Anti terrorism meaning in Urdu.Acquittal Case laws.
دہشت گردی کے مقدمہ میں پولیس شہادت پر انحصار اور ملزم کی بریت
مقدمہ کے بنیادی حقائق |
استغاثہ کے مطابق ملزم کو ایک مصروف شہری علاقے سے گرفتار کیا گیا اور اس کے قبضے سے جہادی نوعیت کا لٹریچر برآمد ہوا۔ پولیس کا مؤقف تھا کہ یہ مواد نفرت انگیزی اور دہشت گردی کو فروغ دینے کے مترادف ہے، جس کی بنیاد پر ملزم کے خلاف انسدادِ دہشت گردی ایکٹ کے تحت مقدمہ درج کیا گیا۔
ٹرائل کورٹ کا فیصلہ
ٹرائل کورٹ نے پولیس اہلکاروں کی گواہی کو قابلِ اعتماد سمجھتے ہوئے ملزم کو جرم کا مرتکب قرار دیا اور سزا سنا دی، تاہم اس فیصلے کے خلاف ملزم نے ہائی کورٹ میں اپیل دائر کی۔
ملزم کا مؤقف
ملزم نے اپیل میں مؤقف اختیار کیا کہ اسے رات کے وقت اس کے گھر سے اٹھایا گیا اور جھوٹا مقدمہ بنا کر اس پر ممنوعہ مواد کی برآمدگی ظاہر کی گئی۔ ملزم کے مطابق جس بیگ سے مواد برآمد دکھایا گیا وہ اس کی بیٹی کا تھا اور اس میں اس کے تعلیمی کاغذات موجود تھے۔
شہادت کا عدالتی جائزہ
ہائی کورٹ نے قرار دیا کہ اگرچہ پولیس اہلکار قانوناً گواہ ہو سکتے ہیں، لیکن جب واقعہ گنجان علاقے میں پیش آنے کا دعویٰ ہو اور اس کے باوجود کسی ایک بھی آزاد شہری کو گواہ نہ بنایا جائے تو ایسی شہادت کو انتہائی احتیاط سے پرکھنا لازم ہوتا ہے۔
تفتیشی خامیاں
عدالت نے نشاندہی کی کہ مبینہ طور پر برآمد ہونے والا لٹریچر نہ تو عدالت میں پیش کیا گیا، نہ اسے بطور ثبوت نمائش میں لایا گیا اور نہ ہی یہ ثابت کیا جا سکا کہ ملزم اس مواد کا مصنف، ناشر یا تقسیم کنندہ تھا۔ جے آئی ٹی رپورٹ کا حوالہ دیا گیا مگر اسے بھی قانونی طریقے سے ثابت نہیں کیا گیا۔
قانونی اصول اور عدالتی مشاہدات
عدالت نے واضح کیا کہ فوجداری قانون کا مسلمہ اصول ہے کہ استغاثہ پر لازم ہے کہ وہ اپنا مقدمہ شک سے بالاتر ثابت کرے۔ اگر شہادت میں تضاد ہو یا معقول شک پیدا ہو جائے تو اس کا فائدہ ملزم کو دیا جاتا ہے۔
حتمی فیصلہ
ان تمام وجوہات کی بنا پر ہائی کورٹ نے اپیل منظور کرتے ہوئے ٹرائل کورٹ کا فیصلہ کالعدم قرار دیا اور ملزم کو بری کرنے کا حکم دیا، نیز جیل حکام کو ہدایت کی کہ اگر وہ کسی اور مقدمہ میں مطلوب نہ ہو تو اسے فوری رہا کیا جائے۔
Judgement
THE HIGH COURT OF SINDH AT KARACHI
Special Criminal Anti-Terrorism Appeal No.348 of 2019
Mr. Justice Abdul Maalik Gaddi
Justice Mrs. Rashida Asad
Appellant
:
Nasarullah Khan son of Nazir Ahmed
through Mr. Muhammad Farooq,
Advocate.
Respondent
:
The State through Mr. Abdullah Rajput,
Deputy Prosecutor General Sindh.
Date of hearing
:
08.04.2020
Date of Order
:
08.04.2020
JUDGMENT
Abdul Maalik Gaddi, J.– Through this appeal, the appellant has
assailed the legality and propriety of the judgment dated
26.12.2019 passed by the learned Judge, Anti-Terrorism Court
No.VI, Karachi, in Special Case No.83/2018 (Re: The State v.
Nasarullah Khan), arising out of Crime No.145/2018 registered
under Section 11-W(i) & 11-F(i) of ATA, 1997 at police station
CTD/INV Karachi, the learned trial Court after full
dressed trial, convicted and sentenced the appellant as stated in
point No.3 of the impugned judgment. For the sake of convenience,
it would be proper and relevant to reproduce the findings on the
said point, which reads as under:-
“Point No.3
Upshot of the discussion is that prosecution has
proved its case beyond the reasonable shadow of doubt
as such the present accused has been proved to be
guilty of the offence being facilitator of Khalid Makashi
a terrorist of proscribed organization Al-Quaida and he
had also incited hatred, gave projection to person,
proscribed organization for committing terrorist
activities, hence, I hereby convict and sentences
accused Nasarullah Khan s/o Nazir Ahmed u/s
265(H)(ii) for the offence under section 11-F(i) and 11-
W(i) of Anti-Terrorism Act 1997, as under:-
1) Accused Nasarullah Khan is convicted u/s 11-
F(i) of ATA, 1997 and he is sentenced to
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undergo for R.I. 06 months and with fine of
Rs.5,000/- and in case of default in payment
of the fine then he shall suffer a Simple
Imprisonment of another 15 days.
2) Accused Nasarullah Khan is also convicted
u/s 11-W(i) of ATA, 1997, r/w section 7(i) of
ATA, 1997, and he is sentenced to undergo for
R.I 05 years and with fine of Rs.10,000/- and
in case of default in payment of the fine then
he shall suffer a Simple Imprisonment of
another 01 month.
The benefit of Section 382-B Cr.P.C. shall be
extended to the above named accused and all the
sentences awarded shall run concurrently.”
2.
Concisely facts of the case are that on 11.11.2018,
complainant SI Muhammad Asim, who was on patrolling duty
received spy information about the presence of the appellant/
accused near Holy Family Hospital, Afridi Shaheed Road, Soldier
Bazaar No.1, Karachi. He was also suspected of possessing inciting
material against Pakistan and was spreading religious hatred. On
receipt of such information, police party reached at the pointed
place and apprehended a person having black colored bag from his
hand, who on inquiry disclosed his name as Nasarullah Khan. The
bag found in his possession contained four magazines of Nawa-eAfghan Jihad, one book titled Rahe Jihad and some other
literature, the said SI prepared such memo of arrest and recovery
at the spot and brought the accused along with recovered property
at police station, where he lodged FIR against the appellant/
accused.
3.
After completing the investigation, challan against appellant
was submitted in the trial Court and the Presiding Officer of the
learned trial Court after completing all legal formalities framed the
charge against the appellant at Ex.3 to which he pleaded not guilty
and claimed to be tried vide his plea available on record at Ex.4.
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4.
At the trial, prosecution examined three (03) witnesses. PW-
01 SI Muhammad Asim at Ex.05, he has produced departure entry
at Ex.06, the memo of arrest and recovery at Ex.07, statement u/s
154 CrPC at Ex.08, entry No.14 at Ex.09 and memo of inspection
of the place of incident at Ex.10. PW-02, HC Mehboob Hussain at
Ex.11. Finally, PW-03 Inspector Ali Haider at Ex.12, he has
produced entry No.17, entry No.20, FIR bearing No.145/2018 and
road certificate at Ex.13, 14, 15 and 16, respectively. Thereafter,
vide statement at Ex.18 the APG for the State closed the evidence
side of the prosecution.
5.
Statement of appellant/ accused as required under Section
342 CrPC was recorded at Ex.19, in which he has totally denied
the allegations leveled by the prosecution on him. The appellant
has further stated in his statement that all PWs have deposed
falsely in favour of the prosecution. He has further stated that
nothing was recovered from him and he is innocent and was
arrested in between the night of 9th and 10th November 2018 by
officials of law enforcement agencies in civil dress from his house.
They took away the bag of his daughter which had her assignment
paper and subsequently showed it to had been recovered from him.
Finally, he has prayed for justice. Appellant, however, in support of
his case has produced DW-01 Ghulam Fatima, her wife, at Ex.21,
she deposed that her husband was picked up by some unknown
persons from his house in between the night of 09/10.11.2018 as
well as DW-02 Hamid-ur-Rehman Awan (one of Journalist) at
Ex.22, also deposed in his evidence that on 10.11.2018, he being
Secretary of Karachi Union of Journalists called an urgent meeting
at Karachi Press Club for recovery of appellant one day prior to
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alleged incident. Appellant, however, did not record his statement
on oath.
6.
After conclusion of trial, the appellant was convicted and
sentenced as mentioned above by the learned trial Court, hence
the instant appeal.
7.
Mr. Muhammad Farooq, learned counsel for appellant has
argued that the impugned judgment passed by the learned trial
Court is against the law and on facts and that the prosecution
story is false and concocted one and no such incident of recovery
of proscribed books or literatures ever took place as alleged, but
the learned trial Court did not consider these aspects of the case in
this true perspective; that in fact appellant, who is a senior
Journalist, had been taken away by the law enforcement agency
from his house in between the night of 09/10.11.2018 and
subsequently handed over to CTD, who falsely involved him in this
case; that news of arrest of appellant was published in the
Washington Post and Daily Mail, UK, so also, the Karachi Press
Club also issued a press release regarding illegal arrest of the
accused at the hands of law enforcement agency prior to the date
of his alleged arrest shown in the FIR. In this regard he draws
attention of this Court towards the photocopies of the Press
Release issued by Karachi Press Club as well as newspaper
clipping appearing in the said newspaper and was of the view that
appellant was picked up by unknown persons prior to alleged
incident. Therefore, according to him, false implication of the
appellant in this case with due deliberation and consultation
cannot be ruled out; that there is no specific allegation against the
appellant/ accused nor any public witness was associated at the
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alleged incident. Appellant, however, did not record his statement
on oath.
6.
After conclusion of trial, the appellant was convicted and
sentenced as mentioned above by the learned trial Court, hence
the instant appeal.
7.
Mr. Muhammad Farooq, learned counsel for appellant has
argued that the impugned judgment passed by the learned trial
Court is against the law and on facts and that the prosecution
story is false and concocted one and no such incident of recovery
of proscribed books or literatures ever took place as alleged, but
the learned trial Court did not consider these aspects of the case in
this true perspective; that in fact appellant, who is a senior
Journalist, had been taken away by the law enforcement agency
from his house in between the night of 09/10.11.2018 and
subsequently handed over to CTD, who falsely involved him in this
case; that news of arrest of appellant was published in the
Washington Post and Daily Mail, UK, so also, the Karachi Press
Club also issued a press release regarding illegal arrest of the
accused at the hands of law enforcement agency prior to the date
of his alleged arrest shown in the FIR. In this regard he draws
attention of this Court towards the photocopies of the Press
Release issued by Karachi Press Club as well as newspaper
clipping appearing in the said newspaper and was of the view that
appellant was picked up by unknown persons prior to alleged
incident. Therefore, according to him, false implication of the
appellant in this case with due deliberation and consultation
cannot be ruled out; that there is no specific allegation against the
appellant/ accused nor any public witness was associated at the
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time of alleged arrest of the appellant from the busiest place of
Karachi viz. M.A. Jinnah Road in front of Holy Family Hospital;
that investigating Officer has also not collected any evidence
against the appellant being member or supporter of any proscribed
organization or persons nor had he published or glorified any
proscribed organization in his publication, as he is Journalist by
profession. Per learned counsel the appellant has no criminal
record and there is no direct evidence against him; that there are
major flaws and dents in the prosecution case, as according to him
neither the appellant is writer, author, publisher or printer of the
alleged books/ magazines or he was spreading the hatred material
among the public; that appellant is a lover of Pakistan. Therefore,
he prayed that this appeal may be allowed and the appellant may
be acquitted from the charge.
8.
Conversely, Mr. Abdullah Rajput, learned Deputy Prosecutor
General Sindh has supported the impugned judgment by arguing
that impugned judgment passed by the learned Presiding Officer of
the trial Court is perfect in law and on facts and submits that after
registration of FIR, JIT was constituted, which thoroughly
interrogated the appellant and after gathering entire information
from all the sources, the appellant was declared “black”; that the
appellant is well connected to the commission of crime being
facilitator of Khalid Makashi, a terrorist of proscribed organization
Al-Quaida and the four magazines “Nawa-e-Afghan Jihad” one
book in the name of “Rah-e-Jihad”, one book in the name of
“Punjabi Talban” and other literature had been recovered from the
appellant and this act of appellant has incited hatred and projected
persons and proscribed organization to commit terrorist activities;
that all the prosecution witnesses have supported the prosecution
6
case and that the appellant has not brought on record any enmity
with the complainant or prosecution witnesses, therefore,
according to him, this appeal merits no consideration and the
same may be dismissed.
9.
We have heard the learned counsel for the parties at a
considerable length and perused the evidence and documents so
made available before us.
10.
It is noted that the whole prosecution case revolves around
the evidence of three witnesses i.e. (i) complainant ASI Muhammad
Asim; (ii) HC Mehboob Hussain, mashir of arrest and recovery of
appellant and (iii) Inspector Ali Haider who conducted the
investigation of the case. Their evidence and documents so brought
on record have been perused and considered by us with due care.
This case is based upon spy information with regard to availability
of the appellant at Holy Family Hospital by containing different
types
of literatures
against Pakistan Armed
Forces and
Government of Pakistan in his bag. On such information, police
party reached at pointed place and apprehended the present
appellant and recovered black color bag in his hand and on
opening the said bag found literature in shape of eleven books,
which containing incite hatred material. Such memo was prepared
on spot and accused was arrested in presence of police mashirs,
but it is noted that complainant in his cross examination has
admitted that the place of arrest and recovery was populated and
congested area, but despite this fact the complainant did not
bother to associate any independent person from the said area to
witness the event. For the sake of convenience, it would be proper
7
to reproduce the relevant portion of the cross examination of the
complainant, which reads as under:-
“It is a fact that place of arrest was situated in the thickly
populated and congested area, which also remains busy at
relevant time when the accused was arrested. It is a fact that
there were security guards of Holy Family Hospital, but they
were inside the hospital. We did not see any person while
passing through on foot as vehicles were passing and I did
not ask any person on those vehicles to act as witness of such
recovery.”
No doubt the evidence of the police officials is as good as any other
citizen, however, their evidence must be scrutinized with a greater
degree of circumspection for the reasons that recovery mashirs are
subordinate to complainant and subordinate official is seldom
expected to tell truth in deviation of express or implied instructions
of his superiors. Here in this case, admittedly, the private persons
were available at the place of incident, but they were not cited as a
witness of recovery. No explanation in this regard has been
furnished by the prosecution and so also no efforts were made by
the complainant to secure the independent witness. It is by now
well established principle of law that despite of availability of
independent/neutral witnesses on spot, non examination of such
witnesses draws an inference in view of Article 129(g) of Qanun-eShahadat Order, 1984, that if they had been examined, they would
not have supported the case of prosecution, therefore, non
compliance of provision of Section 103, Cr.P.C. creates doubt in
the prosecution story. In this regard, we are supported with the
cases of Mushtaq Ahmed v. The State reported in PLD 1996 SC
574 and The State through Advocate General, Sindh v. Bashir
and others reported in PLD 1997 SC 408.
11.
The allegations against the appellant are that he being the
facilitator of Khalid Makashi a terrorist of proscribed organization
8
„Al-Qaedah‟ having possession of a black color bag containing four
magazines “Nawa-e-Afghan Jihad”, one book in the name of “Rahe-Jihad”, one book in the name of “Punjabi Talban” and other
literature at the time of his arrest, but on perusal of record, no
convincing evidence is available on record to show that the
appellant has any nexus with the terrorist of proscribed
organizations. Nothing on record that alleged material so collected
by the recovery officer was authored, printed or published by the
appellant nor even any material is placed on record to show that
accused was member of any proscribed organization. No evidence
on record that the appellant was spreading these material among
the peoples. There is only oral assertion of the prosecution
witnesses which has not been supported by any independent
witness. Merely asserting that appellant has connection with
proscribed organizations is not enough to connect him in this case.
The appellant has denied allegations as leveled against him by the
prosecution in his statement recorded under Section 342, Cr.P.C.
and submitted that he was picked up by some unknown persons
from his house and foisted hatred material against him. In this
regard, the appellant has produced two witnesses namely, Ghulam
Fatima (wife of appellant) as well as one Hamid-ur-Rehman who is
said to be Journalist, supported the case of appellant. These
witnesses were though cross examined before the trial Court, but
they did not shake and the learned trial Court did not take into
consideration this aspect of the case in its true perspective.
12.
The evidence so brought on record by the prosecution
appears to be stereotyped. Investigating officer of the case in his
evidence has deposed that case property was not handed over to
him in sealed condition. He also admitted that none of the
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book/journal recovered from the accused, the complainant put his
signature and the alleged material pertains to year 2011-2012, but
this fact has also been ignored by the learned trial Court.
13.
It is pertinent to mention here that on perusal of record
available before us, the alleged case property viz. four magazines of
“Nawa-e-Afghan Jihad”, one book in the name of “Rah-e-Jihad”,
and one book in the name of “Punjabi Talban” along with other
literatures allegedly recovered from the possession of the appellant
were not produced/tendered or exhibited in the evidence by the
prosecution to prove that the alleged material was infact hatred.
Not only this, the alleged recovered material is also not available in
the R&Ps of the trial Court. When confronted this fact to learned
Deputy Prosecutor General, Sindh for reply, he has no satisfactory
answer with him.
14.
It needs not be said that it is obligatory upon the prosecution
to produce/tender the alleged recovered material from the
appellant before the Court during trial as initial burden lies upon
the prosecution. In absence thereof, it could not be held that the
appellant was carrying alleged recovered material with his person
and the same was recovered from him. It is settled principle of law
that non production of case property in evidence before trial Court
is fatal to prosecution case and destroys its very foundation.
15.
It has vehemently been argued by the learned Deputy
Prosecutor General, Sindh that in this matter Joint Investigation
Team (J.I.T) was also constituted to probe the matter wherein
appellant was found “black”, therefore, conviction awarded to the
appellant may be maintained. We have, however, not felt
persuaded to agree with the learned Deputy Prosecutor General,
10
Sindh for the reasons that the said J.I.T report was neither
produced in evidence nor brought on record and in absence
thereof, no reliance can be placed on it. Even otherwise, J.I.T
report has no evidentiary value, unless the material on the basis of
which the said report was prepared is produced and proved during
trial.
16.
As regards to the investigation conducted by the
investigation officer in the case in hand, record transpires that
investigation officer not only failed to dig out the source of
publication of alleged recovered material, but also failed to find out
from where the appellant obtained the alleged recovered material.
Needless to say that investigating officer was duty bound to collect
all relevant evidence pertaining to allegation of crime and to dig out
the truth enabling and facilitating the Court to administer justice,
however, it appears that investigating officer has failed to discharge
his duties in the manner as provided under the law. It is also
admitted by investigating officer of the case in his cross
examination that the appellant having no previous criminal record
of any kind. Nothing also on record that appellant was remained
indulge in such type of activities in past.
17.
All discussed above leads us to an irresistible conclusion
that the prosecution remained fail to prove the case against the
appellant beyond the shadow of reasonable doubt while there is no
cavil to the proposition that responsibility to prove its case is
squarely rest upon the shoulders of the prosecution that has not
been discharged successfully in this case and it is settled law that
benefit of each and every doubt is to be extended to the accused
and that only a single reasonable doubt qua the guilty of the
11
accused is sufficient to acquit him of the charge. Even as per
saying of the Holy Prophet (P.B.U.H.) the mistake in releasing a
criminal is better than punishing an innocent person. Same
principle was also followed by the Hon‟ble Supreme Court of
Pakistan in the case of Ayub Masih v. The State [PLD 2002 SC
1048], wherein, at page 1056, it was observed as under:-
“It will not be out of place to mention here that this rule
occupies a pivotal place in the Islamic Law and is enforced
rigorously in view of the saying of the Holy Prophet (P.B.U.H.)
that the “mistake of Qazi (Judge) in releasing a criminal is
better than his mistake in punishing an innocent.”
In view of the above, we accept/allow this Special Criminal AntiTerrorism Appeal No.348 of 2019, set-aside the conviction and
sentence recorded by the learned trial Court through impugned
judgment and acquit the appellant Nasarullah Khan son of Nazir
Ahmed from the above charge. He is in custody, therefore, jail
authorities are directed to release the appellant forthwith, if he is
not required in any other case.
18.
This appeal was heard and allowed by us after hearing the
arguments of learned Counsel for the parties in open Court on
08.04.2020 and these are the detailed reasons thereof.
JUDGE
JUDGE
Faizan A. Rathore/PA*