FAZAL DAD Versus Col.(Rtd.) GHULAM MUHAMMAD MALIK

CH. IJAZ AHMED, J .---The necessary facts out of which the present appeal arises are that petitioner/appellant got registered a case against respondent No.1 under sections 435/447/427, P.P.C. at Police Station Basal, District Attock on 14-2-1995. Formal F.I.R. was recorded under aforesaid sections vide F.I.R. No. 12 dated 14-2-1995 at the said police station. Respondent was sent to face trial under sections 435/447/427, P.P.C. in the Court of Magistrate with powers of Section 30, Cr.P.C. Jand District Attock. During the pendency of the case, the Magistrate after entertaining challan, returned the same to the S.H.O. for submission before the Special Court established under Anti-Terrorism Act, 1997 with the observation that in the light of sections 7-A and 7-B of the Act, the offence allegedly committed by the accused could be defined as civil commotion and therefore was triable by special court vide order dated 30-10-1999. Investigating Officer thereafter submitted challan before Special Tribunal/Judge Special Court, Islamabad Capital Territory. Respondent being aggrieved filed an application before the Special Court for transfer of the case to the ordinary court which was dismissed vide order dated 7-2-2000. Thereafter, respondent filed Constitution Petition No.296 of 2000 in the Lahore High Court Rawalpindi Bench which was accepted by the learned High Court vide impugned judgment dated 21-2-2000. Petitioner/appellant being aggrieved filed C.P. No.865 of 2000 before this Court which was fixed on 14-2-2001 and leave was granted vide order dated 14-2-2001 out of which the present appeal arises.

2. Learned counsel for the appellant submits that respondent secured impugned . judgment from the learned High Court without impleading him as respondent in the Constitution Petition as is evident from the contents of the memo. of parties name in the constitution petition. He further maintains that the impugned judgment was passed by the learned High Court in violation of principle of natural justice. He further urges that in view of section 38 of the Anti-Terrorism Act, 1997, the case was triable by the special court under the said Act and if the respondent was found guilty he was liable to be punished under the provision of law which was prevailing at the time when the offence was committed. He has also submitted legislative history of provisions of Anti-Terrorism Act, 1997. He sums up his argument that offence is fully covered under section 6 of the said Act therefore learned High Court erred to transfer the case to ordinary Court for trial of the respondent.

3. Learned council for respondents has supported the impugned judgment. In support of his contention he relied upon Jamat-e-lslami Pakistan's case (PLD 2000 SC 111).

4. We have considered the submissions made by learned counsel for the parties and perused the record. It is better and appropriate to reproduce basic facts, relevant provisions of Anti-Terrorism Act, amended and unamended provisions of said Act, contents of F.I.R., to resolve the controversy between the parties:--

F.I.R. was lodged under sections 435, 447, 427, P.P.C. at Police Station Basal, Attock on 14-2-1995 After investigation challan, was submitted before Civil Judge/Magistrate concerned who directed the Investigating Officer/S.H.O. to submit challan before the Special Court constituted under Anti-Terrorism Act as offence committed by respondent fully covered under the provisions of said act vide order dated 30-10-1999. Respondent filed application before the Special Court for transfer of the case to ordinary Court which was dismissed vide order dated 7-2-2000. Thereafter constitution petition filed by respondent No.1 in the High Court which was accepted vide judgment dated 21-2-2000. Hence present appeal.

Anti-Terrorism Act, 1997 came into force on 20th August, 1997. Relevant provisions are as follows:

"2(h) "terrorist act" has the meaning assigned to it in section 6.

6. Terrorism Act .---Whoever, to strike terror in the people, or any section of the people, or to alienate any section of the people or to adversely affect harmony among different sections of the people, does any act or thing by using bombs, dynamite or other explosive or inflammable substances, or fire-arms, or other lethal weapons or poisons or noxious gases or chemicals or other substances of a hazhardous nature in such a manner as to cause, or to be likely to cause the death of, or injury to, any person or persons, or damage to, or destruction of, property or disruption of any supplied of services essential to the life of the community or display fire-arms, or threatens with the use of force public servants in order to prevent them from discharging their lawful duties commits a terrorist act.

38. Punishment for terrorist act committed before this Act .---Where a person has committed an offence before the commencement of this Act which is committed after the date on which this Act comes into force would constitute a terrorist act hereunder he shall be tried under this Act but shall be liable to punishment as authorized by law at the time the offence was committed."

Anti-Terrorism Amendment Ordinance, 1999 (Ord. IV of 1999) came into force on 27th April, 1999 wherein section 6 was amended and sections 7-A and 7-B were added which are to the following effect:--

"5. Amendment of section 6, Act XXVII of 1997 .--In the said Act, for section 6, the following shall be substituted, namely:--

"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 be 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 fire-arms or other lethal weapons as may be notified, or poison or noxious gases or chemicals, in such a manner as to cause , or be likely 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

(c) 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 to civil commotion as specified in section 7-A."

7. Insertion of sections 7-A and 7-B, Act XXVII of 1997 .--In the said Act, after section 7, the following new sections shall be inserted, namely:--

"7-A. Creation of civil commotion .--`Civil commotion' means creation of internal disturbance in violation of law, or intended to violate law, commencement or continuation of illegal strikes, go-slows, lock-outs, vehicles snatching or lifting, damage to or destruction of State or private property, random firing to create panic, charging bhatha, acts of criminal trespass (illegal qabza). Distributing, publishing or pasting of a handbill or making graffiti or wall chalking intended to create unrest or fear or create a threat to the security of law and order or to incite the commission of an offence punishable under Chapter VI of the Pakistan penal Code (Act XLV of 1860).

7-B. Punishment for creating civil commotion .---Whoever commits an act of civil commotion shall be punished with rigorous imprisonment for a term which may extend to seven years or with fine, or with both."

The said Ordinance was further amended vide Anti-Terrorism (2nd Amendment) Ordinance, 1999 (Ordinance XIII of 1999) wherein section 6 was amended and sections 7-A and 7-B were also inserted which are to the following effect:

"5. Amendment of section 6, Act XXVII of 1997 .---In the said Act for section 6, the following shall be substituted, namely:--

"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 be 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 fire-arms or other lethal weapons as may be notified, or poison or noxious gases or chemicals, in such a manner as to cause , or be likely 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

(c) commits an act of gang rape, child molestation, or robbery coupled with rape as specified in the Schedule to this Act; or

(ed) commits an act of civil commotion as specified in section 7-A."

7. Insertion of new sections 7-A and 7-B, Act XXVII of 1997 .--In the said Act, after section 7, the following new sections shall be inserted, namely:-

"7-A. Creation of civil commotion .--`Civil commotion' means creation of internal disturbance in violation of law, commencement or continuation of illegal strikes, go-slows, lock-outs, vehicles snatching or lifting, danger to or destruction of State or private property, random firing to create panic, charging bhatha, acts of criminal trespass (illegal qabza).

7-B. Punishment for creating civil commotion .---Whoever commits an act of civil commotion shall be punished with rigorous imprisonment for a term which may extend to seven years and with fine."

The aforesaid Ordinance was further amended vide Anti-Terrorism (Amendment) Ordinance, 2000 wherein sections 7-A and 7-B was omitted and section 6 was also amended which are to the following effect:

"5. Omission of sections 7-A and 7-B, Act XXVII of 1997 .--In the said Act, sections 7-A and 7-B shall be omitted.

"6. Amendment of section 14, Act XXVII of 1997 .--In the said Act, in section 14, after subsection (4) the following new subsection shall be added, namely'--

(5) in case a Judge is on leave, or for any other reasons temporarily unable to perform his duties, the Government making appointment of such Judge may, after consultation with the Chief Justice pf. the High Court, authorize the Sessions Judge; having jurisdiction at the 'principal seat of the Anti-Terrorism Court, to conduct proceedings of urgent nature so long as such Judge is unable to perform his duties."

Relevant portion of F.I.R.:

5. In case the aforesaid provisions and contents of F.I.R. are put in a juxta position then section 6 of the said ordinance is not attracted. It is a settled law that preamble is always key to interpret the statute. The very object to promulgate the Anti-Terrorism Act, 1997 was to control the acts of terrorism, sectarian violence and other heinous offences as defined in section 6 of the Act and their speedy trial to bring the offence within the ambit of the act, it is essential to examine that the said offence should have nexus with the object of the act and offences covered by its relevant provisions such as section 6. It is a settled law that provisions of law must be read as a whole in order to determine its true nature, import and scope as law laid down by this Court in Main Muhammad Nawaz Sharif's case PLD 1993 SC 473. It is abundantly clear that in case the provisions of act be read as a whole with the offence which creates a sense of fear or insecurity in society, causes of death or endangers a person's life commits an act of vehicle snatching or lifting, damage to or disturbance of, State or private property failing to create panic charging bhatta or criminal trespasser (Illegal qabza). As mentioned above, the ingredients of aforementioned offences have no nexus while reading the aforesaid provisions along with the contents of the impugned F.I.R. It is pertinent to mention here that nothing was on record to show that occurrence created terror, 'panic or sense of insecurity among people by securing possession of the land in question by the respondent. The word illegal Qabza must be read with the previous words used by the legislature in clause (d) of section 6 of the Anti-Terrorism Act, 1997 on well-known principle that statutory provisions ought not to be construed in isolation and courts always to lean towards reasonable interpretation of statute. The learned High Court was justified to examine the scope of terrorism at the time of deciding the constitutional petition with regard to the transfer of case from special court to ordinarily court on the well known maxim that legislative intent as a guide to interpretation of statute should be gathered primarily from words used in statute. The case in hand did not qualify to be a terrorist act within the contemplation of section 6 or schedule of Anti-Terrorism Act and the learned High Court was justified to transfer the case to the ordinary court. It is settled law that promulgation of special law by itself is not sufficient to supersede provisions of law contained in Cr.P.C. In case, the offence has no nexus with the parameters of special law, then general law will apply. The judgment of the learned High Court is in consonance with the law laid down by this court in various pronouncements. See Mehram Ali's case PLD 1998 SC 1445 and Jamat-e-Islami Pakistan's case PLD 2000 SC 111.

6. For what has been discussed above, the appeal has no merit and the same is dismissed with no order as to costs.

M.H./F-10/S Appeal dismissed.