SARMAD JALAL OSMANY, J.---Through this petition it has been prayed that the offences under F.I.R.
No,37 of 2001 of the Police Station, Baiji Shareef be declared as acts of terrorism and hence the matter be sent up to the Anti-Terrorism Court for trial in accordance with law.
2. Briefly stated the facts of the matter per afore-stated F.I.R. Are that on the day of incident respondents Nos.2 and 3 i.e . Ghous Bux and Gul Bahar along with other accused armed with deadly weapons appeared at the scene of incident where the complainant Mahboob All his brother Manthar, Hakim Ali and Arbelo had left their cattle in the water pond. The accused party robbed 65 cattle from the pond and took them away towards the Katcha area while threatening the complainant party not to follow them. However, the complainant party did so at which accused Ali Ahmed Tunio fired at them with his Kalashnikov which hit Manthar who fell down. Meanwhile on the commotion, P.Ws. Abdul Rasheed and Ali Gul as well as other villagers came running to the scene at which accused Abdul Majeed opened fire with his Kalashnikov which hit Ali Gul who also fell down. Thereafter all the accused started firing with their weapons upon which the complainant party as well as other villagers saved themselves by lying on the ground whereafter the accused escaped with the robbed cattle. It was then discovered that both Manthar and Ali Gul had expired due to their injuries. The motive behind the crime was stated to be the enmity between accused Ali Alunad and Manthar Ali as the latter was a witness to the abduction of the complainant's uncle Abdul Majeed by the former who used to issue threats to Manthar Ali.
3. The case was charge-sheeted before the learned Sessions Judge, Sukkur who transferred the same to the learned Additional Sessions Judge (H), Sukkur for disposal in accordance with law.
During the pendency of the trial, an application was moved before learned trial Court for transfer of the case to A.T. Court as the offences committed by the accused were acts of terrorism and hence solely triable by such Court. Said application was dismissed vide impugned order dated 10-2-2005 and hence this petition.
4. On the foregoing facts and circumstances Mr. Nizamuddin Baluch, learned counsel for the petitioner complainant has firstly submitted that the motive behind the crime was clearly to prevent the complainant party from pursuing the pending case viz.- pertaining to F.I.R. No,17 of 2001 of Police Station.. Baiji Shareef, against the accused before the A.T. Court and hence it comes squarely within the definition of an act of terrorism per section 6(1)(b) of the A.T. Act 1997. In this regard he has relied upon the case of Shaukat Baig v. Shahid Jamil (PLD 2005 SC 530) wherein it has been held inter alia that what is to be seen is the effect of the act (offence) within the meaning of section 6(1)(b). He has also relied upon Criminal Revision No,30 of 2004 entitled Muhabat Ali v.
The State where in identical circumstances a learned D.B. Of this Court reached the conclusion that the offence constituted an act of terrorism and hence was exclusively triable by the A.T. Court.
Learned counsel has also cited Basharat Ali v. Special Judge, Anti-Terrorism Court (PLD 2004 Lah.
199) which was overruled by the Honourable Supreme Court in Shaukat Baig v. Shahid Jamil (Supra). Hence learned counsel has prayed that this petition be allowed and the case pending before the learned trial Court be sent to learned A.T. Court having jurisdiction for trial in accordance with law.
5. On the other hand Mr. Abdul Qadir Abro appearing for respondent/accused Shah Nawaz Tunio has submitted that the contents of the F.I.R. Clearly established the present case to be one of robbery and murder as the complainant party had resisted the same upon which two persons were killed viz. Manthar Kalhoro and Ali Gul Chacher with whom the accused had no enmity. In the previous case of abduction for ransom per F.I.R. No,17 of 2001 of Police Station Baiji Shareef, accused Shah Nawaz had not even been nominated and hence there was no nexus at all between the two crimes. Furthermore per learned counsel no complaint/Application has been filed before any authority/Court of law regarding the alleged threats issued by the accused to the complainant party. Finally per learned counsel there is nothing in the F.I.R. To establish that the complainant party was terrorized etc. By the crime in question in fact they actively pursued the accused in order of retrieve the robbed cattle. Hence the matter was correctly sent up for trial before the learned Sessions Court. He has therefore prayed that the petition be dismissed. He has also relied upon the case of Shaukat Baig v. Shahid Jamil (Supra) as well as Amir Khan v. The State (PLD 2005 Kar. 344).
6. Mr. Shafquatullah Shaikh appearing for respondents accused Ghous Bux and Gul Bahar has supported the arguments of Mr. Abro. He has further submitted that the offence was committed in the jungle and hence there is no question of terrorism having taken place. Furthermore respondents Ghous Bux and Gul Bahar are not even the accused in the previous F.I.R, and consequently there is no correlation at all between the two crimes.
7. The learned A.A.-G. Has also supported the arguments of Mr. Abro and Mr. Shaikh. According to him the facts of the F.I.R. Are to be considered in their totality and the manner in which the crime was committed as well as the time and place. Admittedly the cattle of the entire village were available in the pond numbering 65 and all of them were robbed and so also per the F.I.R. The accused fired on the entire complainant party as well as other villagers who had arrived at the scene. Hence this was not a case of terrorism at all. He has relied upon Criminal Revision Application No,44 of 2004 entitled Suleman and others v. The State wherein a learned D.B. Of this Court held that the crime in question viz. Murder of the deceased due to suspicion of having illicit relations with the wife of the accused did not amount to terrorism. The learned A.A.-G. Has also relied upon Criminal Revision Application No,49 of 2002 entitled Allah Wassayo v. The State decided by a learned D.B. Of this Court.
8. We have heard the learned counsel as well as the learned A.A.-G. Our conclusions are as follows.
9. It would be seen that section 6(1) defines an act of terrorism as follows:-- "(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 intimate 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."
' Subsection (2) of section 6 defines an action as follows:-- "(2) An "action" shall fall within the meaning of subsection (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;
(i) 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 take over of mosques or other place 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 of any other serious form of arson;
(k) involves extortion of money ('bhatta") or property;
(l) is designed to seriously interfere with or seriously disrupt a communication system or public utility service;
(m) involves serious , coercion or intimation of a public servant in order to force him to discharge or to refrain from discharge his lawful duties; or
(n) involves serious violence against a member of the police force, armed forces, civil armed forces, or a public servant."
10. While interpreting the aforementioned section, the Honourable Supreme Court in the case of Shaukat Baig v. Shahid Jamil (supra), opined "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 round 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 in consonance with the well-entrenched principles of interpretation of criminal status...."It was further held by the-Honourable Supreme Court that "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 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 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 the Act and its Preamble which reads as follows:-- ' "An Act to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences."
11. Finally the Honourable Supreme Court also came to the conclusion that section 6 of the Act creates a statutory offence i.e, one of strict liability and hence the question of knowledge or mens rea is immaterial if in any case the legislature had omitted to prescribe a particular mental condition the presumption is that the omission is intentional. However insofar as section 6 of the Act was concerned the Honourable Supreme Court came to the conclusion that the words "designed to" appearing in section 6 of the Act does 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 he Act can be equated to that of "wilful" which means intending the result which actually comes to pass. Hence these words can be equated to wilfully knowingly and deliberately. Consequently it would have no substantial bearing on the impact of section 6 of the Act whether these words have been specifically mentioned therein or not, as the meaning is sufficiently conveyed by such words viz. "designed to".
12. Hence in the light of the foregoing observation the Honourable Supreme Court came to the conclusion that the incident in question viz. Indiscriminate firing by the accused in a thickly- populated Bazaar area for the purpose of committing dacoity to the tune of Rs, two crores which resulted in the death of four persons was certainly an act of terrorism within the meaning of section
6. Consequently the judgment of the learned Lahore High Court to the contrary was set aside, in the case of Basharat All v. Special Judge, Anti-Terrorism (supra).
13. In the present case it would be seen that the offence in question was dacoity in which a large number of buffaloes were robbed by the accused who were more than 20 in numbers and when the complainant party and other villagers offered resistance, the accused opened fire killing two persons. This certainly would have created a sense of panic and terror amongst the villagers thus preventing them for leading their normal life. Hence in our opinion the case is to be tried by the A.T.
Court having the jurisdiction.
14. Insofar as the case of Amir Khan v. State (supra) is concerned a learned D.B. Of this Court came to the conclusion inter alia that the essential ingredients of an offence under section 6 are the action itself and secondly the design or intention to create terrorism. However, perhaps in view of the dictums laid down by the Honourable Supreme Court in the later case of Shaukat Baig v.
Shahid Jamil (supra), this may no longer be a correct statement of the law in so far as section 6 of the Act is concerned. Two learned D.Bs. Of this Court in the case of Suleman and others v. The State and Muhabat All and another v. The State (supra) have also reached the same conclusion viz. That the two essential ingredients must be satisfied before any offence can be categorized as an act of terrorism i.e, the act itself coupled with the objective of creating terrorism. Again perhaps these two cases also do not state the correct law in view of the latest law laid down by the Honourable Supreme Court. However this is not to say that in the particular facts of the aforementioned cases the correct decision was not made in all the aforementioned cases.
15. For all the foregoing reasons we would allow this petition and direct that the case pending with the learned Additional Sessions Judge (II), Sukkur entitled State v. Ghous Bux and others arising out of F.I.R. C No,34 of 2004 of Police Station, Baiji Shareef be transferred to the learned Anti-Terrorism Court having jurisdiction which shall dispose the same in accordance with law. Order accordingly.