ABDUL JABBAR Versus State
TARIQ SALEEM SHEIKH, J.--- This appeal under Section 25(1) of the Anti-Terrorism Act, 1997 (the "Act"), is directed against judgment dated 30.11.2015 passed by the learned Judge, Anti-Terrorism Court, Dera Ghazi Khan, in case FIR No.38/2015 dated 17.6.2015 registered at Police Station CTD, Multan, for an offence under section 9, of the Act.
2. Brief facts of the case are that on 17.6.2015 at about 9:00 a.m. Pir Bakhsh/SI (PW-3) was present at Juma Morr in Village Sakhi Sarwar along with other police officials when he received a secret information that Appellant Abdul Jabbar, who ran a shop under the name and style of Idreesia Mobile Centre in Abbas Market, Sakhi Sarwar, was engaged in disseminating hate and other objectionable material among the people. He downloaded video clips of provocative speeches of the leaders of proscribed organizations and Jehadi trainings including preparation of bombs and suicidal attacks, and copied them in the memory cards of his customers for Rs.50/- each. On receipt of this information, Pir Bakhsh/SI (PW-3) sent Muhammad Sadiq Hussain 87/C (PW-4) to his shop with a currency note of the denomination of Rs.50/- duly signed by him to get some hate and Jehadli videos from him. After some time the latter came back with video clips of the provocative speeches of Maulana Haq Nawaz Jhangvi, Maulana Azam Tariq and Zia-ur-Rehman Farooqi in a 4GB memory card. Pir Bakhsh/SI checked the said memory card and having satisfied that the Appellant was engaged in illegal activity raided his shop with his contingent, apprehended him and seized a Lenovo CPU with cables P-1, LCD P-2, IBM keyboard P-3, mouse P-4, two card readers P-5/1-2 vide Recovery Memo Exh.PB. He also physically searched him and recovered Rs.400/- .P-6 and one signed note of Rs.50/- P-7 from the right pocket of his shirt which he seized vide Recovery Memo Exh.PC. He also took into possession one 4GB memory card P-8 vide Recovery Memo Exh.PD. After that he drafted complaint Exh.PA and despatched it to the police station through Muhammad Khalid 130/C for registration of a case on the basis of which Ghulam Yaseen/ASI (PW-2) registered FIR No.38/2015 (Exh.PA/2) at 12:30 p.m. the same day.
3. Investigation of this case was entrusted to Ghulam Akbar/Inspector (PW-5) who inspected the place of occurrence, prepared rough site plan Exh.PE and recorded, the statements of witnesses under section 161, Cr.P.C. Pir Bakhsh/SI (PW-3) handed over the case property to him. On 18.6.2015, the Appellant was sent to judicial lock-up. During his investigation Ghulam Akbar/Inspector (PW-5) found that the Appellant had committed the offence. Report under section 173, Cr.P.C. was submitted accordingly.
4. On 29.7.2015, the learned Judge, ATC Court, framed charge against the Appellant under section 9 of the Act to which he pleaded not guilty and claimed trial. In order to prove its case the prosecution produced six witnesses. Complainant Pir Bakhsh/SI (PW 3) and Sadiq Hussain 87/C (PW-4) were the members of the raiding party and supported the prosecution version as set out in the complaint Exh.PA and FIR Exh.PA/2. Sadiq Hussain 87/C (PW-4) also testified about seizure of the articles P-1 to P-8 vide Recovery Memos Exh.PB, Exh.PC and Exh.PD. Ghulam Yaseen/ASI (PW-2) drew up FIR Exh.PA/2 on the basis of complaint Exh.PA. Ghulam Hussain/ASI (PW-4) was Moharrar of the police station. He testified about safe custody of the case property in the Malkhana. Muhammad Imran 106/CPL (PW-6) deposed about transmission of the parcel containing CPU to the office of the Punjab Forensic Science Agency (PFSA). The Investigating Officer Ghulam Akbar/Inspector (PW-5), gave the details of his investigation and the evidence he collected in this case. In documentary evidence, the prosecution inter alia produced report of PFSA Exh.PF and glossary of terms Exh.PF/1.
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. When he was asked as to why the aforementioned case had been registered against him and why the PWs had deposed against him he stated as under:
"The police, after the incident of Army Public School at Peshawar dated 16.12.2014, concocted and planted this case against me to show their efficiency. Neither I was running business of recording of hate material nor was any such material recovered from me. The police took into possession CPU, LED, mouse, keyboard from my shop in my absence. According to the evidence produced by the prosecution, none of the articles were sealed into parcel. The police maneuvered the hate material in the hard disk and other device. The prosecution case is result of padding, concoction and fabrication. All the PWs are police officials who falsely deposed against me. I am innocent."
The Appellant neither opted to make statement on oath under section 340(2), Cr.P.C. nor examined any witness in his defence.
6. On the conclusion of trial, vide impugned judgment dated 30.11,2015, the learned trial Court convicted the Appellant under section 9 of the Act and sentenced him to rigorous imprisonment for one year with fine of Rs.10,000/- and in default thereof to undergo simple imprisonment for a further period of one month. However, benefit of section 382-B, Cr.P.C. was extended to him. Hence, this appeal.
7. In support of this appeal the learned counsel for the Appellant contended that the police had falsely implicated the Appellant in this case due to ulterior motives. All the prosecution witnesses examined at the trial were from the police force and there was no independent witness to support them. Even these witnesses were .discredited owing to material contradictions in their testimonies. He further contended that the police did not seal articles P-1 to P-8 at the spot and subsequently maneuvered the hate and Jehadi material in the CPU/hard disk and the memory card to frame the Appellant in the instant case. The forensic report Exh.PF had no legal sanctity as safe custody of articles P-1 to P-8 was not established. He lastly contended that the Appellant was a law abiding citizen and had no criminal history. There was no evidence that he was a member of any proscribed organization or was otherwise supporting or promoting the cause of that organization. As such, there was no reason for him to have the alleged hate material in his possession. He prayed that this appeal may be accepted and the Appellant be acquitted of the charge.
8. On the other hand, the learned Deputy Prosecutor General controverted the above contentions. He argued that the CPU and the memory card P-8 containing objectionable material against the Shia sect were recovered from the Appellant which was likely to stir sectarian hatred. During the trial all the witnesses supported the prosecution case and the charge against him had been proved. He maintained that none of the said witnesses had any enmity or ill-will against the Appellant so there was no reason for them to falsely implicate him in this case. He prayed that this appeal be dismissed and conviction and sentence of the Appellant be upheld.
9. Arguments heard. Record perused.
10. The prosecution case starts with a source information. Complainant Pir Bakhsh/SI (PW-3) deposed that on 17.6.2015 at about 9:00 a.m. he received a report that the Appellant, who ran a mobile shop in Abbas Market, Sakhi Sarwar, was spreading hate and Jehadi material among the people in violation of law. He had downloaded objectionable video clips which he would copy on memory cards of the cell phones of the people for Rs.50/-. In order to verify this information Pir Bakhsh/SI gave a signed currency note of Rs.50/- to Sadiq Hussain 87/C (PW-4) and sent him to his shop who returned after some time with the video clips of the provocative speeches of Maulana Haq Nawaz Jhangvi, Maulaha Azam Tariq and Zia-ur-Rehman Farooqi copied in his 4GB memory card P-8 from him. Subsequently he seized the said memory card vide Recovery Memo Exh.PD. Sadiq Hussain 87/C testified to the same effect. Admittedly, memory card P-8 was a material piece of evidence. However, neither Pir Bakhsh/SI (PW-3) nor the Investigating Officer, Ghulam Akbar/Inspector (PW-5), secured it by putting a seal thereon. Further, it was never sent to any laboratory for a forensic report. Resultantly, its authenticity could not be established which creates a major dent in the prosecution case.
11. According to Pir Bakhsh/SI (PW-3), he raided the Appellant's shop with a police contingent after he was satisfied that he was engaged in illegal activity, apprehended, him and seized a Lenovo CPU with cables P-1, LCD P-2, IBM keyboard P-3, mouse P 4, and, two card readers P-5/1-2 vide Recovery Memo Exh.PB. Sadiq Hussain 87/C (PW-4) fully supported him and added that he signed Recovery Memo Exh.PB as a marginal witness. However, conviction cannot be recorded against the Appellant unless the evidence of recovery furnished by these witnesses is corroborated by a credible forensic report. For this prosecution must establish safe custody and safe transmission of the CPU P-1 from the Appellant's shop to the PFSA. A wade through the evidence available on record evinces that it has failed to do so.
12. As already noted, Pir Bakhsh/SI (PW-3) testified that he seized articles P-1 to P-5/1-2 from the Appellant's shop vide Recovery Memo Exh.PB. However, he was completely silent about what he did with them. The learned Deputy Prosecutor General contended that the Investigating Officer, Ghulam Akbar/Inspector (PW-5) stated in his examination-in-chief that Pir Bakhsh/SI handed them over to him. We are afraid the said statement of PW Ghulam Akbar/Inspector is insufficient to provide the missing link and complete the chain of custody as PW Pir Bakhsh/SI did not say so. However, the matter does not end here. Ghulam Akbar/Inspector (PW-5) deposed that on 17.5.2015 he raided the Appellant's shop for investigation at about 9:45 a.m. and returned to the CTD Headquarters at about 12:00 noon/1:00 p.m. He further stated that he sealed CPU P-1 at, the site. According to the forensic report Exh.PF, the Windows operating system was last logged on at 5:47:29 p.m. on 17.6.2015. This clearly indicates tampering with the CPU P-1 after its seizure.
13. The prosecution has not brought any evidence on record that the Appellant has a criminal history or is a member of any proscribed organization or was otherwise supporting or promoting the cause of any such body. Therefore, there was a heavy onus on the prosecution to explain what motivated him to possess and disseminate the hate and Jehadi material he is accused of.
14. For all the above reasons we hold that the prosecution evidence is not free from doubt. It is trite that in case of doubt its benefit must go to the accused not as a matter of grace but as of right. In Muhammad Akram v. The State (2009 SCMR 230), the Hon'ble Supreme Court of Pakistan held as under:
"The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State (1995 SCMR 1345) that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused. then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
Again, in Abdul Jabbar and another v. The State (2019 SCMR 129), the apex Court held:
"It is settled principle of law that once a single loophole is observed in a case presented by the prosecution much less glaring conflict in the ocular account and medical evidence or for that matter where presence of eye-witnesses is not free from doubt, the benefit of such loophole/lacuna in the prosecution case automatically goes in favour of an accused."
15. In view of the foregoing, we allow this appeal, set aside the impugned judgment dated 30.11.2015 and acquit the Appellant of the charge. The sentence of the Appellant was suspended by this Court vide order dated 7.12.2015 passed in Crl. Misc. No.1/2015 and he is on bail. His surety is discharged.
SA/A-3/L Appeal allowed.