WAHID BAKHSH alias WAHIDOO vs The STATE

ORDER

1. Through instant Cr. Misc. Application, the applicant has impugned the order dated 08.04.2015 passed by Judge Anti-Terrorism Court, Khairpur in Special Case No,133/2014 enumerated from Crime No,310/2014 registered at Police Station "A" Section at Shah Latif Khairpur, under sections 324, 353, 402, 427, 339, 148, 149, P.P.C. Along with 7, Anti-Terrorism Act, 1997 whereby the Misc. Application filed by the applicant under section 23 of A.T.A., 1997, seeking transfer of the case from the Court of Judge ATC, to the Court of Session has been dismissed.

2. Learned counsel for the applicant submits that the applicant has been involved in a false case by the police, whereas the provision of Section 7 ATA, 1997 has also been included in the FIR to drag the applicant in criminal case, inspite of fact that no ingredient of Section 6 of Anti-Terrorism Act, 1997 was attracted, whereas learned Judge ATC, Khairpur without examining the provision of section 6 of A.T.A., 1997 has dismissed the application by giving emphasis to prosecution that criminal cases have been registered against the present applicant whereas in most of the cases, the applicant has been acquitted and in some cases, he is facing trial. Further more.Since the alleged encounter continued for 20 minutes but no one sustained any injury either from the applicant's side or from the complainant side, nor the police mobile' has reportedly been given grievious damage.

3. However, in order to invoke the provision of section 7 of A.T.A., 1997, the police has included such section. It has been prayed by the learned counsel that the aforesaid case may be transferred from the Court of Judge ATC, Khairpur to the court of Sessions. In support of his submissions, he has placed reliance to the cases reported as Mohabbat Ali and another v. The State and another (2007 SCMR 142), Liaquat Ali and 2 other" v. Special Judge Anti-Terrorism Court No.1 Gujranwala and 3 thers (2007 YLR 1222), Hazoor Bux and another v. The State and another (PLD 2012 Sindh 469) and Younus v. The State and 2 others (2014 PCr.LJ 1062).

4. Learned D.P.G has supported the impugned order and submits that since the police mobile has been damaged at the place of incident, therefore provision of section 7, A.T.A., 1997 is attracted in this case.

5. We have heard the arguments of learned counsel for the applicant, learned D.P.G., perused the impugned order passed by learned Judge ATC, Khairpur and examined the case law placed by the learned counsel for the applicant, with their assistance.

6. We may observe that law of ATA, 1997 is a special law which has been promulgated to prevent the Crimes of such nature which may create terror and sense of insecurity in the public-at-large, and also to prevent an act relating to sectarian violence or ethonics cause, kidnapping for ransom, extortion of money (Bhatta) and similar acts which fall within the ambit of terrorism as defined in section 6 of Anti-Terrorism Act, 1997. Whereas, every criminal offence cannot be sent up for trial to Anti-Terrorism Court, unless, ingredients of section 6 of ATA, 1997 are attracted. In the instant case it has come on record that alleged police encounter continued for 20 minutes but no one either from accused party or police party has sustained any injury, whereas, the police mobile has also not received any grevious damage. The Hon'ble Supreme Court in the case of Mohabbat Ali and another v. The State and another (2007 SCMR 142) has held as under:- "In order to determine as to whether an offence would fall within the ambit of section 6 of the Act, it would be essential to have a glance over the allegations made in the FIR, record of the case and surrounding circumstances. It is also necessary to examine that the ingredients of alleged offence has any nexus with the object of the case as contemplated under sections 6, 7 and 8 thereof.

7. 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 we public or any section of the public or community or in any sect."

8. Similarly in the case of Umer Farooq and 2 others v. Judge, Anti-Terrorism Court, Mirpurkhas and another (2014 PCr.LJ 1052) a division bench of this Court in which one of us namely Aqeel Ahmed Abbasi-J is the member and author Judge, has held as under:- "We are, of the view that for the purpose of attracting the provisions of any section or schedule to the Anti-Terrorism Act, 1997, the element of striking terror or creating of the sense .Of fear and insecurity in the public at large by doing any act or thing is sine qua non, Reference in this regard can be made to the judgments of the Hon'ble Supreme Court of Pakistan in The case of "Ch. Bashir Ahmed Naveed lqbal and 7 others" reported in PLD 2001 Supreme Court 21 and in the case of "Mohabbat Ali and another v. The State and another" reported in 2007 SCMR 142."

9. We may further observe that the provisions of Anti-Terrorism Act, 1997 are required to be construed strictly and the benefit, if any, arisen in that regard, has to be extended to the accused whereas, in the absence of the element of terrorism, sense of insecurity in public at large and gravity of section 6, the provisions of section 6, 7 and 8 of Anti-Terrorism Act, 1997 could not be attracted in each and every case. Reference in this regard can be made to the Judgment of the Hon'ble Supreme Court of Pakistan in the case of "Bashir Ahmed v. Muhammad Siddique and others" reported in PLD 2009 Supreme Court 11 and to the Judgment of Lahore High Court in the case of "Taj Muhammad v. Judge, Anti-Terrorism Court and another" reported in PLD 2003 Lahore 588. The case law, relied upon by the learned Additional Prosecutor General Sindh is not attracted to the instant cases as the same is distinguishable on facts."

10. In view of herein above facts and circumstances of this case, we are of the considered view that the learned ATC Judge at Khairpur, while passing the impugned order has failed to examine as to whether the ingredients of alleged offence has any nexus with the object of the case as contemplated under sections 6 and 7 of Anti-Terrorism Act. On the contrary mere allegations of police encounter and registration of criminal cases has been made basis while dismissing the application filed by the applicant under section 23 of Anti-Terrorism Act, 1997. In view of herein above facts and by respectfully following the ratio in the above cited judgments, we are of the view that the impugned order passed by Anti-Terrorism Court, Khairpur, does not contain any valid reasons, which is hereby set aside. The aforesaid case shall be transferred from the Court of Judge ATC, Khairpur to concerned District and Sessions Court for disposal in accordance with law.

11. Instant Cr. Misc. Application is allowed in the above terms.