MUHAMMAD MUSHTAQ vs MUHAMMAD ASHIQ and others

FAQIR MUHAMMAD KHOKHAR, J.---The petitioner seeks the grant of leave against order dated 2-10- 2001- passed by the Lahore High Court, Lahore in Writ Petition No,17841 of 2001.

2. Briefly stated, the facts of the case are that the petitioner lodged F.I.R. No,281 of 2000 dated 17-7- 2000 with Police Station Islampura, Lahore, under sections 302/148/149, P.P.C. Against the respondents Nos. 1 to 3 and another for the quadruple murder of his relatives namely Haji Muhammad Ashiq, Haji Abid, Haji Muhammad Siddique and Shaukat Ali by the use of kalashnikovs at 9-15 a.m. On 17-7-2000 on the Court Road near District Courts, Lahore. During the course of police investigation offence under section 7 of the Anti-Terrorism Act, 1997 (hereinafter referred to as the Act) was also added. The Judge, Anti-Terrorism Court No,1, Lahore took cognizance of offence and framed the charge against the accused. The respondents Nos.1 to 3 moved an application under section 23 of the Act for ' the transfer of the case to the ordinary Court which was dismissed by the Judge, Anti-Terrorism Court, Lahore by order dated 13-9-2001. Thereafter, they filed Writ Petition No, 17841 of 2001 which was accepted by the impugned order dated 2-10-2001 passed by a learned Division Bench of the Lahore High Court, Lahore with the direction for the trial of the case by the Court of Session. Hence this petition for leave to appeal.

3. The learned counsel for the petitioner argued that the facts narrated in the F.I.R. And other material produced by the prosecution constituted an act of terrorism and a heinous offence within the meaning of section 6 of the Act read with its preamble which was exclusively triable by the Anti-Terrorism Court. It was further submitted that the gruesome murder of four persons had been committed near the premises of the District Courts, Lahore by the use of lethal weapons which had created sense of insecurity in the society. The learned counsel relied on an unreported judgment dated 22-3-2002 of this Court in Civil Petition No, 3430-L of 2001 in the case of Ziaullah v. The Special Judge, Anti-Terrorism Court, Faisalabad and 7 others in support of his submissions.

4. The learned counsel for the State supported the submissions of the learned counsel for the petitioner for setting aside the impugned judgment of the Lahore High Court and for trial of the case by the Anti-Terrorism Court.

5. On the other hand, the learned counsel for the respondents Nos.1 to 3 submitted that the occurrence was the result of an existing enmity between the parties and that two persons on the side of the said respondents had earlier been murdered in which the deceased of the present case were involved. He argued that it was an ordinary case of murder which was required to be tried by the Court of Session. The learned counsel lastly contended that the provisions of section 6 of the Act defining "terrorism" were inserted by the Anti-Terrorism (Amendment) Ordinance, No,XXXIX of 2001, on 15th August, 2001 which could not be given retrospective effect so as to cover a case in which occurrence had already taken place.

6. We have heard the learned counsel for the parties at length. We have also gone through the contents of the F.I.R., Anti-Terrorism Court as also by the Lahore High Court. As is clear from its preamble, the Act was brought into force for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences and for matters connected therewith and Incidental thereto. The provisions of section 6 of the Act, define the "terrorism", inter alias, as follows:-- "(1) In this Act, 'terrorism' means the use or threat of action inter alia where--

(a) the action falls within 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 create a sense of fear or insecurity in society; or

(2) An 'action' shall fall within the meaning of subsection (1), if it--

(a) involves the doing of anything that causes death;

(b) involves grievous violence against a person or grievous bodily injury or harm to a person;

(c) to (h)

(i) creates a serious risk to safety of the public or a section of the public, or is designed to frighten the general public and thereby prevent them from coming out and carrying on their lawful trade and daily business, and disrupts civic life."

Section 12 of the Act lays down that notwithstanding anything contained in the Code of Criminal Procedure or in any other law, a scheduled offence committed in an area in a Province shall be triable only by the 'Anti-Terrorism Court.

7. 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. Thus where a criminal act is designed to create a sense of fear or insecurity in the minds of the general public disturbing even tempo of life and tranquillity of the society, the same may be treated to be a terrorist act. There may be just a few killings, random or targeted, resorted to with single mindedness of purpose. But nevertheless the impact of the same may be to terrorise thousands of people by creating a panic or fear in their minds.

8. In the present case, we, prima facie, find that the occurrence took place during the peak hours of the day on the busy Court Road near the District Courts, Lahore, wherein four persons while on their way to attend the Court were allegedly murdered by the use of kalashnikovs. 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 case was, therefore, triable by the Anti-Terrorism Court established under the said Act in view of its peculiar facts and circumstances as also the law and order situation prevailing in the country. In the case Ziaullah (supra) a similar view as taken by this Court in somewhat similar circumstances.

9. As regards the question of ex post facto operation of the law, suffice it to refer to the provisions of section 38 of the Act which provide that "where a person had committed an offence before the commencement of this Act which if committed after the date on. Which this Act comes into force would constitute a terrorist act hereunder he shall be tried under this Act but shall be liable to punishment as authorized by law at the time the offence was committed".

10. 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.

11. For the foregoing reasons, we convert this petition into appeal and allow the same by setting aside the impugned order dated 2-10-2001 passed by the Lahore High Court. The (sic) Lahore for trial in accordance with law and on its merits. No order as to costs.