P L D 2016 Supreme Court 951
Present: Anwar Zaheer Jamali, C.J., Mian Saqib Nisar, Amir Hani Muslim, Ejaz Afzal Khan and Mushir Alam, JJ
Present: Anwar Zaheer Jamali, C.J., Mian Saqib Nisar, Amir Hani Muslim, Ejaz Afzal Khan and Mushir Alam, JJ
KASHIF ALI---Petitioner
Versus
The JUDGE, ANTI-TERRORISM, COURT
NO.II, LAHORE and others---Respondents
Civil Petition No.2067 of 2010,
decided on 15th February, 2016.
(On appeal from judgment dated
16-8-2010, passed by the Lahore High Court Lahore, passed in W.P. No.16742 of
2010).
(a) Anti-Terrorism Act (XXVII of
1997)--
----S.
6---"Terrorism"---Scope---To determine the question as to whether an
offence fell within the meaning of "terrorism"---It would be
essential to have a glance over the allegations levelled in the FIR, the
material collected by the Investigating agency and the surrounding
circumstances, depicting the commission of offence---Whether a particular act
was an act of terrorism or not, the motivation, object, design or purpose
behind the act had to be seen---Term "design" as used in S.6 of the
Anti-Terrorism Act, 1997, which had given a wider scope to the jurisdiction of
the Anti-Terrorism Courts excluded the intent or motive of the accused---Motive
and intent had lost their relevance in a case under S.6(2) of the
Anti-Terrorism Act, 1997---What was essential to attract the mischief of said
section was the object for which the act was designed.
(b) Anti-Terrorism Act (XXVII of
1997)--
---S.6---Term "design" as
used in S.6---Definition.
Act is done "designedly"
when done by design, on purpose, intentionally; "design" is plan or
scheme conceived in mind and intended for subsequent execution, preliminary
conception of idea to be carried into effect by action, contrivance in
accordance with pre-conceived plan; and "to design" is to form plan
or scheme of, conceive and arrange in mind, originate mentally, plan out,
contrive.
Words and Phrases, Permanent
Edition--Vol.12 ref.
(c) Anti-Terrorism Act (XXVII of
1997)---
----Ss. 6 & 23---Penal Code (XLV
of 1860), Ss. 302, 324 & 34---"Terrorism"---Scope---Target
killing of a rival candidate for election of Provincial Assembly---Whether such
offence fell within the meaning of "terrorism"---Transfer of case to
Anti-Terrorism Court---FIR stated that the accused party chased the complainant
party in order to execute the murderous plan conceived in their minds; it was a
pre-planned scheme and to execute the same, the accused party chased the
vehicles of the deceased and opened fire due to which four persons lost their
lives and several others sustained firearm injuries---Accused persons conceived
a plan in their mind prior to the occurrence to disrupt the electoral process
by eliminating the deceased-candidate and his companions, and subsequently
executed it---Target killing was aimed to give a message to the voters and
supporters of the deceased, the effect of which was to create a sense of fear
or insecurity in the voters and general public, as provided in S. 6 of the
Anti-Terrorism Act, 1997---Place of occurrence was a public place and
supporters and voters were around with their cars---Furthermore, the contents
of the FIR reflected that the crowd present during the occurrence started
fleeing from the place due to the terror created by indiscriminate
firing---Contention of the accused party that the incident was a result of
personal enmity would not exclude the case from the mischief of S. 6(2) of the
Anti-Terrorism Act, 1997, because the manner in which the incident had taken
place and the time of occurrence should be taken note of, the effect of which
was to strike terror in the supporters/voters and general public---Personal
enmity between the deceased and the accused side could have been settled on any
day and it was intriguing as to why the accused persons chose the particular
night before the dawn of the day of elections to settle their score with a
popular running candidate/deceased in the elections by eliminating him---Sudden
murder of the deceased, on the night before the election day, not just with a
single bullet but with indiscriminate firing on him and his companions was
something that had to be all over the news and media channels for weeks to
come---Voters were mentally disturbed to know that on the day of the polling
their chosen candidate was no longer alive, which was a foreseeable and
inevitable impact of the action by the accused persons---Present incident was
not a sudden reaction to a provocation but a premeditated act, where accused persons
found out the precise location of the deceased- candidate on the very busy
night before the election day, and got him murdered---Accused persons had sent
a message to the general public conveying the lethal consequences of any
opposition to them---Supreme Court converted the petition into appeal and
transferred the present case to the concerned Anti-Terrorism Court for further
proceedings in accordance with law---Appeal was allowed accordingly---Basharat
Ali v. Special Judge, Anti-Terrorism Court-II, Gujranwala PLD 1004 Lah. 199
overruled.
Basharat Ali v. Special Judge,
Anti-Terrorism Court-II, Gujranwala PLD 1004 Lah. 199 overruled.
Mirza Shaukat Baig and others v.
Shahid Jamil and others PLD 2005 SC 530 held to be correct law.
(d) Criminal Procedure Code (V of
1898)---
----S. 161---Supplementary statement
recorded by prosecution witness after more than a month of the
occurrence---Such statement had no legal value and was inadmissible in evidence
and could not be used to contradict the contents of the FIR---Supplementary
statement recorded subsequently to the FIR could be viewed as improvements made
to the witness's statement.
Syed Saeed Muhammad Shah v. The
State 1993 SCMR 550; Amir Zaman v. Mehboob and others 1998 SCMR 685; Zulfiqar
Hussain v. The State 2011 SCMR 379, Abid Ali v. The State 2011 SCMR 161 and
Tahir Abbas v. The State 2003 SCMR 426 ref.
(e) Anti-Terrorism Act (XXVII of
1997)---
----Ss. 6 & 12---Anti-Terrorism
Court, jurisdiction of---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 amounted to terror and such an
action squarely fell within the ambit of S. 6 of the Anti-Terrorism Act, 1997
and shall be tried by the Special Court constituted for such a purpose---Courts
were only required to see whether the terrorist act was such that it would have
the tendency to create sense of fear or insecurity in the minds of the people
or any section of the society, as well as the psychological impact created on
the mind of the society.
Mirza Shaukat Baig and others v.
Shahid Jamil and others PLD 2005 SC 530 and State through Advocate General v.
Muhammad Shafiq PLD 2003 SC 224 ref.
Sardar Muhammad Aslam, Advocate
Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Petitioner.
Aitzaz Ahsan, Senior Advocate
Supreme Court along with Gohar Ali, Advocate Supreme Court and M.S. Khattak,
Advocate-on-Record for Respondent No.2.
Ahmed Raza Gillani, Addl. P.G.
Punjab for Respondent No.3.
PLD 2011 SC 961
Subject to all first exceptions, Supreme Court will look upon delay favorably if matter had been pursued diligently at all the forums.
PLD 1975 SC 66
Delay where Govt. is petitioner / litigant
2005 CL 1004 (1009/12/A)
Where importance of litigation in the public interest
7 SCMR 1574 (1580/7/B)200
Public interest involved
PLD 1991 SC 691
2012 MLD 253 (255/8/C)
Qs. Of fraud would always remain open to scrutiny
2010 CLC 746 (752/10/G)
No Limitation ---against void
1995 SCMR 1655 (1659/B)
1994 SCMR 960,
1980 SCMR 722
Where a Court pass the fairs to condone the delay, the order condoning of retiring will not ordinarily be interested w/f by the Appellate Court.
