Asjad Javaid Ghural, J.--Through this appeal under Section 25 of the Anti-Terrorism Act, 1997 appellant Mujahid Islam has challenged the vires of judgement dated 29.05.2017 passed by the learned Judge, Anti-Terrorism Court, Sahiwal in case FIR No, 133 dated 07.03.2015, in respect of offences under Sections 124-A & 131, PPC read with Sections 11-W of the Anti-Terrorism Act, 1997, & Section 16(1) (i), (2) of the Protection of Pakistan Act, 2014 registered at Police Station Fateh Sher, District Sahiwal whereby he was convicted and sentenced as under:-- Under Section 124-A, PPC Imprisonment for three years with fine of Rs. 2,00,000/- and in default thereof to further undergo simple imprisonment for six months.
Under Section 11-W(D) of the Anti-Terrorism Act, 1997 Rigorous imprisonment for four years with fine of Rs. 2,00,000/- and in default thereof to further undergo simple imprisonment for six months.
All the-aforesaid sentences were directed to run concurrently. He was given the benefit of Section 382-B, Cr.P.C.
2. The aforesaid case FIR (Exh.PA/1) was registered against appellant Mujahid Islam on the complaint (Exh.P.A) of Muhammad Saee, Sub-Inspector (PW--7), stating that on 07.03.2015 he along with other police contingents was present at Mazdoor Puli, Sahiwal on official vehicle No, 8402-SLK on surveillance duty. He received tip-off that on Mujahid Islam, a member of banned organization was delivering speech to the people at "Dawood Chowk" in order to activate the banned organization by displaying the video of "Usama Bin Ladin" and "Alqaida Organization". Upon this information, he had constituted a raiding team, conducted raid and arrested Mujahid Islam (appellant), who was an active member of banned organization "Lashkar-e-Tayaba". He was instigating three boys by delivering the lecture/speech to reorganize his banned organization. On seeing the police party, the boys succeeded to flee away Whereas the appellant was apprehended at some distance. He was holding a file of ten booklets (P-1/1-10) containing anti-State material, a receipt book (P-8) in his right pocket along with 2-CDs (P-2/i-2). A purse recovered from his front pocket was containing I.D. card (P-5), driving license (P-6) keys (P-7/1-3) and an amount of Rs.
3,500/- (P-3/1-3) to (P-4) in cash, which were taken into possession through recovery memo.
Exh.PB. Khizar Hayat No, 448/HC (PW--5) and Shehbaz Ahmad No, 713/C, being member of the raiding party, had signed the recovery memo. of aforesaid recovered articles. He also drafted the complaint Ex.PA. Thereafter the Station House Officer reached at the place . of occurrence.
Muhammad Saeed, SI (PW-7) handed over the aforesaid case property to the Station House Officer.
3. Asif Ali, Inspector (PW-9) visited the place of occurrence on the same day, prepared recovery memo. (Ex.PG) with regard to the anti-state literature, prepared rough sketch of the place of occurrence (Ex.PH) and produced the appellant before the Court. On 11.03.2015, Joint Investigation Team was constituted consisting of Shazia Sarwar ASP/SDPO, Inspector of CTD headed by District Police Officer, Sahiwal and himself (Asif Ali, Inspector), On 25.03.2015, the members of the JIT had taken into possession CDs vide recovery memo. Ex.PJ. During investigation, the appellant led to the recovery of five books (P9/1-5) vide recovery memo. (Ex.PC). On 25.04.2015 Shahid Nazeer Jutt produced two books (P-10/1-2) and literature (P-11/1-40), which were secured vide recovery memo.
Ex.PD. He collected the call date of cell phone No, 0300-9693572 and took the same into possession vide recovery memo. (Ex.PF). He got sanction of prosecution from the Provincial Government and got verified the license of the appellant. He submitted an application to the learned Additional Sessions Judge, Sahiwal for obtaining the bank accounts of the appellant. On 04.11.2015 he got translated the CD from Noor Ullah being Pashto speaking. He recorded the statements of witnesses under Section 161, Cr.P.C. and prepared report under Section 173, Cr.P.C.
Abdul Latif, DSP, being member of the Joint Investigation Team, conducted investigation wherein on 16.05.2015 the appellant led to the recovery of literature, which was taken into possession vide recovery memo. Ex.PC. On 25.04.2015 he recorded the statements of witnesses to whom the appellant had provided literature vide recovery memo. (Ex.PD).
4. At the commencement of the trial, the prosecution had produced ten witnesses, besides notification dated 15.01.2009 (Ex.PI), notification for recommending the appellant in 4th schedule (Exh.PJ), notification of banned organization Lashker-e-Tayba and Tehreek-e-Talban Pakistan (Exh.PK), and order of the Government of the Punjab dated 23.11.2015 under Section 196, Cr.P.C. for sanction of prosecution (Exh.PL).
5. The appellant in his statement recorded under Section 342, Cr.P.C. had denied and controverted the allegations levelled against him. He did not opt to appear under Section 340(2), Cr.P.C., however he had produced documents (Exh.DA to Exh.DD) in his defence. Learned trial Court, upon conclusion of the trial, had convicted and sentenced the appellant supra, hence this criminal appeal.
6. Learned counsel for the appellant submits that the appellant is quite innocent and has been falsely implicated in the alleged occurrence; that nothing has been proved during trial with respect Jo the offence under which he has been convicted and sentenced by the learned trial Court; that the ingredients of offences under Sections 124-A, PPC & 11-W(ii) of the Anti-Terrorism Act, 1997 do not attract to the facts and circumstances of this case in any capacity whatsoever; that no evidence is available on record to show that the appellant had any link with any proscribed organization; likewise no material could be collected showing the appellant had been collecting funds for the banned organization or place his name in 4th schedule of the Anti-Terrorism Act, 1997 by the Ministry of Interior, Government of Pakistan; that the appellant filed a Constitutional petition for deletion of his name from the 4th schedule of the Act ibid upon which Learned Officer placed on record the photocopy of a notification showing that the appellant's name was deleted from the 4th schedule; that the recovery of anti-state material from the appellant i,e, booklet, CDs, and other literature had been planted against him just to connect him with the alleged crime; that the prosecution has miserably failed to prove the charge against the appellant beyond reasonable doubt by producing cogent and confidence inspiring evidence and the benefit of doubt, even slightest, is always extended in favour of the accused; that the impugned judgment of conviction against the appellant suffers from misreading and non-reading of the evidence available on record, which warrants interference by this Court. At the end, a prayer for the appellant's acquittal has been made.
7. Conversely, learned Deputy Prosecutor General appearing for the State has controverted the arguments advanced by the learned counsel for the appellant while submitting that the appellant was arrested red-handed at the spot by the raiding party when he was busy in brain washing of three young lads; that sufficient material was recovered from the possession of the appellant at the time of his arrest and some other material was also taken into possession by the Investigation Officer during investigation at his disclosure; that the literature recovered from the appellant was banned in Pakistan as it was creating religious differences, anti-State activities, antidemocracy, so-called Jihad and declared other schools of thought to be non-Muslims, etc.; that no enmity was existed between any of the witnesses against the appellant to falsely implicate him in the alleged occurrence; that the prosecution has successfully proved the charge against the appellant through cogent, reliable and confidence inspiring evidence; that the learned , trial Court. has well- appraised the evidence available on record. He has prayed for dismissal of the appeal.
8. We have heard learned counsel for the appellant, learned Deputy Prosecutor General appearing for the State and have perused the record with their able assistance.
9. The mainstay of the prosecution case is upon the testimony of Salah-ud-Din (PW-1), Usama Saeed (PW-2), Muhammad Saee (PW3), Khizer Ilayat 884/HC (PW-5), and Muhammad Saee Sub- Inspector (PW-7). The main allegation against the appellant was that he had been arranging weekly speech to the people for the purpose of brainwashing the young-lads for creating hatred against the State, democracy, and differences amongst the different Islamic schools of thought and in this regard related materials had been taken into possession at his disclosure. The said material has been produced before the Court, which sufficiently connected the appellant with the alleged occurrence.
Salah-ud-Din (PW-1), had deposed before the learned trial-Court that he had some relation with the appellant Mujahid Islam for the last about two years in connection with religious teachings. This fact was disclosed to him by his friend Shahid Nazir Jutt, regarding arrangement of "Daras" at the house of Mujahid Islam, he remained attending the aforesaid "Daras" not only he but also Shahid Nazir Jutt, Hafiz Umer, Hafiz Usama and others had been attending the aforesaid "Daras". The appellant had delivered speeches on the topic of "Taghoot Ki Tareef", Nawaqiz-i-Islam, besides the speech on "Toheed ka Daras", Parliament had taken the power of legislation in its hands although this authority exclusively vests with Almighty Allah, all these doings the violation of mandate of Islam hence, this legislation is "Taghoot" violation of injunction of Islam and believing in "Shirk" and believing in "Jado" are against the teaching of Islam and a person, who helps . the non-Muslims instead of Muslims would be termed as "Taqhoot" and "Nawaqiz-e-Islam hence, becomes "Kafir" and as such would be liable to be killed. During the period, he remained associated with the aforesaid "Daras" and the material/literature collected from the appellant Mujahid Islam, which he had handed over to the police. Some days prior to his deposition, he had heard that Hafiz Muhammad Usama was sent by the appellant to Shumali Waziristan for the purpose to get the training of "Jihad" upon which a quarrel took place between the appellant and other family members of Hafiz Muhammad Usama. He had explained in his cross-examination that "Mujahid Islam even today has claimed that he is only a Muslim and nothing else" Usama Saeed (PW-2) had deposed that he was a friend of appellant Mujahid Islam and on his asking he went to Bannu and contacted a person through telephone about whom the appellant had referred him, who came there at motorcycle and the witnesses had accompanied him. He stayed there for three days thereafter, the host said to him to go back to his parents. Muhammad Saeed (PW-3) had deposed that his son Usama Saeed remained associated with "Daras" for the last 3/4 years delivered by Mujahid Islam. Once Usama Saeed disappeared from the house and the appellant told him that he had send him elsewhere and he will return soon. After 2/3 days, he came back and upon query Usama Saeed told him that he was sent by the appellant to Bannu where there, was a militant camp near District Banu.
The testimony of aforesaid witnesses indicate that the appellant was found preaching three boys for Jihad and he was apprehended at the spot. It is important to mention here that none from the three young lads could be arrested to verify the factum of proselytization through some independent source. However, all the claimed eye-witnesses being members of the raiding party, remained consistent on the point that at the time of raid the appellant was arrested and different book-lets containing hate material including CDs, etc. were recovered from his possession. The testimony of the said eye-witnesses is quite natural and straight forward but they had not stated even a single word with any degree of certainty that the appellant was belonging to any specific banned organization. Usama Saeed (PW-2) had stated that he,went to Bannu of his own on referring a person by the appellant and after three days he returned to home. Muhammad Saeed (PW-3), father of Usama Saeed verified that his son was missing for last about 2/3 days and then he returned of his own. Nothing could be alleged by any of the witnesses that the appellant had been indulged in any anti-State activity or any act of sedition as envisaged under Section 124-A, PPC.
10. Muhammad Saee Sub-Inspector (PW-7) had deposed before the learned trial Court that on 07.03.2015 he constituted a team on a tip of and conducted raid, arrested appellant Mujahid Islam, a member of banned organization of "Lashkar-e-Tayaba", he was found organizing people by delivering lectures/speech. On seeing the police party, there young-lads fled away whereas the appellant was apprehended at some distance, ten book-lets (P-1/1-10) containing anti-state material, a receipt book (P-8), two CDs (P-2/1-2), I.D. Card (P-5), driving license (P-6) keys (P-7/1- 3), cash of Rs, 3,500/- (P-3/1-3 to P-4) were recovered from his possession, which were taken into possession through recovery memo. Exh.PB. Khizar Hayat 448/HC (PW-5) along with Shehbaz Ahmad 713/C, being member of raiding party, had signed the recovery memo. of aforesaid recovered articles. He had deposed before the learned trial Court and supplemented the complainant on each and every limb of the evidence. Abdul Latif, DSP (PW-8), was member of the Joint Investigation Team. He deposed that during investigation on 16.05.2015, the appellant led to the recovery of literature from his house. On 25.04.2015 during investigation conducted by Asif Ali, Inspector (PW-9), the appellant led the police party to the recovery of five books from his house.
Shahid Nazir Jutt had produced two books of literature on behalf of the appellant, which were taken into possession by the Investigating Officer. The nutshell of recovery of hate material from the appellant's possession and disclosure was:--
1. Two CDs, (P2/1-2)
2. Five book-lets (P-9/1-5)
3. Another booklet (P40/1-2)
4. Literature 40-pages (P-11/1-40)
The said recovery of hate material concerning religious differences amongst different Muslim Schools of thought, against the concept of democracy, the people who helps the non-Muslims instead of Muslims would be termed as "Taghoot and Nawaqiz-e-Islam", hence becomes "Kafir" and as such they would be liable to be killed and exciting the young lad to go at Northern Area of Pakistan for the training of Jihad.
11. The entire evidence adduced by the prosecution, can easily be divided into two parts. Salah-ud- Din, Usama Saeed and Muhammad Saeed (PW-1 to PW-3) has focused that Salah-u-Din along with Shahid Nazir Jutt and others had associated and participated "Daras" being delivered by the appellant regularly on weekly basis at his residence. The appellant was arrested at the spot along with sufficient material in the file holding by him. The appellant Usama Saeed (PW-2) went to Bannu and came back after 2/3 days but strangely both the witnesses of ocular account i,e, (PW-1) and (PW-2) remained associated about 2/3 years with the appellant and they were regularly participating in the meeting but they could not produce anything against the appellant to be considered as an anti-state material in hate speech towards any specific sect of religion. The prosecution even could not show any of such materials printed, published, disseminated to incite hatred to any person or any proscribed organization or any one concerned in terrorism. The act committed by the appellant could not expand its circle to cover the definition of sedition. As we could not find from the available material that the appellant had any act of sedition, however, there is no cavil to the proposition that the material recovered from the possession of the appellant at the time of his arrest and during investigation was so dangerous and hatred, which could create anarchy in the society. The recovered articles containing religious differences, non-believing the concept of democracy, relationship of Pakistan with some other non-Muslim countries and in case of any support to non-Muslims declaring the Muslims to be "Kafir". In this view of the matter the appellant has been found to have committed an offence other than the offences under which he has been convicted and sentenced by the learned trial Court. Having into account the true concept of sedition and applicability of the offence as envisaged under Section 124-A, PPC is not made out. Likewise, the provision of Section 11-W of ATC, which can only be enforced if the accused is involved in printing, publishing or disseminating any material to incite hatred or giving projection to any person convicted for a terrorist act or any proscribed organization or organization placed under observation, or anyone concerned for terrorism but the case in hand does not fall in any of the categories define in the aforesaid provision.
The only offence, which has been proved by the prosecution beyond shadow of reasonable doubt by producing Khizer Hayat (PW-5), Muhammad Saeed Sub-Inspector (PW-7), Abdul Latif DSP (PW- 8) and Asif Ali, Inspector (PW-9) being complainant, recovery witnesses and Investigating officers, member of the Joint Investigating Team is with regard to recovery of hate material from the possession and disclosure of the appellant.
12. In view of strong evidence with regard to the possession of the hate material with the appellant, the case in hand does fall under the definition of Section 8(d) of the Anti-Terrorism Act, 1997 punishable under Section 9 of the Act ibid and, thus, the impugned judgment is modified to the extent that the appellant is acquitted of the charge in an offence under Section 124-A, PPC whereas the conviction in an offence under Section 11-W of the Anti-Terrorism Act, 1997 is altered to offence under Section 9 of the Act ibid. So far as the quantum of sentence is concerned, we have observed that the appellant was arrested in this case on 07.03.2015 and he is behind the bars till-date. He has suffered the agony of trial as well as the proceedings of the appeal before this Court. We deem it appropriate that the sentence of imprisonment already served out by the appellant is sufficient to meet the ends of justice as well as the very purpose of prosecuting the appellant and, thus, the appellant is sentenced in the aforesaid offence to the imprisonment already undergone by him.
With this modification in conviction and sentence, the appeal in hand stands dismissed. He is directed to be released forthwith from jail, if not required to be detained in connection with any other criminal case.