SARDAR MUHAMMAD SARFRAZ DOGAR, J. This single judgment shall dispose of above captioned writ petitions filed by the petitioners in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calling in question the vires, efficacy and validity of order dated 05.11.2018 (hereinafter referred as impugned order") passed by the learned Special Judge, Anti-T errorism Court, Bahawalpur Division, Bahawalpur , whereby the application under Section 23 of Anti-T errorism Act, 1997 filed by the petitioners for transfer of case FIR No. 141 dated 6.7.2018 registered under sections 302/324/427/109/148/149 PPC and section 7 of Anti-T errorism Act, 1997 added subsequently , with Police Station City B Division, Rahimyar Khan, to the Court of ordinary jurisdiction was rejected.
2. Brief facts relevant for decision of both these writ petitions are that initially a case FIR No. 141 dated 6.7.2018 registered under sections 302/324/427/109/148/149 PPC and section 7 of Anti-T errorism Act, 1997 with Police Station City B Division, Rahimyar Khan, was lodged against the petitioners and others at the instance of Nawaz Sharif respondent No. 3 alleging therein the (he) complainant is resident of Chak No. 86/P, however , at that time, he was residing with his brother Mohammad Ali at Gulshan Nasir . On the day of occurrence, i.e. 06.7.2018, in the morning, he (complainant) alongwith his brother Mohammad Ali, Security-Guards Mohammad Akram, Maqbool Ahmad and Mohammad Javed was going to District Courts Rahim Yar Khan on a car bearing registration No. LEA- 5663, which was being driven by the complainant himself. At about 7.45 a.m. when they reached Tayyaba Milk shop near Jugnu Chowk Rahim Yar Khan, a car bearing registration No. RN-488 Silver colour Corolla came from right side and hit to their car. From Car No. RN-488 (1) Imran (2) Waqas (3) Bashir (4) Mohammad Azam, and (5)
Mohammad Asif, all armed with firearms came out and started indiscriminate firing and behind them 06 unknown persons on 03 motorcycles also came there. They were also armed with firearms, who also started indiscriminate firing. As a result of firing Mohammad Ali, brother of the complainant, Mohammad Akram, Maqbool Ahmad and Mohammad Javed were seriously injured. Mohammad Ali, Mohammad Akram and Maqbool Ahmad died at the spot. Azad Khan a passerby also died due to the firing of accused persons while Mohammad Ammar , Shair Ali Khan, Ashraf, Mujahid Sharif, Ibrar and he (complainant) were seriously injured. Upon their hue and cry Mohammad Ali son of Mohammad Azad, Mohammad Bashir , Sardar Ali, Moha mmad Aslam and some other persons came at the spot. On seeing the witnesses the accused persons ran away by brandishing their weapons.
The motive behind the occurrence was stated to be the previous enmity .
3. We have heard the learned counsel for the parties and have gone through the record of this case with their able assistance. We have also carefully adver ted to the precedent cases as well as the other material produced before us by the learned counsel for the parties.
4. The grievance voiced through this writ petition is that during the investigation of this case, section 7 of Anti- Terrorism Act, 1997 was added wrongly in the above-referred FIR and sought transfer of the case to a Court of ordinary jurisdiction claiming that the case does not involve 'terrorism' as defined in section 6 of the Anti-T errorism Act, 1997.
5. In order to determine as to whether the crime so committed by the petition ers fall within the provisions of 'terrorism' or otherwise, it would be essential to have a glance over Section 6 of the Anti-T errorism Act, 1997, which has been amended from time to time and in its present shape it provides as follows:-
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 Governm ent 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 or threat is made for the purpose of advancing a religious, sectarian or ethnic cause or intimidating and terrorizing the public, social sectors, media persons, business community or attacking the civilians, including damaging property by ransacking, looting, arson, or by any other means, government officials, installations, security forces or law enforcement agencies: Provided that nothing herein contained shall apply to a democratic and religious rally or a peaceful demonstration in accordance with law .
(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 including government premises, official installations, schools, hospitals, offices or any other public place or private property including damaging property by ransacking, looting or arson or by any other means;
(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;
(ee) involves use of explosive by any device including bomb blast or having any explosive substance without any lawful justification or having been unlawfully concerned with such explosive;
(f) incites hatred and contempt on religious, sectarian, or ethnic basis to stir up violence or cause internal disturbance;
(g) involves taking the law in own hand, award of any punishment by an organization, individual or group whatsoever , not recognized by the law, with a view to coerce, intimidate or terrorize public, individuals, groups, communities, government officials and institutions, including law enforcement agencies beyond the purview of the law of the land;
(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 communication system or public utility service;
(m) involves serious coercion or intimidati on of a public servant in order to force him to discharge or to refrain from discharging his lawful duties;
(n) involves serious violence against member of the police force, armed forces, civil armed forces, or a public servant;
(o) involves in acts as part of armed resistance by groups or individuals against law enforcements agencies; or
(p) involves in dissemination, preaching ideas, teaching and beliefs as per own interpretation on FM stations or through any other means of communication without explicit approval of the government or its concerned departments.
From the perusal of above-said definition of 'terrorism' and the precedent cases available on the subject, 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 personal 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 provisio ns of section 6 (1) (b) or (c) of the Anti-T errorism 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-T errorism Act, 1997. Reliance in this regard is placed on the judgment of the Hon'ble Supreme Court of Pakistan reported as "Ghulam Hussain and others Vs. The State and others" ( PLD 2020 Supreme Court 61 ), wherein the Apex Court of the country has held as under:- "16. For what has been discussed above it is concluded and declared that for an action or threat of action to be accepted as terrorism within the meanings of section 6 of the Anti-T errorism Act, 1997 the action must fall in subsection (2) of section 6 of the said Act and the use or threat of such action must be designed to achieve any of the objectives specified in clause (b) of subsection (1) of section 6 of that Act or the use or threat of such action must be to achieve any of the purposes mentioned in clause (c) of subsection (1) of section 6 of that Act. It is clarified that any action constituting an offence, howsoever grave, shocking, bruta l, gruesome or horrifying, does not qualify to be termed as terrorism if it is not committed with the design or purpose specified or mentioned in clauses (b) or (c) of subsection (1) of section 6 of the said Act. It is further clarif ied that the actions specified in subsection (2) of section 6 of that Act do not qualify to be labeled or characterized as terrorism if such actions are taken in furtherance of personal enmity or private vendetta."
6. Now, adverting to the contention of learned Assistant Advocate General assisted by the learned counsel for the complainant, that due to the firing made by the accused not only four persons of complainant party were done to death but one passerby , namely , Azad Khan was also killed besides the fact that 4/5 other passersby were injured seriously as such the act done by the accused persons against the passersby does not come within the ambit of previous enmity or personal vendetta and surely the sense of insecurity in the society , fear and panic spread in the general public which are the essential ingredients of terrorism, hence the police has rightly added section 7 of Anti- Terrorism Act, 1997. The only provision in the ATA, 1997 that may have relevance here is section 6 (b) which reads:-
6. Terrorism.- (1) In this Act, "terrorism" means the use or threat of action where:
(a) ................
(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) ........................"
From the perusal of above-said provision of law, the words "use or threat is designed" cover all situations mentioned in the said provision as each is followed by the word "or". For the present purpose the last of such situation would be relevant namely "the use or threat is designed to....... create a sense of fear or insecurity in society", thus, only that action is to be accepted as terrorism which action falls within the purview of subsection (2) of section 6 and such action is committed with a 'design' or 'purpose' specified in clauses (b) or (c) of subsection
(1) of section 6 of the Anti-T errorism Act, 1997 irrespective of gravity of an offence, shocking nature of the violence committed or mere fear and insecurity generated or likely to be generated by commission of a brutal, gruesome or heinous act are not to be treated as the yardsticks for determining whether an actio n is to be labeled as terrorism or not. Reliance is placed on "Ghulam Hussain and others Vs. The State and others" (PLD 2020 Supreme Court 61), wherein the Apex Court of the country has held as under:- "It is clarified that any action constituting an offence, howsoever grave, shocking, brutal, gruesome or horrifying, does not qualify to be termed as terrorism if it is not committed with the design or purpose specified or mentioned in clauses (b) or (c) of subsection (1) of section 6 of the said Act. It is further clarified that the actions specified in subsection (2) of section 6 of that Act do not qualify to be labeled or characterized as terrorism if such actions are taken in furtherance of personal enmity or private vendetta."
Apart from the above, in the case in hand, there is nothing on the record to show that the accused wanted to create fear or insecurity or terror in the vicinity where the occurrence took place. Even the facts so disclosed by the prosecution leave one in no doubt that the motive of the crime was previous enmity , hence, an act of terrorism is not to be confused with an ordinary crime committed in the background of a personal enmity or private vendetta.
Even otherwise, the ultimate object and purpose of the offending act must be to terrorize the society but in ordinary crimes committed due to personal vendetta or enmity , such elements were always missing, so the crime committed only due to personal revenge could not be dragged into the fold of terrorism and terrorist activities. Reliance is placed on "Province of Punjab v . Muhammad Rafique and others" (PLD 2018 Supreme Court 178).
7. In view of the discussion made abov e, it appears that the case in hand does not fall within the meaning of 'terrorism', which is purely of personal vendetta, as admitted by the complainant himself, hence not triable by the Special Court. Hence, both the writ petitions are allowed, the impugned order passed by the learned Judge, Anti- terrorism Court, Bahawalpur Division, Bahawalpur on 05.11.2018 is declared to be without lawful authority and of no legal effect and the same is set aside, as a sequel thereof, the application filed by the petitioners before the said Court under section 23 of the Anti-T errorism Act, 1997 is accepted and the petitioners' case is declared to be triable by a Court of ordinary jurisdiction. The learned Judge, Anti-T errorism Court, Bahawalpur Division, Bahawalpur is directed to transmit the record of the petitioners' case to the learned District and Sessions Judge, Bahawalpur forthwith for trial in accordance with law .