PLJ 2023 Cr.C. (Note) 60
[Lahore High Court, Multan Bench]

Present: Muhammad Ameer Bhatti, CJ., and Tariq Saleem Sheikh, J.

Malik ZAFAR IQBAL etc.--Appellants

versus

STATE etc.--Respondents

Crl. A. No. 25874 of 2021, decided on 12.10.2021.

Anti-Terrorism Act, 1997 (XXVII of 1997)--

----S. 11-B--Power of Federal Government to prescribe an organization--Section 11-B of ATA empowers Federal Government to proscribe an organization, by an order published in official Gazette, if there are reasonable grounds to believe that it is (a) concerned in terrorism; or (b) owned or controlled, directly or indirectly, by an individual or organization proscribed under ATA; or (c) acting on behalf of, or at direction of, any individual or organization proscribed under ATA--Proscription entails consequences stipulated in Sections 11-E and 11-F, 11-O and in some cases Sections 11-G to 11-N may be attracted--Admittedly, Federal Government proscribed LeT vide Order and, considering that Trust was its progeny, took similar action against it--The Trust has not challenged its proscription before any forum todate.                                                [Para 10] A

Maxim--

----“Nullum Crimen nulla poena sine lege”--Principle--Criminal administration--The cardinal principle of criminal administration is nullum crimen nulla poena sine lege which means that “there can be no crime or punishment unless it is in accordance with law that is certain, unambiguous and not retroactive--The maxim further says that there should be no crime except according to predetermined, fixed law. [Para 14 & 22] C

PLD 1969 SC 599.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 265-C--Condition precedent for constitution of offences u/Ss. 11-F and 11-J(2) of ATA is that organization for whose benefit or support act is done is proscribed by Federal Government--Since Trust was banned on 10.5.2019, Appellants cannot be sanctioned for ambulances purchased for it in 2010-2011--Professor L. Tribe expressed same thought when he wrote: “It is essential in a free and democratic society that citizens are able, as far as possible, to foresee consequences of their conduct in order that persons be given fair notice of what to avoid, and discretion of those entrusted with law enforcement is limited by clear and explicit legislative standards.         [Para 13, 15 & 23] B & D

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 161, 172 & 265(c)--Statement of witnesses--Extra-judicial confession--Where police officer does not record statement of a witness as required by Section 161, Cr.P.C. but writes it in diary maintained u/S. 172, Cr.P.C. (presumably as a statement of circumstances ascertained through investigation) its copy should also be given to accused because it is to be reckoned as a statement u/S. 161, Cr.P.C--Notwithstanding provisions of Section 265-C, Cr.P.C., Court is empowered to issue direction for supply of copies of statements or documents at some other stage of proceedings as well if dictates of justice so demand--However, this would depend upon facts and circumstances of case and special provisions of law, including those relating to procedure and evidence.        [Para 24] E

PLD 1988 SC 99.

Anti-Terrorism Act, 1997 (XXVII of 1997)--

----Ss. 19(7) & 32--Criminal Procedure Code, (V of 1898), S. 265(c)--Court empower to issue direction for supply of copies of statements--The question as to whether Special Courts functioning under ATA are also required to provide documents to accused within seven days before trial as stipulated in Section 265-C, Cr.P.C. is contentious--Section 19(7) of ATA mandates that Special Court shall, on taking cognizance of a case, proceed with trial from day to day and decide it within seven days failing which matre If shall be brought to notice of Chief Justice of High Court concerned for appropriate directions--And, Section 19(8a) stipulates that non-compliance with aforesaid timeline would render presiding officer of Special Court liable to disciplinary action by concerned High Court--Section 32 gives ATA an overriding effect and inter alia states that provisions of Code of Criminal Procedure, 1898, shall apply insofar as they are not inconsistent with it The incongruity between Section 265-C, Cr.P.C. and Section 19(7) of ATA is unambivalent.

                                                                                           [Para 25] F

Criminal Procedure Code, 1898 (V of 1898)--

----S. 265(c)--Constitution of Pakistan, 1973, Art. 10-A--Requirements of fair trial--As adumbrated, purpose of Section 265-C, Cr.P.C. is to enable accused to know prosecution case and meet allegations levelled against him--A preponderance of judicial decisions hold that “seven days” requisite does not apply to Special Courts under ATA but they add that accused must be afforded proper opportunity to prepare his defence and meet requirements of, fair trial under Article 10A of Constitution of 1973.                                 [Para 26] G

Criminal Procedure Code, 1898 (V of 1898)--

----S. 161--Circumstantial evidence--Investigating Officer had incorporated substance of statement of approver in police diary during investigation--At trial when counsel for accused asked for a copy of approver’s statement he was told that police had not recorded it under Section 161, Cr.P.C--The accused was convicted and sentenced to death on basis of approver’s testimony and circumstantial evidence--In appeal it was contended that refusal of a copy of aforementioned record for purpose of cross-examining approver had vitiated trial--Their Lordships of apex Court did not order retrial and upheld conviction as it could be safely maintained on circumstantial evidence even if approver’s deposition was excluded.                                               [Para 29] H

Anti-Terrorism Act, 1997 (XXVII of 1997)--

----Ss. 11-F, 11-H(2), 11-I(2), 11-J(2), 11-N--Police officials received information that Laskhar-e-Tayyaba (Let) was a terrorist outfit, when it banned, its activities established Al-Aufaal trust--Government took cognizance and prescribed trust--They order illicit activities and to generate funds for (Let)--It is trite that prosecution must prove its case beyond reasonable doubt to secure conviction of an accused--Indeed, this standard is way higher than “reasonable grounds to believe” employed by Section 11 -B of ATA for proscription of an organization by Federal Government--The Appellants cannot be convicted for mere reason that LeT or Trust have been proscribed--The prosecution must independently establish ingredients of offences under Sections 11-F and 11-J(2) of ATA which it has failed to do--At fag end of proceedings when Additional Prosecutor General sensed result of this appeal he contended that charge framed against Appellants was defective as it was not in accord with contents of FIR and urged Court to remand matter for retrial--In our opinion, this would not be justified because prosecution has no case at all--Section 232, Cr.P.C. deals with effect of material error in framing of charge and sub-section (2) thereof stipulates that if Court is of opinion that facts of case are such that no valid charge could be preferred against accused in respect of facts proved, it shall quash conviction--The magistrate discharged three of accused for want of evidence and committed appellants to Sessions under Section 395 of Indian Penal Code for being concerned in robbery--The Sessions Judge, before hearing evidence and without assigning any reason, amended charge to robbery which altogether changed character of charge--The Calcutta High Court held that his action was illegal and quashed conviction but did not order retrial as “circumstances show that there is really no evidence that these persons committed dacoity at all.” The accused was indicted u/S. 498 of Indian Penal Code on allegation that he had taken away complainant’s wife from his custody but nature of evidence reflected that charge was intended to relate to alleged taking away of woman from house of one B--There was, however, no finding that B had care of woman on behalf of complainant nor there was any evidence on record that could justify such a finding--In circumstances, High Court held that it would not be proper to order a retrial on an amended charge--Appeal accepted.          [Para 37 & 38] I, J, K & L

AIR 1930 Calcutta 138.

PLD 1959 (W.P.) Lahore 715 & PLD 1960 SC (Pak) 8.

Mr. Naseer-ud-Din Khan Nayyer, Advocate assisted Ch. Muhammad Imran Fazal Gull, Advocate for Appellants.

Mr. Ali Hassan, Additional Prosecutor General for State.

Date of hearing: 12.10.2021.

Judgment

Tariq Saleem Sheikh, J.--This appeal is directed against judgment dated 03.04.2021 handed down by the learned Special Judge, Anti-Terrorism Court No. III, Lahore, in case FIR No. 18/2020 dated 10.11.2020 registered at Police Station CTD, Lahore, for offences under Sections 11-F, 11-H(2), 11-1(2), 11-J(2), 11-N of the Anti- Terrorism Act, 1997, ATA”).

2. Brief facts of the case are that on 10.11.2020 the Complainant, Tahir Siddique/Inspector (PW-1), was present at Defence Morr, Lahore, with other police officials when he received a source information that Lashkar-e-Tayyaba (“LeT”) was a terrorist outfit and when it was banned its activists established Al-Anfaal Trust (the “Trust”) and gave it a new birth. The Government took cognizance and proscribed the Trust as well vide Order dated 10.5.2019. The source further said that the Trust launched various welfare projects as a facade for its own illicit activities and to generate funds for LeT which was continuing its operations despite the ban. To this end, it purchased four ambulances bearing Registration Nos. LES-11-4054, LES-10-2432, LES-11-3153 and LES-4053. The Trust’s trustees and office bearers, including Muhammad Naeem, Mohsin Bilal, Abdullah, Malik Zafar Iqbal, Hafiz Abdul Rehman, Dr. Muhammad Ayub, Dr. Ahmad Daud and Muhammad Yahya Aziz, were the key persons behind these theatricals and thus liable under the ATA. Tahir Siddique/Inspector drew the complaint Exh. PA and sent it to the Police Station CTD, Lahore, through Umar Farooq 22350/C (PW-2) on the basis of which Naqqash Sarwar/Corporal (PW-3) registered FIR No. 18/2020 Exh. PB.

3. The investigation of the case was entrusted to Inspector Muhammad Khalid (PW-7) the same day, i.e. 10.11.2020. He immediately made a request to the competent authority for constitution of a Joint Investigation Team (the “JIT”) which was notified vide Order No. SO(Judl-III) 11-Lahore/2018 dated 4.12.2020 (Exh. PN) and he was appointed one of its members. Appellants Malik Zafar Iqbal, Hafiz Abdul Rehman and Muhammad Yahya Aziz were in jail at that time. On 27.3.2021 when the JIT interrogated them, they disclosed that Appellants Nasrullah, Umar Bahadur and Samiullah had managed the funds for the aforementioned ambulances. On 29.3.2021 the officials of the Counter Terrorism Department (CTD) arrested these men and the next day Muhammad Khalid/Inspector produced them before the Administrative Judge, Anti-Terrorism Court, Lahore, who sent them to judicial lock-up. During investigation the JIT found that the Appellants had committed the alleged offences. Report under Section 173, Cr.P.C. was submitted accordingly.

4. On 1.4.2021, the Judge, Anti-Terrorism Court No. III, Lahore, indicted the Appellants. All six of them denied the charge and claimed trial. In order to prove its case the prosecution produced seven witnesses. Complainant Tahir Siddique/Inspector (PW-1) and Umar Farooq 22350/C (PW-2) deposed about receipt of the source information pursuant to which FIR No. 18/2020 Exh. PB was registered. Naqqash Sarwar/Corporal (PW-3) penned the FIR Exh. PB and deposed that he furnished various documents to Muhammad Khalid/Inspector (PW-7), including certified copies of Notifications dated 14.1.2002 and 10.5.2019 Exh. PC & Exh. PD/1-2; certified copy of the Registration Certificate of Al-Anfaal Trust and the lists of its trustees Exh. PF/1-23; and certified copies of title documents of ambulances Exh. PH/1-4. Snaked Ahmad (PW-4) stated that he dispatched copies of the Registration Certificate of Al-Anfaal Trust and the list of its trustees to the CTD Department, Lahore, by mail on 15.3.2021. Abdul Rehman Masood (PW-5) deposed that he dispatched certified copies of the ownership documents of the ambulances to the CTD, Lahore. Muhammad Riaz (PW-6) testified that the Appellants collected funds in the name of the Trust to buy ambulances. Inspector Muhammad Khalid (PW-7) gave details of his investigation and the evidence that he collected in this case.

5. After the prosecution was through with its evidence the trial Court recorded statements of the Appellants under Section 342, Cr.P.C. and confronted them with the evidence brought against them. They refuted it and professed innocence. They were particularly critical about Muhammad Riaz (PW-6) and alleged that he was a fake witness and the prosecution had planted him to buttress its case. None of the Appellants opted to make a statement on oath under Section 340(2), Cr.P.C. Appellant Malik Zafar Iqbal produced documentary evidence which included certified copies of W.P. No. 19705/2002 and the order passed thereon Exh. DA; certified copy of the order passed in W.P. No. 6208/2009 Exh. DB; and certified copies of judgments dated 5.11.2020, 11.11.2020, 12.11.2020, 19.11.2020 passed by the Anti-Terrorism Court Exh. DC to Exh. DG. The other Appellants also relied on those documents.

6. On the conclusion of the trial the Judge, Anti-Terrorism Court, convicted and sentenced the Appellants as under vide judgment dated 3.4.2021:

Hafiz Abdul Rehman

Convicted under Section 11-F(2) of the Anti-Terrorism Act, 1997, and sentenced to simple imprisonment for six months with fine of Rs. 20,000/-and in default thereof to undergo simple imprisonment for a further period of 10 days.

His sentence was ordered to run concurrently with the one awarded in another case and benefit of Section 382-B, Cr.P.C. was accorded to him.

Muhammad Yahya Aziz & Malik Zafar Iqbal

(i)       Convicted under Section 11-J(2) of the Anti-Terrorism Act, 1997, read Section 11-N thereof and sentenced
to rigorous imprisonment for nine years with fine of
Rs. 50,000/-each and in default thereof to undergo simple imprisonment for a further period of six months.

          This sentence was ordered to run concurrently with those previously awarded and benefit of Section 382-B, Cr.P.C. was extended to them,

(ii)      Convicted under Section 11-F(6) of the Anti-Terrorism Act, 1997, and sentenced to rigorous imprisonment for one year with fine of Rs. 20.000/-each and in default thereof to undergo simple imprisonment for a further period of 10 days:

          This sentence was ordered to start after the expiry of the above-mentioned sentence.

Nasrullah, Umar Bahadur and Samiullah

Convicted under Section 11-J(2) of the Anti-Terrorism Act, 1997, read with Section 11-N thereof and sentenced to rigorous imprisonment for nine years with fine of Rs. 50,000/-each and in default thereof to undergo simple imprisonment for a further period of six months.

Their sentences were ordered to run concurrently with those previously awarded and benefit of Section 382-B, Cr.P.C. was extended to them.

The Appellants have challenged their conviction and sentence before this Court through this appeal.

7. The learned counsel for the Appellants, Mr. Nuseer-ud-Din Khan Nayyer, Advocate, contended that the prosecution had failed to prove the charge against the Appellants beyond reasonable doubt. The learned trial Court had not appreciated the evidence properly which had caused serious miscarriage of justice. He argued that the Trust had no nexus with LeT. It was an independent legal person registered under the Societies Act XXI of 1860 and the Federal Government had proscribed it under the pressure of international agencies. The learned counsel further contended that there was not a whit of evidence that the Appellants engaged in any activity that supported the objectives of LeT or other such organization. The learned counsel submitted that Appellant Yahya Aziz disassociated from the Trust in 2002 and Appellant Hafiz Abdul Rehman in 2008. He maintained that nothing turned on the testimony of Muhammad Riaz (PW-6) as it did not prove any relevant fact. Even otherwise, he was a fake witness and his deposition did not inspire confidence. As regards the ambulances, Mr. Nayyar submitted that the Trust purchased them in 2010-2011 at a time when it was not proscribed so it did not constitute any offence for which the Appellants could be punished. He prayed that this appeal be accepted and the Appellants be acquitted of the charge.

8. The learned Additional Prosecutor General, Mr. Ali Hassan, controverted the above contentions. He argued that the Trust was working as a proxy for LeT owing to which the Government proscribed it on 10.5.2019. Appellants Malik Zafar Iqbal, Hafiz Abdul Rehman and Yahya Aziz were it’s trustees/office bearers while Appellants Nasrullah, Umar Bahadur and Samiullah were staunch activists. They collected funds on the pretext of public welfare and used them for financing terrorism. The prosecution produced PW-6 Muhammad Riaz who deposed that Appellants Nasrullah, Umar and Samiullah handed over sufficient money to the other three Appellants in his presence for purchase of ambulances for the Trust. The learned Law Officer maintained that PW Muhammad Riaz had no malice against the Appellants. He was reliable and fully proved the prosecution case. He prayed for dismissal of this appeal.

9. We have heard the learned counsel and examined the available record.

10. Section 11-B of the ATA empowers the Federal Government to proscribe an organization, by an order published in the official Gazette, if there are reasonable grounds to believe that it is (a) concerned in terrorism; or (b) owned or controlled, directly or indirectly, by an individual or organization proscribed under the ATA; or (c) acting on behalf of, or at the direction of, any individual or organization proscribed under the ATA. Proscription entails the consequences stipulated in Sections 11-E and 11-F, 11-O and in some cases Sections 11-G to 11-N may be attracted. Admittedly, the Federal Government proscribed LeT vide Order dated 14.1.2002 (Exh.PC) and, considering that the Trust was its progeny, took similar action against it on 10.5.2019 (Exh. PD/1-2). The Trust has not challenged its proscription before any forum todate.

11. On 1.4.2021 the learned Judge, Anti-Terrorism Court, indicted the Appellants on the following charges:

“Firstly: that on 10.11.2020 at about 11:00 a.m. within the territorial limits of Police Station CTD, Lahore and you the accused persons namely Malik Zafar Iqbal and Yahya Aziz alongwith your co-accused persons being the members of proscribed organization ‘Al-Anfaal Trust’, a subsidiary of proscribed organization ‘Lashkar-e-Tayyaba’, solicited and invited support for the said proscribed organization through ‘Al-Anfaal Trust’ for the arrangement and management of ambulances/vehicles bearing registration numbers LES-4054-11, LES-2432-10, LES-3153-11 and LES-4053, thus you the above-named accused have committed an offence punishable under Section 11-F(6) of ATA, 1997, and same is within the cognizance of this Court.

“Secondly: that on the same date, time and place, you the accused persons namely Malik Zafar Iqbal and Yahya Aziz being Pakistani nationals willfully and knowingly received money to arrange ambulances/vehicles bearing registration numbers LES-4054-11, LES-2432-10, LES-3153-11 and LES-4053, for the benefit of ‘Al-Anfaal Trust’ and ‘Lashkar-e-Tayyaba’, the proscribed organizations. Thus you have committed an offence punishable under Section 11-J(2) of ATA, 1997 which is punishable under Section 11-N ATA, 1997 and which is within the cognizance of this Court.

“Thirdly: that on the same date, time and place, you the accused persons namely Nasrullah, Umar Bahadur and Samiullah being Pakistani nationals willfully and knowingly made available money for the purchase of ambulances/vehicles bearing registration numbers LES-4054-11, LES-2432-10, LES-3153-11 and LES-4053, for the benefit of ‘Al-Anfaal Trust’ and ‘Lashkar-e-Tayyaba’, the proscribed organizations. Thus you have committed an offence punishable under Section 11-J(2) of ATA, 1997 which is punishable under Section 11-N ATA, 1997 and which is within the cognizance of this Court.

“Fourthly: that on the same date, time and place, you the accused person namely Hafiz Abdul Rehman Makki, belongs to (sic) proscribed organization ‘Al-Anfaal Trust, a subsidiary of proscribed organization ‘Lashkar-e-Tayyaba’, thus you have committed an offence punishable under Section 11-F(2) of ATA, 1997 wnich is within the cognizance of this Court.”

12. In a nub, the allegation against the Appellants is that on 10.11.2020 at about 11:00 a.m. they collected funds for the support and benefit of LeT and the Trust on the pretext of “arrangement and management” of Ambulance Nos. LES-11-4054, LES-10-2432, LES-11-3153 and LES-4053. However, some facts are intriguing. Firstly, Exh. DD to DG evince that on the aforesaid date Appellants Malik Zafar Iqbal and Yahya Aziz were behind the bars facing trial in FIR Nos. 24/2019, 18/2019, 38/2019 and 25/2019 registered at Police Station CTD, Lahore. Secondly, the prosecution has not produced even a single witness to prove that the Appellants engaged in the alleged activity on the date in question. As we shall see later, even Muhammad Riaz (PW-6) did not talk about it. He only stated that “a few years ago the said accused persons requested the people for funds to buy the ambulances on behalf of [Jamat-ud-Dawa]”. Considering the fact that his deposition was recorded by the Anti-Terrorism Court on 1.4.2021, he could not possibly be referring to the alleged incident of 10.11.2020 which was less than five months old. Thirdly, it was hard for the Appellants to justify their request for donations to the general public as the Federal Government had widely publicized through electronic and print media that it had proscribed the Trust and frozen all its assets which included the above-mentioned ambulances.

13. We make it a point to observe that the condition precedent for constitution of the offences under Sections 11-F and 11-J(2)[1] of the ATA is that the organization for whose benefit or support the act is done is proscribed by the Federal Government. Since the Trust was banned on 10.5.2019, the Appellants cannot be sanctioned for the ambulances purchased for it in 2010-2011.

14. The cardinal principle of criminal administration is nullum crimen nulla poena sine lege which means that “there can be no crime or punishment unless it is in accordance with law that is certain, unambiguous and not retroactive. The maxim further says that there should be no crime except according to predetermined, fixed law.[2] In Nabi Ahmed and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others (PLD 1969 SC 599) the Hon’ble Supreme Court of Pakistan explained the rationale underlying this precept as follows:

“Law-abiding members of society regulate their lives according to the law as it exists at the time of their actions, and they expect the law to be steadfast and reliable. They assess and weigh the consequences according to the demands of existing law, including the requirements implicit in the existing system of law, and are entitled to feel cheated if the law later lets them down by taking away or reducing their rights, or increasing their burdens.”

15. Professor L. Tribe expressed the same thought when he wrote: “It is essential in a free and democratic society that citizens are able, as far as possible, to foresee the consequences of their conduct in order that persons be given fair notice of what to avoid, and the discretion of those entrusted with law enforcement is limited by clear and explicit legislative standards.”[3]

16. The international human rights law prohibits retrospective punishment. Article 11(2) of the Universal Declaration of Human Rights (1948) says:

No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Article 15(1) of the UN Covenant on Civil and Political Rights (1966) stipulates:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.

Article 7 of the European Convention on Human Rights reads:

No punishment without law. (1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

(2) This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by civilized nations.

17. The Constitutions of most of the countries around the globe contain similar interdiction. Article 1, Section 9 of the American Constitution mandates that “no ... ex post facto law shall be passed.” in Calder v. Bull, [1798] 3 Dallas (US) 386, the United States Supreme Court interpreted the expression ex post facto law to include: “(i) Every law that makes an action done before the passing of the law and which was innocent when done, criminal and punishes such action; (ii) Every law that aggravates a crime, or makes it greater than it was when committed; (iii) Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed; and (iv) Every law that alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offence in order to convict the offender.” The Supreme Court added that there is a distinction between ex post facto laws and retrospective laws. Chase J. said: “Every ex post facto law must necessarily be retrospective, but every retrospective law is not an ex post facto law. The former only are prohibited. Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive, and it is a good general rule that a law should have no retrospect: but there are cases in which laws may justly, and for the benefit of the community and also of individuals, relate to a time antecedent to their commencement, as statutes of oblivion or of pardon. They are certainly retrospective. But I do not consider any law ex post facto within the prohibition that mollifies the rigor of the criminal law, but only those that create or aggravate the crime or increase the punishment or change the rules of evidence for the purpose of conviction. Every law that is to have an operation before the making thereof, as to commence at an antecedent time or to save time from the statute of limitations or to excuse acts which were unlawful, and before committed, and the like, is retrospective. But such laws may be proper or necessary, as the case may be. There is a great and apparent difference between making an unlawful act lawful and the making an innocent action criminal and punishing it as a crime.” According to S. M. Zafar,[4] this exposition of the term ex post facto has been followed practically by all the Courts ever since.[5]

18. in Pakistan, Article 12(1) of the Constitution of 1973 mandates:

12. Protection against retrospective punishment.--(1) No law shall authorize the punishment of a person--

(a)      for an act or omission that was not punishable by law at the time of the act or omission; or

(b)      for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed.

19. S. M. Zafar explains that Article 12 does not deprive the legislature of its powers to give retrospective effect [to a law]. It prohibits convictions and sentences being recorded in the criminal jurisprudence under ex post facto laws. This cannot be achieved even through the device of adding explanations (a declaratory measure) which in fact creates new offence. However, a procedural rigour including converting the bailable offence into non-bailable can be effected retrospectively.”[6] In Nabi Ahmed and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others (PLD 1969 SC 599) the Hon’ble Supreme Court held that “there is no fundamental difference between retrospective law and ex post facto law; the former expression is used in respect of civil matters and the latter in respect of criminal matters which by their nature are more serious.” In Mrs. Shahida Faisal v. Federation of Pakistan and
3 others (PLD 2000 Lahore 508) a 5-member Bench of this Court also held that “the word ‘law’ used in sub-clauses (a) and (b) of clause (1) of [Article 12] means law in operation at the time of the commission or omission charged as an offence. A law in force cannot be equated with a law ‘deemed to be in force’ through ex post facto legislation. The term ‘law’ used in the said Article postulates actual and not notional existence of the law at the relevant time.”

20. The protection under Article 12 of the Constitution of 1973 operates with reference to the time of act or omission. In Nabi Ahmed’s case, supra, while interpreting the Fourth Fundamental Right of the late Constitution of 1962, which was pari materia with Article 12, the Hon’ble Supreme Court held:

“The above protection operated with reference to the time of the act or omission which may subsequently be made punishable and to the commission of an offence for which greater or even different kind of penalty may be imposed by ex post facto legislation. The time of the commencement of a proceeding to impose the punishment or penalty is not of the essence of the protection.”

21. Confronted with the above situation, the learned Additional Prosecutor General argued that the Appellants funnelled the funds collected in the name of the Trust to LeT or otherwise used them to foster its objectives. This brings us to the testimony of Muhammad Riaz (PW-6). However, we have to consider a legal issue before appraising it.

22. Mr. Nayyar contended that the testimony of PW Muhammad Riaz was not recorded in accordance with law. According; to him, his name was not mentioned in the calendar of witnesses and a copy of his statement under Section 161, Cr.P.C. was not provided to the Appellants before indictment as required by Section 265-C, Cr.P.C. On 1.4.2021 the prosecution made an application under Section 540, Cr.P.C. before the trial Court which was accepted the same day. Immediately thereafter a copy of the PW’s aforementioned statement was supplied to the defence and then the Court called him to the witness box and recorded his testimony. The counsel’s contention is that the deposition of PW Muhammad Riaz cannot be read against the Appellants as the mandatory provisions of Section 265-C, Cr.P.C. have been violated.”

23. Section 265-C, Cr.P.C. enjoins that in all criminal cases copies of statements and documents should be supplied to the accused free of charge not later than seven days before the commencement of the trial. The list of documents in respect of the cases instituted upon police report include the statements of the witnesses recorded under Sections 161 and 164, Cr.P.C. The object of Section 265-C, Cr.P.C. is to enable the accused to know what evidence the prosecution would bring, against him at the trial so that he may prepare his defence and is not taken by surprise.[7] In Muhammad Riaz and another v. The State (PLD 2003 Lahore 290) a Full Bench of this Court observed that the said section was introduced to “meet the vacuum created by abolition of commitment proceedings (Chapter XVIII of Cr. P.C.)” and enunciated the following principles:

(a)      The provisions of Section 161, Cr.P.C. are independent of Section 172, Cr.P.C. Section 161 requires an Investigating Officer to record statement of a person who is acquainted with the facts of the case separately and Section 172 (which is independent) relates to maintenance of case diaries as record of the various stages through which the investigation has passed. It is only the case diaries which are meant to be treated as ‘privileged’ and shall not be made accessible to the accused. It clearly means that the statements recorded under Section 161 of the, Cr.P.C. are not privileged even if recorded in the body of the case diaries.

(b)      Section 265-C(1)(c), Cr.P.C. has impliedly repealed Section 162, Cr.P.C. to the extent that it enjoins that when the prosecution produces a witness at the trial whose statement has been recorded under Section 161, Cr.P.C., the Court shall on the request of the accused direct that a copy thereof be provided to him [in order that any part of such statement, if duly proved, may be used to contradict the said witness in terms of Section 145 of the Evidence Act, 1872 (Article 140 of the Qanun-e-Shahadat, 1984)].

(c)      The word “witnesses” appearing in Section 265-C(1)(c), Cr.P.C. has been used in the broad sense. It covers all those persons who are acquainted with the circumstances of the case and are examined by the Investigating Officer during  investigation.

(d)      The accused is entitled, as of right, to get copies of the statements of all the witnesses recorded under Section 161, Cr.P.C. irrespective of the fact whether they have been cited as witnesses in the calendar attached to the challan or not.

(e)      The statements of the witnesses and other documents mentioned in Section 265-C, Cr.P.C. must be supplied to the accused at least seven days before the commencement of the trial.

(f)       Section 265-C, Cr.P.C. has no bearing on the question of admissibility of a document or the statement of a witness which is determined in accordance with the provisions of the Qanun-e-Shahadat, 1984.

24. In Zulfikar Ali Bhutto v. The State (PLD 1979 SC 53) the Hon’ble Supreme Court held that where the police officer does not record the statement of a witness as required by Section 161, Cr.P.C. but writes it in the diary maintained under Section 172, Cr.P.C. (presumably as a statement of the circumstances ascertained through the investigation) its copy should also be given to the accused because it is to be reckoned as a statement under Section 161, Cr.P.C. In Naveed Asif v. The State (PLD 1988 SC 99) the apex Court observed that, notwithstanding the provisions of Section 265-C, Cr.P.C., the Court is empowered to issue direction for the supply of copies of statements or documents at some other stage of the proceedings as well if the dictates of justice so demand. However, this would depend upon the facts and circumstances of the case and the special provisions of law, including those relating to procedure and evidence.

25. The question as to whether the Special Courts functioning under the ATA are also required to provide documents to the accused within seven days before the trial as stipulated in Section 265-C, Cr.P.C. is contentious. Section 19(7) of the ATA mandates that the Special Court shall, on taking cognizance of a case, proceed with the trial from day to day and decide it within seven days failing which the matter shall be brought to the notice of the Chief Justice of the High Court concerned for appropriate directions. And, Section 19(8a) stipulates that non-compliance with the aforesaid timeline would render the presiding officer of the Special Court liable to disciplinary action by the concerned High Court. Section 32 gives the ATA an overriding effect and inter alia states that the provisions of the Code of Criminal Procedure, 1898, shall apply insofar as they are not inconsistent with it. The incongruity between Section 265-C, Cr.P.C. and Section 19(7) of the ATA is unambivalent.

26. As adumbrated, the purpose of Section 265-C, Cr.P.C. is to enable the accused to know the prosecution case and meet the allegations levelled against him. A preponderance of judicial decisions hold that the “seven days” requisite does not apply to the Special Courts under the ATA but they add that the accused must be afforded proper opportunity to prepare his defence and meet the requirements of fair trial under Article 10A of the Constitution of 1973. In Shahsawar v. The State (1998 PCr.LJ 1758) a Division Bench of this Court said:

“The Special Courts must take care in conducting the trial in accordance with the prescribed legal procedure and principles governing administration of criminal justice so as to inspire public confidence. They must not sacrifice the interests of justice and fair play at the alter of speedy trial.”

27. In the instant case, the prosecution had missed the name of PW Muhammad Riaz in the calendar of witnesses. Considering the fact that he was its prime witness, the prosecution moved an application under Section 540, Cr.P.C. to summon him which was allowed by the Special Court. We have found this order unexceptionable inasmuch as the purpose of a trial is “to secure fair and impartial administration of justice.”[8]

28. Admittedly, a copy of the statement of PW Muhammad Riaz was not provided to the Appellants before the commencement of the trial. In Pulukuri Kottaya v. Emperor (AIR 1947 PC 67) a Sub-Inspector examined five witnesses during investigation and reduced their statements to writing. The Circle Inspector then took over and held further probe in which he re-examined those five witnesses. During the trial the accused were given copies of the statements recorded by the Circle Inspector only. The omission was discovered when the Sub-Inspector came to the witness-box whereupon the copies of the statements penned by the Sub-Inspector were provided to the accused. Their Lordships acknowledged that the right of the accused to obtain copies of the statements made by the witnesses during investigation was “very valuable” because they provided important material for cross-examination but they refused to quash the conviction as the requisite copies had ultimately been made available and no prejudice was caused. Their Lordships held:

“[The argument that a breach of a direct and important provision of the Code of Criminal Procedure cannot be cured and it must lead to the quashing of the conviction] is based on too narrow a view of the operation of Section 537. When a trial is conducted ill manner different from that prescribed by the Code (as in N.A. Subramania Iyer v. King-Emperor (1901) L.R. 28 I.A 257, S.C. 3 Bom. L.R. 540), the trial is bad, and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under Section 537, and nonetheless so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code. The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind. This view finds support in the decision of their Lordships’ Board in Abdul Rahman v. The King-Emperor (1926) I.L.R. 5 Ran. 53, S.C. 29 Bom. L.R. 813, P.C. where failure to comply with Section 360 of the Code of Criminal Procedure was held to be cured by Sections 535 and 537. The present case falls under Section 537, and their Lordships hold the trial valid notwithstanding the breach of Section 162.”

29. The above view was followed by Kayani, CJ, of this Court in Ibrahim and another v. The State [PLD 1959 (W.P.) Lahore 715] and subsequently by the Hon’ble Supreme Court of Pakistan in Faiz Ahmad v. The State [PLD 1960 SC (Pak) 8]. In the latter case the Investigating Officer had incorporated the substance of the statement of the approver in the police diary during investigation. At the trial when the counsel for the accused asked for a copy of the approver’s statement he was told that the police had not recorded it under Section 161, Cr.P.C. The accused was convicted and sentenced to death on the basis of the approver’s testimony and circumstantial evidence. In appeal it was contended that refusal of a copy of the aforementioned record for the purpose of cross-examining the approver had vitiated the trial. Their Lordships of the apex Court did not order retrial and upheld the conviction as it could be safely maintained on circumstantial evidence even if the approver’s deposition was excluded. However, their Lordships observed:

“Lest we should be misunderstood and this judgment be taken to mean that a retrial or exclusion of a witness’s testimony is the necessary result of a refusal to supply a copy of the police statement of the witness to the accused, we must point out that the irregularity contemplated is within the kind of curable irregularities mentioned in Section 537 of the Code of Criminal Procedure. Where no copy was ever supplied at the trial and the contents of the statement were never disclosed to the accused, the irregularity may be strong point in the appeal and raise an irresistible inference of prejudice. The inference, however, is not irrebuttable and whereas here a copy is supplied to the accused in appeal and its contents are known to the Court and the accused and the counsel for the accused is unaable even to suggest that cross-examination of the witness as to an alleged omission or contradiction might have led to a breakdown of the witness, or a material part of his testimony the Court (sic) the conviction inasmuch as the matter is governed by Section 537 of the Code of Criminal Procedure.”

30. In RehmatAli v. The State (1986 SCMR 446) the Hon’ble Supreme Court of Pakistan held that the trial is not ipso facto vitiated if copies of statements under Section 161, Cr.P.C. are not provided. The Court has to determine whether the accused has been prejudiced and there is failure of justice. It pointed out that Section 537, Cr.P.C. lays down in unequivocal terms that no finding, sentence or order shall be reversed or altered unless an omission or irregularity has caused failure of justice for which the Court must consider all the relevant circumstances, including the fact whether the objection could and should have been raised at an earlier stage in the proceedings. The Indian Supreme Court considered the import of the expression “failure of justice” in Shamnsaheb M. Multtani v. State of Karnataka [(2001) 2 SCC 577] and held that it is extremely pliable and can be filled in any situation. Hence, the criminal Court, particularly the superior Court, should closely examine all the facts to ascertain whether there was really such failure.

31. It is pertinent to point out that in Ghulam Muhammad v. The State (1985 SCMR 1442) the Hon’ble Supreme Court seems to have taken a different view. In our opinion, the said case is distinguishable. Albeit the law report does not give the facts, it appears that a previous statement of the complainant was available on record which was not noticed by anybody. The Court remanded the matter because the accused did not have the opportunity to cross-examine him with regard to that statement and it felt that he had been prejudiced.

32. In the instant case, the copy of the statement of Muhammad Riaz (PW-6) was given to the Appellants before his examination-in-chief was recorded. The Special Court then afforded them an opportunity to cross-examine him which they duly availed. There is nothing on the record which may suggest that the Appellants were prejudiced in their defence. In Gurbachan Singh v. State of “Punjab (AIR 1957 SC 623) the Supreme Court of India explicated that in judging the question of prejudice, as of guilt, the Courts must act with a broad vision and look to the substance and not to technicalities;, and their main concern should be to be see whether the accused had a fair trial, whether he knew that he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself.”

33. In view of the above, the Appellants counsel’s objection regarding admissibility of the deposition of PW Muhammad Riaz is overruled.

34. Let us now scrutinize the evidence of PW Muhammad Riaz. He deposed:

“I deal with the business of motorcycles and property. I am Ahl-e-Hadith by sect, due to this reason I had good terms with accused persons namely Malik Zafar Iqbal, Yahya Aziz and others. I used to visit and meet the above-said accused persons on different occasions. A few years ago, the said accused persons requested the people for funds to buy the ambulances on behalf of Jamat.[9] Later on, in my presence accused persons namely Umar Bahadur, Samiullah and Nasrullah (present in Court today) met the above-said accused persons and handed over sufficient money for the purpose to purchase the ambulances for the Al-Anfaal Trust. Now I have come to know that Al-Anfaal Trust is the subsidiary organization of Lashkar-e-Tayyaba and both are proscribed organizations. The accused persons collected funds on the pretext of public welfare and used the same for the purpose of terrorism and terrorist activities.”

35. We have observed that PW Muhammad Riaz was squishy about almost everything. He did not state the precise year when the Appellants approached the public for donations for purchase of ambulances. Further, neither he indicated the date nor the place when Appellants Umar Bahadur, Samiullah and Nasrullah handed over money to the other accused and had no idea about how much it was. Lastly, he did not disclose what made him believe that the Appellants used the donations for illicit purposes. Apparently he had no direct knowledge and assumed it on the basis of the Government’s proscription order dated 10.5.2019.

36. We are not inclined to rely on PW Muhammad Riaz for the additional reason that there is no corroboratory evidence. In his cross-examination Inspector Muhammad Khalid (PW-7) conceded that the local police station never received any complaint against the Appellants and even during his investigation nobody from the general public brought anything to his notice which could expose their malefactions.

37. It is trite that the prosecution must prove its case beyond reasonable doubt to secure conviction of an accused. Indeed, this standard is way higher than “reasonable grounds to believe” employed by Section 11 -B of the ATA for proscription of an organization by the Federal Government. The Appellants cannot be convicted for the mere reason that LeT or the Trust have been proscribed. The prosecution must independently establish the ingredients of the offences under Sections 11-F and 11-J(2) of the ATA which it has failed to do.

38. At the fag end of the proceedings when the Additional Prosecutor General sensed the result of this appeal he contended that the charge framed against the Appellants was defective as it was not in accord with the contents of the FIR Exh. PB and urged us to remand the matter for retrial. In our opinion, this would not be justified because the prosecution has no case at all. Section 232, Cr.P.C. deals with the effect of material error in the framing of charge and sub-section (2) thereof stipulates that if the Court is of the opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction. In Paimullah and others v. Emperor [13 Indian Cases 783 (Calcutta)] the magistrate discharged three of the accused for want of evidence and committed the appellants to the Sessions under Section 395 of the Indian Penal Code for being concerned in robbery. The Sessions Judge, before hearing the evidence and without assigning any reason, amended the charge to robbery which altogether changed the character of the charge. The Calcutta High Court held that his action was illegal and quashed the conviction but did not order retrial as the “circumstances show that there is really no evidence that these persons committed dacoity at all.” In Sunnat Mondal v. Makar Sheikh (AIR 1930 Calcutta 138) the accused was indicted under Section 498 of the Indian Penal Code on the allegation that he had taken away the complainant’s wife from his custody but the nature of evidence reflected that the charge was intended to relate to the alleged taking away of the woman from the house of one B. There was, however, no finding that B had the care of the woman on behalf of the complainant nor there was any evidence on record that could justify such a finding. In the circumstances, the High Court held that it would not be proper to order a retrial on an amended charge.

39. In view of the foregoing, we accept this appeal and acquit the Appellants of the charge. They shall be released from the jail forthwith if not required to be detained in some other case.

(A.A.K.)          Appeal accepted


[1].      Section 11-F of the ATA is self-contained while the punishment for the offence under Section 11-J(2) thereof is provided in Section 11-N.

[2].      Durga Das Basu’s Commentary on the Constitution of India. Eighth Edn. 2008. Vol. 3 at D. 2953.

[3].      American Constitutional Law, 2nd Edn., 1998 at P. 1033.

[4].      S.M. Zafar Understanding Statutes, Fourth edition (2016), at p. 400.

[5].      Calder was also approvingly cited by the Hon’ble Supreme Court of Pakistan in Nabi Ahmed and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others (PLD 1969 SC 599).

[6].      S. M. Zafar, Understanding Statutes. Fourth Edition (2016), at p. 398.

[7].      See: Zulfikar Ali Bhutto v. The State (PLD 1979 SC 53); Shahbaz Musih v. The State (2007 SCMR 1631); Jajid Javed and others v Additional Sessions Judge (West) Islamabad and others (2016 PCr.LJ 672); and The State through Deputy Attorney General for Pakistan v, Ibrahim and another (2020 YLR1033).

[8].      https://legal-dictionary.thefreedictionary.com.

[9].      Jamat-ul-Dawa.