Rabnawaz vs Special Judge etc.

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Case No. Writ Petition No.12203 of 2015

Rabnawaz Versus Special Judge, ATC etc.

S.No. of order/ Date of order/ Order with signature of Judge and that of Proceedings Proceedings Parties of counsel, where necessary.

22.06.2015 Malik Matee Ullah, Advocate for the petitioner. Mr. Sittar Sahil, Assistant Advocate General and Ch. Muhammad Mustafa, Deputy Prosecutor General for the State along with Muhammad Ashraf, A.S.I.

Mr. Muhammad Sharif Khokhar, Advocate for respondents No.3 and 4.

Mian Muhammad Abdullah Kalyar, Advocate for respondent No.5.

Mr. M. Tariq Mehmood, Advocate for respondent No.6.

Through this petition, the petitioner assails the order dated 15.04.2015 passed by the learned Special Judge, Anti- Terrorism Court, Sargodha whereby the application moved by respondents No.3 to 6/accused for transfer of case F.I.R No.105/2014 dated 14.06.2014 under Section 336-B/34 PPC to a court of ordinary jurisdiction has been allowed.

2.Heard. Record perused.

3.We have noted that F.I.R in this case was registered against the accused/respondents No.3 to 6 with the allegation that they threw acid on the son of the complainant, due to which, his eyes, face, and some other parts of the body have been damaged. Admittedly, the offence mentioned in the F.I.R comes within the purview of Third Schedule of Anti-Terrorism Act, 1997, however, the only reason prevailed with the learned Special Judge, Anti-Terrorism Court for sending the matter to the court of ordinary jurisdiction was that the case in hand is an

outcome of personal motive without there being any intention on the part of the accused to cause panic, fear, terror and instability in any section of the society.

4.In this regard we have observed that Section 6 of Anti- Terrorism Act, 1997, provides the definition of ‘Terrorism’ but to the extent of act or action mentioned in sub-section (2), sub-section (1) provides certain pre-requisites provided in sub- clauses (b) and (c) to bring the use or threat of action provided in sub-section (2) within the meaning of “terrorism” and in this respect sub-section (3) is also very relevant so, the pre- requisites provided in sub-section (1) are to be considered whenever use or threat of actions provided in sub-section (2) are to be evaluated to the effect that whether the same fall under the definition of “terrorism” or not to finally determine the jurisdiction of the court but the legislature has left no space for interpretation or determination with regard to certain actions by placing the same in the third schedule to the Anti-Terrorism Act, 1997. The offence of causing hurt caused by corrosive substance or attempt to cause hurt by means of corrosive substance which is punishable under Section 336-A of Pakistan Penal Code stands added in the said schedule in accordance with the provisions of Section 34 of the Act ibid. The plain reading of Section 336-A PPC provides as under:- “Whoever with the intention or knowingly causes or attempts to cause hurt by means of corrosive substance or any substance which is deleterious to human body when it is swallowed, inhaled, comes into contact or received into human body or otherwise shall be said to cause hurt by corrosive substance”.

In the Explanation it has been clarified that “corrosive substance” also includes every kind of acid which has a corroding effect and is deleterious to human body. Paragraph No.4 (iv) of the Third Schedule to the Anti-Terrorism Act, 1997

clearly postulates 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.

5.Therefore, by allowing this writ petition the impugned order dated 15.04.2015 passed by the learned Special Judge, Anti-Terrorism Court being not sustainable is set aside resulting in dismissal of the application moved by the accused/respondents No.3 to 6 for transfer of case to the court of ordinary jurisdiction. However, the learned trial court is directed to conclude the trial of the case within a period of four months after the receipt of this order.

(Muhammad Anwaarul Haq) (Syed Shahbaz Ali Rizvi) Judge Judge

Approved for reporting.

Judge Judge

*Nazir*