Muhammad Farrukh Mahmud, J.--The petitioner, who is complainant of case FIR N1. 61 registered at Police Station Shahzad Town, Islamabad on 24.2.2006 for offences under Sections 302, 324, 148, 149, 341, 506 PPC read with Section 6/7 of Anti-Terrorist Activities, Act 1997, has assailed the order dated 26.5.2008 handed down by the learned Division Bench of Islamabad High Court, Islamabad whereby the petition seeking setting aside order dated 3.11.2006 passed by the learned Judge Special Court-II, Anti-Terrorism whereby the case was transferred to the Court of ordinary jurisdiction, was dismissed.
2. Precisely, the relevant facts are that on 24.2.2006 at about 3:00 p.m., the complainant party was criminally assaulted by respondent-accused who were armed with deadly weapons like rifle, repeater, 12 bore gun and rifles resembling kalashnikov. Due to firing of the respondent-accused Shahid Mahmood lost his life while Sardar Asghar and Azram PWs received injuries on the complainant side. Ghazanfar Shah, a passerby also received injuries. According to FIR, the occurrence took place at Sahi Chowk Kuri Road when the deceased alongwith PWs was going back to his house while driving his car. The complainant in his own car alongwith Iqbal was following the car being driven by Shahid Mahmood deceased. The motive behind the occurrence was that a feud existed between Shahid Mahmood deceased, Tahir Mahmood and the respondent-accused over a piece of land and an altercation took place between the parties, earlier, at 10:00 a.m. on the same date.
3. After investigation report under Section 173 Cr.P.C/challan was submitted against the accused in the Anti-Terrorism Court. The accused moved application on 24.5.2006 under Section 23 of the Anti-Terrorism Act, 1997 seeking transfer of the case to the Court of ordinary jurisdiction. The learned Judge Anti-Terrorism Court, after recording the statements of complainant and eye- witnesses, vide order dated 3.11.2006 deemed it fit to accept the application of the respondent and transferred the case to the Court of ordinary jurisdiction. The complainant filed petition against the said order of the learned Judge Anti-Terrorism Court which was dismissed by the Division Bench of Islamabad High Court, Islamabad as mentioned above. Offence this petition.
4. The learned counsel for the petitioner has heavily relied on the provision of Section 6 (as amended in 2001) and referred to subsection (2) & (3) of Section 6 of the said Act. The same is being reproduced for ready:- "6. Terrorism.--(1)....................................................................
(2) An "action shall fall within the meaning of sub-section (1), if it:--
(a) involves the doing or 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;
(ee) involves use of explosives by any device including bomb blast;
(f) incites hatred and contempt on religious, sectarian or ethnic basis to stir up violence or cause internal disturbance;
(g) involve stoning, brick-batting 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 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 civic 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 communication 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 or 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 sub-section (1)(c) is satisfied."
5. The learned counsel has further submitted that the occurrence took place in a bazaar and that the respondent accused resorting to indiscriminate firing which was evident from the fact that 63 empties were recovered from the spot; that the respondent accused used automatic and semi- automatic weapon during the occurrence which attracted the provisions of sub-section (3) of Section 6 of the said Act and that the act of respondent created sense of fear and insecurity in the public. In this regard, he referred to the place of occurrence and the fact that one passerby, Ghazanfar Shah, also received injuries. The learned counsel further argued that the learned Judge Anti-Terrorism Court kept pending the application under Section 23 of the Act filed by the respondent and decided the same after considerable delay on 3.11.2006 after about five and a half month of filing of the application. The learned counsel has relied on the following judgments of this Court:-
1. Ziaullah Vs Special Judge, Anti-Terrorist Court, Faisalabad and 7 others (2002 SCM R 1225).
2. Mst. Raheela Nasreen Vs The State and another (2002 SCM R 908).
3. State through Advocate General NWFP Peshawar Vs Muhammad Shaifque (PLD 2003 SC 224).
4. Azizullah and another Vs The State and another (2005 SCM R 802).
5.Mirza Shaukat Baig and others Vs Shahid Jamil and others (PLD 2005 SC 530).
6. The Deputy Prosecutor General Punjab appearing on behalf of Respondents No, 1 and 2 has adopted the line of arguments of the learned counsel for the petitioner.
7. Conversely, the learned counsel for the respondent-accused has submitted that the application seeking transfer of the case was filed without any delay, after submission of challan but the same was decided after recording of statements of complainant and eye-witnesses by the learned Judge Anti-Terrorism Court in the light of the judgment passed by this Court in the case of Mirza Shaukat Baig's case supra. The learned counsel has further argued that it was admitted in the FIR itself that dispute existed between the parties over a piece of land, hence it was a case of private motive. The learned counsel has further argued that in the FIR, it was mentioned as follows:- {{URDU TEXT}}
8. But during the trial witnesses made dishonest improvement in order to bring the case within the ambit of provisions of Anti-Terrorism Act; that mere use of fire-arms would not be enough to bring the case within the scope of Anti-Terrorism Act; that both the Courts below after considering the whole case concluded that there was no evidence that the act of respondent-accused struck any terror among the masses. The learned counsel has further submitted that the learned Judge Anti- Terrorism Court has correctly referred to site-plan according to which the place of occurrence was not a busy, populated area rather the occurrence took place on a service road and the place of occurrence was situated neither in the populated area nor in bazaar. The learned counsel has further argued that prosecution opted not to produce Ghazanfar Shah, injured passerby, before the learned Judge Anti-Terrorism Court. While relying on the case of Mirza Shaukat Baig's case supra and the case of Mohabat Ali and another Vs The State and another (2007 SCM R 142) the learned counsel summed up his arguments that each criminal case was to be decided on its merits and circumstances and that the case law on the circumstances of the case could not be referred to as binding.
9. We have heard the learned counsel for the parties at length and have also gone through the relevant record of the case. In our opinion, the case of the respondent accused, who have clean past, rests on a lower pedestal than that of terrorists and sectarian criminals who killed innocent persons either to weaken the state or to cause damage to the parties of the rival sect. The terrorist or the sectarian killers do not have any personal grudge or motive against the innocent victims.
The instant case is clearly distinguishable as admittedly a feud existed between the parties over a piece of land prior to the occurrence. There is no independent evidence available on the record to show that the act of the respondents led to striking of terror among the masses. The site-plan denies the claim of the complainant that the occurrence took place in a bazaar which was heavily populated. It is a well settled law that criminal cases should be tried and decided by the Courts having . plenary jurisdiction until and unless extraordinary circumstances existed justifying the trial of the case by special Courts. The cases cited by the learned counsel for the petitioner do not apply to the circumstances of this case as in Ziaullah's case supra, the occurrence took place within the Court vicinity and the deceased advocate was done to death while he was on his way to conduct trial of a murder case. In the case of Mst, Raheela Nasreen supra, the accused murdered her husband who was a serving army officer with the connivance of Batman and this incident struck terror and insecurity amongst the army officers. In the case of State through AG NWFP Peshawar Vs Muhammad Shafique supra, the accused firstly sprinkled petrol on the deceased and then fired at him with his kalashnikov. The body of the deceased was completely' charred and the charred dead body of the deceased when brought for funeral rites caused shock, fear and insecurity among the residents of the vicinity. The very act was bar baric. In the case of Azizullah and another supra, the abductees were kidnapped for ransom and kept hostage in the house of the accused. So the learned Division Bench was correct in holding that the circumstances of the referred to cases did not apply to the instant case.
10. In the above-noted circumstances, we are not inclined to interfere with the impugned order passed by the learned Division Bench of Islamabad High Court, Islamabad. This petition is dismissed. Leave refused.