JUDGMENT IJAZ AHMED CHAUDHRY, J.---Through the present petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, Tariq Hakim petitioner calls in question the legality of the order dated 13-7-2010 passed by the learned Judge Anti-Terrorism Court No.II, Lahore whereby he dismissed the application of the petitioner under section 23 of the ATA 1997 for transfer of the case to the court of ordinary jurisdiction.
2. Briefly the facts, relevant for the disposal of this constitutional petition, are that Kashif Ali, respondent No.2 got a case vide No.148 of 2008 registered on 18-2-2008 under sections 302/324/34, P.P.C. And section 7 of the Anti-Terrorism Act, 1997 alleging therein that on 17-2-2008 at 11-00 p.m. His brother Asif Ashraf who was contesting the election for the seat of MPA was present in the central election office near Bright Grammar School Township, Lahore wherefrom he boarded in his Land. Cruiser along with his four companions followed by the complainant in his Toyota Parado along with four persons and left towards Hamdard Chowk. At some distance near water reservoir from the hedge on the left side, three armed persons emerged and after identifying his brother Asif Ashraf made targeted firing causing injuries to all the persons present in the Land Cruiser. When the vehicle of the complainant reached nearby the accused also made indiscriminate targeted firing on them from left side whereafter the assailants made good their escape towards water reservoir while firing. Except the complainant, the persons in the Parado car, namely, Wakeel alias Ijaz, Janbaz, Ashraf and Javaid were injured whereas in the Land Cruiser, Asif Ashraf and his companions, namely, Atif Sharif, Khadim Hussain, Safdar and Kashif Yousaf suffered injuries whereas Asif Ashraf and Wakeel alias Ijaz succumbed to the injuries in the way to the hospital. The complainant on the same day made a supplementary statement wherein he stated that Rashid Bhatti and six others or some political rival had got his brother murdered as property dispute was going on between them and Rashid Bhatti. The petitioner was also implicated by the complainant through his supplementary statement. After completion of the investigation report under section 173, Cr.P.C. Was submitted before the learned trial court before which the petitioner filed an application under section 23 of the Anti-Terrorism Act, 1997 for transfer of the case to the court of ordinary jurisdiction for trial in accordance with law which was dismissed by the learned trial Court through impugned order dated 13-7-2010. Hence the present constitutional petition.
3. Learned counsel for the petitioner contends that there is nothing on record of this case which would have any nexus with terrorism; that in view of the judicial consensus striking of terror is sine qua non for the application of the provisions of section 6 ATA, 1997 which cannot be determined without examining the nature, gravity and heinousness of the alleged offence, the contents of the F.I.R., its cumulative effect on the society or a group of persons and the evidence which has come on record; that fear or insecurity must not be by product, fall out or unintended consequences 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; that the act of terrorism is desired to be determined with the yardstick and scale of motive and object, instead of its result or after-effects, the definition of terrorism is not attracted if the offence has neither created any threat to coerce or to intimidate or overawe the Government of public or a section of public or community or sect or to create a sense of fear of insecurity in the society; that from the tenor of the F.I.R. It is crystal clear that motive or object of the unknown assailants was to do away with Asif Ashraf as if the object and motive of the unknown assailants would have to create panic, fear or sense of insecurity in the society, they would have attacked at the central election office of any candidate but the assailants kept watch over Asif Ashraf deceased, waited for his departure from the election office and after satisfying themselves about the presence of Asif Ashraf in the vehicle they made targeted firing, as such, the action of the assailants does not fall within the definition of section 6 of the Anti-Terrorism Act, 1997 and thus the learned trial court has illegally dismissed the application of the petitioner; that the place of incident was an abandoned place where there was no possibility of the presence of public at large as is apparent from the statement of Ch. Hameed-ud-Din Draftsman (P.W.2) and the site plan that too in a cold winter night in the midst of February, 2008, as such, by no stretch of imagination the act of the assailants can be termed as act of terrorism; that in view of the supplementary statements of the complainant and the other prosecution witnesses the consistent stand of the complainant is that the occurrence was outcome of suspected accused including the petitioner and others; that in view of the law laid down in Basharat Ali v. Special Judge, Anti- Terrorism Court-II, Gujranwala (PLD 2004 Lahore 199) it is prerequisite to bring an act within the ambit of section 7 of the Anti-Terrorism Act, 1997 that the same had created sense of fear or insecurity in public or in any section of the public or community or any sect but if the occurrence was simply the result of private enmity/personal vendetta then the provisions of section 7 of the Act ibid would not be attracted. The said view was upheld by the Apex Court in the case of Bashir Ahmad v. Muhammad Siddique and others (PLD 2009 Supreme Court 11) and that in the instant case as per on case of the complainant as enumerated in the supplementary statement he had stressed much on the enmity of his deceased brother with Abdul Rashid Bhatti, as such, from the said supplementary statement the case in hand appears to be that of enmity and personal vendetta, as such the learned trial Court has committed an illegality while passing the impugned order' while holding that the case in hand falls within the domain of terrorism under section 6 of the Anti-Terrorism Act, 1997.
4. Learned Assistant Advocate-General for the State as well as the learned counsel for the complainant and the learned Deputy Prosecutor-General while opposing this constitutional petition contend that the brutality of the action of the accused in which four persons lost their lives and three were seriously injured clearly suggests that their acts as detailed in the F.I.R. In the shape of allegations certainly constitute terrorism falling within the ambit of section 6 of the Anti- Terrorism Act, 1997; that the occurrence in the instant case took place in Hamdard Chowk at the main road and the acts of the accused persons created panic, sense of fear and insecurity in the society; that brutality of the action of the respondents is very much visible from the fact that the police took into its possession 46 crimes empties from the place of occurrence and two vehicles were completely damaged and that the learned trial court has rightly passed the impugned order which warrants interference by this Court in its constitutional jurisdiction as the learned trial court has committed no illegality or material irregularity. Reliance is placed on State through Advocate- General, N.-W.F.P. Peshawar v. Muhammad Shafiq (PLD 2003 Supreme Court 224), Mirza Shaukat Baig and others v. Shahid Jamil and others (PLD 2005 Supreme Court 530), Muzamil and another v.
The State and another (2010 PCr.LJ 98), Fawad Rasool v. Special Judge, Anti-Terrorism Court No. 1, Gujranwala and 2 others (2010 PCr.LJ 23), Muhammad Imran alias Sawan v. Special Judge, Anti- Terrorism Court, Multan and another (2007 YLR 155) and Rana Shahbaz Riaz v. Special Judge, Anti- Terrorism Court, Faisalabad and 13 others (2009 PCr.LJ 346).
5. We have heard the learned counsel for the parties, perused the available record and also gone through the case law cited by both the sides. The question to be decided in this writ petition is that whether in view of the facts and circumstances of the present case, the acts of the accused persons do constitute an offence falling within the ambit of terrorism as envisaged under section 6 of the Anti-Terrorism Act 1997 or not. On this question of law there are two judgments of the apex Court, one relied upon by the learned counsel for the petitioner i.e. PLD 2009 SC 11 and the other relied upon by the learned counsel for the complainant, namely, PLD 2005 SC 530. The Hon'ble Supreme Court of Pakistan in the latter case held as under:-- "The language as employed in the section is unambiguous, plain and simple which hardly requires any scholarly interpretation and is capable enough to meet all kinds of terrorism. It is an exhaustive section and does not revolve around the word "designed to" as used in section 6(1)(b) of the Act or mens rea but the key word, in our opinion is "action" on the basis whereof it can be adjudged as to whether the alleged offence falls within the scope of section 6 of the Act or otherwise? The significance and the import of word "action" cannot be minimized and requires interpretation in a broader prospective which aspect of the matter has been ignored by the learned High Court and the scholarly interpretation as made in the judgment impugned has no nexus with the provisions as contained in section 6 of the Act, the ground realities, objects and reasons, the dictums laid down by this Court and is also not inconsonance with the well- entrenched principles of interpretation of criminal statutes."
It was further held in the said judgment as under:- "After having gone through the entire law as enunciated by this Court in different cases the judicial consensus seems to be that striking of 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 effects on the society or a group of persons and the evidence which has come on record. In so far as the factum of intention is concerned that cannot be evaluated without examining the entire evidence which aspect of the matter squarely falls within the jurisdictional domain of the Court constituted under the Act and such questions cannot be decided by invocation of Constitutional jurisdiction without scrutinizing all the circumstances in a broader prospect by keeping in view the ground realities in mind. 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. What was the real intention of the offender could only be adjudged on the basis of evidence which cannot be determined by invocation of constitutional jurisdiction and learned Special Judge who is usually a Senior Sessions Judge can take care of the matter which can be transferred by him if it does not fall within his jurisdictional domain. There is no denying the fact that it was never the intention of legislature that every offender irrespective of the nature of the offence and its overall impact on the society or a section of society must be tried by the Anti-Terrorist Court but the question as to whether such trial shall be conducted or not initially falls within the jurisdictional domain of Anti- Terrorism Court which cannot be interfered with in the absence of sufficient lawful justification which appears to be lacking in these cases. It is, however, obligatory for such Courts to watch carefully the nature of accusation and examine the entire record with diligent application of mind to determine as to whether the provisions as contained in the Act would prima facie be attracted or otherwise? Where such Courts are of the view after taking cognizance of the offence that the alleged offence does not fall prima facie under the provisions of the Act it must transfer the same to regular Court without loss of time."
The apex Court in the second judgment quoted above, namely, PLD 2009 Supreme Court 11 held as under:- "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 5, 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 Anti-Terrorism Court-II, Gujranwala (PLD 2004 Lah. 199), wherein it was held that fear or insecurity must not be a byproduct, 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 sect or create a sense of fear or insecurity in society."
In the said judgment it was further held as under:-- "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. "
"After having gone through the entire law as enunciated by this Court in different cases the judicial consensus seems to be that striking of 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."
In view of the law laid down by the apex Court in its latest judgment reported in Bashir Ahmad's case (PLD 2009 Supreme Court 11) it is crystal clear that the motive and object both make a path for guidance in order to determine whether the offence falls within the domain of Anti-Terrorism Act or not. Although the F.I.R. Does not reflect the names of the accused persons but the incident in the instant case was the result of enmity and personal vendetta as is apparent from the supplementary statement made by the complainant before the police wherein he categorically stated that there were business relations between Abdul Rashid Bhatti and others, and the deceased Asif Ashraf and a dispute arose in between them regarding sale of a plot as Abdul Rashid Bhatti and others got signatures of Asif Ashraf deceased on sale-deed on gun point whereafter Abdul Rashid Bhatti, Jamil Bhatti and their other accompanies forcibly occupied the offence, farm house and 20-kanals land belonging to the deceased and at that time they also threatened the deceased and also resorted to firing during which incident Abdul Rashid Bahtti was injured and a case was got registered by them against the deceased Asif Ashraf who was later on released on bail. All these facts narrated by the complainant in his supplementary statement clearly suggest that the incident in the present case took place due to previous enmity and personal vendetta. In such circumstances us held by the apex Court in PLD 2009 Supreme Court 11 the occurrence in the present case neither reflected any act of terrorism nor it was a sectarian matter, instead the murders in question were committed owing to previous enmity between the parties. Section 6 of the Anti-Terrorism Act, 1997 reflects two words, namely, "designed to" and "action" and from the interpretation of both these words one can draw an inference that whether the offence falls within the ambit of terrorism or not. The intention of the legislature is very much clear from the words "designed to" and "action" and both the words have great impact on each other in order to constitute an action as act of terrorism. From the meaning of simple word "action" it is very difficult to deduce that the action of a person was an act of terrorism without the word "designed to" which means object behind the action. If the brutality of the act of a person is declared terrorism then every murder case will full within the definition of terrorism as seen from any angle the murder is always committed in a brutal manner. Thus the definition of terrorism is incomplete without the word "designed to" which means the object, motive or purpose behind the act and not the consequential effect created by such act. In such circumstances by following the dictum laid down by the apex Court in the case of Bashir Ahmad (PLD 2009 Supreme Court 11) we are of the considered view that the incident in the present case cannot in any manner be declared falling within the ambit of section 6 of the Anti-Terrorism Act, 1997, thus, the learned Judge Anti- Terrorism Court B No.II, Lahore has committed an illegality while passing the impugned order assuming the jurisdiction to try the offences. The case law cited by the learned counsel for the complainant in the case of Mirza Shaukat Baig (PLD 2005 Supreme Court 530) cannot be relied upon as the said view was changed by the apex Court in its latest judgment rendered in the year, 2009 which is binding on this Court under Article 189 of the Constitution of Islamic Republic of Pakistan being latest in field.
6. As far as the argument of the learned counsel for the complainant that the act of the assailants falls within the ambit of section 6 of the Anti-Terrorism Act, 1997 as the said assailants took the lives of three and injured three other innocent persons and there was no previous enmity or personal vendetta of those innocent persons C with the assailants is concerned, suffice it to observe that from the bare perusal of the F.I.R., it is crystal clear that the complainant stated in the F.I.R., that the assailants after identifying his brother Asif Ashraf made firing on his vehicle which shows the clear intention of the assailants to do away with only Asif Ashraf and not others but they could not be saved due to their accompanying with Asif Ashraf in the same vehicle.
7. Upshot of the above discussion is that we allow this writ petition, set aside the impugned order dated 13-7-2010 passed by the learned Judge Anti-Terrorism Court No.II, Lahore, accept the application under section 23 of the ATA, 1997 filed by the petitioner and transfer the titled case from the Court presently seized of the matter to the Court of ordinary jurisdiction i.e. The learned Sessions Judge, Lahore for trial in accordance with law.