YAR MUHAMMAD, J.---This Revision Petition under section 439, Cr.P.C. Read with section 561-A of the same Code has been preferred against the order dated 2-8-2012 passed by Special Judge-II of Anti-Terrorism Court Gilgit whereby the learned Judge has dismissed the private complaint filed by the petitioner against the respondents for offences punishable under section 302/324, P.P.C. Read with sections 6/7, A.T.A., 1997 on two scores i,e, It was not supported by sanction as required by section 132, Cr.P.C. And secondly, was not A falling within the four corners of sections 6/7 of A.T.A.
Which could bring the same within the domain of the Anti-Terrorism Court.
2. Briefly the facts relevant to this petition are that on 11-8-2011 at about 1300 hours some persons gathered in front of United Bank Limited situated at Aliabad, Hunza to get their relief as affectees of Attaabad Lake. The relief amount was to be cashed through WIZ card from the UBL but when the WIZ cards were inserted into ATM, the amount was not cashed resulting in creation of frustration among the afectees gathered there. They gradually started gathering on the road and in the meantime, Muhammad Ilyas SHO Police Station Aliabad came on the spot and tried to get the mob disbursed promising that they will get their right and that he will also talk with the concerned high- ups for resolution of the issue. Meanwhile, respondent-1 along with his gunman and some other police personel also reached on the spot and ordered his police contingents to lathi charge on the people gathered there as the Chief Minister was Likely to visit Hunza on the same day. Respondent- 1 used filthy language against the people ordered for lathi charge and opening fire. Fire was accordingly opened resulting in the death of two persons on the spot and receiving bullet injuries by some other persons. The complainant preferred application to SHO concerned for lodging F.I.R.
But in vain hence, he approached the Hon'ble Chief Judge, Supreme Appellate Court and presented an application for same purpose. On the directives of the apex Court F.I.R. 23/2011 was registered on 12-8-2011 against the respondents Nos.1 and 2 but despite laps of months no challan was filed in the Court against them resultantly, they preferred the instant private complaint in the Court of learned Special Judge Anti-Terrorism Court against the respondents under sections 302/324, P.P.C. Read with sections 6/7 of A.T.A.
3. The learned Special Judge-II of Anti-Terrorism Court, Gilgit after carrying initial enquiry into the genuineness and false of the complaint, took the cognizance and adjourned the complaint to 2-8- 2011 for hearing arguments on the maintainability and framing of the charge. On the given date, the learned Judge dismissed the complaint through his order dated 2-8-2011 which has been made impugned in this Revision Petition.
4. We have heard Malik Haq Nawaz advocate for the petitioner and Mr. Amjad Hussain advocate for the respondents assisted by A.A.-G. At length and have gone through the material available on file.
The learned counsel for the petitioner argued that after carrying preliminary inquiry into the false or correctness of the complaint the trial Court had fixed the complaint on 2-8-2011 for framing of charge but on the adjourned date, dismissed the complaint on technical ground was the result of misconception of law and facts. He argued that due to firing of the respondents precious lives of two innocent persons have been taken but instead of giving justice to the L.Rs of the deceased persons the trial Court taking support from the provisions of section 132, Cr.P.C. Dismissed the complaint, was bad in the eye of law, as such the impugned judgment is liable to be set aside. Mr. Amjad Hussain advocate the learned counsel for the respondents 1 and 2 on the other hand contended that although provisions of section 197, Cr.P.C. Have been declared to be repugnant to the injunctions of Islam by the Supreme Court but section 132, Cr.P.C. Is still intact which also demands sanction from the competent authority for initiation any proceedings against a public servant for an offence allegedly committed by him while discharging his lawful duty. He argued that the fateful incident took place under compelling circumstances because the mob gathered on the road was going to destroy public property in large scale, and the fire was opened to abstain the mob from taking the law in hand. He argued that if the sanction required under section 132, Cr.P.C. Was obtained even then the complaint was not triable by Special Judge, Anti-Terrorism Court because nothing is appearing in the complaint to attract the provisions of section 6 of the A.T.A. He attacked on the maintainability of the Revision Petition with the contention that through the impugned order the complaint has been disposed of as such, an appeal was competent.
5. During the course of arguments the learned counsel of the parties were found unanimous on the point that the Hon'ble Supreme Court has declared the. Provision of section 197, Cr.P.C. Repugnant to the injunction of Islam through Judgment reported in PLD 1992 SC 72, therefore, the discussion on this point was a futile exercise, hence avoided. So far the sanction required under section 132, Cr.P.C. Is concerned, the learned counsel for the respondents argued that no "prosecution against the person for any act purporting to be done under Chapter IX of Cr.P.C. Shall be instituted in any criminal Court, except with the sanction of the Government. The respondents being police officer while acting in good-faith have tried to disburse the mob which was unlawful and with ulterior designs and the fateful incident took place while discharging lawful duty as such they are not liable to face the proceedings because required sanction for their trial has not yet been obtained.
6. Whether the police opened fire-shots at the relevant time on the mob was in good-faith that also under any compelling situation or without any justification, these different versions of the parties need deep consideration and could be determined only by a third authority which is the Court. Mere on the basis of version taken by the police that the firing was opened under compelling situation is not enough to over look the murder of two persons.Such issues are if left unheared, anarchy would prevail in the society thus, justice demands that investigation is required to find out the truth so that no public servant shall dare to act going beyond his authority. The language of sections 197 and 132, Cr.P.C. Is the same. The provisions of section 197 have been declared to be repugnant to the teachings of Islam as such on the basis of same analogy, a public servant is required to face the trial of an offence allegedly has been committed by him not in good faith but malafidely as such he is not allowed to take help from the provisions of section 132, Cr.P.C. This section is a protection against prosecution and has nothing to do with the ingredients of any offence. In order to take benefits of section 132, Cr.P.C., the respondents have to prove that the act complained of was done under circumstances mentioned in the section. They need not to prove that they committed no offence. They must place the materials and circumstances before the Judge justifying that the mob was unlawful and the acts they did were purported to have been done while dispersing the mob.
7. The learned trial Court besides taking help of section 132, Cr.P.C., has also dismissed the complaint on maintainability vide which he was of the opinion that the complaint was not falling within the four corners of section 6 of A.T.A., which could bring the same within the domain of the Anti-Terrorism Court. We have heard the learned counsel of the parties at length but the learned counsel for the petitioner failed to convince us that the act done by the respondents does fall within the ambit of section 6 of the A.T.A. But at the same time we are of the opinion that after reaching to the conclusion that section 6 of the Act was not attracting in the matter due to the reason the complaint was not triable by the special judge, the learned Judge was then required to send the complaint to the Court of ordinary jurisdiction and the Court of ordinary jurisdiction was competent to give finding regarding attraction or non-attraction of provisions of section 132, Cr.P.C.
8. Consequently, we convert the Revision Petition into appeal and partially allowed. Set aside the impugned order dated 2-8-2011 of the learned Special Judge ATC Gilgit with the observation that section 6 of A.T.A does not attract in this matter, hence we direct the Judge of the Special Court to .Transfer the complaint to learned Additional Sessions Judge, Hunza/Nagar for disposal in accordance with law. A copy of this order be dispatched to learned Additional Sessions Judge, Hunza/Nagar for his information and compliance.