ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Revision Application No.43 of 2013
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DATE:              ORDER WITH SIGNATURE(S) OF JUDGE(S)
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1.                    For orders on M.A.No.1936/2013.
2.                    For orders on office objection and reply of Advocate at flag A.
3.                    For Katcha Peshi.
4.                    For hearing of M.A.No.1831/2013.
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M/s. Mohammad Ashraf Kazi andWazir Hussain Khoso,
Advocates for applicant Shah Rukh Jatoi.
Mr. Faisal Siddiqui Advocate for Complainant.
Mr. Saleem Akhtar Burriro Additional Prosecutor General Sindh.
          ------------------------------------------------------------------------
 
NAIMATULLAH PHULPOTO, J.-- This Criminal Revision Application is directed
against the order dated 05.03.2013 passed by learned Judge, Anti-Terrorism Court
No.III, Karachi, in Special Case No.16(III)/2013 The State Vs. Shahrukh Jatoi and
others registered at P.S Darakhshan under Section 302/34 PPC.
 
2.       Brief facts of the prosecution case as disclosed in the FIR are that on
25.12.2012 at 0125 hours complainant Orangzaib lodged FIR alleging therein that
on 24.12.2012 at 2330 hours, there was a quarrel between his son Shahzaib and
some boys/accused, namely, Shahrukh Jatoi, Siraj Talpur and others. Matter was
settled then and there. After the period of about 20 minutes, complainant received
information that his son Shahzaib has received firearm injuries and his friend has
brought him to Ziauddin Hospital. On hearing this news complainant along with
PWs Talha Alam and Danish Dosani went to the hospital and found his son lying
dead. Initial investigation was carried out by SI Nafees Ahmed. He prepared
inquest report, visited place of incident on the pointation of eye witness
Mohammad Ahmed Zubairi, secured nine bullets of pistol, two live bullets, pieces
of glasses and plastic cover of side mirror of Swift car driven by deceased Shahzeb
at the time of incident and recovered the said car. On 25.12.2012 it is alleged that
I/O recorded further statement of complainant Orangzaib, his wife Mst. Ambreen,
daughter Ms. Maha, eye witnesses namely 1. Mohammad Ahmed Zubairi, 2.
Mohammad Shah, 3. Abid Hameed and 4. Asghar Hussain. On the basis of
statements of P.Ws including the statements of members of the civil society, the
I/O added Section 354 PPC read with Section 7 ATA, 1997 and made efforts for
arrest of accused. It may be mentioned here that Honourable Supreme Court of
Pakistan took Suo Moto notice of the incident on 01.01.2013 and investigation was
entrusted to Inspector Mohammad Mubeen on the orders of SSP, Investigation
South. On 05.1.2013 accused Siraj Ali Talpur and Sajjad Ail Talpur were arrested.
On 09.01.2013 identification parade of accused was held through P.Ws Abid
Hameed and Asghar Hussain before Judicial Magistrate Karachi South. On
10.01.2013, I/O arrested accused Sikandar Ali. On 11.01.2013 164 Cr.P.C
statements of P.Ws Mohammad Ahmed Zubairi and Mohammad Shah were
recorded. I/O during investigation could not collect any incriminating material
against accused Sikandar Ali to connect him in this case and he was released under
Section 497(2) Cr.P.C. Thereafter, breaking news came on media that main
accused Shahrukh Jatoi had left the country and was hiding himself at Dubai. After
completion of the formalities accused Shahrukh Jatoi was arrested and produced
before the trial Court. His identification parade was arranged through P.Ws Abid
Hameed and Asghar Hussain. On the pointation of accused Shahrukh I/O secured
unlicensed 9 MM Pistol containing four live bullets in its magazine from the car
AHN-022, Toyota mark-II, silver colour and it was seized. As the pistol was
unlicensed separate case u/s 13(e) Arms Ordinance, 1965 was registered against
accused Shahrukh on behalf of state. The empties secured from the place of wardat
and pistol were sent to the Forensic Science Laboratory for report.
 
3.       After completion of the investigation, challan was submitted against the
accused u/s 302/354/109/216/34 PPC read with Section 7 ATA, 1997 in the Anti-
Terrorism Court No.III, Karachi.
 
4.       An application under Section 23 of Anti-Terrorism Act, 1997 for transfer of
the present case to the Court of ordinary jurisdiction was filed on 25.02.2013.
Notice was issued to the SPP. Learned Judge, Anti-Terrorism Court No.III,
Karachi, after hearing both parties dismissed application dated 05.03.2013 mainly
for the following reasons:-
“Examining the instant case with the above yardstick of law, I am
persuaded to agree with the learned advocate for the complainant that
murder of deceased Shahzaib has been committed by the accused with sole
object to set example for public at large more particularly the parents of
young daughter not to object the act of the accused or their employee for
teasing their young daughters. The further statement of the complainant
recorded on 25.12.2012, (on very night of registration of the FIR), manifest
that Miss Maha was teased by house servant (Ghulam Murtaza Lashari) of
Siraj Talpur, she made telephone call to her mother, the later issued
directions to deceased Shahzaib to go for rescue of his sister. Meanwhile,
bickering had taken place between Shahzaib and Siraj Talpur, Sajjad
Talpur, Shahrukh Jatoi, house servant, Salman Jatoi and Asif Lund.
Shahrukh Jatoi and Siraj Talpur were armed with pistols. They issued
threats of dire consequences to Shahzaib, the complainant endeavored to
settle the dispute, he was directed by Siraj Talpur to seek pardon from his
employee by his son Shahzaib. On the direction of the complainant the
deceased did so. Even then the malefactors Shahrukh not accepted the said
pardon and while disclosing his identity of son of rich man namely Sikandar
Jatoi declared to exterminate Shahzaib. Thereafter, again started beaten the
later, whom his father (the complainant) asked to leave the subject place.
The said deceased in his car alone went away, he was followed by accused
persons four in number in a car while making aerial firing. Mohammad
Ahmed Zuberi and Mohammad Shah friends of the deceased also followed
both the cars on the directions of the complainant. After sometime later
informed the complainant that deceased Shahzaib was attacked by the
accused at Khayaban-e-Behria and caused him fire arm injuries, who was
brought at Ziauddin Hospital but could not survive. The similar statement
has been advanced by Mst. Ambreen (mother of the deceased), Miss Maha
so also eye witnesses Mohammad Ahmed Zubairi and Mohammad Shah.
Cropped up point need attention is that when first bickering settled on the
intervention of complainant and deceased had sought excuse from the
accused more particularly from Ghulam Murtaza Lashari (maid servant),
then there was no need/occasion to exterminate the said deceased by the
accused, but while did so the accused had spread terror in the society and
endeavored to send message for the general public at large that, they are
above the law and whatever they like they will do so, no one can restrained
them. The subject act of the accused created sense of fear and insecurity in
the vicinity people as evident from the statements of Athar Nazeer, Kamran
Siddiqui, Shehyar Irfan, Abdullah Sohail and Mohammad Ali, resident of
country club as well as adjacent area, who loudly speaks that due to said
grime act of the present perpetrators, fear has been created in the area as
well as amongst civil society. Their parents are not allowing them to leave
the houses after sunset. Significant to mention that the subject incident had
also unrest the civil society and they launched campaign of protest at the
road. This incident also attracted the attention of public at large even
residing at remote area as has been published in newspapers and televised
in all channels by media. The Hon’ble Supreme Court had also took Suo
 Moto notice of the incident. The clear motive for the subject incident has
been introduced by the complainant, as well as P.Ws in their statements, i.e.
outraged modesty of Miss Maha by house servant of Siraj Talpur. Had the
said malefactor did not do so, the instant crime would have not taken place.
Therefore, I found no legal justification in the plea of learned advocate for
the accused that this case is lacking of motive. Indeed creation of sense of
fear in the society due to act of the accused for murder of Shahzaib is
coupled with motive indicated above. I have great honour and respect for
the decta laid down and observation made by the Hon’ble Superior Courts
in the precedents cited by the learned advocate for the accused, but I am
afraid that the same are not applicable in the facts and circumstances of the
present case.
 
The cumulative effect of my above discussion is that the instant crime having
nexus with section 6 of Anti-Terrorism Act, 1997. In short subject offence
has been committed with the object to terrorize section of public and such
act has explicitly created sense of fear and insecurity in society, therefore,
this Court is competent/having jurisdiction to try the accused of the subject
crime. The application being merit less is dismissed accordingly.”   
 
5.       Mr. Mohammad Ashraf Kazi learned advocate for applicant/accused
Shahrukh Jatoi contended that all the sections applied in the FIR are triable by
Court of Sessions. I/O has wrongly added Section 354 PPC read with Section 7
ATA of 1997 in the Challan. It is argued that no act of terrorism has been
committed by the applicant. There was enmity between the parties as there was a
quarrel before the commission of murder, Anti-Terrorism Court has no jurisdiction
to try case. It is further submitted that trial court was influenced by media reports
and alleged offence had not created terror in the society as it was committed at
night time in isolated place. Lastly, it is argued that Anti-Terrorism Court has
committed material illegality while refusing the transfer of case to the ordinary
court. In support of the contention reliance has been placed upon the cases
of Ahmed Jan Vs. Nasrullah and others (2012 SCMR 59),  Bashir Ahmed Vs.
Muhammad Siddique and others (PLD 2009 SC 11) and Basharat Ali versus
Special Judge, Anti-Terrorism Court-II, Gujranwala (PLD 2004 Lahore 199).
 
          In order to appreciate the case law cited by learned advocate for the
applicant/ accused we have gone through the citations.  
 
          In the case of Bashir Ahmed  Vs. Muhammad Siddique and others (PLD
2009 SC 11), the Honourable Supreme Court has held as under:-
 “After having gone through the entire law as enunciated by this Court in
different cases the judicial consensus seems to be that striking off terror is
sine qua non for the application of the provisions as contained in section 6
of the Act which cannot be determined without examining the nature, gravity
and heinousness of the alleged offence, contents of F.I.R its cumulative
effect on the society or a group of persons and the evidence which has come
on record. There could be no second opinion that where the action of an
accused results in striking  terror or creating fear, panic, sensation,
helplessness and sense of insecurity among the people in a particular
vicinity it amounts to terror and such an action squarely falls within the
ambit of section 6 of the Act and shall be triable by a Special Court
constituted for such purpose but in the instant case position is all together
different. Learned Special Court has no jurisdiction to try the offence as it
did not fall within the ambit of the Act and is triable by an ordinary Court
having jurisdiction.  
 
          In the case of Ahmed Jan  Vs. Nasrullah and others (2012 SCMR 59), the
Honourable Supreme Court has held as under:-
“A bare reading of the F.I.R. indicates that four accused, one armed with a
pistol, one with knife and the remaining with sticks, attacked the
complainant party in consequence of which Sher Jan died and Naseeb Ullah
received injuries. No motive was alleged and the police after due
investigation submitted challan/report under section 173 Cr.P.C before the
learned Court of Session and the same was entrusted to an Additional
Sessions Judge, who transmitted it to the Special Court established under
the Anti-Terrorism Act, 1997. To assume jurisdiction under the afore-
referred Act, the Court has to examine the mandate of the relevant penal
provision which is section 6 of the Anti-Terrorism Court.”
 
          In the case Basharat Ali versus Special Judge, Anti-Terrorism Court-II,
Gujranwala (PLD 2004 Lahore 199), it has been held as under:
“7.     The discussion made above shows, and shows quite clearly, that out
of the various facets of the world view about terrorism one factor is constant
and that is that in order to qualify as terrorism an act must be designed to
achieve a political and a larger objective and the same is not primarily
directed against the actual victims themselves who are treated merely as
‘collateral damage’. It is also quite evident that the extent of the actual
damage caused or injuries inflicted by the act is not the determinative factor
in this regard.”
 
6.       Mr. Saleem Akhtar Burriro learned Additional Prosecutor General assisted
by Mr. Faisal Siddiqui Advocate for complainant argued that on petty matter,
applicant/accused committed murder of a young boy by means of the pistol on road
along with his companions, such terrorist act of accused created terror in the area.
It is further submitted that accused had shown disrespect to the sister of the
deceased and on his protest committed his brutal murder. Effect of the incident was
such that the persons of the locality were terrorized and protested against the
applicant/accused. Lastly it is submitted that trial Anti-Terrorism Court has taken
the cognizance of case on the basis of FIR, further statement of the complainant,
161 Cr.P.C statements of the P.Ws and other material at the time of challan. In
support of the contentions, reliance has been placed on the cases reported
as Nazeer Ahmed and others Vs. Nooruddin and another (2012 SCMR 517), State
through Advocate General N.W.F.P Peshawar Vs. Muhammad Shafiq (PLD 2003
S.C 224), Mst. Raheela Nasreen Vs. The State and another (2002 SCMR 908)
& Muhammad Ameen and 2 others Vs. Government of Sindh through Home
Secretary, Karachi and another (2013 YLR 632).
 
          In the case of Nazeer Ahmed and others Vs. Nooruddin and another (2012
SCMR 517), the Honourable Supreme Court has held as under:-
“We have heard the learned Advocate Supreme Court and have perused the
record. The learned High Court has examined the material at length and
has rightly concluded that the act of the petitioners created sense of
insecurity amongst the villagers and did destabilize the public at large and
therefore, attracts the provisions of section 6 of the Anti-Terrorism Act. The
learned Advocate Supreme Court in support of his contentions has relied
upon the Judgments reported in the case of Mohabat Ali v. The State
reported in 2007 SCMR 142 and the case of Bashir Ahmed v. Muhammad
Siddiq, reported in PLD 2009 SC 11, which are distinguishable on facts.
Neither the motive nor intent for commission of the offence is relevant for
the purpose of conferring jurisdiction on the Anti-Terrorism Court. It is the
act which is designed to create sense of insecurity and or to destabilize the
public at large, which attract the provisions of section 6 of the AT Act,
which in the case in hand was designed to create sense of insecurity
amongst the co-villagers.”  
 
          In the case of State through Advocate General N.W.F.P Peshawar  Vs.
Muhammad Shafiq (PLD 2003 S.C 224), the Honourable Supreme Court has held
as under:-
“We have to see the psychological impact created upon the minds of the
people. It is also not necessary that the said act must have taken place
 within the view of general public so as to bring it within the encompass of
the Act. Even an act having taken place in a barbaric and gruesome
manner, if it had created fear and insecurity, would certainly come within
the purview of the Act. Reference in this regard is made to the case of Mst.
Raheela Nasreen v. The State and another 2002 SCMR 908 wherein the
husband was killed by a Batman in connivance with his wife inside the
house. However, the case was tried by the Special Court constituted under
the Act as this act of the Batman, being a trusted person employed by an
army officer though committed inside the house, was likely to strike terror
leading to the feelings of insecurity among the army officers in spite of the
fact that they had not seen the incident.”
 
          In the case reported as Mst. Raheela Nasreen Vs. The State and another
(2002 SCMR 908), the Honourable Supreme Court has held as under:-
“From a bare reading of section 6(b) of the Act, it is manifest that it is not
necessary that the offence as alleged had in fact, caused terror as the
requirement of the said provision of law could be adequately satisfied if the
same was likely to strike terror or sense of fear and insecurity in the people.
 
The learned Judges of the High Court came to the conclusion that a Batman
who was a trusted person of an army officer if he kills as alleged his master
in connivance with his (master’s) wife, the same was likely to strike terror
or felling of insecurity among the army officers which reasonings in our
view are based on relevant consideration having logical nexus with the
relevant law and do not suffer from any legal infirmity.”  
 
          In the case of Muhammad Ameen and 2 others Vs. Government of Sindh
through Home Secretary, Karachi and another (2013 YLR 632), this Court has
held as under:-
“Similarly the facts and circumstances in the case of Mohabbat Ali reported
in 2007 SCMR 142 referred to by the counsel for the Petitioners are also
distinguishable to the present case. In the said case it has been observed
that alleged offence has taken place due to previous enmity and private
vendetta, but in the present case the Petitioners have failed to establish
previous enmity or private vendetta at all and even if there is any enmity it is
to be established through evidence. In this regard our own High Court in
the case of Nooruddin v. Nazeer Ahmed reported in 2011 P.Cr.L.J., 1370
has held that the case cannot be transferred on the basis of previous enmity
as the same was not the sole criterion to decide such point and that was
upheld by the Honourable Supreme Court of Pakistan in the case of Nazeer
 Ahmed v. Nooruddin reported in 2012 SCMR 517. Para-3 of the above
judgment is reproduced hereunder:-

We have heard the learned Advocate Supreme Court and have

perused the record. The learned High Court has examined the
material at length and has rightly concluded that the act of the
petitioners created sense of insecurity amongst the villagers and
did destabilize the public at large and, therefore, attracts the
provisions of section 6 of the Anti-Terrorism Act. The learned
Advocate Supreme Court in support of his contentions has relied
upon the judgments reported in the case of Mohabat Ali v. The
State reported in 2007 SCMR 142 and the case of Bashir Ahmed v.
Mohammad Siddiq, reported in PLD 2009 SC 11, which are
distinguishable on facts. Neither the motive nor intent for
commission of the offence is relevant for the purpose of conferring
jurisdiction on the Anti-Terrorism Court. It is the act which is
designed to create sense of insecurity and or to destabilize the
public at large, which attract the provisions of section 6 of the AT
Act, which in the case in hand was designed to create sense of
insecurity amongst the co-villagers.”
 
7.       We have carefully heard learned counsel for the parties, perused the relevant
record and case law cited at Bar.
 
8.       In order to determine as to whether an offence would fall within the ambit of
section 6 of Anti-Terrorism Act, 1997 it is essential to have a glance over the
allegations made in the FIR, material collected during investigation and
surrounding circumstances. It is also necessary to examine whether the ingredients
of alleged offence have any nexus with the object of the case as contemplated
under section 6, 7 and 8 thereof. Whether a particular act is an act of terrorism or
not, the motivation, object, design and purpose behind the said act is to be seen. It
is also to be seen as to whether the said act has created a sense of fear and
insecurity in the public or in a section of the public or community or in any sect,
there can be no second opinion that where action results in striking terror or
creating fear, panic, sensation, helplessness and sense of insecurity among the
people in the particular area it amounts to terror and such an action squarely falls
within the ambit of section 6 of the Anti-Terrorism Act, 1997 and shall be triable
by a Special Court constituted for such purpose.
 
9.       Section 6 of the Anti-Terrorism Act, 1997 provides the definition of
“terrorism”. In order to better appreciate the legal position, section 6(b) of the said
Act which defines a “terrorist act” is reproduced as under:
“6. Terrorism.---(1) In this Act, “terrorism” means the use or threat of
action where:
(a)      ………………………………………
(b)     the use or threat is designed to coerce and intimidate or overawe the
Government or the public or a section of the public or community or
sect or create a sense of fear or insecurity in society;”
 
10.     A bare reading of the above quoted provision of law makes it crystal clear
that Courts have only to see whether the “terrorist act” was such which would have
the tendency to create sense of fear and insecurity in the minds of the people or any
section of the society. The Honourable Supreme Court in a case reported as The
State through Advocate General, N.W.F.P. Peshawar v. Muhammad Shafiq PLD
2003 SC 224 has held as under:
“We have to see the psychological impact created upon the minds of the
people. It is also not necessary that the said act must have taken place within
the view of general public so as to bring it within the encompass of the Act.
Even an act having taken place in a barbaric and gruesome manner, if it had
created fear and insecurity, would certainly come within the purview of the
act.”
         
11.     In the present case of accused Shah Rukh Jatoi, offence was committed on
the road. By said act of the accused, young boy was shot dead by automatic
weapon over a petty matter. It was terrorist act of the accused Shah Rukh, proudly
saying to be son of Sikandar Jatoi with sole object to set example for public at
large, more particularly the parents of young daughters not to object to the act of
the accused or their employee(s) for teasing their young daughter. The further
statement of the complainant recorded on 25.12.2012, manifests that Miss Maha
was teased by servant of accused Siraj Talpur, she made telephone call to her
mother, the later asked deceased Shahzaib to go for rescue of his sister. By such act
the accused created a sense of helplessness in minds of people. Impact of the act
was such that people of the area protested, came on roads, news flashed in print
and electronic media, Honourable Supreme Court of Pakistan took suo-moto
notice. Accused Shah Rukh being influential person without joining the
investigation succeeded to leave the country. It is clear in this case that the act of
accused Shah Rukh Jatoi was designed to create a sense of fear and insecurity and
helplessness in the minds of general public disturbing the tempo of the life and
tranquility of the society Provisions of section 6 of the Anti-Terrorism Act, 1997
are fully attracted in this case. The impact of such act terrorized society at large by
creating panic and fear in their minds. There is no force in the contention of
learned advocate for the Applicant that present case does not fall within the
jurisdiction of Anti-Terrorism Court in absence of motive. In the case of Mirza
Shaukat Baig versus Shahid Jamil and others (PLD 2005 SC 530) it is held that,
“there could be no second opinion that where the action of an accused
results in striking or creating fear, panic, sensation, helplessness and
sense of insecurity among the people in a particular vicinity it amounts
to terror and such an action squarely falls within the ambit of section 6
of the Act.” Arguments of learned advocate for the applicant that murder has
been committed on the basis of previous enmity and offence would not fall within
the jurisdiction of Anti-Terrorism Court is also without any merit for the reasons
that presence of personal enmity would not exclude the jurisdiction of Anti-
Terrorism Court. Neither motive nor intent for commission of offence is relevant
for the purpose of conferring jurisdiction on the Anti-Terrorism Court. In the case
of Nooruddin versus Nazeer Ahmed and 4 others (2011 PCr.LJ 1370) this precise
argument was rejected, it was held that enmity would not be the sole criteria to
determine the jurisdiction of Anti-Terrorism Court. Aforesaid judgment of this
Court was upheld by Honourable Supreme Court in the case Nazeer Ahmed and
others Vs. Nooruddin and another (2012 SCMR 517). Relevant portion is
reproduced as under:
 

“We have heard the learned Advocate Supreme Court and have perused the
record. The learned High Court has examined the material at length and
has rightly concluded that the act of the petitioners created sense of
insecurity amongst the villagers and did destabilize the public at large and
therefore, attracts the provisions of section 6 of the Anti-Terrorism Act. The
learned Advocate Supreme Court in support of his contentions has relied
upon the Judgments reported in the case of Mohabat Ali v. The State
reported in 2007 SCMR 142 and the case of Bashir Ahmed v. Muhammad
Siddiq, reported in PLD 2009 SC 11, which are distinguishable on facts.
Neither the motive nor intent for commission of the offence is relevant for
the purpose of conferring jurisdiction on the Anti-Terrorism Court. It is the
act which is designed to create sense of insecurity and or to destabilize the
public at large, which attract the provisions of section 6 of the AT Act,
which in the case in hand was designed to create sense of insecurity
amongst the co-villagers.” 
 
We, therefore, hold that act of accused Shah Rukh Jatoi created sense of
helplessness and insecurity amongst the people of Defence/Clifton area, where
offence was committed and did destabilize the public at large. As such, provisions
of section 6 of the Anti-Terrorism Act, 1997 are fully attracted in this case.
Therefore, present case would fall within the jurisdiction of Anti-Terrorism Court.
Order of learned trial Court dated 05.03.2013 did not suffer from any material
irregularity or illegality, the same is maintained. Trial Court is directed to decide
the case expeditiously.
 
          These are the reasons for our short order announced by us on 24.04.2013.      

                                                                                         JUDGE
 
                                                          JUDGE

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