IJAZ UL HASSAN KHAN, J.--- Haji Abdul Hakim son of Haji Abdul Malik, resident of Bahadari Panyala, District Dera Ismail Khan and two others, petitioners have filed instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 with prayer that impugned order dated 1-4- 2004 of learned Judge, Anti-Terrorism Court, Dera Ismail Khan be declared as illegal, void, arbitrary and of no legal effect on the rights of the petitioners and learned trial Judge be directed to transfer the subject case to ordinary Court of criminal jurisdiction for trial of the petitioners in accordance with law.
2. The brief facts of the case are that on 1-5-2003 at 1200 hours complainant Salahuddin reported the matter to Karim Khan, S.H.O., Police Station, Yarik in the `baithak' of Pasham Khan situated in village Bahadari to the effect that on that day he along with Faiz Muhammad were proceeding towards the shop of Muhammad Ali. When they reached near the shop, they noticed Mirza Ali, Haji Abdul Hakim and Moeenuddin standing there duly armed with Kalashnikovs. At about 1030 hours Ismail armed with Kalashnikov came out of the shop of Muhammad Ali. All the three persons abovementioned directed Ismail to fire. Ismail started firing at Gulli Alam, with which he was hit and expired. After accomplishing the mission, all the four accused fled away from the spot. The case was registered vide F.I.R No,29 dated 1-5-2003 under section 302/34, P.P.0 at Police Station, Yarik, Dera Ismail Khan. After completion of necessary investigation, the local police submitted complete challan against the petitioners in the Court of Judge, Anti-Terrorism Court, Dera Ismail. Khan for trial. The petitioners submitted an application to learned Judge for transfer of the case to any other ordinary Court of law for trial. The application was rejected vide order dated 1-4-2004, giving rise to the filing of instant writ petition.
3. Appearing on behalf of the petitioners Mr. Salimullah Khan Ranazai, Advocate submitted that case of the petitioners does not fall within the definition of section 6 of the Anti-Terrorism Act, 1997 and schedule thereof, therefore, taking cognizance of the case by respondent No,1 is illegal and void and inoperative qua rights of the petitioners. To support the contentions, he placed reliance on Basharat, Ali, v. Special Judge, Anti-Terrorism Court-II, Gujranwala (PLD 2004 Lahore 199) and Muhammad Ramzan and another v. The State and 3 others (2004 YLR 2818 Peshawar).
4. As against that, Muhammad Sharif Chaudhary learned Deputy Advocate General for the State contended that in order to attract the provisions of section 6 of the Act (ibid), it is not necessary that the offence, as alleged, had in fact caused terror or insecurity in the society but it would be adequately satisfied if the case was likely to strike terror or sense of fear and insecurity in the society. To substantiate the plea, he placed reliance on Sardar Moazam Khan v. The State and another (PLD 2004 Peshawar 175).
5. We have heard at length the arguments of learned counsel for the parties in the light of the material on record..
6. The question for determination by this Court is as to whether in the facts and circumstances of the case, the petitioners could be tried by ordinary Court of criminal jurisdiction or by the Special Court constituted under the Anti Terrorism Act, 1997?
7. The Terrorist act has been defined under section 6 which was amended through Ordinance XXIX of 2000 promulgated on 24-7-2000 which reads as follows:- "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;
(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;
(c) commits an act of gang rape, child molestation, or robbery coupled with rape as specified in the Schedule to this act;
(d) commits an act of which snatching or lifting damage to, or destruction of State or private property, random firing to create panic charging bhatha or criminal trespass."
8. Dealing with the similar situation in Mehram Ali's case reported in PLD 1998 SC 1445 it was observed: "It may be observed that the offences mentioned in the schedule should have nexus with the object of the Act and the offences covered by sections 6, 7 and 8 thereof, it may be stated that section 6 defines terrorist acts, section 7 provides punishment for such acts, and section 8 prohibits acts intended or likely to stir up sectarian hatred mentioned in clause (a) to (d) thereof. If an offence included in the schedule had no nexus with the above sections, in that event notification including such an offence to that extent will be ultra vires. In this regard reference may be made to the case of Government of Balochistan through Additional Chief Secretary v. Azizullah Memon (PLD 1993 SC 341) (supra), of which certain relevant portions have already been quoted hereinabove in para. 10(a). It will be instructive to quote the following observation of the issues of nexus:- "Where the jurisdiction of the ordinary Courts established under the ordinary law is excluded or barred and certain class of cases or class of persons or inhabitants of an area are not allowed to approach such Courts and are to be tried or rights adjudicated by Special Courts, then a fair, rational and reasonable classification must be made which have nexus with the object of the legislation." We may also refer to the case of Darvesh M. Arbey v. Federation of Pakistan (PLD 1997 Lahore 846), wherein a Full Bench of the Lahore High Court comprising the then Chief Justice and four companion Judges while considering Constitution (Seventh Amendment) Act, 1977, and the amendment in the Army Act has dealt with the question of nexus as under:- "It is important to note that even a nexus or connection has not been provided by the amendment between the offences made exclusively triable by the Military Courts by virtue of this amendment and the object for which the Armed Forces had been called in Lahore i.e to restore law and order.
The result is that even to that extent this amendment in the Army Act, has in fact, resulted in the displacement of the ordinary criminal Courts in the District of Lahore by the Military Courts. The provision in the proviso to section 3 of Act X of 1977 that the authorized Army Officer can transfer any such case, in his discretion to the ordinary criminal Courts, does not in our view improve the status of the ordinary Courts. It is, therefore, obvious that to the extent that the Courts established by the Armed Forces are trying civilians of Lahore for offences which have no nexus with the object for which they are said to have come, they (i,e, the Armed Forces) are not acting "in aid" of the civil power but in derogation or replacement thereof. This is certainly not envisaged by Article 245(1) of the Constitution. It is evident from a reading of Article 245(1) that the laws subject to which the Armed Forces are required to act under that Article are intended to be of a nature as would not place the Armed Forces in a position superior or dominant to that of the civil power or to bestow such powers on them that, instead of acting in aid of the civil power, the Armed Forces, in fact, start acting in suppression or displacement of the civil power. We are, therefore, of the view that as far as Act X of 1977 (which amends the Army Act, 1952), is concerned, the most essential pre-condition prescribed by clause (3) of Article 245 which is mentioned by the learned Attorney General as. The 2nd jurisdictional fact, is absent. Consequently, we hold that clause (3) of Article 245 does not have the effect of ousting the jurisdiction of this Court under Article 199."
9. Needless to emphasize that Anti-Terrorism Act will be attracted only when the act or threat to commit an act has nexus to sections 6, 7 and 8 of the Anti-Terrorism Act, 1997 and if the consequences of the act or threat to commit an act falling within the ambit of section 6 must be striking a terror and creating a sense of fear and insecurity among the people. Ordinary crimes and the physical harm to the victim would not ' fall within the ambit of Anti-Terrorism Act, 1997. For taking cognizance of an offence, the Court has to see psychological impact of the violence which is always considered a decisive factor. A criminal act designed to create a sense of fear and insecurity in the minds of general people and creating a panic in the society are parameters for bringing an offender within the ambit of Anti-Terrorism Act PLD 2003 SC 224.
10. Having regard to the fact.; and circumstances of the case, we find that the instant case does not qualify to be a terrorist act within the contemplation of section 6 or the Schedule to the Act. We find force in submission of learned counsel for the petitioners that if such like cases are held to be tried by Special Court constituted under Anti-Terrorism Act, 1997, then there will be nothing left for adjudication by the ordinary criminal Courts and it shall defeat the very object of the Act given in its preamble.
11. Resultantly, we accept the writ petition, set aside the impugned order dated 1-4-2004 and direct that the subject case is transferred to the ordinary Court of jurisdiction under section 23 of the Anti- Terrorism Act, 1997.