1. ' F.I.R. No, 22 of 2010 was recorded at Police Station Moro on 3-2-2010 at 1045 hours for an incident alleged to have taken place at 0930 hours, It is stated in the F.I.R. That a Police posse, on receipt of information, went to the place of incident and found two persons there who disclosed their names to be those of present applicants. They were found to carry some bags. When one bag was opened from it were recovered four bombs as well as a detonator, safety fuse, cash and some documents while from the other bag were recovered six bomb batteries, one detonator, two cartridges, one plastic bag containing potation weighing five kg one green colour plastic bag containing urea, mobiles and certain documents. It is also stated in the F.I.R. That when the Police enquired about the bombs and articles, the present Applicant disclosed that they had been given a task for explosions, and therefore, they were on the way to implement their plans.
2. ' An application was filed under section 23 of Anti-Terrorism Act, 1997 which application was dismissed by the learned Judge, Anti-Terrorism Court, Khairpur, vide order dated April 29, 2010 and the Court recorded the following reasons:-- "I have very carefully considered the arguments of learned counsel for the parties and perused the contents of F.I.R., statements under section 161, Cr.P.C. Of the witnesses and other material available on record. The perusal of record shows that the F.I.R. Was lodged under section 3, 4 and 5 of the Explosive Substances Act, 1908 r/w section 7 of the A.T.A., 1997. The present accused were arrested red-handed and heavy material of explosive substance including (10) bombs were secured from them, therefore, in the circumstances Police had rightly applied section 7 of ATA, 1997 in the F.I.R. As well as charge-sheet which is exclusively triable by this Court. The record further shows that during the course of investigation both the present accused confessed their guilt and clearly stated in their statement recorded before Investigating Officer that they were given task to spread terrorism by using the explosive substance material which was recovered from them. Witnesses in their respective 161, Cr.P.0 statements have fully implicated and involved the accused persons in the commission of offence. Thus, in my humble view this Court has got exclusive jurisdiction to try the present case. From the facts and circumstances of the case the element of terror as provided under the provisions of section 6(e) of A.T.A., 1997, is manifestly apparent and the Police have rightly presented the Challan of this case before this Court being the scheduled offence under the A.T.A., 1997. Therefore, without any hesitation, hold that this Court has exclusive jurisdiction to try the case.
3. Consequently, the application for transfer of the case to ordinary Court is hereby rejected."
4. This Criminal Revision under sections 435,439, Cr.P.0 read with section 561-A, Cr.P.C. Has been filed to challenge and impugn the order dated April 29, 2010.
5. ' Learned Counsel for the applicant firstly referred to the order passed by a D.B of this Court in Criminal Miscellaneous Application No,361 of 2009 on 2-2-2010 that Criminal Miscellaneous Application was filed for recovery of missing persons and the missing persons were claimed to the present two applicants. On 2-2-2010, it is recorded in the diary sheet that all the Police Officers present in Court stated that they were trying their best to recover the missing persons and hopefully on the next date, they would be able to produce the missing persons before this Court.
6. Learned Counsel submits that on the next date 3-2-2010, F.I.R. Was registered. Criminal Miscellaneous Application No, 361 of 2009 was disposed of on 25-2-2010 and the following observations were made:-- "This statement is taken on record and despite the repeated question, the Police Officers present have not been able to explain as to why if the detenues were arrested on 3-2-2010, and this Criminal Miscellaneous Application was filed way back on 16-12-2009 alleging that the detenues had been abducted by the S.H.O., Police Station Faiz Mohammad Bindo, District Khairpur.
7. ' Since the matter is now sub judice before the ATC, we are, therefore, unable to provide any relief to the applicant. However, the office is directed to send copies of all the orders passed by this Court in this case from the time this Criminal Miscellaneous Application was filed to the relevant ATC with directions to consider these circumstances also while deciding the above Case.
8. ' The S.P, Investigation who is present before us is directed to call for all the papers in connection with the investigation carried by the DPO, Khairpur in this Case and also consider this aspect of the case and if conclusion is reached by him, the same be supplied to the A.T.C. A.T.C, Khairpur is also directed that if any Bail Application is filed on behalf of the detenues, even it is found not to be maintainable in view of section 22-D of the A.T.A. Introduced in A.T.A. Vide amendment made on 1st October, 2009, he shall dispose it of either on the basis of non-maintainability or on merits in accordance with law within 10 days of the filing of such application."
9. ' Learned counsel submitted that there is no private Mashir of recovery. He further submitted that even if everything stated in the F.I.R. Is treated as gospel truth, no act of terrorism as defined in section 6 of the Anti-Terrorism Act, 1997 is made out. He submitted that it is merely a case at the best for the Prosecution and at the worst for the applicants of possession of explosive substance does not attract provisions of section 6 of the Anti-Terrorism Act, 1997. Learned Counsel relied upon Ahmed Razi versus the State 2005 YLR 1679).
10. ' Learned APG firstly submitted that Revision Application under sections 435/439, Cr.P.C. Is not maintainable. In this regard, he referred to sections 25, 31 and 32 of the Anti-Terrorism Act, 1997 and also to the case of Mohammad Sabir Roshan versus the. State (2000 PCr.LJ 1195). Learned APG further submitted by referring to the third schedule of the Anti-Terrorism Act, 1997 that any attempt to commit or any conspiracy to commit any terrorist act is included in the acts of terrorism.
11. ' We have considered the submissions made by the learned Counsel and have also gone through the record as well as case-law cited at the bar.
12. ' A bare reading of sections 25, 31 and 32 of Anti-Terrorism Act, 1997 reveals that whereas a final order imposing sentence or granting acquittal is appealable under section 25 of Anti-Terrorism Act, 1997, finality has been attained to all other orders and Judgments passed by Anti-Terrorism Court. Section 32 of Anti-Terrorism Act, 1997 provides as under:-- "32. Overriding effect of Act.---(1) The provisions of this Act shall have effect notwithstanding anything contained in the Code or any other law but, save as expressly provided in this Act, the provisions of the Code shall, insofar as they are not inconsistent with the provisions of this Act, apply to the proceedings before (An Anti-Terrorism Court), and the purpose of the said provisions of the Code, (An Anti-Terrorism Court) shall be deemed to be a Court of Session.
(2) In particular and without prejudice to the generality of the provisions contained in subsection
(1) the provisions of section 350 of the Code shall, as far as may be, apply to the proceedings before (An Anti-Terrorism Court), and for this purpose any reference in those provisions to a Magistrate shall be construed as a reference to (An Anti-Terrorism Court)."
13. ' In the case of Mohammad Sabir Roshan (supra), it was held as under:- "The plain reading of section 31 of the Anti-Terrorism Act shows that judgment or order passed or sentence awarded by the Anti-Terrorism Court subject to the result of appeal shall be final/conclusive. It appears that the intention of the Legislature while enacting section 31 was that the trial was to be concluded within 7 days and so also appeal in the same period by the High Court. The section 25 of the Anti-Terrorism Act, 1997 is more clear on this aspect of the matter, as after the judgment is pronounced the copy of the same is to be supplied to the High Court within three days. Thus, the procedure under the Act is made automatic and the appeal is only permitted against the judgment or order of acquittal. The other orders become final as contemplated under section 31 of the Anti-Terrorism Act. Thus, sections 435, 439 and 561-A, Cr.P.C. Are inconsistent to the above provisions of the Anti-Terrorism Act. It is crystal clear that the order passed under Anti- Terrorism Act by Special Judge cannot be assailed/cancelled by invoking revisional or inherent jurisdiction of this Court. The reason for the same is that only appeal is provided against the judgment of conviction or order of acquittal. The provisions of sections 2'5, 31 and 32 of the Anti- Terrorism Act, 1997 cannot be read in isolation but those are to be read in conjunction with each other, which do not permit the order passed by the Special Court to be challenged in revision."
14. ' As far as availability of remedy under section 561-A, Cr.P.C. Is concerned, a learned D.B also held that power under section 561-A, Cr.P.C. Is not available in respect of orders passed under the provisions of Anti-Terrorism Act, 1997. The relevant observations of the D.B are in the following words:- "The application under section 561-A, Cr.P.C. Against the order which is called in question, is not maintainable under the provisions of Anti-Terrorism Act, 1997. There is no specific provision, in the Act for challenging the order of Anti-Terrorism Act, Court by way of revision or criminal miscellaneous application under section 561-A, Cr.P.C. Only section in the Act is section 32 which makes the provisions of Criminal Procedure Code available for certain limited purposes, and in case they are not in consistent to any provisions of the Anti-Terrorism Act. The section 32 of Anti- Terrorism Act, 1997 is reproduced here in under for convenience sake."
15. Respectfully following the Judgment of the D.B, we hold that neither revisional jurisdiction under section 435/439, Cr.P.C. Nor jurisdiction under section 561-A, Cr.P.C. Can be invoked to challenge and impugn an Order passed by the Anti-Terrorism Court. However, this does not close the chapter. If no adequate remedy is available or provided under law, this Court can always use its constitutional authority under Article, 199 of the Constitution of Islamic Republic of Pakistan.
16. Learned APG has very clearly argued that no remedy is provided against the order under section 23 of the Anti Terrorism Act, 1997 and if no remedy is provided, obviously, Anti-Terrorism Act, 1997, being a subordinate legislation, cannot curtail the constitutional jurisdiction of this Court under Article 199 of the Constitution. It is also settled law that discretion is always available with High Court to treat any application or proceedings, in appropriate cases, as Application under Article 199 of the Constitution; therefore, this Criminal Revision Application is treated as Constitutional Petition and decided accordingly.
17. ' Contention of Mr. Bhatt was that the allegation in the F.I.R. Is only of possession and then there is a statement that the applicants intended to use the bombs. His contention was that the offence does not fall within the definition of terrorism as contained in section 6 of Anti-Terrorism Act, 1997, the said section 6 is reproduced as under:-- "(6) Terrorism-In this Act, "terrorism" means the use or threat or 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 people 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 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 endanger a person's life;
(e) involves kidnapping for ransom, hostage-taking or hijacking; [(ee) involves use of explosives by any device including bombs blast;] (0 incites hatred and contempt on religious, sectarian or ethnic basis to stir up violence or cause international 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;
(k) (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 or use of any action falling within subsection (2), which involves the use of fire-arms explosives or any other weapon, is terrorism, whether or not subsection (I)(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 prescribed 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."
18. ' Since the learned APG referred to the Third Schedule, Clause 3 of that schedule is reproduced as under:-- "Any attempt to commit, or any aid or abetment of, or any conspiracy to commit, any of the aforesaid offences."
19. A perusal of above section 6 does indicate that mere possession does not constitute an offence triable by Anti-Terrorism Court and, indeed, in this regard, reliance placed by Mr. Bhatt on Ahmed Razi's case (supra), is perfect apt. However, it may be noticed that in Ahmed Razi's case, implication of clause 3 of the Third Schedule has not been considered or pointed out to the Court.
20. Clause 3 of the Third Schedule makes an attempt to commit or any conspiracy to commit any of the offences stated in section 6 to be a scheduled offence. It is alleged in the F.I.R. That they were carrying bombs and other like material and it is also alleged in the F.I.R. That they stated that they had the intention of causing explosions. Therefore, prima facie, from this statement it appears to us that attempt is alleged and consequently, we hold that the order passed by the Anti-Terrorism Court cannot be taken exception to.
21. ' Mr. Bhatt strenuously referred to the orders passed by this Court in Criminal Miscellaneous Application No, 361 of 2009. We have .Already reproduced above the operative part from that order.
22. The Anti-Terrorism Court is directed to consider the circumstances stated in the order, dated 25-2- 2010 passed by this Court while deciding guilt or innocence of the persons standing trial before it.
23. ' With the above observations, this Criminal Revision Application is dismissed.