ABDUL HAMEED DOGAR, J.--- This petition is directed against the order, dated 25-5-2004 passed by a learned Division Bench of the High Court of Sindh, Bench at Sukkur, whereby Criminal Revision Application No,D-30 of 2004 was converted into constitution petition and was dismissed and the order passed by the learned Judge, Anti-Terrorism Court-II, Sukkur and Larkana Division declining to transfer the case to ordinary Court having jurisdiction under section 23 of the Anti-Terrorism Act, 1997 (hereafter referred to as "the Act") was maintained.
2. Briefly, stated the facts of the prosecution case as unfolded in the F.I.R. Are that on 20-1-2003 complainant Syed Dost Ali Shah, Menhal, Imamdin, Noor Muhammad and driver Khursheed Sheikh had gone in Car No,-Z-9527, Karachi to Deh Alipur Katcho for supervision of agricultural land. After supervising the land, when they were returning towards their village and when at about 4-00 p.m.
Reached Katchi Sarak leading towards Zero Bank near Banana Garden of Ghulam Hussain Kandhir, two black colour motorcycles driven by six persons escorted -them who stopped the motorcycles and ran inside Banana Garden. They were identified as petitioners Muhabat Ali, Habib-urRehman and co-accused Siddique, Allah Dino, Gul Hassan, and Gul Muhammad, all Jatoi by caste, armed with klashnikovs. Petitioner Muhabat Ali challenged them that they will not spare them and will murder them. Whereafter, he started firing from klashnikovs straight at them which hit driver Khursheed Sheikh who cried and fell on the driving seat whereas other accused also fired at them but they immediately alighted from the car and took shelter in the Banana Garden. On cries and fire shots, many people came running from village Ghulam Hussain Kandhir. On seeing them coming, petitioners and co-accused fled away on motorcycles. Thereafter, complainant found Khursheed Sheikh driver had succumbed to the injuries and also saw marks of bullets on the car.
The motive behind the incident was that petitioners party had previously attacked upon the land of the complainant and murdered his two Haris. Such case was pending and they used to issue threats to withdraw the same and for such annoyance, they in league with each other and at the instigation of Rasool Bakhsh son of Dilshad Jatoi fired at them with intention to commit their murder. On the statement of complainant, case F.I.R. No,6 of 2003 under sections 302/34, 427, 324, 148, 149, 109, P.P.C. Section 13-D of the Arms Ordinance and section 7 of A.T.A., 1997 was registered at Police Station Babarloi, District Khairpur.
3. After usual investigation, the petitioners were sent up to face trial before the Anti-Terrorism Court-II, Sukkur and Larkana Division.
4. An application under section 23 of the Act was moved by the petitioners before the trial Court which was dismissed vide order, dated 6-3-2004. The said order was assailed before the learned High Court in revision application which too was dismissed vide impugned order.
5. We have heard Dr. Babar Awan, learned counsel for the petitioners and Dr. Kazi Khalid Ali, learned Additional Advocate-General Sindh and have gone through the record and the proceedings of the case in minute particulars.
6. Dr. Babar Awan, learned counsel for the petitioners contended that the incident in this case has got no nexus with section 6 of the Act as from the contents of F.I.R., the incident is said to have taken place about 14/15 kilometers from the road in a jungle inside banana and sugarcane crops.
According to him, except complainant, there is no other eyewitness of the incident. The motive shown in the F.I.R. Was that previously two Haries of the complainant were killed in which the petitioners were challaned and the petitioners' side issued threats to withdraw the said case and because of that revenge, this incident took place. He mainly stressed that the case-law referred to in the impugned order is an different facts and circumstances and has no bearing at all with the case in hand. He further contended that from the facts of case, the definition of terrorism is not attracted as the said offence has neither created any threat to coerce or intimidate or overawe the Government or the public or a section of the public or community or sector create a sense of fear or insecurity in society. He also referred the criminal record of complainant according to which he has been challaned in so many cases. He lastly contended that the learned Special Court has no jurisdiction to try the offence as it did not fall within the ambit of the act and is triable by an ordinary Court having jurisdiction.
7. On the other side, Dr. Kazi Khalid Ali, Additional Advocate-General concedes that the case has not fallen within the ambit of Anti-Terrorism Act as the offence in question has got no nexus with the Act.
8. In order to determine as to whether an offence would fall within the ambit of section 6 of the Act, it would be essential to have a glance over the allegations made in the F.I.R., record of the case and surrounding circumstances. It is also necessary to examine that the ingredients of alleged offence has any nexus with the object of the case as contemplated under sections 6, 7 and 8 thereof.
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. It is also to be seen as to whether the said Act has created a sense of fear and insecurity in the public or any section of the public or community or in any sect. Examining the case in hand on the above touchstone, it is manifest on the face of it that the alleged offence took place because of previous enmity and private vendetta. The incident admittedly took place inside the fields of sugarcane and Banana cultivated in jungle about 14/15 miles away from the main road. Motive as defined in the F.I.R. Is also to be given a specific attention which indicates that there was a personal enmity between the parties over the land and murder case of Haries of complainant.
9. From the entire resume, it is manifest on record that intention of the petitioner was not at all to create sense of insecurity or in destabilize the public-at-large or to advance any sectarian cause.
Thus, we are of the view that the design or purpose of the offence as contemplated by the provisions of section 6 of the Act is not attracted. Reference can be made to the case of this Court reported as Bashir Ahmad v. Naveed Iqbal PLD 2001 SC 521 whereby sprinkling of spirit on the person of victim was made within the boundary walls of the house of appellant which was not a public place and accordingly the element of a striking terror or creating sense of fear and insecurity in the people or any section of the people was found missing, therefore, the order of transferring the case to the Court of learned Sessions Judge passed by the High Court was upheld.
10. For the foregoing reasons, we are of the view that the impugned order is not sustainable in law and is thus, set aside. While converting the petition into appeal, the same is allowed and the learned Judge, Special Court, Anti-Terrorism-II Sukkur and Larkana Division at Sukkur is directed to transmit the record of the Special Case No,7 of 2004 to the Court of learned Sessions Judge, Khairpur, for its disposal in accordance with law.