SHAHNAWAZ TARIQ, J.---By this single order, we intend to dispose of criminal miscellaneous applications No,D-913 of 2014 filed by applicants Muharram Ali and others, and D-36 of 2015, filed by applicants Junaid Ahmed Junejo and others, both arisen out of crime No,130 of 2014 of Police Station 'B' Section, Khairpur, under sections 302, 148, 149, P.P.C. And 7, A.T.A., and have impugned order dated 18.09.2014, passed by the Court of learned Special Judge, Anti-Terrorism Court, Khairpur, whereby their applications under section 23 of Anti-Terrorism Act, 1997, were declined.
2. Relevant facts spelt out from instant applications are that complainant Sagheer Ahmed lodged FIR on 17,05.2014, stating that accused Nazar Shah and others used to demand Bhatta from complainant and on his refusal, they were annoyed. On the fateful day, he along with his brother Bashir Ahmed, Feroze and Ghulam Farooq, left their house for the routine work and when they reached at about 7.30 a.m. At Bridge of village Khanpur, they noticed accused Nazar Hussain Shah, Iqbal Hussain, Junaid, Ghulam Mustafa alias Papoo, Rajo, Urs, Ghulam Mujtaba, Muharram and two unidentified persons armed with Kalashnikovs. Accused persons challenged the complainant party and made straight fires upon Bashir Ahmed, which hit him on different parts of the body and he succumbed to his injuries. Accused also made aerial firing to create fear and havoc; hence instant FIR.
3. Learned counsel for applicants contended that parties are disputed with each other and series of FIRs were lodged by them against each other; that deceased was convicted vide judgment dated 07.10.2004; however, said dispute was compromised before the High Court; that deceased was a hardened criminal and involved in series of heinous crimes, hence Government of Sindh fixed reward money for his arrest; that during investigation, complainant has not produced any evidence in support of his allegations for demands of Bhatta; that the place of incident is a bridge of canal which is not located in populated area. Learned counsel relied on the case of Noor Khan v.
Judge Special, Anti-Terrorism Court, Sargodha and another (2001 PCr.LJ 581), Muhammad Sarwar and another v. Federation of Pakistan, Ministry of Law and Parliamentary Affairs and 6 others (2001 PCr.LJ 1528), Ch. Zulifqar Ali v. Chairman, NAB and others (PLD 2003 Lahore 593), Basharat Ali v. Special Judge, Anti-Terrorism Court, Gujranwala (PLD 2004 Lahore 199) and Nazeer Ahmed v. The State (PLD 2009 Karachi 191).
4. While controverting to the above submissions, learned counsel for complainant vehemently contended that allegations of demanding Bhatta are mentioned in FIR, as such case falls within the ambit of section 6(k), Anti-Terrorism Act, '1997, which is exclusively triable by the Anti-Terrorism Court; that on the basis of old enmity, accused party cannot take benefit to get the case transferred from Anti-Terrorism Court to an ordinary Court of law; that instant misc. Applications have been filed without any legal substance. Learned counsel relied on the case of Muhammad Mushtaq v. Muhammad Ashiq and other (PLD 2002 SC 841) and Atif Ali v. Special Judge, Anti- Terrorism Court, Lahore and 4 others (2014 YLR 2534),
5. Learned DPG, at the very out-set, raised legal objection regarding the maintainability of instant misc. Applications and contended that impugned order can only be challenged through Constitution petition, hence instant miscellaneous application under section 561-A, Cr.P.C. Is not maintainable; that Investigating Officer had concluded in Challan that no case under Anti- Terrorism Act, 1997, was made out, Learned DPG supported the arguments advanced by learned counsel for applicants and candidly submitted that impugned order is without any legal substance. He relied on the case of Muhammad Sabir Roshan v. The State (2000 PCr.LJ 1195), The State v. Shanishur-Rehman alias Shamoo Dakoo alias Khalid (2000 YLR 902) and The State v. Dr. Khalid Moin and 3 others (2000 YLR 2668).
6, We have heard learned counsel for the parties supported with case law and perused the material available on record minutely.
7. Undeniably, the parties are on inimical terms with each other and factum of animosity is reflected from the series of FIRs lodged by them, which are reproduced as under:-
(i) FIR No,185/2009, lodged by Mst. Suria (accused party) at Police Station 'IV Section, Khairpur under sections 324, 337-112, 34, P.P.C.
(ii) FIR No,22/201.5 lodged by Hakim Ali (accused party) at Police Station 'IV Section, Khairpur under section 395, P.P.C.
(iii) FIR No,169/2010 lodged on behalf of State at Police Station 'B' Section Khairpur under section 13- DAO against deceased Bashir Ahmed.
(iv) FIR No,52/2009 lodged by ASI Ali Gul Mallah at Police Station 'B' Seurion Khairpur under sections 399, 402, P.P.C. And 13-DAO against deceased Bashir Ahmed.
(v) FIR No,99/2012 lodged by SIP Ali Akber on behalf of State at Police Station Kumb, under section 9-C, C.N.S. Act against deceased Bashir Ahmed.
(vi) FIR No,90/2001 lodged by Haji Ghulam Hussain at Police Station 'B' Section Khairpur, under sections 324, 34, P.P.C. Against deceased Bashir Ahmed.
(vii) FIR No,86/2013 lodged by Arif Hussain Shah at Police Station 'B' Section Khairpur, under sections 395, 337-H(ii), P.P.C. Against deceased Bashir Ahmed and others.
(viii)FIR No,94/2013 lodged by complainant party at Police Station 'B' Section Khairpur, under section 395, P.P.C., which was disposed of in 'B' Class vide order dated 19.11.2013 by the Court of Civil Judge and JM, Khairpur.
(ix) FIR No,238/2010 lodged by Feroz Ali at Police Station 'B' Section Khairpur under sections 506/2, 337-H(2), 34, P.P.C.
(x) FIR No,87/2001 lodged by complainant party, which was disposed of under 'B' Class and action under section 182, P.P.C. Was also ordered by the Court of learned II-Civil Judge and J.M. Khairpur vide order dated 28.08.2001.
8. Home Department, Government of Sindh issued Notification dated 02.04.2011, whereby reward money of dangerous criminals, was notified and name of deceased Bashir Ahmed was mentioned at S.No,114 and an amount of Rs,500,000/- was fixed for his arrest. It is significant to mention that neither deceased had challenged said Notification of the Home Department nor same was recalled by the Government of Sindh, which is still intact. Said notification also emanated the personal character and criminal activities of the deceased.
9. In case of Muhammad Mushtaq v. Muhammad Ashiq and others (supra), the honourable Supreme Court has observed as follows:- 'Petitioner lodged FIR against accused persons for the quadruple murder of his relatives by the use of Kalashnikov on the Court Road near the District Courts, Lahore. Cumulative fall out of occurrence as to time, place and manner of offence and weapons used therein falling under Section 6 of Anti-Terrorism Act, 1997, created sense of fear and insecurity in society. Case against accused persons was thus, triable by Anti-Terrorism Court, 1997. The Judge, Anti-Terrorism Court dismissed application for transfer of the case to ordinary Court, while Lahore High Court allowed petition filed by accused for transfer of case from Anti-Terrorism Court to ordinary Court. The Honourable Supreme Court set aside order passed by Lahore High Court."
In the case Mohabbat Ali v. State (2007 .SCMR 142), the Honourable Supreme Court has observed as follows:- "Offence took place in the fields of sugarcane and banana, about 14/15 miles away from main road and case was sent to Anti-Terrorism Court for trial. Plea raised by accused was that facts mentioned in FIR did not disclose any act of terrorism, justifying trial before Special Court. In order to determine as to whether offence would fail within the ambit of S.6 of Anti-Terrorism Act, 1997, it would be essential to have a glance over allegations made in FIR, record of case and surrounding circumstances; it was also necessary to examine that ingredients of alleged offence had any nexus with the object of case as contemplated under Ss. 6, 7 and 8 of Anti-Terrorism Act, 1997.
Whether a particular act was an act of terrorism or not, the motivation, object, design or purpose behind such act was to be seen and it was also to be seen as to whether such act had created a sense of fear and insecurity in public or any section of public or community or in any sect. Alleged offence took place because of previous enmity and private vendetta. Motive as alleged in FIR was also to be given specific attention which indicated that there was personal enmity between the parties over land and murder case of Haries . Of complainant. Intention of accused was not at all to create sence of insecurity or to destabilize public at large or to advance any sectarian cause.
Design or purpose of offence as contemplated by provisions of S.6 of Anti-Terrorism Act, 1997, was not attracted. Supreme Court set aside the order passed by High Court and directed the Special Court to transmit record of the case to Sessions Judge for its disposal in accordance with law."
In the case of Atif Ali v. Special Judge Anti-Terrorism Court, Lahore and others (supra) it was held as under:- "Complainant set-up fire place (Bhattie) to bake bamboos in village. Accused were record holders as well as money extorters and they frequently demanded/received Bhata from the people of area and also came to his Bhattie and threatened him if he did not pay Bhata, they would not spare him; they entered into his house on the same day and tortured him for having not sent the demanded money and also fired straight with gun on his father who died at the spot. Accused thereby conveyed message to complainant and people living in the area that if any one refused accused's demand would suffer the fate of deceased. Act done by accused created a sense of insecurity among the people and was covered by sections 6 and 7 of Anti-Tdrrorism Act, 1997."
In the case of Basharat Ali v. Special Judge, Anti-Terrorism Court, Gujranwala (supra), it was observed as follows:- "22. Judged on the basis of the requirements of the amended provisions of section of the Anti- Terrorism Act, 1997, and examined on the touchstone of the principle of nexus propounded by the largest Bench of the honourable Supreme Court of Pakistan in the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445), reiterated by an equally large Bench of it in the case of Jamaat-i-lslami Pakistan through Syed Munawar Hassan v. Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs (PLD 2000 SC 111) and applied by it in the case of Ch. Bashir Ahmed v. Naveed Iqbal and 7 others (PLD 2001 SC 521) the case in hand, despite the brutality displayed by the culprits and the consequent horror, shock, fear and insecurity likely to be created by the savagery perpetrated by the offenders, has not appeared to us to be a case of terrorism as the motive for the alleged offences was nothing but persdnal enmity and private vendetta and the motivation on the part of the accused party was not to overawe or intimidate the Government, etc. Or to destabilize the society at large or to advance any sectarian cause, etc. The intention of the accused party did not depict or manifest any 'design' or 'purpose' as contemplated by the provisions of section 6(1)(b) or (c) of the Anti- Terrorism Act, 1997, and, thus, the actus reus attributed to it was not accompanied by the necessary mens rea so as to brand its actions as terrorism triable exclusively by a Special Court constituted under the Anti-Terrorism Act, 1997. This writ petition is accepted and the learned Judge, Anti-Terrorism Court-I1 Gujranwala is directed to transmit the record of the petitioner's case to the learned District and Sessions Judge, Gujranwala forthwith for further proceedings in the matter."
10. The averments of FIR are silent regarding the financial status and source of income of the complainant against which accused have been demanding Bhatta. Complainant "has also not disclosed the specific dates, times and places of demanding Bhatta by accused persons nor any such evidence was produced before the Investigating Officer to prima facie establish such allegations. In absence of any tangible material, mere allegations of demanding Bhatta do not attract section 6(k) of Anti-Terrorism Act, 1997, in the present case nor said section was mentioned in FIR and Challan. Perusal of Challan reflects that Investigating Officer had made a request to the Anti-Terrorism Court for return of FIR and other documents so that Challan may be submitted before the ordinary Court of law as no case under the provisions of Anti-Terrorism Act, 1997, was made out, but his request was declined by the' Anti-Terrorism Court vide order dated 09.06.2014, and cognizance was taken by the Court.
11. Cumulative effect of the averments of FIR, surrounding circumstances and other material available on record have replicated that offence having been committed on account of previous old enmity with a definite motive. The alleged offence occurred at .Faiz Wah Bridge, which is not situated in any populated area, consequently, the allegations of aerial firing have not appeared to us to be a case of terrorism as the motive for the alleged offence was nothing but personal enmity and private vendetta. The intention of the accused party did not depict or manifest any act of terrorism as contemplated by the provision's of the Anti-Terrorism Act, 1997. Consequently, we are of the considered view that complainant has failed to produce any material before the Investigating Officer that at the time of occurrence sense of fear, panic, terror and insecurity spread in the area, nevertheless it was a simple case of murder due to previous enmity, thus, alleged offence does not fall within purview of any of the provisions of Anti-Terrorism Act, 1997. While probing the question of applicability of provisions of Anti-Terrorism Act, 1997, in any crime, it is incumbent that there should be a sense of insecurity, fear and panic amongst the public at large to invoke the jurisdiction of the Anti-Terrorism Court. Indeed, in each murder case there is loss of life which is also heinous crime against the society but trial of each murder case cannot be adjudicated by the Anti-Terrorism Court, except existence of peculiar circumstances as contemplated under sections 6, 7, 8 of Anti-Terrorism Act, 1997.
12. Considering the above facts, circumstances and case law, instant criminal miscellaneous applications are converted into Constitution Petitions and same stand allowed as prayed.
Consequently, the learned Judge, Anti-Terrorism Court, Khairpur is directed to transmit the case to the learned Sessions Judge, Khairpur for further disposal in accordance with law. The transferee Court will proceed with the trial from the stage left by learned Anti-Terrorism Court.