Sadaqat Ali Khan, J.--The instant Criminal appeal has been filed by Muhammad Yousaf and Muhammad Younas appellants against (their convictions), judgment dated 25.2.2017 passed by learned Special Judge Anti-Terrorism Court No. 1, Lahore according to which they were convicted and sentenced as under:- Muhammad Yousaf He was convicted under Section 5 of Explosive Substances Act 1908 and sentenced to ten years RI.
He was also convicted under Section 7-ff of ATA 1997 and sentenced to fourteen years R.I. Muhammad Younas He was convicted under Section 5 of Explosive Substances Act 1908 and sentenced to ten years R.I.
He was also convicted under Section 7-ff of ATA 1997 and sentenced to fourteen years R.I.
Both the sentences of the appellants were ordered to be run concurrently. Benefit of Section 382-B, Cr.P.C. was also extended to them by the learned trial Court in case FIR No. 04 dated 8.2.2016 under Sections 4/5 Explosive Substances Act, 1908, 11-F(2) & 7 of ATA, 1997 Police Station, CTD, Lahore.
2. The facts of the case have been stated by Ahmad Din S.I (complainant) PW-4 in his statement before the learned trial Court which is hereby reproduced for narration of the facts:-- On 8.2.2016, I was posted at Police Station CTD, Lahore. On the same day, 1 along with Mohammad Ramzan SI, Abid Hussain Corporal, Aftab Ahmad Corporal 1085, Mohammad Ishtiaq 750/Corporal, Mohammad Aleem 744/Corporal and Shahid Mehmood 1103/Corporal armed with SMG was present at Girja Chowk in police van driven by Mubeen Ali 332 Corporal in search of member of proscribed organization. Abdullah Javed corporal was present on motorcycle. At 3:45 P.M. I received information through spy informer that two persons who belong to Laskhar-e-Taiba are present in the street with explosive substance outside Madrasa Noor-ulHuda, Block No. 1 Sector A- 2, and could be arrested if they be raided upon. On this information, I constituted raiding party and reached at the place of occurrence and arrested two persons on the pointing of the informer. On enquiry they told their names as Qari Mohammad Yousaf and Mohammad Younas @ Sahi, who present in the Court. I searched Mohammad Yousaf accused and recovered explosive substance 450 grams P-1 non-electric detonator P2, one feet red coloured prima cord P3, dark green safety fuse P4 from a white coloured shopper and mobile Nokia P5 from right side pocket of his Kameez. I also searched Mohammad Younas and recovered 405 grams explosive substance P6, detonator P7, one feet red coloured prima cord P8 from a white shopper and Nokia mobile phone P9 from rights side pocket of his Kameez. Zaffar Iqbal Inspector Bomb Disposal Squad came at the p lace of occurrence on my intimation and declared the recovered substance as live. I separated 5-grams from each recovered explosive substance and 3-inch from each recovered prima cord and three inch safety fuse. I prepared sealed parcels of samples and recovered substance and took into possession through recovery memos. Ex,PB and Ex.PC, attested by Abid Hussain and Aftab Ahmad Corporals. I drafted complaint Ex.PD and sent the complaint by the hand of Abdullah Javed to Police Station. I was present when Ghulam Rasool Inspector along with one corporal came at the place of occurrence in police van. I -handed over the case property, recovery memos. and accused to Ghulam Rasool Inspector. I got inspected the place of occurrence to Ghulam Rasool Insoector.
3. After registration of the case, investigation started and on completion of the same report under Section 173, Cr.P.C. was submitted in the trial Court,
4. Learned trial Court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 28.3,2016 against the appellants to which they pleaded not guilty and prosecution evidence was summoned.
5. Prosecution produced Muhammad Bilal 905/Corporal PW-1, Saqib Saleem 193/Corporal PW-2, Muhammad Aram 201 Moharrar PW-3, Ahmad Din S.I (complainant) PW-4, Aftab Ahmad 1085/Corporal PW-5, Ghulam Rasool Inspector PW-6 whereas PWnamely Abid Hussain 734/C was given up by the prosecution being unnecessary and after tendering documentary evidence closed the prosecution evidence.
6. Statements of Muhammad Yousaf and Muhammad Younas appellants were recorded under Section 342, Cr.P.C, who refuted the allegations so leveled against them and the appellant Muhammad Younas opted to record his own statement under Section 340(2), Cr.P.C. whereas Muhammad Yousaf did not opt to record his own statement under Section 340(2), Cr.P.C. and produced (Ex.DA to Ex.DC) in documentary defence evidence. In. reply to question 'Why this case against you and why the PWs have deposed against you? the appellant Muhammad Yousaf replied as under:-- I am true Muslim. I have true belief in Almighty Allah and his prophet Hazrat Mohammad (PBUH). I have no nexus with any proscribed organization as admitted by the Investigating Officer as well as complainant before this Court. I was Imam Masjid of Masjid-e-Aqsa and taught Holy Quran to the children of Masjid as an employee. Neither I was office bearer nor member of executive/administration committee of the Madrissa/Masjid, I have two sons and three daughters. 1 have been residing on the 1st floor of the Masjid-e-Agra with my family. On 8.2.2016, after Asar Prayer when I was busy in teaching Holy Quran to the children of the Masjid, some unknown persons (later on known as Agency Officials) in civil dresses came there, The president of the Masjid/ Madrissa( co-accused) was also with them in custody. They visited and inspected the Masjid as well as Madrissa and checked the Holy Books. They inquired from me about one Mst, Bushra Cat Umme Haleema. I replied that I did not know about her. I further explained that I have no link/relation with Mst. Bushra Umme Haleema and have no concern with any appointment of any employee in the Madrissa/Masjid. Agency personals asked me to come with them for further interrogation and took me and my co-accused to some unknown place after snatching our mobile phones. When we were produced before the Court, it came to our knowledge that this false case has been registered against us. Nothing was recovered from me and my co-accused. All the recovery memos. as well as other documents have been prepared while sitting at Police Station by the police. The prosecution has failed to prove its case. I am innocent.
Likewise, in reply to question "Why this case against you and why the PWs .have deposed against you? the appellant Muhammad Younas replied as under:- One Khalid Habib Cheema had got registered case FIR No, 1197/15 at Police Station Town Ship, Lahore alleging that his wife Bushra Cheema Haleema along with his son Abdullah, Esa Cheema and,Ayesha Cheema were missing. Copy. of this FIR dated 14.9.2015 is submitted as Ex.DB. The local police after investigating sent the FIR to CTD by order dated 17.11.2015 for further investigation, One Nasir Cheema was married with my daughter Hafsa. For six months after registration of said FIR, CTD Officials had been coming to my house and inquiring from me as to the whereabouts of Khalid Habib Cheema and his wife. I had no information about them. CTD Police then threatened me that they would involve me in a false case in the manner my progeny would not forget. On 8.2.2016, I was called from my house and was arrested where after false recovery was foisted on me. The mosque from where my arrest was shown was sealed by CTD Police but during 2nd week of Ramzan, the Mohallandars filed a Writ Petition No, 21518/16. On 21.6.2016, Tahir Saddique DSP CTD, Lahore appeared before Hon'ble, Lahore High Court, Lahore with Mr. Adnan Tariq AG and submitted report prepared by SSP CTD, Lahore which showed that the gates of the mosque were never closed and that all the gates of the mosque were open and all the people of the area were allowed to offer their prayers, Certified copy of the order dated 21.8.2018 along with prayer made in the writ petition is submitted as Ex,DC, For my distant relation with nand Habib Cheema, I was falsely involved in this Me. The Whereabout of Khalid Habib Cheema, his wife and his children who are adolescent are not known till toady. In any case evidence of the prosecution is flawed through and through which exposes the falsity of the prosecution whole Me.
Appellant Muhammad Younas stated in his statement recorded under Section 340(2), Cr.P.C, as under:-- "On 8.2.2016, I received a call on my telephone from a private telephone number. The caller told me his name as Major Asif and asked to stay in Masjid Aqsa from 1.00 P.M to 4.00 P.M. I went to the mosque at 3.15 P.M and stayed in the mosque for half an hour. I was already called by ISI and Special Branch for ten times prior to 8.2.2016. Officers of ISI and Special Branch also visited my house prior to the above said date. One officer introduced himself as Malik Sahib and one as Sohail Sahib. Officers of ISI used to ask me to come in the mosque prior to 8.2.2016 for many times. Officers of ISI used to inquire from me about Haleema @ Bushra who is my remote relative due to marriage of my daughter, Hafsa Younas in Cheema Brothery. On 8.2.2016, at about 3.30 P.M. Major Asif asked me to come in the mosque. Some officers of CTD came to mosque when I was present in the mosque. They muffled my face and took me with them and produced me in the Court on the following day. I came to know in the Court that I and Mohammad Yousaf, my co-accused had been involved in this case. I am 63 years old. I have three daughters. I could not think to involve myself in such like brazenfaced act as alleged against me in this case. I have been involved falsely by the CTD Police after planting fake recovery of explosive material upon me. I can only read Holy Quran by sight. I am out rightly innocent. I have already tendered in my defence certified documents Ex.DA/1, Ex.DA/2, Ex.DA/3, Ex.DB and Ex.DC in my statements u/S.. 342, Cr.P.C. which may be considered as part of my statement and defence.
7. After conclusion of the trial, learned trial Court convicted the appellants with above stated sentences, Hence this appeal.
8. Learned counsel for the appellants has contended that:--
(i) the judgment of the trial Court dated 25,2.2017 is against law and facts on the file and is liable to be set-aside;
(ii) it is submitted that the story of the prosecution is improbable and not believable; (iii)it is further submitted that prosecution has failed to prove its case against the appellants beyond shadow of doubt and the learned trial Court wrongly convicted appellants in surmises and conjectures; 9, On the other hand, learned DPP while opposing the appeal has submitted that:
(i) prosecution has proved its case beyond any shadow of doubt against the appellants with solid evidence and prayed for the dismissal of the appeal.
10. We have heard the learned counsel for the appellants as well as learned DPP and perused the record.
(i) Recovery of explosive material weighing 450 grams P-1, non-electric detonator P-2, one foot red coloured prima cord P-3, dark green safety fuse P-4 and mobile Nokia P5 from Muhammad Yousaf appellant)
(ii) Recovery of explosive material-weighing 405 grams P-6, detonator P-7, one foot red coloured prima cord P-8, mobile Nokia P-9 from Muhammad Younas appellant)
11. Ahmad Din SI CTD PW-4 (complainant) on whose complaint (Ex.PD) FIR was registered stated in his statement (examination-in-chief) before the trial Court as under:- On 8.2.2016, I was posted at Police Station CTD, Lahore. On the same day, 1 along with Mohammad Ramzan SI, Abid Hussain Corporal, Aftab Ahmad Corporal 1085, Mohammad Ishtiaq 750/Corporal, Mohammad Aleem 744/Corporal and Shahid Mehmood 1103/Corporal armed with SMG was present at Girja Chowk in police van driven by Mubeen Ali 332 Corporal in search of member of proscribed organization. Abdullah Java) corporal was present on motorcycle. At 3:45 P.M. I received information through spy informer that two persons who belong to Laskhar-e-Taiba are present in the street with explosive substance outside Madrasa Noor-ulHuda, Block No, 1 Sector A-2, and could be arrested if they be raided upon. On this information, I constituted raiding party and reached at the place of occurrence and arrested two persons on the pointing of the informer. On enquiry they told their names as Qari Mohammad Yousaf and Mohammad Younas Cx Sahi, who present in the Court. I searched Mohammad Yousaf accused and recovered explosive substance 450 grams P-1 non-electric detonator P2, one feet red coloured prima cord P3, dark green safety fuse P4 from a white coloured shopper and mobile Nokia P5 from right side pocket of his Kameez. I also searched Mohammad Younas and recovered 405 grams explosive substance P6, detonator P7, one feet red coloured prima cord P8 from a white shopper and Nokia mobile phone P9 from right side pocket of his Kameez. Zaffar Iqbal Inspector Bomb Disposal Squad came at the place of occurrence on my intimation and declared the recovered substance as live. I separated 5-grams from each recovered explosive substance and 3-inch from each recovered prima cord and three inch safety fuse. I prepared sealed parcels of samples and recovered substance and took into possession through recovery memos. Ex.PB and Ex.PC, attested by Abid Hussain and Aftab Ahmad Corporals. I drafted complaint Ex.PD and sent the complaint by the hand of Abdullah Javed to Police Station. I was present when Ghulam Rasool Inspector along with one corporal came at the place of occurrence in police van. I handed over the case property, recovery memos. and accused to Ghulam Rasool Inspector. I got inspected the place of occurrence to Ghulam Rasool Inspector.
12.Aftab Ahmad 1085/Corporal (recovery witness) PW-5 has supported his evidence.
13.Muhammad Azam 201/Moharrar P.S CTD, Lahore PW-3 stated in his statement (examination- in-chief) that on 8.2.2016 Ghulam Rasool Inspector (PW-6) handed over to him five sealed parcels for safe custody and onward transmission to the office of Punjab Forensic Science Agency, Lahore.
On 11.2.2016 he handed over three sealed parcels including sealed parcel of mobile phone to Saqib Saleem PW-2 for onward transmission to the office of Punjab Forensic Science Agency, Lahore intact. Saqib Saleem PW-2 while supporting his evidence stated in his statement that he had deposited the same in the office of Punjab Forensic Science Agency, Lahore intact. Reports of Punjab Forensic Science Agency Ex.PF and Ex.PG in this respect are positive.
14. All the above mentioned witnesses have absolutely no grudge or to falsely implicate the appellants in the present case. They were cross-examined at length but their evidence could not be shaken during the process of cross-examination. They corroborated one another on all material aspects of the case. Their evidence is straight forward, trustworthy and confidence inspiring.
15. Adverting to the defence plea of the appellant Muhammad Yousaf, he stated in answer to question "why this case against you and why the PWs made statements to involve you?" as under: I am true Muslim. I have true belief in Almighty Allah and his prophet Hazrat Mohammad (PBUH). I have no nexus with any proscribed organization as admitted by the Investigating Officer as well as complainant before this Court. I was Imam Masjid of Masjid-e-Aqsa and taught Holy Quran to the children of Masjid as an employee. Neither I was office bearer nor member of executive/administration committee of the Madrissa/Masjid. I have two sons and three daughters. I have been residing on the 1st floor of the Masjid-e-Aqsa with my family. On 8.2.2016, after Asar Prayer when I was busy in teaching Holy Quran to the children of the Masjid, some unknown persons (later on known as Agency Officials) in civil dresses came there. The president of the Masjid/Madrissa( co-accused) was also with them in custody. They visited and inspected the Masjid as well as Madrissa and checked the Holy Books. They inquired from me about one Mst.
Bushra (a. Umme Haleema. I replied that I did not know about her. I further explained that I have no link/relation with Mst. Bushra (a Umme Haleema and have no concern with any appointment of any employee in the Madrissa/Masjid. Agency personals asked me to come with them for further interrogation and took me and my co-accused to some unknown place after snatching our mobile phones. When we were produced before the Court, it came to our knowledge that this false case has been registered against us. Nothing was recovered from me and my co-accused. All the recovery memos. as well as other documents have been prepared while sitting at Police Station by the police. The prosecution has failed to prove its case. I am innocent.
Likewise, in answer to question "why this case against you and why the PWs made statements to involve you?" the appellant Muhammad Younas replied as under:-- One Khalid Habib Cheema had got registered case FIR No, 1197/15 at Police Station Town Ship, Lahore alleging that his wife Bushra Cheema @ Haleema along with his son Abdullah, Esa Cheema and Ayesha Cheema were missing. Copy of this FIR dated 14.9.2015 is submitted as Ex.DB. The local police after investigating sent the FIR to CTD by order dated 17.11.2015 for further investigation. One Nasir Cheema was married with my daughter Hafsa. For six months after registration of said FIR, CTD Officials had been coming to my house and inquiring from me as to the whereabouts of Khalid I labib Cheema and his wife. I had no information about them. CTD Police then threatened me that they would involve me in a false case in the manner my progeny would not forget. On 8.2.2016, I was called from my house and was arrested where after false recovery was foisted on me. The mosque from where my arrest was shown was sealed by CTD Police but during 2nd week of Ramzan, the Mohallandars filed a Writ Petition No, 21518/16. On 21.6.2016, Tahir Saddique DSP CTD, Lahore appeared before Hon'ble, Lahore High Court, Lahore with Mr. Adrian Tariq AG and submitted report prepared by SSP CTD, Lahore which showed that the gates of the mosque were never closed and that all the gates of the mosque were open and all the people of the area were allowed to offer their prayers. Certified copy of the order dated 21.6.2016 along with prayer made in the writ petition is submitted as Ex.DC. For my distant relation with Khalid Habib Cheema, I was falsely involved in this case. The whereabouts of Khalid Habib Cheema. his wife and his children who are adolescent are not known till toady. In any case evidence of the prosecution is flawed through and through which exposes the falsity of the prosecution whole case.
The appellant Muhammad Younas has opted to appeal as a witness under Section 340(2), Cr.P.C. and stated as under: "On 8.2.2016, I received a call on my telephone from a private telephone number. The caller told me his name as Major Asif and asked to stay in Masjid Aqsa from 1.00 P.M, to 4.00 P.M. I went to the mosque at 3,15 P.M and stayed in the mosque for half an hour. I was already called by ISI and Special Branch for ten times prior to 8.2.2016. Officers of ISI and Special Branch also visited my house prior to the above said date. One officer introduced himself as Malik Sahib and one as Sohail Sahib. Officers of ISI used to ask me to come in the mosque prior to 8.2.2016 for many times. Officers of ISI used to inquire from me about Haleema @ Bushra who is my remote relative due to marriage of my daughter, Hafsa Younas in Cheema Brothery. On 8.2.2016, at about 3.30 P.M. Major Asif asked me to come in the mosque. Some officers of CTD came to mosque when I was present in the mosque. They muffled my face and took me with them and produced me in the Court on the following day. I came to know in the Court that I and Mohammad Yousaf, my co-accused had been involved in this case. I am 63 years old. I have three daughters. I could not think to involve myself in such like brazenfaced act as alleged against me in this case. I have been involved falsely by the CTD Police after planting fake recovery of explosive material upon me. I can only read Holy Quran by sight. I am out rightly innocent. I have already tendered in my defence certified documents Ex.DA/1, Ex.DA/2, Ex.DA/3, Ex.DB and Ex.DC in my statements u/S. 342, Cr.P.C. which may be considered as part of my statement and defence.
Whereas the appellant Muhammad Yousaf has not opted to appear as a witness under Section 340(2), Cr.P.C. and produced (Ex. DA to Ex.DC) in documentary defence evidence. Considering above, it is concluded that appellants have failed to prove their defence plea and learned trial Court has rightly discarded their defence plea with sufficient reasons.
16. In view of the above discussion, we are of the view that prosecution has proved its case beyond shadow of doubt against the appellants (Muhammad Yousaf and Muhammad Younas) who have rightly been convicted and sentenced by the trial Court which are maintained. Resultantly, this criminal appeal has no merits and is dismissed.