AALIA NEELUM , J. The appellant-Muhammad Iftikhar son of Riaz Ahmad, Caste Rajput Chohan, resident of Chah Marali Wala Shaman, Tehsil Mailsi, District Vehari was involved in case FIR No.10 of 2019, dated 10.04.2019, offence under sections 11-F(5)/11-H/114/11-J/ 11-N/8/9 of Anti-Terrorism Act,1997, at Police Station CTD, Gujrawala and was tried by the learned Judge, Anti-Terrorism Court-II, Gujranwala. The learned trial court seized with the matter in terms' of judgment dated 31.05.2019, convicted the appellant-Muhammad Iftikhar as under:- (1). Under section 8 of the Anti-Terrorism Act, 1997 read with section 9 of the Act ibid the appellant was sentenced to undergo rigorous imprisonment for one year with the direction to pay fine of Rs.10,000/- and in case of default in payment thereof, he would further undergo one month S.I.
(2) Under section 11-F(5) of the Act ibid, the appellant was sentenced to undergo rigorous imprisonment for one year with the direction to pay fine of Rs.10,000/- and in case of default in payment thereof, he would further undergo one month S.I.
(3) Under section 11-H read with section 11-N of the Act ibid, the appellant was sentenced to undergo rigorous imprisonment for five years with the direction to pay fine of Rs.25,000/- and in case of default in payment thereof, he would further undergo two months S.I.
(4) Under section 11-I read with section 11-N of the Act ibid, the appellant was sentenced to undergo rigorous imprisonment for five years with the direction to pay fine of Rs.25,000/- and in case of default in payment thereof, he would further undergo two months S.I.
(5) Under section 11-J read with section 11-N of the Act ibid, the appellant was sentenced to undergo rigorous imprisonment for five years with the direction to pay fine of Rs.25,000/- and in case of default in payment thereof, he would further undergo two months S.I. all the sentences would run concurrently. Benefit of section 382-B, Cr.P.C. was also extended in favour of the appellant.
2. Feeling aggrieved by the judgment of the learned trial court, the appellant-Muhammad Iftikhar has assailed his conviction through filing Crl. A. No.40009 of 2019.
3. As per prosecution case on 10.04.2019 a specific information was received at 8:00 PM from a intelligence source by Danish Hameed 321/Corporal (PW-2) that Muhammad Iftikhar, resident of District Vehari: who belonged to banned organization "Jash-e-Muhammad", who was trained and active member of "Jash-e-Muhammad", was on task to collect money for the organization and was present at "Markaz-e-Aksa" near Ferozwala Pul, Gujranwala. Whereupon, Danish Hameed 321/Corporal (PW-2) sent Ali Ahsan 166/Corporal (PW-3), who is a decoy witness, after giving him a currency note of Rs.500/- bearing serial No.GE6801506 after signing the same. Ali Ahsan 166/Corporal (PW-3), after some time came back and informed Danish Hameed 321/Corporal (PW- 2) that Muhammad Iftikhar was collecting funds for banned organization "Jash-e-Muhammad" and produced before him one receipt having No. 140 and a book with the title "Yeh Mazar Yeh Melay", which was found' banned vide Notification No. SO(IS-III)6-15/2010 dated 26.05.2014.
Thereafter, Danish Hameed 321/Corporal (PW2) along with his companions constituting a raiding party, reached the above said place at about 08:20 p.m. and apprehended said person along with his companions who disclosed his name as Muhammad Iftikhar. Upon personal search of Muhammad Iftikhar, Danish Hameed 321/Corporal (PW-2) recovered Rs.3560/ from his right side pocket of shirt, on further search from black color bag, carried by him, recovered Rs.89250/- including signed note No. GE6801506, receipt book consisting of serial No. 126 to No. 161 out of which receipt Nos. 126 to 140 were not present having signatures of Muhammad Iftikhar, blue ball point, Corbin paper blue colored and a book "Yeh Mazar Yeh Melay". Danish Hameed 321/Corporal (PW-2) prepared sealed parcel of recovered book (P-1), distributed book (P-2) "having stamp of CTD and took into possession vide recovery memo. (Exh.PB). Another parcel of receipt book (P-3), corbon paper (P-4) and separate receipt (P-5) with the stamp of CTD. He (PW-2) also prepared sealed parcel of bag (P-6), blue ball point (P-7) and amount i.e. Rs. 92810/- (P-8/ 1-86) with the stamp of CTD. All three parcels were secured through recovery memo. E.PB attested by Ali Ahsan (PW-3) and Farman Asghar Corporals (given up PW). Jash-e-Muhammad" was banned vide Notification No.SRO-18(1)/2002 No.F7/26/ 2001-POLL.1(3) dated 14.01.2002. He (PW-2) reduced into writing complaint (Exh.PA) and sent the same to the police station through Muhammad Atif 170/ Corporal for registration of case.
4. Qamar Mumtaz Inspector/ Investigating Officer (PW-4) reached the spot and after inquiring FIR number he (PW-2) incorporated FIR number on the top of recovery memo, as well as on the parcels. Thereafter Danish Hameed 321/ Corporal (PW-2) handed over copy of complaint, recovery memo, three sealed parcels and custody of accused to Qamar Mumtaz Inspector/Investigating Officer (PW-4). Qamar Miuntaz Inspector/ Investigating Officer (PW-4) recoded statements under section 161 of Cr.P.C. of Ali Ahsan and Farman Asghar Corporals, at the spot. Site plan Ex.PC without scale was also prepared and formally arrested him. Qamar Mumtaz Inspector/Investigating Officer (PW-4) on his return to Police Station CTD Gujranwala at 11:50 p.m. handed over case property to Moharrar,
5. Upon committal of the case, charge was framed on 17.05.2019 against-the accused. To prove Its case prosecution examined four witnesses in all. Thereafter statement of accused under section 342, Cr. P.C. was recorded.
6. We have heard learned counsel for the appellant and learned Deputy Prosecutor General and perused the record.
7. As far as the evidence qua the claim of the prosecution that the accused being member of banned/proscribed organization "Jash-e-Muhammad", the offence is covered under section 11-F5 of the Anti-Terrorism Act, 1997.
Section 11-F(5) of the Anti-Terrorism Act, 1997 runs as under: 11-F-Membership, support and meetings relating to a Prescribed Organization.
1 A person is guilty of an offence if he belongs or professes to belong to a prescribed organization.
(2) ................
(3) ................
(a) ................
(b) ................
(i) ................
(ii) ................
(iii) ................
(4) ................
(5) A person commits an offence if he solicits, collects, or raises funds for a prescribed organization.
(6) ................
8. Admittedly, no specific evidence, either oral or documentary has been placed, proved or relied on record which could show that the appellant is member of "Jash-e-Muhammad" or had any proximate or otherwise nexus with this organization. Muhammad Qamar Mumtaz Inspector/Investigating Officer (PW-4) deposed during cross-examination that:- "I did not collect any documentary evidence or oral evidence regarding the link of the accused with any of proscribed organization. Nothing was recovered from the accused during investigation or physical remand. "
Just because a handful of police official of CTD Police Station Gujranwala have given a tag of member of banned organization to the appellant, this does not become a conclusive proof of his (appellant) being member of banned organization. No doubt that "Jash-e-Muhammad" has been notified as a barmed/proscribed but when any citizen is apprehended being member of such a organization, then the agency making such acquisition is supposed to have substantive pieces of evidence to connect the accused with the acquisition. But absolute lack even an iota of evidence is not perceived qua being a member of banned/proscribed Organization, it can be safely concluded that the prosecution case is wholly devoid of any material/merit in this regard.
9. As regards charge under sections 11-H, 11-I and 114 of the Anti-Terrorism Act, 1997 qua raising of funds, use and possession and Funding arrangements same are co-related with the alleged recovery of cash from the custody of the appellant. 11-II. Fund raising.
1) A person commits an offence if he---
(a) Invites another to provide money or other property, and
(b) Intends that it should be used, or has reasonable cause to suspect that it may be used, for the purpose of terrorism.
2) A person commits an offence if
(a) He received money or other property, and
(b) Intends that it should be used, or has reasonable cause to suspect that it may be used, for the purposes of terrorism.
3) A person commits an offence if he, (a). Provides money or the property, and
(b) Knows or has reasonable cause to suspect that it will or may be used for the purposes of terrorism.
4) In this section a reference to the provision of money or other property is a reference to its being given, lent or otherwise made available, whether or not for consideration.
11-I. Use and possession. (1) A person commits an offence if.
1) He uses money or other property for the purposes of terrorism; or 2) He--
(a) Possesses money or other property; and
(b) Intends that it should be used, or has reasonable cause to suspect that it may be used, for the purposes of terrorism.
11-J. Funding Arrangements.
1) A person commits an offence if he
(a) Enters into or becomes concerned in an arrangement as a result of which money or other property is made available or is to be made available to another, and
(b) Has reasonable cause to suspect that it will or may be used for the purposes of terrorism
10. In the present case there is no evidence to show that the appellant did acts of the nature mentioned above. It is relevant to mention that more serious the offence alleged, higher shall be the quality of evidence required to convict the accused. Appreciating the evidence brought by the prosecution in this case in the light of the aforesaid Statutory Provisions, it is found that neither in the depositions of either of the four witnesses nor in the form of any documentary evidence, it has come on record, that the accused was indulging in terrorism or was part of any such activity.
Muhammad Qamar Mumtaz Inspector/Investigating Officer (PW-4) deposed during cross- examination that:- "I did not visit the abode of the accused to ascertain that accused Muhammad Iftikhar has link with any proscribed organization or not, I did not collect any previous criminal history of the accused."
Attempt on the part of prosecution to draw the attention towards the recovery of cash and tainted amount is considered, Danish Hameed 321/Corporal deposed during cross-examination that:- "The detail of currency notes is not mentioned in my complaint Ex.PA. Volunteers, the detail is given in recovery memo. Ex.PB. I have not mentioned the serial number of currency notes in Ex.
PB. Volunteers, only serial number of one note of Rs.500/- is given in Ex.PB---Currency notes if mixed with such like other currency notes could not be identified that which were recovered from the possession of the accused. Volunteers, only one currency note of Rs.500/- duly signed by me could be identified No private person who deposited money to the accused has been neither cited as witness nor as accused in the case."
11. Admittedly appellant/accused has not any terror or criminal history of any sort and he has absolutely clean antecedents, till not proved otherwise. It is not even the case of the prosecution that the appellant was directly or indirectly involved in any terrorist act prior to his apprehension in this case. In this scenario it was abundant duty of the prosecution to collect legally admissible evidence to show that the appellant was member of banned/proscribed organization. As such we have no hesitation in concluding that prosecution has not been able to bring on record any evidence qua commission of offence punishable under sections 11-H, 11-I and 11-J of the Anti- Terrorism Act, 1997.
12. It is claimed by the prosecution that on the basis of intelligence sources, decoy witness was sent to the place where appellant was fund raising but admittedly it was neither reduced into writing in the E form of any Daily Dairy entry nor any document or technical surveillance report was obtained, placed or proved on record. It is a settled legal proposition that whenever such like intelligence information is claimed to have been received, fair play demands that it should be reduced into writing in specific words. This procedure is not a mere formality for the sake of it but it provides the safeguard against false implication of persons. It was also mandated that Law casts duty on the prosecution to strictly follow the safety procedure and ensure their strict compliance.
13. Coupled with above omissions, the situation is further aggravated due to the fact that prosecution failed to prove that appellant is the person against whom information was given by intelligence sources. Danish Hameed 321/Corporal (PW-2) deposed during cross-examination that: -- " The source persons are also employees of CTD department. The source was not accompanying us, when we left Police Station."
In cases pertaining to intelligence sources information, although the name, particulars of the informer or sources have to remain secret for their safety but the evidence of prosecution in such like matters has to be carefully scrutinized. There is nothing on record to show as to what investigation was carried out to expose that the appellant being member of banned organization collected/possessed/ entered into an arrangements of funds to be used for the purpose of terrorism. All the above observations, when looked upon in totality, end up in denting the prosecution story.
14. It is true that PW-3, the decoy witness arranged by Danish Hameed 321/ Corporal (PW-2) cannot be said to be a fully independent witness. A witness who paid tainted money to the appellant and received receipt and a book titled "Yeh Mazar Yeh Melay" become decoy witness. A witness arranged by the police preparatory to trap the accused cannot be treated equally by the court with the eye-witness. Even Danish Hameed 321/ Corporal (PW-2) had not deployed shadow witness to bear the conversation between the decoy witness Ali Ahsan 166/Corporal (PW-3) and the accused. Ali Ahsan 166/Corporal (PW-3), decoy witness, has not stated that how he identified the accused. As Danish Hameed 321/Corporal (PW-2) and Ali Ahsan 166/Corporal (PW-3) has not stated that the description of the accused was given by the secret informer to them or they already know the accused-appellate. Furthermore, prosecution has not produce a book with the title "Yeh Mazar Yeh Melay" received by Ali Ahsan 166/ Corporal (PW-3) from the accused and handed over by him (PW-3) to Danish Hameed 321/Corporal (PW2), In the opinion of this Division Bench, the prosecution has failed to discharge its burden and prove the receiving of book with the title "Yeh Mazar Yeh Melay" which allegedly was given by the accused to All Ahsan 166/Corporal (PW-3), The failure to do so by the prosecution is suggestive of the fact that deposition of All Ahsan 166/Corporal (PW-3) is not worthy of credence. On the basis of the evidence of the decoy witness alone, a conviction will be unjust and illegal. However, when the complainant and others fully support the prosecution, the evidence of the decoy witness arranged by the complainant cannot be ignored by the court, and in such circumstances such a witness cannot be branded as an interested witness. But in a case where the prosecution does not have other material to prove the charge against the accused, the evidence of the, decoy witness arranged by the complainant preparatory to trap cannot be given much value by the court. Supportive evidence cannot be allowed to take the place of substantive evidence.
15. As regards charge under sections 8 and 9 of the Anti-Terrorisim Act, 1997 qua distributing hate books containing hatred materials to stir up sectarian and religious hated. Danish Hameed 321/Corporal deposed during examination-in-chief that he (PW-2) recovered book (P-1) with the title "Yeh Mazar Yeh Melay" from the black bag of the appellant. Whereas, during cross-examination Muhammad Qamar Mumtaz Inspector/Investigating Officer (PW-4) deposed that he did not join into investigation any author, publisher or photocopier of the banned book. The Investigating Officer had not collected any material revealing that the appellant was distributing any written material nor how many books were printed and paid for by the appellant. From the prosecution evidence it reveals that book (P-1) with the title "Yeh Mazar Yeh Melay" was recovered from the black bag of the appellant. Whereas, the hook received by Ali Ahsan 166/Corporal (PW-3) from the appellant and handed over by him to Danish Hameed 321/Corporal (PW-2) was not produced before the court. As only one book (P-1) recovered from the bag of the appellant was produced before the court. Ali Ahsan 166/Corporal (PW-3) deposed during examination-in-chief that, "after giving me a currency note of RS.500/- bearing serial No . G E6801506 after signing the same. 1 came back after some time and told that Muhammad Iftikhar is collecting funds for banned organization "Jash-eMuhammad" and produced before Danish Hameed 321 Corporal one receipt having No.140 and a book with the title of "Yeh Mazar Yeh Melay" which was found to be banned vide Notification No.SO(IS-111)6-15/2010 dated 26.05.2014." The Investigating Officer had not collected any material to establish that the appellant distributed book (P-1) to any other person or persons in any manner whatsoever.
16. Now coming to the next question as to whether the prosecution has established safe custody of recovered articles from the custody of the appellant. After a careful scrutiny of the materials on record, we come to the conclusion that the prosecution has not established safe custody of recovered articles. Danish Hameed 321/Corporal-the complainant (PW-2) deposed during his Court statement that, "Qamar Mumtaz Inspector/I.O. came at the spot. I after enquiring the. FIR number from him, incorporated the FIR number on the recovery memo. and said three sealed parcels. I handed over copy of complaint, recovery memo, three sealed parcels and custody of accused to the I.O." Muhammad Qamar Mumtaz Inspector/Investigating Officer (PW-4) also deposed during examination in chief that, "Complainant Danish Hameed 321 Corporal after enquiring FIR number from me, mentioned the same on recovery memo. Ex.PB and parcels and handed over the said recovery memo. and three sealed parcels with the stamp of CTD as well as custody of accused to me and supported his version contained in complaint Ex.PA....I along with members of raiding party, accused and case property proceeded to the Police Station. CTD Gujranwala. After reaching there at about 11:50 PM, I handed over the case property i.e three sealed parcels to the. Muharrar and detained the accused in the police lockup." Danish Hameed 321/Corporal the complainant Muhammad Qamar Mumtaz Inspector/Investigating Officer (PW-4) deposed during his court statement that he had handed over three sealed parcels to the moharrar. However, Moharrar was not examined in this case and therefore also crucial link evidence has not been completed by the prosecution. There is no explanation for this failure to establish safe custody of recovered articles P-1 to P-8/1-86 from time of the seizure at 8:20 P.M on 10-04-2019 till its production in the trial court. Mere oral evidence of the prosecution witnesses' i.e. Danish Hameed 321/Corporal the complainant and Muhammad Qamar Mumtaz Inspector/ Investigating Officer (PW-4) does not discharge the heavy burden of responsibility, which lies on the prosecution. Practically the prosecution took upon them the risk of losing the case.
17. In view of the above detailed discussion, we have no hesitation in concluding that right from the inception till the filing of the charge sheet and even thereafter, the case of the prosecution seriously suffers with improbabilities and doubts. It is a settled legal proposition that whenever prosecution comes up with a case which is full of doubts and is unbelievable, the benefit shall always be given to the accused. An accused is presumed to be innocent until he is found guilty.
The burden of proof that he is guilty, is on the prosecution and that the prosecution has to establish its case beyond all reasonable doubts. In other words, the innocence of an accused can be dispelled by the prosecution, only on establishing his guilt beyond all reasonable doubts on the basis of evidence.
18. In view of the aforesaid discussion, we have no hesitation to conclude that prosecution has not been able to prove the guilt of the appellant beyond shadow of doubt through un-impeachable evidence. As such granting the benefit of doubt the appellant is acquitted of the charges punishable under sections 11-F(5)/11-H/114/11-J/ 11-N and 8/9 of Anti-Terrorism Act, 1997. The accused be released from jail forthwith if not required in any other case.