Asif Saeed Khan Khosa, J.--Terror, as a manifestation of horror, shock or disgust, is known to human society and civilization since times immemorial but terrorism, as an 'ism' or an articulated pattern of thought and activity, is relatively of a recent origin. It is the distinction between the two that is the subject of the present judgment.
2. At about 8.30 p.m. on 24.4.2001 four persons were murdered and eight others were injured in village Behroopgarh situated in District Gujranwala in an assault carried out by one group of persons against another in furtherance of an on-going private enmity. FIR No, 103 was registered at Police Station Alipur Chatha, District Gujranwala at 10.15 p.m. during the same night in respect of the said incident for offences under Sections 302/324/452/436/148/149, PPC and the present petitioner was nominated therein as one of the perpetrators of the alleged offences. The motive set up in the FIR was an on-going murder-feud between the parties and a refusal of the complainant party to enter into a compromise with the accused party in a recent case of a murderous assault. After completion of the investigation a Challan was submitted in the said case before the Anti-Terrorism Court-II, Gujranwala Constituted under the Anti-Terrorism Act, 1997 for holding a trial. An application was submitted by the petitioner and another before the learned trial Court under Section 23 of the Anti-Terrorism Act, 1997 seeking transfer of the case to a Court of ordinary jurisdiction claiming that the case did not involve 'terrorism' as defined in Section 6 of the Anti- Terrorism Act, 1997 but that application was dismissed by the learned Judge, Anti-Terrorism Court- II, Gujranwala vide order dated 4.10.2003. The said order has been assailed by the petitioner before this Court through the present petition. The learned counsel for the petitioner has maintained that the circumstances of this case do not attract the definition of 'terrorism' contained in Section 6 of the Anti-Terrorism Act, 1997. As against that the learned counsel for the complainant, Respondent No, 2 herein, has argued that the offences committed in this case had created or had the potential of creating a sense of fear and insecurity in the society and, therefore, it is a case of terrorism triable exclusively by a Special Court constituted under the Anti-Terrorism Act, 1997. The learned Assistant Advocate-General appearing for the State has, however, maintained that mere gravity of an offence and its effect on the general public is no longer the criterion for determining its character as terrorism or not and according to the definition of 'terrorism' contained in Section 6 of the Anti-Terrorism Act, 1997 an action howsoever grave or serious cannot be termed as terrorism. unless the same is committed with the intentions and motives provided in the said section.
According to him the facts of this case do not disclose the intentions and motives necessary for declaring the actions attributed to the petitioner's party as terrorism and, therefore, the State does not oppose this petition.
3. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. We have also carefully adverted to the precedent cases as well as the other material produced before us by the learned counsel for the parties.
4. Terror and terrorism are concepts quite distinct from each other and the quintessence of the two notions is not difficult to distil. Terror as a manifestation of fright, dread, fear or insecurity is a consequential effect created by an act that may not necessarily be motivated to create such an effect whereas terrorism is an activity designed to create such an effect of terror. The critical difference between the two is the design and purpose understood in the criminal jurisprudence as mens rea. In the case of terror the act, or the actus reus, is not motivated to create fear and insecurity in the society at large but the same is actuated with a desire to commit a private crime against targeted individuals, etc. and the fear and insecurity created by the act in the society at large is only an unintended consequence or a fall out thereof whereas in the case of terrorism the main purpose is creation of fear and insecurity in the society at large and the actual victims are, by and large, not the real targets. Every crime, no matter what its magnitude or extent, creates some sort of fear and insecurity ii some section of the society but every felony or misdemeanor cannot be branded or termed as terrorism. As against that an act of terrorism designed to create fear and insecurity in the society at large may or may not succeed in achieving the desired effect but nonetheless it can be accepted as nothing but terrorism because of the object or purpose behind such act. Thus, the real test to determine whether a particular act is terrorism or not is the motivation, object, design or purpose behind the act and not the consequential effect created by such act. In this context terrorism has to be understood as a species different and apart from terror, horror, shock, fear, insecurity, panic or disgust created by an ordinary crime. The history of recent terrorism in the world and an insight into how the world has understood and tried to define the same may be of significant help and of critical importance in appreciating the true meanings and import of the term 'terrorism'.
5. The history of terrorism as it is known today has essentially a political tone and background.
From the assassination of Arch Duke Ferdinand to the 'axis of evil' the world has witnessed development of a plethora of political rhetoric over the nature and proponents of terrorist acts highlighting the political nature of terrorism and with every incident of terrorism the scope and semantics of terrorism have been defined and redefined from time to time. The definition of terrorism has a history almost as long as the acts themselves. The original use of the word dates back to the French Revolution. Oxford Historian Norman Davies maintains that the original use of the word was to describe the French Government's brutally forceful suppression of the population.
Thus, terrorism was originally understood as State-sponsored violence. Since then the definition of the word has evolved and in 1937 the League of. Nations (precursor to the modern United Nations) tried defining terrorism as "criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons or the general public." This definition implied that terrorism is carried out against the State and only non-State actors can perpetrate terrorism. In 1988 the State Department of the United States of America came up with its own definition of terrorism. It was described as "premeditated, politically motivated violence perpetrated against non-combatant targets by sub-national groups or clandestine agents, usually intended to influence an audience." However, one of the constants in the varying definitions of terrorism has been that it is used as a political tool. The history of terrorism reveals this to be quite true. The first major instance of terrorism in the 20th Century was the 1914 assassination of Arch Duke Ferdinand of the Austro-Hungarian Empire. The Arch Duke was gunned down. in Sarajevo by an extremist group known as The Black Hand whose aim was to rid the Balkans of the imperial influence. The Black Hand was allegedly sponsored by Serbia which also greatly resented the Austro-Hungarian influence in the region. This small act of terrorism was the precipitating cause of one of the deadlist wars the world has ever seen, the World War I. At the war's end the influence of the Austro-Hungarian Empire had diminished and Yugoslavia, an independent federation of the Balkan nations, was created. The next significant example of terrorism was the Nuremberg Laws of September 15, 1935. These laws formed the legal basis for forcing Jews out of Germany. Furthermore, they revoked the citizenship of Jews in Nazi Germany and forced Jews out of public offices. By removing powerful opposition to anti-Semitism Adolf Hitler used those laws to promote political gains. The Nuremberg Laws were a clear example of State-sponsored terrorism.
On July 22, 1946 a bomb exploded at King David Hotel in Jerusalem. The bomb was detonated by Irgun, a Jewish terrorist group led by Menachem Begin. The goal of Irgun was to rid Palestine of British occupation and to create a Jewish homeland in Palestine to be called Israel. In 1948 Irgun's goal was achieved and the State of Israel was born. From 1948 to 1977 Begin was the leader of the Israeli opposition and in 1977 he became the Prime Minister of Israel. The bombing of King David Hotel is known as one of the major acts of modern terrorism and Richie Ovendale, a Middle East expert, advocates that Israel would not have become a nation without Irgun's terrorism. Likewise in 1948 South Africa enacted the Apartheid Laws which institutionalized racism. Those laws created reserves where 70% of the African population lived on 13% of the land. Many Africans were jailed for breaking those laws, among them was Nelson Mandela, the leader of the African National Congress Party. During Mandela's imprisonment some elements of the African National Congress party felt the need to resort to violence. Some African National Congress Party operatives exploded a bomb in a cafe in the port city of Durban that was frequented by police and army officers. The goal of the African National Congress Party was to end the brutal oppression of the Africans in South Africa, a cause many considered just. In 1994 South Africa held its first non-racial elections and Nelson Mandela won the presidency. Historian T.E. Vadney argues that the success of the African National Congress Party was in part a result of some of its extremist members' violence actions. So much for difference of perceptions and outlooks. However, the fact remains that the bombing of King David Hotel in Jerusalem in 1946 ushered in one of the most violent periods of human history. The violence between the State of Israel and the Palestinians has continued almost unabated since 1948. It was in 1968 with a series of aeroplane hijackings that Palestinian insurgent groups began employing 'terrorism' against Israel. During the thirty-six years that have since elapsed there have been numberous 'terrorist' attacks and hundreds of innocent people have died.
In 1972, for example, eight masked gunmen raided the pavilion of the Israeli Olympic team in Munich killing the athletes and their coaches. Two years later three members of the Democratic Front for the Liberation of Palestine took over a school in Ma'alot, an Israeli town located near the Lebanese border. When negotiations broke down and the Israeli troops stormed the' dormitory the terrorists machine-gunned the children, killing 27 and wounding an additional 70. More recently, suicide bombers have replaced machine-guns. Between 1993 and 2003 hundreds of Israelis have been killed when the members of Hamas and Islamic Jihad have .exploded themselves in commuter buses, markets and other public places. The Israelis use State-sponsored terrorism to attack the Palestinians and to thwart attacks against Israel and the Palestinians counterattack with conventional terrorism and suicide bombings to try to achieve statehood for themselves. The tragedy of the twin towers of the World Trade Centre in New York on September 11, 2001 and its after math in Afghanistan and Iraq further highlight this conflict of perceptions according to which one man's terrorist is another man's freedom fighter. it is, therefore, not difficult to appreciate that when terrorism is defined by a State the definition implies that terrorisms can be perpetrated solely by non-State actors but the 'non-State actors extend the definition to State-sponsored terrorism as well. The struggle being waged by the Kashmiri and Chechan freedom fighters, the Palestinians, the Basque Separatists, the Tupac Amaru and the likes of them all over the globe is a case in point.
6. The question of a definition of terrorism has haunted the debate among States for decades. As mentioned above, the first attempt to arrive at an internationally acceptable definition was made by the League of Nations through a draft convention in 1937 defining terrorism as: All criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons or a group of persons or the general public" but the said draft was never adopted. In 1999 the General Assembly of the United Nations adopted a resolution (GA Res.
51/210 Measures to eliminate International terrorism) in the following words: "1. Strongly condemns all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whomsoever committed;
2. Reiterates that criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them."
The Member States of the United Nations still have no agreed upon definition of terrorism.
Terminology consensus would, however, be necessary for a single comprehensive convention on terrorism, which some countries favour in place of the present twelve piecemeal conventions and protocols relatable to the subject. The lack of agreement on a definition of terrorism has been a major obstacle in the way of meaningful International counter measures. In order to cut through this Gordian definitional knot terrorism expert A. Schmid suggested in 1992 in a report for the then United Nations Crime Branch that it might be a good idea to take the existing consensus on what constitutes a 'war crime' as a point of departure. He maintained that if the core of war crimes- deliberate attacks on civilians, hostage taking and the killing of prisoners-is extended to peacetime, one could simply define acts of terrorism as 'peacetime equivalents of war crimes'. We have already observed above that the State Department of the United States of America's current definition of terrorism, as it appears in its publication 'Patterns of Global Terrorism' (1998), is that: "The term 'terrorism' means premeditated, politically motivated violence perpetrated against non- combatant targets by subnational groups or clandestine agents, usually intended to influence an audience."
However, the said definition is perceived by many experts as lop-sided and loaded. An academic definition of terrorism proposed by A. Schmid in 1988 was favoured for acceptance by the United Nations Crimes Branch and according to that-- "Terrorism is an anxiety-inspiring method of repeated violent action, employed by (semi) clandestine individual, group or state actors, for idiosyncratic, criminal or political reasons, whereby-in contrast to assassination-the direct targets of violence are not the main targets. The immediate human victims of violence are generally chosen randomly (targets of opportunity) or selectively (representative or symbolic targets) from a target population, and serve as message generators. Threat and violence-based communication processes between terrorist (organization), (imperilled) victims, and main targets are used to manipulate the main target (audience(s)), turning it into a target of terror, a target of demands; or a target of attention, depending on whether intimidation, coercion, or propaganda is primarily sought."
University of Notre Dame political scientist George Lopez defines terrorism in the following manner: "Terrorism is a form of political violence that by design violates some of the society's accepted moral and legal codes, is often ruthlessly destructive, and is somewhat unpredictable in who will be its instrumental targets. Terrorism hardly constitutes mindless violence. Instead, it reflects a detailed strategy that uses horrific violence to make people feel weak and vulnerable, often disproportionate to either the terrorist acts or to the terrorists' longterm power. This fear seeks to promote concrete political objectives."
In the wake of the present global so-called 'war on terrorism' it is important to have an understanding of what constitutes terrorism. There is currently no definition of terrorism available in the customary International Law. For the last couple of years the United Nations Sub-Commission on Human Rights has been working on a definition as part of a document that would serve as discussion for an International Conference on terrorism but there is contention among member States on the issue. The first draft of its report (February 2001) noted that there are three essential elements of terrorism. According to that report a terrorist act-- (i)must be illegal, violating National or International Law; (ii)must intend to harm the State for political reasons; and (iii)must be capable of generating a state of fear in the general population.
The draft report covers both 'private terror' by non-State actors and State terrorism that can be internal or external. Another academic attempt to define terrorism indicates that the essence of the activity is the use of, or threat to use, violence. According to this definition an activity that does not involve violence or a threat of violence will not be defined as terrorism (including non-violent protest-strikes, peaceful demonstrations, tax revolts, etc.). It is maintained that the aim of the activity is always political, i,e, the goal is to attain political objectives like changing the regime, changing the people in power, changing social or economic policies, etc. In the absence of a political aim the activity in question will not be defined as terrorism. A violent activity against civilians that has no political aim is, at most, an act of criminal delinquency, a felony, or simply an act of insanity unrelated to terrorism. Some scholars tend to add ideological or religious aims to the list of political aims. The advantage of this definition is that it is as short and exhaustive as possible. The concept of 'political aim' is sufficiently broad to include all the considerations which may be relevant. This approach takes notice of the fact that the targets of terrorism are generally civilians as it exploits the relative vulnerability of the civilian 'underbelly' - the tremendous anxiety, and the intense media reaction evoked by attacks against civilian targets. The proposed definition emphasizes that terrorism is not the result of an accidental injury inflicted on a civilian or a group of civilians who stumble into an area of violent political activity but it stresses that this is an act purposely directed against civilians. This is why, as mentioned above, political expert George Lopez from the University of Notre Dame defines terrorism as "a form of political violence that by design violates some of the society's accepted moral and legal codes, is often ruthlessly destructive, and it often reflects a detailed strategy that uses horrific violence to push political goals."
7. The discussion made above shows, and shows quite clearly, that out of the various facets of the world view about terrorism one factor is constant and that is that in order to qualify as terrorisms an act must be designed to achieve a political and a larger objective and the same is not primarily directed against the actual victims themselves who are treated merely as 'collateral damage'. It is also quite evident that the extent of the actual damage caused or injuries inflicted by the act is not the determinative factor in this regard.
8. Like its counterparts in rest of the world Pakistan has also been groping for the last many decades to find a suitable and appropriate definition of terrorism. Eversince the introduction of anti-terrorism laws in our country our legislature has constantly been in search of an apt definition. of terrorism and in the process different laws have been enacted from time to time and different definitions of terrorism have been introduced at different occasions. In such definitions emphasis has been placed upon different aspects at different times. Although Suppression of Terrorist Activities (Special Courts) Act, 1974, Special Courts for Speedy Trials Ordinance, 1987. Terrorist Affected Areas (Special Courts) Ordinance, 1990, Special Courts for Speedy Trials Ordinance, 1991, Special Courts for Speedy. Trials Act. 1992 and many other laws were also enacted in this regard from time to time yet for the purposes of the present judgment we intend to focus mainly on the two major enactments in this field, i,e, the Suppression of Terrorist Activities (Special Courts) Act, 1975 and the Anti-Terrorism Act, 1997.
9. The first major piece of legislation introduced in Pakistan specifically in the context of terrorism was the Suppression of Terrorist Activities (Special Courts) Act, 1975 and the Preamble of that Act delineating the purposes of introduction of that Act provided as follows: "Whereas it is expedient to make special provisions for the purposes of suppressing acts of sabotage, subversion and terrorism and to provide for speedy trial of offences committed in furtherance of or in connection with such acts." According to Section 4(1) of that Act "Notwithstanding anything contained in the Code the scheduled offences shall be triable exclusively by a Special Court". Section 2(b) of the Act provided that "Scheduled offence" means an offence specified in the Schedule" and the Schedule (as subsequently ' amended from time to time) read as under:-- "(a) Any offence punishable under any of the following sections of the Pakistan Penal Code, 1860 (XLV of 1860) namely:- (i)Sections 121, 121-A, 122, 123, 123-A, 124-A, 365-A, 400, 402-A, 402B, 402-C, 147 and 431; (ii)Section 216 if committed in relation to an offender who is accused of having committed any of the offences specified in this Schedule; (ii)(a) Section 302 or Section 307 if committed in the course of the same transaction in which an offence specified in this paragraph or paragraphs (b) and (c) is committed or in addition to or in combination with such offence; (iii)Sections 392, 393, 394, 395, 396, 397, 398 and 399, if a cannon, grenade, bomb, rocket or an arm of a prohibited bore is used for, or, any public property is stolen, destroyed or damaged in, the commission of the offence; or (iv)Section 435, 436, 437, 438 and 440, if an explosive substance, mineral oil or any product of mineral oil is used for the commission of the offence;
(b) Any offence punishable under the Explosive Substances Act, 1908 (XI of 1908); (c)Any offence punishable under the Arms Act, 1878 (XI of 1878), or any offence punishable under any of the following sections for the West Pakistan Arms Ordinance, 1965 (West Pakistan Ordinance No, XX of 1965), namely Sections 9 and 10, if committed in respect of a cannon, grenade, bomb or rocket, or a light or heavy automatic or semi-automatic weapon such as Kalashnikov, a G-III rifle or any other type of assault rifle;
(cc) Any offence punishable under Section 13-A or Section 13-B of the Pakistan Arms Ordinance, 1965 (West Pakistan Ordinance of 1965); (d)Any offence punishable under any of the following sections of the Railways Act, 1890 (IX of 1890), namely Sections 126, 127 and 128; (e)Any offence punishable under Section 25 of the Telegraph Act, 1885 (XIII of 1885); (f)Any offence punishable under Rule 29 of the Aircraft Rules, 1937; (g)Any offence punishable under Rule 43 of the Defence of Pakistan Rules; (h)Any offence punishable under sub-section (1) of Section 13 of the Anti-National Activities Act, 1974 (VII of 1974), if such offence constitutes anti-national activity within the meaning of sub-clause
(i) or sub-clause (ii) of clause (a) of Section 2 of that Act; and (i)Any attempt or conspiracy to commit, or any abetment of, any of the aforesaid offences."
It is of critical importance to point out here that although the word terrorism had been used in the Preamble of the said Act yet the same had not been defined in the Act at all and the Schedule of that Act created an impression that the word terrorism was to be understood in the context of any offence of serious and grave nature.
10. The Anti-Terrorism Act, 1997 was a major step forward in Pakistan's quest for dealing with the" menace of terrorism and its Preamble provided as follows: "Whereas it is expedient to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences and for matters connected therewith and incidental thereto." Section 12 of the Act conferred jurisdiction to try the scheduled offences exclusively upon the Special Courts constituted under the said Act. Section 6 of that Act defined a 'terrorist act' in the following terms: "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 be 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."
Section 7 of the Act specified various punishments for the terrorist acts mentioned in Section 6, Section 8 defined an offence regarding stirring up sectarian hatred and Section 9 of the said Act provided for punishment for the offence under Section 8. The Schedule of the said Act read as follows: "1. Any offence punishable under this Act.
2. Any 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 fordes or civil armed forces or is a public servant; (iii)if there is more than one victim; or (iv)the victim was subjected to cruelty, brutality, torture or burning; and (b) offences under Sections 295-A, 298-A, 364, 364-A, 365, 365-A, 392 to 402 of the Pakistan Penal Code, 1860 (Act No, XLV of 1860).
3. An offence punishable under sub-section (4) of Section 10 of the Ordinance of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance No, VII of 1979). Any attempt or conspiracy to commit or any abetment of any of the aforesaid offences."
The core and essence or the pith and substance of a 'terrorist act' defined by this Act was striking terror in the people or any section of the people or alienating any section of the people or adversely affecting harmony among different sections of the people. The emphasis appeared to be on the gravity of the offence and its effect upon the general populace rather than on the actual motivation behind the act.
11. The above-mentioned definition of a 'terrorist act' contained in Section 6 was subsequently amended through the Anti-Terrorism (Second Amendment) Ordinance, 1999 (Ordinance No, XIII of 1999) and the new definition read as follows: A person is said to commit a terrorist act if he-- (a)in order to, or if the effect of his actions will be to, strike terror or create a sense of fear and insecurity, in the people, or any section of the people, does any act or thing by using bombs, dynamite or other explosive or inflammable substances, or such fire-arms or other lethal weapons as may be notified, or poisons or noxious gases or chemicals, in such a manner as to cause, or be likely to cause, the death of or injury to, any person or persons, or damage to, or destruction of, property on a large scale, or a widespread disruption of supplies of services essential to the life of the community, or threatens with the use of force public servants in order to prevent them from discharging their lawful duties; or (b)commits a scheduled offence, the effect of which will be, or be likely to be, to strike terror, or create a sense of fear and insecurity in the people, or any section of the people or to adversely affect harmony among different sections of the people; Or (c)commits an act of gang rape, child molestation, or robbery coupled with rape as specified in the Schedule to this Act; or (d)commits an act of civil commotion as specified in Section 7-A."
Through this amendment the focus on the effect of the action was extended to a potential or likely effect besides the actual effect of the action and the focal point still remained the effect of the action rather than the incentive or inspiration behind the same.
12.It is of vital importance to mention here that while providing in the amended Section 6 that "in order to, or if the effect of his actions will be to, strike terror or create a sense of fear and insecurity in the people, or any section of the people, does any act or thing ---" the legislature never specified the motivation for that "act or thing" on the part of the perpetrator which propelled or prompted him to commit a terrorist act. Thus, the actus reus was itself considered to be determinative if the same was intended to create fear and insecurity, etc. in the public at large, had the effect of creating such fear and insecurity, etc. or had a potential for creating such fear and insecurity, etc. According to this definition what was of paramount consideration was the effect of the act, whether actual, intended or potential, and not the design or the purpose behind that act. It was in that context that the Hon'ble Supreme Court of Pakistan had interpreted the provisions of Section 6 of this Act in many cases, to be discussed later on in this judgment, and had held that an act was to be considered a terrorist act if its effect, whether actual, intended or potential, was to create fear and insecurity, etc. in the society at large.
13.On August 15, 2001 the Anti-Terrorism Act, 1997 was drastically amended through the Anti- Terrorism (Amendment) Ordinance, 2001 (Ordinance No, XXXIX of 2001). Through the amending Ordinance the Schedule of the Act containing various offences to be tried under the said Act was done away with and the term 'terrorist act' with its definition contained in Section 6 of the Act was substituted and replaced by the term 'terrorism' with the following definition thereof: "(1) In this Act "terrorism" means the use or threat of action where: (a)the action falls within the meaning of sub-section (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 or create a sense of fear or insecurity in society; or (c)the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause.
(2) An "action" shall fall within the meaning of sub-section (1), if it: (a)involves the doing of anything that causes death; (b)involves grievous violence against a person or grievous bodily injury or harm to a person; (c)involves grievous damage to property; (d)involves the doing of anything that is likely to cause death or endangers a person's life; (e)involves kidnapping for ransom, hostage-taking or hijacking; (f)incites hatred and contempt or religious, sectarian or ethnic basis to stir up violence or cause internal disturbance; (g)involves stoning, brick-batting or any other form of mischief to spread panic; (h)involves firing on religious congregations, mosques, imambargahs, churches, temples and all other places of worship, or random firing to spread panic, or involves.any forcible takeover of mosques or other places of worship; (i)creates a serious risk to safety of the public or a section of the public, or is designed to frighten the general public and thereby prevent them from coming out and carrying on their lawful trade and daily business, and disrupts civic life; (j)involves the burning of vehicles or any other serious form of arson; (k)involves extortion of money ("bhatta") or property;
(1) is designed to seriously interfere with or seriously disrupt a communications system or public utility service; (m)involves serious coercion or intimidation of a public servant in order to force him to discharge or to refrain from discharging his lawful duties; or (n)involves serious violence against a member of the police force, armed forces, civil armed forces, or a public servant.
(3)The use or threat of use of any action falling within sub-section (2), which involve's the use of fire-arms, explosives or any other weapon, is terrorism, whether or not sub-section 1(c) is satisfied.
(4)In this section "action" includes any act done for the benefit of a proscribed organization.
(5)In this Act, terrorism includes any act done for the benefit of a prescribed organization.
(6)A person who commits an offence under this section or any other provision of this Act, shall be guilty of an act of terrorism.
(7) In this Act, a "terrorist" means: (a)a person who has committed an offence of terrorism under this Act, and is or has been concerned in the commission, preparation or instigation of acts of terrorism; (b)a person who is or has been, whether before or after the. coming into force of this Act, concerned in the commission, preparation or instigation of acts of terrorism, shall also be included in the meaning given in clause (a) above."
14. The resume of our legislative developments in the field of terrorism show that with different laws and definitions of terrorist act or terrorism the emphasis has been shifting from one criterion to another including the gravity of the act, lethal nature of the weapon used, plurality of culprits, number of victims, impact created by the act and effect of fear and insecurity brought about or likely to be created in the society by the action. The last definition of a 'terrorist act' contained in Section 6 of the Anti-Terrorism Act, 1997 squarely focused on the effect of fear and insecurity intended to be created by the act or actually created by the act or the act having the potential of creating such an effect of fear and insecurity in the society. It, however, appears that subsequently the legislature did not feel convinced of the aptness or correctness of that definition and resultantly the erstwhile definition of. a 'terrorist act' contained in Section 6 of the Anti-Terrorism Act, 1997 was repealed and a totally fresh and new definition of `terrorism' was introduced through an amended Section 6 of the Anti-Terrorism Act, 1997 and this was accomplished through the Anti-Terrorism (Amendment) Ordinance, 2001 (Ordinance No, XXXIX of 2001) promulgated on 15.8.2001. The legislature had probably realized by then that an effect of an act may not always be a correct indicator of the nature of such an act as every crime, especially of violence against person or property, does create some sense of fear and insecurity in some section of the society and a definition of terrorism based upon the magnitude or potential of an effect created or intended to be created or having a potential of creating would necessarily require a premature, speculative and imaginary quantification of the effect so as to determine the nature of the act in order to decide about the jurisdiction of a Criminal Court to try such an act. That surely was an unsure test and the result of such a premature, speculative and presumptive test could vary from Court to Court and from Judge to Judge reminding a legal scholar of the Star Chamber and the early days of a Court of Equity in England where equity was said to vary with the size of the Chancellor's foot.
The new definition of 'terrorism' introduced through the amended Section 6 of the Anti-Terrorism Act, 1997 as it stands today appears to be the most comprehensive and the clearest definition of 'terrorism' introduced in our legal system thus far. It appears that in its quest for an apt and appropriate definition of terrorism and after stumbling through various approaches in that regard the legislature in our country has finally hit upon a definition of terrorism which is not only closest to its real meaning but the same is also in accord with the international perceptions about the same.
The earlier emphasis on the speculative effect of the act has now given way to a clearly defined mens. rea and actus reus. The amended Section 6(1)(b) now specifies the 'design' and Section 6(1)
(c) earmarks the 'purpose' which shotild be the motivation for the act and the actus reus has been clearly men loned in Section 6(2)(a) to (n) and now it is only when the actus reus specified in Section 6(2) is accompanied by the requisite mens rea provided for in Section 6(1)(b) or (c) that an action can be termed as 'terrorism'. Thus, it is no longer the fear or insecurity actually created or intended to be created or likely to be created which would determine whether the action qualifies to be termed as terrorism or not but it is now the intent and motivation behind the action which would be determinative of the issue irrespective of the fact whether any fear and insecurity was actually created or not. After this amendment in Section 6 an action can now be termed as terrorism if the use or threat of that action "is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect" or if such action is designed to "create a sense of fear or insecurity in society" or the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause. Now creating fear or insecurity in the society is not by itself terrorism unless the motive itself is to create fear or insecurity in the society and not when fear or insecurity is just a by product, a fall out or an unintended consequence of a private crime. In the last definition the focus was on the action and its result whereas in the present definition the emphasis appears to be on the motivation and objective and not on the result.
Through this amendment the legislature seems to have finally appreciated that mere shock, horror, dread or disgust created or likely to be created in the society does not transform a private crime into terrorism but terrorism as an 'ism' is a totally different concept which denotes commission of a crime with the object and purpose of destabilizing the society or Government with a view to achieve objectives which are political in the extended sense of the word. This approach appears to be in harmony with the emerging international perception about terrorism according to which, as referred to above, "the aim of the activity is always political, i,e, the goal is to attain political objectives like changing the regime, changing the people in power, changing social or economic policies, etc. In the absence of a political aim, the activity in quest will not be defined as terrorism. A violent activity against civilians that has no political aim is, at most, an act of criminal delinquency, a felony, or simply an act of insanity unrelated to terrorism. Some scholars tend to add ideological or religious aims to the list of political aims." This metamorphosis in the anti-terrorism law in our country has. brought about a sea change in the whole concept as we have understood it in the past and it is, therefore, of paramount importance for all concerned to understand this conceptual modification and transformation in its true perspective. In view of this conceptual transformation event the interpretations of a 'terrorist act' or 'terrorism' rendered by our Courts in the past on the basis of the earlier law may, it is observed with great respect, require revisiting and reinterpretation so as to be in line with the newly introduced definition and concept of terrorism.
15. Adverting to the case-law on the subject we may straightaway observe with profound respect that, barring a few exceptions, the judgments rendered on the subject thus far by the Hon'ble Supreme Court of Pakistan appear to be heavily influenced by the erstwhile definition of a 'terrorist act' contained in the original Act and even the new definition of 'terrorism' contained in the amended Act has, by and large, been looked at with the same mindset. For instance in the case of Mumtaz Ali Khan Rajban and another v. Federation of Pakistan and others (PLD 2001 SC 169) a Professor was gunned down because he did not allow a candidate appearing in an examination to adopt unfair means and the Hon'ble Supreme Court of Pakistan held that the act of the accused "struck terror and also created sense of fear and insecurity amongst people in general and Teachers/Professors in particular" and, therefore, the case was .adjudged as one of a terrorist act.
In the case of Muhammad Mushtaq v. Muhammad Ashiq and others (PLD 2002 SC 841) four persons were murdered by their adversaries when they were proceeding to the premises of the District Courts, Lahore to attend a hearing of a case and the Hon'ble Supreme Court held that to be a terrorist act because: "The cumulative fall-out of the occurrence as to the time, place and manner of the act created a sense of the fear and insecurity in society. The Lahore High Court fell in error by taking into consideration only the element of the alleged enmity existing between the parties. The High Court failed to advert -to the terrorizing effect of the occurrence created on the minds of the people at large and of the concerned locality and passer-by who had no means to ascertain the background or motive for the crime or the enmity of the parties inter se."
In the case of Mst. Raheela Nasreen v. The State and another [2002 SCMR 908] a Batman of a Major serving in the Pakistan Army had allegedly murdered the Major in connivance with the Major's wife and the Hon'ble Supreme Court held that to be a case of terrorism by observing that: "From a bare reading of Section 6(b) of the Act, it is manifest that it is not necessary that the offence as alleged had in fact, caused terror as the requirement of the said provision of law could be adequately satisfied if the same was likely to strike terror or sense of fear and insecurity in the people. The learned Judges of the High Court came to the conclusion that a Batman who was a trusted person of an army officer if he kills as alleged his master in connivance with his (master's) wife, the same Was likely to strike terror or feeling of insecurity among the army officers which reasonings in our view are based on relevant consideration having logical nexus with the relevant law and do not suffer from any legal infirmity."
In the case of Muhammad Amin v. The State [2002 SCMR 1017] a person had been murdered during a dacoity at a house and another person had been shot at and injured by the fleeing dacoits and the Hon'ble Supreme Court found the case to be of terrorism by observing that: The accused entered in the Baithak of the house of complainant armed with pistol with the purposes to commit robbery and in consequence to the resistance put by the father of complainant he was killed by the petitioner and further the petitioner with a view to create terror also fired at Nasir Ahmed in the street when he alongwith others, made an attempt to apprehend the petitioner and thus, the manner in which the petitioner while committing robbery took the life of deceased and caused fire-arm injuries to Nasir Ahmed in the broad daylight would squarely bring the case with the ambit of "terrorism" in term of Section 6 of the Anti-Terrorism Act, 1997."
In the case of Zia Ullah v. Special Judge, Anti-Terrorism Court, Faisalabad and 7 others [2002 SCMR 1225] an Advocate proceeding towards a Court in his robes was done to death by his enemies and the Hon'ble Supreme Court decided that the case was one of terrorism. It was observed that: "The alleged murder was committed in wanton, reckless and brutal manner and resultantly learned Advocate who was in his robe was done to death in Court vicinity. The gravity of the offence could not be diminished or minimized merely on the ground that alleged murder was not committed exactly within the Court premises as pressed time and again by the learned counsel for the respondents. It is to be noted that one Assistant Sub-Inspector of Police was seriously injured by means' of fire-arms. We are not having the slightest doubt while holding that the alleged occurrence must have caused fear, panic and wave of sensation and thus the matter squarely falls within the ambit and jurisdiction of Special Court."
In the case of State through Advocate-General, N.-W.F.P., Peshawar v. Muhammad Shafiq [PLD 2003 SC 224] a person was murdered by firing at and sprinkling petrol on him and resultantly his body was charred and some of his bones were also burnt. The said murder had been committed at a deserted place and was a consequence of an on-going personal enmity. It is observed with reverence that apparently the Hon'ble Supreme Court was not properly assisted in that case and the newly introduced definition of `terrorism' had not been brought to the notice of the Court and in that background, while reproducing and expressly referring to the deleted and inapplicable definition of a 'terrorist act' contained in the unamended Section 6 of the Anti-Terrorism Act, 1997, the Hon'ble Supreme Court observed that: "A reading of the above provision of the Act demonstrates that it is not necessary that the commission of murder must have created panic and terror among the people. The Courts have only to see whether the terrorist act was such which would have the tendency to create sense of fear or insecurity in the minds of the people r any section of the society. We have to see the psychological impact created upon the minds of the people.----The moment such a charred dead body was brought for its funeral rites within the area of the deceased's residence, it would had certainly caused shock, fear and insecurity among the people of the vicinity. The body was completely charred and the onlookers must have felt fear and insecurity on seeing the barbaric and callous manner in which the human body was mutilated."
In the case of Naeem Akhtar and others u. The State and others [PLD 2003 SC 396] an accused person's mother was medically treated by a doctor for an accidental fracture of her leg but the accused party felt dissatisfied with her treatment by the doctor and with that motive the said doctor was abducted by the accused party and was murdered. The Hon'ble Supreme Court found the case to be of a terrorist act as: "The motive for the occurrence no doubt related to the personal grievance of the appellant who held the deceased responsible for imputation of leg of his mother but murder of the doctor after his abduction for such a motive would be an alarming situation for all doctors and would be a direct source of creating panic and terror in the medical profession."
In the case of Sh. Muhammad Amjad u. The State [PLD 2003 SC 704] a young Barrister was abducted for ransom and was killed. The Hon'ble Supreme Court held the case to be one of terrorism by observing that: "Even if by act of terrorism actual terror is not created, yet, above quoted sub-section (b) [of Section 6(1) of the Anti Terrorism Act, 1997] will be applicable if it was likely to do any harm contemplated in the said subsection. It is the cumulative effect of all the attending circumstances which provide tangible guidelines to determine the applicability or otherwise of said subsection. It is noted that about 300/400 people gathered at the house of the complainant and they would have destroyed the house of the appellant, if the police would not have intervened. Lawyer community was also annoyed over the murder of a member of their community and had passed a resolution in this regard. Under the circumstances,- the case was rightly assigned to Anti Terrorism Court for trial." In the case of Mst. Najam-un-Nisa v. Judge, Special Court constituted under Anti-Terrorism Act, 1997 [2003 SCMR 1323] seven persons had been killed in a house at night in furtherance of a private enmity and the Hon'ble Supreme Court held the case to be one of terrorism. It was observed that: "The venue of the commission of a crime, the time of occurrence, the motive which had led to the commission of a crime and the fact whether the said crime had or had not been witnessed by the public at large are not the only factors determining the issue whether a case did or did not fall within the parameters of the ATA of 1997. The crucial question is whether the said crime had or had not the effect of striking terror or creating a sense of fear and insecurity in the people or any section of the people. Needless to mention here that a crime of the kind in hand committed even in a remote corner does not remain unnoticed in the area in which is committed or even in the country on account of the print and electronic media. Seven persons being butchered in a house at night is not the kind of occurrence which would not create terror and horror in the people or any section of people."
In the case of Abdul Ghafoor Bhatti v. Muhammad Saleem and others [2003 SCMR 1934] after a dacoity in a house the dacoits kidnapped two minors for ransom who were subsequently retrieved after payment of the demanded ransom. The Hon'ble Supreme Court found the case to be that of terrorism and observed that: "The Courts have to see the impact of the act which the miscreants have perpetrated. In the case in hand two minors were abducted for ransom by the miscreants. Such-like act has certainly got the tendency to create sense of fear and insecurity in the minds of the people or any section of the society. The psychological effect created upon the minds of the people would be the guiding feature so as to see whether the act complained of has got nexus with Sections 6 and 7 of the Act.
As already stated the Courts have to see only the tendency whether nature of such act would create sense of insecurity. By no stretch of imagination, it can be said that the abduction of minors at gun points would not create terror among reasonable and prudent persons of the society."
16. One cannot help noticing that all the cases referred to in the last paragraph pertained to offences committed for private purposes with no motivation to destabilize the society at large but they were all adjudged to be cases of terrorist acts or terrorism on the basis of a presumptive and speculative qualification of the effect that the relevant actions could have created in the society. In all such cases, it is observed with great deference, the change brought about by the new definition of 'terrorism' with its resultant shifting of focus from the effect of the action to the design or purpose behind the action had not been noticed and all those cases had been decided on the basis and on the yardstick of the principles provided for by the earlier definition of a 'terrorist ad'. In the above mentioned cases the gravity of the offence with its resultant actual, intended or potential effect on the people-at-large was considered as the measure for determining whether the act constituted terrorism or not. We can appreciate that the mindset inherited by us in the background of the Summary Military Courts, Speedy Trial Courts and Special Courts for Suppression of Terrorist Activities, which were different Courts constituted at different stages in the past for separate and special handling of offences of grave nature, may take some time to be dispelled and it may take us a while to appreciate and realize that an act of 'terrorism' is not just a grave offence but it is a class and species apart and this class or species has to be understood in its true and correct perception and perspective otherwise every serious offence may be found by one Judge or the other to involve terrorism depending upon a subjective assessment of the potential of the act to create some sense of fear or insecurity in some section of the society. Such an approach, it may be observed with great veneration, may not be wholesome as it may ultimately result in every case of a serious offence landing in a Special Court and thereby rendering the ordinary Courts substantially redundant. It ought not to be lost sight of that the legislature's repeal of the Suppression of Terrorist Activities (Special Courts) Act, 1975, doing away with the Schedule of the Anti-Terrorism Act, 1997 and also its retraction from the 'effect' through the fresh definition of 'terrorism' cannot be without any significance or purpose. That drastic change of the definition manifestly indicated a change of meanings and of focus and such a change has to be given its proper effect. After all if the newly introduced term 'terrorism' is still to be interpreted in the same manner as the erstwhile term 'terrorist act' then there was hardly any occasion or need for the legislature to amend the definition and to bring about any change in the existing law in that regard. The legacy and interpretations pertaining to the Suppression of Terrorist Activities (Special Courts) Act, 1975 and of the original provisions of the Anti-Terrorism Act, 1997 have now to be shrugged off so as to correctly understand the new definition of 'terrorism' introduced through the latest amendment in the latter Act. The Hon'ble Supreme Court of Pakistan had itself declared in the above mentioned case of Mumtaz Ali Khan Rajban and another v. Federation of Pakistan and others [PLD 2001 SC 169] that the subject matters of the Suppression of Terrorist Activities (Special Courts) Act, 1975 and the Anti-Terrorism Act, 1997 were "different" and their respective applicability was "governed by different criteria".
17. We understand, and we observe so with all the respect at our command, that in the above mentioned cases the Hon'ble Supreme Court of Pakistan had, wittingly or otherwise, detracted or moved away from the principle of nexus so painstakingly carved out by itself in the case of Mehram Ali and others v. Federation of Pakistan and others [PLD 1998 SC 1445]. It had been held by the Hon'ble Supreme Court of Pakistan in that case that: "However, it may be observed that the offences mentioned in the Schedule should have nexus with the object of the Act and the offences covered by Sections 6, 7 and 8 thereof. It may be stated that Section 6 defines terrorist acts, Section 7 provides punishment for such acts, and Section 8 prohibits acts intended or likely to stir up sectarian hatred mentioned in clauses (a) to (d) thereof.
If an offence included in the Schedule has no nexus with the above sections, in that event notification including such an offence to that extent will be ultra vires.----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 account of personal enmity, such murder will have no nexus with the above provisions of the Act and will not be triable under the Act."
In the case of Jamat-i-Islami Pakistan through Syed Munawar Hassan, Secretary-General v.
Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs [PLD 2000 SC 111] the Hon'ble Supreme Court had reiterated the above mentioned principle of nexus by observing that:-- "to make an act punishable under the Act, it must be shown that the act bears nexus to Sections 6, 7 and 8 of the Act."
In the case of Ch. Bashir Ahmad v. Naveed Iqbal and 7 others [PLD 2001 SC 521] a woman was murdered by sprinkling spirit on her person and the motive for that offence was described to be the failure of the victim to fetch a car in dowry to the family of her husband. The Hon'ble Supreme Court found the case to be triable by a Court of ordinary jurisdiction and observed that: "A person would commit a terrorist act if in order to, or if the effect of his actions will be "to strike terror or create a sense of fear and insecurity in the people, or any section of the people--". In the instant case as the facts of the case reveal, the alleged sprinkling of the spirit on the person of the victim was within the boundary walls of the appellant's house. It was not in public and, therefore, the element of striking terror or creating sense of fear and insecurity in the people, or any section of the people is not made discernible in the F.I.R. and for that matter on the record of the case as a whole. Similarly the perusal of the Schedule to the Act also indicates that the element of striking terror or creation of sense of fear and insecurity in the people or any section of the people by doing an act or thing by using bombs, dynamite or other explosive or inflammable substances etc. is a sine qua non for the attraction of the provisions of Section 6 of and the Schedule to the Act (Underlining is provided by us for emphasis).In the instant case no doubt the offence committed was certainly most heinous in nature but it does not mean that it does qualify to be a terrorist act within the contemplation of Section 6 or the Schedule to the Act."
While observing so the Hon'ble Supreme Court had referred to and quoted from its earlier judgment in the above mentioned case of Mehram Ali and others v. Federation of Pakistan and others [PLD 1998 SC 1445]. In the case of Muhammad Mushtaq v. Muhammad Ashiq and others [PLD 2002 SC 841], already mentioned above, four persons were murdered by their adversaries when they were proceeding to the premises of the District Courts, Lahore to attend a hearing of a case and the Hon'ble Supreme Court had held that to be a terrorist act but at the same time it had also been observed by it that : "It would thus appear that ordinary crimes are not to be dealt with under the Act. A physical harm to the victim is not the sole criterion to determine the question of terrorism."
In the case of Jahangir Akhtar Awan and two others v. The State and 8 others [PLD 2000 Karachi 89] in the background of illicit relations with a woman a person was brutally murdered and his deadbody was cut into twelve pieces and was concealed but a learned Division Bench of the Hon'ble Sindh High Court held that case not to be one of terrorism. It was observed that. "An act of terrorism is a -preplanned and organized system of intimidation. Its requisites and attributes are that such act and its effects are made known to the people and widely circulated with exaggeration. It is neither hidden nor disguised. It means an act which is committed with the sole object to terrorism the people and to feel them insecure. These ingredients are not in the instant case."
In the case of Shaikh Muhammad Amjad v. The State [2002 P.Cr.L.J. 1317], a case of abduction for ransom and murder, a learned Division Bench of the Hon'ble Sindh High Court had observed that: "The commission of every offence is irksome, painful, distressing and abhorrent. So long it remains confined to the victim or victims or their near and dear ones, it does not amount to terrorism as defined in Section 6(1)(b) of the A,T.A.----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 an offence simplicitor and does not amount to terrorism.
In the case of Haris Abdullah v. The State [NLR 1999 Criminal 651] a learned Division Bench of this Court had found that a case of abduction of a girl in furtherance of an illicit liaison and another case of abduction of a girl for rape were not cases of terrorism as such actions had no nexus with the objects of Sections 6, 7 and 8 of the Act of 1997. In the case of Muhammad Afzal and others v.
S.H.O. and others [1999 P.Cr.L.J. 929] a learned Division Bench of this Court had, in respect of the unamended Section 6 of the Anti-Terrorism Act, 1997, asserted the presence of the requisite mens rea as a sine qua non for transforming an otherwise ordinary criminal activity into a terrorist act.
Holding that an ordinary case of an abduction of a married woman after show of force could not be termed as a terrorist act it was observed that: "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. 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 mens 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, mens rea, or aim of the perpetrator of the crime. The actus reus alone would not make the predicate offence as a scheduled offence."
The case of Mazhar v. The State [PLD 2003 Lahore 267] happens to be the first reported case wherein a Division Bench of this Court had expressly adverted to the change of focus brought about by the new definition of `terrorism' and had observed that: "Through an amendment in Section 6 of the said Act jurisdiction of a Court under the said Act was made determinable not with reference to any schedule of offences but with reference to the mens rea and the actus reus specified in the amended Section 6. After those amendments the actions specified in sub-section (2) of Section 6 of the said Act can be tried by a Court under the said Act only if they are committed with the intentions specified in Clauses (b) or (c) of sub-section (1) of Section 6 of that Act. We have examined the allegations contained in the F.I.R. in this case in the light of the provisions of the amended Section 6 of the Anti-Terrorism Act, 1997 and have found that the acts allegedly committed by Respondents Nos, 2 and 3 had not been committed with any intention or mens rea specified in the said provisions and, thus, a Court constituted under that Act no longer had any jurisdiction to try the criminal case in hand. Apart from what has been observed above it was held by the Hon'ble Supreme Court of Pakistan in the cases of Mehram Ali and others u. Federation of Pakistan and others (PLD 1998 SC 1445) and Ch. Bashir Ahmad v. Naveed lqbal and 7 others (PLD 2001 SC 521) that an act of private revenge based upon a personal vendetta is not to be treated as an act of terrorism which is a species apart. In the present case the F.I.R. itself mentions that the offences in question had been committed by the culprits in the background of personal enmity between the parties and to achieve private revenge. Thus, a Court constituted under the Anti-Terrorism Act, 1997 clearly lacks jurisdiction to try Respondents Nos, 2 and 3."
18. It may be advantageous to mention here that the definition of `terrorism' introduced in Pakistan in 2001 through the latest amendment in the Anti-Terrorism Act, 1997 proceeds on lines somewhat similar, if not identical, to the corresponding definitions contained in the relevant laws of Northern Ireland, United Kingdom, United States of America, Australia and India. Section 58 of the Northern Ireland (Emergency Provisions) Act, 1996 defined terrorism in the following words:-- " "terrorism" means the use of violence for political ends and includes any use of violence for the purpose of putting the public or any section of the public in fear."
Section 1 of the United Kingdom's Terrorism Act, 2000 reads as follows: "(1) In this Act "terrorism" means the use or threat of action where-- (a)the action falls within sub-section (2), (b)the use or threat is designed to influence the Government or to intimidate the public or a section of the public, and (c)the use or threat is made for the purpose of advancing a political, religious or ideological cause.
(2) Action falls within this subsection if it-- (a)involves serious violence against a person, (b)involves serious damage to property, (c)endangers a person's life, other than that of the person committing the action, (d)creates a serious risk to the health or safety of the public or a section of the public, or (e)is designed seriously to interfere with or seriously to disrupt an electronic system.
(3) The use or threat of action falling within sub-section (2) which involves the use of fire-arms or explosives is terrorism whether or not sub-section (1)(b) is satisfied.
(4) In this section-- (a)"action includes action outside the United Kingdom, (b)a reference to any person or to property- is a reference to any person, or to property, wherever situated, (c)a reference to the public includes a reference to the public of a country other than the United Kingdom, and (d)"the Government" means the Government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.
(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a prescribed organisation."
Section 802 of the Uniting and Strengthening America Act by Providing Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001 of the United States of America defines "domestic terrorism" as follows: The term "domestic terrorism" means activities that-- (a)involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State; (b)appear 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 mass destruction, assassination, or kidnapping."
In Australia Section 5 of the Terrorism (Emergency Powers) Act, 2003 defines a 'terrorist act' in the following words: "(1) In this Act, "terrorist act" means an action that--
(a) falls within Subsection (2) and does not fall within sub-section (3); (b)is done with the intention of advancing a political, religious or ideological cause; and (c)is done with the intention of-- (i)coercing, or influencing by intimidation, the Government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or (ii)intimidating the public or a section of the public.
(2) Action falls within this sub-section if it:-- (a)causes serious harm that is physical harm to a person; (b)causes serious damage to property; (c)causes a person's death; (d)endangers a person's life, other than the life of the person taking the action; (e)creates a serious risk to public health or public safety; or (f)seriously interferes with, seriously disrupts, or, destroys, an electronic system, including but not limited to-- (i)an information system; (ii)a telecommunications system; (iii)a financial system; (iv)a system used for the delivery of essential Government services; (v)a system used for, or by, an essential public utility; or (vi)a system used for, or by, a transport system.
(3) Action falls within this sub-section if it-- (a)is advocacy, protest, dissent or industrial action; and (b)it is not intended-- (i)to cause harm that is physical harm to a person; (ii)to cause a person's death; (iii)to endanger a person's life, other than the life of the person taking the action; or (iv)to create a serious risk to public health or public safety.
(4) In this section, a reference to a person or property is a reference to a person or property wherever situated, within or outside the Territory (including within or outside Australia)."
In India the Terrorist and Disruptive Activities (Prevention) Act, 1987 (Act No, 28 of 1987) defined a 'terrorist act' in Sections 3(1) thereof as follows: "Whoever with intent to overawe the Government as by law established or to strike terror in the people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or fire-arms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies of services essential to the life of the community, or detains any person .and threatens to kill or injure such person in order to compel' the Government or any other person to do or abstain from doing any act, commits a terrorist act."
The Terrorist and Disruptive Activities (Prevention) Act, 1987 was subsequently repealed in India and was substituted by the Prevention of Terrorism Act, 2002 (Act No, 15 of 2002) and Section 3 of the said Act provides as follows: "(1) Whoever- (a) with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or fire-arms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature or by any other means whatsoever, in such a manner as to cause, or likely to cause, death of, or injuries to any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community or causes damage or destruction of any property or equipment used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies, or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act; (b) is or continues to be a member of an association declared unlawful under the Unlawful Activities (Prevention) Act, 1987 (37 of 1987), or voluntarily does an act aiding or promoting in any manner the objects of such association and in either case is in possession of any unlicensed fire- arms, ammunition, explosive or other instrument or substance capable of causing mass destruction and commits any act resulting in loss of human life or grievous injury to any person or causes significant damage to any property, commits a terrorist act."
19. The similarities, any resemblances, in the definitions of a `terrorist act' or 'terrorism' enacted in Northern Ireland, United Kingdom, United States of America, Australia, Indian and Pakistan are too striking to be merely coincidental and, therefore, in the lager interests of global harmony and communion their interpretations ought also not be different. In the case of Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijja and others [AIR 1990 SC 1962] two rival gangs of the underground mafia had clashed in public in order to gain supremacy in the underworld leaving one person dead and another injured. The trial Court (the Designated Court) held that the case did not involve terrorism and the Hon'ble Supreme Court of India upheld that order by observing as follows: "The Designated Court came to the conclusion that the material placed before it and the statements recorded by the Investigating Officer did not disclose the commission of an offence under Section 3(1) of the Act. According to the Designated Court the intention of the accused persons was not to strike terror in the people or a section of the people but only to eliminate Raju and Keshav with a view to gaining supremacy in the underworld. The learned Judge presiding over the Designated Court then proceeds to add as under: "True it is that few people might have been terror-striken and terror might have been the fall out of naked act, but to strike the terror amongst people was not the object of this naked act. If at all people are getting terror-striken, it is those few people who live by the crime and not the people - law abiding majority of citizens. Going by these statements there is nothing more to this crime than a strife between two warring factions staking claim to the supremacy of underworld."
The learned Judge also came to the conclusion that there was nothing on record to show that the Government's law enforcing machinery had failed and it had become necessary to resort to the drastic provisions of the Act with a view to committing the menace of terrorism. We think that the Designated Court was right in coming to the conclusion that the intention of the accused persons was to eliminate Raju and Keshav for gaining supremacy in the underworld. A mere statement to the effect that the show of such violence would create terror or fear in the minds of the people and none would dare to oppose them cannot constitute an offence under Section 3(1) of the Act. That may indeed be the fall out of the violent act but that cannot be said to be the intention of the perpetrators of the crime. It is clear from the statement extracted earlier that the intention of the accused persons was to eliminate the rivals and gain supremacy in the underworld so that they may be known as the bullies of the. locality and would be dreaded as such.
But it cannot be said that their intention was to strike terror in the people or a section of the people and thereby commit a terrorist act. It is clear that there was rivalry between the party of the accused on the one hand and Raju and Keshav on the other. The former desired to gain supremacy which necessitated the elimination of the latter. With that in view they launched an attack on Raju and Keshav, killed the former andinjured the latter. Their intention was clearly to eliminate them and not to strike terror in the people or a section of the people. It would have been a different matter if to strike terror some innocent persons were killed. In that case the intention would be to strike terror and the killings would be to achieve that objective. In the instant case the intention was to liquidate Raju and Keshav and thereby achieve the objective of gaining, supremacy in the underworld. The consequence of such violence is bound to cause panic and fear but the intention of committing the crime cannot be said to be to strike terror in the people or any section of the people. We are, therefore, of the view that the Designated Court was fully justified in taking the view that the material placed on record and the documents relied on did not prima facie disclose the commission of the offence punishable under Section 3(1) of the Act."
This, to us, appears to be an approach which is not only in complete harmony with the change of focus brought about by the new definition of `terrorism' through the amended Section 6 of the Anti- Terrorism Act, 1997 in Pakistan but is also in perfect accord with the global perceptions about the true nature of terrorism according to which the determinative factor is the design or purpose behind the act and not the presumptive effect created by the act upon those who were not even the targets of the private act. We have also noticed that the Hon'ble Supreme Court of India had already added a new dimension to this issue by observing in the case of Usmanbhai Dawoodbhai Memon v. State of Gujrat [(1988) 2 SCC 271] that: "-- it is well to remember that the legislation is limited in its scope and effect. The Act is an extreme measure to be resorted to when the police cannot tackle the situation under the ordinary penal law. The intendment is to provide special machinery to combat the growing menace of terrorism in different parts of the country. Since however, the Act is a drastic measure, it should not ordinarily be resorted to unless the Government's law enforcing machinery fails."
While quoting and reproducing the said passage of that judgment the Hon'ble Supreme Court of India had reiterated in the case of Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijja and others [AIR 1990 SC 1962] that: "To put it differently the ratio of the decision is that the provisions of the Act need not be resorted to if the nature of the activities of the accused can be checked and controlled under the ordinary law of the land. It is only in those cases where the law enforcing machinery finds the ordinary law to be inadequate or not sufficiently effective for tackling the menace of terrorist and disruptive activities that resort should be had to the drastic provisions of the Act. While invoking a criminal statute, such as the Act, the prosecution is duty bound to show from the record of the case and the documents collected in the course of investigation that facts emerging therefrom prima facie constitute an offence within the letter of the law. When a statute provides special or enhanced punishments as compared to the punishments prescribed for similar offences under the ordinary penal laws of the country, a higher responsibility and duty is cast on the Judge to make sure there exists prima facie evidence for supporting the charge leveled by the prosecution. 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."
In the subsequent case of Kartar Singh v. State of Punjab [(1994) 3 Supreme Court Cases 569] the Hon'ble Supreme Court of India reproduced the above-mentioned passages from the judgments in the cases of Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijja and others [AIR 1990 SC 1962] and Usmanbhai Dawoodbhai Memon v. State of Gujrat [(1988) 2 SCC 271] and commented upon them with approval and reiteration. The later case of Hitendra Vishnu Thakur and others v. State of Maharashtra and others [AIR 1994 SC 2623] can truly be described as a milestone in the context of identifying the true meanings of terrorism' and the Hon'ble Supreme Court of India had observed in its judgment in that case as follows : "Terrorism" is one of the manifestations of increased lawlessness and cult of violence. Violence and crime constitute a threat to an established order and are a revolt against a civilized society.
"Terrorism" has not been defined under TADA nor is it possible to give a precise definition of "terrorism" or lay down what constitutes "terrorism". It may be possible to describe it as use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole. There may be death, injury, or destruction of property or even deprivation of individual liberty in the process but the extent and reach of the intended terrorist activity travels beyond the effect of an ordinary crime capable of being punished under the ordinary penal law of the land and its main objective is to overawe the Government or disturb harmony of the society or "terrorise" people and the society and not only those directly assaulted, with a view to disturb even tempo, peace and tranquility of the society and create a sense of fear and insecurity.Even though the crime committed by a `terrorist' and an ordinary criminal would be overlapping to an extent but then it is not the intention of the Legislature that every criminal should be tried under TADA, where the fall out of his activity does not extend beyond the normal frontiers of the ordinary criminal activity. Every 'terrorist' may be a criminal but every criminal cannot be given the label of a 'terrorist' only to set in motion the more stringent provisions of TADA. The criminal activity in order to invoke TADA must be committed with the requisite intention as contemplated by Section 3(1) it follows that an activity which is sought to be punished under .Section 3(1) of TADA has to be such which cannot be classified as a mere law and order problem or disturbance of public order or even disturbance of the even tempo of the life of the community of any specified locality but is of the nature which cannot be tackled as an ordinary criminal activity under the ordinary penal law by the normal law enforcement agencies because the intended extent and reach of the criminal activity of the 'terrorist' is such which travels beyond the gravity of the mere disturbance of public order even of a 'virulent nature' and may at times transcend the frontiers of the locality and may include such anti-national activities which throw a challenge to the very integrity and sovereignty of the country in its democratic polity. Thus, unless the act complained of falls strictly within the letter and spirit of S. 3(1) of TADA and is committed with the intention as envisaged by that Section by means of the weapons etc. as are enumerated therein with the motive as postulated thereby, an accused cannot be tried or convicted for an offence under S. 3(1) of TADA. When the extent and reach of the crime committed with the intention as envisaged by S. 3(1) transcends the local barriers and the effect of the criminal act can be felt in other States or areas or has the potential of that result being felt there, the provisions of S. 3(1) would certainly be attracted. Likewise, if it is only as a consequence of the criminal act that fear, terror or/and panic is created but the intention of committing the particular crime cannot be said to be the one strictly envisaged by S. 3(1), it would be impermissible to try or convict and punish an accused under TADA. The commission of the crime with the intention to achieve the result as envisaged by the section and not merely where the consequence of the crime committed by the accused create that result would attract the provisions of S. 3(1) of TADA. Thus, if for example a person goes on a shooting spree and kills a number of persons, it is bound to create terror and panic in the locality but if it was not committed with the requisite intention as contemplated by the section, the offence would not attract S.3(1) of TADA. On the other hand, if a crime was committed with the intention to cause terror or panic or to alienate a section of the people or to disturb the harmony etc. it would be punishable under TADA, even if no one is killed and there has been only some person who has been injured or some damage etc. has been caused to the property, the provisions of S. 3(1) of TADA would be squarely attracted. Of late, we have come across some cases where the Designated Courts have charge sheeted and/or convicted an accused person under TADA even though there is not even an iota of evidence from which it could be inferred, even prima facie, let alone conclusively, that the crime was committed with the intention as contemplated by the provisions of TADA merely on the statement of the investigating agency to the effect that the consequence of the criminal act resulted in causing panic or terror in the society or in a section thereof. Such orders result in the misuse of TADA.---- Thus, the true ambit and scope of S. 3(1) is that no conviction under S. 3(1) of TADA can be recorded unless the evidence led by the prosecution establishes that the offence was committed with the intention as envisaged by S. 3(1) means of the weapons etc. as enumerated in the Section and was committed with the motive as postulated by the said Section. Even at the cost of repetition, we may say that where it is only the consequence of the criminal act of an accused that terror, fear or panic is caused, but the crime was not committed with the intention as envisaged by S. 3(1) to achieve the objective as envisaged by the section an accused should not be convicted for an offence under S. 3(1) of TADA. To bring home a charge under S. 3(1) of the Act, the terror or panic etc. must be actually intended with a view to achieve the result as envisaged by the said section and not be merely an incidental fall out or a consequence of the criminal activity. Every crime, being a revolt against the society, involves some violent activity which results in some degree of panic or create some fear or terror in the people or section thereof, but unless the panic, fear or terror was intended and was sought to achieve either of the objectives as envisaged in S. 3(1), the offence would not fall stricto sensu under TADA."
A similar approach was adopted by the Hon'ble Supreme Court of Pakistan 998 in the above- mentioned case of Mehram Ali and others v. Federation Pakistan and others [PLD 1998 SC 1445] by carving out the principle of nexus with the objects of the Anti Terrorism Act, 1997. However, it appears that in the last few years the said principle has either been side tracked or placed on the back burner in our country and the law is not only being stretched in a different direction but the same is also often being misapplied and misused by the police and the subordinate Courts. An appropriate and correct restatement of the relevant law for its proper application is, therefore, not only necessary but also a crying need so that the relevant law may be saved from being derailed from its real objectives.
20.By way of summing up we may observe that, keeping in view the latest definition of 'terrorism' contained in Section 6 of the Anti-Terrorism Act, 1997, mere gravity or brutal nature of an offence does not provide a valid yardstick for branding the same as terrorism. In order to qualify as terrorism the motivation behind the offence has to be political in the extended sense of the word and, as provided in the United Kingdom law, "the use or threat is made for the purpose of advancing a political, religious or ideological cause and the act has to be designed to destabilize the society at large. The history of crimes in the human society is replete with macabre, gruesome and horrifying offences shocking the society at large yet such crimes were never treated or accepted as terrorism because the motivation was personal and private. As against that even an unsuccessful attempt at sabotage of public supplies or services has readily been accepted as terrorism because the purpose behind the act is to destabilize the society at large. Even a petty theft in a house in a street is likely to create a sense of insecurity in the people living in that street, a rape of a young girl is bound to send jitters in every family having young girls living in the relevant locality, a murder in the vicinity surely creates a grave sense of fear in the inhabitants of the area, a bloodbath in furtherance of an on-going feud shocks the society as a whole, a massive fraud in a bank may send shock waves throughout the banking and financial sectors and an offence committed against a member of any profession may render the other members of that profession feeling vulnerable and insecure. But all such offences are ordinary crimes distinguishable from terrorism because for the former the motivation is personal and private whereas for the latter the purpose has to be to destabilize the society at large. In this backdrop a premature, speculative, presumptive and imaginary quantification of the effect of an action so as to determine the nature of the act as terrorism or not appears to be an unsure and subjective test and it would be safer and consistent to revert to the principle of nexus carved out by the Hon'ble Supreme Court of Pakistan which is not only now a statutory requirement but the same is also consistent with the first major enunciation of the relevant law by our Supreme Court and that too by a Bench larger than any other Bench deciding any of the other cases mentioned above.
21.It may be mentioned here that the case of Mehram Ali and others v. Federation of Pakistan and others [PLD 1998 SC 1445] had been decided by a Bench of five Hon'ble Judges of the Supreme Court of Pakistan whereas all the cases decided by the same Hon'ble Court mentioned in Paragraph No, 15 of this judgment had been decided by Benches of lesser numerical strength. It has been maintained by the learned counsel for the petitioner that in the judgments of the Hon'ble Supreme Court referred to in Paragraph No, 15 of this judgment no principle of law had been enunciated as the same had proceeded primarily upon questions of fact as to whether the actions attributed to the accused parties therein had the effect of creating fear and insecurity in the public or not and, thus, according to him, the said judgments did not have a binding force contemplated by the provisions of Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973. He has also argued that in all of those cases no argument had been advanced before the Hon'ble Supreme Court of Pakistan regarding the change brought about by the new definition of terrorism introduced through the amending Ordinance and in respect of the effect of such change in the matter of interpretation of the relevant law. Thus, according to him, the said judgments had been passed sub silentio divesting them of their binding force and rendering them incapable of being created as stare decisis. For elucidating as to what constitutes a point of law and for explaining the principles regarding sub silentio and stare decisis the learned counsel for the petitioner has referred to the cases of Haji Abdullah Khan and others v. Nisar Muhammad Khan and others [PLD 1965 SC 690], Pir Bakhsh v. The Chairman, Allotment Committee and others [PLD 1987 SC 145], Trustees of the Port of Karachi v. Muhammad Saleem [1994 SCMR 2213], Khawaja Auto Cars Limited v. Haji Sharif Khan [1996 CLC 1337], Muhammad Rafique and sixteen others v. Sultan Bakhsh and another [PLD 1991 Karachi 320] and Subedar v. Mian Inam Elahi and others [PLD 1989 Lahore 309] and various authoritative treatises on these subjects. We would, however, not like to comment on these submissions as it suffices to observe for the present purposes that in the case of Fazal Muhammad Chaudhri v. Ch. Khadim Hussain and three others [1997 SCMR 1368] the Hon'ble Supreme Court of Pakistan had itself observed that: When there is conflict between two decisions of this Court, then the decision of the larger Bench would prevail and in such circumstances we are of the view that earlier decision of this Court rendered by five Judges holds the field."
Even the Hon'ble Supreme Court of India had held in the case of The State of U.P. v. Ram Chandra Trivedi [AIR 1976 SC 2547] that: "It is also to be borne in mind that even in cases where a High Court finds any conflict between the views expressed by larger and smaller benches of this Court, it cannot disregard or skirt the views expressed by the larger benches. The proper course for a High Court in such a case, as observed by this Court in Union of India v. K.S. Subramanian, is to try to find out and follow the opinion expressed by larger benches of this Court in preference to those expressed by smaller benches of the Court which practice, hardened as it has into a rule of law, is followed by this Court itself."
22.Judged on the basis of the requirements of the amended provisions of Section 6 of the Anti- Terrorism Act, 1997 and examined on the touchstone of the principle of nexus propounded by the largest Bench of the Hon'ble Supreme Court of Pakistan in the case of Mehram Ali and others v.
Federation of Pakistan and others [PLD 1998 SC 1445], reiterated by an equally large Bench of it in the case of Jamat-i-Islami Pakistan through Syed Munawar Hassan, Secretary-General v.
Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs [PLD 2000 SC 111] and applied by it in the case of Ch. Bashir Ahmad v. Naveed lqbal and 7 others [PLD 2001 SC 521] the case in hand, despite the brutality displayed by the culprits and the consequent horror, shock, fear and insecurity likely to be created by the savagery perpetrated by the offenders, has not appeared to us to be a case of terrorism as the motive for the alleged offences was nothing but personal enmity and private vendetta and the motivation on the part of the accused party was not to overawe or intimidate the Government, etc. or to destabilize the society at large or to advance any sectarian cause, etc. The intention of the accused party did not depict or manifest any 'design' or `purpose' as contemplated by the provisions of Section 6(1)(b) or (c) of the Anti-Terrorism Act, 1997 and, thus, the actus reus attributed to it was not accompanied by the necessary mens rea so as to brand its actions as terrorism triable exclusively by a Special Court constituted under the Anti-Terrorism Act, 1997. The stand taken before us by the learned Assistant Advocate-General appearing for the State also proceeds on the same lines and it is for these very reasons that the State has chosen not to oppose this petition. This writ petition is, therefore, allowed, the impugned order passed by the learned Judge, Anti-Terrorism Court-II, Gujranwala on 4.10.2003 is declared to be without lawful authority and of no legal effect and the same is set aside, the application filed by the petitioner before the said Court under Section 23 of the Anti-Terrorism Act, 1997 is accepted and the petitioner's case is declared to be triable by a Court of ordinary jurisdiction. The learned Judge, Anti-Terrorism Court-II, Gujranwala is directed to transmit the record of the petitioner's case to the learned District & Sessions Judge Gujranwala forthwith for further in the matter. There shall be no order as to costs.
23.Before parting with this judgment we on record our appreciation for the hard work put in by the learned counsel for the parties. The assistance rendered to us by the learned counsel for the petitioner has particularly been found by us to be outstanding.
24.The Office of this Court is directed to send a copy of this judgment to the Presiding Officers of all the Special Courts constituted under the Anti-Terrorism Act, 1997 in the Province of the Punjab for their information and guidance. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.