' SHAHID HAMEED DAR, J.---The petitioner, through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calls in question the legality of order dated 13-3-2014, whereby an application moved by the respondent-accused under section 23, Anti-Terrorism Act, 1997 (hereinafter to be read as the Act) has been allowed by the learned Judge, Anti-Terrorism Court No,IV, Lahore.
2. Relevant facts for consideration in this case are that Atif Ali (complainant) got registered F.I.R.
No,343, dated 29-9-2013, under sections 302, 148, 149, P.P.C. Read with section 7 of the Act, at Police Station Saddar Chunian (Kasur) with the allegation that he had set up fire-place (bhattie) to bake bamboos in the village; accused, Afzaal alias Jala & others were record-holders as well as money- extorters and they frequently demanded/received bhatta from the people of the area; they came to his bhattie at 6.00 p.m. On 28-9-2013 and threatened him, if he did not pay Rs,5000 to them, they would not spare him; they got into his house at about 10.30 p.m., the same day, abused and tortured him for having not sent the demanded money; in the meanwhile, his father Wazir Ali came, who resisted demand of the accused, whereon Afzaal fired straight with his repeater-gun, which landed at his chest, due to which he fell down and died at the spot; the other fire of the accused hit main gate and front wall of the house; the accused committed the crime to terrorize the people so as to receive bhatta. The respondent-accused moved an application under section 23 of the Act before the learned trial court for transfer of their case to an ordinary court of jurisdiction, which was allowed by it through the impugned order. Hence, the instant petition.
3. Learned counsel for, the petitioner has contended that the learned trial court misread the record to pass the impugned order, which makes it patently illegal; the story of F.I.R., statement of the lone eyewitness, the medical evidence and other attending circumstances of the case clearly established that the accused had committed the crime after they failed to receive bhatta from the complainant and murdered his innocent father only for the said reason; the offence allegedly committed by the respondent-accused and their co-accused fell within the mischief of an act of terrorism, which is exclusively triable by the Anti-Terrorism Court; the offence committed by the accused certainly caused panic and fear to the public at large, therefore, it is not material if it was committed inside the house or outside it.
4. Learned counsel for respondents Nos.2 to 4 as well as the learned Law Officer have opposed this petition with the contentions that the alleged offence took place inside the house of the complainant in the dark hours of the night, hence, it is a case, essentially to be tried by a court of ordinary jurisdiction; the impugned order has been passed with correct appreciation of facts and the prevalent law, which make it a valid order; no one from the complainant-side paid bhatta to the accused nor any such amount was recovered during the course of investigation; the Investigating Officer failed to verify the allegation regarding bhatta during investigation and he opined that the complainant's version in this regard was false; lastly submit in unison that the impugned order has been passed within the limits of law, which does not call for interference by this court.
5. After hearing learned counsel for the parties and perusing the record, it is observed that the learned trial court probably forgot about its earlier order, passed on 11-12-2013, which contained crucial observations that "allegation of demand of Bhatta and on refusal of which the committing of occurrence of murder by the accused persons is levelled in the F.I.R. The witness in statements under section 161, Cr. P. C. Also made statement in this respect. So, at this stage, the allegation of demand of Bhatta is clear on record. The I.0. Has not added offence for demand of Bhatta. He is directed to add offence for demand of Bhatta." It is not a case wherein complainant paid any amount of bhatta to the respondent-accused or their co-accused, rather they allegedly demanded bhatta amount of Rs,5000 from him and on his denial, they attacked him at his house and murdered his father instantaneously, transmitting a clear message to the complainant, his family members and everyone living around, if any one showed defiance and refused to submit to them, he would be treated the same way. The general conduct and demeanour of the accused has not only been hinted at in the F.I.R., rather Investigating Officer also opined vide case diary dated 27-3-2014 that the accused were known notorious characters in the village, they openly drank, intimidated the people and received bhatta from them at their choice. The occurrence allegedly committed by them was bound to grip people of the vicinity in fear, panic, frustration and fright, all leading to feeling of insecurity in their minds. The statement of the complainant is fully corroborated by Amjad Ali, the only eye-witness of the occurrence, who too has alleged that the accused committed the gruesome offence on their failure to receive bhatta from the complainant.
It is not a case where hhatta was paid to the accused, hence, recovery thereof from the accused is out of question. The trial court's observations in the impugned order that "Extortion money was not recovered from the accused Demanding BHATTA has not been established during investigation." are out of place, which tendered a distorted and twisted version of the prosecution case. The trial court failed to take notice of the fact that the Investigating Officer did not mention anywhere in report under section 173, Cr.P.C. That the accused had not demanded bhatta from the complainant, what he has mentioned therein is that receipt of bhatta by the accused could not be verified by him during investigation, albeit it was not the case, that the complainant paid bhatta to the accused.
6. It may have been at the back of mind of the learned trial judge that an attempt to charge bhatta was not covered by section 6(k) of the Act, as such the impugned order had been made. An examination of section 6 of the Act would show that charging of bhatta has been made an offence under sub-clause (k) thereof. The offence of charging bhatta as defined under section 6(k) is punishable under section 7(h) of the Act, which underlines that "the act of terrorism committed falls under clauses (h) to (n) of subsection (2) of section 6, shall be punishable, on conviction, to imprisonment of not less than five year but may extend to imprisonment for life and with fine". If we look at the Schedule of offences annexed with the Act, item No,1 would construe that any act of terrorism within the meaning of this Act would constitute a scheduled offence and language of item No,2, any other offence punishable under this Act, being also a relevant factor, in respect thereto. Looking at the Third Schedule in descending manner, item No,3 catches the eye, which reads, "Any attempt to commit, or any aid or abetment of, or any conspiracy to commit, any of the aforesaid offences." <./i>The conjoint effect of the above-said provisions of law would be that attempt of charging bhatta constitutes a scheduled offence, which is triable by the Anti-Terrorism Court, constituted under the Act. The argument of the learned counsel for the respondent- accused that the alleged act of the accused, being an in-house affair had not created any feeling of insecurity or it did not strike terror is wholly fallacious, as law does not require that in order to determine whether a particular act, committed by the accused created terror or feeling of insecurity or it fell within the mischief of the act of terrorism, the evidence of the witnesses should be recorded. It is the descriptive text of the F.I.R., the record of the case and other attending circumstances, which accumulatively would tell, if the alleged offence fell within the purview of any of the provisions of the Act. The manner in which, the respondent-accused and their co- accused behaved themselves at the time of the alleged occurrence clearly suggests that the act done by them had a nexus with the object of the Act and thus it was squarely covered under sections 6 and 7 thereof. Guidance in this regard may be had from Nazir Ahmad and others v.
Nooruddin and another (2012 SCMR 517) and Mst.Raheela Nasreen v. The State and another (2002 SCMR 908). How can it be considered that the alleged crime had gone unnoticed, as argued by the learned counsel for the respondents. Though it was committed in the house of the complainant at night, yet, its details were immensely shocking, which create either a sense of insecurity amongst the people of the area or it was likely to terrorize them. The ferocity of the alleged offence must have emitted shock waves and signals of unknown fear, dislodging people's mental peace with the feeling of insecurity and vulnerability.
7. The result drawn by the trial court that the case was exclusively triable by the ordinary court is not based on any cogent and plausible reason. The impugned order, therefore, is set aside, resultantly, application of the respondent-accused under section 23 of the Act also meets the same fate. The case against the respondent-accused shall be tried by an Anti-Terrorism Court.
The judicial-record, if transferred, shall be remitted back to the learned Anti-Terrorism Court, Lahore forthwith.
8. This petition stands allowed in above terms.