NISAR HUSSAIN KHAN, J.-Petitioner Ahmad Ali by way of instant petition seeks declaration to the effect that criminal proceedings pending before the Anti-T errorism Court, Peshawar in FIR No.1609 dated 20.12.2015 of Police Station Pishtakhara are without jurisdiction, without lawful authority and of no legal ef fect.
2. Learned counsel for petitioner vehemently contended that it was a simple murder case committed in a room of secluded house, not in a public place. He argued that on tentative assessment of the record, no element of terrorism is made out. By elaborating his argument, he submitted that by virtue of Section 6(1) (b) and (2) of the Act, a defining clause of terrorism, there must be an element of coercion, intimidation or overawe the government or public or any community . Whereas in the instant case there was no design to commit the offence in such a manner which may attract the definition of terrorism as provided in Section 6(1)(2) of the Act, hence Anti-Terrorism Court has no jurisdiction to proceed with the trial of the case. Rather was legally obliged to transfer the case to the court of ordinary jurisdiction in pursuance of Section 23 of the ATA, 1997. To reinforce his argument, he placed reliance on Khuda-e- Noor Vs The State ( PLD 2016 - Supreme Court - 195) and Umar Farooque & 2 others Vs. Judge Anti-Terrorism Court, Mirpur Khass and another ( 2014 P.Cr.L.J -1052).
3. We have considered the submissions made at the bar in the light of record appended with the petition.
4. To determine as to whether a particular case is triable by Anti-Terrorism Court or a court of ordinary jurisdiction, the court has to tentatively examine the record comprising FIR, investigation report and final report submitted under Section 173 Cr.P.C. Section 19(14) of the ATA, provides procedure of trial by the Anti-Terrorism Court as a court of Sessions. Chapter- XXII-A of the Criminal Procedure Code provides procedure of trial before the Sessions Court. If on perusal of the police report or complaint and all other documents and statements filed by the prosecution, the court is of the opinion that there is a ground for proceeding with the trial of the accused, it is to frame charge u/s 265-D Cr.P.C., against the accused. After providing copies of the prosecution evidence in terms of Section 265(c) Cr.P.C. framing of charge is the first major step towards the trial, taken by the court. At the time of assumption of jurisdiction and framing of charge, the learned Anti-T errorism Court had examined the record, including the FIR and other documents annexed therewith in support of allegations, collected during the investigation. The contents of the FIR narrate that complainant submitted an application to the SHO of the Police Station concerned that his son Salman Shehzad, aged 30 years, who is Doctor in Children Hospital, Danish Abad, Peshawar , had left house on preceding afternoon after Asr prayer , informing the inmates that he is going to attend the feast arranged by Dr. Ahmad Ali at Phase-IV , Hayatabad, Peshawar . On the date of report, Aizazullah, brother of complainant, received a call from Cell Phone of his son Salman Shehzad. The man calling from the phone said that Dr.Salman Shehzad is in their custody and demanded ransom of Rs.10 Millions with a warning not to disclose the fact to anyone, failing which, he threatened of dire consequences and switched off the phon e. The complainant provided the Cell Phone No. of his missing son and stated that he has not returned till filing of application and requested for legal action for abduction of his son for ransom. On this application FIR No.1609 was registered under section 365-A PPC on 20.12.2015. Accused Ahmad Ali was arrested and on 21.12.2015.Th e dead body of Dr.Salman Shehzad abductee was recovered on his pointation on the same day from the field of Bahram Kalay , falling within the jurisd iction of Police Station Risalpur , buried by the accused in the ground, wrapped in a blanket. Confessional statement of Ahmad Ali accused was recorded by the Judicial Magistrate-V , Peshawar , on 29.12.2015 wherein he disclosed the whole story that how he and Dr. Haseeb Anwar S/O Tariq Anwar , co-accused planned the abduction of deceased for ransom, for earning money . Pursuant to their plan, deceased was kidnapped and ransom was demanded but on fear of disclosure of their identification, he was killed and later on his dead body was recovered on the pointation of petitioner . After completion of investigation, challan was submitted before the Anti-T errorism Court, who after examining the record, framed charge under 7 heads on 30.6.2016.
5. Whether with the given facts, case was triable by the Anti-T errorism Court, is to be resolved in the light of the provisions of the Anti-T errorism Act, 1997 and Code of Criminal Procedure, 1898. Section 2 of the Act defines different words and phrases used in the Act. Sub Clause (n) of Section 2 defines kidnapping for ransom which for ready reference is reproduced as follows :- "2. Definitions. In this Act, unless there is anything repugnant in the subject or context; (a). to (m). xxxxxxxxxxxxx (n). "Kidnapping for ransom" means the action of conveying any person from any place without his consent, or by force compelling or by any deceitful means inducing him, to go from any place, and unlawfully detaining him and demanding or attempting to demand, money, pecuniary or other benefit from him or from another person, as a condition of his release."
Similarly , "Scheduled Of fence" has also been defined in sub clause (t) of Section 2 of the Act which is to the ef fect:- "(t). "Scheduled Of fence" means an of fence as set out in the Third Schedule;"
6. Whereas definitions of "terrorism" or "act of terrorism" is provided in Sub Clause (x) of section 2 of the Act. The object of providing definitions of these three terms is to highlight that each and every expression has distinctly been assigned its corresponding definition and would therefore, have different connota tion and bearing on the fate of each case. No doubt Section 6(1)(b) of the Act speaks that terrorism means use or threat if designed to coerce and intimidate or overawe the government or the public or any section of the public or community or sect or foreign government or population or international organization or creating a sense of insecurity in a society . Nevertheless in sub Section 2 of Section 6, it has correspondingly provided the offences which come within the ambit of terrorism.
Kidnapping for ransom is distinctly provid ed in section 6(2)(e) of the Act. Likewise jurisdiction to the ATC is vested under Section 12 of the Act if schedule d offence is committed in the area falling in its territorial jurisdiction.
Abduction or kidnapping for ransom is a scheduled offence, as provided in Item-4(i) of Third Schedule as defined in 2(t) of the Act. It would be apt to reproduce text of item-4 of third schedule which runs as follows:-
4. Without prejudice to the generality of the above paragraph, the Anti-terrorism Court to the exclusion of any other Court shall try the of fences relating to the following, namely:-
(i) Abduction or kidnapping for ransom;
(ii) use of fire-arms or explosives by any device, including bomb blast in a mosque, imambargah, church, temple or any other place of worship, whether or not any hut or damage is caused thereby; or
(iii) firing or use of explosives by any device, including bomb blast in the Court premises.
As is evident from the referred item of third schedule that offence of abduction or kidnapping for ransom is exclusively triable by Anti-T errorism Court. On tentative assessment of the record, as referred herein above, the learned Anti-T errorism Court has rightly assumed the jurisdiction and framed charge against petitioner .
7. Section 23 comes into play when court, after taking cognizance of an offence, is of the opinion that offence is not a scheduled offence, it may transfer the case for trial of offence by a court of ordinary jurisdiction under the Code.
By virtue of ibid section, discretion has been vested in Anti-T errorism Court, to transfer the case to court of ordinary jurisdiction, if it is of opinion that allegation in FIR and material collected by investigation agency do not constitute a scheduled of fence.
8. It is settled law that the charge is framed on tentative assessment of the record and examination of the prosecution evidence, whereafter prosecution is asked to prove its case at the trial. It is always open for the accused to put up any defence available to him and make out a case according to his version. Whereas the court at the final stage is to appreciate the evidence and decide the innocence or guilt of the accused or the accused is liable to conviction, for another offence, in light of evidence. To cope with such situation, Section 21-M(2) of the Act has specifically been inserted which for convenience is reproduced as follows :- "21-M(2). Joint Trial.- (1).xxxxxxxxx (2)If, in the course of any trial under this Act of any offence it is found that the accused person has committed any other offence under this Act or any other law for the time being in force, the Court may convict an accused for such other offence and pass any sentence authorized by this Act or, as the case may be, such other law, for the punishment thereof."
9. Perusal of quoted clause, clearly suggests that if during the course of trial, it is proved that accused has committed any other offence under this Act or under any other law for the time being in force, other than Anti- Terrorism Act, the court may convict the accused for such offence and pass sentence accordingly . Phrase "other law" is of great significance, which is sufficient enough to alley the apprehension of an accused, by virtue of which Legislature has clearly drawn a line of demarcation that if the accused is not found guilty of an offence, provided under the Anti-T errorism Act, rather has been found guilty of some other offence, provided in any other law, he may be convicted for that offence, The provision of Section 21-M(2) of the Act seems pari-materia to section 237 of the Code of Criminal Procedure, 1898, which also copes with the similar situation; that when accused is charged for a particular offence and during the trial it is found that he has committed a different offence, he may be convicted therefor . Though the Legislature has provided the procedure for alternate conviction, when the case does not fall within the definition of terrorism, neverthe less on account of some misconception, every now and then, applications are filed by invoking Section 23 of the Act for transfer of cases to the court of ordinary jurisdiction.
10. It appears that, it is presumed, that when the case is tried by the Anti-T errorism Court, accused is to be convicted under the Act and there is no room for any other penal law to be applied. This practice has practically impinged the very object of Anti-T errorism Act, reflected in its preamble. The Anti-T errorism Courts are established for speedy trial of crimes of terrorism. We have noticed that by invocation of provision of 23 of the Anti-T errorism Act, 1997 at the very inception, cases are more delayed than case of ordinary trial, in a way that after acceptance or dismissal of application by the Anti-T errorism Court, Constitutional jurisdiction of the High Court is invoked and then appeals are preferred before the august Supreme Court, which consume years and thereafter , case is put to trial.
11. We are of the considered view that this practice requires to be discontinued. The apprehension has been allayed by virtue of section 21-M(2) of the Anti-T errorism Act, 1997. The Anti-T errorism Court, when, for lack of sufficient and confidence inspiring evidence, may acquit the accused, it may also have recourse to alternate conviction under any other law, including Pakistan Penal Code, if the case of terrorism is not proved. The accused is at liberty to agitate, on conclusion of trial that his case, in view of the evidence led by the prosecution, does not fall within the ambit of terrorism, as provid ed under the Act. This would be a safe and proper course to be followed, instead of launching pre-trial proceedings of pressing into service of Section 23 of the Act and then the matter be taken to the Apex Court, on an interlocu tory matter , pending trial of the main case, which practically causes an inordinate delay in trial of the case, which in normal course is not caused in the courts of ordinary jurisdiction.
There are offences like abduction for ransom which are specifically made part of schedule three, exclusively triable by Anti-T errorism Court. There are other offences including murder , which in normal course, are triable by court of ordinary jurisdiction. However , if the offence of murder and others offences cause terror and fear in general public and thereby attract the definition of section-6 (1)(b) of ATA, it would be triable by the Anti-T errorism Court. In latter , category , however , if it becomes a moot point, it can only be determined after recording evidence by ATC, that whether an offence of terrorism is made out or otherwise. In any case there would be no need of fresh trial. Rather ATC would be guided by Section-21-M (2) of ATC, 1997. The controversy may be expounded and simplified by a contra proposition that; whether the Anti-T errorism Court, on assuming jurisdiction, frames charge under provisions of Anti Terrorism Act and records evidence but on conclusion of trial, it finds that though accused has committed offence but under general law, not under Anti-T errorism Act, would it straightaway acquit him or send the case, at that stage, to court of ordinary jurisdiction for de novo trial? The answer , in my humble view is emphatic no. The court shall proceed to decide the case itself and follow the guidance provided in section-21-M(2) of Act.
12. The object of enactment of Anti-T errorism Act, as reflected in the Preamble, is speedy trial of heinous crimes, to curb the menace of terrorism. To achieve that object, it is stipulated in section 19(7) of the Anti-T errorism Act that the court shall, on taking cognizance of a case, proceed with the trial, day to day and shall decide it within seven days. The appeal against judgment of Anti Terrorism Court is to be decided within seven days. But the very object and scheme of Act is being defeated by unnecessary invocation of provision of section 23 of the Act, which requires to be addressed. This would have never been intention of the Legislature of insertion of Section 23 in the Act, which is being used or misused, for delay of trial. The mis-conception and consequential unnecessary invocation of section-23 of Act at the pre-trial stage, has some how shattered the confidence of general public in judicial system, particularly with regard to cases of terrorism.
13. So far as case of Khuda-e-Noor Vs The State ( PLD 2016 Supreme Court - 195) is concerned, it proceeds on altogether different fact. That case was initially tried by the learned sessions Judge Mastung, a court of ordinary jurisdiction, but during the trial, when prosecution improved its case, with some different version of motive, it was transferred to the Anti-T errorism Court. High court also dismissed the revision petition. The august Supreme Court reversed the findings of the High Court as well as of trial court and remanded the case to the court of ordinary jurisdiction. Beside that it was also observed that the offence was nothing but committed in the privacy of home with no design of offence under Section 6(1)(b)) or (c) of the Act. In the instant case there was no personal grouse inter se the parties but the deceased was kidnapped for ransom which is a scheduled offence as per schedule-III referred herein above. Similarly case of Umar Farooque and 2 other Vs. Judge Anti Terrorism Court Mirpur Khas and another ( 2014 P.Cr.L.J- 105) was based on the findings of the august Supreme Court wherein it was held that in case of personal vendetta, provision of ATA are not applicable. Since there were conflicting opinions expressed in different judgments of the august Supreme Court , so the controversy was resolved by constitution of a larger Bench in CP No.2067 of 2010 titled Kashif Ali Vs The Judge Anti-T errorism Court No.II, Lahore and others, decided on 15.2.2016 The august Supreme Court in Para-18 of the judgment has observed as follows :- "18. Before parting with this judgment, we would like to observe that this Court cannot lay down any hard and fast rules while interpreting Section 6 of the Act in order to conclude as to which of the cases is triable by the Anti- Terrorism Court, as in many criminal cases, facts of the case are also one of the factors in determining the jurisdiction of a criminal Court "
14. In view of the principle set out in the report referred herein above, each criminal case is to be tentatively assessed and analysed on its own peculiar facts for the determination as to whether the case is triable by the ATC or court of ordinary jurisdiction. This essentially is a mixed question of law and facts. It would be appropriate that the question be left open for the Anti-T errorism Court to decide, in light of evidence, recorded during trial, as to whether prosecution has succeeded to prove the case of terrorism or of ordinary penal law and should follow the procedure provided in section-21-M(2) of Anti-T errorism Act, 1997. Thus by following the ratio set in Kashif Ali's case, we could not find any merit in the instant petition for interference in the impugned order of the Judge Anti Terrorism Court, Peshawar . Hence instant petition stands dismissed in limine.