P L D 2004 Karachi 716 (PLP)

The learned Civil Judge and Judicial Magistrate Karachi East passed the following order:-- SIP Chanzaib of P.S Aziz Bhatti Investigation Zone-II, produced, accused persons namely

1. Syed Khalid Raza S/o Wasi Ahmed,

2. Farrukh Nafees S/o Nafees Ahmed,

3. Noman S/o Zafar Mehdi,

4. Suleman S/o Moosa Khan,

5. Abdul Salam S/o Shazullah and

6. Shakirullah S/o Fatah Khan before me in P/C., praying for P/C. remand on the ground that he has to interrogate the accused persons about the commission of offence I.O./S.I.P. Chanzaib has stated that F.I.R. bearing Crime No.252 of 2003 offence under section 11-F(5)(6), ATA 1997, was registered at P.S. against the accused persons on 11-11-2003. He further states that he had received F.I.R. for investigation and on 12-11-2003 the above named accused persons were produced before the Honourable ATA Court for remand through Additional Advocate-General but for want of material evidence, I have been directed to produce evidence. In this regard I had issued letter to SHO and complainant ASI Rana Arif for production of evidence against the accused persons in connection with the, sections. Since the evidence for sections of ATA has not been produced hence during investigation I found section 384/34 P.P.C., applicable as per contents of F.I.R, hence I produce before this Court for remand under section 167 Cr.P.C. Mr. Abdul Qadir Anwar Advocate filed Vakalatnama on behalf of accused persons above named. Heard I.O SIP. Chanzaib, Defence Advocate and perused remand report and diaries. Since the accused were arrested in offence under section 11-F(5)/(6), ATA 1997 and during investigation accused produced before me in offence under section 384/34 P.P.C. The offence under section 384 P.P.C is exclusively triable by this Court and such offence is bailable. It is settled law in bailable offences the SHO/I.O. is required to release the accused persons on bail after furnishing surety otherwise in non-furnishing of required surety accused be produced before Court. Since the offence under section 384 is bailable, therefore there is no justification to grant P/C. remand hence declined. The accused persons are required to furnish solvent surety of Karachi Division in the sum of Rs.30000 and P.R. bond in the like amount. In case of non-furnishing of required surety accused above named be remanded to jail for want of surety. The Incharge Investigation/I.O. are directed to complete the investigation and submit final report on or before 25-11-2003." D/2, S. Faisal Ali and D/3, S. Amjad Imran, deposed that all the six accused persons were arrested from the office of Al-Badar Magazine situated in Gulshan-e-Iqbal on 11-11-2003 and that in spite of grant of bail the accused persons were not released and were being shifted from one Police Station to another and ultimately the present case was concocted at Gulshan-e-Iqbal Police Station and the accused persons were challaned to face trial in two cases. The learned trial Court after hearing the learned Advocates for the parties held in both the cases that offences punishable under sections 11G(1) (a) and 11F(5) (6) of the Anti-Terrorism Act, 1997 were proved by the prosecution beyond reasonable doubt. Accused Syed Khalid Raza, Abdul Salam and Shakirullah were accordingly convicted and awarded the following sentence;:- "All the three accused Syed Khalid Raza son of Syed Wasi Ahmed; Abdul Salam son of Shazullah and Shakirullah son of Fateh Khan are sentenced to suffer R.I. for 5(five) years and to pay fine of Rs.50,000 (Fifty thousand) each or in default to undergo R.I. for 6 (six) months each and their all the movable/immovable properties are ordered to be attached and confiscated to the Government." The same finding were given by the learned trial Court against accused Farrukh Nafees, Sideman Khan and Noman. All the three were convicted for the offences punishable under section 11G (1) (a)/1 1F(5)(6) of ATA, 1997. Accused Farrukh Nafees and Suleman Khan were sentenced in the same terms as accused S. Khalid Raza, Abdul Salam and Shakiruldah. However, accused Noman was sentenced to undergo R.I. for one year only for the reason that he was immature body of 17 years and had taken plea that he had gone to the office of Al-Badar to meet his cousin who used to work there. As observed earlier M/s. Nihal Hashmi and Muhammad Junaid Farooqui, learned Advocates for the accused persons remained absent during the course of hearing, the appeals were heard with the assistance of learned A.A.-G. Mr. Habib Ahmed. All the accused persons were heard in person who were called for this purpose from the jail. Mr. Habib Ahmed, read the entire evidence on record and supported the impugned conviction and sentences. The appellants reiterated their contention that all of them belong to organization Al-Badar Mujahideen, which is not a proscribed organization. They submitted that the learned trial Court has totally ignored the undeniable fact that all of them were arrested by Aziz Bhatti P. S. on 11-11-2003 from the office of Al-Badar Organization and F.I.R bearing No-252 of 2003 was recorded and that it was stated in the F.I.R that all the six accused persons were workers of Al-Badar Mujahideen Organization and was alleged that Al-Badar Mujahideen was a subsidiary of Jaish Muhammad a proscribed organization. All the six accused persons were produced before the Incharge Anti-Terrorist Court with the request for their remand in police custody and the request was refused for the reasons that no evidence was produced to the effect that Jaish Muhammad was a proscribed organization and that the appellants had arty connection with Jaish Muhammad. The police was directed to produce evidence connecting the appellants with Jaish Muhammad and admittedly police failed to collect any evidence in this behalf as stated in the application for police remand dated 13-11-2003, Exh: D/3, submitted before XVIIIth Civil Judge and Judicial Magistrate Karachi East. They have reiterated that after the learned Incharge Judge, Anti-Terrorism Court, declined the police remand as requested they, ought to have been released but police by resorting to high-handedness continued to keep them in custody merely by changing section 11F (5) & (6) ATA to section 384/34 P.P.C. The offence under section 384 P.P.C is bailable but police in defiance of the law continued to detain the appellants in custody and ultimately they were granted bail by the learned Judicial Magistrate on 14-11-2003. However, even after furnishing of surety and the release of appellants from Jail, they were not let off and were shifted from one P.S to another and ultimately two false cases were concocted and the appellants were falsely implicated in the two cases in which they were sent up to face trial. The appellant Syed Khalid Raza stated that he is double M.A. and is student of M.Phil. He claimed that he is highly educated person and is Editor of Al-B4dar Magazine. He submitted that he and all other appellants have no connection with the organization Jaish Muhammad and Khuddam-ul-Islam. He further submitted that he had studied the entire case very minutely and has given the detailed notes to his Advocates but they, have remained absent therefore, he was himself pointing out that no notification declaring Jaish Muhammad as proscribed organization under the ATA has been produced. He has further pointed out that the mala fide of the police is evident from the fact that they were initially branded as workers of Al-Badar Organization alleging it as subsidiary organization of Jaish Muhammad but they utterly failed either to show that Jaish Muhammad was proscribed origination or the appellants had any connection with such organization. On having failed to do so they continued to keep the appellants in illegal confinement from 11-11-2003 to 22-11-2003 and were in search of some material to concoct the cases against them. He has further pointed out that all the appellants were arrested on 11-11-2003 and the notification declaring Khuddam-ul-Islam as proscribed organization Exh.12 was issued on 15-11-2003, i.e. after four days of their admitted arrest. He has further submitted that the prosecution utterly failed to adduce any evidence establishing connection of the appellants with Khuddam-ul-Islam Organization proscribed on 15-11-2003. He has contended that the police procured certain receipt books in the name of Khuddam-ul-Islam and foisted the same on the accused persons. He has further submitted that the receipt book beading No.218 has been produced by the police witnesses alleging that the receipts were issued by him. He has denied his signatures on the receipt book. We have carefully gone through the impugned judgments in both the appeals, the entire evidence available on record and have considered the contentions raised by the appellants and the submission made by the learned AAG, supported the impugned conviction and sentences. At the very outset we would like to observe that the impugned judgments demonstrate the lack of application of mind on the part of the trial Court and is so replete with the illegalities that the judgments are shocking to the judicial conscience. We find that it is undeniable fact that all the six accused persons were initially arrested by Aziz Bhatti Police on 11-11-2003 and F.I.R bearing No.252 of 2003 was duly recorded showing all the six accused persons as workers of Al-Badar Organization. It is also admitted that Al- Badar is not a proscribed organization and that the police had on its own admission failed to establish any connection between Al-Badar Organization and Jaish Muhammad Organization. In the present cases, the Investigating Officer and the prosecution witnesses have all along described proscribed organizations as Khuddam-ul-Islam, Jaish Muhammad. It appears that according to prosecution Khuddam-ul-Islam and Jaish Muhammad are the same organization. It is evident from the letter written by the Investigation Officer to the S.S.P., Investigating Exh.13 and the letter written by S.S.P. Investigation Zone-II, C.C.P. Karachi to the D.I.G. Police Investigation-I, C.C.P. Karachi, Exh.14. It is stated that both these organizations are having one bank Account No.820-6 Allied Bank of Pakistan Stock Exchange Branch Lahore. Thus, if Khuddam-ul-Islam and Jaish Muhammad is one organization and admittedly the police failed to establish connection of the appellants with Jaish Muhammad, how they can be branded as workers of Khuddam-ul- Islam in the absence of any evidence in this behalf. Except the receipt books and the banners produced by police officials there is no evidence connecting the appellants with Khuddam-ul-Islam. The prosecution has failed to produce any evidence establishing remission of any amount by any appellant to Account No.820-6 Allied Bank of Pakistan, Stock Exchange Branch Lahore, in the name of Khuddam-ul-Islam. The learned A.A.-G. conceded that accused Khalid Raza and Farrukh Nafees denied their alleged signatures on the counter-foils of the receipt books but no Handwriting Expert was examined to prove the signatures of the accused persons on the receipt books. We have compared the signatures of accused Khalid Raza on his statement under section 342 Cr.P.C, with the disputed signatures and have found no resemblance in the disputed signatures and the admitted signatures of accused Khalid Raza. We have also shown the receipt books to learned A.A.G. and the fact that except one receipt all other counter-foils were undated and that normally the original receipt is written by the person issuing the receipt and the counter-foil is a carbon copy. In this case all the counter-foils are original which is not in the ordinary course. He was also pointed out that the counter-foil of receipt No.5435 is available in the receipt book and the original receipt No.5435 is also available which is blank. It indicates that the originals were merely torn by the police and fake names and amounts were written with the ball pen on the counter-foils. Coming to the impugned judgments, we find that the learned Judge convicted the appellants under two sections i.e. 11G(1)(a) and 11 F(5)(6), ATA but has awarded a consolidated sentence to 5 accused persons which is 5 years' R.I. and fine of Rs.50,000 each. The sixth accused namely Noman is minor and has been sentenced to undergo R.I. for one year. The punishment provided under subsection (2) of section 11G for the commission of offence under subsection (1) of section 11G is 3 months or fine or both. It appears that the learned Judge is not aware at all of the provisions contained in section 367(2), Cr.P.C which provides as follows:-- "It shall specify the offence (if any) of which, section of Pakistan Penal Code or other law under which the accused is convicted, and the punishment of which he is sentenced". In the case of Muddasar v. The State, 1996, SCMR 3, the Hon'ble Supreme Court while referring to section 367(2), Cr.P.C, has held that it is a bounden duty of the Court to specify the relevant section of law under which an accused is convicted and sentenced and nothing should be left to presumption. The Federal Shariat Court has held in the case of Masho Khan v. The State, 2002 PCr.L.J 1478, that the Court while convicting accused is under legal obligation to specify offence of which accused is convicted and to cite relevant section of law under which he is sentenced. Failure would render the judgment unsustainable. In this case also it has been held that it is mandatory provision under section 367(2), Cr.P.C., that the Court while convicting an accused should specify the section of law under which he is sentenced. Now if we examine the impugned judgments, we find that the accused persons have been convicted under section 11G(1) (a), ATA but the sentence awarded is R.I. for 5 years and fine of Rs.50,000, while the punishment provided in law is simple imprisonment for a term not exceeding 3 months or a fine or both. No simple imprisonment has been awarded by the trial Court which means that either after conviction under section 11G(1)(a) no sentence has been awarded at all or the appellants have been sentenced to suffer R.I. for 5 years and to pay fine of Rs.50,000 for an offence punishable with simple imprisonment for a term not exceeding 3 months or to a fine or to both. The learned trial Judge appears to have the' guts of awarding R.I. for 5 years against the sentence provided in law which shall not exceed to simple imprisonment for 3 months. We have formed this opinion for the reasons that while awarding sentence the learned trial Judge ordered for attachment of all the movable/immovable properties of all the accused persons except Noman and confiscation thereof to the Government. In spite of our best efforts, we were not able to find out any such provision in Anti Terrorism Act and therefore, we called the learned trial Judge in Chambers and asked him to show us the provisions under which such sentence was awarded. The learned trial Judge appeared to be totally ignorant of any such provision. He was provided with the relevant law to go through it and point out such provision. After going through the entire Anti Terrorism Act, he stated that the punishment was provided, under section 11-Q of ATA. However, after he was asked to go through the relevant provision carefully he stated that the provision for forfeiture was applicable in case of conviction of an offence under section 11-H to 11-M of ATA and was not applicable to the conviction for the offence under sections 11 G and 11 F. He was again asked to go through the provisions and point out under which provision the movable and immovable properties of a person convicted under sections 11-H to 11-M may be attached and confiscated in favour of Government. After going through the law he conceded that there was no such provision. In addition to the fact that the learned trial Judge has awarded the sentences which are not provided in law, he appears to have no working knowledge of the procedural law as well. The prosecution case is that accused Khalid Raza and Farrukh Nafees were issuing the receipts but both these accused were not confronted with their alleged signatures on the counter-foils of the receipt books and without confronting the accused persons with their alleged signatures on the receipt books, reliance was placed on the receipt books. It is trite law that without confronting the accused persons specifically with a piece of evidence and seeking their explanation no evidence can be used against them. Sole link between the appellants and proscribed organization Khuddam-ul-Islam was receipt book produced by the prosecution witnesses. This piece of evidence could not be used against the appellants but the learned trial Judge has committed gross illegality in awarding conviction on the basis of receipt book the signatures whereon were neither confronted to the accused persons nor was proved through any Handwriting Expert. We are further constrained to observe that from the tenure of impugned judgments it appears that the learned trial Judge was sitting with predetermined mind to convict the accused persons and therefore, he has totally ignored the 'F.I.R, in Cr.No.252 of 2003 in which all the appellants are shown to be workers of Al-Badar Organization, which is not a proscribed organization. The learned trial Judge has also ignored the fact that even Khuddam-ul-Islam which according to prosecution is the same organization as Jaish Muhammad was proscribed on 15-11-2003 and the accused persons were arrested on 11-11-2003 for commission of offence punishable under section 11F(5) (6). It is provided in section 11 F(5) that a person commits an offence if he solicits, collects or raises funds for a proscribed organization. The malafide of the police is evident from the fact that all the six accused persons were arrested on 11-11-2003 without any iota of evidence that the appellants were collecting or soliciting donation for any proscribed organization. The learned trial Judge ought to have taken notice of this fact which he has very conveniently ignored. The learned trial Judge has farther ignored the fact that in both the cases no mashirnamas of the place of incident, were prepared and no explanation was furnished as to why such, memos were not prepared. An overall examination of the prosecution evidence shows that the police has concocted totally false case, against the appellants and the enthusiasm of police is evident from the fact that all the six appellants were arrested on 11-11-2003 from the office of Al-Badar Mujahideen when such organization was neither proscribed nor there was any evidence of its connection with any proscribed organization. The conduct of the learned trial Judge is more shocking than the conduct of Police. We are of the considered opinion, without any scintilla of doubt in our mind, that the impugned judgments, conviction and sentences are no warranted and sustainable in law which are hereby set aside. All the accused persons are acquitted of all the charges against them. After hearing the learned A.A.-G. and the appellants/accused on 21-7-2004 the appeals were allowed by a short order. The appellants who were serving out their sentences in Central Jail Karachi were directed to be released forthwith if not required in any other case. These are the, detailed reasons in support of the short order. N.H.Q/K-24/K Appeals allowed.