' ABDUL HAMEED DOGAR, this application applicant Asif Ali Zardari has called in question order, dated 7-9-1998 of Judge Special Court Anti-Terrorism, Hyderabad and Mirpurkhas Division at Hyderabad. Whereby an application under section 23 of Anti-Terrorism Act, 1997 (hereinafter referred to as "the Act") was rejected.
2. The facts leading to the filing of the above application are that Crime No,70 of 1997 was lodged at Police Station Qasimabad, Hyderabad on 18-9-1997 on the complaint of Muhammad Ramzan to the effect that he was general attorney of his cousin deceased Muhammad Alam Balouch and used to look after his agricultural lands and other business disputes with the applicant and his friends namely, Abdul Latif and others over lands, situated in Deh Kandiari, Jhol, Ararro and Jarryoon, Taluka Tando Allah Yar, District Hyderabad. They had been attacked over the above dispute on 17-71997 and such case was registered at Police Station Maki Shah and the date of hearing of that case was fixed .Before the Bench of this Court at Hyderabad on 18-9-1997. For that purpose the complainant, his cousin Muhammad Alam Balouch, 'nephew. Aamir and relative Allah Wasayo Alamani had .Gone to attend the Court. Muhammad Alam Balouch and Allah Wasayo Alamani boarded into their Land Cruiser, whereas complainant and Aamir sat in their own car.
Land Cruiser was being driven by Muhammad Alam Balouch, whereas the car was being driven by the complainant. In the High Court at. Hyderabad accused Latif Ansari met with them and persons.
Namely, Shakoor and Hafeez Ansari were also standing. Accused Latif Ansari asked the complainant party to withdraw from cases otherwise they would be murdered, upon which deceased Muhammad Alam Balouch replied to them that life and death are in the hands of Almighty Allah and that they are pursuing their cases as of right. The facts of the prosecution case further are that while the complainant party was going back to their homes, they picked Imdad, gunman of D.S.P. Muhammad Yaqoob Alamani from front gate of S.P. Hyderabad's residence. It- was about 11 a.m. When they reached in front of Hadi Nagar, they saw one grey colour Land Cruiser in which co-accused Latif Ansari, Shakoor, Hafeez Ansari and 2/3 other persons boarded and crossed their vehicles and they slowed down their speed. Meanwhile a 125cc motorcycle appeared from front direction, on which 3 persoris were sitting. One of them was the person having beard, who had met them in Court and was armed with Kalashnikov while remaining 2 were armed ,with pistols. All of a sudden they got down from the motorcycle and opened, indiscriminate firing with Kalashnikov and pistol at deceased Muhammad Nam Baiouch and others and then decamped towards Qasiniabad on the same motorcycle. The vehicle of deceased Muhammad Alain Balouch stopped after hitting the footpath. Complainant and P.W. Aamir got down from their vehcile and went and saw Muhammad Alam Balouch had sustained firearm shots on his head, right arm and chest, Allah . Wasayo Alamani had sustained firearm shots on his right shoulder, whereas Imdad had 'received firearm injuries on his chest and stomach. Imdad then and there died, whereas injured Muhammad Alam Balouch and Allah Wasayo were removed to Civil Hospital where , Muhammad Alarm Balouch succumbed to his injuries. Leaving the above two deceased and injured Allah Wasayo Alamani, the complainant went and lodged .The report. With regard to unknown accused persons the complainant had stated that he would identify them if brought before him. According to the complainant the above incident took place at the instigation of accused Latif Ansa', Shakoor, Hafeez Ausari, applicants Ash' Ali Lardari and his father Hakim AI Lardari. The applicant was arrested in this case and was sent up before the Court of learned Judge Special Court Anti-Terrorism, Hyderabad and Mirpurkhas Division at Hyderabad to face trial.
3. We have heard Mr. Azizullah K. Shaikh, the learned counsel on behalf of the applicant and Mr. Muhammad lqbal Raad, Advocate-General, Sindh and Mr. Syed Mamnoon Hassan, Deputy Attorney-General, on behalf of the State at length and have gone through the impugned order and record and proceedings of this case.
4. It is contended by the learned counsel for the applicant that the applicant had challenged the wires of the Act before the Hon'ble Supreme Court through Constitutional Petition No,21 of 1997, which was still pending when the petitioner had filed another Constitutional Petition No,61I of 1998 in this Court at Karachi, challenging the jurisdiction of Anti-Terrorism Court at Hyderabad as the alleged offences did not fall within the scheduled offences. While it was pending, the Hon'ble Supreme Court announced judgment in above mentioned Constitutional petition. On the basis of such judgment, a Division Bench of this Court disposed of the above mentioned Constitutional petition of the applicant and directed him to move transfer application under section 23 of the Act before the trial Court in the first instance. According to him the alleged offences, with which the applicant has been charged, have no nexus with the objects mentioned in sections 6, 7 and 8 of the Act, as such the Special Judge Anti-Terrorism Court Hyderabad and Mirpurkhas Division at Hyderabad has no jurisdiction to try such offence.
5. Mr. Azizullah K. Shaikh next contended that by S.R.O. No,1237(1)/97, dated 13-12-1997 amendments in the Schedule were made and . In sub-paragraph (iii) of paragraph 2(a) the words "if there is more than one victim" were omitted, as such the offence would also not fall within the Schedule, to the Act. According to him, deceased Muhammad. Alam Balouch was at the time of incident posted as Q.S.D. At. Islamabad and was on leave and had gone to attend his private litigation at.
Hyderabad and was not on official duties, as such the provisions of sections 6, 7 and 8 of the Act would not be, attracted and the alleged offence in any case had no nexus with the same. So far P.C. Hussein, gunman of D.S.P. Muhammad Yaqoob Alamani is concerned, he was also not on official duty, but got a lift from deceased Muhammad Alam Balouch in his vehicle, who was leaving for home while the incident occurred, as such his act of killing would 'also not fall within the scheduled offence. The learned counsel lastly submitted that the Hon'ble Supreme Court in the case of Mehran Ali v. Federation of Pakistan reported in PLD 1998 SC 1445, while disposing of the applicant's petition, has observed at the bottom of page 1493 that if a murder is committed solely on account of personal' enmity, such a matter will have no nexus with the above provisions of the Act and would not be triable under the Act. In support of his above contention, he referred to an unreported decision of the Hon'bte Supreme Court in Criminal Petition No,15-K of 1999 in the case of Syed Akhlaq Hussain v. Moinuddin and others and argued that the case of the applicant is on identical footing with that of the above case. The learned counsel further argued that the case against the applicant is attracted: by the schedule to the Suppression of Terrorist Activities Act and Court trying such offences will be having jurisdiction in the matter. He referred to' section 2(a)(ii-a) and (c) of schedule and stated Mai under this schedule it is specifically said that if a murder is committed with Kalashnikov, the offence would fall under the above mentioned provisions.
6. On the other side, the learned Advocate-General, Sindh and the learned Deputy Attorney- General vehemently controverted the above contentions of the applicant's counsel and argued that the alleged offences fall within the, ambit of Schedule to the Act, as such the prayer of the applicant is untenable. He further argued that the alleged offences even would not fall within the purview of Suppression of Terrorist Activities Act, but are fully attracted by the provisions of section 6 of the Act.
7. Before declaring an offence to be a scheduled offence and in line with the object of the Act, two important aspects of the matter are to be Strictly taken note of. Firstly, it has to be seen that the offences mentioned in the schedule to the Act have any connection or nexus with the very object of the Act for which it. Has been , enacted. Secondly, if the offences are covered by the provisions. Of sections 6, 7 and 8 of the Act. Section 6 defines terrorists' acts, section 7 provides its punishment and section 8 prohibition of acts intended or likely to stir up sectarian hatred. Reference is made to the same as under:-- "(6) Terrorist act. ---A person is said to commit a terrorist act if he--
(a) in order to, or if the effect of his actions will he to, strike terror or create a sense of fear and insecurity in the people, or any section of the people, does any act or thing by using bombs, dynamite or other explosive or inflammable substances, or such firearms or other lethal., weapons as may be notified, or poisons or noxious gases or chemicals, in such a manner as to cause, or be like to cause, the death of or injury to any person or persons, or damage to, or destruction of, property on a large scale, or a widespread disruption of supplies of services essential to the life of the community, or threatens with the use of force public servants in order to prevent them from discharging their lawful duties; or
(b) commits a scheduled offence, the effect of which will be, or be likely to be, to strike terror, or create a sense of fear and insecurity in the people, or any section of the people, or to adversely affect harmony among different sections of the people; or commits an act of gang rape, child molestation, or robbery coupled with rape as specified in the Schedule to this Act; or
(d) commits an act of civil commotion as specified in section 7-A.
(7) Punishment for terrorist act.---Whoever commits a terrorist act,--- referred to in paragraph (a) of section 6, shall-
(a) if such Act has resulted in the death of any person be punished with death; and
(b) in any other case, be punishable with imprisonment for a term which shall not be less than seven years but may extend, to life imprisonment, and shall also be liable to fine; and
(ii) referred to in paragraphs (b) and (c) of section 6 be liable to the punishment prescribed under the relevant law.
(8) Prohibition of acts intended or likely to stir up sectarian hatred.---A person who.--
(a) uses threatening, abusive or insulting words or behaviors; or
(h) displays, publishes or distributes any written material which is threatening, abusive or insulting; or
(c) distributes or shows or plays a recording of visual images or sounds which are threatening, abusive or insulting; or
(d) ' has in his possession written material or a recording or visual images or sounds which are threatening. Abusive or insulting with a view to their being displayed or published or himself or another shall be guilty of an offence if--
(i) he intends thereby to stir up sectarian hatred; or
(ii) having regard to all the circumstances. Sectarian hatred is likely to be stirred up thereby.'
8. The words scheduled offence", "sectarian hatred' and "terrorists act" have been defined in section 2(e), (f) and (11) as under: "2(e) "scheduled offence" means a terrorist or sectarian related offence as set out in this Act or the Schedule hereto".
(C) "sectarian hatred" means hatred against a group of persons in Pakistan defined by reference to religion religious sect, religious persuasion, or religious belief.
(h) 'terrorist act' has the meaning assigned to it in section 6."
9. In order to arrive at a proper conclusion let us examine the case of prosecution as set up in F.I.R.
To the extent of above provisions of law.
10. At the time of incident deceased Muhammad Alam Balouch was posted as O.S.D. At Islamabad and was on leave and had gone to attend his private litigation at Hyderabad and after returning from the Court was done to death on the way while going to his house. This shows that deceased was not on his official duties but was killed because of his personal enmity while on his private personal visit. In the F.I.R., too complainant has mentioned that there was dispute over agricultural lands in between deceased and the applicant's party and prior to this incident also they were attacked and such cases were pending in the Courts. On the day of incident also accused Latif Ansar, Shakoor and Hafeez Ansari were available in the High Court at Hyderabad where Latif Ansari had asked the complainant party to withdraw from cases otherwise they would be murdered. So far murer of PC Muhammad Yaqoob Alamarn, gunman of D.S.P., is concerned, he Was offered, lift by deceased Muhammad Alam Balouch in his vehicle while going to village and was murdered while sitting inside the vehicle. From the above, it appears that he was also not on official duties, but was C going to his village for some personal work. The Hon'ble Supreme Court in the case of Mehram Ali (ibid) has observed in paragraph 17 at paee 1493 as under:-- "It will suffice to observe that if a Government servant or any other employee of the Government functionaries is murdered because he belongs to the above service and that there was no enmity or plausible reason for commission of the above offence, such a killing is an act of terrorism within the ambit of the Act and can lawfully be included in the Schedule, but if the murder is committed solely on account of personal enmity, -such a murder will have no nexus with the above provisions of the Act and will not be triable under the Act."
11. The. Hon'ble Supreme Court in an unreported Criminal Petition No,15-K of 1999 in the case of Syed.
Akhlaq Hussain v. Moinuddin and others has also held that the murders committed solely on account of personal enmity had no nexus with the act of terrorism within the ambit of section 6 of the Act.
12. Weighing the case of prosecution on the touchstone of the provisions laid down under sections 6, 7 and 8 of the Act, we are of the considered view that the alleged offences have neither any resemblance nor are in line with objects of the abovementioned provisions of the. Act, as such the case against the applicant would not fall within the ambit of any of the provisions of the Act.
13. In this view of the matter, we are fortified by the decision of the Hon'ble Supreme Court in the case of Mehram Ali (ibid), wherein at page 1492 it has been held as under:-- "However, it may be observed that the offences mentioned in the Schedule should have nexus with the object of the Act and the offences covered by sections 6, 7 and 8 thereof. It may be stated that section 6 defines terrorist acts, section 7 provides punishment for such acts, and section 8 prohibits acts intended or likely to stir up sectarian hatred mentioned in clauses (a) to (d) thereof. If an offence included in the Schedule has no nexus with the above sections, in that event notification including such an offence to that extent will be ultra vires."
14. Vide notification No,1237, dated 13-12-1997, an amendment in the schedule to the Act was made, whereby the words "a light or heavy automatic weapon" after word "or" in sub-paragraph (i) or paragraph 2(a) were omitted intentionally and purposely by the Federal Government. It clearly indicates that the offence being committed with light or heavy automatic weapon was to be taken out of the Schedule to the Act. It is pertinent to note that the said amendment was brought in the schedule purposely in order to confine the Act to the limited offences. Such an offence under section 302, P.P.C., has been termed to be a scheduled offence if committed with a cannon, grenade, bomb or rocket. Prior to the amendment offence under section 302, P.P.C., was a scheduled offence even if committed with light or heavy automatic weapon. The other purpose of the abovementioned omission can apparently be for the reasons that an offence under section 302, P.P.C., is a scheduled offence within the meaning of Suppression of Terrorist Activities (Special Courts) Act, 1975, if committed in respect of a cannon, grenade, bomb, rocket or a light or heavy automatic or semi-automatic weapon, such as Kalashnikov, G-III rifle or any other type of assault rifle. For proper appraisal the said provision is reproduced as under:-- "(a) Any offence punishable under any of the following sections of the Pakistan Penal Code, 1860 (XLV of 1860), namely:--- (i)
(ii)
(ii-a) section 302 or section 307, if committed in the course of the same transaction in which an offence specified in this paragraph or paragraphs (b) and (c) is committed, or in addition to or in combination with such offence, any offence punishable under the Arms Act, 1878 (XI of 1878), or any offence punishable under any of the following sections of the West Pakistan Arms Ordinance, 1965 (West Pakistan Ordinance No, XX of 1965), namely, sections 8, 9 and 10, if committed in respect of 'cannon, grenade, bomb, rocket or a light or heavy automatic or semi-automatic weapon such as Klashnikov, a G-Ill rifle or any other type of assault rifle';"
15. The above provision was added in the Suppression of Terrorist Activities (Special Courts) Act, 1975 by Act V of 1990 it clearly shows that Kalashnikov is included in light or heavy, automatic or semiautomatic weapon. Omitting these words from the Schedule to Anti-Terrorism Act, 1997 and keeping the same intact in Suppression of Terrorist Activities (Special Courts) Act, 1975 are meaningful as the law makers while taking out the same from the Act allowed to remain the same alive in Suppression of Terrorist Activities (Special Courts) Act, 1975.
16. From what has been discussed above. Iv e are of the considered opinion that the offence in this case has no nexus with sections 6. 7 and 8 of the Act and is not covered by the provisions of Anti- Terrorism Act, but is covered by the schedule to Suppression of Terrorist (Special Courts) Act, 1975.
17. Accordingly we allow this Revision and transfer the case from the Court of learned Judge Special Court Anti-Terrorism, Hyderabad and Mirpurkhas Division at Hyderabad to the Court of learned Special Judge for, Suppression of Terrorist Activities at Hyderabad for disposal according to law. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.