PLJ 2022 Cr.C. 1402 (DB)
Anti Terrorism Act, 1997 (XXVII of 1997)--
----Ss. 7 & 23--Pakistan Penal Code, (XLV of 1860), Ss. 365-A/337-A(i)/ 337-L(ii)/147/149--Application u/S. 23 of Anti-Terrorism Act, 1997 for transfer of the case to the ordinary Court was filed by accused persons (now arrayed as private respondents), which was allowed--S. 365-A PPC is a scheduled offence, therefore, same is triable by Anti Terrorism court--Complainant claimed in his complaint that his son was abducted for ransom, taken to office and then after getting thumb impressions of brothers of the complainant on blank stamp paper, he was released--Statement of said abductee, who is a star witness of the occurrence particularly regarding offence
u/S. 365-A PPC is yet to be recorded--If after recording substantive evidence including statement of abductees, court comes to the conclusion that any scheduled offence has not been made out,
then Anti terrorism court can exercise such powers but not at this stage--Impugned order has been passed by the Judge Anti-Terrorism Court/Trial Court at premature stage, which is not warranted by law, hence, same is hereby set-aside--Case shall be sent back to the Anti-Terrorism Court for further proceedings in accordance with law--Revision petition stands accepted/allowed.
[Pp. 1405, 1406, 1408, 1409 & 1410] A, B, C, D, E, F
2021 SCMR 136 ref.
Hafiz Agha Rooh-ul-Amin Zafar, Advocate for Petitioner.
Mr. Humayun Aslam, Deputy Prosecutor General for State.
Mr. Maaz Allah Khan Sherwani, Advocate alongwith Azmat Bashir Tarrar, Advocate for Respondents No. 2 to 4.
Date of hearing: 19.5.2022.
PLJ 2022 Cr.C. 1402 (DB)
[Lahore High Court, Lahore]
Present: Ali Baqar Najafi and Farooq Haider, JJ.
MUHAMMAD RAMZAN--Petitioner
versus
Spl. JUDGE ANTI-TERRORISM COURT-III, LAHORE etc.--Respondents
Crl. Rev. No. 9175 of 2022, heard on 19.5.2022.
Judgment
Farooq Haider, J.--Through instant criminal revision petition, Muhammad Ramzan (petitioner) has assailed the vires of order dated 16.11.2021 passed by learned Judge Anti-Terrorism Court No. III, Lahore/trial Court whereby “complaint case” filed by present petitioner titled as “Muhammad Ramzan versus Sardar Hafeez, etc.” has been sent to the Court of ordinary jurisdiction while invoking powers under Section 23 of the Anti-Terrorism Act, 1997.
2. Brief/necessary facts are that initially on the application filed by Muhammad Ramzan (present petitioner), case arising out of F.I.R. No. 435/20 dated 10.08.2020 was registered under Sections 337-A(i), 337-L(2), 365, 147, 149, PPC at Police Station Khaddian, District: Kasur; being dissatisfied with the conduct of the police, present petitioner filed “complaint” against Sardar Hafeez, Sardar Basharat, Muhammad Sharif and three unknown accused persons (now arrayed as respondents No. 2 to 5 in the instant revision petition), under Sections 337-A, 337-L(2), 365-A, 147, 149, PPC and Section 7 of the Anti-Terrorism Act, 1997 in the Court of learned Administrative Judge, Anti-Terrorism Court, Lahore regarding abduction for ransom of his son, belabouring/torturing him as well as his son and after obtaining thumb impressions of brothers of the petitioner/complainant on a blank stamp paper as ransom, releasing his son; which complaint was entrusted to the learned Judge, Anti-Terrorism Court No. III, Lahore where cursory statements of Muhammad Ramzan (petitioner/ complainant), Abu Huraira (son of the petitioner/abductee), Nasreen (wife of the petitioner), Liaqat Ali and Mohabbat Ali were recorded and attested copies of aforementioned F.I.R. as well as Medicolegal Examination Reports of the petitioner and Abu Huraira (injured persons) were also tendered by the petitioner/complainant in his cursory evidence, then learned trial Court vide order dated 11.12.2020 while observing that prima-facie, offences under Sections 365-A, 337-A, 337-L(2), 147, 149, PPC are made out, summoned the persons complained against as accused to face trial in the case; relevant portion of said order is hereby reproduced:
Brief facts of the case are that it is alleged by the complainant that on 05.08.2020 at about 08.00 am when he was working at brick kiln alongwith his son. In the meantime Respondents No. 1 and 2 alighted there while armed with handle of "Kassi". Respondent No. 1 after abusing the complainant subjected him to severe torture. They also abducted Abu Huraira, son of complainant cursory witness No. 2 and took him into their office where he was subjected to severe torture and he was also analyzed with plastic pipe. As a result of which Abu Huraira sustained injuries. At the same time the persons complained against demanded signatures and thumb impressions upon the blank stamp papers as ransom for the release of Abu Huraira. After obtaining thumb impressions and signatures upon the blank stamp papers which were issued by person complaint against No. 3, both the persons complaint against No. 1 and 2 released the son of complainant.
Investigation of the case was conducted by the local police. Being dissatisfied from their investigation, the complainant has filed the instant private complaint.
During cursory evidence complainant Muhammad Ramzan appeared as cursory witness No. 1 and in support of his version, the alleged abductee Abu Huraira appeared as cursory witness No. 2 and Nasreen Bibi mother of Abu Huraira appeared as cursory witness No. 3 whereas cursory witnesses Nos. 4 and 5 made signatures/ thumb impression upon the blank stamp papers as demanded by the persons complained against in the form of ransom.
Complainant also tendered Mark-A to Mark-C which are Medical Certificates of Ramzan and Abu Huraira and FIR which was initially lodged in local police station.
Arguments heard. Record Perused.
Perusal of record transpires that serious allegations, of subjecting the complainant to torture, subjecting son of complainant to severe torture, analizing Abu Huraira with a plastic pipe, receiving benefits by obtaining thumb impressions and signatures upon blank stamp papers in respect of the property which was in the name of cursory witnesses No. 4 and 5 and lastly after receiving benefits in the form of blank stamp papers duly signed and having thumb impressions release of the son of complainant, are leveled against the persons complained against. In this way the persons complained against have obtained undue advantage upon the landed property of cursory witnesses No. 4 and 5. It is clearly mentioned in Section 365-A, PPC that “whoever kidnaps or abducts any person for the purpose of extorting from the person kidnaped or abducted or from any person interested in the person kidnapped or abducted any property whether moveable or immoveable or valuable security or to compel any person to comply with any other demand in cash or otherwise for obtaining release of the person kidnapped or abductee shall be punished…….” The contents of private complaint are attracting the provisions of offence of abduction for ransom as mentioned in 3rd schedule alongwith other provisions of Pakistan Penal Code. At the same time all the allegations requires evidence. Prima facie offence u/S. 365-A, 337-A, 337-L-2, 147, 149, PPC and offence of abduction for ransom as mentioned in 3rd schedule are made out. Due to the above mentioned reasons it is a fit case for summoning the persons complained against as accused to face trial in this case. Now to come up on 22.12.2020 for appearance of the accused persons.”
Accused persons appeared before learned trial Court and submitted bail bonds; on 24.02.2021, charge was framed against them under Sections 147, PPC read with Section 149, PPC, 365-A, 337-L(2), PPC read with Section 149, PPC, then statement of Muhammad Ramzan (petitioner/ complainant) was recorded as PW-1; application under Section 23 of Anti-Terrorism Act, 1997 for transfer of the case to the ordinary Court was filed by accused persons (now arrayed as private respondents), which was allowed vide impugned order dated 16.11.2021 passed by learned Judge Anti-Terrorism Court No. III, Lahore; relevant portion of said order is reproduced:--
“Alleged abductee namely Abu Huraira is present before the Court, however learned defence counsel has requested for the decision upon the application filed by the accused persons u/S. 23 of Anti-Terrorism Act, 1997. Arguments from both sides are heard:
Perusal of record transpires that there was a dispute between two parties regarding the payments made during services of complainant in the brick kilns of the accused persons. Upon the said dispute a clash took place whereby a "Panchait" was conducted by the respectable of the locality upon the request of family members of the complainant. During the evidence of PW-1, it came on the surface that allegedly complainant along with his son were detained in a room. This aspect of the case even if is considered correct, cannot bring this case under the jurisdiction of this Court as the abduction for the purpose of ransom is something different whereas, intention behind the detention of complainant alongwith his son in a room for the purpose of settlement of dispute, is something different. This aspect of the case clearly reflects that case does not fall within the jurisdiction enunciated by Anti-Terrorism Act, 1997 rather it has to be heard, tried, decided by the learned Court of law established under Criminal Procedure Code. 1898. In view of this, while invoking the powers vested in this Court u/S. 23 of Anti-Terrorism Act, 1997, the application filed by accused persons is accepted and the matter is sent to the learned Court of ordinary jurisdiction. File of this case be placed before the Worthy District & Sessions Judge. Kasur on 01.12.2021 for appropriate orders in respect of its entrustment to the Court of competent jurisdiction. Both the parties are directed to appear before the said worthy Court on the date fixed.”
Hence, this revision petition.
3. Learned counsel for the petitioner submits that serious allegations of torturing complainant as well as his son namely Abu Huraira, abducting said Abu Huraira for ransom and after obtaining thumb impression on blank stamp paper as ransom, releasing him, constitute offences (mentioned above); adds that Section 365-A, PPC is a scheduled offence, therefore, same is triable by learned Anti-Terrorism Court; finally prays for setting aside the impugned order.
4. On the other hand, learned counsel appearing on behalf of respondents No. 2 to 4 while supporting impugned order submits that after recording evidence of Muhammad Ramzan (complainant), learned trial Court rightly came to the conclusion that any offence falling in the schedule of Anti-Terrorism Act, 1997 is not made out, therefore, case was transferred to the ordinary Court.
5. Learned Deputy Prosecutor General also supported the impugned order.
6. After hearing learned counsel for the parties, learned Deputy Prosecutor General and going through the available record, it has been noticed that petitioner in aforementioned complaint filed by him categorically levelled the allegations that on 05.08.2020, he was working at the brick kiln when Sardar Basharat (now arrayed as respondent No. 3 in this revision petition) abused him, belaboured/tortured him and when his son namely Abu Huraira on seeing this, came there, said Sardar Basharat called Sardar Hafeez (now arrayed as respondent No. 2 in this revision petition) and three other unknown accused persons, belaboured/ tortured his son (mentioned above), then took him to the office, tied his arms, detained/confined in a room, tortured him, rotated pipe in his anus, made his immoral videos and on hearing hue and cry of the complainant, Muhammad Naeem, Liaqat Ali and Mohabbat Ali witnesses came at the spot, wife of the complainant also came there and she made call to 15, however, before arrival of the police, accused persons shifted the complainant and his son to some other place, upon which, police went back without recovery of the complainant and his son, accused persons asked the complainant for thumb impressions of his brothers on the blank stamp paper otherwise they would murder his son and after getting signatures would leave his son, accused persons kept abducted son of the complainant from 08:00 a.m. till 06:00 p.m. for the purpose of ransom, Muhammad Sharif, Stamp Vender (now arrayed as respondent No. 4 in this revision petition) forcibly obtained thumb impressions on blank stamp paper from brothers of the complainant and thereafter accused persons released son of the complainant; said complaint was not returned by learned Anti-Terrorism Court under Section 201, Cr.P.C. for presenting the same before Court of ordinary jurisdiction rather learned Anti-Terrorism Court while taking cognizance, recorded statement of complainant on oath under Section 200, Cr.P.C. and then conducting inquiry under Section 202, Cr.P.C., recorded statements of Abu Huraira (abductee/ victim) and other witnesses namely Nasreen Bibi, Liaqat Ali and Mohabbat Ali (mentioned above) on oath, who also supported aforementioned allegations in their statements. Learned trial Court while examining the complaint, statements of complainant and other witnesses, Medicolegal Examination Certificates of the complainant as well as his son namely Abu Huraira, found sufficient material for offence of “abduction for ransom” as well as injuries and summoned the accused persons under Section 204, Cr.P.C. to face the trial and then after examining the material under Section 265-D, Cr.P.C., framed the charge against them under Section 365-A, PPC also. It goes without saying that neither said summoning order nor charge framed by the trial Court was challenged by accused persons/private respondents. Learned trial Court, after framing the charge, recorded examination-in-chief of the complainant as PW-1; relevant portions of his statement are reproduced:
“Then accused persons took me and my son in the office of accused Sardar Basharat. They after tying the legs and hands of me and my son physically tortured us. I and my son were made hostage in a room. All the accused Sardar Basharat gave severe torture to my son where the accused Sardar Basharat entered a pipe in the back of my son(private part) turn by turn and screwed it in my presence. At that accused Sardar Hafeez made a video of my son in naked condition.”
“Before the arrival of police, the accused persons had shifted me and my son to some other place.”
“The accused persons threatened us and demanded from us to get signed the blank stamp papers from my brothers namely Mohabbat, Liaqat, Shaukat, Naeem as ransom against the release of my son otherwise my son would be killed. The accused persons got signed on blank stamp papers in this regard forcibly. On the asking of accused Sardar Basharat stamp vendor namely Fauji Muhammad Shareef came there and issued stamp papers at the names of my brothers. After taking thumb impression of my brothers, accused persons released my son Abu Huraira. ”
Accused persons themselves got exhibited Stamp Paper/Affidavit as Ex.DA (copy whereof is appended at Page No. 29 to 30 of instant revision petition) during cross-examination over said PW-1/petitioner. It is important to mention here that in the complaint filed by the petitioner/complainant, date of occurrence including obtaining thumb impression on stamp paper is mentioned as “05.08.2020” and same is the date of scribing aforementioned Affidavit/Stamp Paper (Ex.DA). Complainant claimed in his complaint that his son Abu Huraira was abducted for ransom, taken to office and then after getting thumb impressions of brothers of the complainant on blank stamp paper, he was released. The distance between place of abduction and confinement has been got clarified by defence during cross-examination from PW-1 and relevant portion of the same is reproduced: -
“The office of the brick kiln of Sardar Basharat is about 04 kilometers where I was making bricks in the field.”
It goes without saying that if anyone has been taken from one place to another, detained/confined there in order to extort any moveable or immoveable property or valuable security or to comply with any other demand whether in cash or otherwise for obtaining release of said person, then it falls within the definition of Section 365-A, PPC, which is a scheduled offence; for ready reference, same is hereby reproduced: -
“[365-A Kidnapping or abduction for extorting property, valuable security, etc. Whoever kidnaps or abducts any person for the purpose of extorting from the person kidnapped or abducted, or from any person interested in the person kidnapped or abducted, any property, whether movable or immovable, or valuable security, or to compel any person to comply with any other demand, whether in cash or otherwise, for obtaining release of the person kidnapped or abducted, shall be punished with death or imprisonment for life and shall also be liable to forfeiture of property.]”
As per Black’s Law Dictionary, ransom is defined as under:
“1. Money or other consideration demanded or paid for the release of a captured person or property. 2. The release of a captured person or property in exchange for payment of a demanded price.”
(emphasis added)
It is worth mentioning here that statement of said abductee i.e. Abu Huraira, who is a star witness of the occurrence particularly regarding offence under Section 365-A, PPC is yet to be recorded and he was present before the Court for recording his statement but without recording his statement, it was concluded through impugned order that offence regarding abduction for ransom is not made out and the case was sent to the ordinary Court. We are intentionally not commenting further on this aspect as well merits of the case lest it may cause prejudice to the case of either party at subsequent stage of the trial and in this regard, we are guided by the view expressed by august Supreme Court of Pakistan in the case of “Jahangir Khan versus Khalid Latif” (2021 SCMR 136).
Of course, after taking cognizance of the case, if learned Anti-Terrorism Court is of the opinion that offence is not a scheduled offence, then under Section: 23 of the Anti-Terrorism Act, 1997, it can transfer the case to any other Court having jurisdiction to try the same. However, since in this case, learned Anti-Terrorism Court after receiving the complaint, did not return the same for presentation to the Court of ordinary jurisdiction rather took cognizance and recorded statement of the complainant on oath, then while conducting inquiry, recorded statements of Abu Huraira (abductee/injured) and other witnesses, thereafter, taking into consideration complaint, statements of complainant, witnesses, Medicolegal Examination Certificates and other material, came to the conclusion that prima-facie offence under Sections: 365-A, 337-A, 337-L(2), 147, 149, PPC are made out and summoned the accused persons vide order dated: 11.12.2020, which order remained unchallenged; then under Section 265-D, Cr.P.C., on the basis of entire material, framed the charge against accused persons including under Section: 365-A, PPC, which also remained unchallenged, therefore, just after recording of evidence of the complainant and without recording statement of Abu Huraira (a star witness/abductee/injured/victim) invoking power under Section: 23 of Anti-Terrorism Act, 1997 and sending the case to Court of ordinary jurisdiction is premature exercise done by the learned Anti-Terrorism Court/trial Court, which is neither permissible nor can be appreciated at any cost. Needless to add that if after recording substantive evidence including statement of Abu Huraira (abductee), Court comes to the conclusion that any scheduled offence has not been made out, then of course, Anti-Terrorism Court can exercise such power but not at this stage and the manner it has been done in this case. So far as contention of learned counsel for private respondents as well as learned Deputy Prosecutor General that prosecution branch also observed that scheduled offence is not made out, is concerned, we hereby observe that same cannot be preferred over summoning order as well as framing of charge by the learned trial Court under scheduled offence (as mentioned above), which both are patently judicial orders.
Nutshell of the above discussion is that in peculiar facts and circumstances of the case, impugned order dated: 16.11.2021 has been passed by the learned Judge Anti-Terrorism Court No. III, Lahore/trial Court at premature stage, which is not warranted by law, hence, same is hereby set-aside. Resultantly, case shall be sent back to the learned Anti-Terrorism Court No. III, Lahore for further proceedings in accordance with law. Needless to add that observations mentioned above are only meant for the purpose of disposal of instant revision petition. Revision petition stands accepted/allowed.
(K.Q.B.) Revision accepted
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