GHULAM SARWAR Versus State

ORDER

NAIMATULLAH PHULPOTO, J.--- Through this criminal revision application order dated 11-12-2012 passed by learned Judge, Anti-Terrorism Court, Hyderabad in Special Cases No.77 of 2012 under sections 386, 387, 506(2), 504, 337-H(2), P.P.C. read with section 6/7 of the Anti-Terrorism Act, 1997, has been impugned:

2. Brief facts of the prosecution case as disclosed in the F.I.R. are that complainant Wahid Bux was Manager at the petrol pump of Haji Haroon Memon. It is alleged in F.I.R. that applicant/accused Ghulam Sarwar had demanded bhatta from the complainant two months back when he was serving as Manager at the petrol pump of Haji Haroon Memon. Thereafter, complainant left the job. On 25-10-2012 at 1300 hours, complainant along with his nephew Muhammad Hanif and cousin Asghar were standing in front of the house where it is alleged that the applicant came in a car along with co-accused (1) Ghulam Sarwar son of Ghulam Qadir Khushk, both armed with repeaters, (2) Siraj son of Ghulam Sarwar Khushk, (3) Sajid son of Ghulam Sarwar Khushk, having T.T. pistols in their_ hands and (4) Asif Mallah son of not known. It is alleged that applicant Ghulam Sarwar abused to the complainant as to why he did not pay him bhatta and aimed his repeater at the complainant but left him while saying that in case, bhatta would not be paid to him, complainant would be murdered. Thereafter, it is alleged that the applicant made aerial firing. Complainant went to the Police Station Thatta and lodged F.I.R. against the accused persons on 25-10-2012, the same was recorded vide Crime No.156 of 2012 - under sections 382, 386, 387, 506(2), 504, 337-H(ii), P.P.C. read with section 6/7, Anti Terrorism Act, 1997.

3. During investigation statements of P.Ws. under section 161, Cr.P.C. were recorded. Applicant was arrested, who produced one repeater .12 bore without license, separate case under section 13(e) Arms Ordinance, - 1965 was registered against him. -On the conclusion of investigation, challan was submitted against the applicant/accused in the Anti-Terrorism Court, Hyderabad under sections 368, 387, 506(2) 504, 337-H(2), P.P.C. read with sections 6/7 of the Anti-Terrorism Act, 1997 and 13(e), Arms Ordinance, 1965.

4. Applicant moved an application under, section 23 of the Anti-Terrorism Act, 1997. before the learned Anti-Terrorism Court, Hyderabad for transfer of the case from special Court to regular Court. Learned trial Court after hearing both the parties dismissed the application vide order dated 11-12-2012 for the following reasons:--

"I agree with the contentions of the learned DDPP that section 6(2)(k) of Anti-Terrorism Act,-1997 provides that any person who involved in extortion of money of bhatta commit the offence. In case in hand it is alleged that the accused arrived in front of the house of the complainant in presence of two witnesses demanded bhatta extended threats made aerial firing and extended threats went away. Police had secured-empties from the place of incident as well as recovered the weapon on the pointation of the accused. So at this stage I am of the view that the allegation constitutes the offence provided under section 6(2)(k) of Anti-Terrorism Act, 1997 and as such this Court has jurisdiction to trying the same. The case is ripe for trial and will be concluded speedily. The application is accordingly dismissed."

5. Mr. Shahab Sarki, learned Advocate for the applicant argued that case of the applicant does not fall within the ambit of Anti-Terrorism Act, 1997. He has further contended that according to the F.I.R. allegation against the applicant is that two months prior to the lodging of the F.I.R. bhatta was demanded from the complainant when the complainant was serving as Manager at the petrol pump of Haji Haroon Memon. It is argued that FIR. at that time was not lodged. He argued that from facts of the present case ingredients of term "extortion" are not made out. There is no element of striking terror or creating sense of fear and insecurity in the people. Haji Haroon Memon, owner of petrol pump has filed affidavit before the trial Court and exonerated the applicant from allegation of extortion of money Lastly, it is submitted that trial before the Anti-Terrorism Court would be coram non judice and case may be transferred to the Sessions Court for the trial. In support of his contention, he has relied upon the case of Ch. Bashir Ahmad v. Naveed Iqbal and 7 others (PLD 2001 Supreme Court 521).

6. Mr. Khadim Hussain Khoonharo, Deputy Prosecutor-General supported the impugned order of the trial Court and argued that offence is exclusively triable by the Anti-Terrorism Court:

7. We have carefully heard the learned counsel for the parties and perused the contents of F.I.R., 161 statements of P.Ws. and other material collected during the investigation.

8. Record reflects that complainant has alleged in F.I.R. that two months prior to the present incident, applicant/accused had demanded bhatta from him but no F.I.R. of said 'incident was lodged. Apparently, it is unbelievable that after two months of leaving job by complainant, applicant/accused on account of non-payment of bhatta made aerial firing and. threatened him of dire consequences outside of his house. Even otherwise, from the contents of F.I.R. and other material collected during investigation, no offence triable under Anti-Terrorism Act, 1997 is made out for the reason that element of striking of terror or creation sense of fear and insecurity in the people or any section of the people is not made out. Ingredients of extortion of money as defined in section 6(2)(k) of Anti-Terrorism Act, 1997 are also not made out from the facts of the case. Moreover, episode occurred at the house of the complainant .appears to be between two individuals. Haji Haroon Memon, owner of petrol pump has exonerated accused for his involvement in extortion of money. In the case of Ch. Bashir Ahmad v. Naveed Iqbal and 7 others (PLD 2001 Supreme Court 521) it is observed that:-- .

"8. A person would commit a terrorist act if 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..." In the instant case as the facts of the case reveal, the alleged sprinkling of the spirit on the person of the victim was within the boundary walls of the appellant's house. It was not in public and, therefore, the element of striking terror or creating sense of fear and insecurity in the people, or any section of the people is not made discernible in the F.I.R. and for that matter on the record of the case as a whole. Similarly the perusal of the Schedule to the Act also indicates that the element of striking terror or creating sense of fear and insecurity in the people, or any section of the people by doing an act or thing by using bombs, dynamite or other explosive or inflammable substances etc. is a sine qua non for the attraction of the provisions of section 6 of and the Schedule to the Act."

9. For the above stated reasons, while relying upon above cited authority, we have no hesitation to hold that Anti-Terrorism E Court has no jurisdiction to try the case, impugned order suffers from illegality, the same is not sustainable under the law, consequently, instant criminal revision application is allowed with direction to the trial Court to transfer the case to the Court of Sessions, having jurisdiction in the matter.

HBT/G-7/K ??????????????????????????????????????????????????????????????????????????? Revision application allowed.