Briefly the facts as per F.I.R. No, 49 dated 31-1-2003 registered under sections 302, 324, 148, 149 P.P.0 are that the complainant Malik Muhammad Farooq alongwith his brother Manzar went to Jamia Mosque Misrial to offer Jumma prayers. After Jumma prayers, the Imam of the Mosque started to offer Doa when at about 2.00 p.m., Kamran armedwith .30 bore pistol, Abrar armed with 30 bore pistol, Irshad alias Shada, Altaf and Mushtaq co-accused appeared in the row in front of the complainant and his brother. Altaf raised a Lalkara that Manzar should be taught a lesson of the murder of Yasin and addressing Karmran and Ibrar co-accused stated that Manzar should not be allowed to leave the mosque alive. When the complainant and his brother Manzar stood up, Kamran directly fired upon Manzar which hit him on his chest. Manzar fell down whereafter Ibrar co-accused fired upon him which hit the deceased in his abdomen, right leg and back.
Commotion prevailed within the mosque. Kamran resorted to aerial firing. One Aziz Gul was also hit on his back,
2. The motive of the occurrence is stated to be that Yasin, the father of Kamran etc. Was murdered and Manzar was accused of the offence. Manzar was however, acquitted from the said case and it was to take revenge that Manzar was attacked who later succumbed to his injuries.
3. As is apparent from the brief resume mentioned above, the case was initially lodged under the provisions of Pakistan Penal Code. However, the D.S.P. (Legal), Rawalpindi added section 7 of the Anti-Terrorism Act, 1997 and recommended the trial of the accused under the Anti-Terrorism Act.
Section 7 ATA was later added in the F.I.R. An application under section 23 of the ATA, 1997 was submitted by Ibrar Hussain co-accused for transferring the case from the Court of Judge, Special Court, Anti-Terrorism Act, Rawalpindi to the Ordinary Court as according to him, no case under section 7 of the. ATA was made out.
4. The learned Judge Special Court considered the submissions of both the sides and vide order dated 26-5-2003 turned down the request of Ibrar Hussain co-accused mainly for the reason which is recorded by the learned Judge Special Court as under:- "No doubt the F.I.R. Shows that the accused party had motive against the deceased who allegedly was responsible for the murder of father of Kamran etc. The accused could have attacked on the deceased anywhere to take revenge. Choosing of the venue and the time i,e, the time of Jumma prayers in Jam-eMasjid prima facie brings the case in the ambit of section 7 ATA, 1997. The application is without substance and is dismissed accordingly."
5. The learned counsel for the petitioner has vehemently contended that neither section 6 nor section 7 of the Anti-Terrorism Act, 1997 was applicable to the case. The learned counsel for the petitioner has reliedupon the case of Ch. Bashir Ahmad v. Naveed lqbal and 7 others (PLD 2001 SC 521) to contend that the basic ingredient of an act of terrorism/terrorist act as contemplated by section 6 and the schedule annexed to ATA is the element of intention of striking terror and create a sense of fear and insecurity in the people or any section of the people by doing an act or thing particularly with the use of explosive or inflammable substances. According to the learned counsel, the F.I.R. Itself gives out in detail the specific motive for the occurrence which is relevant and confined only to the enmity that existed between the complainant and the accused party. It is submitted that more particularly, Manzar deceased was allegedly done to death for the motive that the deceased who was allegedly involved in the murder of Yasin was later on acquitted of the said charge. It is contended by the learned counsel for the petitioner that the learned Judge, Special Court clearly fell in error in assuming in the impugned order that the venue of the occurrence i,e. The premises of a mosque and the timing of the occurrence i,e,, just after Jumma prayers was sufficient to indicate that the accused had the intention of committing an offence under section 7 ATA. It is submitted that this assumption is based on conjectures and surmises and had no legal footing.
6. Conversely the, learned counsel for the complainant submits that the accused had deliberately chosen the venue of the mosque and the time of Jumma prayers to perpetrate the barbaric act of causing fatal assault upon the deceased and had done so with the clear intention of creating panic and terror amongst those present in the mosque. He also submitted that the offence had a clear nexus with the objects of the ATA, 1997 and that section 7 was rightly incorporated not only by the DSP (Legal) but also by the learned Judge Special Court. The learned counsel placed reliance upon the case of Muhammad Mushtaq v. Muhammad Ashiq and others (PLD 2002 SC 841) to contend that where a criminal act was designed to Create a sense of fear and insecurity in the mind of the general public, disturbing even tempo of life and tranquility of society, it can justly be called a terrorist act. According to him, it is the cumulative effect of the occurrence as to the time, place and the manner of the offence and the weapons used therein which could successfully determine whether or not a case fell within the ambit of the Anti terrorism Act and thus, liable to be tried in accordance with the provisions of that Act.
7. Learned Law Officer supported the case of the prosecution whereby section 7 ATA was added.
8. The arguments of the learned counsel for the parties have been heard and record perused.
9. In order to appreciate the true impact of sections 6 & 7 of ATA. 1997, it is necessary to cite section 6 which is reproduced as under:-- "S.6. Terrorism.--(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 subsection (1), if it:
(a) involves the doing of anything that causes death:
(b) involves grievous violence against a person 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 on 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 civil life;
(j) involves the burning of vehicles or any other serious form of arson;
(k) involves extortion of money ("bhatta") or property;
(I) is designed to seriously interfere with or seriously disrupt a communications system or public utility service;
(m) involves serious coercion or intimidation or 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 subsection (2), which involves the use of firearms, explosives or any other weapon, is terrorism, whether or not subsection 1(c) is satisfied.
(4) In this section "action" includes any act done for the benefit or a proscribed organization.
(5) In this Act, terrorism includes any act done for the benefit of a proscribed 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.
10. A close scrutiny of the F.I.R. Would show that the complainant and the deceased Manzar had gone to offer the Jumma prayers on the fateful day. It was after the prayers were concluded and while the Imam was leading the prayers that the accused appeared at the spot and came and stood in the front row from the complainant and the deceased. According to the prosecution, Altaf had raised a Lalkara wherein he addressed Kamran and Ibrar co-accused and proclaimed that Manzar should not be left alive. It was thereupon that the incident of firing at Manzar deceased took place, which resulted in the death of the deceased. Even according to the F.I.R., Kamran accused further resorted to aerial firing and one Aziz Gul was hit with a bullet on his back.
11. It is also not denied that the motive has been unambiguously mentioned by the prosecution. A perusal of the motive would show that this was a case of personalized enmity between the complainant party on the one hand and the accused party on the other. This being the case, it cannot be said with any certainty that the accused party had deliberately chosen the venue of the mosque or the time of Jumma prayers for committing the said offence. If the motive is to be prima facie believed, the focus of the accused would be to take revenge against their enemy whom they had reason to believe had committed the murder of Muhammad Yasin. Any act of violence whether it involves single or multiple murders has to be viewed in the context of purpose and object of the law which governs the trial of such offence (s). Law has certainly created and maintained a distinction between the act of terrorism which in its nature inheres a deliberate element and purpose of striking terror in the mind of general public for the ulterior and conjoint purpose as enunciated in S.6(1)(b) or disjoint as specified in S.6(1)(c). An act of terrorism caused by an unknown hand and for apparently unknown reasons and causing wide spread damage to life, limb or property can justifiably be called a terrorist act subject to the provisions of the special law.
To my mind, an act to fall within the purview of ATA, 1997 must be an offence with the primary objective of causing panic amongst the A general public or a particular section of the society in order to prohibit and restrain them from going about their normal and routine activity orto achieve any object as enunciated in S.6(1)(b) or S.6(1)(c) where applicable. Where however, an act stems from enmity which is identifiable between the definite set of the complainant and the accused, the panic or terror created as a consequence of the said act would not by itself be sufficient to bring the said act within the pale of the Anti-Terrorism Act.
12. In this scenario, it is rather premature to assume that the accused had purposely selected the venue of the mosque and the timing of the Jumma prayers for taking revenge against the deceased. That such an act must create a 'sense of shock and revolt is but natural. What has to be seen however, is whether the panic was as a consequence of an otherwise penal act or whether the act itself was designed to strike terror.
13. In order that the provisions of the ATA, 1997 are attracted, the pre-requisites of showing that the offence fell within the purview of section 6 ibid is essential. A close scrutiny of this provision of law would show that under section 6(2), an "action" which involves the doing of an act covered by sub- clauses (a) to (n) thereof must bear the necessary nexus with section 6(1)(b). An "action" to be termed as a terrorist act must be a criminal activity which is designed to be used as C an anti- establishment and anti-social tool and generative of sectarian or ethnic violence which should have the effect of coercing or intimidating or over-awing the Government or the public or a section of the public or community or create a sense of fear or insecurity in the society. The action might be the actual perpetration of the criminal activity or may merely be a threat to cause the same.
The act of terrorism and the object for which it is used are to be read conjunctively. An act can also qualify as an act of terrorism if the perpetration of the criminal act or its threat is made for the purpose of advancing a religious, sectarian or ethnic cause which ultimately has the effect of destroying the fabric of the society. It was, with a view to control, curb and eliminate terrorism and sectarianism that the Anti-Terrorism Act, 1997 was, promulgated. The determining factor shall not be the criminal act itself but the fact whether they are coupled with the mens rea, intention, aim or objectives to commit an act of terrorism as embodied in section 6 ATA, 1997. It is only when all such factors are proved that offences under ordinary law become terrorist acts subject to the Anti- Terrorism Laws.
14. In this view of the matter, the reasons stated by the learned Judge Special Court Anti-Terrorism, Rawalpindi in his impugned order dated 26-5-2003 do not appear to be very sound. To the contrary, the reasons forwarded for attraction of section ATA, 1997 to the present case are based on conjectures, surmises and assumptions which are not supported by any material on the record.
15. As a result, this writ petition is allowed and the impugned order dated 26-5-2003 of the learned Judge Special Court, Anti-Terrorism Rawalpindi is set aside and it is held that the case against the petitioner is liable to be transferred to the ordinary Court for trial.