Sh. Abdul Rashid, J.--The petitioners through this petition seek the transfer of case FIR No, 39 dated 29.3:2005 under Sections 324/353 PPC read with Section 3/4 Explosive Substances Act, 1908, Section 13 of the Arms Ordinance, 1965 and Section 6/7 ATA 1997 registered at Police Station Phalora District Sialkot on the report of Abdur Rehman S.I./SHO from the Anti Terrorism Court Gujranwala Respondent No, 1 to an ordinary criminal Court by setting aside the impugned order dated 7.6.2005 passed by Respondent No 1 whereby the petitioners' application seeking the said transfer had been dismissed .
2. Facts leading to the filing of this petition are that the petitioners while committing the murder in respect of which case FIR No, 38 dated 24.3.2005 under Section 302/34 PPC registered at same police station were running from place of occurrence and the police party headed by Abdur Rehman S.I./SHO learnt about the said incident and chased the petitioners.
The additional police force was also summoned which encircled the petitioners who had concealed themselves in a wheat crop and when the police party urged the petitioners to surrender they started firing to which the police also responded and then Babar Maqbool petitioner was also injured and ultimately the petitioners had laid down their weapons and surrendered themselves to the police party and from their custody four hand grenades, two Kalashnikovs alongwith 5 live bullets, and one pump action 12 bore and 10 live cartridges were recovered. Many crime empties of different bores were also found lying nearby. Initially this case was registered under Section 324, 353 PPC read with Section 13 of the Arms Ordinance 1965 and Sections 3/4 of the Explosive Act and subsequent the offence under Section 6/7 ATA 1997 had also been added. The petitioners then submitted an application under Section 23 of Anti Terrorism Act 1997 before Respondent No, 1 and pleaded that the provision of Section 6/7 of ATA 1997 did not apply to the facts of the prosecution case and vide impugned order the petitioners' said application had been dismissed. The said order has been assailed in this petition.
3. It has been argued on behalf of the petitioners that even if the prosecution allegations as set out in the FIR are accepted the offence allegedly committed by the petitioners does not fall within the definition of Terrorism as stipulated in Section 6 of ATA 1997 which would require that the petitioners must commit serious coercion or intimidation or serious violence against the police force; that no prima facie evidence has been brought on the file to show the incidence of the said factors; that though the police had collected crime empties and recovered weapons of offence but these had not been sent to Forensic Science Expert to show that firing had actually been made with those weapons and although it has been stipulated in the FIR that many residents of the locality had also assembled there but not a single person from the public has been cited as a prosecution witness to support the fact that the petitioners had fired at the police party or had used serious violence against it.
4. It has been argued by the learned Addl. Advocate-General that the recovery of weapon of offence and crime empties at the spot" shows that the petitioners had made firing on the police party and had committed serious violence against it to prevent it from discharging its lawful duties which act fall within the purview of Section 6 ATA 1997 and the petitioners' application had been rightly disallowed by the trial Court.
5. The entire case has been built up on the strength of police witnesses alone. Although it has been alleged in the FIR that public witnesses had also reached the occurrence but not a single person from the public has been show in the investigation and his statement recorded to the effect that the petitioners had fired at the police party and thus were involved in committing serious violence against it to prevent it from discharging its lawful duty.
6. The police had collected crime empties from the place of occurrence and as well as recovered fire-arms from the petitioners but the said crime empties and the weapons of offence have not been sent to the Forensic Science Expert to prove the factum that crime empties had been actually form the fire-arms allegedly recovered from the petitioners. Therefore, prima facie there is no material on the file to suggest that the petitioners had resorted to firing at the police party. In spite of the fact that indiscriminating firing by the petitioners had been alleged against members of the police party who were many in number. No police officer sustained any injury. The. factum of firing by the petitioners at the police party has not -been brought on the file through any independent source, therefore, we find that the act of the petitioners does not fall within the purview of Sections.
6/7 Anti Terrorism Act 1997 and as such the impugned order is set-aside and this case is transferred to the ordinary Court of competent jurisdiction for trial.