the case of prosecution—Prosecution which was supposed to prove its case up to the hilt beyond any shadow of doubt, had failed to do so—Thick mist of doubt was looming over the prosecution case—No reliance could be placed on the evidence produced by the prosecution—All accused persons were acquitted of the charge extending them benefit of doubt and they were ordered to be released forthwith, in circumstances.

2017 PCrLJ 1669 Gilgit-Baltistan Chief Court

NADEEM ABBAS VS State

Ss.302, 34 & 376—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Qatl-i-amd, common intention, rape, act of terrorism—Appreciation of evidence—Benefit of doubt—Trial Court had nowhere in the impugned judgment incorporated/entrusted the motive of the offence—Police had claimed recovery of a video of accused having sexual intercourse with the deceased, but same was neither found to be placed on record nor witness was produced in support of recovery memo, rather he was abandoned—Prosecution had also failed to prove sexual assault by accused with the dead body of the deceased—Prosecution had failed to include the names of the persons to whom accused handed over the mobile phone of the deceased lady, nor the contents of the record of messages were verified/confronted before the Trial Court—Statement of the sole witness trainee, who was sleeping in hostel at night of the occurrence with the other inmates, created serious doubts on the story of the prosecution—Prosecution had failed to interlink the chain of corroboration/circumstantial evidence in the case and the chain of circumstantial evidence from taking of the possession of mobile phone to their numbers and the ownership, usage and the calls, messages received through other mobile phone to that of the alleged murder of deceased lady, was not established—Prosecution had failed to connect to the extent of co-accused in commission of alleged offence—Benefit of doubts, was extended to accused—Impugned judgment of the Trial Court was set aside, accused were acquitted and ordered to be released forthwith, in circumstances.

2017 PCrLJ 1669 Gilgit-Baltistan Chief Court

NADEEM ABBAS VS State

Ss.302, 34 & 376—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Qatl-i-amd, common intention, rape, act of terrorism—Appreciation of evidence—Occurrence being unseen, there was no eye-witness—Only evidence against accused persons was circumstantial evidence and second medical report, which contradicted the first medical report on very crucial aspects of the occurrence—Evidence on record regarding messages and calls between accused and the deceased, had shown that accused had connection with the deceased—Trial Court had wrongly relied on confessional statement of accused persons as same had been recorded by the Police Officer, though judicial Magistrates were conveniently available—Only piece of evidence, which could not be ignored, was the second medical report—Doctors conducted the said second report on the dead body of deceased after exhuming the same from the tomb where deceased was buried—Prosecution had established the facts that the dead body which was subjected to the second post-mortem was of the deceased—Prosecution evidence comprised the second medical report and post-mortem report—Comparative study of both the reports, had shown that the first report was very short and summary, while the second medical report contained all necessary details that correctly related to the opinion of the Board of Doctors—First report was prepared without internal examination of the dead body of deceased, while the second report showed through examination of different internal parts of the body of deceased—Opinion of the Board of Doctors had shown that deceased received injuries at different parts of her body before she was murdered—Opinion of the doctors of the Board, very clearly contradicted the first medical report regarding the causes of death of the deceased—Court relied on the second medical report and held that the Trial Court had correctly relied on the same—Second medical report was correct and cause of death of the deceased was her murder by accused persons and not because of any suicide etc.—Sentence/conviction passed by the Trial Court, were upheld and appeals were dismissed—Murder Reference also answered affirmatively.

2017 PCrLJ 757 Gilgit-Baltistan Chief Court

ZAKIR HUSSAIN VS State

6(1)(b)—Act of terrorism—Scope—If after the commission of an act, a wave of terror strikes the society, it is more than sufficient to attract the provision of Anti-Terrorism Act, 1997—Terror or fear was a state of mind which keeps one’s mind under the continuous apprehension of being insecure.

2017 MLD 2035 Gilgit-Baltistan Chief Court

MEHBOOB VS State

13—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Possessing unlicensed arms—Act of terrorism—Appreciation of evidence—Trial Court did not base the impugned order on any prosecution evidence and instead based the same on compromise that accused effected with the legal heirs of deceased and injured persons—Two occurrences were reported through two different FIRs., which were quite distinct and different in nature—Many offences were not compoundable—Court was passionate in accepting the compromise and acquitted accused and his co-accused, even from the offences which were not compoundable—Compromise in the main occurrence was not a sufficient proof of guilt of accused—Trial Court had adopted his own style of convicting and sentencing accused; instead of following the relevant law of evidence; which mandatorily required recording of prosecution evidence for basing all judgment/orders of conviction—Order of conviction/ sentence, without recording evidence or admission of accused, was a display of alarming attitude of Judicial Officer—Appeal was allowed holding that impugned order was fit to be set aside to the extent of said accused.

2017 MLD 1771 Gilgit-Baltistan Chief Court

MUHAMMAD TARIQ VS State

S.497(2)—Penal Code (XLV of 1860), Ss.302 & 34—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 21-H—Qatl-i-amd, common intention, act of terrorism—Bail, grant of—Further inquiry—No evidence worth reliance was available against accused, either direct or circumstantial, except a statement under S.21-H of Anti-Terrorism Act, 1997 and statement of co-accused against him and abscondance of accused—Mere abscondence and statement of co-accused against accused could not be made a ground for refusal of bail, if the ingredients of a prima facie case were lacking—Case of accused being one of further inquiry falling under S.497(2), Cr.P.C., accused was released on bail, in circumstances.

2017 MLD 1081 Gilgit-Baltistan Chief Court

NAVEED AKHTAR alias JANI VS State

Ss. 302 & 34—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7, 21-H & 21-L—Qatl-i-amd, common intention, act of terrorism—Case was that of no eye-witness and the whole prosecution case was based on the alleged dying declaration of the deceased made before the complainant/ father of the deceased and Investigating Officer—Prosecution had failed to connect the involvement of accused in commission of offence—Whole material collected by the prosecution, was in support of its case, including that of the confessional statement of accused recorded under S.21-H of Anti-Terrorism Act, 1997 which had clearly shown that murder of the deceased was committed by co-accused, whose name was not mentioned in column No.1 without any reason—Self-destructive statements of the complainant and prosecution witness/ Investigating Officer, could not be safely relied in the peculiar circumstances of the case—Autopsy report, coupled with the statement of the doctor, who conducted post mortem of the deceased, had confirmed that nature of injuries was such in which it was highly improbable for the person to talk—Prosecution having failed to prove the charges levelled against accused, impugned judgment of the Trial Court was set aside and accused was directed to be released, in circumstances.

2017 MLD 386 Gilgit-Baltistan Chief Court

ATTA-UR-RAHMAN VS State

497—Penal Code (XLV of 1860), Ss.324, 353, 186, 224 & 34—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant to discharge of public functions, resistance or obstruction by a person to his lawful apprehension, common intention—Act of terrorism—Bail, refusal of—Accused persons, were directly charged in the FIR, and they were arrested red-handed after chase and encounter with the Police and Law Enforcing Agencies—One Army Jawan was injured because of the firing opened by one of the accused—Weapons of offence, had also been recovered from the accused persons; and motorbike which was used in commission of offence by accused persons, was also taken into possession—Other accused was privy to the offence, and had shared intention with two of his co-accused—Bail could not be granted to said accused—Petition being meritless was dismissed, in circumstances.

2017 YLRN 227 Gilgit-Baltistan Chief Court

State VS AIN ALI SHAH

497 (5)—Penal Code (XLV of 1860), Ss. 337-A, 324, 147, 145, 149, 502(2) & 109—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Terrorism, hurt, attempt to commit qatl-i-amd, rioting, joining or continuing in unlawful assembly knowing it had been commanded to disperse, unlawful assembly, sale of printed or engraved substance containing defamatory matter, abetment—Application for cancellation of pre-arrest bail—One of the accused was allowed bail before arrest by the Trial Court, which was later on confirmed—State being aggrieved by the said order moved bail cancellation application before Chief Court which was later on withdrawn—Counsel for complainant conceded the same and could not point out any illegality in the order, which could persuade to exercise discretion in favour of the State—Once bail was granted by a Court of competent jurisdiction, very strong and exceptional grounds were required to withdraw the same—Application for cancellation of bail was dismissed accordingly.

2017 YLRN 156 Gilgit-Baltistan Chief Court

SHER JAN VS State

497—Penal Code (XLV of 1860), Ss. 302, 324 & 224—Anti Terrorism Act (XXVII of 1997), Ss. 6/7—Qatl-i-amd, attempt to commit qatl-i-amd, resistance or obstruction by a person to his lawful apprehension, act of terrorism—Bail, grant of—Rule of consistency—Accused alleged that he was in judicial lockup for the last five years without any progress in the trial—Co-accused of the present accused with similar role had been released on bail and his case was at par with said co-accused—Validity—FIR had been lodged promptly but none was charged therein—Accused was arrested on 5.11.2011 and was still behind the bars without any substantial progress in the trial—Co-accused had been admitted to bail and the case of accused was at par with his co-accused—Principle of consistency was fully attracted in the present case—Accused was admitted to bail accordingly.

2017 YLRN 151 Gilgit-Baltistan Chief Court

MUHAMMAD ALAM VS State

497—Penal Code (XLV of 1860), Ss. 302, 324, 109, 114 & 34—Anti Terrorism Act (XXVII of 1997), Ss.6/7—Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention, act of terrorism—Bail, grant of—Rule of consistency—Prosecution case was that the accused along with co-accused made firing on complainant party, due to which, three persons died and one was seriously injured—Co-accused with similar role had been released on bail and his case was at par with said co-accused—Validity—Law required that all the persons placed in similar situation would be treated alike—Co-accused had been admitted to bail; rule of consistency was attracted in the case of petitioner and he was also entitled for the same treatment—Accused was admitted to bail accordingly.

2017 PCrLJN 128 Gilgit-Baltistan Chief Court

ABDUL MANAN VS State

Ss. 498 & 561-A—Penal Code (XLV of 1860), Ss. 435, 436, 427, 447, 147 & 149—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Mischief by fire or explosive substance with intent to cause damage to amount of one hundred rupees or (In case of agricultural produce) ten rupees, mischief by fire or explosive substance with intent to destroy house, etc., mischief causing damage to the amount of fifty rupees, criminal trespass, rioting, unlawful assembly, terrorism—Bail, confirmation of—Further inquiry—Accused were directly charged in FIR but no specific allegations were levelled against the accused persons—Allegations of putting the house and wood on fire were general in nature, as presence of thousands of people had been mentioned by the complainant in FIR—Present accused whether actively participated in the occurrence or had been named in FIR only being the ring leader was a question which required further inquiry—Bail before arrest allowed to accused persons was confirmed accordingly.

2017 PCrLJN 62 Gilgit-Baltistan Chief Court

ARIF ULLAH VS State

497—Penal Code (XLV of 1860), Ss. 223, 224, 225, 109, 353, 324 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Escape from confinement or custody negligently suffered by public servant, resistance or obstruction by a person to his lawful apprehension, resistance or obstruction to lawful apprehension of another person, abetment, assault or criminal force to deter public servant from discharge of his duty, attempt to commit qatl-i-amd, common intention, terrorism—Bail, grant of—Accused were behind the bars over one and a half years without any substantial progress in trial—Police report had shown that accused were not involved in abetment/planning of escape, rather due to their negligence the high profile prisoners managed their escape—Accused persons were government servants and there was no chance of their abscondance or tampering with the prosecution evidence—Case of bail had been made out—Bail was granted accordingly.

2017 PCrLJN 53 Gilgit-Baltistan Chief Court

JAWAHIR KHAN VS State

Ss. 6, 7& 23—Penal Code (XLV of 1860), Ss. 302, 324, 353, 454, 506(2)—Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, lurking house-trespass or house-breaking in order to commit offence punishable with imprisonment, criminal intimidation, act of terrorism—“Terrorism”—Scope—Application under S. 23, Anti-Terrorism Act, 1997 for transfer of case to regular court from Anti-Terrorism Court—Dismissal of application—Validity—FIR was promptly lodged within ten minutes of the occurrence which contained real and natural narration of occurrence—Action which involved serious question or intimidation of public servants in order to force them to discharge or to refrain from discharging them lawful duties fell within the scope and spirit of “terrorism”—Accused by his barbaric and gruesome act took the life of an innocent person and injured two other employees of Public Works Department which created a wave of terror not only in the society but also amongst a section of people, public servants and employees of the department—Case was fully covered under S. 6(2) of Anti-Terrorism Act, 1997, therefore, petition for transfer was dismissed being meritless.

2016 GBLR 315 SUPREME-APPELLATE-COURT

State VS IFTIKHAR HUSSAIN

Ss. 436, 435, 427, 448, 353, 147, 149 & 337—Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7, 21-H & 21-I—Mischief by fire or explosive substance with intent to destroy house, mischief by fire or explosive substance with intent to cause damage, mischief causing damage to the amount of fifty rupees, house-trespass, assault or criminal force to deter public servant from discharge of his duty, rioting, common object, causing shajjah, haraabah, act of terrorism—Reappraisal of evidence—Out of twelve directly named persons with the same role attributed in the FIR, Police had discharged and released ten persons under S. 169, Cr.P.C., which had demolished the prosecution story at the investigation stage—Conviction and sentence passed by the Trial Court, actually and factually was based on S.149, P.P.C., and accused persons had been declared to be convicted as they were members of an alleged unlawful assembly, but the Trial Court did not look at the evidence on record as well as law for making an arguable foundation—Case file, did not contain any kind of evidence or even allegation that accused persons pre-planned to make an unlawful assembly with a common object to commit the specific criminal acts as charged—Accused, were neither charge-sheeted under S.149, P.P.C., in a specific way nor any evidence was produced before the Trial Court to prove and substantiate the ingredients of S.149, P.P.C., which had defeated the rights available to accused persons—Judgment of conviction under cover and domain of S.149, P.P.C., by imposing the constructive liability in a case of unproved charges had caused prejudice and injustice to accused persons—Prosecution did not produce even a single independent person as witness hailing from the locality or even a non-partisan, non-interested private person, despite about 700/800 persons were reported to be present at the place of occurrence—Trial Court, while convicting accused, had relied upon Police Officials, who were neither named in the FIR nor they could be treated as eye-witnesses in the eye of law—Attack on Police Station by the mob must have resulted injuries to several Police Officials, but no Medico-legal Certificate about nature of injuries had been placed before the Trial Court—Statement of eye-witnesses under S.161, Cr.P.C., had been recorded after a delay of 9 to 47 days, without any explanation for such delay—Nothing was recovered from accused persons—Alleged recovery of weapons and the cartridges from accused persons had been made after a delay of 7, 8, 17 and 82 days of the occurrence respectively—Prosecution had demolished its case by not making the Police Officials as eye-witnesses who were specifically named by the complainant in FIR—Appeal was dismissed and judgment passed by the Chief Court was upheld and accused stood acquitted.

2016 GBLR 315 SUPREME-APPELLATE-COURT

State VS IFTIKHAR HUSSAIN

2016 GBLR 280 SUPREME-APPELLATE-COURT

Mir SHAKEEL-UR-REHMAN VS The STATE OF GILGIT-BALTISTAN

Ss. 295-A, 298-A & 34—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, S. 95—Criminal Procedure Code (V of 1898), S.403—Deliberation and malicious acts intended to outrage religion feelings of any class by insulting its religion or religious beliefs, use of derogatory remarks in respect of Holy personages, common intention, act of terrorism—Appreciation of evidence—Double jeopardy—Accused persons were prosecuted almost in all the four provinces of Pakistan; most of the cases registered on the same set of allegations, same set of fact and the same set of evidence and many of the FIRs had been quashed; in two cases accused were acquitted—No body could be prosecuted and punished twice for the same offence in violation of Fundamental Rights of accused persons—Provisions of Art.13(a) of Constitution of Pakistan, read with Art.95 of Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 and S. 403, Cr.P.C., as well as S.26 of the General Clauses Act, 1897, were fully attracted in the case—Order accordingly.

2016 GBLR 199 SUPREME-APPELLATE-COURT

HALEEMA SADIA VS SHAKEEL AHMED

Ss. 376, 377, 363, 392, 506, 337-A & 34—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Rape, unnatural offence, kidnapping, robbery, criminal intimidation, causing Shajjah, common intention, act of terrorism—Reappraisal of evidence—Sentence, reduction in—Ocular account furnished by one of the prosecution witnesses fully corroborated the statements of other prosecution witnesses—Forensic, Serological Examination Report, also corroborated the confessional statements of accused persons—Prosecution had successfully proved its case against accused persons—Accused persons were alleged to have abducted the victim girl for committing gang rape which had created a sense of fear and insecurity in the public generally and among girls students particularly—Commission of such offence by accused persons, created the sense of insecurity in the society—Said offence was triable under the special law and the Anti-Terrorism Court had rightly tried the case and convicted accused persons by appreciating the evidence on record—Impugned judgment passed by Chief Court was set aside, whereas the judgment passed by Anti-Terrorism Court was upheld and conviction and sentences so awarded were maintained—Death sentence awarded to accused persons was reduced to life imprisonment.

2016 GBLR 196 SUPREME-APPELLATE-COURT

State VS BILAL AHMED

Ss. 221, 222, 223, 224 & 225—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7, 21-I & 21-L—Intentional omission to apprehend on the part of public servant bound to apprehend, escape from confinement or custody negligently suffered by public servant, resistance or obstruction by a person to his lawful apprehension, resistance or obstruction to lawful apprehension of another person, act of terrorism—Reappraisal of evidence—Court competent to try case—Provisions of Ss.6 & 7 of the Anti-Terrorism Act, 1997, were not attracted and applicable to the case—Chief Court had rightly held that the case was triable under the ordinary jurisdiction of the competent court of law i.e. the Sessions Court—Advocate-General, could not point out any illegality and infirmity in the impugned judgment, which was well reasoned and well founded—Impugned judgment passed by the Chief Court was affirmed—Sessions Court was required to hear and dispose the case on merits—Order accordingly.

2016 GBLR 139 SUPREME-APPELLATE-COURT

NAVEED HUSSAIN VS State

Ss. 302(b) & 109—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Arms Ordinance (XX of 1965), S.13—Qatl-i-amd, abetment, act of terrorism, possessing unlicensed arms—Appreciation of evidence—Trial Court, convicted accused, but acquitted the co-accused by giving him benefit of doubt, despite the said co-accused was found fully involved in making the accused escaped from the jail—Prosecution had successfully proved its case against accused and the acquitted co-accused beyond any shadow of doubt—Counsel for accused could not point out any illegality and infirmity in concurrent judgments passed by two courts below to the extent of accused—Judgments by the both courts below were maintained to the extent of accused by the Supreme Appellate Court—Murder reference was confirmed—Supreme Appellate Court to meet the ends of justice and in view of material on record, issued show-cause notice to the acquitted co-accused to appear in person or through his duly briefed counsel to explain as to why he be not convicted and sentenced in the case in accordance with law—Order accordingly.

2016 GBLR 131 SUPREME-APPELLATE-COURT

WAZIR VS State

302—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Arms Ordinance (XX of 1965), S.13—Qatl-i-amd, act of terrorism, possessing unlicensed arm—Reappraisal of evidence—Sentence, reduction in—Life imprisonment awarded to accused by the Trial Court, was reduced to 14 years imprisonment by the Chief Court, while maintaining other sentences awarded by the Trial Court—Recoveries of crime, were neither sent to the Arms Expert for verification, nor same were exhibited—Recovery witnesses had turned hostile—Autopsy report was not produced in the Trial Court—Evidence of the eye-witnesses of the case, were contradictory in nature—State did not move revision for enhancement of sentence of accused persons—Eye-witness had admitted that the deceased was a weak and unhealthy person and his wife resided with him; whereas other eye-witness who was close relative of the deceased was an interested witness—Said witness was not present, and had not seen the alleged firing upon the deceased by accused persons, which had created serious doubts in the prosecution case—Prosecution had failed to prove its case against accused persons beyond reasonable doubt—Judgment, by the Chief Court was set aside by Supreme Appellate Court and accused persons were ordered to be released forthwith.

2016 SCMR 1754 SUPREME-COURT

SAGHEER AHMED VS State

6(2)(k)—Extortion of money (bhatta)—Anti-Terrorism court, jurisdiction of—Scope—In absence of any tangible material, mere allegation of demanding Bhatta did not attract S. 6(2)(k) of Anti-Terrorism Act, 1997—Averments of FIR in the present case were silent regarding the financial status and source of income of the complainant against which accused had been demanding ‘bhatta’—Complainant had also not disclosed the specific dates, times and places of demanding ‘bhatta’ by accused persons nor any such evidence was produced before the Investigating Officer to prima facie establish such allegations—Cumulative effect of the averments of FIR, surrounding circumstances and other material available on record showed that the offence had been committed on account of previous enmity with a definite motive—Alleged offence occurred at a bridge, which was not situated in any populated area, consequently, the allegations of aerial firing did not appear to be a case of “terrorism” as the motive for the alleged offence was nothing but personal enmity and private vendetta—Intention of the accused party did not depict or manifest any act of terrorism as contemplated by the provisions of the Anti-Terrorism Act, 1997—Consequently complainant had failed to produce any material before the Investigating Officer to establish that at the time of occurrence sense of fear, panic, terror and insecurity spread in the area—Anti-Terrorism Court did not have the jurisdiction to hear the present case—Petition for leave to appeal was dismissed accordingly.

2016 PLD 951 SUPREME-COURT

KASHIF ALI VS The JUDGE, ANTI-TERRORISM, COURT NO.II, LAHORE

6—“Terrorism”—Scope—To determine the question as to whether an offence fell within the meaning of “terrorism”—It would be essential to have a glance over the allegations levelled in the FIR, the material collected by the Investigating agency and the surrounding circumstances, depicting the commission of offence—Whether a particular act was an act of terrorism or not, the motivation, object, design or purpose behind the act had to be seen—Term “design” as used in S.6 of the Anti-Terrorism Act, 1997, which had given a wider scope to the jurisdiction of the Anti-Terrorism Courts excluded the intent or motive of the accused—Motive and intent had lost their relevance in a case under S.6(2) of the Anti-Terrorism Act, 1997—What was essential to attract the mischief of said section was the object for which the act was designed.

2016 PLD 951 SUPREME-COURT

KASHIF ALI VS The JUDGE, ANTI-TERRORISM, COURT NO.II, LAHORE

S.6—Term “design” as used in S.6—Definition.

2016 PLD 951 SUPREME-COURT

KASHIF ALI VS The JUDGE, ANTI-TERRORISM, COURT NO.II, LAHORE

Ss. 6 & 23—Penal Code (XLV of 1860), Ss. 302, 324 & 34—“Terrorism”—Scope—Target killing of a rival candidate for election of Provincial Assembly—Whether such offence fell within the meaning of “terrorism”—Transfer of case to Anti-Terrorism Court—FIR stated that the accused party chased the complainant party in order to execute the murderous plan conceived in their minds; it was a pre-planned scheme and to execute the same, the accused party chased the vehicles of the deceased and opened fire due to which four persons lost their lives and several others sustained firearm injuries—Accused persons conceived a plan in their mind prior to the occurrence to disrupt the electoral process by eliminating the deceased-candidate and his companions, and subsequently executed it—Target killing was aimed to give a message to the voters and supporters of the deceased, the effect of which was to create a sense of fear or insecurity in the voters and general public, as provided in S. 6 of the Anti-Terrorism Act, 1997—Place of occurrence was a public place and supporters and voters were around with their cars—Furthermore, the contents of the FIR reflected that the crowd present during the occurrence started fleeing from the place due to the terror created by indiscriminate firing—Contention of the accused party that the incident was a result of personal enmity would not exclude the case from the mischief of S. 6(2) of the Anti-Terrorism Act, 1997, because the manner in which the incident had taken place and the time of occurrence should be taken note of, the effect of which was to strike terror in the supporters/voters and general public—Personal enmity between the deceased and the accused side could have been settled on any day and it was intriguing as to why the accused persons chose the particular night before the dawn of the day of elections to settle their score with a popular running candidate/deceased in the elections by eliminating him—Sudden murder of the deceased, on the night before the election day, not just with a single bullet but with indiscriminate firing on him and his companions was something that had to be all over the news and media channels for weeks to come—Voters were mentally disturbed to know that on the day of the polling their chosen candidate was no longer alive, which was a foreseeable and inevitable impact of the action by the accused persons—Present incident was not a sudden reaction to a provocation but a premeditated act, where accused persons found out the precise location of the deceased- candidate on the very busy night before the election day, and got him murdered—Accused persons had sent a message to the general public conveying the lethal consequences of any opposition to them—Supreme Court converted the petition into appeal and transferred the present case to the concerned Anti-Terrorism Court for further proceedings in accordance with law—Appeal was allowed accordingly—Basharat Ali v. Special Judge, Anti-Terrorism Court-II, Gujranwala PLD 1004 Lah. 199 overruled.

2016 PLD 951 SUPREME-COURT

KASHIF ALI VS The JUDGE, ANTI-TERRORISM, COURT NO.II, LAHORE

Ss. 6 & 12—Anti-Terrorism Court, jurisdiction of—Where the action of an accused results in striking terror, or creating fear, panic sensation, helplessness and sense of insecurity among the people in a particular vicinity it amounted to terror and such an action squarely fell within the ambit of S. 6 of the Anti-Terrorism Act, 1997 and shall be tried by the Special Court constituted for such a purpose—Courts were only required to see whether the terrorist act was such that it would have the tendency to create sense of fear or insecurity in the minds of the people or any section of the society, as well as the psychological impact created on the mind of the society.

2016 PLD 17 SUPREME-COURT

Malik MUHAMMAD MUMTAZ QADRI VS State

6(1)(b)—Act of terrorism—Determination as to whether an offence constituted an act of terrorism—Provisions of S.6(1)(b) of the Anti-Terrorism Act, 1997 quite clearly contemplated creation of a sense of fear or insecurity in the society as a design behind the action and it was immaterial whether that design was actually fulfilled or not and any sense of fear or insecurity was in fact created in the society as a result of the action or not—Specified action accompanied by the requisite intention, design or purpose constituted the offence of “terrorism” under S.6 of the Anti-Terrorism Act, 1997 and the actual fall out of the action had nothing to do with determination of the nature of offence.

2016 PLD 17 SUPREME-COURT

Malik MUHAMMAD MUMTAZ QADRI VS State

Ss. 6(1)(b), 6(1)(c), 6(2)(a) & 7(a)—Penal Code (XLV of 1860), Ss.295-C & 302(b)—Qatl-i-amd, act of terrorism—Reappraisal of evidence—Act of terrorism—Scope—Actus reus and mens rea for committing an act of terrorism—Murder of a Provincial Governor to intimidate the public or create a sense of fear or insecurity in the society—Accused, while performing his duty as the official guard of the deceased-Provincial Governor, fired at and killed the latter—Alleged justification provided by the accused for the murder was that the deceased had committed blasphemy—Action of accused involved firing at the deceased and thereby causing his death and, thus, his actus reus fell within the ambit of S.6(2)(a) of the Anti-Terrorism Act, 1997—As regards the accused’s mens rea he had himself stated in his statement before the Trial Court under S.342, Cr.P.C. that the murder of deceased was “a lesson for all the apostates, as finally they have to meet the same fate”—Such statement of the accused clearly established that he not only wanted to punish the deceased privately for the perceived or imagined blasphemy committed by him but also wanted to send a message or teach a lesson to all others in the society at large who dared to follow the deceased—In such circumstances the causing of death of deceased by the accused was surely designed to intimidate or overawe the public or a section of the public or to create a sense of fear or insecurity in the society so as to attract the requisite mens rea contemplated by S.6(1)(b) of the Anti-Terrorism Act, 1997—Apart from that it could not be seriously contested that the accused had committed the murder of deceased for the purpose of advancing a religious cause and, thus, even the mens rea contemplated by S.6(1)(c) of the Anti-Terrorism Act, 1997 stood fully attracted to the case of the accused—Action of the accused in killing the deceased and the intention, design or purpose behind such action fully attracted the definition of “terrorism” contained in S.6 of the Anti-Terrorism Act, 1997 and, therefore, he was correctly and justifiably sentenced to death by the Trial Court under S.7(a) of the Anti-Terrorism Act, 1997 for committing the offence of terrorism—Appeal was disposed of accordingly.

2016 PLD 195 SUPREME-COURT

KHUDA-E-NOOR VS State

Ss. 6(1)(b), 6(1)(c) & 6(2)(g)—Honour killing “Act of terrorism”—Act of honour killing would amount to “terrorism” only if accompanied by the design or purpose contemplated in S.6(1)(b) & (c) of the Anti-Terrorism Act, 1997—Case of private motive committed in the privacy of a home with no design or purpose contemplated by S.6(1)(b) or (c) of the Anti-Terrorism Act, 1997 would not amount to an act of terrorism thus triable by a court of ordinary jurisdiction.

2016 PLD 195 SUPREME-COURT

KHUDA-E-NOOR VS State

Ss. 6(1)(b), 6(1)(c) & 6(2)—Act of terrorism—Mens rea—Act accompanied by a ‘design’ or ‘purpose’—Any action falling within any of the categories of cases mentioned in S.6(2) of the Anti-Terrorism Act, 1997 could not be accepted or termed as “terrorism” unless the said action was accompanied by a “design” or “purpose” specified in S.6(1)(b) or (c) of the said Act—Provisions of S.6 of the Anti-Terrorism Act, 1997 which defined “terrorism” clearly showed that the said section was divided into two main parts, i.e. the first part contained in S.6(1)(b) and (c) of the said Act dealing with the mens rea mentioning the “design” or the “purpose” behind an action and the second part falling in S.6(2) of the said Act specifying the actions which, if coupled with the mens rea (i.e. design or purpose) , would constitute the offence of “terrorism”, held not to be correct law.

2016 PLD 1 SUPREME-COURT

SHAHBAZ KHAN alias Tippu VS SPECIAL JUDGE ANTI-TERRORISM COURT NO.3, LAHORE

Ss. 6 & 12—Anti-Terrorism Court, jurisdiction of—Acts of the accused and the surrounding circumstances of the case could be interpreted in order to ascertain whether the case fell within the ambit of the Anti-Terrorism Act, 1997.

2016 PLD 1 SUPREME-COURT

SHAHBAZ KHAN alias Tippu VS SPECIAL JUDGE ANTI-TERRORISM COURT NO.3, LAHORE

Ss. 6(1)(a), 6(1)(b) & 12—Penal Code (XLV of 1860), Ss.302, 324, 148 & 149—Brutal killing of unarmed persons on a public street by indiscriminate firing—Reappraisal of evidence—Anti-Terrorism Court, jurisdiction of—Motive/intention/mens rea for an offence—Natural and inevitable consequences of acts of an accused deemed to be intended by him—Accused persons acting on the instructions of co-accused killed five people on a public street—Motive for the occurrence was a property dispute between co-accused and complainant party—Accused persons contended that the murders were triggered by a private property dispute; that there was no design to intimidate or overawe the public or create sense of fear or insecurity in the society within the meaning of S.6(1)(b) of the Anti-Terrorism Act, 1997, thus, the Anti-Terrorism Court did not have jurisdiction to try the case—Anti-Terrorism Court transferred the case for trial to Sessions Court exercising ordinary criminal jurisdiction—High Court ordered trial of offence by an Anti-Terrorism Court—Validity—When wanton overt acts committed by an accused lead to horrendous consequences then the motive given in the FIR merely indicated the background—Presumption that the natural and inevitable consequences of the acts of an accused were deemed to be intended, provided a reliable touchstone for gathering the design, intention or mens rea of an assailant in the context of S.6(1)(b) of Anti-Terrorism Act, 1997—In the present case, dispute about the possession of a property exploded disproportionately to a scale depicting wanton ruthlessness and impunity in the multiple killing of victims in a public place inhabited by public residents—Motive of a domestic family property dispute was merely the spark that triggered the occurrence—When determining the design, intention and mens rea of accused persons in the present case, the principle was that they were deemed to intend the natural and inevitable consequences of their actions —Three ingredients of the offence of “terrorism” under S.6(1)(a) & (b) of Anti-Terrorism Act, 1997 were, firstly, taking of action specified in S.6(2) of the said Act; secondly, that action was committed with design, intention and mens rea; and thirdly, it had the impact of causing intimidation, awe, fear and insecurity in the public or society—In relation to the present case firstly, the place of occurrence where five persons had been killed was spread over different spots on a public street in the locality of the disputed property—Houses lined both sides of the street where members of the public resided—Secondly, the five murders were a result of unchecked, indiscriminate and random shooting that hit the fleeing victims in front of different houses on the street—Thirdly, the persons attributed lethal firing by the prosecution were neither alleged to nor personally nurtured the stated private motive narrated in the FIR—Accused persons were gunmen on a job impervious to the consequences of their actions, and prima facie, they executed the instructions given by the co-accused—Fourthly, the occurrence took place within the sight and the earshot of the persons from the public who resided in the locality—Brutal killing of five unarmed persons on a public street would have stricken panic, fear and insecurity among the residents in the locality—All ingredients under S.6 of Anti-Terrorism Act, 1997, that constituted the offence of terrorism were prima facie available in the present case—High Court had rightly ordered trial of accused persons by the Anti-Terrorism Court—Appeal was dismissed accordingly.

2016 YLR 1291 PESHAWAR-HIGH-COURT

KABIR SHAH VS The STATE through Advocate General, Khyber Pakhtunkhwa

Ss.302(b), 376 & 34—Anti-Terrorism Act (XXVII of 1997), Ss.6(c) & 7—Act of terrorism, qatl-i-amd, rape, common intention—Appreciation of evidence—Benefit of doubt—Complainant was not the eye-witness of the occurrence, but he charged accused person on the second day of the report after due satisfaction—Complainant had not disclosed the source of information—Many people were present on the spot, when the dead body was recovered, but none of them had been cited as witness, nor produced in support of recovery of corpus—No body from the neighbour or any relative had come forward to record his statement to support the story advanced by prosecution—Facts narrated by the complainant were based on hearsay; and that too from undisclosed sources, which could hardly be based for capital punishment—Occurrence had not taken place in the mode and manner as described by the prosecution—Both accused persons in their confessional statements had contradicted each other regarding timings of occurrence—confessional statement of accused persons, had been recorded on a printed form/questionnaire—Same would be mere formality—Only 30 minutes time had been given to accused for thinking over and making confession, which was too short—Confessional statement was also retracted by accused during the trial, which could not be based as a ground for conviction of accused, unless same was corroborated by strong corroborative piece of evidence—Medical evidence also did not support the prosecution story—Place of occurrence had already been visited by the Investigating Officer, in presence of complainant; and after alleged pointing nothing incriminating had been recovered from the said place—Trial Court had convicted accused on the basis of circumstantial evidence, but all pieces of said evidence were so weak and scattered that no piece could be connected with the other—Case was based on no legal evidence, or evidence of no legal consequence—Genesis and origin of the occurrence appeared to be shrouded in deep mystery—In view of the inherent improbabilities, serious omissions and infirmities, prosecution had failed to prove the guilt of accused—Impugned judgment of conviction and sentence passed by the Trial Court, was set aside, accused was acquitted of the charges against them and were released, in circumstances.

2016 PCrLJ 879 PESHAWAR-HIGH-COURT

MUHAMMAD FAIZAN alias FAIZI VS State

Ss. 6, 7, 12, 23 & 25—Penal Code (XLV of 1860), S. 376(2)—Rape—Forum of trial—Anti-Terrorism Court—Jurisdiction—Two accused were convicted by Anti-Terrorism Court under S. 376(1), P.P.C. and sentenced to imprisonment for fourteen years and ten years respectively, while female accused was acquitted of the charge—Validity—Anti-Terrorism Court was vested with jurisdiction under S.12 of Anti-Terrorism Act, 1997, only to try cases under Anti-Terrorism Act, 1997—Word “shall” used in S. 23 of Anti-Terrorism Act, 1997, left no discretion with Anti-Terrorism Court once it had formed opinion that the offence was not a scheduled offence—When Anti-Terrorism Court formed opinion that offences were not scheduled offences, then it was incumbent upon it to transfer the case for trial to Court of ordinary jurisdiction—Case could be transferred under S. 23 of Anti-Terrorism Act, 1997, after taking cognizance of offence by Anti-Terrorism Court—High Court set aside conviction and sentence passed by Anti-Terrorism Court and the case was transferred to court of ordinary jurisdiction for decision afresh—Appeal was allowed in circumstances.

2016 PCrLJ 622 PESHAWAR-HIGH-COURT

ZAHIR SHAH VS MUHAMMAD SHER KHAN, SHO PS MIRIAN

497(2)—Khyber Pakhtunkhwa Explosive Substances Act (XXV of 2013), Ss. 15-AA & 5—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3 & 4—Khyber Pakhtunkhwa Arms Act (XXIII of 2013), Ss. 3(i)(a)(iv) & 15(e)— Penal Code (XLV of 1860), Ss. 506, 186 & 71—Anti-Terrorism Act (XXVII of 1997), Ss. 6(2)(ee), 7(ff) & Third and Fourth Sched.—Making or possession of explosives under suspicious circumstances; manufacture etc. of intoxicants; owning or possessing intoxicants; obstructing public servant in discharge of public functions; criminal intimidation, unlicensed possession of arms and terrorism—Bail, grant of—Further inquiry—Kalashnikov with loaded magazines, a .30 bore pistol with magazines, three hand grenades and eight plastic drums containing 240 liters of wine were alleged to have been recovered from possession of the accused—Additional Sessions Judge refused bail after arrest on ground that offences in question were exclusively triable by the Anti-Terrorism Court—Offence of unlawful possession of explosives as defined under Anti-Terrorism Act, 1997, fell within S. 6(2)(ee) of the said Act, which was punishable under S. 7(ff) of the Act, wherein, punishment provided would not be less than 14 years, but the same might extend to imprisonment for life—Accused, however, had not been charged under S. 7(ff) of the said Act—Offences mentioned in Item 4 of the Third Sched. of Anti-Terrorism Act, 1997 would be exclusively triable by the Anti-Terrorism Court, but mere having any unlawful explosives was not included in Item 4 of the Third Sched.—Offences, allegedly committed by the accused, did not occupy any place within the purview of the Item 4 of the Third Schedule—Section 3(i)(a)(vi) of Khyber Pakhtunkhwa Arms Act, 2013 included grenade within the definition of ammunition—Explosive grenades were not directly recovered from the exclusive possession of the accused, nor on his pointation—Search of the joint house of the accused, from where the explosive substances etc. were allegedly recovered, had not been made in presence of private witnesses—Mere recovery of any alleged explosive substance, without expert opinion, would not withhold the concession of bail—High Court could not bypass the provisions of S. 71, P.P.C., under which there was likelihood, that the accused, even if found guilty, would be extended the benefit of said section, which made present case one of further inquiry, as no other offence committed by the accused fell within the prohibition clause of S. 497, Cr.P.C.—Bail application was accepted accordingly.

2016 MLD 1840 PESHAWAR-HIGH-COURT

TAHIR JAVED KHAN VS State

Ss. 6, 7, 12, 13, 17, 21-G, 23, Third Sched.—Penal Code (XLV of 1860), Ss. 302 & 109—Qatl-i-amd common object—Object of Anti-Terrorism Act, 1997—Transfer of case to ordinary court—Scope—Occurrence had taken place within the premises of the court, while both the parties had appeared in connection with their cases, which were fixed on the day of occurrence—Anti-Terrorism Act, 1997 had been brought for two fold purposes; on the one hand, the Act provided for prevention of terrorism and sectarian violence; and, on the other hand, the same was for speedy trial of heinous offences and also for matters connected therewith and incidental thereto—Section 6 of the Act had provided that the offences which fell within the ambit of terrorism, but the object of S. 13 of the Act could also not be bypassed—Anti-Terrorism Court was empowered to try any other offence than the scheduled offence, with which the accused might, under Penal Code be charged at the same trial, in terms of S. 17 of the Act—Section 21-G of the Act conferred exclusive jurisdiction upon the Anti-Terrorism Court with regard to trial of cases falling within the ambit of the Act—In view of S. 23 of the Act, where, after taking cognizance of an offence, Anti-Terrorism Court was of the opinion that the offence was not a scheduled offence, the Court, notwithstanding that it had no jurisdiction in view of S. 193, Cr.P.C to try such offence, would transfer the case for trial of such offence to any court having jurisdiction under Cr.P.C; but there would be definite conclusion and reasons for transferring the case and if it was not a scheduled offence—Anti-Terrorism Court not only had the exclusive jurisdiction of trial of offences committed under any provision of the Act, but the court also had to try all other scheduled offences—Offences mentioned in item 4 of Third Schedule of the Act, being heinuous offences, would also be exclusively triable by the Anti-Terrorism Court—One person, in the present case, had been murdered while he was attending his case within the compound of the court, which, being a scheduled offence, was exclusively triable by the Anti-Terrorism Court—High Court, setting aside the order of transfer, ordered the case to be returned to the Anti-Terrorism Court—Constitutional petition was allowed in circumstances.

2016 YLR 2702 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ABBAS VS SPECIAL JUDGE ATC

6—“Terrorism” or “terrorist act”, components of—‘Purpose’, ‘motivation’, ‘actus reus’ and ‘mens rea’, would constitute the components of “terrorism” or “an act of terrorism”—Action designed to coerce and intimidate or overawe the government or the public or section of public or community or sector, if such an action was designed to create a sense of fear or insecurity—Society in the backdrop of religious, sectarian or ethnic cause, would constitute an act of terrorism or terrorist act—Private crime resulting into fear or insecurity as a by-product, a fall-out or an unintended consequence of fright etc., could not be termed as an act of terrorism—Mere gravity, heinousness, gruesomeness or shocking nature of any offence, committed in pursuance of personal enmity or in settlement of personal vendetta, could not by itself sufficient to brand such a crime as a terrorist act or an act of terrorism.

2016 YLR 2702 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ABBAS VS SPECIAL JUDGE ATC

Ss. 6 & 23—“Act of terrorism”—Transfer of case to the court of ordinary/regular jurisdiction—Case of accused person, was far lesser in severity and grievousness than that of the terrorists or sectarian criminals, who killed the innocent persons for none of their fault, only to threaten; and defeat the writ of the State, or to cause damage to other sect—Miscreants, the saboteurs or the terrorists did not have any personal grudge or motive against those, whom they targeted either by exploding some device or by immolating themselves, or by any other means, so as to shatter the prevailing peace, and tranquility in the society or to render the masses insecure—Mind-set of such persons was only to do maximum damage to the society or to a section of the society, so as to weaken the State or over-awe the government—Offence alleged against accused was necessarily a fall-out of the motive alleged in the FIR, according to which previous squabbling as to the insult of the children, led to the said human loss—Present case looked to be of private motive and settlement of personal vengeance, having been committed without any intent to creating sense of fear or insecurity in the society, or a section of society, or to public at large, nor it was designed to coerce or intimidate, or overawe the government, or the public or section of a particular community, or sector fanning out religious, sectarian or ethnic ill-will or hatred—Nexus had to be shown between the act done and the objective or design by which said offence was committed; so as to formulate a finding, that said offence constituted an act of terrorism—Offence committed in the background of personal enmity, though having transmitted a wave of terror or fright was not necessarily an act of terrorism—Judge of Anti-Terrorism Court had rightly observed in the impugned order that the occurrence alleged against accused did not reflect any act of terrorism, as it was committed in the backdrop of previous animosity between the parties—Complainant himself had introduced the factum of previous heart-burning and rivalry between the parties in the FIR, which led to the unfortunate incident, which in circumstances could not be declared a “terrorist act”—Impugned order passed by Judge Anti-Terrorism Court, could not be interfered with, in circumstances.

2016 PLD 277 LAHORE-HIGH-COURT-LAHORE

BILAL FAROOQ VS State

Ss. 6(b) & 23—Penal Code (XLV of 1860), S.302—Constitution of Pakistan, Art. 199—Constitutional petition—Act of terrorism—Qatl-i-amd—Deceased was a student nurse who was raped by doctor (since absconder) and others and then she was murdered—Trial Court declined to transfer case from Anti-Terrorism Court to Court of planery jurisdiction—Validity—Rape was committed in a room of hospital at night but its detail was shocking which created either a sense of insecurity, especially amongst nurses as a whole or it was likely to terrorize them—Absconded accused and his co-accused including petitioner were taken-over by their criminal and lecherous self and they joined hands satanically to ravish and murder a poor staff nurse—Appalling savagery of crime allegedly committed by them was not an ordinary incident—Accused doctor was a trusted companion, who played false and stabbed in the back—As such the same had shocked and jolted staff nurses all over—Ferocity of alleged offence must have emitted shock waves and signals of unknown fear, dislodging their mental peace with feeling of insecurity and vulnerability—Trial was being conducted by Court established under Anti-Terrorism Act, 1997, in a lawful manner—High Court declined to interefere in the order passed by Trial Court as there was no jurisdictional defect—Petition was dismissed in circumstance.

2016 PLD 269 LAHORE-HIGH-COURT-LAHORE

RABNAWAZ VS SPECIAL JUDGE, ANTI-TERRORISM COURT, SARGODHA

Ss. 6, 34 & Third Sched., Para No.4(iv)—Penal Code (XLV of 1860), Ss.336-A, 336-B & 34—Constitution of Pakistan, Art.199—Constitutional petition—Hurt caused by corrosive substance, common intention—Transfer of case to court of ordinary jurisdiction—Principles—Jurisdiction of Anti-Terrorism Court—Scope and determination—“Terrorism,” meaning of—“Corrosive substances”, definition of—Accused was alleged to have thrown acid on son of complainant, due to which he suffered damage on different parts of body—Anti-Terrorism Court on application of accused, transferred case to court of ordinary jurisdiction on ground that alleged incident was result of personal motive, and there was no intention on part of accused to cause panic, fear, terror and instability in any section of society—Validity—Section 6 of Anti-Terrorism Act, 1997 provided definition of ‘terrorism’, but to the extent of act or action mentioned in subsection (2), subsection (1) provided certain pre-requisites provided in sub-cls. (b) and (c) to bring use of threat of action provided in subsection (2) within meaning of ‘terrorism’, Subsection (3) was very relevant under which pre-requisites provided in subsection (1) were to be considered whenever use or threat of action provided in subsection (2) were to be evaluated to determine as to whether or not same fell under definition of ‘terrorism’ which determined the jurisdiction of Anti-Terrorism Court—Legislature had left no space for interpretation or determination with regard to certain actions by placing same in Third Schedule of Anti-Terrorism Act, 1997—Under S.34 of Anti-Terrorism Act, 1997, offence of causing hurt by means of corrosive substance or attempt to cause hurt by means of corrosive substance which was punishable under S.336-A, P.P.C., had been added in Third Schedule of Anti-Terrorism Act, 1997—Explanation to S.336-A, P.P.C. clarified that corrosive substance also included every kind of acid which had corroding effect and was deleterious to human body—Paragraph No.4(iv) of Third Schedule to Anti-Terrorism Act, 1997, clearly postulated that Anti-Terrorism Court would, to the exclusion of any other Court, try offence relating to hurt caused by corrosive substance or attempt to cause hurt by means of corrosive substance—High Court, setting aside impugned order of Anti-Terrorism Court, dismissed application for transfer of case to court of ordinary jurisdiction—Constitutional petition was allowed accordingly.

2016 PCrLJ 1463 LAHORE-HIGH-COURT-LAHORE

NAWAZISH ALI VS State

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.

2016 PCrLJ 1108 LAHORE-HIGH-COURT-LAHORE

ASGHAR ALI MUBARAK VS SPECIAL JUDGE, ANTI-TERRORISM COURT NO.1, RAWALPINDI

Ss. 2, 6 (c), 7 & 12—Penal Code (XLV of 1860), Ss. 302 & 324—Religious and sectarian cause—Jurisdiction of Trial Court—Case of qatl-i-amd and attempt to commit qatl-i-amd was registered against accused and case was sent to Anti-Terrorism Court for trial but transferee Court returned the same on the ground that Court of ordinary jurisdiction could not send the case to it for trial—Validity—Provision of S. 6(c) of Anti-Terrorism Act, 1997, was an independent provision also defining terrorism—After cl. (b) in S. 6 of Anti-Terrorism Act, 1997, word “or” was used clearly suggesting that any action mentioned in cl. (c) would also be an act of terrorism and in order to apply cl. (c), conditions mentioned in S. 76(b) of Anti-Terrorism Act, 1997, were not required to be attracted—In order to attract S. 6 of Anti-Terrorism Act, 1997, allegations contained in crime report and statements of witnesses recorded under S. 161, Cr.P.C. to be examined—According to accusation contained in FIR lodged by complainant, he along with his brothers, deceased and sisters was coming back to his home after attending “Majlis-e-Aza” when unidentified assailants started firing causing injuries to deceased who died ultimately—Prima facie there was an action within the meaning of S. 6(c) of Anti-Terrorism Act, 1997, for the purposes of advancing religious and sectarian cause—High Court directed prosecution branch to submit report under S. 173, Cr.P.C. to court of competent jurisdiction— Petition was allowed in circumstances.

2016 YLRN 122 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD IRFAN VS State

Ss. 6, 7 & 8—Act of terrorism, determining factors of—Whether a particular act was an act of terrorism or not, the purpose, the motivation, the actus reus or mens rea, were the determining factors to resolve the said riddle—Mere brutality of an offence, in absence of the requirement of S.6 would not constitute an offence under S.7 of Anti-Terrorism Act, 1997—Where element of sense of fear or insecurity in public or a section of the public was missing, the heinousness alone could not render a case triable under Anti-Terrorism Act, 1997—Offences committed in the background of personal enmity or with the burning desire of settling private vendetta, resulting in fear to many or a few, certainly, would not fall within the domain of Anti-Terrorism Act, 1997—Fear of insecurity in the society, as a fallout or undesigned consequences, was not by itself terrorism, unless the motive or the design or the mens rea pre-existed for creating such fear or insecurity in the society—Fear or insecurity, must not be a byproduct, fallout or unintended consequence of a private crime, and that was what to be understood, while determining, if a crime/offence committed, could be held an act of terrorism or not—Creation of fear and insecurity in the society was not itself terrorism, unless it was coupled with the motive; it was essential that the offence committed, must have a nexus with the object of the case as contemplated under Ss. 6, 7 & 8 of the Anti-Terrorism Act, 1997—Trial Court, in the present case, did not appear to have taken regard to the nexus between the offence committed and the object of the case as envisaged by Ss.6, 7 & 8 of the Anti-Terrorism Act, 1997—Mere allegation that accused used acid for causing bodily injuries to prosecution witnesses, would not give rise to an act of terrorism—Conviction/sentence recorded by the Trial Court against accused under S.7(c) of Anti-Terrorism Act, 1997, was set aside and he was acquitted of the charge in circumstances.

2016 YLR 1819 KARACHI-HIGH-COURT-SINDH

NOUSHAD ALI VS State

Ss. 302 & 34—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 23—Qatl-i-amd, common intention, act of terrorism—Transfer of case to ordinary court of competent jurisdiction—Anti-Terrorism Court wherein case was filed, returned the FIR to S.H.O. with direction to send the same to the ordinary court of competent jurisdiction—Validity—Deceased and accused both were employees of same Bank; and both were present in the Bank on the date and time of incident—Case of the prosecution was that after exchange of harsh words over matter of exchange of money, at the spur of moment, accused allegedly fired at the deceased inside the room of the Bank—No firing in air or at prosecution witnesses, or at public in order to create terror, sense of insecurity or destablize the public at large, was alleged against accused—Design or purpose of the offence as contemplated by S.6 of Anti-Terrorism Act, 1997 was not attracted—Order passed by Judge Anti-Terrorism Court, did not require interference, as impugned order did not suffer any illegality—Revision petiton having no force, was dismissed, in circumstances.

2016 YLR 62 KARACHI-HIGH-COURT-SINDH

SIKANDAR ALI LASHARI VS State

Ss. 302, 114, 109, 34 & 29—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7, 21-H & 27-B—Criminal Procedure Code (V of 1898), Ss.265-C, 161, 164 & 173—Qanun-e-Shahadat (10 of 1984), Arts.2(b) & 164—Constitution of Pakistan, Arts.4 & 10-A—Qatl-i-amd, abetment, common intention, act of terrorism—Supply of copies of ‘CDS’ and ‘USB’ (Universal Serial Bus), application for—Dismissal of application by Trial Court—Validity—Video cassette, fell within the purview of ‘document’, for the reason that definition of document contained in S.29, P.P.C. and Art.2(b) of Qanun-e-Shahadat, 1984, left no doubt that video cassette fell within the purview of matter expressed or described upon any substance by means of letters, figures or marks—Trial Court, had found that in order to avoid manipulation or alteration, generally a manuscript of the recording, was supplied to accused; and decided that video and CD or USB, would be played and heard after recording of evidence of both the sides in the open court; where accused could note down things, and file objections; and the court could pass any appropriate order for deciding objection; or could consider those objections at the time of writing judgment—Much emphasis was made in the impugned order that CD and USB would be played/watched and heard in the open court after recording of evidence of both the sides—Validity—Trial Court tried a case in which capital punishment could be awarded, if the charge was proved—Incumbent upon the Trial Court to provide fair and reasonable opportunity of defence to accused, which was also a basic and foremost prerequisite of administration of criminal justice—To enjoy the protection of law and to be treated in accordance with law, was inalienable right of every citizen of Pakistan under Arts.4 & 10-A of the Constitution—Trial Court had refused to supply the copy of CD and USB, which was not only against the mandate and command of Arts.4 & 10-A of the Constitution but also in violation of norms of administration of justice—Findings of the Trial Court were perverse and misconstrued—Once the typed/written transcripts of CD and USB were allowed to the applicant/accused by the Trial Court, then it had become his more fervent and stringent inalienable and incontrovertible right to get CD and USB for his defence—Unless he was supplied the copies, he would not be in a position to compare the recorded version/statements with the transcripts and make out his defence—Denial of said items amounted to dearth and scarcity of right to a fair trial—No substantial or conceivable rationale, was given in the impugned order to deny the copy of CD and USB—Impugned order was set aside, with direction to the Trial Court to supply the copies of CD and USB to the applicant in compliance of the provisions of S.265-C, Cr.P.C.—High Court observed that finding of High Court in the present case, being based on specific legal question, would not affect the merits of the case.

2016 PCrLJ 989 KARACHI-HIGH-COURT-SINDH

WAHID BAKHSH alias WAHIDOO VS State

561-A—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Inherent powers of High Court under S. 561-A, Cr. P. C. —Scope— Terrorism–Â Scope—Accused impugned order of Trial Court whereby application for transfer of his case from Anti-Terrorism Court to Sessions Court was rejected—Contention of accused was that he had been involved in a false case by police and provision of S. 7 of Anti-Terrorism Act, 1997 had also been included in FIR to drag accused in criminal case, in spite of the fact that no ingredient of S. 6 of Anti-Terrorism Act, 1997 was attracted—Validity—Anti-Terrorism Act, 1997 was a special law which had been promulgated to prevent crimes of such nature which would create terror and sense of insecurity in public-at-large and also to prevent an act relating to sectarian violence or ethnic cause, kidnapping for ransom, extortion of money and similar acts which fell within the ambit of terrorism as defined in S. 6 of Anti-Terrorism Act, 1997—In the present case, it had come on record that alleged police encounter continued for 20 minutes but no one either from the accused party or police had sustained any injury, and police mobile had not received any grevious damage—Trial Court while passing impugned order had failed to examine as to whether ingredients of alleged offence had any nexus with the object of “case” as contemplated under Ss. 6 & 7 of Anti-Terrorism Act, 1997—Order of Trial Court not containing any valid reasons was set aside—Application was allowed, accordingly.

2016 PCrLJ 961 KARACHI-HIGH-COURT-SINDH

MUHRAM ALI VS State

Ss. 23, 8, 7 & 6(k)—Penal Code (XLV of 1860), Ss. 302, 148 & 149—Criminal Procedure Code (V of 1898), S. 561-A—Qatl-i-amd; abetment; common object; terrorism—Power to transfer cases to regular courts—Application under S. 561-A, Cr.P.C.—Complainants alleged that the accused persons demanded Bhatta from them, and on their refusal to pay the same, the accused attacked on them with firearms making straight and aerial firing, which had resulted in killing of the deceased—Anti-Terrorism Court dismissed application for transfer of the case to ordinary court—Validity—Undeniably, the parties were on inimical terms with each other, as factum of animosity was reflected form the series of FIR’s lodged by them—Government had issued notification, whereby reward money for dangerous criminals had been notified and the name of the deceased was mentioned therein—Said notification had also mentioned the personal character and criminal activities of the deceased—Neither the deceased had challenged said notification, nor the same had been recalled by the Home Department—Averments of the FIR were silent regarding financial status and source of income of the complainant against which the accused had been demanding Bhatta—Complainant had also not disclosed the specific dates, time and places of demanding of Bhatta by the accused person, nor any such evidence had been produced before the Investigating Officer to prima facie establish such allegations—Mere allegations of demanding Bhatta, in absence of any tangible material, did not attract S. 6(k) of Anti-Terrorism Act, 1997—Section 6(k) of Anti-Terrorism Act, 1997 was neither mentioned in the FIR nor in the Challan—Anti-Terrorism Court had taken cognizance of the case while declining request of the Investigating Officer to transfer the case to the ordinary court—Cumulative effect of the averments of FIR, surrounding circumstances and other material available on record, had replicated that the offence had been committed on account of previous enmity with a definite motive—Alleged place of occurrence was not populated area, and consequently, the allegations of aerial firing did not appear to be a case of terrorism—Intention of the accused party did not depict or manifest any act of terrorism—Loss of life existed in a murder case, which was also heinous crime against the society, but trial of each murder case could not be adjudged by the Anti-Terrorism Court, except where peculiar circumstances as contemplated under Ss.6, 7, 8 of Anti-Terrorism Act, 1997 existed—High Court, allowing application under S. 23 of Anti-Terrorism Act, 1997, directed the Anti-Terrorism Court to transmit the case to the Sessions Judge—Application under S. 561-A, Cr.P.C was allowed accordingly.

2016 PCrLJ 883 KARACHI-HIGH-COURT-SINDH

SIP, ADAM ABRO VS Syed MUHAMMAD AMIN SHAH

265-K—Anti-Terrorism Act (XXVII of 1997), S. 6—Terrorism—Kidnapping for ransom—Power of court to acquit accused at any stage—Scope and requirements—Contradictions in private complaint and statement of witnesses during preliminary inquiry and delay in filing complaint—Effect—Accused was alleged to have abducted nephew of the complainant for ransom—Anti-Terrorism Court dismissed the application under S. 265-K, Cr.P.C. on the ground that the points raised therein, being related to factual aspects of the case, required evidence—Accused had simply pleaded that the charge against him was false and in support of his contention had referred to certain contradictions in the complaint and the statements of the witnesses—Accused was not able to show any material discrepancy in the contents of the complaint and the statements of witnesses to establish that the allegations against them were prima facie false and fabricated and that those allegations even if proved would not end in their conviction—Accused could not be acquitted under S. 265-K, Cr.P.C. on basis of any alleged contradictions in the statements of the witnesses—Object of S. 265-K was to satisfy the court about prima facie occurrence of the incident—Benefit of the provision of S. 265-K, Cr.P.C could only be extended to the accused, when once he was able to establish that the charge of the offence against him was groundless and no probability of his conviction on basis of the such charge existed—Delay in filing of the complaint also could not be considered valid ground for acquittal of the accused under S. 265-K, Cr.P.C.— Whether any adverse consequence was to follow or not due to the delay was essentially a factual question, which had to be appreciated only in the light of the evidence—Delay in lodging the complaint, even otherwise, appeared to have been reasonably explained—Accused, in the given circumstances were not entitled to be acquitted under S. 265-K, Cr.P.C.—Revision was dismissed accordingly.

2016 PCrLJ 635 KARACHI-HIGH-COURT-SINDH

MUHAMMAD SIDDIQUE VS State

Ss. 2, 6, 7 & 12—Penal Code (XLV of 1860), Ss. 302, 337-H(2), 147, 148 & 149—Qatl-i-amd, rash or negligent act and rioting armed with deadly weapons—Act of terrorism—Jurisdiction of Trial Court—Complainant was aggrieved of order passed by Anti-Terrorism Court, who returned investigation report to file the same before Court of ordinary jurisdiction—Validity—Enmity existed between complainant party and accused over matrimonial affairs— FIR showed that offence did not fall within the ambit of Ss. 2 & 6 of Anti-Terrorism Act, 1997—Order in question was passed on 24-5-2013, while revision was filed on 3-11-2015, after lapse of more than 28 months—Complainant was negligently careless and did not pursue case vigilantly—Order passed by Anti-Terrorism Court could not be assailed by filing revision petition but where some patent illegality or error was pointed out in the order passed by Anti-Terrorism Court, the same could be assailed by invoking Constitutional jurisdiction of High Court under Art. 199 of the Constitution, to such illegality— High Court declined to interfere in the order passed by Anti-Terrorism Court—Revision was dismissed in circumstances.

2016 PCrLJ 1 KARACHI-HIGH-COURT-SINDH

ARBAB ALI VS State

Ss. 6 & 7 (as amended)—Interpretation applicability and scope of Ss.6 & 7—Act falling within meaning of ‘Terrorism’—Personal gains, plea of—Offences referred in S. 6(1) (a) to (c) & 6(2)(a) to (h), (j) to (p) of Anti-Terrorism Act, 1997 have been defined by legislature, hence all such offences falling within such corners of definition shall need no debate or scholarly work for holding those offences to be triable by Special Court—Application or misapplication of S. 6 or 7 of Anti-Terrorism Act, 1997 is always with reference to S.6(2)(i) of the Act—Term ‘terrorism’ is defined within meaning of S. 6(2) of Anti-Terrorism Act, 1997, as, if use of threat of action creates serious risk to safety of public or section of public or same is designed to frighten general public and thereby prevents them from coming out, carrying on their lawful trade, daily business or disrupts civil life—Intention of legislature is to cover all such acts or omissions (offences) which are not covered by S. 6(1) (a) to (c) & 6(2) (a) to (h), (j) to (p) of Anti-Terrorism Act, 1997, which regardless of said sections applied, and fall within four corners of S. 6(2)(i) of the Act—First part may be pressed where complained offence is claimed to have created serious risk to safety of public or section of public, which claim would require establishing of such fact—Second part of the provision would stand attracted if gathering circumstances justifies that complained action is designed to frighten public resulting in preventing them from coming out, carrying on their lawful trade, daily business or disrupting civil life—Deliberate use of terms ‘frighten public’ is of significance, but it cannot be believed that to prove that prosecution is to bring ‘public’ into witness box—Nature and impact of complained offence is to be examined by court on basis whereof intention of accused shall be determined—If complained action appears to have resulted in frightening public from any of above guaranteed fundamental rights, such action (offence) shall fall within meaning of ‘terrorism’—Deliberate use of terms ‘coming out’, ‘carrying on their lawful trade’, ‘daily business’ or disrupting ‘civil life’ are purposeful which have got no direct relevance of offence committed by accused upon victim, but same speak about consequences and impact thereof upon public—Public is not direct victim of offence or benefit drawn by accused from offence— Every offence not covering by S. 6(1) (a) to (c) & 6(2) (a) to (h), (j) to (p) of Anti-Terrorism Act, 1997 are committed for personal gains whether that be dacoity, robbery, killing (if same is not on plea of enmity) and even street crimes—If an offence claimed to be for personal gain shall exclude application of Anti-Terrorism Act, 1997, same shall amount eliminating object and purpose of the Act.

2016 MLD 877 KARACHI-HIGH-COURT-SINDH

QAMARUDDIN VS State

561A—Penal Code (XLV of 1860), Ss. 302, 324, 337-H(2), 147, 148 & 149—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Qatl-i-amd, attempt to commit Qatl-i-amd, ghayr-Jaifah rioting a hurt by rash or negligent act, unlawful assembly and terrorism—Essential ingredients of “terrorism”—Contention of accused was that essential ingredients constituting Ss. 6 & 7 of Anti-Terrorism Act, 1997 lacked in the case but Trial Court without considering evidence collected by Joint Investigation Team during course of re-investigation and affidavits of seven injured persons, did not accept supplementary report submitted by police for deletion of Ss. 6 & 7 of Anti-Terrorism Act, 1997—Complainant’s plea was that at morning time accused made indiscriminate firing with automatic weapons at the office of one Security Company causing death of four persons and injuring more than twenty persons and had put general public in the office and on road under imminent danger to their lives and thereby created a sense of fear and insecurity—Validity—Whenever any action was taken which created fear and insecurity in any section of people, then such offence would fall within the ambit of S. 6 of Anti-Terrorism Act, 1997 where more than 25 persons duly armed with automatic weapons assaulted upon complainant party and made indiscriminate firing at the office of Security company, wherein not only complainant party sustained firearm injuries and four were killed, but several other persons were injured, such incident caused uncertain atmosphere and created fear in locality—Trial Court had rightly found that Ss. 6 & 7 of Anti-Terrorism Act, 1997 had full application in the case and had rightly applied the same—Deletion of said provisions at later stage apparently seemed to be with mala fide intention just to favour the accused—Application was dismissed, accordingly.

2016 MLD 416 KARACHI-HIGH-COURT-SINDH

ABDUL GHANI VS State

S.498—Penal Code (XLV of 1860), Ss.365-A, 148 & 149—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Kidnapping for ransom and rioting with deadly weapons—Pre-arrest bail, refusal of—Plea raised by accused was that abductee had sworn in an affidavit whereby they had been exonerated from charges—Validity—Names of accused transpired in FIR and abductee had implicated them in his statement under S.161 Cr.P.C.—Affidavit of abductee at bail stage could not be regarded as evidence and could not be acted upon unless Trial Court was satisfied that it was true and reliable—Court had to be very careful while deciding bail application on the basis of affidavits—Entire material collected during investigation was to be assessed tentatively—Affidavit of abductee obtained by force was the aspect which had to be considered by Trial Court—Alleged offence carried capital punish-ment—Prima facie there were reasonable grounds for believing that accused had committed alleged offence—Bail before arrest was declined in circumstances.

2016 YLRN 124 KARACHI-HIGH-COURT-SINDH

SARFRAZ AHMED VS State

Ss. 6(2)(k), 7(h) & 25-A—Penal Code (XLV of 1860), Ss.384, 385 & 386—Criminal Procedure Code (V of 1898), S.103—Extortion and Bhatta—Appreciation of evidence—Recovery—No private witness—Accused was alleged to have demanded Bhatta from complainant on telephone and in case of non-payment threatened to kill him—Complainant after negotiations paid an amount of Rs.50,000/- to accused—Trial Court convicted the accused and sentenced him to seven years imprisonment—Validity—Statement of complainant under oath was very similar to his FIR with no major contradictions—Complainant produced Mushirnama which police prepared on the spot and produced property in sealed conditions—Statement of complainant under S.154, Cr.P.C., his Mushirnama, inspection of crime scene and envelope containing demand chit, which he had given to police—Complainant also identified accused in court in respect of two extortions as the person who personally collected money from him—Complainant admitted during cross-examination that evidence which he produced was in relation to extortion episode alone happened on 8-10-2012—Mushirnamas were not signed by two independent witnesses however to an extent such was understandable that the incident took place late at night i.e. 12:30 a.m. when few witnesses even if around would not want to involve themselves; it was not uncommon in such circumstances that independent witnesses were unavailable or unwilling and such aspect was not fatal to prosecution case—Trial Court had rightly held the prosecution evidence to be trust worthy and prosecution had proved its case against accused beyond reasonable doubt—Minor contradictions were considered which had been accounted for by Trial Court—Appeal was dismissed in circumstances.

2016 PCrLJN 130 KARACHI-HIGH-COURT-SINDH

MUHAMMAD TAHIR VS State

Ss. 386 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 7(h) & 6(2)(k)—Qanun-e-Shahadat (10 of 1984), Art. 38—Terrorism, extortion of money, extortion by putting a person in fear of death or grievous hurt, common intention—False implication—Benefit of doubt—Delay in lodging FIR—Confession before police—Scope—Accused were alleged to have given life threats to complainant and thereby tried to extort money from him—Trial Court, convicting accused, sentenced them to five years’ imprisonment along with fine— FIR was lodged with delay of four days, which had not been fully explained—No one had seen throwing of parcel into house of complainant—Complainant had retained the parcel at his house for four days—Mobile phone number shown to have been used was not in the name of accused—Accused had confessed his guilt during interrogation, which was inadmissible in evidence—Complainant admitted that accused had been his driver—Accused alleged that complainant had been removed from his service on his complaint, and complainant was, therefore, hostile towards him—Complainant’s evidence, in given circumstances, required independent corroboration, which was lacking—Investigating Officer admitted to have arrested accused while patrolling along with his staff on spy information, but no arrival and departure entries had been produced for satisfaction of court, which cut root of prosecution case—High court, giving benefit of doubt to accused, set aside conviction and sentence—Appeal was allowed in circumstances.

2016 PCrLJN 54 KARACHI-HIGH-COURT-SINDH

JAVED VS State

497—Penal Code (XLV of 1860), Ss. 353, 324 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Sindh Arms Act (V of 2013), S. 23A—Assault or criminal force to deter public servant from discharge of his duties, attempt to commit qatl-i-amd and common intention, possessing of arm and act of terrorism—Bail after arrest, grant of—Contention of complainant was that accused was arrested on the spot with an unlicensed pistol and was nominated with specific role of making firing upon police, as such he was not entitled to be released on bail—Accused plea was that no independent person was cited as mashir or witness and he was a poor fisherman and that police used to demand fish from him without paying money and on his refusal he had been falsely implicated—Validity—Bail of accused could not be withheld as punishment being offence falling under prohibitory clause of S. 497, Cr.P.C.—High Court observed that accused was arrested after firing on police but it was very astonishing that exchange of firing between accused and police lasted for considerable time in which only accused had sustained injuries and neither police nor their official vehicle was hit and even a single scratch was not caused to motorcycle allegedly recovered from the accused—Ballistic examination report of pistol recovered from accused and empty shells of same, were shown to have been collected from place of incident were also not available in police file and such facts created the prosecution case apparently doubtful—Case registered under S. 23A(i) of Sindh Arms Act, 2013 against the accused was an off shoot of main case—Very presence of accused with alleged weapon was a matter of further inquiry—Accused was granted post-arrest bail, accordingly.

2016 PCrLJN 10 KARACHI-HIGH-COURT-SINDH

INAYATULLAH alias ZAHID alias FARHO CHANDIO VS State

Ss. 324 & 34—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Pakistan Arms Ordinance (XX of 1965), S.13(d)—Attempt to commit qatl-i-amd, common intention, act of terrorism, snatching of official weapon—Appreciation of evidence—Prosecution had specifically claimed to have gone for Nakabandi on information that some culprits had caused beating and snatched official weapons from two Police constables—Such Nakabandi, having resulted into a face-off with culprits, it could be said that prosecution was required to prove the root of the incident, but the prosecution confined itself only to the extent of incident of face-off with culprits—Prosecution, neither examined said Police Officials nor claimed that accused, and escaped co-accused were the same culprits who snatched official weapons from the said officials after beating them—Prosecution failed to establish the claimed manner of the incident—Indiscriminate firing was alleged to have been made by four culprits upon the Police party and they were at the close distance, but the prosecution had nowhere claimed that there was even a single scratch to the Police mobile—Absence of mark of firing on Police mobile was quite strange and unbelievable—Recovery of numbers of empties of cartridges, was contrary to the claim of the prosecution which had created a doubt in the claim of the prosecution, that there was serious indiscriminate firing by accused persons, which continued up to ten minutes—Mere injuries on person of witnesses, were not sufficient to stamp the witness of truth, but their testimonies should stand to the test of reasons and logic, in circumstances—Allegedly recovered weapon and cartridges, were not sealed nor sent to ballistic expert with regard to status of such recovered weapon—Manner of incident, as claimed by the prosecution, did not stand well to the test of reasons and logic as there were number of dents in the prosecution case and it would not be safe to hold conviction of accused, because the safe criminal administration of justice, always demanded that even a single doubt if found reasonable, was sufficient to warrant acquittal of accused—Impugned judgment of the court below was set aside and accused was released, in circumstances.

2016 YLR 1683 Gilgit-Baltistan Chief Court

TAHIR ALI TAHIR VS State

Ss. 124-A & 189—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7, 25 & 32—Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.71(2)—Writ petition—Sedition, threat of injury to public servant, act of terrorism—Transfer of case—Prima facie, an offence under S.124-A, P.P.C., was made out, which offence was triable by a court of session exclusively and not by the special court—Appeal was provided under S.25 of Anti-Terrorism Act, 1997 and no remedy was available against an interim order passed by Anti-Terrorism Court—High Court was under legal obligation to interpret the law; and give effect to any provision of law; and provide justice to the needy people by exercising their constitutional powers; and those powers could not be curtailed on one or the other pretext—High Court, had the jurisdiction to grant any appropriate relief to any party by converting one type of proceeding, provided the jurisdiction of the court would remain intact—Section 32 of Anti-Terrorism Act, 1997, though had an overriding effect, and only an appeal was provided under S.25 of Anti-Terrorism Act, 1997, Chief Court had ample powers under Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 to grant relief to the parties, when the court was of the view that dictates of justice so demanded—By accepting writ petition order/judgment passed by Anti-Terrorism Court, was set aside, and case was transferred from Anti-Terrorism Court to the Court of Session for trial—Trial Court would dispose of the case on merits.

2016 YLR 880 Gilgit-Baltistan Chief Court

BABA JAN VS State

Ss. 147, 148, 149, 427, 436, 353 & 448—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 21-H—Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17—Rioting, common object, mischief, mischief by fire or explosive substance, assault or criminal force to deter public servant from discharge of his duty, house-trespass, act of terrorism, haraabah—Appreciation of evidence—Conclusion of Trial Court, was completely contradictory to the prosecution evidence—Evidences of prosecution, referred by the Trial Court, were not available in the file, which would mean that said evidence had not been produced by the prosecution—Trial Court having not relied on the whole statement of the prosecution witnesses, views and findings of the Trial Court, were against the principle of acceptance of the whole of the statement of any prosecution witness, or discarding the whole—Trial Court had on the one hand accepted part statement of prosecution witnesses against some of co-accused; and had discarded the other part of the statement of prosecution witnesses regarding some accused—Such view of the Trial Court was without any explanation—Trial Court had convicted accused, though none of the prosecution witnesses charged the accused for any of the offences—In a case of rioting by a mob, every member of the mob was responsible for the occurrence, while in the present case Trial Court had accepted selection of accused for trial—In such a case, to sustain a conviction for rioting, it was essential for prosecution, first to prove the existence of an unlawful assembly with a common object, and then to prove that one or more members of the assembly used violence or force in furtherance of the common object—Prosecution evidence, was silent about the common object of the alleged rioters—None of the prosecution witnesses had stated about any kind of common object of the rioters and had not charged accused for any of the offences—Prosecution witnesses only stated about mere presence of accused in the mob—Mere presence of accused at the place of occurrence, was never sufficient to prove that he shared the common object of unlawful assembly—Prosecution witnesses had not stated that accused did any act which amounted to offence under any of the said sections of law—Evidence of prosecution did not show any circumstance, attracting offences under S.17 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and offence of Ss.6/7 of Anti-Terrorism Act, 1997—Trial Court was not justified to try accused for said offences—Circumstances of the case stated by the prosecution witness, constituted a case under offences under Ss.147, 148, 149, 427, 436, 353 & 448, P.P.C.; and that also without any concrete evidence against accused—Prosecution evidence hardly showed presence of accused at the place of occurrence, but without showing any role of accused in commission of alleged occurrence—Accepting or reading the confessional statement of accused recorded under S.21-H of Anti-Terrorism Act, 1997, was not admissible, and irrelevant against accused in circumstances—Prosecution had levelled allegation of looting the weapons and cartridges from ‘Malkhana’ of Police Station, while no evidence showed that Police had stored any weapons in said Malkhana—Medical report was not against accused—Impugned order of conviction and sentence passed by the Trial Court being bad in the eye of law and merits, was set aside, in circumstances.

2016 PCrLJ 1167 Gilgit-Baltistan Chief Court

Syed FIDA UR RAHMAN SHAH VS State

Ss. 497(2) & 103—Penal Code (XLV of 1860), S.188—Pakistan Arms Ordinance (XX of 1965), S.13—Explosive Substances Act (VI of 1908), Ss. 4 & 5—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 21-H—Disobedience to order promulgated by public servant, possessing unlicensed arms, and illicit arms and explosive material—Act of terrorism—Bail, grant of—Further inquiry—Accused persons were charged in the FIR; and as per prosecution story were arrested red handed, but, despite prior information, the Investigating Officer, did not associate any respectable person of locality; violating the provisions of S.103, Cr.P.C.—Only Police Officials were cited as recovery witnesses—Non-compliance of S.103, Cr.P.C., even at bail stage, could be considered circumstance favouring accused; and could be termed a sinister attempt to conceal truth, on the part of prosecution—No evidence was available regarding planning of commission of subversive act, for which accused persons had been booked, except the statement of accused persons under S.21-H of Anti-Terrorism Act, 1997—Samples of the explosive material, allegedly recovered from accused persons, had not been sent to expert for opinion—Case against accused persons, being of further inquiry, they could claim bail as of right—Accused were admitted to bail, in circumstances.

2016 MLD 496 Gilgit-Baltistan Chief Court

State VS IRFAN KARIM

Ss. 427, 448, 353, 147, 149 & 337-A—Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 21-L—Criminal Procedure Code (V of 1898), S.417(2-A)—Mischief, house-trespass, assault or criminal force to deter public servant from discharge of his duty, rioting, common object, causing Shajjah, Haraabah, act of terrorism, abscondence—Appeal against acquittal—Reappraisal of evidence—Deputy Advocate General, had failed to point out any misreading of evidence by Trial Court that resulted to the impugned order of acquittal—Prosecution had failed to prove the guilt of accused persons and could not produce any evidence, showing any role of accused persons in commission of the offence—No likelihood existed of recording conviction of accused persons, even, if the prosecution evidence collected during investigation, was left un-rebutted—Meritless, baseless and frivolous appeal, was dismissed, in circumstances.

2015 YLR 1210 SUPREME-APPELLANT-COURT-GILGIT-BALTISTAN

ARIF-UD-DIN VS State

Ss. 302, 34, 324 & 337-A—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Pakistan Arms Ordinance (XX of 1965), S.13—Criminal Procedure Code (V of 1898), S.345—Qatl-i-amd, common intention, attempt to commit qatl-i-amd, causing Shajjah, act of terrorism, possessing unlicensed arms—Appreciation of evidence—Compromise—Compromise was arrived at between the legal heirs of the deceased and accused, whereby legal heirs pardoned the accused in the name of Allah Almighty—Trial Court confirmed the genuineness of compromise between the parties—Case of compromise, having been made out, accused was acquitted of the charge, in circumstances.

2015 GBLR 330 SUPREME-APPELLATE-COURT

DSP BABAR KHAN NOW SP RESIDENT OF SULTABAD HUNZA VS SHER SULEIMAN

Ss. 302, 324 & 34—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Criminal Procedure Code (V of 1898), Ss.132 & 197—Qatl-i-amd, attempt to commit qatl-i-amd, common intention, act of terrorism—Appreciation of evidence—Two persons were killed in the incident and FIR was lodged against the petitioners, but said FIR was discharged by Police—Complainant party, dissatisfied with the order of Police, filed a private complaint against the petitioners before the court of Special Judge, Anti-Terrorism, which was also dismissed by the Anti-Terrorism Court—Complainant being dissatisfied with the order of Special Judge, Anti-Terrorism filed revision petition before Chief Court—Chief Court set aside order of Special Judge Anti-Terrorism Court and private complaint was transferred to Additional Sessions Judge for disposal of the same under ordinary jurisdiction in accordance with law—Validity—Judgment passed by the Chief Court was based on facts and law and same required to be maintained—Said order passed in revision by the Chief Court, was well reasoned and well founded, as no infirmity and illegality had been pointed out by the petitioner, which was upheld—Petition for leave to appeal was converted into appeal and was dismissed being meritless—Petitioner, however, would be at liberty to seek legal remedies during trial by moving application under S. 265-K, Cr.P.C., for their acquittal.

2015 GBLR 247 SUPREME-APPELLATE-COURT

State VS SHAMS-UR-REHMAN

Ss. 302 & 34—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 27—Pakistan Arms Ordinance (XX of 1965), S. 13—Qatl-i-amd, common intention, act of terrorism, possessing unlicensed arms—Appreciation of evidence—Trial Court vide its judgment acquitted accused—Chief Court, on appeal, not only maintained the impugned judgment of the Trial Court, but imposed Diyat on State for defective investigation, instead of taking action against Investigating Officer under S.27 of Anti-Terrorism Act, 1997—State Counsel, could not point out any infirmity and illegality in both the judgments of the courts below, and admitted that there was no eye-witnesses; and that recovery of pistol was not effected in presence of independent witnesses from the house of accused—Matching of empties fired from recovered pistol lost its evidentiary value rather became doubtful in circumstances—Orders passed by the Trial Court and Chief Court were maintained, in circumstances.

2015 GBLR 190 SUPREME-APPELLATE-COURT

ARIF-UD-DIN VS State

345—Penal Code (XLV of 1860), Ss. 302, 324, 337-A & 34—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Pakistan Arms Ordinance (XX of 1965), S.13—Qatl-i-amd, attempt to commit qatl-i-amd, causing Shajjah, common intention, act of terrorism, possessing unlicensed arms—Compromise—Compromise was arrived at between accused persons and legal heirs of the deceased during pendency of appeal—Trial Court gave report regarding the genuineness of said compromise—Statements of legal heirs of deceased were recorded wherein they all had pardoned the accused persons—Case of compromise having been made out, accused were acquitted from the charges levelled against them.

2015 SCMR 1326 SUPREME-COURT

ABDUL HAQ VS State

340(2)—Penal Code (XLV of 1860), Ss. 302, 324, 34, 148, 149, 337-F(ii), 337-F(iii) & 392—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Sectarian killings, acts of terrorism—Reappraisal of evidence—Oath on Holy Quran to prove innocence, relevance of—Scope—Accused in his statement under S. 340(2), Cr.P.C. stated that he was ready to state on Holy Quran that he was innocent—Held, that there was no legal sanctity behind such a statement by the accused—Overwhelming evidence was available against the accused, which clearly proved that he had taken the lives of innocent citizens and he had only made such statement to save his skin—Appeal was dismissed accordingly.

2015 SCMR 1326 SUPREME-COURT

ABDUL HAQ VS State

Ss. 302, 324, 34, 148, 149, 337-F(ii), 337-F(iii) & 392—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Sectarian killings, acts of terrorism—Reappraisal of evidence—Heinous crime—Promptly lodged FIR—Natural eye-witnesses—Daylight occurrence—No probability of false implication—Medical evidence corroborating ocular account—Accused and co-accused allegedly murdered 10 persons belonging to a religious sect, and to avoid their arrest they also killed two police officials—Trial Court sentenced accused and co-accused to death, which sentence was upheld by the High Court—Validity—Present case was a classic case of sectarianism—Accused and co-accused were specifically named in the FIRs, which were promptly lodged, thus, the same excluded the chances of any deliberation or false implication—Eye-witnesses were natural witnesses as they were present at the spot to attend a religious gathering—Eye-witnesses narrated the story in a natural manner and they remained consistent on all major particulars of the case—Present occurrence was daylight occurrence and no question of mistaken identity arose—One of the eye-witnesses had also received injuries and his brother was one of the deceased—In such circumstances, it did not appeal to mind that the said eye-witness would falsely implicated the accused and co-accused without any previous enmity and let off the real culprits—Nothing could be brought on record to prove that the witnesses had any previous enmity or ill-will to falsely implicate the accused and co-accused in the present case—Although no one from the general public had appeared to make a statement, but it was generally noted that people in cases like the present one normally hesitated to appear and become a witness due to fear and reprisal—Medical evidence also fully supported the ocular account so far as the nature and locale of injuries were concerned—Weapon of offence recovered from the accused and co-accused and the empties which were taken into possession from the place of occurrence were sent to Forensic Science Laboratory and the report was positive—Overwhelming evidence was available on record against accused and co-accused which clearly connected them with the commission of crime—Accused and co-accused had committed a heinous crime and they did not deserve any leniency—Supreme Court observed that sectarian issue in Pakistan was a major destabilizing factor in the country’s political, social, religious and security order; that sectarian conflict in Pakistan had caused unrest, disorder and violence in society, and resulted into thousands of deaths from suicide attacks, bomb blasts, assassinations and other terrorist acts; that abscess of sectarianism could be stopped by adopting strategies such as by removing from textbooks, reading material and syllabi taught in different educational institutions all such material which promoted hatred and biases on the basis of religion, sect, sex, ethnicity and culture—Supreme Court further observed that the media, both print and electronic, must be instructed to do responsible reporting on sectarian matters, and that violent sectarian organizations must be banned—Appeal was dismissed accordingly.

2015 PLD 145 SUPREME-COURT

MUHAMMAD RAHEEL alias SHAFIQUE VS State

Ss. 6 & 12—Sectarian killing—Anti-Terrorism Court, jurisdiction of—Scope—Sectarian killings were also included in the definition of ‘terrorism’ contained in S.6 of the Anti-Terrorism Act, 1997 and, thus, an Anti-Terrorism Court was possessed of the requisite jurisdiction to try a case of sectarian killing.

2015 MLD 313 QUETTA-HIGH-COURT-BALOCHISTAN

BASHIR AHMED VS State

Ss. 365-A & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6(e) & 7(e)—Kidnapping for ransom, common intention, act of terrorism—Appreciation of evidence—Benefit of doubt—Accused persons being with muffled faces at the time of alleged occurrence, neither complainant nor any body else could identify them—F.I.R., was lodged on the next day of occurrence, despite levies check Post, was nearby the place of alleged occurrence—Statement of complainant had shown that F.I.R. was lodged with consultation and was an afterthought—Such delay in lodging F.I.R., could not be taken lightly, as it cast serious doubt in the case of the prosecution—No explanation was on record with respect to inordinately lodging F.I.R.—Names of accused persons came in picture through the supplementary statements of the complainant for the first time—Neither the Fard-e-Bayan, was reliable nor the supplementary statement was worth credence, as the same had not been filed promptly—False implication of accused persons, could not be ruled out of consideration in circumstances—Prosecution story as narrated by the complainant, did not appeal to logic—Statement of prosecution witness, was not worth credence, and it appeared that said witness had concealed the actual dispute between the parties—All prosecution witnesses were closely related to each other, and one of them was closely related to alleged abductee—Prosecution had failed to produce any independent witness to corroborate the prosecution case—Accused persons could not be assumed to be culprits solely on the statements of witnesses who were interested and were closely related to the alleged abductee—Recovery of abductee was neither effected from possession of accused persons, nor on their pointation—No ransom amount was paid for release of the abductee—Alleged abductee, recorded his statement before the Investigating Officer after considerable delay after his alleged release/recovery without any explanation, which created serious doubt about his abduction by accused persons—Identification parade conducted by the prosecution was also of no avail to the case of prosecution, as the complainant in the supplementary statement, had failed to give the description of accused persons—While conducting the identification parade, the legal formalities, were not complied with and followed by Judicial Magistrate—Statement of witnesses were not free from doubt as same suffered from sufficient infirmities, dishonest improvements and contradictions—Prosecution had failed to prove the charge against accused persons beyond any shadow of doubt—Trial Court while delivering the impugned judgment, had failed to consider evidence available on record—Impugned judgment passed by Special Court, was set aside and accused were acquitted and released extending them benefit of doubt in circumstances.

2015 PCrLJ 1142 PESHAWAR-HIGH-COURT

HAZIR ZAMAN VS BAKHT ZAMAN

Ss. 6 & 7—Penal Code (XLV of 1860), Ss.302(b), 309 & 310—Act of terrorism—Determination of—Whether a particular act was an act of terrorism or not the motivation, object, design or purpose behind the act was to be seen—Alleged offence of murder in the case took place because of suit for dissolution of marriage between accused and the deceased lady—Motive for the occurrence was also the suit—Motive being dissolution of marriage between husband and wife, application of S.7 of Anti-Terrorism Act, 1997, which primarily required the spread of sense of insecurity and fear in the common mind was lacking in the case and definition of “terrorism” was not attracted to the case—Since the main case of murder of the deceased under S.302(b), P.P.C. had been patched up by her legal heirs with accused, and they had pardoned the accused in the name of Almighty Allah; they also waived off their right of Qisas and Diyyat, and they (including the injured witnesses), were not interested to proceed in the case, futile exercise, and sheer wastage of time of the court and the parties concerned to continue with the case—Allowing appeal of accused, conviction and sentence imposed upon accused by Anti-Terrorism Court, were set aside, he was acquitted of the charges levelled against him and was set at liberty, in circumstances.

2015 YLR 2409 LAHORE-HIGH-COURT-LAHORE

GHULAM AKBAR VS State

Preamble, Ss. 23, 6 & 7—Object of Anti-Terrorism Act, 1997—“Terrorism”, meaning and scope—Definition of “terrorism”, as incorporated in S. 6 of Anti-Terrorism Act, 1997, reflected that meaning of “terrorism” included use or threat of action that fell within the meaning of subsection (2) of said section and included use or threat, if designed to coerce and intimidate or overawe the Government or the public, or a section of public or community or sect; or create a sense of fear or insecurity in the public-atÂlarge; or use of threat for the purpose of advancing a religious sectarian or ethical use or intimidation and terrorism against the public, social sectors, business community etc. and attacking civilian, Government Officials, installations, security forces or law enforcing agencies— While applying a particular law, court must take into consideration the object for which the law had been enacted—AntiÂ-Terrorism Act, 1997, as per its Preamble, was enacted “to provide for the prevention of terrorism, sectarian violation and for speedy trial of heinous offences and for matters connected therewith, and incidental thereto”—Interpretation of criminal law required that, the same should be interpreted in the way it defined the object and not to construe in a manner, what could defeat the ends of justice, or the object of law itself—For determining the issue as to 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 averment that how the same had been omitted 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—Striking of terror, was sine qua non for the application of the provisions, as contained in S.6 of Anti-Terrorism Act, 1997.

2015 YLR 2617 KARACHI-HIGH-COURT-SINDH

MIRCHOO alias MIRCH VS State

Ss. 6, 7, 8 & 23—Object and scope of Ss.6, 7 & 8 of Anti-Terrorism Act, 1997—“Act of terrorism”, determination of—Principles—Case triable by Anti-terrorism court—Ingredients—In order to determine as to whether an offence would fall within the ambit of S.6 of Anti-Terrorism Act, 1997, it was essential to have a glance over the allegations made in the FIR; material collected during investigation and surrounding circumstances and to examine; whether the ingredient of alleged offence had any nexus with the object of the case as contemplated under Ss.6, 7, 8 of Anti-Terrorism Act, 1997; whether a particular act was an act of terrorism or not, the motivation, object, design and purpose behind the said act was to be seen; whether said act had created a sense of fear and insecurity in the public, or in a section of the public or community, or in any sect; whether action resulted in striking terror or creating fear, panic, sensation, helplessness; and sense of insecurity among the people in the particular area, the same would amount to terror and such an action would fall within the ambit of S.6 of Anti-Terrorism Act, 1997, and would be triable by a Special Court constituted for such purpose—Courts had only to see, whether the ‘terrorist act’ was such which would have the tendency to create sense of fear and insecurity in the minds of the people or any section of the society—In the present case, accused person had committed offence on the main road and target was Sub-Inspector of Police was not material that Police functionary was on duty or not at the time of violation—In the result of indiscriminate firing by automatic weapons two persons had lost their lives—Act of accused on main road in brutal manner, had created fear and insecurity to the general public—Act of accused involved serious violence against the members of the Police force—Case, in circumstances, prima facie fell under S.6(n) of Anti-Terrorism Act, 1997, and Anti-Terrorism Court had the exclusive jurisdiction to try the same—Application of accused, to transfer case to regular court, was dismissed, in circumstances.

2015 YLR 1082 KARACHI-HIGH-COURT-SINDH

ABDUL RAZZAQ LASHARI VS GOVERNMENT OF SINDH through Chief Secretary

S.6—“Act of terrorism”—Scope—Object or effect of act of terrorism is to strike terror or create sense of fear and insecurity in the minds of people or any section of people/society.

2015 YLR 764 KARACHI-HIGH-COURT-SINDH

JAVED VS State

Ss.6 (k), 7 & 25 (8)—Penal Code (XLV of 1860), Ss.385, 386 & 506-B—Criminal Procedure Code (V of 1898), S.561-A—Taking Bhatta (Extortion of money)—Suspension of sentence—Delay in deciding appeal—Inherent jurisdiction of High Court—Bar on suspension of sentence—Accused was convicted by Trial Court and sentenced to five years of imprisonment—Validity—Appeal was to be decided within 7 days and more than two years had passed—Much more time would be required to hear the appeal and dispose of, as there was tremendously heavy backlog of such appeals filed earlier than that of accused—Accused remained in jail throughout the period ever since his arrest—High Court treated the case of accused as one of hardship and suspended the sentence—Bail was allowed in circumstances.

2015 PCrLJ 1453 KARACHI-HIGH-COURT-SINDH

ALI SHER VS SPECIAL JUDGE ANTI-TERRORISM COURT SHAHEED BENAZIRABAD

Ss. 6, 7 & 23—Act of terrorism—Application for transfer of case from Anti-Terrorism Court to ordinary court—Dismissal of application—For the purpose of deciding application moved under S.23 of Anti-Terrorism Act, 1997, court had to see the contents of the FIR, and material collected by Investigating Officer—Accused, in the present case, not only created hindrance and obstructions in the performance of duty by the Police, but also intimidated the public servants in order to refrain them from discharging their lawful duties and also created serious violence which was an act of terrorism, punishable under S.7 of Anti-Terrorism Act, 1997—Due to incident, concerned city was closed, general public was prevented from coming out and carrying on their lawful trade and daily business—Due to said act of terrorism, civil life was also disrupted and perturbed—Prosecution, keeping in view the facts and circumstances of the case, had rightly filed the charge-sheet of the case in Anti-Terrorism Court—Trial Court while dismissing the application filed under S.23 of Anti-Terrorism Act, 1997 did not commit any illegality or irregularity requiring interference.

2015 PCrLJ 953 KARACHI-HIGH-COURT-SINDH

SAJAN VS State

Ss. 365, 365-A & 342—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Kidnapping or abduction with intent secretly and wrongfully to confine person, kidnapping for ransom, act of terrorism—Appreciation of evidence—Case being of kidnapping for ransom, evidence of two abductees, the persons who paid ransom, could not be rejected; for the reasons that prosecution evidence was natural, coherent and rang true—Defence evidence appeared to be unbelievable and afterthought—Defence witness did not belong to the village from where abductees were kidnapped—Defence plea had not been put up to prosecution witnesses in cross-examination—Defence theory was not acceptable at all in circumstances—In order to constitute an offence of abduction for ransom, proof thereof was not sine qua non, and said offence also would stand constituted, if there was an abduction and the purpose of the abduction was extortion of ransom, or ransom was demanded for the release of the abductee—Demand, in the present case, was made by the culprits for payment of ransom for release of the abductees, which was actually paid—Trial Court had rightly appreciated the evidence—Both the abductees had stated that after abduction , accused chained them and they were recovered as a result of a Police encounter—Both abductees remained in captivity of accused for more than 40 days—Accused was caught red handed in the Police encounter and both abductees were recovered from his possession—All pieces of evidence brought on record by the prosecution connected accused in commission of offence—Offence had been committed by accused persons in the manner as alleged by prosecution—Prosecution witnesses had no reason to falsely implicate accused persons in the case of that nature—Prosecution had successfully proved its case against accused persons beyond reasonable doubt—Trial Court had dilated upon all aspects of case and appreciated evidence properly, accused had rightly been convicted, which required no interference.

2015 PCrLJ 628 KARACHI-HIGH-COURT-SINDH

SHAHID ZAFAR VS State

Ss. 6, 7 & 8—“Terrorist act”, determination of—Jurisdiction of Special Court—For determination as to whether an offence would fall within the ambit of S.6 of Anti-Terrorism Act, 1997, it would be essential to have a glance over the allegations made in the F.I.R., piece of evidence and surrounding circumstances; it was also essential to examine, whether alleged offence had any nexus with the object of the case as contemplated under Ss.6, 7 & 8 of Anti-Terrorism Act, 1997—Whether act of accused was an “act of terrorism” or not, the motivation, object, design and purpose behind the said act, was to be examined; it was also to be seen as to whether said act had created a sense of fear and insecurity in the public, or in a section of public, or community or in any sect—Where action would result in striking terror on creating fear, panic, sensation, helplessness and sense of insecurity among the people in the particular area, it would amount to “terror”; and such an action squarely fell within the ambit of S.6 of Anti-Terrorism Act, 1997, and would be triable by a Special Court constituted for such purpose—Courts had only to see whether the “terrorist act” was such which would have the tendency to create sense of fear and insecurity in the minds of the people or any section of the society.

2015 PCrLJ 611 KARACHI-HIGH-COURT-SINDH

MUHAMMAD SHARIF VS SAGEER AHMED alias BHAYA

6—Anti-Terrorism Court, jurisdiction of—Scope—Jurisdiction of Anti-Terrorism Court has to be determined according to mandate of relevant penal provisions provided in S. 6 of Anti-Terrorism Act, 1997, at the time of framing of charge.

2015 PCrLJ 611 KARACHI-HIGH-COURT-SINDH

MUHAMMAD SHARIF VS SAGEER AHMED alias BHAYA

Ss. 302 & 365-A—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7(a)(e)—Pakistan Arms Ordinance (XX of 1965), S.13(e)—Qat-i-amd, kidnapping for ransom— “Act of terrorism”— Determination—Grievance of complainant was that Anti-Terrorism Court transferred the trial to court of plenary jurisdiction on the ground that offences did not contain element of terrorism—Validity—Complainant, during trial, had categorically deposed that his son was kidnapped and ransom was demanded from him and his son was murdered—After recording evidence, mere tentative assessment of Anti-Terrorism Court that it had no jurisdiction was injudicious and contrary to law—No enmity existed between the parties, action of accused resulted in striking terror and sense of insecurity among the people in a particular vicinity and it amounted to create terror in business community—Anti-Terrorism Court had exclusive jurisdiction in the matter as action of accused fell within the ambit of section 6 of Anti-Terrorism Act, 1997—High Court declared the order passed by Anti-Terrorism Court to be illegal and injudicious and was set aside—High Court directed Anti-Terrorism Court to proceed in case under the provisions of Anti-Terrorism Act, 1997, and decide the case in accordance with law—Revision was allowed in circumstances.

2015 PCrLJ 438 KARACHI-HIGH-COURT-SINDH

JAVED IQBAL VS State

Ss. 6, 7 & 23—Penal Code (XLV of 1860), Ss.302, 324 & 34—Pakistan Arms Ordinance (XX of 1965), S.13(d)—Criminal Procedure Code (V of 1898), S.345, Sched. Third, item No.4(iii)—Act of terrorism, qatl-i-amd, attempt to commit qatl-i-amd, common intention, possessing unlicensed arms—Appreciation of evidence—Transfer of case from Anti-Terrorism Court to Court of Session—Compromise, effect of—Application of accused filed under S.23 of Anti-Terrorism Act, 1997, for transfer of his case from the Anti-Terrorism Court to the Court of Session, was dismissed—Accused had committed murder of his real sister with fire-arm inside the court room, which under item No.4(iii), of the Third Schedule, annexed to Anti-Terrorism Act, 1997 was Scheduled Offence, exclusively triable by Anti-Terrorism Court—Contention was that complainant/husband of the deceased having entered into a compromise with the family of accused, by consent, matter could be transferred to the Court of Session; and parties be allowed to settle the matter in accordance with law—Validity—Accused was charged inter alia with an offence under Ss.6 & 7 of the Anti-Terrorism Act, 1997, which did not find place in any of the columns of the Table appended to the provisions of S.345, Cr.P.C., detailing the compoundable offences—Allowing prayer to transfer case from Anti-Terrorism Court on ground of compromise would literally mean converting a non-compoundable offence into a compoundable offence, which was a total novel concept; and not recognized by the law—Law had clearly limited the cases which could be compoundable/ compromised and did not provide any scope for converting a non-compoundable offence into a compoundable, merely because the parties had entered into a compromise—Such an action would not only frustrate the provisions of S.345, Cr.P.C., but would make all offences as compoundable which would be against the public policy and beyond the competence of court, and could not be allowed—Neither jurisdiction could be conferred on a court which had no jurisdiction to adjudicate an issue, nor a court could be deprived of its jurisdiction for the convenience or at the request of the parties—Accused had killed his sister on account of her free will marriage in the court room, where justice was dispensed and people had confidence to be treated in accordance with law—Anti-Terrorism Court, had rightly rejected request for transferring the case to the Court of Session, in circumstances.

2015 PCrLJ 78 KARACHI-HIGH-COURT-SINDH

GHULAM ALI alias ALI VS State

Ss. 561-A & 169—Penal Code (XLV of 1860), Ss. 302, 365, 147, 149, 324, 458, 148 & 504—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Qatl-i-amd, kidnapping or abducting with intent secretly and wrongfully to confine person, rioting, common object, attempt to commit qatl-i-amd, lurking house-trespass or house breaking by night after preparation for hurt, assault or wrongful restraint, rioting armed with deadly weapon, intentional insult with intent to provoke breach of the peace and act of terrorism—Quashing of proceedings—Inherent powers of High Court—Scope—Police submitted report under S. 169, Cr.P.C. before the Judicial Magistrate which was not agreed to by him—Contention of the accused was that the order was non-speaking—Validity—Magistrate had passed the impugned order in a slipshod and hasty manner—Non-speaking orders were to be discouraged and court was to give reasons for passing administrative as well as judicial order—Case was remanded to the Judicial Magistrate for passing speaking order.

2015 MLD 1117 KARACHI-HIGH-COURT-SINDH

MUMTAZ alias LALOO VS State

Ss. 324, 353 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Pakistan Arms Ordinance (XX of 1965), S. 13-D—Act of terrorism, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of duty, common intention and possession of unlicensed arms—Appreciation of evidence—Allegation against the accused was that he along with co-accused fired upon the complainant party (police) with intention to kill them—Trial Court convicted the accused and the co-accused were acquitted—-Other case was decided by the Trial Court wherein the accused persons were acquitted from the charge of abduction of abductee who was recovered during the incident of the present case as the abductee had not supported the prosecution version and he had not identified the accused persons before the Trial Court during trial and abductee had not been examined by the prosecution—None from either party received injury nor any bullet hit to the vehicle or recovered car from which abductee was recovered—Prosecution had failed to prove its case and Assistant Prosecutor General conceded the facts that the recovered weapon had not been proved against the accused and ingredients of S. 324, P.P.C. were missing in the present case and when two main offences were not proved by the prosecution, the evidence on the remaining offences became doubtful—Prosecution did not prove the charge against the accused beyond any shadow of reasonable doubt—Present case became doubtful as no evidence was brought against the accused in the abduction case and prosecution had failed to prove charge against the accused regarding attempt to commit murder of the complainant party (police) and deterring them in discharge of their duties—Prosecution had failed to prove the recovery of crime weapon from the possession of the accused which had not been sent to the ballistic expert in order to ascertain its working condition, so failed to prove terror or sense of fear in the society—Reasonable doubt had been created in the prosecution case and benefit of doubt went in favour of the accused as matter of right—Appeal was allowed and impugned judgment was set aside and accused was acquitted from the charge.

2015 PLD 85 ISLAMABAD

Malik MUHAMMAD MUMTAZ QADRI VS State

Ss. 6 & 7(a)—Penal Code (XLV of 1860), S. 302(b)—Act of terrorism, qatl-i-amd—Accused who was deputed as security guard for the deceased fired at and killed the latter because of his views on blasphemy laws—Trial Court convicted the accused under S.7(a) of Anti-Terrorism Act, 1997 & S.302(b), P.P.C, and sentenced him to death—Contention of accused was that Anti-Terrorism Act, 1997, was not attracted in the present case as there was not an iota of evidence on record to show that any panic or sense of insecurity was created in the general public, and in-fact general public was relieved on the death of the deceased in view of the notoriety of his character and his utterance about the blasphemy laws—Validity—Only one of the prosecution witnesses stated that the incident created panic—No other prosecution witness stated that the act of the accused in committing the murder of the deceased created sense of fear and insecurity in the society or resulted in intimidating and terrorizing the public—Investigation Officer of the case did not utter any word in such regard—Moreover, if any incriminating material in such regard was present , the same was not put to the accused in his statement under S.342, Cr.P.C.—Prosecution evidence by itself revealed that accused was motivated against the deceased due to certain reasons and he had no other intention except to murder the deceased—Accused murdered the deceased and did not injure or assault any other person standing nearby the place of occurrence—Finding of Trial Court that the accused was also guilty of commission of the offence of terrorism was not sustainable in such circumstances—Sentence awarded to accused for his conviction under S.7 (a) of Anti-Terrorism Act, 1997, was set aside accordingly, while that awarded under S.302(b), P.P.C, was maintained—Appeal was disposed of accordingly.

2015 YLR 2585 Gilgit-Baltistan Chief Court

SARFRAZ VS State

Ss. 147, 148, 149, 427, 436, 353 & 448—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 21-H—Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17—Rioting, rioting armed with deadly weapon, common object, mischief causing damage, mischief by fire or explosive substance, assault or criminal force to deter public servant from discharge of his duty, house-trespass, act of terrorism—Haraabah—Appreciation of evidence—Eye-witnesses were taking names of different persons as members of the mob—None of the said prosecution witnesses, were attributing any role or alleging against accused persons—Said prosecution witnesses were simply taking names of few of accused persons, showing only their presence in the mob—Trial Court, did not rely on the whole statement of any of the prosecution witnesses—Findings of the Trial Court, were against the principles of acceptance of whole of the statement of any prosecution witness or discarding the whole—Trial Court, had on the one hand accepted part statement of prosecution witnesses against some of accused, and had discarded the other part of the statement of prosecution witness regarding some accused—Such attitude of the Trial Court was without any explanation on its part—Conclusion of the Trial Court was completely contradictory to the prosecution evidence—Findings of Trial Court, were quite different from the examination-in-chief of the statement of S.H.O. concerned—About 700/800 persons had gathered in front of a Bank, turned into an illegal mob entailing to the occurrence, but the Trial Court had convicted the persons who had not been charged by any of the prosecution witness for any of the offences—In a case of rioting by a mob every member of the mob was responsible for the occurrence, but in the present case Trial Court had selected accused persons for trial—Prosecution witnesses had stated mere presence of said accused persons in the mob—Accused persons, could not be convicted and punished merely on the basis of their presence, when none of the prosecution witnesses had stated that any of the said accused did any act amounting to offence alleged against them—Prosecution evidence, did not show any circumstance showing attraction of the offences of Ss.6 & 7 of Anti-Terrorism Act, 1997, and offence of ‘Haraabah’ under S.17 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979—Ocular evidence against accused persons, was not only insufficient, but was wrong also—Circumstantial evidence, could hardly corroborate ocular evidence–Trial Court had accepted statements of accused persons recorded under S.21-H of Anti-Terrorism Act, 1997, while such confessional statement was not admissible, but was irrelevant against accused persons—Trial Court should have abandoned such confessional statements, as said statements did not contain any question showing that prosecution had no alternative except to produce the appellants (accused persons) before the High official of police who recorded such statement—Prosecution levelled allegation of looting the weapons and cartridges from ‘Malkhana’ of Police Station, while no evidence was available to the effect that Police had stored any weapon in that ‘Malkhana’—Medical evidence was not against any of accused persons—Impugned order of the Trial Court being bad in the eyes of law, merited reversal—Conviction and sentence, awarded to accused persons, were set aside, in circumstances.

2015 PCrLJ 1305 Gilgit-Baltistan Chief Court

FARMAN KARIM VS State

295-A—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Criminal Procedure Code (V of 1898), Ss.196 & 561-A—Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs—Quashing of proceedings—Case under S.295-A, P.P.C., could not be registered against any person, unless same was made upon complaint by order of or under authority from the Federal Government or the Provincial Government concerned; or some other officer empowered in that behalf by, either of the two Governments—In the present case, no such sanction had been obtained—If case pertained to offences against State; cognizance thereof could not be taken unless clog put in S.196, Cr.P.C., was removed—No doubt, provision of S.196, Cr.P.C., was mandatory in nature, unless prohibition contained in said section was crossed by sanction of Federal or Provincial Government, followed by a complaint by an authorized person, however when such a case became triable by a Special Judge, established under Anti-Terrorism Act, 1997, provisions of S.196, Cr.P.C., which pertained to general law, would not be applicable to the proceedings before Special Court, because Anti-Terrorism Act, 1997, which was a special law, had overriding effect, notwithstanding anything contained in Criminal Procedure Code, 1898.

2015 PCrLJ 433 Gilgit-Baltistan Chief Court

SHER SULAIMAN VS DSP BABAR KHAN

Ss. 302 & 324—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Criminal Procedure Code (V of 1898), Ss.132 & 200—Qatl-i-amd, attempt to commit qatl-i-amd, act of terrorism—Appreciation of evidence—Private complaint—Dismissal of—Protection against prosecution—Private complaint filed by petitioner/complainant was dismissed by Special Court on the grounds that it was not supported by sanction as required by S.132, Cr.P.C. and that offence alleged against accused persons/respondents, did not fall under Ss.6 & 7 of Anti-Terrorism Act, 1997—Validity—People whose relief cheques were not cashed had gathered in the mob to protest—Accused persons, who were Police Officials, for dispersing the mob of protestors opened fire, and two persons died and many others injured—Contention of accused persons was that incident took place under compelling circumstances because the mob was going to destroy public property in large scale; and fire was opened in good faith by them to abstain the mob from taking the law in hand—Validity—Version of accused persons that firing was opened under compelling situation, was not enough to overlook the murder of two persons—Justice demanded that truth should be found out so that no public servant dare to act going beyond his authority—Section 132, Cr.P.C. was a protection against prosecution; and to take benefit under said section, accused persons had to prove that the act complained of was done under circumstances mentioned in that section—Accused persons must place the material and show circumstances before the court justifying that mob was unlawful and the acts they did were purported to have been done while dispersing the mob—Complaint was dismissed on the ground that same did not fall within the scope of S. 6 of Anti-Terrorism Act, 1997—Complainant failed to prove that act done by accused persons fell within ambit of S. 6 of Anti-Terrorism Act, 1997, but when court concluded that S. 6 was not attracted to the matter and complaint was not triable by the Special Judge, then court was required to send the complaint to the court of ordinary jurisdiction, which could give finding regarding applicability or non-application of S. 132, Cr.P.C.—Revision was converted into appeal and was partially allowed by Chief Court—Impugned order of the Special Court was set aside, with the observation that S.6 of Anti-Terrorism Act, 1997 was not attracted to the matter—Special Court was directed to transfer the complaint to Additional Sessions Judge concerned for its disposal in accordance with law, in circumstances.

2015 MLD 1374 Gilgit-Baltistan Chief Court

State VS SHAKEEL AHMAD

Ss.6, 7, 21-H, 21-L & 25—Penal Code (XLV of 1860), Ss. 302, 34, 114 & 109—Qanun-e-Shahadat (10 of 1984), Art.40—Criminal Procedure Code (V of 1898), S.417(2-A)—Constitution of Pakistan, Arts.13(b) & 25—Qatl-i-amd, common intention, abetment—Appeal against acquittal—Reappraisal of evidence—Statements of accused recorded by Superintendent of Police, did not contain the proper and clear answers given by accused persons to questions put to them, which could suggest that confessions of accused were voluntary within the contemplation of S.21-H of Anti-Terrorism Act, 1997—Said statements had lost its effectiveness for becoming a piece of evidence—Statement recorded under S.21-H of Anti-Terrorism Act, 1997, could not be used as exclusive piece of evidence, upon which conviction could be based, if said statement was not corroborated by a strong piece of evidence—Said statement, would be treated just a piece of evidence, which would be read along with the other material on record—Section 21-H of Anti-Terrorism Act, 1997, was repugnant to Arts.13(b) & 25 of the Constitution—Prosecution claimed that a .30 bore pistol was recovered at the pointation of accused, which version, was substantiated by prosecution witness; but, in court it turned out to be different one, in description of pistol, rather it was 163 mm and not 30 bore, which had made the recovery doubtful—Recovery of pistol, could not be treated as corroborative piece of evidence—Site-plan prepared at the pointation of accused, could not be termed in pursuance of Art.40 of Qanun-e-Shahadat, 1984, as in order to bring the case within the ambit of Art.40, prosecution must establish that information conveyed by accused, actually led to the recovery of same and that said fact was unknown to the Police, and it was for the first time derived from the accused—Just after the occurrence, the Police had visited the spot, and on the pointation of eye-witness, Investigating Officer, prepared the site-plan—Conditions laid down under Art.40 of Qanun-e-Shahadat, 1984, were not attracted in the case—Each and every piece of evidence, collected by Investigating Officer in the case, to connect accused with the offence, suffered with doubts and infirmities—No conviction could be based on such evidence in circumstances—Appeal against acquittal was dismissed being meritless.

2014 GBLR 207 SUPREME-APPELLATE-COURT

Mir SHAKEEL-UR-REHMAN VS The STATE

Ss. 295-A & 34—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7, 12 & 19—Criminal Procedure Code (V of 1898), S.526—Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60—Deliberation and malicious acts intended to outrage religious feeling of any class by insulting its religion or religious beliefs, common intention, act of terrorism—Transfer of case—Criminal case was registered against accused person, on allegation that accused person by visible representation through wide spoken words used derogatory remarks against holy person of the higher degree i.e. Ummal Momineen and other members of the Holy family of Ahl-e-Bait on TV—Said program was watched by the public in general in which something of the nature of disrespect to Hazrat Ali (R.A.) Fatima-Tu-Zahra (R.A.), Khulfa-e-Rashideen and other companions of the Holy Prophet (Peace be upon him), was articulated—Accused did not associate with Joint Investigating Team and remained absconding and did not surrender to the jurisdiction of Investigating Authority—Trial Court after completion of legal formalities declared the accused person as absconder and proceeded with the case in his absence—Accused person filed application under S.526, Cr.P.C., for transfer of case to another court alleging that Trial Court was in a hurry to conclude the trial, and proceeded with the matter in such a haste that Trial Judge, did not even bother to comply with certain legal provisions; and acted in violation of mandatory legal provisions of law—Accused person contended that he had lost confidence in the Trial Judge—Chief Court dismissed application for transfer of case to another court, being not maintainable—Validity—While making an application for transfer of the case from one court to another, it must be established that genuine apprehension had arisen in the mind of accused and that fair and impartial trial was not possible at the hands of the Trial Judge—Even before the Supreme Appellate Court, no pertinent reason had been advanced or put forward by accused—Applicant of transfer application should not be illusory or ill-founded—Mere fact that Trial Court was proceeding with the case in hasty manner, by no means, would provide any justification to invoke the jurisdiction of the supervisory court to transfer the case—Anti-Terrorism Act, 1997, itself provided a speedy disposal of the trial and it had been made imperative upon the Trial Judge to conclude the case within the period of seven days—No motive or malice could be attributed to Judge of the Trial Court—Transfer of case was declined by Supreme Appellate Court.

2014 GBLR 199 SUPREME-APPELLATE-COURT

State VS IFTIKHAR-UD-DIN

497(1)(5)—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Explosive Substances Act (VI of 1908), Ss.4 & 5—Act of terrorism, recovery of explosive substances— Bail, grant of—Chief Court granted bail to accused—Validity—Prosecution failed to show that accused had misused the concession of bail granted to him, or he had attempted to tamper with the prosecution evidence—No ground was agitated for withdrawal of concession of bail granted to accused—State counsel had submitted that no documentary evidence was available to the effect that material (explosive substance) allegedly recovered at the instance of accused, was ever sent to concerned laboratory for test—Petition for cancellation of bail was dismissed, in circumstances.

2014 GBLR 185 SUPREME-APPELLATE-COURT

State VS ASIF ABBASS

497(1)(5)—Penal Code (XLV of 1860), Ss.147, 149, 341, 504, 506 & 353—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Rioting, common object, wrongful restraint, intentional insult with intent to provoke breach of peace, criminal intimidation, assault or criminal force to deter public servant from discharge of his duty, act of terrorism—Bail, grant of—Trial Court declined bail to accused, but, Chief Court allowed bail, and accused were ordered to be released on bail—Validity—Chief Court had taken note of all the legal provisions; and thereafter passed speaking order—Accused persons remained in jail lock-up for about two months—Challan had been submitted; and the charge had also been framed—Trial was in progress, and evidence was being recorded—No complaint was on record to the effect that accused persons had made any attempt to tamper with the evidence of the prosecution, nor they had misused the concession of bail granted to them—No useful purpose would be served while sending accused persons in the judicial lock-up, particularly when they were not causing any hindrance in the process of the trial—Petition for leave to appeal being meritless and without any substance, was dismissed.

2014 GBLR 61 SUPREME-APPELLATE-COURT

FAREED ALAM VS State

Ss. 302, 34, 109 & 114—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Pakistan Arms Ordinance (XX of 1965), S. 13—Criminal Procedure Code (V of 1898), S. 345—Qatl-i-amd, common intention, abetment, act of terrorism, possessing unlicensed arms—Reappraisal of evidence—Compromise—Complainant moved application seeking permission for compounding the offence and release of accused persons on the ground of “compromise”—Chief Court sought the report regarding the genuineness of compromise effected between the parties—Trial Court, complied with the order of the Chief Court and submitted the report—Statements of the Jirgah members, along with statements of the legal heirs of the deceased, verified the genuineness of the compromise, and submitted that they had no objection, if accused persons, were released from the judicial lock-up on the basis of the compromise, effected between the parties—Jirgah members, present in the court also assured that they were confident that compromise between the parties was genuine, and would be long lasting, and also peace and tranquility would prevail in the area—Present was a good case for compounding the matter—Accused persons, were ordered to be released from the judicial lock-up and were acquitted from the charges.

2014 PLD 809 SUPREME-COURT

SHAHID ZAFAR VS State

345—Penal Code (XLV of 1860), S. 302(b)—Anti-Terrorism Act (XXVII of 1997), Ss.6(1)(b) & 7(a)—Compounding of offence—Fasad-fil-Arz—Murder of unarmed person by members of law enforcement agency—Victim begging for life and bleeding to death—Cruel and gruesome murder—Such murder would amount to Fasad-fil-Arz within the meaning of S.311, P.P.C. hence there could be no question of acceptance of any compromise between the parties—Appeal was disposed of accordingly.

2014 PLD 809 SUPREME-COURT

SHAHID ZAFAR VS State

Ss. 302(b) & 34— Anti-Terrorism Act (XXVII of 1997), Ss. 6(1)(b) & 7(a)—Criminal Procedure Code (V of 1898), S. 345—Qatl-e-amd, common intention, act of terrorism—Compromise—Reappraisal of evidence—Murder of unarmed person by members of law enforcement agency—Grievous and heinous crime—Sense of fear or insecurity in the public—Accused and co-accused persons were members of a law enforcement agency, and they had a quarrel with the deceased at a park—Deceased was surrounded by accused and co-accused, whereafter one of the co-accused shouted “maromaro”, as a result of which the accused fired at the deceased—Deceased pleaded to be taken to hospital, but accused and co-accused did not do the same, despite presence of an official vehicle at the spot—Deceased consequently bled to death—Accused deliberately and wilfully shot the deceased at the instigation of the co-accused persons and they let him bleed to death without offering him any assistance—Such sequence of events abundantly displayed the common intention and object of the accused and co-accused persons—Gruesome murder of deceased at the hands of members of law enforcement agency certainly created a sense of terror, insecurity and panic in the minds and hearts of those who witnessed the scene and the entire public which saw the video of the incident—Accused had compromised with legal heirs of deceased but offence committed by him and co-accused persons under S.7(a) of the Anti-Terrorism Act, 1997 was not compoundable—Supreme Court however observed that following the ratio in the case of Muhammad Nawaz v. The State (PLD 2014 SC 383), wherein sentence of death imposed upon convict under S.7 of the Anti-Terrorism Act, 1997 was reduced to imprisonment for life in the presence of a compromise, the death sentence awarded to present accused should also be reduced to imprisonment for life—Sentence of imprisonment for life awarded to co-accused persons was maintained—Appeal was disposed of accordingly.

2014 PLD 383 SUPREME-COURT

MUHAMMAD NAWAZ VS State

345— Penal Code (XLV of 1860),Ss. 302(b), 324, 353, 148, 149 & 337-F(iii)—Anti-Terrorism Act (XXVII of 1997), Ss.6(m) & (n), 7(a), (c) & (h)—Constitution of Pakistan, Art.188—Review of Supreme Court judgment—Murder of police official while on duty—Act of terrorism—Compounding of offence under S. 7 of Anti-Terrorism Act, 1997—Scope—Compromise between convict and legal heirs of deceased—Effect—Accused allegedly fired at and killed a police official during a police raid—Anti-Terrorism Court sentenced accused to death on two counts, one under S. 302(b), P.P.C and second under S.7 of Anti-Terrorism Act, 1997—Death sentence awarded to accused was confirmed by the High Court—Petition for leave to appeal filed by accused before Supreme Court was dismissed, against which accused had filed a review petition—During pendency of review petition, accused entered into a compromise with legal heirs of deceased-police official and requested the Supreme Court to accept the said compromise and acquit him—Validity—Merits of the present case pertaining to offence under S.302(b), P.P.C were no more required to be dilated upon because of the compromise—Statements of eye-witnesses (police officials) and recoveries made during investigation established that deceased-police official was murdered when he was on official duty, and such findings were upheld by the High Court and Supreme Court—Offence under S.353, P.P.C stood proved against accused as he fired at and killed a police official, who was performing his official duty, therefore, offence under S.7 of Anti-Terrorism Act, 1997 was also established because murder of a police official without personal enmity amounted to create terror and insecurity in the vicinity—Offence under S.6(2)(n) of Anti-Terrorism Act, 1997 also stood established as act of accused involved serious violence against a member of police force—Regarding first count of death sentence under S.302(b), P.P.C, accused entered into a compromise with legal heirs of deceased and compensation had also been paid, but second count of death under S.7 of Anti-Terrorism Act, 1997 had its own implications and was not compoundable under Ss.354(5) & (7), Cr.P.C—Compromise between parties was accepted (only) to the extent of conviction under S.302(b), P.P.C and accused was acquitted of said charge—Regarding death sentence under S.7 of Anti-Terrorism Act, 1997, quantum of said sentence could be examined in the present case due to its peculiar facts—Sentence of death awarded to accused under S.7 of Anti-Terrorism Act, 1997 was converted into life imprisonment without extending benefit of S.382-B, P.P.C, as the same was not allowed by Trial Court, High Court and the Supreme Court—Review petition was disposed of accordingly.

2014 PLD 644 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD YOUSAF VS State

Preamble, Third Sched., Ss.1, 6, 7, 23 & 34—Constitution of Pakistan, Art.199—Constitutional petition—Transfer of case from Anti-Terrorism Court to regular court—Scope of S.23 of the Anti-Terrorism Act, 1997—Anti-Terrorism Court dismissed applications of accused involved in different offences namely murder by firing, acid throwing and injury caused by firing in mosque, for transfer of their cases to regular courts—Validity—Purpose of Anti-Terrorism Act, 1997 was to prevent terrorism, sectarian violence and conducting speedy trial of heinous offences—In order to decide whether an offence was triable under the Anti-Terrorism Act, 1997 or not, the courts had to see whether the act had tendency to create sense of fear and insecurity in the mind of people or a section of society—Such act might not necessarily have taken place within the view of general public—Schedule annexed to a statute was as important as the statute itself—Schedule could be used to construe the provisions of the body of the Act—Third Schedule to the Anti-Terrorism Act, 1997 had to be given its due importance and, first three paragraphs of the same were general in nature while the fourth paragraph specifically described offences—In order to bring an offence within ambit of Anti-Terrorism Act, 1997 and the jurisdiction of the Anti-Terrorism Court, nexus of such offence with S.6 of the Anti-Terrorism Act, 1997 was a pre-requisite—Paragraph 4 of the Schedule to the Anti-Terrorism Act, 1997 categorically mentioned the offences which would be tried only by the Anti-Terrorism Court—Offences in question were within the purview/ambit of the paragraph 4 of the Third Schedule to the Anti-Terrorism Act, 1997 and were triable by the Anti-Terrorism Court—Petitions were dismissed.

2014 PLD 639 LAHORE-HIGH-COURT-LAHORE

KHURRAM WAHEED VS State

Ss. 6(1), Cls. (b) & (k), 7 & 23—Penal Code (XLV of 1860), Ss.384, 506 & 337-H(2)—Extortion, criminal intimidation, rash and negligent act endangering human life—Constitution of Pakistan, Art.199—Constitutional petition—Transfer of case from Anti-Terrorism Court to regular court—Community—Connotations—Act of accused persons though was (directed) against an individual yet its impact had to be considered with surrounding circumstances—Complainant was member of business community running business in a busy area—Ransom was demanded in such a way by accused persons and the manner in which complainant was directed to proceed to a Chowk coupled with firing shots at a public place and eight days time (dead line) for arrangement of ransom, might have spread sense of terror, fear and insecurity in the vicinity complainant was running business—Complainant being member of a particular community (business community), prosecution case fell within ambit of Cls.(b) and (k) of S.6 of the Anti-Terrorism Act, 1997 and the alleged offence was liable to be punished under S.7 of the Anti-Terrorism Act, 1997—In view of surge in heinous crimes, outlaws perpetrating such crimes had to be dealt with drastically—Constitutional petition was dismissed.

2014 YLR 2676 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SHAHBAZ VS State

Ss. 302(b), 365-A & 34—Anti-Terrorism Act (XXVII of 1997), Ss.6(2)(a) & 7(a)—Qatl-e-amd, kidnapping for ransom, common intention, act of terrorism—Appreciation of evidence—Both the witnesses had not only rendered discrepant statements inter se, but also made some self-contradictory depositions—Witnesses of last seen had made certain improvements in their statements, for which they were duly confronted with their previous statements under S.161, Cr.P.C.—Evidence of last seen had been fabricated by the Police so as to involve accused persons in the case, and create a linkage between them and the crime committed—Discrepancies and self-contradictory depositions of both the prosecution witnesses, had rendered their statement worthless and incredible, which could not be given any weight—Evidence of last seen, was the weakest type of circumstance, which could easily be manoeuvred by the prosecution, wherever direct connecting evidence against an accused, did not come in their way—Law required unimpeachable corroboration of such like evidence, but such particular piece of evidence alone was untrustworthy and unreliable—Continuous chain of events, without any breach could, establish the guilt of accused, based on circumstantial evidence, but in the present case, it appeared to be a ragged, shaken and shabby situation which had dwindled the idea of building an uninterrupted chain by the prosecution—Medical evidence hardly advanced the prosecution case in plausible terms—Prosecution, in circumstances, had failed to prove the charge against accused persons beyond reasonable shadow of doubt—Impugned judgment being unsustainable was annulled and conviction and sentence of accused persons were set aside, they were acquitted of the charge and were directed to be released, in circumstances.

2014 YLR 2534 LAHORE-HIGH-COURT-LAHORE

ATIF ALI VS SPECIAL JUDGE OF ATC-IV, LAHORE

Ss.302, 148 & 149—Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7 & 23—Qatl-e-amd, rioting armed with deadly weapon, every member of unlawful assembly guilty of offence committed in prosecution of common object—Cognizance of cases by Anti-Terrorism Court—Determining factors—Demanding Bhatta—Transfer of accused’s case from Anti-Terrorism Court to court of ordinary jurisdiction—Validity—Accused demanded Bhatta from deceased and on refusal murdered his father thereby conveying message to complainant and people living in the area that if anyone refused accused’s demand would suffer the fate of deceased—Occurrence was bound to spread panic and feeling of insecurity—Under S.6(k) of the Anti-Terrorism Act, 1997 demanding Bhatta was offence punishable under S.7 of the Anti-Terrorism Act, 1997—Demanding Bhatta constituted a scheduled offence which was triable by Anti-Terrorism Court constituted under Anti-Terrorism Act, 1997—Cumulative effect of the contents of F.I.R., attending circumstances and record of case would determine whether alleged offence fell within purview of any of the provisions of Anti-Terrorism Act, 1997—Act done by accused created a sense of insecurity among people and was covered by Ss.6 & 7 of the Anti-Terrorism Act, 1997—Trial Court’s order transferring accused’s case to regular court having no cogent and plausible reasons, was set aside.

2014 PCrLJ 1062 LAHORE-HIGH-COURT-LAHORE

YOUNAS VS State

Ss. 6(1)(b) & (c)—“Terrorism”, meaning of—Scope—For an act to fall within the definition of “terrorism”, nexus of the actions of the wrongdoer must be to terrorize the public in general and to spread the sense of fear and insecurity in the particular community or sect of people.

2014 PCrLJ 1062 LAHORE-HIGH-COURT-LAHORE

YOUNAS VS State

Ss. 6(2)(m), (n) & 23—Constitution of Pakistan, Art. 199—Constitutional petition—“Terrorism”, meaning of—Scope—Exchange of fire with police contingent—Doubts regarding element of serious violence against police—Accused persons, 17 in number, allegedly made indiscriminate firing upon a police contingent, snatched an official rifle and ammunition, and used force and coercion to rescue one of the accused from the police—Despite the fact that firing upon police contingent was made by 17 persons, no police official received a single scratch—None of the accused received any fire shot injury at the hands of police—Uniform of none of the police officials was torn—In presence of a reasonable police contingent, it was not comprehendible as to how official arm and ammunition was snatched and as to how accused persons managed to rescue one of theirs from the police—Element of involvement of serious violence against police was lacking in such circumstances—Provisions of Anti-Terrorism Act, 1997, were not applicable in the present case—Case of accused persons was ordered to be transferred from Anti-Terrorism Court to the court of plenary jurisdiction—Constitutional petition was allowed accordingly.

2014 PCrLJ 754 LAHORE-HIGH-COURT-LAHORE

LORY VIE PIMENTEL VS SPECIAL JUDGE ANTI-TERRORISM COURT NO.IV, LAHORE

Ss. 6, 7 & 23—Penal Code (XLV of 1860), S. 365—Criminal Procedure Code (V of 1898), S. 265-D—Constitution of Pakistan, Art.199—Constitutional petition—Act of terrorism—Return of case to Regular Court—Petitioner/complainant was aggrieved of the order passed by Anti-Terrorism Court, whereby case was transferred to the court of regular jurisdiction—Validity—Complainant was working as maid under an agreement in the house of accused and allegedly she was maltreated and her mobile phone was also snatched—Such act could not be termed as an act of “terrorism”—Before framing of charge Judge, Anti-Terrorism Court after having considered that facts of the case did not satisfy ingredients of S.365-A, P.P.C. rightly passed the order of transfer of the case—Petitioner failed to point out any illegality/infirmity in the order passed by Anti-Terrorism Court—Petition was dismissed in circumstances.

2014 PCrLJ 726 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ASIF VS State

497(2)—Penal Code (XLV of 1860), Ss. 302, 324, 353, 109, 34, 427, 201 & 186—Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7 & 21(l)—Qatl-e-amd, attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, abetment, common intention, mischief causing damage to the amount of fifty rupees, causing disappearance of evidence of offence, or giving false information to screen offender, obstructing public servant in discharge of public functions, acts of terrorism—Bail, grant of—Further inquiry—Co-accused persons allegedly killed police officials and other deceased persons—Allegation against accused was that he drove the co-accused persons to the place of occurrence—Accused was only ascribed role of conspiracy in the F.I.R.—Occurrence was committed by four unknown persons, but subsequently, complainant made supplementary statement indicating that accused was driving the car in which the co-accused persons came at the spot and resorted to firing—Accused was found innocent during investigation and in report under S. 173, Cr.P.C. his name was put in Column No.2—One of the co-accused who was assigned a role similar to that of accused had already been released on bail—Accused was also the complainant of an earlier case, wherein a deceased of the present occurrence and his brother were nominated for the crime, therefore, probability of false implication of accused in the present case could not be ruled out—Accused was no more required for further investigation—Case was one of further inquiry—Accused was released on bail in circumstances.

2014 PLD 547 KARACHI-HIGH-COURT-SINDH

AZHAR HUSSAIN RIZVI VS State

Ss. 6, 7 & 28—Penal Code (XLV of 1860), S.302—Act of “terrorism”—Qatl-e-amd—Proof—Indiscriminate firing—Grievance of accused was that Trial Court under Anti-Terrorism Act, 1997, declined to transfer the case to court of ordinary jurisdiction—Validity–ÂWherever any action was taken which created fear and insecurity in any section of people, such offence would fall within the ambit of case as contemplated under S.6 of Anti-Terrorism Act, 1997—Mob of 30 / 40 motorcyclists including accused, while carrying dead body from hospital to graveyard, were indiscriminately firing throughout the way-F.I.R. did not mention that firing was in retaliation of firing from any side—If there wax no firing on funeral procession then there was no reason of making firing on the way to graveyard—Such firing was only with the object of creating fear and insecurity in people, which would come within the definition of “terrorism”—Trial Court on the basis of material available it her was justified in coming to conclusion that case of accused was within the meaning of S. 6 of Anti-Terrorism Act, 1997—Trial Court rightly dismissed application of accused for sending his case to ordinary Court—High Court declined to set aside the order passed by Trial Court—Petition was dismissed in circumstances.

2014 YLR 742 KARACHI-HIGH-COURT-SINDH

BAHADUR VS State

Ss. 324, 353, 148 & 149—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Pakistan Arms Ordinance (XX of 1965), S.13(d)—Attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, rioting, act of terrorism and possessing unlicensed arms—Appreciation of evidence—Ocular account of the occurrence had been furnished by Assistant Sub-Inspector of Police, being the complainant—Testimony of prosecution witnesses who were Police Officials, had established act of perpetration by accused—Version of said witnesses was consistent on material points and facts—Some discrepancies in the evidence of prosecution witnesses, which were minor in nature, had no bearing; and did not affect the conclusion arrived at by the Trial Court—Prosecution witnesses, though Police Officials, yet there appeared to be no reason to tell a lie by indicating accused—Nothing came on record to suggest that the Investigating Agency had motive to set up the witnesses to depose against accused falsely—Truthfulness of the ocular testimony, could not be questioned on minor contradictions or discrepancies—Police Officials were as good witnesses as any other citizen, unless any mala fide was established against them—Deposition of the Police Officials, could not be brushed aside simply on the bald allegation that they belonged to the Police department—Accused who had pleaded that case against him was false, and had been registered due to inimical terms with the informer on the dispute of a house, could not produce documentary proof to prove said plea—Counsel for accused, had not been able to point out any misreading or non-reading of evidence or contradiction on material particulars in the statements of the prosecution witnesses resulting into miscarriage of justice—Prosecution had succeeded to establish its case and accused had failed to prove his innocence—Prosecution having established its case against accused beyond any shadow of reasonable doubt, no reason was available to interfere with the conclusion arrived at by the Trial Court in recording conviction and sentence against accused.

2014 PCrLJ 1783 KARACHI-HIGH-COURT-SINDH

VEJAY KUMAR VS State

Ss. 6(1) & 23—Penal Code (XLV of 1860), Ss. 302 & 365-A—Criminal Procedure Code (V of 1898), Ss. 435, 439 & 561-A—Qatl-e-amd and kidnapping for ransom—Act of terrorism—Transfer of case—Minor boy of 6 – 7 years was kidnapped for ransom, his mouth was tapped and was put in jute bag, to keep him silent in order to avoid attention of people towards them, which resulted in his death and subsequently accused threw his dead body in water channel—Application of accused for transfer of case to Court of ordinary jurisdiction was dismissed by Anti-Terrorism Court—Validity—Such barbarity had created fear, panic and sense of insecurity among people of vicinity—Act of accused persons squarely fell within the ambit of “terrorism” attracting jurisdiction of Anti-Terrorism Court in terms of S.6(1) of Anti-Terrorism Act, 1997—Trial Court had correctly assumed jurisdiction declining transfer of case to Court of ordinary jurisdiction—Order passed by Trial Court was not perverse, nor suffering from any infirmity and it did not require interference by High Court in exercise of revisional jurisdiction under Ss. 435 & 439, Cr.P.C. or inherent power under S. 561-A, Cr.P.C., which could only be invoked in exceptional cased of extraordinary nature and not in each and every case—Revision was dismissed in circumstances.

2014 PCrLJ 1673 KARACHI-HIGH-COURT-SINDH

RAZI KHAN ALMANI VS JUDGE, ANTI-TERRORISM COURT, HYDERABAD

Ss. 302, 114, 109 & 34—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 21-E— Act of terrorism, qatl-e-amd, abetment, common intention—Remand of case—Jurisdiction of Anti-Terrorism Court—Applicant/Investigating Officer requested for grant of further remand of accused in Police custody, but Judge Anti-Terrorism Court, instead of granting remand of accused in Police Custody, had granted remand in judicial custody for 7 days—Applicant had filed revision against said order contending that impugned order would affect the process of investigation of the case for the reason that more evidence was to be collected with the cooperation and disclosure of accused and statement of his daughter—Allegation was that court had shown special generosity to accused mainly on the reason that accused being a Sessions Judge, court had paid accused due respect, though he had not complained bodily or mental torture from the hands of Police—Impugned order, though neither could be challenged invoking revisional jurisdiction, nor jurisdiction under S.561-A, Cr.P.C., but it was an appropriate case where extraordinary jurisdiction could be invoked under Art. 199 of Constitution—High Court converted revision application as constitutional petition and held that remand could be extended, if the court was satisfied that no bodily harm had been or would be caused to accused; provided that total period of such remand would not exceed ninety days—Trial Court had failed to appreciate the request made by applicant/Investigating Officer for grant of further Police remand—Impugned remand order, granting remand of accused in judicial custody, instead of Police custody was illegal, arbitrary and against law; which would affect the smooth investigation of crime—Impugned order was set aside, with the direction to the Trial Court to decide afresh the request of applicant on merits and in accordance with law after affording fair opportunity of hearing to both sides.

2014 PCrLJ 1123 KARACHI-HIGH-COURT-SINDH

HAJAN VS State

Ss. 365-A & 34—Anti-Terrorism Act (XXVII of 1997), S.6(2)(e)—Kidnapping for ransom, common intention, act of terrorism—Appreciation of evidence—Unexplained delay of 55 days in lodging F.I.R., had created serious doubt; and it could be gathered that F.I.R. was lodged by the complainant after due deliberation, negotiation, discussion and afterthought with sole object; and ulterior motive to get accused persons convicted—Accused persons were not identified as culprits who had allegedly kidnapped the complainant—Culprits who allegedly received ransom, were muffled faces—Prosecution witness, who allegedly remained in contact with the culprits through mobile phone, and negotiated, and settled the quantum of the ransom, had neither mentioned said mobile number in his statement, recorded by the Police, nor disclosed in his evidence recorded before the Trial Court—Prosecution witness, who allegedly made payment of ransom amount to the culprits, neither mentioned serial numbers of currency notes, nor any identification marks were mentioned by the witness—Alleged recovery of cash from the house of accused persons could not be believed—Prosecution witnesses had introduced dishonest improvements in their statements during the trial, and made conflicting depositions—Abductees, were not recovered from accused, nor any ransom money was proved to have been demanded by him, or paid to him—No identification parade had been held for identification of accused; and prosecution had failed to establish his nexus with the alleged episode—Place of captivity was neither pointed out to the Investigating Officer, nor such mashirnama was prepared—Such missing piece of evidence alone, was fatal dent to the prosecution case, when the complainant had mentioned the place of captivity in F.I.R.—People of different castes were residing adjacent to the place of incident, but none from the locality was examined by the Police, or produced before the Trial Court to prima facie establish that the complainant was abducted—Series of admissions and material contradictions, had made the prosecution story highly doubtful—Prosecution had failed to bring guilt of accused persons to home, and charge could not be established beyond any shadow of doubt—Impugned judgment passed by the Trial Court was set aside, accused were acquitted from the charge and were released, in circumstances.

2014 PCrLJ 1052 KARACHI-HIGH-COURT-SINDH

UMER FAROOQUE VS JUDGE, ANTI-TERRORISM COURT, MIRPURKHAS

Ss. 6, 7 & 23—Penal Code (XLV of 1860), Ss.302, 324, 337-F(ii), 337-H(2), 364, 147, 148 & 149—Constitution of Pakistan, Art.199—Constitutional petition—Act of terrorism, qatl-e-amd, attempt to commit qatl-e-amd, causing badiah, rash or negligent act, kidnapping or abducting in order to murder, rioting, common object—Application by both the parties under S.23 of Anti-Terrorism Act, 1997 seeking transfer of the case from the Court of Anti-Terrorism to the ordinary Court of Session, was declined—Validity—Contents of the F.I.Rs. and the evidence of the prosecution witnesses in both the cases had not been taken by the Judge of Anti-Terrorism Court with particular reference to application of the provisions of Anti-Terrorism Act, 1997—No finding had been recorded to the effect as to whether the alleged incident struck terrorism and created any sense of insecurity in the public at large—Nothing had been stated in both the F.I.Rs. by the complainants, which could suggest that alleged incident, which reportedly took place at late hour at night, was witnessed by large number of people of the vicinity creating terror and sense of insecurity in the public or society—No lethal weapons i.e. Kalashnikov and Repeater as alleged in the F.I.Rs. were used in the incident—Judge of the Anti-Terrorism Court, while passing impugned orders, had also failed to examine, as to whether the ingredients of alleged offence had any nexus with the object of the case as contemplated under Ss.6, 7, 8 of Anti-Terrorism Act, 1997—No finding had been recorded by the Judge of Anti-Terrorism Court with regard to gravity and heinousness of the alleged crime, nor the motive, object, design or purpose behind alleged offence had been discussed in the impugned orders—Anti-Terrorism Court had merely observed that alleged crime had the tendency to create terror and fear in the society—Neither any reason had been given, nor reference to any material or evidence had been made by the Anti-Terrorism Court for such conclusion—For the purpose of attracting the provisions of any section or Schedule to the Anti-Terrorism Act, 1997, the element of striking terror or creation of the sense of fear and insecurity in the public at large, by doing any act or thing, was sine qua non—Merely filing of bail application for the release of accused before Anti-Terrorism Court, would not debar accused from raising an objection with regard to jurisdiction of the Anti-Terrorism Court and to seek transfer of the case to the court of ordinary jurisdiction under S.23 of Anti-Terrorism Act, 1997—Present cases were not triable by Anti-Terrorism Court as the ingredients of Ss. 6 & 7 of said Act, were not attracted to the facts of the cases—Impugned orders declining transfer of case to ordinary Court of Session were set aside, in circumstances.

2014 PCrLJ 928 KARACHI-HIGH-COURT-SINDH

MUHAMMAD HANIF alias POCHO VS State

Ss. 302, 149, 353, 324 & 404—Anti-Terrorism Act (XXVII of 1997), S.6(a)(b)—Qatl-e-amd, assault or criminal force to deter public servant from discharging of his duty, attempt to commit qatl-e-amd, dishonestly misappropriation of property and act of terrorism—Appreciation of evidence—Benefit of doubt—Out of five accused persons, two were identified by the complainant, but complainant could not give the features and figures of remaining three unknown accused mentioned in the F.I.R.—Source of head light of the vehicle in the midnight was a weak type of evidence regarding seeing a person from a distance of about one or two acres—Recovery of kalashnikov from the cattle pan of accused was quite doubtful—Accused had also been acquitted from the case under S.13(e) of Arms Ordinance, 1965—Identification parade of accused held after a considerable delay of about six days had lost its sanctity, when such delay was not explained—Prosecution had examined in all 13 witnesses including the eye-witnesses, but no tangible or unimpeachable evidence had been brought on record to prove the charge against accused—Recognition of accused at the place of incident from a considerable distance, was highly doubtful; and his identification by the prosecution witnesses after about 6 months, was also doubtful—Many circumstances existed creating doubt in the prosecution case, accused was entitled to be extended the benefit of doubt—Prosecution having failed to prove charges against accused beyond reasonable shadow of doubt, impugned judgment was set aside, accused was acquitted from the charges, and was directed to be released, in circumstances.

2014 PCrLJ 579 KARACHI-HIGH-COURT-SINDH

BAHADUR VS State

Ss. 365-A, 148 & 149—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Kidnapping for receiving ransom amount, rioting, act of terrorism—Appreciation of evidence—Incident of kidnapping of baby aged about 4/5 years, had taken place in presence of her father and prosecution witnesses—Report was made by the complainant to the Police without any loss of time, and the complainant had fully supported the contents of F.I.R.—Accused was apprehended after encounter between Police and accused in presence of Police Officials, and baby was got recovered from possession of accused—All witnesses were subjected to cross-examination, but nothing had come on record to discredit their evidence—Witnesses were natural and independent, who had no enmity with accused—Merely claiming enmity with the complainant over a house, without bringing any evidence on record in proof of such claim, was not sufficient to believe the plea of accused with regard to plea of enmity with the complainant—Non-examination of one eye-witness, was not fatal to prosecution case, as the prosecution was not required to examine each and every witness in the case—Quality and not the quantity of the evidence would decide the fate of criminal case—Confidence-inspiring ocular testimony of prosecution witnesses was also corroborated by the fact that accused was caught hold at the spot along with pistol and kidnapped baby—In absence of any error or illegality in the impugned judgment warranting interference by High Court, same was maintained and appeal was dismissed, in circumstances.

2014 PCrLJ 43 KARACHI-HIGH-COURT-SINDH

SUNDER JAKHRANI VS Haji MUHAMMAD NOOR

Ss. 23, 6 & 7—Penal Code (XLV of 1860), Ss. 302, 148, 149 & 364—Application for transfer of case from Anti-Terrorism Court to Court of Session, dismissal of—Evidence of complainant and prosecution witnesses not recorded to determine nature of offence—Effect—Accused and co-accused persons allegedly caused murder of three persons in front of their relatives after abducting them on gun-point—Plea of accused that present case was one of previous enmity and personal vendetta between the parties, therefore, offence alleged neither created any threat to a section of public or community nor it created any sense of fear or insecurity in the society—Application of accused under S.23 of Anti-Terrorism Act, 1997 for transfer of case from Anti-Terrorism Court to Court of Session was rejected—Validity—Alleged offence was committed on a path during day time and allegedly reckless firing was made with weapons of prohibited bore—Admittedly after submission of challan in Anti-Terrorism Court, the prosecution could not examine the ocular, circumstantial, medical and expert witnesses nor any other material was available to ascertain whether any panic, fear and insecurity had been created in the minds of people, therefore at such premature stage severity and nature of alleged offence could not be determined—Plea raised by accused might be agitated and decided after recording of evidence of complainant and atleast two eye-witnesses/star witnesses by the prosecution and thereafter the accused was at liberty to repeat the application for transfer of case from Anti-Terrorism Court to court of plenary jurisdiction—Application was disposed of accordingly.

2014 MLD 1813 KARACHI-HIGH-COURT-SINDH

MUHAMMAD UMER MANGRIO VS State

Ss. 6, 7 & 23—Penal Code (XLV of 1860), Ss.324, 353 & 216-A—Attempt to commit qatl-e-amd, assault or criminal force to deter public servants from discharging of his duty, harbouring robbery or dacoity act of terrorism—Application for transfer of case from Anti-Terrorism Court to Ordinary Court was dismissed—Validity—Taking cognizance and forming opinion regarding an offence to be either scheduled one or not, could not be treated as two separate acts, which were to be performed by the court at different times—Court would take cognizance of a given offence, only when it was without any doubt with regard to its jurisdiction to try the offence by examining the material presented to it in terms of S.173, Cr.P.C.—Law had provided for one exception that a Magistrate taking cognizance of offence triable exclusively by a Court of Session, would without recording the evidence send the case to court of session for trial in terms of S.190(3), Cr.P.C.—Such exception was entirely cognate with design contemplated under S.193, Cr.P.C.—Court was competent to make up its mind as to whether the offence was scheduled one or not at the time of taking cognizance of offence on the basis of material submitted to it in shape of challan—In case the court decided in affirmative, it would proceed with the matter in accordance with law and it would not restrict the jurisdiction of the court to hold otherwise at a subsequent stage, but the exercise of jurisdiction to transfer the case to a regular court, could be resorted to by the court on the basis of new material brought before it, either by prosecution or defence—Scheme of law in terms of S.23 of Anti-Terrorism Act, 1997, appeared to have enjoined upon the court to minutely examine all the material presented at the time of challan—Impugned order appeared to have been passed in haste which did not reconcile with the judicial norms and requirements of law—Court could have waited and postponed the decision on the application of accused till the submission of challan to form its opinion that the offence was scheduled one or not, instead of dismissing it in hasty manner—Impugned order being not sustainable under the law, was set aside—Application of accused would be deemed to be pending before the court, which would be decided afresh, evaluating the material submitted to it.

2014 MLD 1773 KARACHI-HIGH-COURT-SINDH

MUMTAZ VS State

Ss.6(2)(m) & 7(h)—Criminal Procedure Code (V of 1898), S.561-A—Serious coercion or intimidation of a public servant in order to force him to discharge or to refrain from discharging his lawful duties—Sentence, suspension of—Unexplained delay in registration of F.I.R.—Accused were convicted and sentenced to imprisonment for five years—Validity—Delay of five days in registration of F.I.R., was not explained, whereas Presiding Officer, who was complainant in the case, did not report the matter to appropriate forum in accordance with law on the date of alleged incident—Complainant stated in his evidence that he did not give name of accused persons at the time of registration of F.I.R., nor he could identify accused produced in court to be the persons who committed alleged offence—No incriminating material was recovered from accused nor any other evidence had been produced by prosecution which could directly connect accused with alleged offence—Trial Court had convicted accused under Ss. 6(2)(m) & h) of Anti-Terrorism Act, 1997, without even recording any finding as to whether alleged offence fell within the definition of terrorism or not—Accused persons had no previous criminal record and they had made out a case for their release on bail by suspending sentence awarded to them during pendency of appeal—Bail was allowed in circumstances.

2014 PLD 203 KARACHI-HIGH-COURT-SINDH

UMAR FAROOQUE VS State

302—Anti-Terrorism Act (XXVII of 1997), S. 6—Qatl-e-amd—Act of terrorism—Proof—Tripple murder—Complainant applied before Trial Court for transfer of the case to Anti-Terrorism Court which was dismissed—Plea raised by complainant was that murder of three persons caused terror amongst people of locality—Validity—F.I.R. showed that incident was result of previous enmity between parties over a murder—Killing of three persons did not bring case within the ambit of S.6 of Anti-Terrorism Act, 1997—While deciding question of jurisdiction, it was necessary to examine ingredients of alleged occurrence and that the same had any nexus with object of Anti-Terrorism Act, 1997—For determining whether a particular act was an act of terrorism or not, the motivation, object design or purpose behind the same had to be seen—If act of accused was simply result of previous enmity or personal vendetta, the same would not attract the provisions of Anti-Terrorism Act, 1997—Offence committed by accused was not covered by S.6 of Anti-Terrorism Act, 1997—High Court declined to interfere in order passed by Trial Court as the same did not suffer from any illegality—Petition was dismissed in circumstance.

2014 PLD 164 KARACHI-HIGH-COURT-SINDH

WAJID ALI VS CIVIL JUDGE AND JUDICIAL MAGISTRATE NO.1

Ss. 6 & 7—Penal Code (XLV of 1860), Ss.503 & 506—Act of terrorism—Scope—Criminal intimidation—Ingredients—Appreciation of evidence—“Action” as defined in subsection (2) of S.6 of Anti-Terrorism Act, 1997, if qualified the condition of involvement of the use of fire-arms, explosive, or any other weapon, would fall within meanings of “terrorism”—In the present case, it was not alleged that any of the person, forming mob, was armed with any weapon; alleged resistance, offered by the mob, therefore, could not be an act of ‘terrorism’—Simple threats, were not sufficient to constitute criminal intimidation, within the scope of S.503, P.P.C., unless it was caused to a person to do an act, who was not legally bound to do, or to omit to do any act, which that person was legally bound to do—Ingredients of criminal intimidation, being missing in the matter, Ss.6 & 7 of Anti-Terrorism Act, 1997, were not applicable in the matter.

2014 PLD 160 KARACHI-HIGH-COURT-SINDH

NAZAKAT ALI VS State

Ss. 302 & 34—Anti-Terrorism Act (XXVII of 1997), Ss.6(2)(m)(n), 7, 13 & 23—Qatl-e-amd, common intention, act of terrorism—Dismissal of application for transfer of case from Anti-terrorism Court to regular court by accused—Validity—Sufficient material had been collected to create a nexus between the Scheduled offence allegedly committed by accused—Accused had launched an assault upon the member of Police Force (S.H.O.) as to deter him from performing his official duties; and had committed his murder—If such allegations were accepted as correct on the basis of material available on record, ‘actus reus’ attributed to accused would attract the provisions of S.6(2)(m)(n) of Anti-Terrorism Act, 1997—Accused being subordinate to deceased S.H.O., by such act of accused it had created sense of insecurity in Police Officials—Anti-Terrorism Court had exclusive jurisdiction to try the case and had rightly framed the charge against accused—No illegality or infirmity in the impugned order had been pointed out and it was based upon sound reasons—Impugned order was maintained—Petition being without any merit was dismissed, with direction to the Ante-Terrorism Court to proceed with the case expeditiously, as provided in the Anti-Terrorism Act, 1997.

2013 YLR 92 LAHORE-HIGH-COURT-LAHORE

PERVAIZ IQBAL VS SPECIAL JUDGE, ANTI-TERRORISM COURT NO.III

S.6—Terrorism—Components and constituents of terrorism detailed. The ‘purpose’, the motivation, the ‘actus reus’ and the ‘mens rea’ constitute the components of terrorism or an act of terrorism. An action designed to coerce and intimidate or overawe the government or the public or section of public or community or sect or, if such an action is designed to create a sense of fear or insecurity in society in the backdrop of religious, sectarian or ethnic cause, shall constitute an act of terrorism or a terrorist act. To create fear or insecurity in the society through a crime is not by itself terrorism unless the motive or the design or the actus reus or mens rea pre-exists for creating such fear or insecurity in the society. A private crime resulting into fear or insecurity as a by-product, a fall out or an unintended consequence of fright etc. cannot be termed as an act of terrorism. Mere gravity, heinousness, gruesomeness or shocking nature of any offence, committed in pursuance of personal enmity or in settlement of personal vendetta is not by itself sufficient to brand such crime as a terrorist act or an act of terrorism.

2013 YLR 92 LAHORE-HIGH-COURT-LAHORE

PERVAIZ IQBAL VS SPECIAL JUDGE, ANTI-TERRORISM COURT NO.III

Ss. 6 & 7—“Act of terrorism”—Determination—Principles—Nexus has to be shown between the act done and the objective or design by which the offence was committed, to formulate an opinion whether or not such offence could be termed an “act of terrorism”—In the absence of such linkage it cannot be held that the offence committed in the background of personal enmity or vendatta, transmitting a wave of terror or fright or horror, was necessarily an act of terrorism.

2013 YLR 92 LAHORE-HIGH-COURT-LAHORE

PERVAIZ IQBAL VS SPECIAL JUDGE, ANTI-TERRORISM COURT NO.III

Ss. 6, 7 & 23—Penal Code (XLV of 1860), Ss. 324/ 148/ 149/ 427/ 337-A(i)/ 337-F(iii)/ 337-L(2)— Constitution of Pakistan, Art.199—Attempt to commit qatl-e-amd, rioting with deadly weapons, causing hurts—Constitutional petition—“Act of terrorism”, determination of—Nexus had to be shown between the act done and the objective or design by which the offence had been committed, to formulate an opinion whether or not such offence could be termed an act of terrorism—In the absence of such linkage it could not be held that the offence committed in the background of personal enmity or vendatta, transmitting a wave of terror or fright or horror, was necessarily an act of terrorism—Complainant and his co-witnesses had categorically stated during investigation that the accused mentioned in the F.I.R. had a personal motive and grudge to commit the offence, therefore the crime committed by them, regardless its repercussions, could not be dubbed an “act of terrorism”—Impugned order passed by Anti-Terrorism Court transferring the case to the court of ordinary jurisdiction on the application of accused moved under S.23 of the Anti-Terrorism Act, 1997, was well-reasoned and based on relevant law—Constitutional petition was dismissed in limine accordingly.

2013 PCrLJ 1880 LAHORE-HIGH-COURT-LAHORE

SAIF ULLAH SALEEM VS State

Sched, Ss. 6, 7 & 23—Penal Code (XLV of 1860), Ss. 324, 336-B & 337-F(i)—Constitution of Pakistan, Art. 199—Constitutional petition—Transfer of case from Anti-Terrorism Court to the court of ordinary jurisdiction—Application for transfer of case of the petitioners-accused was dismissed by the Special Court—Validity—Offences mentioned in the Schedule to Anti-Terrorism Act, 1997 should have nexus with the objects mentioned in Ss. 6 and 7 of the Act—Nothing had been brought on record to show that the occurrence created terror, panic or sense of insecurity among people and the society—Even in F.I.R., got registered by the complainant, no allegation of creating terror was levelled—Motive for the occurrence was enmity inter-se the parties and for that reason, the application of S.7 of the Act which primarily required the spread of sense of insecurity and fear in common mind was lacking—Occurrence took place in a room of a hotel which was not a public place and the element of striking terror or creating sense of fear in the people or any section of the people was not made discernible in the F.I.R.—Case registered against the petitioners-accused was triable by the court of ordinary jurisdiction—Constitutional petition was allowed and S.7 of Anti-Terrorism Act, 1997 was ordered to be deleted and petition moved under S.23 of Anti-Terrorism Act, 1997 was accepted—Proceedings of the trial of the case were ordered to be transferred to the court of ordinary jurisdiction.

2013 PCrLJ 603 LAHORE-HIGH-COURT-LAHORE

GHULAM FAREED VS State

Ss. 6, 7(a) & 7(c)—Act of terrorism—Determination—Motive—Alleged motive behind occurrence was suspicion by co-accused that paternal uncle of deceased had illicit relations with wife of co-accused—Effect—Application of S. 6 of Anti-Terrorism Act, 1997, primarily required spread of sense of insecurity and fear in common mind and the same was lacking—Occurrence neither reflected any act of terrorism nor it was sectarian matter and occurrence was result of previous enmity between the parties—Accused was wrongly convicted under S. 7(a) & (c) of Anti-Terrorism Act, 1997.

2013 PLD 551 KARACHI-HIGH-COURT-SINDH

MUHAMMAD YAKOOB GOPANG VS PRESIDING OFFICER, HYDERABAD

561-A—Penal Code (XLV of 1860), Ss.193, 384, 109 & 34—Anti-Terrorism Act (XXVII of 1997), S.6(2)(k)—False evidence, extortion, abetment, common intention—Quashing of proceedings, application for—Trial Court had observed in its judgment that applicant/complainant and Mashir had given false statements before the court and notices under S.193, P.P.C. were ordered to be issued against them—Plea of the applicant was that Mashir had not filed separate reply to notice under S.193, P.P.C., but he adopted the reply submitted by him, despite the fact that notice issued against the Mashir had been withdrawn, while notice against him was still pending—Applicant had contended that he was being insisted upon for personal appearance, which was discrimination on the part of the Trial Court—Validity—No previous statement of the applicant was recorded on oath, in such circumstances, there was nothing before the Trial Court which constituted an offence of perjury under S.193, P.P.C., against the applicant—Notice issued to applicant/complainant, therefore, amounted to abuse of process of court, which could not be allowed as High Court had powers under S.561-A, Cr.P.C. to prevent abuse of process of court or to secure ends of justice—Show-cause notice under S.193, P.P.C., issued against applicant, and proceedings emanating therefrom were quashed, in circumstances.

2013 YLR 2657 KARACHI-HIGH-COURT-SINDH

ADAM HUSSAIN VS State

Ss.6 & 7(i)—Act of terrorism—Appreciation of evidence—Exonerating by complainant—Benefit of doubt—Complainant had filed suit for Khula and it was alleged that on the day of occurrence her husband and others attempted on complainant to murder her in court premises—Trial Court convicted accused under S. 7(i) of Anti-Terrorism Act, 1997, and sentenced him to five years imprisonment while husband of complainant and another co-accused were acquitted—Validity—Prosecution could not establish its case against accused without reasonable doubt—Contradictory evidence of prosecution witnesses and deposition of complainant exonerating accused from alleged crime had made prosecution case doubtful, benefit of which was required to be extended to accused—Trial Court wrongfully declined benefit of doubt to accused—While awarding sentence to accused under S. 7(i) of Anti-Terrorism Act, 1997, Trial Court did not record any finding to the effect that alleged act of accused was an act of terrorism which created terror and sense of insecurity in public-at-large—Judgment passed by Trial Court was silent about application of S. 6 of Anti-Terrorism Act, 1997, whereas nothing had been observed by Trial Court about gravity of alleged offence—High Court set aside conviction and sentence awarded to accused by Trial Court and he was acquitted of the charge–Appeal was allowed in circumstances.

2013 YLR 1732 KARACHI-HIGH-COURT-SINDH

AMEER BUX alias GHOUS BUX alias GHOUSO BROHI alias SUDHIR BROHI VS State

Ss.6(2)(e) & 7(e)—Kidnapping for ransom— Appreciation of evidence—Identification of accused in court—Effect—Accused was convicted and sentenced to imprisonment for life for kidnapping for ransom—Validity—Accused was identified in court, therefore, his presence at place of occurrence and kidnapping abductee for ransom could not be disputed—Evidence of payment of ransom through evidence of prosecution witness stood proved beyond any shadow of doubt—Despite lengthy cross-examination prosecution witness could not be shattered by defence—Trial Court had rightly believed prosecution evidence, which was confidence-inspiring—High Court declined to disagree with appreciation of evidence by Trial Court—Appeal was dismissed in circumstances.

2013 YLR 1215 KARACHI-HIGH-COURT-SINDH

KOURO VS State

Ss. 302, 324, 353 & 427—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Pakistan Arms Ordinance (XX of 1965), S.13(d)—Qatl-e-amd, attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, mischief causing damage to the amount of fifty rupees, possession of illegal weapons, acts of terrorism—Appreciation of evidence—Police encounter—Consistent witness statements—Medical evidence corroborating ocular version—Effect—Accused persons, who belonged to a group of dacoits, attacked the police party during an encounter, which resulted in death of three police officials and also caused injuries to four others—All witnesses supported the prosecution case and reiterated their earlier statements recorded during investigation—No material discrepancy was found in statements of witnesses, which could be termed as material contradiction—Ocular version was substantiated by natural and credible witnesses, including injured witnesses/ police-officials—Arrest of accused persons at the place of occurrence along with sophisticated weapons was proved through trust-worthy evidence— Prosecution witnesses/police-officials were cross-examined at length, but defence failed to shake their credibility and veracity—Although one co-accused was acquitted by Trial Court on basis of his plea of alibi, but present accused persons never claimed/agitated such defence plea—Acquitted co-accused had not examined any witness in his defence nor produced any document to substantiate his plea of alibi, therefore, prosecution case could not be made doubtful on basis of acquittal of said co-accused—Although private witnesses were not arranged, but in circumstances of the occurrence, it was neither practical nor advisable to arrange private witnesses as it would have amounted to putting lives of private persons in danger—Medical evidence was not in contradiction with ocular evidence—Prosecution successfully proved the charge against accused persons through an unbroken chain of ocular, medical and circumstantial evidence—High Court dismissed appeal of accused persons, and issued show-cause notice to the acquitted co-accused to show as to why judgment of acquittal in his favour should not be set-aside—Case was remanded to the Trial Court to consider acquittal of co-accused.

2013 YLR 1135 KARACHI-HIGH-COURT-SINDH

GHULAM SARWAR VS State

Ss.6, 7 & 23—Penal Code (XLV of 1860), Ss. 386, 387, 506(2), 504 & 337-H(2)—Criminal Procedure Code (V of 1898), 5.526—Act of terrorism, extortion by putting a person to fear of death, or of grievous hurt in order to commit extortion, criminal intimidation and rash and negligent act—Application for transfer of case to .regular court—Complainant had alleged in F.I.R. that two months prior to the incident, accused had demanded `Bhatta’ from him, but no F.I.R. of the incident was lodged—F.I.R. and other material collected during investigation revealed that no offence triable under Anti-Terrorism Act, 1997 was made out, for the reason that element of striking of terror, or creation sense of fear and insecurity in the people, or any section of the people was made out—Ingredients of extortion of money as defined in S.6(2)(k) of Anti-Terrorism Act, 1997, were not made out from the fact of the case—Anti-Terrorism Court, therefore, had no jurisdiction to try the case—Impugned order was suffering from illegality, and was not sustainable under the law–Application was allowed by the High Court with direction to the Trial Court to transfer the case to the Court of Session, having jurisdiction in the matter, in circumstances.

2013 YLR 632 KARACHI-HIGH-COURT-SINDH

MUHAMMAD AMEEN VS GOVERNMENT OF SINDH through Home Secretary, Karachi

Ss. 384/ 386/ 506/ 511/ 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6(1), 6(2)(k) &7—Constitution of Pakistan, Art. 199—Constitutional petition—Extortion, extortion by putting a person in fear of death or grievous hurt, criminal intimidation, common intention, demand of extortion money (bhatta)—Petition for quashing of F.I.R. and transfer of case from Anti-Terrorism Court, dismissal of—Allegation against accused persons was that on several occasions they entered a factory and demanded extortion money (bhatta) from its owner; that they threatened to commit murder and set the factory on fire, and that they locked the factory by ousting its workers—Contentions of accused persons were that they were members of a labour union and had been implicated in the case due to enmity, and that offence alleged did not fall within the ambit of S. 6 of Anti-Terrorism Act, 1997, therefore it should be transferred to an ordinary court—Validity—Statements of witnesses under S.161, Cr.P.C. fully corroborated the version in the F.I.R.—Statements of prosecution witnesses under S. 164, Cr.P.C. fully supported the main allegation regarding demand of extortion money (bhatta) and consequences in case of non-compliance—F.I.R. reflected that accused persons duly armed with weapons entered into the factory premises and demanded extortion money on several occasions and also locked the factory by ousting its workers, which linked with the definition of terrorism provided in Ss. 6(1) and 6(2)(k) of Anti-Terrorism Act, 1997—Acts alleged against accused persons clearly created sense of fear or insecurity in the society—Accused persons had failed to establish any previous enmity or private vendetta for implicating them in the present case—Neither any application under S. 23 of Anti-Terrorism Act, 1997 had been moved for transfer of case to an ordinary court nor any application under S. 249-A or 265-K, Cr.P.C. for quashment of proceedings, instead accused persons had approached the High Court directly—Constitutional petition was dismissed in circumstances.

2013 PCrLJ 1808 KARACHI-HIGH-COURT-SINDH

ISHAQ ALI VS State

6—Act of terrorism, determination of—Perusal of S.6 of Anti-Terrorism Act, 1997 revealed that Anti-Terrorism Court had the jurisdiction to try the case, if an offence was made out with an intention to strike terror in the public or in a section of public—Act should be designed to create a sense of fear and insecurity in the minds of the general public—For determining whether an action fell under the ambit of S.6 of Anti-Terrorism Act, 1997, the averments made in the F.I.R. and allegations raised in such regard were of prime importance—While examining such offence it was to be seen that the offence had a nexus with the object of the Anti-Terrorism Act, 1997 and was squarely covered under Ss. 6, 7 & 8 of Anti-Terrorism Act, 1997—Case was not triable by the Anti-Terrorism Court when any of the condition laid down in section 6 of Anti-Terrorism Act, 1997 were not fulfilled.

2013 PCrLJ 1808 KARACHI-HIGH-COURT-SINDH

ISHAQ ALI VS State

Ss. 6(i) & 23—Penal Code (XLV of 1860), Ss. 302, 393 & 34—Qatl-e-amd, attempt to commit robbery, common intention—Act of terrorism, determination of—Transfer of case from Anti-Terrorism Court to Sessions Court—According to F.I.R. accused persons came to a shop with the intention to commit robbery, and after failing they started firing at the deceased persons— Case was transferred from Anti-Terrorism Court to Sessions Court on an application filed by accused persons under S.23 of Anti-Terrorism Act, 1997—Validity—For determining whether an action fell under the ambit of S.6 of Anti-Terrorism Act, 1997, the averments made in the F.I.R. and allegations raised in such regard were of prime importance—F.I.R. categorically stated that accused persons stopped at the front of the shop with an intention to commit robbery and when they were stopped, they started firing upon the deceased persons—Present case pertained to robbery with murder committed for private gains and offence was not committed with the design or purpose as contemplated under any of the provisions of S.6 of Anti-Terrorism Act, 1997—Case had been rightly transferred from Anti-Terrorism Court to Sessions Court—Revision application was dismissed accordingly.

2013 PCrLJ 1720 KARACHI-HIGH-COURT-SINDH

BISMILLAH KHAN VS State

6—Act of terrorism, determination of—Scope—Under S.6 of Anti-Terrorism Act, 1997, “terrorism” was determined from the criminal act designed to create a sense of fear or insecurity in the minds of the general public, disturbing even tempo of life and tranquillity of society.

2013 PCrLJ 1720 KARACHI-HIGH-COURT-SINDH

BISMILLAH KHAN VS State

Ss. 23 & 6(2)(e)—Penal Code (XLV of 1860), S. 365-A—Transfer of case from Anti-Terrorism Court to Court of Session—Act of terrorism—Scope—Business dealing between the parties—Kidnapping for payment of a due amount—Accused persons were alleged to have kidnapped the alleged abductee for ransom—Alleged abductee was later recovered by the police—Perusal of F.I.R., statement of alleged abductee under S.161, Cr.P.C. and other material collected during investigation showed that there was a business dealing between the parties, and cheques were issued by the complainant party, which got dishonoured on presentation, therefore, ingredients of S.365-A, P.P.C. were not satisfied from the material collected during investigation—Ordinary crimes like the present one, were not to be tried under the Anti-Terrorism Act, 1997—Anti-Terrorism Court, while dismissing application of accused persons for transfer of case, itself observed that three cheques had been issued by the alleged abductee—Anti-Terrorism Court had no jurisdiction to try the present case—Revision application was allowed with a direction to Anti-Terrorism Court to transfer the case to the Court of Session.

2013 PCrLJ 1259 KARACHI-HIGH-COURT-SINDH

QAISER BALOCH VS State

Ss. 23 & 6(n)—Penal Code (XLV of 1860), Ss. 324, 353, 186, 34—Application for transfer of case from Anti-Terrorism Court to Sessions Court, dismissal of—Act of terrorism—Serious violence against members of the police force—Scope—Accused persons had fired upon a police party with automatic weapons in order to deter them from discharging their official duty—Accused persons submitted an application under S.23 of Anti-Terrorism Act, 1997 before the Anti-Terrorism Court for transfer of case to an ordinary court, however the same was rejected on the basis that it was not essential that police party received injuries during the occurrence but it was enough that they were intimidated from doing their public duty and were refrained from discharging their lawful duties—Validity—Record showed that accused persons had fired upon the police party and deterred them from discharging their official duties—Empties of automatic weapons used by accused persons were recovered from the place of occurrence—Act of accused clearly showed serious violence against members of police force and created terror in the area—Offence clearly fell under S.6(n) of Anti-Terrorism Act, 1997—Anti-Terrorism Court had rightly rejected application of accused persons for transfer of case—Revision petition was dismissed accordingly.

2013 PCrLJ 526 KARACHI-HIGH-COURT-SINDH

EIDAL KHAN METLO VS IMAM ALI alias BALI

Ss. 6, 7 & 23— Penal Code (XLV of 1860), Ss.302/324/353/ 148/149—Anti-Terrorism Court, jurisdiction of—Scope—Attack on a police picket located in a remote area whether an “act of terror”—Scope—Accused persons had allegedly made an assault on a police picket, which resulted in the death of a police official—Police picket was situated in a remote area with no public in its vicinity—Anti-Terrorism Court allowed application of accused under S.23 of Anti-Terrorism Act, 1997 and transferred the case to the Court of Session on the basis that complainant and eye-witnesses had not mentioned that the firing by accused persons created harassment, fear, terror and insecurity in the minds of the public—Legality—While deciding applicability of Ss.6 & 7 of the Anti-Terrorism Act, 1997, the phrase ‘action’ carried more weight than the phrase “designed to”—Place of incident, in the present case, was a police picket which was normally established in an area to ensure safety and security of the people of the area—“Action” i.e. manner of offence, in the present case, was an attack upon the police picket—Such action leads to an alarming situation and impression upon the people that, if police officials and police posts were not safe then what impact would it have on them—Such actions showed that there was lawlessness and the public at large felt serious effects of insecurity, lawlessness and uncertainty as a result—Present case was not one of private vendetta and accused persons deliberately and intentionally assaulted the police picket with deadly weapons—“Action”, taken by the accused persons in the present case, could not be presumed to have remained unnoticed by the locality nor could it be said to be an ordinary offence—Present case was a case of terrorism within the jurisdiction of the Anti-Terrorism Court—Impugned order of Anti-Terrorism Court was illegal and not maintainable—Revision application was allowed accordingly.

2013 PCrLJ 429 KARACHI-HIGH-COURT-SINDH

NIAZ AHMED VS State

Ss. 6, 7 & 23—Application for transfer of case, dismissal of—Terrorism, act of—Proof–Duty of police—Scope—F.I.R. was registered against the accused (Station House Officer) on the allegation that he had illegally detained a person at a private place and at the time of recovery proceedings he used weapons against the raiding Magistrate—Accused was aggrieved of cognizance taken by Anti-Terrorism Court and sought transfer of the same to court of ordinary jurisdiction—Validity—Accused in violation of law kept detenues in illegal custody at private place though he was under legal obligation to act strictly in accordance with law, which prima facie proved that he acted contrary to law hence committed offence of malfeasance by detaining private person in his custody—Accused also caused serious deterrence in legal duty of Magistrate by making direct firing and snatched detenues from the custody of Magistrate—Manner of offences committed by accused was sufficient to hold that prima facie he was guilty of committing serious offence of terrorism—Police officers were always supposed to act in aid of innocence as powers, jurisdiction and authority vested in them was never meant to exploit the same and they had been entrusted sacred duty of creating a sense of security and peace among individuals while creating a sense of terror and fear among criminals—Accused failed to make out a case where interference of High Court was required and he even failed to point out any illegality in the orders passed by Trial Court, which were otherwise legal, well justified and maintained under law— Application for transfer of case was dismissed in circumstances.

2013 MLD 1588 KARACHI-HIGH-COURT-SINDH

SHAHRUKH JATOI VS State

6—Terrorism—Scope—Whether particular act was act of terrorism or not, the motivation, object, design and purpose behind the said act was to be seen and it was also to be seen as to whether the said act had created sense of fear and insecurity in the public or in section of the public or community or in any sect and where action resulted in striking terror or creating fear, panic, sensation, helplessness and sense of insecurity among the people in particular area it amounted to “terror” and such action fell within the ambit of S.6 of the Anti-Terrorism Act, 1997, and shall be triable by Special Court constituted for such purpose.

2013 MLD 1588 KARACHI-HIGH-COURT-SINDH

SHAHRUKH JATOI VS State

Ss. 23, 6, 7 & 8—Penal Code (XLV of 1860), Ss. 302, 354, 109, 216 & 34—Act of terrorism, qatl-e-amd, assault to woman with intent to outrage her modesty, abetment, harbouring offender and common intention—Transfer of case from Anti-Terrorism Court to the court of ordinary jurisdiction—Application for transfer of case of the accused was dismissed by the Special Court—Validity—Offence was committed on the road and by such act of the accused, young boy was shot dead by automatic weapon over petty matter—Act of accused was designed to create sense of fear and insecurity and helplessness in the minds of general public disturbing the tempo of the life and tranquility of the society and provisions of S.6 of the Anti-Terrorism Act, 1997, were attracted and impact of such act terrorized society at large by creating panic and fear in their minds—Presence of personal enmity would not exclude the jurisdiction of Anti-Terrorism Court and neither motive nor intent for commission of offence was relevant for the purpose of conferring jurisdiction on the Anti-Terrorism Court—Act of accused created sense of helplessness and insecurity amongst the people of area where offence was committed and did destabilize the public at large—Present case would fall within the jurisdiction of Anti-Terrorism Court—Order of the Trial Court did not suffer from any material irregularity or illegality and the same was maintained.

2013 MLD 1469 KARACHI-HIGH-COURT-SINDH

MUHAMMAD SHOAIB VS State

Ss. 6(2)(b)(k) & 7(c)(h)—Conviction in absentia—Accused persons against whom conviction had been awarded in absentia; and accused who had been shown absconder, and whose case had been kept on dormant, were not present before the Trial Court—No opportunity whatsoever to defend their case on merits was provided to them—Impugned judgment also did not suggest that accused had deliberately avoided the process of the court, or remained wilfully absent from the court—Conviction awarded to accused persons in absentia, were set aside, and case was remanded to the Trial Court to decide the same after providing them proper opportunity of being heard—Accused persons would surrender before the Trial Court and would attend the court on each and every date—During the trial accused persons would remain on bail; if they would misuse the concession of bail, Trial Court would be at liberty to pass appropriate order in accordance with law.

2013 MLD 1469 KARACHI-HIGH-COURT-SINDH

MUHAMMAD SHOAIB VS State

Ss. 6(2)(b)(k), 7(c)(h), 19(12) & 25—Constitution of Pakistan, Arts.9 & 10—Act of terrorism—Conviction in absentia—Options for accused—Accused had two options in law in case of conviction recorded in absentia; firstly, to approach the Trial Court within the stipulated period with a request to set aside his conviction recorded in absentia, in terms of S.19(12) of the Anti-Terrorism Act, 1997 by showing that he did not abscond deliberately from the court during the trial and secondly to surrender before High Court by filing an appeal under S.25 of the Anti-Terrorism Act, 1997 with a prayer to set aside the conviction awarded in absentia; and to acquit him on merit or to remand the matter to the Trial Court for fresh trial by setting aside impugned judgment.

2013 MLD 1315 KARACHI-HIGH-COURT-SINDH

GHULAM RASOOL alias BHORO VS State

Ss. 302, 324, 337-H(2) & 34—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Qatl-e-amd, attempt to commit qatl-e-amd, causing hurt by rash or negligent act, act of terrorism, common intention—Appreciation of evidence—Complainant had clearly stated that accused present in the court was not the same—Prosecution witness had stated that S.H.O. had fired from his Kalashnikov at the deceased, who died at the spot—Accused did not make any fire at the time of incident—Another prosecution witness had also not implicated accused in the commission of the offence—Remaining evidence was formal in nature and nothing incriminating was recovered from the possession of accused—Eye-witnesses of the incident had not implicated accused in the commission of the offence—Trial Court had failed to appreciate the evidence in accordance with the principle of law—Burden to prove its case beyond reasonable doubt rested on the prosecution, but it had failed to discharge the same—Prosecution having failed to establish its case against accused, conviction and sentence awarded to them by the Trial Court, was set aside and they were acquitted and released, in circumstances.

2013 MLD 1072 KARACHI-HIGH-COURT-SINDH

State VS WAQAR

Ss. 6(2)(k) & 7(h)—Extortion of money (bhatta)—Appreciation of evidence—Accused was alleged to have demanded bhatta from the complainant—Accused was arrested when he came to the house of complainant to collect the bhatta amount—Trial Court convicted and sentenced accused under Ss. 6(2)(k) & 7(h) of Anti-Terrorism Act, 1997—Validity—Complainant was not acquainted with the accused, therefore, it could not be said that accused had come to the house of complainant for a social visit—Record showed that there was no enmity between the complainant and accused—Complainant clearly deposed that accused was constantly calling him and arranged a date and time to collect the bhatta amount from house of complainant—Accused went to the house of complainant on the specific date and time to collect the bhatta amount, as there was no other purpose or reason available with the accused to visit the house of complainant—Due to intervention of people of the locality accused did not succeed in getting the bhatta amount and was apprehended from the spot—Appeal of accused was dismissed in circumstances.

2013 PLD 66 ISLAMABAD

Gen. (R) PERVEZ MUSHARRAF VS State

498—Penal Code (XLV of 1860), Ss. 344/34—Anti-Terrorism Act (XXVII of 1997). Ss. 6(1)(b), 6(2)(b), (g), (i), (m) & 7—Wrongful confinement for ten or more days, common intention, acts of terrorism—Pre-arrest bail, cancellation of—Confinement of Judges of superior Courts—Allegation against the accused, who was a former President of Pakistan and Chief of Army Staff, was that he suspended the Chief Justice of Pakistan and 60 other Judges of superior Courts from their positions and placed them under house arrest for a period of five and half months due to which they were unable to perform their judicial functions—Perusal of F.I.R. clearly suggested that police did not insert the sections of relevant law which were made out from the contents of the F.I.R.—Confining Judges of Superior Courts and stopping them from performance of their duties was an act of terrorism—Prima facie offence under S.7 of Anti-Terrorism Act, 1997 was attracted to the present case—Police was bound under the law to insert the sections of relevant law which contents of F.I.R. suggested—According to investigating officer accused did not join the investigation, rather a telephonic message was conveyed (by him) that material would be provided to court—Such act of accused was defiance of court order and misuse of concession of bail—Accused failed to point out any mala fide on part of police or complainant—Offence alleged fell within the prohibitory clause of S.497(1), Cr.P.C—Accused was also a proclaimed offender and as such could not claim his normal rights—Accused was specifically nominated in the F.I.R. and was also required for further investigation—Act of accused through which Judges of Superior Court(s) were confined to their residencies shocked the entire nation more particularly community of lawyers— Such act of accused spread fear in the society, insecurity amongst judicial officers, alarm in the lawyers community and terror throughout the country—Pre-arrest bail of accused was declined accordingly.

2013 PLD 66 ISLAMABAD

Gen. (R) PERVEZ MUSHARRAF VS State

Ss. 6(1)(b), 6(2)(b), (g), (i), (m) & 7—Act of terrorism—Scope—Confining Judges of Superior Courts and stopping them from performance of their duties—Such an act was an act of terrorism as defined by Ss.6(1)(b), 6(2)(b), (g), (i) & (m).

2013 PCrLJ 1150 Gilgit-Baltistan Chief Court

EHSANULLAH VS State

Ss. 302(b), 324 & 34—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Pakistan Arms Ordinance (XX of 1965), S.13—Qatl-e-amd, attempt to commit qatl-e-amd, common intention, act of terrorism, possessing unlicensed weapon—Appreciation of evidence—Anti-Terrorism Act, 1997 which was a special law, would override the provisions of general law—Offence of murder had been provided in the schedule of said special law, which was punishable with death—Fire shots received by the deceased and injured, were from a high velocity fire-arm and not from a low velocity gun, such as a Repeater—Statements of the prosecution witnesses, the recoveries, the motive and other facts of the murder of deceased and the injuries, sustained by other four persons, had proved case against accused to the hilt—Criminal case under S.13 of Pakistan Arms Ordinance, 1965 was also proved against accused, his conviction and sentence was upheld and murder reference made by the Trial Court to his extent was answered in affirmative—Benefit of doubt was extended to co-accused and their sentence was set aside and they would be released.

2012 SCMR 517 SUPREME-COURT

NAZEER AHMED VS NOORUDDIN

6—Jurisdiction of Anti-Terrorism Court, determination of—Principles—Neither motive nor intention for commission of the offence was relevant for the purpose of conferring jurisdiction on the Anti-Terrorism Court and it was the act which was designed to create sense of insecurity and/or to destabilize the public at large, which attracted the provisions of S.6 of Anti-Terrorism Act, 1997.

2012 SCMR 517 SUPREME-COURT

NAZEER AHMED VS NOORUDDIN

S.6—Constitution of Pakistan, Art. 185(3)—Jurisdiction of Anti-Terrorism Court, determination of—Accused (petitioners) had challenged the order passed by High Court, by which it directed the Investigating Officer to submit challan of accused before the Anti-Terrorism Court—Validity—High Court had examined the material at length and had rightly concluded that the act of the accused created sense of insecurity amongst the villagers and did destabilize the public at large and, therefore, attracted the provisions of S.6 of Anti-Terrorism Act, 1997—Neither motive nor intention for commission of the offence was relevant for the purpose of conferring jurisdiction of the Anti-Terrorism Court and it was the act which was designed to create sense of insecurity and/or to destabilize the public at large, which attracted the provisions of S.6 of Anti-Terrorism Act, 1997—Accused’s act created sense of insecurity amongst the co-villagers—Order of High Court being well reasoned, Supreme Court dismissed accused’s’ petition and refused leave to appeal.

2012 SCMR 59 SUPREME-COURT

AHMED JAN VS NASRULLAH

302—Anti-Terrorism Act (XXVII of 1997), S. 6—Criminal Procedure Code (V of 1898), S. 169—Constitution of Pakistan, Art.185(3)—Qatl-e-amd—Leave to appeal was granted by Supreme Court to consider the contention of accused that case registered against him did not fulfil criteria laid down under S.6 of Anti-Terrorism Act, 1997, for the purpose of trial by Special Judge, as no lethal firearms were used by accused and other persons and it was a usual free fight between two factions, which had taken place at the spur of moment without any previous criminal intimidation; furthermore pistol was used by one accused who had been discharged by prosecution under S.169, Cr.P.C.

2012 SCMR 59 SUPREME-COURT

AHMED JAN VS NASRULLAH

302—Anti-Terrorism Act (XXVII of 1997), S.6—Criminal Procedure Code (V of 1898), S.173—Qatl-e-amd—‘Terrorism’—Assumption of jurisdiction—Scope—Transfer of proceedings—Four accused one armed with pistol, one with knife and remaining with sticks attacked complainant party in consequence of which one person died and one received injuries and the case was transferred to Special Court of Anti-Terrorism for trial—Validity—No motive was alleged in F.I.R. against accused and police after due investigation submitted Challan/report under S.173, Cr.P.C. before Court of Sessions who entrusted to Additional Sessions judge who transmitted it to Special Court established under Anti-Terrorism Act, 1997—Supreme Court directed to transmit the record of case to Trial Court and set aside the judgment passed by High Court—Appeal was allowed.

2012 PLD 122 QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD RASOOL VS State

Ss. 12(1), 6, Third Sched., Cl.(iii)—Jurisdiction of Anti-Terrorism Court—Attempt to commit or aid, or abetment of or any conspiracy to commit any of the offences stated in S.6 of Anti-Terrorism Act, 1997, to be a Scheduled offence, exclusively triable by Anti-Terrorism Court under S.12(1) of the said Act.

2012 PLD 22 QUETTA-HIGH-COURT-BALOCHISTAN

GUL MUHAMMAD VS State

Preamble & S.6(2)(g)—Penal Code (XLV of 1860), S.302(b)—Qatl-e-Amd—“Terrorism”—Allegation of “Siyahkari”—Jurisdiction of Anti-Terrorism Court—Any offence, where the offender would take the law in his own hands and awards punishment, that offence would fall within the purview of Anti-Terrorism Act, 1997—Venue of the commission of a crime, the time of occurrence, the motive and the fact that whether or not said crime had been witnessed by public at large, were not the only determining factors for deciding the issue, whether a case did or did not fall within the parameters of Anti-Terrorism Act, 1997—Crucial question would be whether 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—Accused, in the present case, had committed the murder of three innocent people on the false allegation of ‘Siyahkari’, while taking the law in his own hands, such act certainly would have created a sense of fear, panic and terror amongst the villagers—No licence could be granted to anyone to take the law of the land in his own hands and start executing the culprits himself, instead of taking them to the court of law—Murder based on “Ghairat” did not furnish a valid mitigating circumstance for awarding a lesser sentence—Killing of innocent people, specially the women on to pretext of ‘Siyahkari’ was un-Islamic, illegal and unconstitutional—Under S.6(2)(g) of Anti-Terrorism Act, 1997, in case of unjustified murder by a person, who on account of his immorality or to satisfy his brutal instinct, would take the law in his own hands, was responsible for creating sensation and panic in the society—Offences committed on the pretext of ‘Siyahkari’ would fall within the domain of Anti-Terrorism Act, 1997, and all the cases pending before the ordinary courts would stand transferred to the Anti-Terrorism Courts.

2012 PLD 22 QUETTA-HIGH-COURT-BALOCHISTAN

GUL MUHAMMAD VS State

Ss. 302(b) & 311—Anti-Terrorism Act (XXVII of 1997), Preamble & Ss.6(2)(g), 7(a)—Criminal Procedure Code (V of 1898), S.345—Qatl-e-amd—Tazir after waiver or compounding of right of qisas in qatl-e-amd—Anti-Terrorism Act, 1997 was enacted for prevention of terrorism, sectarian violence and speedy trial of heinous offences-Said Act being a special law, private complainant or the legal heirs of the deceased, had no right to compound the “scheduled offence” as those offences were mainly against the State and not against individuals—Offences could not be compounded automatically by legal heirs, but were always through the court; and the court could decline the permission to compromise the offence by the legal heirs of victim—Even the ordinary courts under S.311, P.P.C., could punish accused, if the offence had been compounded, by the legal heirs, on the basis of “Fasad-Fil-Arz”—Not providing the right to compromise the offence by the legal heirs of deceased, was neither violation of Islamic Injunctions; nor of any fundamental rights.

2012 PCrLJ 178 QUETTA-HIGH-COURT-BALOCHISTAN

Haji ALLAH NAZAR VS SPECIAL JUDGE ANTI-TERRORISM COURT-II, QUETTA

Ss. 6, 7 & 28—Penal Code (XLV of 1860), Ss. 427/109, 447, 147, 148 & 149—Mischief causing damage to the amount of five lac rupees, criminal trespass—Transfer of case to ordinary court—Offences against accused were of simple nature like trespass or damage to a property of the opponent, which were punishable not more than two years—Record had shown that a dispute of personal nature existed between the parties for the determination of ownership of leased area—For cases of terrorism, falling under Ss.6 & 7 of the Anti-Terrorism Act, 1997, there must be not only Scheduled Offence under S.6 of the Anti-Terrorism Act, 1997, but also mens rea for creating intentional sense of terror or fear or insecurity in the society—Cases having background of personal enmity and taking private revenge, did not fall within the ambit of Ss.6 & 7 of the Anti-Terrorism Act, 1997—Special Judge, was not justified to reject application of accused for sending matter to the Court of Sessions Judge—Order of Special Judge was illegal as matter in question was within the domain of the regular courts—Cases were ordered to be withdrawn from the court of Special Judge and transferred to the court of Judicial Magistrate concerned for disposal in accordance with law, in circumstances.

2012 PCrLJ 33 QUETTA-HIGH-COURT-BALOCHISTAN

MICHAEL NAZIR VS State

Ss. 302(b) & 324—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Qatl-e-amd, attempt to commit qatl-e-amd and terrorism—Appreciation of evidence—Prosecution version, seemed to be absolutely true for genuine and valid reasons—Prosecution evidence was consistent, straightforward confidence-inspiring, corroborative to each other and flawless—No ambiguity or doubt was noticed in the prosecution case qua the commission of offence by accused—Medical evidence, recovery of firearm from the possession of accused, positive report of Ballistic Expert, corroborated the ocular account—Accused claimed that he had been booked in the case not because he had committed any offence, but because he had embraced Islam—Stand taken by the defence was not acceptable for the reasons that prosecution evidence had proved the fact that accused had fired upon deceased and injured prosecution witnesses; that as a consequence of the firing made by accused, two persons sustained bullet injuries and died instantaneously, whereas two prosecution witnesses sustained bullet injuries; that motive as set up by the defence, was neither plausible nor probable; that despite weakness of motive, defence had failed to prove the motive so agitated—Stance of defence, in view of overwhelming evidence, baseless, preposterous and nothing more than a cobweb—Accused, in the light of material on record had committed the preplanned, wilful, intentional and cold-blooded murder of two innocent, harmless and helpless persons, beside causing the firearm injuries to two prosecution witnesses—Appeal filed by accused was dismissed, in circumstances.

2012 PCrLJ 33 QUETTA-HIGH-COURT-BALOCHISTAN

MICHAEL NAZIR VS State

Ss. 302(b) & 324—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Qatl-e-amd, attempt to commit qatl-e-amd and terrorism—Sentence, enhancement of—Intention—Scope—Trial Court had proposed lesser punishment on the ground of lack of mens rea—Criminal intention must exist to constitutie a crime—“Intention” did not imply or assume the existence of some previous design or forethought but could be proved by or inferred from the act of accused and circumstances of the case—Continuous firing by accused who was an educated person and fully aware of the consequences of his act, was reflective of his intention—Unprovoked act of firing by accused on the vital part of deceased persons, led to irresistible conclusion that accused intended to cause the death of the victims—Evidence produced by the prosecution was straightforward, confidence-inspiring, cogent, consistent, unimpeachable, unshaken and had brought home the charge against accused to the hilt—Evidence did not suffer from any infirmity—In such state of affairs it was beyond imagination to conclude that no ‘mens rea’ or intention was on the part of accused—Conclusion of the Trial Court regarding non-availability of “mens rea” or lack of intention to commit the murder of deceased persons having no basis and foundation, was rejected in circumstances—No reasons existed which could justify a sympathetic, a lenient or concessional treatment for accused—In absence of any mitigating and extenuating circumstances justifying the imposition of lesser punishment, sentence of life imprisonment awarded to accused was converted to that of death sentence.

2012 MLD 158 QUETTA-HIGH-COURT-BALOCHISTAN

SHER AHMED VS KHUDA-E-RAHIM

Ss. 4 & 5—Penal Code (XLV of 1860), Ss. 302/34—Anti-Terrorism Act (XXVII of 1997), Ss. 3, 6, 13 [as amended by Anti-Terrorism (Amendment) Ordinance (XXXIX of 2011)] & 39(1)—Constitution of Pakistan, Arts. 9 & 199—Constitutional petition—Double murder on allegation of siyahkari—Conviction and sentence awarded to accused on 27-10-1999 by Special Court after his trial in absentia—Order of Sessions Judge suspending such conviction/ sentence and directing fresh trial of accused on his application made in November, 2010 under S. 5-A(7) of Suppression of Terrorist Activities (Special Courts) Act, 1975—Validity—Special Court was not in existence on the date of such application, rather its successor forum i.e. Anti-Terrorism Court established under Anti-Terrorism Act, 1997, was in existence—Suppression of Terrorist Activities (Special Courts) Act, 1975 was repealed vide S. 39(1) of Anti-Terrorism Act, 1997, but acts done under Act of 1975 were given due protection by S. 39(2) of the Anti-Terrorism Act, 1997—Accused had committed double murder on bald allegation of siyahkari in a brutal manner by means of firing with kalashinkov—Such act of accused being a Scheduled offence fell within ambit of S. 6(ii)(g) of Anti-Terrorism Act, 1997 and his case was exclusively triable by Special Court constituted under S. 3 thereof—Neither law nor religion permitted so-called honour killing, which amounted to murder—Such iniquitous and vile act of accused was violative of Art. 9 of the Constitution—Present case was instituted under repealed Act of 1975, whereunder accused could be punished by Judge of Anti-Terrorism Court, if prosecution succeeded to establish his guilt—High Court set aside impugned order and directed Sessions Judge to transmit main case along with such application to concerned Anti-Terrorism Court for its decision in accordance with law.

2012 PCrLJ 154 PESHAWAR-HIGH-COURT

ZAKIR HUSSAIN alias KAMI VS THE STATE through A.-G. KPK

Ss. 6, 7 & 23—Penal Code (XLV of 1860), Ss.302, 148/149—Constitution of Pakistan, Art.199— Qatl-e-amd— Constitutional petition—“Terrorism”—Scope—Transfer of case from Anti-Terrorism Court to court of ordinary jurisdiction—Accused facing trial before the Judge, Anti-Terrorism Court, had sought transfer of case to court of ordinary jurisdiction on the ground that same did not fall under provisions of S.6 of Anti-Terrorism Act, 1997—Application of accused was turned down by Judge, Anti-Terrorism Court—Validity—Very object and purpose behind the promulgation of Anti-Terrorism Act, 1997, was to provide speedy and expeditious mechanism for trial of heinous offences to prevent terrorism and sectarian violence—To attract the provisions of Anti-Terrorism Act, 1997, one had to find nexus of series of acts which accused had allegedly committed—To determine whether act of accused as narrated in the F.I.R. constituted offence of terrorism, was to be examined in the light of the definition of the word, “terrorism” provided in the Act. another determing aspect was whether act had created a sense of fear and insecurity in the public or in any section of public or community—If such ingredients were missing, then the act committed could not be held to be an act of “terrorism” and would be out of the domain of Anti-Terrorism Court—In the present case, matter of missing of the son of complainant was reported by the brother of the complainant—Matter was inquired and case was registered under S.364-A/34, P.P.C. against accused for abduction of minor son of the complainant—On recovery of the dead body, section of law was altered and S.302, P.P.C. was added—Incident appeared to be a brutal murder of a minor boy—Mere brutal murder in absence of requirements of Anti-Terrorism Act, 1997, would not constitute an offence under S.7 of said Act—Element of sense of fear or insecurity in public or a section of public, was also missing—Any case of murder with a story of brutality alone would not make a case triable by Anti-Terrorism Court, for which courts of ordinary jurisdiction were there to deal with—Facts narrated in the F.I.R. having not attracted the provisions of Anti-Terrorism Act, 1997, Anti-Terrorism Court had no jurisdiction to try accused thereunder— Constitutional petition was allowed in circumstances.

2012 YLR 2568 LAHORE-HIGH-COURT-LAHORE

ARSHAD MASIH VS State

497(2) & (4)—Penal Code (XLV of 1860), Ss.302, 148 &149—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7— Qatl-e-amd, rioting armed with deadly weapons—Bail, grant of—Further inquiry—Accused was alleged to have been holding a ‘danda’ at the time of occurrence and allegedly rounded the complainant party and assisted the co-accused in perpetrating the attack—Accused was named in F.I.R. but his mere presence at the spot with no overt act played by him was a factor requiring further probe as to his involvement—Commencement of trial by itself was not a bar to the grant of bail provided facts and circumstances permit as S. 497(4), Cr.P.C was very much clear in stating that bail can be granted even before the pronouncement of the judgment—Accused was enlarged on bail, in circumstances.

2012 YLR 1938 LAHORE-HIGH-COURT-LAHORE

ASRAR AHMED KHAN VS SPECIAL JUDGE, ANTI-TERRORISM COURT, FAISALABAD

Ss. 23, 6, 7 & 8—Penal Code (XLV of 1860), Ss.283/290/291/324/353/435/506/ 186/148/149—Constitution of Pakistan, Art.199—Obstruction in public way, public nuisance, nuisance after injunction to discontinue, attempt to commit Qatl-e-amd, assault or criminal force, mischief by fire or explosive substance, criminal intimidation, obstruction public servant in discharge of public functions, rioting with deadly weapon and unlawful assembly—Constitutional petition—Transfer of case to regular court—Anti-Terrorism Court vide impugned order had refused to transfer the case to regular court—Validity—Accused petitioner and other accused persons while armed with fire-arms had allegedly not only blocked a chowk, but had also made firing and pelted stones on police employees—Astonishingly, none of the police officials or any other member of the District Administration, present at the place of occurrence, had received a single injury—Investigating Officer could not collect any crime empty from the spot—Ten or eleven unknown persons mentioned by complainant as accused had not been brought as accused in the case till date—Sectarian hatred falling within the ambit of S.8(d)(i) of Anti-Terrorism Act, 1997, was not involved in the case of accused and only terrorist activity had been alleged against the persons mentioned in the crime report—Facts of the case in stricto sensu did not attract the provisions of any section of the Anti-Terrorism Act, 1997, including S.6 thereof—Anti-Terrorism Court, therefore, was not justified in rejecting the application of accused moved under S.23 of Anti-Terrorism Act, 1997, especially when while disposing of the bail petition of accused it had been observed that according to the Investigating Officer the case seemed to be doubtful—Impugned order was, consequently, set aside with the direction to Anti-Terrorism Court to transfer the case to ordinary court for its trial afresh—Constitutional petition was allowed accordingly.

2012 PCrLJ 1735 LAHORE-HIGH-COURT-LAHORE

SHEHZAD ASIF RAZA VS SPECIAL JUDGE ANTI-TERRORISM COURT

Ss. 6, 7 & 8—Act of terrorism, determination of—Essentials—In order to determine as to whether the offence would fall within the ambit of S.6 of the Anti-Terrorism Act, 1997, it is essential to look into the allegations levelled in the F.I.R., the record of the case and the surrounding circumstances—Court was also to examine that the ingredients of the alleged offence had nexus with the object of the case as contemplated under Ss.6, 7 and 8 of the said Act—Motivation, object, design and purpose behind the act are also to be seen for determining its nature of terrorism, besides having been created by it a sense of insecurity in the public.

2012 PLD 469 KARACHI-HIGH-COURT-SINDH

HAZOOR BUX VS State

Ss. 6 & 23—Transfer of case sought from Anti-Terrorism court to ordinary court—Accused and co-accused (applicants) were alleged to have trespassed into the complainant’s house in order to steal and on facing resistance they killed the complainant’s father and injured his brother—Application under S.23 of Anti-Terrorism Act, 1997 for transfer of case from Anti-Terrorism Court to ordinary court was dismissed by the Trial Court with the observation that accused persons committed brutal murder which created panic and insecurity in the minds of the people of the vicinity—Validity—Allegation in the F.I.R. was that three persons trespassed into the house of the complainant party in the middle of the night and their ostensible intention was to steal—Accused and co-accused faced resistance which led to firing—No allegation of firing in the air or at the villagers, so as to terrorize them or the community, was put forward—No previous acquaintance existed between the accused persons and the complainant—Present case was simple case of intended theft where one thing led to another and two persons got murdered—No evidence was brought forward to satisfy the requirements of S.6(b) of Anti-Terrorism Act, 1997—Section 6(c) of the Act was not attracted in the present case—Revision application was allowed, impugned order of Trial Court was set-aside and application under S.23 of Anti-Terrorism Act, 1997 was allowed with directions to the Trial court to transfer the case to the Court of Sessions Judge, who might either himself proceed with the case or might transfer it to any Additional Session Judge competent to try the offence.

2012 YLR 2942 KARACHI-HIGH-COURT-SINDH

JEHANGIR VS State

S.497(2)—Penal Code MAT of 1860), Ss. 302/ 324/ 353/ 147/ 148/ 149—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7— Qatl-e-amd, attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, rioting, rioting armed with deadly weapons, unlawful assembly, acts of terrorism—Bail, grant of—Further inquiry—Accused and. co-accused persons were alleged to have fired at a police party which resulted in the death of a police official—Accused was implicated in the case on the basis of identification parade and recovery of weapon—Name of accused did not transpire in the F.I.R.-Identification parade was delayed by about 6 days, which had not been accounted for by the prosecution—During identification parade accused raised the objection that witnesses had seen him many times at the police station during his remand—Such objection of accused was noticed by the Magistrate, therefore, possibility of accused having been shown to the prosecution witnesses before conducting of identification parade could not be ruled out—Weapon was allegedly recovered from accused after about 3 months of the incident and after 7 days of his arrest on his pointation—Recovery of weapon from accused was also doubtful because the F.I.R. showed that all accused persons were armed with Kalashnikovs but weapon allegedly recovered from accused was a pistol- -Challan had been submitted against accused and he was no more required for further investigation—Case against accused required further inquiry and he was allowed bail accordingly.

2012 YLR 1191 KARACHI-HIGH-COURT-SINDH

MUHAMMAD SIDDIQUE VS State

497(2)—Penal Code (XLV of 1860), Ss.324/ 341/ 353/ 337-A(i)/ 435/ 440/ 147/ 148/149/109—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Attempt to commit qatl-e-amd, wrongful restraint, assault or criminal force to deter public servant from discharge of his duty, shajjah-i-khafifah, mischief by fire or explosive substance with intent to cause damage, mischief committed after preparation made for causing death or hurt, rioting, rioting armed with deadly weapons, unlawful assembly, acts of terrorism—Bail, grant of—Further inquiry—Allegation against accused persons of forming a mob and resorting to vandalism while protesting for the release of some criminals—Contentions of accused persons were that other accused persons nominated in a different F.I.R., which emanated from the present F.I.R., had been released on bail; that neither any specific role was assigned to them nor any weapons had been recovered from them, and that prosecution had no medical evidence to connect the accused persons with the crime—Validity—Allegations against accused persons were general in nature and no recovery of weapons had been made from them—No medical report had come on record—Prosecution did not contest the grounds raised by the accused in the present bail application—Case under section 497(2), Cr.P.C. had been made out and accused persons were enlarged on bail.

2012 PCrLJ 1438 KARACHI-HIGH-COURT-SINDH

MUHAMMAD AYOOB VS State

Ss. 4 & 5—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7(b)—Attempt to cause explosion, making or possessing explosive, and act of terrorism—Appreciation of evidence—Accused was already in custody since 3rd October, 2002 and alleged arms and ammunition were said to have been produced by him after a delay of 12 days which also made the recovery highly doubtful—Accused had juxtaposed his case in the Trial Court and was able to prove the mala fides of the Police that just to teach lesson to the family, both the brothers were booked in the false case, and showed the gravity of the crime foisted upon them; the hand grenade, fuses of rocket launcher and KK with 20 live bullets by arresting and showing them terrorists—Father of accused succeeded in getting the possession of his plot from Police forgetting that it was a Police Station and ordinary citizens in such circumstances had to face the consequences—Arms and ammunition, were not sealed at the spot and Police produced the property in the Trial Court in unsealed condition—Investigating Officer had also admitted in cross-examination that the K.K. was without number, in such circumstances, besides the other contradictions that the complainant had mentioned in the F.I.R. and the memo of seizure that the arms were secured from the open plot in front of the house of accused, but mashirs deposed otherwise, which spoiled the case of the prosecution—Where the prosecution itself had failed to prove its case, impugned judgment resulting in 7/8 years’ R.I. for accused, was sheer mockery and amounting to slaughtering the innocent citizens—Prosecution having failed to prove its case, against accused, impugned judgment was set aside, accused was acquitted and released, in circumstances.

2012 PCrLJ 1342 KARACHI-HIGH-COURT-SINDH

BAKSHOO VS State

Ss. 6, 7 & 8—“Terrorism”—Essential ingredients—In order to determine as to whether an offence would fall within the ambit under S.6 of Anti-Terrorism Act, 1997, it would be essential to have a glance over the allegations made in the F.I.R., record of the case and surrounding circumstances; it was also necessary to examine whether the ingredients of alleged offence had any nexus with the object of the case as contemplated under Ss.6, 7 & 8, Anti-Terrorism Act, 1997—Whether a particular act was an act of terrorism or not, the motivation, object, design or purpose behind said act, and whether the said act had created a sense of fear and insecurity in the public, or any section of public or community or in any sect was to be seen—Striking of terror was sine qua non for the application of the provisions as contained in S.6 of Anti-Terrorism Act, 1997, which could not be determined without examining the nature, gravity and heinousness of the alleged offence.

2012 MLD 1986 KARACHI-HIGH-COURT-SINDH

MOAZZAM alias MOAZZAN VS State

497—Penal Code (XLV of 1860), Ss. 365-A & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Kidnapping or abduction for extorting property, valuable security etc., common intention, acts of terrorism—Bail, grant of—Accused and co-accused persons allegedly abducted the complainant’s son (abductee) for ransom—Abductee was voluntarily released and recorded his statements under Ss.161 & 164, Cr.P.0 on basis of which accused was arrested—Name of accused did not transpire in the F.LR.—Abductee did not disclose the name of accused in his statements under Ss. 161 & 164, Cr.P.C—No identification parade was conducted—No incriminating article was recovered from possession of accused- No ransom had been paid to anyone—Only piece of evidence against accused was statements of prosecution witnesses under S. 161, Cr. P. C whereby they implicated the accused—Said statements under S. 161, Cr. P. C could be considered at time of trial as they had no evidentiary value at bail stage—Challan against accused had been submitted and he was no more required for further investigation—Accused was allowed bail in circumstances.

2012 PLD 38 ISLAMABAD

BASHIR MASIH VS State

497—Penal Code (XLV of 1860), S. 379—Anti-Terrorism Act (XXVII of 1997), Ss. 6(2) & 7—Theft, acts of terrorism—Bail, refusal of—Theft of gas—Illegal connection with main supply pipeline—Accused had allegedly made illegal connection with the main gas pipeline and was supplying gas to households in the area in return of a fixed monthly bill—Bail application of accused had been dismissed twice by Trial Court—On application of the accused’s mother, re-inquiry of the case was conducted, after which three sections of P.P.C were deleted from F.I.R. and only S.379, P.P.C remained—Accused applied for bail again, after said deletion of sections but his bail application was refused—Validity—Damaging supply line of a national resource/asset in connivance with officials of the Government department, thereby causing huge loss, was not an ordinary offence, rather it was serious in nature and grievous in consequence—Case against accused was a delicate and sensitive matter and came within the definition of a terrorist act, attracting the provisions of S.7 of Anti-Terrorism Act 1997—Bail petition of accused was dismissed.

2012 PLD 38 ISLAMABAD

BASHIR MASIH VS State

Ss. 6(2)—Penal Code (XLV of 1860), S. 379—Theft—Illegal connection with main supply pipeline—Word “disrupt” occurring in S.6(2)(i), Anti-Terrorism Act, 1997 is synonymous to word ‘disorder’, ‘distract’, interfere with’ ‘upset’, ‘abstract’, ‘distort’, ‘damage’, ‘sunder’ etc.

2011 PLD 997 SUPREME-COURT

WATAN PARTY VS FEDERATION OF PAKISTAN

Ss. 386, 387 & 388—Anti-Terrorism Act (XXVII of 1997), S.6(1)(k)—Offences of extortion of money, which can also be considered as bhatta, is covered by Ss.386, 387 & 388 of P.P.C. and falls within definition of “terrorism” given in S.6(1)(k), Anti-Terrorism Act, 1997—Such crime can be controlled by applying said laws strictly.

2011 SCMR 1665 SUPREME-COURT

HABIBULLAH VS State

10(3)—Penal Code (XLV of 1860), Ss. 354-A & 452—Anti-Terrorism Act (XXVII of 1997), S. 6(b)—Zina-bil-Jabar, assault or use of criminal force to woman and stripping her of her clothes and house trespass—Reappraisal of evidence—Solitary statement of prosecutrix—Marks of violence, absence of—Accused was convicted and sentenced by Trial Court for imprisonment for 20 years and the same was maintained by High Court—Contention of accused was that there were no marks of violence found on the body of prosecutrix, therefore, benefit of doubt should be extended to him—Validity—Veracity of prosecutrix’s statement was the inherent merit of her statement because corroborative evidence alone could not be made a base to award conviction—Contention of accused was in oblivion of thy’ fact that rape was proved on the basis of cogent and concrete evidence including medical evidence—Marks of violence were not essential to establish factum of Zina-bil-Jabar—Supreme Court after keeping defence version in juxtaposition, declined to take into consideration the same as it was baseless—Merely on the basis of a petty matter nobody would like to stigmatize her innocent daughter for her entire life which would have a substantial bearing on her future—Supreme Court declined to interfere in the conviction and sentence awarded to accused by the Courts below—Appeal was dismissed.

2011 SCMR 1644 SUPREME-COURT

Syed ARSHAD ALI SHAH BUKHARI VS State

497(2)—Penal Code (XLV of 1860), Ss. 324/392/395—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Attempt to commit Qatl-e-Âamd, robbery and dacoity—Bail, grant of—Case of further inquiry—“Robbery” and “Dacoity”—Distinguished—Innocence of co-accused—Stolen property, non-recovery of—Four out of eight accused persons nominated in F.I.R. were declared by investigating agency to be innocent, reducing number of culprits to less than five, thus instead of S. 395, P.P. C., only S. 392, P.P. C. could be attracted—Even provision of S. 392, P. P. C. did not find support from the circumstances as it had been alleged in F.I.R. that some mobile phone sets were snatched away by culprits from two members of police party but during investigation no such mobile telephone sets had been recovered—No independent proof of any violence against any member of police force endangering life or property of any member of police force was available—Prima facie it was doubtful at bail stage as to whether provisions of S.6 read with S. 7 of Anti-Terrorism Act, 1997, were attracted or not—Bail was allowed.

2011 MLD 950 QUETTA-HIGH-COURT-BALOCHISTAN

AZIZULLAH VS State

Ss. 6, 7 & 28—Penal Code (XLV of 1860), Ss.302(b)/34 & 324—Qatl-e-amd and attempt to commit qatl-e-amd—Terrorism—Transfer of case front court of ordinary jurisdiction to court of Special Judge, Anti-Terrorism Court—Application for—Case was sought to be transferred from the files of Sessions Judge to court of Special Judge, Anti-Terrorism Court, on the grounds that accused were absconding; that the offence had been committed on main road; that incident had created severe fear and panic in the area and that the offence was an act of terrorism and fell within the ambit of Anti-Terrorism Act, 1997—Validity—Offence alleged to have been committed by accused persons, was with the motive to kill the victims by firing with Kalashnikov—Act was committed on a highway on basis of past enmity existed between both the parties as per contents of F.I.R. —Intended action though had caused loss of life and caused hurt, but only that fact would not constitute an offence to bring same within the purview of terrorism and it was to be established, that alleged act created any sense of insecurity in general; or even to a particular section of society; or threat or sense of fear had been created due to the same—In the present case, though one person had lost his life and other sustained serious injuries, but ingredient required for forming an offence under S.6 of Anti-Terrorism Act, 1997, which was intimidation or overawe, either the government or section of public, was missing—Application for transfer of case was dismissed, in circumstances.

2011 YLR 2330 LAHORE-HIGH-COURT-LAHORE

JAHANGIR VS State

376—Anti-Terrorism Act (XXVII of 1997), Ss.6/7—Rape and terrorism—Appreciation of evidence—Sentence, reduction in—Examination-in-chief of both eye-witnesses had made it clear that their statements on the vital dimensions of prosecution case i.e. time and place of occurrence, nomination of accused, particular attribution of commission of rape with minor victim, were in line and corroborative to each other—Both the witnesses had furnished probable and plausible reasons of their presence at the time and place of occurrence—Testimony of both the witnesses bore intrinsic value and inherent worth of truthfulness and were safely reliable—Despite searching cross-examination upon both the witnesses, nothing material elicited in favour of the offence—Medical evidence produced by the prosecution, had furnished sufficient corroboration to the ocular account—Accumulating appraisal of the confidence inspiring ocular account having corroboration of the medical evidence, had led to conclusion that prosecution had sufficiently established the charge of commission of rape with minor victim against accused—Subsequent conduct of accused in fleeing away from the place of occurrence along with his shalwar having sight of the witnesses, also indicated his guilt—Charge under S.7(1) of Anti-Terrorism Act, 1997, both the witnesses had not uttered even a single word in their examination-in-chief with regard to striking off any panic, terror, fear or insecurity in the public or locality in result of the alleged occurrence—Single statement of one witness that after the incident of molestation there was panic all around the area, was neither reliable nor confidence inspiring—Said solitary statement of the witness lacking inherent worth without any further corroboration was totally insufficient to prove the charge that alleged occurrence resulted into striking terror, fear or sense of insecurity among the public in the relevant vicinity attracting S.7(1) of the Anti-Terrorism Act, 1997—Provisions of Ss.6/7 of Anti-Terrorism Act, 1997, being not attracted at all in the peculiar circumstances of the case, to that extent appeal of accused was accepted and accused was acquitted in the charge under S.7(1) of Anti-Terrorism Act, 1997—Arraignment of accused in the charge under S.376, P.P.C. had been established to the hilt—Defence side had failed to create any dent or doubt in the prosecution evidence with any speck of material—No reason existed to take exception to the conviction of accused under S.376, P.P.C. as judged by the Trial Court—Accused was unmarried young person aged about 24 years, having no criminal history of involvement in any case of like nature—Since accused was not a habitual offender, chances of his rehabilitation, could not be ruled out—Keeping in view the tender age of accused with genuine hope that he could come up as a useful member of the society, taking lenient view, maintaining his conviction under S.376, P.P.C. his sentences were modified and reduced to 20 years R.I., accordingly.

2011 YLR 2330 LAHORE-HIGH-COURT-LAHORE

JAHANGIR VS State

Ss. 6 & 7—‘Terrorism’—Ordinary criminal assault and physical violence to a victim would not fall within the purview of ‘terrorism’ as defined in S.6 of Anti-Terrorism Act, 1997—To take cognizance under the Act, it would remain incumbent upon the court to examine impact of alleged violence and also to see as to whether alleged criminal act was designed to create a sense of terror, fear and insecurity in the mind of general public creating panic in the society—Existence of said parameters, was vital to bring the offender within the purview of the offences under Anti-Terrorism Act, 1997.

2011 YLR 19 LAHORE-HIGH-COURT-LAHORE

TARIQ HAKIM VS State

S.6— ‘Terrorism’— Words “designed to”—Connotation—Words “designed to” used in S. 6 of the Anti-Terrorism Act, 1997, means the object, motive or purpose behind the act and not the consequential effect created by such act.

2011 YLR 19 LAHORE-HIGH-COURT-LAHORE

TARIQ HAKIM VS State

Ss. 302/324/34—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 23—ConstituÂtion of Pakistan, Art. 199—Qatl-e-amd, attempt to commit qatl-e-amd and act of terrorism—Constitutional petition—Anti-Terrorism Court had dismissed the application of the accused petitioner moved under S.23 of the Anti-Terrorism Act, 1997 for transfer of the case to the court of ordinary jurisdiction—Validity—Complainant had stated in the F.I.R. that the assailants after identifying his brother had made firing on his vehicle, which showed their clear intention to do away with only his brother and not the others who could not be saved due to their accompanying with the target of assailants in the same vehicle-Although the F.I.R. did not reflect the names of the accused persons, yet the incident was the result of enmity and personal vendetta, as was apparent from the supplementary statement made by the complainant before the police, wherein he had categorically narrated all the facts clearly suggesting that the incident had taken place due to previous enmity—Occurrence in the case had neither reflected any act of terrorism, nor any sectarian matter, instead the murders had been committed owing to previous enmity between the parties—Occurrence, therefore, could not in any manner be declared falling within the ambit of S. 6 of the Anti-Terrorism Act, I997—Anti-Terrorism Court had committed an illegality while passing the impugned order assuming the jurisdiction to try the offences—Impugned order was consequently set-aside and the case was transferred to the court of ordinary jurisdiction for trial in accordance with law—Constitutional petition was allowed accordingly.

2011 YLR 19 LAHORE-HIGH-COURT-LAHORE

TARIQ HAKIM VS State

Ss. 6, 7 & 8—Determination as to whether an offence falls within the ambit of S.6, Anti-Terrorism Act, 1997—Guide lines—Motive and object both make a path for guideance in order to determine whether the offence falls within the domain of Anti-Terrorism Act or not—Section 6 of the Anti-Terrorism Act, 1997 reflects two words, namely, “designed to” and “action” and from the interpretation of both these words one can draw an inference that whether the offence falls within the ambit of terrorism or not—Intention of the Legislature is very much clear from the words “designed to” and “action” and both the words have great impact on each other in order to constitute an action as act of terrorism—From the meaning of simple word “action” it is very different to deduct that the action of a person was an act of terrorism without the word “designed to” which means object behind the action—If the brutality of the act of a person is declared terrorism, then every murder case will fall within the definition of terrorism, as seen from any angle the murder is always committed in a brutal manner—Definition of terrorism, thus, is incomplete without the words, “designed to” which means the object, motive or purpose behind the act and not the consequential effect created by such act.

2011 PCrLJ 1004 LAHORE-HIGH-COURT-LAHORE

AMEER HUSSAIN VS State

Ss. 6 & 7(h)—Penal Code (XLV of 1860), S. 149—Act of terrorism—Scope—To bring an offence within the ambit of terrorism, it was necessary that threat was used to design to coerce and intimidate or overawe the government, public, community or sect; or if the act was made to create a sense of fear or insecurity in society or the purpose was to advance a religious, sectarian or ethnic cause; and the action involved firing or serious risk to safety of Public; or to frighten the general public by burning vehicles etc., or extortion of money (Bhatha); or the threat was designed to serious interfere with or seriously disrupt communication system; or public utility service; or it involved serious coercion or intimidation of a public servant in order to force him to discharge or to refrain from discharging his lawful duty; or involved serious violence against a member of the Police force or public servant—Prosecution story in the present case was that accused persons were fighting with each other and prosecution had not claimed that accused were disrupting any communication system or were violent against the Police force; or any public servant present at the place of occurrence; or that panic had been created at the spot resulting into sense of insecurity among the public—Accused were not armed with any kind of weapon at the time of occurrence-Accused in circumstances, could not be presumed to be in a position to use threat in order to create panic or sense of fear or insecurity in the society at large, it could not be termed as terrorism—Even an action which resulted into some terror, could not be equated with terrorism, while it was not intended so, because an action would amount to terrorism, if it was projected with the mens rea of creating panic or insecurity—Parties had come to persue their matters, pending before the High Court; as it appeared that at the spur of moment something happened culminating fight between them, which was not premeditated, nor its object was designed to create fear and insecurity in the society at large; or any community for that matter—Accused had not committed the offence falling within the ambit of S.7(h) of Anti-Terrorism Act, 1997, in circumstances.

2011 YLR 2929 KARACHI-HIGH-COURT-SINDH

SHERAL VS SAJAN alias SAJOO

S.526—Penal Code (XLV of 1860), Ss. 302/324/337-H(2)/452/147/148/149—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7, 12 & 23—Qatl-e-amd, attempt to commit qatl-e-amd, causing hurt by rash and negligent act and trespassing—Application for transfer of case from the Sessions Court to Anti-Terrorism Court—Case was sought to be transferred by the appellant/complainant on the ground that offence for which F.I.R. had been filed, was a heinous offence and fell under the definition of scheduled offence, which could only be tried-under S.12 of Anti-Terrorism Act, 1997 by the Anti-Terrorism Court—Crime allegedly committed by the respondents/accused, being heinous, was enough to. create a sense of insecurity and panic in the minds of all sections of general public and terrorize the minds of all the persons who learnt about the same—Offence- in the cases fell within the ambit of Ss.6 & 7 of the Anti-Terrorism Act, 1997 and the right forum to adjudicate the offence, was the Anti-Terrorism Court and not the Sessions Court—Transfer application was allowed and Sessions Judge was directed to immediately transfer the case to Anti-Terrorism Court which was directed to conduct the proceedings of the case expeditiously.

2011 YLR 2300 KARACHI-HIGH-COURT-SINDH

GHULAM MURTAZA JAMALI VS State

497(2)—Penal Code (XLV of 1860), Ss.384, 109 & 34—Anti-Terrorism Act (XXVII of 1997), S. 6(1)(k)-Extortion and terrorism—Bail, grant of—Further inquiry—Names of Mashirs did not appear in the very F.I.R. in which the complainant was shown to have proceeded from Police Station to the place of alleged incident as per the directions of the Police—No Mashirnama was prepared at the spot in respect of the recovery of the cash allegedly received by accused and recovered from his possession—Mashirnama in question had shown that accused was first taken from the spot towards the Police Station where such Mashirnama was prepared—Complainant also admitted on a query that both Mashirs were his subordinates—Alleged demand of “Bhatta” made by accused from the complainant on Mobile Phone, also needed further inquiry—Accused being entitled to the concession of bail, was admitted to bail, in circumstances.

2011 YLR 655 KARACHI-HIGH-COURT-SINDH

MUHAMMAD SHAHID HANIF VS State

302(a)/34—Anti-Terrorism Act(XXVII of 1997), Ss.6(1)(c), 6(2)(a) & 7(a)—West Pakistan Arms Ordinance (XX of 1965), S.13(d)—Qatl-e-amd, terrorism and possession of arms—Appreciation of evidence—Benefit of doubt—Confessional statements of accused persons were recorded after a delay of more than 10 days and prosecution had failed to explain said inordinate delay in recording the same—Confessional statements were not corroborated by any independent evidence—Confessional statements of accused were recorded after 8 days of the Identification Parade, which appeared to be not voluntary and true and also generated doubt in the prosecution case—Witnesses had not assigned any role to any of accused at the time of identification parade, which had created doubt in the prosecution case—Recoveries as alleged were effected in presence of two persons, but the prosecution had failed to examine the said two persons—Non-examination of the private witnesses also had created serious doubt in the prosecution case—Recoveries, in circumstances were doubtful—Two prosecution witnesses were chance witnesses and no person from the locality was examined by the prosecution, while they were available—Complainant had not given the names of two prosecution witnesses in his statement under S.154, Cr. P. C. —Evidence of said witnesses could not be taken into consideration, in circumstances—Evidence on record did not satisfy accepted requirements of safe administration of criminal justice—Accused, in circumÂstances, were entitled to benefit of doubt–Impugned judgment of court below was set aside, accused were acquitted of the charge and were released, in circumstances.

2011 PCrLJ 1424 KARACHI-HIGH-COURT-SINDH

MUHAMMAD SHAFI alias PAPAN VS State

365-A—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Abduction for extorting property, valuable security etc. and terrorism—Appreciation of evidence—Recovery of alleged abductee, itself appeared to be doubtful in view of glaring contradictions and discrepancies available in the evidence of two prosecution witnesses—Prosecution, in circumstances, had not proved the case against accused—Main charge was against father of alleged abductee who was a natural guardian, but he was acquitted by the Trial Court, on whose alleged pointation alleged abductee was recovered—Trial Court had found that no direct evidence was available on record to connect the father and his co-accused with the commission of offence—Accused was convicted due to circumstantial evidence on the sole ground that alleged abductee was recovered from his otaq, which was totally doubtful in view of evidence of two prosecution witnesses—Mother of alleged abductee never appeared in the court despite bailable warrants, for recording evidence who received telephonic calls from the kidnappers for the demand of ransom—Father could not be held liable for kidnapping his own son being a natural guardian—Prosecution having failed to prove its case against accused beyond reasonable doubt; impugned judgment was set aside and accused was acquitted of the charge and was released, in circumstances.

2011 PCrLJ 1370 KARACHI-HIGH-COURT-SINDH

NOORUDDIN VS NAZEER AHMED

Ss. 6 & 7—“Terrorism”—Meaning and applicability—Word ‘Terrorism’, inter cilia would mean the use or threat of action, where use or threat was designed to coerce and intimidate or overawe the government or the public; or a section of public or community; or sect or create a sense of fear or insecurity in society; and would create a serious risk to safety of the public or a section of public; or was designed to frighten the general public and thereby prevent them from coming out and carrying on their lawful trade and daily business; and disrupt civil life—Section 6 of Anti-Terrorism Act, 1997 has its own independent applicability and interpretation and all acts of `terrorism’ in relation thereto were to be seen on the touchstone of S.6 which has provided and defined in detail the meaning of ‘terrorism’—Legislature has neither provided any immunity nor relaxation that in case of previous enmity the case would not be tried by the Anti-Terrorism Court, but again the criteria to judge was the gravity of offence; and its modus operandi, whether it created a sense of fear or insecurity in the society; and created a serious risk to safety of the public or a section of the public; or was designed to frighten the general public; and thereby prevent them from coming out and carrying on their lawful trade and daily business; and disrupt civil life—Striking off terror was sine qua non for the application of provisions of S.6 of Anti-Terrorism Act, 1997 which could not be determined without examining the nature, gravity and heinousness. of the alleged offence, contents of F.I.R., its cumulative effect on the society or a group of persons— “Terrorism ” would mean the use or threat of “action” where the action would fall within the meaning of subsection (2) of S.6 of Anti-Terrorism Act, 1997; and would create a serious risk to the safety of the public; or a section of the public; or was designed to frighten the general public—Such action would amount to ‘terrorism’ as enumerated in S.6 of Anti-Terrorism Act, 1997.

2011 PCrLJ 1370 KARACHI-HIGH-COURT-SINDH

NOORUDDIN VS NAZEER AHMED

Ss. 6 & 7—Penal Code (XLV of 1860), Ss. 302, 147, 148 & 149—West Pakistan Arms Ordinance (XX of 1965), S.13(d)—Criminal Procedure Code (V of 1898), S.561-A—Qatl-e-amd, terrorism and possessing unlicenced arms—Quashing of order, application for—Police, after conducting investigation submitted challan in Anti-Terrorism Court for trial, but Judge vide impugned order returned the police papers to Investigating Officer for submitting challan before the court having jurisdiction as according to opinion of Judge, Ss. 6 & 7 of Anti-Terrorism Act, 1997 did not attract in the case—Validity—While deciding, whether challan was to be entertained or not, Trial Court had failed to consider the true perspective of S.6 of Ant-Terrorism Act, 1997 and in a slipshod manner returned the challan on the effortless notion that it was a case of previous enmity, which was not the sole criterion to decide—Had the court while passing the impugned order considered the gravity and seriousness of the violent act and atrocity, it might have expressed the different view—In order to find out the severity of charge, whether S.6 of Anti-Terrorism Act, 1997 would apply or not, it was expedient to look into the allegations levelled in the F.I.R. by the complainant—Depiction of incident had clearly deduced and figured out that three persons had been murdered brutally in the daylight at the shop situated in the market—Shop was bolted from inside, even then accused persons had climbed on the roof of the shop and broken the roof and viciously murdered three persons—All accused persons were alleged to have made heavy aerial firing to create harassment and terrorism—Three persons had been brutally murdered in the daylight in the shop situated in the market, had an overall impact of creating a sense of fear or insecurity in the society; and risk to safety of the public and frightened the general public, thereby preventing them from coming out and carrying on their lawful trade and daily business and disrupted civil life—Applicant had attached the photos of broken roof of the shop and the bodies of victims lying at the hospital which portrayed dreadful and terrible state of affairs; and the niceties of incident committed in a manner which unquestionably and undoubtedly amounted to terrorism as enumerated in S.6 of Anti-Terrorism Act, 1997—Impugned order was set aside with the direction to Investigating Officer’ to submit the challan in the Anti-Terrorism Court concerned.

2011 PCrLJ 411 KARACHI-HIGH-COURT-SINDH

MUHAMMAD BILAL alias SULLEMAN VS FEDERATION OF PAKISTAN through the Secretary Ministry of Law, Justice and Human Rights Division

Ss. 6(2)(d), 6(2)(ee), 7(b)(ff), 17, 23 & 25—Penal Code (XLV of 1860), S.507—Telegraph Act (XIII of 1885), S.25-D—Constitution of Pakistan, Art.199—Constitutional petition—Trial by Anti-Terrorism Court—Scope—Act of terrorism likely to cause death or endanger a person’s life, act of terrorism that involves use of explosives by any devise including bomb blast, criminal intimidation by anonymous communication—Accused contended that Anti-Terrorism Court was not competent to convict him of non-scheduled offence as provisions of S.17 of Anti-Terrorism Act, 1997 were not attracted in his case—Validity—Offences under S.6(2)(d) and S.6(2)(ee) of Anti-Terrorism Act, 1997 were not proved against the accused—Only offence proved against accused was that of criminal intimidation under S.507, P.P.C. which was not a scheduled offence—Anti-Terrorism Court was empowered to try a non-scheduled offence only along with/in addition to scheduled offence(s) at the same trial under S.17 of Anti-Terrorism Act, 1997 which did not empower an Anti-Terrorism Court to try non-scheduled offence when said court was not trying a scheduled offence—Under S.23 of Anti-Terrorism Act, 1997 Anti-Terrorism Court was bound to transfer the case of non-scheduled offence to any court having jurisdiction to try such offence—Once Anti-Terrorism Court had formed the opinion that the only offence proved against the accused was criminal intimidation under S.507, P.P.C., the court should not have proceeded to convict the accused of the offence as S.23 of Anti-Terrorism Act, 1997 did not confer jurisdiction on said court to pass judgment on non-scheduled offence—Mere commencement of trial was not a ground to decline transfer of case under S.23 of Anti-Terrorism Act, 1997—Impugned judgment being. without jurisdiction and nullity in the eyes of law, could not be maintained—Constitutional petition was, therefore, converted into special Anti-Terrorism-appeal–No limitation would run against the judgment of Anti-Terrorism Court on the ground that such judgment was passed without jurisdiction—Appeal was allowed; impugned judgment was set aside and case was remanded to the Anti-Terrorism Court for transfer to the Court of Session for trial in accordance with law.

2011 MLD 1212 KARACHI-HIGH-COURT-SINDH

Dr. SOHRAB KHAN VS SPECIAL JUDGE, ANTI-TERRORISM COURT

498—Penal Code (XLV of 1860), Ss.324/147/148/149 & 425—Anti-Terrorism Act (XXVII of 1997), Ss.6/7—Attempt to commit qatl-e-amd, mischief—Pre-arrest bail, grant of—Only allegation against accused in the F.I.R. was that he was found present at the place of incident, beyond that nothing was alleged against him—Other 17 co-accused named in the same crime had already been granted bail—Accused, in circumstances, was not only entitled to grant of bail on merits, but also on the rule of consistency—Interim pre-arrest bail already granted to accused, was confirmed, in circumstances.

2011 PCrLJ 1022 Gilgit-Baltistan Chief Court

ASADULLAH alias SHAKIRULLAH VS State

Ss. 302/337-A/337-11/440/34/109/114—Anti-Terrorism Act (XXVII of 1997), Ss. 6, 7/21-C(7)(f), 21-F, 21-G & 23—Juvenile Justice System Ordinance (XXII of 2000), Ss.4 & 14—Qatl-e-amd, causing Shajjah, rash or negligent act and mischief-Application for transfer of case from Anti-Terrorism Court to Juvenile Court—Contention of accused was that he being minor, could only be tried by court specially constituted under Juvenile Justice System Ordinance, 2000, irrespective of the charge under Anti-Terrorism Act, 1997—Deputy Advocate General had submitted that mere juvenility of accused who was charged under Ss. 6 & 7 of Anti-Terrorism Act, 1997 coupled with other charges of P.P. C., could not take away the jurisdiction of a court constituted under Anti-Terrorism Act, 1997 having exclusive jurisdiction over the charges of Anti-Terrorism Act, 1997—Anti-Terrorism Act, 1997, which was a special law was enacted for the trial of the scheduled offences provided under the said Act—Juvenile Justice System Ordinance, 2000 was also a special law and was for trial of special class of offenders defined thereunder, and said Ordinance provided exclusive jurisdiction to court constituted thereunder in a case where an accused was below the age of 18 years—Said Ordinance being later law, had further provided that its provisions would not be in derogation of any law, but would be in addition to laws prevailing at the moment when said Ordinance, was promulgated—Anti-Terrorism Act, 1997 was enforced in 1997, much prior to the Juvenile Justice System Ordinance, which was promulgated, in 2000—Later law/Juvenile Justice System Ordinance, 2000, in circumstances, would never affect provisions of Anti-Terrorism Act, 1997—Section 14 of Juvenile Justice System Ordinance, 2000 had strengthened the view that the court constituted under Anti-Terrorism Act, 1997 had jurisdiction over the scheduled offence, irrespective of any limit of age or any other class of offenders—Section 21-G, which was latest insertion in Anti-Terrorism Act, 1997, had overriding effect over all the related provisions and provided exclusive jurisdiction to the court constituted under Anti-Terrorism Act, 1997 over the offence defined in said Act by an offender including a child/minor.

2011 PCrLJ 389 Gilgit-Baltistan Chief Court

NAVEED HUSSAIN VS State

302(b)—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 21-H—West Pakistan Arms Ordinance (XX of 1965), S.13(d)—Qatl-e-amd, terrorism and possession of arms—Appreciation of evidence—Identification of accused immediately after the occurrence being not possible, his name did not appear in the F.I.R.—Substitution of two empty shells, was not possible which was found from the scene and were sealed in the presence of witness for onward transmission—Statements of witnesses recorded under S.161, Cr.P.C. as well as the statements recorded by competent Judicial Magistrate under S.164, Cr.P.C., did not suffer from any defect—All the possible legal formalities were completed before recording of such statements—Such statements were voluntary and true—Identification parade was conducted by a very competent and impartial Assistant Commissioner fulfilling all the formalities of the identification parade in presence of witnesses, who deposed in favour of the prosecution and their statements had not been shattered by the defence—Such fact had provided strong inference against accused and proved the case against him and said piece of evidence was a strong link in the commission of offence—Defence had failed to bring on record any circumstances whereby it could be considered that accused had been involved in the case due to mala fide intention other than the motive put forward by the prosecution—Prosecution had succeeded in establishing the guilt of accused—Judgment of conviction and sentence passed against accused was based on fact; and nothing was available to indicate that judgment passed by the Trial Court was based on any error of law or was opposed to well established principles of judicial approach; or it could in any manner be characterized as unjustified—Sentence of death was rightly and carefully awarded to accused, which did not admit of any interference by Chief Court.

2011 PCrLJ 389 Gilgit-Baltistan Chief Court

NAVEED HUSSAIN VS State

302(b)—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 21-H—West Pakistan Arms Ordinance (XX of 1965), S.13(d)—Qatl-e-amd, terrorism and possession of ‘ arms—Appreciation of evidence—Confessional statement of accused—After the amendment in S.21-H of Anti-Terrorism Act, 1997 whereby a proviso had been added to the section, legislature had made it mandatory that statement under said section would be admissible in evidence, which had to be read with the provision of S.6 of Anti-Terrorism Act, 1997.

2011 PCrLJ 370 Gilgit-Baltistan Chief Court

ISHTIAQ VS State

Ss. 302/324/34—Anti-Terrorism Act (XXVII of 1997), Ss. 6/7/21-H—West Pakistan Arms Ordinance (XX of 1965), S.13(d)—Qatl-e-amd, attempt to commit qatl-e-amd, terrorism and recovery of arms—Appreciation of evidence—F.I.R. had been lodged well in time and contents of F.I.R. disclosed the names of the injured, the deceased and that of the witnesses—F.I.R. also disclosed the type of the weapons used in the offence—Narration of the F.I.R. regarding the facts of the case had been put forward in a very natural manner and was confidence inspiring— During the cross-examination, minor improvements had been brought on record, which were not of the intensity to shatter the veracity of the said witnesses—Was very natural for the witness in the dark to identify an individual from headlights of vehicle—Accused as well as the witness belonged to the same locality and question of mistaken identity did not arise—Injured witness in his examination in the Trial Court had fully supported the prosecution case—Other two witnesses had fully deposed against accused persons and the role played by them as well as the arms used for the commission of the offence by accused persons, were identified—Two very important recovery witnesses had proved the recoveries of the weapon used by accused—Both witnesses were impartial Police personnel who did not belong to the locality and did not have any axe to grind—Preparation of the recovery memos did not suffer from any infirmity—Recovered empty shells had matched the weapons of offence used which had proved against accused—Incident was a result of sectarian hatred between the parties as many a case had occurred within the vicinity of the complainant and accused party—Murders and attempted murders had occurred in the past—Statements of the witnesses, examined backed up by the motive and weapons of offence proved against the accused—Sentence awarded to accused by the Trial Court, was upheld, in circumstances.

2011 PCrLJ 370 Gilgit-Baltistan Chief Court

ISHTIAQ VS State

Ss. 302/324/34— Anti-Terrorism Act (XXVII of 1997), Ss.6/7/21-H—West Pakistan Arms Ordinance (XX of 1965), S.13(d)—Qatl-e-amd, attempt to commit qatl-e-amd, terrorism and recovery of arms—Appreciation of evidence—Confession—Evidentiary value—Privilege of the prosecution to adduce or abandon any witness—Non-Âexamination of the other occupants of the vehicle in question; was not necessary when there was already a sizeable amount of material placed by the prosecution against accused on record—Prosecution had the privilage to adduce or abandon any witness which it would think unnecessary—Confessional statements recorded under S.21-H of Anti-Terrorism Act, 1997, could by itself not constitute a material evidence on which a criminal case could be based for conviction—Confessional statement recorded by a Police Officer would be very useful to rely on, but it could be read as a piece of evidence along with the other material on record.

2010 SCMR 646 SUPREME-COURT

SHI RAZ-UL-HAQ VS State

365-A—Anti-Terrorism Act (XXVII of 1997), Ss.6(1)(b) & 7(e)—Abduction for ransom—Reappraisal of evidence—Sentence, reduction in—Proof—Prosecution witness who witnessed incident of abduction was not examined on such aspect of the case and there was evidence of victim only—Ransom amount was not recovered from accused persons—Prosecution further alleged that accused had used credit and debit cards and lass of Rupees were taken out from the account of victim but no cogent evidence through bank officials had been produced to prove such allegation—Confinement of victim was of two days only with no allegation of torture—Sentence of death awarded to three accused persons by Trial Court was maintained by High Court—Validity—Such was not an extreme case of abduction, therefore, in such case sentence of death to three persons was harsh—Supreme Court maintained the conviction but converted sentence of death awarded to accused into imprisonment for life.

2010 PLD 52 QUETTA-HIGH-COURT-BALOCHISTAN

SOORAT KHAN VS ANTI-TERRORISM COURT, SIBI

6—Terrorism—Meaning—“Terrorism” means the use or threat of “action” where the “action” falls within the meaning of sub-section (2) of S.6 of the Anti-Terrorism Act, 1997, and creates a serious risk to safety of the public or a section of the public, or is designed to frighten the general public and thereby prevents them from coming out and carrying on their lawful trade and daily business, and disrupts civil life.

2010 PLD 52 QUETTA-HIGH-COURT-BALOCHISTAN

SOORAT KHAN VS ANTI-TERRORISM COURT, SIBI

Ss. 6 & 32—Explosive Substances Act (XI of 1908), Ss.3/4/5—Constitution of Pakistan (1973), Art. 199—Constitutional petition—Jurisdiction—Complainant had no enmity with any person, nor had he nominated any individual in the promptly lodged F.I.R.—Explosive device was allegedly used in order to force the employees of Chamalung Security Force constituted by the Government, to give up their employment and dissuade others from joining the said Force—Son of the complainant had allegedly been killed in the incident by stepping on a mine—Case thus fell within the definition of “terrorism” as contained in S.6 of the Anti-Terrorism Act, 1997, and was triable by the Special Judge, Anti-Terrorism Court—Criminal Procedure Code, 1898, being not applicable to Anti-Terrorism Act, 1997, by virtue of S.32 thereof, reference of Trial Court to Schedule II of the Criminal Procedure Code, 1898, in the impugned order, was misplaced—Order of the Trial Court having the powers of Anti-Terrorism Court directing the transfer of the case to the ordinary Court of competent jurisdiction was, consequently, set aside with direction to Trial Court to proceed with the trial itself in accordance with law—Constitutional petition was accepted accordingly.

2010 GBLR 550 SUPREME-APPELATE-COURT-GILGIT

THE STATE VS SADAQAT JAN

302(b)—Anti-Terrorism Act (XXVII of 1997), Ss.6/7—West Pakistan Arms Ordinance (XX of 1965), S.13—Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)—Qatl-eÂamd, terrorism and possessing arms—Appraisal of evidence—Trial Court convicted and sentenced accused, but Chief Court set aside judgment of the Trial Court and acquitted accused by giving him benefit of doubt—Appeal against acquittal—Prosecution had established accusation of accused beyond shadow of doubt by producing cogent and concrete evidence, which had rightly been considered by the Trial Court—Defence Counsel could not succeed to shatter the veracity of the statement of the prosecution witness who narrated facts and directly connected accused with the commission of offence—Weapon of offence, .30 bore pistol, was recovered immediately after the arrest of accused from his personal possession—In presence of recovery memo, delay in lodging of F.I.R. under S.13 of West Pakistan Arms Ordinance, 1965, had no effect at all on the merits of the main case—Crime empty shell and live cartridges were sent to ballistic expert, which were examined and found to have been fired from the pistol recovered at the instance of accused—Number and type of weapon was the same, which was shown in the recovery memo—No fabrication or alteration of recovery memo.—Version of prosecution witnesses was consistent, confidence inspiring and worthy of credence which had rightly been taken into consideration and they by no stretch of imagination, could be labelled as interested witnesses—Prosecution had substantiated the allegations against accused beyond any shadow of doubt—Case against accused, in circumstances was fit for life imprisonment—Impugned judgment of Chief Court was set aside and that of the Trial Court was restored to meet the ends of justice.

2010 GBLR 280 SUPREME-APPELATE-COURT-GILGIT

SHAKIRULLAH alias DOCTOR VS State

Ss. 302/324/109/34—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Qatl-e-amd; attempt to commit qatl-e-amd and abetment—Delay in conclusion of trial—Case was pending for the last 4/5 years without any progress—Trial Court was directed to submit report to the Registrar of Supreme Appellate Court regarding inordinate delay in conclusion of the trial, within a fortnight for perusal of the Supreme Appellate Court and order in chamber.

2010 GBLR 149 SUPREME-APPELATE-COURT-GILGIT

ARSHAD WALI VS State

S.497(2)—Penal Code (XLV of 1860), Ss.302/118/212/216—Anti-Terrorism Act (XXVII of 1997), Ss.6/7–Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)—Qatl-e-amd, concealÂing the offence, harbouring offender and causing terrorism—Bail, grant of—Occurrence was one of dark night—Prosecution had no eyeÂwitness—Delayed recovery of weapons of offence did not connect the accused with the crime, particularly when the same, though handled by the accused, were not stated to have been used by them in the commission of the offence—Confessional statements of accused if believed to be true and correctly recorded, even then the same could not be made a basis for their conviction in the absence of any direct evidence against them on record—Concession of bail could not be withheld merely on the plea of heinousness of the offence, if the accused were otherwise entitled to grant of bail—Senior police officials had failed to conduct a fair, transparent and untainted investigation in the case—Guilt of accused needed further probe within the purview of S.497(2), Cr. P.C.—Accused were admitted to bail in circumstances.

2010 GBLR 149 SUPREME-APPELATE-COURT-GILGIT

ARSHAD WALI VS State

S.497—Penal Code (XLV of 1860), Ss.302/118/212/216—Anti-Terrorism Act (XXVII of 1997), Ss.6/7—Qatl-e-amd and terrorism—Bail—Heinousness of offence—Principle—Concession of bail cannot be withheld on the plea of heinousness of the offence, if the accused is otherwise found entitled to the same.

2010 GBLR 118 SUPREME-APPELATE-COURT-GILGIT

THE STATE through Advocate-General VS ASIF AHMED

S.497(5)—Penal Code (XLV of 1860), Ss.302/324/34—Anti-Terrorism Act (XXVII of 1997), S.6/7—Qatl-e-amd, attempt to commit qatl-e-amd causing terrorism—Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60(13)—Bail, cancellation of—Parties had agreed on not arguing the application on merits, if Trial Court was directed to conclude the trial within two months—Charge in the case had been framed without any delay, but trial could not be concluded due to some unavoidable circumstances and ultimately bail had been granted to accused—Prolonged delay in conclusion of trial was misuse of process of law and courts and also injustice to the parties—Trial Court was directed to conduct day to day trial, avoid adjournment without compelling reason, adopt coercive measures for attendance of witnesses and conclude the trial within two months—In case of default, complainant or the State could move a fresh application for cancellation of bail against the accused before the Trial Court for decision on merits—Petition was disposed of accordingly.

2010 YLR 3184 LAHORE-HIGH-COURT-LAHORE

Chaudhry ASGHAR SHAHEEN VS Raja MUNAWAR HUSSAIN

6—‘Terrorism’—Determination as to whether an offence falls within the ambit of S.6 of Anti-Terrorism Act, 1997—Essentials elaborated.

2010 YLR 3184 LAHORE-HIGH-COURT-LAHORE

Chaudhry ASGHAR SHAHEEN VS Raja MUNAWAR HUSSAIN

Ss.6/7 & 23—Penal Code (XLV of 1860), Ss. 324/440/452/506/337-A(ii)/337-L(2)/109—Constitution of Pakistan (1973), Art. 199—Act of terrorism, attempt to commit qatl-e-amd, mischief committed after preparation made for causing death for hurt, house-trespass after preparation or hurt, assault or wrongful restraint, criminal intimidation, causing hurt, abetment—Constitution petition—Transfer of case by Anti-Terrorism Court to Regular Court for trial—Validity—Motivation, object, design or purpose behind an act had to be assessed to label the same as a terrorist act—Two groups of Advocates had clashed with each other in a full house session of District Bar Association with the agenda of discussing the probabilities of dismembering certain Members of District Bar Association, which was purely a personal agenda and had nothing to do with any design to commit the act of ‘terrorism’—Receipt of injuries by a few during the occurrence was, at the most, an aftermath of the brawl between the two groups of Advocates and by no stretch of imagination the occurrence contained in the F.I.R. or in the private complaint could be termed as an act of terrorism—Anti-Terrorism Court had rightly concluded on sufficient reasons that the occurrence did not fall within the mischief of terrorism as defined in section 6 of Anti-Terrorism Act, 1997, and had termed the same as a purely indigenous trouble, haunting affairs of the District Bar Association—Impugned order of transfer of case to the Court of Area Magistrate did not suffer from any misreading or non-reading of the record—Constitutional petition was dismissed in limine in circumstances.

2010 YLR 139 LAHORE-HIGH-COURT-LAHORE

NOOR JAHAN VS JUDGE ANTI-TERRORISM COURT BAHAWALPUR

Ss. 380/447/148/149—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 23—Criminal Procedure Code (V of 1898), Ss.156 & 159—Constitution of Pakistan (1973), Art.199—Constitutional petition—Petitioner lodged F.I.R. for offences under Ss. 380/447/148/149, P.P.C. read with Ss. 6 & 7 of Anti-Terrorism Act, 1997—During investigation eight accused persons were arrested and when their remand papers were presented before the Judge Anti-Terrorism Court, he directed the deletion of Ss.6 & 7 of Anti-Terrorism Act, 1997—Anti-Terrorism Court had given findings of non-commission of terrorism after recording the statements of the witnesses, which would bring out that no element of terrorism or panic was created by accused—Words used in S.23 of Anti-Terrorism Act, 1997, were very much clear on the point that court could pass order after taking cognizance of an offence at the relevant time—Court, at the time of passing of impugned order, had not taken cognizance of the offence and no sufficient material was available on record to delete the offence—Impugned order, in circumstances was premature which was set aside with direction to decide the matter after taking cognizance of the offence with application of judicial mind after recording some evidence.

2010 PCrLJ 23 LAHORE-HIGH-COURT-LAHORE

FAWAD RASOOL VS SPECIAL JUDGE, ANTI-TERRORISM COURT NO.1, GUJRANWALA

Ss. 302/324/148/149/109—Anti-Terrorism Act (XXVII of 1997), Ss.6/7/23—Constitution of Pakistan (1973), Art.199—Constitutional petition—Application filed by the petitioner for transfer of case from the Anti-Terrorism Court to the court of ordinary jurisdiction, having been dismissed, petitioner had assailed order of dismissal in constitutional petition—Occurrence had taken place on a bridge where apart from rival party, many other people were also present—Apart from three persons from the rival party two passersby lost their life, while 12 others suffered firearm injuries—Such was neither a private nor an isolated place where there was no risk for general public-Result of the occurrence itself had shown that apart from the deceased and injured passersby there must be many more who must have felt a sense of insecurity as a result of occurrence—Prima facie, it could not be presumed before recording of evidence, for the purposes of determining jurisdiction of the court that the act was not one of terrorism—In the present case, death of two passersby and injuries to 12 others, prima facie indicated that apart from them many others were also present at the time of occurrence, which must have created sense of insecurity in the general public—Constitutional petition was dismissed in circumstances.

2010 YLR 2693 KARACHI-HIGH-COURT-SINDH

TAHIR MUGHERI VS State

S.497—Penal Code (XLV of 1860), Ss.365-A, 148 & 149—Anti-Terrorism Act (XXVII of 1997), Ss.6/7—Kidnapping or abduction for extortion—Bail, grant of—Bail had been sought by accused on the ground of hardship and delay in conclusion of the trial—Accused was arrested on 5-11-2004 and since then he was in custody—High Court by its order directed the Trial Court to decide the matter preferably within three months, but that order passed by the High Court had not been complied with—Inordinate delay in prosecution amounting to abuse of process of law, could be treated as sufficient ground for grant of bail—Alleged abductee sworn his affidavit in which he exonerated accused from commission of offence of abduction—Statement of the abductee should be given proper weight while deciding the matter of kidnapping for ransom—Accused, in circumstances, had succeeded in making out a case for grant of bail—Accused was admitted to bail, in circumstances.

2010 YLR 1861 KARACHI-HIGH-COURT-SINDH

MUHAMMAD ALI VS State

365-A—West Pakistan Arms Ordinance (XX of 1965), S.13(d)—Anti-Terrorism Act (XXVII of 1997), Ss.6(2)(e) & 7(e)—Kidnapping for ransom—Appreciation of evidence—Abductee being a principal victim had given a very comprehensive account of the incident—Cross-examination conducted by the defence against the said witness could not shatter his evidence—Such cross-examination could not even show any specific defence plea on the basis of which one could assume that said witness had been challenged thereby in such process of evidence or he deposed falsely against accused for any ill motive or vested interest, either within himself or because of his family—Other witnesses who were father and uncle of the victim had also supported the case and cross-examination conducted against them could not bring any fruitful result to the defence—Defence theory that came to light, for the first time in the process of cross-examination that there was business rivalry between the brother-in-law of the complainant and accused, due to which accused had falsely been involved in the case, being an after-thought, was good for nothing—Rest of the witnesses, were official ones who also, had supported the case to their respective extent and their evidence was also left unÂshattered in the cross-examination conducted by the defence against them on the point of kidnapping—Certain irregularities committed by the Police in process of investigation, could hardly have an adverse effect to the extent that on the basis of which the court could take an independent view that the case of prosecution as to kidnapping was doubtful—Prosecution witnesses were trustworthy and confidence inspiring in all respect—Charge of kidnapping for ransom as framed against accused, stood well proved beyond shadow of any reasonable doubt—Conviction and sentence awarded to accused for offence of kidnapping by the Trial Court needed no interference at all—Case regarding the recovery of the T.T. pistol from accused, however, was not open to be safely held as proved up to the required standard of law-Evidence on record did not support that the said weapon was recovered by the Police from accused at the relevant time—Impugned judgment of conviction and sentence awarded by the Trial Court under S.365-A, P.P.C., was maintained with benefit of S.382-B, Cr.P.C., whereas conviction and sentence awarded to accused for the offence under S.13(d) of West Pakistan Arms Ordinance, 1965, was set aside in the interest of justice.

2010 YLR 1817 KARACHI-HIGH-COURT-SINDH

MUHAMMAD SADIQ VS THE STATE through Prosecutor General Sindh

Ss. 302 & 377—Anti-Terrorism Act (XXVII of 1997), S.6—Qatl-e-amd, unnatural offence and terrorism—Accused were bailed out and their application filed under S.265-K, Cr.P.C. was also allowed by the Trial Court observing that it was not a case for cancellation of bail and that case was not to by tried by Anti-Terrorism Court—Validity—Case of prosecution was in four parts; firstly, minor boy was abducted; secondly unnatural offence was committed with him; thirdly, he was murdered; and lastly his body was concealed in bag and was thrown in Ganda Nala in order to destroy the evidence—Offences in the case definitely covered definition of S.6 of Anti-Terrorism Act, 1997—Ordinary Court, in circumstances had no jurisdiction to try the case—Order passed by the Trial Court was set aside with the direction to file the report before the Anti-Terrorism Court having jurisdiction.

2010 PCrLJ 98 KARACHI-HIGH-COURT-SINDH

MUZAMIL VS State

Ss. 302, 342, 201, 337-A(i), F(i), 148 & 149—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 23—Constitution of Pakistan (1973), Art.199—Constitutional petition—Transfer of case to regular/ordinary court—Petitioners/accused in one criminal case, had committed murder of two minor kids by way of slaughtering their throats in presence of complainant and other eye-witnesses after fastening the complainant and witnesses—Accused persons took the dead bodies of both deceased and buried those at the scene of the offence in a ditch—In second case the accused persons had committed triple murders by firing with K.Ks. on their victims and causing fire-arm injuries to prosecution witnesses—After receipt of challan, the accused filed application under S.23 of Anti-Terrorism Act, 1997 for transfer of case to Sessions Court contending that under the circumstances of the case no case of terrorism .was made out to attract the provisions of S.6 of Anti-Terrorism Act. 1997—Validity—Term `terrorism’ had wide meaning and for the purpose of assessment as to whether sense of fear and insecurity spread amongst the public at large, the manner in which the incident took place, coupled with the place, where the incident took place were very material—Brutal act of murder at public place was sufficient to hold that by the act of the commission of murder at public place, terror would strike amongst the public at the said locality where incident took place and S.6 of Anti-Terrorism Act, 1997 would attract—Details of incident in the case had shown that by the act of the accused persons brutally killing two minor children and three other innocent persons at public place, sense of fear and insecurity amongst the public at large was created—In killing three persons by using K. Ks. at public place and injuring three prosecution witnesses, the accused had shown their brutality which had created sense of fear and insecurity amongst the persons of that locality—For the purpose of ascertaining the fact of creation of sense of fear and insecurity amongst the people at large, it was not necessary that evidence must be recorded by the court to arrive at such conclusion but the facts contained in the F.I.R. and the nature of the offence committed at the public place, were sufficient to assess as to whether the sense of fear and insecurity was created amongst the public-at-large—In the present case, the two minors had been brutally slaughtered and three were killed at public place by inflicting injuries from Kalashnikov—Application for transfer of case to ordinary/Sessions Court, was rightly dismissed by the Special Court.

2010 MLD 1412 KARACHI-HIGH-COURT-SINDH

ALLAH NAWAZ VS State

Ss. 6, 7 & 23—Explosive Substances Act (XI of 1908), Ss.3, 4 & 5—Criminal Procedure Code (V of 1898), Ss.435, 439 & 561-A—Constitution of Pakistan (1973), Art. 199—Possession of heavy material of explosive substance—Transfer of case from Anti-Terrorism Court to regular court—Accused who were found carrying heavy material of explosive substance, had disclosed that they had been given a task for explosion and that they were on the way to implement their plans—Application filed by accused under S.23 of Anti-Terrorism Act, 1997 for transfer of their case from Anti-Terrorism Court to ordinary/regular court, had been dismissed by the Anti-Terrorism Court—Validity—Neither revisional jurisdiction under Ss.435/439, Cr.P.C. nor jurisdiction under S.561-A, Cr.P.C. could be invoked to challenge and impugn an order passed by the Anti-Terrorism Court; however, that would not close the chapter—If no adequate remedy was available or provided under law, High Court could always use its constitutional authority under Art.199 of the Constitution—Discretion was always available with High Court to treat any application or proceedings, in appropriate cases, as application under Art.199 of the of Constitution—High Court, in the present case, treated revision petition as constitutional petition and decided the same —Prima facie, from the statement of accused, it appeared that attempt to explode explosive substance was admitted—Order passed by Anti-Terrorism Court, whereby application for transfer of case to ordinary court was dismissed, could not be taken exception to in circumstances.

2010 PCrLJ 1415 Gilgit-Baltistan Chief Court

EHSANULLAH VS State

Ss. 302(b)/324/34—Anti-Terrorism Act (XXVII of 1997), Ss.6/7—West. Pakistan Arms Ordinance (XX of 1965), S.13—Qatl-e-amd and attempt to commit qatl-e-amd—Terrorism and possession of arms—Appreciation of evidence—Benefit of doubt—Fire shots received by the deceased and injured were from a high velocity fire-arm and not from a low velocity gun such as a Repeater, which was a shotgun for hunting birds—Spot inspection was conducted well in time which gave no time to the prosecution to plant empties of any other calibre and also sealed the chance of inclusion of any other innocent person as accused—Benefit of doubt could be extended to two co-accused out of three as the opening of fire shots by said two co-accused was a far fetched probability and their involvement could be a result of the sectarian hatred whereby the maximum number of persons of the other sect could be put to task—Anti-Terrorism Act, 1997 which was a special law provided for the offences committed under S.6 of said Act, would override the provisions of general law as the offence of murder had been provided in the schedule of Special Law wherein the offence was punishable with death—In the light of the statements of the prosecution witnesses, the recoveries, the motive and the other circumstances of the case, prosecution had proved the fact of murder of the deceased and injuries sustained by four other persons—Prosecution had proved its case to the hilt against the accused—Case under S.13 of West Pakistan Arms Ordinance, 1965 was also proved against said accused; his conviction and sentence was upheld and murder reference to his extent was answered in affirmative, however benefit of doubt was extended to other two accused persons and their conviction and sentence were set aside and they could be released.

2010 PCrLJ 1402 Gilgit-Baltistan Chief Court

SADAQAT JAN VS State

302/34—Anti-Terrorism Act (XXVII of 1997), Ss.6/7—West Pakistan Arms Ordinance (XX of 1965), S.13—Qatl-e-amd—Terrorism and possession of arms—Appreciation of evidence—Benefit of doubt—Accused had been implicated for commission of offence along with two other persons, who had been assigned equal roles without any difference—One of the prosecution witnesses had stated that she saw the accused opening fire shot at the deceased and did not charge the other accused persons—Another prosecution witness had also improved his statement recorded under S.161, Cr.P.C. regarding dying declaration of deceased wherein accused had been nominated as assailant—Statement of another witness was recorded 23 days after the occurrence who had stated that he saw the accused running away from the place of occurrence after hearing the fire shots—Statement of said witness was not confidence inspiring in the light of his delayed statement under S.161, Cr.P.C.; he was not an eye-witness of the occurrence, but he had stated that he saw one person lying in the channel after firing of shots—Said witness had not mentioned the presence of other witnesses at the spot—Good prima facie case did not exist against accused for his conviction on the basis of other material placed on record—Original report of Fire Arms Expert was not placed on record but a photo copy of the same was found in the file and number of the pistol mentioned therein was different as shown in the recovery memo.—Prosecution, in circumstances, had failed to prove its case beyond any reasonable doubt and statements of prosecution witnesses were not worth relying—While giving benefit of doubt to the accused, his conviction and sentence, was set aside and he was directed to be released.

2009 SCMR 1210 SUPREME-COURT

Maulana ABDUL AZIZ VS State

497—Penal Code (XLV of 1860), Ss.448/427/452/506/147/149—Anti-Terrorism Act (XXVII of 1997), Ss.6/7 & 21-C(4)—Constitution of Pakistan (1973), Art.185(3)—Bail, grant of—Sufficient incriminating material was lacking prima facie connecting the accused with the commission of the alleged offence—Presumption of innocence of accused is always paramount irrespective of the heinousness of the alleged offences—No plausible justification could be given as to why Chowkidar of the Library had failed to nominate the accused in the F.I.R. lodged by him, but implicated him in his supplementary statement—No prima facie case was made out against the accused—Impugned order of High Court refusing bail to accused being laconic could not be kept intact, as the case fell within the ambit of further inquiry—It was not known how the alleged offences were abetted or facilitated by the accused in the absence of any evidence in this regard on record—Section 21-C(4) of the Anti-Terrorism Act, 1997, was not applicable to the case of accused—Submission of challan after a lapse of eight months in the Court by itself was sufficient to grant bail to accused—Ipsi dixit of police regarding guilt or innocence of accused could not be depended upon, as the same would be determined by Trial Court on the basis of evidence, yet to be collected—Accused was admitted to bail in circumstances.

2009 PLD 11 SUPREME-COURT

BASHIR AHMED VS MUHAMMAD SIDDIQUE

Ss. 6, 7 & 8—Determination as to whether an offence falls within the ambit of S.6, Anti-Terrorism Act, 1997—Essentials.

2009 MLD 1157 QUETTA-HIGH-COURT-BALOCHISTAN

ALI DAD VS State

S.4—Anti-Terrorism Act (XXVII of 1997), Ss.6(1)(c), (n), (2) & 7(h)—Appreciation of evidence—One of prosecution witnesses had stated that on hearing explosion he found accused running from the place of occurrence who was apprehended by other Police Officials—Other prosecution witness had not supported the case of said witness—Accused could not be held guilty for causing explosion without any other evidence on record connecting accused with the commission of offence, merely on . the ground that he was seen running away—Conviction could only be based on tangible evidence implicating accused in the commission of offence beyond any shadow of doubt, because it was natural for the people to leave hurriedly the place where explosion occurred—Suspicion howsoever strong could not take place of legal proof—No conviction, in circumstances could be sustained on mere suspicion—Prosecution had failed to prove charge against accused—Accused was acquitted of the charge and was released.

2009 MLD 793 PESHAWAR-HIGH-COURT

AYUB KHAN VS State

Ss.468/471—West Pakistan Arms Ordinance (XX of 1965), Ss.13/14—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Appreciation of evidence—Terrorism—Scope—Scope of terrorism had been explained in various clauses of S.6 of Anti-Terrorism Act, 1997—Action which created a serious risk to ‘safety of public was terrorism under clause (i) of subsection (2) of S.6 of Anti-Terrorism Act, 1997—Transportation of a huge quantity of illicit arms and ammunition, could be, by no stretch of imagination, for any lawful activities, peaceful purpose or welfare of the public—Only conclusion which could be drawn was that such transportation involved serious risk to safety of public which was already under wave of extreme terrorism—Occurrence, in the present case, took place at a place where many disinterested persons were present around who were not cited as witnesses of recovery—People did not co-operate and did not consent to be cited as witnesses of recovery; in terrorism and narcotics cases, because it invited annoyance of people relating to drug mafia and terrorists which they could not afford to face—Police witnesses; in such circumstances, were good witnesses, unless mala fide was established against them—In the present case, statements of police witnesses were neither contradictory nor infirm, nor having any inherent flaw—Statements of prosecution witnesses’ relating to recovery in the case, were consistent on material points and intrinsically rang true—Said witnesses were rightly relied upon by the Trial Court—Accused was acquitted for offence under Ss.468/471, P.P.C. and S.14 of West Pakistan Arms Ordinance, 1965, but conviction of accused under S.7(h) Anti-Terrorism Act, 1997 as well as under S.13 of West Pakistan Arms Ordinance, 1965 was maintained.

2009 PCrLJ 573 NORTHERN AREAS CHIEF COURT

ITRAT HUSSAIN VS State

497—Anti-Terrorism Act (XXVII of 1997), Ss.6/7/21(D)(4)—Bail, grant of—Accused had been arrested soon after the occurrence in January, 2005—After his arrest the trial could not be concluded within a reasonable time due to non-availability of Anti-Terrorism Court’s Judge for a considerable period—When the trial came close to pronouncement of judgment, one of the alleged absconding accused in the same case was arrested—Ultimately, the Judge had no option except to re-start the trial, pending judgment against accused—Accused, in circumstances, had to wait for conclusion of trial against the newly arrested accused—No provision existed in the relevant or general law that judgment could partially be announced against those who had faced trial—Plea of hardship, in circumstances found existed in favour of accused—Co-Âaccused, who had been attributed similar role, had already been released on bail by Chief Court—Rule of consistency demanded that accused too was entitled for the same treatment.

2009 PCrLJ 346 LAHORE-HIGH-COURT-LAHORE

Rana SHAHBAZ RIAZ VS SPECIAL JUDGE, ANTI-TERRORISM COURT, FAISALABAD

Ss. 6, 7 & 23—Penal Code (XLV of 1860), Ss.302/109/324/148/149—Constitution of Pakistan (1973), Art.199—Constitutional petition—Sending back challan to the court of ordinary jurisdiction–Petitioner/complainant had challenged the validity of order passed by the Special Judge Anti-Terrorism Court whereby an application moved by accused under S.23 of Anti-Terrorism Act, 1997 for sending the challan to the court of ordinary jurisdiction was accepted and the challan was sent to the court of ordinary jurisdiction—Validity—Under provisions of S.6 of Anti-Terrorism Act, 1997, it was not necessary that the commission of murder must have created panic and terror among the people—Courts had only to see whether the terrorist act was such which would have the tendency to create sense of fear or insecurity in the minds of the people or any section of the society—Court had to see the psychological impact created by such act upon the minds of the people and it was not necessary that the said act must have taken place within the view of general public so as to bring it within the encompass of the Anti-Terrorism Act, 1997—Even an act having taken place in a barbaric and gruesome manner, if it had created fear and insecurity, would. certainly come within the purview of the Anti-Terrorism Act, 1997—Person would commit a terrorist act, if in order to or if the effect of his actions would be to strike terror or create a sense of fear and insecurity in the people or any section of the people—In the present case occurrence had taken place on the main road and in the main Bazar in front of Jamia Masjid in which murder of three innocent persons had been committed allegedly by the accused persons by firing with kalashnikovs and the complainant had also been injured , which must have caused shock, fear and insecurity among the people of the vicinity—If no crime empty was recovered from the place of occurrence at the time of spot inspection by the police, it could not be said that firing was not made and that occurrence had not taken place—All three deceased persons had received three to seven injuries on their persons and complainant had also sustained two fire-arm injuries on his person—Impugned order was set aside in circumstances.

2009 PLD 265 KARACHI-HIGH-COURT-SINDH

JANAN alias JANO CHANDIO VS State

497—Penal Code (XLV of 1860), Ss.302/353/148/149—Anti-Terrorism Act (XXVII of 1997) Ss.6/7—Bail, refusal of-‘-Accused persons were nominated in the F.I.R. with specific role of causing firearm injuries to deceased—Prosecution witnesses in their statements under S.161, Cr.P.C. had fully supported the version of complainant given by him in the F.I.R.—Medical evidence also supported the version of complainant party—Recovery of kalashnikov was from one of accused persons, and pistol from the other—No enmity with the Police had been suggested or pleaded by accused—Sufficient material was available against accused persons to suggest that there were reasonable grounds to believe that accused were connected with the alleged offence—Counsel for accused had failed to make out a case of further inquiry—Contention of counsel for accused persons that one of co-accused was found and let off, had no force as said co-accused had been shown as absconder in the charge-sheet-Deeper appreciation of material at bail stage was deprecated—Bail application was dismissed, in circumstances.

2009 PCrLJ 107 KARACHI-HIGH-COURT-SINDH

Mst. RUBINA VS State

Ss. 6 & 7—Criminal Procedure Code (V of 1898), Ss.561-A & 439—Applicant/victim girl had made allegations that she was abducted, kept in illegal confinement and gang raped by accused persons nominated in the F.I.R.—Alleged victim was referred to Medical Superintendent for her medical check-up and she was duly examined by Gynaecologist and from the medical report it had fully been proved that applicant was gangÂ-raped—Counsel for applicant/victim girl alleged that accused persons, who were very influential, had obtained a report from Investigating Officer for exonerating themselves—Investigating Officer submitted report under S.173, Cr.P.C. before Magistrate for the disposal of case in “B” Class—Investigating Officer, instead of helping the poor innocent young student orphan girl, mixed up with accused persons and tried to declare accused persons innocent—Investigating Officer for ulterior motives spoiled the case of prosecution and on the contrary implicated the orphan young girl for registration of case against her—Addl. Advocate-General also opposed impugned order of the Magistrate submitting that Investigating Officer had wilfully and deliberately conducted dishonest investigation and failed to perform his legal duties—Criminal revision application was converted into application under S.561-A, Cr.P.C. and allowing same impugned order was set aside—Immediate indulgence was solicited from R.P.O. concerned for assigning investigation of the case to an officer not below the rank of D.S.P.—Keeping in view the gravity of offence Court directed that case be challaned after honest investigation to Anti-Terrorism Court as provisions of Ss.6 & 7 of Anti-Terrorism Act, 1997, appeared to be attracted.

2009 MLD 1198 KARACHI-HIGH-COURT-SINDH

ALI HASSAN VS State

S.6(2)(e)—Penal Code (XLV of 1860), S.356-A—Appreciation of evidence—Out of the two abductees, one could not be traced and the other did not implicate either co-accused in whose presence the trial was conducted or accused who was tried in absentia—Evidence of two Police Officers, who claimed to have identified the dacoits, was not believed by High Court in appeal filed by co-accused’–After acquittal of co-accused by the High Court, conviction in absentia of accused, who had a better case for acquittal, could not be sustained on same evidence—No useful purpose would be served to examine the main witnesses again—State counsel was also of the same opinion—Conviction and sentence of accused recorded in his absentia, were set aside, and he was acquitted.

2009 MLD 1198 KARACHI-HIGH-COURT-SINDH

ALI HASSAN VS State

Ss. 6(2)(e), 19(12) & 25–Conviction in absentia, remedy for—Two options were available, in law, to a person convicted in absentia; he could request the Trial Court to set aside his conviction under S.19(12) of the Anti-Terrorism Act, 1997 by showing that he did not abscond and could also file appeal under S.25 of the said Act—Filing of application under S.19(12) of the Anti-Terrorism Act, 1997 was not an indispensable condition for filing appeal under S.25 of the Act–Powers of the Appellate Court were wider than the powers of the Trial Court in the matter of setting aside conviction in absentia—Trial Court, after setting aside the conviction, would proceed to try accused in his presence; while the Appellate Court after setting aside the conviction could remand the case to the Trial Court for fresh trial or could even acquit him on merits—If a case was fit for acquittal on merits, it would be futile to conduct fresh trial—If a person convicted in absentia was entitled to acquittal on merits, he could not be forced to undergo the botheration of trial—Under S.25 of Anti-Terrorism Act, 1997, nothing was to suggest that a person convicted and sentenced in absentia, could not file appeal without first making application under S.19(12) of said Act.

2009 YLR 297 ISLAMABAD

Moulana ABDUL AZIZ VS State

497—Penal Code (XLV of 1860), Ss.427, 448, 452, 506, 147 & 149—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 21-D(iv)—Bail, refusal of—Complainant was Chowkidar of the Library, which the student had forcibly occupied—Complainant was quite an independent person and he was not a police personnel—Serious efforts were made for the restoration of possession peacefully—Accused was the person who was Incharge of Lal Masjid and Jamia Hafza and all the students of said Madrasa were under his control and they were ready to go to any extent in compliance of his order and as such he was in commanding position—Situation, which was created at the time of occurrence, had created a panic/insecurity in the people of area—Window pans were broken during that occurrence and loss was caused to the library, which was a public property—Whole area where said library was situated, was presenting a picture of ‘No go area’ and people of that area were feeling sense of insecurity, and they could not even purchase the things of daily use and all that had made the case, falling under the purview of S.6 of Anti-Terrorism Act, 1997—Contention of counsel for accused that S. 452, P.P.C. did not fall under the prohibitory clause of S.497, Cr. P. C. had no force—Each case should be decided on its own merits—Even bail could be refused in the case which did not fall within the prohibitory clause of S. 497, Cr. P. C. —Principle of consistency was also not applicable in the case, as the cases in which bail had been granted, were different from the present case, on facts and merits—Deeper appreciation of evidence could not be made while hearing the bail application, but only tentative assessment of material collected by the prosecution against accused, could be made—Accused had been implicated in the case, on the basis of supplementary statement made by Chowkidar of the Library, who was a relevant person—No mala fide or ill-will had come on record, to falsely implicate accused in the case, question of false implication did not arise—Challan in the case had been submitted before the court of competent jurisdiction—Accused having failed to make out the case for bail, his bail application was dismissed.

2008 SCMR 829 SUPREME-COURT

MUHAMMAD ARIF VS State

302(b)/34—Anti-Terrorism Act (XXVII of 1997), Ss.6(2)(a) & 10(11-A)—Constitution of Pakistan (1973), Arts.9, 10(1) & 185(3)—Trial of accused was conducted in absentia and without providing him opportunity of hearing—Said trial of accused was violative of Arts.9 & 10(1) of the Constitution and S.10(11-A) of the Anti-Terrorism Act, 1997-Judgments, convictions and sentences rendered by both the Courts below in the absence of the accused, thus, were not sustainable under the law and necessitated retrial of the case—Petition for leave to appeal was consequently converted into appeal which was accepted and conviction and sentence awarded to accused by the Trial Court and maintained by High Court, were set aside and the case was remanded to the Trial Court for fresh trial of accused in accordance with law.

2008 SCMR 71 SUPREME-COURT

ABDUL MAJEED VS State

Ss. 302(b) & 395—Anti-Terrorism Act (XXVII of 1997), Ss.6(i), 7 & 6(3)—West Pakistan Arms Ordinance (XX of 1965), S.13(e)—Constitution of Pakistan (1973), Art.185(3)—Name of accused did not appear in the F.I.R., lodged after an unexplained delay of six hours—Accused was arrested after two months whereafter identification parade had been conducted through witnesses under the supervision of Naib Tehsildar who had conducted investigation as well—Conviction and sentences of accused were urged to have been based on no evidence and rather on inadmissible evidence, which could not be treated as inclusive warranting a sentence on capital charge—Leave to appeal was granted to accused for reappraisal of the evidence in order to ascertain whether the principles for safe administration of criminal justice, as laid down by Supreme Court, were fully adhered to.

2008 PLD 343 SUPREME-COURT

NISAR VS State

—-S. 10(4)—Anti-Terrorism Act (XXVII of 1997), S.6(b)—Capital punishment, awarding of—Duty of Court stated.
The Courts of law are expected and required to decide the cases on the basis of evidence adduced, without being overawed by emotions and se

2008 SCMR 1631 SUPREME-COURT

TARIQ MAHMOOD VS State

Ss. 302/324/148 & 149/341/506—Anti-Terrorism Act (XXVII of 1997), Ss.6/7—Constitution of Pakistan (1973), Art.185(3)—Transfer of case to the Court of ordinary jurisdiction was assailed by the complainant—Case of accused who had clean past rested on a lower pedestal than that of terrorists and sectarian criminals who killed innocent persons either to weaken the State or to cause damage to the parties of the rival sect—Terrorists or the sectarian killers did not have any personal grudge or motive against the innocent victims—In the present case admittedly a feud existed between the parties over a piece of land prior to the occurrence—No independent evidence was available on record to show that the act of accused led to striking of terror among the masses—Site plan had denied the claim of the complainant that the occurrence had taken place in a “Bazaar” which was heavily populated—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—Impugned order did not call for any interference—Leave to appeal was declined to complainant accordingly.

2008 YLR 1414 LAHORE-HIGH-COURT-LAHORE

ALI RAZA alias KALOO VS State

Ss. 324 & 353—Anti-Terrorism Act (XXVII of 1997), Ss.7 (c) & 6—Criminal Procedure Code (V of 1898), S.561-A—Appreciation of evidence—Sentence, reduction in—One accused had not filed an appeal challenging his convictions and sentences passed by Trial Court and High Court while exercising its suo motu jurisdiction under section 561-A, Cr. P. C. had also dealt with his case—Occurrence had taken place because of police encounter—Accused were named in the F.I.R. and they had caused eight injuries on the person of a police officer who had supported the prosecution case and his statement was corroborated by another prosecution witness—False implication of accused was out of question due to non-existence of any enmity between the police officials and the accused—No specific injury had been attributed to any of the accused—Convictions of accused under Ss. 324, P.P.C. and 353, P.P.C. were, therefore, maintained, but their sentence under S. 324, P.P.C. was reduced from 10 years’ R.I each in circumstances.

2008 YLR 1414 LAHORE-HIGH-COURT-LAHORE

ALI RAZA alias KALOO VS State

Ss.6 & 7(c)—Terrorism—Case against accused was not a case of terrorism but of police encounter and police had given the occurrence the shape of terrorism—Provisions of section 6 of the Anti-Terrorism Act, 1997, being not applicable, accused were acquitted of the charge under S.7 (c) of the said Act—Appeal was disposed of accordingly.

2008 PCrLJ 1706 LAHORE-HIGH-COURT-LAHORE

Hafiz MUHAMMAD SALEHEEN VS SPECIAL JUDGE ANTI-TERRORISM, RAWALPINDI

Ss. 6(1)(b), 7 & 28—Penal Code (XLV of 1860), Ss.337-A(iii), 147 & 149—Constitution of Pakistan (1973), Art.199—Constitutional petition—Transfer of case from Anti-Terrorism Court to Court of Session—Persons who were stated to have initiated occurrence, had come to offer their prayer, at the spur of moment were enraged by the word of caution by the complainant/petitioner to them in the matter of reciting `Kalma’ loudly while other people were still offering their prayers, which ultimately led to scuffle resulting in injuries recorded under S.337-A(iii), P.P.C. to some persons—Section 6(1), P,P.C. did not refer to a design and intention to coerce and intimidate a particular sect—Design and intention was further clarified by the definition of word `sectarian’ and `sectarian hatred’ as given in S.2(u)(v) of Anti-Terrorism Act, 1997—Such an intention or design was not apparent on the face of the F.I.R.—Constitutional petition was dismissed.

2008 MLD 840 LAHORE-HIGH-COURT-LAHORE

MATI-UR-REHMAN VS ANTI-TERRORISM COURT, FAISALABAD

Ss.395/353/324/186/148/149—Anti-Terrorism Act (XXVII of 1997), Ss. 7, 6(2)(m)(n), 6(1)(b) & 2(w)—Constitution of Pakistan (1973), Art.199—Constitutional petition—Anti-Terrorism Court had dismissed the application of the accused for transfer of the case to the Court of ordinary jurisdiction vide impugned order—Validity—Accused and his co-accused had allegedly 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 injured seven police officers—Actus reus attributed to the accused and his co-accused had, prima facie, attracted the provisions of S.6(2)(m) & (n) of the Anti-Terrorism Act, 1997—Said assault mounted by 35/40 persons was apparently designed to intimidate and overawe the Government, so as to attract the mens rea contemplated by the provisions of S.6(1)(b) of the said Act—Seven police officers had sustained eighteen injuries at the hands of accused party and three of them had received injuries on their heads exposing their bones, which could be termed as “dangerous to life” so as to attract the definition of “serious” provided by S.2(w) of the said Act—Impugned order, therefore, did not call for any interference—Constitutional petition was dismissed accordingly.

2008 MLD 242 LAHORE-HIGH-COURT-LAHORE

SHAHBAZ NOOR VS State

Ss.324, 506, 148 & 149—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Constitution of Pakistan (1973), Art.199—Constitutional petition—Quashing of F.I.R.—Petitioner had sought quashing of F.I.R. or in the alternate deletion of S.324, P.P.C. and S.7 of Anti-Terrorism Act, 1997 on the ground that from the plain reading of the F.I.R., no case under the said provisions was made out and said sections had been added only with a view to magnifying the offence and making the same non-bailable—On prosecution’s own showing, the Golf Course in question was being constructed at a far off place away from residential area and the main road—Apart from that if murderous assault had been launched in the manner as alleged in the F.I.R., then some damage ought to have been caused—F.I.R., mentioned that petitioners/accused and their co-accused, who were carrying dangerous fire-arms, had resorted to firing, but strangely enough no physical harm, whatsoever, had been caused by such firing—Case did not attract the provisions of the Anti-Terrorism Act, 1997—No statement was on record of any of the foreign or Pakistani workers, who had allegedly been scared away to support the claim of prosecution—Applicability of S.324, P.P.C. also did not appear to be made out for the simple reason that no harm was caused, though petitioners were allegedly armed with formidable weapons—Neither S.7 of the Anti-Terrorism Act, 1997 nor S.324, P.P.C. was applicable to the facts and circumstances of the case.

2008 PLD 487 KARACHI-HIGH-COURT-SINDH

HUZOOR BUX VS State

6—“Terrorist act”—Meaning and object—“Terrorism” is to be determined from the criminal act designed to create a sense of fear or insecurity in the minds of the general public disturbing even tempo of life and tranquillity of the society—Other ordinary crimes are not to be dealt under the Anti-Terrorism Act, 1997—Physical harm to the victim is not the sole criterion to determine the question of terrorism, as motive should be the key word or the objective of the act—When an offence is committed without the background of any enmity and manner and method of the commission of the offence is such that the public at large individually and collectively feel apprehension that any one of them can at any time be subjected to similar act of brutality, disturbing the physical and mental peace and tranquillity of the people, giving impression’ that the writ of the Government has been rendered ineffective, with the result that nobody is safe in pursuing ordinary pursuits of life, then such act certainly amounts to an act of “terrorism” as defined in S.6 of the Anti-Terrorism Act, 1997.

2008 PLD 487 KARACHI-HIGH-COURT-SINDH

HUZOOR BUX VS State

Ss. 365-A/392/353/324/337-A(i)—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Criminal Procedure Code (V of 1898), Ss.435/439—Constitution of Pakistan (1973), Art.199—Facts of the ease did not provide any suitable and appropriate circumstance for exercise of powers as required under Ss.435 and 439, Cr.P.C. and, as such, Revision Application was not maintainable, though the same could be converted into a constitutional petition—Anti-Terrorism Court vide impugned order had dismissed the application of accused for transfer of the case to an ordinary Sessions Court—Validity—For determining he issue whether the offence was triable under the Anti-Terrorism Act, 1997, or not nature of the offence had to be seen in the light of the averments that how the same had been committed along with the particular place of incident and the time 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—Incident in the present case had taken place at odd hours of the night near a graveyard—Complainant was neither going to be kidnapped for the particular purpose of ransom, nor any demand for ransom had been made so far—Some cash and a Mobile phone were allegedly robbed from the complainant—Prima facie, case against accused was of abduction falling under S.365, P.P.C.—Matter, thus, did not fall within the ambit of S.6 punishable under S.7 of the Anti-Terrorism Act, 1997, and the same was not triable by the Anti-Terrorism Court—Revision petition was consequently converted into a constitutional petition in the interest of justice and impugned order was set aside with the direction to Anti-Terrorism Court to transfer the case to the ordinary Sessions Court for trial in accordance with law—Petition was allowed accordingly.

2008 PLD 260 KARACHI-HIGH-COURT-SINDH

MUHAMMAD RAFIQUE VS MUHAMMAD ISMAIL

526—Penal Code (XLV of 1860), Ss.302 & 324/34—West Pakistan Arms Ordinance (XX of 1965), S.13(d)—Anti-Terrorism Act (XXVII of 1997), S.6—Transfer of case—Scope—Act of terrorism and jurisdiction of Anti-Terrorism Court—If an offender with an intention to strike terror in the people or any section of the people etc. would commit scheduled offence, then only he would be subject to jurisdiction of Anti-Terrorism Court—In order to determine as to whether an offence would fall within the ambit of S.6 of Anti-Terrorism Act, 1997, it would be essential to have a glance over the allegations made in F.I.R., record of case and surrounding circumstances—Whether a particular act was an act of terrorism or not, the motivation, object, design and purpose behind such act was to be seen—Whether said act had created a sense of fear and insecurity in the public or in any section of public or community or in any sect—Offence alleged in the present case had taken place because of the previous enmity and private vendetta—Facts of the case revealed that alleged sprinkling of the spirit on the person of the victim was within the boundary walls of the house of applicant and was not in public—Element of striking terror for creating sense of fear and insecurity in the people or any section of the people was not made discernible in the F.I.R. and for that matter on the record of the case as a whole—Application for transfer of case to the Anti-Terrorism Court filed under S.526, Cr.P.C. was dismissed, in circumstances.

2008 PCrLJ 1645 KARACHI-HIGH-COURT-SINDH

REHMAT ALI VS State

Ss. 302, 324, 353 & 354/34—Anti-Terrorism Act (XXVII of 1997), Ss.6(2)(a), (m) & 7—Appreciation of evidence—No motive was available for the murder in the case—No independent witness from the locality was examined to prove the prosecution case through reliable and confidence-inspiring evidence—Eye-witnesses were interested witnesses and had motive to implicate accused—Ocular account was not confidence-inspiring and trustworthy—Shaky evidence of the eye-witnesses could not be relied upon for recording the capital punishment, when their evidence was not corroborated by independent and reliable source—In absence of clear and straightforward evidence, doubtful narration of the prosecution witnesses did not carry weight to record conviction—Accused and co-accused, after being arrested, were not put to identification parade, though they were produced before the Magistrate for remand purpose during investigation—Police party was not in a position to identify the culprits at the time of the occurrence–Later when statement of the complainant under S.154, Cr.P.C. was recorded, he had given the names of accused involved in different dacoity cases, but no description of accused or that of co-accused was available on record—Injured could not be conveniently held that he sustained fire-arm injury at the hands of accused for two reasons; firstly that he being not traceable could not be examined; secondly that none of the prosecution witnesses had come forward to support the prosecution case to the extent of injury sustained by the injured—Even Doctor was not examined—Testimony of the police officials could not be the basis of the evidence—Arrest of accused was highly doubtful and from the circumstances a reasonable doubt could be drawn that defence evidence could be most probable—Impugned judgment of the Trial Court, awarding conviction and sentence to accused was set aside, in circumstances and accused was ordered to be released.

2007 SCMR 142 SUPREME-COURT

MOHABBAT ALI and another VS State

—-Ss. 6, 7 & 23—Penal Code (XLV of 1860), Ss.302/34, 427, 324, 148 & 109—Act of terrorism—Determination—Principles—Offence took place in the fields of sugarcane and banana, about 14/15 miles away from main road and case was sent to Anti-Terror

2007 PLD 571 SUPREME-COURT

FAZAL DAD VS Col.(Rtd.) GHULAM MUHAMMAD MALIK

—S. 6 & Preamble—Acts of terrorism—Trial—Object of promulgation of Anti-Terrorism Act, 1997, was to control acts of terrorism, sectarian violence and other heinous offences as defined in S.6 of Anti-Terrorism Act, 1997, and their speedy trial—To

2007 PLD 571 SUPREME-COURT

FAZAL DAD VS Col.(Rtd.) GHULAM MUHAMMAD MALIK

—Ss. 435/447/427—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7-A & 7-B—Act of terrorism—Determination—Transfer of case to Special Court—Case registered against accused was transferred to Special Court but High Court, in exercise of Constitutiona

2007 PLD 71 SUPREME-COURT

GHULAM HUSAIN SOOMRO VS THE STATE

–S. 365-A/34—Anti-Terrorism Act (XXVII of 1997), Ss.6(2)(e) & 7(e)—Constitution of Pakistan (1973), Art.185(3)—Reappraisal of evidence—Delay in lodging of F.I.R.—Minor discrepancies and deviations in prosecution evidence—Allegation against ac

2007 PLD 50 QUETTA-HIGH-COURT-BALOCHISTAN

Haji ARIF VS State

—-Ss. 302(b), 324 & 34—Anti-Terrorism Act (XXVII of 1997), S.6(2)(a)(b)—Appreciation of evidence—Benefit of doubt—Both prosecution witnesses had stated that accused attacked with dandas and thereafter absconding accused started firing—Statemen

2007 PCRLJ 1945 PESHAWAR-HIGH-COURT

MUHAMMAD SHAFA VS State

—S. 497—Penal Code (XLV of 1860), Ss.302 & 109—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Bail, refusal of—Accused not named in F.I.R.—Complainant did not claim to be an eye-witness of the occurrence hence merely absence of the names of accu

2007 PCRLJ 1092 PESHAWAR-HIGH-COURT

MURAD ALI VS State

—S. 497—Penal Code (XLV of 1860), Ss.302/324/114/109/396/452/401—Anti-Terrorism Act (XXVII of 1997), Ss.6/7—Bail on medical grounds, refusal of—Accused was suffering from “C.A. Thyroid” disease—Said disease being not manageable in District Hea

2007 PCRLJ 1011 PESHAWAR-HIGH-COURT

MERAJ HUSSAIN VS JUDGE, ANTI-TERRORISM, NORTHERN AREAS, GILGIT

—S. 324/34—Anti-Terrorism Act (XXVII of 1997), Ss.6/7—Juvenile Justice System Ordinance (XXII of 2000), S.4—Constitution of Pakistan (1973), Art.199—Constitutional petition—Trial of juvenile offenders by Anti-Terrorism Court—Jurisdiction—L

2007 PLD 604 LAHORE-HIGH-COURT-LAHORE

SHAMSHAD HUSSAIN VS SPECIAL JUDGE, ANTI-TERRORISM COURT, GUJRANWALA

—-Ss. 6 & 7—Penal Code (XLV of 1860), Ss.302/324/34—Constitution of Pakistan (1973), Art.199—Constitutional petition—Attack in day time by twenty six (26) accused persons after making announcement from mosque to attack complainant party—Direct

2007 PLD 444 LAHORE-HIGH-COURT-LAHORE

ABDUL SATTAR VS AMIR MUHAMMAD KHAN

—Ss. 6, 7 & 8—Jurisdiction of Anti-Terrorism Court, determination of—While deciding the question of jurisdiction it would be necessary to examine that the ingredients of the alleged occurrence have any nexus with the object of the Anti-Terrorism Act

2007 YLR 1222 LAHORE-HIGH-COURT-LAHORE

LIAQUAT ALI VS SPECIAL JUDGE, ANTI-TERRORISM COURT NO.1, GUJRANWALA

—Ss.324 & 353— Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 23—West Pakistan Arms Ordinance (XX of 1965), S.13—Explosive Substances Act (XI of 1908), Ss.3 & 4—Constitution of Pakistan (1973), Art.199— Constitutional petition—Transfer of cas

2007 YLR 45 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ABBAS VS State

—-Ss. 302 & 34—Anti-Terrorism Act (XXVII of 1997), S.6—Appreciation of evidence—Benefit of doubt—Occurrence had taken place at time of morning prayer when it was still dark and witnesses claimed that they had seen the occurrence in the light of

2007 YLR 45 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ABBAS VS State

—-Ss. 302 & 34—Anti-Terrorism Act (XXVII of 1997), S.6—Appreciation of evidence—Name of second co-accused was mentioned in promptly lodged F.I.R. with a specific role of causing injuries to deceased with pistol—Both prosecution witnesses, while

2007 PCRLJ 1933 LAHORE-HIGH-COURT-LAHORE

NASEER AHMED VS JUDGE ANTI-TERORRISM COURT-III, LAHORE

—S. 6(1)(g)(m) & (n)—Constitution of Pakistan (1973), Art.199—Constitutional petition—Setting aside order of the Special Court—F.I.R. showed allegation that petitioner/accused had blocked the road through burnt tyres; that when the police party

2007 PCRLJ 1752 LAHORE-HIGH-COURT-LAHORE

AZAD QADEER VS State

—Ss. 4, 6, 7 & 23—Constitution of Pakistan (1973), Art.199—Constitutional petition—Transfer of case to regular Court—No previous enmity existed between the parties—Occurrence had taken place in a restaurant which was also an open place for the

2007 MLD 124 LAHORE-HIGH-COURT-LAHORE

IFTIKHAR AHMAD VS SPECIAL COURT NO.1, LAHORE

—Ss. 6(2)(m)(n), 7 & 23—Penal Code (XLV of 1860), Ss.324, 224, 225, 353, 427, 148 & 149—Railways Act (IX of 1890), Ss.121 & 128—Constitution of Pakistan (1973), Art. 199—Constitutional petition—Transfer of case to ordinary court—Petitioners/

2007 PLD 106 LAHORE-HIGH-COURT-LAHORE

SULTAN VS State

—Ss. 6, 7 & 23—Penal Code (XLV of 1860), Ss.324, 427, 148 & 149—Criminal Procedure Code (V of 1898), S. 439—Terrorism—Offence in the case was committed on busy road—Traffic remained suspended in a queue of one mile due to the said act of terro

2007 YLR 987 KARACHI-HIGH-COURT-SINDH

MEHBOOB ALI VS PROVINCE OF SINDH

—-S. 6—Constitution of Pakistan (1973), Art.199—Constitutional petition—Terrorism—Transfer of case from ordinary court to the Anti-Terrorism Court—Petitioner/complainant had prayed that offence committed by accused be declared as ‘act of terro

2007 YLR 894 KARACHI-HIGH-COURT-SINDH

ALI MUHAMMAD VS State

—Ss. 302, 324 & 353—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Appreciation of evidence—Accused were not known to complainant prior to incident and their names were disclosed at Vardat by two witnesses—One of said witnesses had neither support

2006 PLD 524 SUPREME-COURT

MUHAMAMD NADEEM VS State

—S. 377—Anti-Terrorism Act (XXVII of 1997), Ss.6(c) & 7(ii)—Constitution of Pakistan (1973), Art.l85(3)—Reappraisal of evidence—Prosecution had proved the accusation by adducing confidence inspiring evidence—Victim had mentioned in categoric m

2006 PLD 109 SUPREME-COURT

ZAHID IMRAN VS State

–S. 6—Terrorist act—Connotation—Striking of terror is sine qua non for the application of the provisions as contained in S.6 of the Anti-Terrorism Act, 1997, which cannot be determined without examining the nature, gravity and heinousness of the al

2006 YLR 954 QUETTA-HIGH-COURT-BALOCHISTAN

ABDUL MAJEED VS State

—S. 13(e)—Anti-Terrorism Act (XXVII of 1997), Ss.6(3) & 25—Appreciation of evidence—Witnesses had corroborated each other on material point and proved the factum of recovery—Said witnesses were subjected to lengthy cross-examination but no mater

2006 MLD 867 PESHAWAR-HIGH-COURT

FAQIR MUHAMMAD VS State

–Ss. 302, 324, 396 & 149—Criminal Procedure Code (V of 1898), Ss.537 & 529—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Offences Against Property (Enforcement of Hudood) Ordinance, (VI of 1979), S.17—Appreciation of evidence—Occurrence though h

2006 PCRLJ 1551 LAHORE-HIGH-COURT-LAHORE

FIDA HUSSAIN VS ADDITIONAL SESSIONS JUDGE, JAMPUR, DISTRICT RAJANPUR

—Ss. 190 & 265-K—Penal Code (XLV of 1860) Ss.365-A, 337-A(i), 506(ii), 148 & 149—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 23–Constitution of Pakistan (1973), Art.199— Constitutional petition—Transfer of case to Anti-Terrorism Court—Compl

2006 PLD 64 LAHORE-HIGH-COURT-LAHORE

Rana ABDUL GHAFFAR VS ABDUL SHAKOOR

–Ss. 6, 12, 38, 28 & Third Schedule [as amended by Anti-Terrorism (Second Amendment) Act, 2004 (II of 2005)]—Penal Code (XLV of 1860), S.365-A read with S. 34—Constitution of Pakistan (1973), Arts. 199 & 12- Constitutional petition—Abduction or kid

2006 PCRLJ 1866 KARACHI-HIGH-COURT-SINDH

ASMAT VS State

—S. 497—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Explosive Substances Act (VI of 1908), Ss.3 & 4—Bail, grant of—Benefit of doubt—Entitlement—Scope—Case diary had shown that statements of prosecution witnesses were not recorded on the d

2006 PCRLJ 1576 KARACHI-HIGH-COURT-SINDH

Syed HASHIM ALI VS State

—Ss. 302, 365 & 377—Anti-Terrorism Act (XXVII of 1997), S.6(c)—Qanun-e-Shahadat (10 of 1984), Art.40—Appreciation of evidence—No eye-witness was of the incident—Prosecution case rested upon circumstantial evidence, which was not enough to just

2006 PCRLJ 639 KARACHI-HIGH-COURT-SINDH

Dr. KHALID MOIN VS State

—S. 365-A/34—Anti-Terrorism Act (XXVII of 1997), S.6(2)(e)—Appreciation of evidence—Corroboration—-Principles—Where a piece of evidence requires corroboration, then it cannot corroborate another piece of evidence which also requires corroborat

2006 PCRLJ 639 KARACHI-HIGH-COURT-SINDH

Dr. KHALID MOIN VS State

—S. 365-A/34—Anti-Terrorism Act (XXVII of 1997), S.6(2)(e)—Appreciation of’ evidence—Complainant admittedly despite having the knowledge of all the facts, did not disclose the same in the F.I.R.—No doubt, all the details were not required to be

2006 PCRLJ 639 KARACHI-HIGH-COURT-SINDH

Dr. KHALID MOIN VS State

–S. 365-A/34-Anti-Terrorism Act (XXVII of 1997), S.6(2)(e)—Appreciation of evidence— Identification parade— Principles—Identification parade being a corroborative piece of’ evidence can only corroborate the substantive evidence—When substantive

2006 MLD 1223 KARACHI-HIGH-COURT-SINDH

RIAZ AHMAD VS State

—-Ss. 302(b), 396 & 34—Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(4)—Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7—Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)—Appreciation of eviden

2006 MLD 834 KARACHI-HIGH-COURT-SINDH

MUHAMMAD SHAHID HANIF VS State

–Ss.302(b) & 34—Anti-Terrorism Act (XXVII of 1997), Ss.6(a) & 7(i)(a)—West Pakistan Arms Ordinance (XX of 1965), S.13(d)—Appreciation of evidence—Prosecution case rested upon four pieces of evidence; ocular account; identification test; confessio

2005 SCMR 802 SUPREME-COURT

AZIZULLAH VS State

–S. 365-A—Anti-Terrorism Act (XXVII of 1997), Ss.2(m) & 6(a)—Constitution of Pakistan (1973), Art.185(3)—Refusal of transfer of case from Anti-Terrorism Court to ordinary Court—Validity—Material available with the prosecution, prima facie, show

2005 PLD 530 SUPREME-COURT

Mirza SHAUKAT BAIG VS SHAHID JAMIL

—S. 6—“Terrorism”—Meaning—When an offence falls within scope and ambit of S.6 of the Act—Principles—Interpretation of S.6, Anti-Terrorism Act, 1997—Section 6, of the Act is exhaustive and is capable enough to meet all kinds of “terrorism” an

2005 PLD 530 SUPREME-COURT

Mirza SHAUKAT BAIG VS SHAHID JAMIL

–S. 6(1)(b)(c)—Constitution of Pakistan (1973), Art. 185(3)—Leave to appeal had already been granted in another case wherein the question pertaining to the jurisdiction of Special Judge under the Anti-Terrorism Act, 1997, in terms of S.6(1)(b) or (c)

2005 PCRLJ 1442 QUETTA-HIGH-COURT-BALOCHISTAN

State VS Jamadar MUHAMMAD KHAN

—Preamble, Ss.6, 7 & 8—Object and purpose of the Anti-Terrorism Act, 1997—Object to promulgate Anti-Terrorism Act, 1997, was to control the acts of terrorism, Sectarian violence and other heinous offences as defined in S.6 of the said Act and their

2005 PCRLJ 941 QUETTA-HIGH-COURT-BALOCHISTAN

MUHAMMAD SHARIF VS State

—Ss. 337-A, 353, 504 & 34—Anti-Terrorism Act (XXVII of 1997), Ss.2, 6, 7 & 25—Appreciation of evidence—Jurisdiction of Anti-Terrorism Court—Appeal, limitation for—Disruption and interference with duties of public servant, no doubt was caused b

2005 PLD 57 PESHAWAR-HIGH-COURT

Haji ABDUL HAKEEM VS JUDGE SPECIAL COURT ANTI-TERRORISM, D. I. Khan

–Ss. 6, 7, 8 & 23—Penal Code (XLV of 1860), S.302/34—Constitution of Pakistan (1973), Art.199—Constitutional petition—Anti Terrorism Act, 1997, applicability of—Transfer of case from Anti-Terrorism Court to ordinary Court—Anti-Terrorism Act,

2005 YLR 2483 PESHAWAR-HIGH-COURT

Mian MUHAMMAD GHAFOOR VS State

—Ss.302 & 34—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7(a) & 8— Constitution of Pakistan (1973), Art.199— Constitutional petition—Quashing of order and transfer of case to the Court of normal criminal jurisdiction—Petitioner/accused had praye

2005 YLR 2363 LAHORE-HIGH-COURT-LAHORE

AKHTAR HUSSAIN VS SPECIAL JUDGE, ANTI-TERRORISM COURT NO.3, LAHORE

—Ss. 6, 7 & 23—Penal Code (XLV of 1860), Ss. 302 & 321—Constitution of Pakistan (1973), Art. 199—Constitutional petition—Transfer of case from the Court of Special Judge, Anti-Terrorism to the Court of ordinary jurisdiction—Special Judge, Anti

2005 YLR 1865 LAHORE-HIGH-COURT-LAHORE

Qari ABDUL HAYEE VS State

—-Ss.302/149, 324/149, 295 & 148—AntiÂ-Terrorism Act (XXVII of 1997), Ss. 6 & 7(i), (ii)—Constitution of Pakistan (1973), Art. 10—Trial in absentia—Validity—Trials of accused held in their absence are ultra vires of Article 10 of the Constitu

2005 YLR 1865 LAHORE-HIGH-COURT-LAHORE

Qari ABDUL HAYEE VS State

—Ss.302/149, 324/149, 295 & 148—Anti-ÂTerrorism Act (XXVII of 1997), Ss. 6 & 7(i), (ii) —Constitution of Pakistan (1973), Art. 10—Trial in absentia—Validity—Trial of accused held in their absence being ultra vires of Article 10 of the Constit

2005 YLR 490 LAHORE-HIGH-COURT-LAHORE

State VS Haji KALAY KHAN

—-S. 417(2-A)—Penal Code (XLV of 1860), Ss. 324/337-H(2)/395/455/109/149—AntiÂTerrorism Act (XXVII of 1997), S.617(b)–ÂAppeal against acquittal—Motive part of prosecution story as furnished and proved by complainant/prosecution witness, was pla

2005 PCRLJ 957 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD IKRAM VS JUDGE, SPECIAL COURT-I,

-Ss. 302, 380, 411 & 34—Anti-Terrorism Act (XXVII of 1997), Ss.6, 7 & 23—Constitution of Pakistan (1973), Art.199—Constitutional petition—Transfer of case from Special Court to Court of ordinary criminal jurisdiction—Challan of case in which a w

2005 PCRLJ 768 LAHORE-HIGH-COURT-LAHORE

Malik MUHAMMAD IQBAL VS State

—S. 21-D, 19, 6 & 7—Penal Code (XLV of 1860), S.302—Criminal Procedure Code (V of 1898), S.498—Bail, before arrest, refusal of—Police Officers were the accused in the present case, who, during the operation in a jail, had resorted to indiscrimin

2005 PCRLJ 768 LAHORE-HIGH-COURT-LAHORE

Malik MUHAMMAD IQBAL VS State

–Ss. 204, 205, 91 & 190—Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7—Summoning of accused under S.204, Cr.P.C. in a complaint case—Procedure.

2005 MLD 1458 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD RAFIQ SHAHID VS SPECIAL JUDGE, ANTI-TERRORISM COURT, FAISALABAD DIVISION, FAISALABAD

—Ss.2(x), 6, 7 & 23—Penal Code (XLV of 1860), Ss.380, 436, 440, 148 & 149—Maintenance of Public Order Ordinance (XXXI of 1960), S.16—Constitution of Pakistan (1973), Art.199—Constitutional petition’-Petition for transfer of case to Court of ordi

2005 MLD 1096 LAHORE-HIGH-COURT-LAHORE

SARFARAZ VS SPECIAL JUDGE, ANTI-TERRORISM COURT, BAHAWALPUR

—-S.6—Constitution of Pakistan (1973), Art 199—Constitutional petition—Application for sending case from Special Judge Anti ÂTerrorism Court to the Court of Sessions Judge—Rejection of application—Complainant got-registered case against petit

2005 MLD 1096 LAHORE-HIGH-COURT-LAHORE

SARFARAZ VS SPECIAL JUDGE, ANTI-TERRORISM COURT, BAHAWALPUR

—S.6—Terrorism—Meaning—Act of “terrorism” means an act which was committed with sole object to terrorize people and to feel them insecure.