' RIAZAT ALI SAHAR, J.--- Through instant petition, petitioners seek relief as under:-
(i) Quash the F.I.R. No.95 of 2012 and the proceedings before the Anti-Terrorism Court being without jurisdiction, unlawful, mala fide and void.
(ii) Grant such further or additional relief as this honourable Court may deem appropriate in the circumstances.
2. The relevant facts of the case as per F.I.R. No.95 of 20,12 are as under:- "The Complainant Samiullah Khan son of Muhammad Hazir Khan had lodged F.I.R. With Police Station Mochko bearing Crime No.95 of 2012 for offence punishable under sections 384, 386, 506-B, 511/34, P.P.C. Read with section 7 of Anti-Terrorism Act, 1997 alleging therein that one Rehan Mehtab is the owner of "Chawla Tex Tolia Factory" wherein some persons have managed one union in the name of "Labour Itihad Union", who have no relation with the labour of the factory and that has come into existence only in order to create hindrances for factory owners and taking "Bhatta".
According to the complainant on 26-1-2012, at 1530 hours he was available in the factory when Saif ur-Rehman alias Khaista, Muhammad Roam alias Shaukat, Khan Zareen, Umer Gul, Nizamuddin Afridi son of Owais Gul entered into the factory duly armed with deadly weapons and ousted the companions of complainant namely Habib-ur-Rehman son of Abdullah, Chanzeb and Abdul Mannan and told them to inform the owner of the factory that if he wants to run the factory then to pay extortion money (Bhatta) of Rs.710,000 per month. According to the complainant he narrated such fact to the owner. He further complained that on 1-2-2012 at 1400 hours accused Naik Muhammad alias Baacha Wali, Irshad, Azam, Akhtar Ali, Sanaullah, Muhammad Amin and Abdul Hameed entered into the office and told that their group demanded Bhatta on 26-1-2012, but still the same has not been paid to them. The complainant replied that they are not in a position to pay Bhatta and in case of continuation of such threats they will close or shift their factory. Again on 2- 2-2012, at 1530 hours, the above said accused persons came there and got the factory closed, ousted the complainant from the factory and, locked it from outside. `According to the complainant the accused also issued threats that in case of non-payment of Bhatta the factories would not be opened. The complainant further stated that being a businessman they did not make report at police station and approached the respectable for obtaining help and to resolve the matter. Again after three days of reopening of the factories on 14-3-2012 at 1500 hours said accused persons duly armed with deadly weapons forcibly entered into the factory and issued same threats of murder and to set the factory at fire. According to the complainant that still the factories are closed, consignments are available inside the factory and they are under the heavy burden of loss, hence the F.I.R."
3. It is, inter alia, contended by the learned counsel for the petitioner that the F.I.R. Is false one.
Petitioners/accused persons are the members of Labour Union namely All Ittehad Power Looms Mazdoor Union" and they have been falsely implicated in the F.I.R. Due to grudge in between the Labour Union and owner of mills. He contended that the question of sense of fear of insecurity in society does not arise from the perusal of prosecution story, therefore, the offence does not fall within the ambit of section 6 of Anti-Terrorism Act, 1997. He contended that even otherwise the case can be transferred from the ATA Court to any ordinary Court on the basis of old enmity between the parties. Learned counsel drew our attention towards letter dated 18-2-2012 issued by Deputy Director (Labour) reflecting Petitioner Muhammad 'Amin as a General Secretary, which further reflects that accused Muhammad Amin along with some other office-bearers have been allowed registration by the Registrar of Trade Union, Sindh, Karachi vide Registration No.626 dated 19-2-2012. He further referred to letter dated 13-3-2012 (Page 27 of Court file) issued by accused Muhammad Amin being General Secretary "All Ittehad Power Looms Mazdoor Union" to Director (Labour), Government of Sindh showing the complaint against Mill owners of (1) Al-Karam Textile Noman No.1, (2) Al-Karam Textile Noman No.2, (3) Al-Karam Textile Industry No.2, (4) Al-Karam Textile Noman No.3, (5) Al-Karam Textile Rafia No.5 Towel Industry, (6) Al-Karam Textile Chawla No.6. He also drew our attention to page 45 of Court file i.e. a letter written by Assistant Director, Labour to the Occupier/Manager Messrs Al-Karam Towel Industries Nomarl, No.2 for redressing the grievances of office bearers of "All Ittehad Power Looms Mazdoor Union". Learned counsel for the petitioner lastly contended that this correspondence shows the enmity between the parties and he pray for relief as prayed. In support of his contention counsel for the petitioner has placed reliance upon 2007 SCM R 142 and PLD 2007 SC 571 Para-5.
4. Learned Deputy Prosecutor-General for the State recorded his objection on the point that extortion (Bhatta) even at the stage of demand comes within the ambit of section 6 of Anti- terrorism Act, 1997, the matter was rightly and properly investigated and challan was submitted before trial Court, therefore, the petition is not maintainable.
5. Investigating Officer of the case present in the Court has pointed out that the case has been properly investigated and statements under section 164 Cr.P.C. Have been recorded during course of investigation, which support the prosecution version and after conducting entire investigation the final report under section 173, Cr.P.C. Has been submitted before the trial Court.
6. We have considered the submissions of learned counsel for the petitioners, learned Deputy Prosecutor General, Investigating Officer and minutely examined the record. The record shows that matter has been investigated whereby statements of Prosecution Witnesses under section 161, Cr.P.C. Have been recorded by the Investigating Officer, who have fully corroborated the version of F.I.R. Statements under section 164 Cr.P.C. Of P. Ws. Namely Ahsan-ul-Haq, Chanzeb, Muhammad Iqbal and Habib-ur-Rehrnan have also been recorded by the learned Magistrate whereby all the P.
Ws. Fully supported the main allegation regarding demand of Bhatta and in case of nonpayment what consequences would be affected. F.I.R. Reflects that the petitioners/accused persons duly armed with weapons came and entered into the factory premises and demanded extortion money for several times. Not only this, they locked the factory by ousting the workers including complainant, which links the definition of subsection (1) and 1(a)(b) with subsection (2) and 2(k) of section 6 of Anti-Terrorism Act, 1997. The act allegedly committed by the Petitioners/accused clearly created sense of fear or insecurity in society as the law itself recognizes that sue:. Act creates sense of insecurity and fear in the society, therefore, it does not require any deliberation. As to the dispute or enmity projected by the learned counsel through letter dated 13-3-2012, suffice it to observe that such correspondence is between the petitioners/ accused persons and some other textile mills i.e. Al-Karam Textile Mills and has nothing to do, with the factory of complainant i.e. "Chawla Tex Tolia Factory", Itehad Town, Karachi, unless established through evidence.
7. It has been held by our own High Court in the case of State v. Azeem Shakir alias Tara (2003 PCr.LJ, 762) as under:-- "---Offence of charging "Bhatta" as defined in S.6(d) of the said Act was punishable under S.7(iii) and a perusal of those provisions together with Items Nos.(1) and (4) of the schedule of offences appended to the said Act would show that the attempt of charging "Bhatta" was a scheduled offence triable by the Anti-Terrorism Court---"
8. Para No.5 of the case of Fazal Dad v. Ghulam Muhammad Malik (PLD 2007 SC 571) referred to by the petitioners' counsel, is reproduced hereunder:-- "5. In case the aforesaid provisions and contents of F.I.R. Are put in a juxta position then section 6 of the said Ordinance is not attracted. It is a settled law that preamble is always key to interpret the statute. The very object to promulgate the 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 trial to bring the 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 offences covered by its relevant provisions such as section 6. It is settled law that provisions of law must be read as a whole in order to determine its true nature, import and scope as law laid down by this Court in Mian Muhammad Nawaz Sharif's case PLD 1993 SC 473. It is abundantly clear that in case the provisions of act be read as a whole with the offence which creates a sense of fear or insecurity in society, causes of death or endangers a person's life commits an act of vehicle snatching or lifting, damage to or disturbance of, State or private property failing to create panic charging bhatta or criminal trespasser (Illegal qabza). As mentioned above, the ingredients of aforementioned offences have no nexus while reading the aforesaid provisions along with the contents of the impugned F.I.R. It is pertinent to mention here that nothing, was on record to show that occurrence created terror, panic or sense of insecurity among people by securing possession of the land in question by the respondent."
9. The facts and circumstances of the above case are distinguishable to the present case, as the above case reflects the offence punishable under sections 435, 447 and 427, P.P.C. And challan was submitted before the learned Magistrate, who returned the same to the S.H.O. For submission before the Special Court established under Anti-Terrorism Act, 1997 with the observation that in the light of sections 7-A and 7-B of the Act, the offence allegedly committed by the accused could be defined as civil commotion and therefore was triable by special Court vide order dated 30-10-1999 and Investigating Officer thereafter submitted challan before Special Tribunal/Judge Special Court, Islamabad Capital Territory. In the aforesaid case the Respondent being aggrieved filed an application before the Special Court for transfer of the case to the ordinary Court which was dismissed vide order dated 7-2-2000, thereafter, respondent filed Constitution Petition No.296 of 2000 in the Lahore High Court Rawalpindi Bench which was accepted by the learned High Court vide impugned judgment dated 21-2-2000. Petitioner/appellant Fazal Dad being aggrieved filed Constitutional Petition No.865 of 2000 before Lahore High Court, which was fixed on 14-2-2001 and leave was granted vide order dated 14-2-2001 out of which the appeal arose. But in the present case, firstly the I.O. Has opined that the case has properly been investigated and comes within the ambit of section 6/7 of ATA, secondly the present case is of extortion of money, which is a scheduled offence.
10. Similarly the facts and circumstances in the case of Mohabbat Ali reported in 2007 SCM R 142 referred to by the counsel for the petitioners are also distinguishable to the present case. In the said case it has been observed that alleged offence has taken place due to previous enmity and private vendetta, but in the present case the petitioners have failed to establish previous enmity or private vendetta at all and even if there is any enmity it is to be established through evidence. In this regard our own High Court in the case of Nooruddin v. ,Nazeer Ahmed reported in 2011 PCr.LJ, 1370 has held that the case cannot be transferred on the basis of previous enmity as the same was not the sole criterion to. Decide such point and that was upheld by the honourable Supreme Court of Pakistan in the case of Nazeer Ahmed v. Nooruddin reported in 2012 SCM R 517. Para-3 of the above judgment is reproduced hereunder:- "3. We have heard the learned Advocate Supreme Court and have perused the record. The learned High Court has examined the material at length and has rightly concluded that the act of the petitioners created sense of insecurity amongst the villagers and did destabilize the public .At large and, therefore, attracts the provisions of section 6 of the Anti-Terrorism Act. The learned Advocate Supreme Court in support of his contentions has relied upon the judgments reported in the case of Mohabat Ali v. The State, reported in 2007 SCM R 142 and the case of Bashir Ahmed v. Muhammad Siddiq, reported in PLD 2009 SC 11, which are distinguishable on facts. Neither the motive nor intent for commission of the offence is relevant for the purpose of conferring jurisdiction on the Anti- Terrorism Court. It is the act which is designed to create sense of insecurity and or to destabilize the public at large, which attract the provisions of section 6 of the AT Act, which in the case in hand was designed to create sense of insecurity amongst the co-villagers."
11. The important aspect of the case is that the petitioners have not moved any application under section 23 of the Anti-Terrorism Act, 1997 for transfer of the case from the Special Court to any ordinary Court or any application under section 249-A or 265-K, Cr.P.C. Instead of that they directly approached this Court for quashment of proceedings. In all cases cited above there were transfer applications moved by the aggrieved parties and on the basis of order passed thereon they have exhausted their remedies before the High Court and honourable Supreme Court respectively.
' In the Habibullah's case reported in 2005 SCM R 951, the honourable Supreme Court has held as under:- "(c) Not obligatory for High Court to issue writ in each case irrespective of facts and circumstances, which could call for exercise of judicial restraint in turning down such request in view of the conduct of petitioner besides considering that adequate remedy in the form of private complaint was available to him."
13. Similarly, in the present case the petitioners had opportunity to file interlocutory applications before the trial Court as stated above, but they have not done so.
14. For the foregoing reasons we had dismissed this petition by our short order dated 13-9-2012.
15. The observations made hereinabove will not prejudice the case of either party at the time of trial.