PLJ 2022 Cr.C. 453 (DB)
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.
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.
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.
“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.”
“.... 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
while dispensing justice in accordance with law. It is based on the maxim, “it is better that ten guilty persons he acquitted rather than one innocent person he convicted."
9. In the light of what has been discussed above, we accept Criminal Appeals No. 31223, 31526 & 31895 of 2021 filed by appellants, namely, Asif Khan, Abdul Wakeel, Noor Alam, Syed Mussarat Shah & Syed Muqadar Shah; their conviction and sentence is set-aside and they stand acquitted of the charge by extending benefit of doubt in their fevour. Appellants, namely, Asif Khan, Abdul Waked, Noor Alam, Syed Mussarat Shah & Syed Muqadar Shah are in custody be released forthwith if not required to be detained in any other criminal case.
(A.A.K.) Appel allowed
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