Through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged the vires of order dated 08.10.2018, passed by the learned Judge, Anti-Terrorism Court-II. Multan (Respondent No,1) whereby application filed by the petitioner under section 23 of the Anti-Terrorism Act, 1997 (hereinafter to be referred as 'the Act') in case FIR No,381 dated 16.06.2018, registered at Police Station Gaggo, District Vehari, for offences under sections 302, 324 and 34, P.P.C. read with section 7 of the. Act, stood dismissed.
2. Briefly stating, the facts of the case, leading to the filing of the instant writ petition are that respondent No,2 had lodged the aforesaid criminal case against the petitioner and others with the allegation that on 16.06.2018, at about 7:00 p.m., he along with his son namely Ali Raza, nephew Muhammad Nawaz and other relatives, was sitting on a 'Thara' in front of their house when the petitioner along with his co-accused, armed with fire arm weapons, came there, while making firing and creating panic in the area. Due to fear, they tried to rush to their house in order to save their lives but in the meanwhile, accused Shafiq made a fire shot with his pistol .30-bore at the chest of Muhammad Nawaz, who after receiving injury, fell down on the ground. Idrees (petitioner) made fire shot with his rifle which landed at the chest of his son Ali Raza who also fell down on the ground. The complainant and other PWs tried to rescue the injured persons but they succumbed to the injuries at the spot. Accused Qaiser made fire shot with his pistol .30-bore hitting Muhammad Ramzan at his little finger of right hand, Khalil inflicted Butt blows of his pistol to Allah Rakha causing injuries on his head. The motive behind the occurrence has been stated to be a quarrel taken place between Muhammad Nawaz (deceased) and Qaiser accused during the cricket match at about 4:30 p.m., on the same day.
3. Learned counsel for the petitioner submits that bare reading of the FIR transpires that the occurrence has taken place on account of a private motive inter se the parties and the learned Special Judge Anti-Terrorism Court-II, Multan has failed in taking into consideration that there exist neither any circumstance nor any material available on the record for attracting section 6 of the Act, hence the impugned order is not sustainable under the law. He prayed for acceptance of the writ petition while relying upon "Waris Ali and 5 others v. The State" (2017 SCM R 1572).
4. On the other hand, learned counsel appearing for respondent No, 2 as well as learned Additional Prosecutor General have submitted that since one of the deceased namely Muhammad Nawaz was an army personnel, therefore, keeping in view the provision of sections 2(a) and 6(2)(n) of the Act, the impugned order has rightly been passed. Learned counsel for respondent No,2 has relied upon the cases reported as Province of Punjab through Secretary Punjab Public Prosecution Department and another v. Muhammad Rafique and others (PLD 2018 Supreme Court 178), Kashif Ali v. The Judge, Anti-Terrorism Court, No,11, Lahore (PLD 2016 Supreme Court 951) and Mst. Raheela Nasreen v. The State and another (2002 SCM R 908) and has prayed for dismissal of the instant petition.
5. Arguments heard. Record perused.
6. The question, pithily, before us in the instant proceedings, requiring its determination, is whether or not, the instant occurrence attracts the provisions of section 7 of the Act rendering the case to be cognizable by the Anti-Terrorism Court, in which murder of Muhammad Nawaz deceased, member of the Armed Forces, had taken place on account of private motive inter se the parties.
7. In order to appreciate the contentions raised at bar be convenient to firstly reproduce the preamble and other relevant provisions of the Act which are as under:- "An Act to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences."
2(a). "armed forces" means the Military, Naval and Air Forces of Pakistan and the Reserves of such Forces.
(b) "Civil armed forces" means the Frontier Constabulary, Frontier Corps, Pakistan Coast Guards, Pakistan Rangers or any other civil armed force notified by the Federal Government as such. 6(2) (n). Involves serious violence against a member of the police force, armed forces, civil armed forces, or a public servant."
8. The contention of learned counsel for respondent No,2 that since one of the deceased namely Muhammad Nawaz was a member of the Armed Forces, therefore, combine reading of sections 2(a), 2(b) and 6(2)(n) of the Act will bring the case of the prosecution, without any further qualifying factor, automatically within the cognizance of Anti-Terrorism Court, does not commensurate with the facts and circumstances of the instant case.
9. The Anti-Terrorism Act, 1997 was promulgated on 20th August 1997, as the legislation felt it expedient because the terrorist of different colours and creeds, backed by various inimical quarters, motivated by different ideologies, were desperately attacking not only the civilian populace but also the men in uniform, public servants and institutions creating a sense of fear, despair and insecurity amongst the public at large apart from degrading the image of the country abroad. It appears that intention of the legislature for enactment of the Act was to give clear message to the terrorists, hitting even the men in uniform, who were duly trained and equipped with sophisticated weapons to combat such nasty elements for internal and external security of the country, that they will be dealt with iron hand under the aforesaid provisions of the Act by the Anti-Terrorism Courts.
10. The law was supposed to work as a moral boosting factor not only for the civilians but also for the men in uniform, therefore, taking into consideration the facts and circumstances of the case, we have no hesitation to hold, while keeping in view the object of the Act expressed in the preamble, that the provisions of sections 6(2)(n) of the Act can only be attracted where a person belonging to the Forces mentioned supra is targeted with violence while discharging his duties, performing his official functions or the action complained of is designed with the object of creating a sense of fear and insecurity, except in the cases where the propelling force behind the occurrence is private motive.
11. The august Supreme Court, in case Waris Ali (supra), while discussing the same question, has held as under:- "24. True, that in section 6 read with section 7 of the Special Act, offences of murder, attempted murder or causing bodily hurt or injury have been made cognizable by the Special Court, however, from the qualifying words, preceding the description of offences under subsection (1) of section 6 read with the provisions of section 7 the intention of the legislature becomes perceivable/visible that in committing these crimes essentially the element of "terrorism" shall be persuasive factor however other category of crimes duly specified and listed in Special Act shall fall within the ambit of provision of same being act of terrorism in that regard. The manifest intent of the Legislature does not leave behind any doubt for debate."
12. Bare perusal of the FIR shows that the complainant has set up his case with the narration that the motive behind the occurrence was a quarrel, taken place earlier at 4:30 p.m., between deceased Muhammad Nawaz and accused Qaiser during the cricket match on the same day.
Therefore, we feel no difficulty in concluding that the main occurrence, which took place at 7:00 p.m., was sequel of the motive which had taken place 2-1/2 hours before due to personal grudge nourished in the min of Qaiser, who had allegedly persuaded his co-accused, to commit the crime, in furtherance of their common intention i,e, to avenge the quarrel. No other inference regarding the cause of murder can be drawn in the circumstances of this case. Even during investigation, nothing adverse has come on the surface of record. We are of the opini that in order to attract the provisions of the Act, the act complained of must have a serious nexus with the provision of section
6. To exercise the jurisdiction under the Act ibid, 'design' or 'purpose' behind the action coupled with mens rea to constitute the offence of terrorism is sine qua non but the same has not been taken into consideration by the learned court below while deciding the application of the petitioner. There i also nothing on record to show that life and liberty of large numb of persons in the village was put in danger because of the firing of the accused party. In absence of solid and admissible evidence, mere conjectures and surmises, how so strong may be, cannot substitute the reality.
13. In a judgment passed by learned Division Bench of this Court reported as Nazim Khan v. Special Judge, Anti-Terrorism Court (2002 M LD 1433), it has been held as under:- "---incident having sparked off over a triviality bearing no nexus with the discharge of the official duty being the sine qua non in the contest of things for assumption of jurisdiction by the Special Court constituted under the Anti-Terrorism Act, 1997 in terms of section 6 read with section 2(e) ibid...."
Similar view has been taken in case Muhammad Riaz v. Mian Khadim Hussain, Additional Sessions Judge, Mianwali and 11 others (2002 YLR 203) Lahore (Full Bench Judgment).
14. In the instant case, as observed above, the occurrence had taken place as a result of private motive inter-se the parties, hence, addition of section 7 of the Act in the FIR and submission of challan before the Anti-Terrorism Court is declared to be illegal and without lawful authority.
15. In view of what has been discussed above, the instant petition is allowed, impugned order dated 08.10.2018 is set aside, the application of the petitioner moved under section 23 of the Act is accepted and addition of aforesaid Section is declared to be illegal, improper and of no legal effect. Learned Special Judge Anti-Terrorism Court-II, Multan is directed to transfer the record of the aforesaid case to the court of ordinary jurisdiction for further proceedings in accordance with law.