MANZOOR AHMAD MALIK, J.---Petitioner-complainant seeks leave to appeal against the order of the Lahore High Court, Lahore dated 05.11.2015 whereby the constitutional petition filed by the respondent No,1 for transfer of trial of case FIR No, 740 of 2015 dated 25.04.2015, offence under sections 324, 148, 149, P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997 registered at. P.S. Factory Area, Lahore, was allowed, the application of respondents under section 23 of the A.T.A.
Was accepted and learned Anti Terrorism Court was directed to transmit the record of the aforesaid case to the court of ordinary jurisdiction.
2. The facts of the case have been reproduced in verbatim by the learned High Court in Para 5 of the impugned order which need not be reiterated.
3. Mr. Naveed Inayat Malik, learned counsel appearing for the petitioner-complainant has vehemently contended that provisions of section 6 of the Anti-Terrorism Act, 1997 [hereinafter referred to 'the Act, 1997'] are fully attracted and are applicable to the facts of the present case; that nine persons from petitioner-complainant side were injured in this incident and on their medical examination, the doctor found firearm injuries on their persons; that the incident took place on the day of election on a thoroughfare and the sole design behind the occurrence was to create terror amongst the public at large; that recovery of .30 bore pistol and .12 bore gun at the instance of Tanvir alias Chhana further strengthens the case of the petitioner-complainant. The learned counsel, in support of his arguments, relied on a judgment of this Court passed in Kashif Ali v. The Judge, Anti-Terrorism, Court No, II, Lahore and others (PLD 2016 SC 951) and argued that the learned High Court while passing the impugned order did not advert to the ratio laid down by this Court in the aforesaid judgment and the same is not sustainable in law.
4. Conversely, Ch. Aitzaz Ahsan, learned Sr. ASC appearing on behalf of respondent No, 1 argued that it is very much apparent from the contents of FIR that the alleged incident took place because of the reason that complainant side after winning the election, formed a procession and were passing in front of the house of Haji Jan Muhammad accused when and where actually an altercation took place between the parties which is also evident from the report of police prepared under section 173, Code of Criminal Procedure. He further contended that five prosecution witnesses, some of whom were injured, got recorded their statements before the learned Magistrate under section 164, Code of Criminal Procedure wherein they had stated that they were not injured by the accused side and assailants were unknown. He went on to argue that in the FIR it has been alleged that nine nominated accused along with 5/6 unknown persons resorted to indiscriminate firing but surprisingly only 11 empties of two different bores were secured by the investigating agency from the spot and the report of the Forensic Science Laboratory qua those empties and also the pistol and gun allegedly recovered from accused Tanvir @ Chhana is negative. Learned counsel further canvassed at the Bar that as per contents of FIR, the alleged incident took place after the election process was over, therefore, the argument of learned counsel for the petitioner that it was staged to create panic amongst the voters has no force and in this backdrop, the facts of the present case are altogether distinguishable from the precedent case law referred to by the learned counsel for the petitioner.
5. The learned Additional Advocate General appearing for the State submits that the impugned order of the learned High Court does not suffer from any lacuna, misreading or non-reading and the facts and circumstances of the present case clearly suggest that this case is to be tried by a court of ordinary jurisdiction.
6. We have heard the arguments of learned counsel for the parties in detail, perused the available record, the impugned order of the learned High Court and the precedent case law presented at the Bar.
7. It is the case of the prosecution that nine nominated accused along with 5/6 others resorted to indiscriminate firing as a result whereof nine persons from the complainant side sustained multiple firearm injuries. On Court query, the learned Additional Advocate General, after taking instructions from the investigating officer present in Court with record, has confirmed that only 11 empties of two different bores i,e, .30 bore and .12 bore were recovered by the investigating agency during inspection of the spot. It has also been alleged in the FIR that all the nominated accused were armed with multiple firearms but during investigation, as confirmed by the learned Additional Advocate General on instructions from the investigating officer, only .30 bore pistol_ and a .12 bore gun were recovered at the instance of only one accused namely Tanvir Chhana. The learned Law Officer further confirmed that the empties secured from the spot and the recovered pistol and gun were sent to the Forensic Science Laboratory for analysis and the report of FSL thereto is in the negative. During arguments, learned counsel for respondent No,1 has also taken us to C.M.A. No, 33- L of 2017 whereat he has placed on record statements of PWs/injured namely Ahmed Ali Shaukat son of Shaukat Ali (injured PW), Shaukat Ali son of Haji Mehtab, Irfan Haider (injured PW), Sharafat Ali (PW) and Haji Liaqat Ali (PW), recorded by the learned Magistrate under section 164, Code of Criminal Procedure. All the five PWs (some of whom were injured) have by and large exonerated the accused by stating that they did not know as to who fired at them; that none of the nominated accused fired at them nor they saw any weapon in the hands of any of the nominated accused person. It has also been observed by us that this incident, as per FIR, took place when the election process was over and results of different polling stations were being received.
8. We have also gone through the report under section 173, Cr.P.C. Prepared by the police. At the end of the said report, it has been stated by the DSP/SDPO concerned that: {{URDU TEXT}} In view of the discussion in Para 7 above and the report of police under section 173, Code of Criminal Procedure, prima facie it appears that altercation between the parties occurred all of a sudden when the procession of the complainant side on winning the election was passing in front of house of Haji Jan Muhammad accused and there was no prior 'object/design.'
9. During the course of arguments, we have observed that basic premise of the arguments of learned counsel for the petitioner pivots around the judgment of a Five Member Bench of this Court in Kashif Ali v. The Judge, Anti-Terrorism Court No,11, Lahore and others (PLD 2016 SC 951), wherein the issue of jurisdiction has been dealt with. It is appropriate to reproduce the relevant portion of Para 12 of the said judgment for ready reference: "12 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 FIR, 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 tobe seen .......................
10. We have gone through the allegations leveled in the FIR, the material collected by the investigating agency during course of investigation and other surrounding circumstances as discussed above and are of the considered view that present case is not triable by a Court established under the provisions of Anti-Terrorism Act, 1997.
11. For what has been discussed above, we find that the impugned order of the learned High Court is unexceptionable and does not warrant interference. The petition having no merit is dismissed and leave to appeal is refused.