' JAVED IQBAL, J.--- The above captioned appeal and petitions for leave to appeal involving similar question of facts and law are being disposed of by this common judgment.
CIVIL APPEAL NO.1212 OF 2004
2. Leave to appeal was granted by means of order dated 2-9-2004 which is reproduced herein below for ready reference:-- "This petition for leave to appeal is directed against the judgment dated 31-5-2004 passed by Lahore High Court, Lahore whereby writ petition filed by the respondent has been accepted.
(2) It is informed during arguments that learned High Court has transferred the cases from the file of Special Judge, Anti-Terrorism Court, Faisalabad on the file of Sessions Judge, Faisalabad in view of judgment of Lahore High Court in the case of Basharat Ali v. Special Judge, Anti-Terrorism Court- II, Gujranwala (PLD 2004 Lahore 199) and against this judgment leave to appeal has already been granted wherein the question A pertaining to the jurisdiction of Special Judge under the Anti- Terrorism Act, 1997 in terms of section 6(1)(b) or (c) is involved and in order to avoid conflicting judgments leave to appeal is granted in this case as well.
(3) As the learned Special Judge during trial has examined 19 witnesses and only I.0 was to be examined when the case was transferred on the file of Sessions Judge, Faisalabad, therefore, we deem it appropriate to fix appeal arising out of this petition in the 1st week of October 2004 along with appeal arising from the above referred judgment in the interest of justice subject to soliciting necessary approval from Hon'ble Chief Justice. Pending decision of the appeal learned Sessions Judge, Faisalabad is directed not to pronounce the judgment."
3. Mr. Munir Ahmad Bhatti, learned Advocate Supreme Court entered appearance on behalf of appellant and urged vehemently that legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. It is also contended that in an open Bazar at about 9.15 a.m. In the thickly populated area on a thoroughfare, nine persons armed with fire-arm weapons, made indiscriminate firing, committed murder of four persons and also committed dacoity in the tune of rupees two crores. It is urged with vehemence that the merciless and brutal manner in which the alleged offence was committed amounts to terrorism and thus squarely falls within the definition of section 6 of the Anit-Terrorism Act, 1997 (herein after referred to as the "Act"). It is next contended that learned Judge, Anti-Terrorism Court, Faisalabad, has by now recorded the statements of about 20 witnesses and the question as to whether the alleged offence falls within the ambit of section 6 of the Act or otherwise, falls within the jurisdictional domain of learned Judge, Anti-Terrorism Court and cannot be determined by invocation of Constitutional jurisdiction which aspect of the matter has been ignored by the learned High Court. It is also contended that the judgment impugned is not in consonance with the dictum as laid down by this Court on various occasions in different cases which was binding upon the learned High Court. Mr. M.A. Zafar, learned Advocate Supreme Court, Mr. M. Hanif Khatana, learned Additional Advocate-General Punjab, and Ms. Afshan Ghazanfar, Assistant Advocate-General Punjab, appeared and adopted the arguments of Mr. Munir Ahmed Bhatti, learned Advocate Supreme Court on behalf of appellant. In order to substantiate the above contentions reliance has been placed on the following authorities:-- ' Muhammad Farooq v. Ibrar (PLD 2004 SC 917), Zia Ullah v. Special Judge (2002 SCMR 1017), ' Muhammad Amin v The State (2002 SCMR 1225), ' Moazzam Khan v. State (PLD 2004 Peshawar 175).
4. Raja Muhammad Arif, learned Advocate Supreme Court appeared on behalf of respondents and vehemently controverted the view point as canvassed at bar on behalf of appellant and supported the judgment impugned for the reasons enumerated therein with the further submission that the alleged offence was not preplanned one to create terror which is sine qua non for invocation of the provisions as contained in section 6 of the Act. The learned counsel has laid much emphasis on the words "designed to" as used in section 6(1)(b) of the Act which according to learned counsel means deliberate and intentional act to create terror and according to learned Advocate Supreme Court no evidence worth the name has come on record inferring that the alleged offence was committed knowingly and with deliberate intention to create a sense of fear or insecurity in the society. The innocence of respondent has also been pleaded by arguing that no role whatsoever was played by the respondent.
5. We have carefully examined the contentions of the learned counsel on behalf of the parties in the light of relevant provisions of law, scanned the entire evidence and perused the judgment impugned with care and caution. The pivotal question which needs determination would be as to whether the alleged offence falls within the scope and ambit of section 6 of the Act or otherwise?
The relevant provisions of section 6 of the Act are reproduced herein below for ready reference:-- "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.
(2) An "action" shall fall within the meaning of sub-section (1), if it:
(a) involves the doing of 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;
(f) incites hatred and contempt on religious, sectarian or ethnic basis to stir up violence or cause internal disturbance;
(g) involves stoning, brick-bating or any other form of mischief to spread panic;
(h) Involves firing on religious congregations, mosques, Imambargahs, churches, temples and all other places of worship, or 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 the 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 civil life;
(j) involves the burning of vehicles or any other serious form of arson;
(k) involves extortion of money ("Bhatta") or property;
(1) is designed to seriously interfere with or seriously disrupt a communications system or public utility service;
(m) involves serious coercion or intimidation of a public servant in order to force him to discharge or to refrain from discharging his lawful duties; or
(n) involves serious violence against a member of the police force, armed forces, civil armed forces, or a public servant.
(3) The use or threat of use of any action falling within sub-section (2), which involves the use of firearms, explosives or any other weapon, is terrorism, whether or not subsection 1(c) is satisfied.
(4) In this section "action" includes an act or a series of acts.
(5) In this Act, terrorism includes any act done for the benefit of a proscribed organization.
(6) A person who commits an offence under this section or any other provision of this Act, shall be guilty of an act of terrorism.
(7) In this Act, a "terrorist" means:
(a) a person who has committed an offence of terrorism under this Act, and is or has been concerned in the commission, preparation or instigation of acts of terrorism;
(b) a person who is or has been, whether before or after the coming into force of this Act, concerned in the commission, preparation or instigation of acts of terrorism, shall also be included in the meaning given in clause (a) above."
6. The language as employed in the section is unambiguous, plain and simple which hardly requires any scholarly interpretation and is capable enough to meet all kinds of terrorism. It is an exhaustive section and does not revolve around the word "designed to" as used in section 6(1)(b) of the Act or mens rea but the key word, in our opinion is "action" on the basis whereof it can be adjudged as to whether the alleged offence falls within the scope of section 6 of the Act or otherwise? The significance and the import of word "action" cannot be minimized and requires interpretation in a broader prospective which aspect of the matter has been ignored by the learned High Court and the scholarly interpretation as made in the judgment impugned has no nexus with the provisions as contained in section 6 of the Act, the ground realities, objects and reasons, the dictums laid down by this Court and is also not inconsonance with the well- entrenched principles of interpretation of criminal statutes which are as follows:-- "(1) All penal statutes are to be construed strictly, that is to say, the Court must see that the thing charged as an offence is within the plain meaning of the words used, and must not strain the words on any notion that there has been a slip, that there has been a casus omisus, that the thing is so clearly within the mischief that it must have been intended to be included and would have been included if thought of. On the other hand, the person charged has a right to say that the thing charged, although within the words, is not within the spirit of the enactment. But where the thing is brought within the words and within the spirit, there a penal enactment is to be construed, like any other instrument, according to the fair common-sense meaning of the language used, and the Court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instruments. 1. (Emphasis provided)
(2) Criminal enactments are not to be extended by construction. When an offence against the law is, alleged, and when the Court has to consider whether that alleged offence falls within the language of a criminal statute, the Court must be satisfied, not only that the spirit of the legislative enactment has been violated, but also that the language used by the legislature includes the offence in question, and makes it criminal.
2.
(3) Nothing is to be regarded as within the meaning of the statute which is not within the letter--- which is not clearly and intelligibly described in the very words of the statute itself.
3.
(4) Also in the interpretation of Acts the elementary rule is to give full and accurate effect to every word used in them. The Courts in the exposition of penal statutes, are not to narrow the construction. They are to look to the words in the first instance, and where the words are plain, they are to decide on them. If the words be doubtful, they are then to have recourse to the subject- matter; but at all events it is only a secondary rule. It is not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction. (Emphasis provided).
' Once Lord Halsbury said "It seems to me that, construing the statute by adding to it words which are neither found therein nor for which authority could be found in the language of the statute itself, is to in against one of the most familiar rules of construction, and I am wholly unable to adopt the view that, where a statute is expressly said to codify the law, you are at liberty to go outside the code so created, because before the existence of that code another law prevailed." In the construction of a statute the duty of the Court is limited to interpret the words used by the legislature and it has no power to fill in any gaps disclosed. To do so would be to usurp the function of the legislature." 5.
(5) The object of the legislature must be ascertained from within the four corners of the Act. It is not open to the Court to speculate as to what the legislature probably meant, and then do violence to the language of the enactment in order to give effect to the presumed intention. Where the words of a section in a statute are plain, the Court must give effect to them, and the Court is not justified in depriving the words of their only proper meaning in order to give effect to some intention which the Court imputes to the legislature from other provisions of the Act. Such a course can only be justified where a literal construction of the section is inconsistent with the meaning of the statute as a whole.6. (Emphasis provided)
(6) It is the duty of a Court to attempt to find the intention of the legislature, and to give effect to that intention. The more literal construction ought not to prevail, if it is opposed to the intention of the legislature, as apparent from the statute, and if the words are sufficiently flexible to admit of some other construction by which that intention would be better effectuated. But if such a method of interpretation leads to manifest anomalies and is calculated to defeat the professed and declared intention of the legislature, it is open to the Court to give the go-by to the rule mentioned above and to so interpret the words used as to give effect to the intention of the legislature. 7 (Emphasis provided)
(7) A statute should be interpreted according to the plain meaning of the words and should not be given a wider meaning than what the words used would actually denote. Although it may, perhaps, be legitimate to call history in aid to shew what facts existed to bring about a statute, the inferences to be drawn there from are extremely slight. In construing an Act the Court must always have regard to the scheme of the Act as appearing from a perusal of the language of the whole enactment.
8. (Emphasis provided).
(8) Where the language of a statute is plain and unambiguous effect must be given to it apart from the notions of justice and expediency and it is not within the province of a Court to scan the wisdom or the policy of the legislature. It is not the duty of the Court to make law but to expound it as it stands according to the real sense of the words.
9. (Emphasis provided)
(9) The paramount duty of the judicial interpreter is to put upon the language of the Legislature, honestly and faithfully, its plain and rational meaning and to promote its object it is for the Legislature, not the Court, to define a crime and ordain its punishment. It is unquestionably a reasonable expectation that, when the legislature intends the infliction of suffering, or an encroachment on natural liberty or rights, or the grant of exceptional exemptions, powers, and privileges, it will not leave its intention to be gathered by mere doubtful inference, or convey it in "cloudy and dark words" only. A Court is not at liberty to put a limitation on general words which is not called for by the sense, or the objects, or the mischief of the enactment, and no construction is admissible which would sanction a fraudulent evasion of an Act. But the rule of strict construction requires that the language shall be so construed that no cases shall be held to fall within it which do not fall both within the reasonable meaning of its terms and within the spirit and scope of the enactment. Where an enactment may entail penal consequences, no violence must be done to its language to bring people within it, but rather care must be taken that no one is brought within it who is not within its express language. To determine that a case is within the intention of a statute, its language must authorize the Court to say so, but it is not admissible to carry the principle that a case which is within the mischief of a statute is within its provisions so far as to punish a crime not specified in the statute, because it is of equal atrocity or of a kindred character with those which are enumerated. If the Legislature has not used words sufficiently comprehensive to include within its prohibition all the cases which fall within the mischief intended to be prevented, it is not competent to a Court to extend them. It is immaterial, for this purpose, whether the proceeding prescribed for the enforcement of the penal law be criminal or civil. 10
(10) The rule of strict construction, however, whenever, invoked, comes attended with qualifications and other rules no less important, and it is by the light which each contributes that the meaning must be determined. Among them is the rule that that sense of the words is to be adopted which best harmonises with the context and promotes in the fullest manner the policy and object of the Legislature. The paramount object, in construing penal as well as other statutes, is to ascertain the legislature's intent, and the rule of strict construction is not violated by permitting the words to have their full meaning, or the more extensive of two meanings, when best effectuating the intention.
They are, indeed, frequently taken in the widest sense, sometimes even in a sense more wide than etymologically belongs or is popularly attached to them, in order to carry out effectually the legislative intent, or, to use Lord Coke's words, to suppress the mischief and advance the remedy (Emphasis provided)
(11) In construing an Act of Parliament the Court always has to ascertain the intention of the legislature from the language of the whole enactment, and it sometimes becomes necessary to do a certain amount of violence to the language in which a particular passage is couched in order to give effect to the intention to be gathered from the enactment as a whole. Where the words used themselves declare the intention of the Legislature, it is inadmissible to consider the advantages or disadvantages of applying the plain meaning whether in the interest of the prosecution or the accused. Where the meaning of words used in a statute is plain, it is not the duty of the Courts to busy themselves with supposed intentions of the Legislature in framing the statute. When the grammatical meaning of a section is clear and unique that alone must be applied unless that meaning leads to an impossible, that is, an unworkable construction, in which case the Court should consider what variation will do the least violence to the grammatical meaning and still make the provision work. The grammatical meaning cannot be departed from simply because it leads to a very unjust conclusion. Different provisions of a statute should be given an interpretation which would make them consistent, rather than one which makes one provision inconsistent with the other.
11. (Emphasis provided).
12. If the language used by the Legislature in an enactment is clear whatever its legislative background may be, the intention of the Legislature can only be gathered from the words used in the enactment." 12.
(1). (1872) L.R. 4 PC 184; 191 (1823) I B & C. 297, 299; (1933) 60 Cal. 742; (1945) Nag.382.
(2) (1870) LR 5 CP 503, 513, 514.
(3) (1881) 8 Cal. 214; (1918) 4 PLJ 74; 20 Cr.L.J. 161; (1919) AIR (P) 27, FB.
(4) (1896) 18 All. 364, 365; (1786) I TR 96.101; (1902) 29 I.A. 196,29; Cal 707, 715; 4 Born. LR. 793, 796.
(5) (1891) AC 107, 144; (1806) 23 I.A 18,23 Ca1.563. (1952) AC 189; (1912) 40 Cal.
433.
(6) (1936) 38 Born. LR 1164; 1178, [1937] Bonn. 183, FB; (1938) 40 Born. LR 1275.
(7) (1936) 39 Born. LR 548; [1937] Born. 655, FB; [1938] All. 702, FB.
(8) (1931) 27 NLR 70; 32 Cr.LJ 1266; [1931] AIR (N) 177; [1906] 2 KB 676, 716; (1937) 39 Bom. LR. 1065, 1068; [1938] Born.58, FB.
(9) [1947] Nag.
970.
(10) On the interpretation of Statutes--- 10th Edn, Ch.X. Pp.262, 265, 271, 273, 275, 284. See Craies on Statute Law----4th Edn., p. 449, at seq. See also Blackstone's Commentaries on the Laws of England---4th Edn., Vol. I,p.62.
(11) (1935) 37 Born LR 739, 744; 60 Born. 55, FB; (1939) 66 I.A. 65, 41 Born; LR. 428, 18 Pat. 234; [1941] Nag.
581; [1953] All 197.
(12) (1952) 55 Born. LR 74.
(13) Interpretation of Statutes by Mr. M. Farani, Interpretation of Statutes, 7th Edn. 1984 by Dr. Tahir Mahmood, interpretation of Statutes 3rd Edn. By Vepa P. Sarathi Understanding Statutes by Mr. S.M.
Zafar, Principles of Statutory Interpretation, 5th Ed. 1992 By Justice G.P. Singh, Maxwell on the Interpretation o'f Statutes, 12th Ed. By P.St. J. Langan, Principles of Statutory Interpretation, 3rd Ed. By G.P. Singh, Statutory Construction by Earl T. Crawford, the Interpretation of Statutes by M. Mahmood.
7. No provision of law can be interpreted on the basis of "pick and choose" of a few words and in case of any confusion the relevant provisions of law should be read in toto along with the preamble of the statute coupled with the objects and reasons thereof to remove the confusion if any which altogether was not available and in absence whereof the question of any academic exercise or scholarly interpretation by considering the various events happened on global level having no concern with the Act does not arise.
8. Initially the Act is meant for the internal security of our own country having no concern with the terrorism prevailing at global level which aspect of the matter falls within the domain of International Law and efforts are being made for consensus to evolve some common and joint strategy to eliminate terrorism at global/International level. We may point out here that even at global level the position concerning the concept of 'Terrorism' is not clear. Mr. Ghayoor Ahmed, a former Ambassador in his article "What is terrorism and what is not" has made the position abundant clear by observing as follows:-- "In his keynote address to the closing plenary of the International Summit on Democracy, Terrorism and Security in Madrid on March 10, the UN Secretary General, Kofi Annan, called upon the Member States to adopt a common approach to fighting terrorism.
' He said that terrorism is a threat to all States and to all peoples which can strike anytime and anywhere. It is a direct attack on the core values the United Nations stands for and, therefore, it must be at the fore-front in our fight against forces of terror and instability.
' The Secretary-General also said that the inability of the Member States to evolve a definition of terrorism had for too long undermined the normative and moral stance of the United Nations and stained its image, and stressed the need for evolving a clear definition of terrorism. He strongly urged world leaders to accept the definition of terrorism proposed by the high-level panel he had set up last year to study global threats and suggested changes in the international system to meet these.
' The panel calls for a definition which would make it clear that "any action constitutes terrorism if it is intended to cause death or serious bodily harm to civilians with the purpose of intimidating a population or compelling a Government or an international organization to do or abstain from doing any act".
' It may, however, be pointed out that an almost identical description of terrorism is contained in the International Convention for the Suppression of fighting Terrorism as well as in the Security Council Resolution 1566 (2004) and, as such, the definition proposed by the panel is not likely to break the impasse on this issue that has lasted for decades.
' There has always been broad consensus among nations that violence should not be directed against innocent people for the advancement of an individual or collective agenda as it seeks to create an environment of fear which is not permissible in a civilized society. Yet, there has been no agreement among them on a definition of international terrorism and the matter therefore remained unresolved.
' It seems that the attempts made from time to time to define terrorism did not yield tangible results as they focused their attention on describing the act itself and defined terrorism as an abstract concept that all acts of violence, regardless of their motives, constitute terrorism.
' By the same token, the violence perpetrated by some States in the name of fighting terrorism should also be regarded as terrorism. By way of illustration, it may be mentioned that the premeditate US attacks on Afghanistan and Iraq, ostensibly to suppress terrorism in these countries which caused deaths of thousands of innocent civilians as a result of indiscriminate bombings by its forces also fall within the description of terrorism.
' UN Secretary-General's advice to the Madrid Summit that 'we do not need to argue whether States can be guilty of terror, because deliberate use of armed force by States against civilians is already clearly prohibited under international law' is inconsistent with the spirit of the UN resolutions and conventions which outlaw terrorism in all its forms and manifestations. In any case, it is not a question of legal interpretation of the term of terrorism. States as well as individuals or groups may be guilty of terrorism if they use naked force and violence against innocent people to attain their political or other objectives."
9. It may not be out of place to mention here that section 3 of TADA is not at par with section 6 of the Act as there is a significant difference between the two as both the said enactments were enacted in different backgrounds and even the objects and reasons of the said enactment have no similarity.
10. It must not be lost sight of that the provisions of section 6(1)(a) and (b) of the Act are not independent and the word "action" as used cannot be restricted within a limited sphere which has been further clarified in section 6(2) of the Act to remove all the doubts and ambiguities, if any.
Clause (i) of section 6(2) of the Act is very significant which cannot be kept aside being an integral part of section 6 of the Act which shall be read in toto to see what in fact the terrorism is?
11. After having gone through the provisions as contained in section 6 of the Act we are of the firm opinion that "terrorism" means the use or threat of "action" where the "action" falls within the meaning of subsection (2) of section 6 of the Act and creates a serious risk to safety of the public or a section of the public, or is desgined to frighten the general public and thereby prevent them from coming out and carrying on their lawful trade and daily business, and disrupts civil life shall amount to terrorism as enumerated in section 6 of the Act. As pointed out earlier we cannot pick and choose one or two sentences or a few words for academic purpose and scholarly interpretation by ignoring the objects and reasons for the promulgation of Act and its preamble which reads as follows:-- "An Act to provide for the prevention of terrorism, sectarian violence and for speedy trail of heinous offences.
' No,F.9(39)/97-Legis.---The following Act of Majlis-e-Shoora (Parliament) received the assent of the President on 16th August, 1997 is hereby published for general information:--- ' Whereas it is expedient to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences and for matters connected therewith and incidental thereto."
12. The significance and importance of the preamble has been examined on various occasions and the judicial consensus seems to be that "a preamble is a legitimate aid in discovering the purpose of a statute. The preamble of a statute has been said to be a good means of finding out its meaning and intent and, as it were, a key to the understanding of it. The study of preamble to a piece of legislation provides a clue to arrive at the intention of the law-maker. From apart the preamble as a key to find out the intention of the legislature the history of the legislation can also be looked into. The Court may properly be referred what is generally known as contemporaneous circumstances. Such circumstances include the history of the time existing when the law was enacted, the previous state of law, the evil intended to be corrected, the general policy of State or the established policy of the Legislature can also be considered. It can be referred to in certain cases to ascertain the intention of the Legislature. It affords, in a case where the language of the enactment is not clear, "a key to the construction of the Statute" and can, therefore, be referred to for the purpose of finding out the object and the intention of the enactment. If, however, there is an inconsistency or conflict in the plain meaning of the Act and the Preamble, latter has to give in and the statute is to be construed according to its plain meaning. A preamble sheds useful light as to what a statute is intended to achieve or remedy, it is true that the preamble cannot control, restrict, extend or otherwise add to or detract from a substantive provision of the statute, where it is expressed in clear unambiguous language. But there is weighty judicial authority in which preamble has been referred to, with advantage as an aid to the construction of the main provision of statutes. Preamble has long been accepted, at any rate, since the middle of the 19th Century, "as a legitimate aid to construction". There is a long array of authorities bearing on the point. In all these cases the broad principle was accepted that preamble is the key to a statute and affords a clue to its scope, particularly where the words construed by themselves are fairly capable of more than one construction. An interpretation, which is more in consonance with the avowed policy underlying the Act as decipherable from its title and preamble, is to be preferred to an interpretation, which is at tangent with its object. The preamble, however, cannot either restrict or extend the enacting parts when the language is not open to doubt. Rights whether public or private are not to be taken away or even hampered by mere implications from the language in the absence of express words used in the statute. It does not affect unambiguous provision of statute.
It may be, that sometimes, it is permissible to have recourse to the preamble, however, it has not the same weight as the enacting provision themselves, it is only in exceptional cases where the enacting provisions are equivocal that the Courts sometimes refer to the preamble as an aid to finding out the true legislative intendment which the draftsman has failed to demonstrate. Though the preamble may be considered to be a key to the Act itself, it cannot normally be applied to explain the Act except where the provisions contained in its body are otherwise vague. Where the language of the section is clear; the preamble cannot control its provisions. It will not qualify enactment which in itself is clear and unambiguous. The preamble cannot either restrict or extend the enacting part, when the language and the object and scope of the Act are not open to doubt.
In short the general rule is that the express provision of an enactment, if it is clear and unambiguous, cannot be curtailed or extended with the aid of the preamble, but when the object or meaning of certain provision is not clear then it is perfectly legitimate to have recourse to the preamble to explain it. The preamble of the statute has been said to be a good means of finding out its meaning, and, as it were a key to the understanding of it. Of course it does not mean that if there are express provisions in the Act which go beyond what has been briefly stated in the preamble the express provision will not prevail. But the provision of the Act has to be read in G conjunction with the preamble in order to arrive at a finding as to what was the purpose of the legislation." (PLD 1986 Journal 93, PLD 1981 FSC 23, PLD 1966 BJ. 30, PLD 1969 Lah. 563, PLD 1972 Kar.
421, PLD 1969 Lah. 908, PLD 1952 Dacca 272, PLD 1962 Lah. 990, PLD 1975 SC 1, PLD 1950 Pesh. 22, PLD 1953 Sind. 15, PLD 1952 Dacca 425, PLD 1958 Pesh. 73, PLD 1966 Dacca 1).
13. While interpreting a particular statute the preamble must be present in the mind of the Judge and where the language of the statute permits an exercise of choice or interpretation, the Court must choose the interpretation which is guided by the principles embodied therein but it does not mean that the preamble or object and reason is to be given preference and it can only be considered here the language is somewhat ambiguous. The purpose of a preamble, however, is that in case of any doubt as to the intention of the law makers it may be looked at in order to ascertain the true meaning of a particular provision but it cannot control the substantive provisions of the enactment. Had there been some doubt, which in our opinion, is not existing regarding the language as employed in section 6 of the Act, the learned High Court could have considered the preamble of the Act to make a proper interpretation which has not been done. Much emphasis has been laid on the words "designed to" as used in section 6 of the Act by ignoring that "the normal rule of interpretation is that the words used by the Legislature are generally a safe guide to its intention. No principle of interpretation of statutes is more firmly settled than the rule that the Court must deduce the intention of Parliament from the words used in Act. But if the words of an instrument are ambiguous in the sense that they can reasonably bear more than one meaning, that is to say, if the words are semantically ambiguous, or if a provision, if read literally, is patently incompatible with the other provisions of that instrument, the Court would be justified in construing the words in a manner which will make the particular provision purposeful. That, in essence, is the rule of harmonious construction." (Shahid Nabi Malik v. Chief Election Commissioner PLD 1997 SC 32).
14. We must not ignore the dictum as laid down in Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445) which reads as follows:-- "We may point out that his Court is not oblivious of the factum that the law and order situation has been considerably deteriorated and new types of terrorism hive merged due to tremendous progress made in the field of technology. This Court in more than one cases has held that the approach of the Court while considering criminal matters should be dynamic and it should take into consideration the surrounding situation obtaining in the country and should not lightly set aside a conviction on technical grounds if the Court's conscience is satisfied that factually the convict was guilty of the offence. In this regard reference may be made to the following observations of one of us (Ajmal Mian, CJ) in the following two cases:--
(i) State through Advocate-General, Sindh, Karachi v. Farman Hussain and others (PLD 1995 SC 1);
2. Before touching upon the merits of the case, I may observe that there cannot be two opinions that the duty of the Court is to administer the laws as are operative in the country and if such laws fail to achieve the desired result, then it is the duty of the Legislature to make necessary amendments therein. However, at the same time, it is also a well-settled proposition of law that while applying a particular law, the Court should take into consideration the object for which it has been enacted. The interpretation of the law should be placed in a manner which may advance the object and suppress the mischief for which the law in question might have been enacted and not to construe in a manner which may defeat the object of the law."
15. There is no cavil to the proposition that "intention" plays a dominant role in determining the act of terrorism but there is no yardstick on the basis of which it could be defined precisely and with exactitude. "By intention is meant the expectation of the consequence in question. It was an universal principle, that when a man is charged with doing an act, of which the probable consequence may be highly injurious, the intention is an inference of law resulting from the doing of the act. Intention does not imply or assume the existence of some previous design or fore- thought. It means an actual intention, the existing intention of the moment, and is proved by, or inferred from, the acts of the accused and the circumstances of the case." [(1887] P.R. No,62 of 1887.
It is well settled by now that "criminal intention simply means the purpose or design of doing an act forbidden by the Criminal Law without just cause or excuse. An act is intentional if it exists in idea before it exists in fact, the idea realizing itself in the fact because of the desire by which it is accompanied. The word "intent" does not mean the ultimate aim and object. Nor is it used as a synonym for motive." (34 Cr.L.J 1055 Ramsukh). It hardly needs any explanation that intention cannot be proved by direct evidence which is rarely available and therefore, it has to be inferred from surrounding circumstances." (PC) AIR 1918 P.0 354 Consul Confizon v. H.M. Prosecutor General, PLD 1959 Lah. 495, PLD 1958 Lah. 395, PLD 1963 Kar. 118 Taj Muhammad, PLD 1961 Lah. 221 Rahmat Ullah, PLD 1965 SC 640 Jane Alam. The presumption of law is that a man intends the natural and inevitable consequences of his own act and thus it is not necessary to, consider his state of mind at the time of committing the offence for the purposes of determining whether he intended to commit it or otherwise. It may not be out of place to mention here that if an offender intentionally commits an offence and consequences beyond his immediate purpose result, it is for the Trial Court to examine and determine how for the offender can be held to have the knowledge that he was likely by such act to cause the actual result which cannot be adjudged by the High Court while exercising its Constitutional jurisdiction. The learned High Court has ignored that Section 6 of the Act creates a statutory offence and hence the question of knowledge or mens rea is immaterial "if in any case the legislature has omitted to prescribed a particular mental condition, the presumption is that the omission is intentional. In such a case the doctrine of mens rea is not applicable." (1946) 2 Cal. 127 Legal Remembrance, Bengal v. Ambika Charan Dalai.
16. The provisions as contained in section 6 of the Anti-Terrorism Act is penal/criminal in nature like all other penal provisions which can be divided into "actusreus" i,e, the Act in question and "mens rea" i,e, the requisite mental element. It is not essential for a penal provision to contain both such ingredients as the provisions which omit the mens rea are called strict liability offences which aspect of the matter has been ignored by the learned High Court. It also escaped from the notice of learned High Court that in the absence of express language in a statute whether mens rea is an ingredient of an offence under that statute it is necessary to look at the objects and terms of the statutes which has not been done by the learned High Court. In this regard we are fortified by the dictum laid down in. Abdul Ghani v. State (PLD 1961 Dacca 21), Halsbury's Laws of England, Vol. 10, 3rd Ed. P.508, Maxwell on Interpretation of Statutes, Daluram Behani v. The State 7 PLR Dac. 1168= (1975) 9 DLR 667. A bare perusal of section 6 of the Act would reveal that the Legislature intends, by necessary implication, the exclusion of mens rea in dealing with the contravention of section 6 of the Act which cannot be incorporated, added or inserted in 6 by any Court as such insertion or addition can only be made by the Legislature. The words "designed to" as used in section 6 of the Act do not mean that the offence must be committed with the intention to create terror, sensation or insecurity but it depends upon the nature of the offence and its result on the basis whereof intention of the offender could be determined, The words "designed to" as used in section 6 of the Act can be equated to that of 'wilful' "which means 'intending the result which actually comes to pass; design; intentional; not incidental or involuntary. Again it says 'wilfully is generally used to mean with evil purpose, criminal intent or the like. In R.V. Senior, wilfully, was interpreted to mean deliberately and intentional, not accidentally or inadvertently." [(1899) 1 Q B 283). (Words and Phrases, permanent Edn. Vol. 45, p.275).
17. According to Halsbury's Laws of England, Fourth Edition, Vol.11, para. 1252 'wilfully' means deliberately and intentional, not accidentally or inadvertently. Frank R. Prassel in his Criminal law, Justice and Society 1979 Edition, page 150 says that "Intent is probably the most common, at least for the major traditional offences, but some codes call the proof of `wilful"voluntary', `malicious', 'corrupt', or `purposeful' product instead. These terms are generally accorded similar legal meanings, subject to limited variation from one jurisdiction to another.
18. According to Black's Law Dictionary, Fifth Edition, "an act is done wilfully and knowingly when the actor intends to do it and knows nature of the act. Further that an act or omission is 'wilfully' done, if done voluntarily and intentionally and with the specific intent to do something the law forbids, or with the specific intent to fall to do something the law requires to be done; that is to say, with bad purpose either to disobey or to disregard the law. It goes on to say that when used in criminal context it generally means an act done with a bad purpose, without justifiable excuse; stubbornly, obstinately, perversely. The word is also employed to characterize a thing done without ground for believing it is lawful or conduct marked by a careless disregard whether or not one has the right so to act."
19. Stroud's Judicial Dictionary Vol.4, third Edition, says "that the legal meaning of wilful is purposely without regard to bona fides or collusion and deliberately and intentionally but does not involve obstinacy of an obstructive kind and it means an intentional disobedience. In the Law Terms and Phrases Judicially Interpreted, by Sardar Muhammad Iqbal Khan Mokal, the term "wilfully' amounts to nothing more than this that the person whose action is in question, knows that he is doing and intends to do what he is doing and is free agent. He further says that wilful means wantonly, intentional, deliberately and consciously'and not accidentally or by inadvertence. Reference is made there to Madras State Waqf Board v. Tajammal Hussain (AIR 1968 Mad. 332) and Kedar Nath v. The Stae (AIR 1965 All. 233)."
20. According to Cyclopaedic Law Dictionary, 2nd Edition, the word 'wilfully' "means in the common sense, voluntary or intentional In criminal law the term generally means more than 'voluntary' and implies an evil mind or intent."
21. In the light of above mentioned discussion the only inescapable conclusion would be that 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 no impact on the meaning, aim, scope and objects of the provisions of section 6 of the Act. We are conscious of the fact that `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".
22. It is well settled by now that "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. (Emphasis provided). In some cases even the quantum of the punishment has been taken into account for determining this question, though this by itself cannot, in my view, be conclusive." (Pakistan v. Hardeastle Waud (Pak.) Ltd. PLD 1967 SC 1).
23. 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. A farfetched interpretation of the words "designed to" as used in section 6 of the Act has been made by the learned High Court which we are afraid is not correct as the impact of the alleged offence and the manner in which it is committed has been ignored on the basis whereof the design of the alleged offence can be unveiled. There is absolutely no doubt in our mind that the 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 Act itself. We have also surveyed the case law on the subject. It is, however, to be noted here at this juncture that so far as the concept of "terrorism" is 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.
24. In case titled Muhammad Farooq v. Ibrar (PLD 2004 SC 917) a similar proposition was examined and it was held as under:-- "The very object to promulgate Anti-Terrorism Act, 1997 was to control the acts of terrorism, sectarian violence and other heinous offences as defined in section 6 of the Act and their speedy trials. To bring an offence within the ambit of the Act, it. Is essential to examine that the said offence should have nexus with the object of the Act and the offences covered by its sections 6, 7 and 8. On bare perusal of sub-clauses (b), (d), (h) and (i) of subsection (1) of section 6 of the Act, it is abundantly clear that the offence which creates a sense of fear or insecurity in society, causes death or endangers a person's life, involves firing on religious congregations, mosques, Imambargahs, churches, temples and all other places of worship, or random firing to spread panic, or involves any forcible takeover of mosques or other places of worships, falls within its ambit."
25. An identical question was examined in case reported as Province of Sindh v. Ghulam Hussain (2002 SCMR 908) wherein it was held as under:-- "9. Learned counsel for the petitioner relied upon the rule laid down in the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445) and in particular the observations made at page 1493 of the report which are reproduced below to contend that merely because an army officer was killed would not itself be sufficient to attract the provisions of the Anti-Terrorism Act:- 'It was urged by Mr. Gilani, learned counsel for some of the petitioners, that a perusal of the amended Schedule indicates that if the victim of a murder case under section 302 P.P.C. Is a member of police, armed forces or civil armed forces or a public servant, the accused of such a case is triable under A.T.A., even if the murder had taken place on account of personal enmity and had nothing to do with the discharge of his official functions/duties. Whereas Ch. Muhammad Farooq, learned Attorney-General, has submitted that in order to terrorise the public servants so that they may not discharge their functions/duties efficiently and effectively, the terrorists started killing public servants, for example, the Commissioner of Sargodha, a Secretary of the Provincial Government in Lahore, Superintendent of Police, Gujranwala, and the Managing Director, K.E.S.C., Karachi, were brutally murdered. According to him the above acts of terrorism were in ended and designed to create panic amongst the public servants. It will suffice to observe that if a Government servant or any other employee of the Government functionaries is murdered because he belongs to the above service and that there was no enmity or plausible reason for commission of the above offence such a killing is an act of terrorism within the ambit of the Act and can lawfully be included in the Schedule, but if the murder is committed solely on account of personal enmity such a murder will have no nexus with the above provisions of the Act and will not be triable under the Act. However, this is a matter to be decided by the Special Court under section 23 of the Act, Special Court has been empowered to transfer a case to a regular Court if after taking cognizance of an offence, it is of the opinion that the offence is not a scheduled offence'.
10. These observations have been made in relation to inclusion of offence of murder of civil servants, etc., in the schedule as a separate entity and do not in any manner have the effect of excluding from their applicability the other provisions of the Act such-like section 6(b) (ibid) which if otherwise is applicable in the case of murder, may be of army man or a public servant as ordinary person on the touchstone of criteria i,e,, the same had the tendency or the effect of likely to create terror or feeling of insecurity."
26. A similar situation was also dealt with by this Court in case titled Zia Ullah v. Special Judge (2002 SCMR 1225) wherein it was concluded as under:-- "3. We have heard at length the learned counsel on behalf of the parties and have carefully examined the entire record. Let us mention here at the outset that the impugned order cannot be termed as speaking one but on the contrary it is perfunctory and appears to have been passed in a cursory manner by ignoring the objects and reasons for the enactment of the Anti-Terrorism Act, 1997. The alleged murder was committed in a wanton, reckless and brutal manner and resultantly learned Advocate who was in his robe was done to death in Court vicinity. The gravity of the offence could not be diminished or minimized merely on the ground that alleged murder was not committed exactly within the Court premises as pressed time and again by the learned counsel for the respondents. It is to be noted that one Assistant Sub-Inspector of Police was seriously injured by means of fire-arms. We are not having the slightest doubt while holding that the alleged occurrence must have caused fear, panic and wave of sensation and thus the matter squarely falls within the ambit and jurisdiction of Special Court. The contents of F.I.R., have neither been read properly nor understood in its true perspective which resulted in serious miscarriage of justice on the one hand and protracted the trial on the other without any fault of the affected party. It is worth mentioning that the statements of about six witnesses have been recorded and thereafter invocation of Constitutional jurisdiction by filing writ petition by the respondents demonstrates propensity to get the trial prolonged for the reasons best known to them. It is not conceivable that on the one hand the prevailing judicial system is blamed for inordinate delay but when a serious attempt is made for the expeditious disposal of the case the affected parties tried their best to create numerous hurdles under the garb of law to get it delayed. The case in hand can be cited as a classic example for such trend. The learned Sessions Judge is Presiding Officer of the Special Court constituted under the Anti-Terrorism Act, 1997 and his judgment can be assailed before High Court and ultimately this Court, hence the question of any prejudice does not arise. In our considered view no bar whatsoever has been imposed under the Anti-Terrorism Act, 1997 that such cases could not have been tried by the Special Court. Mr. Hameed Ullah, Advocate was on his way to Sub-Divisional Court Chiniot to enter appearance in a murder case and Akbar Khan, Assistant Sub-Inspector of Police was going to get his statement recorded in a criminal case got registered under sections 302, 324, 148 and 149, P.P.C. It is an admitted feature of the case that indiscriminate firing was made which caused the fateful occurrence and created sensation and wave of panic which amounts to sense of insecurity not only amongst a section of public but community of Advocates as well. We have given a careful consideration to the relevant provisions of the Anti- Terrorism Act, 1997 and we are of the view that if the accumulative effect of the provisions as contained in sections 6(i)(b), 6 (2) (a) (m) and (n) is examined the only irresistible conclusion would be that the alleged occurrence falls within the ambit of section 6 of Anti-Terrorism Act, 1997."
27. The provisions as contained in sections 6, 12 and 23 were examined by this Court in case titled Najam-un-Nisa v. Judge Special Court (2003 SCMR 1323) and the operative portion of the said judgment is reproduced herein below for ready reference:-- "3. The venue of the commission of a crime; the time of occurrence, the motive which had led to the commission of a crime and the, fact whether the said crime had or had not been witnessed by the public at large are not only factors determining the issue whether a case did or did not fall within the parameters of the ATA of 1997. The crucial question is whether the said crime had or had not the effect of striking terror or creating a sense of fear and insecurity in the people or any section of the people. Needless to mention here that a crime of the kind in hand committed even in a remote corner des not remain unnoticed in the area in which is committed or even in the country on account of the print and electronic media. Seven persons being butchered in a house at night is not the kind of occurrence which would not create terror and horror in the people or any section of the people."
28. The provisions as contained in section 6 of the Act were also dilated upon and examined by this Court in case Muhammd Mushtaq v. Muhammad Ashiq (PLD 2002 SC 841) wherein it was held as under:- "7. It would thus appear that ordinary crimes are not to be dealt with under the Act. A physical harm to the victim is not the sole criterion to determine the question of terrorism. What is to be seen is the psychological effect produced by the violent action or with the potential of producing such an effect on the society as a whole or a section thereof. There may be a death or injury caused in the process. Thus where a criminal act is designed to create a sense of fear or insecurity in the minds of the general public disturbing even tempo of life and tranquility of the society, the same may be treated to be a terrorist act. There may be just a few killings, random or targeted, resorted to with single mindedness of purpose. But nevertheless the impact of the same may be to terrorise thousands of people by creating a panic or fear in their minds.
8. In the present case, we, prima facie, find that the occurrence ..Took place during the peak hours of the day on the busy Court Road near the District Courts, Lahore, wherein four persons while on their way to attend the Court were allegedly murdered by the use of kalashnikovs. The cumulative fall-out of the occurrence as to the time, place and manner of the act created a sense of the fear and insecurity in society. The case was, therefore, triable by the Anti-Terrorism Court established under the said Act in view of its peculiar facts and circumstances as also the law and order situation prevailing in the country. In the case Ziaullah (supra) a similar view was taken by this Court in somewhat similar circumstances."
29. After having gone through the entire law as enunciated by this Court in different cases the judicial consensus seems to be that 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 F.I.R. 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 learned Special Judge who is usually a Q 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
30. The learned Division Bench of Lahore High Court has ignored the case law enunciated in different judgments pronounced by this Court on the grounds which are not tenable and by ignoring the fact that the judgments of this Court being apex Court are binding upon the learned High Court in the view of the provisions as enumerated in Article 189 of the Constitution of Islamic Republic of Pakistan which, inter alia, provides that any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or initiate a principle of law shall be binding on all other Courts in Pakistan and the learned Lahore High Court is no exception to it. It is well-entrenched legal proposition that "the ultimate responsibility of interpreting the law of the land is that of the Supreme Court. Therefore any decision of the Supreme Court shall to the extent that it decides a question of law or is based upon or enunciates a principle of law is binding on all other Courts in Pakistan.
' A decision in suo motu Shariat review petition followed by Supreme Court would be binding on all other Courts in Pakistan. Law declared by Supreme Court becomes the law of the land and is binding not only on all Courts in Pakistan but also on all functionaries of the Government." (PLD 1971 SC 324, PLD 1985 SC 228. It is worth mentioning here that "where a judgment of Supreme Court has become effective as from a specified date, it would be binding not only on High Courts and Courts subordinate to it but also on all other Courts of Pakistan from that date. Therefore, High Court rightly preferred Supreme Court decision over decision of Full Bench of High Court. The decision of Supreme Court cannot be ignored on the ground that certain grounds were not urged before Supreme Court." (PLD 1987 Lah.71, 1981 SCMR 520, PLD 1973 Lah 1). "Apart from the Constitutional obligation imposed upon the Courts even the propriety demands that the Courts must follow such a law without any hesitation. Unless the law so declared is altered or overruled by the Supreme Court itself, the High Court has no option but to follow it." (PLD 1975 Lah. 65, PLD 1964 Peshawar 250).
31. We have also noted that the language as used in paragraphs 14, 15, 16 and 17 in the judgment impugned appears to be derogatory and contemptuous which cannot be ignored lightly and it is directed that care and caution must be observed while offering comments on any judgment delivered by this Court in order to avoid the possibility of suo motu action by the Supreme Judicial Council and initiation of proceedings under the contempt laws.
32. In the light of above discussion we are firmly of the view that the alleged offence in Civil Appeal No,1212 of 2004 and Civil Petitions Nos.2479-L and 320-L of 2004 falls within the jurisdictional domain of learned Special Court constituted under the Act. The judgment impugned is set aside and the appeal is accepted. The petitions for leave to appeal bearing Nos. 2479-L and 320-L of 2004 are converted into appeals and also accepted for the reasons as mentioned herein above. The record of the above cases be sent to the Special Court constituted under the Act for trial immediately.
' These are the reasons of our short order dated 8-2-2005 which reads as follows:-- "For the reasons to be recorded later on C.A.No,1212 of 2004 is allowed and the judgment impugned passed by Lahore High Court, is set aside. Likewise C.Ps. Nos.320-L & 2479-L of 2004 are converted into appeals and the same are allowed and the impugned judgments in these matters are set aside."
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