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Petitioner: Malik TARIQ AYUB and another VS Respondent: The STATE and 5 others
Court Name: Islamabad High Court Judge(s): Aamer Farooq, Mohsin Akhtar Kayani Title: Malik TARIQ AYUB and another vs The STATE and 5 others Case No.: Writ Petition No, 178 of 2017 Date of Judgment:2018-07-12 Reported As: 2018 P Cr. L J 1719 Result: Petition allowed
JUDGMENT
JUDGMENT AAMER FAROOQ, J.---Through the instant petition, the petitioners have challenged order dated 21.12.2016 passed by respondent No,2. 2. The facts, leading to filing of instant petition, are that on the complaint of petitioner No,1, FIR No,239 dated 15.08.2016 under sections 302/324, 148/149 and 337-F(iii), P.P.C. read with section 7, A.T.A., Police Station, Shalimar, Islamabad, was registered. In the referred FIR, respondents Nos,3 to 5 were nominated as the accused for committing murder of Barrister Fahad Malik and attempted to commit murder of complainant i,e, Malik Tariq Ayub. It was also alleged that on 14.08.2016, at about 12:00 a.m., a scuffle took place between Husnain, the son of petitioner No,1 and accused Raja Arshad at F-11 Markaz, Islamabad. When the complainant reached at the spot, Raja Arshad extended threat to him and his son Husnain. In the meanwhile, the police of Police Station Shalimar reached at the spot and took Raja Arshad to Police Station and also asked the complainant to come there. At the Police Station, petitioner No,1 and his three sons namely Husnain Malik Zonain Malik and Bazaib Malik along with his nephew Barrister Fahad Malik, tried to compromise the matter with Raja Arshad. During course of the same, there was exchange of harsh words however apparently the matter was settled at 3:00 a.m. After that, petitioner No,1 and his son Husnain Malik, sat in their car, when Raja Arshad also sat with them, as he wanted to have discussion, whereas Barrister Fahad Malik, Bazaib Malik and Usman Fahad Malik sat in Fahad's car. At about 3:20 a.m. near Street No,3, F-10/3, Islamabad, two Double Cabin Vehicles approached the vehicle of Barrister Fahad Malik and the accused compelled to stop Fahad Malik's car from behind. Raja Arshad walked out of the car and raised `Lalkara' and Nauman opened the door of driving seat of car of the complaint and aimed Kalashnikov, which he pushed down and as a result, Nauman fired, which
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hit petitioner No,1 in the leg, whereas other fires, damaged different parts of the car. On seeing other persons coming down, Fahad tried to flee away, but Raja Arshad opened fire from the front and there-after from the right, as a result whereof, vehicle got out of control and collided with the boundary wall of the near house and the accused fled away. 3. The police, during course of investigation and on supplementary statement of petitioner No,1, added section 7 of Anti-Terrorism Act, 1997 (the Act) and also recorded statements of some persons of the vicinity to the effect that they were terrified and panic was created. Report under section 173, Cr.P.C. was 'filed before respondent No,2. During course of proceedings, respondents Nos,3 and 4 filed applications under section 23 of the Act for deletion of section 7 ibid. The referred applications were decided through a consolidated order dated 21.12.2016, which has been impugned in the instant petition. 4. On behalf of petitioners, four learned counsel addressed the arguments however their arguments are being reduced jointly. 5. It was contended that learned trial court failed to understand the matter and the manner, in which, the accused persons committed the offence and decided the applications in a whimsical manner; that the offence was committed on Main Margalla Road, Islamabad by blocking the road, which is a busy thoroughfare. In this behalf, it was contended that the way, the offence was carried out through automatic weapon, is a result of preplanned intent; that the design of creating fear and panic was prepared not only for the complainant but also for the general public. It was also contended that learned trial court failed to take into account various pronouncements by the Hon'ble Supreme Court of Pakistan, which reflected the interpretation of the provisions of the Act. Reliance was placed on case reported as Shahbaz Khan alias Tippu and others v. Special Judge, Anti-Terrorism Court No,3, Lahore and others' (PLD 2016 Supreme Court 1). It was also contended that deceased Barrister Fahad Malik was a practicing lawyer and had come to the Police Station as Legal Advisor to petitioner No,1 and his mother and due to his murder sense of fear amongst the legal fraternity was created. It was contended that in the way, the offence was committed, is gruesome inasmuch as after blocking complainant's car, the fire was shot not only at the complainant's car and the deceased Fahad Malik but also three cars as well and there was aerial firing too. It was also submitted that respondent No,2, while deciding the matter, has erroneously reached to the conclusion that the occurrence took place at 3:00 a.m. hence no sense of panic and fear could have created, whereas on the contrary, it was concluded that the offence took place on the preceding night of 14th August i,e, Independence Day when celebrations continue till late. It was also submitted that since the deceased Fahad Malik is a dual National i,e, he holds nationality of Pakistan as well as nationality of Great Britain therefore his killing received coverage on media as well as social media due to which, fear and sense of panic amongst the public spread. It was also submitted that learned trial court erroneously concluded that where there is a previous enmity, it takes away the case out of jurisdiction of Anti-Terrorism Court. It was observed that it was contrary to the decision of Hon'ble Sindh High Court in case reported as 'Shah Rukh Jatoi v. The State' (2013 M LD ,1588). It was further submitted that respondents Nos,3 and 4 are hardened criminals and there are number of cases pending against them. 6. Kh. Haris Ahmad, Senior Advocate Supreme Court of Pakistan took the Court through the case law on the subject and evolution of section 6 of the Act from its inception in 1997 till to date. Learned counsel initially read the judgments, in which, cases were not categorized as terrorist acts. The cases, which were cited, were `Ch. Bashir Ahmad v. Naveed (PLD 2001 SC 521), 'Mohabbat Ali and another v. The State and another' (2007 SCM R 142), `Tariq Mahmood v. The State and others' (2009 SCMR 1631) and 'Bashir Ahmed v. Muhammad Siddique and others' (PLD 2009 SC 11). Learned counsel then cited cases, in which, the acts were held to be triable by the Anti-Terrorism Court. The cases cited were `Mst. Raheela Nasreen v. The State and another' (2002 SCM R 908), 'Muhammad
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Mushtaq v. Muhammad Ashiq and others' (PLD 2002 SC 841), `Mst. Najam-un-Nisa v. Judge, Special Court constituted under Anti-Terrorism Act, 1997' (2003 SCM R 1323), 'State through Advocate-General NWFP, Peshawar v. Muhammad Shafiq' (PLD. 2003 SC 224), 'Abdul Ghafoor Bhatti v. Muhammad Saleem and others' (2003 SCM R 1934), `Sh. Muhammad Amjad v. The State' (PLD 2003 SC 704), "Mirza Shaukat Baig and others v. Shahid Jamil and others' (PLD 2005 SC 530), Wazeer Ahmed and others v. Nooruddin and another' (2012 SCM R 517), Shahbaz Khan alias Tippu and others v. Special Judge, Anti-Terrorism Court No,3, Lahore and others' (PLD 2016 Supreme Court 1) and Kashif Ali v. The Judge, Anti-Terrorism, Court No,II, Lahore, and others' (PLD 2016 SC 951). 7. Mr. Akram Qureshi, Senior Advocate Supreme Court of Pakistan, inter alia, contended that in order to decide the question regarding jurisdiction, learned trial court has to decide the matter with the application of mind. In this behalf, it was contended that statement of eye-witnesses and evidence recorded by the Investigation Officer, clearly shows that the offence in question falls within the domain of section 7 of the Act. Learned counsel took the Court through the statements of eye- witnesses Husnain Maalik, Zonain Malik, Bazaib Malik, Usman Ali and Faisal Zafar to show that the way the offence was committed, was to terrify not only the complainant but also the people of the vicinity. Learned counsel also took the Court through the statements of Ahmad Sherjil, Muhammad Ajmal as well as Azmat Mumtaz Saqib. Learned counsel also placed reliance on case reported as Zahid Sohail Sattar v. The State' (1998 PCr.LJ 1795 Lahore). In this behalf, it was contended that witnesses of the offence could not be the eye-witness but any person whose statement is recorded in the case diary which comes within the provision of section 161, Cr.P.C. and the accused is entitled to its copy. Reliance was placed on cases reported as Wasrullah v. The State' (1980 PCr.LJ 5) and 'Ch. Noor Muhammad v. The State' (1969 PCr.LJ 568). Learned counsel also emphasized on the recent judgment of the Hon'ble Supreme Court of Pakistan in cases reported a9 'Muhammad Jibran Nasir and others v. The State and others' (PLD 2018 Supreme Court 351) and `The Province of Punjab through Secretary Punjab Public Prosecution Department and another' v. Muhammad Rafique and others' (PLD 2018 SC 178). 8. Mr. Azam Nazir Tarar Advocate, appearing on behalf of one of the respondents, contended that by any stretch of imagination, the offence in question does not fall within the scope and domain of section 7 of the Act. It was contended that at the best, the alleged occurrence is a result of enmity between the parties and took place, as per contents of FIR, at 3:00 a.m.- in a deserted street. It was also submitted that no sense of panic or fear was created in any manner and the media hype given to any incident is not a yardstick for determining the fact that alleged occurrence falls within the Act. Reliance was placed on cases reported as Waris All and 5-others v. The State' (2017 SCMR 1752), `Amjad Ali v. The State' (PLD 2017 SC 661), 'Chaudhry Shaukat All v. Haji Jan Muhammad and others' (2017 SCM R 533), `Sajid Rasheed Qureshi v. Munawar Ahmad' (2017 SCM R 162), 'Khud-e-Noor v. The State' (PLD 2016 SC 195), `Sagheer Ahmad v. The State' (2016 SCM R 1754) and 'Muhammad Yaqoob and others v. The State' (2009 SCM R 527). 9. Khawaja Ahmad Tariq Rahim, Senior Advocate Supreme Court, inter alia, contended that instant petition is the one under Article 199 of the Constitution, in which, the Court has to see whether there is any error of law or jurisdictional defect in the impugned order and is not to replace the findings of facts in any way. 10. Mr. Muhammad, Azhar Siddique, learned counsel for the respondents, read various provisions of Anti-Terrorism Act, 1997 as well as the Code of Criminal Procedure, 1898 and contended that on the basis thereof, the offence is not the one falling under the Act. 11. The arguments advanced by learned counsel for the parties have been heard and the documents placed on record examined with their able assistance. 12. The petitioners are aggrieved of acceptance of applications under section 23 of the Act filed by
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respondents Nos,3 and 4, whereby section 7 of the Act was deleted from the report under section 173, Cr.P.C. and the FIR and on the basis thereof it was ordered that challan/report under section 173, Cr.P.C. be filed before the court of ordinary jurisdiction. 13. The provisions of the Act, especially section 6 has received considerable judicial interpretation. Before examining the recent pronouncements of the august apex Court discerning the criteria for trial of a case before the Special Court i,e, Anti-Terrorism Court, it is just and proper that relevant provisions of law be reproduced:- 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 a foreign government or population or an international organization] 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 [or intimidating and terrorizing the public, social sectors, media persons, business community or attacking the civilians, including damaging property by ransacking, looting, arson or by any other means, government officials, installations, security forces or law enforcement agencies:] [Provided that nothing herein contained shall apply to a democratic and religious rally or a peaceful demonstration in accordance with law]. [7. Punishment for acts of terrorism. ---[(1)] Whoever commits an act of terrorism under section 6, whereby- (a) death of any person is caused, shall be punishable, on conviction, with death or with imprisonment for life, and with fine; or (b) he does anything likely to cause death or endangers life, but death or hurt is not caused, shall be punishable, on conviction, with imprisonment of either description for a terms which shall be not less than [ten years] but may extend to [imprisonments for life] and with fine; or (c) grievous bodily harm or injury is caused to any person, shall be punishable, on conviction, with imprisonment of either description for a term which shall not be less than [ten years] but may extend to imprisonment for life and shall also be liable to a fine; or (d) grievous damage to property is caused, shall be punishable on conviction, with imprisonment, of either description for a term not less than ten year and not exceeding [but may extend to imprisonment for life] and shall also be liable to a fine; or (e) the offence of kidnapping for ransom or hostage-taking has been committed, shall be punishable, or conviction, with death or imprisonment for life * * * ; or the offence of hijacking, has been committed, shall be punishable, on conviction, with death or imprisonment for life * * * and fine; [(ff) the act of terrorism committed falls under section 6(2) (ee), shall be punishable with imprisonment which shall not be less than fourteen years but may extend to imprisonment for life;] (g) the act of terrorism committed falls under section 6(2)(D and (g), shall be punishable, on conviction, with imprisonment of not less than [two years] and not more than [five years] and with fine; or (h) the act of terrorism committed falls under clauses (h) to (n) of subsection (2) of section 6, shall be punishable on conviction, to imprisonment of not less than [five years] but may [extend to imprisonment for life] and with fine; (i) any other act of terrorism not falling under clauses (a) to (h) above or under any other provision of this Act, shall he punishable, on conviction, to imprisonment of not less than [five years] and not more than [ten years] or with fine or with both. [(2) An accused, convicted of an offence under this Act shall be punishable with imprisonment of ten years or more, including the offences of kidnapping for ransom and hijacking shall also be
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liable to forfeiture of property.] 12. Jurisdiction of [Anti-terrorism Court]. -- (1) Notwithstanding anything contained in the Code or in any other law, a scheduled offence committed in an area in a Province [or the Islamabad Capital Territory] shall be triable only by the [Antiterrorism Court] exercising territorial jurisdiction in relation to such area. (2) Notwithstanding anything contained in subsection (1), if in respect of a case involving a scheduled offence committed in any area, the Government, having regard to the facts and circumstances of the case, is satisfied that in order to ensure a fair trial, or for the protection and safety of witnesses, that such offence should be tried by [an Anti-terrorism Court] established in relation to any other area, the Government may make a declaration to that effect. Explanation. - Where [an Anti-terrorism Court] is established in relation to two or more areas, such [Anti-terrorism Court] shall be deemed, for the purpose of this sub-section, to have been established in relation to each of such areas. (3) Where a declaration is made in respect of an offence committed in an area in a Province [or the Islamabad Capital Territory] any prosecution in respect of such offence shall be instituted only in the [Anti-terrorism Court] established in relation to such area, and, if any prosecution in respect of such offence is pending immediately before such declaration in any other court, the same shall stand transferred to such [Antiterrorism Court] and such [Anti-terrorism Court] shall proceed with such case from the stage at which it was pending at the time without the necessity of recalling any witnesses. 23. Power to transfer cases to regular courts. Where, after taking cognizance of an offence, [an Anti-terrorism 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. 14. In case reported as Mirza Shaukat Baig and others v. Shahid Jamil and others' (PLD 2005 SC 530), the Hon'ble Supreme Court of Pakistan observed as follows:- "The words "designed to" are equated to that of wilfully, knowingly and deliberately. It would have no substantial bearing on the impact of section 6 of the Act whether the words knowingly, deliberately and wilfully have been mentioned specifically or otherwise as it would have nu impact on the meaning, aim, scope and objects of the provisions of section 6 of the Act. 'Mens rea' (guilty intention) is an important ingredient of offences made punishable under the Act but specific use of the word 'mens rea' in the enactment is not necessary, if this expression can be conveyed by any other word as has been done by the Legislature in section 6 of the Act by using the words "designed to". Even in the case of a statutory offence the presumption is that mens rea is an essential ingredient unless the statute creating the offence by express terms or by necessary implication rules it out. The mere omission of the word "knowingly" or "intentionally" is not sufficient to rebut this presumption for all that such words do is to say expressly what is normally implied. Thus where the words used in the statute are not clear or unambiguous an examination of the general scheme and object of the statute becomes necessary to determine whether the general rule of liability has been departed from. In some cases even the quantum of the punishment has been taken into account for determining this question, though this by itself cannot, be conclusive. Where a criminal act is designed to create a sense of fear or insecurity in the mind of the general public that can only be adjudged by keeping in view the impact of the alleged offence and manner of the commission of alleged offence. The Anti-Terrorism Act was brought into force for the prevention and elimination of terrorism, sectarian violence and for expeditious dispensation of justice in the heinous offences as stipulated in the Act itself. So far as the concept of "terrorism" is
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concerned there is no substantial change between the Suppression of Terrorism Activities (Special Courts) Act (XV of 1975) and the Anti-Terrorism Act (XXVII of 1997) except a few minor changes having no bearing on the meaning and scope of terrorism. Striking of terror is sine qua non for the application of the provisions as contained in section 6 of the Act which cannot be determined without examining the nature, gravity and heinousness of the alleged offence, contents of FIR, its cumulative effects on the society or a group of persons and the evidence which has come on record. In so far as the factum of intention is concerned that cannot be evaluated without examining the entire evidence which aspect of the matter squarely falls within the jurisdictional domain of the Court constituted under the Act and such questions cannot be decided by invocation of Constitutional jurisdiction without scrutinizing all the circumstances in a broader prospect by keeping in view the ground realities in mind. There could be no second opinion that where the action of an accused results in striking terror or creating fear, panic, sensation, helplessness and sense of insecurity among the people in a particular vicinity it amounts to terror and such an action squarely falls within the ambit of section 6 of the Act and shall be triable by a Special Court constituted for such purpose. What was the real intention of the offender could only be adjudged on the basis of evidence which cannot be determined by invocation of Constitutional jurisdiction and Special Judge, who is usually a Senior Sessions Judge, can take care of the matter which can be transferred by him if it does not fall within his jurisdictional domain. There is no denying the fact that it was never the intention of legislature that every offender irrespective of the nature of the offence and its overall impact on the society or a section of society must be tried by the Anti-Terrorist Court but the question as to whether such trial shall be conducted or not initially falls within the jurisdictional domain of Anti -Terrorist Court which cannot be interfered with in the absence of sufficient lawful justification which appears to be lacking in these cases. It is, however, obligatory for such Courts to watch carefully the nature of accusation and examine the entire record with diligent application of mind to, determine as to whether the provisions as contained in the Act would, prima facie, be attracted or otherwise? Where such Courts are of the view, after taking cognizance of the offence, that the alleged offence does not fall, prima facie, under the provisions of the Act, it must transfer the same to regular Court without loss of time. In case reported as `Shahbaz Khan alias Tippu and others v. Special Judge, Anti-Terrorism Court No,3, Lahore and others' (PLD 2016 Supreme Court 1), the Hon'ble Supreme Court, while relying on two earlier judgments on the subject reported 'Bashir Ahmed v. Muhammad Siddique' (PLD 2009 SC 11) and 'Ahmed Jan v. Nasruallah' (2012 SCM R 59), observed as under:- "6. A bare reading of the FIR indicates that four accused, one armed with a pistol, one with knife and the remaining with sticks, attacked the complainant party in consequence of which Sher Jan died and Naseeb Ullah received injuries. No motive was alleged and the police after due investigation submitted challan/report under section 173, Cr. P. C. before the learned Court of Session and the same was entrusted to an Additional Sessions Judge who transmitted it to the Special Court established under the Anti-Terrorism Act, 1997. To assume jurisdiction under the afore-referred Act, the Court has to examine the mandate of the relevant penal provision which is section 6 of the Anti-Terrorism Court and it reads as under:-- "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 [or intimidating and terrorizing the public, social sectors, business community and preparing or
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attacking the civilians, government officials, installations, security forces or law enforcement agencies.] (2) An "action" shall fall within the meaning of subsection (1), if it: (a) involves the doing or 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; (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; (ee) involves use of explosives by any device including bomb blast; (ee) incites hatred and contempt on religious, sectarian or ethnic basis to stir up violence or cause internal disturbance; (f) involve stoning, brick-batting or any other form of mischief to spread panic; (g) involves firing on religious congregations, mosques, Imam Bargahs, churches, temples and all other places of worship, or (h) 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 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 civic life; (j) involves the burning of vehicles or any other serious…
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