P L D 2004 Lahore 199 (PLP)

(l) is designed to seriously interfere with or seriously disrupt a communications system or public utility service; (m) involves serious coercion or intimidation of a public servant in order to force him to discharge or to refrain from discharging his lawful duties; or (n) involves serious violence against a member of the police force armed forces, civil armed forces, or a public servant. (3) The use or threat of use of any action falling within sub -section (2), which involves the use of fire‑arms, explosives or any other weapon, is terrorism, whether or not subsection 1(c) is satisfied. (4) In this section "action" includes any act done for the benefit of a proscribed organization. (5) In this Act, terrorism includes any act done, for the benefit of a prescribed organization. (6) A person who commits an offence under this section or any other provision of this Act, shall be guilty of an act of terrorism. (7) In this Act, a "terrorist" means‑‑‑ (a) a person who has committed an offence of terrorism under this Act, and is or has been concerned in the commission, preparation or instigation of acts of terrorism; (b) a person who is or has been, whether before or after the coming into force of this Act, concerned in the commission, preparation or instigation of acts of terrorism, shall also be included in the meaning given in clause (a) above."

14. The resume of our legislative developments in the field of terrorism shows that with different laws and definitions of terrorist act or terrorism the emphasis has been shifting from one criterion to another including the gravity of the act, lethal nature of the weapon used plurality of culprits, number of victims, impact created by the act and effect of fear and insecurity brought about or likely to be created in the society by the action. The last definition of a `terrorist act' contained in section 6 of the Anti‑Terrorism Act, 1997 squarely focused on the effect of fear and insecurity intended to be created by the act or actually created by the act or the act having the potential of creating such an effect of fear and insecurity in the society. It, however, appears that subsequently the Legislature did not feel convinced of the aptness or correctness of that definition and resultantly the erstwhile definition of a `terrorist act' contained in section 6 of the Anti‑Terrorism Act, 1997 was repealed and a totally fresh and new definition of `terrorism' was introduced through an amended section 6 of the Anti‑Terrorism Act, 1997 and this was accomplished through the Anti‑Terrorism (Amendment) Ordinance, 2001 (Ordinance No. XXXIX of 2001) promulgated on 15‑8‑2001. The Legislature had probably realized by then that an effect of an act may not always be a correct indicator of the nature of such an act as every crime, especially of violence against person or property, does create some sense of fear and insecurity in some section of the society and a definition of terrorism based upon the magnitude or potential of an effect created or intended to be created or having a potential of creating would necessarily require a premature, speculative and imaginary quantification of the effect so as to determine the nature of the act in order to decide about the jurisdiction of a criminal Court to try such an act. That surely was an unsure test and the result of such a premature, speculative and presumptive test could vary from Court to Court and from Judge to Judge reminding a legal scholar of the Star Chamber and the early days of a Court of Equity in England where equity was said to vary with the size of the Chancellor's foot. The new definition of `terrorism' introduced through the amended section 6 of the Anti‑Terrorism Act, 1997 as it stands today appears to be the most comprehensive and the clearest definition of `terrorism' introduced in our legal system thus far. It appears that in its quest for an apt and appropriate definition of terrorism and after stumbling through various approaches in that regard the Legislature in our country has finally hit upon a definition of terrorism which is not only closest to its real meaning but the same is also in accord with the international perceptions about the same. The earlier emphasis on the speculative effect of the act has now given way to a clearly defined mens rea and actus reus. The amended section 6(1)(b) now specifies the `design' and section 6(1)(c) earmarks the `purpose' which should be the motivation for the act and the actus reus has been clearly mentioned in section 6(2)(a) to (n) and now it is only when the actus reus specified in section 6(2) is accompanied by the requisite mens rea provided for in section 6(1)(b) or (c) that an action can be termed as `terrorism'. Thus, it is no longer the fear or insecurity actually created or intended to be created or likely to be created which would determine whether the action qualifies to be termed as terrorism or not but it is now the intent and motivation behind the action which would be determinative of the issue irrespective of the fact whether any fear and insecurity was actually created or not. After this amendment in section 6 an action can now be termed as terrorism if the use or threat of that action "is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect" or if such action is designed to "create a sense of fear or insecurity in society" or the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause. Now creating fear or insecurity in the society is not by itself terrorism unless the motive itself is to create fear or insecurity in the society and not when fear or insecurity is just a byproduct, a fall out or an unintended consequence of a private crime. In the last definition the focus was on the action and its result whereas` in the present definition the emphasis appears to be on the motivation and objective and not on the result. Through this amendment the Legislature seems to have finally appreciated that mere shock, horror, dread or disgust created or likely to be created in the society does not transform a private crime into terrorism but terrorism 'ism' is a totally different concept which denotes commission of a crime with the object and purpose of destabilizing the society or Government with a view to achieve objectives which are political in the extended sense of the word. This approach appears to be in harmony with the emerging international perception about terrorism according to which, as referred to above, "the aim of the activity is always political, i.e. the goal is to attain political objectives like changing the regime, changing the people in power, changing social or economic policies, etc. In the absence of a political aim, the activity in quest will not be defined as terrorism. A violent activity against civilians that has no political aim is, at most, an act of criminal delinquency, a felony, or simply an act of insanity unrelated to terrorism. Some scholars tend to add ideological or religious aims to the list of political aims". This metamorphosis in the anti‑terrorism law in our country has brought about a sea change in the whole concept as we have understood it in the past and it is, therefore, or paramount importance for all concerned to understand this conceptual modification and transformation in its true perspective. In view of this conceptual transformation even the interpretations of a `terrorist act' or `terrorism' rendered by our Courts in the past on the basis of the earlier law may, it is observed with great respect, require revisiting and reinterpretation so as to be in line with the newly introduced definition and concept of terrorism.

15. Adverting to the case‑law on the subject we may straightaway observe with profound respect that, barring a few exceptions, the judgments rendered on the subject thus far by the Hon'ble Supreme Court of Pakistan appear to be heavily influenced by the erstwhile definition of a `terrorist act' contained in the original Act and even the new definition of `terrorism' contained in the amended Act has, by and large, been looked at with the same mindset. For instance in the case of Mumtaz Ali Khan Rajban and another v. Federation of Pakistan and others (PLD 2001 SC 169) a Professor was gunned down because he did not allow a candidate appearing in an examination to adopt unfair means and the Hon'ble Supreme Court of Pakistan held that the act of the accused "struck terror and also created sense of fear and insecurity amongst people in general and Teachers/Professors in particular" and, therefore, the case was adjudged as one of a terrorist act. In the case of Muhammad Mushtaq v. Muhammad Ashiq and others (PLD 2002 SC 841) four persons were murdered by their adversaries when they were proceeding to the premises of the District Courts, Lahore to attend a hearing of a case and the Hon'ble Supreme Court held that to be a terrorist act because: "The cumulative fall‑out of the occurrence as to the time, place and manner of the act created a sense of the fear and insecurity in society. ‑‑‑‑‑‑‑‑ The Lahore High Court fell in error by taking into consideration only the element of the alleged enmity existing between the parties. The High Court failed to advert to the terrorizing effect of the occurrence created on the minds of the people at large and of the concerned locality and passerby who had no means to ascertain the background or motive for the crime or the enmity of the parties inter se." In the case of Mst. Raheela Nasreen v. The State and another (2002 SCMR 908) a Batman of a Major serving in the Pakistan Army had allegedly murdered the Major in connivance with the Major's wife and the Hon'ble Supreme Court held that to be a case of terrorism by observing that: "From a bare reading of section 6(b) of the Act, it is manifest that it is not necessary that the offence as alleged had in fact, caused terror as the requirement of the said provision of law could be adequately satisfied if the same was likely to strike terror or sense of fear and insecurity in the people. ‑‑‑‑‑‑‑ The learned Judges of the High Court came to the conclusion that a Batman who was a trusted person of an army officer if he kills as alleged his master in connivance with his (master's) wife, the same was likely to strike terror or feeling of insecurity among the army officers which reasonings in our view are based on relevant consideration having logical nexus with the relevant law and do not suffer from any legal infirmity." In the case of Muhammad Amin v. The State (2002 SCMR 1017) a person had been murdered during a dacoity at a house and another person had been shot at and injured by the fleeing dacoits and the Hon'ble Supreme Court found the case to be of terrorism by observing that: "The accused entered in the Baithak of the house of complainant armed with pistol with the purposes to commit robbery and in consequence to the resistance put by the father of complainant he was killed by the petitioner and further the petitioner with a view to create terror also fired at Nasir Ahmed in the street when he alongwith others, made an attempt to apprehend the petitioner and thus, the manner in which the petitioner while committing robbery took the life of deceased and caused fire arm injuries to Nasir Ahmed in the broad daylight would squarely bring the case with the ambit of `terrorism' in term of section 6 of the Anti‑Terrorism Act, 1997." In the case of Zia Ullah v. Special Judge, Anti‑Terrorist Court, Faisalabad and 7 others (2002 SCMR 1225) an Advocate proceeding towards a Court in his robes was done to death by his enemies and the Hon'ble Supreme Court decided that the case was one of terrorism. It was observed that: "The alleged murder was committed in wanton, reckless and brutal manner and resultantly learned Advocate who was in his robe was done to death in Court vicinity. The gravity of the offence could not be diminished or minimized merely on the ground that alleged murder was not committed exactly within the Court premises as pressed time and again by the learned counsel for the respondents. It is to be noted that one Assistant Sub -Inspector of Police was seriously injured by means of fire‑arms. We are not having the slightest doubt while holding that the alleged occurrence must have caused fear panic and wave of sensation and thus the matter squarely falls within the ambit and jurisdiction of Special Court." In the case of State through Advocate‑General, N.‑W.F.P., Peshawar v. Muhammad Shafiq (PLD 2003 SC 224) a person was murdered by firing at and sprinkling petrol on him and resultantly his body Was charred and some of his bones were also burnt. The laid murder had been committed at a deserted place and was a consequence of an on going personal enmity. It is observed with reverence that apparently the Hon'ble Supreme Court was not properly assisted in that case and the newly introduced definition of `terrorism' had not been brought to the notice of the Court and in that background, while reproducing and expressly referring to the deleted and inapplicable definition of a `terrorist act' contained in the un-amended section 6 of the Anti‑Terrorism Act, 1997, the Hon'ble Supreme Court observed that: "A reading of the above provision of the Act demonstrates that it is not necessary that the commission of murder must have created panic and terror among the people. The Courts have only to see whether the terrorist act was such which would have the tendency to create sense of fear or insecurity in the minds of the people or any section of the society. We have to see the psychological impact created upon the minds of the people.‑‑‑‑‑The moment such a charred dead body was brought for its funeral rites within the area of the deceased's residence, it would had certainly caused shock, fear and insecurity among the people of the vicinity. The body was completely charred and the onlookers must have felt fear and insecurity on seeing the barbaric and callous manner in which the human body was mutilated." In the case of Naeem Akhtar and others v. The State and others (PLD 2003 SC 396) an accused person's mother was medically treated by a doctor for an accidental fracture of her leg but tote accused party felt dissatisfied with her treatment by the doctor and with that motive the said doctor was abducted by the accused party and was murdered. The Hon'ble Supreme Court found the case to be of a terrorist act as: "The motive for the occurrence no doubt related to the personal grievance of the appellant who held the deceased responsible for imputation of leg of his mother but murder of the doctor after his abduction for such a motive would be an alarming situation for all doctors and would be a direct source of creating panic and terror in the medical profession." In the case of Sh. Muhammad Amjad v. The State (PLD 2003 SC 704) a young Barrister was abducted for ransom and was killed. The Hon'ble Supreme Court held the case to be one of terrorism by observing that: "Even if by act of terrorism actual terror is not created, yet, above quoted subsection (b) [of section 6(1) of the Anti Terrorism Act, 1997] will be applicable if it was likely to do any harm contemplated in the said subsection. It is the cumulative effect of all the attending circumstances which provide tangible guidelines to determine the applicability or otherwise of said subsection. It is noted that about 300/400 people gathered at the house of the complainant and they would have destroyed the house of the appellant, if the police would not have intervened. Lawyer community was also annoyed over the murder of a member of their community and had passed a resolution in this regard. Under the circumstances, the case was rightly assigned to Anti‑Terrorism Court for trial." In the case of Mst. Najam‑un‑Nisa v. Judge, Special Court constituted under Anti‑Terrorism Act, 1997 (2003 SCMR 1323) seven persons had been killed in a house at night in furtherance of a private enmity and the Hon'ble Supreme Court held the case to be one of terrorism. It was observed that: "The venue of the commission of a crime, the time of occurrence, the motive which had led to the commission of a crime and the fact whether the said crime had or had not been witnessed by the public at large are not the only factors determining the issue whether a case did or did not fall within the parameters of the ATA of 1997. The crucial question is whether the said crime had or had not the effect of striking terror or creating a sense of fear and insecurity in the people or any section of the people. Needless to mention here that a crime of the kind in hard committed even in a remote corner does not remain unnoticed in the area in which is committed or even in the country on account of the print and electronic media. Seven persons being butchered in a house at night is not the kind of occurrence which would not create terror and horror in the people or any section of the people." In the case of Abdul Ghafoor Bhatti v. Muhammad Saleem and others (2003 SCMR 1934) after a dacoity in a house the dacoits kidnapped two minors for ransom who were subsequently retrieved after payment of the demanded ransom. The Hon'ble Supreme Court found the case to be that of terrorism and observed that: "The Courts have to see the impact of the act which the miscreants have perpetrated. In the case in‑hand two minors were abducted for ransom by the miscreants. Such‑like act has certainly got the tendency to create sense of fear and insecurity in the minds of the people or any section of the society. The psychological effect created upon the minds of the people would be the guiding feature so as to see whether the act complained of has got nexus with sections 6 and 7 of the Act. As already stated the Courts have to see only the tendency whether nature of such act would create sense of insecurity. By no stretch of imagination, it can be, said that the abduction of minors at gun points would not create terror among reasonable and prudent persons of the society."

16. One cannot help noticing that all the cases referred to in the last paragraph pertained to offences committed for private purposes with no motivation to destabilize the society at large but they were all adjudged to be cases of terrorist acts or terrorism on the basis of a presumptive and speculative quantification of the effect that the relevant actions could have created in the society. In all such cases, it is observed with great deference, the change brought about by the new definition of `terrorism with its resultant shifting of focus from the effect of the action to the design or purpose behind the action had not been noticed and all those cases had been decided on the basis and on the yardstick of the principles provided for by the earlier definition of a `terrorist act'. In the above mentioned cases the gravity of the offence with its resultant actual intended or potential effect on the people at large was considered as the measure for determining whether the act constituted terrorism or not. We can appreciate that the mindset inherited by us in the background of the Summary Military Courts, Speedy Trial Courts and Special Courts for Suppression of Terrorist Activities, which were different Courts constituted at different stages in the past for separate and special handling of offences of grave nature, may take some time to be dispelled and it may take us a while to appreciate and realize that an act or `terrorism' is not just a grave offence but it is a class and species apart and this class or species has to be understood in its true and correct perception and perspective otherwise every serious offence may be found by one Judge or the other to involve terrorism depending upon subjective assessment of the, potential of the act to create some sense or fear or insecurity in some section of the society. Such an approach, it may be observed with great veneration, may not be wholesome as it may ultimately result in every case of a serious offence landing in a Special Court and thereby rendering the ordinary Courts substantially redundant. It ought not to be lost sight of that the Legislature's repeal of the Suppression of Terrorist Activities (Special Courts) Act, 1975, doing away with the Schedule of the Anti‑Terrorism Act, 1997 and also its retraction from the `effect' through the fresh definition of `terrorism cannot be without any significance or purpose. That drastic change of the definition manifestly indicated a change of meanings and of focus and such a change has to be given its proper effect. After all if the newly introduced term. `terrorism' is still to be interpreted in the same manner as the erstwhile term `terrorist act' then there was hardly any occasion or need for the Legislature to amend the definition and' to bring about any change in the existing law in that regard. The legacy and interpretations pertaining to the Suppression of Terrorist Activities (Special Courts) Act, 1975 and of the original provisions of the Anti‑Terrorism Act, 1997 have now to be shrugged off so as to correctly understand the new definition of `terrorism' introduced through the latest amendment in the latter Act. The Hon'ble Supreme Court of Pakistan had itself declared in the above mentioned case of Mumtaz Ali Khan Rajban and another v. Federation of Pakistan and others (PLD 2001 SC 169) that the subject -matters of the Suppression of Terrorist Activities (Special Courts) Acct. 1975 and the Anti‑Terrorism Act, 1997 were "different" and their respective applicability was "governed by different criteria".

17. We understand, and we observe so with all the respect at our command, that in the above mentioned cases the Hon'ble Supreme Court of Pakistan had, wittingly or otherwise, detracted or moved away from the principle of nexus so painstakingly carved out by itself in the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445). It had been held by the Hon'ble Supreme Court of Pakistan in that case that: "However, it may be observed that the offences mentioned in the Schedule should have nexus with the object of the Act and the offences covered by sections 6, 7 and 8 thereof. It may be stated that section 6 defines terrorist acts, section 7 provides punishment for such acts, and section 8 prohibits acts intended or likely to stir up sectarian hatred mentioned in clauses (a) to (d) thereof. If an offence included in the Schedule has no nexus with the above sections, in that event notification including such an offence to that extent will be ultra vires. ‑‑‑‑‑‑‑ It will suffice to observe that if a Government servant or any other employee of the Government functionaries is murdered because he belongs to the above service and that there was no enmity or plausible reason for commission of the above offence, such a killing is an act of terrorism within the ambit of the Act and can lawfully be included in the Schedule, but if the murder is committed solely on account of personal enmity, such murder will have no nexus with the above provisions of the Act and will not be triable under the Act." In the case of Jamaat‑i‑Islami Pakistan through Syed Munawar Hassan, Secretary‑General v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs (PLD 2000 SC 111) the Hon'ble Supreme Court had reiterated the above mentioned principle of nexus by observing that:‑‑ "to make an act punishable under the, Act, it must be shown that the act bears nexus to sections 6, 7 and 8 of the Act." In the case of Ch. Bashir Ahmad v. Naveed Iqbal and 7 others (PLD 2001 SC 521) a woman was murdered by sprinkling spirit on her person and the motive for that offence was described to be the failure of the victim to fetch a car in dowry to the family of her husband. The Hon'ble Supreme Court found the case to be triable by a Court of ordinary jurisdiction and observed that: "A person would commit a terrorist act if in order to, or if the effect of his actions will be `to strike terror or create a sense of fear and insecurity in the people, or any section of the people‑‑‑‑In the instant case as the facts of the case reveal; the alleged sprinkling of the spirit on the person of the victim was within the boundary walls of the appellant's house. It was not in public and, therefore, the element of striking terror or creating sense of fear and insecurity in the people, or any section of the people is not made discernible in the F.I.R. and for that matter on the record of the case as a whole. Similarly the perusal of the Schedule to the Act also indicates that the element of striking terror or creation of sense of fear and insecurity in the people or any section of the people by doing an act or thing by using bombs, dynamite or other explosive or inflammable substances etc. is a sine qua non for the attraction of the provisions of section 6 of and the Schedule to the Act (Underlining is provided by us, for emphasis). ‑‑‑‑‑‑‑ In the instant case no doubt the offence committed was certainly most heinous in nature but it does not mean that it does qualify to be a terrorist act within the contemplation of section 6 or the Schedule to the Act. " While observing so the Hon'ble Supreme Court had referred to and quoted from its earlier judgment in the above mentioned case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445). In the case of Muhammad Mushtaq v. Muhammad Ashiq and others (PLD 2002 SC 841), already mentioned above, four persons were murdered by their adversaries when they were proceeding to the premises of the District Courts, Lahore to attend a hearing of a case and the Hon'ble Supreme Court had held that to be a terrorist act but at the same time it had also been observed by it that: "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 soled criterion to determine the question of terrorism. " In the case of Jahangir Akhtar Awan and two others v. The State and 8 others (PLD 2000 Karachi 89) in the background of illicit relations with a woman a person was brutally murdered and his dead body was cut into twelve pieces and was concealed but a learned Division Bench of the Hon'ble Sindh High Court held that case not to be one of terrorism. It was observed that: "An act of terrorism is a preplanned and organized system of intimidation. Its requisites and attributes are that such act and its effects are made known to the people and widely circulated with exaggeration. It is neither hidden nor disguised. It means an act which is committed with the sole object to terrorise the people and to feel them insecure. These ingredients are not in the instant case." In the case of Shaikh Muhammad Amjad v. The State (2002 P.Cr.L.J 1317), a case of abduction for ransom and murder, a learned Division Bench of the Hon'ble Sindh High Court had observed that: "The commission of every offence is irksome, painful, distressing and abhorrent. So long it remains confined to the victim or victims or their near and dear ones, it does not amount to terrorism as defined in section 6(1)(b) of the A.T.A. ‑‑‑‑‑‑‑ If any offence is committed to avenge an enmity or dispute or to settle a score on account of any known and visible reasons in the conduct of human being or a. crime is committed in relation told the life, liberty, property, honour and dignity of any person which is taken by the society, as a normal crime or a criminal act of ordinary nature, it remains confined to the commission of an offence simpliciter and does not amount to terrorism." In the case of Haris Abdullah v. The State (1999 YLR 643) a learned Division Bench of this Court had found that a case of abduction of a girl in furtherance of an illicit liaison and another case of abduction of a girl for rape were not cases of terrorism as such actions had no nexus with the objects of sections 6, 7 and 8 of the Act of 1997. In the case of Muhammad Afzal and others v. S.H.O. and others (1999 PCr.LJ 929) a learned Division Bench of this Court had, in respect of the unamended section 6 of the Anti‑Terrorism Act, 1997, asserted the presence of the requisite mens rea as a sine qua non for transforming an otherwise ordinary criminal activity into a terrorist act. Holding that an ordinary case of an abduction of a married woman after show of force could not be termed as a terrorist act it was observed that: "A distinction between a terrorist act and a run‑of‑the‑mill crime has to be maintained, because, as would presently be seen, it would be violative of the intendment of the Legislature to do otherwise. ‑‑‑‑‑‑‑ Doing of an act or thing by using explosives or fire‑arms, display of fire‑arms or deterring public servants from performance of duties, are offences under various penal statutes, but when these acts are coupled with the mens rea, intention, aim or objectives embodied in the above definition penal offences under ordinary law become terrorist acts. The operative factor of the predicate offence, thus, would be the particular intendment, mens rea, or aim of the perpetrator of the crime. The actus reus alone would not make the predicate offence as a scheduled offence." The case of Mazhar v. The State (PLD 2003 Lahore 267) happens to be the first reported case wherein a Division Bench of this Court had expressly adverted to the change of focus brought about by the new definition of `terrorism' and had observed that: "Through an amendment in section 6 of the said Act jurisdiction of a Court under the said Act was made determinable not with reference to any schedule of offences but with reference to the mens rea and the actus reus specified in the amended section

6. After those amendments the actions specified in subsection (2) of section 6 of the said Act can be tried by a Court under the said Act only if they are committed with the intentions specified in clause (b) or (c) of subsection (1) of section 6 of that Act. ‑‑‑‑‑‑ We have examined the allegations contained in the F.I.R. in this case in the light of the, provisions of the amended section 6 of the Anti‑Terrorism Act, 1997 and have found that the acts allegedly committed by respondents Nos. 2 and 3 had not been committed with any intention or mens rea specified in the said provisions and, thus, a Court constituted under that Act no longer had any jurisdiction to try the criminal case in hand‑‑‑‑ Apart from what has been observed above it was held by the Hon'ble Supreme Court of Pakistan in the cases of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445) and Ch. Bashir Ahmad v. Naveed Iqbal and 7 others (PLD 2001 SC 521) that an act of private revenge based upon a personal vendetta is not to be treated as an act of terrorism which is a species apart. In the present case the F.I.R. itself mentions that the offences in question had been committed by the culprits in the background of personal enmity between the parties and to achieve private revenge. Thus, a Court constituted under the Anti‑Terrorism Act, 1997 clearly lacks jurisdiction to try respondents Nos. 2 and 3. "

18. It may be advantageous to mention here that the definition of `terrorism' introduced in Pakistan in 2001 through the latest amendment in the Anti‑Terrorism Act, 1997 proceeds on lines somewhat similar, if not identical, to the corresponding definitions contained in the relevant laws of Northern Ireland, United Kingdom, United States of America. Australia and India. Section 58 of the Northern Ireland (Emergency Provisions) Act, 1996 defined terrorism in the following words: "`terrorism' means the use of violence for political ends and includes any use of violence for the purpose of putting the public or any section of the public in fear." Section 1 of the United Kingdom's Terrorism Act, 2000 reads as follows: "(1) In this Act `terrorism' means the use or threat of action where‑‑ (a) the action falls within subsection (2), (b) the use or threat is designed to influence the Government or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious or ideological cause. (2) Action falls within this subsection if it‑‑ (a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person's life, other than that of the person committing the action, (d) creates a serious risk' to the health or safety of ,the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system. (3) The use or threat of action falling within subsection (2) which involves the use of fire‑arms or explosives is terrorism whether or not subsection (1)(b) is satisfied. (4) In this section‑‑ (a) "action' includes action outside the United Kingdom, (b) a reference to any person or to property is a reference to any person, or to property, wherever situated, ‑‑‑ (c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and (d) "the Government" means the Government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom. (5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation." Section 802 of the Uniting and Strengthening America Act by Providing Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001 of the United States of America defines "domestic terrorism" as follows: "The term `domestic terrorism' means activities that ‑ (A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State; (B) appear to be intended‑‑ (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a Government by intimidation or coercion; or (iii) to affect the conduct of a Government by mass destruction, assassination, or kidnapping." In Australia section 5 of the Terrorism (Emergency Powers) Act, 2003 defines a `terrorist act in the following words: "(1) In this Act, "terrorist act" means an action that ‑ (a) falls within subsection (2) and does not fall within sub -section (3); (b) is done with the intention of advancing a political, religious or ideological cause; and (c) is done with the intention of ‑ (i) coercing, or influencing by intimidation, the Government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or (ii) intimidating the public or a section of the public. (2) Action falls within this subsection if it ‑ (a) causes serious harm that is physical harm to a person; (b) causes serious damage to property; (c) causes a person's death; (d) endangers a person's life, other than the life of the person taking the action; (e) creates a serious risk to public health or public safety; or (f) seriously interferes with, seriously disrupts, or destroys, an electronic system, including but not limited to - (i) an information system; (ii) a telecommunications system; (iii) a financial system; (iv) a system used for the delivery of essential Government services; (v) a system used for, or by, an essential public utility; or (vi) a system used for, or by, a transport system. (3) Action falls within this subsection if it ‑ (a) is advocacy, protest, dissent or industrial action; and (b) it is not intended ‑ (i) to cause harm that is physical harm to a person; (ii) to cause a person's death; (iii) to endanger a person's life, other than the life of the person taking the action; or (iv) to create a serious risk to public health or public safety. (4) In this section, a reference to a person or property is a reference to a person or property wherever situated, within or outside the Territory (including within or outside‑ Australia)." In India the Terrorist and Disruptive Activities (Prevention) Act, 1987 (Act No. 28 of 1987) defined a `terrorism act' in sections 3(1) thereof as follows: "Whoever with intent to overawe the Government as by law established or to strike terror in the people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or fire‑arms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies of services essential to the life of the community, or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act, commits a terrorist act." The Terrorist and Disruptive Activities (Prevention) Act, 1987 was subsequently repealed in India and was substituted by the Prevention of Terrorism Act, 2002 (Act No. 15 of 2002) and section 3 of the said Act provides as follows: "(1) Whoever ‑ (a) with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or fire‑arms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature or by any other means whatsoever, in such a manner as to cause, or likely to cause, death of, or injuries to any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community or causes damage or destruction of any property or equipment used or intended to be used for the defence of India or in connection with any, other purposes of the Government of India, any State Government or any of their agencies, or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act; (b) is or continues to be a member of an association declared unlawful under the Unlawful Activities (Prevention) Act, 1987 (37 of 1987), or voluntarily does an act aiding or promoting in any manner the objects of such association and in either case is in possession of any unlicensed fire‑arms, ammunition, explosive or other instrument or substance capable of causing mass destruction and commits any act resulting in loss of human life or grievous injury to any person or causes significant damage to any property, commits a terrorist act."

19. The similarities, nay resemblances, in the definitions of al `terrorist act' or `terrorism' enacted in Northern Ireland, United Kingdom, United States of America, Australia, India and Pakistan are too striking to be merely coincidental and, therefore, in the lager interests of global harmony and communion their interpretations ought; also not be different. In the case of Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijja and others (AIR 1990 SC 1962) two rival gangs of the underground mafia had clashed in public in order to gain supremacy in the underworld leaving one person dead and another injured. The trial Court (the Designated Court) held that the case did not involve terrorism and the Hon'ble Supreme Court of India upheld that order by observing as follows: "The Designated Court came to the conclusion that the material placed before it and the statements recorded by the Investigating Officer did not disclose the commission of an offence under section 3(1) of the Act. According to the Designated Court the intention of the accused persons was not to strike terror in the people or a section of the people but only to eliminate Raju and Keshav with a view to gaining supremacy in the underworld. The learned Judge presiding over the Designated Court then proceeds to add as under: `True it is that few people might have been terror‑striken and terror might have been the fall out of naked act, but to strike the terror amongst people was not the object of this naked act. If at all people are getting terror‑striken, it is those few people who live by the crime and not the people law abiding majority of citizens. Going by these statements there is nothing more to this crime than a strife between two warring factions staking claim to the supremacy of underworld.' The learned Judge also came to the conclusion that there was nothing on record to show that the Government's law enforcing machinery had failed and it had become necessary to resort to the drastic provisions of the Act with a view to committing the menace of terrorism. ‑‑‑‑‑‑‑ We think that the Designated Court was right in coming to the conclusion that the intention of the accused persons was to eliminate Raju and Keshav for gaining supremacy in the underworld. A mere statement to the effect that the show of such violence would create terror or fear in the minds of the people and none would dare to oppose them cannot constitute an offence under section 3(1) of the Act. That may indeed be the fall out of the violent act but that cannot be said to be the intention of the perpetrators of the crime. It is clear from the statement extracted earlier that the intention of the accused persons was to eliminate the rivals and gain supremacy in the underworld so that they may be known as the bullies of the locality and would be dreaded as such. But it cannot be said that their intention was to strike terror in the people or a section of the people and thereby commit a terrorist act. It is clear that there was rivalry between the party of the accused on the one hand and Raju and Keshav on the other. The former desired to gain, supremacy which necessitated the elimination of the latter. With that in view they launched an attack on Raju and Keshav, killed the former and injured the latter. Their intention was clearly to eliminate them and not to strike terror in the people or a section of the people. It would have been a different matter if to strike terror some innocent persons were killed. In that case the intention would be to strike terror and the killings would be to achieve that objective. In the instant case the intention was to liquidate Raju and, Keshav and thereby achieve the objective of gaining supremacy in the underworld. The consequence of such violence is bound to cause panic and fear but the intention of committing the crime cannot be said to be to strike terror in the people or any section of the people. We are, therefore, of the view that the Designated Court was fully justified in taking the view that the material placed on record and the documents relied on did not prima facie disclose the commission of the offence punishable under-section 3(1) of the Act." This, to us, appears to be an approach which is not only in. complete harmony with the change of focus brought about by the new definition of `terrorism' through the amended section 6 of the Anti‑Terrorism Act, 1997 in Pakistan but is also in perfect accord with the global perceptions about the true nature of terrorism according to which the determinative factor is the design or purpose behind the act and not the presumptive effect created by the act upon those who were not even the targets of the private act. We have also noticed that the Hon'ble Supreme Court of India had already added a new dimension to this issue by observing in the case of Usmanbhai Dawoodbhai Memon v. State of Gujarat [(1988) 2 SCC 271] that: "‑‑‑ it is well to remember that the legislation is limited in its scope and effect. The Act is an extreme measure to be resorted to when the police cannot tackle the situation under the ordinary penal law. The intendment is to provide special machinery to combat the growing menace of terrorism in different parts of the country. Since, however, the Act is a drastic measure, it should not ordinarily be resorted to unless the Government's law enforcing machinery fails." While quoting and reproducing the said passage of that judgment the Hon'ble Supreme Court of India had reiterated in the case of Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijja and others (AIR 1990 SC 1962) that: "To put it differently the ratio of the decision is that the provisions of the Act need not be resorted to if the nature of the activities of the accused can be checked and controlled under the ordinary law of the land. It is only in those cases where the law enforcing machinery finds the ordinary law to be inadequate or not sufficiently effective for tackling the menace of terrorist and disruptive activities that resort should be had to the drastic provisions of the Act. While invoking a criminal statute, such as the Act, the prosecution is duty bound to show from the record of the case and the documents collected in the course of investigation that facts emerging therefrom prima facie constitute an offence within the letter of the law. When a statute provides special or enhanced punishments as compared to the punishments prescribed for similar offences under the ordinary penal laws of the country, a higher responsibility and duty is cast on the Judge to make sure there exists prima facie evidence for supporting the charge levelled by the prosecution. Therefore, when a law visits a person with serious penal consequences extra care must be taken to ensure that those whom the Legislature did not intend to be covered by the express language of the statute are not roped in by stretching the language of the law." In the subsequent case of Kartar Singh v. Sate of Punjab ((1994) 3 Supreme Court Cases 569) the Hon'ble Supreme Court of India reproduced the above mentioned passages from the judgments in the cases of Niranjan Singh Karam Singh Punjabi, Advocate v, Jitendra Bhimraj Bijja and others (AIR 1990 SC 1962) and Usmanbhai Dawoodbhai Memon v. State of Gujrat ((1988) 2 SCC 271) and commented upon them with approval and reiteration. The later case of Hitendra Vishnu Thakur and others v. State of Maharashtra and others (AIR 1994 SC 2623) can truly be described as a milestone in the context of identifying the true meanings of terrorism and the Hon'ble Supreme Court of India had observed in its judgment in that case as follows: "`Terrorism' is one of the manifestations of increased lawlessness and cult of violence. Violence and crime constitute a threat to an established order and are a revolt against a civilized society. `Terrorism' has not been defined under TADA nor is its possible to give a precise definition of `terrorism' or lay down: what constitutes `terrorism'. It may be possible to describe it as' use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing' on the society as a whole. There may be death, injury, or destruction of property or even deprivation of individual liberty in the process but the extent and reach of the intended terrorist activity travels beyond the effect of an ordinary crime capable of being punished under the ordinary penal law of the land and its main objective is to overawe the Government or disturb harmony of the society or `terrorise' people and the society and not only those directly assaulted, with a view to disturb even tempo peace and tranquillity of the society and create a sense of fear and insecurity. ‑‑‑‑‑‑‑ Even though the crime committed by a `terrorist' and an ordinary criminal would be overlapping to an extent but then it is not the intention of the Legislature that every criminal should be tried under TADA, where the fall out of his activity does not extend beyond the normal frontiers of the ordinary criminal activity. Every `terrorist' may be a criminal but every criminal cannot be given the label of a `terrorist' only to set in motion the more stringent provisions of TADA. The criminal activity in order to invoke TADA must be committed with the requisite intention as contemplated by section 3(1) ‑‑‑‑‑ ‑‑‑‑‑‑‑ it follows that an activity which is sought to be punished under section 3(1) of TADA has to be such which cannot be classified as a mere law and order problem or disturbance of public order or even disturbance of the even tempo of the life or the, community of any specified locality but is of the nature which cannot be tackled as an ordinary criminal activity under the ordinary penal law by the normal law enforcement agencies because the intended extent and reach of the criminal activity of the `terrorist' is such which travels beyond the gravity the mere disturbance of public order even of a `virulent nature and may at times transcend the frontiers of the locality and may include such anti‑national activities which throw a challenge to the very integrity and sovereignty of the country it its democratic polity. ‑‑‑‑‑‑‑ Thus, unless the act complained of falls' strictly within the letter and spirit of section 3(1) of TADA and; is committed with the intention as envisaged by that section by' means of the weapons etc. as are enumerated therein with the motive as postulated thereby, an accused cannot be tried or convicted for an offence under section 3(1) of TADA. When the extent and reach of the crime committed with the intention as envisaged by section 3(1) transcends the local barriers and the effect of the criminal act can be felt in other States or areas or has the potential of that result being felt there, the provisions of section 3(1) would certainly be attracted. Likewise, if it is only as a consequence of the criminal act that fear, terror or/and panic is created but the intention of committing the particular crime cannot be said to be the one strictly envisaged by, section 3(1), it would be impermissible to try or convict and punish an accused under TADA. The commission of the crime with the intention to achieve the result as envisaged by the section and not merely where the consequence of the crime, committed by the accused create that result would attract the' provisions of section 3(1) of TADA Thus, if for example a person goes on a shooting spree and kills a number of persons, it is bound to create terror and panic in the locality but if it was not committed with the requisite intention as contemplated by the section, the offence would not attract section 3(1) of TADA. On the other hand, if a crime was committed with the intention to cause terror or panic or to alienate a section of the people or to disturb the harmony etc. it would be punishable under TADA, even if no one is killed and there has been only some person who has been injured or some damage etc. has been caused to the property, the provisions of section 3(1) of TADA would be squarely attracted. ‑‑‑‑‑‑‑ Of late, we have come across some cases where the Designated Courts have charge‑sheeted and/or convicted an accused person under TADA even though there is not even an iota of evidence from which it could be inferred, even prima facie, let alone conclusively, that the crime was committed with the intention as contemplated by the provisions of TADA merely on the statement of the investigating agency to the effect that the consequence of the criminal act resulted in causing panic or terror in the society or in a section thereof. Such orders result in the misuse of TADA. ‑‑‑‑‑‑‑ Thus, the true ambit and scope of section 3(1) is that no conviction under) section 3(1) of TADA can be recorded unless the evidence led by the prosecution establishes that the offence was committed with the intention as envisaged by section 3(1) by means of the weapons etc. as enumerated in the section and was committed with the motive as postulated by the said section. Even at the cost of repetition, we may say that where it is only the consequence of the criminal act of an accused that terror, fear or panic is caused, but the crime was not committed with the intention as envisaged by section 3(1) to achieve the objective as envisaged by the section an accused should not be convicted for an offence under section 3(1) of TADA. To bring home a charge under section 3(1) of the Act, the terror or panic etc. must be actually intended with a view to achieve the result as envisaged by the said section and not be merely an incidental fall out or a consequence of the criminal activity: Every crime, being a revolt against the society, involves some violent activity which results in some degree of panic or c6ate some fear or terror in the people or section thereof, but, unless the panic, fear or terror was intended and was sought to achieve either of the objectives as envisaged in section 3(1), the offence would not fall stricto, senso under TADA." A similar approach was adopted by the Hon'ble Supreme Court of Pakistan in 1998 in the above mentioned case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445) by carving out the principle of nexus with the objects of the Anti‑Terrorism Act, 1997. However, it appears that in the last few years the said principle has either been side tracked or placed on the back burner in our country and the law is not only being stretched in a different direction but the same is also often being misapplied and misused by the police and the subordinate Courts. An appropriate and correct restatement of the relevant law for its proper application is, therefore, not only necessary but also a crying need so that the relevant law may be saved from being derailed from its real objectives.

20. By way of summing up we may observe that, keeping in view the latest definition of `terrorism' contained in section 6 of the Anti Terrorism Act, 1997, mere gravity or brutal nature of an offence does not provide a valid yardstick for branding the same as terrorism. In order to qualify as terrorism the motivation behind the offence has to be political in the extended' sense of the word and, as provided in the United Kingdom law, "the use or threat is made for the purpose of advancing a political, religious or ideological cause" and the act has to be designed to destabilize the society at large. The history of crimes in the human society is replete with macabre, gruesome and horrifying offences shocking the society at large yet such crimes were never treated or accepted as terrorism because the motivation was personal and private. As against that even an unsuccessful attempt at sabotage of public supplies or services has readily been accepted as terrorism because the purpose behind the act is to destabilize the society at large. Even a petty theft in a house in a street is likely to create a sense of insecurity in the people living in that street, a rape of a young girl is bound to send jitters in every family having young girls living in the relevant locality, a murder in the vicinity surely' creates a grave sense of fear in the inhabitants of the area, a bloodbath in furtherance of an on‑going feud shocks the society, as a whole, a massive fraud in a bank may send shockwaves throughout the banking and financial sectors and an offence committed against a member of any profession may render the other members of that profession feeling vulnerable and insecure. But all such offences are ordinary crimes distinguishable from terrorism because for the former the motivation is personal and private whereas for the latter the purpose has to be to destabilize the society at large. In this backdrop a premature, speculative, presumptive and imaginary quantification of the effect of an action so as to determine the nature of the act as terrorism or not appears to be an unsure and subjective test and it would be safer and consistent to revert to the principle of nexus carved out by the Hon'ble Supreme Court of Pakistan which is not only now a statutory requirement but the same is also consistent with the first major enunciation of the relevant law by our Supreme Court and that too by a Bench larger than any other Bench deciding any of the other cases mentioned above.

21. It may be mentioned here that the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445) had been decided by a Bench of five Hon'ble Judges of the Supreme Court of Pakistan whereas all the cases decided by the same Hon'ble Court mentioned in paragraph No. 15 of this judgment had been decided by Benches of lesser numerical strength. It has been maintained by the learned counsel for the petitioner that in the judgments of the Hon'ble Supreme Court referred to in paragraph No. 15 of this judgment no principle of law had been enunciated as the same had proceeded primarily upon questions of fact as to whether the actions attributed to the accused parties therein had the effect of creating fear and insecurity in the public or not and, thus, according to him, the said judgments did not have a binding force contemplated by the provisions of Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973. He has also argued that in all of those cases no argument had been advanced before the Hon'ble Supreme Court of Pakistan regarding the change brought about by the new definition of terrorism introduced through the amending Ordinance and in respect of the effect of such change in the matter of interpretation of the relevant law. Thus, according to him, the said judgments had been passed sub silentio divesting them of their binding force and rendering them incapable of being treated as stare decisis. For elucidating as to what constitutes a point of law and for explaining the principles regarding sub silentio and stare decisis the learned counsel for the petitioner has referred to the cases of Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (PLD 1965 SC 690), Pir Bakhsh v. The Chairman, Allotment Committee and others (PLD 1987 SC 145), Trustees of the Port of Karachi v. Muhammad Saleem (1994 SCMR 2213), Khawaja Auto Cars Limited v. Haji Sharif Khan (1996 CLC 1337), Muhammad Rafique and sixteen others v. Sultan Bakhsh and another (PLD 1991 Karachi 320) and Subedar v. Mian Inam Elahi and others (PLD 1989 Lahore 309) and various authoritative treatises on these subjects. We would, however, not like to comment on these submissions as it suffices to observe for the present purposes that in the case of Fazal Muhammad Chaudhri v. Ch. Khadim Hussain and three others (1997 SCMR 1368) the Hon'ble Supreme Court of Pakistan had itself observed that: "When there is conflict between two decisions of this Court, then the decision of the larger Bench would prevail and in such circumstances we are of the view that earlier decision of this Court rendered by five Judges holds the field. " Even the Hon'ble Supreme Court of India had held in the case of The State of U.P. v. Ram Chandra Trivedi (AIR 1976 SC 2547) that: "It is also to be borne in mind that even in cases where a High Court finds any conflict between the views expressed by larger and smaller Benches of this Court, it cannot disregard or skirt 'the views expressed by the larger Benches.' The proper course for a High Court in such a case, as observed by this Court in Union of India v. K. S. Subramanian, ‑‑‑‑‑‑‑ is to try to find out and follow the opinion expressed by larger Benches of this Court in preference to those expressed by smaller Benches of the Court which practice, hardened as it has into a rule of law, is followed by this Court itself."

22. Judged on the basis of the requirements of the amended provisions of section 6 of the Anti‑Terrorism Act, 1997 and examined on the touchstone of the principle of nexus propounded by the largest Bench of the Hon'ble Supreme Court of Pakistan in the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445), reiterated by an equally large Bench of it in the case of Jamaat‑i‑Islami Pakistan through Syed Munawar Hassan, Secretary‑General v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs (PLD 2000 SC 111) and applied by it in the case of Ch. Bashir Ahmad v. Naveed Iqbal and 7 others (PLD 2001 SC 521) the case in hand, despite the brutality displayed by the culprits and the consequent horror, shock, fear and insecurity likely to be created by the savagery perpetrated by the offenders, has not appeared to us to be a case of terrorism as the motive for the alleged offences was nothing but personal enmity and private vendetta and the motivation on the part of the accused party was not to overawe or intimidate the Government, etc. or to destabilize the society at large or to advance any sectarian cause, etc. The intention of the accused party did not depict or manifest any `design' or `purpose' as contemplated by the provisions of section 6(1)(b) or (c) of the Anti‑Terrorism Act, 1997 and, thus, the actus reus attributed to it was not accompanied by the necessary mens rea so as to brand its actions as terrorism triable exclusively by a Special Court constituted under the Anti‑Terrorism Act, 1997. The stand taken 'before us by the learned Assistant Advocate‑General appearing for the State also proceeds on the same lines and it is for these very reasons that the State has chosen not to oppose this petition. This writ petition is, therefore, allowed, ‑the impugned order passed by the learned Judge, Anti‑Terrorism Court‑II, 'Gujranwala on 4‑10‑2003 is declared to be without lawful authority and of no legal effect and the same is set aside, the application filed by the petitioner before the said Court under section 23 of the Anti‑Terrorism Act, 1997 is accepted and the petitioner's case is declared to be triable by a Court of ordinary jurisdiction. The learned Judge, Anti‑Terrorism Court‑II, Gujranwala is directed to transmit the record of the petitioner's case to the learned District and Sessions Judge, Gujranwala forthwith for further proceedings in the matter. There shall be no order as to costs.

23. Before parting with this judgment we would like to place on record our appreciation for the hard work put in by the learned counsel for the parties. The assistance rendered to us by the learned counsel for the petitioner has particularly been found by us to be outstanding.

24. The Office of this Court is directed to send a copy of this judgment to the Presiding Officers of all the Special Courts Constituted under the Anti‑Terrorism Act, 1997 in the Province of the Punjab for their information and guidance. M.B.A./B-3/L Petition allowed.