' MOHAMMED KARIM KHAN AGHA, J.--By this order, we propose to dispose of the above criminal revision application filed under Sections 526 and 561-A, Cr.P.0 on behalf of the appellants (Mohammed Rashid @ Master and Zahid Abbas @ Zaidi) challenging therein the order dated 25.02.2015 passed by the learned Anti-Terrorism Court (ATC) No,III, Karachi, in Special Case No,341(III)/2014, whereby the applications under section 23 of Anti-Terrorism Act 1997 (ATA) of the appellants were dismissed (the impugned order).
2. The facts of the case as disclosed in FIR No,198/2013, under section 302/109/34 P.P.C. Read with Section 7 ATA registered at Police Station Gizri, lodged by the complainant SHO Sohail Ahmed Khan alleging therein that on 18.5.2013 at about 2205 hours he along with his subordinate staff were busy in patrolling when he received information on emergency 15 pursuant to which he reached behind the street of Gizri Avenue situated at Jam Sadiq bungalow where he came to know that in Bungalow No,16J/1, 9th Gizri Street Phase-4, DHA, Karachi two unknown accused persons made firing upon Mst. Zehra Shahid Hussain who was injured and was taken by ambulance to National Medical Centre Kala Pull for treatment where she later succumbed to her injuries. It is further stated that the SHO asked about lodging of the FIR from the relatives of the deceased but they did not give any response thereto, therefore, the FIR was registered and the SHO was made the complainant in this FIR.
3. It was further stated in the FIR that on 18.5.2013 Mst. Zehra Shahid Hussain while returning hothe from Defence Club Phase II DHA Karachi in car bearing registration No,AEHJ-212 Suzuki Cultus, driven by driver Ghulam Rasool at about 2205 hours, when she arrived at home being bungalow No,16-J/ I, 9th Gizri Street, Phase-IV, DHA, Karachi she was entering into the bungalow when two young accused persons riding on motorcycle, wearing black shirt (Kameez) came there. One of them remained on the motorcycle whereas the second accused aged about 20/22 years duly armed with pistol entered into the bungalow and aimed his pistol at deceased Mst. Zehra Shahid Hussain, when she was standing at carporch of said bungalow. On seeing the pistol she attempted to hand over her purse to the accused but the accused pushed away her purse and started firing upon hcr and as a result thereof she received two bullet injuries under her chin and shoulder.
Thereafter both accused persons fled away from the spot on their motorcycle while making firing in order to spread fear, harassm ent and terror, hence they have committed offence punishable under section 302/34, P.P.C. Read with Section 7 ATA.
4. The appellants were charged with the above offense and are facing trial before the ATC.
5. It was inter alia contended in the criminal revision application that the impugned order is based on false presumptions, conjectures and surmises which do not have sustainability on the important question of facts and law and has therefore no legal effect. Learned counsel submitted that an order must lay out reasons in consonance with Section 24-A General Clauses Act, 1897 as even public functionaries are bound to decide the case after application of mind with cogent reasons and in line with legal justification which is missing in the instant case hence it cannot be treated as speaking order and should he set aside.
6. He next argued that under the circumstances dismissal of the application under section 23 of ATA 1997 was unlawful as the ingredients of sections 6, 7 and 8 of ATA, 1997 were missing in the instant case. He further argued that where similar offences of a much more heinous nature than the instant one took place within the boundary walls of a complainant's house the case was transferred by the Anti-Terrorism Court to the court of ordinary jurisdiction and the High Court did not interfere with such order of transfer and that it had been held by the superior courts that the heinousness of the offence did not mean that the same is qualified to be a terrorist act within the contemplation of sections 6, 7 and 8 of Anti-Terrorism Act. 1997 or have any nexus with the schedule thereto especially when the act had not occurred at a public place. He submitted that whether a particular act is terrorism or not, the motivation, object, design or purpose behind the said act is to be seen and in absence of such proof from the prosecution it precluded the offence from falling within the ambit of section 6 of Anti-Terrorism Act.
1997.
7. In support of his contentions he placed reliance on Bashir Ahmed v. Mohammed Siddique (PLD 2009 SC 11).
8. For all the above reasons he contended that the impugned order should be set aside and the case of he appellants be transferred from the ATC to the ordinary criminal courts having jurisdiction in murder cases for trial.
9. Learned A.P.G. Appearing on behalf of the State supported the impugned order while submitting that the learned trial court has not committed any irregularity and in-competency in deciding the application under section 23 of the ATA, 1997, which is a well reasoned order and that based on the facts and circumstances of the case the ATA was fully attracted and as such the criminal revision application should be dismissed.
10. We have perused the record, considered the submissions of the learned counsel for the parties, the relevant law and the authorities cited by them at the bar.
11. Turning to the first issue namely whether the impugned order complies with Section 24(A) of the General Clauses Act 1897. Having carefully reviewed the order we are of the view that it is a detailed. Well-reasoned and fully speaking order which shows that there has been an application of judicial mind before passing the same and as such this contention is rejected.
12. In our view however the main issue before us is whether based on the facts of the incident and nature of the offense the offense was one which fell within the ambit of the ATA and thus could be tried by an ATC as opposed to an ordinary criminal court.
13. It is apparent from the definition of terrorism in Section 6 ATA that a case of murder does not automatically become an act of terrorism under the ATA. In addition to the murder the other ingredients which form a part of Section 6 also need to be satisfied based on the facts and circumstances of each case. Such additional ingredients include whether the act was designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or a foreign government or population or an international organization or create a sense of fear or insecurity in society along with the necessary intent.
14. In this respect reliance is placed on the case of Bashir Ahmed v. Muhammed Siddique (PLD 2009 SC 11) where at P.14 Para 6 onwards it was held as under: ' Para 6. In order to determine as to whether an offence would fall within the ambit of section 6 of the Anti-Terrorism Act, 1997, it would be essential to have a glance over the allegations made in the F.I.R. Record of the case and surrounding circumstances. It is also necessary to examine that the ingredients of alleged offence have any nexus with the object of the case as contemplated under sections 6, 7 and 8 thereof. Whether a particular act is an act of terrorism or not, the motivation, object, design or purpose behind the said act is to be seen. It is also to be seen as to whether the said act has created a sense of fear and insecurity in the public or any section of the public or community or in any sect. Examining the case in hand on the above touchstone, it is manifest on the face of it that the alleged offence took place 'because of previous enmity and private vendetta.
A perusal of the record would reveal, that occurrence has taken place in front of the 'haveli' of the respondents, situated in village 'Fatoowala'. The motive for the occurrence is enmity inter-se the parties on account of some previous murders. In this view of the matter, we are of the opinion that since motive was enmity inter-se the parties, the application of section 7 of the Act; which primarily requires the spread of sense of insecurity and fear in the common mind is lacking in the present case. The occurrence neither reflects any act of terrorism nor it was a sectarian matter instead the murders in question were committed owing to previous enmity between the two groups. The present case, as observed above, does not fulfill the requirements laid down in the judgment titled as "Basharat Ali v. Special Judge Anti-terrorism Court-II, Gujranwala PLD 2004 Lah. 199), wherein it was held that fear or insecurity must not be a by-product, fall out or unintended consequence of a private crime. As such, creation of fear and insecurity in the society is not itself terrorism unless the same is coupled with the motive. The gist of the citation is that act of terrorism desires to be determined from the yardstick and scale of motive and object, instead of its result or after effect.
From the facts of case, the definition of terrorism is not attracted as the said offence has neither created any threat to coerce or intimidate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society. Reference in this regard can be made on Ch. Bashir Ahmed v. Naveed lqbal and 7 others (PLD 2001 SC 521), Muhammad Mushtaq v. Muhammad Ashiq and others (PLD 2002 SC 841) and Basharat Ali v.
Special Judge, Anti-Terrorism Court-II, Gujranwala (PLD 2004 Lah. 199).
15. In the most recent ruling of the Hon'ble Supreme Court on the question of intent and mens rea in ATA cases it was held as under in the case of Shahbaz Khan v. Special Judge Anti Terrorism Court Lahore (PLD 2016 SC 1) at. P.6.
"7. It is clear from a textual reading of Section '6 of ATA that an action categorized in subsection (2) thereof constitutes the offence of terrorism when according to Section 6(1)(b) ibid it is "designed" to, inter alia, intimidate or overawe the public or to create a sense of fear or insecurity in society.
Therefore, the three ingredients of the offence of terrorism under Section 6(1)(a) and (b) of ATA are firstly, taking of action specified in Section 6(2) of ATA; secondly, that action is committed with design, intention and mens rea; and thirdly, it has the impact of causing intimidation, awe, fear and insecurity in the public or society.
16. In dealing specifically with the question of mens rea the Hon'ble Supreme Court at P.9 found as under: "11. Primarily, the rule laid down in Bashir Ahmed's case ibid requiring the ascertainment of the design, intention and mens rea of an act for establishing the jurisdiction of a learned ATC rests on dicta given Mehran Ali's case ibid. However, Bashir Ahmed's case ibid does not consider the ways and means by which the design, intention or inens rea, for an act of terrorism, requiring in essence the proof of an assailant's state of mind, should be ascertained by a Court of law. Whether the Court should mechanically consider the motive alleged by a complainant in the FIR to be decisive or should it also scrutinize other aspects of an occurrence to assess if the culprits had any design, intention or mens rea to commit a terrorist act?
12. In most cases, the nature of the offences, the manner of their commission and the surrounding circumstances demonstrate the motive given in the FIR. However, that is not always the case. When offences are committed by persons with impunity disregarding the consequence or impact of their overt action, the private motive or enmity disclosed in the FIR cannot be presumed to capture their true intent and purpose. In such eases, it is plain that action taken and offences committed are not instigated "solely" by the private motive alleged in the FIR. It is settled law that intention, motive or mens rea refer to the state of mind of an offender. It is equally well established that a state of mind cannot be proven by positive evidence or by direct proof. The intention of an accused for committing an offence is to be gathered from his overt acts and expression. It has been held in the case of State v. Ataullah Khan Mangal (PLD 1967 SC 78) that an accused person "must be deemed to have intended the natural and inevitable consequences of his action." Thus apart from the overt acts of the accused, the injuries caused by him or consequences ensuing from his actions, and the surrounding circumstances of the case are all relevant to ascertain the design, intention or mens rea that instigated the offences committed. These principles are enunciated in Zahid Imran v. The State (PLD 2006 SC 109) and Pehlwan v. Crown (1969 SCMR 641). Intention is presumed when the nature of the act committed and the circumstances in which it is committed are reasonably susceptible to one interpretation. In such event, the rule of evidence that the natural and inevitable consequences of a person's act are deemed to have been intended by him is applicable: Jane Alam v. The State (PLD 1965 SC 640). In Muhammad Mushtaq v. The State (PLD 2002 SC 841) the inevitable consequence of an act was considered as its design.................
13. When wanton overt acts committed by an accused lead to horrendous consequences then the motive given in the FIR merely indicates the background. The presumption that the natural and inevitable consequences of the acts of an accused are deemed to be intended, provides a reliable touchstone for gathering the design, intention or mens rea of an assailant in the context of Section 6(1)(b) of ATA. (bold added)
17. Thus, as a can be seen from the latest judgment of the Hon'ble Supreme Court it is not necessarily the brutality or scale of the crime which elevates it to fall within the purview of the ATA but to an extent the intention behind the act which can be inferred from the particular facts and circumstances of each case and may even include personal disputes and enmities which escalate to such an extent that the act can be inferred as per para 6(b) ATA as being designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or a foreign government or population or an international organization or create a sense of fear or insecurity in society; or as per Section 6(c) is made for the purpose of advancing a religious, sectarian or ethic cause or intimidating and terrorizing the public, social sectors, media persons, business community or attacking the civilians including damaging property by ransacking, looting, arson or by any other means, government officials, installations, security forces or law enforcement agencies.
18. In our view therefore based on the latest Supreme Court authority it is still the intent/mens rea, although perhaps wider/more liberal in interpretation, behind the act which can be inferred from the facts and circumstances of the particular case which is one of the many factors for determining whether or not a case of murder is an ordinary case of murder to be tried by the ordinary criminal courts or a case of murder which would amount to terrorism and which would come within the ambit of the ATA.
19. The main thrust of the appellant's case is that the attack took place at night, only one lady was killed in an isolated place and that no member of the public was present and as such it could not have spread any insecurity in the minds of the public especially as it concerned only one lady and only two or three bullets were fired. It was a simple case of murder which should be tried under the ordinary law
20. In this case it does not seem to be disputed by either party that Ms. Zehra Shahid Hussain was murdered. The dispute lies over which Court has jurisdiction to proceed with the trial. Namely the ATC or the ordinary criminal courts.
21. The fact that Ms. Zehra Shahid Hussain was murdered would bring the case within Section 6(2)
(a) ATA since it was an act which caused death. The question then arises whether the act was designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or a foreign government or population or an international organization or create a sense of fear or insecurity in society along with the necessary intent.
22. Now if we look to the facts of the present case the deceased Ms. Zehra Shahid Hussain, it appears reached at her home from Defence Club at night when suddenly two accused persons came there, one was on his motorcycle while the other armed with a pistol did not demand anything from the deceased despite the fact that she attempted to hand over her purse to him but the accused pushed away her purse and then started firing upon her with the sole intention to kill her.
23. The facts indicate that it was not a case of robbery but a case of cold bloodied murder. Prima facie it would therefore appear that the case ought to be heard by the ordinary criminal courts as opposed to the ATC.
24. However, we are required to look into all the facts and circumstances of the case in order to reach our conclusion on jurisdiction. In this case it appears that Ms. Zehra Shahid Hussain was an active senior leader of a major political party and that she was murdered shortly after the 2013 general elections but just prior to the much disputed re-election to be held in NA 250 Karachi which she was campaigning for on behalf of her political party and which was being fiercely contested by the other political parties in Karachi. Under these circumstances since there was no attempt of robbery and no material to suggest that she had any particular enmity with any one the only reasonable inference for her murder was to frighten potential voters away from voting for the candidate of the political party which she was campaigning for in the up-coming re election for NA 250 and thereby give advantage to another political party.
25. As has rightly been observed in the impugned order it is le4s relevant that the act did not take place in public because of today's prompt and vigorous media coverage(both print and electronic) of such events. Her murder was highlighted on both the electronic and print media immediately after its occurrence and shortly before the re-election to NA 250. Thus under these circumstances her murder in our view would have achieved its purpose of spreading fear in potential voters of the party which she was campaigning for in the NA 250 re-election and other supporters of the party which she was campaigning for who wanted to speak out against other political parties who were contesting the NA 250 re-election. Reliance in this respect is placed on the case of Najam Un Nisa v. Judge Special Court Constituted under Anti Terrorism Act 1997 (2003 SCMR 1323) which held as under on P.1324.
"3. The venue of the commission of a crime; the time of occurrence, the motive which had led to the commission of a crime and the fact whether the said crime had or had not been witnessed by the public at large are not the only factors determining the issue whether a case did or did not fall within the parameters of the ATA of 1997. The crucial question is whether the said crime had or had not the effect of striking terror or creating a sense of fear and insecurity in the people or any section of the people. Needless to mention here that a crime of the kind in hand committed even in a remote corner does not remain unnoticed in the area in which is committed or even in the country on account of the print and electronic media. Seven persons being butchered in a house at night is not the kind of occurrence which would not create terror and horror in the people or any section of the people." (bold added)
26. Based on these facts and circumstances as narrated above we are of the view that the only reasonable inference is that the deceased was killed because she was a senior activist of a major political party and her murder was intended to spread fear amongst other members/potential voters of that political party shortly before the NA 250 re-election and would have done so and as such the offense of murder in this case does fall within the ambit of Section 6 ATA as the other ingredients of that section have also been met.
20. As such the impugned order is up held and Criminal Revision Application No, 61 of 2015 is dismissed