P L D 2006 Lahore 651 (PLP)

SH. JAVAID SARFRAZ, J.

Through this petition, the petitioner seeks transfer of case F.I.R. No.160 dated 27-10-2005 under sections 364, 324, 395, 147, 148, P.P.C. read with section 7 of the Anti-Terrorism Act, 1997 and section 17 of the Offences against Property (Enforcement of Hudood) Ordinance, 1979, registered at Police Station Shah Nikdar .District Sargodha, from Anti-Terrorism Court, Sargodha to a court of ordinary jurisdiction.

2. Briefly, the facts of the case as narrated in the FIR are that paternal cousin of respondent No.1 namely Khuda Bakhsh was elected in the elections of Nazim, Union Council No.97 Sobhaga and on his success in election, Shafqat Hayat and other co-accused, mentioned in FIR were unhappy and annoyed. On 27-10-2005 at 1-00 p.m, the said accused attacked the office of Union Council and insulted its newly-elected Nazim namely Khuda Bakhsh accordingly necessary proceedings were initiated against them. The respondent No.1 along with Muhammad Arif and Muhammad Nasir while riding on motorcycles from Mauza Qul District Jhang were proceeding towards their house, when they reached near the Railway crossing at around 4.30 p.m. Faisal son of Shafqat Hayat armed with Kalashnikov, Asadullah alias Asdu armed with Kalashnikov, Imam Machi armed with Kalashnikov, Shabbir Hayat, Shaukat Hayat and 9/10 unknown persons, who had 4 cars parked at the place of occurrence, caught hold of them and they were pushed into the car. The wrist watch, documents and money were removed from the pocket of Muhammad Arif and the accused started firing indiscriminately and after abduction took them to near Pulli Tang. Faisal and others pulled them out from the car and started beating them, Faisal took out a knife and chopped off the nose of Muhammad Arif and put it on his hand and started beating and after committing this act of terrorism, all of them proceeded towards District Jhang.

3. The challan was filed before Anti-Terrorism Court, Sargodha where the petitioner/accused filed a petition under section 23 of the Anti-Terrorism Act, 1997 for the transfer of case to a court of ordinary jurisdiction, which was dismissed by the learned trial court vide order dated 12-12-2005. Hence this constitutional petition. 4.? Learned counsel for the petitioner contends that it was primarily a personal dispute between the parties relating to the election matter; that the provisions of section 6 and 7 of Anti-Terrorism Act do not attract in the present case; that the occurrence took place at a Pulli which was not a public place, therefore, the jurisdiction of the Anti-Terrorism Court stands ousted; that no fear and insecurity in the minds of the people was created, therefore, the case is to be heard by a court of ordinary jurisdiction.

5. The petition has been vehemently opposed by the respondents. Learned Assistant Advocate General, Punjab assisted by the learned counsel of the complainant submitted that it was the trial court which was the best Judge to determine whether the case was to be tried by a Terrorist Court or not; that the action was to be seen whether it had caused insecurity in the minds of people or not; that the action of the accused was such that it created terror in the entire vicinity.

6. Arguments heard. Record perused.

7. Allegedly the petitioner along with his co-accused while taking the revenge of their defeat in the elections attacked the complainant party in the office of Union Council, which is not a private place and also chopped off nose of Muhammad Arif from his body and placed it in his hand. This was done at Pulli Tang of Mauza 'Mangla. Allegedly this was the message given by the petitioner and his co-accused to the public in general that anyone who would contest elections against them could face a similar treatment, and this action definitely would have created terror in the locality. The election dispute cannot be termed as a personal dispute. As the dispute is not confined to the two persons or two families. In election matters, many persons are involved. A candidate contesting elections has scores of workers, who are working actively for him. Needless to add, that the candidates have lots of supporters also. It has also been seen that some candidates have political backing and support of certain vicinities. Therefore, terror so created in election disputes result in a feeling of insecurity amongst the public at large and a wave of panic and fear persists in the area. Respectfully reliance is placed upon "Muhammad Mushtaq v. Muhammad Ashiq and others" (PLD 2002 SC 841) in which it has been held as under:-- "It would thus appear that ordinary crimes' are not to be dealt with under the Act. A physical harm to the victim is not the sole criterion to determine the question of terrorism. What is to be seen is the psychological effect produced by the violent action or with the potential of producing such an effect on the society as a whole or a section thereof. There may be a death or injury caused in the process." [Underlining is ours]

8. The alleged action of the accused is an act of terrorism within the purview of Anti-Terrorism Act and thus the Anti-Terrorism Court shall have the jurisdiction to adjudicate this case.

9. For what has been discussed above, this petition stands dismissed. H.B.T./A-112/L?????????????????????????????????????????????????????????????????????????????????? Petition dismissed.