GOVERNMENT OF SINDH through Advocate General, Sindh, Karachi vs ASIF

ORDER

' SAIDUZZAMAN SIDDIQUI, C.J.---The petitioner is seeking leave to appeal against the judgment of a learned Division Bench of High Court of Sindh, dated 25-5-1999 whereby the learned Judges accepted the revision application filed by the respondent and transferred the case pending before the learned Judge Special Court Anti-Terrorism, Hyderabad and Mirpurkhas Division at Hyderabad to the Court of learned Special Judge for Suppression of Terrorist Activities at Hyderabad for disposal according to law.

2. In seeking leave to appeal against the impugned judgment, the learned Advocate-General, Sindh, contended that the case against the respondent registered under section 302, P.P.G. Is exclusively triable before the Special Court Anti-Terrorism, Hyderabad and Mirpurkhas Division at Hyderabad as the murder was committed with the kalashnikov and the deceased involved in the case were public servant. It is further contended by the learned Advocate-General that apart from the fact that the murder was committed with the help of kalashnivkov and the 2 deceased in the case were public servant, the case otherwise fell within the ambit of section 6 of Anti-Terrorism Act, 1997 (hereinafter to be referred as 'the Ace), the learned counsel for the respondent, while opposing grant of leave in the above case, contended that the offence alleged against the respondent having not been committed with a cannon, grenade, bomb or rocket, it is not exclusively triable by a Special Judge, Anti-Terrorism Court. It is further contended by the learned counsel that in so far the allegation against the respondent that he is involved in the murder of 2 public servants, the same was considered by this Court in the case of Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445) but repelled. The observations of this Court in this regard in Mehram Ali's case were as follows:-- "It was urged by Mr. Gilani, learned counsel for some of the petitioners, that a perusal of the amended Schedule indicates that if the victim of a murder case under section 302, P.P.C. Is a member of police, armed forces or civil armed forces or a public servant, the accused of such a case is triable under A.T.A. If the murder had taken place on account of personal enmity and had nothing to do with the discharge of his official functions/duties. Whereas, Ch. Muhammad Farooq, learned Attorney-General, has submitted that in order to terrorise the public servants so that they may not discharge their functions/duties efficiently and effectively, the terrorists started killing public servants, for example, the Commissioner of Sargodha, a Secretary of the Provincial Government in Lahore, Superintendent of Police., Gujranwala, and the Managing Director, K.E.S.C., Karachi, were brutally murdered. According to him, the above acts of terrorism were intended and designed to create panic amongst the public servants. It will suffice to observe that if a Government servant or any other employee of the Government functionaries is murdered because he belongs to the above service and that there was no enmity or plausible reason for commission of the above offence, such a killing is an act of terrorism within the ambit of the Act and can lawfully be included in the Schedule, but if the murder is committed solely on account of personal enmity, such a murder will have no nexus with the above provisions of the Act and will not be triable under the Act. However, this is a matter to be decided by the Special Court as under section 23 of the Act Special Court has been empowered to transfer a case to a regular Court if after taking cognizance of an offence, it is of the opinion that the offence is not a scheduled offence."

After hearing the learned Advocate-General, Sindh, and the learned caveator, we are of the view that the contention raised by the learned Advocate-General that the offence alleged against the respondent under section 302, P.P.C, if amounted to a terrorist act as defined in section 6 of the Act, then notwithstanding the fact that the act was not committed with the weapon mentioned in the Schedule to the Act or that the persons were not public servant, would still be cognizable by a Special Court, Anti-Terrorism, requires further examination as neither in the impugned judgment nor in the case of Mehrum Ali v. Federation of Pakistan (supra) this aspect of the case was examined. We are, accordingly, inclined to grant leave to appeal in the case to consider whether in view of the allegations in the F.I.R. Against the respondent, the case was exclusively triable by a learned Judge Special Court, Anti-Terrorism? Order accordingly.