MUHAMMAD ALI MAZHAR, J.---This criminal revision application is brought to challenge an order dated 29-1-2015, passed by Anti-Terrorism Court Shaheed Benazirabad alias Nawabshah in Special Case No.22 of 2014 (Crime No.165/2014 lodged at P.S. Sanghar, District Sanghar), whereby the application moved by the applicant under section 23 of Anti-Terrorism Act, 1997 was dismissed.
2. The brief facts of the case are that on 30-9-2014, SIP Muhammad Jnman lodged the complaint on behalf of State that he along with other police officials in APC No.SP-9844 proceeded to recover the abductee in relation to Crime No.176/2014 and when they reached at Sartaj Cinema they identified the accused persons including the applicant who were carrying weapons. They started firing with the intention to kill police officials and also deterred the police party from performing their lawful duties. In retaliation, the police officials took the positions and started aerial firing in their defence. During this encounter three tyres of APC No.SP-9844 were burst. The complainant called more police force from the Police Station Sanghar along with teargas and ammunition meanwhile PC Khuram Bhutto received firearm injury on his left hand, PC Nadeem Akhtar received injury on his upper knee while PC Khamiso Zardari received injury to his right shoulder and driver Abdul Wahid also sustained injury on his left arm. The injured persons were shifted to the Civil Hospital. The wind screen of prisoner's van was also broken. The accused persons caused terror in the general public and as a result thereof, Sanghar city was closed. The accused were making firing from Sartaj Cinema including Otak of Shahid Nizamani and Kako Nizamani. During encounter one accused was arrested while other accused persons succeeded to escape. The police secured 10 empty shells of Kalashnikov, 10 empty shells of .12 bore, 8 empty shells of SMG fired by the police in their defense, 60 empty shells of G-3, 12 empty shells of Teargas. The mashirnama was prepared and the property was sealed on the spot. They also registered separate case under section 23 of the Sindh Arms Act.
3. The learned counsel for the applicant argued that the learned trial court committed material illegality and failed to consider that the case is triable by the ordinary Court and not by ATC. The ingredients of Sections 6 and 7 of Anti-Terrorism Act are also missing. The trial court failed to appreciate that during encounter no person from either side was killed nor any terror was created in the general public. The place of incident is thickly populated area but the complainant failed to associate any independent witness in the case. The impugned order is based on misreading and non-reading of material collected during investigation. He concluded that the impugned order is liable to be set aside and the case may be assigned the ordinary court for trial. In support, his contention he referred to PLD 2005 Supreme Court 530 and 2007 SCMR 142.
4. On the contrary, learned Deputy Prosecutor General Sindh argued that from a bare look of FIR, it is clear that the accused persons not only created hindrance in the performance of official duties of the police but also created fear and insecurity in the public at large and due to this incident whole city of Sanghar was disturbed and panic was created in the society. He further argued that the learned counsel for the applicant himself stated that the incident took place in a thickly populated area so if such an act of terrorism is committed in the thickly populated area then there is no question of doubt that it created fear and insecurity to the public at large. He fully supported the impugned order and concluded that in the incident at least four police officials were severely injured, police vehicle was damaged, numerous empties were recovered so it cannot be- assumed or presumed that the case is triable by an ordinary Court.
5. Heard the arguments. It is well settled that for the purpose of deciding the application moved under section 23 of the Anti-Terrorism Act, 1997, the court has to see the contents of the FIR and material collected by the Investigating Officer. It is clear that the accused persons not only created hindrance and obstruction in the performance of duty by the police but also intimidated the public servants in order to refrain them from discharging their lawful duties and also created serious violence which is an act of terrorism as defined under subsection (2)(m)(n) of Section 6 of Anti- Terrorism. Act made punishable under section 7 of the Anti-Terrorism Act, 1997. Learned counsel for the applicant argued that the offence was committed in the thickly populated area but no independent witness was associated by the police. We take it other way round. Such type of incident creates so much fear, dread, panic and insecurity to the public-at-large and due to present-day law and order situation people do not like better to hang around at the place of incident to enjoy as spectators or audience rather than save their precious lives so we are not impressed with the entreaty that since police failed to record the statement of any independent witness therefore the case is not triable by ATC. The learned counsel referred to the case of Mirza Shoukat Bain reported in PLD 2005 Supreme Court 530 in which the apex court dilated upon section 6 of Anti-Terrorism Act, 1997 in detail and held that section 6 of Anti-Terrorism Act, 1997 is unambiguous, plain and simple which hardly requires any scholarly interpretation and is capable enough to meet all kinds of terrorism. It is an exhaustive section and does not revolve around the word "designed to" as used in section 6(1)(b) of the Act or mens rea but the key word, is "action" on the basis whereof it can be adjudged as to whether the alleged offence falls within the scope of section 6 of the Act or otherwise? The significance and the import of word "action" cannot be minimized and it requires interpretation in a broader perspective. It was further held that "Terrorism" means the use or threat of "action" where the "action" falls within the meaning of subsection (2) of section 6 of the Act and creates a serious risk to safety of the public or a section of the public, or is designed to frighten the general public and thereby prevent them from coming out and carrying on their lawful trade and daily business, and disrupts civil life. Such action shall amount to terrorism as enumerated in section 6 of the Act. While in the case of Muhabbat Ali reported in 2007 SCMR 142 the apex court held that in order to determine as to whether offence would fall within the ambit of S.6 of Anti- Terrorism Act, 1997, it would be essential to have a glance over allegations made in F.I.R., record of case and surrounding circumstances; it was also necessary to examine that ingredients of alleged offence had any nexus with the object of case as contemplated under Ss.6, 7 & 8 of Anti-Terrorism Act, 1997. Whether a particular act was an act of terrorism or not, motivation, object, design or purpose behind such act was to be seen and it was also to be seen as to whether such act had created a sense of fear and insecurity.
6. At this moment in time we would also like to quote the case of Nooruddin v. Nazeer Ahmed reported in 2011 PCr.LJ 1370, authored by one of us (Muhammad Ali Mazhar,J) in which the Anti- Terrorism Court directed the I/O to submit the charge sheet in the Sessions Court but on filing the Criminal Miscellaneous Application by the complainant, this court set-aside the order of the Anti- Terrorism Court and directed the I/O to submit the charge sheet in the Anti-Terrorism Court Mirpurkhas forthwith. It was held that Section 6 of Anti-Terrorism Act, 1997 has its own independent applicability and interpretation and all acts of terrorism in relation thereto are to be seen on the touchstone of S.6 which has provided and defined in detail the meaning of terrorism. Legislature has neither provided any immunity nor relaxation that in case of previous enmity the case would not be tried by the anti-Terrorism Court, but again the criteria to judge is the gravity of offence and its modus operandi, whether it created a sense of fear or insecurity in the society. Striking off terror is sine qua non for the application of provisions of S.6 of Anti-Terrorism Act, 1997 which could not be determined without examining the nature, gravity and heinousness of the alleged offence, contents of FIR and its cumulative effect on the society or a group of persons. This judgment was challenged in the Supreme Court which is reported in 2012 SCM R 517 "Nazeer Ahmed v. Nooruddin".
While affirming judgment, the apex court was pleased to hold that neither motive nor intention for commission of. The offence is relevant for the purpose of conferring jurisdiction on Anti-Terrorism Court and it was the act which is designed to create sense of insecurity and/or to destabilize the public at large, which attracts the provisions of Section 6 of Anti-Terrorism Act, 1997.
7. We have no indecisiveness in our mind to hold that a momentary look of FIR obviously put on view that accused persons not only attacked the police to refrain them from discharging their lawful duties, made heavy firing injured four police officials, damaged police vehicle and also wrought and created a sense of fear and insecurity to the public which is an act of terrorism envisioned under section 6 of the Act. It is further contended in the FIR that due to incident city of Sanghar was closed meaning thereby that general public was prevented from coming out and carrying on their lawful trade and daily business and due to this act of terrorism, the civil life 'was also disrupted and perturbed. The two precedents of apex court quoted by the learned counsel for the applicant are not helpful or supportive to the case of applicant. In both the judgments the honorable Supreme Court in detail discussed sections 6 and 7 of ATA, 1997 and decided the parameters for the guidance of the courts and being fortified by the dictum laid down in the aforesaid precedents and keeping in view the facts and circumstances of the present case we are sanguine that the prosecution has rightly filed the charge sheet of the case in hand in the ATC and the learned trial court while dismissing the application did not commit any illegality which requires any interference.
8. As a result of above discussion, this criminal revision application is dismissed in limine. However it is clarified that our findings shall not prejudice the merits of the case in the trial court.