P L D 2007 Supreme Court 571

Present: Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed and Hamid Ali Mirza, JJ

FAZAL DAD---Appellant

Versus

Col.(Rtd.) GHULAM MUHAMMAD MALIK and others---Respondents

Civil Appeal No.276 of 2001, decided on 23rd April, 2007.

(On appeal from the judgment/order dated 21-2-2000 of the Lahore High Court, Rawalpindi
Bench, Rawalpindi, passed in Writ Petition No.296 of 2000).

(a) Interpretation of statutes---

----Preamble---Scope---Preamble is always a key to interpret the statute.

(b) Anti-Terrorism Act (XXVII of 1997)---

---S. 6 & Preamble---Acts of terrorism---Trial---Object of promulgation of Anti-Terrorism Act,

1997, was to control acts of terrorism, sectarian violence and other heinous offences as defined
in S.6 of Anti-Terrorism Act, 1997, and their speedy trial---To bring the offence within the ambit
of Anti-Terrorism Act, 1997, it is essential to examine that offence should have nexus with the
object of the Act and is covered by its relevant provisions.

(c) Interpretation of statutes---

----Provisions of law must be read as a whole in order to determine its true nature, import and
scope.

Mian Muhammad Nawaz Sharif's case PLD 1993 SC 473 rel.

(d) Penal Code (XLV of 1860)---

----Ss. 435/447/427---Anti-Terrorism Act (XXVII of 1997), Ss.6, 7-A & 7-B---Act of terrorism--
-Determination---Transfer of case to Special Court---Case registered against accused was
transferred to Special Court but High Court, in exercise of Constitutional jurisdiction, set aside
the transfer order---Validity---Ingredients of offences mentioned in S.6 of Anti-Terrorism Act,
1997, had' no nexus with the contents of the F.I.R.---Nothing was brought on record to show that
occurrence created terror, panic or sense of insecurity among people by securing possession of
land in question by accused---Case against accused did not qualify to be a `terrorist act' within
contemplation of S.6 of Anti-Terrorism Act, 1997, or its Schedule---High Court was justified to
transfer the case to ordinary Court---Appeal was dismissed.

Jamat-e-Islami Pakistan's case PLD 2000 SC 111 ref.

(e) Interpretation of statutes---

----Legislative intent---Statutory provisions ought not to be construed in isolation---Courts

always lean towards reasonable interpretation of statute---Legislative intent as a guide to
interpretation of statute should be gathered primarily from words used in statute.
(f) Criminal Procedure Code (V of 1898)---

----Preamble---Special law and general law---Provisions of Criminal Procedure Code, 1898---

Applicability---Promulgation of special law by itself is not sufficient to supersede provisions of
law contained in Criminal Procedure Code, 1898---In case, offence has no nexus with the
parameters of special law, then general law applies.

Mehram Ali's case PLD 1998 SC 1445 and Jamat-e-Islamic Pakistan's case PLD 2000 SC 111
rel.

Muhammad Munir Peracha, Advocate Supreme Court for Appellant.

M. Ilyas Siddiqui, Advocate Supreme Court for Respondents.

Date of hearing: 23rd April, 2007.

JUDGMENT

CH. IJAZ AHMED, J.---The necessary facts out of which the present appeal arises are that
petitioner/appellant got registered a case against respondent No.1 under sections 435/447/427,
P.P.C. at Police Station Basal, District Attock on 14-2-1995. Formal F.I.R. was recorded under
aforesaid sections vide F.I.R. No. 12 dated 14-2-1995 at the said police station. Respondent was
sent to face trial under sections 435/447/427, P.P.C. in the Court of Magistrate with powers of
Section 30, Cr.P.C. Jand District Attock. During the pendency of the case, the Magistrate after
entertaining challan, returned the same to the S.H.O. for submission before the Special Court
established under Anti-Terrorism Act, 1997 with the observation that in the light of sections 7-A
and 7-B of the Act, the offence allegedly committed by the accused could be defined as civil
commotion and therefore was triable by special court vide order dated 30-10-1999. Investigating
Officer thereafter submitted challan before Special Tribunal/Judge Special Court, Islamabad
Capital Territory. Respondent being aggrieved filed an application before the Special Court for
transfer of the case to the ordinary court which was dismissed vide order dated 7-2-2000.
Thereafter, respondent filed Constitution Petition No.296 of 2000 in the Lahore High Court
Rawalpindi Bench which was accepted by the learned High Court vide impugned judgment
dated 21-2-2000. Petitioner/appellant being aggrieved filed C.P. No.865 of 2000 before this
Court which was fixed on 14-2-2001 and leave was granted vide order dated 14-2-2001 out of
which the present appeal arises.

2. Learned counsel for the appellant submits that respondent secured impugned . judgment from
the learned High Court without impleading him as respondent in the Constitution Petition as is
evident from the contents of the memo. of parties name in the constitution petition. He further
maintains that the impugned judgment was passed by the learned High Court in violation of
principle of natural justice. He further urges that in view of section 38 of the Anti-Terrorism Act,
1997, the case was triable by the special court under the said Act and if the respondent was found
guilty he was liable to be punished under the provision of law which was prevailing at the time
when the offence was committed. He has also submitted legislative history of provisions of Anti-
Terrorism Act, 1997. He sums up his argument that offence is fully covered under section 6 of
the said Act therefore learned High Court erred to transfer the case to ordinary Court for trial of
the respondent.

3. Learned council for respondents has supported the impugned judgment. In support of his
contention he relied upon Jamat-e-lslami Pakistan's case (PLD 2000 SC 111).

4. We have considered the submissions made by learned counsel for the parties and perused the
record. It is better and appropriate to reproduce basic facts, relevant provisions of Anti-Terrorism
Act, amended and unamended provisions of said Act, contents of F.I.R., to resolve the
controversy between the parties:--

F.I.R. was lodged under sections 435, 447, 427, P.P.C. at Police Station Basal, Attock on
14-2-1995 After investigation challan, was submitted before Civil Judge/Magistrate
concerned who directed the Investigating Officer/S.H.O. to submit challan before the
Special Court constituted under Anti-Terrorism Act as offence committed by respondent
fully covered under the provisions of said act vide order dated 30-10-1999. Respondent
filed application before the Special Court for transfer of the case to ordinary Court which
was dismissed vide order dated 7-2-2000. Thereafter constitution petition filed by
respondent No.1 in the High Court which was accepted vide judgment dated 21-2-2000.
Hence present appeal.
 Anti-Terrorism Act, 1997 came into force on 20th August, 1997. Relevant provisions are
as follows:

"2(h) "terrorist act" has the meaning assigned to it in section 6.

6. Terrorism Act.---Whoever, to strike terror in the people, or any section of the people,
or to alienate any section of the people or to adversely affect harmony among different
sections of the people, does any act or thing by using bombs, dynamite or other explosive
or inflammable substances, or fire-arms, or other lethal weapons or poisons or noxious
gases or chemicals or other substances of a hazhardous nature in such a manner as to
cause, or to be likely to cause the death of, or injury to, any person or persons, or damage
to, or destruction of, property or disruption of any supplied of services essential to the life
of the community or display fire-arms, or threatens with the use of force public servants
in order to prevent them from discharging their lawful duties commits a terrorist act.

38. Punishment for terrorist act committed before this Act.---Where a person has
committed an offence before the commencement of this Act which is committed after the
date on which this Act comes into force would constitute a terrorist act hereunder he shall
be tried under this Act but shall be liable to punishment as authorized by law at the time
the offence was committed."

Anti-Terrorism Amendment Ordinance, 1999 (Ord. IV of 1999) came into force on 27th April,
1999 wherein section 6 was amended and sections 7-A and 7-B were added which are to the
following effect:--

"5. Amendment of section 6, Act XXVII of 1997.--In the said Act, for section 6, the
following shall be substituted, namely:--

"6. Terrorist Act.--A person is said to commit a terrorist act if he,

(a) in order to, or if the effect of his actions will be to, strike terror or create a sense of
fear and insecurity in the people, or any section of the people does any act or thing by
using bombs, dynamite or other explosive or inflammable substances, or such fire-arms
or other lethal weapons as may be notified, or poison or noxious gases or chemicals, in
such a manner as to cause , or be likely to cause, the death of or injury to any person or
persons, or damage to, or destruction of, property on a large scale, or a widespread
disruption of supplies of services essential to the life of the community, or threatens with
the use of force public servants in order to prevent them from discharging their lawful
duties; or

(b) commits a scheduled offence, the effect of which will be, or be likely to be, to strike
terror, or create a sense of fear and insecurity in the people, or any section of the people
or to adversely affect harmony among different sections of the people; or

(c) commits an act of gang rape, child molestation, or robbery coupled with rape as
specified in the Schedule to this Act; or

(d) commits an act to civil commotion as specified in section 7-A."

7. Insertion of sections 7-A and 7-B, Act XXVII of 1997.--In the said Act, after section 7,
the following new sections shall be inserted, namely:--

"7-A. Creation of civil commotion.--`Civil commotion' means creation of internal

disturbance in violation of law, or intended to violate law, commencement or
continuation of illegal strikes, go-slows, lock-outs, vehicles snatching or lifting, damage
to or destruction of State or private property, random firing to create panic, charging
bhatha, acts of criminal trespass (illegal qabza). Distributing, publishing or pasting of a
handbill or making graffiti or wall chalking intended to create unrest or fear or create a
threat to the security of law and order or to incite the commission of an offence
punishable under Chapter VI of the Pakistan penal Code (Act XLV of 1860).

7-B. Punishment for creating civil commotion.---Whoever commits an act of civil

commotion shall be punished with rigorous imprisonment for a term which may extend to
seven years or with fine, or with both."
The said Ordinance was further amended vide Anti-Terrorism (2nd Amendment)
Ordinance, 1999 (Ordinance XIII of 1999) wherein section 6 was amended and sections
7-A and 7-B were also inserted which are to the following effect:

"5. Amendment of section 6, Act XXVII of 1997.---In the said Act for section 6, the
following shall be substituted, namely:--

"6. Terrorist Act.--A person is said to commit a terrorist act if he,

(a) in order to, or if the effect of his actions will be to, strike terror or create a sense of
fear and insecurity in the people, or any section of the people does any act or thing by
using bombs, dynamite or other explosive or inflammable substances, or such fire-arms
or other lethal weapons as may be notified, or poison or noxious gases or chemicals, in
such a manner as to cause , or be likely to cause, the death of or injury to any person or
persons, or damage to, or destruction of, property on a large scale, or a widespread
disruption of supplies of services essential to the life of the community, or threatens with
the use of' force public servants in order to prevent them from discharging their lawful
duties; or'

(b) commits a scheduled offence, the effect of which will be, or be likely to be, to strike
terror, or create a sense of fear and insecurity in the people, or any section of the people
or to adversely affect harmony among different sections of the people; or

(c) commits an act of gang rape, child molestation, or robbery coupled with rape as
specified in the Schedule to this Act; or

(ed) commits an act of civil commotion as specified in section 7-A."

7. Insertion of new sections 7-A and 7-B, Act XXVII of 1997.--In the said Act, after
section 7, the following new sections shall be inserted, namely:-
 "7-A. Creation of civil commotion.--`Civil commotion' means creation of internal
disturbance in violation of law, commencement or continuation of illegal strikes, go-
slows, lock-outs, vehicles snatching or lifting, danger to or destruction of State or private
property, random firing to create panic, charging bhatha, acts of criminal trespass (illegal
qabza).

7-B. Punishment for creating civil commotion.---Whoever commits an act of civil

commotion shall be punished with rigorous imprisonment for a term which may extend to
seven years and with fine."

The aforesaid Ordinance was further amended vide Anti-Terrorism (Amendment)

Ordinance, 2000 wherein sections 7-A and 7-B was omitted and section 6 was also
amended which are to the following effect:

"5. Omission of sections 7-A and 7-B, Act XXVII of 1997.--In the said Act, sections 7-A
and 7-B shall be omitted.

"6. Amendment of section 14, Act XXVII of 1997.--In the said Act, in section 14, after
subsection (4) the following new subsection shall be added, namely'--

(5) in case a Judge is on leave, or for any other reasons temporarily unable to perform his
duties, the Government making appointment of such Judge may, after consultation with
the Chief Justice pf. the High Court, authorize the Sessions Judge; having jurisdiction at
the 'principal seat of the Anti-Terrorism Court, to conduct proceedings of urgent nature
so long as such Judge is unable to perform his duties."

Relevant portion of F.I.R.:

5. In case the aforesaid provisions and contents of F.I.R. are put in a juxta position then section 6
of the said ordinance is not attracted. It is a settled law that preamble is always key to interpret
the statute. The very object to promulgate the Anti-Terrorism Act, 1997 was to control the acts of
terrorism, sectarian violence and other heinous offences as defined in section 6 of the Act and
their speedy trial to bring the offence within the ambit of the act, it is essential to examine that
the said offence should have nexus with the object of the act and offences covered by its relevant
provisions such as section 6. It is a settled law that provisions of law must be read as a whole in
order to determine its true nature, import and scope as law laid down by this Court in Main
Muhammad Nawaz Sharif's case PLD 1993 SC 473. It is abundantly clear that in case the
provisions of act be read as a whole with the offence which creates a sense of fear or insecurity
in society, causes of death or endangers a person's life commits an act of vehicle snatching or
lifting, damage to or disturbance of, State or private property failing to create panic charging
bhatta or criminal trespasser (Illegal qabza). As mentioned above, the ingredients of
aforementioned offences have no nexus while reading the aforesaid provisions along with the
contents of the impugned F.I.R. It is pertinent to mention here that nothing was on record to
show that occurrence created terror, 'panic or sense of insecurity among people by securing
possession of the land in question by the respondent. The word illegal Qabza must be read with
the previous words used by the legislature in clause (d) of section 6 of the Anti-Terrorism Act,
1997 on well-known principle that statutory provisions ought not to be construed in isolation and
courts always to lean towards reasonable interpretation of statute. The learned High Court was
justified to examine the scope of terrorism at the time of deciding the constitutional petition with
regard to the transfer of case from special court to ordinarily court on the well known maxim that
legislative intent as a guide to interpretation of statute should be gathered primarily from words
used in statute. The case in hand did not qualify to be a terrorist act within the contemplation of
section 6 or schedule of Anti-Terrorism Act and the learned High Court was justified to transfer
the case to the ordinary court. It is settled law that promulgation of special law by itself is not
sufficient to supersede provisions of law contained in Cr.P.C. In case, the offence has no nexus
with the parameters of special law, then general law will apply. The judgment of the learned
High Court is in consonance with the law laid down by this court in various pronouncements.
See Mehram Ali's case PLD 1998 SC 1445 and Jamat-e-Islami Pakistan's case PLD 2000 SC
111.

6. For what has been discussed above, the appeal has no merit and the same is dismissed with no
order as to costs.

M.H./F-10/S Appeal dismissed.