' M. JAVED BUTTUR, J.--- The application of the petitioner and his co-accused, Taj Muhammad, under section 23 of the Anti-Terrorism Act, 1997, for sending the case to the Court having plenary jurisdiction, has been dismissed by the Special Judge, Anti-Terrorism Court, Sargodha Division, Sargodha, hence, this Constitutional petition.
2. The relevant facts are that a case F.I.R. No,291, dated 15-7-2000, under sections 302/34, P.P.C. Was registered at Police Station City Mianwali, District Mianwali, against the petitioner and another. The complainant, Muhammad Ashraf, alleged in the F.I.R. That on 15-7-2000, at about 9-30 a.m. He alongwith Muhammad Anwar, Patwari, (brother of complainant's wife), Muhammad Akram and Muhammad Afzal, were going towards the Civil Hospital, that when they reached Civil Hospital Chowk, Mianwali, they entered a medical store while Muhammad Anwar, Patwari, (deceased) was standing at some distance from them, that all of a sudden Noor Khan (petitioner) armed with .30 bore pistol and the co-accused, Taj Muhammad, empty-handed, emerged there and on the Lalkara of Taj Muhammad, accused Noor Khan fired at Muhammad Anwar, Patwari, who fell down and died later on. The motive alleged in the F.I.R. Is that there was previous enmity between the parties over murders.
3. After the usual investigation, the petitioner and other co-accused were challaned and are now facing trial before the Special Judge, Anti-Terrorism Court, Sargodha Division, Sargodha. The petitioner and his co-accused filed an application before the learned Special Judge, Anti- Terrorism challenging his jurisdiction, and, as mentioned above, the same has been dismissed, vide the impugned order, dated 12-9-2000.
4. The petitioner, in this petition, has explained the background of the previous enmity that one Hashim (brother of the petitioner/accused) was killed by Muzammil Irfan (son of the deceased Muhammad Anwar, Patwari) regarding which occurrence F.I.R. No,5, dated 22-1-1996, under section 302, P.P.C. Was registered at Police Station, Chaklala, District Mianwali, and the present murder of Muhammad Anwar, Patwari, is the result of said enmity.
5. We have heard the learned counsel for the petitioner, the respondent No,2/the complainant and the learned A.A.-G. And have also perused the F.I.R. In hand and the impugned order.
6. It is an admitted position that the deceased was killed due to personal enmity and not due to or in the performance of his official functions. The learned Special Judge, Anti-Terrorism Court, Sargodha Division, Sargodha, has dismissed the application , on the ground that on 15-7-2000, the deceased Muhammad Anwar, Patwari, was posted at Piplan and in connection with official work, he was summoned at Mianwali and was done to death when he was on duty.
7. We are of the view that the argument of the learned counsel for the respondent/the complainant, that a perusal of the amended schedule of Anti-Terrorism Act, 1997 indicates that if the victim of a murder case under section 302, P.P.C. Is a member of police, armed forces or civil armed forces or a public servant, the accused of such a case is triable under the Anti-Terrorism Act, 1997 even if the murder had taken place on account of personal enmity and had nothing to do with the discharge of his official functions/duties, has no force. Such an argument was raised from the complainant's side before the Honourable Supreme Court in Mehram Ali and others v. The Federation of Pakistan and others PLD 1998 SC 1445 and was repelled by the apex Court and it was observed as follows:-- ' "It will suffice to observe that if a Government servant or any other employee of the Government functionaries is murdered because he belongs to the above service and that there was no enmity or plausible reason for commission of the above offence, such a killing is an act of terrorism within the ambit of the Act and can lawfully be included in the Schedule, but if the murder is committed solely on ground of personal enmity. Such a murder will have no nexus with the above provisions of the Act and will not be triable under the Act."
8. The abovementioned shows that the argument of the learned counsel for the petitioner has no force as the present case relates to a murder due to the previous murder enmity and the deceased, a public servant, was not killed because he was a Patwari or because of the performance of his official duties by him as Patwari. The reasoning of the trial Court that the case is triable by it because the deceased Patwari was killed at a time when he was on duty, although the same is also not free from doubt, cannot be adopted and does not appeal to us, as it would mean that when a public servant is killed while on duty, the case is triable by Anti-Terrorism Court and when he is killed during off duty hours it is not triable by it. The Act does not create any such classification.
9. We have also noticed that the trial Court has not bothered to examine as to whether the offence as alleged in the present case has any nexus with terrorism or with the object of the Anti-Terrorism Act, 1997 and the offences as mentioned in sections 6, 7 and 8 of the said Act. We have, therefore, examined the case from this angle as well and keeping in view the entire facts and circumstances of the present case, avoiding the repetition, we are of the view that the same does not involve the element of terrorism and has no nexus with the object of the above Act and the offences mentioned in sections 6, 7 and 8 of the above Act, as it is a simple case of murder due to previous murder enmity and it cannot be said that the same was committed in a manner which struck terror or created a sense of fear and insecurity in the people or in the section of people except the ordinary sense of insecurity which is created at the time of commission of every crime, otherwise every offence falling in the schedule of Anti-Terrorism Act, 1997 not having any nexus with terrorism object of the Act and the offences mentioned in sections 6, 7 and 8 of the Act, would be triable by Anti-Terrorism Court, which would amount to permitting trials, by Anti-Terrorism Courts, of the cases in violation of the guidelines laid down by the apex Court in Mehram Ali's case.' The Honourable Supreme Court has provided guideline to us in this regard also in Mehram Ali's case (supra) and has held as follows:-- ' "We are, therefore, of the view that the above section 34 is not ultra vires, but the offences mentioned in the Schedule should have nexus with the object of the Act and the offences mentioned in sections 6. 7 and 8 of the Act."
10. In view of the abovementioned, we are of the view that the Anti-Terrorism Court has no jurisdiction to try the present case. The writ petition is, therefore, accepted, the impugned order, dated 12-9-2000, passed by the Special Judge, Anti-Terrorism, Sargodha Division, Sargodha. Is set aside and the learned Special Judge is directed to send the present case to the Court having plenary jurisdiction. There is, however, no order as to costs.