PLJ 2018 SC 351[Appellate Jurisdiction]
Present: Mian Saqib Nisar, HCJ, Sardar Tariq Masood & Faisal Arab, JJ.
MUHAMMAD RAFIQUE and others--Respondents
C.A. Nos. 955 and 956 of 2014, decided on 22.12.2017.
(Against the judgment dated 16.4.2014, passed by the Lahore High Court, Rawalpindi Bench, in Writ Petitions No. 3054 and 3275 of 2012)
Anti-Terrorism Act, 1997 (XXVII of 1997)--
----Ss. 6, 7 & 23--Pakistan Penal Code (XLV of 1860), S. 302--Object & scope of Act, 1997 stated--Dispute over plot of land--Visit of local commission--Indiscriminate firing--Immediate death of persons--“Act of terrorism”--“Fear of security & threat”--“Design”--Accused causing death of female--S. 7, ATA added by police--Challan filed in ATC Court--Anti-Terrorism Court allowing applications of accused and transferring case to Court of ordinary jurisdiction by observing that circumstances don’t invite Section 7 of Act, 1997---Challenged before High Court--High Court observing that FIR suggested that incident transpired under backdrop of a personal enmity or vendetta and as such, don’t fall under purview of Section 6 of Act, 1997--State and complainant challenging judgment of High Court--Appellant contended that Courts below had not interpreted provisions of Sections 6 & 7 of Act, 1997, that 26 persons resorting to indiscriminate firing with sole object of frustrating due process of law and administration of justice--Respondents contended that there was an ongoing dispute of land and civil litigation and that no firing was directed at local commissioner or advocate of appellant/complainant--Validity--Preamble of Act, 1997 clearly indicates that Act, 1997 was promulgated for prevention of terrorism, sectarian violence and for speedy trial of heinous offence--In cases of terrorism, mens rea should be with an object to accomplish act of terrorism and carrying out terrorist activities to overawe state, state institutions, public-at-large, destruction of public and private properties, make assault on law enforcing agency and even at public-at-large in sectarian matters--Ultimate object and purpose of such act is to terrorise society but in ordinary crimes committed due to personal vendetta or enmity, such elements are always missing so crime committed only due to personal revenge cannot be dragged into fold of terrorism and terrorist activities. [Pp. 356 & 357] A
Anti-Terrorism Act, 1997 (XXVII of 1997)--
----S. 6--“Design”--Scope of--Applicability provision of Act, 1997--Civil litigation--Word “design” was substituted to see that if act is designed to create sense of fear or insecurity in society then, Anti-Terrorism Court will have jurisdiction to try same--Word “design” can be considered scheme and object in mind of accused for its subsequent execution--Courts have to see manners in which incident had taken place including time and place and should also take note of fact of act as to create terror or insecurity in general public where action of accused results in striking terror or creating fear, panic and sense of insecurity among people in a particular vicinity, it amount to terror within ambit of Section 6 of Act--Courts are required to see whether terrorist act was such that it would have tendency to create sense of fear and insecurity in mind of general public as well as psychological impact created in mind of society--Petitioner had filed a civil suit and his application for initiation of contempt proceedings against respondents, bailiff of Court was appointed--Application of contempt of Court and appointment of bailiff triggered enmity as such, occurrence took place--Allegedly 5 persons fired specifically at deceased hitting on her legs--Till that time there was no allegation of creating terror and insecurity in general public--Later on, it was alleged that 26 persons in order to create terror and insecurity in general public, made indiscriminate firing but allegation is not supported from any source as neither any crime empty was recovered from place of occurrence nor any body else had received even a stretch due to said firing--Petition was dismissed. [Pp. 357 & 360] B & C
Interpretation of Statutes--
----“Penal Statute”--Constitution of
Pakistan 1973, Arts. 4 & 10-A--Due process of law--Phrase used “to be treated in accordance with” under Article 4(1) of Constitution includes that every citizen must be dealt with in accordance with law applicable to him subject to, facts and circumstances of case--If any person is triable under ordinary penal law, then treating him under special law, not clearly applicable to him would be a violation of command of constitution--It is almost settled by now that whenever a penal statute requires interpretation, it shall be so interpreted, which favours accused person and not prosecution or state--Two interpretations of statute should be interpreted in such manner that interpretation favouring accused should be adopted. [P. 361] D
Ch. Muhammad Sarwar Sidhu, Addl. PG and Riaz-ul-Haq, DSP for State (in C.A. No. 955/14).
Kh. Haris Ahmed, Sr. ASC and Mr. Tariq Aziz, AOR for Appellant (in CA No. 956/2014).
Syed Zahid Hussain Bokhari, ASC for Respondents No. 1-4 (in CA No. 955/14).
Nemo for Respondent No. 11 (in CA No. 955/14).
Raja Abdul Ghafoor, AOR for Respondents No. 1, 2, 18-19 (in CA No. 956/14).
Nemo for Respondents No. 6 (in CA No. 956/14).
Not represented for other Respondents
Date of hearing: 23.11.2017
Sardar Tariq Masood, J.--The instant civil appeals, by leave of the Court, arise from a common judgment of the Division Bench of the Lahore High Court, Rawalpindi Bench, dated 16.04.2.014, wherein the order passed by the learned Special Judge Anti-Terrorism Court-II,
Rawalpindi, dated 23.11.2012, was upheld and writ petitions filed by the appellants were dismissed.
2. The facts giving rise to the instant proceedings relate to a dispute over a plot of land. Raja Muhammad Yaqoob (complainant/ appellant in Civil Appeal No. 956 of 2014) filed an application for contempt of Court in
Civil Court, pursuant to which a local commission was appointed. The local commission visited the disputed plot on the day of the occurrence. Complainant and his wife Mst. Sabira Bibi were present there alongwith their Advocate and two police guards, when this occurrence took place. The wife of the appellant (complainant) namely Mst. Sabira Bibi got fire-arm injuries on her legs at the hands of five accused persons. It was alleged in the FIR that 26 persons including respondents fired indiscriminately to create fear and sense of insecurity in general public. Allegedly Respondents No. 2 to 4 fired at the Car of the Advocate of the complainant hitting on left and right side of door glasses of the Car. In consequence thereof, the complainant lodged FIR No. 643/2012 under Sections 324, 427 and 147 PPC at Airport Police Station, District Rawalpindi. Mst. Sabira Bibi later succumbed to her injuries, leading to Section 302 PPC being added. Further, during the investigation, Section 7 of the Anti-Terrorism Act, 1997 [hereinafter referred to as “the Act, 1997”) was also added. During trial the respondents filed an application under Section 23 of the Act, 1997 which was allowed by the ATA Court-II, Rawalpindi, vide order dated 23.11.2012, and the case was transferred to an ordinary Court of jurisdiction, by observing that the circumstances of the case do not invite Section 7 of the Act, 1997. The State and the appellant (Raja Muhammad Yaqoob) filed separate writ petitions before the learned Lahore High Court, Rawalpindi Bench, which were dismissed vide the impugned judgment, dated 16.04.2014. The learned High Court held that the contents of FIR suggested that the incident transpired under the backdrop of a personal enmity or vendetta and as such do not fall under the purview of Section 6 of the Act, 1997. Being aggrieved, the State and appellant filed two separate petitions before this Court, in which leave to appeal was granted on 09.06.2014, and the following order was passed:
“On the basis of the facts and circumstances of the case in order to consider whether the trial Court while holding that the case is not triable by the Anti-Terrorism Court had not taken all the factors into account and has ignored the report of the Joint Investigation Team and also the material on the record and the surrounding circumstances and whether the learned High Court has also failed to apply its proper mind to the circumstances of the case and to the law laid down in the judgment reported as Bashir Ahmed vs. Muhammad Siddique and others (PLD 2009 SC 11) and also the subsequent judgment in which it has been held that the surrounding circumstances and the other material must also be taken into account while determining and deciding whether the case has been made out within the purview of Anti-Terrorism Act, 1997; whether an offence in terms of the provisions of Section 6(1)(b) of the Anti-Terrorism Act, 1997 had been made out from the contents of the FIR, the statements of the witnesses, the report of the Joint Investigation Team particularly in the circumstances when the offence had been committed in the presence of the Local Commission, who was the representative of the Court, the police who were assigned to provide protection to the complainant side, and the counsel of the complainant side whose car was also allegedly smashed on account of indiscriminate firing which caused fear in the mind of public-at-large and the surrounding areas, leave is granted.
Civil Misc. Application Nos. 3102 & 3104 of 2014
2. The trial Court shall not pass the final judgment in the matter, though we are not halting the trial. However, the case be fixed immediately after long summer vacations.”
3. Kh. Haris Ahmed, learned Sr. ASC, representing the appellant in Criminal Appeal No. 956 of 2014, submitted that both the preceding Courts had not interpreted the provisions of Sections 6 and 7 of the Act, 1997, in accordance with law and had not taken into consideration the findings of the JIT; that 26 persons resorted to indiscriminate firing with the sole object of frustrating the due process of law and administration of justice. That the act of the respondents created fear and insecurity in the society at large and, therefore, were liable to be tried under the Act, 1997. The presence of personal motive in itself, is not sufficient to exclude the application of Section 7 of the Act, 1997. Further, the Court has to examine the actions and circumstances of a case while interpreting Sections 6 and 7 of the Act, 1997 and not solely on the personal motive of the incident. Learned counsel, in this behalf, relied upon the cases of Kashif Ali vs. The Judge, Anti-Terrorism, Court No. II, Lahore and others (PLD 2016 SC 951), Nazeer Ahmed and others vs. Nooruddin and another (2012 SCMR 517), State through Advocate-General, NWFP, Peshawar vs. Muhammad Shafiq (PLD 2003 SC 224) Mst. Najam-un-Nisa vs. Judge, Special Court Constituted under Anti-Terrorism Act, 1997 (2003 SCMR 1323), Muhammad Mushtaq vs. Muhammad Ashiq and others (PLD 2002 SC 841), Mst. Raheela Nasreen vs. The State and another (2002 SCMR 908), Abdul Ghafoor Bhatti vs. Muhammad Saleem and others (2003 SCMR 1934), Mirza Shaukat Baig and others vs. Shahid Jamil and others (PLD 2005 SC 530) and Shahbaz Khan alias Tippu and others vs. Special Judge Anti-Terrorism Court No. 3, Lahore and others (PLD 2016 SC 1).
4. Ch. Muhammad Sarwar Sidhu, learned Additional Prosecutor General, representing the State in Civil Appeal No. 955 of 2014, adopted similar arguments as those advanced by the learned counsel for the appellant in Civil Appeal No. 956 of 2014.
5. Syed Zahid Hussain Bukhari, learned counsel appearing on behalf of Respondents No. 1 to 4 in Civil Appeal No. 955 of 2014, contended that there was an ongoing dispute of land and civil litigation and that no firing was directed at the local commissioner or the advocate of the appellant/complainant. The shots fired by Respondents 2 to 4 merely damaged the front door’s windows of a vehicle present at the scene and that not a single person was harmed or injured, despite indiscriminate firing from 26 other individuals. The injuries sustained by the Complainant’s wife were on non-vital parts of her body and attributable to shots fired by five persons alone. Further, the allegation of indiscriminate firing is also unsubstantiated since no crime empties were recovered from the place of occurrence. As such, the actions of the Respondents have not in any manner hampered due process of law and allegation of such is absent from the concerned FIR. Further, the JIT report cannot be considered as evidence and is inadmissible. Further still, the constables/guards of the Complainant and the local commissioner have not supported the prosecution case due to which they have been named as co-accused in the instant case. Lastly, the trial of the Respondents has already been concluded before the learned Additional Sessions Judge Rawalpindi, and sending/transferring the case to special Court, for de-novo trial, will prejudice the case of both the parties. Learned counsel, in this behalf, relied upon the cases of Khuda-e-Noor vs. the State (PLD 2.016 SC 195), Sajid Qureshi vs. Manwar and others (2017 SCMR 162), Ch. Shaukat Ali vs. Haji Jan Muhammad and others (2017 SCMR 533), Waris Ali and 05 others vs. The State (2017 SCMR 1572) and Zia-ud-Din vs. the State etc (Criminal Appeals No. 246 and 247/2012).
6. We have heard the learned counsels for the parties as well as examined the available record and the impugned judgment.
7. The preamble of the Act, 1997 clearly indicates that the Act, 1997 was promulgated for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences. So, in the cases of the terrorism, the mens-rea should be with an object to accomplish the act of terrorism and carrying out terrorist activities to overawe the state, the state institutions, the public-at-large, destruction of public and private properties, make assault on the law enforcing agency and even at the public-at-large in sectarian matters. The ultimate object and purpose of such act is to terrorize the society but in ordinary crimes committed due to personal vendetta or enmity, such elements are always missing so the crime committed only due to personal revenge cannot be dragged into the fold of terrorism and terrorist activities. The same was the view in the case of Mehram Ali vs. Federation of Pakistan (PLD 1998 SC 1445) passed by a full Bench (five members bench) of this Court.
After the amendment the term “design.” was used in Section 6 of the Act, which has widened the scope of the Act. The word “design” was substituted to see that if the act is designed to create sense of fear or insecurity in the society then the
Anti-Terrorism Court will have the jurisdiction to try the same. The word “design” can be considered the scheme and object in the mind of accused for its subsequent execution. So the Courts while deciding the question of attraction of the provisions of the Act, has to see the manners in which the incident had taken place including the time and place and should also take note of the fact of the act as to create terror or insecurity in the general public where the action of the accused results in striking terror or creating fear, panic and sense of insecurity among the people in a particular vicinity, it amount to terror within the ambit of Section 6 of the Act. The Courts are required to see whether the terrorist act was such that it would have the tendency to create the sense of fear or insecurity in the mind of general public as well as psychological impact-created in the mind of the society. The Courts can form opinion after going through the facts, circumstances and material so collected by the police in the case under discussion because the facts are varies from case to case.
8. The judgments relied upon by learned counsel during the proceedings, in particular Mst. Raheela Nasreen vs. The State and another (2002 SCMR 908), Najam-un-Nisa vs. Judge Special Court Anti-Terrorism Court (2003 SCMR 1323) and Nazeer Ahmed and others vs. Nooruddin and another (2012 SCMR 517), were leave refusing orders. Leave granting or refusing orders can be issued on the basis of the pleadings of the parties simpliciter, without any appraisal of the underlying factual or legal aspects of the case. As such, a leave granting or refusing order cannot be considered as definitive and conclusive declaration of law. Reliance in this behalf can be placed on Cantonment Board, Rawalpindi through its EO and, others vs. Lt. Col (Retd) Allah Dad Khan and another (2015 SCMR 832) and Haji Farman Ullah vs. Latif-ur-Rehman (2015 SCMR 1708). Therefore, the above cases cited during the instant proceedings, cannot be relied, upon as conclusive precedent or established law with respect to the instant legal controversy.
The facts of the case in hand are distinguishable from the cases cited in Muhammad Mushtaq vs. Muhammad Ashiq and others (PLD 2002 SC 841), the accused had committed quadruple murder using kalashnikovs’ on Court Road, near the District Courts,
Lahore. This Court held that the incident had a terrorizing effect on the minds of the people at large and the concerned locality, an element acutely absent from the facts of the instant case. Impugned orders of the Lahore High Court were, therefore, set aside and the case was remanded back to the Anti-Terrorism Court.
In The State through AG NWFP, Peshawar vs. Muhammad Shafiq (PLD 2003 SC 224) the victim was murdered by being set alight with petrol and being fired at by the accused with a kalashnikov. The body of the deceased was completely charred and the bones of both his hands and forearms were burnt. Death had occurred due to the intense pain and suffocation of immolation, rather than the fire-arm injury. While the incident had taken place in an isolated place and due to personal animosity between the parties, this Court held that when the charred and mutilated body was brought for its funeral rites at the deceased’s residence, it created an unquestionable sense of fear, shock and insecurity among the people in the vicinity. The trial was conducted by the
Special Court and appeal was filed before the learned Peshawar High Court, but the case was remanded for re-trial before the ordinary Court of jurisdiction, but this Court through the judgment, remanded back the case to the Peshawar High Court to decide the same on merits.
In Abdul Ghafoor Bhatti vs. Muhammad Saleem and others (2003 SCMR 1934), six dacoits entered into a house with lethal fire-arms committed dacoity and also kidnapped two minor children for ransom, without any previous rivalry or enmity. This Court held that the abduction of minors at gunpoint for ransom did have the tendency to terror among reasonable and prudent persons of the society and a sense of insecurity among the general public. More notably, the perpetrators lacked any personal motive towards the victims and harbored a purely terrifying and intimidating object and design. As such, the facts of the case attracted the provisions of the Act, 1997 and the case was entrusted to the
Anti-Terrorism Court for decision in accordance with law.
In Mirza Shaukat Baig and others vs. Shahid Jamil and others (PLD 2005 SC 530), four persons armed with fire-arms made indiscriminate firing in a crowded bazar in broad daylight, resulting in four fatalities. The accused also committed dacoity in the tune of rupees two crores. In the case of Shahbaz Khan alias Tippu and others vs. Special Judge, Anti-Terrorism Court No. 3, Lahore and others (PLD 2016 SC 01), the accused brutally killed five unarmed persons on a public street. This Court held that the assailants had no personal grouse against the victims and that the actual design, intent and mens rea was in fact the natural and inevitable consequence of the occurrence, i.e. the spread of terror and insecurity amongst the public via the brutal and gratuitous killing of five unarmed persons amidst a crowded vicinity. In both cases, this Court found the incidents and actions to lack any personal motive or enmity. As such, they fell within the domain of terrorism and under the jurisdiction of the
9. It is pertinent to mention here that all the above said judgments have been passed by two or three members Bench and after the case of Mehram Ali (supra), passed by a five members Bench, this Court has clarified in the case of Kashif Ali vs. The
Judge Anti-Terrorism Court No. II, Lahore and another (PLD 2016 SC 951) regarding the “act” and “design” mentioned in Section 6 of the Act. Even in the said case the circumstances mentioned in the FIR, are totally different from the present case as just a day prior to the Election, 04 persons were done to death while chasing their vehicle and many others sustained fire-arm injuries due to indiscriminate firing of the accused persons. From the circumstances of the case it was gathered by this Court that it was a target killing and the aim was to give a message to the voters and supporter of the deceased and the effect of which, was to create a sense of fear and insecurity in the minds of voters and general public.
10. In the above mentioned case i.e. Kashif Ali (supra) this Court while dealing with the issue of jurisdiction observed in
Para 12 of the judgment as under:
“In order to determine whether an offence falls within the ambit of Section 6 of the Act, it mould he essential to have a glance over the allegations leveled in the FIR, the material collected by the investigating agency and the surrounding circumstances, depicting the commission of offence. Whether a particular act is an act of terrorism or not, the, motivation, object, design or purpose behind the said Act has to be seen.”
It was also observed by this Court in
Para 18 of the same judgment that:
“Before parting with this judgment, we would like to observe that this Court cannot lay down any hard and fast rules while interpreting Section 6 of the Act in order to conclude as to which of the cases is triable by the Anti-Terrorism Court, as in many criminal cases, facts of the case are also one of the factors in determining the jurisdiction of a criminal Court. However, we have attempted to generalize the principles which need to be applied by the Courts while deciding the jurisdiction of an
From the above para it was made clear that the observations made in the case of Kashif Ali (supra) were not conclusive and a case to case determination of the applicability of the Act, 1997, is imperative.
11. The observation given in the case of Kashif Ali (supra) was not in field at the time when the learned
Special Court transferred the case in hand to the ordinary Court on 23.11.2012, as the case of Kashif Ali (supra) was decided on 15.2.2016. Hence, the learned Special Court relied upon the case of Bashir Ahmed vs. Muhammad Siddique (PLD 2009 SC 11). Even the case of Kashif Ali (supra) was not in field when the impugned judgment was passed. Although in the case of Bashir Ahmed (supra) leave was refused but, as already discussed, the judgment of 05 members Bench in the case of Kashif Ali (supra), was not in field; hence, the learned Special Court get guidance from the case of Bashir Ahmed (supra) as till that time there were different views given by 2/3 member Benchs of this Court in different judgments.
As according to the observation given in Kashif Ali’s case (supra) the surrounding circumstances are to be seen while answering the question of applicability of the provisions of the Act, 1997, we have perused, the available record and observe that admittedly there was a dispute of the plot where this occurrence took place. It is prosecution’s own case that the petitioner had filed a Civil Suit and on his application for initiation of contempt proceedings against the respondents, a bailiff of the Court was appointed. The application of contempt of Court and appointment of bailiff triggered the enmity as such this occurrence took place. Allegedly, 05 persons fired specifically at Mst. Sabira Bibi (deceased) hitting on her legs. Till that time there was no allegation of creating terror and insecurity in the general public. However, lateron, it was alleged that 26 persons, in order to create terror and insecurity in the general public, made indiscriminate firing but, the allegation is not supported from any source as neither any crime empty was recovered from the place of occurrence nor any body else received even a scratch on his person due to said indiscriminate firing. Even due to the alleged indiscriminate firing not a single bullet hit on the walls of the said plot which were 2.3 feet high.
12. The arguments of the learned counsel for the appellant that administration of justice has been frustrated, has no force as it was never a case of the prosecution that the respondents had, in any way, restrained the bailiff of the Court to visit the said plot/place of occurrence nor even tried to fire shot upon him; even the bailiff was not threatened by the accused persons. Furthermore, according to the complainant party, two police constables, who were the guards of the complainant party, were present at the place of occurrence, but it was not alleged by the prosecution that they were restrained by the accused persons to discharge their duties or any body fired upon them or threatened them. It is also a circumstance that the bailiff of the Court and two constables, never claimed that they were fired at or they were threatened by the respondents. They were subsequently introduced as accused person in the case for abatement.
13. The learned counsel has mainly relied upon the report of JIT and also read certain paragraphs therefrom but the said report is an opinion of the members of JIT, and it can be considered, at the most as a report under Section 173 Cr.P.C. It is settled by now that report under Section 173 Cr.P.C. is inadmissible in evidence, as laid down by this Court in the case of Syed Saeed Muhammad Shah and another vs. The State (1993 SCMR 550). The trial Court will appreciate the same if supported by some admissible material/evidence because the Court has to see the material and cannot decide the case upon any opinion of Police Officer/s, even of a high rank of Inspector General of Police.
14. The phrase used “to be treated in accordance with law” under Article 4(1) of the Constitution of the Islamic Republic of Pakistan, 1973, includes that every citizen must be dealt with in accordance with law applicable to him, subject to, of course, the facts and circumstances of the case. If any person is triable under the ordinary penal law then treating him. under special law, not clearly applicable to him, would be a violation of the command of the Constitution. It is almost settled by now that whenever a penal statute requires interpretation, then it shall be so interpreted, which favours the accused person and not the prosecution or the State. Two interpretations of a statute should be interpreted in such manner that the interpretation favouring the accused, should be adopted.
15. We have also observed that in this case when the case was transferred to the ordinary Court it was entrusted to an Additional Sessions Judge,
Rawalpindi, who, according to both the learned
counsel, had recorded all evidence as well as the statements of accused persons under Section 342 Cr.P.C. and only after hearing the arguments, the judgment is to be announced. In that eventuality, transferring the case to the learned
Special Court for de-novo trial, will highly prejudice the case of either party.
We, after having gone through the allegations leveled in the FIR, the material so collected by the Investigating Officer and other surrounding circumstances of the case, as discussed above, are of the opinion that the present case is not triable under the provisions of the Act, 1997. It is made clear that the observations made above are only meant for determination of the question of jurisdiction and we expect that the trial Court will decide the case without being prejudice by any observation made above.
16. For what has been discussed above and front the surrounding circumstances of the case, we find that the impugned judgment of the learned High Court is not open to any exception as such it does not warrant interference. Consequently, both the Appeals No. 955 and 956 of 2.014, being merit less, are dismissed with no order as to costs.
(W.I.B.) Petition dismissed