FAHIM AHMED SIDDIQUI, J. The instant Criminal Revision Application is directed against the order dated 04-08-2018 passed by the learned Presiding Officer, Anti-Terrorism Court, Khairpur Mir's in Special Case No. 56/2015. Through the said order, the learned trial Court declined the plea for transfer of the aforementioned Special Case to the regular Sessions Court.
2. The factuality of the case as laid down in FIR No. 43/2015 lodged at PS Agra is that one Sahib Khan Kanasro, a practicing advocate was allegedly murdered by the applicants and others. The FIR lodged by the son of the deceased indicates that the murder was caused due to a previous murder of Mir Muhammad Pitafi belonging to the applicants' community in which persons of Kanasiro were involved. Allegedly, the applicants and other accused were annoyed as the deceased and complainant, being advocates, were providing legal assistance to those who were involved in the murder of Mir Muhammad Pitafi.
3. The learned counsel for the applicants contends that the deceased was murdered by some unknown persons and the applicants and others have been nominated with malice and ulterior motives. According to him, the police have wrongly applied section 7 Anti-Terrorism Act, 1997 in the FIR, while in the peculiar background, it is not a case of terrorism. He contends that it is mentioned rather admitted in the FIR that there exist blooded foe between Pitafi and Kanasro communities, as such the same is the motive of false implication of the applicants. According to him, it will not only be harsh but contrary to the scheme of law to try this case before an Anti-Terrorism Court, as such it will be appropriate to affirm that the instant case is a matter of personal vendetta, and after declaring that it is not a case of terrorism, direct to transfer the case to the regular sessions court.
4. In contrast, Mr. Chohan, learned counsel for the respondent opposes the instant application.
According to him since the deceased was a renowned advocate, as such the case against his murderers ought to be tried before the Anti-Terrorism Court, hence impugned order is not against the spirit of the law. According to him, the enmity is not between the two communities but only a small faction of both the communities entangled under hostility due to which blood had stained the earth but the deceased had nothing to do with such enmity. He submits that even the deceased or the complainant have not appeared for any of the inimical party in any Court as lawyers.
5. The learned prosecutor submits that it is a fact that the deceased was killed due to pre-existent enmity and such background is to be considered. He submits that it will cause no harm if the deposition is allowed to be recorded before the present forum, thereafter, the learned trial Court may reconsider the proper forum of trial in the light of the evidence available on the record.
6. We have heard the arguments and have gone to the relevant record. It is an admitted fact that the complainant in the body of FIR has categorically stated that the incident has taken place due to the murder of one Mir Muhammad Pitafi. It is also an admitted position that the nominated accused persons belonging to 'Pitafi Community'. It is also irrefutable that in the murder of Mir Muhammad Pitafi nominated accused were belonging to and 'Kanasiro Community', which indicates that the complainant party admits regarding disputation between two communities in which till the present incident, one person has already lost his life. Now a question arises, the deceased was a renowned advocate of the locality and his murder might have created a sense of insecurity amongst the legal fraternity. In this respect, our view is that the learned counsel for the respondent/complainant himself has admitted that neither the deceased nor his son, i.e. the complainant, have ever appeared in any legal matter concurring the murder of the person belonging to Pitafi Community, which indicates that at least the murder was not caused on account of extending legal assistance to the accused belonging to Kanasiro community. In these peculiar circumstances, we are convinced that the murder of the deceased was motivated on account of already running blood foe between the two communities, which certainly has not caused a general sense of panic amongst the legal fraternity. It is also worth noting that neither the murder of the deceased was caused due to his activities as an advocate nor it was done within or around the courthouse, wherein the deceased was practicing as an advocate. So far as to the contention of the learned counsel for the respondent/complainant is concerned that it was a disputation between small factions of two communities, we have different opinion. By saying so, perhaps Mr. Chohan wants to say that since the rival groups were small in number, as such it is not the enmity of such a scale that will count the life of the deceased to satisfy the animosity between the two communities. We do not find ourselves in agreement with such contention of the learned counsel for the respondent/complainant. It will make no difference that only a small group is involved in the enmity rather it is the reason to declare the matter as a personal vendetta. Lest there was a mass scale conflict between the two communities, it will not amount to personal rivalry and in such a situation it may be declared an act of terrorism. Here in this case both the parties belonging to the same locality and although they belong to two different communities or tribes but their animosity is limited to a close circle of the two communities at local level, as such it amounts to personal vendetta or enmity.
7. Nevertheless, it is now settled that the act of terrorism not only depends upon the gruesome, brutality, violence, and ruthlessness but it is the design and purpose, which attracts the definition of terrorism as mentioned in clauses (b) and (c) of subsection (1) of section 6 of Anti-Terrorism Act. In this respect, we would take reliance from a recent judgment of the Hon'ble Supreme Court reported as Ghulam Hussain and others v. The State and others (PLD 2020 SC 61) wherein it is held as; "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, 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 labelled or characterized as terrorism if such actions are taken in furtherance of personal enmity or private vendetta."
8. We also consider that it is least necessary to record evidence before passing an order about the jurisdiction of the trial Court. We are of the view that it is against the scheme of law. It has to be decided at the very initial stage on the basis of available material whether the offence pertains to the ambit of terrorism or not. If the court is satisfied that the offence needs to be tried by the regular criminal court, such order should be passed immediately and if the court decides otherwise, then the matter is to be tried by an Anti-Terrorism Court and after trial, the final verdict is to be pronounced by the same Court. In this respect, we would like to take reliance from the case of Ali Gohar and others v. Pervaiz Ahmed and others (PLD 2020 Supreme Court 427); "In regard to the contention of the learned counsel to delay the decision of the transfer of the case till evidence is recorded in the case, we are not convinced to agree therewith. Once we conclude that ATC had legally requisite material available to decide the issue of transfer of the case, and that the decision so taken was legally correct to hold that it lacked jurisdiction to try the case, it would against the cardinal principle of safe administration of criminal justice to then clog the authority vested in the ATC under section 23 to transfer the case or for that matter direct it to proceed with the trial."
9. In view of the above discussion, we have no hesitation to declare that since the incident in the instant case is motivated on account of a pre-existing enmity; therefore, the same is to be tried as a regular sessions case instead of an anti-terrorism case. Resultantly, we set aside the impugned order and hereby direct that Special Case No. 56/2015 pending before the Anti-Terrorism Court, Khairpur Mir's is to be treated as the case of a regular session case and the same is withdrawn from the present trial Court and entrusted to the Sessions Court, Khairpur with direction to the learned Sessions Judge to try the same himself or transfer any other court having jurisdiction in his sessions division. Revision application is disposed of in the above terms.