ZIA ULLAH Versus SPECIAL JUDGE, ANTI-TERRORIST COURT, FAISALABAD and 7

ORDER

JAVED IQBAL, J.---This civil petition for leave to appeal is directed against the order, dated 22-10- 2001 passed by learned Division Bench of Lahore High Court, Lahore, whereby the case got registered under sections 302, 324, 148 and 149, P.P.C. Pending trial before the Anti-Terrorist Court, Faisalabad, was withdrawn and transferred to learned Sessions Judge, Jhang.

2.Briefly stated the facts of the case are that Zia Ullah (petitioner) got lodged F.I.R. Bearing No,125, dated 30-3-2000 at Police City Chiniot, alleging therein that while he was proceeding alongwith his father Hameed Ullah, Advocate High Court (deceased), Attaullah and Hidayatullah towards Court and reached at Wakilon Wali Gali near Municipal Committee when Shaukat Hayat, Aslam Khan, Amir Abdullah, Amanullah, Arif Masood, Sanaullah and Zulfiqar emerged at the scene duly armed with pistol and started indiscriminate firing as a result whereof Mr. Hameed Ullah, Advocate was killed and Akbar Khan, Assistant Sub-Inspector of Police sustained injuries who was present there to get his statement recorded before the learned trial Court. A case was accordingly registered under sections 302, 324, 148 and 149, P.P.C. And challan was submitted in the Anti-Terrorism Court, Faisalabad. An application was moved by the respondents that the alleged occurrence took place due to personal enmity and thus the case being outside the purview of Anti-Terrorism Court be transferred to learned District and Sessions Judge, Jhang. The said application was rejected by means of a comprehensive order dated 22-9-2001 which was assailed before learned Lahore High Court, Lahore by means of writ petition bearing No,18526 of 2001 which was accepted vide judgment impugned and case was withdrawn from the Anti-Terrorism Court, Faisalabad and transferred to learned Sessions Judge, Jhang, hence this petition.

3.We have heard at length the learned counsel on behalf of the parties and have carefully examined the entire record. Let us mention here at the outset that the impugned order cannot be termed as speaking one but on the contrary it is perfunctory and appears to have been passed in a cursory manner by ignoring the objects and reasons for the enactment of the Anti Terrorism Act, 1997. The alleged murder was committed in a wanton, reckless and brutal manner and resultantly learned Advocate who was in his robe was done to death in Court vicinity. The gravity of the offence could not be diminished or minimized merely on the ground that alleged murder was not committed exactly within the Court premises as pressed time and again by the learned counsel for the respondents. It is to be noted that one Assistant Sub-Inspector of Police was seriously injured by means of firearms. We are not having the slightest doubt while holding that the alleged occurrence must have caused fear, panic and wave of sensation and thus the matter squarely falls within the ambit and jurisdiction of Special Court. The contents of F.I.R. Have neither been read properly nor understood in its true perspective which resulted in serious miscarriage of justice on the one hand and protracted the trial on the other without any fault of the affected party. It is worth mentioning that the statements of about six witnesses have been recorded and thereafter invocation of Constitutional jurisdiction by filing writ petition by the respondents demonstrates propensity to get the trial prolonged for the reasons best known to them. It is not conceivable that on the one hand the prevailing judicial system is blamed for inordinate delay but when a serious attempt is made for the expeditious disposal of the case the affected parties tried their best to create numerous hurdles under the garb of law to get it delayed. The case in hand can be cited as a classic example for such trend. The learned Sessions Judge is Presiding Officer of the Special Court constituted under the Anti-Terrorism Act, 1997 and his judgment can be assailed before High Court and ultimately this Court, hence the question of any prejudice does not arise. In our considered view no bar whatsoever has been imposed under the Anti-Terrorism Act, 1997 that such cases could not have been tried by the Special Court. Mr. Hameed Ullah, Advocate was On his way to Sub-Divisional Court Chiniot to enter appearance in a murder case and Akbar Khan, Assistant Sub-Inspector of Police was going to get his statement recorded in a criminal case got registered under sections 302, 324, 148 and 149, P.P.C. It is an admitted feature of the case that indiscriminate firing was made which caused the fateful occurrence and created sensation and wave of panic which amounts to sense of insecurity not only amongst a section of public but community of Advocates as well. We have given a careful consideration to the relevant provisions of the Anti- Terrorism Act, 1997 and we are of the view that if the accumulative effect of the provisions as contained in sections 6(i) (b), 6 (2) (a) (m) and (n) is examined the only irresistible conclusion would be that the alleged occurrence falls within the ambit of section 6 of Anti-Terrorism Act, 1997. It is observed with grave concern that the learned Division Bench has ignored order dated 18-6- 2001 passed by a learned Single Bench. Of the same High Court and relevant portion whereof is reproduced hereinbelow for ready reference:--

The order dated 12-12-2000 passed by the Lahore High Court was also ignored by the learned Division Bench which has resulted in confusion and serious miscarriage of justice.

4.We have examined the case-law as cited at the bar by the learned counsel for the respondents. Insofor as the dictum as laid down in case titled Abdul Karim v. State (1999 M LD 3236) is concerned that is not applicable being distinguishable as in the said case there was police encounter but neither any police officer was killed nor injured while one of the accused was killed by police and thus the alleged encounter was a bit suspicious. Besides that it escaped from the notice of learned counsel for respondents that section 6 of the Anti-Terrorism Act, 1997 was substituted by the Anti- Terrorism (Amendment) Ordinance (XXXIX) 2001, on 15th August, 2001 which is capable enough to meet all sort of such eventualities. Similarly the dictum as laid down in case titled Bashir Ahmad v. Naveed Iqbal (PLD 2001 SC 521) cannot be made applicable in this case for the simple reason that the alleged sprinkling of the spirit on the person of victim was within the boundary wall of the appellant's house which was not a public place and accordingly the elements of striking terror or create sense of fear and insecurity were found missing. Insofor as the case in hand is concerned a learned Advocate who was in his robe and on his way to Court to conduct trial of a murder case was murdered in a brutal and merciless manner and an Assistant Sub-Inspector of Police was injured within, the Court vicinity which resulted in terror, fear and sensation. It is to be noted that order dated 22-9-2001 passed by learned trial Court is well reasoned which has been set aside without any lawful justification. As mentioned hereinabove the impugned judgment is without any reasoning and the learned Division Bench did not bother to have gone through the relevant provisions of the Anti-Terrorism Act, 1997 and the objects and reasons for its enactment. Besides that the learned Division Bench has not taken into consideration the previous orders passed in this regard by learned Lahore High Court, Lahore for the reasons best known to them.

5.In the light of foregoing discussion we are inclined to convert this petition to that of appeal by granting leave and the 'same is accepted and impugned judgment is hereby set aside. The case got registered vide F.I.R. No,125 dated 30-3-2000 by Zia Ullah under sections 302, 324, 148 and 149, P.P.C. At Police Station Chiniot, District Jhang, is hereby withdrawn from the Court of learned District Judge/Additional Sessions Judge, Jhang, and transferred to learned Anti-Terrorism Court, Faisalabad. The observations made hereinabove are tentative in nature and shall not affect the merits of the case.