' DAZ-UL-HASSAN KHAN, J.--- Muhammad Ramzan and Khadim Hussain sons of Mulazim Hussain, residents of village Budhani, Tehsil and District, D.I. Khan, petitioners, have filed instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 with prayer that impugned order dated 20-10-2003 of learned Judge, Anti-Terrorism Court, D.I. Khan be declared as illegal, void, arbitrary and of no legal effect on the rights of the petitioners and learned trial Judge be directed to transfer the subject case to ordinary Court of criminal jurisdiction fat trial of the petitioners in accordance with law.
2. Shortly narrated the facts are that on 16-11-2002 at about 8-00 p.m. After offering `Taraveeh' prayers, Muhammad Ramzan, petitioner No.1, went to the house of his father and entered into his residential room where he noticed his sister Mst. Ulfat Bibi (deceased) and one Jalil son of Bashir Ahmad (deceased) lying on one and the same cot, on which, he killed both of them with hatchet lying in the said room and Chhurri owned by Jalil deceased by acting under `Ghairat'. Petitioner No.1 himself went to Police Station, Saddar, D.I. Khan and made a report. The case was registered vide F.I.R. NO.389 dated 16-11-2002 under section 302, P.P.C. During the course of investigation, Khadim Hussain, petitioner No.2 was also involved in the case. After completion of necessary investigation, the local police submitted complete challan against the petitioners in the Court of Judge, Anti- Terrorism Court, D.I. Khan for trial. The petitioners submitted- an application to learned Judge for transfer of the case to any other ordinary Court of law for trial. The ' application was rejected vide order dated 20-10-2003 mainly on the ground that 'two persons have been done to death apparently for unknown reasons and the case is triable by this Court.
3. Mr. Saif-ur-Rehman Khan, Advocate for the petitioners contended that report of the instant occurrence was lodged by petitioner No.1 himself who not only admitted the commission of the offence but also produced the weapon of offence to the local police. He added that Mst. Ulfat Bibi and Jalil having been seen in compromising position on one and the same cot inside the room of the house of the father of the petitioner, were done to death under grave and sudden provocation and that instant case does not attract the provisions of section 6 of the Anti-Terrorism Act, 1997.
4. Mr. Muhammad Sharif Chaudhary learned Deputy Advocate General for the State conceded that the impugned order is not sustainable and cannot be allowed to remain intact.
5. The question for determination by this Court is as to whether in the facts and circumstances of the case, the petitioners could be tried by ordinary Court of criminal jurisdiction or by the Special Court constituted under the Anti-Terrorism Act, 1997:
6. The Terrorist Act has been defined under section 6 which was amended through Ordinance XXIX of 2000 promulgated on 24-7-2000 which reads as follows:-- "6. Terrorist Act: 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;
(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; c) commits an act of gang rape, child molestation, or robbery coupled with rape as specified in the Schedule to this Act;
(d) commits an act of which snatching or lifting damage to, or destruction of, State or private property, random firing to create panic charging bhatha or criminal trespass."
7. The same question was examined in Mehram Ali case reported in PLD 1998 SC 1445 and it was "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 had no nexus with the above sections, in that event notification including such an offence to that extent will be ultra vires. In this regard reference may be made to the case of Government of Balochistan through Additional Chief Secretary v. Azizullah Memon PLD 1993 SC 341 (supra), of which certain relevant portions have already been quoted hereinabove in para. 10(a). It will be instructive to quote the following observation of the issues of nexus:--- "Where the jurisdiction Of the ordinary Courts established under the ordinary law is excluded or barred and certain class of cases or class of persons or inhabitants of an area are not allowed to approach such Courts and are to be tried or rights adjudicated by Special Courts, then a fair, rational and reasonable classification must be made which have nexus with the object of the legislation."
' We may also refer to the case of Darvesh M. Arbey v. Federation of Pakistan PLD 1997 Lahore 846, wherein a Full Bench of the Lahore High Court comprising the then Chief Justice and four companion Judges while considering Constitution (Seventh Amendment) Act, 1977, and the amendment in the Army Act has dealt with the question of nexus as under:--- "It is important to note that even a nexus or connection has not been provided by the amendment between the offences made exclusively triable by the Military Courts by virtue of this amendment and the object for which the Armed Forces had been called in Lahore i.e. To restore law and order.
The result is that even to that extent this amendment in the Army Act, has in fact, resulted in the displacement of the ordinary criminal Courts in the District of Lahore by the Military Courts.
' The provision in the proviso to section 3 of Act X of 1977 that the authorized Army Officer can transfer any such case, in his discretion to the ordinary criminal Courts, does not in our view improve the status of the ordinary Courts.
' It is, therefore, obvious that to the extent that the Courts established by the Armed Forces are trying civilians of Lahore for offences which have no nexus with the object for which they are said to have come, they (i.e. The Armed Forces) are not acting "in aid" of the civil power but in derogation or replacement thereof. This is certainly not envisaged by Article 245(1) of the Constitution. It is evident from a reading of Article 245 (1) that the laws subject to which the Armed Forces are required to act under that Article are intended to be of a nature as would not place the Armed Forces in a position superior or dominant to that of the civil power or to bestow such powers on them that, instead of acting in aid of the civil power, the Armed Forces, in fact, start acting in suppression or displacement of the civil power. We are therefore, of the view that as far as Act X of 1977 (which amends the Army Act, 1952), is concerned, the most essential pre-condition prescribed by clause (3) of Article 245 which is mentioned by the learned Attorney General as the 2nd jurisdictional fact, is absent. Consequently, we hold that clause (3) of Article 245 does not have the effect of ousting the jurisdiction of this Court under Article 199.".
8. It needs no reiteration that Anti- Terrorism Act will be attracted only when the act or threat to commit an act has nexus to sections 6, 7 and 8 of the Anti-Terrorism Act, 1997. If the consequences of the act or threat to commit an act falling within the ambit of section 6 must be striking a terror and creating a sense of fear and insecurity among the people. Ordinary crimes and the physical harm to the victim would not fall within the ambit of Anti-Terrorism Act, 1997. For taking cognizance of an offence, the Court has to see physiological impact of the violence which is always considered a decisive factor. A criminal act designed to create a sense of fear and insecurity in the minds of general people and creating a panic in the society are parameters for bringing an offender within the ambit of Anti-Terrorism Act. PLD 2003 SC 224
9. Having regard to the facts and circumstances of the present case, we find that the present case is not falling within the ambit of Anti-Terrorism Act, 1997. We feel that if such-like cases are held to be tried by Special Court constituted under Anti-Terrorism Act, 1997, then there will be nothing left for adjudication by the ordinary criminal Courts. It shall defeat the very object of the Act given in its preamble. For the above reasons, the writ petition is accepted and the subject case is transferred to the ordinary Court of jurisdiction under section 23 of the Anti-Terrorism Court, 1997.
10. Above are the detailed reasons of our short order dated 27-5-2004.