VIRK LAW FORUM

VIRK LAW FORUM

15 December at 01:16 ·

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

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.

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Delay Condoned/Limitation
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.

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