ISHTIAQ IBRAHIM, J:-Through present Constitutional petition, the validity and legality of impugned order dated 10.7.2015, passed by learned Judge, Anti Terrorism Court Hazara Division Abbottabad, has been challenged by petitioner , whereby the case of accused/respondents No.3 to 6 was sent to the Court of ordinary jurisdiction(Court of Sessions) at Haripur .
2. As per substance of present petition, petitioner in connection of his election campaign while on way by double cabin vehicle No.4892/IDJ driven by Naik Muhammad followed by double Cabin vehicle No.B- 1190/Swabi occupied by his gunners namely Sajid Khan, Ilyas Khan, Abdul Qadeer, Shah Nawaz Khan, Choudry Munir Ahmad and Azam, were attacked by accused/respondents No.3 to 6 alongwith co-accused by firing as well as throwing handgrenades upon them, as a result of which all gunners of petitioner were killed whereas he and his driver Naik Muhammad sustained injuries in the said incident. Wherefore a case vide FIR No.276 dated 8.5.2015 was registered under Sections 302/324/109/148/149 PPC r/w 3/4 Exp: Sub: Act, 1908/ 6/7 Anti Terrorism Act, 1997, at P.S. Srai Saleh District Haripur.
3. After completion of investigation, complete challan against accused was submitted in the Anti Terrorism Court, Hazara Division, Abbottabad whereby accused were summoned for 10.7.2015. However, on the aforesaid date, the learned Judge, Anti Terrorism Court, emitted the case to the Court of learned Sessions Judge,Haripur vide order dated 10.7.2015, on the grounds that the occurrence was the result of personal enmity between the parties hence not falling within the jurisdiction of Anti Terrorism Court. Feeling aggrieved, Khan Javed Khan, petitioner has challenged the impugned order before this Court through WP No.2701-P/2015. However, in this intervening juncture, he was murdered, and his son namely Tahir Javed was made petitioner through CM No.1460-P/2016, vide order dated 29.8.2016.
4. Learned counsel for petitioner argued that the Anti Terrorism Court without framing of charge and recording evidence, just on the second date after submission of challan, transferred the case to the Court of Sessions in exercise of the powers conferred u/s 23 of Anti Terrorism Act, 1997. It was contended that six persons were murdered and two were injured in the incident which took place during the election campaign of the complainant and the act of accused/petitioner was designed to create fear and sense of insecurity amongst the public at large and more particularly the voters and supporters of the complainant. Post Mortem reports of the two deceased namely Choudry Munir and Azam showing that they have sustained 'blast injuries' which brings the case within the scope of Section 6 (ee) of the Anti Terrorism Act, 1997, punishable under Section 7(FF) of the Act ibid. He relied on the judgments of august apex Court cited in 2012 SCMR 517, PLD 2005 SC 530, PLD 2016 SC 17 and judgment of apex Court delivered on 15.2.2016 in C.A. No.187/2016 in case titled "Kashif Ali Vs A.T.C Court, Lahore & others."
5. On the other hand, learned counsel for respondents No.3 to 6 (accused in FIR) opposed the Writ Petition with tooth and nail by contending that the occurrence is on account of family feud whereas motive given in the FIR would clearly show that parties are tagged in blood feud since long; that the occurrence has got no nexus with terrorism and cases of personal vendetta do not fall within the jurisdiction of the Anti Terrorism Courts. Mere heinousness of offence will not make a case triable by Anti Terrorism Court. Besides, the occurrence has taken place at a deserted place, which is also a relevant factor for determining of the jurisdiction of the Anti Terrorism Court. It was lastly contended that the order of Anti Terrorism Court, Abbottabad is well reasoned and according to the provisions of Anti Terrorism Act. Learned counsel for respondents No.3 to 6 sought reliance on cases cited in 2007 SCMR 142 , PLD 2005, Pesh: 57 , 20-13 YLR 92, 2011 MLD 950 , PLD 2003 Lah 267 .
6. We have heard arguments of learned counsel for the parties, learned AAG for the State and gone through the record with their valuable assistance.
7. Preamble of the Anti-T errorism Act clearly manifests that this law was enacted for the prevention of terrorism, Sectarian violence and for speedy trials of heinous of fences.
Anti Terrorism Act was enacted and published in the Gazette of Pakistan on 20 August 1997 . In case titled , "Mehram Ali Vs Federation of Pakistan" (PLD 1998 SC 1445 ) which came before the august Apex Court, and Anti Terrorism Act was adjudged by the Hon'ble Supreme Court of Pakistan, inter-alia on the touchstone of Fundamental Rights and its repugnancy to the Constitution of Pakistan. Likewise, in case of "Sheikh Liaqat Hussain Vs Federation of Pakistan & others" (PLD 1999 SC 504)" though the creation of "Military Courts" was challenged but the august apex Court laid down certain guidelines to give more effectiveness to the Anti Terrorism Act, 1997 and to achieve the goal of curbing terrorism. Thereafter in the year 2001 drastic amendments were brought in the Act through Ordinance No.XXXIX of 2001.
These amendments were brought into Act by keeping in view the observation/recommendations of the august apex Court in Mehram Ali & Sheikh Liaqat Hussain's cases supra. Subsequently from time to time amendments were also made into the Act. The original Sections 6 & 7 are reproduced for convenience as under:- 6.Terrorist Act.--- Whoever , to strike terror in the people, or any section of the people, or to alienate any section of the people or to adversely affect harmony among different sections of the people, does any act or thing by using bombs, dynamite or other explosive or inflammable substances, or fire arms or other lethal weapons of poisons or noxious gases or chemicals or other substances of a hazardous nature in such a manner as to cause, or to be likely to cause the death of, or injury to, any person or persons, or damage to, or destruction of, property or disruption of any supplies of services essential to the life of the community or displays fire-arms or threatens with the use of force public servants in order to prevent them from discharging their lawful duties commits a terrorist act.
7. Punishment for terrorist Act.--- Whoever commits a terrorist act shall;
(i) if such act has resulted in the death of any person be punished with death; and (ii)in any other case, be punishable with imprisonment for a term which shall not be less than seven years but may extend to life imprisonment, and shall also be liable to fine.
(PLD 1997 Central Statutes 535)
After amendment by Ordinance No.XXXIX of 2001, in the above sections, these are reproduced 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 of 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 person or grievous bodily injury or harm to a person;
(c) involves grievous damage to property;
(d) involves the doing of anything 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, sectarian 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 places 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;
(l) is designed to seriously interfere with or 'seriously disrupt a communications system or public utility service;
(m) involves serious 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 acts.
(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.
(a) In this Act, a "terrorist" mean 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."
6. Substitution of section 7, Act UUVII of 1997.-In the said Act, for section 7 the following shall be substituted, namely:-- "7. Punishment for acts of terrorism.- Whoever commits an act of terrorism under section 6, whereby--
(a) death of any person is caused, shall be punishable, on conviction, with death or with imprisonment for life, and with fine; or
(b) he does anything likely to cause death or endangers life, but death or hurt is not caused, shall be punishable, on conviction, with imprisonment of either description for a term which shall be not less than five years but may extend to fourteen years and with fine;
(c) grievous bodily harm or injury is caused to any person, shall be punishable, on conviction, with imprisonment of either description for a term which shall not be less than seven years but may extend to imprisonment for life and shall also be liable to a fine; or
(d) grievous damage to property is caused, shall be punishable on conviction, with imprisonment, of either description for a term not less than ten years and not exceeding fourteen years, and shall also be liable to a fine; or
(e) the offence of kidnapping for ransom or hostage-taking has been committed, shall be punishable, on conviction, with death or imprisonment for life and shall also be liable to forfeiture of property; or
(f) the offence of hijacking, has been committed, shall be punishable, on conviction, with death or imprisonment for life, and shall also be liable to forfeiture of property and fine;
(g) the act of terrorism committed falls under section 6(2)(f) and (g), shall be punish able, on conviction, with imprisonment of not less than six months and not more than three years and with fine; or
(h) the act of terrorism committed falls under clauses (h) to (n) of subsection (2) of section 6, shall be punishable, on conviction, to imprisonment of not less than one year and not more than ten years and with fine; and any other act of terrorism not falling under clauses (a) to (h) above or under any other provision of this Act, shall be punishable, on conviction, to imprisonment of not less than six months and not more than five years or with fine or with both.
(PLD 2002Central Statutes 107)
8. From the above amendments, it can easily be adjudged that scope of Anti Terrorism Act was widened from time to time and according to the prevailing circumstances. Under the scheme of the Act now the offences can be classified into two categories. Offences of first category are those which clearly comes within the domain of this Act, keeping in view the definition under Section 2 and Sections 6 & 7 relating to sectarianism, militancy, violence against public servant and abduction for ransom etc, while the second category is of those cases where the nature of offences is so shocking, brutal and sensational, which creates sense of insecurity and destabilizes public at large, otherwise those offences would be between private individuals or for that matter in between two rival groups.
To draw line in between cases of First Category and that of Second Category, cases of second category are always dragged by parties from Anti Terrorism Court to Court of Ordinary Jurisdiction (under Cr.PC) and vice versa. Cases of such nature are to be judged according to the facts and circumstances of each case. Whether those cases qualify the requirements or conditions as mentioned in Sections 6 & 7 of the Act ibid.
9. Now adverting to the facts of the present case, we will first take the point raised by learned counsel for petitioner regarding Section 23 of the Act ibid. Before commenting on the submission of learned counsel, it would be proper to go through the language of Section 23 of the Anti Terrorism Act, 1997.
23. Power to transfer cases to regular Courts. - Where, after taking cognizance of an offence, an [Anti-T errorism Court] is of opinion that the offence is not a scheduled offence, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for trial of such offence to any Court having jurisdiction under the Code, and the Court to which the case is transferred may proceed with the trial of the of fence as if it had taken cognizance of the of fence.
10. Cognizance of a case by a Court is not synonymous with the commencement of the trial in a case. Taking of cognizance of a case by the Court is the first step, which may or may not culminate into the trial of the accused. A criminal trial, therefore, does not commence with the taking of the cognizance of the case by the Court. (2000 SCMR 785).
The word 'cognizance' used in Section 23 of Anti Terrorism Act would not mean those powers under this section are to be exercised after framing of charge. That is prerogative of the Anti Terrorism Court for exercising such powers at any stage. Anti Terrorism Court can order transfer of case to Court of Ordinary Jurisdiction, so this objection of petitioner's counsel has got no legal force and is overruled.
11. Now adverting to the question of applicability of Anti Terrorism Act to the facts and circu mstances of the present case, we have gone carefully through the provisions of Anti Terrorism Act and the case law cited by both the sides.
In case of "Kashif Ali Vs ATC & others" (C.A No.187/2016), the term 'design' used in Section 6(1)(b) was discussed and it was held by the apex Court that the term 'design' has widened the scope of the Act. Facts of the present case and that of the Kashif Ali(supra) are almost same. In both the cases, the candidates were attacked during their election campaign. No doubt in present case there was blood feud while in Kashif Vs ATC (supra) the dispute was over a property.
In the present case accused side had chosen the days of election campaign of the petitioner's side, who was busy in Local Bodies Elections. The place of occurrence as pointed out by learned counsel for respondents No.3 to 6, would be of less significance because six persons were shot dead and two were injured. Besides, Firearms, explosive i.e, handgrenades were used in the occurrence which is clear from the Post Mortem Reports of two deceased namely Choudry Munir and Azam showing that they have sustained 'Blast Injuries' during ambush made by the accused charged in FIR. Provisions of Sections 6(ee) and 7(ff) of the Act ibid are also attracted in addition to the mood of occurrence which is neither case of sudden flare up nor of any provocation rather this was pre- planned act under the garb of blood feud with design to cause sense of insecurity amongst the public and the people of the Constituency of the petitioner. For convenience, the relevant sections 6(ee) and 7(ff) of the Act, are reproduced as under:- 6(ee). Involves use of exploses by any device including bombblast or having any explosive substance without any lawful justification or having been unlawfully concerned with such explosive".
7)ff). The act of terrorism committed falls under section 6(2)(ee), shall be punishab le with imprisonment which shall not be less than fourteen years but may extend to imprisonment for life."
12. For what has been discussed above, we are of the opinion that the three essential ingredients for determination of offence of terrorism under Section 6(1)(a) & (b) of ATA, i.e, (i)taking of action specified in Section 6(2) of ATA, (ii) the action committed with design, intention and mens rea and thirdly that it has the impact of causing intimidation, awe, fear and insecurity in the public or society, are fully attracted to the facts of instant case. Besides, Courts have only to see as to whether the terrorist act was such that it would have tendency to create sense of fear or insecurity in the minds of the people or any section of the society coupled with the psychological impact being created in the minds of the society. The 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 and it cannot be simply ruled out from the ambit of Section 6 an individual's action being implemented in a setting where a creation of feeling of fear in the society was an inevitable consequence of the said Act. Consequently, the learned Judge, Anti Terrorism Court has fallen in error by transferring the case to the Ordinary Jurisdiction (Court of Sessions) thereby, the impugned order dated 10.7.2015, passed by learned Judge, Anti Terrorism Court, Hazara Division, Abbottabad, is set aside and the case file be remitted to the Court of learned Judge, Anti Terrorism Court Hazara Division, Abbottabad, for disposal on merits and in accordance with law.
13. The above findings are tentative in nature and would in no way prejudice the case of either party or mind of learned trial Judge.