Zakir Hussain vs State

2012 P Cr. L J 154

[Peshawar]

Before Ejaz Afzal Khan, C.J. and Mazhar Alam Khan Miankhel, J

ZAKIR HUSSAIN alias KAMI and 5 others---Petitioners

Versus

THE STATE through A.-G. KPK and another---Respondents

Writ Petition No. 499 of 2011, decided on 3rd May, 2011.

Anti-Terrorism Act (XXVII of 1997)---

----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.

Fazal Dad v. Col. (Rtd.) Ghulam Muhammad Malik and others PLD 2007 SC 571; Bashir Ahmad v. Muhammad Siddique and others PLD 2009 SC 11 and Ch. Bashir Ahmad v. Naveed Iqbal and 7 others PLD 2001 SC 521 rel.

Muhammad Din v. Muhammad Jehangir and 4 others PLD 2004 Lah. 779 and Meraj Hussain and 3 others v. Judge, Anti-Terrorism, Northern Areas, Gilgit and another 2007 PCr.LJ 1011 ref.

Astaghfirullah and Raziq Khan for Petitioners.

Lal Jan Khattak, D.A.-G. and Khawaja Muhammad Khan for the State.

Date of hearing: 3rd May, 2011.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, J.---The petitioners, being accused in case F.I.R. No.597 dated 11-5-2008, Police Station Ouch (Lower Dir) registered under sections 302/148/149, P.P.C. read with section 7 of Anti-Terrorism Act, 1997, and facing trial of the offences mentioned above before the Judge, Anti-Terrorism Court, had moved an application for sending their case to the Court of ordinary jurisdiction as the same does not fall under the provisions of section 6 of the Act, 1997. Their application was turned down by the learned Judge, Anti-Terrorism Court vide his order dated 3-2-2011.

2.The petitioners have questioned the said order of learned Judge, Anti-Terrorism Court that the same be declared illegal, unlawful having no legal effect and thereby requested for setting aside of the same.

3.Learned counsel for the petitioners submitted that the provisions of the Act of 1997 were not applicable to the facts and circumstances of the present case; the very perusal of the F.I.R would make it clear that the offences, the petitioners were charged with, have no nexus with the act of terrorism as defined in section 6 of the Act of 1997; the learned Judge, Anti- Terrorism Court has erred a lot by dismissing their application. In support of his submissions, the learned counsel placed reliance on the cases of Fazal Dad v. Col. (Rtd.) Ghulam Muhammad Malik and others (PLD 2007 SC 571), Bashir Ahmad v. Muhammad Siddique and others (PLD 2009 SC 11), and Ch. Bashir Ahmad v. Naveed Iqbal and 7 others

(PLD 2001 SC 521).

4.The learned counsel for the complainant/respondent submitted that the manner in which a minor boy of 6/7 years of age was done to death, itself is sufficient to constitute an act of terror which created a sense of fear and insecurity in the inhabitants of the area. The learned Judge, Anti-Terrorism Court has rightly refused to delete section 7 of the Act, 1997 by dismissing the application of the petitioners. He further submitted that an accused charged with an offence under section 7 of the Act of 1997, irrespective of his age can be tried by the Judge, ATC so, the accused petitioner No.1, being juvenile cannot seek protection under the Juvenile Justice System Ordinance, 2000, by placing reliance on the cases of Muhammad Din v. Muhammad Jehangir and 4 others (PLD 2004 Lahore 779) and Meraj Hussain and 3 others v. Judge, Anti-Terrorism, Northern Areas, Gilgit and another (2007 PCr.LJ 1011).

5.The learned A.A.-G. was frank enough to submit that the material available on the record does not constitute an offence triable by Anti-Terrorism Court and requested for setting aside of the impugned order.

6.Record of the case was perused and submissions made by the learned counsel for the parties and learned A.A.-G. were considered carefully. Before we discuss the submissions made by the learned counsel for the parties, reproduction of relevant provisions of section 6(1)(a)(b)(c) and (2)(d) of the Act of 1997 appear to be necessary:-- "(6) Terrorism. (1) In this Act, "terrorism" means the use or threat of action where:

(a)the action falls within the meaning of subsection (2); and

(b)the use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society; or

(c)the use of threat is made for the purpose of advancing a religious, sectarian or ethnic cause.

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

(a).........................................................

(b).........................................................

(c).........................................................

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

(e)........................................................."

The above quoted provisions of law would make us to understand what act would amount to terrorism and how the provisions of the Act, 1997 would be attracted in a case. The very object and purpose behind the promulgation of the Act, 1997 is to provide speedy and expeditious mechanism for trial of heinous offences to prevent terrorism and sectarian violence. So, to attract the provision of the Act, 1997, one has to find nexus of the series of acts which the accused has allegedly committed.

7.So, to determine as to whether the act as narrated in the F.I.R. would constitute an offence under the above quoted section of law and the schedule of the Act of 1997 we have to examine the acts committed by the accused in the light of above quoted definition of the word "terrorism". Yet another aspect would also be necessary for such determination, i.e. whether such an act as reported in the F.I.R. has created a sense of fear and insecurity in the public or in any section of public or community. When such ingredients are missing then the act committed cannot be held to be an act of terrorism and would be out of the domain of Anti-Terrorism Court. The perusal of the record of instant case would reveal that initially the matter of missing of the son of the complainant was reported by the brother of complainant. The matter was then enquired under section 156(3) of the Cr.P.C. and later on case was registered under section 364-A/34, P.P.C. on 11-5-2008 vide F.I.R. ibid against the accused petitioners for the abduction of minor son of the complainant. On the recovery of the dead body from the wheat crop fields the section of law was altered and section 302, P.P.C. was added. It appeared to be a brutal murder of a minor boy so, section 7 of the Act of 1997 was also added and case was sent to the Anti-Terrorism Court. At this juncture, yet another question crops up as to whether brutal murder alone would constitute an offence under the Act of 1997. Answer to this question would be 'No' as mere brutal murder in absence of requirements of the Act of 1997, as discussed above, would not constitute an offence under section 7 of the Act of 1997. If such a criterion is settled for inclusion of section 7 of the Act, 1997 then every murder case could be fit in the definition of terrorism as the very act of taking a human life itself is an act which creates a sense of fear and insecurity. We cannot find nexus of the act narrated in the F.I.R. with the terrorism as defined in the above quoted provisions of law. Element of sense of fear or insecurity in public or a section of public is also missing. The case-law relied upon by the petitioners fully supports their stance. So, we are of the considered view that only those murder cases could be dealt with by the Anti- Terrorism Court which fall within the act of terrorism as defined in the above quoted provision of section 6 of the Act ibid with the sense of fear and insecurity in the minds of the public. Any murder case with a story of brutality alone would not make a case triable by Anti-Terrorism Court for which courts of ordinary jurisdiction are there to deal with.

8.As far as the argument of the learned counsel for the complainant regarding trial of a child below the age of 18 years by the Judge, Anti-Terrorism Court is concerned, there is no cavil in this regard. This very issue has since been settled and the case-law cited at the bar by the learned counsel for the complainant, Muhammad Din and Meraj Hussain's cases supra fully support the version. The learned counsel for the accused petitioners in reply to the arguments of learned counsel for respondents while admitting the position has submitted that he is least concerned with trial of the accused petitioner No.1 by a Juvenile Court and his main concern is regarding deletion of section 7 of the Act of 1997.

9.So, we are clear in our minds to hold that the facts narrated in the F.I.R. do not attract the provisions of the Act, 1997, as such the Anti-Terrorism Court has got no jurisdiction to try the accused petitioners thereunder. This petition is allowed and the impugned order is hereby set aside.

H.B.T./253/P Petition allowed.