Khurshid Anwar Bhinder, J.--Through the present constitutional petition, Shaukat Ali complainant has challenged the legality of the impugned order dated 6.10.2008, passed by the learned Judge ATC-IV, Lahore, whereby he dismissed .he application filed by the petitioner under Section 23 of the Anti-Terrorism Act, 1997 for transfer of case FIR No, 32 dated 29.1.2008, registered under Section 302/109/148/149 PPC and Section 7 of the Anti-Terrorism Act, 1997, at Police Station Sharqpur Sharif to the Court of general/ordinary jurisdiction.
2. Briefly the facts leading to the filing of this constitutional petition are that Ghulam Rasool, complainant lodged the aforesaid FIR stating therein that in the midnight of 28/29.1.2008, he and his uncle Riasat Ali were sleeping in a room of their house situated at Mauza Khana Wali whereas Muhammad Mansha (his father) along with Ali Sher aged 13/14 years and Ali Ahmad aged 10 years (his nephews) were sleeping in the adjacent BETHAK when at about 1.00 a.m. Dani son of Hassan knocked at the door of the BETHAK whereupon Muhammad Mansha after asking about identity of Dani opened the door of the BETHAK where after the said Dani armed with dagger, Feroz alias Fauji armed with kalashnikov, Falak Sher alias Falkoo armed with 222 bore rifle, Mukhtar alias Mokhi armed with kalashnikov and Jaffar Ali made their entrance in the BETHAK, the light of which was already on. As result of the noise, the complainant and his uncle woke up and looked into the BETHAK through holes of the door between the common wall of the room and the BETHAK wherein they saw that Jaffer and Dani had caught hold of Muhammad Mansha (father of the complainant) when in the meanwhile, Dani accused cut the throat of Muhammad Mansha with his dagger while the other accused namely Feroz alias Fauji, Falak Sher alias Falkoo, Mukhtar alias Mokhi and Jaffer Ali resorted to firing at the father and aforesaid nephews of the complainant while raising lalkaras that despite their warning to desist from prosecuting the case regarding murder of Basheer, Muhammad Mansha had not abandoned the prosecution of the same and now was not to be left alive to prosecute. As a result of the said actions of the said accused, Muhammad Mansha (father of the complainant), Ali Sher and Ali Ahmad (nephews of the complainant) lost their lives at the spot. The complainant further alleged that the occurrence had taken place in pursuance of planning, instigation and abetment of Shaukat Ali son of Khushi Muhammad who in the noon of 28.1.2008 had been heard by Riaz Ahmad and Basharat Ali while imparting instructions in the Courts compound Sheikhupura to finish Muhammad Mansha as he was not giving up prosecution of case FIR No, 44/2007 registered under Sections 302/364/201/148/149 PPC about murder of Basheer Ahmad with Police Station Sharqpur District Sheikhupura against the accused party.
3. After investigation, the police declaring Feroz alias Fauji, Falak Sher alias Falkoo, Mukhtar alias Mokhi, Dani son of Hassan Muhammad and Jaffer Ali as proclaimed offenders and after the arrest of Shaukat Ali submitted challan before the Anti-Terrorism Court No, IV, Lahore where the petitioner filed an application for transfer of the case to the Court of ordinary jurisdiction which was dismissed through impugned order, hence the present constitutional petition.
4. Learned counsel for the petitioner submits that from the bare perusal of the FIR it reveals that though three persons were done to death by the accused but the occurrence was the result of previous enmity between the parties and that the provisions of Section 6 of the Anti-Terrorism Act, 1997 are not attracted in the circumstances but the learned trial Court has erroneously while taking cognizance of the matter has dismissed the application of the petitioner filed under Section 23 of the Act ibid.
5. Learned counsel for Respondent No, 2 submits that the action of the accused persons falls under the provisions of Section 6(1)(b) and subsection (2)(a)(b) of the Anti-Terrorism Act, 1997 therefore, the learned trial Court has rightly dismissed the application filed by the petitioner for transfer of the case as the night time occurrence has greater effect than the occurrence at day time. He, while relying upon the case of Mst. Najam-un-Nisa v. Judge, Special Court constituted under Anti- Terrorism Act, 1997 (2003 SCM R 1323) submits that the action of the accused persons created terror and fear in the community as they murdered three persons, as such, the case falls within the parameters of Anti-Terrorism Act, 1997.
6. Learned Additional Advocate-General while adopting the arguments advanced by the learned counsel for Respondent No, 2 has supported the impugned order.
7. We have heard the learned counsel for the parties and have also perused the record. The perusal of the FIR shows that the deceased were murdered by the accused persons due to the previous enmity between the parties and an act of private revenge based on personal vendetta is not an act of terrorism. The occurrence took place at midnight in a room of the house and there is no mentioning of the fact that hearing the fire shots the people of the locality attracted or because of the firing of the accused there was a terror or sense of fear and insecurity in the society. From the surrounding circumstances of the case, it appears that the intention of the accused persons was not at all to create sense of insecurity or in destabilizing the public-at-large or to advance any sectarian cause. Since the house of the deceased persons was not a public place, therefore, the element of striking terror or creating sense of fear and insecurity in the people or any section of the people is missing, as such, the provisions of the Anti-Terrorism Act, 1997 are not attracted in the instant case and the learned trial, Court has erroneously assumed the jurisdiction.
8. As far as the judgment cited by the learned counsel for Respondent No, 2 is concerned, the same is not relevant under the facts and circumstances of the present case and the law laid down by the Apex Court in the case of Mohabbat Ali and another v. The State and another (2007 SCM R 142).
9. For what has been discussed above, we allow this writ petition, set aside the impugned order dated 6.10.2008, passed by the learned trial Court and transfer the aforesaid case to the Court of learned Sessions Judge, Sheikhupura for its disposal in accordance with law.