A Peshawar High Court bench has recently ruled, in the light of different judgments of superior courts, that provisions of Anti-Terrorism Act (ATA), 1997, are not applicable to offence of rape unless it was committed with the motive to intimidate the government, public or a segment of society.

The Mingora Bench (Darul Qaza) comprising Justice Ishtiaq Ibrahim and Justice Wiqar Ahmad Khan has ruled that prior to the Anti-Terrorism (Amendment) Ordinance, 2001, the offence of rape was a scheduled offence, but after restructuring section 6 the offence is no more a terrorist act as it does not appear in sub-section (2) of section 6 of ATA, hence the said offence does not fall within the cognizance of anti-terrorism courts.

The bench delivered the judgment on October 20 over an appeal of a convict, Jumaraz, a resident of Shangla, who was convicted by an anti-terrorism court in Swat on April 11, 2018, for raping and strangling to death a minor girl of five.

The ATC had convicted the appellant and sentenced him to death on three counts under sections 376 (punishment for rape) and 302 (intentional murder) of Pakistan Penal Code and section 7 of the ATA. While the high court agreed with the appellant that the ATC had no jurisdiction to try him for the offence and set aside his conviction on that count, it maintained the death sentence awarded under sections 376 and 302 PPC.

Another important finding of the bench is that if on appeal it is found that punishment awarded to accused under the ATA is not maintainable then the court has powers to maintain his conviction for the offence under ordinary penal provision by setting aside his conviction under ATA without remanding the case for hearing to court of ordinary criminal jurisdiction.

The occurrence in the case had taken place on June 21, 2017, and the FIR was registered at Bisham police station in Shangla under sections 376 and 302 PPC and section 7 of ATA.

The complainant in the case was father of the ill-fated girl who stated that he was on routine duty when he was informed by phone about missing of his five-year-old daughter. He stated that he reached home and started search for his daughter with the help of local people and finally found her body near the house of the present appellant and thus charged him for the offence.

Postmortem of the deceased proved that she was raped before murder. The appellant was arrested by police and on June 25, 2017, he confessed to his guilt before the court of a judicial magistrate.

The appellant’s counsel contended before the bench that section 6 of the ATA could not be attracted to facts and circumstances of the present case in view of various judgments of the Supreme Court as well as the high court, thus not only his conviction by the ATC was illegal, but the entire proceedings conducted by the ATC were against the law.

The bench ruled that the issue regarding applicability of section 6 of the ATA to particular cases had remained a debated topic before the Supreme Court and high courts and the view which was persistently taken in this regard is that all the acts mentioned in sub-section (2) of section 6 of the Act, if committed with design/motive to intimidate the government, public or a segment of the society, or the evidence collected by prosecution suggests that the aforesaid aim was either achieved or otherwise appeared as a by-product of the said terrorist activities, were to be dealt with by the special courts established under ATA.

“Thus the test to determine whether a particular act is terrorism or not is the motivation, object, design or purpose behind the act and not the consequential effect created by such act,” the bench ruled.

“As regards the charge of murder against the present appellant, the mode and manner of the occurrence does not suggest his design for creating fear and terror in the public rather his only aim was to satisfy his lust with the minor girl and, per prosecution version, after achieving that he killed her in order to conceal his crime,” the court observed.

The bench ruled: “No doubt, a minor girl was killed in a brutal manner, however, it is persistent view of the august Supreme Court that mere gravity or brutal nature of an offence would not provide a valid yardstick for bringing the same within the definition of terrorism.”

Referring to a recent judgment of the Supreme Court reported as PLD 2020 SC 61 (Ghulam Hussain and others versus state), the bench observed that the offences in the present case did not qualify the meaning of section 6 which was punishable under section 7 of ATA.

Turning down the appellant plea to remand back the case to ordinary court, the bench ruled that the appellant had been given fair and proper opportunity of cross-examination of the prosecution witnesses and even his statement on oath was also recorded during the course of trial.

The judgment, authored by Justice Ishtiaq Ibrahim, provides that if the conviction was found by this court to be well-reasoned and no illegality or material irregularity was available on the face of record which would vitiate the trial, in that eventuality this court can exercise its jurisdiction to set aside the conviction under one head by maintaining the conviction and sentence under the other head subject to appraisal of evidence brought on file by the prosecution.

Published in Dawn, November 2nd, 2020