STATE through Advocate-General, N.-W.F.P., Peshawar vs MUHAMMAD SHAFIQ

ORDER

1. TANVIR AHMED.KHAN, J.---Leave to appeal is sought against the judgment dated 10-9-2002 whereby a learned Division Bench of the Peshawar High Court, Peshawar, accepted the appeal of the respondent and set aside the judgment dated 31-7-2002 rendered by the learned Special Judge, Anti-Terrorism Court, Kohat, and remanded the case for retrial of the respondent before an ordinary Court of competent jurisdiction. The facts briefly narrated for the disposal of this petition are that F.I. R. .No.60 was got registered on 6-4-2002 at Police Station Usterzai, Kohat, under sections 302/34, P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997 (hereinafter referred to as the Act), for the murder of one Waqar Ali aged 26-27 years at the instance of his brother Saif Ali. After usual investigation challan was submitted against the respondent and two others in the Court of Judge, Anti-Terrorism Court, Kohat. The learned Judge, through his judgment dated 31-7-2002 acquitted the co-accused of the respondents Zakir Hussain and Altaf Hussain but convicted Muhammad Shafiq respondent under section 302, P.P.C. Read with section 7 of the Act and sentenced him to death. The respondent filed Criminal Appeal No,289 of 2002 in the Peshawar High Court, Peshawar. A reference was also sent by the learned trial Court for confirmation or otherwise of the sentence of death imposed upon the respondent. A learned Division Bench of the Peshawar High Court vide its judgment dated 10-9-2002 held that the Anti-Terrorism Court had no jurisdiction to try the case in hand as the occurrence had taken place at a deserted place out of personal enmity which factum had got no nexus with the objectives mentioned in sections 6 and 7 of the Act. Hence, this petition, for leave to appeal. We have considered the contentions raised by the learned counsel for the parties and have gone through the entire material brought on record with their assistance. We are not dilating upon the merits of the case in view of the nature of the order which we are going to pass as this exercise may cause prejudice to either side. We have confined ourselves to a limited question, whether in the facts and circumstances of the present case. Sections 6 and 7 of the Act read with the Schedule were attracted. It is to be appreciated that the learned Judges of the Peshawar High Court were swa yed by the plea of the respondent on the ground that the murder took place at a deserted place having personal animosity which circumstance had no nexus with sections 6 and 7 of the Act. To bring an offence mentioned in the Schedule within the purview of the Act, it is essential that the said offence must have nexus with the object of the Act and the offences covered by sections 6 and 7 thereof. Section 6(b) of the Act which defines a "terrorist act" as under:-- "6. Terrorist act.--A person is said to commit a terrorist act if he,-- (a)..........................................................................

(b) 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."

2. A reading of the above provision 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 a barbaric and gruesome manner, if it had created fear and insecurity, would certainly come within the purview of the Act. Reference in this regard is made to the case of Mst. Raheela Nasreen v. The State and another 2002 SCM R 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.

3. In the case in hand the alleged murder was committed by the respondent by sprinkling petrol on the person of the deceased and also fired at him with his Kalashnikov. The body of the deceased was completely charred according to the doctor. Even the bones of his both hands and fore-arms were burnt. The death, according to him, had occurred apart from the firearm injury due to intense pain and difficulty in breathing in view of burning of large area of his body. The moment such a charred dead body was brought for its funeral rites within the area of the deceased's residence, it would had certainly caused shock, fear and insecurity among the people of the vicinity. The body was completely Charred and the onlookers must had felt fear and insecurity on seeing the barbaric and callous manner in, which the human body was mutilated.

4. There is another important distinguishable feature of the case that in the present petition the trial after its conclusion resulted in the conviction of the respondent by the Special Court. The order impugned has been passed in an appeal. The Special Court was presided over by a Sessions Judge appointed by the Government after consultation with the learned Chief Justice of the High Court concerned. The provisions of the Code of Criminal Procedure, 1898, are made applicable to the proceedings before a Special Court and for the purposes of the said provisions of Cr.P.C. a Special Court shall be deemed to be a Court of Session by virtue of section 32 of the Act. In this view of the matter, no prejudice whatsoever has been caused to the respondent for his trial by the Special Court. The case relied upon by the respondent are totally distinguishable as the facts and circumstances of the present case, as already stated, are entirely different wherein the trial had already been concluded and impugned order passed in the criminal appeal.

5. Resultantly, for what has been stated above, the instant petition is converted into appeal and is allowed. The impugned judgment dated 10-9-2002 is set aside and the case is remanded to the Peshawar High Court to decide the appeal on merits.