FAROOQ AHMED vs STATE and another

Nasir-ul-Mulk, C.J.--The petitioner was convicted under Sections 302(b), PPC and 7(a) of the Anti- Terrorism Act, 1997 (hereinafter to be referred to as "ATA, 1997") for causing death of Muhammad Qasim and on each count was sentenced to death and payment of, compensation and fine respectively. His conviction and sentences on botif counts were maintained by the High Court. The legal heirs of the deceased have now entered into compromise with the petitioner, who has filed Criminal Misc. Application No. 380 of 2015 for disposal of the petition on the basis of the compromise. The application along-with the compromise deed and statements of the legal heirs of the deceased was sent to the trial Court for verification of its genuineness. The report has been submitted, according to which the deceased was survived by his mother, widow and three minor children. The statements of the adults were recorded, who confirmed the factum of the compromise and expressed that it was brought, about with their free consent. The statement of the Naib Tehsildar was also recorded who confirmed that there were no other legal heirs of the deceased. According to the statements of the widow and mother of the deceased the petitioner had paid Rs. 50,00,000/- as Badl-e-SulahlDiyat out of which they had received their respective shares of Rs. 6,25,000/- and Rs. 8,35,000/-. As regards the shares of the minors Defence Savings Certificates have been purchased in their names and to that effect the statement of Inam-ur- Rehman, Officer-in-Charge, National Saving Center-II, D.G. Khan was recorded. The Judge, Anti- Terrorism Court, has reported that the compromise was entered into by the legal heirs voluntarily and without any undue pressure. Further that the shares of the minors have been properly secured by the purchase of National Saving Certificates.

2.In view of the statements of the legal heirs and the report of the trial Court we allow Criminal Misc. Application No. 380 of 2015 and set aside the conviction and sentence of the petitioner under Section 302(b), PPC.

3.As regards conviction and sentence under Section 7(a) of ATA, 1997 the learned counsel submitted that though the offence is not compoundable but on facts of the case the offence does not fall within the ambit of terrorism as defined under Section 6 of ATA, 1997 in that according to the case of the prosecution the murder was committed as revenge for the murder of the borther of one of the accused by the deceased. The learned counsel referred to the change brought about in Section 6 of the Act, which defines terrorism to canvas that it is not the consequence of the crime but the design of the accused which determines whether the accused is guilty of terrorism or not.

He pointed out that though the murder was allegedly committed in the vicinity of the Court premisei but that would only confer jurisdiction upon the Anti-Terrorism Courts to try the case in view of the amendment brought about in the Schedule to ATA, 1997. That however, in order to convict an accused under Section 6 of ATA, 1997 his act had to fall within the definition of terrorism.

In support of his arguments the learned counsel relied upon a number of judgments, one of which is unreported dated 12.12.2014 in Criminal Appeals No. 487 and 488 of 2006 titled Muhammad Nazim u. The State which is based on a number of reported judgment cited therein. The learned counsel further referred to the judgment of the Lahore High Court Basharat Ali v. Special Judge, Anti- Terrorism Court (PLD 2004 Lahore 199).

4. In order to determine whether Section 6 read with Section 7 of ATA, 1997 is attracted to the case, the facts alleged by the complainant in the F.I.R. as well as in the testimony before the Court need to be stated. The case was registered on the report of Peer Bakhsh (PW-5), who stated that he along with Azeem, Allah Ditta and Khadim Hussain had gone to the local Court in D,G. Khan on 28.2.2013; that on that day Muhammad Qasim along with five other under trial prisoners was brought to the Court by the police in a criminal case; that at about 12.30 in the afternoon the said Muhammad Qasim alongwith the other under trial prisoners was being taken back by the police in custody after attending the Court when at a point between the Court and Canteen of the Sessions Court four persons, Farooq Ahmad armed with pistol, Muhammad Yousaf also armed with pistol, Paliyah Khan empty handed accompanied by an unknown person came along; that Farooq Ahmed made three fires at Muhammad Qasim who was hit and fell on the ground and later succumbed to his injuries. The alleged motive was that the accused had taken the revenge of the murder of Muhamamd Musa, brother of one of the accused, allegedly done to death by Muhammad Qasim. The petitioner was arrested on the spot and the weapon of offence was also recovered from him. The facts so disclosed by the prosecution leave one in no doubt that the motive of the crime was previous enmity because of murder allegedly committed by the deceased. There is nothing on the record to show that the accused wanted to create fear or insecurity or terror in or around the Court premises. It appeais that after shooting the petitioner did not offer resistance and was arrested by the police along with the weapon of offence. The only provision in the ATA, 1997 that may have relevance here is Section 6(b) which reads: "6. <b>Terrorism<b>.--(1) In this Act, "terrorism" means the use or threat of action where:.

(a)........................

(b)<b>the use of threat is designed</b> 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 <b>or create a sense of fear or insecurity in society; or</b> (c)............................... The words "use or threat is designed" cover all situations mentioned in the said provision as each is followed by the word "or". For the present purpose the last of such situation would be relevant namely "the use or threat is designed to ..... create a sense of fear or insecurity in society". The said provision has undergone change as pointed out by the learned counsel for the petitioner. The earlier Section 6(b) inserted thorugh amendment brought about by Ordinance IX of 1998 opened with the words "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 ..." These have been substituted by Ordinance No. XXXIX of 2001 with the words "use or threat is designed to create a sense of fear or insecurity in society". By this change the legislature shifted the focus of the crime under Section 6(b) from the consequence, of the act to the intention or design of the accused. This change has been very aptly discussed in Basharat Ali v. Special Judge, Anti-Terrorism Court (ibid) authored by Mr. Justice Asif Saeed Khan Khosa, as a Judge of the Lahore High Court. The principle laid down in the said judgment has since been consistently followed in that Section 6 read with Section. 7 of ATA, 1997 would not be attracted if the murder is committed to avenge private enmity. The 3rdchedule to ATA, 1997 provides list of scheduled offences that are tri-able by the Special Court to the exclusion of any other Court. By an amednemnt in 2005 the Anti-Terrorism Courts were conferred jurisdiction to try an accused for firing or for the us of explosives by any device including bomb blast in the Court preilses. The inclusion in the scheduled offences only extended the jurisdiction upon the Anti-Terrorism Court to try such an accused. However in order to convict him under Section 7 of. the ATA, 1997 his act must fall within the scope of Section 6 of the A Act. As has already been found that since the petitioner had statedly committed the murder to avenge murder committed by the deceased his action would not fall within the definition of terorrism under Section 6 of ATA, 1997. There was no design to create fear or terror or insecurity in the Court premises. In this view of the matter the petitioner's conviction under Section 7 of the Anti-Terrorism Act cannot be sustained and the same is therefore, set aside.

5. As the offence under Section 302(b), PPC has been compromised and the conviction under Section 7 of the Anti-Terrorism Act has been reversed, the petition is converted into appeal and allowed. The conviction and sentence of the appellant are set aside and he is acquitted of the charge framed against him. He be set at liberty if not required in any other cause.