' RIAZ KAYANI, J.--- Imam Ali alias Shaukat Ali has called in question the order of the Special Judge, Anti-Terrorism Court No,I, Lahore, dated 1-11-1999 whereby he assumed jurisdiction in the case registered vide F.I.R. No,362 of 1999 with Police Station Defence, Lahore on 18-5-1999 under section 302, P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997 in which the petitioner is arraigned as a single accused.
2. Facts of the case as they emerge from the F .1. R . , necessary to be dilated upon, for effective adjudication, are that Umair Tahir resident of 69-C, Defence Housing Society, Lahore, in his complaint to the police stated at 11-30 a.m. He alongwith his maternal-uncle Wali Ullah Wasif and his paternal-uncle Muhammad Saeed Chaudhry were present at the ground floor of his house when the call bell rang and to answer the same he went out and found Shaukat Ali, Carpenter who was called to change the bolts of the bed. Carpenter was ushered inside and taken. To first floor in the living room to attend to the work called for. Shaukat Ali, present petitioner, is stated to have worked at the house for the last about 4/5 years and knew all the family members. Wife of the complainant went upstairs with a jug containing Sharbat and a glass to be given to the carpenter on his request. After 10/15 minutes they heard shrieks and all three of them went upstairs and saw the lady Shamila lying on the ground with her face towards the floor with both her hands and legs tied with a string of Shalwar and Shaukat Ali was found tightening the noose of Dopatta around the neck of his wife Shamila, who after seeing the witnesses managed to escape from the other door.
Shamila was taken to the hospital but succumbed to the injuries soon after reaching Adil Hospital.
3. Case was registered on 18-5-1999 at 1-20 p.m. Under section 302, P.P.C. But later, on 16-8-1999 section 7 of the Anti-Terrorism Act, 1997 was also added.
4. Petitioner moved an application before the trial Judge praying that the case be transferred from his Court to the Court of ordinary jurisdiction competent to try the same. The said application was dismissed vide order, dated 1-11-1999 now impugned in the instant writ petition.
5. Learned counsel contended that in order to attract the jurisdiction of the Court constituted under the .Anti-Terrorism Act, 1997 it was essential that the case of the accused should be attracted not only by the offences in the Schedule appended to the Act but also in accordance with the decision of the apex Court pronounced in the case of Mehram Ali etc. v. Federation of Pakistan etc. PLD 1998 SC 1445 should have nexus with the objects enumerated in section 6 of the Act. Taking his argument to its logical conclusion it was submitted that offence was neither attracted by the Schedule nor it had nexus with the objects enumerated in section 6 of the Act as the act which caused death was not committed with a cannon, grenade, bomb, rocket or a light or heavy automatic weapon or with a lethal weapon and secondly the act of violence complained in the case did not cause terror in the mind of the public. Schedule appended to the Act is reproduced as under for facility of reference:-- ' Schedule (See section 2(c)
(1) Any offence punishable under this Act.
(2) An offence punishable under any of the following sections of the Pakistan Penal Code (Act XLV of 1860), namely:--
(a) Section 302.--
(i) if committed with a cannon, grenade, bomb, rocket or a light or heavy automatic weapon;
(ii) if the victim is a member of police, armed forces or civil armed forces or is a public servant;
(iii) if there is more than one victim;
(iv) the victim was subjected to cruelty, brutality. Torture or burning; or
(v) if committed for or in committing the offence of robbery or dacoity;
(b) sections 295-A, 364-A, 365 or 396, and
(c) sections 392 to 395, 397 or 398.
(i) if in committing any of the above offences the offender or offenders of murder of Zina-bil-Jabs punishable under sections 6, 7, 8 or 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979).
6. Section 6 of the Anti-Terrorism Act, 1997 reads 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 fire-arms, 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 of 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."
7. Learned counsel for the complainant although did not file any reply yet advanced arguments refuting the points raised by the learned counsel for the petitioner and supporting the order of the Judge, Anti-Terrorism Court No,l.
8. We have considered the arguments of the learned counsel of the respective parties and have also gone through the record minutely. Clause (iv) of the Schedule appended to section 2(c) of the Act reads as under:-- "the victim was subjected to cruelty, brutality, torture or burning."
In the instant case going through the post-mortem report we have observed that 15 injuries with a blunt weapon were caused to the deceased lady. Probably these injuries were caused by the perpetrator of the crime to persuade the lady to submit to his lust and upon her refusal to do so time and again blows were given and finally when the ulterior motive could not be attained she was put to death by strangulating her with her Dopatta put around her neck. We have no doubt, in our mind, that the victim was subjected to abject cruelty, therefore, the act of the accused allegedly falls in clause (iv) of the Schedule. The matter, however, does not end her. The act although falls under the Schedule, should have some connection or nexus with the provisions of section 6 of the Act. In section 6 of the Act the violence which resulted in the death of the victim should strike in the minds of the people terror and secondly the death has to be caused with weapon enumerated or with a lethal weapon.
9. The word "terror" as defined in Black's Law Dictionary is as under:-- "Terror. Alaram; fright; dread, the state of mind induced by the apprehension of hurt from some hostile or threatening event or manifestation; fear caused by the appearance of danger. In an indictment for riot at common law, it must have been charged that the acts done were ' to the terror of the people' . " ' and the word "terrorism is defined as act of terrorism", which amounts to an activity that involves a violent act or an act dangerous to human life, that is a violation of the criminal laws of State, and appears to be intended:--
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a Government by intimidation or coercion, or
(iii) to affect the conduct of a Government by assassination or kidnapping.
' Similarly the word "lethal weapon" has been defined as a deadly weapon.
10. Admittedly the death of the lady was not caused by using bomb, dynamite or other explosive or inflammable substances, or fire-arms or noxious gases or chemicals or other substances of a hazardous nature. We then have to see whether death caused by strangulation with Dopatta around the neck amounts to death caused by a lethal weapon. To our ntind, the answer is in the negative. A lethal weapon is that weapon which by its use does not allow the victim the slightest chance to defend himself against the onslaught and keeps him at bay as long as the aggression continues. Presence of 18 injuries on the body of the deceased lady shows that she made every effort to free herself from the stranglehold of the accused but failed and ultimately succumbed.
Strangulation, to our mind, with a Dopatta by tightening the noose, would, therefore, amount to cause death by a lethal weapon. In order to apply the provisions of section 6 effectively to an act, to bring it within its ambit, a distinction has to be made between the "Terrorist act" and a run-of the mill crime. The act which results in death has to be an act of violence and mostly violence is perpetrated with a weapon. Weapons enumerated in section 6 are bombs, dynamite or other explosive or inflammable substances, or fire-arm or similar weapons of lethal character, or poisons or noxious gases or chemicals or other substances of a hazardous nature. A crime of murder perpetrated by weapons other than those mentioned in section 6 would not attract its provisions and trying to bring it within its ambit, would be doing violence to the intention of the law giver.
11. Similarly as enunciated by the apex Court in the case of Mehram All etc. v. Federation of Pakistan etc. PLD 1998 SC 1445, the offence committed must have some nexus with the object enumerated in sections 6, 7 and 8 of the Act. Strangulation of a house-wife by a carpenter employed to repair the bed is not a case likely to cause terror in the minds of the people, if we go by the definitions of the words "terror" and "terrorism" reproduced above. As held in Mehram Ali's case if the offences mentioned in the Schedule do not have nexus with the object of the Act and offences covered by sections 6, 7 and 8 thereof, the case would not fall within the purview of the Anti-Terrorism Act, 1997.
12. In the case of Kartar Singh v. State of Punjab (1994) 3 SC 569 in para. 11 of the report it was observed as under:-- "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."
13. In the case of Usmanbhai Dawoodbhai Memon v. State of Gujrat (1998) 2 SCC 271, 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."
The murder case has to be dealt with by the Courts having general jurisdiction and unless a particular case on all fours, falls within the ambit of law provided for Special Courts, the forums created under special jurisdiction, cannot embark upon the trial of those matters.
14. The case in hand relates to killing of the deceased lady by ordinary means of strangulation, has no nexus with the object enumerated in section 6 of the Act. Therefore, cognizance of the case could not have been taken by the Special Court.
14-A. The upshot of the discussion; therefore, is that this petition is allowed and it is declared that assumption of jurisdiction by the Anti-Terrorism Court No,1, Lahore in the matter was without lawful authority. The prosecution is directed to submit its final report before the appropriate criminal Court constituted under section 6 of the Code of Criminal Procedure.