2020 PLP 817 (MLD)

ASJAD JAVAID GHURAL, J.

Through this criminal appeal under section 25 of the Anti-Terrorism Act, 1997 appellant Abdul Haseeb Yousaf has challenged the vires of judgment dated 17.02.2014 passed by the learned Judge, Anti-Terrorism Court-II, Gujranwala in case FIR No.404 dated 04.11.2013, in respect of offences under section 11-N of the Anti-Terrorism Act, 1997 registered at Police Station, City Siray Alamgir District Gujrat whereby he was convicted and sentenced as under:-- Under Section 11(N) of the Anti-Terrorism Act, 1997 Rigorous imprisonment for five years along with fine of Rs.5,000/- and in default thereof he shall further undergo S.I for six months. Under Section6(2)(p) of the Anti-Terrorism Act, 1997 Rigorous imprisonment for five years along with fine of Rs.5,000/- and in default thereof he shall further undergo S.I. for six months. The appellant was extended the benefit of section 382-B, Cr.P.C. Both the sentences were directed to run consecutively.

2. The prosecution story unfolded in the crime report (Ex.PB/1) is that Basharat Ali, SI (PW-1) along with four police officials conducted raid in the area of upper Jehlum Canal in consequence of a tip-off that a person belonging to a banned organization Jaish-e-Muhammad was collecting funds on different points from the shopkeepers and passengers and issuing receipts of A1-Rehmat Trust, which was a subsidiary organization of proscribed organization 'Jaish-e-Muhammad' and apprehended a person whose name was subsequently known as Abdul Haseeb Yousaf (appellant) along with a shopper, which contained four receipt books of Al-Rehmat Trust, three mobile phones, six SIM cards and an amount of Rs.2500/-. A motorcycle bearing registration No.4126/GAO contained the words "Jaish-e-Muhammad" and "Al-Jehad" at its front and rear number plate, which was also taken into possession from the appellant.

3. Basharat Ali, SI (PW-1) took necessary steps of initial investigation and moved the application for the constitution of Joint Investigation Team. Fazal Ahmad Sara, Inspector (PW-5) joined the appellant with the investigation and got prepared report under section 173, Cr.P.C.

4. The prosecution produced six witnesses. The appellant, in his statements recorded under section 342, Cr.P.C. had denied and controverted all the allegations leveled against him. He neither opted to make statement under section 340(2), Cr.P.C. nor produced any evidence in defence.

5. Learned trial Court, upon conclusion of the trial, had convicted and sentenced the appellant as stated above, hence this criminal appeal.

6. We have heard the learned counsel for the parties and gone through the record.

7. The appellant was charged in this case on two counts. Firstly, that he was collecting funds for proscribed organization "Jaish-e-Muhammad" and on apprehending him at the spot, four receipts of Al-Rehmat Trust, three cell phones and six SIM cards along with the cash of Rs.2500/- was recovered from the shopper held by him. Secondly, the motorcycle bearing registration No.4126/GAO under his use contained the words "Jaish-e-Muhammad" and "Al-Jehad" in the front and rear number plate respectively. As far as the first allegation is concerned, undoubtedly, the prosecution did not produce any piece of evidence, either documentary or oral, to establish link of Al-Rehmat Trust with Jaish-e-Muhammad. In this regard we may refer the deposition of Basharat Ali, S.I/complainant/Investigating Officer (PW-1), made in cross-examination that "I have not collected any notification disclosing that Al-Rehmat Trust is subsidiary body of Jaish-e-Muhammad. I have not collected the cell phone data of sims recovered from the possession of the accused. I do not know in whose name recovered sims are registered." The prosecution has not produced any notification that Al-Rehmat Trust was a banned organization or subsidiary body of Jaish-e-Muhammad, as such collection of funds, specifically on the receipts of said Trust, in no manner constitutes any offence. The prosecution has also failed to make any nexus of the allegedly recovered SIM card with the appellant as neither the complainant/Investigating Officer bothered to collect its call data record nor verified that in whose name the same were registered.

8. So far as the second part of allegation is concerned, Basharat Ali, S.I./complainant/Investigating Officer (PW-1), during cross-exami-nation deposed that "I have not checked registration of motor-cycle P-1, as such, I do not know in whose name, the same is registered. I do not know whether motorcycle P-1 is registered in the name of Abdul Haseeb accused or not, however, I have recovered the same from his possession." It is, thus, evident that no investigation has been conducted from the angle that in whose name the motorcycle was registered and, as such, the same cannot be connected against the appellant in any manner whatsoever. Even otherwise, if the number plate was tampered by mentioned some prohibited/objectionable words, it falls under the domain of Motor Registration Authority and on that basis no case under the Anti-Terrorism Act, 1997 could be registered against any individual. The prosecution has failed to bring on record any piece of evidence, which connect the appellant with banned organization Jaish-e-Muhammad in any capacity. We are surprised to note that how the trial Court not only took cognizance of the matter but also awarded conviction against the appellant against whom the prosecution is standing with blank hands with no iota of evidence. We have entertained no manner of doubt in our mind that the prosecution has not been able to prove the charge against the appellant beyond shadow of reasonable doubt and, thus, we do not concur with the conclusion arrived at by the trial Court qua the conviction and sentence of the appellant.

9. The epitome of above discussion is that the appeal in hand is allowed, the conviction and sentence of the appellant are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He is present on bail, his bail bonds as well as the surety stands discharged from the liability. SA/A-93/L Appeal allowed.