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Petitioner: Mirza SHAUKAT BAIGand others/Petitioners VS Respondent: SHAHID JAMILand others
Court Name: Supreme Court of Pakistan Judge(s): Nazim Hussain Siddiqui, Javaid Iqbal, Abdul Hameed Dogar Title: Mirza SHAUKAT BAIGand others/Petitioners vs SHAHID JAMILand others Case No.: Civil Appeal No,1212 of 2004, Civil Petitions Nos.2479-L and 320-L of 2004 Date of Judgment:2005-02-08 Reported As: PLD 2005 Supreme Court 530 Result: Order accordingly
JUDGMENT
JUDGMENT ' JAVED IQBAL, J.--- The above captioned appeal and petitions for leave to appeal involving similar question of facts and law are being disposed of by this common judgment. CIVIL APPEAL NO.1212 OF 2004 2. Leave to appeal was granted by means of order dated 2-9-2004 which is reproduced herein below for ready reference:-- "This petition for leave to appeal is directed against the judgment dated 31-5-2004 passed by Lahore High Court, Lahore whereby writ petition filed by the respondent has been accepted. (2) It is informed during arguments that learned High Court has transferred the cases from the file of Special Judge, Anti-Terrorism Court, Faisalabad on the file of Sessions Judge, Faisalabad in view of judgment of Lahore High Court in the case of Basharat Ali v. Special Judge, Anti-Terrorism Court- II, Gujranwala (PLD 2004 Lahore 199) and against this judgment leave to appeal has already been granted wherein the question A pertaining to the jurisdiction of Special Judge under the Anti- Terrorism Act, 1997 in terms of section 6(1)(b) or (c) is involved and in order to avoid conflicting judgments leave to appeal is granted in this case as well. (3) As the learned Special Judge during trial has examined 19 witnesses and only I.0 was to be examined when the case was transferred on the file of Sessions Judge, Faisalabad, therefore, we deem it appropriate to fix appeal arising out of this petition in the 1st week of October 2004 along with appeal arising from the above referred judgment in the interest of justice subject to soliciting necessary approval from Hon'ble Chief Justice. Pending decision of the appeal learned Sessions Judge, Faisalabad is directed not to pronounce the judgment."
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3. Mr. Munir Ahmad Bhatti, learned Advocate Supreme Court entered appearance on behalf of appellant and urged vehemently that legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. It is also contended that in an open Bazar at about 9.15 a.m. In the thickly populated area on a thoroughfare, nine persons armed with fire-arm weapons, made indiscriminate firing, committed murder of four persons and also committed dacoity in the tune of rupees two crores. It is urged with vehemence that the merciless and brutal manner in which the alleged offence was committed amounts to terrorism and thus squarely falls within the definition of section 6 of the Anit-Terrorism Act, 1997 (herein after referred to as the "Act"). It is next contended that learned Judge, Anti-Terrorism Court, Faisalabad, has by now recorded the statements of about 20 witnesses and the question as to whether the alleged offence falls within the ambit of section 6 of the Act or otherwise, falls within the jurisdictional domain of learned Judge, Anti-Terrorism Court and cannot be determined by invocation of Constitutional jurisdiction which aspect of the matter has been ignored by the learned High Court. It is also contended that the judgment impugned is not in consonance with the dictum as laid down by this Court on various occasions in different cases which was binding upon the learned High Court. Mr. M.A. Zafar, learned Advocate Supreme Court, Mr. M. Hanif Khatana, learned Additional Advocate-General Punjab, and Ms. Afshan Ghazanfar, Assistant Advocate-General Punjab, appeared and adopted the arguments of Mr. Munir Ahmed Bhatti, learned Advocate Supreme Court on behalf of appellant. In order to substantiate the above contentions reliance has been placed on the following authorities:-- ' Muhammad Farooq v. Ibrar (PLD 2004 SC 917), Zia Ullah v. Special Judge (2002 SCMR 1017), ' Muhammad Amin v The State (2002 SCMR 1225), ' Moazzam Khan v. State (PLD 2004 Peshawar 175). 4. Raja Muhammad Arif, learned Advocate Supreme Court appeared on behalf of respondents and vehemently controverted the view point as canvassed at bar on behalf of appellant and supported the judgment impugned for the reasons enumerated therein with the further submission that the alleged offence was not preplanned one to create terror which is sine qua non for invocation of the provisions as contained in section 6 of the Act. The learned counsel has laid much emphasis on the words "designed to" as used in section 6(1)(b) of the Act which according to learned counsel means deliberate and intentional act to create terror and according to learned Advocate Supreme Court no evidence worth the name has come on record inferring that the alleged offence was committed knowingly and with deliberate intention to create a sense of fear or insecurity in the society. The innocence of respondent has also been pleaded by arguing that no role whatsoever was played by the respondent. 5. We have carefully examined the contentions of the learned counsel on behalf of the parties in the light of relevant provisions of law, scanned the entire evidence and perused the judgment impugned with care and caution. The pivotal question which needs determination would be as to whether the alleged offence falls within the scope and ambit of section 6 of the Act or otherwise? The relevant provisions of section 6 of the Act are reproduced herein below for ready reference:-- "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 or threat is made for the purpose of advancing a religious, sectarian or ethnic cause. (2) An "action" shall fall within the meaning of sub-section (1), if it: (a) involves the doing of anything that causes death; (b) involves grievous violence against a person or grievous bodily injury or harm to a person; (c) involves grievous damage to property;
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(d) involves the doing of anything that is likely to cause death or endangers a person's life; (e) involves kidnapping for ransom, hostage, taking or hijacking; (f) incites hatred and contempt on religious, sectarian or ethnic basis to stir up violence or cause internal disturbance; (g) involves stoning, brick-bating or any other form of mischief to spread panic; (h) Involves firing on religious congregations, mosques, Imambargahs, churches, temples and all other places of worship, or random firing to spread panic, or involves any forcible takeover of mosques or other places of worship; (i) creates a serious risk to safety of the public or a section of the public, or is designed to frighten the general public and thereby prevent them from coming out and carrying on their lawful trade and daily business, and disrupts civil life; (j) involves the burning of vehicles or any other serious form of arson; (k) involves extortion of money ("Bhatta") or property; (1) is designed to seriously interfere with or seriously disrupt a communications system or public utility service; (m) involves serious coercion or intimidation of a public servant in order to force him to discharge or to refrain from discharging his lawful duties; or (n) involves serious violence against a member of the police force, armed forces, civil armed forces, or a public servant. (3) The use or threat of use of any action falling within sub-section (2), which involves the use of firearms, explosives or any other weapon, is terrorism, whether or not subsection 1(c) is satisfied. (4) In this section "action" includes an act or a series of acts. (5) In this Act, terrorism includes any act done for the benefit of a proscribed organization. (6) A person who commits an offence under this section or any other provision of this Act, shall be guilty of an act of terrorism. (7) In this Act, a "terrorist" means: (a) a person who has committed an offence of terrorism under this Act, and is or has been concerned in the commission, preparation or instigation of acts of terrorism; (b) a person who is or has been, whether before or after the coming into force of this Act, concerned in the commission, preparation or instigation of acts of terrorism, shall also be included in the meaning given in clause (a) above." 6. The language as employed in the section is unambiguous, plain and simple which hardly requires any scholarly interpretation and is capable enough to meet all kinds of terrorism. It is an exhaustive section and does not revolve around the word "designed to" as used in section 6(1)(b) of the Act or mens rea but the key word, in our opinion is "action" on the basis whereof it can be adjudged as to whether the alleged offence falls within the scope of section 6 of the Act or otherwise? The significance and the import of word "action" cannot be minimized and requires interpretation in a broader prospective which aspect of the matter has been ignored by the learned High Court and the scholarly interpretation as made in the judgment impugned has no nexus with the provisions as contained in section 6 of the Act, the ground realities, objects and reasons, the dictums laid down by this Court and is also not inconsonance with the well- entrenched principles of interpretation of criminal statutes which are as follows:-- "(1) All penal statutes are to be construed strictly, that is to say, the Court must see that the thing charged as an offence is within the plain meaning of the words used, and must not strain the words on any notion that there has been a slip, that there has been a casus omisus, that the thing is so clearly within the mischief that it must have been intended to be included and would have been included if thought of. On the other hand, the person charged has a right to say that the thing charged, although within the words, is not within the spirit of the enactment. But where the thing is
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brought within the words and within the spirit, there a penal enactment is to be construed, like any other instrument, according to the fair common-sense meaning of the language used, and the Court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instruments. 1. (Emphasis provided) (2) Criminal enactments are not to be extended by construction. When an offence against the law is, alleged, and when the Court has to consider whether that alleged offence falls within the language of a criminal statute, the Court must be satisfied, not only that the spirit of the legislative enactment has been violated, but also that the language used by the legislature includes the offence in question, and makes it criminal. 2. (3) Nothing is to be regarded as within the meaning of the statute which is not within the letter--- which is not clearly and intelligibly described in the very words of the statute itself. 3. (4) Also in the interpretation of Acts the elementary rule is to give full and accurate effect to every word used in them. The Courts in the exposition of penal statutes, are not to narrow the construction. They are to look to the words in the first instance, and where the words are plain, they are to decide on them. If the words be doubtful, they are then to have recourse to the subject- matter; but at all events it is only a secondary rule. It is not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction. (Emphasis provided). ' Once Lord Halsbury said "It seems to me that, construing the statute by adding to it words which are neither found therein nor for which authority could be found in the language of the statute itself, is to in against one of the most familiar rules of construction, and I am wholly unable to adopt the view that, where a statute is expressly said to codify the law, you are at liberty to go outside the code so created, because before the existence of that code another law prevailed." In the construction of a statute the duty of the Court is limited to interpret the words used by the legislature and it has no power to fill in any gaps disclosed. To do so would be to usurp the function of the legislature." 5. (5) The object of the legislature must be ascertained from within the four corners of the Act. It is not open to the Court to speculate as to what the legislature probably meant, and then do violence to the language of the enactment in order to give effect to the presumed intention. Where the words of a section in a statute are plain, the Court must give effect to them, and the Court is not justified in depriving the words of their only proper meaning in order to give effect to some intention which the Court imputes to the legislature from other provisions of the Act. Such a course can only be justified where a literal construction of the section is inconsistent with the meaning of the statute as a whole.6. (Emphasis provided) (6) It is the duty of a Court to attempt to find the intention of the legislature, and to give effect to that intention. The more literal construction ought not to prevail, if it is opposed to the intention of the legislature, as apparent from the statute, and if the words are sufficiently flexible to admit of some other construction by which that intention would be better effectuated. But if such a method of interpretation leads to manifest anomalies and is calculated to defeat the professed and declared intention of the legislature, it is open to the Court to give the go-by to the rule mentioned above and to so interpret the words used as to give effect to the intention of the legislature. 7 (Emphasis provided) (7) A statute should be interpreted according to the plain meaning of the words and should not be given a wider meaning than what the words used would actually denote. Although it may, perhaps, be legitimate to call history in aid to shew what facts existed to bring about a statute, the inferences to be drawn there from are extremely slight. In construing an Act the Court must always
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have regard to the scheme of the Act as appearing from a perusal of the language of the whole enactment. 8. (Emphasis provided). (8) Where the language of a statute is plain and unambiguous effect must be given to it apart from the notions of justice and expediency and it is not within the province of a Court to scan the wisdom or the policy of the legislature. It is not the duty of the Court to make law but to expound it as it stands according to the real sense of the words. 9. (Emphasis provided) (9) The paramount duty of the judicial interpreter is to put upon the language of the Legislature, honestly and faithfully, its plain and rational meaning and to promote its object it is for the Legislature, not the Court, to define a crime and ordain its punishment. It is unquestionably a reasonable expectation that, when the legislature intends the infliction of suffering, or an encroachment on natural liberty or rights, or the grant of exceptional exemptions, powers, and privileges, it will not leave its intention to be gathered by mere doubtful inference, or convey it in "cloudy and dark words" only. A Court is not at liberty to put a limitation on general words which is not called for by the sense, or the objects, or the mischief of the enactment, and no construction is admissible which would sanction a fraudulent evasion of an Act. But the rule of strict construction requires that the language shall be so construed that no cases shall be held to fall within it which do not fall both within the reasonable meaning of its terms and within the spirit and scope of the enactment. Where an enactment may entail penal consequences, no violence must be done to its language to bring people within it, but rather care must be taken that no one is brought within it who is not within its express language. To determine that a case is within the intention of a statute, its language must authorize the Court to say so, but it is not admissible to carry the principle that a case which is within the mischief of a statute is within its provisions so far as to punish a crime not specified in the statute, because it is of equal atrocity or of a kindred character with those which are enumerated. If the Legislature has not used words sufficiently comprehensive to include within its prohibition all the cases which fall within the mischief intended to be prevented, it is not competent to a Court to extend them. It is immaterial, for this purpose, whether the proceeding prescribed for the enforcement of the penal law be criminal or civil. 10 (10) The rule of strict construction, however, whenever, invoked, comes attended with qualifications and other rules no less important, and it is by the light which each contributes that the meaning must be determined. Among them is the rule that that sense of the words is to be adopted which best harmonises with the context and promotes in the fullest manner the policy and object of the Legislature. The paramount object, in construing penal as well as other statutes, is to ascertain the legislature's intent, and the rule of strict construction is not violated by permitting the words to have their full meaning, or the more extensive of two meanings, when best effectuating the intention. They are, indeed, frequently taken in the widest sense, sometimes even in a sense more wide than etymologically belongs or is popularly attached to them, in order to carry out effectually the legislative intent, or, to use Lord Coke's words, to suppress the mischief and advance the remedy (Emphasis provided) (11) In construing an Act of Parliament the Court always has to ascertain the intention of the legislature from the language of the whole enactment, and it sometimes becomes necessary to do a certain amount of violence to the language in which a particular passage is couched in order to give effect to the intention to be gathered from the enactment as a whole. Where the words used themselves declare the intention of the Legislature, it is inadmissible to consider the advantages or disadvantages of applying the plain meaning whether in the interest of the prosecution or the accused. Where the meaning of words used in a statute is plain, it is not the duty of the Courts to busy themselves with supposed intentions of the Legislature in framing the statute. When the
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grammatical meaning of a section is clear and unique that alone must be applied unless that meaning leads to an impossible, that is, an unworkable construction, in which case the Court should consider what variation will do the least violence to the grammatical meaning and still make the provision work. The grammatical meaning cannot be departed from simply because it leads to a very unjust conclusion. Different provisions of a statute should be given an interpretation which would make them consistent, rather than one which makes one provision inconsistent with the other. 11. (Emphasis provided). 12. If the language used by the Legislature in an enactment is clear whatever its legislative background may be, the intention of the Legislature can only be gathered from the words used in the enactment." 12. (1). (1872) L.R. 4 PC 184; 191 (1823) I B & C. 297, 299; (1933) 60 Cal. 742; (1945) Nag.382. (2) (1870) LR 5 CP 503, 513, 514. (3) (1881) 8 Cal. 214; (1918) 4 PLJ 74; 20 Cr.L.J. 161; (1919) AIR (P) 27, FB. (4) (1896) 18 All. 364, 365; (1786) I TR 96.101; (1902) 29 I.A. 196,29; Cal 707, 715; 4 Born. LR. 793, 796. (5) (1891) AC 107, 144; (1806) 23 I.A 18,23 Ca1.563. (1952) AC 189; (1912) 40 Cal. 433. (6) (1936) 38 Born. LR 1164; 1178, [1937] Bonn. 183, FB; (1938) 40 Born. LR 1275. (7) (1936) 39 Born. LR 548; [1937] Born. 655, FB; [1938] All. 702, FB. (8) (1931) 27 NLR 70; 32 Cr.LJ 1266; [1931] AIR (N) 177; [1906] 2 KB 676, 716; (1937) 39 Bom. LR. 1065, 1068; [1938] Born.58, FB. (9) [1947] Nag. 970. (10) On the interpretation of Statutes--- 10th Edn, Ch.X. Pp.262, 265, 271, 273, 275, 284. See Craies on Statute Law----4th Edn., p. 449, at seq. See also Blackstone's Commentaries on the Laws of England---4th Edn., Vol. I,p.62. (11) (1935) 37 Born LR 739, 744; 60 Born. 55, FB; (1939) 66 I.A. 65, 41 Born; LR. 428, 18 Pat. 234; [1941] Nag. 581; [1953] All 197. (12) (1952) 55 Born. LR 74. (13) Interpretation of Statutes by Mr. M. Farani, Interpretation of Statutes, 7th Edn. 1984 by Dr. Tahir Mahmood, interpretation of Statutes 3rd Edn. By Vepa P. Sarathi Understanding Statutes by Mr. S.M. Zafar, Principles of Statutory Interpretation, 5th Ed. 1992 By Justice G.P. Singh, Maxwell on the Interpretation o'f Statutes, 12th Ed. By P.St. J. Langan, Principles of Statutory Interpretation, 3rd Ed. By G.P. Singh, Statutory Construction by Earl T. Crawford, the Interpretation of Statutes by M. Mahmood. 7. No provision of law can be interpreted on the basis of "pick and choose" of a few words and in case of any confusion the relevant provisions of law should be read in toto along with the preamble of the statute coupled with the objects and reasons thereof to remove the confusion if any which altogether was not available and in absence whereof the question of any academic exercise or scholarly interpretation by considering the various events happened on global level having no concern with the Act does not arise. 8. Initially the Act is meant for the internal security of our own country having no concern with the terrorism prevailing at global level which aspect of the matter falls within the domain of International Law and efforts are being made for consensus to evolve some common and joint strategy to eliminate terrorism at global/International level. We may point out here that even at global level the position concerning the concept of 'Terrorism' is not clear. Mr. Ghayoor Ahmed, a former Ambassador in his article "What is terrorism and what is not" has made the position abundant clear by observing as follows:--
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"In his keynote address to the closing plenary of the International Summit on Democracy, Terrorism and Security in Madrid on March 10, the UN Secretary General, Kofi Annan, called upon the Member States to adopt a common approach to fighting terrorism. ' He said that terrorism is a threat to all States and to all peoples which can strike anytime and anywhere. It is a direct attack on the core values the United Nations stands for and, therefore, it must be at the fore-front in our fight against forces of terror and instability. ' The Secretary-General also said that the inability of the Member States to evolve a definition of terrorism had for too long undermined the normative and moral stance of the United Nations and stained its image, and stressed the need for evolving a clear definition of terrorism. He strongly urged world leaders to accept the definition of terrorism proposed by the high-level panel he had set up last year to study global threats and suggested changes in the international system to meet these. ' The panel calls for a definition which would make it clear that "any action constitutes terrorism if it is intended to cause death or serious bodily harm to civilians with the purpose of intimidating a population or compelling a Government or an international organization to do or abstain from doing any act". ' It may, however, be pointed out that an almost identical description of terrorism is contained in the International Convention for the Suppression of fighting Terrorism as well as in the Security Council Resolution 1566 (2004) and, as such, the definition proposed by the panel is not likely to break the impasse on this issue that has lasted for decades. ' There has always been broad consensus among nations that violence should not be directed against innocent people for the advancement of an individual or collective agenda as it seeks to create an environment of fear which is not permissible in a civilized society. Yet, there has been no agreement among them on a definition of international terrorism and the matter therefore remained unresolved. ' It seems that the attempts made from time to time to define terrorism did not yield tangible results as they focused their attention on describing the act itself and defined terrorism as an abstract concept that all acts of violence, regardless of their motives, constitute terrorism. ' By the same token, the violence perpetrated by some States in the name of fighting terrorism should also be regarded as terrorism. By way of illustration, it may be…
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