2020 P Cr (PLP)

SADIQ MAHMUD KHURRAM, J.

Through this revision petition under section 435 read with section 439, Cr.P.C., the petitioner has challenged the validity of order dated 18.07.2019 passed by the learned Judge, Anti-Terrorism Court-I, Multan whereby an application moved by the petitioner under section 23 of Anti-Terrorism Act, 1997 for transfer of the case to the court of ordinary jurisdiction has been dismissed.

2. The brief facts of the case are that on the statement of Nasir Mahmud, Inspector, the complainant/respondent No. 2, the case FIR No. 136 of 2019 dated 19.03.2019 was registered at Police Station City Burewala, District Vehari in respect of offences under sections 302, 324, 427, 148, 149, P.P.C. and under section 7 of the Anti-Terrorism Act, 1997 against the petitioner for an occurrence which took place on 19.03.2019 at about 2.20 p.m. alleging therein that on 19.03.2019 at 2:20 p.m. Nasir Mahmood Inspector PW City Burewala along with Hassan Sajjad SI, Muhammad Asif Khan ASI, Muhammad Qasim ASI, Muhammad Ashraf 1257/HC, Muhammad Imran 375/C, Khursheed Aalam 989/C, Mahmood Akhtar 109/C on official vehicle No. VRJ-8908 with Mukhtar Ahmad 488/C as driver were present at Fawara Chowk Burewala City in connection with patrolling duty and on receiving information they reached at Lorry Adda Burewala where the petitioner and 14 others named in the FIR along with 5/6 unknown persons all armed with firearm weapons belonging to the Gujjar Group and Nadeem Akram with as many persons named in the FIR along with 06/07 unknown accused armed with firearm weapons belonging to the Chohan Group were exchanging fires with each other and as a result of the firing Sultan Ahmad, Ghulam Mustafa and Muhammad Awais Shoukat died whereas Arshad Ahmed , Touqeer, Mst. Nazeeran Bibi, Naveed, Naeem and Nadeem Akram sustained injuries. The motive of the occurrence as mentioned in the FIR was that the altercation had taken place between the Gujjar Group and the Chohan Group over the dispute pertaining to seating of passengers from the Bus stands of each group.

3. In support of this petition it has been argued by the learned counsel for the petitioner that the motive of the occurrence was a dispute between the parties over a bus stand and the purpose and design of the occurrence was not to create sense of fear and insecurity among the public at large. The learned counsel for the petitioner further argued that the occurrence took place in consequence of personal enmity as there existed a long history of litigation between the parties on the issuance of license of D-Class Stand and the said litigation is still pending before this Court which clearly reflected personal enmity between the two groups. The learned counsel for the petitioner further argued that the actions were neither designed nor for the purpose of terrorizing the public rather the same happened at the spur of moment. The learned counsel for the petitioner further argued that it is a settled principle of law that mere gravity of an offence does not bring it within the ambit of the provisions of the Anti-Terrorism Act, 1997 and the court constituted under the Anti-Terrorism Act, 1997 clearly lacks jurisdiction to try the petitioner, therefore, this petition may be accepted and case of the petitioner may be transferred to the court of ordinary jurisdiction.

4. The learned Deputy Prosecutor General (DPG) supported the impugned order and stated that the case fell squarely within the ambit of the Anti-Terrorism Act, 1997 as the actions of the accused met the requirements of section 6(2) of the Anti-Terrorism Act, 1997 .However when questioned whether the acts of the accused also met the requirements of subsection 6(1)(b) or (c) of the Anti-Terrorism Act, 1997, the learned Deputy Prosecutor General very fairly agreed that they did not .

5. We have heard the learned counsel for the petitioner, the learned Deputy Prosecutor General and perused the record minutely.

6. Issue involved in this revision petition is the jurisdiction of the Special Court and application of sections 6 and 7 of the Anti-Terrorism Act, 1997. The preamble of the Anti-Terrorism Act, 1997 provides 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 Anti-Terrorism Act, 1997 confers jurisdiction to try the scheduled offences exclusively upon the Special Courts constituted under the said Act. Section 12 of Anti-Terrorism Act, 1997 provides as under: "

12. Jurisdiction of Anti-Terrorism Court.

(1) Notwithstanding anything contained in the Code or in any other law, a scheduled offence committed in an area in a Province or the Islamabad Capital Territory shall be triable only by the Anti-Terrorism Court exercising territorial jurisdiction in relation to such area." Section 2(t) of the Anti-Terrorism Act, 1997 defines a scheduled offence in the following terms: "Scheduled offence" means an offence as set out in the Third Schedule." Section 6 of the Anti-Terrorism Act, 1997, which defines "terrorism", reads as under:- "6.Terrorism.

(1) In this Act, "terrorism" means the use or threat of action where: (a) the action falls with the meaning of subsection (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 a foreign government or population or and international organization] or create a sense of fear or insecurity in society; or (c) the use of threat is made for the purpose of advancing a religious, sectarian or ethnic cause, or intimidating and terrorizing the public, social sectors, media persons, business community or attacking the civilian, including damaging property by ransacking, looting, arson or by any other means, government officials, installations, security forces or law enforcement agencies. Provided that nothing herein contained shall apply to a democratic and religious rally or a peaceful demonstration in accordance with law."

7. For determining the issue whether a case is triable under the Anti-Terrorism Act, 1997 or not courts are required to examine the FIR, the statements recorded under 161, Cr.P.C., the material collected by the investigating agency and other documents available with the prosecution. The august Supreme Court of Pakistan in the case of Kashif Ali v. The Judge, Anti-Terrorism Court No.II, Lahore and others (PLD 2016 SC 951) has held as under:- "In order to determine whether an offence falls within the ambit of section 6 of the Act, it would be essential to have a glance over the allegations levelled in the FIR, the material collected by the investigating agency and the surrounding circumstances, depicting the commission of offence. Whether a particular act is an act of terrorism or not, the motivation, object, design or purpose behind the said act has to be seen." The inclusion of surrounding circumstances, depicting the commission of the offence, prima facie permits taking into considering the documents/material, came onto surface with regard to the previous enmity or the dispute. Under these circumstances, question to be decided in this criminal revision is that whether in view of the circumstances and facts mentioned supra, the act of the accused persons constitute an offence falling within the scope of terrorism as envisaged under section 6 of Anti-Terrorism Act, 1997 or otherwise. The terrorists operate on a level different from that on which ordinary criminals operate, their operations and tactics are different and the offence of terrorism is more concerned with the object and design behind an action than with the action itself. In order to qualify as terrorism an act must be designed to accomplish 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. A ferocious action against neutrals that has no dogmatic, conceptual or religious aims is just an act of criminal delinquency, a crime, or simply an act of senselessness unrelated to terrorism. The motive of the occurrence as mentioned in the FIR was that the altercation had taken place between the Gujjar Group and the Chohan Group over the dispute pertaining to seating of passengers from the Bus stands of each group. During the investigation of the case, evidentiary material has been collected which indicates that the present occurrence took place in consequence of personal enmity as there existed a long history of litigation between the parties on the issuance of license of D-Class Stand and the said litigation is still pending before this Court which clearly reflects existence of personal enmity between the two groups i.e the Gujjar Group and the Chohan Group. Ch. Qurban Ali Chohan along with two others had applied for D-Class license in the name of Messrs Chohan Highways Luxury Coaches, Burewala. The petitioner also submitted an application for issuance of D-Class Stand before the Secretary District Regional Transport Authority, Vehari. The petitioner also had filed a case in the court of the Deputy Commissioner, Vehari against the other party namely Chaudhry Qurban Ali Chohan seeking decision of his petition in accordance with the direction of this Court. The litigation between the parties started in the year 2018 and was continuing till the date of occurrence. In the case in hand, as mentioned above, the motive of the incident was an old feud between the parties which has always been considered as one of the circumstances to bring a case out of scope of terrorism because normally in such like matter the prime object is always to settle personal score rather than creating a sense of terrorism. This position was affirmed by the August Supreme Court in the case of Shahbaz Khan v. Special Judge Anti-Terrorism Court Lahore (PLD 2016 SC 1) where it was held as under at page 6. "

7. It is clear from a textual reading of section 6 of A.T.A. that an action categorized in subsection (2) thereof constitutes the offence of terrorism when according to section 6(1)(b) ibid it is "designed" to, inter alia, intimidate or overawe the public or to create a sense of fear or insecurity in society. Therefore, the three ingredients of the offence of terrorism under section 6(1)(a) and (b) of A.T.A. are firstly, taking of action specified in section 6(2) of A.T.A.; secondly, that action is committed with design, intention and mens rea; and thirdly, it has the impact of causing intimidation, awe, fear and insecurity in the public or society." The August Supreme Court of Pakistan in the recent judgment passed in the Criminal Appeals Nos. 95 and 96 of 2019, Civil Appeal No. 10-L of 2017 and Criminal Appeal No. 63 of 2013 has enunciated the following binding principle: "

16. For what has been discussed above it is concluded and declared that for an action or threat of action to be accepted as terrorism within the meanings of section 6 of the Anti-Terrorism Act, 1997 the action must fall in subsection (2) of section 6 of the said Act and the use or threat of such action must be designed to achieve any of the objectives specified in clause (b) of subsection (1) of section 6 of that Act or the use or threat of such action must be to achieve any of the purposes mentioned in clause (c) of subsection (1) of section 6 of that Act. It is clarified that any action constituting an offence, howsoever grave, shocking, brutal, gruesome or horrifying, does not qualify to be termed as terrorism if it is not committed with the design or purpose specified or mentioned in clauses (b) or (c) of subsection (1) of section 6 of the said Act. It is further clarified that the actions specified in subsection (2) of section 6 of that Act do not qualify to be labeled or characterized as terrorism if such actions are taken in furtherance of personal enmity or private vendetta." Thus, in our view there is no evidence to suggest that the action was taken with any design, purpose, intention and mens rea of causing terrorism.

8. In view of what has been discussed above, the instant petition is allowed; impugned order dated 18.07.2019 passed by the learned Judge, Anti-Terrorism Court-I, Multan is set aside. Learned Special Judge Anti-Terrorism Court-I, Multan is directed to transfer the record of the case FIR No. 136 of 2019 dated 19.03.2019 registered at Police Station City Burewala, District Vehari to the court of ordinary jurisdiction for further proceedings in accordance with law. SA/A-4/L Petition allowed.