Asjad Javaid Ghural, J.--Through this criminal in terms of Section 26 of The Anti-T errorism Act, 1997 appellant Shamshad Ahmed has challenged the vires of judgment dated 01.08.2019 passed by learned Special Judge, Anti- Terrorism Court, Sargodha in case FIR No. 23 dated 13.04.2019 in respect of offences under Sections 11-N, 11-H, 11-I, 11-J & 11-F of the Anti-T errorism Act, 1997 registered at Police Station, Counter Terrorism Department, Faisalabad whereby he was convicted and sentenced as under: Under Section 1 1-F(2)of the Anti-T errorism Act, 1997 Imprisonment for six-months with fine of Rs.20,000/- and in default thereof to further under simple imprisonment for one month.
Under Section 1 1-F(6) of the Anti-T errorism Act, 1997 Rigorous Imprisonment for one year with fine of Rs.20,000/- and in default thereof to further under simple imprisonment for one month.
Both the sentences were directed to run concurrently . He was entitled to get benefit, of Section 3 82-B, Cr .P.C.
2. Brief facts of the case as narrated in crime report (Ex.PB/1) registered on the complaint of Nasrullah Khan, ASI/CTD (PW-1) are that on 13.04.2019 at 03:50 p.m. he alongwith Hammad Qadeer 791/CP , Muhammad Usman Arshad 816/CP , Sultan Salah-ud-Din 735/CP , was present on official duty in the office of District Officer, Counter Terrorism Department, Mianwala and on receiving information through intelligence source, they went towards Northern side of main gate of Eid-Gah and intercepted the appellant when he had received a signed currency note of Rs. 100/- as 'chanda' for banned organ ization Jash-e-Muhammad from a Corporal and gave him its receipt and upon search of the appellant-subscription books and cash amount Rs.91980/- including above said tainted currency note etc. were recovered from his possession.
3. Muhammad Adnan Haider , Inspector (PW-7) visited the place of occurrence and joined the complainant, the eye- witnesses and also the appellant with the investigation of this case. The complainant handed over case property alongwith the recovery memo, to him and after completion of formalities as the investigation at the spot, he recorded the statements of witnesses under Section 161, Cr.P.C. Thereafter , he produced the appellant, the complainant arid the relevant case prope rty before learned Magistrate, who obtai ned specimen signatures of the appellant as well as the complainant on 03/03 separate pages (Ex.PH/1-6) and made them sealed in separate envelopes. On 22,04.2019 a Joint investigation Team was constituted by Home Department, Lahore for investigation of this case, who on 04.05.2019 visited the place of occurrence, joined the PWs and accused with investigation. On 12.05.2019 the report under Section 173, Cr.P.C. was prepared by mentioning the name of the accused in Column No. 3.
4. At the commencement of the trial, learned trial Court had framed a charge against the appellant to which he pleaded not guilty and claimed to be tried.
5. The prosecution examined 07-witnesses. The appellant, in his statement recorded under Section 342, Cr.P.C., had denied and controverted all the allegations of fact leveled against him. He did not opt to make statement under Section 340(2), Cr .P.C, however , in defence he produced documents Ex.DA/1 -2.
6. Learned trial Court, upon conclusion of the trial convicted and sentenced the appellant, as stated above. Hence, this criminal appeal.
7. Learned counsel for the appellant submits that the appellant was charged sheeted in offences under Sections 11-N & 11-F(2) of the Anti-T errorism Act, 1997 but at the end of trial, the trial Court convicted and sentenced him in offences under Sections under Sections 11-F(2) & 11-F(6) of the Act ibid; that none of the eye-witnesses had seen the appellant while collecting funds for any proscribed organization; that the police officer below the rank of S.P., cannot depute any corporal/spy to ascertain the act of an individual for collecting funds for proscribed organization and as such the exercise undertaken against the appellant was unwarranted by law; that the appellant has been acquitted of the charge in offence under Section 11-F(6) of the Act ibid and as such there was no justification for the trial Court to convict him in offence under Section 11-F(6) of the Act ibid, which otherwise is higher in sentence than the charge framed against him. At the end, he has prayed for his acquittal of the charge.
8. Conversely , learned Deputy Prosecutor General appearing for the State contends that the appellant was arrested red-handed at the spot when he was collecting funds for proscribed organization, which were recovered from him at the spot; that the prosecutio n has fully proved the charge against the appellant beyond shadow of reasonable doubt especially when the defence could not bring on record any iota of evidence to show that the police officials had any or animosity to falsely implicate the appellant in this case. In the end, he has requested for dismissal of the appeal.
9. We have heard the learned counsel for the parties and gone through the record.
10. The appellant was charged in this case on two counts, firstly , in an offence under Section 11-N of the Act ibid, which in fact was a punishment for contravention of offences mentioned in Sections 11-H to 11-K of the Act ibid i.e. fund raising, use and possession, funding arrangements and money laundering for proscribed organization and secondly , for offence under Section 11-F(2) of the Act ibid, which provides punishment for the offence mentioned in Section 11-F(1) of the Act ibid, which provides that "A person is guilty of an offence if he belongs or professes to belong to a proscribed organization " The allegation against the appellant was that he being active member of the proscribed organization "Jaish-e-Muhammad ", was busy in collecting funds at the time of his arrest, which were recovered from his exclusive possession at the spot. After completion of trial, the trial Court acquitted the appellant is offence under Section 11-N of the Act ibid with the observations that the prosecution could not provide any documentary evidence showing that the appellant had ever used or sent funds by way of any bank transaction or some other source to any banned organization for the act of "terrorism " irrespective of the fact that the prosecut ion extracted details of the accounts of the appellant from dif ferent banks.
11. Similarly , the prosecution has failed to prove the second charge that the appellant has any nexus with the proscribed organization Jaish-e-Muhammad through any independent and confid ence inspiring evidence.
Surprisingly , after acquittal of the charge in offence under Section 11-N of the Act ibid, the trial Court convicted and sentenced the appellant in offence under Section 11-F(6) of the said Act, for which he was neither charged nor any opportunity was given to him to establish his defence against the said charge. Even otherwise, the punishment in an offence under Section 11-F(6) is higher than the offences with which the appellant was charged, which is against the wisdom of Section 238(2) Cr.P.C. wherein the Court has been vested with the authority to convict an accused for minor offence than the offence charged only and no provision exists in the Code of Criminal Procedure empowering the Court to convict an accused for offence graver than the offence charged. For ready reference see cases titled Pir Imtiaz and another vs. The State (2005 PCr.LJ) and Mst. Zafran Bibi vs. The State (PLD 2002 FSC 1 ).
12. The learned Trial Court while awarding conviction and sentence to the appellant has ignored the evidence available on record and passed the decision on assumptions and presumptions, which cannot be perpetuated by this Court. We have reached at an irresistible conclusion that the prosecution has failed to bring home guilt of the appellant beyond shadow of a reasonable doubt. We do not concur with the conclusion arrived at by the trial Court qua conviction and sentence of the appellant.
13. The epitome of above discussion is that the appeal in hand is allowed, the conviction and sentence of the appellant are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He is directed to be release from jail forthwith, if not required to be detained in connection with any other criminal case.