' ABDUL RASOOL MEMON, J.---Through this application under Section 561-A, Cr.P.C.
Applicant/complainant Abdul Aziz has challenged the validity of the order dated 27.08.2015 passed by the learned Judge Anti-Terrorism Court, Sukkur whereby an application under section 23 of Anti- Terrorism Act, 1997 moved by respondent Mohammad Punhal (the accused) was allowed and the challan of case crime No,49 of 2015 under sections 302, 364-A, 201, 377, P.P.C. 6(b) and 7(e) ATA, 1997 of Police Station C-Section Sukkur was transferred to Sessions Judge, Sukkur.
2. As per FIR complainant's son Zubair Ahmed aged about 7/8 years was found missing from the house on 04.04.2015 such news was got published in print and electronic media. Subsequently, on 06.04.2015 P.Ws. Bahaduruddin and Muhammad Ibrahim came to complainant and disclosed him that his son was seen going with six(6) unknown persons, who on enquiry told them to have been going to the shop of Abdul Jabbar uncle of Zubair. On 07.04.2015, the dead body of Zubair was recovered from Indus river and FIR was lodged against unknown accused. In postmortem examination death was found to have been caused by strangulation after committing carnal intercourse with the deceased boy and then his body was thrown in river. After completing investigation case was challaned in Anti-Terrorism, Court Sukkur and on application under section 23 of ATA filed by respondent/accused, returned the same to Sessions Judge Sukkur vide impugned order holding therein that no act of terrorism was therein.
3. Learned counsel for the applicant argued that there was an act of fear and tension in the case as accused not only committed sodomy with deceased boy of 7/8 years but after killing him thrown dead body in a river and by that way sense of insecurity, terrorism and fear occurred not only amongst the general public but school going children also, which fall under section 6(c) of the Anti-terrorism Act, 1997. In support of his contentions he has relied upon case of Nazeer Ahmed and others v. Nooruddin and another (2012 SCMR 517), State through Advocate General NWFP, Peshawar v. .'Mohammad Shafique (PLD 2003 Supreme Court 224), Rana Shahbaz Rutz v. Special Judge Anti- Terrorism Court, Faisalabad and 13 others (2009 PCr.LJ 346), Mst. Najam-un-Nisa v. Judge, Special Court constituted under Anti-Terrorism Court Act, 1997 (2003 SCMR 1323), The Sta1.2 v. Abdul Malik alias Malkoo (PLD 2000 Lahore 449).
4. In rebuttal learned counsel for the respondents/accused contended that offence under Sections 364 and 364-A, P.P.C. Are not included in the schedule of Anti-Terrorism Act, 1997 in view of the case law 2003 PCr.LJ 1909, which is also relied upon by the learned Judge Special Court, and that public at large did not feel any insecurity or terror, therefore, case was rightly returned to ordinary Court.
5. Learned Additional Prosecutor General by supporting the applicant's counsel submitted that it is only to be seen whether act created sense of fear or insecurity in the minds of people or any section of the society and its impact upon the minds of the people and it is not necessary that the said act must have taken place within the view of general public. He has relied upon 2009 PCr.LJ 346.
6. We have considered the submissions made by the learned counsel for the parties and have gone through the entire material brought on record. It is the case of prosecution that the deceased boy was kidnapped, then sexual intercourse was committed with him, afterwards he was killed by strangulation and his dead body was thrown in river. It is settled law that if any action is committed which creates fear and insecurity in any section of people, the offence would fall within the ambit of case as contemplated under section 6 of Anti-Terrorism Act, 1997, in this regard reliance is placed on the case of Nazeer Ahmed and others (supra) wherein it was held that "neither motive nor intention for commission of the offence was relevant for the purpose of conferring jurisdiction on the Anti-Terrorism Court and it was the act which was designed to create sense of insecurity and or to destabilize the public at large, which attracted the provisions of section 6 of Anti- Terrorism Act, 1997". The moment dead body of the child of 7/8 years was taken out from Indus river and brought for burial, it would have certainly caused not only shock to the parents and close relatives but also created fear and insecurity amongst the mohalla people having children of same age.
7. Learned counsel for respondents/accused contended that this is an unwitnessed incident and no one had seen the alleged incident, as such, it has no nexus with terrorism act as defined in section 6 ATA, 1997. We are not in agreement with this submission for the reasons that it is not necessary that the offence committed only in presence of people could create insecurity in the minds of people but only its impact upon minds of people is to be seen. In case of State through Advocate General N.-W.F. P . Peshawar (Supra) it was held that:- "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 regards is made to the case of. Mst. Raheela Nasreen v. The State and another 2002 SCMR 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."
8. In this regard further reliance is placed on case of Mst. Najamuddin Nisa (Supra) wherein it has been observed as under:--
3. The venue of the commission of a crime; the time of occurrence, the motive which had led to the commission of a crime and the fact whether the said crime had or had not been witnessed by the public at large are not the only factors determining the issue whether a case did or did not fall within the parameters of the ATA of 1997. The crucial question is whether the said crime had cr had not the effect of striking terror or creating a sense of fear and insecurity in the people or any section of the people. Needless to mention here that a crime of the kind in hand committed even in a remote corner does not remain unnoticed in the area in which is committed or even in the country on account of the print and electronic media. Seven persons being butchered in a house at night is not the kind of occurrence which would not create terror and horror in the people or any section of the people."
9. A bare reading of provision of section 6 of ATA, 1997 would indicate that this Act is enacted "for the prevention of terrorism, sectarian violence and for speedy trial of heinous offence and for matter connected therewith and incidental thereto". A heinous offence is an offence which is wicked, atrocious, cruel and offensive. In this case, the way deceased boy was kidnapped, then sexually assaulted afterwards killed by strangulation and thrown into river to devour by fish and animals and then recovery of dead body in such mutilated shape was not the kind of occurrence which would not create terror and horror in the people or any section of people but the onlookers must have felt fear and insecurity on seeing the barbaric and callous manner in which the innocent minor of 7/8 years was killed, which is not only heinous but would come within the definition of "terrorism".
10. In this view of the matter, we allowed the instant application and set-aside the order dated 27.08.2015 passed by the Anti-Terrorism Court, Sukkur and case was directed to be tried by the said Anti-Terrorism Court vide our order dated 10.11.2016.
' Above are the reasons in support of out short order.