RAHMAT HUSSAIN JAFFERI, J.---The present revision application is directed against the order dated 29-3-2004 passed by the Anti-Terrorism Court No, II Karachi by which the learned Judge dismissed the application under section 23 of Anti-Terrorism Act, 1997 (hereinafter will be referred to as Act 1997) filed by the applicant for the transfer of the Special Case No,25 of 2003 to the Court of Session Karachi.
2. Brief facts giving rise to the present application are that on 23-6-2003 at about 3.15 p.m, the complainant deceased Muhammad Naeem in connection with the by-election of Constituency NA-255 Landi accompanied the driver P.W Shahid and deceased Anum Uzar in a Suzuki Hi-roof bearing No,CD-4571 and after leaving some women at polling station reached Baghami Para More, Area-1/D Landi No,2. Suddenly one white coloured Charade car in which five persons were sitting speedily came near their vehicle. In order to sabotage the transparent process of election, to spread terrorism and fear in the people, the persons sitting in the car started firing from their weapons at the vehicle. As the complainant Muhammad Naeem was sitting on the rear seat of the vehicle, therefore he received two bullet injuries on his foot and abdomen. He identified three- persons sitting in the car to be Kala Azeem. Tariq Bata and Raees Topi. All the three persons alighted from the car, came towards the vehicle, got removed Anum Uzar who was sitting on the front seat, then fired at him and thereafter the culprits went away from the spot in their car, since the complainant was worker of Mutahida Qumi Movement and was residing in Landhi from few days therefore he was receiving phone calls from MQM (Haqiqi) leader Amir Khan (the applicant) who was telling him that he should work for him otherwise he will lose his life. Due to injuries, the injured were shifted to Jinnah Hospital for treatment. P.W. Rafeeq Akber was amongst the people who were present at the place of incident. The complainant remained unconscious, but regained his senses on 2-7-2004. Then he came to know that Anum Uzar died in the hospital. The SIP recorded his statement, which was incorporated in 154, Cr.P.0 book. After few days, the complainant died in the hospital. The police after usual investigation challaned the case before the Administrative Judge Anti-Terrorism Courts Karachi who assigned the case to the Court of Anti- Terrorism Court No, II Karachi for trial.
3. The applicant moved an application under section 23 of Act 1997 for transfer of the case but the trial Court dismissed the same under the impugned order. Hence, the present application.
4. The learned Advocate for the applicant has stated that the Anti-Terrorism Court has no jurisdiction to try the case as it is a simple case of murder and the ingredients of terrorism as defined under the Act of 1997 are missing; that incident allegedly took place between two rival groups of MQM who had enmity with each other and in order to settle their enmity this incident alleged to have taken place; that the trial Court recorded the entire evidence but even then the evidence does not come within the ambit of terrorism as defined under the Act 1997 therefore he has requested that the case may be transferred from the Court of Anti-Terrorism Court No, II, Karachi to the Sessions Court Karachi. He has relied upon Imran Ashraf v. State (2001 SCMR 424), Noor Muhammad v. State (2000 PCr.LJ 1583) and Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445).
5. The learned Advocate General has stated that from the facts of the statement of the deceased, Muhammad Naeem who was alive at that time clearly shows that because of the incident the election process was sabotaged and that he had received telephone calls from the applicant that he should work for them otherwise he will be killed; that the said statements are sufficient to attract the provisions of section 6 of Act, 1997. He has taken us to the old and new definitions of terrorism as defined in the relevant laws and argued that the case would fall within the ambit of the act of terrorism. He has admitted that the trial Court has recorded the entire evidence of the prosecution but this Court directed the trial Court not to pronounce the judgment therefore the trial Court could not decide the case otherwise the case would have been decided by this time. He has further stated that the point of jurisdiction can be decided by the appellate Court if any aggrieved party files appeal against the decision of the trial Court therefore at this stage the application may be dismissed. He has relied upon Muhammad Amjad v. State (PLD 2003 SC 704), Abdul Ghafoor Bhatti v. Muhammad Saleem (2003 SCMR 1934), Najam-un-Nisa v. Judge, Special Court (2003 SCMR 1323) and Basharat Ali v Special Judge Anti-Terrorism Lahore Court-II (PLD 2004 Lah.199).
6. We have given our due consideration to the arguments, gone through the material available on the record, case-law cited at the bar and the relevant provisions of law. We find that the Anti- Terrorism Court has jurisdiction to try the case if the facts of the case fall within the definition of "Terrorism" as defined in section 6 of the Act 1997. As such, the entire case hinges upon such definition therefore before examining the facts of the case it is essential to examine the definition of "Terrorism". The section 6 of Act 1997 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 subsection (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 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.
(2) An "action" shall fall within the meaning of subsection (1). If it:
(a) involves the doing of anything that causes death;
(b) involves grievous violence against a persons or grievous bodily injury or harm to a person:
(c) involves grievous damage to property;
(d) involves the doing of anything that is likely to cause death or endangers a person's life;
(e) involves kidnapping for ransom, hostage-taking or hijacking;
(f) incites hatred and contempt on religious, sectarian or ethnic basis to stir up violence or cause internal disturbance;
(g) involves stoning, brick-batting or any other form of mischief to spread panic;
(h) involves firing on religious congregations, mosques, imambargahs, churches, temples and all other places of worship, or random firing to spread panic, or involves any forcible takeover of mosques or other place of worship;
(i) 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;
(j) involves the burning of vehicles or any other serious form of arson;
(k) involves extortion of money ("bhatta") or property;
(1) is designed to seriously interfere with or seriously disrupt a communication system or public utility service;
(m) involves serous coercion or intimidation of a public servant in order to force him to discharge or to refrain from discharging his lawful duties; or
(n) involves serious violence against a member of the police force, armed forces, civil armed forces, or a public servant.
(3) the use or threat of use of any action falling within subsection (2), which involves the use of fire- arms, explosives or any other weapon, is terrorism, whether or not subsection (1)(c) is satisfied.
(4) In this section "action" includes an act or a series of act.
(5) In this Act, terrorism includes any act done for the benefit of a proscribed organization.
(6) A person who commits an offence under this section or any other provision of this Act, shall be guilty of an act of terrorism.
(7) In this Act, a "terrorist" means:
(a) person who has committed an offence of terrorism under this Act, and is or has been concerned in the commission, preparation or instigation of acts of terrorism;
(b) a person who is or has been, whether before or after the coming into force of this Act, concerned in the commission, preparation or instigation of acts of terrorism, shall also be included in the meaning given in clause (a) above"
7. A perusal of above section reveals that, it gives three definitions of "Terrorism". One appears in subsection (1), second appears in subsection (3) and the third appears in subsection (5).
8. Before we discuss the definition of "terrorism", it will be advantageous to give dictionary meaning of certain words appearing in the section so as to apply the same fitting with the facts and circumstances of the cases. The American Heritage Dictionary, of the English Language defines the following words appearing in the section as under:-- "Design"--- To perform plan, goal, purpose intention". The Black's Law Dictionary defines the word as "to form plan or scheme of, conceive and arrange in mind, originate mentally, plan out, contrive.
Also, the plan or scheme conceived in the mind and intended for subsequent execution; preliminary conception of idea to be carried into effect by action; contrivance in accordance with preconceived plan. In evidence, purpose or intention, combined with plan, or implying a plan in the mind".
"Coerce".---To force to act, to compel by pressure or threat, to dominate, a restrain or controlled forcibly". The Blacks Law Dictionary defines the word as "compelled to compliance; constrained to obedience or submission in a vigorous or forcible manner".
"Intimidate".--- "To make timid; frighten 2. To discourage or inhibit by or as if by threat "Overawe".-- "overcome with fear".
"Public".---"People, a group of people sharing a common interest, admirers or followers, especially of a celebrity".
"Community".---"A group of people living in the same locality and under the same Government, a social group or class having common interest".
"Sect".----"A group of people forming a distinct unit within the larger group by virtue of certain refinements or distinctions of belief or practice. Any small faction united by common interests or belief.
2. Schismatic religious body,
3. Any small faction united by common interests or beliefs, indicates cut or divide".
"Society".---"The totality of social relationships among human beings. b. A group of human beings broadly distinguished from other groups by mutual interests, participation in characteristic relationships, shared institutions, and a common culture. The institutions of culture of a distinct self-perpetuating group, 2.. a. The rich, privileged, and fashionable social class b. Socially dominating members of a community.
3. Companionship: company.
"Purpose".---"The object toward which one strives or for which something exists; goal; aim,
2. A result or effect that is intended or desired; intention,
3. Determination; resolution.
"Whether or no".---"Regardless of circumstances". "Satisfy".---Fulfill".
9. According to the first definition as mentioned in subsection 1, two conditions should be fulfilled:
(1) action and (2) design or intention. If any action within the meaning of subsection (2)(a) to (n) is taken coupled with the intention to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society or is made for the purpose of advancing a religious, sectarian or ethnic cause then it will be terrorism and becomes an offence of act of terrorism by virtue of subsection (6).
10. It will be noticed that subsection (1)(a) covers the act of any person. Subsection (1)(b) deals with mens rea or intention whereas subsection (1)(c) deals with purpose or goal. Thus, subsection (1), postulates three conditions viz. Act, design and purpose.
11. For the offences mentioned in clauses (b) and (c) of the subsection (1) the design or intention is an essential ingredient for the commission of such offences. If no intention within the scope of the said causes is available then such offences will not be complete. Thus for offences falling under clauses (b) or (c): not only the action within the meaning of subsection (2)(a) to (n) is essential but also the required intention within the meaning of the said clauses should be there, then only the offences will fall within the definition of terrorism otherwise not.
12. As the intention plays a dominant role in the definition of terrorism covered by subsection (1), therefore, it is to be seen as to how it can be gathered. The Privy Council considered this aspect in the case of Consul Crofton v. H.M. Prosecutor General (AIR 1918 PC 354) and it was observed that intention is rarely the subject of direct evidence. It has to be inferred from surrounding circumstances. Even otherwise intention is a question of fact, which is depending on the facts and circumstances of each case. It is pointed out that if a man knows that certain consequence will follow from his act then it must be presumed in law that he intended that consequence to take place, although he may have had some quite different ulterior motive for doing the act. Reference is invited to Mir Chhittan v. Emperor (AIR 1937 All 13). In the case of Dandakar v. Emperror (AIR 1930 All 324) it has been observed that to intend a thing is to act in such a way as to expect that certain consequences would follow. Intention is therefore correlated with the natural consequences which must flow from a particular act. The Hon'ble Supreme Court of Pakistan in the case of State v.
Sardar Attaullah Khan Mengal reported in (PLD 1967 SC 78) while discussing the circumstances from which intention of any person can be gathered at page 91 has observed as under:-- "Intention, as has often been said, is a state of mind and it can only be gathered from the evidence of his overt acts and expressions. The Court cannot look into the minds of the persons accused and has, therefore, per force to gather their intention from their words and deeds. In each case they must be deemed to have intended the natural and inevitable consequences of their actions and utterances."
13. In order to apply the doctrine of mens rea it is to be verified whether the legislature has prescribed a particular mental condition in the enactment. If it is so, then the doctrine of mens rea will be applicable and if the legislature has omitted the prescribed mental condition then the presumption would be that omission is intentional and in such case the doctrine of mens rea will not be applicable. Reference is invited to a case of Legal Remembrancer, Bengal v. Ambika Charan Dalal (ILR (1946) 2 Cal. 127).
14. The second category of the definition of "Terrorism" has been given in subsection (3). It means the use or threat of use of any action falling within the meaning of subsection (2) and in doing so fire-arms, explosives or any other weapon is used, then it will become terrorism whether or not the purpose of advancing the religious, sectarian or ethnic clause. [Subsection (1)(c)] is achieved or satisfied.
15. According to this subsection if the act falling within any clause of the subsection (2) is committed in which fire-arms, explosives or any other weapon is used then it will also come within the definition of "terrorism", regardless of the fulfillment or satisfaction of the circumstances or purpose mentioned in subsection (1)(c).
16. In this definition, the word "design" has not been used Thus, the intention of the legislature clearly shows that for the offence falling within the scope of subsection (3) the intention or mens rea is not an important factor or essential ingredient. The mens rea of clause 1(c) is also not necessary if the offence falling within the scope of clause 1(c) is committed with the use of fire-arms, explosives or any other weapon.
17. It is pertinent to point out that the Honourable Supreme Court of Pakistan in the case of Muharam Ali (supra) observed that the schedule offences should have nexus with the object of the Act and the offences covered by sections 6, 7 and 8 thereof. The Honourable Supreme Court of Pakistan has confirmed the above observation in the case of Jamat-iIslami Pakistan v. Federation of Pakistan PLD 2000 SC 111 by observing that "to make an act punishable under the Act, it must be shown that the act bears nexus to sections 6, 7, and 8 of the Act". A Division Bench of this Court in the case of Jahangir Akhtar Awan v. State reported in PLD 2000 Karachi 89 has held:-- "An act of terrorism is a preplanned and organized system of intimidation. Its requisites and attributes are that such act and its effects are made known to the people and widely circulated with exaggeration. It in neither hidden nor disguised. It means an act, which is committed with the sole object to terrorize the people and to feel them insecure".
18. The third category of the terrorism is defined in subsection (5). According to this definition if any act is done for the benefit of proscribed organization within the meaning of section, 11-B of Act 1997, then it will also be an offence of terrorism.
19. Under this definition, the intention to give benefit to the proscribed organization is also essential.
If such intention is lacking then the offence within the meaning of subsection (5) will not be complete.
20. Thus if any person or persons commit the offence falling within the scope of subsections (1), (3) and (5) then he or they will be guilty of the act of terrorism by virtue of subsection (6).The words "committed an offence under this section" appearing in subsection (6) are very significant, meaningful and important. Subsections (1), (3) and (5) are appearing in the main section 6 therefore they will be covered by the words "under this section" appearing in subsection (6).
21. Before the substitution of section 6 of Act 1997 through Ordinance XXXIX of 2001 dated 15-8-2001 the word "terrorism" was not defined but words "terrorist act" were defined under the Act 1997. The said definition was given in the then section 6 of the Act 1997 which reads as under: "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 poisons 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 of vehicle snatching or lifting damage to, or destruction of, State or private property, random firing to create panic, charging bhattha or criminal trespass (illegal qabza)
22. The above definition emphasis on the effect of action. Intention or mens rea was not essential ingredient or condition for the terrorist act. According to above definition whatever the intention of the accused may be but if the effect of the action was to strike terror to create a sense of fear or, insecurity in the people or any section of the people then it would become terrorist act.
23. The apparent difference between the definition of "terrorist act" and "Terrorism" is that in the earlier definition of terrorist act the mens rea or intention was not playing the decisive role but in the present definition of terrorism under subsections (1) and (5), the mens rea or intention is the deciding factor of any act referred to in subsection (2). The intention can be gathered from the natural and inevitable consequences of any action as observed by the Hon'ble Supreme Court of Pakistan in the case of Sardar Attaullah Khan Mengal (supra). If viewed in this manner then there appears nominal difference between both the definitions.
24. Thus, the essential ingredients of terrorism as defined in subsection (1)(b) or (c) are as under:- "(a) Use or threat of action shall fall within the meaning of subsection (2) (a) to (n) and
(b) The use or threat is intended or expected with its natural and inevitable consequences of coercing and intimidating or overawing the Government or the public or a section of the public or community or sect or creating a sense of fear and insecurity in the society, or.
(c) The use or threat is made for the purpose of advancing the religious, sectarian or ethnic cause,".
25. The requirements of terrorism as defined in subsection (3) are as under:-- "(i) The use of action or threat of action shall fall within the scope of subsection (2)(a) to (n).
(ii) The action falling under subsection (2)(a) to (n) shall involve the use of fire-arms, explosives or any other weapon.
(iii) Above act will become terrorism regardless of the fulfillment or satisfaction of the circumstances or purpose mentioned in subsection (1)(c)."
(iv) The above act should have nexus with the object of the Act 1997.
26. The essential ingredients of subsection (5) are as under:- "(a) There should be proscribed organization within the meaning of section 11-B of the Act 1997.
(b) There should be an act.
(c) The act should be done with the intention or with its expected natural and inevitable consequences of giving benefit to the proscribed organization."
27. Keeping in view the above definition of "Terrorism", we have examined the facts of the case and find that in the alleged dying declaration of the deceased Muhammad Naeem firing was made to sabotage the transparent process of the by-election and to spread terrorism or fear in people. This statement of the deceased appears to be his own opinion. He was not an expert in the above field; as such, his opinion appears to be carrying no weight. The second allegation of the deceased in his dying declaration was that he was worker of MQM, residing in Landhi from few days and was receiving phone calls from MQM (Haqiqi), leader Amir Khan (the applicant) who was telling him to work for him otherwise he would lose his life. This portion of his statement shows the intention of the applicant. From the above statement, it is clear that the intention of the applicant was to force or compel the deceased who was the member of rival group of MQM to join his group of MQM and in case he failed to do so then he will be killed.
' In order to achieve the said object and design the incident took place at a public place on the day of bye-election as the seat had fallen vacant on account of the death of MPA of MQM Haqiqi and both the sections of MQM were contesting the election, in which fire-arms were used and two persons lost their lives. We have also gone through the evidence of the witnesses recorded by the trial Court and find that they have supported the case. The dispute was between two factions of the MQM. One section of MQM headed by the applicant was apparently settling his enmity with the other section of MQM using force and threat. The P.W. Muhammad Shahid in his cross-examination stated as under:-- "It is correct that in the year 1987 Muhammad Amir Khan (the present applicant) was Vice- Chairman of Muthaida Qumi Movement which was known. As Muhjir Qumi Movement at the time but subsequently changed as Mutahida Qumi Movement in the year 1997. I do not remember, if Aafaq Ahmed Khan was joint secretary of Muhajir Qumi Movement. I do not remember when the split took place in Muhajir Qumi Movement. The Muhajir Qumi Movement was divided in two factions one named as "MQM". Haqiqi and other remained as "MQM" General Asif Nawaz had started the military operation against the MQM in the year 1992."
28. Thus, the incident took place between the two factions of one group of MQM. The MQM Haqiqi leader Amir Khan and his workers allegedly took part in the incident by use of fire-arms and threat in which two workers of rival group of MQM lost their lives. From the facts and circumstances of case it appears that, one group of MQM intended to scare the other group of MQM. Thus, the incident took place with intention to coerce and intimidate or scare a sect of MQM by the use of fire-arms and threat therefore the offence falls within the definition of terrorism as defined in section 6 of the Act, 1997.
29. As the offence falls within the definition of terrorism therefore the Anti-Terrorism Court No,II, Karachi has jurisdiction to try the case. As such, the revision application is dismissed.
30. A copy of this order be sent to all the Judges of the Anti-Terrorism Courts of the Province of Sindh for their information and compliance.