The state Vs Tajmahal and others

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department)

Writ Petition No. 6450-P of 2026.

Date of hearing: 15.09.2026.

Mr. Noman ul Haq Kakakhel, Addl. AG, along with Zafar Abbas, Senior Law Officer, CTD & Zia Khan, Inspector, IO, CTD, for the State.

M/s Hussain Ali & Shan Asghar, advocates, on behalf of the respondents Tajmahal & others.

JUDGMENT

SAHIBZADA ASA.DULLAH, J.- By way of invoking the writ jurisdiction of this Court, the State/petitioner has assailed the order dated 16.04.2026, passed by the learned Judge, Anti- terrorism Court-II, Peshawar, whereby section 11-F (2) and section 11-OOO (2) were deleted, and by invoking the provision of section 23 of the Anti-Terrorism Act, 1997, transferred the case to the Court of the learned Sessions Judge, Khyber for disposal.

2.Briefly stated, the prosecution case is that FIR No. 86, dated 15.10.2024, was registered against unknown persons regarding

the alleged dacoity of gold and foreign currency near the Torkham Border, purportedly committed to finance terrorist activities in Pakistan by a terrorist organization based in Afghanistan. During investigation, several persons were nominated for their alleged involvement in the commission of the dacoity and the subsequent possession, sale and purchase of the looted gold, besides distribution of its sale proceeds. The prosecution further alleges that the accused persons, acting in concert, executed the snatching and disposed of the looted articles through intermediaries.

Recoveries of gold, cash, weapons and mobile phones were allegedly effected from different accused persons during the course of investigation.

During the inquiry/investigation, different accused, including the present respondents, were nominated and upon their arrest, recoveries of gold and cash had allegedly been effected from their possession. After completion of the investigation, a complete challan was submitted

before the competent Court. Trial commenced;

the prosecution produced its entire evidence, and closed its evidence. Afterwards, statements of the respondents/accused were recorded, and the case was fixed for final arguments. The learned trial Court heard the parties, and through the impugned order it deleted section 11-F (2) and section 11-000(2) of the ATA, and further invoked the provisions of section 23, transmitted the record to the ordinary criminal Court, i.e., Sessions Judge, Khyber. Felt aggrieved by the order, the State has assailed the impugned order through the instant constitutional petition.

3.Arguments heard. Record perused.

4.At the threshold, learned counsel for the respondents raised a preliminary objection to the maintainability of the present constitutional petition. The objection, shorn of embellishment, proceeds on the premise that although the impugned order purports to have been made in exercise of the power contemplated by section 23 of the Anti-

Terrorism Act, 1997, its true effect was to acquit the accused of the charge under section 7 of the Act. It was, therefore, contended that the order, being in substance a judgment of acquittal, could only be assailed through the appellate remedy provided by section 25 of the Act and not by invoking the constitutional jurisdiction of this Court under Article 199 of the Constitution. The objection necessitates, at the outset, a proper characterization of the impugned order, for the availability of a remedy follows the legal character of the order sought to be questioned.

That character is determined neither by the caption placed upon an order nor by the vocabulary employed in its reasoning. A judicial determination must be understood by reference to its substance, operative effect and, most importantly, the jurisdiction which the Court actually exercised. The distinction assumes particular significance under the Anti-Terrorism Act, where an order declining special jurisdiction under section 23 and a judgment finally adjudicating a charge under section 7

occupy altogether different fields and carry markedly different legal consequences.

Where an Anti-Terrorism Court merely forms the opinion contemplated by section 23 that the offence before it is not a scheduled offence, and consequently transmits the case for trial to a Court of ordinary criminal jurisdiction, it acts upon the question of forum and not upon the guilt or innocence of the accused. Such an order does not cease to be jurisdictional merely because the Court, in arriving at that opinion, finds it necessary to advert to the allegations, the evidence collected by the prosecution, or the circumstances emerging from the record.

Indeed, a jurisdictional determination may itself require some examination of the material before the Court; but examination of evidence for identifying the forum competent to try an offence cannot be equated with appraisal of evidence for determining criminal culpability.

The two exercises may occasionally traverse the same factual terrain, yet in law they travel towards entirely different destinations. The

dividing line, therefore, is not the quantity of evidence discussed, but the juridical purpose for which it is considered and the consequence which the Court ultimately attaches to that consideration. If the exercise culminates merely in the conclusion that the special jurisdiction of the Anti-Terrorism Court is not attracted and that the case ought to proceed before the ordinary criminal Court, the order remains one within the province of section 23. If, on the other hand, the Court assumes adjudicatory jurisdiction over the charge, evaluates the evidence for determining culpability and thereafter pronounces the accused not guilty of that charge, the resulting determination bears the character of an acquittal. The distinction is substantive, not semantic.

5.Examined against this principle, the impugned order does not expressly pronounce the respondents acquitted of the charge under section 7 of the Act. More importantly, its operative part contains no direction by which

that charge has been finally extinguished through a verdict of not guilty. What the learned Anti-Terrorism Court ultimately did was to decline the special jurisdiction invoked before it and transmit the matter to the Court which, in its estimation, possessed ordinary criminal jurisdiction over the offence. The mere circumstance that the learned Judge discussed portions of the evidence while arriving at that conclusion cannot, by itself, convert an order concerning the proper forum into a judgment determining criminal liability. An acquittal is not a matter of inference, still less one to be fashioned retrospectively from observations occurring in the reasoning of an order. It is a solemn judicial determination carrying consequences of considerable importance for the accused, the prosecution and the administration of criminal justice alike. Where the Court has neither pronounced the accused not guilty nor brought the prosecution to an end, it would be legally incongruous to attribute to its order an acquittal which its operative command does not

contain. To hold otherwise would allow the incidental discussion of evidence to eclipse the very jurisdiction which the Court professed to exercise and the relief which it actually granted.

We are, therefore, unable to accept the preliminary objection in the form in which it has been raised. The impugned order cannot be treated as a judgment of acquittal merely by implication so as to compel recourse to the appellate jurisdiction under section 25 of the Act. Its legality must be examined according to its true juridical character, namely, as an order whereby the learned Anti-Terrorism Court declined to retain the case within its special jurisdiction and transmitted it to the ordinary criminal Court. Whether, in doing so, the learned Court correctly understood the scope of section 23, applied the proper legal test to the material before it, and lawfully declined the jurisdiction vested in it are, however, distinct questions. Those questions belong to the merits of the controversy and must now be examined independently.

6.Having dealt with the preliminary objection, we now turn to the more substantial question arising from the impugned order: what prevailed with the learned Anti-Terrorism Court in deleting section 7 of the Anti-Terrorism Act, 1997 and transmitting the case to the Court of ordinary criminal jurisdiction, and whether the reasons which persuaded it to adopt that course find support from the record. The stage at which the impugned order came to be passed assumes considerable significance. This was not a case in which the question of jurisdiction surfaced at the threshold of the proceedings, when the Court had before it no more than the allegations contained in the FIR and the material collected during investigation. The trial had travelled substantially towards its conclusion. The prosecution evidence had almost been completed; documentary and electronic material had been brought upon the record; and certain documents which, according to the prosecution, had a direct bearing upon the alleged nexus, design, facilitation and financing underlying the

offence had already been exhibited. The learned trial Court was, therefore, dealing with a developed evidentiary record and not merely with an untested accusation at its inception.

It is in this setting that the true import of the law declared by the Supreme Court in Ghulam Hussain and others v. The State and others (PLD 2020 Supreme Court 61) becomes relevant. The authority has not been invoked by us merely because the case arises under the Anti-Terrorism Act. Nor is it being relied upon as a precedent concerning terrorist financing, for that was not the controversy decided therein. Its relevance to the present case is more precise and, in our view, more fundamental: it identifies the juridical element which separates an ordinary crime, however grave, from an act of terrorism, the design or purpose accompanying the action.

7.The seven-member Larger Bench, after an exhaustive examination of section 6 of the Act and the earlier precedents on the subject, concluded in paragraph 16 that an action or

threat of action can be accepted as terrorism only where the action falls within subsection (2) of section 6 and its use or threat is accompanied by the design contemplated by section 6(1)(b), or is employed for one of the purposes contemplated by section 6(1)(c). Their Lordships further clarified that the gravity, brutality or horrifying character of an offence does not, by itself, convert it into terrorism where the requisite statutory design or purpose is absent. The principle emerging from Ghulam Hussain is thus not that the Court should merely ask whether the underlying offence is heinous.

Quite the contrary. The inquiry must travel beyond the physical act and reach the motivation, object, design or purpose which animated it. It is the conjunction of the prohibited action with the requisite statutory design or purpose that brings the conduct within the special conception of terrorism. The consequences produced by the act may constitute relevant circumstances, but they

cannot substitute the mens rea which the statute itself requires.

Once the ratio of Ghulam Hussain is understood in this manner, its relevance to the present controversy becomes immediately apparent. The prosecution does not seek to sustain the special jurisdiction merely by asserting that the principal offence was grave, sensational or capable of creating fear. Its case travels considerably further. According to the prosecution, the investigation progressively disclosed material connecting accused Muhammadullah with persons allegedly associated with Tehrik-e-Taliban Pakistan, including persons stated to be operating across the border; electronic communications were recovered and brought upon the judicial record;

and those communications, read with the other material, are relied upon to demonstrate not merely association but an alleged object of facilitating and financing anti-State or terrorist actors. It is precisely here that Ghulam Hussain and the evidence in the present case intersect. If

the decisive inquiry under section 6 is the design or purpose behind the action, then evidence which is specifically relied upon to disclose that design or purpose cannot be regarded as peripheral to the jurisdictional question. Alleged communications with members of a proscribed terrorist organization, an asserted cross-border nexus, and material said to disclose facilitation or financing, if ultimately proved and legally attributable to the accused, may bear directly upon the question whether the underlying acts were animated by the statutory design or purpose contemplated by section 6. The authority is, therefore, relevant not because Ghulam Hussain concerned terrorist financing, it did not, but because the alleged financing and facilitation in the present case may constitute evidence from which the very design or purpose required by Ghulam Hussain falls to be judicially examined.

8.This distinction is important

enough to be stated differently. Ghulam Hussain prevents the Anti-Terrorism Act from being

attracted merely by the magnitude of an offence;

it does not require a Court to shut its eyes to evidence capable of revealing a terrorist design.

The judgment protects an accused against the conversion of an ordinary crime into terrorism merely because its consequences are shocking;

but where the prosecution produces material which, if proved, may disclose that the crime was undertaken as part of a terrorist design or for a statutory terrorist purpose, the same principle requires that such material be judicially examined before the special jurisdiction is discarded. The rule operates in both directions.

It is against this legal backdrop that the submissions of the learned Law Officer and the learned Additional Advocate General require consideration. They took us through the course of investigation and submitted that the investigative trail developed gradually and eventually led to accused Muhammadullah, who, according to the prosecution, was found maintaining communication with persons operating across the border and allegedly

connected with Tehrik-e-Taliban Pakistan. The identities of such persons are stated to have surfaced during investigation, and the prosecution seeks to connect those communications with the wider object underlying the alleged criminal activity.

We deliberately employ the expression “according to the prosecution”. Neither the description attached to a person by an investigating agency nor the allegation of association with a proscribed organization constitutes proof of that fact. The identity and status of the persons allegedly communicating with the accused, the nature of their affiliation, if any, the authenticity and authorship of the communications, and the purpose for which they were allegedly undertaken remain matters requiring proof through evidence admissible in law. At this stage, the prosecution's allegation cannot be elevated into a judicial finding. The matter, however, does not rest upon a bare assertion of the investigating agency. Our attention was invited to the mobile telephone

attributed to Muhammadullah which, according to the prosecution, was taken into possession during investigation and from which electronic data was extracted. The extracted material is stated to contain conversations between Muhammadullah and persons allegedly associated with Tehrik-e-Taliban Pakistan, including persons operating across the border.

More importantly, the material relied upon by the prosecution was not left merely in the police file; it was brought before the learned trial Court and exhibited in evidence.

9.The forensic history of that material also deserved corresponding consideration. We were informed that the relevant audio material was initially forwarded to the Punjab forensic laboratory. A report received therefrom, produced before us in loose form by learned counsel for the respondents, indicated inability to undertake the requisite assessment of the conversation because of background noise. The matter, however, did not end there. According to

the prosecution, the material was subsequently transmitted to another recognized forensic facility and, upon examination, no indication of editing or fabrication was detected. At this point, judicial precision requires an important distinction. A forensic opinion that an electronic recording does not disclose editing or fabrication is not synonymous with scientific identification of the speaker. Integrity of the recording and attribution of the voice are two different evidentiary propositions. The former concerns whether the recording appears to have been altered; the latter concerns the identity of the person whose voice is recorded. Where no voice-comparison exercise has been undertaken, the absence of detectable editing cannot, standing alone, establish that the voice belongs to Muhammadullah.

The prosecution must, therefore,

ultimately establish, in accordance with law, the provenance of the device, lawful recovery and extraction of its data, integrity and continuity of custody, authenticity of the electronic material,

attribution of the relevant communication to the accused, identity of the persons allegedly communicating with him and the meaning and object of those communications. The absence of editing or fabrication does not relieve the prosecution of any of these obligations. But the converse proposition is equally important. The absence of voice comparison did not authorize the learned trial Court to proceed as though the exhibited electronic material had disappeared from the judicial record. A question concerning the ultimate weight of evidence is not necessarily the same thing as its complete irrelevance to a jurisdictional inquiry. If the prosecution had brought material upon the record which it asserted demonstrated the very design or purpose contemplated by section 6, the Court was required to address that material before concluding that the terrorism component stood excluded.

10.There is yet another statutory dimension which reinforces the need for such examination. The prosecution case, as presented

before us, is not confined to communication or association. It extends to alleged facilitation and financing. The Anti-Terrorism Act treats terrorist financing as a matter of independent substantive significance. Chapter III-A contains separate provisions dealing with fund-raising for terrorism, use or possession of money or property for terrorist purposes, funding arrangements and dealings involving terrorist property, including sections 11H, 11-I, 11J and 11K. We do not hold, and nothing stated herein should be understood as holding, that an offence under any of those provisions stands established against Muhammadullah or any other accused.

The point is altogether different. Where the prosecution material already before the trial Court was being relied upon to suggest not merely association with alleged terrorist actors but their facilitation or financing, the statutory relevance of such material could not appropriately be exhausted by asking, in isolation, whether section 7 should remain attached to the case. If proved, such evidence

might perform a dual juridical function: it might illuminate the design or purpose relevant to the section 6 inquiry identified in Ghulam Hussain, and, depending upon its precise nature and the ingredients established, it might also require consideration under the independent provisions of the Act dealing with terrorist financing.

This is the point at which, in our view, the reasoning of the learned trial Court became vulnerable. The Court was unquestionably competent to examine its jurisdiction under section 23. But the jurisdictional inquiry had to address the prosecution case as it actually stood upon the record. If Ghulam Hussain required identification of the design or purpose behind the alleged action, evidence introduced by the prosecution specifically for demonstrating that design or purpose could not be left outside the equation. To rely upon Ghulam Hussain merely for the proposition that every grave offence is not terrorism, without proceeding to the second and decisive inquiry, whether the material disclosed the requisite statutory design or

purpose, would amount to applying only one half of the rule declared by the Supreme Court.

The stage of the proceedings makes the omission still more significant. The prosecution evidence had almost concluded. Electronic material had been exhibited; forensic material was available; and the alleged communications and their asserted connection with facilitation and financing had become part of the evidentiary controversy. The learned trial Court was, therefore, standing much closer to final adjudication than to the commencement of trial.

At such an advanced stage, a jurisdictional determination based upon an incomplete appreciation of evidence touching the very statutory element awaiting final adjudication demanded particular circumspection.

Three distinct concepts ought not to be conflated: the existence of evidence, its admissibility, and its ultimate probative worth.

The first asks whether the material forms part of the judicial record; the second whether the law permits reliance upon it; and the third what

weight it deserves after being tested against the entirety of the evidence. Evidence may exist but ultimately be excluded; it may be admissible but prove insufficient; or it may, when read cumulatively with other circumstances, assume decisive significance. A jurisdictional inquiry cannot prematurely compress all three questions into a final conclusion upon the merits.

11.This principle assumes greater importance in a voluminous prosecution involving multiple accused, electronic communications, alleged financial transactions and an asserted network operating within and beyond the territorial frontier. Volume is no substitute for proof, and complexity cannot cure deficiencies in evidence. Equally, however, interconnected evidence ought not to be artificially fragmented where its asserted evidentiary force lies in the relationship between its constituent parts. A conversation which appears equivocal when read in isolation may assume a different complexion when examined

alongside proved financial transactions, contemporaneous communications, conduct of the participants and other surrounding circumstances. Conversely, no accumulation of circumstances can convert inadmissible material into admissible evidence. The judicial task is to preserve both propositions.

We are equally conscious that expressions such as “anti-State”, “cross-border nexus”, “proscribed organization”, “facilitation” and “terror financing” possess no talismanic force.

Their repetition by an investigating agency cannot transform an ordinary offence into terrorism. That proposition lies at the very heart of Ghulam Hussain. But the converse is no less true: where evidence is produced which is said to demonstrate the design or purpose required by section 6, a Court cannot discard the special jurisdiction merely by emphasizing the nature of the principal offence while leaving that evidence judicially unanswered. The learned trial Court was thus confronted with two separate questions which required to be kept distinct. The first was

whether the principal action fell within the statutory framework of section 6(2). The second, and for present purposes more significant, was whether the evidence disclosed the design or purpose contemplated by section 6(1)(b) or (c).

It is the latter inquiry which explains why the electronic communications, alleged TTP nexus, asserted cross-border connection and alleged facilitation or financing were relevant to the jurisdictional determination. They were not relevant because an accusation of terrorism had been made; they were relevant because, if legally proved, they were capable of answering the very question which Ghulam Hussain commands a Court to ask.

12.Viewed from this perspective, the difficulty with the impugned order does not lie in the learned Anti-Terrorism Court having undertaken an examination of its jurisdiction. It was fully competent to do so. The difficulty lies in reaching a conclusion upon that jurisdiction without adequately addressing material which

the prosecution had already brought upon the record and which, on its own showing, was directed towards establishing the statutory design or purpose. The learned Court could not examine the evidence sufficiently to conclude that section 7 ought to disappear from the case while leaving unresolved material which went to the very juridical element upon which that conclusion depended. We may reiterate, lest there be any possibility of misunderstanding, that these observations determine neither the authenticity of the alleged conversations nor their attribution to Muhammadullah; they establish neither the alleged connection with Tehrik-e-Taliban Pakistan nor any act of terrorist financing; nor do they pronounce upon the guilt of any accused under sections 6, 7, 11H, 11-I, 11J, 11K or any other provision of the Act. All such questions must be determined upon legally admissible evidence and after affording the parties the full opportunity contemplated by law.

Our conclusion at this stage is confined to the legality of the jurisdictional exercise.

Ghulam Hussain required the Court to search for the statutory design or purpose; the prosecution had placed material upon the record which it asserted disclosed precisely such design or purpose; and that material could not be left substantially unanswered while the special jurisdiction was being declined. Whether the prosecution ultimately succeeds in proving what it alleges is a question for adjudication on the merits. Whether the learned Anti-Terrorism Court could divest itself of jurisdiction without adequately addressing material directly relevant to that inquiry is an altogether different question.

It is in the latter respect that the impugned approach cannot be sustained. The error lies not in the ultimate evidentiary conclusion, for that conclusion is yet to be lawfully reached, but in prematurely resolving the jurisdictional question upon an incomplete appreciation of the material bearing upon the statutory test. The power under section 23 undoubtedly exists; but the existence

of a power and its lawful exercise upon the relevant material are two different things. The former confers jurisdiction; the latter determines whether its exercise can withstand judicial scrutiny.

13.For what has been discussed above, we are persuaded that the learned Anti- Terrorism Court, while exercising jurisdiction under section 23 of the Anti-Terrorism Act, 1997, proceeded upon an incomplete appreciation of the material already brought on record and failed to adequately address evidence which, according to the prosecution, bore directly upon the statutory design or purpose contemplated by section 6, as explained by the Larger Bench of the Supreme Court in Ghulam Hussain and others v. The State and others (PLD 2020 SC 61), as well as the alleged dimension of facilitation and terrorist financing under the relevant provisions of the Act. The impugned order, therefore, cannot be sustained and is accordingly set aside. The case shall proceed before the learned Anti-Terrorism Court from

the stage at which it stood immediately before the impugned order and shall be brought to its logical conclusion strictly in accordance with law. It is, however, made explicit that nothing observed herein shall be construed as an expression upon the guilt or innocence of any accused, the authenticity or probative worth of the disputed electronic material, or the ultimate applicability of any particular penal provision;

all such questions shall remain open for determination by the learned trial Court upon the evidence, uninfluenced by any observation made in this judgment.

JUDGE

JUDGE

Announced.

Tariq Jan (DB) Mr. Justice Sahibzada Asadullah, HJ & Mr. Justice Inam Ullah Khan, HJ.