KARACHI: An antiterrorism court has ruled that the murder of a young student by police in a ‘staged’ encounter does not fall within the meaning of ‘terrorism’.

The ATC-XVI judge, who was trying a former SHO and his two others for shooting to death 16-year-old Arsalan Mehsud and wounding his friend Yasir Afridi in the encounter, declared that the offence committed by the police officials was not an act of terrorism and transferred the case to a sessions court for trial.

The order was passed on an application filed by former constable Muhammad Touheed through which he sought the transfer of the case from the ATC to the ordinary sessions court under Section 23 of the Anti-Terrorism Act (ATA), 1997.

According to the prosecution, complainant Badshah Khan said that his relative Hidayatullah Mehsud informed him on Dec 6, 2021 that his nephew Arsalan Mehsood and his friend Afridi had sustained firearm injuries and both were shifted to the Abbasi Shaheed Hospital for treatment. Later 16-year-old Arsalan died during treatment, while Yasir survived.

Judge allows policeman’s plea for transfer of Arsalan Mehsud murder case to sessions court for trial

Initially, the complainant said he learnt that Arsalan had received firearm injury from the firing of dacoits, who tried to snatch his motorcycle. However, later on he learnt that Arsalan was shot by Constable Touheed and his companion Umair, a private person, at the behest of then SHO Azam Gopang.

After completion of the investigation, the investigating officer filed a charge sheet against ex-SHO Gopang, Constable Touheed and Umair stating that the latter two had fired at the boys on the instance of the former when the victims tried to put up resistance to their motorcycle snatching bid.

The judge pointed out that nowhere in the entire police file it was alleged that the accused policemen had any motive, design and purpose of causing terrorism by committing offence of firing on the innocent people.

The court noted that the FIR, police papers and statement of eyewitness Yasir suggested that firing was made by the two dacoits on the instance of their third companion.

“Some police papers show the suspicion that the accused police [officials] had murdered Arsalan and caused injuries to Yasir by showing fake encounter, whereas interrogation of the accused Touheed suggested that the deceased party had initiated firing which was returned by him, which hit both the boys,” the judge observed.

“This court in identical case where police party had killed one innocent person gave observation that accused are not previous criminal, they are police officials and committed the offence of murder by exaggerating the use of force illegally, hence motive, design and intention of accused regarding terrorism as stipulated in section 6(1)(a) and (b) which is sine qua non for attraction of ATA-1997 was missing in this case,” the judge wrote in the order.

“Hence the case does not fall under category where conviction can be passed under the ATA-1997 which observation was endorsed by the High Court in case of Tariq Khan and others reported in 2022 P.Cr.L.J 558,” the court ruled.

Defence counsel cited a judgement of the SHC wherein a revision application of police officials, who had murdered two men for not stopping their motorcycle when were signalled to stop, was allowed by the high court and subsequently their case was transferred from the special antiterrorism court to the ordinary sessions court.

The judge noted that the Supreme Court in an identical case of murder by the police officials due to non-stopping of vehicle by the complainant side, had observed that the case was not of qatl-i-amd, rather it was case of qatl-i-khata.

“It is now established law that 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 by-product, a fallout or an unintended consequence of a private crime,” remarked the judge.

The judge also cited another SC judgement (PLD 2020 SC 61) that stated: “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 mention in clause (b) or (c) of sub-section (1) of the Section 6 of this Act.”

The judge ruled: “Therefore, it is ordered that the above case, being regular rather than special in nature, is transferred to Sessions Court for disposal according to law with direction to office to send the above file alongwith Record and Proceedings (R&P) to the concerned Sessions Court.”

Two separate cases were registered against the police officials under Sections 302 (premeditated murder), 324 (attempted murder), 109 (abetment) and 34 (common intention) of the Pakistan Penal Code read with Section 23(i)-A of the Sindh Arms Act, 2013 and Section 7 (punishment for acts of terrorism) of the ATA at the Orangi Town police station.

Published in Dawn, May 22nd, 2022