MUZAMIL Versus State

1. ARSHAD NOOR KHAN, J .--- By this common judgment we intend to dispose of the Constitutional Petitions Nos.D-136 of 2009 and 184 of 2009 as according to learned counsel for the petitioners the facts and law involved are identical.

2. The facts leading rise to Petition No.D-136 of 2009 are that the petitioners were challaned to face charge under sections 302, 342, 201, 34, P.P.C. read with section 7 of Anti-Terrorism Act, 1997 (hereinafter shall be referred to as the Act, 1997) in Crime No.131 of 2007 Police Station Tharoshah for having committed murder of two minor kids who were Hafiz-e-Qur'an by way of slaughtering their throats in presence of complainant and other eye-witnesses after fastening the complainant and witnesses. The petitioner took the dead bodies of both victim which were buried at the scene of offence in a ditch. The complainant party opened their bodies and rushed to their village and narrated the story to their Nekmard. The petitioners were arrested and after usual investigation were challaned before the learned Anti-Terrorism Court, Khairpur where case was registered as Special Case No.79 of 2007. After receipt of challan the petitioners filed application under section 23 of Act, 1997 for transfer of matter to the Sessions Court as according to petitioner the act .of terrorism was not committed at the time of incident, therefore, section 6 of Act, 1997 does not attract to the circumstances of the present case. The learned Special Judge Anti-Terrorism Court, Khairpur after hearing the counsel for the petitioner dismissed the said application vide order, dated 10-11-2008. Hence the petitioner filed present Constitutional Petition No.D-136 of 2009.

3. In C.P. No.D-184 of 2009 the petitioner has been implicated for offence punishable under sections 302, 342 148, 149, 337-A(i), 337-F(i), P.P.C. read with section 7 of Anti-Terrorism Act, 1997 in Crime No.9 of 2009 Police Station Gudpur District Sukkur for having committed triple murders of deceased Ghulamullah, Sanaullah and Siraj by firing with K.Ks. on them and caused fire-arm injuries to P.W. Asadullah, P.W. Yasin and P.W Imdadullah. After registration of F.I.R. the petitioner was arrested and after usual investigation challan was submitted in the Court of Anti-Terrorism Court Sukkur which was registered as Special Case No.73 of 2008. After receipt of challan the petitioner also filed application under section 23 of Act, 1997 for transfer of case to Sessions Court, as according to the petitioner, under the circumstances of the case, no case of terrorism was made out to attract the provision of section 6 of Act, 1997. The learned Special Judge Anti-Terrorism Court Sukkur vide order dated 22-1-2009 dismissed the said application, hence the petitioner filed this petition.

4. We have heard Mr. S. Mushtaque Hussain Shah learned counsel for the petitioners in both the petitions, Mr. Ghulam Shabbir Dayo, Advocate for respondent in C.P. No.D-184 of 2009 and Mr. Liaquat Ali Shar learned Additional Advocate-General for the State.

5. Mr. Mushtaque Hussain Shah learned counsel for the petitioner vehemently contended that the offence has no nexus with the provision of section 7 of Act 1997 as by the alleged act of the petitioners no terror has been spreaded, so as to attract the provision of section 7 of Act, 1997. He further contended that incident in C.P. No.D-136 of 2009 took place in sugarcane crop in the night time therefore, the offence was not publicized so as to say that the terror was spreaded by the petitioners. He further contended- that the act of petitioners in view of burial of corpse of both the kids shows that they in any way do not want to spread the terrorism amongst the public-at-large. He further contended that sophisticated weapons have not been used in the commission of offence, therefore, the sense of fear, insecurity, panic and terror did not spread in both the alleged offences and that the eye-witnesses belongs from one and same family and they being interested witnesses could not be believed, as such according to him learned trial Court did not consider the said aspect of the case while dismissing the application under section 23 of the Act, 1997 and both the orders impugned in the above petitions may be set aside and matter may be remanded to Sessions Court for disposal according to law. Learned counsel for the petitioners in support of his contentions has relied upon the case of Mohabbat Ali and another v. The State reported in 2007 SCMR 142, Niaz Ahmed v. The State reported in 2009 MLD 616, Ch. Bashir Ahmed v. Naveed Iqbal and 7 others reported in PLD 2001 SC 521 and Bashir Ahmed v. Muhammad Siddique and others reported in PLD 2009 SC 11.

6. Mr. Ghulam Shabbir Dayo learned counsel for respondent in C.P. No.184 of 2009 vehemently controverted the arguments advanced by the learned counsel for the petitioners and has contended that the offence has been committed brutally and is callus and by the act of the petitioners the sense of fear, insecurity and terror was spreaded in the locality which attracted the provision of section 6 of the Act, 1997 as such the petitioners were rightly challaned in the Anti-Terrorism Court and the learned Anti-Terrorism Court has rightly rejected the application under section 23 of the Act, 1997.

7. Mr. Liaquat Ali Shar learned Additional Advocate-General for the State also vehemently opposed the submissions advanced by the learned counsel for the petitioners and has contended that the manner in which the two kids, who were of tender age and were Hafiz-e-Qur'an, have been slaughtered has spreaded the sense of fear and insecurity among the society' and that the act in' killing of 3 persons by firing with K.Ks. at public place is brutal act which created the sense of fear and insecurity amongst the public-at-large, as such in both the cases the petitioners were rightly challaned, in the Anti-Terrorism Court by invoking sections 6 and 7 of Act; 1997.

8. We have considered the arguments advanced by learned counsel for the parties and have gone through the material available before us.

9. In C.P. No.D-136 of 2009 two young boys who were of tender age have been brutally slaughtered, who were forcibly brought from cotton crop along with the complainant and other family members, where all family members were fastened with rope by them and thereafter the petitioners slaughtered both Hafiz-e-Qur'an and after slaughtering both the minors in brutal manner buried their corpse at the place of incident and in the morning time the complainant party untied their rope and went to their Nekmard narrated the story to him and lodged F.I.R., the said details of incident shows that by the act of petitioner, committed at public place, sense of fear and insecurity amongst the public-at-large was created because two minor Hafiz-e-Qur'an were slaughtered in brutal manner.

10. In C.P. No.D-184 of 2009 the petitioner allegedly committed murder of 3 persons namely Ghulamullah, Sanaullah and Siraj by using of K.Ks. at public place and caused injuries to 3 P.Ws. namely Asadullah, Yaseen and Imdadullhah. The use of K.Ks. at public place thereby committed the murder of 3 innocent persons and causing injuries to 3 P.Ws. is also a brutal act of petitioner which created sense of fear and insecurity amongst the persons of that locality. The contention of learned counsel for the petitioner that petitioners in C.P. No.D-136 of 2009 did not use any sophisticated weapon and the murder of minors has not created the sense of fear and insecurity must be seen with the intention of the petitioners as the petitioner do not want to publicise the act to bring, it in electronic and print media so that sense of fear and insecurity may not be spreaded amongst the public. This contention firstly is implicating in nature and secondly has not impressed us for the reason that the act of sense and fear spreaded amongst the society when the petitioners committed the murder of two Hafiz-e-Qur'an by the brutal act of their slaughter and such act of petitioners is sufficient to hold that the sense of fear and insecurity amongst the public-at-large spreaded and the case of the petitioners is covered under section 6 of the Act, 1997.

11. "The term terrorism has wide meaning and for the purpose of assessment as to whether sense of fear and insecurity spreaded amongst the public-at-large the manner in which the incident took place coupled with the place where the incident took place are very material. The said proposition regarding spreading of terrorism with specific reference of the nature of the incident came for consideration before the Supreme Court in a number of cases wherein the Supreme Court was pleased to observe that the brutal act of murder at public place is sufficient to hold that by the act of the commission of murder at public place terror strike amongst the public of the said locality where incident took place and section 6 of the Act, 1997 attracted. If any authority is needed reference may be made to the case of Mst. Raheela Nasreen v. The State reported in 2002 SCMR 908, wherein the Supreme Court while dealing with the same proposition was pleased to observe that for. determination of question whether a particular act fell within the ambit of any of the provisions of Act, 1997, it was not necessary to record the evidence of witnesses to establish that the said Act had, in fact created terror for feeling of insecurity amongst the public. The question of applicability of the provisions of Act, 1997 has to be decided by applying mind to the facts alleged in the F.I.R. and other attending circumstances. According to section 6(b) of the Act, 1997 it was not necessary that the alleged offence had in fact caused terror, rather its requirements would be adequately satisfied, if the same was likely to strike terror of sense of fear and insecurity in the public."

12. In the case of Naeem Akhtar v. The State reported in PLD 2003 SC 396, the Supreme Court again while discussing the act of terrorism was pleased to observe that fright, dread or an apprehension in the mind of a person induce of an act by a person or causing fear and terror to the people, is terrorism and if an act done by a person as a source of-terror if any section of people which may cause damage to his life or property of some individual is a terrorist act as defined under section 6 of the Act, 1997 punishable under section 7 (ibid).

13. In the case of Shaikh Muhammad Amjad v. The State reported in PLD 2003 SC 704, the Supreme Court while dealing with the same proposition of law, was pleased to observe that condition precedent for the applicability of Act, 1997 is that the offence mentioned in the schedule should have nexus with the object mentioned in sections 6, 7 and 8 of the Act, 1997. If sense of fear and insecurity among the people-?at-large or any section of the people or disturbance of harmony amongst different sections of the people if created, the said provisions will be attracted. Even if by act of terrorism actual terror is not caused, yet section 6(b) of the Act, 1997 will be applicable if it is likely to do any harm contemplated in same subsection. It is the cumulative effect of all the attending circumstances, which provide tangible guidelines to determine the applicability or otherwise of subsection (b) of section 6 of the Act, 1997.

14. In the case of Abdul Ghafoor Bhatti v. Muhammad Saleem reported in PLO 2003 SC 1934, Supreme Court was pleased to observe that in the case in hand two minors were abducted for ransom by the miscreants such-like act has certainly got tendency to create sense of fear and insecurity in the mind of the people or any section of the society. The psychological effect created upon the mind of the people would be guiding feature so as to see whether the act complained of had got nexus with sections 6, 7 of the Act, 1997.

15. The observations made by the Honourable Supreme Court in the aforesaid cases, therefore, make it abundantly clear that for the purpose of ascertaining the fact of creation of a sense of fear and insecurity amongst the people-at-large, it is not necessary that the evidence must be recorded by, the Court to arrive at such conclusion but the facts contained in the F.I.R. and nature of the offence committed at public place are sufficient to assess as to whether the sense of fear and insecurity created amongst the public-at-large. Applying the test of aforesaid cases, in the present case, we find that the two minors have been brutally slaughtered and 3 persons were killed at public place by inflicting injuries from kalashnikov and 3 persons were injured in that offence and severity of these offences shows that sense of fear and insecurity definitely cropped up in the mind of public at the time of incident or even after the incident, as such the observations made by the Honourable Supreme Court in the aforesaid cases are fully applicable to the circumstances of the present case and the cases relied upon by the learned counsel for the petitioners in our humble opinion are not supporting the case of the petitioners but to some extent are supporting the case of the prosecution.

16. The contentions of the learned counsel for the petitioners that the witnesses are interested witnesses who belonged from one and same family and that the crime weapons have not been secured by the prosecution, in our humble opinion are not reasonable .grounds for consideration at the time of disposal of application under section 23 of the Act, 1997, same contentions are reflecting on merits of the case which could not be considered as sufficient ground for transfer of the case from one Court to another Court.

17. For all the above reasons and circumstances, the order passed by the learned trial Court in both the petitions does not suffer from any illegality or irregularity and does not call for any interference in constitutional jurisdiction of this Court, therefore, both the petitions are dismissed in limine along with the listed applications.

18. H.B.T./M-123/K ????????????????????????????????????????????????????????????????????????????????? Petitions dismissed.