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Petitioner: Arshad Mehmood and others VS Respondent: Special Judge-I, Anti-Terrorism Court, JUDGMENT
Court Name: Islamabad High Court Judge(s): Babar Sattar, Arbab Muhammad Tahir Title:Arshad Mehmood and others vs Special Judge-I, Anti-Terrorism Court,
JUDGMENT
Reported As: 2023 PCRLJ 203 Result: Petitions allowed Judgment JUDGMENT BABAR SATTAR, J. Through this judgment we will dispose of Writ Petitions Nos. 3719/2019, 3738/2019 and 60/2020, wherein the order under section 23 of Anti-Terrorism Act, 1997 ("ATA") passed by the learned Anti-Terrorism Court ("ATC') dated 23.10.2019 ("Impugned Order") has been challenged. Through the Impugned Order the learned ATC dismissed the application of the petitioner under section 23 of ATA and held that the offence that the petitioners have been charged falls within the definition of terrorism and is triable by learned ATC. 2. The incident in relation to which the petitioners have been charged under section 7 of ATA read with sections 302, 324, 148 and 337-F(iii), P.P.C. transpired on 15.08.2016 and FIR No. 239 dated 15.08.2016 was registered. The FIR itself does not include the charge of section 7 of ATA but the complainant subsequently recorded a supplementary statement on the basis of which a charge under section 7 of ATA was included. The brief facts are that on 14.08.2016 an altercation took place between the son of the complainant son and the petitioner in F-11 Markaz. The Police authorities intervened and both parties were brought to Police Station Shalimar. The complainant's sons and his nephew, Barrister Fahad Malik, also arrived at the Police station and reconciliation was purportedly affected between the parties and after which they left the police station. While leaving the police station the petitioner sought a lift from the complainant and sat in the vehicle of the complainant. The complainant's vehicle was followed by a vehicle in which the complainant's son and his nephew a lawyer Barrister Fahad Malik were present. As the vehicles approached street No.3 in F-10/4, two vehicles blocked the vehicle of the complainant as well the vehicle of his son and his nephew Barrister Fahad Malik who were following him. Armed gunmen, who had
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purportedly arrived on the instruction of the petitioner, together with the petitioner disembarked from the vehicles attacked the complainant and his son and nephew. In the process the complainant was shot in his leg and indiscriminate firing initiated by the petitioner and his accomplices claimed the life of Barrister Fahad Malik. 3. The police authorities after completion of investigation produced the challan before the learned ATC. The petitioner filed an application under section 23 of ATA challenging the jurisdiction of the learned ATC on the basis that the incident on the basis of which FIR had been lodged did not amount to terrorism within the definition of section 6 of ATA. By order dated 21.12.2016 the learned ATC accepted the application and ordered that the case be transferred to the Sessions Court. 4. The complainant challenged the order of the learned ATC accepting application of the petitioners under section 23 of ATA. This Court by judgment dated 12.07.2018 passed in 2018 PCr.LJ 1719 (Malik Tariq Ayub v. The Stale) set-aside the order of the learned ATC and remanded the matter back to the learned ATC with the direction to first record material evidence to be adduced by the parties before deciding the application under section 23 of ATA. The petitioner then challenged the order of this Court before the august Supreme Court in Civil Petition No. 2302 of 2019 which was taken up on 19.09.2019 and was dismissed as withdrawn. The learned ATC decided the application of the petitioners under section 23 of ATA through the impugned order dated 23.10.2019, wherein it concluded that it had jurisdiction to hear the case as it involved an offence under section 7 of ATA. 5. The instant petitions remained pending before various benches of this Court and a number of judges of this Court recused themselves either due to involvement in the matter prior to their elevation or due to an objection raised by one of the parties. At one point there was no bench in Islamabad High Court available to hear the matter. Pursuant to an order of august Supreme Court the case was transferred to the learned Peshawar High Court. Subsequently by another order of the august Supreme Court the case was transferred back to this Court with the consent of the parties. Meanwhile in C.P. No. 45/2019 by order dated 09.01.2020, the apex Court held that while the learned ATC can continue to conduct the trial, but it was barred from passing judgment till such time the challenge to assumption of jurisdiction by ATC pursuant to the Impugned Order was adjudicated by this Court. 6. Mr. Azam Nazir Tarar and Abdul Wahid Qureshi, Advocates represented the petitioner in W.P No.1739/2019. They submitted that the evidence as recorded by the learned ATC reflected that the actions attributed to the petitioner in the FIR and through the supplementary statement by the complainant were not coupled with the required mens rea for purposes of section 6 of ATA. That after evidence of all prosecution witnesses had been recorded along with the statements of the accused under section 342 of Cr.P.C, there was no evidence establishing that there was any intent or design on part of the petitioner that constituted mens rea for purposes of section 6(1)(b) and (c) of ATA. That the learned ATC in the Impugned Order had completely misapplied the law as laid down by the august Supreme Court in Ghulam Hussain v. State (PLD 2020 SC 61). That the Impugned Order was also in conflict with the direction issued by this Court in its order dated 12.07.2018 through which the matter was remanded back to the learned ATC for decision afresh after recording of material evidence, as in such order this Court had contemplated recording of evidence of certain private witnesses who had made statements before the police authorities under section 161 of Cr.P.C to the effect that the incident created fear and panic in a segment of the society. But the evidence of such witnesses was not recoded and even though the private persons had been identified in the order of this Court dated 12.07.2018, but they were given up as prosecution witnesses. Mr. Azam Nazir Tarar, ASC, took this Court through the history of interpretation accorded to section 6 of ATA by the august Supreme Court in successive judgments that culminated in the formation of a seven member bench that rendered a unanimous view on
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the meaning of terrorism for purposes of sections 6 and 7 of ATA in Ghulam Hussain. He submitted that after Ghulam Hussain there was no confusion as to the meaning of terrorism as employed in section 6 of ATA. The view that determination of whether or not an incident amounted to terrorism could be made in view of its effect had been rejected and the august Supreme Court had clarified that in order for an act to constitute terrorism it must be accompanied by necessary terminal intent and design as identified in section 6(1)(b) and (c) of ATA. He submitted that it was now clear that not every criminal act no matter how gruesome its consequences and how disquieting its effect in terms of the creation of fear and in security in the society could be regarded as terrorism unless the act was undertaken with the motivation to create such effect within the society. That the Apex Court had excluded from the scope of terrorism incidents motivated by personal vendetta or enmity between private parties that resulted in the commission of a gruesome crime. He submitted that in the instant case perusal of the FIR reflected that an altercation took place between the son of the complainant and the petitioner which resulted in the unfortunate loss of life of Barrister Fahad Malik. That while the determination of who was responsible and culpable for the murder of Barrister Fahad Malik could only be made by the trial court after appraisal of the evidence, it was evident that there was neither arty intent nor any design on part of the accused to create any sense of fear or insecurity in the society or any segment of the society. He submitted that now the scope of terrorism as defined under section 6 of ATA has been clarified by the august Supreme Court in Ghulam Hussain there was no room to infer the intent of committing terrorism from any consequences created by the acts for which the accused had been charged. And in such view of the matter even if there were random bystanders who had testified after witnessing the incident in question that they were filled with sense of fear and insecurity, would not transform an altercation due to personal enmity resulting in the murder of a person into an incident of terrorism. He however submitted that notwithstanding such interpretation of law there was also no evidence before the learned ATC that the incident in fact created a sense of fear or insecurity in the society or a segment of the society. 7. Mr. Qaiser Imam Chaudhry, Advocate representing Hashim Khan in Writ Petition No. 60/2020 while adopting the arguments of Mr. Azam Nazir Tarar and Mr. Abdul Wahid Qureshi, Advocates made the following submissions: That the FIR, which was the story presented by the complainant himself, noted that the incident that led to the murder of Barrister Fahad Malik and in which the complainant was injured, was a consequence of personal enmity which was caused by an altercation that had taken place on the eve of 14.08.2016. That in the FIR the complainant had identified witnesses to the incident and had not submitted that there were any other private persons that had seen the occurrence. That the supplementary statement made after 8 days of filing of the complaint and registration of the FIR was an afterthought and a story was concocted by the complainant to attract provisions of ATA through such supplementary statement, which was also in conflict with the account presented by the complainant himself in the FIR. That it was settled law that any improvements made by the complainant through supplementary statement were to be taken with a grain of salt. That no case of terrorism was made out against the accused and consequently the learned ATC had no jurisdiction to try the petitioner. 8. Mr. Faisal Siddiqui, Advocate representing the respondent submitted that the petitioner was essentially seeking reinstatement of the order passed by the learned ATC dated 21.12.2016 in the first round of the challenge to the jurisdiction of ATC, which had already been set-aside by this Court through the order dated 12.07.2018. That the impugned order was not perverse and had been passed by the learned ATC after recording of evidence in compliance with the direction of this Court. That the assumption' of jurisdiction was based on the opinion formed by the earned ATC in view of the evidence recorded and it was not for this Court to sit in review or appeal over such opinion while exercising writ jurisdiction. That the Impugned Order could only be scrutinized during
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appeal proceedings once the learned ATC had rendered final judgment. That no prejudice would be caused to the petitioner if the learned ATC was allowed to rule and pass a final judgment as all the evidence had been recorded, including the statements of accused under section 342 of Cr.P.C, and nothing remained to be done in the trial other than passing a final judgment. That in order to decide the petition on merit this Court would be required to appraise the evidence that had been appreciated by the learned ATC in deciding the application under section 23 of ATA and such exercise could cause prejudice to either the petitioner or the complainant depending on what this Court decided. That a decision by this Court on the merit of the petition could possibly undermine Article 10-A rights of one of the parties. That the august Supreme Court had always discouraged challenge to interlocutory orders such as the Impugned Order as that led to fragmented decision. And as all the interlocutory orders would be open to challenge in appeal once the final judgment had been rendered it would be advisable for the Court to not rule on the question of jurisdiction when the trial was near conclusion. He submitted that there is no cavil with the contention that Ghulam Hussain has conclusively decided the definition of terrorism for purposes of section 6 of ATA, but what Ghulam Hussain did not state was how mens rea and the intent for purposes of section 6(1)(b) and (c) was to be inferred. That in view of the law laid down by the august Supreme Court intent is to be inferred from the ordinary consequence of an act, which consequences are deemed to be in the contemplation of the person performing such act. That in the -instant case the consequence of acts attributed to the petitioners was to create a sense of fear and insecurity in the society. And it could therefore be inferred that the accused persons had the intent of indulging in terrorism and thus the requirement of mens rea for purposes of section 6 of ATA was satisfied. He submitted that the judgment passed by the august Supreme Court in Muhammad Jibran Nasir v. State (PLD 2018 SC 351) was relevant as the facts of the said case were similar to the case in hand and there the august Supreme Court had ruled that it was an incident involving terrorism to be tried by ATC. And that the judgment in Muhammad Jibran Nasir had not been overruled by the august Supreme Court in Ghulam Hussain. He relied on the judgment of this Court in Criminal Revision No. 19 of 2021 (Nadeem Younas v. The Stare and others) and submitted that this Court while taking into account Ghulam Hussain as well the judgment of this Court in Malik Tariq Ayub v. The State (2018 PCr.LJ 1719) while remanding the matter to be decided by the learned ATC held once again that the question of jurisdiction for purposes of section 23 ought to be decided after recording of material evidence. That this Court had thus held that mens rea for purposes of terrorism could be inferred from the consequences of the action on the basis of which charges had brought against an accused. That Ghulam Hussain in any event would apply prospectively and not retrospectively and relied on the judgment of the learned Sindh High Court in Tariq Khan v. The State (2022 PCr.LJ 558). That as the incident in question predated the judgment in Ghulam Hussain, its application would be prospective and would not apply any matter in which a decision on the question of jurisdiction had already been reached by the court of competent jurisdiction prior to the announcement of Ghulam Hussain. 9. Let us first address the objection to the maintainability of these petitions on the basis that the trial is near conclusion and statements of accused under section 342 of Cr.P.C. have also been recorded and thus this Court ought not entertain the present petitions. Section 23 of ATA states the following: 23. Power to transfer cases to regular Courts.---Where after taking cognizance of an offence a Special Court is of opinion that the offence is not a scheduled offence it shall notwithstanding that it has no jurisdiction to try such offence transfer the case for trial of such offence to any Court having jurisdiction under the Code and the Court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence.
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10. In the event that ATC renders decision pursuant to section 23 of ATA the statute does not provide the remedy of an appeal to the party aggrieved by such order. And thus an aggrieved party consequently is forced to avail a remedy under Article 199 of the Constitution. The question of jurisdiction is not a technical one but goes to the heart of the authority that a court or tribunal exercises in seeking to enforce the law of the land. The rule of law as enforced under the Constitution includes within it the doctrine of enumerated powers. All public authority flows from the Constitution, including the power of judging and is only clothed with legitimacy if exercised within the four corners of the -authority bestowed by the Constitution and the law. Article 175(2) of the Constitution encapsulates this idea and states that, "no court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law." It is therefore settled principle of law that any objection to the jurisdiction of any tribunal conducting judicial proceedings ought to be decided at the earliest to lay such objection to rest. Due to the peculiar circumstances of the instant case, that need not be recalled and summarized here, the trial of the accused in relation to an incident dated 15.08.2016 is still pending trial and yet the question of jurisdiction of the special court convening the trial lingers. It is therefore the foremost duty of this Court to decide such question. 11. Article 4 of the Constitution declares that, "to enjoy the protection of law and to be treated as in accordance with law is the inalienable right of every citizen." And Article 4(2)(a) provides that, "no action detrimental to life, liberty, body, reputation or property of any person shall be taken except in accordance with law." ATA prescribes a certain procedure for trying acts of terrorism and other acts that fall under any scheduled offence under the Third Schedule of ATA. The rights of an accused person being tried under ATA are circumscribed to a certain extent in comparison to rights of an accused being tried by courts of ordinary jurisdiction pursuant to the Criminal Procedure Code, 1898 ("Cr.P.C"). Thus, the trial of an accused under ATA, who is not otherwise liable to be tried by the ATC under provisions of ATA, would fall foul of the guarantee provided under Article 4 of the Constitution. Thus, merely because the determination of question of jurisdiction of the learned ATC has been delayed to such extent that the trial is now near its conclusion does not mean that this constitutional court can shirk its responsibility to adjudicate the question or that the question of jurisdiction ought to be kept in suspension to enable a tribunal to pass a final verdict regarding the innocence or guilt of the accused even if doubts hang over the competence of such tribunal to try the accused. 12. We have also taken into account the order of the august Supreme Court dated 09.01.2020 passed in Constitution Petition No. 45/2019, wherein the august Supreme Court barred the learned ATC from pronouncing final judgment till such time that this Court decides the question of jurisdiction in the instant petition. While the august Supreme Court has not issued any direction, the expectation of the Apex Court that this Court would discharge its constitutional obligation to decide the question of jurisdiction of the ATC to conduct the trial in question, is implicit in such order. We are therefore unable to agree with the suggestion of the learned counsel for the respondent that determination of question of jurisdiction can be left open till such time that it comes before the court as an objection in an appeal filed by any party against the final judgment rendered by the learned ATC. As the court is already seized of the matter it cannot defer judgment on the foundational question of jurisdiction, as in the event that this Court comes to the conclusion that the learned ATC is not vested with jurisdiction to conduct the trial in the instant matter, the ATC would be devoid of jurisdiction even to render final judgment notwithstanding the fact that it has already recorded evidence. 13. Section 23 of ATA contemplates such a situation and provides that any time after taking cognizance of the offence the learned ATC can determine whether or not it is vested with jurisdiction to try the case. Section 23 does not prescribe any period during trial after which such
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determination cannot be made. The ATC can therefore come to the conclusion while recording evidence that the charge of terrorism is not attracted and that no other schedule offence is attracted in a matter being tried by it and consequently it has no jurisdiction to try the offences that the accused is charged with and that the case is liable to be transferred to a court of ordinary jurisdiction. The last part of section 23 is a saving provision which provides that a court to which, the case is transferred is to proceed with the trial of the offence as if it was the court that took cognizance of the offence. Section 23 thus does not contemplate a de novo trial in a case transferred from the ATC to the Sessions Court. The proceedings undertaken before ATC and any evidence recorded by ATC till such time that it makes a determination regarding its jurisdiction stands protected and the trial continues before a court of ordinary jurisdiction from the stage where the ATC left off. The legislative intent behind section 23 is therefore self-evident. While the trigger for purposes of determining the, question of jurisdiction is after the ATC takes cognizance of the offence, there is no outer limit for making such determination. Such question can be determined even at the time of rendering final judgment if the ATC were to conclude at such time that the accused was not liable for the offence of terrorism under section 7 of ATA or for any other scheduled offence. Upon forming such opinion, the ATC would need to still transfer the case to a court of competent jurisdiction to pass judgment in relation to offences which do not constitute an offence of terrorism or a scheduled offence under the ATA. 14. For the aforementioned reasons we find that these petitions are maintainable and we are under an obligation to decide the question of jurisdiction in accordance with law. 15. We, need not to retrace the dissonant application of sections 6 and 7 of ATA till the confusion surrounding the concept of terrorism was resolved by the august Supreme Court in its unequivocal judgment in Ghulam Hussain that has clarified what constitutes terrorism for purposes of sections 6 and 7 of ATA. Let us reproduce the relevant paras from Ghulam Hussain v. The State (PLD 2020 SC 61) at some length: 13. ... For the purposes of further clarity on this issue it is explained for the benefit of all concerned that the cases of the offences specified in entry No. 4 of the Third Schedule to the Anti-Terrorism Act, 1997 are cases of those heinous offences which do not per se constitute the offence of terrorism but such cases are to be tried by an Anti-Terrorism Court because of their inclusion in the Third Schedule. It is also clarified that in such cases of heinous offences mentioned in entry No. 4 of the said Schedule an Anti-Terrorism Court can pass a punishment for the said offence and not for committing the offence of terrorism. ... Such distinction between cases of terrorism and other heinous offences by itself explains and recognizes that all heinous offences, howsoever serious, grave, brutal, gruesome, macabre or shocking, do not ipso facto constitute terrorism which is a species apart. 14.... Reading of subsections (1) and (2) of the said section together makes good sense, i.e. all the actions specified in subsection (2) shall constitute terrorism if they are committed with the 'design' mentioned in clause (b) of subsection (1) or are committed for the 'purpose' referred to in clause (c) of subsection (1) of that section. Subsection (3) of that section, however, provides that "The use or threat of any action falling within subsection (2) which involves the use of firearms, explosive or any other weapon is terrorism, whether or not subsection (1)(c) is satisfied" which means that if for commission of the actions mentioned in subsection (2) a firearm, an explosive substance or any Other weapon is actually used or a threat regarding use of the same is extended then all such actions are to constitute the offence of terrorism even if the other requirements of clause (c) of subsection (1) of section 6 are not satisfied or fulfilled. The requirements that need to be satisfied for invoking clause (c) of subsection (1) of section 6 are that the use or threat of action should be for "the purpose of advancing a religious, sectarian or ethnic cause" or for the purpose of "intimidating and terrorizing the public, social sectors, media persons, business community" or for
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the purpose of "attacking the civilians, including damaging property by ransacking, looting, arson, or by any other means, government officials, installations, security forces or law enforcement agencies". ... He has also been found by us to be correct in submitting that if the provisions of subsection (3) of section 6 of the Anti-Terrorism Act, 1997, as they are worded, are to be given effect then the distinction between the peculiar offence of terrorism and most of the run…
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