2013 PLP 92 (YLR)

The petitioner, complainant of case F.I.R. No. 1266 of 2010 dated 15-10-2010, under sections 324, 148, 149, 427, 337-A(i), 337-L(iii), 337-L(2), P.P.C. read with section 7 Anti-Terrorism Act, 1997 registered at Police Station Qila Gujjar Singh, Lahore, feels aggrieved of order dated 21-6-2011 passed by learned Judge ATC No.III, Lahore, whereby, application filed by respondent No.2 (accused) under section 23 of Anti-Terrorism Act, 1997 has been accepted and trial of above said case has been transferred to the Court of ordinary jurisdiction.

2. Learned trial Court, in para 4 of the impugned order has referred to the rudiments of 'terrorism' and a 'terrorist act' as defined under section 6(2) (a to n) of Anti Terrorism Act, 1997. The 'purpose', the motivation, the 'actus reus' and the 'mens rea' constitute the components of terrorism or an act of terrorism. An action designed to coerce and intimidate or overawe the government or the public or section of public or community or sect or, if such an action is designed to create a sense of fear or insecurity in society in the backdrop of religious, sectarian or ethnic cause, shall constitute an act of terrorism or a terrorist act. To create fear or insecurity in the society through a crime is not by itself terrorism unless the motive or the design or the actus reus or mens rea pre-exists for creating such fear or insecurity in the society. A private crime resulting into fear or insecurity as a by-product, a fall out or an unintended consequence of fright etc. cannot be termed as an act of terrorism. Mere gravity, heinousness, gruesomeness or shocking nature of any offence, committed in pursuance of personal enmity or in settlement of personal vendetta is not by itself sufficient to brand such crime as a terrorist act or an act of terrorism. The reliance in this regard may be had to "Mehram Ali and others v. Federation of Pakistan and others" (PLD 1998 SC 1445) and "Muhabbat Ali and another v. The State and another" (2007 SCMR 142).

3. Precisely, the prosecution case as stated by Pervaiz Iqbal complainant is that 8/10 boys, who were armed with mousers, rifles and dandas all at once, resorted to aerial firing at about 7-00 pm on 14-10-2010 when he sat in his shop; one of them fired straight which landed on his right hip area; the accused also injured left leg of Muhammad Asif with their act of firing; one of the fire shots kissed past the head of Khurram Shahzad who luckily escaped any injury on his person; all the aforesaid accused resorted to indiscriminate firing in the market, ransacked many shops, smashed furniture and fixture and fled away still firing and raising lalkaras. The motive behind the occurrence was that the above said accused were forbidden from selling the dummies of the cell phones which caused them anger and anguish due to which they committed the crime. The complainant later-on learnt the names of the assailants as Adeel alias Chitta (armed with mouser), Shoaib (armed with mouser), Faran Khan (armed with mouser) and Lilla (armed with mouser) but he did not disclose the source of his information.

4. It has been strongly contended by learned counsel for the petitioner that Basit accused-respondent No.2 in cahoots of his armed co-accused committed the crime, during the course of which they resorted to indiscriminate firing, injured the complainant and another, put lives of many at peril, ransacked many shops of the market, smashed furniture and fixture and thereby committed a gruesome act which sent a wave of terror and fright amongst the shopkeepers/public at large and thereby they committed an act of terrorism punishable under section 7, Anti-Terrorism Act, 1997 which, as required under section 12 of the Act is exclusively triable by an Anti Terrorism Court; the attending facts of the case have been grossly overlooked by the learned trial Court while passing the impugned order which may not be sustained.

5. Arguments heard. Record perused.

6. The definition and interpretation of an act of terrorism, as noted hereinabove does not favour the contention of the learned counsel for the petitioner as the offence alleged by the petitioner was necessarily a fall out of the motive alleged in the aforesaid F.I.R., according to which the act of selling the dummies of cell phones by the accused, was checked by the shopkeepers including the petitioner, who forbade them to do so due to which they nurtured grudge and committed the crime. It is a case of satisfaction of personal vendetta by the accused which has nothing to do with the ingredients and components of an 'act of terrorism' as the crime committed was not meant for creating a sense of fear or insecurity in the society or a section of society or to public at large nor it was designed to coerce or intimidate or overawe the government or the public or section of the public or community or sect or fanning out the religious, sectarian or ethnic ill-will or hatred. A private crime cannot be transformed into an 'act of terrorism' by any stretch of imagination, only by keeping in view the fear, the fright, the horror, or the sense of insecurity being the by-product or the fall out or an unintended consequence or an undesigned extremity caused by such offence. In Mehram Ali's case (PLD 1998 SC 1445) it has been observed by the Hon'ble Supreme Court of Pakistan that nexus has to be shown between the act done and the objective or design by which the said offence was committed, to formulate an opinion whether or not such offence could be termed an act of terrorism. In the absence of such linkage it cannot be held that the offence, committed in the background of personal enmity or vendetta, transmitting a wave of terror or fright or horror was necessarily an act of terrorism. The complainant and his co-witnesses had categorically stated during investigation that the accused mentioned in the F.I.R. had a personal motive and grudge to commit the offence, therefore, the crime committed by them, regardless its repercussions, cannot be dubbed an act of terrorism. The impugned order is well-reasoned and appears to have been passed not only by keeping in view the facts of the case but also the relevant law on the subject. Therefore, we are not inclined to interfere with the impugned order which, being cogent and plausible, is sustained.

7. Resultantly, the instant writ petition is dismissed in limine. NHQ/P-11/L Petition dismissed.