MUHAMMAD MUJEEBULLAH SIDDIQUI, J--- The facts and circumstances as well as witnesses are common in both the appeals therefore, they have been heard together and are disposed of by this single consolidated judgment.
2. Briefly stated the prosecution case in Appeal No,9 of 2004, is that, on 22-11-2003 A.S.I. Ghulam Shabbir of Police Station Gulshan-e Iqbal, was on duty as Mobile Officer from 8.00 p.m., to 8.00 a.m.
Police Constable Hanif, Police Constable Maqbool and Police Constable Driver Muhammad Ilyas were also with him. At about 9-30 p.m. A.S.I. Ghulam Shabbir received spy information near Disco Bakery that some persons belonging to proscribed organization namely Khuddamu-ul-Islam and Jaish Muhammad were collecting donation for the purpose of Jihad, near Masjid-e-Quba Block-7, Gulshan-e-lqbal, Karachi. On receiving this information he proceeded to Masjid-e-Quba which was nearby and found two persons holding a cloth banner bearing writing, "Khuddam-ulIslam, Jaish-e-Muhammad Zindah Abad", "Ab Manzil Door Nahin", "Jihad Kay Liay Dil Khol Kar Chanda Do".
One person was collecting donations and was issuing receipts. With the help of subordinate staff he arrested all those three persons and recovered cash amount of Rs,2000. A receipt book bearing No,218, a ball pen as well cloth banner. All these articles were sealed at the spot. The persons holding banner disclosed their names as Abdul Salam and Shakirullah and the person collecting donations disclosed his name as Khalid Raza. Mashirnama of arrest and recovery was prepared and the two Police Constables acted as mashirs. All the three accused persons as well as seized articles were taken to Police Station Gulshan-e-Iqbal, where F.I.R. No,557 of 2003 was recorded by ASI Ghulam Shabbir himself. The investigation was assigned to Inspector Aijaz Qaimkhani, who recorded 161 Cr.P.C., statements of Ghulam Shabbir and other police constables.
3. The relevant facts pertaining to Appeal No,10 of 2004, are that, after recording F.I.R No,577 of 2003 at 10.00 p.m., ASI Ghulam Shabbir again left Police Station for patrolling. He reached Block No,3, Gulshan-e-Iqbal at 10 00 p.m. And again received spy information that persons belonging to proscribed organization were collecting donation in the name of Jaish Muhammad and Khuddam- ul-Islam, near Masjid-e-Siddique-Akbar. On receiving spy information he proceeded to Masjid-e- Siddique-Akbar and reached there at about 10.15 p.m. Again he saw three persons, two of whom were holding banner with the same writing as described in F.I.R. No,557 of 2003 and one person was collecting the donation. All the three persons were arrested with the help of subordinate staff. The banner, an amount of Rs,1500 in cash and two receipt boots were recovered and sealed at the spot. Memo. Of arrest and recovery was prepared and the same police constables acted as mashirs. The accused persons and the property were taken to Police Station Gulshan-e-Iqbal, where F.I.R No,558 of 2003 was recorded by ASI Ghulam Shabbir at 10.45 p.m. The investigation was assigned to same Inspector to whom the investigation of Crime No, 557 of 2003 was assigned. He recorded statements of all the witnesses under section 161 Cr.P.C. He interrogated the accused persons who were confined in the lock-up. The Instigating Officer thereafter obtained notification issued by the Federal Government dated 15-11-2003 through which Khuddam-ulIslam Organization was declared as a proscribed organization. On 23-11-2003 the Investigating Officer visited the places of occurrence along with A.S.I. Ghulam Shabbir. On 24-11-2003 he obtained remand of all the six accused persons in the two cases. After completion of investigation all the six accused persons were challaned separately to face the trial.
4. Mr. Hague Nawaz Baloch, learned Judge Anti-Terrorism Court No,V, Karachi Division framed charges in both the cases for the offences punishable under sections 11F(5)(6)/11G(1)(a) of the Anti, Terrorism Act, 1997. All the accused persons pleaded not guilty of the charge.
5. In both the cases prosecution examined P.W.1, Constable Muhammad Ilyas, P.W.2 ASI Ghulam Shabbir and P.W-3, Inspector Aijaz Ali, Investigating Officer. In both the cases PWs. Muhammad Ilyas and Ghulam Shabbir produced the mashirnamas of arrest and seizure of articles and F.I.Rs, The Investigating Officer, Aijaz Ali produced notification dated 15-11-2003 issued by the Federal Government in exercise of the powers conferred by subsection (1) of section 11B read with section 11E of Anti-Terrorism Act, 1997 whereby Khuddam-ul-Islam was declared proscribed organization with further direction for inclusion of the said organization in the first schedule to the Anti-Terrorism Act.
6. All the six accused persons were examined in both the cases under section 342, Cr.P.C., and they denied all the prosecution allegations. They specifically denied their connection with Khuddam- ulIslam and Jaish Muhammad and the allegation of collecting donation for any proscribed organization. All of them stated that they belong to AlBaddar Mujahideen Al-Shaheed Welfare Trust which has no connection with Khuddam-ul-Islam. All of them stated that they were already arrested from the office of Al-Baddar Mujahideen prior to the recording of F.I.Rs, In Special case No,34 of 2003, F.I.R No,557 of 20u3 accused Khalid Raza examined himself in defence under section 340(2), Cr.P.C., and defence Witnesses S. Faisal Ali and S. Amjad Imran, were also examined.
7. In special case No,45 of 2003 F.I.R No,558 of 2003 accused Farrukh Nafees examined himself in defence under section 340(2), Cr.P.C., as well as S Faisal Ali and S. Amjad Imran.
8. Accused Khalid Raza while deposing as a defence witness, stated that he belongs to Al-Baddar Mujahideen Al-Shaheed Welfare Trust and that he has no concern with Khuddam-ul-Islam or Jaish Muhammad. According to him he along with other 5 accused persons was arrested by Aziz Bhatti Police Station on 11-11-2003 and F.I.R No,252 of 2003 was recorded at Aziz Bhatti Police Station. He has produced certified copy of the F.I.R as Exh. D/2 and has further produced the certified copy of the order passed by XVIIIth Judicial Magistrate Karachi East, as Exh.D/3. The F.I.R No,252 of 2003 P.S. Aziz Bhatti, was recorded on 11-11-2003 at 6.30 p.m. The contents of the F.I.R, are as follows:-- "Today I, ASI Rana Arif along with ASI Mashooq Ali, ASI Muhammad Soomar in official Mobile No,2, along with Dilawar Khan; Head Constable, Muhammad Nawaz Police Constable, Aqil Shah, Police Constable, under the direction of SHO were on patrol duty in the locality for the prevention of crime.
While on patrolling when I reached Block No,3/H, Gulshan-e-Iqbal, I received information through special informer that few persons belonging to Al-Baddar organization were collecting donation in front of House No,A/66. They were compelling the passersby to donate money for the Mujahideen.
On receiving this information I along with other police officials reached House No,A/66 at 6.00 p.m., where I found a banner hanging, on which the words soliciting donation for Mujahideen were written. Outside the house the workers of Al-Baddar Mujahideen organization were found who disclosed their names as (1) Khalid Raza son of Wasi Ahmed, (2) Farrukh Nafees son of Nafees Ahmed, (3) Nauman son of Zafar Mehdi, (4) Suleman son of Moosa Khan, (5) Abdul Salam son of Shazullah, and (6) Shakirullah son of Fateh Khan. They were compelling the passersby to provide resources to AlBaddar Mujahiddeen and at the same time were distributing the posters and pamphlets containing persuasions for donation. Since Al-Baddar Mujahidian is subsidiary organization of Jaish Muhammad, which is a proscribed organization and patronizes armed Mujahideen, therefore, the act of the above persons whereby resources were being collected for Jihad in the form of donation constitutes offence under section 11-F (5) (6) of Anti-Terrorism Act, 1997, which is a cognizable offence, therefore, all the above six accused persons were arrested and 100 small pamphlets, one cloth banner and 25 big posters were secured as a proof. The articles seized from the accused were brought to the Police Station along with the accused persons and case was registered against them by me with the recording of F.I.R. The Investigation shall be conducted by incharge investigation." The letter dated 13-11-2003 written by the Police Inspector Investigation-H, Gulshan Town P.S. Aziz Bhatti, addressed to Judicial Magistrate XVIIIth Gulshan Town, requesting for remand of all six accused persons in F.I.R No,252 of 2003, P.S. Aziz .Bhatti, Exh. D/3 shows the date of arrest as 11-11- 2003. The contents of the application seeking remand of all the six accused persons contain that on 11-11-2003 all the six accused persons were arrested on the allegation of collecting Fitra and Zakat for Al-Badar Mujahideen. It is further stated that the banners and posters of Al-Badar Mujahideen were recovered from the possession of all the six accused persons. It is also stated that case was registered against all the six accused persons for commission of offence under section 11-F(5)(6) A.T.A. On the direction of Anti-Terrorism Court, the efforts were made to collect the evidence against the accused persons but no evidence could be collected and therefore, section 11-F(5)(6) ATA was deleted and the offence was converted under section 384/34, P.P.C. Remand was sought in police custody from 14-11-2003 to 27-11-2003. 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 commissionof offence I.O./S.I.P. Chanzaib has stated that FIR. 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.0 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.0 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,30,000 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/J.0 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-lqbal 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-lqbal 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, Suleman Khan and Noman. All the three were convicted for the offences punishable under section 11G (1)
(a)/11F(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 Shakirullah. 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 any 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-Badar 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 beating 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 sentence. 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 AlBadar 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-ulIslam 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 11F(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.0 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 A 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 11G and 11F. 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 11F(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 further 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 not 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.