SARDAR MUHAMMAD SARFRAZ DOGAR, J.:- By way of filing above-captioned Criminal Appeal No. 326-ATA of 2015 under section 25 of Anti-Terrorism Act, 1997, Maulvi Mohammad Naeem Rahimi appellant has impugned the punishing judgment dated 24.6.2015 handed down by the learned Judge Anti-Terrorism Court, Bahawalpur Division Bahawalpur, who after having been tried in a case registered vide FIR No. 19/2015 dated 26.01.2015, under sections 9/11-W ATA, 1997 at Police Station Abbasnagar District Bahawalpur, was convicted under section 9 of ATA, 1997 and sentenced to five years imprisonment alongwith fine of Rs. 10,00,000/- and in case of non-payment to further undergo one year S.I.
2. Facts in-curt divulged in complaint (Ex. PB) drafted and sent by Raees Ahmad, S.I. (PW-3) on the basis of which formal FIR (Ex. PC) was reduced into writing by Imran Ahmad Siddiqi, Inspector (PW-4) are that on 26.1.2015, he (complainant) alongwith Iftikhar Ali, ASI, Abdul Rauf ASI, Nabi Ahmad 983/C and Sohail Sarwar/C Driver on official vehicle were present at Chak No. 30/BC on patrolling and search of criminals where he received spy information that Maulvi Mohammad Naeem Rahimi who used to teach Quran Kareem to children in Masjid of Chak No. 30/BC 'Gharbi' had some sectarian hatred books, journals and CDs wherein terrorists were declared martyred and heroes and also contained hate material. He alongwith his companions upon this information reached Masjid Chak No. 30/BC and found that one person was teaching to the children who disclosed his name as Mohammad Naeem Rahimi and on inquiry he produced books titled 'Khutbat-e-Juma' (P1), Haqai-e-Bader (P2), Housloon-ki-jang (P3), Jawaherat-e-Farooqi (P4), Awaz-eQasimi (P5), Khutbat-e-Nadeem two journals titled Nidai-Haq (P6/1) and Nifaz-e-Khilafat- e-Rashida' (P6/2), wherein Riaz Basra was declared martyred and hero of defunct organization 'sipahe-sahaba' alongwith sectarian inciting speeches and also produced three CDs, whereon 'Wasiyat Abdul Rasheed Ghazi Laal Masjid' (P7) was written with marker on back side, CD titled 'Speeches program 'Daish' etc (P8) and CD titled Speeches of Al-Qaida' (P9) from almirah fixed in the western wall of Masjid. He took into possession above said books and CDs vide recovery-memo Ex. PA, attested by Iftikhar Ali, ASI (PW-2) and Abdul Rauf ASI.
3. The investigation culminated into the submission of report under section 173 of Code of Criminal Procedure, 1898. The learned trial court framed charge against the appellant on 13.5.2015, to which he pleaded not guilty and claimed to be tried.
4. In order to prove its case against the appellant, the prosecution produced and examined, in all, four witnesses i.e. Ejaz Ahmad, ASI (PW-1), Iftikhar Ali, ASI (PW-2), Raees Ahmad, S.I. (PW-3) and Imran Ahmad Siddiqi, Inspector (PW-4). While giving up Abdul Rauf, ASI, Nabi Ahmad 983/C and Mohammad Siddique MHC, being un-necessary, the prosecution closed its evidence.
5. Thenceforth, statement of the appellant under section 342 of the Code of Criminal Procedure, 1898 was recorded wherein; he refuted the allegation levelled against him. In reply to the question "Why this case against you and why PWs have deposed against you?" the appellant has replied as infra:- "As the complainant of case is police official, he registered this false case against me to show his fake performance to his high-ups. In fact, in those days there was campaign to register the false cases against religious persons on instructions of Government after Peshawar incident, so to fulfill these instructions many false cases of same allegation were registered in Police Station Abbasnagar as well as whole District of Bahawalpur and this case is also the result of that campaign. I was already in illegal custody by the police in Police Station and later-on complainant registered this false case against me. The recovery shown against me is fake and planted by the police. Neither I retained any book nor any CD as alleged in the FIR was recovered from my possession nor I was disseminating any alleged hate material by using these alleged recovered books or CDs in any manner. I never gave projection to any defunct organization or its member. No occurrence as narrated in the FIR ever took place. I have no concerned with any proscribed organization. I am not enlisted in 4th schedule of 11-E ATA 1997 and no criminal case previously stood registered against me throughout my life. All the witnesses are police officials and they have deposed against me on the instructions of their high-ups just to strengthen the prosecution case."
Neither the appellant opted to make statement on oath as his own witness in disproof of the allegation levelled against him as provided under section 340 (2), Cr.P.C. nor he produced any evidence in his defence.
6. After considering the arguments of the learned counsel for the parties and weighing the material brought on record, the learned trial Judge found the appellant guilty of the charge under section 9 of Anti-Terrorism Act, 1997 and thus on conviction sentenced him as mentioned above.
However, he was acquitted of the charge under section 11-W of Anti-Terrorism Act, 1997, hence, this appeal.
7. Learned counsel for the appellant contends that the appellant has falsely been implicated in this case as he did not retain alleged recovered material; that the prosecution remained fail to establish affiliation of the appellant with any banned organization or to prove his membership with any defunct organization; that there are glaring contradictions and dishonest improvements in the statements of the prosecution witnesses; that no private witness was associated with the investigation or produced before the learned trial court; that the appellant has no previous record of involvement in any criminal case and was never enlisted in 4th schedule of ATA 1997; that the learned trial court has not applied its judicious mind while convicting the appellant; that no incriminating evidence was available with the prosecution to bring home guilt of the appellant, hence, this appeal may be accepted and the appellant may be acquitted of the charge.
8. Conversely, learned Deputy Prosecutor General vehemently opposes the contentions raised by learned counsel for the appellant and maintained that both the recovery witnesses have made corroborating statements and books, journals and CDs containing hate sectarian material have been recovered from the appellant who is member of defunct organization and gave it projection and when he got recovered CDs containing slaughter of Pak Army-men, destruction of Army-camps and hate speeches so accused intended to stirring-up sectarian hatred; that there are no contradictions or improvements in the statements of prosecution witnesses; that the police officials had no mala fide or ill will against the appellant to falsely implicate him in the instant case; that prosecution has fully proved its case beyond shadow of reasonable doubt, against the appellant and finally submits that the appeal in hand may be dismissed, being devoid of merits.
9. We have heard learned counsel for the appellant and the learned Deputy Prosecutor General on behalf of the State at a considerable length and with their assistance have scanned evidence available on record.
10. We have observed that the appellant was charged under two heads by the learned trial court on 13.5.2015 and for the sake of ready reference the same are reproduced as under:- Firstly; that on 26.01.2015 at 11.30 day time at Masjid chak No. 30/BC gharbi PS Abbas Nagar you accused was found in possession of objectionable books titled Housloon-ki-jang, Jawahrat-e- Farooqi' etc, foreign banned journals titled 'Nifaz-e-Khilafat-e-Rashida' etc and CDs containing 'Wasiyat' of Abdul Rasheed Ghazi, speeches and programs of 'Daaish' etc and speeches of 'Al- Qaida' containing hate material intending to distribute and show for stirring-up sectarianism so you have committed an offence punishable under Sec. 9 ATA 1997 and this offence is within the cognizance of this court.
Secondly; that on the said date, time and place you accused was found in possession of objectionable books titled ' Houslon Ki Jang', Jawahrat Farooqi' etc, foreign banned journals titled 'Nifaz Khilafat Rashida' etc and CDs containing 'Wassiat' of Abdul Rasheed Ghazi speeches and programs of 'Daaish' etc and speeches of 'Al-Qaida' containing hate material and projected defunct organization and their members as heroes for stirring-up sectarian hatred so you have committed an offence punishable section Sec. 11-W ATA 1997 and this offence is within the cognizance of this court"
The learned trial after evaluating the prosecution evidence acquitted the appellant from the second head of the charge under section 11-W ATA, 1997 as the prosecution witnesses have failed to prove that they had witnessed the appellant while projecting the written material of books and recording of CDs in their evidence. Likewise, no person appeared before the Investigating Officer who had witnessed the appellant while giving projection to any proscribed organization and its members by using said recovered material, and when accused is neither printer, author or publisher of said recovered books nor has prepared the said recovered CDs so ingredients of Section 11-W ATA, 1997 were not made out.
11. So far as the charge under the first head is concerned, we have observed that the appellant who used to teach Holy Quran to children in Masjid has been burdened with the liability of such allegations, which are horrifying as well as unfortunate. Is it only the blame-game or an incident worth believing. Mere heinousness or gravity for an offence means little in the eye of law, unless it is backed by cogent and believable evidence which, incidentally lacks in this case. Under the first head the charge against the appellant was that he was found in possession of objectionable books titled 'Housloon-ki-Jang', 'Jawahrat-e-Farooqi' etc, foreign banned journals titled 'Nifaze- Khilafat-e-Rashida' etc and CDs containing 'Wasiyat' of Abdul Rasheed Ghazi, speeches and programs of 'Daaish' etc and speeches of 'Al-Qaida' containing hate material intending to distribute and show for stirring-up sectarianism.
12. Keeping in view the allegations levelled against the appellant, section 8 (d) of Anti- Terrorism Act, 1997 would come into play which for the sake of ready reference is reproduced as under:- "8. Prohibition of acts intended or likely to stir up sectarian hatred.--A person who ---
(a) .
(b) .
(c) .
(d) has in his possession written material or a recording or visual images or sounds which are threatening, abusive or insulting with a view to their being displayed or published by himself or another, shall be guilty of an offence if:-
(i) he intends thereby to stir up sectarian hatred; or
(ii) having regard to all the circumstances, sectarian hatred is likely to be stirred up thereby.
13. From the perusal of above-said section, it is manifested that an essential ingredient of Section 8 (d) of ATA, 1997 is whether accused retained the said recovered books and CDS with a view to be displayed or published in public. Neither Raees Ahmad, S.I. (PW-3) complainant nor Iftikhar Ali, ASI (PW-2) witnessed the appellant while disseminating the contents of recovered books and showing the recovered CDs in public or children of Masjid. So far as the contention of learned DPG that seven books including 'Housloon-ki-Jang' (P3), 'Jawaharat-e-Farooq' (P4), 'Awaz-e- Qasimi' (P5), 'Khutbat-eNadeem' two journals titled 'Nidai-Haq and nifaz-e-Khilafat-eRashid'
(P6/1-2) and three CDs containing hate sectarian material comprising Wasiyat Abdul Rasheed Ghazi Laal Masjid' (P7), CD titled 'Speeches program Daish' (P8) and CD titled Speeches of Al- Qaida' (P9) have been recovered from the appellant is concerned, suffice it to say that the same is not sufficient to establish that the appellant had intention to display or publish the same in public as perusal of section 8 (d) of Act, 1997, clearly shows that mere possession of books, CDs, etc is not enough to constitute the offence but if the said material was being carried with intent to display or publish by the said persons or by any other person and thereby they intended to stir up sectarian hatred or which was likely to stir up sectarian hatred then only section 8 (d) of Act, 1997 would come into play.
14. Even otherwise, careful glance of this section reveals that a double intention has been provided in this offence to attract the ingredients or provisions. The first intention is that the person from whose possession the material is secured intended to display or published the same and secondly the said display and publication was made with intent to stir up sectarian hatred or which was likely to do so. In the present case the prosecution has only shown that a number of books, CDs, etc were secured but the required two intentions as provided under section 8 (d) of Act, 1997, have not been proved as no evidence has been led by the prosecution nor such inference can be drawn from the evidence brought on the record by the prosecution. Thus, the main ingredients of section 8 (d) of the Act, 1997 have not been proved in this case.
15. After perusal of statements of Ejaz Ahmad, ASI (PW-1), Iftikhar Ali, ASI (PW-2), Raees Ahmad, S.I.
(PW-3) and Imran Ahmad Siddiqi, Inspector (PW-4), glaring contradictions and dishonest improvements have been found in their statements. Ejaz Ahmad, ASI (PW-1) during the cross- examination clearly stated that the alleged CDS were not recovered in his presence from the appellant and those were not sealed when produced before him by SHO for checking. Similarly, Iftikhar Ali, ASI (PW-2) during the cross-examination admitted as under:- "Allegedly recovered book were lying in the Almirah of Masjid. I never offered any prayer in said Masjid, the alleged place of occurrence and had not witnessed Maulvi Naeem Rahimi performing 'Imamat' of any prayer in said Masjid. Masjid is accessible to every Muslim for offering prayer. I have not seen the books on opening the same however seen those from outside and the same were neither printed and published nor written by Maulvi Naeem Rahimi accused present in court.
It is correct that nothing was recovered from the house of accused. I had not witnessed accused reading the alleged recovered books or he read those over to any person and which placing those in Almirah of Masjid, volunteers he himself produced said books from Almirah. Neither any lumberdar, neighbourer of Masjid nor any private person appeared before complainant or IO in my presence claiming that he had witnessed accused placing the alleged recovered books in Almirah of Masjid nor read over those to any person and taught to any student. No person appeared before the IO or the complainant in my presence claiming that he had witnessed accused while giving projection to any proscribed organization and its members by using alleged recovered material.
No badge or membership card or any documents of any defunct organization was recovered from the possession of accused to establish the links of accused with any proscribed organization. I did not go through the contents of alleged recovered books.
Similar position is Raees Ahmad, S.I. (PW-3) who during the cross-examination also stated as under:- "No member of Administrative committee of Masjid appeared before him to make complaint against accused that he ever gave projection to member of defunct organization. No person from chak 30/BC appeared before me claiming that accused had any link with defunct organization.
Allegedly recovered books were lying in the Almirah of Masjid. I never offered any prayer or Juma prayer in said Masjid, the alleged place of occurrence and had not witnessed Maulvi Naeem Rahimi performing 'Imamat' of any prayer in said Masjid. Masjid is accessible to every Muslim for offering prayer. Accused is neither printer, publisher nor author of said alleged books. I have not annexed any notification issued by Government regarding declaring the alleged recovered books as banned and I also did not send those alleged books to Mutahidah Ulema Board for getting their verification whether those had any hate material or not. No person appeared before the I.O. or me claiming that he had witnessed the accused while giving projection to any proscribed organization and its members by suing alleged recovered material. No badge or membership card or any documents of any defunct organization was recovered from the possession of accused to establish the links of accused with any proscribed organization. I had not witnessed accused while purchasing or playing the alleged recovered CDs before public."
Statement of PW-4 Imran Ahmad Siddiqi, Inspector is also on the same lines.
16. In view of the foregoing discussion, we have arrived at the irresistible conclusion that the prosecution case is replete with major contradictions, infirmities and loopholes, the benefit of which should have been extended to the appellant by the learned trial court as there is no cavil to the proposition that the responsibility to prove its case squarely rests upon the shoulders of the prosecution that has not been discharged successfully in this case and it is also a settled law that benefit of each and every doubt is to be extended to the accused and that only a single reasonable doubt qua the guilt of the accused is sufficient to acquit him of the charge. Even as per saying of the Holy Prophet Hazrat Muhammad (?) "the mistake in releasing a criminal is better than punishing an innocent person". Same principle was also followed by the Hon'ble Supreme Court of Pakistan in the case of 'Ayub Masih v. the State' (PLD 2002 SC 1048), wherein, at page 1056, it was observed as under:- " 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.u.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 be acquitted rather than one innocent person be convicted."
Resultantly, we accept the instant appeal, set aside the impugned judgment of conviction and sentence, recorded by the learned trial Court and acquit the appellant of the charges levelled against him. He shall be set free forthwith if not required in any other case.