PLJ 2022 Cr.C. 453 (DB)
[Lahore High Court, Lahore]
Present: Asjad
Javaid Ghural and Ch. Abdul Aziz, JJ.
ASIF
KHAN and others--Appellants
versus
STATE
& another--Respondents
Crl. A.
Nos. 31223, 31526 & 31895 of 2021, heard on 22.6.2021.
Anti-Terrorism Act, 1997 (XXVII of
1997)--
----Ss. 11-J(2) & 11-N--Conviction and sentence--Challenge
to--Benefit of doubt--Appraisal of evidence--Allegation--Appellants remained
associated with prescribed organization, jaish-e-muhammad--Appellants
were canvassed by prosecution to have close ties with Jaish-e-Muhammad, which
was declared as a terrorist organization, in year 2020, Jaish-e-Muhammad was
running a seminary in district Hafizabad under supervision of Molana Masood
Azhar--The main thrust of prosecution accusation is to effect that land, for
seminary was purchased by Jaish-e-Muhammad from financial resources arranged by
appellants--Appellants are ascribed role of providing money for purchase of
land upon which Madrisa--Jamia Abdullah Bin Masood was constructed--Prosecution
led no evidence whatsoever so as to prove that appellants either collected any money for construction of
seminary nor produced any witness so as to establish' a nexus between appellant
and Jaish-e-Muhammad or even with seminary--Inspector (PW.1) candidly conceded
that nothing as such was noticed by him from which it may be inferred that appellants remained
administrators of seminary--Epitome of afore discussion is that prosecution
remained unsuccessful in proving its case against appellants, (appellants)
beyond, any scintilla of doubt--Even otherwise, according to golden principles
laid down for appraisal, of evidence, benefit of every reasonable doubt is to
be extended to accused-which, can best be provided through judgment of
acquittal--As per saying of the Holy Prophet (P.B.U.H.), mistake in releasing a
criminal is better than punishing an innocent person--Appeal was allowed. [Pp. 457, 458] A, B, C & D
PLD 2002 SC 1048.
Mr. Nasir Khan Afridi, Advocate for Appellant. (in Crl.
No. A. 31223 of 2021).
Mr. Javed Iqbal Malik-I, Advocate for Appellant (in Crl.
A.
No. 31526 of 2021).
Mr. Sikandar Zulqarnain Saleem, Advocate for Appellant
(in Crl. A. No. 31895 of 2021).
Mr. Muhammad Moeen Ali, Deputy Prosecutor General for State.
Date of hearing: 22.6.2021.
Judgment
Ch. Abdul Aziz, J.--Appellants, namely Asif Khan, Abdul
Wakeel, Noor Alam, Syed Mussarat Shah and Syed Muqadar Shah involved in case
F.I.R. No. 4/2021 dated 29.03,2021 registered under Sections 11-H(3), 11-I,11-J
(2) & 11-N of Anti-Terrorism, Act, 1997 at Police Station CTD, Lahore.,
were tried by learned Judge Anti-Terrorism Court No. III, Lahore. Trial Court
vide judgment dated. 08.05.2021 proceeded to convict and sentence the
appellants in the following terms:
“Under
Section-11(2) read with Section 11-N of Anti-Terrorism Act, 1997 to
suffer rigorous imprisonment for 09-years along with fine of Rs. 50,000/- and
in default whereof to further undergo six months SI Benefit of Section 382-B,
Cr.P.C. was also extended to the appellants”.
Challenging their conviction and
sentence. Asif Khan (appellant) filed
Criminal Appeal No. 31223 of 2021, Abdul Wakeel, Noor Alam
and Syed Mussarat Shah (appellants) filed Criminal Appeal No. 31526 of
2021 and Syed Muqaddar Shah, (appellants) filed Criminal Appeal
No. 31895 of 2021. Since all the three appeals are inter se connected,
hence are being disposed of through, this single judgment.
2. The facts of the prosecution, case, in verbatim, as
disclosed by Muhammad Imran Haider Inspector (PW.1) in his Court statement are being
reproduced hereunder:
“On 29.03.2021, I was
posted as D.O, Iqbal Town Division CTD, Lahore. On the same date at about 03:00
pm, I along with Qamar Zaman S.I. 2306/L, Muhammad Qaisar Razzaq 8351/LHR and
Zahid Nadeem ASI 13552/LHR were present at Naqsha Stop Wahdat Road, Lahore on
official vehicle which is driven by Iftikhar Zaidi 538/C, in order to search
and surveillance of proclaimed offenders of red book and persons listed in 4th
schedule of Anti-Terrorism Act, 1997, meanwhile a spy provided information that
“Jaish-e-Muhammad” organization which was proscribed in year 2020 due to
financial support of Terrorism, Madrisa Jamia Abdullah Bin Masood, Adda Satwan
Meel which is situated under the jurisdiction of Police Station Kaseeke,
District Hafiz Abad which was under the control of Molana Masood Azhar Ameer of
“Jaish-e-Muhammad” Government of Punjab had taken the control over said Madrisa
vide Order No. SO(A-1) I-1/misc/2019, dated 25.11.2019 due to its
involvement in providing financial assistance in terrorism and terrorism
activities, Molana Masood Azhar Ameer of “Jaish-e-Muhammad”, his co-accused
persons/close members of proscribed organization “Jaish-e-Muhammad” namely
Khalil Saadi s/o Hazur Bakhsh, Abdul Hakeem s/o Ahmad, Muqaddar Shah s/o
Maqbool Asif s/o Bashir Khan, Qari Abdul Wakeel s/o Abdul Baqi, Noor Alarm s/o
Hazrat Ghulab, Ghulam Mustafa s/o Abdul Nabi, Mazhar Saeed s/o Saeed Shah, Musarat
Shah s/o Kiwaan Shah and other unknown accused persons purchased, the land for
the said Madrisa from the amount obtained, through terrorist objectives, so
that terrorism financing can be committed. Thereafter, said accused persons
kept in their possession said Madrisa after its construction for terrorism
purposes, directly run the said Madrisa and collected funds from the public
through said Madrisa. Said accused persons used said funds for the achievement
of terrorism purposes and to run the affairs of proscribed organization
“Jaish-e-Muhammad”. In view of the above said, facts, Molana Masood Azhar,
Ameer of “Jaish-e-Muhammad” along with his co-accused/members of proscribed
organization “Jaish-e-Muhammad” namely Khalil Saadi s/o Hazur Bakhsh, Abdul Hakeem
s/o Ahmad, Muqaddar Shah s/o Maqbool, Asif s/o Bashir Khan, Abdul Wakeel s/o
Abdul Baqi, Noor Alam s/o Hazrat Ghulab, Ghulam Mustafa s/o Abdul Nabi, Mazhar
Saeed s/o Saeed Shah, Musarat Shah s/o Kiwaan. Shah and other unknown accused
persons purchased said land from the amount obtained through the terrorism
objectives than by constructing said Madrisa on said land by collecting funds
on the pretext of religious affairs for the achievement of terrorism
objectives, by directly and indirectly financed the terrorism from the said
funds, committed offences under Section 11-N, 11-H(3), 11-I, 11-J (2) of
Anti-Terrorism Act, 1997”.
3. Subsequent to the registration of F.I.R. (Exh.PB), the
matter was investigated by Muhammad Khalid Inspector (PW.5), who along with
other CTD officials on 07.04.2021 arrested all the appellants interrogated
them, recorded the statements of relevant PW-s under Section 161, Cr.P.C. and
after complying with all the codal, formalities submitted report under Section
173, Cr.P.C. Before the trial Court, prosecution in order to prove its case
against the appellants produced five PWs, namely, Imran Haider
Inspector/complainant PW-1) and Zahid Nadeem ASI (PW. 2), who deposed, in line with
the contents of F.I.R., Naqash Sarwar 236/Cpl (PW-3) & Saleem Aslam,
495/Cpl
(PW-4) who joined the investigation and
produced certain documents/ notifications and Muhammad Khalid Inspector (PW.5)
who is Investigating Officer of the case. After the conclusion of prosecution
evidence, the learned trial Court examined the appellants under Section 342,
Cr.P.C. during which they denied the allegations levelled against them. At that
time the appellants neither opted to produce any defence witness nor made
statement under Section 340(2), Cr.P.C., however Asif Khan & Syed Muqaddar Shah (appellants)
tendered, certified copy of judgment dated 23.07.2020. (Exh.DA), FBR Business
Certificate (Mark-B), Form-181 (Mark-C) Trade Mark Registry Karachi (Mark-D),
Associate Membership Certificate (Mark-E) Registration Certificate (Mark-F) and
Copy of Service Card (Mark-G) in their defence. On the conclusion of trial, the
appellants were convicted and sentenced, as mentioned above, hence, the instant
appeals.
4. It is contended on behalf of the
appellants that from the facts, of the prosecution case, no criminal offence
whatsoever is made out; that the appellants were burdened with the allegation
of collecting funds for construction of seminary of a proscribed, organization,
namely, Jaish-e-Muhammad but led no evidence in this regard; that even
otherwise the control of seminary was taken over by the Provincial Government
on 25.11.2019; that during trial prosecution miserably failed to prove the allegation
against the appellants; that during trial the prosecution, failed to prove that,
the appellants either remained associated with the seminary or collected funds
for its construction; that though reasonable doubt emerged from the prosecution
case, however even then the appellants were handed down guilty verdict. With
these submissions, learned counsel urged that the conviction awarded to the
appellants be set-aside.
5. On the other hand, learned law officer came forward with the
submissions that the appellants remained associated with the proscribed
organization, namely, Jaish-e-Muhammad; that they have been collecting funds
for the terrorist activities of Jaish-e-Muhammad and had close nexus with the
leadership of said proscribed organization; that during investigation
sufficient material about the guilt of the appellants was collected and
accordingly at trial stage convincing incriminating material to prove the crime
in question was led and that since the prosecution, successfully proved its
case against the appellants, hence their conviction calls for no interference
from tehis Court.
6. Arguments heard. Record perused.
7.
We have eloquently scanned the record of the case and it stems therefrom that
the appellants were canvassed by the prosecution to have close ties with
Jaish-e-Muhammad, which was declared as a terrorist organization, in the year
2020, Jaish-e-Muhammad was running a seminary in district Hafizabad under the
supervision of Molana Masood Azhar. The main thrust of the prosecution
accusation is to the effect that the land for seminary was purchased by
Jaish-e-Muhammad from the financial resources arranged by the appellants. At
the very outset, we have noticed that the appellants were indicted on 6.5.2021
with the following formation of accusation:
“That on 29.03.2021
at about 03:00 p.m. within the territorial limits of Police Station CTD, Lahore
and you the above named accused persons along with your co-accused persons
namely Molana Masood Azhar, Khalil Saeedi, Abdul Hakeem, Ghulam Mustafa, Mazhar
Saeed (since not arrested) being Pakistani national willfully and knowingly made
money for the purpose of purchasing property for Madrisa Jamia Abdullah Bin
Masood, Adda Sattwan Heel, Hafizabad for the benefit of the proscribed
organization “Jaish-e-Muhammad” which has reasonable cause to suspect that it
may be used for the purpose of terrorism. Thus you have committed an offence under
Section 11-J (2) of ATA, 1997 which is punishable under Section 11-N of ATA,
1997 and same is within the cognizance of this Court.”
From,
the allegation formulated in the charge sheet, it divulges that the appellants
are ascribed the role of providing money for the purchase of land upon which
Madrisa. Jamia Abdullah Bin Masood was constructed. The most important aspect
noticeable from the charge sheet is to the effect that he resources statedly
were provided on 29.03.2021
at about 3:00 p.m. We have observed that the control of the seminary, as per
prosecution case, was taken over by the Federal Government on 25.11.2019 and in
this backdrop, the afore-mentioned allegation seems to be nothing but preposterous
in nature. It farther emerges from the record that prosecution led no evidence
whatsoever so as to prove that the appellants either collected any money for the construction
of seminary nor produced any witness so as to establish a nexus between the appellant
and Jaish-e-Muhammad or even with the seminary. Imran Haider, Inspector (PW.1)
candidly conceded that nothing as such was noticed by him from which it may be
inferred that the
appellants remained the administrators of the seminary. Likewise, from
the statement of Imran Haider Inspector (PW.1) it divulges that even he did not
come across any record so as to prove that the appellants ever remained members
of Jaish-e-Muhaimnad. As this was not enough, Imran Haider Inspector (PW.1) and
Muhammad Khalid Inspector (PW.5) admitted during cross-exanaination that the
name of none of the appellants was enlisted in the Fourth Schedule of
Anti-Terrorism Act, 1997. We also confronted the learned law officer with the
afore mentioned shortcomings exuding from the prosecution case but he remained
speechless as no supporting material was found: present on the record. In such
situation, it can inevitably be held that the appellants were convicted in the
Instant case though no incriminating evidence against them was available on
record.
8.
The epitome of afore discussion is that prosecution remained unsuccessful in
proving its case against appellants, namely, Asif Khan, Abdul Wakeel, Noor Alam,
Syed Mussarat Shah & Syed Muqadar Shah (appellants) beyond, any scintilla
of doubt. Even otherwise, according to golden principles laid down for the
appraisal, of evidence, the benefit of every reasonable doubt is to be extended
to the accused-which can best be provided through the judgment of acquittal. As
per saying of the Holy Prophet (P.B.U.H.), the mistake in releasing a criminal
is better than punishing an innocent person. Same principle was also followed
by the Hon'ble Supreme Court of Pakistan in the case of Ayub Masih v. The State
(PLD 2002. SC 1048), wherein, it was observed as under:
“.... It will not
be out of place to mention here that this rule occupies a pivotal place in the
Islamic Law and is enforced rigorously in view of the saying of the Holy
Prophet (p.b.n.h) that the “mistake of Qazi (Judge) in releasing a criminal is
better than his mistake in punishing an innocent.”
In supra mentioned case of Ayub
Masih, the Hon'ble Supreme Court was also pleased to observe as under:
“... The rule of
benefit of doubt, which is described as the golden rule, is essentially a rule
of prudence which cannot be ignored