The facts leading to this petition are that Mst. Noor Jahan widow of Abdul Majeed-writ petitioner had lodged Case FIR No, 235, at Police Station City 'A' Division, Rahim Yar Khan, for offences under .
Sections 380/447/148/149, PPC read with Sections 6 and 7, Anti-Terrorism Act, 1997, on 20-05-2007 alleging therein that the accused mentioned therein, while armed with firearms came at the spot with pre-consultation and resorted to aerial firing. The accused after causing injuries to the son of informant and creating terror at the spot had tried to dispossess and acquire the possession of residential house of the informant. During investigation Idrees and eight other accused were arrested, and when their remand papers were presented before the learned Judge Anti-Terrorism Court, Bahawalpur, who vide order dated 22-05-2007, directed the deletion of Sections 6 and 7, Anti-Terrorism Act, 1997, by observing that contents of the FIR attract the provisions of Sections 448/452, PPC and do not attract the provisions of Sections 6 & 7, Anti-Terrorism Act, 1997. Being aggrieved of the said order the petitioner has preferred this writ petition.
2. Learned counsel for the petitioner submits that according to Section 23, Anti-Terrorism Act, 1997, learned Judge could pass order after taking cognizance of the offence. As in the instant case the learned Judge had not taken cognizance of the offence, impugned order cannot be passed.
3. On the other hand, learned counsel appearing on behalf of the respondents submits that the learned Judge has powers and jurisdiction to order deletion of the above noted offence as from the contents of FIR no element of terror created by the accused is made out.
4. Heard and record perused. The Hon'ble Supreme Court of Pakistan in NLR 2005 Criminal 561 (Mirza Shaukat Baig vs. Shahid Jamil etc. has held that the learned Judge, Anti-Terrorism Court, can give findings of non-commission of terrorism after recording of statements of the witnesses, which would bring out that no element of terrorism or panic was created by the accused.
Moreover, the words used in Section 23, Anti-Terrorism Act, 1997, are very much clear on the point that the learned Judge can pass order after taking cognizance of an offence at the relevant time.
In these circumstances, we find that at the time of passing of impugned order the learned Judge had not taken cognizance of the offence and no sufficient material was available on record to delete the offence, therefore, the impugned order was pre-mature.
5. In view of the above discussion, we allow this writ petition, set aside the impugned order and direct the learned Judge, Anti-Terrorism Court, Bahawalpur, to decide the matter after taking cognizance of the offence and with application of judicial mind, after some evidence is recorded by the learned trial Court.