' FARRUKH ZIA G. SHAIKH, J.---The necessary facts out of which the present Criminal Transfer Application under section 526 read with section 566-A of the Criminal Procedure Code, 1898, are that the complainant registered F.I.R.No,79 of 2005 at Police Station 'A' Section, District Sukkur on 20- 9-2005 at 1940 hours for offences under sections 302, 324, 34 of the Pakistan Penal Code, 1860, along with 13(d) of the Arms Ordinance, 1965, the incident took place outside the door of the house of complainant. Subsequently, the case came up for hearing before the learned 1st Additional Sessions Judge, Sukkur, as Sessions Case No,302 of 2005. During the pendency of the said case, the complainant has moved the aforementioned application praying inter alia, that the offences committed by the respondent Nos. 1 to 4 are scheduled offences and as such they fall within the ambit of section 7 of the Anti-Terrorism Act, 1997, and therefore, the same are triable by the Court of learned Anti-Terrorism Court and not by the Court, which has taken cognizance of the said case.
2. We have considered at length, the submissions made by the learned counsel for the parties and perused the record placed before us. It is better and appropriate to reproduce the basic facts, relevant provisions of the Pakistan Penal Code, section 13-D of the Arms Ordinance, 1965, Anti- Terrorism Act and contents of the F.I.R to resolve the true controversy between the parties.
3. The complainant-applicant in the year 1995 was posted as Station House Officer at Police Station, Khaderi District Sukkur, where one Lal Bux lodged an F.I.R. For theft of his Ox and Abdul Sattar was nominated as an accused along with Shahan Mahar and Gul Hassan Mahar. Accused Abdul Sattar was arrested and kept in Police Station from where he escaped and drowned in river Indus.
After postmortem the dead body was handed over to the legal heirs and due to negligence of the Police Personnel, a case against Police Officials was registered being Crime No,3 of 1995 under section 223 of Pakistan Penal Code at Police Station, Khaderi, but during the course of investigation the same was cancelled as `B' Class. The complainant was thereafter pressurized and through a Jirgah, Rs,1,50,000 was imposed as penalty by the Waderas of the deceased party. The complainant-applicant refused to pay the penalty amount and therefore Dost Muhammad Mahar filed a Direct complaint against him, which was heard by the learned 1st Additional Sessions Judge, Sukkur, and the complainant was finally acquitted. The brother of deceased Abdul Sattar, namely Khawand Bux further pressurized the complainant to pay the penalty amount otherwise they would kill him and his sons. On the evening of the incident, brother-inlaws of the complainant, namely Akhtar Hussian, Edan and other family members were present in the house of the complainant and the son of the complainant, namely Muhammad Shafiq aged about 23/24 years along with Muhammad Naveed and other family members was also present in the house. At the ringing of the door bell Naveed went towards the outer door and returned and told the complainant that two persons were standing at the door of the Otaq and two of then were standing at the door of the house and they were armed with pistols and wanted to see any elder person of the family, Muhammad Sahfiq went towards the door and the complainant heard some unpleasant words and the complainant, P.Ws Akhtar Hussain and Edan went outside when they saw two persons standing on the door of the house and two at the door of the Otaq. The persons standing on the door were identified as Khawand Bux Mahar and Abdul Rasool, Khawand Bux Mahar told the complainant that he had not paid the penalty as compensation for his brother and therefore they would kill him. Khawand Bux put the pistol on the left side of the chest and fired and tried to run and Abdul Rasool fired, which hit him on the back. Muhammad Shafiq fell down at the door and Naveed fell towards accused who opened the fire which hit Naveed in his abdomen. One Dilawar who is neighbourer heard the cries and tried to save the complainant. Fourth unidentified person fired on Dilawar, which also hit him in his legs, the accused escaped, the injured were taken to the Hospital where Muhammad Shafiq died on the way and the complainant and other injured were admitted in the Hospital, Muhammad Ismail was arrested and was identified in the identification parade before the learned Judicial Magistrate, Sukkur, where challan was submitted.
4. It is the contention of the applicant-complainant that the offences committed by the respondents Nos. 1 to 4/accused are scheduled offences and therefore have to be tried exclusively by the Anti-Terrorism Court.
5. In all common law jurisdictions like Pakistan where there is a written Constitution, it is the duty of the Courts to carry out and interpret the intention of the Parliament as envisaged in the statute or Act of Parliament unless the same is ultra vires to the Constitution itself.
6. The offence for which, the respondents Nos. 1 to 4-accused persons are facing trial, are as under:--
302. Punishment of Qatl-i-Amd.-Whoever commits Qatl-e-Amd shall, subject to the provisions of this Chapter be--
(a) punished with death as Qisas;
(b) punished with death for imprisonment for life as Ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or
(c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable.
324. Attempt to commit Qatl-i-Amd.-Whoever does any act with such intention or knowledge, and under such circumstances, that, if he by that act caused Qatl, he would be guilty of Qatl-i-Amd, shall be punished with imprisonment for either description for a term which may extend to ten years, and shall also be liable to fine, and, if hurt is caused to any person by such act, the offender shall, in addition to the imprisonment and fine as aforesaid, be liable to the punishment provided for the hurt caused: ' Provided that, where the punishment for the hurt is Qisas which is not executable, the offender shall be liable to Arsh and may also be punished with imprisonment of either description for a term which may extend to seven years.
34. Acts done by several persons in furtherance of common intention.-When a criminal act is done by several persons, in furtherance of common intention of all, each of such person is liable for that act in the same manner as if it were done by him alone.
7. Schedule 2 of the Criminal Procedure Code, 1898, prescribes that section 302, Qatl-e-Amd, may arrest without warrant, Warrant, not bailable, compoundable, Qisas, or death, imprisonment for life or imprisonment up to 25 years, Court of Session.
' Section 324, attempt to Qatl-i-Amd, May arrest without warrant, warrant, not bailable, compoundable, imprisonment of either description for ten years and fine, Qisas or Arsh in the case of hurt and imprisonment up to seven years. Court of Session.
8. In order to determine the true intention of the Parliament, the Judges as aid to ascertainment of the intention of the Parliament must look at the "preamble" of the Act in question and if after this performance the Judges are satisfied with a word, phrase or passage the meaning of which is in dispute really only has one meaning in the context, they must apply that meaning but if they have doubts on the subject they must think again. It is at this point that the distinction between enacting part of statute and other parts become crucial. However if the Judges doubt about the meaning of the statutory provisions they are considering for some reasons as lack of clarity or apparent pointlessness they may take the preamble into consideration in determining how those doubts should be resolved. When there is a statute, it sets out the facts and assumption upon which, the statute is based. The preamble is generally for the mischief to be remedied in the scope of the act described, it is therefore clearly permissible to have recourse to it as an aid to construing the enacting provisions.
9. The preamble to the Anti-Terrorism Act, 1997, (Act No, XXVII of 1997) provides that "an Act to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences and for matters connected therewith and incidental thereto."
6. Terrorism.-(1) In this Act, "terrorism" means the use or threat of action where:
(a) the action falls within the meaning of subsection (2) and
(b) the use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society; or
(c) the use or threat is made for the purpose .Of advancing a religious, sectarian or ethnic cause.
(2) An "action" shall fall within the meaning of subsection (1), if it:
(a) involves the doing of anything that causes death;
(b) involves grievous violence against a person or grievous bodily injury, or harm to a person;
(c) involves grievous damage to property;
(d) involves the doing of anything that is likely to cause death or endangers a person's life;
(e) involves kidnapping for ransom, hostage-taking or hijacking;
(f) incites hatred and contempt on religious sectarian or ethnic basis to stir up violence or cause internal disturbance;
(g) involves stoning, brick-bating or any other form of mischief to spread panic;
(h) involves firing on religious congregations, mosques, imambargahs, churches, temples and all other places of worship, or random firing to spread panic, or involves any forcible takeover of mosques or other places of worship;
(i) creates a serious risk to safety of the public or a section of the public, or is designed to frighten the general public and thereby prevent them from coming out and carrying on their lawful trade and daily business, and disrupts civil life;
(j) involves the burning of vehicles or any other serious form of arson;
(k) involves extortion of money ("bhatta") or property;
(1) is designed to seriously interfere with or seriously disrupt a communications system or public utility service;
(m) involves serious coercion or intimidation of a public servant in order to force him to discharge or to refrain from discharging his lawful duties; or
(n) involves serious violence against a member of the police force, armed forces, civil armed forces, or a public servant.
(3) The use or threat of use of any action falling within subsection (2) which involves the use of fire- arms, explosives or any other weapon, is terrorism, whether or not subsection 1(c) is satisfied.
(4) In this section "action" includes an act or a series of acts.
(5) In this Act, terrorism includes any act done for the benefit of a prescribed organization.
(6) A person who commits an offence under this section or any other provision of this Act, shall be guilty of an act of terrorism.
(7) In this Act, a "terrorism" means:--
(a) a person who has committed an offence of terrorism under this Act, and is or has been concerned in the commission, preparation or instigation of acts of terrorism;
(b) a person who is or has been, whether before or after the coming into force of this Act, concerned in the commission, preparation or instigation of acts of terrorism, shall also be included in the meaning given in clause (a) above."
7. Punishment for acts of terrorism.-Whoever, commits an act of terrorism under section 6, whereby:--
(a) death of any person is caused, shall be punishable, on conviction, with death or with imprisonment for life, and with fine; or
(b) he does anything likely to cause death or endangers life, but death or hurt is not caused, shall be punishable, on conviction, with imprisonment of either description for a term which shall not be less than five years but may extend to fourteen years and with fine;
(c) grievous bodily harm or injury is caused to any person, shall be punishable, on conviction, with imprisonment of either description for a term which shall not be less than seven years but may extend to imprisonment for life and shall also be liable to a fine; or
(d) grievous damage to property is caused, shall be punishable on conviction, with imprisonment, of either description for a term not less than ten years and not exceeding fourteen years, and shall also be liable to fine; or
(e) the offence of kidnapping for ransom or hostage-taking has been committed, shall be punishable, on conviction, with death or imprisonment for life and shall also be liable to forfeiture of property; or
(f) the offence of hijacking, has been committed, shall be punishable, on conviction with death or imprisonment for life, and shall also be liable to forfeiture of property and fine;
(g) the act of terrorism committed falls under section 6(2)(f) and (g), shall be punishable, on conviction, with imprisonment of not less than six months and not more than three years and with fine; or
(h) the act of terrorism committed falls under clauses (h) to (n) of subsection (2) of section 6, shall be punishable on conviction, to imprisonment of not less than one year and not more than ten years and with fine; and
(i) any other act of terrorism not falling under clauses (a) to (h) above or under any other provision of this Act, shall be punishable, on conviction, to imprisonment of not less than six months and not more than five years or with fine or with both.
10. We are inclined to apply the ejusdem generis rule of interpretation in this case. The rule is that words are to be interpreted by the association in which they are found, is applied as an aid in ascertaining the intent of the Legislature and not to subvert it when ascertained and gives no warrant of narrowing alternative provisions which the Legislature has adopted with the purpose of affording added safeguards. The rule applies when the following conditions exist:
(i) the statute contains an enumeration by specific words;
(ii) the members of the enumeration constitute a class or category;
(iii) the class is not exhausted by the enumeration;
(iv) a general term follows the enumeration;
(v) there is a distinct genus which comprises more than one specie;
(vi) there is not clearly manifested an intent that the general term be given a broader meaning than the doctrine requires.
' It is a principle of the interpretation of statutes that where a list of certain circumstances in which a particular act can be done is followed by a general clause, that clause must be interpreted as referring to circumstances ejusdem generis as those which have been recited in the foregoing clauses. This well settled rule of interpretation applies as much to associated words in one sentence as to terms or phrase appearing in parts of the same section or in different sections in the same chapter. The doctrine of ejusdem generis should be restricted only to cases where the generic words follow specific words in the very same clause or sentence. The rule is that when general words follow particular and specific words of the same nature, the general words must be confined to the things of the same kind as those specified.
11. In case the aforesaid provisions and contents of the F.I.R. Are put in juxtaposition then section 6 of the Anti-Terrorism Act, 1997 is not attracted.
12. The learned counsel for the applicant-complainant has relied on PLD 2005 Supreme Court 530 stating that word 'designed' as used in section 6(i)(b) of the Anti-Terrorism Act, 1997 means deliberate and intentional act to create terror. On the facts of the case this issue is distinguished as the accused persons had not gone to the house of the complainant with the required intention but had simply gone to take their Rs,1,50,000 which was imposed as penalty on the applicant- complainant. Reliance is further placed on PLD 2004 Supreme Court 917, but the same is of no avail to the applicant-complainant as the incident therein had taken place in a mosque, which was in a public place and more particularly during Juma prayer where a large number of people had assembled and such circumstances were sufficient to attract the provisions of section 6 of the Anti-Terrorism Act, 1997. The learned counsel has also relied on 2003 SCMR 1323, but in our view the ratio decidendi of the same is also not helpful to the applicant-complainant as in that case the facts were extremely gruesome whereby the sense of insecurity or fear would prevail in the society as in that case seven persons were butchered in a house at night.
13. Learned Assistant A.-G. States that the provisions of section 6 are attracted in this case and has supported the arguments of the learned counsel for the applicant-complainant that it is a fit case for transfer of the case to Anti-terrorism Court.
14. On the other hand the learned counsel for the respondents Nos.1 to 4-accused, has drawn our attention to 2001 PCr.LJ 581, wherein it was held that a simple case of murder due to previous motive, enmity was not committed in a manner which struck terror or created a sense of fear and insecurity in the people or any section of people except in the ordinary sense of insecurity created at the time of commission of every crime and as such a case could not be transferred to the Anti- Terrorism Court.
15. In 2003 YLR 1977, it was held that if an offender with an intention to strike terror in the people or any section of the people etc. Commits scheduled offence then only he will be subject to jurisdiction of Anti-Terrorism Court.
16. In PLD 2004 Lah. 199, it was held 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 this offence has to be political to extend the sense of the word and, as 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.
The history of crimes in the human society is replete with macabre, gruesome and horrifying offences shocking the society at large yet such crimes were never treated or accepted as terrorism because the motivation was personal and private."
17. The Judges of the Honourable Supreme Court of Pakistan in 2007 SCMR 142, held that "in order to determine as to whether an offence would fall within the ambit of section 6 of the Anti-Terrorism Act, 1997 it would be essential have a glance over the allegations made in the F.I.R., record of the case anti surrounding circumstances. It is also necessary to examine the ingredients of alleged offence had 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 such act is to be seen. It is also to be seen whether the said act has created as sense of fear and insecurity in the public or any section of 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 the previous enmity and private vendetta." In PLD 2001 SC 521, it was held that a person would commit a terrorist act if 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, in that case, as the facts of the case reveal, the alleged sprinkling of the spirit on the person of the victim was within the boundry walls of the applicant's house. It was not in public and, therefore, the element of striking terror for creating sense of fear and insecurity in the people, or any section of the people was not made discernible in the F.I.R. And for that matter on .The record of the case as a whole.
18. In PLD 2007 SC 571, the Honourable Lawlords held that "the very object to promulgate Anti- Terrorism Act, 1997, was to control acts of terrorism, sectarian violence and other heinous offences as defined in section 6 of the Act and their speedy trial to bring offences within the ambit of the Act, it is essential to examine that the said offence should have nexus with the object of the Act and the offence covered by its relevant provisions such as section 6.
19. The upshot of what has been discussed above, is that this Criminal Transfer Application under section 526 read with section 561-A of the Criminal Procedure Code has no merits and we accordingly dismiss the same with no order as to costs.