' ABDUL SAMI KHAN, J.---Through this criminal appeal under Section 25 of the Anti-Terrorism Act, 1997, Shahid Maqbool, Muhammad Riaz, Abdul Ghaffar and Akhtar Hussain Moavia appellants have challenged the conviction and sentences awarded to them by the learned Judge Anti-Terrorism Court-II, Lahore in case F.I.R. No, 31/2015, dated 15.07.2015 for the offences under Sections 11-N, 11-F(2) & 11-G(2) of the Anti-Terrorism Act, 1997, registered at Police Station CTD, Lahore, vide judgment dated 18.11.2015, the same are reproduced as under- Each of the appellants is convicted under Section 11-G(2) of Anti-Terrorism Act, 1997 and sentenced to rigorous imprisonment for 03 years with fine of Rs, 10,000/- in default whereof each accused shall further undergo simple imprisonment for two months.
Each one of the appellants is also convicted under Section 11-N of Anti-Terrorism Act, 1997 and sentenced to imprisonment for 05 years with fine of Rs, 25,000/- and in default whereof each accused further undergo simple imprisonment for four months. The appellants are given the benefit of Section 382-B of Cr.P.C.
2. Brief facts of the to F.I.R. (Ex.PF) are that on 15.07.2015 after Zohar prayer, Ahmad Din, SI CTD Lahore along with Muhammad Ramazan, SI, Muhammad Ameen AS1, Najam-ud-Din 71/HC, Abid 8396/HC was present near Al-Jannat Marriage Mall, Town Ship Lahore in connection with search and verification of members of proscribed organizations. He received information through sources that some members of the proscribed organization namely Jaish-e-Muhammad were collecting funds in the name of AI-Rahmat Trust outside the mosque Rabi-ul-Quran by holding flag and if a raid be conducted, they can be apprehended. On this information, he reached towards mosque Rabi-ul- Quran Jamal Chowk Township, Lahore and found all the four appellants standing outside the said mosque and they were collecting funds for their organization by holding the flag of proscribed organization Jaish Muhammad who were apprehend with the help of other officials and they told their names as Shahid Maqbool son of Maqbool Ahmad, Muhammad Riaz son of Muhammad Sharif, Abdul Ghaffar son of Sher Shah and Akhtar Hussain Moavia son of Khadam Hussain. Upon the search of Shahid Maqbool, flag bearing words Al-Jihad P.1 was recovered and from his right pocket membership receipt P.2, receipt book regarding collection of funds containing blank receipts P.3 and net cash amounting Rs, 8478/- P.4 were recovered which were taken into possession vide memo. Ex.PB. Upon the search of Muhammad Riaz, receipts book containing three counterfoils and remaining blank receipts P.5 and amount of Rs, 21500/- P.6, membership receipt P.7 were recovered which were taken into possession vide recovery memo. Ex.PC. Upon personal search of Abdul Ghaffar, receipt book containing three counterfoils and remaining blank receipts P.8, amount of Rs, 9150/- P.9 and membership receipt P. 10 were recovered which were taken into possession vide memo. Ex.PD. Upon personal search of Akhtar Hussain Moavia, receipts books for collecting funds containing four counterfoils and remaining blank receipts P.11 and other receipt book P. 12, amount of Rs, 14725/- P.13, membership receipt P.14 were recovered which were taken into possession vide memo. Ex.PD. The complainant drafted the complaint Ex.PF and sent the same to police station for registration of FIR, hence, this case.
3. After registration of FIR, the investigation of the case was conducted by Shaukat Ali, Inspector (PW-5). After completion of the investigation, the report under Section 173, Cr.P.C. Was submitted in the learned Trial Court. At the commencement of trial, after observing legal formalities, learned Trial Court framed charge against the appellants, to which they pleaded not guilty and claimed trial. To prove its case, the prosecution produced as many as five witnesses during trial before the learned Trial Court. Lmran Sohail 218/Corporal (PW-1) drafted the formal F.I.R. Ex.PA, Ahmad Din, SI (PW-2) is complainant of the case, Muhammad Ameen, ASI (PW-3) and Muhammad Ramzan, SI (PW-4) are eye-witnesses.
4. After completion of the prosecution evidence, the statements under Section 342, Cr.P.C. Of the appellants were recorded by the learned Trial Court. They professed innocence and pleaded false implication in the case. They did not opt to get record their statements under Section 340(2), Cr.P.C.
However they produced defence evidence and produced Inayat Ullah as DW.1 and Muhammad Sajid Rafiq as DW.2 and closed the defence evidence.
5. At the end of trial, after thrashing entire evidence and evaluating arguments advanced by learned counsel for the parties in support of their respective versions, the learned Trial Court found the prosecution's case against the appellants to have been proved beyond reasonable doubt, convicted and sentenced them as mentioned and detailed in paragraph No, 1 above. Hence, the instant appeal before this Court.
6. Learned Counsel for the appellants contends that the prosecution has miserably failed to prove the guilt of the appellants to the hilt and impugned judgment dated 18.11.2015 is liable to be set aside whereas the appellants are liable to be acquitted of the charge. On the other hand, learned Deputy Prosecutor General contends that the prosecution has proved the case against the appellants beyond any shadow of reasonable doubt so the impugned judgment does not warrant any interference by this Court.
7. After hearing the arguments of learned counsel for the parties and examining the record with their able assistance, it has been observed by us that any witness from the public who has given the funds after taking the receipts from the appellants could neither be associated with the investigation nor produced before the learned Trial Court which was required to prove the alleged offence of fund raising, invites another to provide money or other property and intends that it should be used, or has reasonable cause to suspect that it may be used for the purpose of terrorism punishable under Section 11-N of Anti-Terrorism Act, 1997.
' Ahmed Din, S.I. (PW-2), the complainant of case, during his cross-examination candidly admitted that he did not witness any of the accused filling the receipts and issuing the same. No pen/ballpoint was recovered from any of the accused. He further admitted that alleged membership receipts book P.2 does not bear signature of any authority who issued the same and the remaining membership books alleged to have been recovered from the remaining accused are also of the same ad. Muhammad Ameen, ASI (PW-3) also admitted that he did not witness any of the accused issuing the receipts t6 the members of society and no pen/ballpoint was recovered from any of the accused at the time of arrest. He further admitted that so many persons had gathered at the time of arrest of the accused but he had not witnessed one of them giving funds to the accused. Shaukat Ali, Inspector Investigating Officer (PW-5) admitted in cross extermination that he had not seen the counter foils of the receipts and he was not handed over any pen/pencil used for the issuance of receipts by the accused. Shaukat Ali Inspector/1.0. (PW-5) further admitted he did not collect any document suggesting that AI-Rehmat Trust is a banned organization. He further admitted that he had not seen any document issued by any of the governments declaring Al Rehmat Trust as banned organization. We have also noticed that during the investigation and physical custody of the appellants with the investigation agency no source of printing of receipts could be dug out. No disclosure qua the source from where the appellants obtained receipts could be obtained. In this eventuality, the culpability of the appellants under Section 11-N of Anti- Terrorism Act, 1997, remains unwarranted as the necessary ingredients to constitute the mentioned offence are missing. So far as regarding the recovery of flag to constitute offence under Section. 11- G of Anti-Terrorism Act, 1997 is concerned, it is the case of the prosecution that the appellants were holding flag of proscribed organization but during trial the prosecution failed to prove raising of the flag as the wooden rod to be used to raise flag was not recovered from the appellants. Ahmad Din, SI/Complainant (PW-2) admitted that the flag P.1 does not bear the name of Jaish-e-Muhammad, Al-Rehmat trust or of any other organization whereas PW.3 Muhammad Ameen, ASI admitted the said flag was bearing AI-Rehmat Trust. PW.2 Ahmad Din, SI/complainant further admitted that the wooden rod to be used to raise flag was not recovered from the accused. He further admitted that the flag is alleged to have been recovered without wooden rod. Shaukat Ali Inspector Investigating Officer (PW-5) admitted that he had not seen the flag and no recovery of rod is shown to have effected from the possession accused, therefore, the culpability of the appellant sale Section 11-G of Anti-Terrorism Act, 1997, also remains unwarranted as the necessary ingredients to constitute the mentioned offence are missing. We have also noticed that private witnesses regarding arrest and recovery have not been produced during investigation/trial. No previous criminal record of the appellants is available on file and no previous criminal record of such-like cases has been put to the appellants during their statements recorded under Section 342 of Code of Criminal Procedure, 1898 nor any such record has been produced before learned Trial Court during evidence.
8. All discussed above leads us to an irresistible conclusion that the prosecution remained fail to prove its case against the appellants, 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 c)f the accused is sufficient to acquit them 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 (PL1) 2002 SC 1048), wherein, at page 1056, it was observed as under:- "....Lt 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 he acquitted rather than one innocent person be convicted""
' Hence, we accept Criminal Appeal No, 2338 of 2015, set aside the conviction and sentence recorded by the learned Trial Court and acquit Shahid Maqbool, Muhammad Riaz, Abdul Ghaffar and Akhtar Hussain Moavia appellants, of the charge leveled against them, by extending the benefit of doubt. They are in custody, be released forth with if not required in any other case.