' IFTIKHAR HUSSAIN CHAUDHRY, J.--- Criminal case F.I.R. No,156, dated 21-4-1998 under section 365, P.P.C. Was registered at the instance of Amjad Ali. According to complainant, he was married to Mst. Tahira P.W. On 21-11-1997. On 19-4-1998, his wife and brother, Asghar Ali had just left the village to participate in a marriage ceremony when they were abducted by show of fire-arm by Muhammad Afzal, Akhtar Ali, Abdul Sattar, co-villagers, and were taken away in the car. According to complainant, his wife was having with her Rs,8,000, 6 bangles and necklace at the time.
Consequently, criminal case under section 365, P.P.C. Was registered against the accused.
2. After investigation, report under section 173, Cr.P.C. Was submitted by police in the Court of Judicial Magistrate, Lahore. The accused-petitioners sought post-arrest bail from the trial Court which declined to extent concession to them on grounds of lack of jurisdiction, as according to it, offence under section 365, P.P.C. Was triable by Special Court constituted under Anti-Terrorism Act, 1997.
3. Cognizance of the case, thereafter, was taken by the Special Court, Anti-Terrorism-II, Lahore. The petitioner accused took an exception to this and challenged the jurisdiction of the Special Court.
The Special Court dismissed the application by order, dated 19-8-1998 by observing that offence under section 365, P.P.C. Was included in the Schedule to the Anti-Terrorism Act, 1997 and by virtue of provisions of section 12 of the Act, the Court had the jurisdiction to take cognizance of the matter.
4. Aggrieved, the petitioners filed titled Constitutional petition, which was admitted to hearing on 8- 9-1998. Learned counsel for the petitioners, A.A.-G., Punjab and learned counsel for the complainant have been heard today.
5. Learned counsel for the petitioners contended that a penal offence merely because of finding mention in the Schedule to Anti-Terrorism Act, 1997 would not, ipso facto, become a scheduled offence tribal exclusively by a Special Court but as laid down in Mehram Ali v. Federation of Pakistan 1998 SCM R 1156 it must have nexus with objects enumerated in sections 6, 7 and 8 of the Act which of course, was not the case in the present matter. It was argued that even if allegations be believed as true, the case would remain an ordinary case of abduction of a married woman and an insipid allegation, about show of force without mentioning the type of weapon used or manner of its employment, leveled by the complainant would not make it a case of commission of terrorist act and, thus, the Special Court had travelled beyond its jurisdiction by taking Cognizance of the case. It was argued that Mst. Tahira Parveen had gone to attend a marriage and then returned to her mother's house and this case was fabricated against the petitioners who were also related to the alleged abductee who neither was abducted nor recovered from the custody of petitioners. It was also submitted that no fire-arm weapon was recovered and petitioners were being penalized without any offence committed.
6. Learned A.A.-G. Submitted that observations of Supreme Court should be considered in the context of facts of Mehram Ali's case and that Anti-Terrorism Act, 1997 as it stood today conferred jurisdiction on the Special Court to take cognizance of the case in hand as it related to a scheduled offence as defined in section 2(c) of the germane law. Learned counsel for the complainant argued that it was not a case of simple abduction but offence was committed with show of force or display of arms and it was a terrorist act committed by the accused and case was tribal by Special Court, Anti-Terrorism Act, 1997. He relied upon Javed Malik v. The State 1998 M LD 1400 and Hitendra Vishnu Thakur and others v. The State of Maharashtra and others (1994) 4 Supreme Court Cases 602.
7. Terrorism may be defined as use of violence or terror, or threat of violence against a section of population, an establishment institution to attain I A objectives of that organization. These objectives could be political, socioeconomic, ethnic, ideological or religious. The terrorist organizations are usual micro-groups but States and State-Agencies have also been known to have engaged in acts of terrorism. Terrorism as criminal activity, a tool of violence or as anti- Establishment activity (using the terms in its widest sense) has existed C throughout known history and throughout the world. It was generated by political or religious zeal. In medieval times, terrorism had religious colors but by 18th century, it acquired political and revolutionary overtones.
Terrorism grew enormously in its sweep and intensity during the twentieth century. Now, not only the minorities or micro-groups are engaged in terrorism but majority groups are also using the weapon of terrorism for ethnic purging, elimination of D religious minorities or for achievement of political hegemony. Terrorism is now considered to be greatest threat to 'societies, nation State and civilization so much so that certain scholars believe that the nations are now threatened more by internal terrorism than by external aggression and it would be terrorism which would bring about changes in a nations geographic and political boundaries. In the sub-Continent, which has a long tradition of political agitation, terrorism initiated as a form of political and revolutionary activity but due to growing religious intolerance and fanaticism the innocent minorities became its targets. By passage of time, terrorism has turned into a huge monstrosity. It is not intended to dilate upon the etiology of terrorism in the country as it would be beyond the scope of this order but the fact of the matter is that the ominous specter of terrorism stares strakly in our faces. The need and desire to control curb and eliminate terrorism and sectarianism is genuine but the methodology to be employed has to be rational and balanced. A distinction between a terrorist act and a run-of-the-mill crime has to be maintained, because, as would presently be seen, it would be violative of the intendment of the Legislature to do otherwise.
8. The Anti-Terrorism Act, XXVII of 1907 was enacted on 20th August, 1997 to provide for the prevention of terrorism sectarian violence and for speedy trial of heinous offence. "Terrorist Act" is defined by section 6 of the Act as under:-- "Whoever, to strike terror in the people, or any section of the people, or to alienate any section of the people or to adversely affect harmony among different sections of the people does any act or thing by using bombs, dynamite or other explosive or inflammable substances, or firearms, or other lethal weapons or poisons or noxious gases or chemicals or other substances of a hazardous nature in such a manner as to cause, or to likely to cause the death of, or injury to, any person or persons, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community or displays fire-arms, or threatens with the use of force public servants in order to prevent them from discharging their lawful duties commits a terrorist act."
' The above definition of terrorist act bring out the acts reaps involved as Doing of any act or thing.--- By using bombs, explosives or hazardous in such a manner as to cause or likely to cause death of or injury to any person or persons, or damage to, or destruction of property or disruption of any supplies etc. Or display of fire-arms Threatens with the use of force Public Servants, in order to strike terror in the people, or Alienate any section of people or, adversely affect harmony among different sections of people."
Doing of an act or thing by using explosives or fire-arms display of fire-arms or deterring public servants from performance of duties, are offences under various penal statutes, but when these acts are coupled with the men's rea, intention, aim or objectives embodied in the above definition penal offences under ordinary law become terrorist acts. The operative factor of the predicate offence, thus, would be the particular intendment, men's read, or aim of the preparatory of the crime. The acts reaps alone would not make the predicate offence as a scheduled offence. The Supreme Court in Mehram Ali's case 1998 SCM R 1156 has held that offences mentioned in Schedule (to the Anti-Terrorism Act) should have nexus with the object of the Act and offences covered by sections 6, 7 and 8 thereof. The above dictum of the apex Court of the Country would take the case H, out of the purview of the Anti-Terrorism Act, 1997.
9. The case-law relied upon by the complainant does not advance his case. Judgment in Javed Malik's case 1998 M LD 1400 was passed prior to Mehram Ali case (supra). Hitendra Vishnu Thakur and others v. State of Maharashtra and others (1994) 4 SCC 602 a case from Indian jurisdiction under the Terrorist and Disruptive Activities (Prevention) Act, 1987, a legislation similar to Anti- Terrorism Act, 1997, favors the stance of the petitioners. The Supreme Court of India after referring to Usmanbhai Dawoodbhai Memon v. State of Gujara (1988) 2 SCC 271; Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimray Bijjan (1990) SCC 76, Kartar Singh's case (1994) 3 SCC 569 observed in paragraph 11 of the report:- "Thus, unless the act complained of falls strictly within the letter and spirit of section 3(1) of T.A.D.A.
And is committed with the intention as envisaged by that section by means of weapons etc. As are enumerated therein with the motive as postulated thereby, an accused cannot be tried or convicted for an offence under section 3(1) of T.A.D.A."
' In Usmanbhai's case (supra) the Court observed:-- "Therefore, when a law visits a person with serious penal consequences extra care must be taken to ensure that those whom the Legislature did not intend to be covered by the express language of the statute are not roped in by stretching the language of the law."
A matter, ordinarily, has to be dealt with in general jurisdiction and unless a case falls squarely within special jurisdiction, the forums created under special jurisdiction, cannot even touch those matters.
10. The case in hand relates to abduction of married woman which offence, prima facie, would be punishable by section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. A vague allegation about employment/show of fire-arm was leveled by the complainant in the crime report but that would hardly make that a terrorist act. The offence committed by the accused, obviously, had no nexus with object of the Anti-Terrorism Act, 1997 and cognizance of the case could not have been taken by the Special Court.
11. The Constitutional petition is allowed. It is declared that assumption of jurisdiction by the Special Court in the matter was without lawful authority. The prosecution is directed to submit final report before appropriate Criminal Court constituted under section 6 of the Code of Criminal Procedure.