Section 23 Anti Terrorism Act (ATA),1997

Section 23 : Power to transfer cases to regular Courts

 

2023  PLD  110     PESHAWAR-HIGH-COURT

       SAEEDULLAH      Vs.     LAL SHER

Ss. 4(4) & 23—Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 23—Penal Code (XLV of 1860), Ss. 324 & 337-A(i)—Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15—United Nations Convention on the Rights of the Child, Art. 40 (2)(b)(iii)(iv)(vii)—Criminal Procedure Code (V of 1898), S. 439—Attempt to commit Qatl-i-amd, Shajjah-i-khafifah, unlicensed firearm and terrorism—Trial of juvenile—Jurisdiction—Accused was a juvenile and Anti-Terrorism Court declined to transfer his case to Juvenile Court—Validity—Provisions of Juvenile Justice System Act, 2018, take precedence in trial of juvenile accused of committing terrorist offences as it aligns with legislative intent expressed in Ss. 4(4) & 23 of Juvenile Justice System Act, 2018—Three categories of offences- minor, major, and heinous are mentioned in Juvenile Justice System Act, 2018, with the last one relevant to terrorism-related act—It is crucial to consider that certain safeguards; both substantive and procedural, available to minors can only be ensured through Juvenile Court platform—Such measures include confidentiality of proceedings, detention in observation homes, support from probation and social welfare officers to the investigating officer, and the social investigation report attached to report under S. 173, Cr.P.C.—Spectrum of rehabilitative penalties, such as probation, community service orders, detention in juvenile rehabilitation centers and prohibition of capital punishment, are only envisioned within the parameters of Juvenile Justice System Act, 2018—Absence of such safeguards can affect right of juvenile offenders to a fair trial—Pakistan has ratified United Nations Convention on the Rights of the Child—Trial of a child as per Art. 40(2)(b)(iii) & (vii) of United Nations Convention on the Rights of the Child should be conducted in Juvenile Court, ensuring safeguards of their privacy—Proper procedural measures under Art. 40(2)(b)(iv) of United Nations Convention on the Rights of the Child require ensuring the child effectively participates in trial—Rehabilitative approach to passing sentences has been emphasized in Art. 40(1) of United Nations Convention on the Rights of the Child—Juvenile accused committing terrorism offence would be tried by Juvenile Court established and notified under Juvenile Justice System Act, 2018—High Court transferred trial of juvenile accused to Juvenile Court—In light of S. 23 of Anti-Terrorism Act, 1997, the Juvenile Court would proceed with trial as if it had taken cognizance of the offence and resume from the stage it was transferred by Anti-Terrorism Court—Revision was allowed accordingly.

 2023  PCrLJ  764     KARACHI-HIGH-COURT-SINDH

       FAIZ MUHAMMAD PITAFI      Vs.     State

Ss. 23 & 6—“Terrorism”—Power to transfer cases to regular courts—Communal violence—Scope—Accused persons assailed the rejection of their plea for transfer of case to Sessions Court—Complainant had categorically stated in the body of FIR that incident had taken place due to enmity between two communities in which one person had already lost his life—Deceased was a renowned advocate of the locality and his murder might have created a sense of insecurity amongst the legal fraternity but neither murder of the deceased was caused due to his activities as an advocate nor it was done within or around the courthouse, wherein the deceased was practicing as an advocate—Only a small group from each community was involved in enmity as such it was a reason to declare the matter as a personal vendetta—Lest there was a mass scale conflict between two communities, it would not amount to personal rivalry and in such a situation it might be declared an act of terrorism—Since the incident in the case was motivated on account of a pre-existing enmity; therefore, the same was to be tried as a regular sessions case instead of an anti-terrorism case—Impugned order was set aside.

2023  PCrLJ  764     KARACHI-HIGH-COURT-SINDH

       FAIZ MUHAMMAD PITAFI      Vs.     State

23—Power to transfer cases to regular courts—Scope—High Court observed that it was least necessary to record evidence before passing an order about the jurisdiction of the Trial Court, it was against the scheme of law—Case had to be decided at the very initial stage on the basis of available material whether offence pertained to the ambit of terrorism or not—If the court was satisfied that the offence needed to be tried by the regular criminal court, such order should be passed immediately and if court decides otherwise, then the matter was to be tried by an Anti-Terrorism Court and after trial, the final verdict is to be pronounced by the same Court.

 2023  PCrLJ  203     ISLAMABAD

       ARSHAD MEHMOOD      Vs.     SPECIAL JUDGE-I, ANTI-TERRORISM COURT, ISLAMABAD

Ss. 6, 7 & 23—Penal Code (XLV of 1860), Ss. 302, 324, 337-F(iii) & 148—Act of terrorism— Factor of fear— Scope— On the allegations of Qatl-i-amd, attempt to Qatl-i-amd, Ghayr-Jaifah Mutalahimah and rioting armed with deadly weapons, trial was pending before Anti-Terrorism Court—Petitioner/accused sought transfer of case to Court of ordinary jurisdiction—Validity—Cultivation of fear as deterrence was the effect of action of claiming a human life—What distinguished imposition of sanction by State and imposition of sanction by a private party was intent behind such act—Cultivation of fear in and of itself could not be the determinant of whether an action had qualified as terrorism—Order passed by Anti-Terrorism Court refusing to transfer case to Court of ordinary jurisdiction was perverse in terms of its reasoning and conclusions drawn in view of evidence led by two prosecution witnesses with regard to the effect of actions attributed to the accused—Order in question was rendered by misapplying section 6 of Anti-Terrorism Act, 1997—No offence in terms of Ss. 6 & 7 of Anti-Terrorism Act 1997, was made out against petitioner—High Court set-aside order in question passed by Anti-Terrorism Court and under S. 23 of Anti-Terrorism Act, 1997 transferred trial to Sessions Court—Constitutional petition was allowed, in circumstances.

2023  PCrLJ  662     LAHORE-HIGH-COURT-LAHORE

       MUHAMMAD RAMZAN      Vs.      SPECIAL JUDGE ANTI-TERRORISM COURT-III, LAHORE

23—Penal Code (XLV of 1860), Ss. 365, 337-A(i), 337-L(2), 147 & 149—Anti-Terrorism Act (XXVII of 1997), S. 7—Kidnapping or abducting with intent to secretly and wrongfully to confine person, Shajjah-i-khafifah, hurt, rioting, unlawful assembly, act of terrorism—Power to transfer cases to regular Courts—Scope—Complainant reported an incident of abduction for ransom of his son, belabouring/torturing him as well as his son and after obtaining thumb impressions of brothers of the complainant/petitioner on a blank stamp paper as ransom, releasing his son—Application for transfer of the case to the ordinary Court was filed by accused persons, which was allowed—Validity—Record showed that the trial Court while examining the complaint, statements of complainant and other witnesses, Medico-legal Examination Certificates of the complainant as well as his son, found sufficient material for offence of “abduction for ransom” as well as injuries and summoned the accused persons under S. 204, Cr.P.C. to face the trial—Trial Court after examining the material under S. 265-D, Cr.P.C, framed the charge against accused persons under S. 365-A, P.P.C. also—Neither said summoning order nor charge framed by the Trial Court was challenged by accused persons/private respondents—Accused persons themselves got exhibited Stamp Paper/Affidavit during cross-examination over said witness/petitioner—Complaint filed by the petitioner/complainant mentioned date of occurrence including obtaining thumb impression on stamp paper was mentioned different and same was the date of scribing said Affidavit/Stamp Paper—Complainant claimed that his son was abducted for ransom, taken to office and then after getting thumb impressions of brothers of the complainant on blank stamp paper, he was released—Distance between place of abduction and confinement had been got clarified by defence during cross-examination from complainant—If anyone had been taken from one place to another, detained/confined there in order to extort any movable or immovable property or valueable security or to comply with any other demand whether in cash or otherwise for obtaining release of said person, then it fell within the definition of S. 365-A, P.P.C., which is a scheduled offence—Statement of said abductee, who was a star witness of the occurrence particularly regarding offence under S. 365-A, P.P.C., was yet to be recorded and he was present before the Court for recording his statement—Without recording his statement, it was concluded through impugned order that offence regarding abduction for ransom was not made out and the case was sent to the ordinary Court—Of course, after taking cognizance of the case, if Anti-Terrorism Court was of the opinion that offence was not a Scheduled Offence, then under S. 23 of the Anti-Terrorism Act, 1997, it could transfer the case to any other Court having jurisdiction to try the same—Anti-Terrorism Court, after receiving the complaint, did not return the same for presentation to the Court of ordinary jurisdiction rather took cognizance and recorded statement of the complainant on oath, then while conducting inquiry, recorded statements of abductee/injured and other witnesses, thereafter, taking into consideration complaint, statements of complainant, witnesses, Medico-legal Examination Certificates and other material, came to the conclusion that prima-facie offences under Ss. 365-A, 337-A, 337-L(2), 147 & 149, P.P.C., were made out and summoned the accused persons vide order, which order remained unchallenged—Trial Court under S. 265-D, Cr.P.C., on the basis of entire material, framed the charge against accused persons including S. 365-A, P.P.C., which also remained unchallenged, therefore, just after recording of evidence of the complainant and without recording statement of a star witness/abductee/injured/victim invoking power under S. 23 of Anti-Terrorism Act, 1997 and sending the case to Court of ordinary jurisdiction was premature exercise done by the Anti-Terrorism Court/Trial Court, which was neither permissible nor could be appreciated—Petition was allowed by setting aside the impugned order passed by the Anti-Terrorism Court, in circumstances.

  2023  PCrLJ  203     ISLAMABAD

       ARSHAD MEHMOOD      Vs.      SPECIAL JUDGE-I, ANTI-TERRORISM COURT, ISLAMABAD

1997. 23—Jurisdiction—Determination—Trigger for purposes of determining question of jurisdiction is after Anti-Terrorism Court takes cognizance of the offence—No outer limit for making such determination—Such question can be determined even at the time of rendering final judgment if Anti-Terrorism Court were to conclude at such time that accused was not liable for offence of terrorism under S. 7 of Anti-Terrorism Act, 1997, or for any other scheduled offence—Upon forming such opinion, Anti-Terrorism Court needs to still transfer the case to a court of competent jurisdiction to pass judgment in relation to offences which do not constitute an offence of terrorism or a scheduled offence under Anti-Terrorism Act, 1997.

 2023  YLRN  10     GILGIT-BALTISTAN-SUPREME-APPELLATE-COURT

       MUHAMMAD ZAMAN      Vs.     State

Ss. 6 & 23—“Terrorism”—Power to transfer cases to regular Courts—Scope—Accused persons assailed the concurrent dismissal of their application under S. 23 of the Anti-Terrorism Act, 1997—Facts and circumstances which resulted in occurrence of the untoward incident were reported to be playing of music by complainant party in front of Masjid during prayer time—Such act of complainant party enraged the accused persons to open indiscriminate firing which took two lives—Incident had taken place between people of two factions, one belonging to Shia and the other Sunni sect—No previous enmity existed between the two groups—Acts committed by accused persons attracted subsection (2)(i) of S.6 of the Anti-Terrorism Act, 1997—Incident immediately after its occurrence had created serious risk to safety of public and property which had frightened the general public and had prevented them from coming out and carrying on their lawful trade and daily business—No illegality was found in the impugned judgments—Criminal petition for leave to appeal was dismissed.

 2022  YLRN  84     KARACHI-HIGH-COURT-SINDH

       NADAR BURIRO      Vs.     IMAM DIN

Ss. 6(1)(k), 7(g) & 23—Act of terrorism—Court, jurisdiction of—Petitioners were alleged to have committed act of extortion/Bhatta and then committed murder—Anti-Terrorism Court declined to transfer the case to court of ordinary jurisdiction—Validity—First Information Report by complainant specifically mentioned that accused persons and others were demanding extortion/Bhatta from his deceased brother and on account of his failure to meet with such demand, firstly they robbed him and then committed his murder by causing him fire shot injuries at his bakery—No enmity or vendetta existed between the parties leading to death of deceased who was firstly robbed and was done to death allegedly by accused persons and others, on account of his failure to pay them extortion/Bhatta—High Court declined to interfere in the order passed by Anti-Terrorism Court—Constitutional petition was dismissed, in circumstances.

2022  PLD  209     KARACHI-HIGH-COURT-SINDH

       MURAD alias MANN      Vs.     MANZOOR AHMED

Ss. 6 & 23—Act of terrorism—Necessary ingredients—Accused sought transfer of his case to Court of ordinary criminal jurisdiction on the plea that it was not an act of terrorism—Validity—Fear or insecurity created actually or not as a result of an offence is not a decisive factor to qualify it as terrorism; it is only when intent and motive of such offence is to create fear or insecurity in society for achieving political, ideological and religious objectives, such act can be labelled as terrorism—Deceased were done away inside house and motive prima facie, from investigation report under S.173, Cr.P.C. besides being robbery was shrouded in mystery—Purpose to kill deceased was unrelated to objectives specified and detailed in S.6(1)(c) of Anti-Terrorism Act, 1997—Though death of deceased was horrific but design to assassinate them was not to create terrorism or to destabilize government for achieving political etc. objectives—Such situation, its effects and consequences did not align with terrorism—Case was transferred from the Court of Anti-Terrorism to Court of ordinary criminal jurisdiction—Revision was allowed, in circumstances.

 2022  MLD  425     KARACHI-HIGH-COURT-SINDH

       P.C. NASIR HUSSAIN      Vs.     HASNAIN SHAH

Ss.6 & 23—Act of “terrorism”—Power to transfer cases of regular Court to Special Court—Scope—Accused along with others was alleged to have fired at the police party upon being espied—Accused moved application under S. 23 of Anti-Terrorism Act, 1997, before the Trial Court, which was allowed vide impugned order—Held, for an action or threat of action to be accepted as “terrorism” within the meaning of S.6 of Anti-Terrorism Act, 1997, the action must fall in subsection (2) of S.6, of Anti-Terrorism Act, 1997 and the use or threat of such action must be designed to achieve any of the objectives specified in clause (b) of subsection (1) of S.6—Any action constituting an offence, howsoever, grave, shocking, brutal, gruesome or horrorfying did not qualify to the term “terrorism” if it was not committed with the design or purpose specified or mentioned in clauses (b) or (c) of subsection (1) of S.6, of the Anti-Terrorism Act, 1997—Ingredients of S. 6(1)(b) & (c) were conspicuously absent—Application was dismissed.

2018  PCrLJN  22   KARACHI-HIGH-COURT-SINDH

AFAQ SHAFQAT VS State

23—Transfer of case from Anti-Terrorism Court to court of ordinary criminal jurisdiction—Procedure—Anti-Terrorism Court had to see the contents of FIR, material collected by the Investigating Officer and the evidence led by the prosecution at the time of deciding application for transfer of the case.

2018  PCrLJN  22   KARACHI-HIGH-COURT-SINDH

AFAQ SHAFQAT VS State

23—Transfer of case from Anti-Terrorism Court to court of ordinary criminal jurisdiction–Scope—Scope of S. 23 of the Act, 1997 was not meant to frustrate or delay the decision, but was meant to ask the Anti-Terrorism Court at initial stage to return the file if the offence was not one of the “scheduled offences”.

2018  PCrLJN  22   KARACHI-HIGH-COURT-SINDH

AFAQ SHAFQAT VS State

Ss. 365, 342 & 34—Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 23—Kidnapping or abducting with intent secretly and wrongfully to confine person, wrongful confinement, common intention, act of terrorism—Transfer of case from Anti-Terrorism Court to ordinary criminal court was sought contending that the crime/offences, with which accused was charged, being not a “Scheduled Offence”, was not triable by the Anti-Terrorism Court—Application under S. 23 Anti-Terrorism Act, 1997 was pending and case had been fixed for final arguments without deciding the said application—Contention was that question of jurisdiction was to be decided first—Application was later on dismissed holding that point of jurisdiction would be taken first at the time of hearing final arguments—Validity—Accused apparently by using delaying tactics, either by changing counsel or remaining absent from the proceedings, had avoided to face the trial—Record showed that accused did not question the competence of court at the time of taking cognizance of the case; at the time of framing of charge; during trial and even when he was being examined under S. 342, Cr.P.C.—Accused came up with the application of transfer of case to general court only when the Trial Court insisted for final arguments—Observation of the Trial Court was available on record to the effect that point of jurisdiction would be decided at the time of hearing final arguments—Constitutional petition was dismissed 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  MLD  314   Gilgit-Baltistan Chief Court

State VS ZAHEER-UD-DIN

1. 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.

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  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

1. 23—Power of Judge, Anti-Terrorism Court—Transfer of case to regular Court—Scope—Petitioner had alleged that Anti-Terrorism Court had transferred the case to the ordinary court without framing charge and recording evidence, which was against S.23 of the Act—Power to transfer the case to the ordinary/regular court could be exercised by the Anti-Terrorism Court at any stage of the case.

2017  PCrLJ  527   PESHAWAR-HIGH-COURT

AHMAD ALI VS State

1. 23—Transfer of case from Anti-Terrorism Court to court of ordinary criminal jurisdiction—Procedure—Anti-Terrorism Court, after taking cognizance of an offence, if opined that allegation in FIR and material collected by investigating agency did not constitute a Scheduled Offence, case would be transferred to the court of ordinary criminal jurisdiction.

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  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  PCrLJ  1280   KARACHI-HIGH-COURT-SINDH

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

1. 23—Transfer of case from Anti-Terrorism Court to court of ordinary jurisdiction— Scope— Anti-Terrorism Court possessed jurisdiction to transfer case to the court of ordinary jurisdiction.

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), S. 23—Power of court of ordinary jurisdiction—Transfer of case from court of ordinary jurisdiction to Anti-Terrorism Court—District and Sessions Judge/Additional District and Sessions Judge was not authorized to declare any offence as Scheduled offence and to transfer the case to the special court straightway.

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), S. 23—Transfer of case from the court of ordinary jurisdiction to Anti-Terrorism Court—Principles—No powers were conferred on the ordinary courts of criminal jurisdiction to transfer the case from its docket to the Court of Anti-Terrorism—If the Sessions Court or Additional Sessions Court was of the opinion that alleged offence was triable by the Anti-Terrorism Court, as the commission of the crime had created panic and terror amongst the people and manner in which crime had been committed had developed sense of fear and insecurity in the minds of people or any section of society, two courses were available to the Sessions Court for transfer of case: firstly, reference would be made to the Chief Justice of High Court in terms of S. 526(3), Cr.P.C.; secondly, Sessions Court would issue notice to the Prosecutor General and to the accused/complainant party/aggrieved person(s) and after providing an opportunity of being heard come to conclusion that the case was of the nature triable by the Anti-Terrorism Court—Challan would be returned to the Investigating Officer/agency for submitting the same before the court having jurisdiction—Constitutional petition was allowed 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  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  442   KARACHI-HIGH-COURT-SINDH

BUKHSHAL VS SPECIAL JUDGE (ANTI TERRORISM), HYDERABAD

1. 23—Transfer of case to court of ordinary jurisdiction—Scope—While dealing with application for transfer of case from Anti-Terrorism Court to Court of ordinary jurisdiction, it was incumbent upon Court to scan available material prudently and adjudge as to what was the motive behind commission of offence as to whether accused was a “terrorist” and “sectarian criminal” who killed innocent people either to weaken the State or to cause damage to the parties of rival sect or the offence was committed in wake of enmity.

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  PCrLJN  246   KARACHI-HIGH-COURT-SINDH

MASHOOQUE ALI VS State

1. 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  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  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  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  1   SUPREME-COURT

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

1. 23—Case transferred from Anti-Terrorism Court to court of ordinary criminal jurisdiction—Procedure—Such case would resume (before the ordinary criminal court) from the stage at which it was transferred by the Anti-Terrorism Court.

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  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  PLD  89   LAHORE-HIGH-COURT-LAHORE

BASHIR AHMAD VS State

1. 23 & Third Sched. Para 4(iv)—Penal Code (XLV of 1860), Ss.336-B, 452 & 34—Constitution of Pakistan, Art.199—Constitutional petition—Hurt by corrosive substance (acid)—Jurisdiction of Anti-Terrorism Court—Scope—Offence of throwing acid on victim in a house—Plea of accused that since such alleged offence took place in the room of a house, and did not create any sense of fear or insecurity in the mind of public at large, therefore the Anti-Terrorism Court did not have the jurisdiction to try the case—Application for transfer of case from Anti-Terrorism Court to ordinary court was allowed by Anti-Terrorism Court—Validity—Offence (of throwing acid) committed by the accused, in the present case, fell under S.336-B, P.P.C. and the same was duly reflected in the Third Schedule to the Anti-Terrorism Act, 1997—Paragraph No. 4(iv) of Third Schedule to the Anti-Terrorism Act, 1997 clearly postulated that the Anti-Terrorism Court to the exclusion of any other court shall try the offence relating to hurt caused by corrosive substance or attempt to cause hurt by means of a corrosive substance—Medico-legal certificate of the victim issued, in the present case, clearly reflected that the injuries on the person of the victim were the result of acid—Anti-Terrorism Court constituted under the Anti-Terrorism Act, 1997 had direct jurisdiction in the offences mentioned in Paragraph No.4(iv) of Third Schedule to the Anti-Terrorism Act, 1997 and no nexus was required to be searched for such scheduled offences as the very commission of said offences created terror, panic and sense of insecurity amongst the general public—Application moved by accused for transfer of his case from Anti-Terrorism Court to the court of ordinary jurisdiction was dismissed in circumstances—Constitutional petition was allowed accordingly.

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  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  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  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.

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-at­large; 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—Anti­-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  2409   LAHORE-HIGH-COURT-LAHORE

GHULAM AKBAR VS State

Ss. 452, 337-H(2), 342, 440, 447, 511, 148 & 149—Anti-Terrarism Act (XXVII of 1997), Ss.7 & 23—Constitution of Pakistan, Art. 199—Constitutional petition—House trespass after preparation for hurt, assault or wrongful restraint, causing hurt by rash or negligent act, wrongful confinement, mischief committed after preparation made for causing death or hurt, criminal trespass, attempt to commit offence, rioting, common object, act of terrorism—Application for transfer of case to the court of ordinary jurisdiction—Dismissal of application—Incident in the case took place at odd hours of night—Civil litigation was pending between the parties regarding property possessed by the complainant—Altercation took place between the complainant and accused, when they went to attend to persue their case before Director Anti-Corruption—No body had received any injury in that occurrence, and commission of the crime by accused at some public place, was not borne out from the record, whereby it could be termed that accused had frightened the general public and created terror and fear amongst the people—Motive for the occurrence in the case was enmity inter se the parties on account of their longstanding civil litigation—Applicability of S.7 of Anti-Terrorism Act, 1997, which primarily required the spread of sense of insecurity and fear in the common mind, did not attract, in circumstances-Impugned order passed by the Special Judge Anti-Terrorism Court, being not based upon proper appreciated facts and the relevant law on the subject, was set aside—Application moved by the petitioner under S.23 of Anti-Terrorism Act, 1997 for transfer of case FIR, was accepted—Case pending before the Special Judge Anti-Terrorism, stood transferred to the court of ordinary jurisdiction.

2015  MLD  711   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD NAWAZ VS State

Ss. 2(n), 7(e) & 23—Penal Code (XLV of 1860), Ss.365 & 365-A—Criminal Procedure Code (V of 1898), S. 154—Constitution of Pakistan, Art.199—Constitutional petition—Kidnapping and kidnapping for ransom—Act of terrorism—Determination—FIR, object of—Anti-Terrorism Court after completion of trial came to the conclusion that offence of terrorism was not made out, therefore, challan was returned to prosecution for presenting it before Court of competent jurisdiction—Validity—Purpose of lodging FIR was merely to initiate process of law—During course of investigation, after recording statement of alleged abductee and relevant prosecution witnesses, prosecution built up its case that accused had been claiming ransom from abductee and concerned prosecution witnesses during period of his illegal detention—Alleged offence attracted provisions of S.2(n) of Anti-Terrorism Act, 1997, which was exclusively triable by Anti-Terrorism Court as provided in Third Schedule of Anti-Terrorism Act, 1997—Anti-Terrorism Court was misconceived while declining to exercise jurisdiction with reference to absence of any act or attempt to spread harassment or terrorism—High Court directed Anti-Terrorism Court to decide case in accordance with law—Petition was allowed in circumstances.

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  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  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.

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  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(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  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  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  959   KARACHI-HIGH-COURT-SINDH

BISHAR AHMED VS Syed SIKANDAR ALI SHAH alias SHER

Ss. 526 & 497—Anti-Terrorism Act (XXVII of 1997), S. 23—Judge, Anti-Terrorism Court transferring case to Sessions Court while deciding a bail application under S. 497, Cr.P.C. without issuing notice to the complainant—Legality—Judge, Anti-Terrorism Court while passing such order deprived the complainant from right of hearing—No notice was issued to the complainant for the bail application— Case could not be transferred without providing opportunity of hearing to the other side, thus Judge, Anti-Terrorism Court had negated basic principle of law that one could not be condemned unheard (audi alteram partem)—Impugned order of Judge, Anti-Terrorism Court was set aside in circumstances and case was returned back to the Anti-Terrorism Court for passing of fresh order on the point of jurisdiction after hearing the parties under S. 23 of Anti-Terrorism Act, 1997.

2014  PCrLJ  43   KARACHI-HIGH-COURT-SINDH

SUNDER JAKHRANI VS Haji MUHAMMAD NOOR

1997. 23— Power of Judge, Anti-Terrorism Court— Scope—Jurisdiction to decide whether a case fell within the jurisdiction of Anti-Terrorism Court—Such jurisdiction lay with the Judge of Anti-Terrorism Court under the provisions of section 23 of Anti-Terrorism Act, 1997.

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  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.

2014  PCrLJ  1071   ISLAMABAD

Rao FAHD ALI KHAN VS State

1. 23—Criminal Procedure Code (V of 1898), Ss. 190 & 193—Transfer of case from Anti-Terrorism Court to court of ordinary jurisdiction and vice versa—Procedure—Though S. 23 of the Anti-Terrorism Act, 1997 provided a procedure for transfer of case to the court of ordinary jurisdiction, but same could not be done by by-passing procedural law—Anti-Terrorism Court was not empowered to transfer the case directly to the Court of Session or Additional Sessions Judge without following the procedure laid down under Ss.190 & 193, Cr.P.C.—Likewise Sessions Judge had no authority by virtue of law to transfer or send the case (directly) to any court constituted under the Anti-Terrorism Act, 1997—Both courts (Anti-Terrorism Court and Sessions Court ) had no alternate except to return back the F.I.R. and final report submitted by police to the prosecution or concerned investigating officer for the purpose of its onward process by presenting the same before the court of competent jurisdiction.

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  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

1. 23—Transfer of case from Anti-Terrorism Court to an ordinary Court on grounds of previous enmity—Validity—Case could not be transferred on the basis of previous enmity as same was not the sole criterion to decide such a point.

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

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  PCrLJ  52   KARACHI-HIGH-COURT-SINDH

GUL MUHAMMAD VS State

Ss. 526 & 561-A—Anti-Terrorism Act (XXVII OF 1997), Ss.7 & 23—Penal Code (XLV of 1860), Ss.353, 427, 435, 337-F(v), 147, 148 & 149—Assault or criminal force to deter public servant from discharge of his duty, mischief, causing hashimah, rioting, common object—Application for transfer of case from the court of Judge Anti-Terrorism to ordinary court—In order to satisfy and to determine, whether case was triable by the Anti-Terrorism Court or the normal court, it was essential to have a glance over the allegations made in the F.I.R.—Court was also to evaluate whether ingredients of offence had any nexus with the object of case as contemplated under Ss.6, 7, 8 of the Anti-Terrorism Act, 1997—Whether a particular act was an act of terrorism or not, the motivation, object, design or purpose behind the said act was to be seen and that the said act had created a sense of fear and insecurity in the public; or any section of the public or community or in any sect—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—In the present case, it was manifesting from the allegation raised in the F.I.R., that a crowd simply gathered to collect their “Watan Card”, which had shown that there was no preplanned concert or intention to attack the Police—Public gathered for collection of ‘watan card’ were not armed with any weapon, except the allegation that they attacked upon the Police party through lathis—Due to some delay or mismanagement, mob infuriated under some kind of frustration and they broke the queue, but no efforts were shown to have been made by the Police to disperse the mob though they had an option to use tear gas to diffuse the public pressure, if any—Possibility of some untowards incidents, in such type of events, could not be ruled out, where people gathered/assembled in a large scale—In order to avoid any mishap or calamity, it was the responsibility of organizers to ensure and make proper and swift arrangements and system for distribution of Watan Card, so that the rights of flood affected people might have been delivered promptly—Offences charged with in the F.I.R., at the best, were triable by ordinary/normal courts and not by Anti-Terrorism in which court would decide the case on the basis of evidence, whether the applicant was victim or aggressor—Transfer application was allowed with the direction to transfer the case relating to crime from Anti-Terrorism Court to the court of Sessions Judge.

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.

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  2448   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SHARIF VS JUDGE, ANTI-TERRORISIM COURT

1. 23—Power to transfer cases to regular court—Scope—Scope of provisions of S.23 of Anti-Terrorism Act, 1997, cannot be limited to a specific point of trial, rather by use of word “cognizance”, which includes trial, Legislature was cognizant of the fact that in some cases the question of jurisdiction may be properly decided after recording of some evidence.

2012  YLR  2448   LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SHARIF VS JUDGE, ANTI-TERRORISIM COURT

Ss. 17, 23 & 7—Penal Code (XLV of 1860), Ss.365-A/302—Constitution of Pakistan, Art.199—Constitution petition—Abduction for ransom, qatl-e-amd—Anti-Terrorism Court vide impugned order had sent the case to the court or ordinary jurisdiction for decision-Validity-Anti-Terrorism Court had tried the offences and formed the opinion that a case of scheduled offence under S.365-A, P.P.C. had not been made out—After having formed a different opinion in terms of S.23 of the Anti-Terrorism Act, 1997, said court had no jurisdiction to pass any final judgment in the trial and it had the only option to transfer the case to the court of ordinary jurisdiction, as provided under S.23 of the said Act—Scope of S.23 of Anti-Terrorism Act, 1997, could not be limited to a specific point of trial, rather by use of word “cognizance” which includes trial, the Legislature was cognizant of the fact that in some cases (like the present one) the question of jurisdiction might be properly decided after recording of some evidence—Impugned order, thus, did not suffer from any procedural error, illegality, irregularity or jurisdictional defect and the same being perfectly in accordance with law was maintained—Constitutional petition was dismissed accordingly.

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. 23 & 7—Penal Code (XLV of 1860), Ss.324/109/148/149—Constitution of Pakistan, Art.199—Constitutional petition—Attempt to commit qatl-e-amd, abetment, rioting armed with deadly weapons—Anti-Terrorism Court had dismissed the application moved by the accused petitioner under S.23 of the Anti-Terrorism Act, 1997, for transfer of the case to the court of ordinary jurisdiction—Validity—Accused party while armed with fire-arms had attacked on the complainant party on its coming out of the court after hearing of a pre-arrest bail application—As a result of said attack six persons were injured and leg of one of the victims was amputated—Courts were closed and the Lawyers lodged a protest by observing strike for commission of heinous offence inside the court compound, where numerous persons including Advocates, their clerks, litigants, courts staff and Presiding Officers were present—Such act of barbarism was liable to be dealt with iron hands and under the Third Schedule of the Anti-Terrorism Act, 1997, only Anti-Terrorism Court had been vested with the jurisdiction to try the cases of firing or use of explosives by any device including bomb blast in the court premises Anti-Terrorism Court, therefore, had the exclusive jurisdiction to try the present case and it had rightly dismissed the application of accused for transfer of the case to ordinary court—Constitutional petition was dismissed accordingly.