KHADIM HUSSAIN TUNIO, J. Through captioned petition, petitioner has called in question the order dated 20.05.2020, passed by learned Judge Anti-Terrorism Court, Naushahro Feroze.
2. Precisely facts of the prosecution case are that the complainant Abdul Rauf lodged FIR No. 56 of 2019 at Police Station Muhbat Dero, stating therein that on 30.07.2019, complainant along with his brother Saeed Roshan Zameer, relatives Javed Miandad and Muhammad Maroof were present at their land when accused persons armed with weapons appeared there, asked the complainant party as they have failed to pay the extortion money, or they will not be spared and then caused hatchet and dagger blows to Saeed Roshan Zameer and went away. Thereafter, another FIR was lodged against them.
3. During proceedings of the case, petitioner moved an application under section 23, A.T.C. Act, 1997 before the trial court, which was dismissed through the impugned order dated 20.05.2020, which has been assailed by the petitioner before this court.
4. Learned counsel for a applicants contends that learned trial Court did not appreciate the facts and legal points involved in the case; that the alleged offence has no nexus with the requirements of sections 6 and 7 of the ATC; that the learned trial court has not given clear findings whether any acts of terrorism were committed; that as per the contents of the FIR, the motive as mentioned in the FIR is non-payment of extortion money but no specific date, month and time for demand of extortion money is mentioned; that during course of the investigation accused were declared innocent; that per FIR and material collected during investigation essential ingredients of section 6 of ATC Act, are lacking; that per FIR except alleged witnesses, no one else was available at the place of incident; that none of the prosecution witnesses deposed in clear terms regarding the element of terrorism being present; that the learned trial Court was duty bound to decide the point of jurisdiction; that the impugned order was passed as a result of serious error. Lastly learned counsel submits that the impugned order may be set aside and case may be remanded to ordinary court having jurisdiction.
5. Learned counsel for the complainant in one voice along with learned Additional P. G supported the impugned order and submit that the trial court has passed an elaborative order, which is sustainable. They submit that the instant petition may be dismissed.
6. We have heard the learned counsel for the parties and have perused the record available before us. The primary question that this court has to answer is whether the actions so performed by the petitioner are one that constitute an offence falling within the ambit of terrorism as envisaged under section 6 of Anti-Terrorism Act, 1997 or not. In order to answer this question, it is pertinent to refer to the case reported as PLD 2020 Supreme Court 61 (Ghulam Hussain and others v. The State and others), relevant paragraph of which is reproduced herein below:- "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-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 (I) 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 dd not qualify to be labeled or characterized as terrorism if such actions are taken in furtherance of personal enmity or private vendetta."
7. Moreover, the Hon'ble Apex Court, in the unreported case of Ali Gohar and others v. Pervaiz Ahmed and others (Cr. Petition Nb. 230 of 2019 and Cr. Misc. Application No.301 of 2019) has been pleased to observe, vide judgment dated 30.06.2020 that:- "This brings us to the merits of the very decision of the ATC transferring the case. To adjudge the legal correctness of the said transfer order of the ATC, it has to be seen, whether the facts alleged by the complainant in FIR No. 20 constitute an offence of "terrorism", as envisaged under section 6 of the Act. As to what would constitute an offence triable under the Act was aptly dealt with by a larger bench of this Court in the case of Ghulam Hussain v. The State (PLD 2020 SC 61) wherein, after deliberating exhaustively on the conflicting precedents, this court has held that:- "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-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 labeled or characterized as terrorism if such actions are taken in furtherance of personal enmity or private vendetta."
8. Similar views have time and again been taken by the Hon'ble Apex Court in cases reported as PLD 2018 Supreme Court 178 (Province of Punjab through Secretary Punjab Public Prosecution Department and another v. Muhammad Rafiq and others) and PLD 2009 Supreme Court 11 (Bashir Ahmed v. Muhammad Siddique and others).
9. The upshot of the above reported cases of the Hon'ble Apex Court is that motive and object behind the commission of a crime can be taken as a distinguishing factor in order to determine whether an offence falls within the jurisdiction of a terrorism court or a court of ordinary jurisdiction.
In the present case, the occurrence neither reflected any act of terrorism nor was it a sectarian matter, instead the murders in question were committed owing to previous enmity between the parties. It is a settled principle of law that if a murder is committed solely on the pretext of personal enmity, then such a murder will have no nexus with the provisions of section 6 of A.T.A., 1997 and will not be triable under the same. Moreover, the allegations of aerial tiring do not appear to us to be a case of terrorism as again the motive of the case was personal vendetta for the suspected murder.
The intention of the petitioner did not depict or manifest any act of terrorism as contemplated by the provisions of Anti-Terrorism Act, 1997,
10. For what has been discussed above, we found the present case to be one triable under the court of ordinary jurisdiction as the prosecution has failed to establish that the accused persons intended to create terror through their actions, therefore, the captioned petition was allowed vide short order dated 07.10.2020 and it was declared that the Special Case No. 49 of 2019 culminated from Crime No.56/2019 of P.S Muhbat Dero is a case of ordinary Sessions trial; as such, the proceedings which have been taken place before the Anti-Terrorism Court, is a coram non-judice.
The said case is withdrawn from Anti-Terrorism Court Naushero Feroz and entrusted to Sessions Judge Naushero Feroz with direction to try the same himself or entrust it to any other court having jurisdiction.
11. In view of the above order, C.P.D. 135 of 2020 filed by the learned Prosecutor, has become infructuous, therefore, the same is dismissed being so. Learned counsel for the applicant does not press the Cr. Bail Application No. D-35 of 2020, as he intends to file a fresh bail application before the Sessions Court therefore, Cr. B. A No.D-35 of 2020 is dismissed as not pressed.
These are the reasons for the short order even dated.