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Petitioner: Malik Zafar Iqbal etc VS Respondent: The State etc
Court Name: Lahore High Court Judge(s): Tariq Saleem Sheikh, Muhammad Ameer Bhatti Title: Malik Zafar Iqbal etc vs The State etc Case No.: Criminal Appeal No.25874/2021 Date of Judgment:2021-10-11 Reported As: 2021 LHC 5961 Result: Appeal accepted
JUDGMENT
JUDGMENT Tariq Saleem Sheikh, J. This appeal is directed against judgment dated 03.04.2021 handed down by the learned Special Judge, Anti-T errorism Court No.III, Lahore, in case FIR No. 18/2020 dated 10.11.2020 registered at Police Station CTD, Lahore, for offences under sections 11-F, 11-H(2), 11-I(2), 11-J(2), 11-N of the Anti-T errorism Act, 1997 ("A TA"). 2. Brief facts of the case are that on 10.11.2020 the Complainant, Tahir Siddique/In spector (PW-1), was present at Defence Morr, Lahore, with other police officials when he received a source information that Lashkar-e-T ayyaba ("LeT") was a terrorist outfit and when it was banned its activists established Al-Anfaal Trust (the "Trust") and gave it a new birth. The Government took cognizance and proscribed the Trust as well vide Order dated 10.5.2019. The source further said that the Trust launched various welfare projects as a faade for its own illicit activities and to generate funds for LeT which was continuing its operations despite the ban. To this end, it purchased four ambulances bearing registration Nos. LES-1 1-4054, LES-10-2432, LES-1 1-3153 and LES-4053. The Trust's trustees and office bearers, including Muhammad Naeem, Mohsin Bilal, Abdullah, Malik Zafar Iqbal, Hafiz Abdul Rehman, Dr. Muhammad Ayub, Dr. Ahmad Daud and Muhammad Yahya Aziz, were the key persons behind these theatricals and thus liable under the ATA. Tahir Siddique/Inspector drew the complaint Exh. PA and sent it to the Police Station CTD, Lahore, through Umar Farooq 22350/C (PW-2) on the basis of which Naqqash Sarwar/Corporal (PW -3) registered FIR No. 18/2020 Exh. PB. 3. The investigation of the case was entrusted to Inspector Muhammad Khalid (PW-7) the same day, i.e. 10.11.2020. He immediately made a request to the competent authority for constitution of a Joint Investigation Team (the "JIT") which was notified vide Order No. SO(Judl-III)1 1-Lahore/2018 dated 4.12.2020 (Exh. PN) and he was appointed one of its members. Appellants Malik Zafar Iqbal, Hafiz Abdul Rehman and Muhammad Yahya Aziz were in jail at that time. On 27.3.2021 when the JIT interrogated them, they disclosed that Appellants Nasrullah,
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Umar Bahadur and Samiullah had managed the funds for the aforementioned ambulances. On 29.3.2021 the officials of the Counter Terrorism Department (CTD) arrested these men and the next day Muhammad Khalid/Inspector produced them before the Administrative Judge, Anti-T errorism Court, Lahore, who sent them to judicial lock-up. During investigation the JIT found that the Appellants had committed the alleged offences. Report under section 173 Cr .P.C. was submitted accordingly . 4. On 1.4.2021, the Judge, Anti-T errorism Court No.III, Lahore, indicted the Appel lants. All six of them denied the charge and claimed trial. In order to prove its case the prosecution produced seven witnesses. Complainant Tahir Siddique/Inspector (PW-1) and Umar Farooq 22350/C (PW-2) deposed about receipt of the source information pursuant to which FIR No.18/2020 Exh. PB was registered. Naqqash Sarwar/Corporal (PW-3) penned the FIR Exh. PB and deposed that he furnished various documents to Muhammad Khalid/Inspector (PW-7), including certified copies of Notifications dated 14.1.2002 and 10.5.2019 Exh. PC & Exh. PD/1-2; certified copy of the Registration Certificate of Al-Anfaal Trust and the lists of its trustees Exh. PF/1-23; and certif ied copies of title documents of ambulances Exh. PH/1-4. Shakeel Ahmad (PW-4) stated that he dispatched copies of the Registration Certificate of Al-Anfaal Trust and the list of its trustees to the CTD Department, Lahore, by mail on 15.3.2021. Abdul Rehman Masood (PW-5) deposed that he dispatched certified copies of the ownership documents of the ambulances to the CTD, Lahore. Muhammad Riaz (PW-6) testified that the Appellants collected funds in the name of the Trust to buy ambulances. Inspector Muhammad Khalid (PW-7) gave details of his investigation and the evidence that he collected in this case. 5. After the prosecution was through with its evidence the trial court recorded statements of the Appellants under section 342 Cr.P.C. and confronted them with the evidence brought against them. They refuted it and professed innocence. They were particularly critical about Muhammad Riaz (PW-6) and alleged that he was a fake witness and the prosecution had planted him to buttress its case. None of the Appellants opted to make a statement on oath under section 340(2) Cr.P.C. Appe llant Malik Zafar Iqbal produced docume ntary evidence which included certified copies of W.P. No.19705/2002 and the order passed thereon Exh. DA; certified copy of the order passed in W.P. No.6208/2009 Exh. DB; and certified copies of judgments dated 5.11.2020, 11.11.2020, 12.11.2020, 19.11.2020 passed by the Anti-T errorism Court Exh. DC to Exh. DG. The other Appellants also relied on those documents. 6. On the conclusion of the trial the Judge, Anti-T errorism Court, convicted and sentenced the Appellants as under vide judgment dated 3.4.2021: Hafiz Abdul Rehman Convicted under section 11-F(2) of the Anti-T errorism Act, 1997, and sentenced to simple imprisonment for six months with fine of Rs.20,000/- and in default thereof to undergo simple imprisonment for a further period of 10 days. His sentence was ordered to run concurrently with the one awarded in another case and benefit of section 382-B Cr.P.C. was accorded to him. Muhammad Yahya Aziz & Malik Zafar Iqbal (i) Convicted under section 11-J(2) of the Anti-T errorism Act, 1997, read section 11-N thereof and sentenced to rigorous imprisonment for nine years with fine of Rs.50,000/- each and in default thereof to undergo simple imprisonment for a further period of six months. This sentence was ordered to run concurrently with those previously awarded and benefit of section 382-B Cr.P.C. was extended to them. (ii) Convicted under section 11-F(6) of the Anti-T errorism Act, 1997, and sentenc ed to rigorous imprisonment for one year with fine of Rs.20,000/- each and in default thereof to undergo simple imprisonment for a further period of 10 days. This sentence was ordered to start after the expiry of the above-mentioned sentence. Nasrullah, Umar Bahadur and Samiullah Convicted under section 11-J(2) of the Anti-T errorism Act, 1997, read with section 11-N thereof and sentenced to rigorous imprisonment for nine years with fine of Rs.50,000/- each and in default thereof to undergo simple
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imprisonment for a further period of six months. Their sentences were ordered to run concurrently with those previously awarde d and benefit of section 382-B Cr.P.C. was extended to them. The Appellants have challenged their conviction and sentence before this Court through this appeal. 7. The learned counsel for the Appellants, Mr. Naseer-ud-Din Khan Nayyer , Advocate, contended that the prosecution had failed to prove the charge against the Appellants beyond reasonable doubt. The learned trial Court had not appreciated the evidence properly which had caused serious miscarriage of justice. He argued that the Trust had no nexus with LeT. It was an independent legal person registered under the Societies Act XXI of 1860 and the Federal Government had proscri bed it under the pressure of international agencies. The learned counsel further contended that there was not a whit of evidence that the Appellants engag ed in any activity that supported the objectives of LeT or other such organization. The learned counsel submitted that Appellant Yahya Aziz disassociated from the Trust in 2002 and Appellant Hafiz Abdul Rehman in 2008. He maintained that nothing turned on the testimony of Muhammad Riaz (PW-6) as it did not prove any relevant fact. Even otherwise, he was a fake witness and his deposition did not inspire confidence. As regards the ambulances, Mr. Nayyar submitted that the Trust purchased them in 2010-201 1 at a time when it was not proscribed so it did not constitute any offence for which the Appellants could be punished. He prayed that this appeal be accepted and the Appellants be acquitted of the charge. 8. The learned Additional Prosecutor General, Mr. Ali Hassan, controverted the above contentions. He argued that the Trust was working as a proxy for LeT owing to which the Government proscribed it on 10.5.2019. Appellants Malik Zafar Iqbal, Hafiz Abdul Rehman and Yahya Aziz were it's trustees/of fice bearers while Appellants Nasrullah, Umar Bahadur and Samiullah were staunch activists. They collected funds on the pretext of public welfare and used them for financing terrorism. The prosecution produced PW-6 Muhammad Riaz who deposed that Appellants Nasrullah, Umar and Samiullah handed over sufficient money to the other three Appellants in his presence for purchase of ambulances for the Trust. The learned Law Officer maintained that PW Muhammad Riaz had no malice against the Appellants. He was reliable and fully proved the prosecution case. He prayed for dismissal of this appeal. 9. We have heard the learned counsel and examined the available record. 10. Section 11-B of the ATA empowers the Federal Government to proscribe an organization, by an order published in the official Gazette, if there are reasonable grounds to believe that it is (a) concerned in terrorism; or (b) owned or controlled, directly or indirectly , by an individual or organization proscribed under the ATA; or (c) acting on behalf of, or at the direction of, any individual or organization proscribed under the ATA. Proscription entails the consequences stipulated in sections 11-E and 11-F, 11-O and in some cases sections 11-G to 11-N may be attracted. Admittedly , the Federal Government proscribed LeT vide Order dated 14.1.2002 (Exh.PC) and, considering that the Trust was its progeny , took similar action against it on 10.5.2019 (Exh. PD/1-2). The Trust has not challenged its proscription before any forum todate. 11. On 1.4.2021 the learned Judge, Anti-T errorism Court, indicted the Appellants on the following charges: "Firstly : that on 10.11.2020 at about 11:00 a.m. within the territorial limits of Police Statio n CTD, Lahore and you the accused persons namely Malik Zafar Iqbal and Yahya Aziz alongwith your co-accused persons being the members of proscribed organization 'Al-Anfaal Trust', a subsidiary of proscribed organization 'Lashkar-e-T ayyaba', solicited and invited support for the said proscribed organization through 'Al-Anfaa l Trust' for the arrangement and management of ambulances/vehicles bearing registration numbers LES-4054-1 1, LES-2432-10, LES-3153-1 1 and LES-4053, thus you the above-named accused have committed an offence punishable under section 11-F(6) of ATA, 1997, and same is within the cognizance of this court. "Secondly : that on the same date, time and place, you the accused persons namely Malik Zafar Iqbal and Yahya Aziz being Pakistani nationals willfully and knowingly received money to arrang e ambulances/vehicles bearing registration numbers LES-4054-1 1, LES- 2432-10, LES-3153-1 1 and LES-4053, for the benefit of 'Al-Anfaal Trust' and 'Lashkar-e-T ayyaba', the proscribed organizations. Thus you have committed an offence punishable under
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section 11-J(2) of ATA, 1997 which is punishable under section 11-N ATA, 1997 and which is within the cognizance of this court. "Thirdly : that on the same date, time and place, you the accused persons namely Nasrul lah, Umar Bahadur and Samiullah being Pakistani nationals willfully and knowingly made available money for the purchase of ambulances/vehicles bearing registration numbers LES-4054-1 1, LES-2432-10, LES-3153-1 1 and LES-4053, for the benefit of 'Al-Anfaal Trust' and 'Lashkar-e-T ayyaba', the proscribed organizations. Thus you have committed an offence punishable under section 11-J(2) of ATA, 1997 which is punishable under section 11-N ATA, 1997 and which is within the cognizance of this court. "Fourthly : that on the same date, time and place, you the accused person namely Hafiz Abdul Rehman Makki, belongs to (sic) proscribed organization 'Al-Anfaal Trust, a subsidiary of proscribed organization 'Lashkar-e- Tayyaba', thus you have committed an offence punishable under section 11-F(2) of ATA, 1997 which is within the cognizance of this court." 12. In a nub, the allegation against the Appellants is that on 10.11.2020 at about 11:00 a.m. they collected funds for the support and benefit of LeT and the Trust on the pretext of "arrangement and management" of Ambulance Nos. LES-1 1-4054, LES-10-2432, LES-1 1-3153 and LES-4053. However , some facts are intriguing. Firstly , Exh. DD to DG evince that on the aforesaid date Appellants Malik Zafar Iqbal and Yahya Aziz were behind the bars facing trial in FIR Nos. 24/2019, 18/2019, 38/2019 and 25/2019 registered at Police Station CTD, Lahore. Secondly , the prosecution has not produced even a single witness to prove that the Appellants engaged in the alleged activity on the date in question. As we shall see later, even Muhammad Riaz (PW-6) did not talk about it. He only stated that "a few years ago the said accused persons requested the people for funds to buy the ambulances on behalf of [Jamat-ud-Dawa]". Considering the fact that his deposition was recorded by the Anti-T errorism Court on 1.4.2021, he could not possibly be referring to the alleged incident of 10.11.2020 which was less than five months old. Thirdly , it was hard for the Appellants to justify their request for donations to the general public as the Federal Government had widely publicized through electronic and print media that it had proscribed the Trust and frozen all its assets - which included the above-mentioned ambulances. 13. We make it a point to observe that the condition precedent for constitution of the offences under sections 11-F and 11-J(2) of the ATA is that the organization for whose benefit or support the act is done is proscribed by the Federal Government. Since the Trust was banned on 10.5.2019, the Appellant s cannot be sanctioned for the ambulances purchased for it in 2010-201 1. 14. The cardinal principle of criminal administration is nullum crimen nulla poena sine lege which means that "there can be no crime or punishment unless it is in accordance with law that is certain, unambiguous and not retroactive. The maxim further says that there should be no crime except according to predetermined, fixed law." In Nabi Ahmed and another v. Home Secretary , Government of West Pakistan, Lahore and 4 others (PLD 1969 SC 599) the Hon'ble Supreme Court of Pakistan explained the rationale underlying this precept as follows: "Law-abiding members of society regulate their lives according to the law as it exists at the time of their actions, and they expect the law to be steadfast and reliable ... They assess and weigh the consequences according to the demands of existing law, including the requirements implicit in the existing system of law, and are entitled to feel cheated if the law later lets them down by taking away or reducing their rights, or increasing their burdens." 15. Professor L. Tribe expressed the same thought when he wrote: "It is essential in a free and democratic society that citizens are able, as far as possible, to foresee the consequences of their conduct in order that persons be given fair notice of what to avoid, and the discretion of those entrusted with law enforcement is limited by clear and explicit legislative standards." 16. The international human rights law prohibits retrospective punishment. Article 11(2) of the Universal Declaration of Human Rights (1948) says: No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal of fence was committed. Article 15(1) of the UN Covenant on Civil and Political Rights (1966) stipulates:1 2 3
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No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applica ble at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty , the offender shall benefit thereby . Article 7 of the European Convention on Human Rights reads: No punishment without law- (1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. (2) This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by civilized nations. 17. The Constitutions of most of the countries around the globe contain similar interdiction. Article 1, section 9 of the American Constitution mandates that "no ... ex post facto law shall be passed." In Calder v. Bull, [1798] 3 Dallas (US) 386, the United States Supreme Court interpreted the expression ex post facto law to include: "(i) Every law that makes an action done before the passing of the law and which was innocent when done, criminal and punishes such action; (ii) Every law that aggravates a crime, or makes it greater than it was when committed; (iii) Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed; and (iv) Every law that alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offence in order to convict the offender ." The Supreme Court added that there is a distinction between ex post facto laws and retrospective laws. Chase J. said: "Every ex post facto law must necessarily be retrospective, but every retrospective law is not an ex post facto law. The former only are prohibited. Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppre ssive, and it is a good general rule that a law should have no retrospect: but there are cases in which laws may justly , and for the benefit of the community and also of individuals, relate to a time antecedent to their commencement, as statutes of oblivion or of pardon. They are certainly retrospective. But I do not consider any law ex post facto within the prohibition that mollifies the rigor of the criminal law, but only those that create or aggravate the crime or increase the punishment or change the rules of evidence for the purpose of conviction. Every law that is to have an operation before the making thereof, as to commence at an antecedent time or to save time from the statute of limitations or to excuse acts which were unlawful, and before committed, and the like, is retrospective. But such laws may be proper or necessary , as the case may be. There is a great and apparent difference between making an unlawful act lawful and the making an innocent action criminal and punishing it as a crime." According to S. M. Zafar , this exposition of the term ex post facto has been followed practically by all the courts ever since. 18. In Pakistan, Article 12(1) of the Constitution of 1973 mandates: 12. Protection against retrospective punishment.- (1) No law shall authorize the punishment of a person-- (a) for an act or omission that was not punishable by law at the time of the act or omission; or (b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the of fence was committed. 19. S. M. Zafar explains that Article 12 does not deprive the legislature of its powers to give retrospective effect [to a law]. It prohibits convictions and sentences being recorded in the criminal jurisprudence under ex post facto laws. This cannot be achieved even through the device of adding explanations (a declaratory measure) which in fact creates new offence. However , a procedural rigour including converting the bailable offence into non-bailable can be effected retrospectively ." In Nabi Ahmed and another v. Home Secretary , Government of West Pakistan, Lahore and 4 others (PLD 1969 SC 599) the Hon'ble Supreme Court held that "there is no fundamental difference between retrospective law and ex post facto law; the former expression is used in respect of civil matters and the latter in respect of criminal matters which by their nature are more serious." In Mrs. Shahida Faisal v. Federation of Pakistan and 3 others (PLD 2000 Lahore 508) a 5-member Bench of this Court also held that "the word 'law'4 5 6
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used in sub-clauses (a) and (b) of clause (1) of [Article 12] means law in operation at the time of the commission or omission charged as an offence. A law in force cannot be equated with a law 'deemed to be in force' through ex post facto legislation. The term 'law' used in the said Article postulates actual and not notional existence of the law at the relevant time." 20. The protection under Article 12 of the Constitution of 1973 operates with reference to the time of act or omission. In Nabi Ahmed' s case, supra, while interpreting the Fourth Fundamental Right of the late Constitution of 1962, which was pari materia with Article 12, the Hon'ble Supreme Court held: "The above protection operated with reference to the time of the act or omission which may subsequently be made punishable and to the commission of an offence for which greater or even different kind of penalty may be imposed by ex post facto legislation. The time of the commencement of a proceeding to impose the punishment or penalty is not of the essence of the protection." 21. Confronted with the above situation, the learned Additional Prosecutor General argued that the Appellants funnelled the funds collected in the name of the Trust to LeT or otherwise used them to foster its objectives. This brings us to the testimony of Muhammad Riaz (PW-6). However , we have to consider a legal issue before appraising it. 22. Mr. Nayyar contended that the testimony of PW Muhammad Riaz was not recorded in accordance with law. According to him, his name was not mentioned in the calendar of witnesses and a copy of his statement under section 161 Cr.P.C. was not provided to the Appellants before indictment as required by section 265-C Cr.P.C. On 1.4.2021 the prosecution made an application under section 540 Cr.P.C. before the trial court which was accepted the same day. Immediately thereafter a copy of the PW's aforementioned statement was supplied to the defence and then the court called him to the witness box and recorded his testimony . The counsel' s contention is that the deposition of PW Muhammad Riaz cannot be read against the Appellants as the mandatory provisions of section 265-C Cr .P.C. have been violated. 23. Section 265-C Cr.P.C. enjoins that in all criminal cases copies of statements and documents should be supplied to the accused free of charge not later than seven days before the commencement of the trial. The list of documents in respect of the cases instituted upon police report include the statements of the witnesses recorded under sections 161 and 164 Cr.P.C. The object of section 265-C Cr.P.C. is to enable the accused to know what evidence the prosecution would bring against him at the trial so that he may prepa re his defence and is not taken by surprise In Muhammad Riaz and another v. The State (PLD 2003 Lahore 290) a Full Bench of this Court observed that the said section was introduced to "meet the vacuum created by abolition of commitment proceedings (Chapter XVIII of Cr .P.C.)" and enunciated the following principles: (a) The provisions of section 161 Cr.P.C. are independent of section 172 Cr.P.C. Section 161 requires an Investigating Officer to record statement of a person who is acquainted with the facts of the case separately and section 172 (which is independent) relate s to maintenance of case diaries as record of the various stages through which the investigation has passed. It is only the case diaries which are meant to be treated as 'privileged' and shall not be made accessible to the accu sed. It clearly means that the statements recorded under section 161 of the Cr .P.C. are…
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