VEJAY KUMAR and another vs The STATE

ORDER

' FAROOQ ALI CIIANNA , J.---The applicants facing charge in Crime No.44/2013 of Police Station Talhar District Badin under sections 365-A, 302, 201, 34, P.P.C. Read with sections 6/7, Anti-Terrorism Act, 1997 through this Criminal Revision application have called in question the order dated 8-7- 2013 passed by learned Special Judge Anti-Terrorism Court Hyderabad dismissing the application of the applicants filed under section 23 of ATA 1997 for transfer of case from the court established under ATA, 1997 to the court of ordinary jurisdiction for trial on the ground that offence does not fall within the parameters of terrorism.

2. Brief facts of the prosecution case are that complainant Gopal lodged F.I.R. Dated 23-4-2013 referred to herein above that on 20-4-2013 his minor son Wassal aged about 6/7 years left house at about 5-00 p.m. But did not come back, therefore, he, his brother Tando and neighbour Mala Ram went in his search but could not trace him. On the next day P.W. Tejomal and Mohan informed the complainant that they had seen Vijay Kumar and Abbas Mallah taking away his son Wassal in Rickshaw towards northern side. On such information complainant took Vijay Kumar to "MANDER" and inquired from him, who admitted that he and Abbas Mallah had kidnapped his son for ransom and were searching a suitable place to detain him but he was crying copiously, therefore, they taped his mouth and put him in a bag, resultantly he died, therefore, they threw his dead body in Channel Wah. The complainant and P.Ws thereafter made search in Channel Wah but to no avail. It is further alleged that a day before lodging F.I.R., ASI Ghulam Shabir Khoso of Police Station Talhar informed the complainant that Badin Police has recovered a dead body of a child lying in a bag from Kazi Wah. On such information the complainant went to Civil Hospital Badin and identified the dead body to be of his missing son Wassal.

3. Mr. Ali Ahmed Palh counsel for the applicants during arguments has contended that F.I.R. Was lodged with unexplained delay of two days and the facts narrated in F.I.R. Demonstrated that it was lodged after consultation and thought; that as per F.I.R. The complainant was informed about kidnapping and murder of his son Wassal on 21-4-2013 as such there was no reason to lodge F.I.R.

After two days, such delay has caused doubt in the prosecution story. Learned counsel also referred to certain contradictions in the statements of P.Ws. Under section 161, Cr.P.C. Recorded by the I.O. And under section 164, Cr.P.C. By the Judicial Magistrate. In these circumstances, according to learned counsel, the prosecution case appears to be concocted, hence it does not fall within the definition of terrorism as it does not cover the parameters of subsections (a), (b) and (c) of section 6 of Anti-Terrorism Act, 1997.

4. Conversely learned Deputy Prosecutor-General for the State opposed the Criminal Revision application and contended that on the basis of submissions made by the learned counsel for the applicants, the jurisdiction of Anti-Terrorism Court to try this case cannot be determined.

5. We have heard learned counsel for the parties and perused the record minutely. The submissions made by learned counsel for the applicants have nexus with the merits of the case, which shall be considered by the learned trial court while deciding the case finally. On the basis of some contradictions in statements of P.Ws., the jurisdiction of Anti-Terrorism Court to try the case, cannot be determined. Learned counsel for the applicants during arguments also referred to the case reported as Tarique Hakeem v. The State and 12 others (2011 YLR 19) whereby the case against applicant Tarique Hakeem was withdrawn from the Anti-Terrorism Court and transferred to the Court of ordinary jurisdiction on the ground that although F.I.R. Did not reflect the names of accused persons, yet the incident was the result of enmity and personal vendetta, as was apparent from the supplementary statement made by complainant before the police, wherein he had categorically narrated all the facts suggesting that the incident had taken place due to previous enmity. The facts and circumstances of aforesaid case are distinguishable as in this case no previous enmity exist between the parties hence the dicta laid down in the above citation is not applicable to this case. Learned counsel has also relied upon another case reported as Raza Khan v. The State and 2 others (PLD 2009 Karachi 7) which in our view supports the prosecution version and not the case of applicant/accused. In the above case, the Anti-Terrorism Court had returned the challan to Investigating Officer for presentation before competent court of ordinary jurisdiction.

The said order was assailed in Criminal Revision Application No.72 of 2007 before this court and was set aside with the observations that from the perusal of statement of victim and F.I.R., it appeared that allegation of kidnapping for ransom, prima facie a scheduled offence triable by the Special Court established under Anti-Terrorism Act has been made out. This court while fbllowing the case reported as Mirza Shoukat v. Shahid Jamil (PLD 2005 SC 530) has further observed that it is within the domain of Anti-Terrorism Court to decide whether the offences are triable by it or not.

6. While deciding criminal jurisdiction of the Anti-Terrorism Court to try the scheduled offences of A.T.A., 1997, the court has to see the gravity of the offence, its repercussion in society and surrounding circumstances. Beside above the essential ingredient is to see the sense of insecurity and fear in the public born out of the said act. In the case of Bashir Ahmed v. Muhammad Siddique and others (PLD 2009 SC 11) the honourable Supreme Court has held that:- "After having gone through the entire law as enunciated by this court in different cases the judicial consensus seems to be that striking off terror is sine qua non for the application of the provisions as contained in section 6 of the Act which cannot be determined without examining the nature, gravity and heinousness of the alleged offence, contents of F.I.R., its cumulative effect on the society or a group of persons and the evidence which has come on record. There could be no second opinion that where the action of an accused results in striking terror or creating fear, panic, sensation, helplessness and sense of insecurity among the people in a particular vicinity it amounts to terror and such an action squarely falls within the ambit of section 6 of the Act and shall be triable by a Special Court constituted for such purpose."

In this case per prosecution a minor boy of 6/7 years was kidnapped for ransom, his mouth was tapped and was put in a jute bag, to keep him silent in order to avoid attention of people towards them which resulted his death and subsequently the culprits threw his dead body in Channel Wah, such barbarity naturally will create fear, panic and sense of insecurity among the people of vicinity.

The above facts and circumstances of the case, makes it clear that the act of applicants/accused squarely falls within the ambit of terrorism attracting the jurisdiction of Anti-Terrorism Court in terms of section 6(1)(b), Anti-Terrorism Act, 1997, hence the trial Court has correctly assumed the jurisdiction declining the transfer of case to the court of ordinary jurisdiction, as such the impugned order is not perverse nor suffering from any infirmity, hence it does not require interference by this court in exercise of revisional jurisdiction envisaged under section 435, Cr.P.C. Or inherent powers under section 561-A, Cr.P.C., which can only be involved in exceptional cases of extraordinary nature and not in each and every case.

' The above are the reasons of dismissing the Revision Application vide short order dated 19-11-2013.