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Official Citation: 2024 LHC 2029
Court / Jurisdiction: Lahore High Court
Year of Decision: 2024
Decision Date: 2024-04-23
Parties: Khalid Mahmood vs The State and another
Ruling Summary: This decision was rendered by the Lahore High Court on 2024-04-23, officially reported as 2024 LHC 2029. In this matter between Khalid Mahmood and The State and another, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024LHC2029
Court Name: Lahore High Court Judge(s): Muhammad Waheed Khan, Sadiq Mahmud Khurram Title: Khalid Mahmood vs The State and another Case No.: Criminal Appeal No. 454-ATA of 2023 Date of Judgment:2024-04-23 Reported As: 2024 LHC 2029 Result: Appeal Allowed
JUDGMENT
JUDGMENT Sadiq Mahmud Khurram, J.- Khalid Mahmood son of Abdul Razzaq (convict) was tried by the learned Judge, Anti-Terrorism Court, Bahawalpur Division, Bahawalpur, in case F.I.R No.15 of 2022, dated 19.12.2022, registered at Police Station CTD, Bahawalpur in respect of offences under sections 11-F(2),11-F(6),11-G,11-N,11-I, 11-J and 11-EE(4) of the Anti-Terrorism Act, 1997. The learned trial court vide judgment dated 18.10.2023 convicted Khalid Mahmood son of Abdul Razzaq (convict) and sentenced him as under:- Khalid Mahmood son of Abdul Razzaq : - (i) Rigorous Imprisonment for one year under section 11-G of The Anti Terrorism Act, 1997 (ii) Rigorous Imprisonment for one year under section 11-F (6) of The Anti-Terrorism Act, 1997 and directed to pay fine of Rs.10,000/- (rupees ten thousand) and in case of non-payment of fine, the convict was directed to further undergo one month of simple imprisonment. (iii) Rigorous Imprisonment for five years under section 11-N of The Anti-Terrorism Act, 1997 read with 37 P.P.C and directed to pay fine of Rs.30,000/- (rupees thirty thousand) and in case of non- payment of fine, the convict was directed to further undergo one month of simple imprisonment. (iv) Rigorous Imprisonment for one year under section 11-EE(4) of The Anti-Terrorism Act, 1997. The convict was extended the benefit provided under section 382-B of the Code of Criminal Procedure, 1898 by the learned trial court. All the sentences awarded to the convict were ordered to be run concurrently by the learned trial court. 2. Feeling aggrieved, Khalid Mahmood son of Abdul Razzaq (convict) lodged the instant Criminal Appeal No.454-ATA of 2023 assailing his conviction and sentences.
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3. Precisely, the necessary facts of the prosecution case, as brought on record through the statement of Muhammad Ashraf 595/UO (PW-3), the complainant of the case, are as under: "Stated that on 19.12.2022, I was posted at CTD Bahawalpur. On the same date, at about 3:35 pm, 1 with Saeed Anwar 1164/CPL, Muhammad Ikram 40/CPL, Imdad Hussain 30/CPL and Operation team on official vehicle No.LEG/1074 with driver Bisharat Hussain 235/DC while armed with rifles, was present at Awan Chowk Mubarak Pur in connection with surveillance of active organizational persons, where I received information through source that Khalid Mehmood son of Abdul Razzaq Caste Mandhal resident of Chak Loharan, enlisted in 4th schedule, belonging to defunct organization 'Lashker-e-Jhangvi' and involved in financial support of said defunct organization by collecting funds, is present at Qainchi Pull Mubarak Pur road and is collecting funds from public for his defunct organization, who should be checked. Considering this information reliable, I along with my team reached said place at 3:40 pm and on pointation of source we saw a person collecting funds for defunct organization at Qaichi Pull. Public dispersed on seeing police party. Said person also tried to escape but we apprehended him, who disclosed his name, Khalid Mehmood accused present in court. (At this stage sealed parcels produced before this Court in a sealed condition which are de- sealed by the permission of this Court). On checking of accused from his left hand, one fund receipt book P1 of defunct terrorists organization 'Lashker-e-Jhangvi' bearing serial No.2301 to 2350 among those receipts from Sr. No.2301 to 2306 had already been issued their counterfoils contained signatures of the accused. From funds receipt book collected amount Rs.2550/- with denomination nation two currency notes of Rs.500/- each P2/1-2, ten currency notes of Rs.100/- P3/1-10, eleven currency notes of Rs.50/- each P4/1-11 and black pointer P5 were recovered whereas from right side pocket of accused blue color OPPO mobile phone A-12 P-6 was recovered. I prepared one sealed parcel of receipt book and pointer and second sealed parcel of above said mobile phone for analysis from PFSA and third sealed parcel of terrorism financing amount and took all above said material into possession vide recovery memo Exh.PB, attested by PWs Saeed Anwar 1164/CPL and Muhammad Ikram 40/CPL. On query accused further disclosed that Government and Law Enforcement Agencies had killed their Organizational companions in police encounters, therefore, he and his organization had to support the families of their companions, so, he collected funds for this purpose. As accused had committed offence of terrorism financing by collecting funds for defunct organization, so 1 drafted complaint Exh.PC, and sent it to Police Station CTD Bahawalpur through Imdad Hussain 30/CPL whereon instant F.I.R was registered. On arrival of I.O, I handed over the custody of accused to him along with case property, verified the contents of complaint to him, who investigated the case." 4. After the formal investigation of the case, report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court, and the appellant was sent to face trial. The learned trial court framed charges against the appellant on 17.07.2023, to which he pleaded not guilty and the learned trial court proceeded to examine the prosecution witnesses. 5. The prosecution in order to prove its case got statements of six witnesses recorded. The prosecution witnesses namely Muhammad Ashraf 595/UO (PW3) and Muhammad Ikram 40/UO (PW-4) gave evidence of the recovery of various articles from the possession of the appellant. Rashid Ali Javed 794/UO (PW-1) stated that on 19.12.2022, he got recorded the formal F.I.R (Exh.PA) and on the same day the Investigating Officer of the case handed over to him three sealed parcels and on 25.12.2022, he handed over one sealed parcel said to contain a mobile phone device to Muhammad Ikram 40/UO (PW-4) for its onward transmission to the office of the Punjab Forensic Science Agency, Lahore and on 20.05.2023,he handed over the articles received from the Punjab Forensic Science Agency, Lahore to the Investigating Officer of the case. Muhammad Shahzad 1805/C (PW-2) stated that on 21.12.2022, Mr. Nayyar Mustafa, learned Magistrate (PW-5) obtained
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the specimen signatures of the appellant . Muhammad Irshad, Inspector (PW-6) investigated the case from 19.12.2022 till its conclusion and narrated the facts of investigation conducted by him in his statement before the learned trial court. 6. On 23.09.2023, the learned Deputy District Public Prosecutor closed the prosecution evidence after tendering in evidence the reports of the Punjab Forensic Science Agency, Lahore (Exh.PN and Exh.PP). 7. After the closure of prosecution evidence, the learned trial court examined the appellant namely Khalid Mahmood son of Abdul Razzaq under section 342 Cr.P.C. and in answer to a question "why this case against you and why the PWs have deposed against you", the appellant claimed that he had been falsely involved in this case and was innocent. The appellant further claimed that he had been kept in illegal detention. The appellant opted not to get himsel examined under Section 340(2) Cr.P.C. and did not adduce any evidence in his defence. 8. On the conclusion of the trial, learned Judge, Anti-Terrorism Court-, Bahawalpur Division, Bahawalpur, convicted and sentenced the appellant as referred to above. 9. The learned counsel for the appellant submitted that the prosecution has failed miserably to prove the case against the appellant. The learned counsel further argued that there were glaring contradictions in the statements of the witnesses hitting at the very basis of the prosecution case. The learned counsel also stated that nothing was recovered from the appellant. The learned counsel further stated that the whole case was fabricated and false; that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. The learned counsel further argued that the Investigating Officer did not associate any member of the public during the investigation of the case which made the case highly doubtful. The learned counsel also contended that the prosecution witnesses examined by the prosecution were stock witnesses as they were subordinates of the complainant and interested as well. The learned counsel further contended that the police officials, in order to save their own skins, had ruthlessly implicated the appellant in this false case. The learned counsel finally stated that the prosecution has totally failed to prove the case against the accused beyond the shadow of a doubt and prayed for the acceptance of the appeal. 10. On the other hand, learned Deputy Prosecutor General appearing on behalf of the State contended that the prosecution has proved its case beyond shadow of doubt by producing truthful witnesses and submitted that it was a promptly lodged FIR and the appellant was named therein which excluded the element of deliberation and consultation about his involvement in the instant case; that the appellant was caught red-handed, which clearly connected him with the commission of the crimes; that the police officers, who furnished ocular account before the learned trial court, had no enmity, grudge or malice against the appellant to implicate him in this case of heinous nature and even otherwise, the defence has not brought on record any ulterior motive of the police to depose falsely against the appellant, as such they are as good witnesses as the private persons would be; the prosecution case against the appellant stands proved from all angles, hence, prayed for dismissal of the appeal filed by the appellant and maintaining the conviction and sentences awarded to him by the learned trial court. 11. We have considered the arguments advanced by the learned counsel for the appellant, the learned Deputy Prosecutor General and have gone through the entire record with their able assistance. 12. The mainstay of the prosecution case is the evidence of Muhammad Ashraf 595/UO (PW-3) and Muhammad Ikram 40/UO (PW-4) who gave evidence of the recovery of various articles from the possession of the appellant. We find that both the prosecution witnesses namely Muhammad Ashraf 595/UO (PW-3) and Muhammad Ikram 40/UO (PW-4) remained unable to prove their presence at the place of the incident as narrated by them and also could not prove that the
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appellant was arrested from the same place, at the same time as was claimed by the said prosecution witnesses namely Muhammad Ashraf 595/UO (PW-3) and Muhammad Ikram 40/UO (PW-4). Though it was admitted by the prosecution witnesses that the appellant was arrested from the busiest places within the city of Mubarikpur still none from the said place joined the investigation of the case and supported the prosecution case. The prosecution witness namely Muhammad Ashraf 595/UO (PW-3) stated during cross-examination as under:- " The alleged place of occurrence is a busiest place of Mubarakpur. No person joined in investigation who claimed that accused had distributed stickers to him or demanded fund from him. 1.0 did not join any neighbor shopkeepers or passers-by in any proceedings of this case. None from AlMajeed clinic and Al-Akbar Petroleum was cited as witness in this case. No private person joined investigation of this case in my presence. 1.0 did not record statement of any private person in my presence" The prosecution witness namely Muhammad Ikram 40/UO (PW-4) admitted during cross- examination as under:- " The alleged place of occurrence is a busiest place of Mubarakpur. The distance between Awan Chowk and place of occurrence is about 1/2 kilometer. No person joined in investigation who claimed that accused had distributed stickers or share any material related to proscribed organization to him or demanded fund from him. I.O did not join any neighbor shopkeepers or passers-by in any proceedings of this case. None from Al-Majeed clinic and Al-Akbar Petroleum was cited as witness in this case. No private person joined investigation of this case in my presence. I.O did not record statement of any private person in my presence" 13. We have also noted that the prosecution story that the appellant was collecting funds for a banned organization from the members of the public could not materialize and be proved through any cogent or supportive evidence because the said members of the public, probably imaginary, ran away from the scene of the crime and remained imaginary in the sense that no person was arrested later during investigation nor got recorded his statement regarding the charge that he was one of those who had funded the appellant. The prosecution witness namely Muhammad Ashraf 595/UO (PW-3) stated during cross-examination as under:- "No private person appeared before I.O in my presence claiming that he had witnessed accused ever demanding funds for defunct organization. I did not mention any SIM number in recovery memo. 1.O did not join any person in investigation to whom the alleged receipt had already been issued. No one was joined as accused in this case whose names are mentioned in counterfoils of receipts. I did not write in complaint that I had seen accused demanding or collecting funds from any person for any proscribed organization." The prosecution witness namely Muhammad Ikram 40/UO (PW-4) admitted during cross- examination as under:- "No private person appeared before 1.0 in my presence claiming that he had witnessed accused ever demanding funds for defunct organization. I.O did not join any person in investigation to whom the alleged receipt had already been issued. No one was joined as accused in this case whose names are mentioned the counterfoils of receipts.". 14. We have also noted that Muhammad Ashraf 595/UO (PW-3), the complainant of the case did not proceed to the police station after the arrest of the accused for getting the F.I.R recorded rather deputed Imdad Hussain 30/CPL(not produced) to get the FIR registered. It is unexplainable as to why Muhammad Ashraf 595/UO (PW-3)himself did not proceed to the Police Station when he himself had arrested the accused and prepared the recovery memos as well as the sealed parcels. Furthermore, the police station was at a distance of as much as fifty kilometres from the place of recovery and there was nothing further to be done at the spot by Muhammad Ashraf 595/UO (PW- 3) or indeed the other witnesses for them to have kept standing at the place of occurrence.
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Additionally, the said Imdad Hussain 30/CPL, who took the complaint (Exh.PC) to the police station for the registration of FIR, was neither cited as a witness nor his statement under section 161 Cr.PC was recorded nor he was examined as a witness during the trial of the case though he was also an eye witness of the arrest of the appellant and the recovery from the appellant. This aspect of the case has convinced our minds that the whole prosecution case is a figment of the imagination of Muhammad Ashraf 595/UO (PW-3), the complainant of the case. Reliance in this regard is placed on the case of Minhaj Khan Vs. the State (2019 SCMR 326). 15. We have also noted that during the personal search of the appellant after his arrest, no material was collected which could label him as a member of a banned organization and no membership card or other document in this regard was recovered from his possession. The prosecution witness namely Muhammad Ashraf 595/UO (PW-3) stated during cross-examination as under:- "Not sticker, badge or membership card of any defunct organization was recovered from the possession of accused. " The prosecution witness namely Muhammad Ikram 40/UO (PW-4) admitted during cross- examination as under:- "Not sticker, badge or membership card of any defunct organization was recovered from the possession of accused". Muhammad Irshad Inspector (PW-6),the Investigating Officer of the case, stated that he obtained a copy of the notification No.SO(IS-1)4-10/2021 (Bahawalpur)-19 dated 23.08.2021 (P-7) regarding the declaration of the appellant as a proscribed person and his enlistment in the list of proscribed persons as maintained under the Fourth Schedule of the Anti-Terrorism Act,1997. The provisions of Article 76 of the Qanun-e-Shahadat Order, 1984, declare the conditions in which the production of secondary evidence is allowed to prove a document and it is provided that the same can be done if it is proved that the original document is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person legally bound to produce it, and when, after the notice mentioned in Article 77 of the Qanun-e-Shahadat Order, 1984, such person does not produce it or when the original has been destroyed or lost or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. The prosecution did not lead any evidence to prove that the original notification No.SO(IS-1)4-10/2021 (Bahawalpur)-19 dated 23.08.2021 could not be produced before the Court due to it being lost or destroyed and in absence of such evidence a copy of the said notification No.SO(IS-1)4-10/2021 (Bahawalpur)-19 dated 23.08.2021 could not have been admitted in evidence. 16. We have also noted that Muhammad Irshad Inspector (PW-6),the Investigating Officer of the case, himself stated that the amount of Rs 4000/- sent to Muhammad Qasim son of Malik Ishaq,the leader of the defunct organization 'Lashker-e-Jhangvi on the mobile phone No.0308- 7184531 for terrorism financing was sent from SIM No.0306-5020838, which SIM No.0306-5020838 was registered in the name of Shafiq Ahmad, the brother of the appellant and not the appellant himself. Muhammad Irshad Inspector (PW-6),the Investigating Officer of the case, in his statement before the learned trial court stated as under :- "In their presence reader DSP Investigation handed over 32 prints P12/1-32 of Mobilink Micro Finance Bank to me and I examined the same and found that according to page No.21 & 27 of said report, accused had sent Rs 4000/- to Muhammad Qasim son of Malik Ishaq leader of defunct organization 'Lashker-e-Jhangvi on mobile phone No.0308-7184531 for terrorism financing, said amount was sent from SIM No.0306-5020838 registered in the name of Shafiq Ahmad brother of accused Khalid Mehmood and in the use of accused Khalid Mehmood, present in court. I submitted application to RO CTD Bahawalpur for requisitioning ownership and NADRA verisys report. After sometime I received two copies of ownership of Shafiq Ahmad and Muhammad Qasim comprising
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four pages P13/1-4. I took above mentioned documents into possession vide recovery memo Exh.PF, attested by PWs. I recorded statements of PWs u/s 161 Cr.P.C in this regard." No evidence was collected during the investigation of the case nor produced before the learned trial court that the SIM No.0306-5020838 was in the use of the appellant. When the prosecution itself did not collect any evidence to prove that the SIM No.0306-5020838 was in the use of the appellant, then it cannot be presumed that the said SIM No.0306-5020838 was under the use of the appellant and the amount of Rs 4000/- was sent to Muhammad Qasim son of Malik Ishaq ,the leader of the defunct organization 'Lashker-e-Jhangvi by the appellant. 17. It was the case of the prosecution that the appellant was apprehended at the moment when he was collecting funds for a banned organization from the members of the public, who ran away on seeing the CTD raiding team. From his search, the fund receipt book (P-1) having the counterfoils of the receipts No..2301 to 2350 was recovered and taken into possession however the said counterfoils of the receipts No..2301 to 2350 were never exhibited by any of the prosecution witnesses during the course of the trial. The learned Deputy Prosecutor General has argued that even if the counterfoils of receipts No.2301 to 2350 were not exhibited in the evidence during the trial, the criminal liability of the appellant could still be proved through material extracted or retrieved from the mobile phone (P-6) recovered from his possession on the day of his arrest. We have examined the material placed on record as well as the report of the Punjab Forensic Science Agency, Lahore (Exh.PN) with respect to the extraction of such material from the mobile phone device (P-6) as recovered from the appellant. This evidence cannot be used against the appellant due to the reason that images (P-10/1-8) retrieved from the mobile phone and stored in the USB storage device (P-11) as the video footage and pictures as stored in the USB storage device (P-11) were not displayed in the learned trial court during the statement of any witness so as to prove the same. We are also seriously concerned about the extraction of data from a personal mobile phone, may be of an accused, without his consent; which is not a good practice as it opposes to constitutional guarantee of the right to privacy and we feel that if the accused was not ready to accord consent, then at least permission from magistrate should have been taken. Though in this case, the Anti-Terrorism Court supervised the processes of investigation whenever needed but we have not found any such permission in the record nor the learned Deputy Prosecutor General has shown the same to us, therefore, retrieval of data from the mobile phone device (P-6) of the appellant without the consent of accused amounts to self-incrimination prohibited under Article 13 of the Constitution of the Islamic Republic of Pakistan, 1973, therefore, such evidence is ruled out from consideration. The Islamic Republic of Pakistan is a signatory to several international and regional instruments with privacy implications, including: The International Covenant on Civil and Political Rights (signed April 2008, ratified June 2010). Article 17 of the ICCPR states that "no one shall be subject to arbitrary or unlawful interference with his privacy, family or correspondence." The ICCPR also commits Pakistan to ensuring the protection of other rights that rely on the protection of privacy, such as freedom of expression and freedom of association. The Cairo Declaration on Human Rights in Islam (signed August 1990). Article 18 of the CDHRI affirms that: "a) Everyone shall have the right to live in security for himself, his religion, his dependents, his honor and his property. (b) Everyone shall have the right to privacy in the conduct of his private affairs, in his home, among his family, with regard to his property and his relationships. It is not permitted to spy on him, to place him under surveillance or to besmirch his good name. The State shall protect him from arbitrary interference. (c) A private residence is inviolable in all cases. It will not be entered without permission from its inhabitants or in any unlawful manner, nor shall it be demolished or confiscated and its dwellers evicted."
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The Convention on the Rights of the Child (ratified November 1990). Article 16 of the CRC states that "1) No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation. 2) The child has the right to the protection of the law against such interference or attacks." A number of laws regulate communications surveillance, acquisition of data and protection thereof in Islamic Republic of Pakistan, some of which are cited herein below with required expression relevant to the case in hand; The Investigation for Fair Trial Act, 2013 This Act allows for access to data, emails, telephone calls, and any form of computer or mobile phone-based communication, subject to a judicial warrant. However, a warrant can be requested wherever an official has 'reasons to believe' that a citizen is, or is 'likely to be associated' with, or even 'in the process of beginning to plan' an offence under Pakistani law. The Pakistan Telecommunication (Re-organization) Act, 1996. 32. Warrants for search.---(1) Where on information furnished by the Authority or Board, the Court has reason to believe that any unlicensed telecommunication system, wireless telegraphy apparatus or unapproved terminal equipment or unapproved crypto apparatus is being kept or concealed or any unlicensed telecommunication service is provided, or any licensed service is being used against the interest of national security and public safety it may issue a search warrant; and the person to whom such warrant is directed, may enter the premises, vessel, aircraft, or…
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