ROOH-UL-AMIN KHAN .J. Shafiq, petitioner herein, through the instant constitutional petition under Article-199 of the Constitution of Islamic Republic of Pakistan, 1973, has called in question the order dated 13.10.2016 rendered by the learned Judge Anti Terrorism Court-I, Peshawar, whereby the application filed by the petitioner under section 23 of the Anti Terrorism Act, 1997 for transfer of the case for trial to the Ordinary Court/Sessions Court, was dismissed.
2. As per prosecution case, on receipt of secret information regarding transportation of huge quantity of arms, ammunition and explosive substances, the local police made nakabandi at Achini Khwar, where a person having a sack on his shoulder arrived, who was apprehended on pointation of the informer. The search of the sack led to the recovery of two kalashnikoves, magazines containing 60 live rounds of 7.62 bore and explosive material weighing 3656 grams. The accused disclosed his name to be Shafiq s/o Habib Ur Rehman. Hence the FIR No. 113 dated 14.12.2015 under section 7 Anti Terrorism Act, 1997 read with section 15 Arms Act and 5 Explosive Substances Act, was registered against him at Police Station CTD, Peshawar.
3. On completion of the investigation, complete challan was put before the Court for trial of accused, where formal charge was framed against the petitioner, to which he pleaded not guilty and claimed trial. During trial, the petitioner submitted an application under section 23 of the Anti Terrorism Act, 1997 for transfer of his case to the Court of Sessions for trial, on the ground that mere recovery of explosive substance material without being used, does not attract the item IV of 3rd schedule of Anti Terrorism Act, 1997. The learned trial Court, on hearing learned counsel for the parties, dismissed the application vide order dated 13.10.2016, hence this petition.
4. Learned counsel for petitioner vividly argued that mere recovery of explosive substance, being not used by the petitioner for explosion would not fall within the ambit of 3rd schedule of Anti Terrorism Act 1997 under which the essential ingredient is use of fire arm or explosive through any device including bomb blast in Masjid, Imam Bargah, Church, Temple or any other place of worship where any hurt or damage is caused thereby or not. While buttering his arguments, he placed reliance on judgements of this court rendered by Divisional bench in Cr.M 560-P of 2015 whereby the conviction and sentence awarded by Anti Terrorism Court was set aside and case was remanded to ordinary court/Sessions Judge for trial denovo on the ground that mere possession of explosive substance without use at any religious place of worship or court premises does not fall in the ambit of third schedule annexed hereto Anti Terror ism Act 1997. He also relied upon the two other judgements rendered by this court in Criminal Appeal No. 66-P/2016 and 262-P/2016, by placing reliance on the judgement passed in W.P No. 560/2015.
5. We have given anxious consideration to arguments of learned counsel for petitioner and read the record with his valuable assistance according to which, not only Kalashankovs with 60 live rounds of 7.62 bore were recovered from petitioner, but the sack carried by him also led to recovery of explosive substance, weighing 3656 grams. The very object to promulgate Anti Terrorism Act, 1997 is to control the terrorism, sectarian violence and other heinous offences defined in section 6 of the Act and its speedy trial by the Special Court constituted under section 13 of the Act ibid. Anti Terrorism Courts established under the abovementioned provision of Anti Terrorism Act 1997 are vested with jurisdiction to try the offence falling in the ambit of schedule annexed therewith and has nexus with section 6, 7 and 8 of the said Act. The question of jurisdiction of the Special Court has to be considered with reference not only to the offence mentioned in the schedule, but allegation contained in the FIR coupled with provision of section 6, 7 and 8 shall also be taken into account. When an offence committed by a person falld within the definition of terrorism as envisaged in section 6 of the Anti Terrorism Act 1997, it would be triable by Anti Terrorism Court. To better appreciate the provision and theme of section 6, it would be apt to reproduce its transcription, which reads as below. "involves use of explosive by any device including bomb blast or having any explosive substance without any lawful justification or having been unlawfully concerned with such explosive."
A glance over the above quoted section manifestly suggests that where an accused is found in possession of huge quantity of explosive substance, without any legal justification, his act must fall within the meaning of section 6 (2) (ee) of the Act ibid because it creates serious risk to the safety of the public or a section of the public and creates a distress and panic in the masses.
6. Section 6 (1) determines and defines the meaning of terrorism, whereas section 6 (2) enumerates those actions which fall within the meaning of terrorism as defined in section 6 (1). Clause (ee) of section 6 (2) gives a description of actions falling within the meaning of sub section (1) of section 6, if it involves use of explosive by any device, including bomb blast or having any explosive substance without any lawful justification or having been unlawfully concerned with such explosive. It would not be out of context to mention here that clause (ee) was added to section 6 (2) through amendment Act-II of 2005 which was further amended in year 2013 by adding the phrase of "possession of explosive substances without any lawful justification". In view of the above, possession of explosive substance without any legal justification would amount to an act of terrorism and thus would be triable by Anti Terrorism Court.
7. Section 13 of the Act empowers the Anti Terrorism Court to try a person under the Act. The relevant portion of the quoted section is reproduced which reads as under:- "13. Establishment of Anti Terrorism Cour t. (1) For the purpose of providing for the speedy trial of the cases under this Act, and of scheduled offences , the Federal Government, or if so directed by the Government the Provincial Government may establish by notification one or more Anti Terrorism Courts in relation to each territorial area as specified by the High Court concerned." (Underline and bold provided for emphasis)
8. It is palpable from the supra section of law that the court has to take cognizance of the offence falling under the provision of Anti Terrorism Act and offences mentioned in schedule attached thereto . The word "under this Act" is of much significance and paramount importance showing the intention of legislature, which has specifically inserted in section 13 and substituted for the word "referred to in sub section 2 and 3 of section 39-A" by the amendment Act No. XX of 2013, dated 26.3.2013, for the purpose that the Anti Terrorism Court besides schedule offences, shall also be empowered to try of fences of terrorism defined under section 6 of the Anti Terrorism Act.
9. The arguments of learned counsel for petitioner that mere possession of explosive substance without use in religious or worship places does not fall within the ambit of third schedule attached to Anti Terrorism Act, is misconceived, shallow and tedious for the reason that section 6 (2) (ee) of the Act ibid, in unequivocal terms described that unlawful possession of an explosive substance or abetment for such an offence under the Explosive Substance Act, 1908, would be an act of terrorism, which is triable by the Anti Terrorism Court being empowered under the Amendment Act, 2013.
In the cited judgement, there seems an unintentional omission resulting into failure to notice the insertion of the referred to amendment in section 6 (2) (ee) and section 13 of the Anti-Terrorism Act 1997. The Amendment Act- XX of 2013 has not been taken into consideration. In our view, proper assistance has not been rendered by counsel for the parties which resulted into omission and non-mentioning of the law which contemplates that unlawful possession of explosive substance/material or its abetment falls in the ambit of terrorism.
10. In view of the above, this petition being without any substance stands dismissed in limine.
11. Before parting with the judgment we deem it appropriate to observe here that judgement of this court, rendered in criminal appeal No.560-P 2015 has given vide circulation amongst the learned judges of Anti Terrorism Courts, Khyber Pakhtunkhwa, for further guidance viz not to entertain cases pertaining to possession of explosive and to transfer it to ordinary court. In view of our findings in the instant petition, it is necessitated that the Additional Registrar (Judicial) after bringing it into the notice of Honourable the Chief Justice, shall circulate the copy of this judgment amongst all the learned judges of Anti Terrorism Courts, Khyber Pakhtunkhwa, for necessary information.