Ch. Abdul Aziz, J. Muhammad Bilal Makki (appellant) involved in case FIR No. 13/2019 dated 12.04.2019 registered under Sections 11-F (5), 11-H, 11-I, 11-J, 11-N, 8 &.9 of Anti-Terrorism Act, 1997 at Police Station CTD, Gujranwala, was tried by learned Judge Anti-Terrorism Court-II, Gujranwala.
Trial Court vide judgment dated 31.05.2019 proceeded to convict and sentence the appellant in the following terms: (i). Under Section 8 read with Section 9 of ATA, 1997 to suffer rigorous imprisonment for 1-year with fine of Rs. 10,000/-and in default whereof to further. undergo 1-month SI; (ii). Under Section 11-F (5) ATA, 1997 to suffer rigorous imprisonment for 1 year with fine of Rs.
10,000/- and in default whereof to further undergo 1-month SI, (iii). Under Section 11-H read with Section 11-N of ATA, 1997 to suffer rigorous imprisonment for 5- years with fine of Rs. 25,000/-and in default whereof to further undergo 2-months SI.
(iv). Under Section 11-I read with Section 11-N of ATA, 1997 to suffer rigorous imprisonment for 5- years with fine of Rs. 25,000/-and in default whereof to further undergo 2-months SI.
(v). Under Section 11-J read with Section 11-N of ATA, 1997 to suffer rigorous imprisonment for 5- years with fine of Rs. 25, 000/-and in default whereof to further undergo 2-months SI.
All the sentences were ordered to run concurrently and benefit of Section 382-B, Cr.P.C. was also extended to the appellant. Challenging his conviction and sentence the appellant filed the instant criminal appeal.
2. Concisely stated the case of the prosecution as unfolded by Farman Ashgar 316/Corporal (PW.2) in FIR (Exh.PA/1) is to the effect that on 12.04.2019 at about 5:00 p.m. he along with Ali Ahsan 166/Corp, Danish Hameed 321 /Corp and Muhammad Adnan 320/Corp was present at Jinnah Chowk, Hafizabad in an official vehicle being driven by Azhar Abbas 342/DC in the wake of activation of proscribed - organizations for fund raising and terrorist financing; that in the meantime he received spy information that Muhammad Bilal Makki who belonged to banned organization "Jaish-e-Muhammad" and being active member of said organization had been deputed for fund raising in different districts secretly so that the cases of detained organizational colleagues be followed and their families be supported and was present at Kassoki Bypass Chowk, Hafizabad and was raising fund for his organization; that upon that information he by giving a currency note of Rs. 500/-bearing serial No. FA55002023, duly signed by him, sent Ali Ahsan 166/Corp, under the garb of common citizen to the appellant and said corporal came back after a short while and told complainant that afore-said person namely Muhammad Bilal was collecting fund for banned organization "Jaish-e-Muhammad" and produced one receipt having No. 167 and a book with the title of "Shia Ki Chalis Kufria Ibarat" banned vide notification No. SO (IS-111)6- 15/2010 dated 26.05.2014 whereupon he along with afore-mentioned companions by constituting a raiding party, reached the afore-said place at about 5:30 p.m. and with the help of his companions, apprehended the appellant and upon his personal search recovered receipt book consisting of Serial No. 151 to Serial No. 185, out of which Receipt No. 151 to 167 were cut off having signatures of Muhammad Bilal Makki, along with one blue coloured carbon paper and a ball point and upon his further personal search, two books with the title of Shia Ki Chalis Kurfia Ibarat in a blue colour shopping bag. holding in his left hand and Rs. 85,000/-including one currency note of Rs. 500/- bearing complainant's signature as well as cash amount of Rs. 5500/- were recovered. Thereafter, he drafted complaint (Exh.PA) and sent it to the police station through Muhammad Adnan CPL/320 for the registration of formal FIR.
3. The matter after investigation was placed before the trial Court where prosecution in order to prove its case against the appellant produced 4-PWs, namely, Muhammad Ishaq 322/Corn (PW.1) who after the receipt of complaint (Exh.PA) chalked out the formal FIR (Exh.PA/1), Farman Asghar 316/Corp (PW.2) & All Ahsan 166/Corp (PW.3) who are witnesses of recovery and Saeed Akhtar Inspector (PW.4) who is Investigating Officer of the case. After the conclusion of prosecution evidence, the learned trial Court examined the appellant under Section 342, Cr.P.C. during which he denied the allegations levelled against him. At that time the appellant neither made statement under Section 340 (2), Cr.P.C. nor produced any evidence in his defence. On the conclusion of trial, the appellant was convicted and sentenced, as mentioned above, hence the instant criminal appeal.
4. Arguments heard. Record perused.
5. A through the record unveils that on 12.04.2019 at about 5:00 p.m. Farman Asghar 316/Corp (PW.2) along with other CTD officials while being present at Jinnah Chowk, Hafizabad received a secret information that Muhammad Bial Makki, an activist of proscribed organization "Jaish-e- Muhammad" was present at Kassoki Bypass and was collecting funds for the said banned organization and if raided, could be arrested. Upon the receipt of such information, Farman Asghar 316/Corp (PW.2) while deputing Ali Ahsan 166/Corp as decoy witness, gave him tainted currency note of Rs. 500/-with the direction to fetch a receipt from the appellant in lieu of the said currency note, who brought receipt Bearing No. 167 along with a book titled "Shia Ki Chalias Kufria Ibarat" and thereafter the complainant along with other CTD officials reached the afore-said place and apprehended the appellant. From the possession of the appellant, Receipt book consisting of Serial No. 151 to 185, out of which receipt No. 151 to 167 were cut off having signatures of Muhammad Bilal Makki along with two books titled as "Shia Ki Chalias Kufria Ibarat", cash amount of Rs. 85,000/- including tainted currency note of Rs. 500/-were recovered.
6. In the wake of facts mentioned above, we have meticulously examined the record and firstly noticed that though receipt (P.7) was issued by Muhammad Bilal Makki (appellant) and it was exhibited during trial but was not sent to the office of PFSA for comparison of the appellant's signatures. Secondly, during investigation no effort whatsoever was made by the Investigating Officer to gather data with regard to the publisher from whom the aliened receipts were got published by the appellant. Thirdly, it is noted by us that the matter was thoroughly investigated by CTD Officer but no effort whatsoever was made to trace the identification of 16-others, who donated the funds to proscribed organization, "Jaish-e-Muhammad" and also got issued receipts in this regard. We are not oblivious of the fact that simple possession of a receipt is not an offence under Section 11 -F (6) of ATA, 1997 rather a person who makes this payment is also guilty of the offence mentioned in the foregoing provisions. Last but not the least, it is observed that from the possession of the appellant two books titled as "Shia Ki Chalis Kufria Tharat" were recovered but the prosecution did not adduce any evidence that the said books were either prepared by the accused or being proscribed book he was selling the same as the book allegedly bought by decoy witness Ali. Ahsan 166/Corp (PW.3) was never exhibited during trial. It needs no mention that mere possession of the afore-mentioned book does not constitute an offence.
7. For what has been discussed above, the prosecution has miserably failed to prove its case against the appellant beyond scintilla of any doubt. Resultantly, we accept Criminal Appeal No. 39970 of 2019 while giving benefit of doubt to Muhammad Bilal Makki (appellant), his conviction and sentence is set-aside and he stands acquitted of the charge. He is in custody; be released forthwith if not required to be detained in any other criminal case.
8. Before parting with this judgment, we may observe here that a glaring mistake is noticed from the judgment of the trial Court whereby inadvertently, the name of the appellant is mentioned as Muhammad Ajmal instead of Muhammad Bilal Makki. Though we had the option to remand the matter to the trial Court for re-writing of judgment but it would have been an exercise in futility keeping in view the shortcomings noticed from the prosecution case.