MURAD alias MANN Versus State
ORDER
FAHIM AHMED SIDDIQUI, J.--- This single order will dispose of a Criminal Bail Application as well as a Criminal Revision Application moved by the applicant, who is facing trial before the Special Judge Anti-Terrorism Court, Mirpurkhas in Special Case 05/2018 (State v. Murad alias Mann) under sections 302, 392, 201, 411 and 34, P.P.C. R/W Sections 6/7 the Anti-Terrorism Act, 1997 (hereinafter 'A.T. Act').
2. The applicant has filed a bail application which was declined the learned trial Court vide order dated 24-07-2018. The applicant has also filed a criminal revision application, which was also faced with the fate of dismissal through order dated 23-06-2018 passed by the learned trial Court, whereby an application under Section 23 of the A.T. Act was dismissed. Through the impugned order, the trial Court came to conclusion that Special Case No. 05/2018 (State v. Murad alias Mann) is a case of terrorism and cognizance was rightly taken by the trial Court.
3. The factual matrix of the case is that complainant Manzoor Ahmed reported to police that he came to know through a news channel about the murder of his brother Noor Alam and his family inmates. He rushed to the house of his deceased brother, where people of the locality and police were available. He went into the house of his brother and found that his brother Noor Alam, Wife of his brother namely Mst. Maryam (aged about 36 years) and his niece Fatima (aged about 04 years) were slaughtered to death while another niece Naila (aged about 02 years) was lying on the bed alive. After completing necessary formalities dead bodies were handed over to the complainant and after their funeral, the complainant lodged FIR against unknown person.
4. While pressing the instant criminal revision as well as bail application, the learned counsel for the applicant submits that the learned trial Court has not considered the real facts, which do not attract the provision of sections 6 and 7 of the A. T. Act. He submits that FIR was lodged without applying sections 6 and 7 of the A. T. Act but subsequently on the direction of learned Judicial Magistrate, Final Report was submitted by police before Anti-Terrorism Court (hereinafter 'ATC') after adding sections 6 and 7 of A.T. Act. He submits that during investigation, the Investigating Officer could not collect any material justifying the application of the A. T. Act. According to him, admittedly the incident is un-witnessed, as such no question of spreading terror amongst the public arises. He submits that as per FIR the offence is caused due to enmity as such, it does not attract the provisions of A.T. Act. He submits that no evidence is available against the applicant except that of the exculpatory confession of co-accused, which is inadmissible under the law. According to him, the applicant was unaware about the instant case as he was not nominated in FIR and as soon as he came to know about the pendency of this case, he voluntarily surrendered himself before the court. Per him, when applicant himself has appeared before this Court for seeking protective bail and subsequently approached the learned trial Court with a prayer of pre-arrest bail, he cannot be considered as a proclaimed offender. He submits that in the instant case some of the co-accused have been convicted but one of the convicted accused Hafiz Irshad is on bail. According to him, as basically the instant case does not fall within the definition of terrorism; therefore, not only it is a fit case for transfer to the ordinary Sessions Court but also it is a fit case for granting bail to the applicant. He relies upon PLD 1971 Supreme Court 124, PLD 1972 Supreme Court 271, 2017 SCMR 1572, 2017 SCMR 533, 2017 YLR Note 449 and 2018 PCr.LJ Note 22 and prays for grant of relief in favour of applicant.
5. Contrariwise, the learned DPG opposes the instant application by submitting that the act of the accused persons was shocking, dreadful and stunning which has spread terror amongst the neighbourhood of the house, where the incident took place. He submits that the accused persons are not only responsible for the murder of three innocent persons amongst them one is a child of only 04 years. According to him, the applicant is a person who has taken active part in the incident and after the incident he became absconder. He points out that after the incident, he remained fugitive to law and trial for a considerable period of time and long after completion of the proceedings under sections 87 and 88, Cr.P.C., he approached the trial Court where his pre-arrest bail was declined and he was taken into custody. He submits that being a fugitive to law and trial, is not entitled to any concession of bail. Regarding the jurisdiction of ATC, the contention of the learned DPG is that the trial Court has rightly taken cognizance and none of the co-accused has agitated for such jurisdiction. He stresses that one of the co-accused namely Hafiz Irshad has filed an application under Section 23 A.T. Act but the same was subsequently, not pressed by him. According to him, the trial Court has already been convicted and sentenced to three accused persons and by moving such application; the applicant intends to delay the trial.
6. We have heard the arguments advanced and have gone through the relevant record and perused the case laws cited by either side. In the instant case, the trial Court has not only taken cognizance but also completed the trial of some of the co-accused persons, who have been convicted and their appeals are now pending before the Court. It is a factual position that during the trial of the co-accused; no question regarding the jurisdiction was taken while one of the convicts filed an application but the same was not pressed. In the instant case, the murders were taken place in a house situated within a populous locality. As per after the incident when complainant approached to the house of the victim family, he has seen a good number of people of the locality at the place of incident. A dwelling house is considered as a place of not only safety and security but also it en joys a sort of sacredness. Even peeping inside a house is not allowed. In the two sahib's (Bukhari and Muslim), it is recorded that the Messenger of Allah ( ) said:
"If a person looks into your house without your permission, and you throw a stone at him and it puts his eye out, there will be no blame on you."
Hence, such an offence inside a house, in which not only the head of the family but his wife and a daughter was brutally slaughtered and the valuable articles were looted, is surely causing a sense of insecurity amongst the neighbourhood. As far as, plea of enmity is concerned, the same is missing in the instant case and complaining in FIR has only mentioned that the deceased were murdered by someone owing to enmity. If there was an intention of describing enmity, the complainant must have disclosed the nature of enmity with the name of the accused. As we have observed above that when the complainant visited the place of incident a good number of people from neighbourhood were already gathered there; therefore, it cannot be said that it has not spread fear and sense of insecurity amongst the people of locality, where it was happened. The brutality of the offence is clear from the fact that the accused persons did not spare a child so that they might not be identified by her. The act of accused surely has created a sense of insecurity amongst the residents of the locality, as such it attracts the provisions of Anti-Terrorism Act. The Hon'ble Supreme Court has provided a guideline and principle for deciding the jurisdiction of ATC in a case reported as 'Nazeer Ahmed and others v. Nooruddin and another' (2012 SCMR 517), wherein it is held as under:--
"Neither the motive nor intent for commission of the offence is relevant for the purpose of conferring jurisdiction on the Anti-Terrorism Court. It is the act which is designed to create sense of insecurity and or to destabilize the public at large, which attract the provisions of section 6 of the AT Act.
7. The applicant remained absconder for a considerable period of time. After the incident, on the pointation of one of the co-accused, a raid was conducted at the house of the applicants from where the valuable articles stolen from the house of the deceased persons were recovered. The crime weapon was also recovered invest in case from the house of the applicant. It cannot be believed that in spite of conducting a raid and search of the house of the applicant, he remained oblivion of the pendency of this case against him. It is also worth mentioning that in the instant case a proceeding under sections 87 and 88 Cr.P.C. was taken place during which the statements of his neighbours were recorded, who disclosed that after the incident applicant escaped/shifted from his place of permanent abode. It appears that the applicant was watching the proceedings and after conviction and sentencing of the co-accused, he decided to appear before the trial Court. In the existing position of affairs, the story of voluntarily surrendering before the Court is not believable. The applicant is involved in a serious offence, which surely falls under the definition of terrorism, as such, the applicant is not entitled to any relief.
8. The ultimate outcome of the above discussion is that the criminal revision application filed by the applicant questioning the jurisdiction of the trial Court is meritless, as such, the same is declined while the applicant is also not entitled for the concession of bail, as such, his bail plea is also declined. Needless to say, that the case laws cited by the learned counsel for the applicant do not proceed to the facts and circumstances of the case in hand. However, trial Court is directed to pace-up the trial and dispose of the case of the applicant preferably within a period of three months. The above are the reasons for our short order dated 16-10-2018.
MQ/M-78/Sindh Bail refused.