' SALAHUDDIN PANHWAR, J.---By this common Order, we will decide three Criminal Transfer Applications Nos.48, 49 and 50 of 2012, as same are in respect of series of offences alleged to have been committed by one and same set of accused persons. Applicant/accused has assailed orders dated 14-5-2009, passed by Anti-Terrorism Court Naushehro Feroz on application under section 23, Anti-Terrorism Act 1997.
2. Relevant facts of the issue involved in all three applications are that on 13th August, 2012, at 1920, Hrs Mr. Illumdin Janwari Civil Judge and Judicial Magistrate lodged F.I.R., stating therein that on the directions of learned Sessions Judge, to conduct the raid, to effect the recovery of detenu. The complainant/Civil Judge Illumdin proceeded along with his peon Abdul Sattar, gunman Nazar Muhammad and applicant Mumtaz for Muhbat Dero in a taxi car. In the way Mumtaz disclosed that, detenu is detained by SHO Niaz Mirani at Muhbat Dero Hospital. Thereafter the complainant/Magistrate reached at Muhbat Dero Hospital and found that one person duly handcuffed was chained with a cot. SHO, Niaz Mirani present there made his escape good by jumping over the wall while his two servants were found available there. Thereafter the complainant/Magistrate approached to police station by leaving guard Nazar Muhammad there to look after the detenu and made such entry in Roznamcha and returned to hospital along with WHC Mehboob Ali in order to release detainee, where gunman Nazar Muhammad informed him that SHO Niaz Mirani and his servants have maltreated him and they, on the force of weapons, took away the detainee. The complainant/Magistrate reported the matter to his superiors who directed him to lodge the report at Police Station Muhbat Dero, he was reporting the matter, when SHO Niaz Mirani duly armed with Kalashniko came near the gate of police station and started indiscriminate firing while abusing the complainant that who is he to get the detainee released. He was also extending threats of dire consequences to the complainant/Magistrate, therefore several persons of the town gathered there and due to act of the SHO, sense of fear, terror and insecurity spread in general public. The SHO continued making firing upto 10/15 minutes. Thereafter complainant/Magistrate along with above witnesses, with the help of general public, left police station without completing the report. The SHO was following the car and continuously 'making fire shots. The complainant noticed that the people of locality due to fear sheltering themselves.
3. Accordingly, three F.I.Rs, were registered regarding abduction, dacoity, causing deterrence in official duty, illegal confinement and terrorism committed by applicant.
4. Counsel for the applicant has inter alia contended that the offences do not fall within the schedule of ATA; only one F.I.R. Pertains to section of ATA and two other F.I.Rs, were 'not registered under ATA; joint trial by ATA is illegal; applicant being SHO was armed with official KK, hence 13(d) case was not registered against the applicant thus without 13(d) case offence will not fulfil the criteria of ATA 1997; prosecution has no evidence of terrorism, act of applicant was not designed act; He has relied upon Inamullah Rashid v. The State (PLD 1998 Lahore 318), Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 Supreme Court 1445), Jehangir Akhter Awan and 2 others v. The State and 8 others (PLD 2000 Karachi 89), Taj Muhammad v. Judge, Anti-Terrorism Court and another (PLD 2003 Lahore 588), Muhammad Iqbal and another y. The State (1992 M LD 287), Muhammad Hafeez v. Special Judge, Anti-Terrorism Court, Mirpurkhas and 2 others (2001 PCr.LJ 199), Shahid Jameel v. Special Judge Anti-Terrorism Court, Faisalabad and 2 others (2004 PCr.LJ 1878), Nasir Masih v. The State and another (2008 PCr.LJ 713) and Naseem Akthar alias Asghar and another v. The State (2007 YLR 1163).
5. Conversely, learned APG appearing for the State has argued that this is a fit case of Anti- Terrorism Court; manner of offence attracts the basic ingredients of terrorism; learned Magistrate was deterred from his official duty.
6. Heard the learned counsel for the respective parties and perused the record.
7. According to the prosecution, applicant illegally detained some persons at his privately arranged place; made criminal assault upon the Civil Judge and his Staff; committed offence of abduction, caused indiscriminate firing upon Civil Judge and other persons thereby applicant committed offence falling within subsection N&M of ATA. Under these circumstances relevant question to be decided in these criminal transfer applications is that whether in view of the circumstances and facts mentioned supra, the acts of the accused person constitute an offence falling within the scope of terrorism as envisaged under section 6 of Anti-Terrorism Act 1997 or otherwise.
8. To elaborate the issue, involved in the matter, it is incumbent to examine the authoritative proposition of law laid down by honourable Supreme Court in various cases. In case of Mirza Shoukat Baig and others v. Shahid Jamil and others reported in PLD 2005 SC 530, it is observed that:-- "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 work "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 perspective which aspect of the matter has been ignored by the 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 statutes".
' In another case of Nazeer Ahmed and others v. Nooruddin and others reported in 2012 SCM R 517, it is held as under:-- "Neither the motive nor intent for commission of the offence is relevant for the purpose of conferring jurisdiction on the Anti-Terrorism Court. It is the act which is designed to create sense of insecurity or to destabilize public at large, which attracts the provision of section 6 of Act".
9. After going through the above dicta laid down by honourable court, it is manifest that authoritative proposition of law is while deciding applicability of sections 6 and 7 of the Act the "action" is of more consideration than the "designed to". In the instant case a Civil Judge in compliance of order, issued by Sessions Judge visited the pointed place, where detenu was found confined. The applicant, being an officer of the police, cannot be said to be unaware of the consequences of his deliberate actions. He being a police officer, was supposed to act in a manner to create an impression of his being guard against an offence but the material available reflects that applicant/accused, in violation of law kept the detenu in illegal custody at private place though he was under legal obligation to act strictly in accordance with law which prima facie proves that applicant acted contrary to law hence committed offence of malfeasance by detaining the private person in his custody. Not only this but per record the applicant subsequently caused serious deterrence in the legal duty of Magistrate, by making direct firing and snatched the custody of detenu from the custody of Magistrate hence the manner of these all offences is sufficient to hold that prima facie applicant is guilty of committing serious offence of Terrorism.
Needless to add here that the police officer (s) are always supposed to act in aid of innocence as the powers, jurisdiction and authority, vested in them is never meant to exploit the same but they have been entrusted the sacred duty of creating a sense of security and peace among the individual while creating a sense of terror and fear among the criminals hence if the police officer
(s) will fall in such like of actions/offences then there would remain no concept of "Society" hence actions of the police official(s) are not to be seen in the manner as that of other(s).
9(sic). Regarding the contention of counsel that the applicant was allegedly armed with official therefore case of 13-D was not registered thereby in absence of registration of such a separate case of 13-D the main case cannot be tried by the special court. This contention seems to be carrying no weight at all as the Law does not make it a mandatory requirement that in absence of registration of off-shoot case under section 13-D the main case cannot be tried by the Court of ATA.
10. Keeping in view the facts and circumstances of the present case and binding effect of dicta lays down by honourable Supreme Court, we are of the considered view that the applicant has failed to make out a case where interference of this court is required. The applicant even failed to point out any illegality in the orders, impugned which are, otherwise, legal, well justified and maintainable under the law.
11. Accordingly all three applications are hereby dismissed being devoid of substance.