1. SAJJAD ALI SHAH, J.---Through instant Criminal Revision Application, the applicants/accused have called in question order dated 3rd October, 2013 passed by Anti-Terrorism Court, Hyderabad on their application under section 23 of Anti-Terrorism Act, 1997, whereby the learned Judge was pleased to reject their request for transferring the case to the Court of Session, Hyderabad.
2. Briefly, the sister of applicant/accused Javed Iqbal Shaikh, namely, Raheela on 30-6-2012 against the wishes and willingness of her parents entered into marital ties with one Zulfiqar Ali Sahito. The applicant/accused Javed Iqbal who by profession is an advocate on the same day managed F.I.R.
3. No,106/2012 at Police Station Halani District Naushehro Feroze under sections 365-B, 364, 451, 395, 114, 506, 504, P.P.C. Inter alia complaining the abduction of his sister by the said Zulfiqar Ali Sahito and others. In order to seek protection and quashment of said F.I.R., Mst. Raheela along with her spouse Zulfiqar Ali Sahito approached this Court by filing C.P. No,D-1234 of 2012. The petition was fixed for orders in Court on 2-7-2012 and it is alleged that before the said petition could be taken up for orders, the relatives of Mst. Raheela viz. Bagh Ali, Ashfaque Ahmed, Abdul Sattar and Siraj tried to harass and assault the newly wedded couple, but somehow the other they managed to enter the court room and a Bench of this Court after hearing them passed the following orders:--- "Petitioners are present in Court. Petitioner No,1 states that due to harassment at the hands of her father, brother and other relatives, she left house of her parents and married petitioner No,2 out of own free will. She further states that she has not been abducted by any one and a deliberately false F.I.R. Has been registered by her brother, respondent No,
5. Let notice be issued to the respondents as well as Additional A.-G for 10-7-2013. In the meanwhile, no further steps pursuant to F.I.R. No,106/2012 of Police Station Halani shall be taken and if the petitioners need protection, it shall be provided to them in accordance with law.
4. At the request of learned counsel, the Additional Advocate-General is directed to provide protection for conveying them to the residence of the petitioners.
5. Sd/- Judge Sd/- Judge"
6. On 10-7-2012 and 25-7-2012 for one or the other reason the case could not be taken up for hearing and ultimately it was fixed on 1-8-2012 before a Division Bench of this Court at Serial No,25. The record reflects that on that date when the newly wedded couple entered the Court premises they found Abdul Sattar, Bagh Ali, Ashfaq and Siraj in Court verandah along with accused Javed Iqbal, brother of deceased Mst. Raheela and co-accused Sodagar. At 11-30 a.m. When the honourable Judges were about to re-assemble after tea break and everyone stood up to pay respect, the applicant/accused Javed Iqbal took out a pistol and made straight fire at deceased Mst. Raheela, which hit her and she fell down. The applicant/accused Javed Iqbal also tried to shoot Zulfiqar Ali Shaikh, but the pistol did not work and he was caught by the Court police, Mst. Raheela was taken to hospital but she succumbed to the firearm injury. It appears that Zulfiqar Ali Sahito lodged an F.I.R. Bearing No,144/2012 at Police Station Cantonment Hyderabad under sections 302, 324, 34, P.P.C.
7. Read with sections 6/7, A.T.A., 1997. Pistol recovered from the possession of accused Javed Iqbal since was without license, therefore, another F.I.R. Bearing No,143/2012 under section 13-D, Arms Ordinance was lodged. Yet another F.I.R. No,147/2012 was also registered against the accused persons under sections 354, 353, P.P.C. Read with sections 6/7, A.T.A., 1997 on the complaint of the High Court, Circuit Bench at Hyderabad. A final investigation report was submitted by ATC which took the cognizance.
8. In this backdrop an application under section 23 of the Act, 1997 was moved before the Anti- Terrorism Court, which was dismissed through the impugned order leading to filing of the instant Criminal Revision Application.
9. Mr. Abdul Sattar Kazi, learned counsel appearing for the applicant, contended that the alleged murder was the result of an enmity and the act of the applicant was never designed to create terror or a sense of fear or insecurity in the minds of the general public disturbing the tempo of life or the tranquility of the society, therefore, the-crime was triable by the Court of Session. It was further contended that the murder was witnessed by hardly few people as it was committed in the Court room without any intention to create terror, therefore, the provisions of Act, 1997 are inapplicable. It was alternately contended that Zulfiqar Ali Shaikh husband of deceased Raheela Shaikh has entered into a compromise with the family of the accused; who are none other than the brother and parents of deceased Raheela, therefore, by consent matter may be transferred to the Court of Sessions and the parties be allowed to settle the matter in accordance with law. Mr. Ghulam Murtaza, learned counsel for the complainant, supports the contentions of Mr. Abdul Sattar Kazi and contended that the complainant has no objection to the transfer of case to the Court of Session, as the parties have entered into a settlement. On the other hand, Mr. Hidayatullah Abbasi, learned Amicus Curiae while placing reliance on the judgment of the Apex Court in the case of Nazeer Ahmed v. Noorullah (2012 SCMR 517) contended that neither the motive nor intent for commission of the offence is relevant for the purpose of conferring jurisdiction on the Anti-Terrorism Court, as it is the act which if designed to create sense of insecurity and or to destabilize the public at large, attracts the provisions of section 6 of the Act, 1997. Learned Amicus Curiae while citing the judgment of the Apex Court in the case of Ziaullah v.
10. Special Judge (2002 SCMR 1225) contended that if an act is committed in such a wanton, reckless and brutal manner that it causes fear, panic and wave of sensation then notwithstanding the enmity the act would squarely fall within the jurisdiction of Special Court. Likewise, Syed Madad Ali Shah, learned Amicus Curiae, contended that the facts of the case would reveal that the applicant before this Court who by profession is an Advocate, has committed murder of her sister in. The Court room on account of her freewill marriage treating it as "siakari" and, therefore, such act as held in the case of Gul Muhammad v. The State (PLD 2012 Balochistan 22) squarely falls within the ambits of Anti-Terrorism Act, 1997. Counsel further placed reliance on the case of Muhammad Akram Khan v. The State (PLD 2001 SC 96) wherein the apex Court while rejecting a plea of sudden provocation dismissed an appeal against confirmation of death sentence and held that neither the law nor the religion permitted the so-called honour killing which amounted to Qatl-i-amd.
11. Learned Amicus Curiae further contended that even if a murder is committed on account of enmity and even behind the closed door, but in such a wanton, reckless and brutal manner still the gravity and fear and sense of insecurity created by such an incident attracts the provisions of section 6 of the Anti-Terrorism Act, 1997 and in support of his contention reliance was placed on the order of this Court in the case of Nooruddin v. Nazeer Ahmed and 4 others (2011 PCr.LJ 1370).
12. Counsel further while placing reliance on the judgment of the apex Court in the case of Muhammad Mushtaq v. Muhammad Ashiq and others (PLD 2002 SC 841) contended that physical harm to a victim is not the sole criterion to determine the question of terrorism, what is to be seen is the psychological effect produced by the violent action or with the potential of producing such an effect on the society as a whole or a section thereof. Syed Madad Ali Shah further to support his contention referred the case of State v. Muhammad Shafiq (PLD 2003 SC 224).
13. To repel the contention of Mr. Abdul Sattar Kazi that the murder was hardly noticed, as it was witnessed by hardly few people in the Court room. Mr. Madad Ali Shah placing reliance on the judgment of the apex Court in the case of Mst. Najam-un-Nisa v. Judge, Special Court constituted under Anti-Terrorism Act, 1997 (2003 SCMR 1323) contended that a crime of the kind committed even in a remote corner does not remain unnoticed in the area in which it is committed or even in the country on account of print and electronic media. Mr. Madad Ali Shah, learned Arnicus Curiae, further contended that in the case of Shehzad Asif Raza v. Special Judge Anti-Terrorism Court and others (2012 PCr.LJ 1735) the victim after attending Court's proceedings were fired upon and suffered injuries on the leg, but the apex Court observed that though the incident had taken place outside the Court premises, but it was witnessed by numerous persons including advocates, their clerks, litigants and Court staff including Presiding Officer, therefore, upheld the jurisdiction of the Anti-Terrorism Court by holding that such an act of barbarism is liable to be dealt with iron hands.
14. Per counsel, on the other hand the incident in question had taken place in the Court premises, therefore, this case cannot be tried by any other Court except the Anti-Terrorism Court.
15. In order to respond the contention of Mr. Abdul Sattar Kazi, Syed Madad Ali Shah while placing reliance on the judgment of the Apex Court in the case of Peer Sabir Ali Shah v. Shah Muhammad Khan (PLD 1995 SC 66) and of this Court in the case of Moulvi Noor Muhammad v. The State (2000 PCr.LJ 1583) contended that the question of jurisdiction being very important and fundamental in the nature, if a forum had no jurisdiction, same could not be conferred upon it by the consent of the parties. Per counsel, since the incident squarely falls within the parameters of section 6 of the Act, 1997, therefore, the Court of Session has no jurisdiction whatsoever and the consent of the parties cannot confer such jurisdiction. In order to meet the contention regarding compromise, Syed Madad Ali Shah while placing reliance on the judgment of the Apex Court in the case of Muhammad Akhtar alias Hussain v. The State (PLD 2007 SC 447) contended that only those offences which are found mentioned in section 345(1), Cr.P.C. Could be compounded and the offence under section 7 of the Act, 1997, which is punishable to death, does not find mention therein, therefore, could not be compounded.
16. On the other hand, Mr. Aijaz Shaikh, learned Amicus Curiae, contended that cold blooded murder was committed by the applicant/accused in the Court premises, which was widely published, therefore, the trial Court has rightly declined transfer of case to the Court of Session.
17. Mr. Khadim Hussain Shaikh, learned Amicus Curiae, while referring to the provisions of 3rd Schedule contended that the firing or use of explosion or any device including bomb blast in Court premises has been included in the Scheduled Offences by Act II of 2005, therefore, the instant case wherein the accused has committed the murder of his real sister by firing within the Court premises is exclusively triable by the Anti-Terrorism Court. Mr. Shaikh while placing reliance on the judgment of this Court in the case of Mirpurkhas Sugar Mills v. Federation of Pakistan (2013 MLD 433) contended that the jurisdiction can neither be conferred nor curtailed even by consent of the parties, therefore, this revision is liable to be dismissed.
18. Mr. M. Iqbal Kalhoro, learned APG, adopts the submissions made by the learned Amicus Curiae and also seeks dismissal of the instant revision.
19. We have heard the learned counsel for the respective parties, perused the records minutely and examined the case laws cited at bar.
20. As to the first proposition regarding compounding of a scheduled offence, it is an admitted position that the applicant is charged inter alia with an offence under sections 6 and 7 of the Anti- Terrorism Act, 1997, which does not find place in any of the columns of the table appended to the provisions of section 345, Cr.P.C. Detailing the compoundable offences. The research of the case- law reflects that the apex Court in the case of Noor Muhammad v. The State (1992 SCMR 2079) while making a distinction between an offence against individual and the State has held that an offence under the Arms Ordinance was a public offence under Ta'zir and therefore not compoundable under toe law." In the year 1993 the apex Court in the case of Ghulam Shabbir v.
21. The State (2003 SCMR 663) had allowed the parties to compromise in a case where the accused were convicted under sections 302, 324, 337(ii), 148, 149, P.P.C. Read with sections 6, 7 and 8 of the Anti-Terrorism Act, 1997, but without dilating as to whether an offence under sections 6, 7 and 8 of the Act 1997 which do not find place in any of the columns appended to The provision of section 345, Cr.P.C. Were compoundable or not. Thereafter, in the case of Muhammad Rawab v. The State (2004 SCMR 1770) a compromise was placed before the apex Court and during scrutiny of the compromise the apex Court noticed that the offence under section 365-A, P.P.C. Read with section 7(e) of the Act, 1997 is not compoundable and consequently granted leave to consider the question as to whether the Court can permit the parties to compound the offences, which are not mentioned in section 345, Cr.P.C. The Apex Court after hearing the parties at length held that "The Legislature has laid down in this section the test for determining the classes of offences which concern individuals only as distinguished from interests of cannot go beyond that test and substitute for it one of their own. It is against public policy to compound a non-compoundable offence, keeping in view the state of facts existing on the date of application to compound. No offences shall be compounded except where the provisions of section 345, Cr. P. C. Are satisfied as to all matters mentioned in the section". (emphasis supplied)
22. There after in the case of Shahzad alias Shado and 3 others v. Judge Anti-Terrorism Court, Faisalabad and 3 others (2005 SCMR 1162) the apex Court while rejecting a compromise in a case where the accused were convicted under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 7 of the Anti-Terrorism Act 1997 held as follows:-- "7. ......................................................................................................................
23. The offence in the instant case was registered on 7-11-1999 on which date, offence under section 10(4) of the Ordinance was included in the Schedule of the offences falling within the ambit of the Act, thus was rightly tried by Anti-Terrorism Court and sentenced to death under the above mentioned provision of law and section 7 of the Act. Offence under section 10(4) of the Ordinance and section 7 of the Act are offences against society, it was because of that object that the legislature made these offences non-compoundable. The offence under section 10(4) of the Ordinance called as "Gang Rape" being a heinous offence was knowingly included in the Schedule of the Act, it being an offence against society creates terror and fear of insecurity in the society and public at large, disturbing normal tempo of life and tranquility of society. Culminative fall of the occurrence is to be seen which, if examined in the light of fact of the present case, the provision of section 7 of the Act are fully attracted." (emphasis supplied)
24. There after, in the case of M. Ashraf Matti and others v. M. Aasam Butt and others (PLD 2006 SC 182) where the parties had entered into a compromise after the accused were convicted under sections 302(b), 148, 149, P.P.C. Read with section 7 of the. Anti-Terrorism Act, 1997 and were sentenced to death. The Apex Court while scrutinizing the compromise held in the following terms:- - "7. In view of the facts that parties have compromised the matter and compensation has already been received by the complainants therefore, permission is accorded to compound the offence under section 345(2), Cr.P.C. Now we would advert to examine whether in the cases like one in hand where brutal murder of two young boys has been committed when they were confined in judicial lock-up, in a shocking manner which has outraged the public conscience, the convicts are liable for punishment on the principle of Fasad-fil-Arz. The facts of the case and material available on record reveal that petitioners/convicts have committed crime in a brutal manner of the deceased who were confined in lock-up. Therefore, considering them sitting ducks, they took the law their bands, without caring that police stations or Court premises are considered such places where law protects the life of citizens. Therefore, in exercise of jurisdiction under section 311, P.P.C. The sentence of death of the two convicts namely Naheeb Butt alias Bhutto and Moazzam Butt is reduced from death to life imprisonment under section 302, P.P.C. And under section 7(b) of A.T.A. On both the counts. Similarly sentences awarded to Muhammad Aasam and Shahbaz alias Dodi for imprisonment of life under section 307(b), P.P.C. Is reduced to 14 years and sentence awarded to them for life imprisonment under section 7(b) of A.T.A. Is kept intact on both the counts with benefit of section 382-B of Cr.P.C., which has already been extended to them by the Lahore High Court. Remaining sentences awarded to them are kept intact. All the sentences shall run concurrent." (emphasis supplied)
25. Similarly in 2007 the Supreme Court in the case of Muhammad Akhtar alias Hussain (supra) upheld the order of the trial Court where the trial Court in a case where the legal heirs of the victim and /he accused placed a compromise before the Anti-Terrorism Court compounding a charge under section 302(b), P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997 and the trial Court while allowing the compromise to the extent of charge under section 302(b), P.P.C. Acquitted the accused but rejected the compromise to the extent of charge under section 7 of the Anti-Terrorism Act, 1997. The accused filed an appeal before the High Court which maintained the order of the trial Court and ultimately the matter came up before the Apex Court. It was pleaded that conviction and sentence under section 7 of the Anti-Terrorism Act, 1997 was the outcome of the main charge under section 302, P.P.C. From which the accused stands acquitted, therefore, he was entitled to be acquitted from the charge under section 7 of the Anti-Terrorism Act, 1997. The apex Court while repelling the contention and relying on its judgment in the case of Muhammad Rawab held that the findings of the Court below by not granting permission to compound the offence under section 7 of the Anti-Terrorism Act, 1997 are in accordance with law and particularly in view of the bar as contained in subsection (7) of section 345, Cr.P.C. We find no illegality in the order impugned herein, which does not deserve any interference.
26. The scheme of law in respect of compounding of offences as detailed in section 345, Cr.P.C. Would reflect that the law has permitted compounding of specified offences, which are committed against individual by differentiating those offences which have reference to the interest of the State or against society as a whole by placing an embargo by way of subsection (7) which lays down that "no offence shall be compoundable except as provided by section 345, Cr.P.C.". Even compounding of offence by the complainant or his legal heirs does not mean that the offenders who are potential threats to the society cannot be punished. Perusal of section 345, Cr.P.C. In juxtaposition with section 311, P.P.C. Would reflect that even in those cases where the offender is charged with compoundable, offence and a valid compromise has been placed before the Court, despite the Court by applying principle of Fasad-fil-Arz could convict the offender wider section 311, P.P.C. And punish him to death or imprisonment for life or imprisonment for a term which may extend up to fourteen years as Tazir. It is also to be kept in mind that where an offender is charged with various offences, some of which are compoundable and some are not, the Court can only accept settlement in compoundable cases and not in cases which do not find place in the schedule annexed to section 345, Cr.P.C. Reference can be made to the case of Hikmatullah and others v. The State [2007 SCMR 610] where the, offender was charged with the offence under sections 302(b), 392, 394, P.P.C. And the parties had compounded the offence and had placed a compromise before the apex Court. The apex Court, keeping in view the circumstances of the case and nature of the offence committed and the number of persons killed held, "We cannot be oblivious of the fact that it seriously attracts the principles of Fasad-fil-Arz as the offenders are most likely to be a potential danger to the community. We are, therefore, constrained to observe that the present two cases are fit cases where this Court should pass an order under section 371, P.P.C." The apex Court consequently while maintaining the sentence under section 392, P.P.C. By holding it to the non-compoundable after accepting the compromise set aside death sentence under section 302(b), P.P.C. But, within contemplation of section 311, P.P.C. Sentenced the offenders to imprisonment for life along with fine imposed by the Federal Shariat Court.
27. Coming to the facts of the instant case where transfer of the instant case from Anti-Terrorism Court to the Court of Session is sought on the ground that the parties have entered into a compromise allowing such a prayer would literally mean converting a non-compoundable offence into a compoundable offence which is a total novel concept and not recognized by the law. The law has clearly limited the cases which could be compromised/compounded and does not provide any scope for converting a non-compoundable offence into a compoundable merely because the parties have entered into a compromise. This would not only frustrate the provisions of section 345, Cr.P.C. But would make all offences as compoundable which of course would be against the public policy and beyond the competence of this Court and therefore, cannot be allowed.
28. Likewise the submission of Mr. Kazi for transferring this matter to the Court of Session at the joint request of the complainant and the accused, in our opinion is fallacious and devoid of merits. We are of the view that neither jurisdiction can be conferred on a Court which has no jurisdiction to adjudicate an issue nor a Court can be deprived of its jurisdiction for the convenience or at the request of the parties. Mr. Shah has rightly referred to the case of Pir Sabir Ali Shah (supra) where the jurisdiction of the Election Commissioner was called in question by the respondents and the petitioner pleaded that since the respondents have contested the reference before the Election Commissioner without objection to its jurisdiction, therefore, it is not open for them now to turn around and says that the forum of Election commissioner for determination of reference was not competent. The apex Court while rejecting this contention held that "question of jurisdiction being very important and fundamental in nature, if a forum had no jurisdiction, the same cannot be conferred upon it by consent of parties and question of jurisdiction is to be considered by the Court even though not raised by the parties."
29. In order to appreciate the second contentions regarding transfer of case to the Court of Session on the ground that the provisions of Anti-Terrorism Act, 1997 are inapplicable in the circumstances of the case. In order to properly appreciate the contention it would be beneficial to reproduce the contents of the F.I.R. Of the incident:-- "Complaint is that on 30th June, 2012, I contracted marriage in Court at Hyderabad with Mst. Rahila daughter of Muhammad Iqbal aged about 22/23 years. Her brother Javed Iqbal and others threatened us for murder. They also lodged an F.I.R. At P.S. Halani. Thereafter we filed a constitution petition before honourable High Court at Hyderabad for protection against Javed Iqbal, Bagh Ali, Nawab Ali Mushtaque Ahmed and Ashfaque Ahmed. On 2-7-2012 we came at honourable High Court at Hyderabad for such petition and sitting in the corridor of Court building, when uncle of Rahila came there and asked the Rahila to come with them but she refused. On her refusal, Bagh All covered her face with piece of cloth (Roma!) and pull her. Ashfaque, Abdul Sattar and Siraj caught him and torn his cloths. We made hue and cry which attracted Police, who apprehended all of them. Rahila narrated the facts to Police, who recorded her statement and provide shelter to reach their home. On 10-7-2012 petition was fixed but board of the Court discharged. On 1-8-2012 I along with Rahila and relatives namely Wall Muhammad, Muhammad Moosa, Shah Nawaz and Asghar Ali came to High Court at Hyderabad, they saw Abdul Sattar, Bagh Ali, Siraj and Ashfaque standing in corridor, brother of Rahila Advocate Javed Iqbal along with Sodagar was also present there. Their petition was fixed at serial No, 25, at about 11-00 a.m. It was break time of Court when Rahila was sitting in row of ladies and I was sitting in other row. Advocate Javed Iqbal was walking there. When at about 11-30 a.m. Break time was completed and honourable Judges were coming to the Court room all persons stand up, suddenly at about 11-30 a.m. Javed Iqbal son of Muhammad Iqbal pointed his pistol to Rahila and made straight fire upon her, and she fell down due to fire arm injury, thereafter Javed Iqbal tried to fire upon me but failed. Police apprehended him and recovered the pistol. Police also apprehended Sodagar. His relatives Shahnawaz and Asghar All have taken Rahila and rushed towards Hospital but Rahila died on the way. Therefore I lodged present case against accused Javed Iqbal, Sodagar, Abdul Sattar, Bagh Ali, Siraj and Ashfaque for commission of murder of my wife namely Rahila and I requested for investigation."
30. Perusal of the F.I.R. Reflects that the applicant has committed murder of her real sister with firearm inside the Court room when it was about to assemble after tea break and notwithstanding the submissions of the learned counsel for the respective parties item No,4(iii) of the third Schedule annexed to Act 1997 which details scheduled offence describe firing or use to explosive by any device including bomb blast in the Court room as a scheduled offence and exclusively tried by Anti-Terrorism Court constituted under the Act, 1997. Beside mere enmity between the parties or the offence being committed in a deserted place, as pleaded by Mr. Abdul Sattar Kazi, in our opinion are not the criteria or ground to oust an offence from the ambit of Anti-Terrorism Act, 1997.
31. In fact the Court has to adjudge as to whether the terrorist act is such which would have the tendency of creating sense of fear and insecurity in the minds of people or any section of the society or not. The psychological impact created by such act in the minds of the people is to be gauged. In the case of State v. Muhammad Shafiq referred to by Mr. Madad Ali Shah, learned Amicus Curiae, the defence in order to oust the jurisdiction of Anti-Terrorism Court pleaded that the occurrence had taken place at a deserted place arid out of personal enmity which factum has got no nexus with the objectives mentioned in sections 6 and 7 of the Act, 1997. The Apex Court after considering the contentions held as follows:-- "A reading of the above provision of the Act demonstrates that it is not necessary that the ,commission of murder must have created panic and terror among the people, The Courts have only to see whether the terrorist act was such which would have the tendency to create sense of fear or insecurity in the minds of the people or any section of the society. We have to see the psychological impact created upon the minds of the people. It is' also not necessary that the said act must have taken place within the view of general public so as to bring it within the encompass of the Act. Even an act having taken place in a barbaric and gruesome manner, if it had created fear and insecurity, would certainly come within the purview of the Act.
32. In the case in hand the alleged murder was committed by the respondent by sprinkling petrol on the person of the deceased and also fired at him with his kalashnikov. The body of the deceased was completely charred according to the doctor. Even the bones of his both hands and fore-arms were burnt. The death, according to him, had occurred apart from the fire-arm injury due to intense pain and difficulty in breathing in view of burning of large area of his body. The moment such a charred dead body was brought for its funeral rites within the area of the deceased's residence, it would have certainly caused shock, fear and insecurity among the people of the vicinity. The body was completely charred and the onlookers must have felt fear and insecurity on seeing the barbaric and callous manner in which the human body was mutilated."
33. Even in the case of Muhammad Mushtaq v. Muhammad Ashiq and others (PLD 2002 SC 841) where the Lahore High Court taking into consideration enmity between the parties had declared a terrorist act as an offence triable by the Court of Session, in appeal. The Apex Court white setting aside the order of the Lahore High Court held as follows:-- "The Lahore High Court fell in error by taking into consideration only the element of the alleged enmity existing between the parties. The High Court failed to advert to the terrorizing effect of the occurrence created on the minds of the people at large and of the concerned locality and passer-by who had no means to ascertain the background or motive for the crime or the enmity of the parties inter se."
34. Similarly, in the case of Nazeer Ahmed and others v. Nooruddin and another (2012 SCMR 517) though the assailants on account of enmity had raided the shop of the complainant party and the complainant party looking at their intention locked themselves into the shop but the assailants by breaking the roof with the help of hoe/spade killed three persons by making heavy firing, a Bench of this Court while allowing Criminal Misc. Application by setting aside the order of Anti-Terrorism Court Mirpurkhas which has returned the challan for presenting it before the Court of Session directed the Investigating Officer to present the challan before the Anti-Terrorism Court Mirpurkhas forthwith. The order was impugned before the Apex Court by pleading that admittedly there was an enmity between the parties and there was no intent of the petitioners to create a sense of insecurity and or to destabilize the public at large, in order to attract the ingredients of section 6 of the Anti-Terrorism Act. The Apex Court while rejecting the arguments held that "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 A.T., Act, which in the case in hand was designed to create sense of insecurity amongst the co-villagers".
35. Likewise, in the case of Mst. Raheela Nasreen v. The State (2002 SCMR 90), Major Sajjad Naseer, a serving officer in Pakistan Army, allegedly killed in his bed room by the petitioner, her wife, in connivance with his Batman, the challan was submitted in the Court of Session which was questioned before the Lahore High Court and a Divisional Bench of the Lahore High Court came to the conclusion that the offence allegedly committed by the petitioner fell within the ambit of section 6 of the Act which defines terrorist act, therefore, the same was triable exclusively by the Anti-Terrorism Court established under the Act 1997. The order of the Lahore High Court was challenged before the Apex Court by pleading that none of the members of the Army officer made any statement that this alleged act of the petitioner had created either feeling of insecurity or was likely to spread terror. The Apex Court while rejecting the argument and upholding the order of the Lahore High Court held as under:-- "The learned Judges of the high Court came to the conclusion that a Batman who was a trusted person of an army officer if he kills as alleged his master in -connivance with his (master's) wife, the same was likely to strike terror or feeling of insecurity among the army officers which reasoning in our view are based on relevant consideration having logical nexus with the relevant law and do not suffer from any legal infirmity."
36. Additionally, there is another angle of considering this proposition as the accused has killed his sister on account of her freewill marriage and as rightly argued by Mr. Imdad Ali Shah, learned Amicus Curiae by treating such freewill marriage "Siyahkari". The reason persuading us to accept the contention is that in case the applicant did not like/approve the act of her sister getting married without the blessing of her parents and other family members then at the most he could have shown his displeasure by discontinuing relationship with her but to kill her on account of freewill marriage of course reflects that the applicant/accused thought such act as immoral and Siyahkari and therefore, had taken the extreme action to save his so-called "ghairat" by killing her own sister. Such act of the applicant/accused squarely falls within the ambit of section 6(2)(g) of the Anti-Terrorism Act, 1997 which provides that an action which involves taking the law in own hands award of any punishment by an organization, individual or group whatsoever, not recognized by the law, with a view to coerce, intimidate or terrorize public, individuals, groups, communities, government officials and institutions, including law enforcement agencies beyond the purview of the law of the land, would fall within the definition of terrorism. We have no doubt in our mind that act of the applicant/accused killing his sister in a most safest place i,e, Court room where justice is dispensed and people have confidence to be treated in accordance with law reflect that he had the motive of not only satisfying his ego and brutal instinct but had the intention to terrorize public generally or a particular segment of society who for one reason or the other intend to marry people of their choice without the blessing of their parents/family members. We may not be misunderstood of approving such marriage as they have their own repercussion and suffering but at the same time would reiterate that killing on such count either termed as karo-kari, Siyahkari or ghairat killing is triable by Anti-Terrorism Court.
37. A Division Bench of Balochistan High Court in the case of Gul Muhammad v. The State (PLD 2012 Balochistan 22) while considering similar proposition has held as follows:- "In view of section 6(2) (g) substitution by Ordinance XXI of. 2009, re-enacted Ordinance 1 of 2010 dated 1-2-2010 as well as above discussion, we are of the view that in case of an unjustified murder by a person, who, on account of his immorality or to satisfy his brutal instinct, takes the law in his own hands, is responsible for creating sensation and panic in the Society, thus, the offences committed on the pretext of siyahkari after 1-2-7010 squarely fall within the domain of Anti-Terrorism Act, 1997 and all the cases pending before the ordinary Courts stand transfer to the Anti-Terrorism Courts."
38. These are the reasons for our short order dated 18-9-2013 whereby we while dismissing the instant Criminal Revision Application directed the trial Court to expeditiously proceed with the matter and to conclude the trial within a shortest possible time by taking up this matter on day to day basis and to submit weekly report to this Court through Additional Registrar.
39. Before parting with this opinion we would like to record our appreciations for the valuable assistance rendered by the learned Amicus Curiae by sharing their experience and knowledge of law enabling us to record this opinion.