PLJ 2023 Cr.C. (Note) 124
[Lahore High Court, Multan Bench]
Present: Shakil Ahmed and Muhammad Amjad Rafiq, JJ
Mst. GAMI MAI--Petitioner
versus
STATE--Respondent
Crl. Rev. No. 437 of 2022, decided on 6.12.2022.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 435--Anti Terrorist activities, 1997, Ss. 7, & 23--Section 12 read with III Schedule of the Anti-Terrorism Act, 1997--Criminal Revision--Firing made in court premises--Jurisdiction of the court--Distinction between cases of terrorism and cases of specified heinous offences--Element of creating fear or terror, etc. may be missing in the instant case, but otherwise, as is the clear stance of the prosecution, obviously firing made in court premises is a scheduled offence as per section 12 read with III Schedule of the Anti-Terrorism Act, 1997, which is to be tried by Anti-Terrorism Court alone without charging the accused under section 7 of ATA, 1997--Element of causing fear or terror, etc. may not be there, still it being a scheduled offence is to be tried by the Anti-Terrorism Court--Instant criminal revision is allowed, the impugned order is set-aside with a direction that challan of the case shall be deemed to be pending before the Court established under Anti-Terrorism Act, 1997, where the trial/further proceedings shall continue, accordingly--Revision allowed. [Para 5] A & B
PLD 2020 SC 61; PLJ 2017 SC 408; PLD 2017 SC 661;
2019 SCMR 1362 ref.
Kh. Qaisar Butt, Advocate for Petitioner.
Mr. Muhammad Ali Shahab, DPG for State.
Rana Muhammad Nadeem Kanju, Advocate for private Respondents.
Date of hearing: 6.12.2022.
Order
This criminal revision has been filed to challenge the order dated 21.09.2022, whereby, the learned Special Judge, Anti-Terrorism Court No. 2, Multan while allowing application of accused/respondent filed under Section 23 of ATA returned the challan of case FIR No. 106 dated 24.02.2022 under Sections 302/109/34, PPC read with Section 7 of ATA at police station City Kabirwala, to prosecution for it presentation before the Court of ordinary jurisdiction for the purpose of trial.
2. The contention of learned counsel for the petitioner is that the case in hand is not triable by Court of Sessions on the touchstone of judgment reported as “Ghulam Hussain and others v. The State and others” (PLD 2020 SC 61) and the learned trial Court while passing the impugned order in Para-4 has misread the said judgment of the apex Court.
3. The learned counsel for the respondents opposed this petition and defended the impugned order but the learned Deputy Prosecutor General in attendance has conceded the legal position as explained by the learned counsel for the petitioner.
4. Heard. Record perused.
5. The relevant Paragraph No. 4 of the impugned order of learned trial Court is reproduced for ready reference:
“Perusal of record reveals that the incident took place due to the enmity between the parties and the purpose of the accused party was not to create fear or terror or insecurity in Court premises rather to take personal revenue or vendetta from the deceased party. Therefore, after placing reliance on the esteemed judgment PLD 2020 SC 61, I am of the considered view that creating nexus between Section 6 & 7 of Anti-Terrorism Act, 1997 is still begging question from the prosecution. From the perusal of FIR, it is crystal clear the ease did not fall within the purview of ATA 1997, as according to the narration of the prosecutions tery, there was no design, object or intent to cause terror and thus the provisions of Anti-Terrorism Act, 1997 have been misapplied by the IO in this case. The bare perusal of FIR does not invite the wrath of ingredient of Section 6 & of Anti-Terrorism Act, 1997. By any stretch of imagination element of terrorism is missing in this case. Moreover, the story of FIR itself speaks volume about the trial of instant in this Court.”
It may be correct that element of creating fear or terror, etc. may be missing in the instant case, but otherwise, as is the clear stance of the prosecution, obviously firing made in Court premises is a scheduled offence as per Section 12 read with III Schedule of the Anti-Terrorism Act, 1997, which is to be tried by Anti-Terrorism Court alone without charging the accused under Section 7 of ATA, 1997 and this has been explained in supra judgment in following terms:
“A careful reading of the Third Schedule shows that an Anti- Terrorism Court has been conferred jurisdiction not only to try all those offences which attract the definition of terrorism provided by the Act but also some other specified cases involving heinous offences which do not fall in the said definition of terrorism. For such latter category of cases it was provided that although those offences may not constitute terrorism yet such offences may be tried by an Anti-Terrorism Court for speedy trial of such heinous offences. This distinction between cases of terrorism and cases of specified heinous offences not amounting to terrorism but triable by an Anti-Terrorism Court has already been recognized by this Court in the cases of Farooq Ahmed v State and another (PLJ 2017 SC 408), Amjad Ali and others v The State (PLD 2017 SC 661) and Muhammad Bilal v The State and others (2019 SCMR 1362). It has been clarified by this Court in those cases that such specified heinous offences are only to be tried by an Anti-Terrorism Court and that Court can punish the person committing such specified heinous offences only for commission of those offences and not for committing terrorism because such offences do not constitute terrorism. 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. It may be pertinent to mention here that the offence of abduction or kidnapping for ransom under Section 365-A, PPC is included in entry No. 4 of the Third Schedule and kidnapping for ransom is also one of the actions specified in Section 7(e) of the Anti-Terrorism Act, 1997. Abduction or kidnapping for ransom is a heinous offence but the scheme of the Anti-Terrorism Act, 1997 shows that an ordinary case of abduction or kidnapping for ransom under Section 365-A, PPC is merely triable by an Anti-Terrorism Court but if kidnapping for ransom is committed with the design or purpose mentioned in clauses (b) or (c) of subsection (1) of Section 6 of the Anti-Terrorism Act, 1997 then such offence amounts to terrorism attracting Section 7(e) of that Act. In the former case the convicted person is to be convicted and sentenced only for the offence under Section
365-A, PPC whereas in the latter case the convicted person is to be convicted both for the offence under Section 365-A, PPC as well as for the offence under Section 7(e) of the Anti-Terrorism Act, 1997. The same may also be said about the other offences mentioned in entry No. 4 of the Third Schedule to the Act pertaining to “Use of fire-arms or explosives by any device, including bomb blast in a mosque, imambargah, church, temple or any other place of worship, whether or not any hurt or damage is caused thereby”, “Firing or use of explosive by any device, including bomb blast in the Court premises”, “Hurt . caused by corrosive substance or attempt to cause hurt by means of a corrosive substance” and “Unlawful possession of an explosive substance or abetment for such an offence under the Explosive Substances Act, 1908 (VI of 1908)”. 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. Through an Mmendment of the Third Schedule any heinous offence not constituting terrorism may be added to the list of offences which may be tried by an Anti-Terrorism Court and it was in this context that the Preamble to the Act had mentioned “Whereas it is expedient to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences”.
In this view of the matter, irrespective of the fact that element of causing fear or terror, etc. may not be there, still it being a scheduled offence is to be tried by the Anti-Terrorism Court. Consequently, the instant criminal revision is allowed, the impugned order is set-aside with a direction that challan of the case shall be deemed to be pending before the Court established under Anti-Terrorism Act, 1997, where the trial/further proceedings shall continue, accordingly.
(M.A.B.) Revision allowed
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