2004 PLP 704 (YLR)

Applicant, Nasir Hussain Shah, has approached this Court for grant of bail in a case (Crime No. 123 of 2002, Police Station, A-Section, Khairpur) presently pending trial before the Court of learned IInd Additional Sessions Judge, Khairpur.

2. The facts of the prosecution case as per F.I.R. lodged on 26-10-2002 at 8-00 a. m. at Police Station, A-Section, Khairpur, are as under:-- "Report is that Bela is my daughter. She is aged about 14/15 years and studies in Government Girls High School, Khairpur, in 9th Class. On 26-10-2002 in the morning time as usual she left to school alongwith her other schoolmates. While I and Ghulam Asghar were present in our house, my daughter returned home from school on whom we noticed injuries on her face and other parts of the body. She disclosed that while on her way to school alongwith her schoolmates at about 8-00 a.m. upon reaching the street at the house of the accused, accused Nasir Hussain Shah threw acid which fell on her face and other parts of the body and caused injuries to her which incident she narrated to the school peon Arbab also. After hearing this from the daughter the complainant took her daughter Bela for medical treatment to Civil Hospital, Khairpur, and remained busy in her medical treatment. He, however, lodged the report with the police on 29-10-2002 stating that accused Nasir Hussain Shah has caused injuries by sprinkling acid on her face and other parts with a view to deface her daughter. Such injuries are appearing on her face and other parts. "

3. An application for his bail was moved before the learned trial Court, which was dismissed by an order dated 16-12-2002.

4. Section 336, P. P. C. provides punishment of Qisas in consultation with the authorized medical officer and if the Qisas is not executable keeping in view the principles of equality in accordance with the Injunction of Islam, the offender shall be liable to Arsh and may also be punished with imprisonment for a term which may extend to 10 years.

5. The Medical Officer upon examination found as many as 11 injuries on the victim girl mostly appearing on her head and face.

6. It was argued in support of the application that the F.I.R. was lodged with a great delay of 3 days. The applicant is a Government servant serving as a Bailiff in Income Tax Department and that he has been falsely implicated on account of political enmity between the party of the applicant and the rival party: Further, there are no eye-witnesses of the occurrence and that the injuries have described by the Doctors as Shuja-e-Khafifah and other hurts, which would attract sections 337(i) and 337-L(b) P.P.C., which offences. are bailable. It was further argued that section 336, P.P.C. has been misapplied. It was lastly contended that the name of the applicant does not appear in the non-cog report by the complainant and it having been mentioned in the F.I.R. that the applicant was known to the girl, the applicant's name ought to have appeared in the N. C. report. Reliance was placed on the case of Tariq Bashir v. The State PLD 1993 SC 34; 1997 SCMR 449.

7. Mr. Abdul Sattar Soomro, learned counsel appearing for the State, while opposing the bail application submitted that the report was lodged by the complainant on the same day of the incident at 13-05 hours; which was registered as a non-cog report; hence it cannot be said that the report was lodged after delay of three days. It was submitted by him that non-mention of the applicant's name in a non-cog report, may have simply been an omission as the complainant must be very much mentally disturbed and must be busy in attending to and looking after the medical treatment being provided to the victim, who was none else but his daughter. He further-argued that the offence committed by the applicant was a terrorist act and was triable by an Anti-Terrorism Court.

8. As far the bail plea is concerned, the applicant is alleged to have caused as many as eleven injuries on the person of the student girl by throwing acid on her face. The offence under section 336, P.P.C. does not fall within the prohibitory clause to subsection (1) of section 497 Cr.P.C., even otherwise bail in a non -bailable offence cannot be claimed as right.

9. Reverting to the second contention of the State Counsel, the case of prosecution is that while the student girt was on her way to the school, the applicant all of a sudden emerged on the way and threw acid on her face. This act besides causing severe burns on the face of the girl resulted in permanent disfiguration of a very important part of a person's body. The act of the applicant must create fear , insecurity and anguish in the minds of great section of public.

10. The Honourable Supreme Court in its judgment dated 25-10-2002 in Cr.P.L.A. No. 112-P of 2002, while accepting `the appeal of the State, set aside the judgment of the Peshawar High Court directing retrial of the accused before ordinary Court of competent jurisdiction and remanded the case back to the High Court to decide the appeal on merits, observed as follows, in relation .to section 6(b) viz. "commits a scheduled offence, the effect of which will be, or be likely to be, to strike terror, or create a sense of fear and insecurity in the people, or any section of the people, or to adversely affect harmony among different sections of the people":-- "

5. A reading of the above provision section 6(b) 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. It is also not necessary that the said act must have taken place within the view of general public so as to bring it within the encompass of the Act. Even an act having taken place in barbaric and gruesome manner, it had created fear and insecurity would certainly come within the purview of the Act. Reference in this regard is made to the case on Mst. Raheela Nasreen v. The State and another 2002 SCMR 908 wherein the husband was killed by a Batman in connivance with his wife inside the house. However, the case was tried by the Special Court constituted under the Act as this act of the Batman, being a trusted person employed by an army officer though committed inside the house, was likely to strike terror leading to the feelings of insecurity among the army officers in spite of the fact that they had not seen the incident."

11. The alleged act of the applicant without the least doubt would have created fear and insecurity in the minds of entire community of girl students and their parents and thus the entire society.

12. In view of the above the alleged act would fall within the ambit of section 6 of the Anti-Terrorism Act, and hence it would be triable by Anti-Terrorism Court.

13. Resultantly, the bail application is; dismissed and the case of the applicant; pending before the Court of learned Additional Sessions Judge, Khairpur, is withdrawn from his file and is transferred to the Administrative Court Anti -Terrorism, Sukkur for trying the case itself or assign the same to any other Anti -Terrorism Court at Sukkur for trial in accordance with law. For such reasons above bail application was disposed of by a short order dated 8th January, 2003. N.H.Q./N-4/K Bail refused.