2005 PLP 1096 (MLD)

SYED SAKHI HUSSAIN BOKHARI, J‑‑‑In this Constitutional petition, the petitioner has prayed for setting aside order dated 11‑3‑2004, passed by learned Special Judge, Anti‑Terrorism Court, Bahawalpur.

2. Relevant facts for the disposal of this writ petition are that Bashir Ahmad, respondent No.4 (complainant), stated before police on 12‑11‑2003, in the F.I.R, lodged by him, that he was Head Constable in Police Department and that his daughter (Mst. Shehla Bashir, aged about 18/19 years) was ill since long and she was getting treatment. He further stated that on 11‑11‑2003, fifteen minutes after `Aftari' (sunset), his daughter went outside the house, whereupon, he, his son (Munir Ahmad) and his brother (Haqnawaz) searched her. He mentioned that when they reached Faisal Colony Road, they came to know that a girl was present on the road and Sarfraz son of Allah Wasaya and Nadeem. Ricksha owner, took her towards the bus stand in a 'Ricksha'. He along with aforesaid persons, searched Shehla Bashir but she was not found. However, she reached her house on 12‑11‑2003 at about 12‑00 noon and she disclosed before him in the presence of witnesses that she had gone to the house of Agha Khalid but he turned her out of his house and when she reached in the street, Sarfraz and Nadeem boarded her in a Ricksha and took her in a house, situated behind the bus stand where they committed Zina‑bil‑Jabr with her. Thereafter, they took her in another house, and Nasir Kana, Muhammad Imran, Muhammad Sajid and Aamir Mahmood son of Agha Khalid Mahmood also reached there in the said house. They administered her alcohol, made her naked and asked her for dancing. Sajid and Nasir committed Zina‑bil‑Jabr with her and then Sarfraz and Nadeem took her to a `Bhana' (cattle shed) and again committed Zina‑bil‑Jabr with her. Thereafter they boarded her on a motorcycle and dropped her on a pertrol pump and also paid Rs.35. She paid Rs.35 to a Ricksha Driver and reached her house. On his statement, case was registered against the petitioner and others and after usual investigation, they were challaned. The challan was submitted before Special Judge, Anti‑Terrorism Court, Bahawalpur. The petitioner and Nadeem, co‑accused, submitted application before learned Special Judge for sending the case to the Court of learned Sessions Judge, Bahawalpur. They mentioned in application that it was not Scheduled offence as per Anti‑Terrorism Act, 1997 and the same was triable by Sessions Judge. They further mentioned that even according to the contents of F. I. R, the case was not triable by Special Judge, After hearing the parties, learned Special Judge rejected their application vide order dated 11‑3‑2004. Hence this writ petition.

3. We have heard the arguments and perused the record. As mentioned above, Bashir Ahmad, respondent No.4, got registered case against the petitioner and his co‑accused and after usual investigation, the Challan was submitted before Anti‑Terrorism Court. The case of the petitioner is that it is not a scheduled offence and that contents of F.I.R. show that offence is not triable by Special Judge, Anti‑Terrorism Court. Also that there was no terrorist act and that the facts and circumstances of the case show that no panic or sense of insecurity was created during the said occurrence.

4. On the other hand, learned counsel for the respondent No.4 (complainant) has argued that according to the facts and circumstances of the case, the learned Special Judge, Anti‑Terrorism Court, has jurisdiction to try the case. However, learned Assistant Advocate General concedes that this case is not triable by Special Judge.

5. We have considered the submissions made by learned counsel for the parties with care. As mentioned above, the complainant/respondent No.4 got registered case against the petitioner and his co‑accused and stated that his daughtek was sick and she left his house of her own but, later on, accused took her to different places and committed Zina‑bil‑Jabr with her. Also that she came back next day of B her own. During investigation Amir Mehmood, accused was found to be innocent. There is nothing on record to show that occurrence created terror, panic or sense of insecurity amongst the people. S.6 of Anti Terrorism Act, 1997 reads as under:‑ "

6. Terrorism. ‑‑‑(1) In this Act, "terrorism" means the use or threat of action where ..... (a) the action falls with the meaning of sub‑section (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 (c) the us of threat is made for the purpose of advancing a religious, sectarian or ethnic cause. (2) An "action" shall fall within the meaning of sub‑section (1), if it‑‑‑ (a) involves the doing of anything that cause death; (b) involves grievous violence against a person or grievous bodily injury or harm to a person; (c) involves grievous damage to property; (d) involves the doing of anything that is likely to cause death or endangers a person's life; (e) involves kidnapping for ransom, hostage‑taking or hijacking; (f) incites hatred and contempt on religious, sectarian or ethnic basis to stir up violence or cause internal disturbance; (g) involves stoning, brick‑batting or any other form of mischief to spread panic; (h) 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 worship; (i) creates a serious risk to safety of 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; (j) involves the burning of vehicles or any other serious form of arson; (k) involves extortion of money (bhatta) or property; (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 or 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 an act or a series of acts. (5) In this Act, terrorism includes any act done for the benefit of a proscribed 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 act 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 act of terrorism, shall also be included in the meaning given in Clause (a) above. " There was no sectarian violence. Likewise, facts of the case do not show that there was sense of fear or insecurity in the people, rather, according to the prosecution story, it is the case of rape. The Court has to see whether the act had the tendency to create sense of fear or insecurity in the minds of the people or any section of the society and to see psychological impact created upon the minds of the people. As mentioned above, as per F.I.R., daughter of complainant left her house of her own (perhaps being sick/abnormal) and returned alone in a rickshaw on the next day. There is no evidence that accused had teased the victim prior to the occurrence or it was in their knowledge that she would leave her house on the fateful night. Admittedly, complainant got registered the case when his daughter returned. It is pertinent to note that there is no evidence to show that actually she was abnormal. There is no medical report that accused had administered her alcohol. An act of terrorism means an act which is committed with the sole object to terrorize the people and to feel their insecure. These ingredients are not' in the instant case. In our opinion, as per F.I.R, the occurrence has no tendency to create sense of fear and insecurity within the purview of Anti‑Terrorism Act. So, there was no justification for submitting the Challan before Anti‑Terrorism Court. As stated earlier, learned A.A.‑G., too concedes that case is not triable by Special Judge. As such, in the circumstances of the case, we find that impugned order is not sustainable in the eye of law and the same is liable to be set aside.

6. The upshot of the above discussion is that this writ petition is accepted; impugned order is set aside and application brought by petitioner is accordingly allowed. The Challan shall be submitted before learned Sessions Judge, Bahawalpur for trial, in accordance with law. H.B.T./S‑294/L Petition accepted.