Syed Shahab-ul-Hassan Gillani Versus Special Judge, Anti-Terrorism Court-II, Islamabad

Khadim Hussain Soomro, J .--- Through this judgment, we intend to decide the instant revision petition directed against the order dated 17.12.2025 passed by the learned Judge, Special Court II, Anti-Terrorism, Islamabad, whereby the application under section 23 of the Anti-Terrorism Act, 1997 ("the 1997 Act"), and transfer of the case to a Court of ordinary jurisdiction was dismissed.

2.The learned counsel for the petitioners was put on notice to satisfy the Court on the point of maintainability of the instant petition. Learned counsel for the petitioners submits that under the doctrine of conversion, the instant petition can be converted into a revistons petition.

3.Learned counsel for respondent No.2 assisted by learned State counsel contends that writ petition cannot be converted into revision as the scope of writ petition and revision are completely different; that the writ petition is liable to be dismissed and the petitioners may file a fresh revision.

4.Before adverting to the merits of the controversy, it is necessary to address the objection regarding the form of the proceedings. The record reveals that the impugned order was passed by the learned trial Court on 17.12.2025, whereas the present lis was instituted before this Court on 14.01.2026. Thus, the proceedings were initiated within a reasonable period and well within the prescribed limitation. Consequently, neither the law of limitation nor the equitable doctrine of laches constitutes any impediment to the exercise of jurisdiction by this Court. The petitioners have approached this Court with due diligence and promptitude, leaving no room to infer acquiescence, waiver, or abandonment of their legal rights. The dispute has been brought before this Court without any undue delay. The question, therefore, is not whether the litigant has approached the Court in time, but whether the relief sought can be granted by employing the well-recognized doctrine of conversion.

5.The administration of justice is not a ritualistic exercise subservient to technicalities, nor can the rights of litigants be allowed to perish merely because a remedy has been invoked under an incorrect provision of law. Procedural law is intended to facilitate the attainment of justice and not to obstruct it. The superior Courts, being guardians of legal rights and protectors of substantive justice, are vested with ample authority to mold proceedings in a manner that advances the cause of justice and prevents miscarriage thereof. Where the Court possesses jurisdiction over the subject matter under another legal provision, insistence on procedural form at the expense of substantive rights would amount to sacrificing justice at the altar of technicality.

6.The doctrine of conversion is founded upon the principle of substantial justice. The true character of a proceeding is to be determined from its substance and not from the label assigned to it by a litigant. Therefore, where a litigant has approached a Court possessing the requisite jurisdiction but has invoked an incorrect remedy, the Court is not rendered powerless. Rather, it is empowered to convert the proceedings into an appropriate form so that the controversy may be adjudicated on merits instead of being defeated on technical grounds.

7.The Hon'ble Supreme Court of Pakistan, in the case of Muhammad Akram v. DCO, Rahim Yar Khan and others (2017 SCMR 56), while emphasizing the paramountcy of substantive justice over procedural formalism, held as under:-

8.The above pronouncement is a clear manifestation of the constitutional philosophy that Courts exist to dispense justice and not to deny it on account of procedural imperfections. The superior Courts have consistently exercised the power of conversion where the interests of justice, avoidance of multiplicity of proceedings, and expeditious adjudication of disputes so demanded. Since the present matter has been instituted within the prescribed period and this Court otherwise possesses the requisite jurisdiction to examine the controversy in its appropriate form, no useful purpose would be served by relegating the parties to initiate fresh proceedings. The ends of justice would, therefore, be best served by treating the present proceedings as having been instituted in the proper jurisdiction and deciding the controversy on its merits. In view of the law laid down in the said judgment, the instant writ petition is converted into a Revision Petition.

9.Now, reverting to the brief facts of the case, it is that respondent No.2 / complainant lodged an FIR on 25.10.2024 against unknown persons alleging the murder of his brother, Syed Haider Ali Shah. The report under section 173 of the Code of Criminal Procedure, 1898 ( "Cr.P.C" ), was submitted before the learned Judge, Special Court-II, Anti-Terrorism, Islamabad, and cognizance was taken by the said Court. Thereafter, the petitioners moved an application for transfer of the case from the said Court to the ordinary Court of jurisdiction, which was dismissed vide impugned order dated 17.12.2025. The petitioners have assailed the said order in the instant petition, which has been converted into a Revision Petition.

10.Learned counsel for the petitioners, after narrating the facts leading to the filing of the instant petition, submits that sections 6 and 7 of the 1997 Act are not attracted to the facts and circumstances of the case; that section 6 has been included simply on the ground that the deceased was the police official, however at the relevant time, he was not performing his duties but he was on domestic assignment; and that the case ought to be heard by the Court of ordinary jurisdiction instead of Court of the learned Judge, Special Court-II, Anti-Terrorism, Islamabad. Learned counsel for the petitioners prayed that the impugned order dated 17.12.2025 be set aside and the case be transferred from the learned Anti-Terrorism Court-II, Islamabad, to the Court of ordinary jurisdiction.

11.On the other hand, learned counsel for respondent No.2 /complainant, along with learned State Counsel, submits that the deceased, Syed Haider Ali Shah, was serving in the Police department; that he was murdered on the ground that he was supporting the opposite party of the accused; that in these circumstances, section 6 of the 1997 Act is fully attracted. They prayed that the instant petition be dismissed.

12.We have heard the contentions of the learned counsel for the contesting parties as well as the learned State Counsel and have perused the material available on the record with their able assistance.

13.In order to properly appreciate the jurisdictional controversy involved in the present matter, it is necessary to bear in mind that the 1997 Act, is a special and self-contained statute enacted with the object of combating terrorism, sectarian violence, and other offences having far-reaching consequences on public order and societal security. Recognizing the extraordinary nature of such offences, the legislature has devised a distinct legal framework governing the registration, investigation, prosecution and trial of cases falling within the ambit of the Act. The jurisdiction conferred upon Anti-Terrorism Courts is, therefore, exceptional in character and is intended to be invoked only in cases where the allegations squarely satisfy the statutory requirements contemplated under sections 6 and 7 of the 1997 Act.

14.Section 23 of the Anti-Terrorism Act, 1997 deals with the powers of trial court to transfer cases to regular court. To understand The true spirit of the Section 23 of the Act, it is reproduced as under:-

15.A plain reading of Section 23 of the 1997 Act reveals that the legislature has consciously vested the Anti- Terrorism Court with the authority to examine, even after taking cognizance of an offence, whether the allegations before it genuinely fall within the ambit of the said Act. The provision recognizes that mere submission of a challan before the Anti-Terrorism Court or the incorporation of provisions of the 1997 Act in the FIR does not conclusively determine jurisdiction. Rather, the Court is under a continuing obligation to independently assess whether offence qualifies as a scheduled offence triable under the special law. The phrase "where, after taking cognizance of an offence, an Anti-Terrorism Court is of the opinion that the offence is not a scheduled offence" is of considerable significance. It demonstrates that jurisdictional scrutiny is not confined to the stage of registering the case or submitting the police report, but may also be undertaken by the Court after cognizance has been taken. Thus, the legislature has empowered the Anti-Terrorism Court to revisit the question of jurisdiction whenever the material on record indicates that the essential ingredients of terrorism are absent.

16.The use of the word "shall" in section 23 is equally important and leaves no discretion with the Anti- Terrorism Court once it reaches the conclusion that the offence is not scheduled. The provision imposes a mandatory duty upon the Court to transfer the case to a Court of ordinary criminal jurisdiction. The legislature has deliberately employed mandatory language to ensure that persons accused of ordinary offences are not subjected to the extraordinary jurisdiction and procedure of the 1997 Act.

17.The expression "notwithstanding that it has no jurisdiction to try such offence" further clarifies that although the Anti-Terrorism Court lacks jurisdiction to conduct the trial of an offence which does not fall within the Act, it nevertheless retains the limited statutory authority to transfer the case to the competent Court. This non-obstante clause is intended to prevent procedural deadlock and to ensure continuity of proceedings without compelling the parties to recommence the process afresh.

18.The latter part of the provision, which stipulates that the transferee Court "may proceed with the trial of the offence as if it had taken cognizance of the offence", embodies the legislative intent of preserving all proceedings lawfully undertaken before the Anti-Terrorism Court. The purpose is to avoid duplication of judicial proceedings, unnecessary delay, and wastage of judicial time. Consequently, upon transfer, the ordinary Court is not required to start the proceedings de-novo but, as if it had taken cognizance of the offence.

19.The Hon'ble Supreme Court of Pakistan has resolved the ambiguity surrounding the definition of "terrorism" in its judgment in the case Ghulam Hussain v. The State (PLD 2020 SC 61). In the said judgment, the Hon'ble Supreme Court of Pakistan has provided clarity on the criteria for determining acts of terrorism under sections 6 and 7 of the 1997 Act. Let us reproduce the relevant para from Ghulam Hussain v. The State (supra ) at some length:-

20.As mentioned above, it is evident from the analysis that the Hon'ble Supreme Court of Pakistan, in the above case, has provided definitive meaning on two commonly misunderstood aspects regarding the definition and application of the term "terrorism" under the 1997 Act. Firstly, it has been decided that regardless of the severity, shock value, brutality, gruesomeness, or horror of an offence, it cannot be characterized as arf act of terrorism unless it is committed with the specific intent or purpose outlined in clauses (b) or (c) of subsection (1) of section 6 of the 1997 Act. Secondly, even if an offence falls directly within the parameters outlined in subsection (2) of section 6, it cannot be deemed an act of "terrorism" if it is motivated by a personal dispute or vendetta.

21.Another important aspect of the case is that, no doubt, the deceased was serving in the Police department, but neither at the relevant time of the incident was he on duty, nor was he coerced or deterred from discharging his lawful duties. Section 6(2)(m)(n) of the 1997 Act does not apply to the facts and circumstances in which the alleged unfortunate incident took place. For the purpose of clarity section 6(2)(m)(n) of the 1997 Act is re-produced as under:-

Section 6(2)(n) involves serious violence against a member of the police force, armed forces, civil armed forces, or a public servant."

22.As per the contents of the FIR itself, the deceased was returning to his residence after purchasing groceries for his household when the unfortunate occurrence took place. Thus, on the face of the record, the deceased was engaged in a purely personal and domestic activity and was not discharging any official function as a police officer at the relevant time. There is nothing in the FIR or in the material collected during the investigation to suggest that he was performing any lawful duty, undertaking any official assignment, conducting an investigation, affecting an arrest, or otherwise acting in his capacity as a member of the police force.

23.In these circumstances, the provisions of section 6(2)(m) of the 1997 Act are prima facie not attracted, as there is no allegation whatsoever that the deceased was subjected to coercion intimidation with the object of compelling him to perform or refrain from performing any lawful duty. Equally, although section 6(2)(n) of the 1997 Act refers to serious violence against a member of the police force, the mere fact that the victim happened to be a police official is not, by itself, sufficient to bring the occurrence within the ambit of terrorism. The clause cannot be interpreted in isolation from the scheme of section 6 as a whole.

24.A harmonious reading of sections 6(2)m and 6(2), of the 1997 Act makes it abundantly clear that the status of the victim as a police officer is not the sole determining factor. The prosecution must also demonstrate that the act was committed with the design, object, or purpose contemplated under section 6(1)(b) or (c) of the 1997 Act. Where the occurrence arises out of personal motives, private disputes, factional rivalry, or circumstances unrelated to the official functions of the victim, the offence, however grave or reprehensible, would not automatically assume the character of terrorism.

25.Therefore, when the admitted prosecution case itself is that the deceased was returning from a domestic errand and was not engaged in the discharge of any official duty, and there is no material to indicate that the occurrence was intended to influence, deter, retaliate against, or otherwise affect the performance of his official functions, the essential ingredients of sections 6(2)(m) and 6(2)(n) read with section 6(1) of the 1997 Act, are conspicuously absent. Consequently, the mere status of the deceased as a police official cannot, in the peculiar facts and circumstances of the case, confer jurisdiction upon the Anti-Terrorism Court.

26.In view of the above, the instant Revision Petition is allowed the impugned order dated 17.12.2025 passed by the Court of the learned Judge, Special Court-II, Anti-Terrorism, Islamabad, is set-aside ; and the case is hereby transferred from the Court of the learned Judge, Special Court-II, Anti-Terrorism, Islamabad, to the Court of ordinary jurisdiction for trial in accordance with the law. Learned Sessions Judge, East, Islamabad, is directed to keep this case on his own board or entrust it to any other Court having jurisdiction for its disposal in accordance with the law, with further directions to proceed with the matter expeditiously and conclude the trial preferably within a period of three months from the date of the receipt of this order.

JK/20/Isl. Revision allowed.