The petitioner Mohsin Ashraf, Advocate who is the complainant of case F.I.R. No. 848/2011 under Sections 302/324/148/149/34/109, PPC and Section 7, ATA registered at Police Station, Nawankot, Lahore has assailed the legality of order dated 3.11.2011 passed by the learned Special Judge Anti- Terrorism Court No. I, Lahore whereby an application made by respondents Nos. 2 and 3 under Section 23 of the Anti-Terrorism Act, 1997 for transfer of the afore-mentioned case to the Court of.
Ordinary jurisdiction was accepted.
2. Faisal Mehmood and Muhammad Faruq, who were facing trial before the learned Judge Anti- Terrorism Court, Lahore-I in the case referred above made a petition for the transfer of this case to the Court of ordinary jurisdiction on the ground that the occurrence of this case was on outcome of the previous enmity.
3. Learned counsel for the petitioner has contended that the occurrence had taken place in the Bazar wherein even an unknown passerby was also injured, panic was created in the Bazar and the shopkeepers had to close their shops and the passerby saved their lives by lying on the road but the learned Trial Court had not looked into this aspect of the case and had dismissed the application arbitrarily. Relies on "PLD 2004 SC 917", PLD 2005 Karachi 344", "2010 P.Cr.L.J. 23 Lahore", 2009 YLR 886" and "PLD 2003 SC 224".
4. We have heard the learned counsel for the petitioner and have also gone through the available record annexed with the petition.
5. Allegedly, on 26.6.2011 at about 8:40 p.m. Accused Muhammad Faruq armed with kalashnikov and Faisal armed with rifle 222 alongwith three unknown accused while armed with fire-arm attacked upon the complainant party when Malik Muhammad Ashraf father, Muhammad Azhar alias Ajji brother, Amina sister of the complainant alongwith Muhammad Hussain ali as Aasi were sitting in the street, made indiscriminate firing as a result of which Malik Muhammad Ashraf, Malik Muhammad Azhar and Muhammad Hussain alias Aasi were murdered whereas a passerby lady and one Amna Ashraf were injured.
6. The motive behind this occurrence as mentioned in the F.I.R, is that one Naveed, brother of accused Faruq and Faisal and cousin; of accused Ali Adnan, alongwith his co-accused had murdered the younger brother of the complainant namely Babar wherein four of the accused persons had been convicted and their appeals are pending before the High Court and the accused had been compelling the father of the complainant for compromise.
7. The very object to promulgate Anti-Terrorism Act, 1997 was. To control the acts of terrorism, sectarian violence and other heinous offences as defined in Section 6 of the Act and their speedy trials. To bring an offence within the ambit of the Act, it is essential to examine that the said offence should have nexus with the object of the Act and the offences covered by its Sections 6, 7 and 8. On bare perusal of sub-clauses (b), (d), (h) and (i) of sub-section (1) of Section 6 of the Act, it is abundantly clear that the offence which creates a sense of fear or insecurity in society, causes death or endangers a person's life, 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 worships, falls within its ambit. But in this case the occurrence has taken place in the street in front of house of the complainant and the motive behind the occurrence is admittedly the previous enmity, therefore, the facts of the present case are quite different from the case titled "Muhammad Faruq Vs. Ibrar and 5 others (PLD 2004 SC 917)." In the said case the occurrence had taken place in a mosque during Juma prayer where a large number of persons had assembled to offer prayer.
8. Similarly, in case titled "Khizar Hayat Vs. Judge Special Court Antiterrorism, Rawalpindi (1) (2009 YLR 886 [Lahore])" the occurrence had taken place a Adda Jalab where an accused who while armed with Kalashinkov came in truck, resorted firing on the complainant party resulting in murder of two persons and causing injuries to six other persons.
9. In a case titled "Amir Khan Vs. The State (PLD 2005 Karachi 344)", the firing was made to sabotage the transparent process of the bye- election and to spread terrorism or fear in the people, so the facts and circumstances of the present case are quite different from the facts of the present case.
10. The case-law relied upon by the Learned counsel for the petitioner is not directly applicable to the facts and circumstances of the present case, In order to ascertain as to whether an offence will fail within the ambit of Section 6 of the Anti-Terrorism Act, 1997 or not, it would be imperative to go through the allegations made in the F.I.R, 'and to examine that the ingredients of the alleged offence have got any nexus with the object of the case as contemplated under Sections 6, 7 and 8 thereof. Whether a particular at is an at of terrorism or not, the motivation, object, design or purpose behind said at is to be seen. It is also to be seen as to whether the said at has created a sense of fear and insecurity in the public or any section of the public or community or in any sect.
11. Examining the case in hand, it is manifest on the face of it that the alleged offence took place because of the previous enmity and private vendetta. The occurrence had taken place in the street in front of the house of the complainant where all the three deceased persons. Were sitting on chairs and it is admitted in the F.I.R, itself that motive behind the occurrence is the enmity inter se between the parties on account of the murder of one Babar, the younger brother of the complainant and the accused were pressurizing the complainant and his father Malik Muhammad Ashraf and his uncle Muhammad Azhar alias Ajji for effecting compromise in the Said case.
12. The motive behind the occurrence is admittedly previous enmity, therefore, we are of the considered view that the application of Section 7 of the Anti-Terrorism Act, 1997 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 at of terrorism nor it was sectarian matter and in fact it was a murder committed due to previous enmity between the parties. Reliance can be safely placed on case titled "Bashir Ahmad Vs. Muhammad Siddique (PLD 2009 Supreme Court 11)".
13. The learned Trial Court has rightly accepted the application made under Section 23 of the Anti- Terrorism Act, 1997 and the impugned order is in accordance with law, the same is hereby maintained and the writ petition in hand stands dismissed in limine being without any merits.