' HASNAT AHMAD KHAN; J.---Through this petition filed by Abdul Sattar, petitioner, who is complainant of case F.I.R. No,371/06 dated 1-6-2006, registered under sections 324/447/427/148/149, P.P.C. Read with section 7 of Anti-Terrorism Act, 1997, with Police Station Noor Shah, District Sahiwal, order dated 27-6-2006 passed. By Judge Anti-Terrorism Court II, Multan, whereby, while dealing with the application seeking physical remand, order of deletion of section 7 of Anti-Terrorism Act, 1997, was passed, has been called in question.
2. Brief facts of the case as narrated by the petitioner/complainant in above mentioned F.I.R., are that on 1-6-2006, at morning time, while Abdul Sattar complainant along with Abdul Sattar and Abid Hussain was on his way to his fields, suddenly, Abdul Razaq, Muhammad Imran, Abdul Basit, Najam-ud-Din alias Bhola and Abdul Ghaffar beside three un-known persons, while armed with fire arm weapons, emerged at the scene and started firing on them. The complainant and his companions saved their lives after running towards their houses. In the meanwhile, the assailants continued firing, which according to the complainant, created harassment and insecurity in the public. According to the complainant, instigating factor behind the said occurrence was that complainant party had purchased 10 acre of agricultural land from Muhammad Saleem Butt, two years before the occurrence, against the consideration of Rs,35,00,000. Out of said consideration, an amount ,of Rs,10,00,000 had been paid as earnest money, while rest of the payment had to be made before 5-3-2005, but the sale deed could not be executed. In violation of said agreement, the owners of the said land had allegedly given the said land to Abdul Razaq (respondent No,2) etc., who had interfered in the possession of the complainant party. During the said occurrence, the accused had allegedly destroyed/ruined maize crop of the complainant party.
3. Abdul Razaq, Muhammad Imran, Abdul Basit, Najam-ud-Din alias Bhola (Ghulam Mohy Uddin), the respondents herein, applied for bail after arrest before the Judge Anti-Terrorism Court-I, Multan, who while dismissing the application, vide order dated. 19-6-2006, observed that prima facie, offence under section 7 A.T.A. Was made out against the accused. Thereafter, the case took a turn, as while dealing with the application for grant of physical remand, Judge Anti-Terrorism Court-IL Multan, held that section 7 of A.T.A was not made out, and consequently, he directed the LO. To produce the accused before the Illaqa Magistrate, having the jurisdiction at Sahiwal. The said order caused discomfort to the petitioner and prompted him to file the Writ Petition in hand, which was admitted to regular hearing by this court vide order dated 26-7-2006.
4. In support of this petition, learned counsel for the petitioner has contended that just after registration of the above mentioned F.I.R No,371, another case was registered with the same police station at the instance of Muhammad Akhtar, S.I. Vide F.I.R. No,372/04 under sections '324/354/148/149, P.P.C., read with section 13-20-65 Arms Ordinance. According to the contents of said F.I.R, first occurrence had not ceased and the accused/respondents Nos.1 to 4/A continued to cause harassm ent and create panic in the public by way of resorting to reckless firing aiming the police officials, who had reached the place of occurrence, after receiving a wireless message regarding the' prior occurrence, therefore, according to the learned counsel for the petitioner, case against the said respondents squarely fell within the ambit and definition of sections 6 & 7 of Anti Terrorism Act, 1997. He adds that the impugned order dated 27-6-2006 has been passed illegally and without jurisdiction, inasmuch as while passing the said impugned order, the concerned Judge was just acting as a Duty Judge.
5. On the other hand, learned counsel for the above mentioned respondents has opposed the writ petition tooth and nail by asserting that mere perusal of the F.I.R. In question clearly shows that it did not attract the provisions of sections 6 & 7 of A.T.A. Inasmuch as, the alleged occurrence erupted due to the motive between the private persons and even if the contents of the F.I.R. Are admitted to be correct, the object of the accused was not to terrorize the public. He further adds that the impugned order cannot be termed as one, having been passed without jurisdiction. While concluding his arguments, he has placed reliance upon the judgment of Hon'ble Supreme Court reported as Mohabat Ali and another v. The State and another (2007 SCM R 142).
6. After hearing the arguments of both the sides and going through the record, we have observed that while deciding the question of grant of physical remand, Judge Anti-Terrorism Court II, Multan, had directed the Investigating Officer to delete section 7 of Anti-Terrorism Act, 1997, while acting as Duty Judge. The Duty Judge enjoys the same powers as the incumbent Judge enjoys. While deciding the question of grant of remand, the concerned court is not expected to act blindly and such orders are expected to be passed with due application of judicial mind. Impugned order cannot be set aside simply on the ground that the same was passed by the Duty Judge. We are conscious of the fact that earlier to the passing of the impugned order, Judge Anti Terrorism Court-I, Multan, while deciding a bail application had made contrary observations vide order dated 19-6-2006. But said, observations cannot advance the case of the petitioner in view of the established law that observations made while deciding bail matters are always treated as tentative 'in nature.
7. Be that as it may, as the matter has been brought before us, we have to decide the question of jurisdiction on the basis of the facts of the case one way or the other, and the constitutional jurisdiction cannot be exercised just on the basis of the technical grounds and while deciding the writ petition, the facts of the case cannot be lost sight of.
8. As far as merit of the case is concerned, for determining the question as to whether an offence would fall within the ambit of section 6 of the above mentioned Act, it would be essential to have a glance over the allegation levelled in the F.I.R., the record of the case and surrounding circumstances, as has been laid down by the Hon'ble Supreme Court in the above referred latest case of Mohabat Ali reported as 2007 SCM R 142, in which it has been clearly laid down that while deciding the question of jurisdiction in such like cases, it would be necessary to examine that the ingredients of alleged occurrence has any nexus with the object of the Anti-Terrorism Act (XXVII of 1997) as contemplated under sections 6, 7 & 8 thereof. The acid test as laid down in the said judgment is that for determining the question as to whether a particular act is an act of terrorism or not, the motivation, object, design or purpose behind the said act is to be seen. While applying the above mentioned litmus test provided by said judgment of the Hon'ble Supreme Court, it is manifest on the face of it that in the present case, the alleged offence took place between the private parties because of enmity and private vendetta over the dispute of land. The incident admittedly took place inside-the fields. The perusal of the entire contents of the F.I.R. Shows that during the occurrence nobody received even a single scratch at the hands of accused mentioned therein and it is further manifest that the object of the accused was not at all to create sense of insecurity or create terror in the public. We have further observed that the alleged offence had not even the tendency to create sense of fear and insecurity in the mind of people or any section of the society. As far as the second F.I.R, on which, much emphasis has been laid down by the learned counsel for the petitioner is concerned, second occurrence was altogether different and separate transaction. After the receipt of the information regarding the first occurrence, the police officer had recorded the statement of the complainant at 6-40 a.m. On 1-6-2006 and till then, first phase of the occurrence had concluded and second occurrence cannot be termed as part and parcel of the first transaction. For the same reason, separate F.I.R. Was registered regarding second occurrence. Prima facie, in the second occurrence, the offence of terrorism had been committed by the accused mentioned therein, but that by 'itself cannot drag the first occurrence within the ambit of definition of terrorism as given in the section 6 of Anti-Terrorism Act of 1997. Consequently, we have observed that the learned counsel for the petitioner has remained unsuccessful to convince us that there was any jurisdictional error committed by the Judge Anti-Terrorism Court-II, Multan, while passing the, impugned order dated 19-6-2006. Consequently, we have got no option but to dismiss the petition in hand and it is ordered accordingly. There shall be no order as to costs.