P L D 2004 Supreme Court 917 (PLP)

ABDUL HAMEED DOGAR J.

Petitioner seeks leave to appeal against the judgment dated 10-5-2004 passed by a learned Judge in Chambers of Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby Writ Petition No. 1460 of 2003 (PLD 2004 Lah. 726) filed by respondent Ibrar was allowed and the order dated 26-5-2003 passed by learned Judge, Special Court-II. Anti-Terrorism, Rawalpindi was set aside and the case was transferred to ordinary Court for trial.

2. Briefly stated, the facts leading to the filing of the instant petition are that a criminal case was lodged vide F.I.R No.48 dated 31-1-2003 under sections 302/324/148/149, P.P.C., read with section 7 of the Anti -Terrorism Act, 1997 (hereinafter referred to as "the Act") at Police Station Westridge, Rawalpindi, against respondent Ibrar and his co-accused Shahzad, Muhammad Mushtaq and Alta In the said F.I.R, it was alleged that on the above-mentioned date, at 2.00 p.m. complainant Malik Muhammad Farooq alongwith his deceased brother Manzar had gone to Jamia Mosque Misrial to offer Jumma prayers. After Jumma prayers while Imam of the Mosque was offering "Dun", respondent Ibrar and his co-accused Kamran armed with .30 bore pistols along with co-accused Irshad alias Shada. Altaf and Mushtaq came there and stood in front of complainant and his brother. Altaf raised lalkara that Manzar should be taught a lesson for murder of Yasin and asked co-accused Kamran and respondent Ibrar not to spare him. Upon such Lalkara, he fired upon deceased Manzar which hit on his chest and fell down. Thereafter respondent Ibrar also fired which hit deceased on his abdomen, right leg and back. Due to firing, commotion prevailed within the mosque whereafter co-accused Kamran made firing in air which resulted in sustaining injury to one `Namazi' namely Aziz Gul on his leg.

3. Motive behind the incident was that Yasin, the father of accused Kamran was murdered and deceased was challaned who was later on acquitted from, the said case. In order to avenge the said murder, the deceased was attacked and done to death.

4. Petitioner and co-accused were arrested and were sent up to face trial before the above mentioned Court. An application under section 23 of the Act was preferred by respondent Ibrar and his co-accused before the trial Court for transfer of the case from Special Court of Anti-Terrorism to ordinary Court of law which was declined vide order dated 26-5-2003. The said order was challenged in the above mentioned writ petition before the learned High Court which was allowed vide impugned judgment.

5. We have heard Mr. Muhammad Ilyas Siddiqui, learned ASC for petitioner, Malik Rab Nawaz Noon, learned Sr. ASC for respondent No. 1, whereas Syed Shabbar Raza Rizvi Advocate General Punjab on behalf of the State and have gone through the record and the proceedings of the case in minute particulars.

6. It is mainly contended by the learned counsel for petitioner that the legal and factual aspects of the controversy have not been appreciated in their true perspective by the learned Judge in Chambers of Lahore High Court which resulted in serious miscarriage of justice. He further contended that the facts narrated in the F.I.R and other material produced by the prosecution constituted an act of terrorism and an heinous offence. According to, him, the gruesome murder of deceased had been committed inside the Mosque a public place by using lethal weapons, which created sense of fear and insecurity in the public. Panic among the persons offering prayer got further heightened, the moment petitioner and his co- accused fired indiscriminately in the air whereby a prayer, namely, Aziz Gul sustained injury. In support of his contention, he placed reliance upon the case reported as State through Advocate General, N.W.F.P. Peshawar v. Muhammad Shafiq (PLD 2003 SC 224).

7. On the other hand, learned counsel for respondent No. 1 defended the impugned order and contended that it has been passed well in accordance with law. According to him, the occurrence was `the result of previous enmity between the parties and in such circumstances the offence does not fall within the ambit of the provisions of Anti-Terrorism Act. This being an ordinary case of murder, was rightly transferred from the Court of Anti-Terrorism to the ordinary Court of law. In support of his contentions, he relied upon Ch. Bashir Ahmad v. Naveed Iqbal and 7 others (PLD 2001 SC 521).

8. The very object to promulgate Anti-Terrorism Act, 1997 was to control the acts of terrorism, sectarian violence and other heinous offences as defined in section 6 of the Act and their speedy trials. To bring an offence within the ambit of the Act, it is essential to examine that the said offence should have nexus with the object of the Act and the offences covered by its sections 6, 7 and

8. Oh bare perusal of sub-clauses (b) (d), (h), and (i) of subsection (1) of section 6 of the Act, it is abundantly clear that the offence which creates a sense of fear or insecurity in society, causes death or endangers a person's life, involves firing on religious congregations, mosques, imambargahs, churches, temples and all other places of worship, or random firing .to spread panic, or involves any forcible takeover of mosques or other places of worships, falls within its ambit.

9. In the case in the hand, though the motive is shown to be a previous enmity, yet paramount consideration to be taken note of is the culminative fall out of the occurrence. The incident having taken place in Mosque a public place particularly during Jumma prayer, where a large number of people usually assemble to offer prayer is sufficient to attract the provisions of section 6 of the Act. In such cases, the time, place and, manner of the act is of eminence importance. It would be relevant to reproduce the meaning of word `public place' as defined in the Prohibition (Enforcement of Hadd) Order, 1979. "Public place" means a street, road, thoroughfare, park, garden or other place to which the public have free access and includes a hotel restaurant, motel, mess and club, but does not include the residential room of a hotel in the occupation of some person".

10. Mosque being a place to which public has free access is fully covered by above definition. Thus the provisions of section 6 of the Act, would be applicable in this case as the fateful episode admittedly took place inside the mosque during Jumma prayer. Dictum laid down by this Court in the case of State through Advocate General, N.W.F.P., Peshawar; referred (supra) fully supports the contentions raised in the instant case whereas the case of Ch. Bashir Ahmad referred (supra) is on different facts and circumstances and has no bearing with the case in hand mainly for the reasons that the provisions of Anti-Terrorism Act are not attracted as the alleged sprinkling of spirit on the person of victim was made Within the boundary wall of the complainant's house. It is also held in that case that where offence was not committed in a public place, the element of a striking terror or creating sense of fear and insecurity in the people was not attracted.

11. For the foregoing reasons, we are of the considered opinion that the impugned order suffers from legal infirmities and is not sustainable in law. Accordingly we convert this petition into appeal and allow the same by setting aside the impugned order.

12. Resultantly the case is transferred from the ordinary Court of law to Special Judge Court-II Anti Terrorism Rawalpindi for trial in accordance with law. M.B.A./M-141/S Appeal allowed.