Anti-Terrorism Law and Practice in Pakistan…If the intention of the accused was not at all to create sense of insecurity or destabilize the public-at-large or to advance any sectarian cause….the provisions of Anti-Terrorism Act were not attracted.” The case was ordered to be tried by ordinary criminal court.

Anti-Terrorism Law and Practice in Pakistan…If the intention of the accused was not at all to create sense of insecurity or destabilize the public-at-large or to advance any sectarian cause….the provisions of Anti-Terrorism Act were not attracted.” The case was ordered to be tried by ordinary criminal court.

LAHORE HIGH COURT BAHAWALPUR BENCH

W.P.No.5664/2011

MUHAMMAD NAWAZ VS THE STATE

Briefly the facts of the case are that petitioner along with

others was booked in a case FIR No.133/2011 dated 16.03.2011

under sections 302/324/363/34-P.P.C. read with Section 7-Anti

Terrorism Act, 1997 registered at police station Fort Abbas,

Bahawalnagar. The trial commenced before the learned Special

Judge Anti-Terrorism Court, Bahawalpur and the petitioner filed

an application under section 23 of the Anti Terrorism Act, 1997,

alleging that in the facts and circumstances of the case

provisions of Anti-Terrorism Act, 1997 were not attracted, as

such, the trial had to proceed in the ordinary court. This

application of the petitioner has been dismissed by the learned

Special Judge, Anti-Terrorism Court, Bahawalpur, vide order

dated 04.10.2011, impugned through the instant writ petition.

2. It is argued by learned counsel that both the parties were

already tagged in litigation and the occurrence, subject matter of

instant FIR, was outcome of said previous litigation. The learned

counsel has further argued that even from the contents of the

FIR previous enmity between the parties is quite evident. It is

added by learned counsel that no firing was made outside the

house and no panic or terror was caused in the area, nor the

sense of fear was created in the locality, as such, the trial ought

to have commenced in the ordinary court of jurisdiction and the

learned Special Judge Anti-Terrorism Court, did not consider

these aspects of the case while passing the impugned order.

3. The learned Assistant Advocate General assisted by learned

counsel for the complainant opposed this writ petition and by

defending the impugned order, argued that although previous

enmity between the parties is not denied, but this ground alone

is not sufficient to take away the jurisdiction of Special Court, as

otherwise, from the contents of the FIR the ingredients of offence

under section 7 of the Anti-Terrorism Act, 1997, are made out,

therefore, the impugned order has to be sustained.

4. We have heard the learned counsel for the parties and

perused the record.

5. There is denial to the fact that it was never the intention of

the legislature that every offender irrespective of nature of the

offence and overall impact on the society or a section of society

must be tried by Anti-Terrorism Court, and in order to determine

as to whether an offence would fall within the ambit of section 6

of the Anti-Terrorism Act, 1997, it would be essential to have a

glance over the allegations made in the FIR., record of the case

and surrounding circumstances. It is also necessary to examine

whether the ingredients of alleged offence have any nexus with

the object of the crime as contemplated under sections 6, 7 and 8

thereof. Whether a particular act is an act of terrorism or not, the

motivation, object, design or purpose behind said act is to be

seen. It is also to be seen as to whether the said act has created a

sense fear and insecurity in the public or any section of the

public or community or in any sect. In the case in hand, it is

alleged by the complainant himself that his niece Mst. Aqsa Bibi

was married with Fayyaz Akhtar, some time back relations

amongst the spouses became strained, whereupon, Mst. Aqsa

Bibi along with minor child, was expelled from the house by

Fayyaz Akhtar and because of this family dispute the entire

episode erupted.

6. Although it is alleged by the complainant that due to the

said incident, panic and sense of fear prevailed in the locality,

but on a court query, the learned Law Officer submits that apart

from the statement of the complainant, there is no statement of

any person from the locality about the fact that by such firing

sense of fear and insecurity in the public or section of pubic or

community or in any sect, was created. Therefore, in the

presence of the above admitted rivalry, it appears as if the

complainant had exaggerated the position by getting the lines

about fear and insecurity added in the FIR to make it a case

triable by Special Court under Anti-Terrorism Act, otherwise, on

the present record, no such element could be established from

the record.

7. As held by the Hon’ble Supreme Court of Pakistan in the

case “BASHIR AHMED versus MUHAMMAD SIDDIQUE and others”

(PLD 2009 SC 11), striking of terror is sine qua non for the

application of the provisions as contained in section 6 of the

Anti-Terrorism Act, which cannot be determined without

examining the nature, gravity and heinousness of the alleged

offence, contents of the FIR, its cumulative effect on the society

or on a group of persons and the evidence which has come on

record. As observed above, except assertion in the FIR, there is

no material available on the file to establish the element of terror

or insecurity. Furthermore, the act of terrorism is desired to be

determined with the yardstick and scale of motive and object,

instead of its result or after effect. In the case in hand admittedly

previous hostility existed between the parties and from the facts

and surrounding circumstances it appears that the instant

occurrence had taken place due to the motive over a family

dispute and there is nothing on the record to say that by

commission of alleged occurrence the accused had the motive of

creating sensation. Consequently, we hold that in the instant

case the occurrence neither reflected any act of terrorism nor it

was a sectarian matter, instead the murders in question were

committed owing to previous enmity between the parties. In the

above referred judgment the Hon’ble Supreme Court of Pakistan

has held that “If the intention of the accused was not at all to

create sense of insecurity or destabilize the public-at-large or to

advance any sectarian cause the design or purpose of the offence

as contemplated by the provision of section 6 of the Act were not

attracted.”

8. For what has been discussed above, this writ petition is

allowed, the impugned order dated 04.10.2011 passed by learned

Special Judge Anti Terrorism Court, Bahawalpur, is hereby setaside,

with a direction that the file of case FIR No.133/2011

dated 16.03.2011 police station Fort Abbas, Bahawalnagar, shall

be transmitted to the learned Sessions Judge, Bahawalpur for its

entrustment to the ordinary court of competent jurisdiction.

(MUHAMMAD QASIM KHAN)

(SYED IFTIKHAR HUSSAIN SHAH) JUDGE.

JUDGE.

About these ads

Enter your Question here

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s