SYED SHAHBAZ ALI RIZVI, J.---Through this Criminal Appeal filed under section 25 of Anti-Terrorism Act, 1997, Qari Ahmad Yousif (appellant) has assailed judgment dated 15.05.2015 passed by learned Judge, Anti Terrorism Court No.III, Lahore, in case FIR No.129 dated 16.02.2015, offence under Section 11-W of Anti-Terrorism Act, 1997, registered at Police Station City Depalpur, District Okara whereby, he (appellant) was convicted under section 11-W of the Act ibid and sentenced to rigorous imprisonment for five years with fine of Rs.50,000/- and in default thereof, to undergo simple imprisonment for six months and the fine would be recovered as arrears of land revenue.
The appellant was extended the benefit of section 382-B of Code of Criminal Procedure, 1898.
However, through the same judgment, the learned trial Court acquitted Muhammad Yahya (co- accused) of the charge while giving him the benefit of doubt.
2. Brief facts of the case is disclosed by Muhammad Afzal Gill, S.I./complainant (PW-4) in his application (Exh.PA), on the basis of which FIR (Exh.PA/1) was registered, are that on 16.02.2015 at 06:35 p.m., the complainant along with Ghulam Abbas, 447/C, Muhammad Khalid, I163-C, Muhammad Shaban 467-C (PW-3), Makhdoom Hussain, 1236-C and Muhammad Imran, driver on official vehicle was on patrolling duty and was present near THQ Hospital, Depalpur where he received a spy information that two persons were distributing pamphlets containing material of religious hate at Rizvi Chowk. The complainant along with the said police officials reached there and saw that a person was distributing the pamphlets among the people whose name was disclosed as Qari Muhammad Yousif later on. The other person was having pamphlets in his possession whose name was disclosed as Muhammad Yahya. The police officials arrested them and recovered pamphlets from them wherein material of religious hatred was written.
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 and his co-accused Muhammad Yahya (since acquitted) to which they pleaded not guilty and claimed to be tried.
4. In order to prove its case against the appellant and his co-accused (since acquitted), the prosecution produced, in all, four witnesses i.e. Sajjad Ahmad ASI (PW-1), Muhammad Aslam, Inspector (PW-2), Muhammad Shaban 417-C (PW-3) and Afzal Gill S.I./complainant (PW-4). While giving up Muhammad Khalid PW being un-necessary, the prosecution closed its evidence.
5. 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 as to "Why this case against you and why the PWs have deposed against you?", the appellant replied as under:- "The case is an outcome of present crack down by the police on the direction of police high ups and agencies. Nothing is recovered from my possession. It is pertinent to mention here that the prosecution has badly failed to connect the alleged recovery from me as no print material, equipment or any other thing was recovered from me during investigation. It is also worth mentioning here that none has appeared as witness whose religious feelings were hurt. Police involved me in this false case to show the efficiency before their high ups. During investigation I was found not connected with any proscribed organization."
6. The appellant did not opt to make statement on oath as his own witness in disproof of the allegation levelled against him as provided under Section 340(2) of the Code of Criminal Procedure, 1898. However, he produced attested copy of bail order dated 11.03.2015 (Exh.DC) in his defence.
7. After conclusion of trial, the appellant was convicted and sentenced as mentioned above by the learned trial Court; hence the instant appeal.
8. Learned counsel for the appellant contends that the appellant has falsely been implicated in this case; that there are glaring contradictions and dishonest improvements in the statements of the prosecution witnesses; that no private witness was either associated with the investigation or produced before the learned trial court; that the prosecution remained fail to establish affiliation of the appellant with any banned organization; that Muhammad Yahya, co-accused of the appellant has been acquitted by the learned trial court by discrediting same set of evidence; 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 and that number of the pamphlets allegedly recovered at the instance of the appellant has not been given by the prosecution. Lastly prays that this appeal may be accepted and the appellant may be acquitted of the charge.
9. Conversely, learned Deputy Prosecutor General vehemently opposes the contentions raised by learned counsel for the appellant and maintains that there are no contradictions or improvements in the statements of prosecution witnesses; that the appellant and Muhammad Yahya, co- accused (since acquitted) were caught red handed at the spot while-distributing the objectionable and forbidden pamphlets; 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 a reasonable doubt, against the appellant and finally submits that the appeal in hand may be dismissed, being devoid of merits.
10. We have heard the learned counsel for the appellant, learned Deputy Prosecutor General and gone through the record with their able assistance.
11. It has been observed that any witness from the public who was delivered the pamphlet allegedly held by the appellant and his co-accused Muhammad Yahya (since acquitted) could neither be associated with the investigation nor produced before the learned trial court which was required to prove the alleged offence of disseminating, inciting religious, sectarian or ethnic hatred, punishable under section 11-W of Anti-Terrorism Act, 1997. Afzal Gill, S.I. (PW-4), the Investigation Officer of the case, during his cross-examination candidly admitted that he did not record statement of any private person at the place of occurrence whO had received the alleged pamphlet from the accused. He also affirmed the suggestion that no private witness was cited as witness in this case.
Even per prosecution case no pamphlet from any person delivered by the appellant and his co- accused (since acquitted) could be recovered during the investigation. Muhammad Aslam, Inspector, who is the Investigation Officer of this case appeared as PW-2 and during cross- examination he admits that during investigation no proof of involvement of the accused with any proscribed organization was found and name of the accused was not placed in the 4th Schedule of Anti-Terrorism Act, 1997. We have also noticed that during the investigation and the physical custody of the appellant and his co-accused (since acquitted) with the investigation agency no source of publication of the alleged recovered pamphlets P1/1-5 and P2/1-4 could be dug out. No disclosure qua the source from where the appellant obtained the pamphlets (P.1/1-5 and P.2/1-4), inciting material, could be obtained. In this eventuality, the culpability of the appellant under section 11-W of Anti-Terrorism Act, 1997, remains unwarranted as the necessary ingredients to constitute the mentioned offence are missing. Moreover, while disbelieving the same evidence against the co-accused Muhammad Yahya, the learned trial court acquitted him of the same charge and without any strong, plausible and independent corroboration to the evidence furnished by PW-3 Muhammad Shaban 417/C and PW-4 Afzal Gill, S.I., conviction of the appellant awarded by the learned trial court cannot be upheld. It would be pertinent to mention here that the prosecution did not even prefer any appeal against the acquittal of the co-accused Muhammad Yahya as admitted by the learned Deputy Prosecutor General during the arguments. We have also noticed that no previous criminal record of such like cases has been put to the appellant during his statement recorded under section 342 of Code of Criminal Procedure, 1898 nor any such record has been got proved in evidence by the prosecution.
12. All discussed above leads us to an irresistible-conclusion that the prosecution remained fail to prove its case against the appellant, beyond the shadow of any reasonable doubt while 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 (p.b.u.h.), 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 (PLO 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"..."
Hence, we accept Criminal Appeal No.986 of 2015, set aside the conviction and sentence recorded by the learned trial court and acquit Qari Ahmad Yousif, appellant, of the charge levelled against him, by extending the benefit of doubt. He is in custody, be released forthwith if not required in any other case.