Stereo. H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Writ Petition No.34275 of 2014

(Bashir Ahmad. Vs. The State etc.)

JUDGMENT

DATE OF HEARING: 19.08.2015.

PETITIONER BY: M/s. Ch. Zaheer Ahmad Cheema

and Muhammad Younas Bhullar,
Advocates.
STATE BY: Ch. Muhammad Mustafa, Deputy
Prosecutor General.
RESPONDENTS BY: Ch. Muhammad Anwar Bhinder,
Advocate.

MUHAMMAD ANWAARUL HAQ, J:- Through this petition,

the petitioner assails the order dated 15.12.2014 passed by the

learned Special Judge, Anti-Terrorism Court-II, Gujranwala,
whereby the application under Section 23 of Anti-Terrorism Act,
1997 moved by respondents No.2 and 3/accused for transfer of case
F.I.R No.200/2014 dated 15.05.2014 under Section 336-B, 452, 34
PPC to a court of ordinary jurisdiction has been allowed.

2. Learned counsel for the petitioner contends that offence

under Section 336-B PPC is a scheduled offence and is triable by
the special court constituted under Anti-Terrorism Act, 1997,
therefore, the impugned order is not sustainable in the eyes of law.

3. Learned counsel for respondents No.2 and 3 has vehemently

argued that irrespective of the fact that offence under Section 336-B
PPC has been included in the Schedule to Anti-Terrorism Act,
Writ Petition No.34275 of 2014. 2

1997, the same has to be read jointly with the provisions of

Sections 6 and 7 of Anti-Terrorism Act, 1997 as well as with the
preamble of the Act and that the offences mentioned in the
Schedule to the Act should have nexus with Sections 6 and 7 of
Anti-Terrorism Act, 1997; further that the offence mentioned in the
F.I.R has no nexus with terrorism as the alleged occurrence took
place in a room of the house of the victim and that has not created
any sense of fear and insecurity in the mind of public at large.

4. Heard. Record perused.

5. Law on the subject is very much clear. Section 12 of Anti-

Terrorism Act, 1997 clearly provides that a scheduled offence
committed in an area in a province shall be triable only by Anti-
Terrorism Court exercising territorial jurisdiction in relation to such
area. Offence committed by the accused in this case falls under
Section 336-B PPC and the same duly reflects in the Third
Schedule to Anti-Terrorism Act, 1997. Plain reading of Section
336-A PPC provides that “Whoever with the intention or
knowingly causes or attempts to cause hurt by means of a
corrosive substance or any substance which is deleterious to
human body when it is swallowed, inhaled, comes into contact or
received into human body or otherwise shall be said to cause hurt
by corrosive substance”, and in the Explanation it has been
clarified that “corrosive substance” also includes every kind of acid
which has a corroding effect and is deleterious to human body.
Paragraph No. 4(iv) of the Third Schedule to Anti-Terrorism Act,
1997 clearly postulates that the Anti-Terrorism Court to the
exclusion of any other court shall try the offence relating to hurt
caused by corrosive substance or attempt to cause hurt by means of
a corrosive substance. Medico-Legal Certificate issued in this case
clearly reflects that the injuries on the person of the victim were
result of acid.
Writ Petition No.34275 of 2014. 3

6. Learned trial Judge while deciding the application of

respondents No.2 and 3 has relied upon the judgment dated
23.04.2013 passed in Writ Petition No.2902 of 2013 by another
Hon’ble Division Bench of this Court and has been reported as
2013 P. Cr. L J (Lahore) 1880, and has further observed that the
same has been upheld by the Hon’ble Supreme Court of Pakistan in
Civil Petition No.700 of 2013 titled “Malik Zafar Hussain vs.
Saifullah Saleem Arshad & others”. We are afraid, the learned trial
Judge remained totally fail to distinguish the present case than the
case in the aforementioned Writ Petition No.2902 of 2013 as in that
case the matter under consideration was application of Section 7 of
Anti-Terrorism Act, 1997 and the Hon’ble Supreme Court of
Pakistan while dismissing Civil Petition No.700 of 2013 filed
against the judgment dated 23.04.2013 passed in Writ Petition
No.2902 of 2013 has observed as under:-

“We have heard the learned counsel for the petitioner and
have also gone through the impugned judgment,
particularly para 7 thereof reproduced herein above. The
learned High Court after having taken into consideration
the peculiar facts and circumstances of the case, rightly
came to the conclusion that Section 7 of the Act does not
attract in this case as the offence did not create panic or
sense of insecurity among the people in terms of the
provisions of the Act.”

The above referred paragraph clearly reflects that Section 7 of Anti-

Terrorism Act, 1997 does not attract in the absence of any panic or
sense of insecurity among the people as provided under the law
itself, but the learned trial Judge remained oblivious of Para-5 of
the judgment of the Apex Court wherein it has been observed as
under:-

“In view of the foregoing discussion, we find no merit in

this petition which is dismissed and leave to appeal is
declined. However, we leave it open for examination the
jurisdiction of Anti-Terrorism Court in respect of the
offence of causing hurt by corrosive substance or attempt to
cause hurt by means of a corrosive substance, as inserted in
the Third Schedule vide notification noted herein above.”
Writ Petition No.34275 of 2014. 4

In this case, there was no question of application of Section 7 of

Anti-Terrorism Act, 1997 that, as observed by the Hon’ble
Supreme Court of Pakistan, necessarily requires its nexus with the
preamble of the Act, rather the matter only relates to the trial of
offence against the respondents under Section 336-B PPC that is a
scheduled offence. In the case of Muhammad Yousaf vs. The State
and another (PLD 2014 Lahore 644), another Hon’ble Division
Bench of this Court after taking into consideration the facts and
circumstances of a case relating to the similar offence has observed
that the Special Court constituted under the Anti-Terrorism Act,
1997 shall have direct jurisdiction in the offences mentioned in
paragraph No.4 of the Schedule to Anti-Terrorism Act, 1997 and no
nexus is required to be searched for such scheduled offences as
very commission of the said offences creates terror, panic and sense
of insecurity amongst the general public. The Hon’ble Division
Bench has also taken into consideration the case of Malik Zafar
Hussain vs. Saifullah Saleem Arshad & others (Civil Petition
No.700 of 2013) supra and while dismissing the writ petitions filed
against the orders of dismissal of applications under Section 23 of
Anti-Terrorism Act, 1997 for transferring the matters to the
ordinary court has observed as under:-

“From the above mentioned verdict of the August Supreme

Court of Pakistan, it is clear that above said judgment
passed by the learned Division Bench of this Court was
confined to the fact and circumstances of the case in
question and point of jurisdiction in respect of the offences
of causing hurt by corrosive substance or attempt to cause
hurt by means of corrosive substances as inserted in Third
Schedule was kept open for Anti-Terrorism Court.”

In the case of Rana Abdul Ghaffar vs. Abdul Shakoor and 3

others (PLD 2006 Lahore 64), the Hon’ble Division Bench of this
Court has observed as under:-

“According to subsection (1) of section 12 of the Anti-

Terrorism Act, 1997 an offence mentioned in the Third
Schedule appended with the Anti-Terrorism Act, 1997 can be
tried only by an Anti-Terrorism Court constituted under the
 Writ Petition No.34275 of 2014. 5

said Act and no other Court has any jurisdiction in that

regard. The Third Schedule appended with the Anti-Terrorism
Act, 1997 not only mentions the offence of ‘terrorism’ but also
mentions other offences which now, through the above
mentioned amendment introduced on 11.01.2005, includes an
offence of abduction or kidnapping for ransom. This
unmistakably shows that an Anti-Terrorism Court can try not
only an offence of ‘terrorism’ as defined in section 6 of the
Anti-Terrorism Act, 1997 but it can also try any other offence
which is declared by the law to be exclusively triable by such a
Court.”

The same view has also been expressed in the case of Mst. Ruqqia
Bibi vs. Special Judge, Anti-Terrorism Court and 2 others (2015
P Cr. L J 456).

7. Therefore, keeping in view the peculiar circumstances of this

case and the case law referred above, this writ petition is allowed,
the impugned order dated 15.12.2015 passed by the learned Special
Judge, Anti-Terrorism Court-II, Gujranwala being not sustainable
in the eyes of law is set aside resulting in dismissal of the
application moved by the accused/respondents No.2 and 3 for
transfer of case to the court of ordinary jurisdiction. However, the
learned trial court is directed to conclude the trial of the case within
a period of four months after the receipt of this order.

(ERUM SAJAD GULL) (MUHAMMAD ANWAARUL HAQ)

JUDGE JUDGE

APPROVED FOR REPORTING.

JUDGE JUDGE

Faiz