' Amir Hani Muslim, J.--This Petition for leave to Appeal is directed against the judgment dated 16.08.2010, passed by the Lahore High Court, Lahore, whereby the Writ Petition filed by the Respondent No, 2 was allowed and the order dated 13.07.2010 passed by the Judge, Anti-Terrorism Court No, -II, Lahore, dismissing the Application of the Respondent No, 2 under Section 23 of the Anti-Terrorism Act, 1997 (hereinafter referred to as the Act), was set aside.
2. Facts for the purpose of the present proceedings are that. Kashif Ali, the Petitioner, on 17.02.2008, lodged F.I.R. No, 148/2008, which was registered under Sections 302/324/34, PPC read with Section 7 of the Act, at Police Station Township, Lahore, stating therein that at 11:00 p.m his brother Asif Ashraf, who was a contesting candidate of Provincial Assembly, was present in his central election office near Bright Grammar School Township, Lahore. His Brother Asif Ashraf, along with his four companions, boarded his Land Cruiser from the said venue followed by the complainant along with his four companions in his Toyota Parado and they left towards Hamdard Chowk. When they reached near the water tank, five armed persons emerged out of the hedge from the left side, and after identifying his brother Asif Ashraf started targeted firing which caused injuries to all the persons present in the Land Cruiser. When the vehicle of the Complainant reached nearby, the accused also made indiscriminate targeted firing on, them from left side where after the assailants made good their escape towards the water tank while firing. Except the Complainant, the persons in the Parado car, namely Waked @ Ijaz, Janbaz, Ashraf and Javaid were injured whereas in the Land Cruiser, Asif Ashraf and his companions namely Atif Sharif, Khadim Hussain, Safdar and Kashif Yousaf suffered injuries. Asif Ashraf and Waked @ Ijaz succumbed to the injuries on their way to Hospital.
3. The Complainant, on 22.03.2008, made a supplementary statement wherein he stated that Rashid Bhatti and other political rivals had got his brother murdered because of an ongoing property dispute between them and Rashid Bhatti. In this regard, Asif Ashraf had also been threatened by Rashid Bhatti. The Respondent No, 2 was also implicated by the Complainant through the supplementary statement. After completion of the investigation, a report under Section 173, Cr.P.C. Was submitted by the Investigating Officer before the Anti-Terrorism Court-II Lahore. After the examination of some of the Prosecution Witnesses, the Respondent, No, 2 made an Application under Section 23 of the Act before the Anti-Terrorism Court-II, Lahore, seeking the transfer of the case to the Court of ordinary criminal jurisdiction, which application was dismissed. The Respondent No, 2 challenged the order of dismissal of the Application through a Writ Petition before the Lahore High Court, Lahore, which was allowed, on the principles laid down in the judgments of Bashir Ahmed vs. Muhammad Siddique and others (PLD 2009 SC 11) and Basharat Ali vs. Special Judge, Anti-Terrorism Court-H, Gujranwala (PLD 2004 Lahore 199). Hence this Petition for leave to Appeal.
4. Sardar Muhammad Aslam, learned ASC, while appearing on behalf of the Petitioner has submitted that the challan in the instant case was filed before the Anti-Terrorism Court. The Application filed by the accused before the Anti-Terrorism Court under Section 23 of the Anti-Terrorism Act which was dismissed on 13.07.2010. Thereafter, the Writ Petition filed by the accused was allowed by the Division Bench of the Lahore High Court, Lahore, relying on the judgment of Bashir Ahmed vs. Muhammad Siddique and others (PLD 2009 SC 11) and Basharat Ali vs. Special Judge, Anti- Terrorism Court-H Gujranwala (PLD 2004 Lahore 199). The trial Court, while dismissing the Application for transfer of the case to the ordinary Court of criminal jurisdiction under Section 23 of the Act, had referred and relied upon the judgment of this Court passed on 24.09.2009 in the case of Ghulam Rasool vs. Special Judge two others (Civil Petition No, 1865-L/2008), which was not even referred to by the learned Division Bench of the Lahore High Court, Lahore. Even otherwise, the reliance placed on. The above cited two judgments was not proper as one of the judgments, Bashir Ahmed (supra), was a leave refusing order and the other judgment i,e, Basharat Ali (supra), was overruled by this Court through the judgment dated 08.02.2005, Mirza Shaukat Baig and others vs. Shahid Jamil and others (PLD 2005 SC 530). Therefore; the impugned judgment was per incurring, as the law on the subject had not been considered in its true perspective as it existed at that time. Referring to the dbntents of the FIR in the instant case, he further submitted that the place of occurrence was a public place and the act of the accused-Respondents was designed to create fear and terror in the general public, resulting in the death of four persons and injuries to five.
5. The learned Counsel for the Petitioners further contended that the occurrence took place at 11.00 pm, the night between the 17th & 18th of February, 2008. The 18th of February, 2008, was the polling day and one of the deceased namely Asif Ashraf was contesting elections for the seat of a Member of the Provincial Assembly. He submitted that the commission of offence by the accused-Respondents was planned to convey a message to the voters of the locality by terrorizing them. In this backdrop, the facts and circumstances of this case attract the ingredients of Section 6 of the Act.
Therefore, the impugned judgment could not be sustained in these circumstances.
6. On the other hand, Mr. Aitzaz Ahsan, learned Sr. ASC, appearing on behalf of the Private Respondent No, 2 namely Tariq Hakim has contended that the 'design to create terror' is different from the 'design to kill' and the that matters involving personal enmity do not fall within the contemplation of Section 6 of the Act. In this regard, he placed reliance on the case of Mehram Ali vs Federation of Pakistan (PLD 1998 SC 1445). He submits that Section 6 of the Act was amended on 27.04.1999 and in its present forth, the cases of personal vendetta do not fall within the ambit of this Section.
The very object of the amendment and the insertion of word 'design' in Section 6 was to draw a line between the cases of terrorism and the cases of personal vendetta In this behalf he has referred to the supplementary statement of the Complainant dated 22.03.2008, purportedly recorded after more than a month of the occurrence, in which he has admitted that there was property dispute between the accused and the deceased. He contended that in this background, the provisions of Section 6 of the Act could not be attracted to the case in hand.
7. He next contended that Section 6 (1) (b) of the Act quite clearly stipulates that the creation of a sense of fear or insecurity in the society must be the 'design' behind the action, which factor is missing in the case in hand, as the place of occurrence was an abandoned place and presence of general public had been clearly ruled out. He submits that this indisputably demonstrates that the motive was not to create a sense of fear or insecurity in the society and the public at large. He states that in such circumstances, the case could not be tried by the Anti-Terrorism Court. To substantiate his arguments, he has relied upon the case of Basharat Ali (supra) and Muhammad Mumtaz Qadri vs. The State (PLD 2016 SC 17).
8. He, in support of his arguments, has also relied upon the cases of Ahmed Jan vs. Nasrullah (2012 SCMR 59), Bashir Ahmed (supra), Tariq Mehmood vs. The State (2008 SCMR 1631), Fazal Dad vs Col (Retd) Ghulam Muhammad Malik (PLD 2007 SC 571) and Mohabbat Ali vs. The State (2007 SCMR 142) and emphasized that the term "design" is directly relocatable to the effect of the action.
9. He next contended that the legislature has deliberately used the term 'design' and not 'intent', therefore, effect must be given to the term "design" to make the Act more efficient.
10. We have heard the learned Counsel for the parties as well as the learned Law Officer and have perused the record with their assistance. The issue raised in these proceedings relates to the interpretation of Section 6 of the Act containing the term 'design' inserted through a subsequent amendment. It would be advantageous to reproduce Section 6 of the Act:- "6. Terrorism.--(1) In this Act, "terrorism " means the use or threat of action where:--
(a) the action falls within the meaning of sub-section (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 a foreign government or population or an international organization or create a sense of fear or insecurity in society; or (c)........................................................................................................................................................................................................................................................................................................................................................... ....................................................................
(2) An "action" shall fall within the meaning of sub-section (1), if it:--
(a) involves the doing of any thing that causes death;
(b) involves grievous damage to property including government premises, official installations, schools, hospitals, offices or any other public or private property including . Damaging property by ransacking, looting or arson or by any other means; (d)........................................................................................................................................................................................................................................................................................................................................................... .............................................
11. The term "design" has been defined, in the Words and Phrases, Permanent Edition - Vol. 12 as under:- "Act is done "designedly" when done by design, on purpose, intentionally; "design" is plan or scheme conceived in mind and intended for subsequent execution, preliminary conception of idea to be carried into effect by action, contrivance in accordance with pre-conceived plan; and "to design" is to form plan or scheme of conceive and arrange in mind, originate mentally, plan out, contrive."
12. The term "design" now used in Section 6 of the Act has widened the scope of the Act and the terms "intention" and "motive" previously used have been substituted with the sole object that if the act is designed to create a sense of fear or insecurity in society, then the Anti-Terrorism Court will have the jurisdiction. From the above definition of the term "design" it is clear that it means a plan or scheme conceived in mind and intended for subsequent execution. In order to determine whether an offence falls within the ambit of Section 6 of the Act, it would be essential to have a glance over the allegations levelled in the F.I.R, the material collected by the investigating agency and the surrounding circumstances, depicting the commission of offence. Whether a particular act is an act of terrorism or not, the motivation, object,. Design or purpose behind the said Act has to be seen. The term "design", which has given a wider scope to the jurisdiction of the Anti-terrorism Courts excludes the intent or motive of the accused. In other words, the motive and intent have lost their relevance in a case under Section 6(2) of the Act. What is essential to attract the mischief of this Section is the object for which the act is designed.
13. It is clear from the F.I.R. That the accused persons conceived a plan in their mind prior to the occurrence to disrupt the electoral process by eliminating the deceased and his companions, and subsequently executed it. It has not been mentioned in the F.I.R that the accused party obstructed or waylaid the deceased, but they chased them in order to execute a plan conceived in their minds. It was a pre-planned scheme and to execute the same, the accused party chased the vehicles of the deceased and when they reached near the vehicles of the deceased, they had opened fire due to which four persons lost their lives and several others sustained firearm injuries. It was not only confined to this but in fact the target, killing was aimed to give a message to the voters and supporters of the deceased, the effect of which was to create a sense of fear or insecurity in the voters and general public, as provided in Section 6 of the Act. The reliance placed by the learned Counsel for the Respondent No, 2 on the supplementary statement of the Complainant cannot improve the case of the accused persons.
14. The contention of the learned Counsel for Respondent No, 2 that the incident was a result of personal enmity would not exclude the case of the accused-Respondents from the mischief of Section 6(2) of the Act. The manner in which the incident had taken place and the time of occurrence should be taken note of, the effect of which was to strike terror in the supporters/voters and general public, therefore, the offence squarely falls within the contemplation of Section 6 (ibid). The other contention of the learned Counsel for the Respondent No, 2 that the incident had taken place at an abandoned place and there was no passerby at that time, is contrary to the contents of the F.I.R. As the place of occurrence was a public place and supporters and voters were around with their cars. Furthermore, the contents of the F.I.R. Reflect that the crowd present during the occurrence started fleeing from the place due to the terror created by indiscriminate firing.
15. The supplementary statement recorded after more than a month has no legal value and inadmissible in evidence and cannot be used to contradict the contents of the F.I.R. The Anti-Terrorism Court while passing the impugned order dated 13.07.2010, which was reversed by the High Court, has taken note of the events and correctly concluded that it has the jurisdiction. This Courts in the cases of Syed Saeed Muhammad Shah vs. The State (1993 SCMR 550), Amir Zaman. Vs. Mehboob and others (1998 SCMR 685). Zulflqar Hussain vs. The State (2011 SCMR 379), Abid Ali vs. The State (2011 SCMR 161) and Tahir Abbas vs. The State (2003 SCMR 426), has held that supplementary statement recorded subsequently to the F.I.R can be viewed as improvements made to the witness's statement, therefore, even if the supplementary statement of the Complainant is discarded, then too, the contents of the F.I.R in the case in hand clearly establishes that the case is friable by the Anti-Terrorism Court, as it attracts the mischief of Section 6 of the Act.
16. The contention of the Counsel for the Respondents that the parties have personal enmity is also insignificant, as the personal enmity between the deceased and the Respondent No, 2 could have been settled on any day and it is intriguing as to why the Respondents chose that particular night before the dawn of the day of elections to settle his score with a popular running candidate in the elections by eliminating him from this world. To say that the mere reason that a motive of personal rivalry existed in this particular case does not rule out the fact that anyone could have foreseen the impact of such an act on the supporters of the deceased candidate. It is important to notice that according to the F.I.R, cars and people present at the back started fleeing from the area of incident in fear. More importantly, the sudden murder of the deceased, on the night before the Election day, not just with a single bullet but with indiscriminate firing on him and his companions was something that had to be all over the news and media channels for weeks to come. The disturbed mental condition of voters, who were taken aback to know on the day of the polling that their chosen candidate was no longer alive, was a foreseeable and inevitable impact of the Respondents' action. It was not a sudden reaction to a provocation that resulted in the deceased's murder but a premeditated act, where Respondents found out the precise location of the deceased on the very busy night before the Election Day, and got him murdered. It was no doubt, a message to the general public conveying the lethal consequences of any opposition to the murderers.
17. The judgment relied upon by the learned High Court in the case of Basharat Ali vs. Special Judge, Anti-Terrorism Court-II, Gujranwala (PLD 2004 Lahore 199) was overruled by this Court in the case of Mirza Shaukat Baig and others vs. Shahid Jamil and others (PLD 2005 SC 530), which is the correct law. It was held by this Court in the case of Mirza Shoukat Baig (supra) that there could be no second opinion that where the action of an accused results in striking terror, or creating fear, panic sensation, helplessness and sense of insecurity among the people in a particular vicinity it amounts to terror and such an action squarely falls within the ambit of Section 6 of the Act and shall be tried by a Special Court constituted for such a purpose. Moreover, in State through Advocate General vs. Muhammad Shafiq (PLD 2003 SC 224) it was held by this Court that the Courts are only required to see whether the terrorist act was such that it would have the tendency to create sense of fear or insecurity in the minds of the people or any section of the society, as well as the psychological impact created on the minds of the society. Whereas a strictly narrow interpretation of the term "design" in Section 6 of the Act is undoubtedly one where a premeditated plan to create terror is the object behind the said act, we cannot simply rule out from the ambit of Section 6 an individuals action which is implemented in a setting where a creation of feeling of fear in the society was an inevitable consequence of the said act.
18. Before parting with this .Judgment, we would like to observe that this Court cannot lay down any hard and fast rules while interpreting Section 6 of the Act in order to conclude as to which of the cases is friable by the Anti-Terrorism Court, as in many criminal cases, facts of the case are also one of the factors in determining the jurisdiction of a criminal Court. However, we have attempted to generalize the principles which need to be applied by the Courts while deciding the jurisdiction of an Anti-Terrorism Court. We expect that from now inwards, the Anti-terrorism Courts as well as the High Courts would apply the principles set forth herein above and expedite the issue of jurisdiction of the Anti-Terrorism Courts which stands streamlined herein above or otherwise to avoid any delay in proceedings. The observations made in these proceedings pertaining to the accused in the case, who are facing trial before the concerned Anti-Terrorism Court, are tentative in nature, and shall not come in the way of either party at trial.
19. For the aforesaid reasons, we, by our short order, has converted this Petition into Appeal and allowed the same, which reads as under: "Heard the arguments. For the reasons to be recorded separately this petition is converted into appeal and allowed; the impugned judgment dated 16.08.2010 in Writ Petition No, 16742/2010, passed by learned Division Bench of the Lahore High Court is set aside; and, the criminal case arising out of FIR No, 148/2009, P.S Township, Lahore, dated 18.02.2008 is transferred to the concerned Anti-terrorism Court for further proceedings in accordance with law. Since this criminal case pertains to the year 2008, the Anti-terrorism Court is further directed to expedite and ensure its disposal within shortest time."