Counter Memorial

Section A 2020-2025
Prepared By:
Iraat-Ul-Ain
Abu-Bakar Khalid
Huzaifa Basheer
……………… Defendant
Abbreviations:

ATC – Anti-Terrorism Court

ATA – Anti-Terrorism Act, 1997

PPC – Pakistan Penal Code, 1860

JJSA – Juvenile Justice System Act, 2018

Case Laws:

 Basharat Ali versus Special Judge, Anti-Terrorism Court-II, Gujranwala (PLD 2004 Lahore 199)
 Muhammad Akram Vs. The State (2022 SCMR 18)
 Muneer Malik Vs The State (2022 SCMR 1494).
 Muhammad Bilal Vs. The State (2019 SCMR 1362)
Whether the Anti-Terrorism Court has Jurisdiction or not?

1. First of all it is argued that no act of terrorism has been committed by the accused. There
was enmity between the parties as there was a quarrel before the commission of murder.
Therefore ATC has no jurisdiction to try case.
Further when the Chief Justice of Pakistan took the sue motu then case referred to the
ATC for just a speedy trial as it is mentioned in the Preamble of the Anti-terrorism Act,
1997. A preamble of a statute is an introductory and expressionary statement that
explains the very purpose and underlying philosophy behind the enactment. To better
understand the scheme of Anti-Terrorism Act is;

"An act to provide for the prevention of terrorism, sectarian violence and for speedy trial
of heinous offences; Whereas it is expedient to provide for the prevention of terrorism,
sectarian violence and for speedy trial of heinous offences and for matters connected
therewith and incidental thereto;

A bare perusal of the Preamble shows that the basic purpose behind the enactment of Anti-
Terrorism Act, 1997, was to prevent

1. terrorism,
2. sectarian violence, and
3. For speedy trial of heinous offences.

The word “terrorism” has been given the same meaning as assigned in Section 6 of the Act,
which reads as under:-

6. Terrorism.-(1) in this Act, “terrorism” means the use or threat of action where:-

a) the action falls within the meaning of sub-section (2); and

b) the use or threat is designed to coerce and intimidate or overawe the Government or the
public or a section of the public or community or sect 5[or a foreign government or
population or an international organization] or create a sense of fear or insecurity in
society; or
c) the use or threat is made for the purpose of advancing a religious, sectarian or ethnic
cause 1[or intimidating and terrorizing the public, social sectors, media persons, business
community or attacking the civilians, including damaging property by ransacking,
looting, arson or by any other means, government officials, installations, security forces
or law enforcement agencies:]

[Provided that nothing herein contained shall apply to a democratic and religious rally or a
peaceful demonstration in accordance with law.]
(2) An “action” shall fall within the meaning of sub-section (1), if it:-

d) involves the doing of anything that causes death;

e) involves grievous violence against a person or grievous bodily injury or harm to a person;
f) ……………………………….
g) involves the doing of anything that is likely to cause death or endangers person’s life;
h) involves kidnapping for ransom, hostage-taking or hijacking;
i) ………………………………
j) incites hatred and contempt on religious, sectarian or ethnic basis to strip up violence or
cause internal disturbance;
k) ……………………………….
l) ………………………………..
m) creates a serious risk to safety of the public or a section of the public, or is designed to
frighten the general public and thereby prevent them from coming out and carrying on
their lawful trade and daily business, and disrupts civic life;
n) ……………………………….
a. …………………………..
o) ………………………………
p) ………………………………..
q) …………………………………
r) ……...........................................

The section 6 defines terrorist act and, Section 7 provides the punishment for such acts.
However, the word “heinous offence” has not been described in the Act. In common parlance
“heinous offence” means an offence which is serious, gruesome, brutal, and sensational. A bare
reading of the section 6 reveals that the ATC have jurisdiction not for only terrorist acts but for
all heinous offences which attract the definition of terrorism. This Court in the case of Ghulam
Hussain Vs. The State (PLD 2020 SC 61) while elaborately discussing the scope and intent of
the legislature behind the enactment of Anti-Terrorism Act, 1997, has held that “an act of
'terrorism' is not just a grave offence but it is a class and species apart and this class or species
has to be understood in its true and correct perception and perspective. Further discussed that
murder and kidnapping is heinous but if committed with the purpose of mentioned in clauses (b)
or (c) of subsection 1 of Section 6 of ATA then such offence amount to terrorism attracting
Section 7 (e) of that Act. In the case Basharat Ali versus Special Judge, Anti-
Terrorism Court-II, Gujranwala (PLD 2004 Lahore 199), it has been held as
under:
“The discussion made above shows, and shows quite clearly, that out of
the various facets of the world view about terrorism one factor is constant
 and that is that in order to qualify as terrorism an act must be designed to
achieve a political and a larger objective and the same is not primarily
directed against the actual victims themselves who are treated merely as
‘collateral damage’. It is also quite evident that the extent of the actual
damage caused or injuries inflicted by the act is not the determinative factor
in this regard.”
2.
Admittedly in the present case due to cutting joke of the employee of the accused with
sister of deceased, which aggravated the situation and ultimately resulted into instant
unfortunate incident without any intention or purpose defined in the section 6 of ATA
1997. Further trial court influenced by the media reports and alleged offence has not
created terror in society as it was committed in night.
3. The present case shall be referred after speedy trial to any court jurisdiction according to
the Section-23 of ATA that is “Power to transfer cases to regular courts”.
“Where, after taking cognizance of an offence, 2[an Antiterrorism Court] is of opinion
that the offence is not a scheduled offence, it shall, notwithstanding that it has no
jurisdiction to try such offence, transfer the case for trial of such offence to any court
having jurisdiction under the Code, and the Court to which the case is transferred may
proceed with the trial of the offence as if it had taken cognizance of the offence”
But ATC has committed material illegality while refusing the transfer of case to the
ordinary court.
4. Lastly, the parties have already reached an agreement outside the court.
In the case of Muhammad Akram Vs. The State (2022 SCMR 18), the accused committed
murder of his wife under the impulses of ‘ghairat’. He was convicted under Section
302(b) PPC read with Section 7 of the Anti-Terrorism Act and was sentenced to
imprisonment for life. During the pendency of his petition before this Court, the parties
compromised the matter. The Court accepted the compromise and set aside the
conviction of the accused under Section 7 of the Anti-Terrorism Act.
The accused shall be trialed under Juvenile Justice System Act.

1. The ATA is a “harsh law” and should not be extended liberally particularly for the juvenile and to
their rights. The jurisdiction of Anti-Terrorism Court in cases of juveniles fails to comply with the
standards of fair trial agreed internationally.
2. However, the understanding of the minor in committing offence is matter a lot but the
discretion of the minor does not meet the terrorism, the intention, motive never extend to the
level of a capital offences. Present case of a minor is in personal enmity but the facts presenting
it an terrorist act it could be the mistake of law.
3. The present case shall be trailed under the Courts of sessions and the benefits are provided to
minor by JJSA shall not be compromised.

Prayer/ Demand from the court

For what has been discussed above, these appeals are allowed and the impugned judgment is set aside.
The appellants are acquitted of the charge. They shall be released from jail forthwith if not
required/detained in any other case. The above are the detailed reasons of our short order of even date.
The prime duty of the Court is to do justice according to its own conscience. While dealing with the life
and liberty of an accused, utmost care and caution is required to be exercised by the Courts of law
because slight carelessness on their part may deprive an accused person/citizen of his life and may
cause irreparable hardship and damage to his family.