2015 PLP 2409 (YLR)

Through this petition, the petitioner assails the order dated 5-6-2015 passed by the learned Special Judge, Anti-Terrorism Court, Faisalabad, whereby his application under Section 23 of Anti-Terrorism Act, 1997 for transfer of case FIR No.113/2015 dated 22-4-2015 under Sections 452, 337-H(2), 342, 440, 447, 511, 148, 149, P.P.C. read with Section 7 of Anti, Terrorism Act, 1997, to the court of ordinary jurisdiction has been dismissed.

2. Heard. Record perused.

3. FIR in this case was registered against the petitioner and others with the allegation that at about 09:40 p.m. they all while armed with lethal weapons attacked the house of the complainant, resorted to indiscriminate firing, entered into the house while breaking the main gate and damaged the household articles, as such, created a sense of fear in the vicinity.

4. Definition of "terrorism" has been incorporated in Section 6 of Anti-Terrorism Act, 1997 that reflects that meaning of "terrorism" includes use or threat of action that falls within the meaning of sub section (2) of the same and it includes use or threat if designed to coerce and intimidate or overawe the government or the public or a section of public or community or sect or create a sense of fear or insecurity in the public at large. It also includes use of threat for the purpose of advancing a religious, sectarian or ethnic cause or intimidation and terrorism against the public, social sectors, business community etc. It also includes attacking civilians, government officials, installations, security forces or law enforcing agencies. The Hon'ble Supreme Court of Pakistan has held in numerous cases that while applying a particular law, court must take into consideration the object for which the law has been enacted. Needless to refer that Anti-Terrorism Act, 1997, as per its preamble, was enacted "to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences and for matters connected therewith and incidental thereto." The interpretation of criminal law requires that the same should be interpreted in the way it defines the object and not to construe in a manner which may defeat the ends of justice or the object of law itself. Thus for determining the issue whether the offence is triable under the Anti-Terrorism Act or not, nature of offence has to be seen in the light of the averments that how the same has been committed along with the particular place of incident and further that by that act a sense of fear and insecurity in the society has been created in the minds of the people at large or not. Striking of terror is sine qua non for the application of the provisions as contained in Section 6 of Anti-Terrorism Act, 1997.

5. We have noted that the incident in this case took place at odd hours of night. As per contents of the FIR itself civil litigation is pending between the parties regarding the disputed property possessed by the complainant and according to the complainant's own version on the day before the night of occurrence i.e. 21-4-2015 an altercation took place between him and the accused Muhammad Abbas when they went to attend the hearing of their case before Director Anti-Corruption, Faisalabad. We have also noted that no body has received any injury in this occurrence and commission of the crime by the accused at some public place also does not borne out from the record whereby it can be termed that the accused had frightened the general public and created terror and fear amongst the people. We are of the considered view that motive for the occurrence in this case is enmity inter se the parties on account of their longstanding civil litigation, as such, the application of Section 7 of Anti-Terrorism Act, 1997, which primarily requires the spread of sense of insecurity and fear in the common mind, does not attract. In this context, we respectfully refer the case of Bashir Ahmad v. Muhammad Siddique and others (PLD 2009 SC 11), wherein the Hon'ble Supreme Court of Pakistan has held as under:- "In order to determine as to whether an offence would fall within the ambit of section 6 of the Anti-Terrorism Act, 1997, it, would be essential to have a glance over the allegations made in the FIR, record of the case and surrounding circumstances. It is also necessary to examine that the ingredients of alleged offence have any nexus with the object of the case as contemplated under sections 6, 7 and 8 thereof. Whether a particular act is an act of terrorism or not, the motivation, object, design or purpose behind the said act is to be seen. It is also to be seen as to whether the said act has created a sense of fear and insecurity in the public or any section of the public or community or in any sect. Examining the case in hand on the above touchstone, it is manifest on the face of it that the alleged offence took place because of previous enmity and private vendetta. A perusal of the record would reveal, that occurrence has taken place in front of the `haveli' of the respondents, situated in village Ratoowala'. The motive for the occurrence is enmity inter se the parties on account of some previous murders. In this view of the matter, we are of the opinion that since motive was enmity inter se the parties, the application of section 7 of the Act, which primarily requires the spread of sense of insecurity and fear in the common mind is lacking in the present case."

6. Therefore, by allowing this writ petition, the impugned order dated 5-6-2015 passed by the learned Special Judge, Anti-Terrorism Court, Faisalabad being not based upon proper appreciation of facts and the relevant law on the subject is hereby set aside with the result that application moved by the petitioner under Section 23 of Anti-Terrorism Act, 1997 for transfer of case F.I.R No.113/2015 dated 22-4-2015, registered at Police Station Qadirpur District Jhang is accepted. Consequently, case pending before the learned Special Judge, Anti-Terrorism Court, Faisalabad stands transferred to the court of ordinary jurisdiction. HBT/G-27/L Petition allowed.