2010 PLP 1817 (YLR)

GHULAM SARWAR KORAI, J.--On 10-2-2009 son of the complainant namely Nazik, aged about 7/8 years left his house but lost, therefore, his search was started by the complainant. The complainant saw a mob of the people near Ganda Nala, near Seraiki Pullia, Phase VII, DHA, Karachi, wherefrom police recovered dead body of son of the complainant in a bag as he was murdered by unknown persons after committing unnatural offence with him, therefore, F.I.R. No.61/2009 was registered for offences punishable under sections 302,377, P.P.C.

2. On 13-4-2009 Shaukat Hussain (respondent No.2) and Master Mukhtar (respondent No.3) were arrested and on 29-5-2009 Malik Aqeel Ahmed (respondent No.4) was arrested. On 20-6-2009 final report was filed in Class `A' due to insufficient evidence and reasons were that Investigating Officer could not find any eye witness of the incident and due to inconclusive DNA test the arrested accused are innocent. All three accused namely Shaukat Hussain, Master Mukhtar and Malik Aqeel were bailed out vide order dated 3-7-2009. Application for cancellation of bail and to return the case with the direction to submit a final report before Anti-Terrorism Court, was moved on behalf of the complainant and application under section 265-K, Cr.P.C. was filed on behalf of the accused for their acquittal as charge against them is beyond base. In the order dated 19-11-2009, the learned trial Court observed that this is not a case for cancellation of bail and this case not to be tried by the Anti-Terrorism Court and lastly this is not a case in which charge may be framed, therefore, application under section 265-K, Cr.P.C. was allowed by observing that "the trial is kept in abeyance till sufficient evidence is collected to enable the court to take cognizance and proceed with the trial. The accused are kept on their PR bond as already been executed. Sureties discharged." This order is impugned before this Court in the present criminal revision application.

3. Heard learned counsel for the applicant/complainant, learned counsel for the respondent No.4 and learned APG for the State while respondents Nos.2 and 3 were not served through notice, therefore, publication was ordered and it was published in daily JANG, Karachi Newspaper on 16-1-2010.

4. Learned counsel for the applicant/complainant contended that a minor innocent boy, aged about 7/8 years, was murdered after committing unnatural offence with him and his dead body was found in the bag lying in the Ganda Nala by the people of the locality as well as police, therefore, the offences fall within the definition of section 6 of Anti-Terrorism Act, 1997. He further contended that without deciding the point of jurisdiction bail was granted to the respondents Nos.2 to 4 and the application for cancellation of bail was dismissed but application filed by the respondents/accused under section 265-K, Cr.P.C. was allowed, as stated above.

5. Learned counsel for respondent No.4, in his arguments, supported the order passed by the trial Court as well reasoning while contentions of the applicant/ complainant were supported by the learned APG for the State.

6. The case of the prosecution is in four parts: firstly, minor boy Nazik was abducted, secondly unnatural offence was committed with him, thirdly he was murdered and lastly his dead body was concealed in bag and was thrown in Ganda Nala in order to destroy the evidence. Abduction of a minor, committing unnatural offence with him and killing him will definitely cover the definition of section 6 of Anti-Terrorism Act, 1997 and in the similar circumstances a Division Bench of the Lahore High Court decided the case of State v. Abdul Malik reported in PLD 2000 Lahore 449 and directed the case to be tried by the Special Court under the Anti-Terrorism Act, 1997.

7. For the foregoing reasons, I am also of the considered view that ordinary court has no jurisdiction to try the present case, therefore, the order dated 19-11-2009, passed by the IIIrd Addl. Sessions Judge, Karachi (South) is hereby set aside with the direction to file the report whatever may be before the Anti-Terrorism Court having jurisdiction. With the above observation Cr. Revision Application No.163 of 2009 is disposed of and M.A. No.4771 of 2009 has become infructuous. H.B.T./M-77/L Order accordingly.