2022 PLP 2005 (YLR)

FAROOQ HAIDER, J.

Through instant criminal appeal, Hussain Shah (appellant) has assailed the judgment dated: 24.06.2021 passed by learned Judge, Anti-Terrorism Court, Faisalabad, whereby in case arising out of FIR No.04/2021, dated 01.04.2021 registered under sections: 11-H, 11-I, 11-J and 11-N of the Anti-Terrorism Act, 1997 at Police Station: Counter-Terrorism Department (CTD), Faisalabad, learned trial court has convicted and sentenced him as under:-- Conviction Sentence Under Section: 11-F(6) ATA 1997 "Rigorous Imprisonment" for one year with fine of Rs.20,000/- and in default thereof, to further undergo one month simple imprisonment. Benefit of section 382-B, Cr.P.C. was also extended to the convict/appellant.

2. Facts are that the machinery of law was set into motion by Muhammad Shahid Nawaz Corporal No.150, District Office Counter Terrorism Department (CTD), Chiniot (complainant/PW-4) through written statement (Ex.PB/1) sent by him to the police station for registration of the case and briefly as per said written statement, on 01.04.2021 at 12:05 p.m. (noon), the complainant along with Umar Waqas Corporal No.148, Babar Riaz Corporal No.171, Shehzadah Qaisar Corporal No.109 and operation team was present at Saim Pul, Bypass Chowk, Faisalabad Chiniot Road, Chiniot on an official vehicle in search of activists of proscribed organizations; source himself came and intimated him that a person who belongs to proscribed organization "Daish" raises funds for proscribed organization, utilizes the same for the terrorist activities of his proscribed organization, is now present at Near Ghallah Mandi Morr, Main Satellite Town Road, Chiniot and collecting fund and could be apprehended through immediate raid; considering said information as credible; complainant constituted raiding party and along with the source reached at the pointed place at 12:15 p.m.; on the pointing out of source, complainant saw that a person having receipt book in his hand was busy in collecting fund who was apprehended by the complainant with the help of his companions; On query, his name was disclosed as Hussain Shah; on his personal search, a receipt book (P.2) of proscribed organization "Daish" having Serial Nos. 071001 to 071052 was recovered from his left hand, on checking, original of 24-receipts from serial Nos.071001 to 071024 were found issued ( ) whereas receipts having serial Nos.071025 and 071026 were not issued but the signatures of the accused were present thereon; on all the receipts, fund for "Daish" was written and the same were containing flag of proscribed organization "Daish"; blue ball point and black carbon paper were also recovered; on his further personal search, cash amount Rs.15,200/- of fund collection was recovered from front pocket of his wearing shirt ( ) whereas from right side pocket of his wearing shirt ( ), wallet having black colour, original CNIC of the accused and a travelling bus ticket were also recovered; complainant prepared the parcel of receipt book of proscribed organization "Daish" with the seal of M.S. and took said parcel along with blue ball point, black carbon paper, cash amount, black wallet, original CNIC of the accused and travelling bus ticket into possession vide recovery memo (Exh.PD). On the basis of above said written statement (Ex.PB/1), case vide FIR No.04/2021 (Ex.PB), dated: 01.04.2021 was registered under sections 11-H, 11-I, 11-J and 11-N of the Anti-Terrorism Act, 1997 at Police Station: Counter-Terrorism Department (CTD), Faisalabad. On the conclusion of the investigation, report under section 173, Cr.P.C. was sent to the Court, charge was framed against the appellant under sections 11-F(6) and 11-N of the Anti-Terrorism Act, 1997, to which he pleaded not guilty and claimed trial. Prosecution got examined six witnesses i.e. Rana Waheed Ahmad, Magistrate 1st Class, Faisalabad (PW.1), Ali Sher Corporal No.719 (PW.2), Irfan Mehmood 5114/C, Naib Moharrar (PW.3), Muhammad Shahid Nawaz Corporal No.150 (complainant/PW.4), Muhammad Umar Waqas Corporal No.148 (PW.5), Muhammad Aslam Inspector (Investigating Officer/PW.6) and while giving up Babar Riaz Corporal No.171 as well as Shahzada Qaisar Corporal No.109 and tendering questioned documents "Examination report of Punjab Forensic Science Agency, Lahore" as Ex.PG, closed its evidence. Then statement of the accused (now appellant) was recorded under section 342, Cr.P.C. in which he refuted the allegations levelled against him. In reply to a question "Why this case against you and why the PWs have deposed against you?, the accused (now appellant) stated as under:-- "I was lifted from Mehmand Peshawar on 13.07.2020, on suspicion by the agencies that I had any link with proscribed organizations, but after thorough investigation, I was not found having any link with proscribed organization, thereafter, I have been involved in this case falsely." The accused/appellant did not record his statement under section 340(2), Cr.P.C. and also did not produce any evidence in his defence. Learned trial Court after conclusion of the trial while observing that prosecution has failed to prove the charge against the accused/appellant in offence under section 11-N of the Anti-Terrorism Act, 1997, has convicted and sentenced the appellant under section 11-F(6) of the Anti-Terrorism Act, 1997 as mentioned above vide impugned judgment dated: 24.06.2021.

3. Learned counsel for the appellant submits that conviction recorded and sentence awarded to the appellant through impugned judgment are against the law and facts of the case and prays for acquittal of the appellant by accepting the appeal.

4. Conversely, learned Deputy Prosecutor General while controverting the submissions of learned counsel for the appellant has supported the impugned judgment and prays for dismissal of the appeal.

5. Arguments heard. Record perused.

6. It has been noticed that although the appellant was booked in the case with the allegation that he was collecting funds for his proscribed organization i.e. "Daish" yet there is no evidence available on record to show that he is member of said organization or has any link with the same. Perusal of copy of notification (P-1) also does not reveal name of the appellant as member or office bearer of the proscribed organization i.e. "Daish". Investigating Officer i.e. Muhammad Aslam, Inspector/PW-6 while appearing before the Court categorially stated that the accused/appellant was not the office bearer of proscribed organization "Daish"; he also stated that it did not come during investigation that either the accused had participated in any terrorist activity; in this regard, relevant portions of his statement are as under:-- "The accused/appellant was not the office bearer of proscribed organization "Daish"." "It did not come during the investigation that either the accused had participated in any terrorist activity." Even otherwise, there is nothing on record to show that the appellant/accused had been collecting funds for the said proscribed organization in the past; no evidence was produced to show that how he was inciting the public while standing near Ghallah Mandi Morr, Main Satellite Town Road, Chiniot for raising fund for the proscribed organization and even any instrument for announcement has not been recovered from the possession of the appellant at the spot; prosecution is silent about the modus operandi of such fund raising for the proscribed organization. After receipt of information about activity of the appellant i.e. collecting fund, it was not a difficult task for complainant to record audio and video of the episode through Mobile Phone and then produce the same after due forensic analysis as evidence in the light of Article 164 of Qanun-e-Shahadat Order, 1984 read with section 27-B of the Anti-Terrorism Act, 1997; latter provision of law is hereby reproduced:-- "[27-B. Conviction on the basis of electronic or forensic evidence etc.

Notwithstanding anything contained in this Act or Qanun-e-Shahadat, 1984 (P.O. No.10 of 1984) or any other law for the time being in force, a person accused of an offence under this Act may be convicted on the basis of electronic or forensic evidence or such other evidence that may have become available because of modern devices or techniques referred to in Article 164 of the Qanun-e-Shahadat, 1984 (P.O. No.10 of 1984): Provided that the Court is fully satisfied as to the genuineness of such evidence.]" however, prosecution remained failed to utilize such useful provision of law. It is not out of place to mention here that any person from whom the appellant demanded fund was not joined into the investigation. It is case of prosecution that appellant was apprehended when he was busy in collecting fund for the proscribed organization and as many as 24 receipts from Serial Nos. 071001 to 071024 of the Receipt Book were recovered from his possession which were issued by him but surprisingly none of the said persons, who gave him fund for the proscribed organization, was apprehended or joined into investigation of the case; in this regard, relevant portion of statement of Muhammad Aslam, Inspector (PW-6) is hereby reproduced:-- "I did not join the donor of funds in the investigation. It is correct that the donor is also the accused of the same offence." Prosecution could not establish that how, when and from whom appellant obtained the alleged receipt book of proscribed organization or from where it was got printed. So far as recovery of carbon copies of receipts bearing Sr. Nos.071001 to 071024 are concerned, neither name or flag of any proscribed organization is available on them nor kind/type of currency is mentioned therein, so much so it did not show that any amount was received as fund; image of receipt No.071001 is scanned below:-- Receipts bearing Sr. Nos.0717025-26 though contain name and flag of proscribed organization yet do not reflect receipt of any fund rather only show purported signature of the appellant whereas remaining receipts bearing Nos.071027 to 071052 also do not reflect receipt of any fund. Furthermore, as per case of prosecution, Receipt Book (P-2) was secured through "sealed" parcel with seal of M.S.; in this regard, relevant portion of statement of Muhammad Shahid Nawaz Corporal No.150 (PW-4/complainant) is as under: - "I prepared the parcel of receipt book with the seals of M.S and took the said parcel along with blue ball point, carbon paper of black colour, cash amount, wallet, CNIC of accused and travelling ticket of bus into possession vide recovery memo Exh.PD, attested by Umar Waqas Corporal No.148 and Babar Riaz Corporal No.171." (emphasis added) Rana Waheed Ahmad, Magistrate Ist Class, Faisalabad (PW-1) categorically stated in his statement before the Court that parcel of specimen signatures of the accused was prepared, signed and sealed by him and he handed over said sealed parcel to the Investigating Officer for analysis; in this regard, relevant portion of statement of PW-1 is as under:-- "Thereafter, sealed parcel of the said specimen signatures was prepared, signed and sealed by me. I handed over the said sealed parcel to the Investigating Officer for analysis." (emphasis added) Muhammad Aslam, Inspector (Investigating Officer/PW-6) also admitted the factum of receipt of sealed envelope regarding specimen handwriting of the accused from learned Area Magistrate (PW-1) and handing over the same to the Moharrir of the police station; in this regard, relevant portion of his statement is as under: - "On the same day, the learned Area Magistrate obtained the specimen handwriting of the accused and handed over the same to me in a sealed envelope. I handed over the said parcel to the Moharrar and detained the accused in the police lock up." (emphasis added) However, report of Punjab Forensic Science Agency (Ex.PG) does not reflect that "parcels of receipt book as well as specimen signatures" received in said agency were "sealed". Therefore, safe custody and safe transmission of receipt book from place of recovery and of specimen signatures from date of preparation till their receipt by the Punjab Forensic Science Agency, Lahore could not be established which has vitiated the conclusiveness and reliability of the report of Punjab Forensic Science Agency, Lahore and rendered it incapable of sustaining conviction; in this regard, guidance has been sought from the case of "The State through Regional Director ANF v. Imam Bakhsh" (2018 SCMR 2039) and case of "Abdul Ghani and others v. The State and others" (2019 SCMR 608).

7. Nutshell of the above discussion is that prosecution has been failed to prove its case against the appellant beyond shadow of doubt and in such state of affairs there is no need to discuss defence version.

8. In view of all above, instant appeal filed by Hussain Shah (appellant) is allowed, conviction recorded and sentence awarded to the appellant through the impugned judgment dated 24.06.2021 passed by learned trial court/Judge Anti-Terrorism Court, Faisalabad, are hereby set aside. He is acquitted of the charge and shall be released forthwith if not required in any other case. JK/H-16/L Appeal allowed.