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In the High Court of Sindh Bench at Sukkur

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In the High Court of Sindh Bench at Sukkur 1 IN THE HIGH COURT OF SINDH BENCH AT SUKKUR C.P. No.D-623 of 2020 (Haji Muhammad Siddique vs. The Province of Sindh through Home Secretary, Karachi and 04 others) C.P. No.D-1272 of 2020 (Mst. Salma @ Ume-Salma vs. Province of Sindh, through Secretary Home Department Sindh Secretariat, Karachi and 04 others) Present: Mr. Nazar Akbar, J. Mr. Muhammad Faisal Kamal Alam, J. Date of hearing : 16.03.2021. C.P. No.D-623 of 2020 Petitioner [Haji Muhammad Siddique] : Through Mr. A. R. Farooque Pirzada, Advocate. Respondent No.1 [The Province of Sindh through Home Secretary, Karachi]. Respondent No.2 [The Senior Superintendent of Police, Naushahro Feroze]. Respondent No.3 [The Investigation Officer/SHO PS Bhirya City]. Respondent No.5 [Anti-Terrorism Court N/Feroze] : Through Syed Sardar Ali Shah Rizvi, Deputy Prosecutor General. Respondent No.4 [Ali Raza son of Mahi Khan] : Nemo. C.P. No.D-1272 of 2020 Petitioner [Mst. Salma @ Ume-Salma] : Through Mr. Achar Khan Gabol, Advocate. Respondent No.1 : [Province of Sindh, through Secretary Home Department Sindh Secretariat, Karachi] 2 Respondent No.2 [The Senior Superintendent of Police, District N/Feroze]. Respondent No.3 [The Investigation Officer/SHO PS Bhiria]. Respondent No.5 [Anti-Terrorism Court N/Feroze] : Through Syed Sardar Ali Shah Rizvi, Deputy Prosecutor General. Respondent No.4 [Ali Raza son of Mahi Khan]. : Nemo. O R D E R Muhammad Faisal Kamal Alam, J: Common question is involved in both the above Constitutional Petitions, therefore, they are decided by this single order. 2. The learned trial Court has dismissed both the Applications of present Petitioners, filed under Section 23 of the Anti-Terrorism Act, 1997, seeking transfer of case in Crime No.15 of 2020 [FIR No.15 of 2020] holding that the incident of murder of Shahnaz Ansari, who was sister of Complainant/Respondent No.4 [Ali Raza], does fall under the ambit of an act of terrorism as mentioned in Sections 6 and 7 of the Anti- Terrorist Act, 1997, thus, the above case cannot be transferred to the Court of Session. 3. Both learned Advocates for the respective Petitioners have argued that the learned Court while passing the impugned Order has not considered the latest decision of the Hon‟ble Supreme Court handed down in Ghulam Hussain case, reported in PLD 2020 Supreme Court page-61 (Ghulam Hussain and others versus The State) and the subsequent Judgment of the Apex Court in the case of Sadiqullah and another versus The State-2020 SCMR page-1422. Contended that FIR itself suggests that there was enmity between the Complainant and 3 accused party on the issue of inheritance and thus the incident in which the above lady lost her life does not attract Sections 6 and 7 of the Anti- Terrorism Act, 1997, (the said Act). Contended that the alleged incident happened in a room and hence there is no question of spreading panic or insecurity in public, which is one of the basic elements to invoke above provisions of the said Act. 4. The learned Deputy Prosecutor General has supported the impugned Order by contending that it was a gruesome incident where an elected representative (Member of Provincial Assembly-MPA), was gunned down in front of other persons, which has created a sense of fear and spread panic amongst people of the locality. He has cited the following two unreported decisions of learned Division Bench of this Court in support of his arguments_ i. Criminal Misc. Applications No.D-17 and D-31 of 2020 [date of hearing and order 24.02.2021]. ii. Criminal Revision Application No.D-11 of 2020 [date of hearing and announcement, viz. 17.11.2020 and 08.12.2020, respectively]. 5. At present only facts floating on the surface can be discussed in order to determine the applicability of the cited case law mentioned in the preceding paragraphs, because trial is sub judice before the learned Anti-Terrorism Court at Sukkur. Complainant is Respondent No.4 whose above named sister was gunned down in a „Chehlum‟ Ceremony. Complainant‟s another sister Mst. Shabana (the widow) was married to Zahid Hussain Khokar and from the wedlock three sons and one daughter are born. The said Zahid Hussain was brother and relative of the accused persons including the present Petitioners, who died on 05.02.2020 and left behind the inheritance, which includes agriculture land. Brother and nephew of (late) Zahid Hussain, namely, Akhtar Khokhar and Waqar Khokhar extended threats (as per contents of 4 FIR) to the deceased‟s widow and children and wanted to usurp their share in the inheritance. Mst. Shahnaz Ansari (sister of the widow) allegedly intervened in the matter so that her sister, Mst. Shabana and her children should get there right in the inheritance. 6. The reported decision of Hon‟ble Supreme Court handed down in the case of Ghulam Hussain (supra) has been examined. The second reported decision of Sadiq Ullah relied upon by the Petitioners‟ side has basically reiterated the view mentioned in the Ghulam Hussain case. The Apex Court in the latter case [Ghulam Hussain], inter alia, has reconciled the case law developed hitherto concerning the term „Terrorism‟ as envisaged in Section 6 of the Anti-Terrorism Act, 1997. The concluding paragraphs of this leading judgment are 15 and 16. It would be advantageous to reproduce herein under the relevant portion of paragraph-15 and the entire paragraph-16. “15…..Thus, it is no longer the fear or insecurity actually created or intended to be created or likely to be created which would determine whether the action qualifies to be termed as terrorism or not but it is now the intent and motivation behind the action which would be determinative of the issue irrespective of the fact whether any fear and insecurity was actually created or not. After this amendment in section 6 an action can now be termed as terrorism if the use or threat of that action is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect, etc. or if such action is designed to create a sense of fear or insecurity in the society or the use or threat is made for the purpose of…. Now creating fear or insecurity in the society is not by itself terrorism unless the motive itself is to create fear or insecurity in the society and not when fear or insecurity is just a byproduct, a fall out or an unintended consequence of a private crime.” 5 “16. For what has been discussed above it is concluded and declared that for an action or threat of action to be accepted as terrorism within the meanings of section 6 of the Anti-Terrorism Act, 1997, the action must fall in subsection (2) of section 6 of the said Act and the use or threat of such action must be designed to achieve any of the objectives specified in clause (b) of subsection (1) of section 6 of that Act or the use or threat of such action must be to achieve any of the purposes mentioned in clause (c) of subsection (1) of section 6 of that Act. It is clarified that any action constituting an offence, howsoever grave, shocking, brutal, gruesome or horrifying, does not qualify to be termed as terrorism if it is not committed with the design or purpose specified or mentioned in clause (b) or (c) of subsection (1) of section 6 of the said Act. It is further clarified that the actions specified in subsection (2) of section 6 of that Act do not qualify to be labeled or characterized as terrorism if such actions are taken in furtherance of personal enmity or private vendetta.” 7. From the above facts relating to the present Petitions, it is not difficult to observe that there was no personal enmity between the slain lady (Shahnaz Ansari) and accused persons/ in-laws of her sister Mst. Shabana Khokar. Conversely, the dispute about inheritance was between family of the above deceased and his widow [Mst. Shabana Khokar] and children, that is, sister of late Shahnaz Ansari. No injury was caused to the said Widow [Mst. Shabana Khokar] during incident of firing on 15-2-2020; but on that fateful day relatives (accused) of deceased husband of Mst. Shabana, only targeted the above named lady at the house of above widow which is situated in village Murad Khokar, that is, the place of accused persons. In FIR the Respondent No.4/Complainant has described specific role of each accused including the present Petitioners. 6 8. It is also an undeniable irony that when it comes to distribution of inheritance in accordance with the Sharia, female members of a family, particularly in the rural areas, different deceptive methods are adopted to deprive women/female members from their rightful share in the inheritance. In this regard there are numerous reported judgments, including the leading decision handed down by the Hon‟ble Supreme Court in the case of Ghulam Ali and 2 others versus Mst. Ghulam Sarwar Naqvi, reported in PLD 1990 Supreme Court page 1. The Apex Court in this decision has mentioned the historical background of this evil practice while recommending that necessary legislation is required to forestall this menace in the society. The Hon‟able Supreme Court has held that this unlawful practice of depriving women of their rightful share in the inheritance is a matter of public policy. Eventually legislative amendments were introduced in Pakistan, including „Criminal Law (Third Amendment) Act, 2011‟, inter alia, introducing Section 498 A, in the Pakistan Penal Code, whereby, if through deceitful or illegal means, a woman is deprived of inheritance, then offender will be punished with imprisonment which may extend to ten years but not less than five years or with a fine of one million rupees or both.
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