1. ' F.I.R. No,4 of 2003 was recorded at Police Station Kamber on 7-1-2003 at 0900 hours for an incident alleged to have taken place at 11-45 p.m. Of the previous day. Complainant stated that after putting lock to the outer door they had gone to sleep. At about 11-45 p.m. They saw three unidentified persons with open faces carrying Klashnikovs. The trespassers overpowered the complainant party and demanded keys of safe and Almirah. They were resisted by father and brother of the complainant and all the three assailants fired-at father and brother of the complainant. In the meanwhile two other culprits who were standing out side and were armed with guns came in. The complainant party cried murder. Such cries and fire reports attracted the villagers and seeing them, the culprits fled away. Father was found to have expired and brother seriously injured was shifted to Larkana and after leaving him there the complainant came to the Police Station to lodge report.
2. ' The case was challaned before the Anti-Terrorism Court. An application under section 23, Cr,P.C.
3. Was submitted for transfer of the case to the ordinary Sessions Cburt. This application was dismissed by the Anti-Terrorism Court vide order dated 6-8-2003. Such order was challenged in this Court and Criminal Revision Application No,51 of 2003 was disposed of on 17-4-2007 with direction to the trial Court to examine the complainant and eye-witnesses within three months and thereafter to hear the learned counsel for the parties on the point of jurisdiction and then to proceed further. After evidence of the complainant,. P.W.2 and P.W.3 was recorded, application under section 23, Cr.P.C. Was heard and it was again. Dismissed vide order dated 6-10-2011 which order has been challenged in the present proceedings.
4. ' Learned counsel for the applicant submitted that incident occurred during odd hours of night inside a home -and no terroristic motive is alleged or established. He submitted that there is no previous acquaintance between the complainant and the accused persons. He referred to the evidence of PW-2 where in cross examination before the Judicial Magistrate he had stated that accused created harassm ent while firing in the vicinity. However he was confronted with the record and he conceded that no such statement was made. Learned counsel submitted that no material has been collected by police that any person in the community was terrorized or damage to any public property was caused.
5. ' Mr. Nizamuddin Balouch learned counsel for the complainant/ respondent No,2 submitted that the main accused had escaped from the Central Prison and is a hardened and dangerous criminal. He submitted that co-accused had been granted bail and after having been granted bail, he jumped bail. Learned counsel submitted that in case of terrorism, it is action which is material and not intention of person taking that action. Learned counsel relied upon the case of Shaukat Baig v.
6. Shahid Jamil PLD 2005 Supreme Court 530. Learned counsel also submitted that the residents of locality have been scared and members of complainant party reside in the Saudi Arabia and now they are seriously terrorized. While exercising right of reply Mr. Ghauri submitted that no such material has been collected so far.
7. We have considered the submissions made by the learned counsel and have also gone through the record. In Shaukat Baig's case (supra), the honourable Supreme Court authoritatively laid down that in order to ,classify as terror "action" is to be seen and not the intention of person taking action.
8. In the present case the allegation in the F.I.R. Is that three persons trespassed into house in the middle of the night. Their ostensible intention was to steal. However. When they were resisted it led to firing and when the witnesses came they escaped. The facts are very simple when the witnesses came in there is no allegation that they fired A in the air or at the villagers who had come to the rescue of the complainant party so as to terrorize them or terrorize the community. There is no previous acquaintance between the complainant and the accused persons. Therefore it is a simple case of intended theft where one thing led to other and two persons got murdered. Learned Court below has observed that accused persons committed brutal murder and this has created panic and insecurity in the mind of people of the vicinity. ' No part of material or evidence before it has been referred to in this regard.
9. ' Section 6 (1) of the Anti-Terrorism Act 1997 defines terrorism essentially in the following terms :
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 of 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 of threat is made for the purpose of advancing a religious sectarian or ethnic cause, (or intimidating and terrorizing the public, social sectors business community and preparing or attacking the civilians, Government officials. Installations security forces or law enforcement agencies).
10. A reading of above indicates that firstly act must, in order to fall within definition of terrorism, be one of the items specified subsection (2) of section 6. Since death has been caused there cannot he any doubt that requirements of section 6 subsection (2) is met. However clause (a) of subsection (1) ends with the word "and". Word "and is used in conjunctive sense and therefore besides the ingredients of clause (a) of subsection (1) either the ingredients of sub-clause (b) of clause (c)-must be present. Clause (b) is when act is designed to cause or intimidate the government or the public or section of public or community or creates sense of fear or insecurity in the society. No such evidence is brought forth. Clause (c) in any case is not attracted. Since no such evidence has been brought forth and most importantly the incident is that the culprits came in the house with intention to steal and it was resisted by the family 'members which caused one thing leading to another and death was caused. Therefore no element of terrorism is there.
11. Contention of Mr. Balouch that the accused is an escapee from prison or is a hardened and dangerous criminal is of no relevance. For the purpose of deciding application under section 23 what is relevant is the "action" and not antecedents of the accused .
12. Result of above discussion is that this Criminal Revision Application is allowed order dated October 10, 2007 is set aside and application under section 23 of the Anti-Terrorism Act, 1997 filed by the present applicants is allowed. Learned Judge. Anti-Terrorism Court is directed to transfer the case to the Court of Sessions Judge, Kamber Shandadkot who may either himself proceed with the case or may transfer it to any of the Additional Sessions Judge within the district D competent to try the offence.