' ABDUL RASOOL MEMON, J. Through instant application under sections 35 and 39, Cr.P.C. Read with section 23 of Anti-Terrorism Act, 1997, the applicant has prayed for setting aside the order dated 31- 7-2013 whereby the application of the present applicant Azhar Hussain Rizvi filed under section 23 of the Anti-Terrorism Act, 1997 for transfer of his case to the court of ordinary jurisdiction has been dismissed, by the Special Judge Anti-Terrorism Court No.II, Karachi.
2. The F.I.R. Of this case was registered by complainant. S.I. Raja Karamat of Police Station Gulbahar on 28-9-2012. The facts of the case are that on 26-9-2012 the Police Party headed by complainant while patrolling duty was present at Patrol Pump on main Road, Nawab Siddiq Ali, Khan, Nazimabad No.2, Karachi when at 1915 hours they saw an Ambulance carrying dead body of one Zahid Hussain with a mob consisting on 30/40 motorcycles while making firing was going towards Rizvia Imambargah, when mob reached in front of Shell Petrol Pump a Toyota Hi-ace was seen coming from Nazimabad flyover. The leaders of procession were namely Muhammad Ali alias Pida, Naeem Haider alias Bara and Muhammad alias Kala made firing which hit to Hi-ace and its driver, who sustained fire arms injuries and later on died in the hospital, his name was disclosed as Muhammad Ishaque S/o. Muhammad Qasim. After obtaining death certificate of deceased driver from hospital complainant on behalf of State lodged F.I.R. As relative of the deceased were reluctant to do so.
3. The main arguments of learned counsel for the applicant are that the sections 6 and 7 of Anti- Terrorism Act were not mentioned in the contents of the F.I.R. The name of the present applicant does not appear in the F.I.R. He has been taken by the Rangers from his house and implicated in this case falsely. He further contends that nothing is available on record to prima facie show that there was an element of creating any sense of fear or insecurity in the minds of general public. The learned trial court did not consider the facts of the case in its true perspective and has passed the impugned order in a mechanical manner. The learned counsel next contended that there was no evidence available on record to connect the accused person with the commission of an offence attracting the provision of Section 6 of the Anti-Terrorism Act, 1997.
4. Learned Additional Prosecutor General has opposed the instant Revision Application on the ground that the incident has taken place at a busy road and had put the general public travelling on the said road as well residents of the adjacent area under imminent danger to their lives and thereby created a sense of fear and insecurity and the learned Judge of Anti-Terrorism Court No.II Karachi had rightly dismissed the application of the applicant for transfer of the case to the court of ordinary jurisdiction.
5. Arguments heard and record perused.
6. In order to satisfy and determine whether the case is triable by the ATC or the ordinary court, it is essential to have a glance over the allegations made in the F.I.R. To evaluate if ingredients of offence have any nexus with the object of the case as contemplated under sections 6, 7 and 8 of ATA 1997. To Perceive the magnitude of instant controversy, it is significant to examine the definition of "Terrorism" which is defined under section 6 of ATA 1997 reads as under:--
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 or 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 or threat is made for the purpose of advancing a religious, sectarian or ethnic cause.
(2) An "action" shall fall within the meaning of subsection (1). If it;
(a) involves the doing of anything that causes death;
(b) involves grievous violence against a persons or grievous bodily injury or harm to a person;
(c) involves grievous damage to property;
(d) involves the doing of any thing that is likely to cause death or endangers a person's life;
(e) involves kidnapping for ransom, hostage-taking or hijacking;
(f) incites hatred and contempt on religious, sactarian or ethnic basis to stir up violence or cause internal disturbance;
(g) involves 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 place of worship;.
(i) creates a serious risk to safety of the 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 serous 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 of 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 subsection (1)(c) is satisfied.
(4) In this section "action" includes an act or a series of act.
(5) In this Act, terrorism includes any act done for the benefit of a proscribed organization.
(6) A person who commits an offence under this section or any other provision of this Act, shall be guilty of an act of terrorism.
(7) In this Act a "terrorist" means
(a) person who has committed an offence of terrorism under. This Act, and is or has been concerned in the commission preparation or instigation of acts of terrorism;
(b) a person who is or has been, whether before or after the coming into force of this Act, concerned in the commission, preparation or instigation of acts of terrorism, shall also be included in the meaning given in clause (a) above,
7. A simple look at the above provisions of law would reveal that it provides three definitions of "Terrorism", one is given in subsection (1), second in subsection (3) and third appears in subsection (5). A Division Bench of this court in a case of Amir Khan v. The State (PLD 2005 Karachi 344) after detailed examination of application of section 6 of ATA 1997 has held as under:- "10. It will be noticed that subsection (1)(a) covers the act of any person. Subsection (1)(b) deals with mens rea or intention whereas subsection (1)(c) deals with purpose or goal. Thus, subsection (1), postulates three conditions viz. Act, design and purpose.
11. For the offences mentioned in clauses (b) and (c) of the subsection (1) the design or intention is an essential ingredient for the commission of such offences. If no intention within the scope of the said causes is available then the such offences, will not be complete. Thus for offences falling under clause (b) or (c): not only the action within the meaning of subsection (2)(a) to (n) is essential but also the required intention within the meaning of the said clauses should be there, then only the offences will fall within the definition of terrorism otherwise".
8. In a case of Jehangir Akhtar Awan v. The State reported as (PLD 2000 Karachi 89) a Division Bench of this Court has held as under:-- "An act of terrorism is a preplanned and organized system of intimidation. Its requisites and attributes are that such act and its effects are made known to the people and widely circulated with exaggeration. It in neither hidden nor disguised. It means an act, which is committed with the sole object to terrorizes the people and to feel them insecure".
9. In view of above observation, it appears that intention has significant role in application of subsection (1). The intention is not only to be gathered from the overt acts and expression of the accused but also from the surrounding circumstances of the case. In this regard reliance is also placed on a case-law reported as PLD 1967 SC 78. In subsection (3) of section 6 of ATA, the use or threat of any action falling within the meaning of subsection (2) and in doing use of fire-arm has been made necessary, then it will become terrorism regardless of the fulfilment or satisfaction of circumstances or purpose mentioned in subsection (1)(c), but it should have nexus with the object of the Act 1997.
10. According to the third category of Terrorism as defined in subsection (5) of section 6 ATA, if any act is done for the benefit of prescribed organization within the meaning of section 11-B of the ibid Act then it will become the definition of Terrorism.
11. In the light of above legal position, we have examined the facts and circumstances of the case in hand wherein it is clear from the allegation mentioned in the F.I.R. That attendants of the dead body of one Zahid riding on 30/40 motorcycles after receiving it from Abbasi Shaheed Hospital were going to Rizvia Imambargah and reached in front of Shell Patrol Pump on main road Nawab Siddiq Ali Khan, in the meanwhile one Hi-ace seen coming from Nazimabad flyover, the leaders of said mob namely Muhammad Ali, Naeem Haider, Muhammad alias. Kala got agitated and started indiscriminate firing with their weapons, strong bullets hit Hi-ace, resultantly its driver sustained fire arm injuries who later on succumbed to his injuries and his name was disclosed in the Hospital as Muhammad Ishaque S/o Muhammad Qasim. This incident was witnessed by Police Party headed by S.I. Raja Karamat.
12. It is settled law that whenever any action is taken which creates fear and insecurity in any section of people, the offence would fall within the Ambit of case as contemplated under section 6 of ATA Act. Now we have to see that what was the object of the accused making such indiscriminating firing. It is clear in the F.I.R. That a mob of 30/40 motorcyclists including the accused while carrying dead body from Abbasi Shaheed Hospital to Rizvia Imambargah were indiscriminately firing throughout the way. There is nothing in F.1.R. That if they had fired in retaliation of firing from any side. If there was no firing on funeral procession then what was the reason of making firing on the way to the graveyard. To us this was only with the object of creating fear and insecurity in the people, which certainly would come within the definition of "terrorism".
13. In view of the above circumstances the Judge of Anti-Terrorism Court on the basis of material available with her was justified in coming to the conclusion that case of the present applicant comes within the meaning of section 6 of the Anti-Terrorism Act, 1997 and has rightly A dismissed the application of the applicant for sending his case to ordinary court, hence no ground is made out for setting aside the impugned order dated 31-7-2013. However, if on the basis of any material that may come on record through evidence of either prosecution or defence, if the court forms any opinion that offence is not scheduled offence and is triable by ordinary court dealing with criminal cases, it may transfer the case to such court in exercise of powers under section 23 ibid. With above observation the Revision Application stands dismissed.