Ch. BASHIR AHMAD vs NAVEED IQBAL and 7 others

MUHAMMAD BASHIR JEHANGIRI, J.---This appeal by leave of the Court is directed against an order passed in Writ Petition No,2898 of 1999 filed by Ch. Bashir Ahmed appellant on 10-3-1999, whereby the order of the learned Judge, Special Court, constituted under the Anti-Terrorism Act (XXVII of 1997) (hereinafter called as the Act) transferring the case to the Court of learned Sessions Judge was upheld.

2. Ch. Bashir Ahmed appellant reported the incident of burning of his daughter by the accused respondents by sprinkling spirit on her person. The motive for the offence was described to be the failure of the victim to fetch a car in dowry to the family of her husband. It appears that the daughter of the appellant succumbed to her burns after few days, therefore, section 302, P.P.C. Was added to the charge also. The challan was submitted for trial in the Special Court under the Act.

The accused respondents submitted an application under section 23 of the Act praying therein for the transfer of the case to the ordinary Court of competent jurisdiction for trial. The learned Judge Special Court while accepting the application ordered the transfer of the case to the learned Sessions Judge concerned. This order was challenged in Writ Petition No,2898 of 1999 before the Lahore High Court, Lahore.

3. The learned Judges of the Division Bench who were seized of the matter, declined to oblige the appellant vide their reasoning in paras. 4 and 5 which are reproduced hereunder:- "4. We have heard both sides at length in our view, the alleged offence does not have any nexus with section 6 of the Schedule of the Anti-terrorism Act, 1997, in the absence whereof, the jurisdiction of the Special Court, Anti-Terrorism is not attracted. The learned counsel for the petitioner failed to demonstrate as to how the alleged offence could be said to have struck a terror or fear of feeling of terror to the general public. We have not been persuaded to take any exception to the impugned order dated 13-2-1999 passed by the learned Judge, Special Court, Anti-Terrorism, Gujranwala Division, Gujranwala.

5. For the foregoing reasons, this writ petition fails and is dismissed in limine."

4. Leave to appeal was granted in this case to consider the following points:--

(i) Whether the allegations made in the F.I.R. Constituted terrorist act, as defined by section 6 of the Act?

(ii) Whether the offence allegedly committed by the accused/ respondents will be punishable under section 7 of the Act or under section 302, P.P.C.

(iii) Whether the offence, with which the accused are charged are scheduled offences so as to be tried by Anti-Terrorism Court?

(iv) What will be the effect of the law enunciated in Mehram Ali v. Federation of Pakistan and others PLD 1998 SC 1445, over the disputed points arising in this case?

5. Mr. Obaidur Rehman Lodhi, learned Advocate Supreme Court appearing on behalf of the appellant has at the outset invited our attention to the definition of the Terrorist Act as provided in section 6 of the Act which reads as under:--

6. Terrorist Act.--A person is said to commit a terrorist act if he--

(a) 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, does any act or thing by using bombs, dynamite or other explosive or inflammable substances, or such fire-arms or other lethal weapons as may be notified, or poisons or noxious gases or chemicals, in such a manner as to cause, or be likely to cause, the death of, or injury to, any person or persons, or damage to, or destruction of, property on a large scale, or a widespread disruption of supplies of services essential to the life of the community, or threatens with the use of force public servants in order to prevent them from discharging their lawful duties; or

(b) commits a scheduled offence, the effect of which will be, or be likely to be, to strike terror, or create a sense of fear and insecurity in the people, or any section of the people, or to adversely affect harmony among different sections of the people; or

(c) commits an act of gang rape, child molestation, or robbery coupled with rape as specified in the Schedule to this Act; or

(d) commits an act of civil commotion as specified in section 7-A."

6. Mr. Obaidur Rehman Lodhi, learned Advocate Supreme Court therefore, urged that the causing of the death of the victim in this case by sprinkling of spirit on her person by the accused- respondents was certainly a terrorist act falling squarely within the purview of section 6 of the Act and the Schedule thereto.

7. Mr. Javed Aziz Sindhu, learned Advocate Supreme Court for the respondents, on the other hand, contended that a bare reading of the definition and the item of Schedule annexed thereto, would indicate that the offence mentioned' in the Schedule should have nexus with the object mentioned in sections 6, 7 and 8 of the Act and that if an offence included in the Schedule has no nexus with those sections then the Act shall not fall within the definition of terrorist act as laid down in section 6 (ibid).

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 creation of 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 (Underlining is provided by us for emphasis).

8-A. In the instant case no doubt the offence committed was certainly most heinous in nature but it does not mean that it does qualify to be a terrorist act within the contemplation of section 6 or the Schedule to the Act. In this context, we can do no better than refer to the observation of this Court in the case of Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 at page 1492: "However, it may be observed that the offences mentioned in the Schedule should have nexus with the object of the Act and the offences covered by sections 6, 7 and 8 thereof. It may be stated that section 6 defines terrorist acts, section 7 provides punishment for such acts, and section 8 prohibits acts intended or likely to stir up sectarian hatred mentioned in clauses (a) to (d) thereof. If an offence included in the Schedule has no nexus with the above sections, in that event notification including such an offence to that extent will be ultra vires."

9. For the foregoing reasons, we do not find any merit in this appeal which is accordingly dismissed.