' IJAZ-UL-HASSAN KHAN, J.--- Leave to appeal is sought against the judgment dated 26-2-2008 passed by a learned Division Bench of Lahore High Court, Lahore, whereby Writ Petition No, 2420 of 2007 filed by respondents Nos. 1 to 4 was allowed, the case titled "Muhammad Siddique and others v. The State" was withdrawn from Anti-Terrorism Court, Lahore and sent to Sessions Judge, Sheikhupura for trial.
2. The facts which we have been able to gather from the record of the case are, that on the day of occurrence i,e, 30-8-2006 at about 1.00 p.m. Complainant Bashir Ahmed, Ameer Ali alias Bhutto his brother and others, were on the way in motorcars from Sharaqpur Sharif to village `Fatoowala'.
When they reached near the haveili' of Naseem alias Mithoo, all of a sudden respondents Muhammad Siddique, Muhammad Yaqoob, Muhammad Khalid Mahmood and Muhammad Idrees and others, duly armed, emerged from the said `haveili' and started firing at the complainant party, as a result of which, four persons namely Ameer Ali alias Bhutto, Jamil Ahmad, Muhammad Ashraf and Mushtaq Ahmad lost their lives and Mohammad Arfakhshand sustained serious injuries. After accomplishing the mission, respondents made good their escape, while making aerial firing, creating terror, insecurity and traumatic effect in the locality. The motive leading to the incident was stated to be blood feud enmity between the parties. The case was registered against the respondents and other vide F.I.R No,428/2006, under sections 302/324/148/149 and 109, P.P.C. During the investigation of the case, section 7 of Anti-Terrorism Act, 1997 was also inserted. Respondent Nos. 1 to 4 and others moved an application for transfer of the case from Anti-Terrorism Court to the Court of ordinary jurisdiction, which was dismissed vide order dated 7-3-2007. Feeling aggrieved, respondent Nos. 1 to 4 filed writ petition which was accepted by a Division Bench of Lahore High Court, Lahore through the impugned judgment, necessitating filing of the present petition.
3. We have heard Mr. Arshad Ali Chaudhry, Advocate for the petitioner, Syed Zahid Hussain, Advocate for respondent No, 2 and Mian Asif Mumtaz, learned Deputy Prosecutor-General for the State in the light of the material on file.
4. Learned counsel for the petitioner, bitterly criticized the impugned judgment and attempted to argue that learned High Court has not followed the guidelines recorded by this Court in case titled "Mst. Najam-un-Nisa versus Judge Special Court, etc." (2003 SCMR 1323) and transferred the case to the Court of Sessions Judge, Sheikhupura without any justifiable reason, totally ignoring that four innocent persons were murdered and one sustained serious injuries at the hands of respondents and their companions and it had the effect of striking terror and creating a sense of fear and insecurity in the locality. Learned counsel reiterated that 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. To substantiate the contentions, learned counsel placed reliance on 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).
5. On the contrary, learned Deputy Prosecutor-General assisted by learned counsel for respondent No,2, opposed the arguments of learned counsel for the petitioner and supported the impugned judgment whole heartedly and prayer for its sustenance.
6. 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 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 have 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.
A perusal of the record would reveal, that occurrence has taken place in front of the `haveli' of the respondents, situated in village `Fatoowala'. The motive for the occurrence is enmity inter-se the parties on account of some previous murders. In this view of the matter, we are of the opinion that since motive was enmity inter-se the parties, the application of section 7 of the Act, which primarily requires the spread of sense of insecurity and fear in the common mind is lacking in the present case. The occurrence neither reflects any act of terrorism nor it was a sectarian matter instead the murders in question were committed owing to previous enmity between the two groups. The present case, as observed above, does not fulfil the requirements laid down in the judgment titled as "Basharat Ali v. Special Judge Antiterrorism 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 gist 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 after effect.
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. Reference in this regard can be, made on Ch. Bashir Ahmad v. Naveed Iqbal and 7 others (PLD 2001 SC 521), Muhammad Mushtaq v. Muhammad Ashiq and other (PLD 2002 SC 841) and Basharat Ali v. Special Judge, Anti-Terrorism Court-II, Gujranwala (PLD 2004 Lah. 199).
8(sic). In Bashir Ahmad's case (supra), a reference was made to Mehram Ali and others v.
Federation of Pakistan and other 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 section 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 clauses (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."
9. From the entire resume, it is manifest on record that intention of the respondents was not at all to create sense of insecurity or 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 petitioner 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. After having gone through the entire law as enunciated by this Court in different cases the judicial consensus seems to be that striking off terror is sine qua non for the application of the provisions as contained in section 6 of the Act which cannot be determined without examining the nature, gravity and heinousness of the alleged offence, contents of F.I.R its cumulative effect on the society or a group of persons and the evidence which has come on record. There could be no second opinion that where the action of an accused results in striking terror or creating fear, panic, sensation, helplessness and sense of insecurity among the people in a particular vicinity it amounts to terror and such an action squarely falls within the ambit of section 6 of the Act and shall be triable by a Special Court constituted for such purpose but in the instant case position is altogether different. 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.
11. In view of above, we do not find any merit in this petition, which is dismissed. Leave refused.
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