ROZI KHAN BARRECH, J.---By means of instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has called in question the validity of the order dated 18.06.2020 (hereinafter "the impugned Order ") passed by learned Additional Sessions Judge (MCTC) Harnai (hereinafter "the appellate Court ") whereby application for transfer of the case to the Court of Anti Terrorism Court was dismissed.
2. Consciously the facts for disposal of the instant petition are that on.18.06.2020 the complainant Haji Humayun Shah lodged FIR No.24 of 2008 at Police Station Saddar Harnai for an offence under sections 302, 34, P.P.C. with the averments that on the aforementione d date he along with his son Dilawar Shah, Malik Gul Shah Khan and Rehman Shah went to Khozi Khula for a tribal settlement in a Parado vehicle bearing registration No.1K2. After returning from the said place they were coming towards Harnai. In the way they take a short break at Injeer area for the purpose of drinking water . Meanwhile, two persons namely Muhammad Hayat son of Muhammad Din and Meer Gul son of Murtaza alias Khan Bahadur being equipped with deadly weapons while riding a racer motorcycle arrived there and opened fire upon the vehicle as result complainant's son Dilawar Shah and Gul Shah Khan died at the spot while complainant and Rehman Shah rescued themselves.
3. After completion of investigation challa n was submitted before the trial Court under section 512, Cr.P.C., and on conclusion of trial the accused was arrested and supplementary challan Was submitted before the trial Court. The complainant filed an application for transfer of case to the Court of Anti Terrorism Court before the learned Additional Sessions Judge (MCTC) Harnai and the same was dismissed on 18.06.2020. Hence this petition.
4. We have heard the learned counsel for the petitioner and have minutely gone through the available record. For determining the issue whether a case is triable under the Anti Terrorism Act, 1997 or not Courts are required to examine the FIR, the statements recorde d under section 161 Cr.P.C., the material collected by the investigating agency and other documents available with the prosecution. The inclusion of surrounding circumstances, depicting the commission of the offence, prima facie permits taking into considering the documents/material, came on to surface with regard to the previous enmity or the dispute. Under these circumstances, question to be decided, in this constitution petition is that whether in view of the circumstances and facts mentioned supra, the act of the accused persons constitute an offence falling within the scope of terrorism as envisaged under section 6 of Anti Terrorism Act, 1997 or otherwise. The terrorists operate on a level different from that on which ordinary criminals operate, their operations and tactics are different and the offence of terrorism is more concerned with the object and design behind an action than with the action itself. In order to qualify as terrorism an act must be designed to accomplish a larger objective and the same is not primarily directed against the actual victims themselves who are treated merely as 'collateral damage'. It is also quite evident that the extent of the actual damage caused or injuries inflicted by the act is not the determinative factor in this regard. A ferocious action against neutrals that has no dogmatic, conceptual or religious aims is just an act of criminal delinquency , a crime, or simply an act of senselessness unrelated to terrorism. The august Supreme Court of Pakistan in the recent judgment passed in the Criminal Appeals Nos.95 and 96 of 2019, Civil Appeal No.10-L, and Criminal Appeal No.63 of 2013 has enunciated the following binding principle:- "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 Terrorism 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 within the design or purpose specified or mentioned in clause (b) or (c) of subsection (1) of section 6 of the said Act. It is further clarified that the actions specified in substation (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".
Thus, in our view there is no evidence to suggest that the alleged offence was committed by the accused with any design, purpose, intention and mens rea of causing terrorism.
In view of what has been discussed above, the order dated 18.06.2020 passed by learned Additional Sessions Judge, (MCTC) Harnai is upheld and the petition filed by the petitioner is hereby dismissed in liminie .