2013 P Cr (PLP)

IBAD-UR-REHMAN LODHI, J.

After having been involved in a criminal case registered through F.I.R. No.725 of 2012 dated 10-11-2012 under sections 324, 336-B, 337-F(i), P.P.C. and 7 Anti-Terrorism Act, 1997 in Police Station Chehlyak District Multan, the petitioners were put to trial by the Special Court, constituted under Anti-Terrorism Act in Multan. Before the charge was framed by the Special Court, an application under section 23 of Anti-Terrorism Act, 1997 was moved before the learned trial Court seeking transfer of the trial proceedings to the Court of ordinary jurisdiction. The learned Trial Judge after taking up the application on 5-3-2013 proceeded to dismiss the same and directed that the charge be framed against the petitioners.

2. The findings arrived at by the learned Special Judge Anti-Terrorism Court-I, Multan have been challenged through the present proceedings wherein a pre-admission notice to respondents Nos.1 and 3 was ordered to be issued by this Court on 11-3-2013. Today with the consensus of the parties, the petition is being treated as admitted one and final hearing was provided to the parties.

3. In support of the petition, the learned counsel for petitioners after making reference to preamble of Anti-Terrorism Act, 1997 section 6 thereof and section 336-B of P.P.C. have submitted that by no stretch of imagination, the case falls within the ambit of "Terrorism" and therefore, dismissal of application moved under section 23 of Anti-Terrorism Act, 1997 is illegal and impugned order is not sustainable.

4. Controverting the stance taken by the petitioners, it has been argued on behalf of the State and the complainant that for the reason that corrosive substance was used in order to cause injuries to the complainant, therefore, irrespective of the fact that the alleged act come within the definition of "Terrorism" or not; the same is triable by the Special Court constituted under Anti-Terrorism Act, 1997, particularly for the reasons that such penal offence has been included in third Schedule to the said Act.

5. We have heard the learned counsel for the parties and perused the record with their assistance.

6. In exercise of power as provided under section 34 of Anti-Terrorism Act, 1997, Government of the Punjab in Home Department by means of a notification dated 26-9-2012 deleted the Entry No.6 in the third Schedule of the Act by virtue of which section 336-B of P.P.C. was made part of the said Schedule but on the very next day i.e. 27-9-2012 by way of another notification under the same powers, the Provincial Government added paras-IV and V in the third Schedule providing that in case a hurt is caused by corrosive substance, the offence would be triable by the Special Court under the Anti-Terrorism Act, 1997. Section 6 of Anti-Terrorism Act, 1997 defines "Terrorism" which inter alia means that any act which creates a sense of fear or insecurity in the society or involves grievous violence against a person or grievous bodily injury or harm to a person would be called as "Terrorism". Significant to note that section 336-B of P.P.C. has specifically been deleted from third Schedule of the Anti-Terrorism Act, 1997 whereas subsequently the offence causing hurt by corrosive substance was added in the said Schedule. Joint reading of preamble of Anti-Terrorism Act, 1997 section 6 thereof and section 336-B, P.P.C. would lead us to conclude that the offences mentioned in the Schedule to Anti-Terrorism Act, 1997 should have nexus with the objects mentioned in sections 6 and 7 of the Act.

7. In the present case, nothing has been brought on record to show that the alleged occurrence created terror, panic or sense of insecurity among people and the society. Even in F.I.R., got registered by the complainant, no allegation of creating terror was levelled. Motive for the occurrence as was shown is enmity inter se the parties and for that reason, the application of section 7 of the Act which primarily required the spread of sense of insecurity and fear in common mind was lacking in the instant case. Admittedly the occurrence took place, in a room of a hotel. It was not a public place and therefore, the element of striking terror or creating sense of fear in the people or any section of the people was not made discernible in the F.I.R. The offences mentioned in the Schedule to the Act should have nexus with the object of the Act and the offence covered by sections 6 and 7 thereof.

8. We are fortified in our such view by the dictum laid down in the cases of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 Supreme Court 1445), Ch. Bashir Ahmed v. Naveed Iqbal and 7 others (PLD 2001 Supreme Court 521), Basharat Ali v. Special Judge, Anti-Terrorism Court-II, Gujranwala (PLD 2004 Lahore 199), Fazal Dad v. Col.(Rtd.) Ghulam Muhammad Malik and others (PLD 2007 Supreme Court 571) and Bashir Ahmed v. Muhammad Siddique and others (PLD 2009 Supreme Court 11).

9. For what has been discussed above, we are of the view that the case as was, registered against the petitioners is triable by the Court of ordinary jurisdiction and therefore, we allow this petition by setting aside the order dated 5-3-2013 passed by the learned Special Judge, Anti-Terrorism Court-I, Multan, section 7 of Anti-Terrorism Act, 1997, as inserted in F.I.R., is ordered to be deleted and resultantly the petition moved under section 23 of Anti-Terrorism Act, 1997 is accepted, the proceedings of the trial of the case are ordered to be transferred to the Court of ordinary jurisdiction. The learned Special Judge, Anti-Terrorism Court-I, Multan is directed to transmit the record of the same to the learned Sessions Judge, Multan, who shall entrust it to some Court of competent jurisdiction. AG/S-45/L Petition accepted.