TARIQ SALEEM SHEIKH, J.---This appeal is directed against judgment dated 31.05.2018 passed by the learned Judge, Anti-T errorism Court, Bahawalpur Division, Bahawalpur , in case FIR No.7/2018 dated 16.3.2018 registered at Police Station CTD, Multan, for offences under sections 11-F(2), 11-F(6), 11-G and 11-N of the Anti-T errorism Act, 1997.
2. Brief facts of the case are that on 16.3.2018 Complainant Muhammad Mumtaz 701/CPL (PW-2) was on patrol duty with Abdul Mannan 1168/CPL (PW-3), Muhammad Asif 700/CPL (given up) and other members of the operation team of the Counter Terrorism Department (CTD). They were present at Zahir Pir Chowk when he received a source information that a man belonging to a proscribed organization was collecting donations near Cheema Hotel, Grain Market, Zahir Pir and he could be apprehended if a raid was conducted. The Complainant immediately gave a marked 500-rupee currency note bearing No. AW1253762 to Abdul Mannan 1168/CPL (PW-3) and sent him to verify the said information. He returned after a short while and told the Complainant that the man was collecting funds for Ahl-e-Sunnat-W al-Jamaat which had been banned by the Federal Government. He also brought two receipts bearing Nos.1317 and 1318 (P-: and P-2) carrying the inscription "Ahl-e-Sunnat-W al-Jamaat Zindabad " from him. The Complainant took those receipts into possession vide Recovery Memo Exh.PB and then rushed to Cheema Hotel with his team mates where Abdul Mannan 1168/CPL pointed out the delinquent and he nabbed him. The man identified himself as Shameer (the Appellant). He was holding Receipt Book P-3. The Complainant checked and found that receipt Nos. 1317 and 1318 (P-1 and P-2) had been issued from it.
Muhammad Mumtaz 701/CPL conducted his personal search and recovered Rs.1780/- from him in cash which included one marked currency note of Rs.500/- No.A W1253762 P-4, nine notes of Rs.100/- P5/1-9, six notes of Rs.50/- P6/1-6 and eight notes of Rs.10 P7/1-10. Besides, he recovered 30 stickers out of which 15 stickers P8/1- 15 had the writing "Ham sahaba kay ghulam, woh humaray hayn Imam", "Ahle-Sunnat-W al-Jamaat" while the remaining 15 stickers P9/1-15 read "Meray chaman ko Mali pani lahoo ka dena, gulshan mera na ujray , har sunni say yeh kehna, Ahl-e-Sunnat-W al-Jamaat". The Appellant slung a grey bag P-10 by his left shoulder with the monogram of MOT OROLA. Its search yielded one unused receipt book of "Ahl-e-Sunnat-W al-Jamaat Pakistan" P- 11 and one white suit P-12. The Complainant secured the aforesaid 30 stickers and two receipt books by making two separate sealed parcels and took them into possession vide Recovery Memo Exh.PC and seized the money (Rs.1780/-), grey bag and clothes throug h Recovery Memo Exh.PD. After that he drafted complaint Exh.PE and sent it to Police Station CTD, Multan, through Mohammad Asif 700/CPL on the basis of which Shahid Iqbal 1171/CPL (PW -1) registered FIR No. 7/2018 Exh.P A.
3. Investigation of the case was entrusted to Inspector Syed Sajjad Hussain Bukhari (PW-5). He reached the spot where the Complainant handed over to him custody of the accused as well as the case property . He recorded the statements of the PWs under section 161, Cr.P.C., inspected the place of occurrence and prepared unscaled site plan Exh.PF . He also interrogated the Appellant and recorded his version. On his return to police station, he handed over the case property to Abid Ali Moharrar 1151/CPL (PW4) for safe keep ing and recorded his statement.
On completion of investigation report under section 173, Cr .P.C. was submitted.
4. On 2.5.2018, the learned trial Court indicted the Appellant to which he pleaded not guilty and claimed trial. In order to prove its case the prosecution produced five witnesses. Complainant Mohammad Mumtaz 701/CPL (PW- 2) and Abdul Mannan 1168/CPL (PW-3) deposed about the arrest of the Appellant and testified about the recoveries effected from him. Shahid Iqbal 1171/CPL (PW-1) registered FIR No.7/2 018 Exh.P A. Abid Ali 1151/CPL (PW-4) deposed about safe custody of the case property . The Investigating Officer, Inspector Syed Sajjad Hussain Bukhari (PW -5), gave details of his investigation and the evidence he collected in this case.
5. After the prosecution was through with its evidence the learned trial Court recorded the statement of the Appellant under section 342, Cr.P.C. and confronted him with all the incriminating material that was brought against him during the trial. The Appellant refuted the same and professed innocence. He maintained: "The complainant of this case is police official. He registered this false case on the asking of his high-ups just to show fake efficiency . I neither was arrested at the alleged time and place of occurrence nor anything was recovered from my possession. I never collected any `chandah' for any proscribed organization nor retained it. I neither professed myself as member of any proscribed organization nor invited the public to join and financially support "Ahl-e-Sunnat-W al-Jamat Pakistan". All the recoveries have been planted on me by CTD. I never gave projection to any defunct organization. In fact I was arrested by CTD on 29.12.2017 from my house at about 2:00 a.m. (night) and in this regard my relative Pehlwan Khan also submitted an application at Police Station Sarai Alamgir , District Gujrat. I was under the illegal custody of CTD police from 29.12.2017 and later on Complainant concocted a false story as narrated in the FIR, registered this false case against me. I am peaceful and patriotic citizen of Pakistan and dislike any subversive activity . I was never associated with any proscribed organization or its activities. My name is not enlisted in 4th schedule of Anti-T errorism Act, 1997. 1 cannot even think about any activity or act against the peace of my homeland Pakistan. I can sacrifice my life for the peace of my beloved country as well as for the peace of citizens of Pakistan. No occurrence as narrated in the FIR ever took place. All the PWs are police officials so they deposed against me to strengthen the case of their colleague. I am innocent."
6. The Appellant neither opted to make statement on oath under section 340(2). Cr.P.C. nor examined any witness in his defence. However , he tendered in evidence certified copy of W.P. No.I80977/2018, titled "Pehlwan Khan v.
Inspector General of Police etc" filed in the Hon'ble Lahore High Court, Lahore (Exh,DA), attested copy of Rappat No. SSRAG-2/16/2018-171 of Police Station Saddar . Sarai Alamgir , District Gujrat (Exh.DB) and copy of online complaint No.SSRAG-2/16/2018-171 dated 162.2018 of Police Station Saddar , Sarai Alamgir , District Gujrat (Mark-A).
7. On the conclusion of trial. vide impugned judgment dated 31.5.2018, the learned trial Court convicted and sentenced the Appellant as under:
(i) Convicted under section 11-F(2) of the Anti-T errorism Act, 1997, and sentenced to rigorous imprisonment for six months and to pay fine in- the sum of Rs.10,000/- and in default thereof to undergo simple imprisonment for a further period of one month.
(ii) Convicted under section 11-F(6) of the Anti-T errorism Act, 1997. and sentenc ed to rigorous imprisonment for one year and to pay fine in the sum of Rs.10,000/- and in default thereof to undergo simple imprisonment for a further period of one month.
(iii) Convicted under section 11-G of the Anti-T errorism Act, 1997, and sentenced to rigorous imprisonment for two years and to pay fine in the sum of Rs.10,000/- and in default thereof to undergo simple imprisonment for a further period of one month.
(iv) Convicted under section 11-N of the Anti-T errorism Act, 1997, and sentenced to rigorous imprisonment for five years and to pay fine in the, sum of Rs.10.000/- under section 11-F(6) of the Act and in default thereof to undergo simple imprisonment for a further period of six months.
The sentences of imprisonment were ordered to run concurrently . Benefit of section 382-B, Cr.P.C. was, however , extended to the Appellant. Hence, this appeal.
8. In support of this appeal the learned counsel for the Appellant, contended that the prosecution had failed to prove its case against the Appellant beyond doubt. The learned trial Court had not appreciated the evidence properly which had caused serious miscarriage of justice. He maintained that the prosecution evidence lacked credibility . All the witnesses were police personnel who could not be relied upon without independent corroboration which was not available. Even otherwise, there were material contradictions in their depositions. He further contended that there was not an iota of evidence that the Appellant was a member of any proscribed organization, more particularly Ahl-e-Sunnat--W al-Jamaat Pakistan and Articles P-1 to. P-12 were foisted on him. The learned counsel prayed that the Appellant's appeal be accepted. and he may be acquitted.
9. On the other hand, the learned Deputy Prosecutor General controverted the above contentions. He contended that the prosecution witnesses had no or animosity against the Appellant which could have motivated them to frame him in this case. The evidence produced by the prosecution to prove the charge was reliable and inspired confidence. Oral evidence was reinforced by recoveries of Articles P-1 to P-12. He argued that the learned trial court had rightly convicted and sentenced the Appellant and prayed for dismissal of this appeal.
10. Arguments heard. Record perused.
11. The prosecution case is that the Appellant is an active member of Ahl-e-Sunnat-W al-Jamaat which has been banned by the Government of Pakistan and on 16.3.2018 he was arrested from near Cheema Hotel, Grain Market, Zahir Pir, within the remit of Police Station CTD, Multan, while collecting funds for financial support of that organization , and use in terrorist activities. We have minutely examined the available record and have found that the prosecution has not been able to prove its case beyond doubt which entitles him to benefit of doubt.
12. Complainant Muhammad. Mumtaz 701/CPL (PW-2) and Abdul Mannan 1168/CPL (PW-3) are prime prosecution witnesses. Although they deposed in line with FIR Exh.P A, their evidence has several intriguing aspects. To start with, the prosecution case is that the CTD team was present at Zahir Pir Chowk when PW Muhammad Mumtaz received source information about the Appellant who was then present near Cheema Hotel close to the Grain Market. Muhammad Mumtaz gave a marked 500-rupee note bearing No. AW1253762 to PW Abdul Mannan and sent him as decoy . It has not been shown how PW Abdul Mannan identified him because none of the witnesses deposed that the informer had accompanied him to Cheema Hotel. Secondly , the prosecution's stance is that Abdul Mannan gave the aforesaid currency note to the Appellant pretending that it was a donation which he received and issued two receipts bearing Nos. 1317 and 1318 (P-1 and P-2) of Rs.200/- each thereagainst. There is no explanation why the Appellant issued two receipts for one transaction and why Abdul Mannan accepted them when they did not depict the amount that he had given. Thirdly , Abdul Mannan's name is not written on receipts P-1 and P-2. Fourthly , 18 leaves had been used from receipt book P-3 (including receipt Nos.1317 and 1318 aforesaid). Perusal of the counterfoils of that receipt book shows that neither date nor amount nor the name of the donor is mentioned on as many as 15 counterfoils. Lastly , receipts P-1 and P-2 were not sent to the handwriting expert for confirmation of the fact that they were in the hand of the Appellant.
13. There is not a whit of evidence to prove that the Appellant had any affiliation with proscribed organization Ahl-e- Sunnat-W al-Jamaat. The prosecution has not produced any evidence which may show that he ever contacted any of its known activists or a member of its organizational structure by phone or otherwise. It has also not produced any evidence to prove that he ever remit ted any money to the Jamaat or spent it for the promotion of its objects.
Last but not least, the Investigating Officer has not probed who from where got the receipt books P-3 and P-11 and stickers P-8/1-15 and P-9/1-15 printed. All this was necessary because, as already stated, the Appellant has been specifically accused of collecting funds for banned Jamaat . Mere recovery of the receipt books and stickers cannot connect the Appellant with the banned Jamaat .
14. The Appellant alleged that he was picked up by the CTD on 29.12.2017 from his house in Sarai. Alamgir , District Gujrat, kept him in illegal custody for two months and 18 days and then falsely implicated in this case. He did, not examine any witness in support of his plea and only produced certified copy of W.P. No.180977/2018 (Exh.DA), attested copy of Rapt No. SSRAG-2/16/2018-171 of P.S. Saddar , Sarai Alamgir (Exh.DB) and a copy of online complaint dated 16.2.2018 of P.S. Saddar , Sarai Alamgir (Mark-A). In the absence of eye-witnesses these documents cannot establish the said plea. Nevertheless, since we have held that the prosecution has failed to prove the charge, this will have no bearing on the fate of the case.
15. For what has been discussed above we hold that the Appellant's conviction cannot be sustained. Hence, we allow this appeal and set aside the impugned judgment. The Appellant is on bail as he was granted post-arrest bail by this Court vide order dated 8.5.2018 passed in Criminal Misc. No. 924-B/2018/BWP . His surety is discharged.