RIAZ HUSSAIN Versus State

ISHTIAQ IBRAHIM, J.--- Appellant, Riaz Hussain, charged for committing murder of Abdul Wahab Chandio deceased, and attempt to commit murder of Police Constables, namely, Muhammad Ayoub and Zahid Ali and causing them firearm injuries vide Crime No. 111 of 2016, registered under sections 302, 324, 353 and 34 of the Pakistan Penal Code, 1860 ( P.P.C. ), Section 7 of the Anti-Terrorism Act, 1997 ( Act of 1997 ) and Crime No. 112 of 2016, registered under Section 24 of the Sindh Arms Act, 2013, at Police Station Warrah District Qamber Shahdadkot, was tried by the learned Anti-Terrorism Court, Larkana ( Trial Court ). Upon conclusion of trial, the appellant was convicted and sentenced by the Trial Court vide judgment dated 30.05.2019, as under:-

Under Section 302(b), P.P.C:- To undergo imprisonment for life and to pay rupees one lac as compensation to the legal heirs of Abdul Wahab Chandio deceased under section 544-A Cr.P.C. and in default thereof to further undergo simple imprisonment (S.I.) for one year.

Under Section 7(a) of the Act of 1997:- To undergo imprisonment for life and to pay rupees one lac as fine and in default thereof to further undergo S.I. for one year.

Under Section 324, P.P.C:- To undergo rigorous imprisonment for ten years and to pay Rs.20,000/- as fine and in default thereof to further undergo six months S.I.

Under Section 7(b) of the Act of 1997:- To undergo rigorous imprisonment for ten years and to pay Rs.20,000/- as fine and in default thereof to further undergo six months S.I.

Under Section 353, P.P.C: To undergo two years rigorous imprisonment and to pay Rs. 10,000/- as fine and in default thereof to further undergo three months S.I.

Under Section 24 of the Sindh Arms Act, 2013:- To undergo rigorous imprisonment for five years and to pay Rs. 10,000/- as fine and in default thereof to further undergo three months S.I.

All the sentences were ordered to run concurrently and benefit of Section 382-B, Cr.P.C. was extended to the appellant.

2. The appellant-convict challenged his conviction and sentences before the learned High Court of Sindh, Circuit Court Larkana, through Criminal Appeal No. D-39 of 2019. However, the appeal was dismissed vide judgment dated 06.10.2020. Aggrieved, the appellant filed Criminal Petition No. 184-K of 2020 before this Court, in which leave to appeal was granted vide order dated 20.06.2022, reproduced below:

Malik Naeem Iqbal, learned ASC for the petitioner contends that the impugned judgment has been passed in contravention to the dicta laid down by this Court in the case of Ghulam Hussain v. State (PLD 2020 SC 61) as the incident has taken place on account of enmity between the parties and not to spread the panic and thus the case does not fall within the ambit of the provisions of the Anti-Terrorism Act, 1997 .

3. The prosecution s case as unfolded in Crimes Nos. 111 and 112 of 2016 on 02.11.2016 Muhammad Idrees Wahoocho ASI (PW.l) along with Police Constables ( PCs ) , namely, Muhammad Ayoub (PW.2), Abdul Hameed Babar and Kehar Lashari was on his duty at Judicial Lockup Warrah when Muhammad Jurial HC (PW.7), Constables, namely, Zahid Ali (PW.6), Siraj Ahmed and Abdul Waheed, brought Abdul Wahab deceased in custody, who was accused in Crime No. 108/2016, under sections 365-B, 452, 148, 149, P.P.C., registered at Police Station Warrah wherein he was charged for abduction of Mst. Farzana and disclosed that the deceased had been remanded to judicial lockup for ten days, therefore, they have brought him for safe custody at Sub-Jail/Judicial Lockup Warrah. Since, Tarique Hussain Soomro Jailor, was not present, therefore, the deceased was made to sit in handcuffs in the courtyard of the Judicial Lockup. At 1530 hours, the appellant along with co-accused Yaad Hussain, Fayaz and Ali Jan, duly armed with pistols came there and started indiscriminate fire upon the deceased Abdul Wahab deceased and the police party as alleged in FIR, as a result, he got hit and died on the spot in police custody whereas constables Zahid Ali and Muhammad Ayoub also sustained firearm injuries. After counter firing in self-defense by the police, the appellant was apprehended at the spot along with the crime pistol. The injured police constables were shifted to Taluka hospital, Warrah, for medical treatment. Constables Abdul Hameed and Kehar Lashari were left with the dead body of the deceased while Muhammad Idrees Wahoocho ASI/complainant shifted the appellant to Police Station where he lodged crime reports ( ibid ). Motive behind the occurrence was that the deceased was charged for the abduction of Mst. Farzana daughter-in-law of co-accused Ali Jan.

4. We have heard the arguments of learned counsel for the appellant and the learned Additional Prosecutor General Sindh, representing the State, perused the evidence and the impugned judgment.

5. According to the crime reports, the occurrence took place on 02.11.2016 at 1530 hours within the courtyard of the Judicial Lockup/Sub-Jail Warrah which was reported with promptitude at 1630 hours, on the same day, by Muhammad Idrees Wahoocho ASI (PW.l) who was then serving as the Incharge of the said Judicial Lockup. Abdul Wahab deceased along with co-accused was charged under sections 365-B, 452, 148, and 149 of the Pakistan Penal Code ( P.P.C. ) , registered at Police Station Warrah, for the abduction of Mst. Farzana daughter-in-law of co-accused Ali Jan and in the said case the deceased was in the Judicial custody. On the fateful day, pursuant to the grant of ten days judicial remand order by the competent court of Judicial Magistrate, the deceased was brought in custody to the Sub-Jail Warrah by PCs, namely, Muhammad Jurail, Zahid Ali, Siraj Ahmed and Abdul Waheed. Due to absence of the Jailor of the said Sub-Jail at the relevant time, the deceased was made to sit in handcuffs in the courtyard of the premises. At about 1530 hours, the appellant, accompanied by co-accused, duly armed with pistols, entered the Judicial Lockup and opened indiscriminate fire upon the deceased, resulting in fatal firearm injuries, leading to his death at the spot. It is also established on the record that as a consequence of the said firing, two police constables, namely, Zahid Ali and Muhammad Ayoub, also sustained firearm injuries. The ocular account of the incident was furnished by three prosecution witnesses (PWs), namely, Muhammad Idrees Wahoocho ASI (PW-1), PCs Zahid Ali (PW-6), and Muhammad Ayoub (PW-7). These witnesses are independent, disinterested and had no motive or animosity against the appellant to falsely implicate him. Their testimony is consistent, cogent, and confidence-inspiring, being in complete harmony with each other on all material particulars including the day, date, time and location of the occurrence as well as the identity of the assailants and the mode and manner of the commission of the offence. The presence of these eye-witnesses at the scene of occurrence stands fully established as Muhammad Idrees Wahoocho ASI was the officer incharge of the said Judicial lockup and the other two constables were injured in the same incident. Their presence at the crime scene is thus both natural and unimpeachable. Despite being subjected to extensive cross-examination by the defence, nothing material could be elicited to cast doubt upon credibility of the eye-witnesses or to shake their testimony.

6. The appellant was apprehended red handed at the spot by Muhammad Idrees Wahoocho ASI (PW. 1) and from his possession 30-bore crime pistol was recovered. Four crime empties of 30 bore were recovered from the crime spot, particularly, the place of the appellant and upon forensic examination by the Office of the Forensic Science Laboratory, Forensic Division Larkana, it was opined that these empties were fired from the pistol recovered from the appellant. This scientific/circumstantial evidence lends corroboration to the ocular account.

7. The prosecution further relied upon the recovery of blood-stained material from the place where the deceased had fallen. The same along with the bloodstained clothes of the deceased was sent for serological analysis and yielded a positive report, thereby further substantiating the prosecution version. In addition, the prosecution produced copy of FIR No. 108/2016 (Exh.11-D), wherein the deceased had been nominated as accused for the abduction of Mst. Farzana. Remand order (Exh. 11-F) whereby the deceased was lawfully remanded to judicial custody has also been brought on record by the prosecution. This documentary evidence further supports the ocular account of the prosecution s case.

8. The medical evidence furnished by Dr. Jalaluddin Magsi (PW-9), who had medically examined the two injured eye-witnesses, namely Constable Zahid Ali and Constable Muhammad Ayoub, supports the ocular account furnished by the prosecution. As per opinion of PW.9, the injury sustained by Constable Zahid Ali was fresh, caused by a firearm, and classified as Ghayr Jaifah Hashimah . Likewise, the injury sustained by Constable Muhammad Ayoub was declared to be fresh, firearm-induced and was categorized as Ghayr Jaifah Mutalahimah . On the same day, Dr. Jalaluddin also conducted the postmortem examination of the deceased Abdul Wahab and noted the presence of four firearm entry wounds on various parts of his body. All the wounds were of similar dimensions, indicating consistency in the nature of weapon used. The cause of death of the deceased, as opined by the medical expert, was unnatural and directly attributable to the firearm injuries sustained by him. In this view of the matter, the medical evidence lends substantial support to the ocular testimony of the prosecution witnesses.

9. On reappraisal of the evidence on record, we have arrived at the conclusion that the concurrent findings of the two courts below regarding the guilt of the appellant are based on proper appreciation of evidence on record to which no exception can be taken.

10. The pivotal legal question for determination before us in this case is Whether the launching of a murderous assault, ostensibly arising from a private party personal vendetta but resulting in injuries to law enforcement personnel/police officials lawfully performing their duties, falls within the definition of "terrorism" under Section 6 of the Anti-Terrorism Act, 1997 ("ATA")?

11. In Ghulam Hussain v. The State (PLD 2020 SC 61) , a larger Bench of this Court undertook a comprehensive analysis of the jurisprudence surrounding the concept of terrorism. It was categorically held that not every offence which causes fear or panic amounts to terrorism. The Court emphasized the importance of distinguishing between ordinary crimes ambitious by personal vendetta or private enmity and those crimes that are intended to create terror or insecurity in society at large or to coerce or intimidate the Government, a section of the public or a community, often to further ideological, political, or sectarian objectives. Ghulam Hussain s judgment clarified that the intent of the offender(s) and the societal impact of the act must be assessed in light of the statutory criteria laid down under Section 6 ATA. Where the primary motive is personal revenge or a private dispute, such acts do not constitute terrorism, even if they incidentally induce fear among others.

12. With great respect, the judgment in Ghulam Hussain's case ( supra ) does not address a specific and complex category of incidents namely, where officials or officers of the law enforcement agencies suffer injuries or lose their lives in the course of a private dispute between third parties, while in line of their duty. The present case falls squarely within the said category. No doubt, in this case the primary target of the accused was the deceased ( a private individual ), against whom accused bore personal enmity, but the fact remains that the target was in the police custody at the time of the attack, and the police officials deputed for security of the deceased also sustained firearm injuries as a direct result of the said attack. We do not seek to depart from the principles laid down in Ghulam Hussain s case ( supra ). Rather, the present situation calls for a refined application of the legal framework to examine whether such incidents, where law enforcement officers/officials are injured or killed while performing official duties would fall within the legislative intent of Section 6 of the ATA.

13. It is clear from a textual reading of section 6 ATA that an action categorized in subsection (2) thereof constitutes the offence of terrorism when it has either the said design under section 6(l)(b) ATA or the said purpose under section 6(l)(c). Therefore, the three ingredients of the offence of terrorism under section 6(1) ATA are, commission of an act enumerated in Section 6(2), the existence of a particular design under section 6(l)(b) or purpose under section 6(l)(c); and the impact of such act in terms of intimidating or creating fear and insecurity in the public or a section thereof. Similarly, in Ghulam Hussain v. The State (PLD 2020 SC 61) , the hon'ble Larger Bench of this Court observed that fear or insecurity per se is not decisive of terrorism until the requisite mens rea is present.

14. The substitution of the word design in Section 6 ATA has broadened the scope of judicial inquiry. The term design refers not only to actual intent but also to the object or scheme in the mind of the offender(s) that culminates in execution of the act. Thus, the test now centres not on whether fear or insecurity was actually caused, but whether the act was designed to achieve such an outcome. This change places the focus on the mental framework and objective of the offenders(s) rather than the incidental impact alone.

15. The Larger Bench in Ghulam Hussain case acknowledged that the motive stated in the FIR serves only as background, however, it is the nature and consequences of the overt acts, as well as the presumption that natural consequences of a deliberate act are intended, which enable the court to ascertain the real mens rea under Section 6(l)(b) & (c) of the ATA. The design and execution of the act needs to reflect not merely private vengeance, but a premeditated attack on law enforcement authority. This also constitutes serious intimidation/coercion within the meaning of Section 6(2)(m) and acts of serious violence against public officials under Section 6(2)(n) of the ATA. For ready reference both the above referred sections are reproduced below:-

Section 6(2)(m):

Serious coercion or intimidation of a public servant in order to force him to discharge, or refrain from discharging, his lawful duties.

Section 6(2)(n):

Serious violence against a member of the police force, armed forces, civil armed forces, or a public servant.

16. In order to properly interpret and apply the provisions of Section 6(2)(m) and (n) ATA, it is necessary to understand the legal connotation of the terms employed therein, particularly serious coercion , serious intimidation , and serious violence . The term serious coercion refers to acts which are intended to threaten, abuse, humiliate, frighten, punish, or otherwise intimidate a public servant with the objective of compelling or preventing them from carrying out their lawful duties. Similarly, serious intimidation involves conduct designed to pressurize or unduly influence a public servant to act in violation of their official responsibilities.

17. The expression serious violence , as defined in Section 2(w) of the ATA, encompasses any act of violence that poses a danger to life or property. In legal parlance, the terms serious and grievous are often used interchangeably to denote acts resulting in or capable of causing significant harm. Accordingly, grievous bodily injury , as defined under Section 2(j) ATA, falls within the purview of serious violence for the purpose of Section 6(2)(n) ATA. Section 2(j) ATA grievous bodily injury to include any emasculation, mutilation, incapacitation, disfigurement, Therefore, any violent act that causes, or has the potential to cause, such injury to a police official or public servant in the line of duty, clearly attracts the mischief of Section 6(2)(m) and (n) ATA.

To further understand the scope of serious violence, it is helpful to look at how the term is interpreted in other jurisdictions. For example, under Section 5A of the Crimes (High Risk Offenders) Act 2006 of New South Wales, Australia, a serious violence offence is defined as:

Serious violence offence" is a serious indictable offence that is constituted by a person--

[a]. A serious indictable offence constituted by conduct that causes the death or grievous bodily harm to another person, committed either with the intention to do so, or with reckless disregard for such consequences.

This comparative perspective shows that in other legal systems as well, the term serious violence is reserved for the most severe forms of harm, particularly those that endanger life or cause grievous bodily injury. Such conduct goes beyond ordinary criminal behavior and crosses into the domain of extreme violence threatening public safety and order. Accordingly, if a police or security official, while performing official duties, is killed, suffers injuries or life-threatening injuries, loses a limb, or sustains permanent damage that renders them unable to continue their duties, such an act clearly qualifies as serious violence within the meaning of Section 6(2)(n) of the ATA.

18. We are mindful of the fact that Section 6(l)(b) and (c) of the ATA introduces the critical requirement of mens rea , the mental element or intent behind the act which for ready reference are reproduced below:-

Section 6(1)(b) ATA:

The use or threat is designed to coerce, intimidate, or overawe the Government...

Section 6(1)(c) ATA:

The use or threat is made for the purpose of intimidating or terrorizing government officials, installations, security forces, or law enforcement agencies.

These provisions make it clear that for an act to constitute terrorism, it must not only involve serious coercion or intimidation under section 6 2(m) or serious violence as enumerated under section 6(2)(n) ATA, but also be committed with a specific purpose or design, namely, to intimidate, threaten, or undermine State institutions, law enforcement, or public order. It is important to clarify two types of situations involving harm to law enforcement personnel.

Firstly, when police or security officials are deliberately targeted, for example, during an armed ambush or bombing meant to spread fear or disrupt the State, such attacks clearly fulfill both the physical and mental elements of terrorism. These are straightforward cases falling squarely within the scope of the ATA. However, more complex are cases where harm to law enforcement personnel occurs incidentally, for instance, during a private conflict between third parties, or while an official/officer is attempting to apprehend offender(s) engaged in illegal activities. Here, the violence may not be aimed specifically at intimidating the government or public institutions, but may nonetheless result in serious injury or death to police officers/officials. It is this second category, where officers/officials suffer harm not as primary targets, but while carrying out their lawful duties.

19. The key question becomes whether such acts, although serious and harmful, also meet the specific intent requirement set out in Section 6(1) ATA. Without that design or purpose, the act may remain criminal, but not rise to the level of terrorism under the ATA. There can be different situations based on this element of intent. One can arises where the weapon was kept with the deliberate intention to use it against security officials in the event of their intervention or apprehension during the course of commission of an illegal activity. In such situations, it becomes apparent that the individual, while engaging in a criminal or illegal act, keeps a weapon with the conscious intention that, if apprehended, such apprehension will inevitably be attempted by a police or security official. This demonstrates that the primary and foreseeable target of resistance is the law enforcement authority, who, in the discharge of duty, will move to restrain the offender. The possession of the weapon with the intent of using it against security officials is thus clear and explicit. In practice, the offender will seek every possible means to evade arrest, including resort to indiscriminate attacks which may cause serious violence within the meaning of Section 6(2)(n) ATA. At the same time, such conduct equally amounts to employing serious coercion or serious intimidation within the meaning of Section 6(2)(m) ATA, insofar as it seeks to deter or obstruct law enforcement officials from fulfilling their lawful functions. This intention, therefore, satisfies the requisite mens rea envisaged by Section 6(1), particularly clause (c) ATA, for it is directed at intimidating and terrorizing law enforcement agencies in the line of duty.

Secondly where the weapon was kept in possession by the accused with the intention of committing a crime against a private individual being the primary target, and the harm is also caused to security officials in line of duty. It include but is not limited to situations where the attack occurs in such a premises where police presence is explicit and inevitable, such as Courts, Police Stations, or lock-ups or even in transition of private accused person from or towards such quarters. In such circumstances, the offender(s) acts with the knowledge that law enforcement officials will necessarily be present, and that harm to them is a foreseeable, if not intended, consequence of carrying out the attack. This transforms the act into one attracting the provisions of the Anti-Terrorism Act. Initially, such conduct may fall within clause (m) of Section 6(2) ATA, as it involves serious coercion or intimidation of officials to deter them from performing their lawful duty. Yet, where the attack escalates to indiscriminate firing, thereby creating the risk of death or serious injury to police personnel, it equally fulfills the definition of serious violence under clause 6(2)(n) ATA.

20. We deem it appropriate and in the interest of justice to mention that it is an undeniable fact that officers/officials of the law enforcement agencies frequently face grave risks while executing their official duties. The dangers they face, often culminating in their injuries or death, are not the product of their personal disputes, but are a direct consequence of their legal responsibility to uphold public order and enforce the law. Police personnel operate in environments that frequently place them in close proximity to accused who are the subject of intense personal, tribal, sectarian, or criminal hostilities. In such situations, the police become obvious and inevitable obstacles to those who seek to harm or eliminate the accused in custody. Importantly, when perpetrators design an armed attack on accused under custody, they anticipate resistance from the police. The ensuing injuries or deaths of the police officers/officials are not incidental or accidental in such incidents, but are a calculated component of the criminal plan, intended to neutralize lawful resistance. This renders the police officers/officials deliberate targets, and elevates the nature of the violence from a private act of vengeance to an attack on the law enforcement machinery of the State. Such acts, by their very nature, undermine the authority of the State, instill fear among law enforcement personnel and have a chilling effect on the administration of justice.

21. Now turning to the facts of the present case, it is evident from the record that although the initial motive of the accused stemmed from a personal vendetta, the manner in which the offence was composed and executed, goes beyond the confines of a private dispute. Abdul Wahab deceased was under lawful police custody at the time of occurrence and present within the precincts of the judicial lockup in compliance with court orders. Fully cognizant of the above facts, the appellant and his co-accused chose to launch an armed attack in the very courtyard of the judicial lockup, indiscriminately opening fire upon not only at their intended target but also the police escort/officials, thereby disregarding the presence of law enforcement personnel performing official duties. Such an act, by its very nature, demonstrates preparation, anticipation of resistance, and a willingness to overcome lawful authority through violence. The harm caused to police officials in the instant case cannot be said as collateral or unintended. Rather, it formed an integral component of the accused s design. The elimination of resistance of the police was evident within the contemplation of the accused and formed part of their broader scheme to execute a targeted killing within a judicial lockup. The location, timing, and method of the attack, particularly within a judicial lockup are critical factors which reflect not merely a personal motive but a deliberate outrage to State authority and the judicial process. By launching such a violent act in a public Institution under official protection, the accused sought not only to eliminate the deceased but also to undermine/challenge the authority of the State, overawe law enforcement officials, and create fear and insecurity among the jail staff, judicial officers, and other inmates.

22. For the purposes of Section 6(2)(n) ATA the inquiry is an objective one, whether the conduct in question posed a real and substantial danger to the lives or property of law enforcement personnel acting in the discharge of their official functions. An actual fatality is not a prerequisite. Rather, any act which creates a credible threat to life, such as gunfire directed at police officials, or the use of firearms in a volatile environment where officials are present, meets the statutory threshold. The fact that the police personnel were on official duty at the time of the attack fully satisfies the requirement of " in performance of official duties as contemplated under the statute. In this context, reliance may be placed on the judgment of this Court in Muhammad Nawaz v. The State (PLD 2014 SC 383) , wherein it was categorically held that firing upon a police party, which was in uniform and engaged in lawful duties, and thereby creating obstruction in the discharge of their functions, constitutes serious violence against members of the police force. Therefore, the acts committed in the present case, including the use of deadly weapons, indiscriminate firing, and the direct endangerment of police officials performing their official duties, fall squarely within the mischief of Section 6(2)(n) of the ATA. The objective danger to life, irrespective of whether it materialized into a fatality, coupled with the deliberate targeting of officials, establishes both the actus reus and the requisite mens rea under the Anti-Terrorism framework.

23. For what has been discussed above, we are firm in our view to hold that in cases where the officers/officials of the Law Enforcement Agencies are harmed or killed not because of personal enmity, but solely because of their deployment for discharging of lawful duty, and where such attacks are deliberately planned as part of an assault/attack on a person(s) in custody, the intent and effect of the act transcend private vendetta attract provisions of ATA. The targeting of police personnel in the performance of their duties, particularly, through premeditated armed assaults even on a private party or while committing any illegal act, constitutes a direct challenge to State authority and the justice system. Such act shall fall within the definition of terrorism. This refined analysis does not unsettle the jurisprudence established in Ghulam Hussain s case, but rather supplements it by recognizing that serious violence against law enforcement agencies, even in the context of private feuds of third parties, may acquire the character of terrorism when it systematically targets those upholding the rule of law. It is also to be noted that if any harm is caused to an official outside their official duty hours on account of an act performed by them in discharge of their official duties, i.e. as consequence of their official duty , such harm shall equally be treated as arising from their official role and would thus amount to terrorism.

24. It is equally important to draw a clear distinction that where a police or law enforcement official(s) is/are harmed solely due to personal enmity, without any intention of accused to attack law enforcement officials in their official capacity, such acts would not amount to terrorism. In such cases, the conduct, while criminal and punishable, falls outside the scope of the ATA and shall be dealt with under the ordinary provisions of the Pakistan Penal Code or other applicable law.

25. While trying a scheduled offence, the Anti-Terrorism Court (ATC) is empowered under Section 21M of the Anti-Terrorism Act, 1997 to also jointly try any other offence committed by the accused, provided it is connected with the offence triable under ATA. However, it is very crucial to note that merely by virtue of being tried in the Anti-Terrorism Court, a scheduled or non-scheduled offence does not assume the character of a terrorism offence, and remains punishable under the ordinary criminal law.

26. For the reasons discussed above, this appeal is partly allowed. The impugned judgment is upheld to the extent of the convictions recorded under Sections 302(b), P.P.C., 324 P.P.C., 353 P.P.C., and Section 24 of the Sindh Arms Act, 2013, which are maintained. However, the convictions under Sections 7(a) and 7(b) of the Anti-Terrorism Act, 1997 are set aside and altered to Section 7(h) of the said Act. Consequently, the petitioner is sentenced to five years imprisonment and a fine of Rs. 50,000/-, and in default of payment of fine, to further undergo simple imprisonment for a period of three months. Benefit of 382-B, Cr.P.C is extended to the appellant. All convictions shall run concurrently.

MH/R-15/SC Order accordingly.