' MUHAMMAD NAWAZ BHATTI, J.--- Briefly the facts as per F.I.R. No,181 dated 8-5-2004 registered under section 302/34, P.P.C. At Police Station Gulgasht Multan, are that a married sister Mst. Sadaf of Kamran Ashraf, complainant, had been residing in the Shalimar Colony Bosan Road, Multan. On the fateful day when the complainant came to her house at 7-30 p.m. There was no response to the call bell. At that time two persons/P.Ws. Muhammad Ijaz and Muhammad Younas came there and, told that in the afternoon they had seen two persons running away in the street near the house, who can be identified as and when they are brought before them. In the meantime the people from the Mohallah assembled and after scalling over the wall, the gate was opened, the complainant along with others went inside and saw the dead bodies of Mst. Sadaf and her minor daughter Rooma aged 3/4 years lying on the bed. Both had been killed with sharp-edged weapon.
2. Originally the case was registered under section 302/34, P.P.C. And after investigation of the case, the petitioners were arrested in the case and sections 380/411, P.P.C. Read with section 7 of the A.T.A.
Were added and the challan of the case had been submitted before the learned Judge, Special Court under the Anti-Terrorism Act, 1997, Multan, for trial.
3. Petitioner No,1 made an application under section 23 of the Anti-Terrorism Act, 1997 before the learned 'Judge Special Court under the Anti-Terrorism Act, 1997, Multan requesting that the case was not liable to be tried by the said Court and the same be transferred to the Court of ordinary criminal jurisdiction i,e, Court of learned Sessions Judge, Multan, for trial but the learned Judge rejected the application of the petitioner vide his order dated 15-10-2004.
4. Through this writ petition, the petitioners prayed that case No,181, dated 8-5-2004 under sections 302, 34, 380 and 411, P.P.C. Read with section 7, A.T.A. May be transferred to the Court of ordinary criminal jurisdiction i,e, Sessions Court, Multan for trial.
5. Learned counsel for the petitioners argued that the present case neither reflects any act of terrorism nor it was a sectarian matter instead the murder of two souls was committed inside the house and not in the public, so it is a murder case triable by a Sessions Court .And not by a Special Court and that in view of section 6(1)(b) neither any terror has been created wherein the public might have felt insecure and frightened nor it is a sectarian matter. Reliance in support of these contentions is placed upon Ch. Bashir Ahmad v. Naveed Iqbal and 7 others PLD 2001 SC 521, Muhammad Mushtaq v. Muhammad Ashiq and others PLD 2002 SC 841 and Basharat Ali v. Special Judge, Anti-Terrorism Court-II, Gujranwala PLD 2004 Lah.
199. It is further argued by the learned counsel that the present case does not fulfil the requirement laid down in the judgment titled as Basharat Ali v. Special Judge, Anti-Terrorism Court-II, Gujranwala PLD 2004 Lah. 199, wherein it was held that fear or insecurity must not be a by-product, fall out or unintended consequence of a private crime. As such, creation of fear and insecurity in the society is not itself terrorism unless the same is coupled with the motive. The jist of the citation is that act of terrorism desires to be determined from the yardstick and scale of motive and object, instead of its result or aftereffect.
6. On the other hand, learned counsel for the complainant as well as the learned Additional Advocate-General has opposed the transfer of the case while arguing that a ruthless, horrifying and callous act as well as heinous offence adversely affecting the mind and mood of the society and causing adverse effects against the established morality, social ethic, prevailing norms and the harmony, certainly comes within the purview of terrorism inasmuch as not only a young lady has been callously slain but also an innocent soul aged 3/4 years has also been done to death which has of course established the intensity and heniousness of the offence and that too coupled with the sensational reporting in the press of the country, same has given rise to the submission of challan of such a case to the Special Court. In this regard reliance has been placed on Abdul Ghafoor Bhatti v. Muhammad Saleem and others 2003 SCMR 1934. Further contends that the evidence of the prosecution is also supported by extra-judicial confession candidly made by the accused/petitioner in addition to other circumstantial evidence like recovery of weapon etc., so the charge has been framed rightly by the learned Judge, Special Court, and the accused/petitioners are being tried under the law.
7. We have heard learned counsel for the parties at length and have also gone through the record and the authorities relied upon by learned counsel for the parties.
8. Section 6(1) of the Anti-Terrorism Act, 1997 provides a criterion to determine where a criminal act was designed to create a sense of fear or insecurity in the minds of the general public disturbing even tempo of life and tranquility of the society, the same may be treated to be a terrorist act.
Ordinary crimes are not to be dealt with under the Anti-Terrorism Act. A physical harm to the victim is not the sole criterion to determine the question of terrorism: What is to be seen is the psychological effect produced by the violent action or with the potential of producing such an effect on the society as a whole or a section thereof. There may be a death or injury caused in the process. Thus, where a criminal act is designed to create a sense of fear or insecurity in the minds of the general public disturbing even tempo of life and tranquility of the society, the same may be treated to be a terrorist act. In the present case, we prima facie find that the occurrence took place inside the house and a private motive was also ascribed.
9. In Basharat Ali's case (supra), the terms, 'terror' and `terrorism', have been interpreted as follows:- - " ' Terror' and 'terrorism' are concepts quite distinct from each other and the quintessence of the two notions is not difficult to distil. Terror as a manifestation of fright, dread, fear or insecurity is a consequential effect created by an act that may not necessarily be motivated to create such an effect whereas terrorism is an activity designed to create such an effect of terror. The critical difference between the two is the design and purpose understood in the criminal jurisprudence as mens rea. In the case of terror the act, or the actus reus, is not motivated to create fear and insecurity in the society at large but the same is actuated with a desire to commit a private crime against targeted individuals, etc. And the fear and insecurity created by the act in the society at large is only an unintended consequence or a fall out thereof whereas in the case of terrorism the main purpose is creation of fear and insecurity in the society at large and the actual victims are, by and large, not the real targets."
' It was observed in the said case that keeping in view the latest definition. Of 'terrorism' contained in section ,6 of the Anti-Terrorism Act, 1997, mere gravity or brutal nature of an offence does not provide a valid yardstick for branding the same as 'terrorism'. In order to qualify as terrorism the motivation behind the offence has to be political in the extended sense of the word and, the provided in the United Kingdom law, 'the use or threat is made for the purpose of advancing a political, religious or ideological cause' and the act has to be designed to destabilize the society at large. In the said case, a reference was made to Jahangir Akhtar Awan and 2 others v. The State and 8 others PLD 2000 Kar. 89, in which it was observed that:-- "An act of terrorism is a pre-planned 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 the exaggeration. It is neither hidden nor disguised. It means an act which is committed with the sole object to terrorise the people and to feel them insecure."
' A reference was also made to case of Shaikh Muhammad Amjad v. The State 2002 PCr.LJ 1317 in which it was observed that:--- "If an offence is committed to avenge an enmity or dispute or to settle a score on account of any known and visible reasons in the conduct of human being or a crime is committed in relation to the life, liberty, property, honour and dignity of any person which is taken by the society as a normal crime or a criminal act of ordinary nature, it remains confined to the commission of an offence simplicitor and does not amount to an act of terrorism."
10. In Bashir Ahmad's case (supra), a reference was made to Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445, in which it was 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 of 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 has no nexus with the above sections, in that event notification including such an offence to that extent will be ultra vires."
11. In the case of Abdul Ghafoor Bhatti v. Muhammad Saleem and others 2003 SCMR 1934 as referred by learned counsel for the complainant, six dacoits entered the house of the complainant and kidnapped two minors for ransom who were subsequently retrieved after payment of the demanded money and no private motive was available. Whereas in the present case, the petitioner Muhammad Sabir had killed Mst. Sadaf and Mst. Rooma on the basis of personal grudge.
A close scrutiny of the facts of the above said case and the present case would show that the above-referred case has nexus with section 6 of the Anti-Terrorism Act, 1997 and the present case has no nexus with the object of the Anti-Terrorism Act, 1997. Therefore, the impugned judgment has been rendered in clear violation of sections 6 and 7 of the Anti-Terrorism Act, 1997.
12. In the present case, Mst. Sadaf deceased was the wife of elder brother of the real sister of Muhammad Sabir petitioner who was married with the brother of husband of Mst. Sadaf, and both were living in the same house and had been fighting with each other and according to the version of Muhammad Sabir petitioner, his sister had been telling him with regard to misbehavior of Mst.
Sadaf due to which he nourished grudge. He came to Multan and knocked the door. Mst. Sadaf opened the door and thereafter he allegedly committed her murder in the kitchen and Mst. Rooma minor who knew him and could identify him, therefore, he also committed the murder of Mst.
Rooma. No doubt the offence committed was certainly most heinous in nature but it does not mean that it does qualify to be a terrorist act within the contemplation of section 6 or the schedule to Anti-Terrorism Act, 1997.
13. In view of what has been discussed above, the reasons stated by the learned Judge, Special Court Anti-Terrorism, Multan, in his impugned order do not appear to be very sound. This writ petition is, therefore, accepted, the impugned order passed by the learned Judge, Anti-Terrorism Court-I, Multan, on 15-10-2004 is declared to be without lawful authority and of no legal effect and the same is set aside, the application filed by the petitioner before the said, Court under section 23 of the Anti-Terrorism Act, 1997 is accepted and the petitioner's case is declared to be triable by a Court of ordinary jurisdiction. The learned Judge, Anti-Terrorism Court-I, Multan, is directed to transmit the record of the petitioner's case to the learned Sessions Judge, Multan, forthwith for further proceedings in the matter.