PLJ 2019 Cr.C. (Note) 97
Anti-Terrorism Act, 1997 (XXVII of 1997)--
----S. 6(1)(b) or (c)--Honour killing--Jurisdiction of Court--Whether honor killing is triable by Anti-Terrorism Court--Hon’ble Supreme Court has held that the honour killings are the cases of a private offence committed in the privacy of a home with no design or purpose contemplated by Section 6(1)(b) or (c) of the Anti-Terrorism Act, 1997--It has further been held that that the jurisdiction of Anti-Terrorism Court is not attracted and it was held that the case is triable by the Ordinary Court having jurisdiction in the matter. [Para 6] A
PLD 2012 Balochistan 22 ref.
Crimes for Personal Motive--
----Supreme Court held that crimes for personal motive are committed in a gruesome or detestable manner, by itself would not be sufficient to bring the acts within the meaning of terrorism or terrorist activities. [Para 7] B
2017 SCMR 1572 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Anti-Terrorism Act (XXVII of 1997), S. 7(a)--Conviction and sentence--Challenge to “Honor Kelling”--Dual Murder--Jurisdiction of Court--Admittedly, the dual murders in the case in hand was committed on the allegations of honour killing being private offence coupled with the fact the private object is involved in the matter and even the crime was committed within the boundary wall of a house, which is triable by the Ordinary Court having jurisdiction in the matter, irrespective of the fact that as how brutal manner was adopted in committing the dual murder of deceased. [Para 8] C
PLD 2012 Bal. 22 & 2017 SCMR 1572 rel.
Sardar Ahmed Haleemi, Advocate for Appellants.
Mr. Sudheer Ahmed, D.P.G. for Respondent/State.
Date of hearing: 6.12.2017.
PLJ 2019 Cr.C. (Note) 97
[Balochistan High Court, Quetta]
Present: Abdullah Baloch and Muhammad Hashim Khan Kakar, JJ.
versus
STATE--Respondent
Crl. A. No. (T)45 of 2016 & M.R. No. (T)02/2016, decided 10.1.2018.
Judgment
Abdullah Baloch, J.--This common judgment disposes of Criminal Appeal No. (T) 45 of 2016 filed by the appellants Lal Bakhsh son of Dad Muhammad Jameel son of Lal Bakhsh and Dad Muhammad son of Lal Bakhsh, against the judgment dated 11th November 2016 (hereinafter referred as, “the impugned judgment”) passed by learned Speical Judge, Anti-Terrorism Court, Mekran at Turbat (hereinafter referred as, “the trial Court”) whereby the appellant Lal Bakhsh was convicted under Sections 302(b), 149, P.P.C. r/w Section 7(a) of Anti-Terrorism Act, 1997 and sentenced to life imprisonment on two counts for committing the Qatl-i-amd of Jalal and Mst. Maryam, with the benefit Section 382-B, Cr.P.C., while on the same offence the accused Jameel, Dad Muhammad, Ali Sons of Lal Bakhsh and Noor Bakhsh son of Ismail were sentenced to death as Tazir on two counts and they were ordered to be hanged by the neck till they are dead, besides the payment of compensation of Rs. 100,000/- on two counts to the legal heirs of both the deceased. While the Murder Reference No. 02/2016 has been sent by the learned trial Court for confirmation of death sentence or otherwise.
2. Facts of the case are that on 9th October 2014 the complainant Abdul Ghani son of Ghulam lodged FIR No. 213/2014 at Police Station Turbat, under Sections 302, 147, 148, 149, P.P.C. read with Section 7 of ATA, 1997, stating therein that yesterday Lal Bakhsh and his men called him through phone and told that his nephew Jalal induced and took away Mst. Maryam daughter of Lal Bakhsh. He was told that they were hiding themselves in a quarter in Salalah Bazar. He reached the said quarter, found Maryam present there and took her to the house of Lal Bakhsh. Then he received a phone call from the relatives of Maryam, who asked to bring Jalal in the house of Lal Bakhsh so that Nikkah may be performed between Jalal and Maryam. On this he traced out Jalal and after consultation with relatives took him to the house of Lal Bakhsh, when they reached there, the accused persons named in the FIR attacked upon them and forcibly snatched Jalal from him and took him inside the house, therefore, he immediately informed the police and when he along with police reached the house of Lal Bakhsh found the dead bodies of Jalal and Maryam, who had been slaughtered.
3. After registration of FIR and on completion of investigation, the challan of the the case was submitted in the trial Court, who on conclusion of trial convicted and sentenced the appellants, as mentioned above in para No. 1. Whereafter, instant appeal has been filed.
4. At the very outset, the learned counsel for the appellants did not press the appeal on merits and referred the case of Khuda-e-Noor v. the State PLD 2016 Supreme Court 195 and contended that the learned Special Judge, Anti-Terrorism Mekran at Turbat had no jurisdiction to trial the case and convict and sentence the appellants, whereas infact the alleged murders were committed on the basis of honour killing and thus being a case of a private motive and private offence was triable by the Ordinary Court, thus the trial Court has not only, incompetently took the cognizance of the case, but also arrived at a conclusion, which is against the law as well as the dictum laid down by the of Hon’ble Supreme Court referred above, thus prayed for setting-aside of the impugned judgment and remand of the case to the ordinary Court for trial afresh.
5. Learned counsel D.P.G. strongly opposed the contention so raised by the learned counsel for appellants and contended that dual murders have been committed in a brutal manner, whereby the young girl and a boy were slaughtered, which not only terrorized the society, but also it has created sense of fear, insecurity and terror in the general public, thus the learned trial Court has rightly took the cognizance of the matter and awarded conviction and sentence to the appellant through impugned judgment, which is not open for interference by this Court.
6. Heard the learned counsel for the parties and minutely gone through the record with their valuable assistance. The admitted feature of the case is that the motive behind the occurrence was the illicit relations of deceased Maryam with deceased Jalal, due to which the accused persons through the complainant initially called the deceased Maryam and subsequently the deceased Jalal on the assertion of solemnizing their Nikkah, but instead both the girl and the boy were slaughtered. Undisputedly, both the deceased were murdered on the basis of honour killing. It has been observed that earlier this Court in the case of Gul Muhammaed v. the State reported in PLD 2012 Balochistan 22 declared that all the cases of honour killing are to be tried by an Anti-Terrorism Court. However, the case of Gul Muhammad was placed before the Hon’ble Supreme Court in the case of Khuda-e-Noor (supra) and the Hon’ble Supreme Court has held that the honour killings are the cases of a private offence committed in the privacy of a home with no design or purpose contemplated by Section 6(1)(b) or (c) of the Anti-Terrorism Act, 1997. It has further been held that that the jurisdiction of Anti-Terrorism Court is not attracted and it was held that the case is triable by the Ordinary Court having jurisdiction in the matter. For more convenience, the relevant portion of Khuda-e-Noor’s judgement is reproduced hereinbelow:
“3. The crucial question involved in this appeal is as to whether the learned Sessions Judge, Mastung was justified in holding that the case in hand was one of honour killing and, thus, it was a case of “terrorism” attracting the exclusive jurisdiction of an Anti-Terrorism Court or not. It also needs to be examined as to whether the High Court of Balochistan, Quetta was justified in declaring in the case of Gul Muhammad (supra) that by virtue of the provisions of Section 6(2)(g) of the Anti-Terrorism Act, 1997 all cases of honour killing are to be tried by an Anti-Terrorism Court. We have minutely gone through the said judgment passed by the High Court of Balochistan, Quetta and have found that for holding that all cases of honour killing attracted the definition of “terrorism” the High Court had only relied upon the provisions of Section 6(2)(g) of the Anti-Terrorism Act, 1997 without appreciating that by virtue of the provisions of Section 6 of the Anti-Terrorism Act, 1997 any action falling within any of the caiegories of cases mentioned in sub-section (2) of Section 6 of the Anti-Terrorism Act, 1997 could not be accepted or termed as “terrorism” unless the said action , was accompanied by a “design” or “purpose” specified in Section 6(1)(b) or (c) of the said Act. If the interpretation of Section 6(2)(g) of the Anti-Terrorism Act, 1997 advanced by the High Court of Balochistan, Quetta in the said judgment were to be accepted as correct then all cases of a person taking the law in his own hands are to be declared or accepted as cases of terrorism but that surely was not the intention of the legislature. The provisions of Section 6 of the Anti-Terrorism Act, 1997 which define “terrorism” clearly show that the said section is divided into two main parts, i.e. the first part contained in Section 6(1)(b) and (c) of the said Act dealing with the mens rea mentioning the “design” or the “purpose” behind an action and the second part falling in Section 6(2) of the said Act specifying the actions which, if coupled with the mens rea mentioned above, would constitute the offence of “terrorism”. This scheme of Section 6 of the Anti-Terrorism Act, 1997 had unfortunately not been considered by the High Court of Balochistan, Quetta while rendering the judgment mentioned above and, thus, we have every reason to declare that the said judgement passed by the High Court of Balochistan, Quetta had not laid down the law correctly and had in fact mis-conceived the legal position contemplated by Section 6 of the Anti-Terrorism Act, 1997.
4. The case in hand was a case of a private motive set up in the FIR and during the trial the motive set up in the FIR was changed by the prosecution and an element of honour killing was introduced but even that did not change the character of the offence which was nothing but a private offence committed in the privacy of a home with no design or purpose contemplated by Section 6(1)(b) or (c) of the Anti-Terrorism Act, 1997. We have thus, entertained no manner of doubt that the allegations levelled against the appellant and his co-accused in the present criminal case did not attract the jurisdiction of an Anti-Terrorism Court, the learned Sessions Judge, Mastung was not justified in transferring the case to an Anti-Terrorism Court and the High Court was also not legally correct in dismissing the appellant’s revision petition. This appeal is, therefore, allowed, the impugned orders passed by the learned Sessions Judge, Mastung as well as the High Court of Balochistan, Quetta are set aside and it is declared that the appellant’s case is to be tried by a Court of ordinary jurisdiction.” (BOLD ADDED)
7. Adverting to the contention of learned Deputy Prosecutor General that both the deceased were slaughtered in a brutal manner causing sense of fear, panic and insecurity upon the general public. Such question has been dealt with by the Hon’ble Supreme Court in the case of Waris Ali v. the State 2017 SCMR 1572. In the said case four persons including a minor Sumbal aged 8/9 years were murdered while seven persons including minors were injured and the Hon’ble Supreme Court has held that the crimes for personal motive are committed in a gruesome or detestable manner, by itself would not be sufficient to bring the acts within the meaning of terrorism or terrorist activities. For convenience, the relevant portion is reproduced herein below:
“12. The mere fact that the crimes for personal motive are committed in a gruesome or detestable manner, by itself would not be sufficient to bring the acts within the meaning of terrorism or terrorist activities. The Courts of law should not lose sight of the fact that terrorism and terrorist activities are committed and are carried out by a person, group of persons and well equipped organizations, whose primary aim and object is to destabilize the society and the State as a whole through such activities. The object and “mens rea” behind such activities is clearly spelled out from the nature of the crime committed, which must be attended to by the Courts with a deep judicial thought, as in the latter category the sole object/purpose in committing different crimes is to cause alarm, dread, fright inducing sense of insecurity in the mind of the people.” (Bold added)
8. Admittedly, the dual murders in the case in hand was committed on the allegations of honour killing being private offence coupled with the fact the private object is involved in the matter and even the crime was committed within the boundary wall of a house, which is triable by the Ordinary Court having jurisdiction in the matter, irrespective of the fact that as how brutal manner was adopted in committing the dual murder of deceased.
For the above reasons and without touching the merits of the case, the appeal is allowed and the impugned judgment dated 11th November 2016 passed by learned Special Judge, Anti-Terrorism Court, Mekran at Turbat, is set aside and the case is remanded to the learned Sessions Judge, Mekran to decide the matter afresh in accordance with law.
Consequently, the Murder Reference No. 02/2016 is answered in negative.
(A.A.K.) Appeal allowed
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