' ZAHID KURBAN ALVI, J.-This matter is a revision which has challenged an order dated 18-8-2002 passed by the learned Sessions Judge Ghotki. It is claimed that by this order the alleged offences for which the accused has been charged which do not fall within the meaning of terrorism as defined under section 6 of ATA and are triable by ordinary Courts. After discussing at length the various points involved in the case, learned trial Judge granted the pre-arrest bail to the accused Qutib. According to him in this order since the applicant/ accused Piaro and Qamaruddin have been arrested by police therefore, their pre-arrest bail application has become infructuous.
2. Being aggrieved with and dissatisfied by the impugned order the complainant has moved this revision application claiming that the order should be set aside and the matter should be transferred from the Court of Sessions Judge, Ghotki to the Court of Special Judge ATC.
3. He has narrated all the facts and thereafter he has levelled allegations that the police refused to submit the case to AT Court even though the offences mentioned in the F.I.R. Were triable by the ATC. Mainly the complainant wants the matter to be heard by the AT Court and has insisted that the offences mentioned in the F.I.R. Are those mentioned in the Schedule of ATA. He has further tried to justify this view points by insisting that the police and the accused are in league and therefore, they are not referring the matter to the proper forum.
4. The matter was fixed before a Single Bench but it was pointed out by two learned Senior Counsel that since ATC matters are normally heard by a Division to Bench, therefore, it would be appropriate if the matter is heard by a Division Bench.
5. We have heard at length learned counsel Mr. Habibullah Shaikh, Mr. Fatah Malik, learned D.A.-G.
Mr. Ghulam Dastagir Shahani, Additional A.-G. And Senior Counsel Mr. Imdad Ali Awan. Mr. Saifuddin has appeared on behalf of the applicant/complainant.
6. The F.I.R. Has been registered against the accused for offences under sections 396, 397, 398 and 427, P.P.C. Section 396 relates to dacoity with murder. Section 397 deals with robbery or dacoity with attempt to cause death or grievous hurt. Section 398, P.P.C. Deals with attempt to commit robbery or dacoity when armed with deadly weapons and 427, P.P.C. Deals with mischief causing damage to the amount of Rs.50.
7. In the Anti-Terrorism Act, 1997 as amended, the Act would be applicable if it is a scheduled offence. In the latest Act after amendments the Third Schedule has been altered and or amended and the relevant sections of the P.P.C. Have been removed. The Third Schedule contains only 3 conditions. The first condition is it has to be an act of terrorism within the meaning of this Act including those offences which may be added or amended in accordance with section 34 of the Act.
8. The second point is that it would be relevant in respect of any offence. Punishable under the Act.
The third is the attempt to commit or aid or abate or any conspiracy to commit any of the offences.
9. The relevant section which needs to be looked at is section 2 which deals with definition and terrorism has been defined as the meaning assigned to it in section 6.
10. Section 6 starts with subsection (1) which states, in this act terrorism means the use or threat of action where (a) the action falls within the meaning of subsection (2) and (b) the use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect to create a sense of fear or insecurity in society (c) the use or threat is made for the purpose of advancing a religious sectarian or ethnic cause.
11. Section 6(ii) defines an action which shall fall within the meaning of subsection (i) if it involves doing or anything that causes death, involves grievous violence against a person or grievous body injury or harm to a person.
12. The subsection (ii) of section 6 is further divided into several concepts. It is further then divided into section 6(iii).
13. Learned counsel who have argued this matter before us at length have dealt with section 6 and the punishment under section 7. It is once again repeated that any act mentiofled in section 6 and its subsections, has to have a nexus with terror. It is mandatory that the acts have to fall within the ambit of section 6(i)(b)(c). Learned counsel has also narrated the brief judicial history starting from the historical Mehram Ali's case and coming to the recent case reported in PLD 2003 SC 224.
After discussing all these cases at length, Mr. Habibullah Shaikh insisted that the facts have to be gaTie through and based upon the facts motive should be the key word. The motive or the objective of the act would retain it within the meaning of a terrorist act or make it triable by an ordinary Court of law. He also dealt at length on the concept of sensationalizing an ordinary crime with the objective to creating a stir in the society. To that extent he emphasized the role played by the media. He also emphasized the fact that if a ordinary labour was killed it would be reflected in the middle page of the daily newspaper but if a justice was killed then it would make the front page. The importance that one attaches to an act which in the instant case would be murder simpliciter but consideration the stature of individual it would have to be looked into as to what was the objective behind such an act.
14. Mr. Abdul Fatah Malik, whilst agreeing with the views of Mr. Habibullah Shaikh, pointed out that the act has to communicate a message. If the message succeeds in instability, fear, sense of insecurity and results in destabilizing the every day life of the community then it would definitely amount to terrorism.
15. Mr. Imdad Ali Awan also voiced the same opinion and emphasized that whether it is dacoity, robbery, ordinary theft or murder (simpliciter), the motive and the objective of the act is of utmost importance. He also emphasized the fact that since time immemorial these acts have been a part of our society. They are in fact a part of a society anywhere in this world. Crime, Law and Order go hand in hand with social uplift. It would be an idealistic society if there was no crime. However, as old as crime is the effort to eliminate it. Unfortunately society has not succeeded. To that extent he also drew our attention to the various special enactments that have been introduced from time to time. The special laws that have tried to override the general laws. Perhaps in order to overcome in the effective implementation of the tried and tested laws special laws are created. To that extent he dreiv our attention to the Anti-Corruption Act, the Ihtesab Act, the NAB Ordinance, the Excise Act and the CNS Act. The P.P.C. And Cr.P.C. And S.T.A. Act and A.T.A. He further emphasized that special laws so created out of political expediency results in duplication of adjudication. It also gives a free hand to the Law Enforcement Agencies to prosecute an accused depending on certain contingencies.
16. The counsel for the applicant Mr. Saifuddin Shah has dwelt at length on the fact that the act is an act of terrorism. He further emphasized that even though the schedule had been changed a notification has to be issued. According to him since no notification has been issued therefore, the old schedule shall remain.
17. He has strongly relied on the psychological aspect of terrorism which has been also strongly propounded by the Honourable Supreme Court in the case of Muhammad Mushtaq v. Ashique Hussain PLD 2002 SC 841. In this case their Lordships were of the view that the criteria to determine what is a terrorist's act would be based upon the act itself. If the act creates a sense of fear or insecurity in the mind of general public, disturbing the tempo of life and tranquillity then it would amount to terrorism. They have further gone to hold that ordinary crimes are not to be dealt with under A.T. Act. The physical harm is not the only criteria to determine the question of terrorism.
What is to be seen is the psychological effect produced by that act on the society as a whole. This particular case is related to a murder of the relatives of the complainant at 9-15 a. In. On the Court Road near District Court. Lahore.
18. In the case of Shahsawar v. State 1998 PCrLJ 1758.
19. In this case a question had come up whether the AT Court had jurisdiction to try a case under sections 302, 394, 353. 186 and 324, P.P.C. As well as sections 12 and 38 of the AT Act in connection with the cases that had occurred prior to the enactment of the AT Act. The Court came to a finding that in case if offence was committed with a cannon, grenade, bomb or rocket or if a victim was a member of police, armed forces or civil armed forces or is a public servant then it can be tried by a Special Court even if the offence had taken place before the enforcement of Act. In the particular case, the Police Constable had been killed and the Court was of the opinion that the AT Court has jurisdiction. The Court further held that Special Courts must take care in conducing the trial in accordance with the prescribed legal procedure and principles governing administration of criminal justice so as to inspire public confidence. Interest of justice and fairplay should not be sacrificed at the altar of speedy trial.
20. In the case of Ismat Naureen v. Additional Sessions Judge. Attock and another PLD 1998 Lah.
275.
21. In this case a Division Bench of the Lahore High .Court held that scheduled offence being exclusively triable by Special Court constituted under the AT Act, any case involving such an offence pending before any Court stood automatically transferred by operation of law and no formal order was required. They were of the opinion that the non-obstinate clauses had to be given overriding effect in relation to' the provisions contained in other laws except the Constitution.
22. In the case of Faisal Iqbal v. The State and 3 others PLD 1998 Lah.
371. B. Even in this case, the Single Judge of the Lahore High Court held that prima facie a scheduled offence which was shown to have been committed, can only be tried by the Special Court and any case pending in any other Court would . Stand. Automatically transferred. Once again the emphasis was on the schedule to the AT Act, the Single Judge has heavily relied upon several judgments of the Honourable Supreme Court.
24. In the case of Shaikh Muhammad Amjad v. The State 2002 PSC (Crl.) 676.
25. In this case a Division Bench of this Court while dealing at length with the concept and principles of the AT Act, has held that criminal act of ordinary nature or a normal crime has to be distinguished. They came to the conclusion that if, any offence is committed to avenge an enmity or dispute or to settle a score on account of any known and visible reasons in the conduct of human being or a crime is committed in relation to the life, liberty, property, honour and dignity of any person which is taken by the society as a normal crime or a criminal act of ordinary nature, it remains confined to the commission of any offence simplicity and does not amount to an act of terrorism. However, if an offence is committed without any background of any enmity, dispute, provocation or any known and common reason for commission of offence and the nature, manner and method of the commission of offer is such that the public-at-large individually and collectively feel apprehension that anyone of them can at any time be subjected to similar act of brutality and callousness it takes the publicat-large and society or a particular group or sect of society into the grip of apprehension, sense of insecurity, fear and intimidation, disturbing the physical and mental peace and tranquillity of the people, giving impression that the writ of Government has been rendered ineffective, with the result that nobody is safe in pursuing ordinary pursuits of life, then such acts certainly amount to an act of terrorism as defined in section 6(1)(b) of the ATA.
26. In the case of Farhan Zafar and others v. The State PLD 2002 Kar.
311.
27. In this case a criminal revision had been filed requesting for transfer of the case relating to vehicle snatching and criminal trespass to the Court of Session. It was contended that by an amendment in the Ordinance, the offences involved had been deleted and were no longer triable under the AT Act, therefore, the Court of Session or any other Court was competent to try the cases and the same were covered by section 39-B(ii)(e) of the Act. The Court came to the conclusion that since the schedule had been changed and since the cases of vehicle snatching and criminal trespass (illegal Qabza) were not covered by the AT Act, therefore, the same could not be tried by these Courts.
28. In the case of State through Advocate-General N.-W.F.P., Peshawar v. Muhammad Shafique PLD 2003 SC 224.
29. In this case it was observed that to constitute terrorist act it was not necessary that the commission of murder must have created panic and terror. It was mandator\ upon the Court to see whether the act way such as to create a sense of fear or insecurity in the minds of the public or any section of the society. Psychological impact created upon the mind of the public have to be kept in view. It was not necessary that the act should have taken place in front of the general public. An act having taken place in a barbaric and gruesome manner and if it had created fear and insecurity then it would come within the ambit of AT Act.
30. In the case of Abdul Razak Butt v. Kalsoom Bibi 1999 M LD 30, case on the principles of special law overriding the general law was upheld and it was also held that whenever there was any conflict then the special law would override the principles of general law.
31. In the case of Orangzeb alias Zaibi and another v. The State 2001 PCr.LJ 1516.
32. In this case the Court was of the opinion that Special Court shall only assume jurisdiction when the weapon used in the offence is the kind of weapon mentioned in the schedule when such an ingredient is missing then ordinary Court shall have jurisdiction. In this case even though the person who was killed was a school servant but he was murdered on account of civil litigation going on between the parties. As such the case did not come within the purview of the AT Act.
33. The counsel also relied on the case of State v. Muhammad Shafi reported in PLD 2003 SC 224.In this case the murder was committed by the accused by sprinkling patrol and then by shooting at him with K.K. The charred body was brought in the locality of the residence of the deceased which created a sharp reaction of anger, fear and repugnance in the minds of the people.
34. In the case of Jehanghir Akhtar Awan v. The State, reported in PLD 2000 Kar.
89. Mr. Justice Nazim Hussain Siddiqui, the Chief Justice (as he then was) has observed that based upon the facts, it seems that some unknown persons had kidnapped a doctor. The case was registered before the Sessions Court but was ordered to be transferred under the Anti-Terrorism Act. The application was moved by the complainant for transferring the case from the Sessions Court. The matter was brought before the High Court to consider whether the matter should be heard before the A.T.C. Or the Sessions Court. Whilst disposing of the case the Court observed that an act of terrorism is pre-planned and organized system of intimidation. Its requisites and attributes are such its affects are made known to the people and widely circulated with exaggeration. The act is neither hidden nor disguised. The act which is committed should have the sole object of terrorizing the people and make them feel insecure. In the present case the alleged murder took place as it was claimed that the deceased had illicit relations with the wife of the petitioner.
35. We have discussed at length the concept and principle of terrorism. Also discussed at length the various cases pertaining to terrorism and the view points that have been enumerated in detail by the Honourable Supreme Court as well as the High Courts. We have also gone through the judgment/order which has been impugned. The Court below has looked at all the aspects of the case. We have considered sections 3 and 7 of the A.T.A. And the recent pronouncements of the High Courts and Supreme Court. Keeping them in mind he has indeed passed a detailed order. We would therefore, based upon the above, dismiss this revision application and upheld the order passed by the trial Court. Accordingly revision application stands dismissed.