ABDULLAH BALOCH, J.--This judgment disposes of Criminal Appeal No.249 of 2018 filed by the appellant Muhammad Naseem son of Muhammad Ilyas, against the judgment dated 10th August 2018 (hereinafter referred as, the impugned judgment ") passed by learned Special Judge, Anti-T errorism Court Pishin (hereinafter referr ed as, "the trial Court "), whereby the appellant was found guilty of charge under section 6(1)(a)(b) and section 6(2)(a) of the ATA, 1997 punishable under section 7(1)(a) of Anti-T errorism Act, 1997 ("ATA 1997") and was sentenced to suffer imprisonment for life on two counts with fine of Rs.100,000/- to be paid to the legal heirs of deceased persons or in default thereof to further suffer 6-months SI, besides the forfeiture of his property under Section 7 (2) of the ATA 1997, with the benefit of Section 382-B, Cr .P.C.
2. Facts of the case are that on 17th April 2013 the complainant Nasruddin son of Sufi Kamal-ud-Din lodged FIR No.26 of 2013 at Police Station Pishin, under Sections 302, 324, 34, P.P.C. stating therein that on 16th April 2013 the submersible of their tube well had gone out of order , due to which his brothers namely Raheem-ud-Din alias Bacha, Amar-ud-Din sons of Sufi Kamal-ud-Din and his nephew namely Ahmedullah son of Siraj-ud-Din took it to a mechanic at the Pishin Bazar for repairing. He further averred that subsequently his brother Amar-ud-Din informed him on phone that when they were going at Purana Pishin Bazar to the shop of mechanic, three persons namely Muhammad Naseem, Asghar and Abdul Bari came on a motorcycle, out of whom accused Muhammad Naseem was riding the motorcycle, whereas the remaining accused persons namely Asghar and Abdul Bari made indiscriminate firing at them with Pistol and caused grievous fire arm injuries to Raheem-ud-Din alias Bacha and Ahmedullah, hence he is taking the injured to Civil Hospital Pishin. On such information he reached hospital at 12.30 p.m. and found that both the injured Raheem-ud-Din alias Bacha and Ahmedullah succumbed to the injuries.
The motive behind the occurrence is stated to be a previous enmity .
3. On completion of investigation, the appellant was tried by the trial Court and on conclusion of trial, the appellant was convicted and sentenced as mentioned above in para No. 1 Where after , instant appeal has been filed.
4. At the very outset, both the learned counsel for the appellant and the learned counsel for complainant did not press the appeal on merits and contended that the offences do not fall within the purview of terrorism as such, the same was not triable by learned Special Judge, Anti-T errorism Pishin, who had no jurisdiction to try the case and to convict and sentence the appellant, whereas in fact the alleged murders was result of previous enmity , thus being a case of a private motive and private offence was triable by the Ordinary Court and the trial Court has not only incompetently took the cognizance of the case, but also arrived at a conclusion, which is against the law, thus prayed for setting-aside the impugned judgment and remand of the case to a ordinary court for trial afresh.
5. Learned D.P .G. also conceded the arguments of both the learned counsel for parties.
6. Heard the learned counsel for the parties and have minutely gone through the record. To ascertain that whether an offence is falling within the ambit of Section 6 of Anti-T errorism Act, 1997, it is essential to have a glance over the allegations made in the FIR, material collected during investigation and surrounding circumstances as well as the ingredients of terrorism as provided under Sections 6 and 7 of the ATA, 1997. Perusal of record reveals that initially on the basis of complaint of complainant party FIR No.26 of 2013 was registered under Section 302, 324, 34, P.P.C., however , being dissatisfied the complainant filed an application before the learned trial Court i.e. Sessions Judge Pishin for transfer of the case to ATC, but the same was dismissed vide order dated 7th November 2013, thereafter , the complainant approached this Court through transfer application No.657 of 2013. Accordingly the application was allowed vide order dated 5th June 2014 and the case was transferred to ATC. Accordingly , Section 7 of the ATA was inserted in the FIR and after completion of investigation challan was submitted before the trial Court and trial was commenced, which thereafter was culminated into awarding conviction to the appellant, vide impugned judgment dated 10th August 2018. It is pertinent to mention here that at the time of passing order for transfer of case to the ATC only the FIR was available before this Court and that too at pre-trial stage, but after going through the entire evidence recorded by the learned ATC and surrounding circumstances of the case collected during investigation reflects that the case does not fall within the purview of Section 6 of ATA 1997 rather from the contents of FIR and the statements recorded by the PWs it appeared that the said offence was committed due to personal vendetta or enmity and relevant elements of terrorism are missing in the instant case while the accused persons were dragged into the fold of terrorism or terror activities in this regard reliance is placed in the case of Province of Punjab v, Rafiq PLD 2018 SC 178, wherein the Hon'ble Supreme Court of Pakistan has held as under: "10. In the above mentioned case i.e. KashIf Ali (supra) this Court while dealin g with the issue of Jurisdiction observed in para 12 of the Judgment as under; "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 to be seen."
It was observed by this Court in para 18 of the same judgment that: "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 triable by the Anti-T errorism 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 attemp ted to generalize the principles which need to be applied by the Courts while deciding the jurisdiction of an Anti-T errorism Court".
From the above para it was made clear that the observations made in the case of Kashif Ali (supra) were not conclusive and a case to case determination of the applicability of the Act 1997, is imperative.
11. The observation given in the case of Kashif Ali (supra) was not in field at the time when the learned Special Court transferred the case in hand to the ordinary Court on 23.11,2012, as the case of Kashif Ali (supra) was decided on 15,2.2016. Hence, the learned Special Court relied upon the case of Bashir Ahmed v. Muhammad Siddique (PLD 2009 SC 11). Even the case of Kashif Ali (supra) was not in field when the impugned judgment was passed. Although in the case of Bashir Ahmed (supra) leave was refused but, as already discussed, the judgment of 05 member Bench in the case of Kashif Ali (supra), was not in field; . hence, the learned Special Court get guidance from the case of Bashir Ahmed (supra) as till that time there were different views given by 2/3 member Benches of this Court in different judgments.
As according to the observation given in Kashif Ali's case (supra) the surrounding circumstances are to be seen while answering the question of applicab ility of the provisions of the Act 1997, we have perused the available record and observed that admittedly there was a dispute of the plot where this occurrence took place. It is prosecution's own case that the petitione r had filed a Civil Suit and on his application for initiation of contempt proceedings against the respondents, a bailiff of the Court was appointed. The application of contempt of Court and appointment of bailiff triggered the enmity as such this occurrence took place. Allegedly , 05 persons fired specifically at Mst. Sabira Bibi (deceased) hitting on her legs. Till that time there was no allegation of creating terror and insecurity in the general public. However , later on, it was alleged that 26 perso ns, in order to create terror and insecurity in the general public, made indiscriminate firing but, the allegation is not supported from any source as neither any crime empty was recovered from the place of occurrence nor anybody else, received even a scratch on his person due to said indiscriminate firing. Even due to the alleged indiscriminate firing not a single bullet hit on the walls of the said plot which were 2.3 feet high.
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14. The phrase used "to be treated in accordance with law" under Article 4(1) of the Constitution of the Islamic Republic of Pakistan, 1973, includes that every citizen must be dealt with in accordance with law applicable to him, subject to, of course, the facts and circum stances of the case. If any person is triable under the ordinary penal law then treating him under special law, not clearly applicable to him would be a violation of the command to the Constitution. It is almost settled by now that Whenever a penal statute requires interpretation, then it shall be so interpreted, which favours the accused person and not the prosecution or the State. Two interpretations of a statute should be interpreted in such manner that the interpretation favouring the accused, should be adopted. (BOLD ADDED)
7. In view of above referred judgment, the case of appellant does not fall within the ambit of terrorism. Even otherwise, keeping in view, the interest of the victim parties to receive 'Qisas ', 'Diyat and 'Daman ', the Hon'ble Supreme Court of Pakistan in the judgment dated 16th May 2017 passed in a case titled as Muhammad Aslam and others v . the State Criminal Appeals Nos.68 and 69 of 2013, has observed that: "Before parting with this appeal, it is essential to mention here that in the morning , considerable arguments were made on the point, as to whether the courts below have correctly applied sections 6 and 7 of the Anti Terrorism Act, 1997 when there is a conflict and direct clash between the entries in Schedule-I II appended to the Act and the provisions of section 2(x) and the substantive provision of section 6(1)&(2) of the Act, ibid. Whether the Schedule is subservient to the substantive provisions and whether in the Schedule merely providing that scheduled offences shall be triable by the Anti-T errorism Court exclusively , would also empower and vest jurisdiction in the Anti Terrorism Court to punish the accused/offenders under section 6 read with section 7 of the Act when the object/mens rea, which is twofold in such cases, the one to commit a criminal act and the other that while committing the criminal act, to achieve object of putting the society/people at large under fear or sense of insecurity and whether application of the provision of sections 6 and 7 of the Act would not deprive the legal heirs of the deceased to take "Qisas " or in the alternative to receive "Diyat " amount and whether the rights so veste d in then under the Islamic law, is indefeasible in nature. Similarly , "Arsh" and "Daman" to be received by the victims of assault due to bodily hurt, is equally not a vested right and whether they would be deprived of such basic right by applying sections 6 and 7 of the Act as in the latter case besides punishment by way of imprisonment, fine has also to be imposed which shall go to the government exchequer , however , in view of the intricacy of these law points, which have vital bearing and consequences on many cases, we leave it to be decided in another appropriate case." [BOLD ADDED](Sic)
8. In view of the Judgment laid down by the Hon'ble Supreme Court of Pakistan , we are in agreement with the contentions of the learned counsel for parties that the case of appellant is one of the personal vendetta and previous enmity , which does not fall within the purview of terrorism, which should be tried by an ordinary Court.
Accordingly , the appeal is partly allowed. The impugned judgment dated 10th August 2018 passed by learned Special Judge, Anti-T errorism Court Pishin, is set-aside and the ease is remanded to the Court of learned Sessions Judge Pishin for de novo trial in accordance with law .