ORDER IJAZ AHMAD CHAUDHRY, J.---The petitioner has challenged the order dated 25-1-2010 through which the learned Special Court constituted under Anti Terrorism Act has held that it is a case of sectarian violence and is triable by the court constituted the said act.
2. Brief facts of the case are that an incident has taken place on 28-6-2009 at 6-00 p.m. And matter was reported through the statement of Imam Din on the same evening on 7-20 p.m. And case was registered under sections 302, 324, 148, 149, 114 and 120, P.P.C.
3. Brief facts as per F.I.R. Are that three unknown persons who were armed with fire arms on a motorcycle intercepted the complainant party started the firing and due to the firing of unknown persons Muhammad Aqeel son of the complainant received injuries on his head, face, chin, neck and chest who died at the spot, whereas an other person Muhammad Akram sustained fire-arm injuries who also died due to the injuries. After investigation report under section 173, Cr.P.C. Has been submitted and application was moved under section 23 of Anti-Terrorism Act for transfer of the case to the court of ordinary jurisdiction as section 7 ATA is not applicable in the present case.
4. The learned counsel for the petitioner contends that impugned order clearly indicates that it has been passed on surmises and conjectures and it does not indicate that any evidence has been collected by the Investigating Officer regarding the sectarian violence and the said incident also has not created any terror in the society or sectarian issue in the society, hence, the case was triable to the court of ordinary jurisdiction and incident has also taken place in the jungle and not in public place.
5. Learned counsel for the complainant contends that incident has taken place on the main road Derya Khan to Dera Ismail Khan; that it is a daylight occurrence, and there is no previous enmity between the parties or the incident taken place as a result of personal vendetta, hence, the learned trial Court has rightly held that the occurrence is nothing else but sectarian violence and has rightly passed the impugned order; that three cases of sectarian violence has been registered against the petitioner.
6. Learned A. A.-G has contended that the accused when arrested in his statement has stated that the incident is a result of sectarian violence and he belongs to Shia sect and the deceased was from Ahl-e-Hadis and Spahe Sahaba. It is also brought to the notice of this court that witnesses have made their statements that the incident has taken place as a result of sectarian violence who belong to Shia sect. Learned counsel for the petitioner contended that the said statement made by the complainant is improved upon as in his earlier statement such fact has not been mentioned by the complainant party.
7. We have heard learned counsel for the parties and perused the record. In the F.I.R. It is recorded that unknown person has committed the offence and it was not mentioned by the complainant party that incident has taken place as a result of sectarian violence. Learned counsel for the complainant has rightly pointed out that the petitioner is involved in three sectarian cases. We have also observed that on 15-7-2009 the Investigating Officer in case Diary No.12 of 2007 has recorded the statement of the complainant and other witnesses in which they had stated that the accused in the present case belong to Shia sect and the deceased was from Sipah-e-Sahaba and the occurrence has taken place as the result of sectarian violence and after recording the statement section 7 Anti-Terrorism Act, 1997 has been added. At the time of framing of charge and taking cognizance of the case the trial Court has to make tentative observation on the basis of evidence collected by the Investigating Officer during the investigation. It has now been settled that in statement made by the witnesses during the investigation and his incorporation in the Daily Diary and their statements even if not has been recorded, copy of the same has to be provided to the accused persons and the said witnesses can be confronted with their previous statements recorded in the Daily Diary. Hence, we found that material collected by the prosecution during the investigation prima-facie makes out the case of the petitioner falling under section 7 ATA and no illegality has been found in the impugned order. The petition being devoid of any force is dismissed.