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Official Citation: 2023 LHC 4087
Court / Jurisdiction: Lahore High Court
Year of Decision: 2023
Decision Date: 2023-07-14
Parties: Muhammad Rehmat Ullah vs The State etc
Ruling Summary: This decision was rendered by the Lahore High Court on 2023-07-14, officially reported as 2023 LHC 4087. In this matter between Muhammad Rehmat Ullah and The State etc, 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 2023LHC4087
Court Name: Lahore High Court Judge(s): Ali Baqar Najafi, Muhammad Amjad Rafiq Title: Muhammad Rehmat Ullah vs The State etc Case No.: Criminal Appeal No.73676 of 2022. Date of Judgment:2023-07-14 Reported As: 2023 LHC 4087, 2024 PCRLJ 1, PLJ 2024 Cr.C. 287 Result: Appeal Allowed
JUDGMENT
JUDGMENT MUHAMMAD AMJAD RAFIQ, J:- Muhammad Rehmat Ullah (appellant) faced trial in case FIR No.04/2022 under sections 11-F(2),11-G,11-W and 8/9 of Anti-terrorism Act, 1997 registered at police station CTD, Gujranwala, and vide judgment dated 08.11.2022 the learned Judge, Anti-terrorism Court, Gujranwala Division convicted and sentenced him under following sections of Anti-terrorism Act, 1997:- Rigorous Imprisonment for 04 months with fine of Rs.10,000/-, in default whereof to further undergo SI for one month [Section 11-F (2)] Rigorous Imprisonment for 02 years with fine of Rs.10,000/-, in default whereof to further undergo SI for one month. [Section 11-W] Rigorous Imprisonment for 02 years with fine of Rs.10,000/-, in default whereof to further undergo SI for one month. [Section 11-G] Rigorous Imprisonment for 02 years with fine of Rs.10,000/-, in default whereof to further undergo SI for one month. [Section 8/9] It was ordered that all the sentences shall run concurrently and benefit of Section 382-B Cr.P.C. was extended to him. 2. Prosecution mania conjures the appellant with strings of allegations as set out in complaint (Ex.PC) lodged by Abdul Jabbar 616 Corporal, the complainant; it speaks that on 18.03.2022 during a routine round-up, a contingent of CTD fully armed, on an official vehicle, when present at Akaal garh moor, Bismillah chowk, Ada Domala, Pasroor-Narowal Road, received an information at about 10:10 a.m. from a stool-pigeon through WhatsApp that a person belonging to a banned organization "Al-Qaida", while present at Sadwala Oncha Chowk, Zafarwal, Narowal Road, Tehsil
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and District Narowal is distributing banned books, magazines and stickers for propagation of his banned organization. On his lead, a raid was conducted where two persons were found present, out of whom, one was distributing magazines and other was the recipient, who succeeded to flee up, while distributor was apprehended at the spot who disclosed his name as Muhammad Rehmat Ullah (accused/appellant). On his personal search, following articles/documents were recovered; One photocopied bound set of book titled as "Shaheed Usama Sehra Say Samundar Tali" wrapped in blue polythene bag, already banned vide Notification No. SO(IS-III)6-15/2010/pt-I dated 21.08.2015; three magazines titled "Nawaye-Afghan Jahad" (March 2019), "Sharaq Say Gharb Tali" "Yeh Saleebi Jang Hai" containing hate material. Seven stickers of banned organization "Al-Qaida" with printed words "Al-Qaida" on one side whereas "Kalma Tayyaba" on the other and underneath "Qiyam-ay-Khilafat ka aik he tareeka" (Jahad Fe Sabelillah). Mobile phone Realme Model-RMX- 2020 along with two SIM Cards, found containing hate and terrorism related material; another mobile phone Nokia Model TA-1034 with one SIM card along with cash amount Rs.3200/- and one bus ticket. Complainant secured all above in four sealed parcels. 3. After completion of usual investigation, report under section 173 Cr.P.C. was submitted in Court against the accused/appellant. He was charge sheeted, to which he pleaded not guilty and claimed to be tried. Prosecution during trial produced witnesses namely Azam Mehmood 201 Corporal, Nasir Mehmood SI, Abdul Jabbar 616 Corporal, Shahid Mahmood 1103 Corporal, Yasir Ali 1078 Corporal, Nasir Mahmood Hunjra Inspector and Muhammad Azam Inspector who were recorded as PW-1, PW-2, PW-3, PW-4, PW-5, PW-6 and PW-7 respectively. On close of prosecution case, the accused/appellant was examined under section 342 Cr.P.C. who denied the prosecution evidence, however, opted to produce in his defence USB Ex.DA containing two clips of CCTV footage regarding his lifting from Madrissa but did not opt to appear in the witness box in terms of Section 340(2) Cr.P.C. and on conclusion of trial he was convicted and sentenced forecited. 4. Heard. Record perused. 5. Prosecution side riding was on the shoulders of two witnesses of recovery PW-3 & PW-4 who narrated the story like one mentioned in the complaint/FIR. According to them, they left the Police station at 7:00 a.m. on 18.03.2022 for roundup and took more than 3 hours & 10 minutes to reach at Akaal garh moor at 10:10 a.m. where they received information about the presence of accused at Zafarwal Chowk; however, they rushed to the destined place where the accused was present. Both with little variation stated about the distance inter se the place of information and the recovery as 4/5 & 5/6 kilometers. It is observed that prosecution has not produced any rupt or proof for leaving of police station by the CTD team at an acclaimed time so as to show the purpose or destination they were going to and that too far away from police station. After apprehending the accused at 10:20 a.m. they took two hours to complete all the processes at the site including drafting of complaint which the PW-3 specifically deposed as under; "I completed draft of complaint at 12.20 pm, I sent the same through Asif Iqbal 627 Corporal to Police Station for registration of FIR" It is noticed that police station was at a distance of 80 Kilometers from the place of recovery and FIR was registered at 1:45 p.m. within almost 1 hour and 25 minutes if it is presumed that said Asif Iqbal swiftly left the place of recovery at 12.20 p.m. but there is nothing to presume because Asif Iqbal Corporal did not enter appearance in the dock to verify the facts. We have noticed that earlier this distance of 80 kilometers was covered by the CTD raiding team in 3 hours 10 minutes, despite the fact they went straight to Akaal garh moor and did not stop anywhere as per statement of PW-3 & PW-4. In such circumstances to know the condition of road and means of transportation which Asif Iqbal used for reaching to the police station, his testimony was essential; therefore, his nonappearance is fatal to the prosecution case as held in case reported as "MINHAJ KHAN Versus The STATE" (2019 SCMR 326).
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6. During search of accused no material was collected which could label him as member of banned organization; this has been conceded by PW-3 & PW-4 in their depositions while stating that no membership card was recovered from his possession. Similarly, PW-6 investigating officer also admitted that neither any organizational card was recovered nor any thing on the lead of accused. Though PW-6 claimed to have made an attempt to join the people from the locality where allegedly accused was living and deposed that no one came forward due to his being member of banned organization; but neither he named any person nor statement of any such person was recorded in whose presence he had made such attempt. Though CDR of accused was also brought on record but no suspicious number was tracked to show his link with banned/proscribed organization. Investigating officer also admitted that he inspected the place of recovery but nothing like CCTV was found. He claimed to have associated the nearby shopkeepers for knowing the name of deserted unknown accused but no material he could collect in this respect; but again, name of shopkeeper was not deposed by him nor indicated a reference from any investigative material in this context. We are fortified in our view that no material was available in support of charge u/s 11-F (2) of Anti-terrorism Act, 1997. 7. Before dilating upon the main issues, it is essential to observe that Prosecution story for distribution or dissemination of hate material could not be materialized or proved through any cogent or supportive evidence because the recipient, probably an imaginary person, ran away from the scene of crime and he was imaginary in the sense that no person was arrested later during investigation nor was taken into the process; therefore, imagination or presumption that appellant was in the pocket of that allegation is nothing but farce. 8. The first and foremost consideration requisite for charging standard of prosecution was the recovery of one banned book and three magazines mentioned in the complaint Exh.PC and were shown exhibited before the court as "P1 & P2/1-3" but the book and magazines are not available in the record before this court which is to be responded by the prosecution yet we have found that except this nominal information, neither the title-images of such book or magazines are part of record nor observation of the court that after seeing the original, the book and magazines were returned to the prosecution because of being banned or containing hate material. So much so no witness deposed before the court about the contents of such book or magazines referring any chapter or pages showing a cause of banning. Therefore, we simply rule out this nominal evidence from consideration which could not connect the appellant with commission of offence. 9. Learned Additional Prosecutor General raises his stance at a high pitch while referring that the fact of possession alone is sufficient to convict the accused and it is not necessary to give evidence that he actually disseminated the material. Confronted with the situation that articles recovered from the possession of accused are not available in the court, he responded that marking of documents as "P" clearly indicates that they were exhibited before the court and presumption of truth attaches to judicial functions under Article 129 illustration (e) of Qanun-e- Shahadat Order, 1984 and further states that accused has not cross-examined the witness in whose evidence such articles were exhibited in the Court, therefore, the principle that any fact deposed during examination-in-chief if not cross examined by the accused would be presumed as admitted and proved. Carefully attended above contentions which require thorough response and clarification. 10. It was the case of prosecution that accused/appellant was apprehended at the moment when he was distributing banned books to an individual who ran away on seeing the CTD raiding team. From his search, banned book & magazines (P1 & P2/13)), stickers (P3/1-7), mobile phone (P4) along with SIM Cards (P5/1-2), another mobile (P6) along with SIM (P7), Cash (P8/1-6), Bus ticket (P9) and Polythene shopping bag (P10) were recovered and taken into possession while securing them into four sealed parcels. All these articles P1 to P10 are missing from the record. We have
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examined the record of trial court which is with page marking and no jump of page number has been observed. All other documents are available on the record including CDR, Chat history of mobile phone in the form of USB Exh. PR/1 and scanned copies which were retrieved by the PFSA allegedly from the mobile phones recovered from the accused; PFSA report is also available except documents P1 to P10. We asked from the learned APG for such record, he expressed his inability about presence of such record. Had it been available in the court it must have been sent to this court along with all other record. For reference a para from Chapter 24-B of High Court Rules & Orders Volume-III is referred; 43. Exhibited articles- Exhibited articles, which are not documents and are not referred to in paragraphs 41 and 42 of this Chapter, should not be sent to the High Court, unless the High Court calls for them, or unless the Sessions Judge considers that a particular exhibit will be required in the High Court, in which case he should record a note at the foot of his judgment that the exhibit should be forwarded to the High Court in the event of an appeal. The above dictates of law requires that the documents exhibited must be sent to the court of appeal with records. We have observed that all the articles including mobile phone recovered from the accused were containing information, therefore, fall within the definition of document; however, for clarity definition of document as mentioned in Article 2(1)(b) of Qanun-e-Shahadat Order, 1984 is reproduced as under; (b) "Document" means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose recording that matter; Illustrations A writing is a document; Words printed, lithographed or photographed are documents; A map or plan Is a document; An inscription on a metal plate or stone is a document; A caricature is a document. Similarly, an electronic document as defined in Electronic Transaction Ordinance, 2002 means; (m) "electronic document" includes documents, records, information, communications or transactions in electronic form; The definition of 'document' in our law is the "matter expressed or described upon any substance" and not the substance itself, therefore information in the form of writing, words painted, map or plan, inscription or caricature etc. when appear on a substance would qualify to be a document which means book in bound set is not the document but the information therein. The word 'document' as a verb means "a process of recording the details of an event". Articles cited above shown exhibited as P1 to P10 were the documents on the qualification of containing information supportable to prosecution case. But certainly, the hypothesis of mis-exhibition is stronger due to their non-availability in the record and mechanically marking them with letter "P" without clarification as to whether they were produced singly or in sealed parcels because as per statement of Complainant PW-3 that he secured all the documents/articles in four sealed parcels. This fact gets further strength when it is not in the evidence of any witness that after de-sealing said four parcels the cited articles were produced before the Court. Although learned trial Court has not forwarded the documents P1 to P10 to this Court along with the record but at the same time it has also not mentioned in the judgment that such articles are being retained by the Court at its level or to any other destination. Yet another fact was also observed by this Court that prosecution has attached a USB with the record as Ex.PR/1 containing images of some material extracted from mobile phones of accused which means that when USB can be sent with the record, documents P1 to P10 if available could have easily been tagged or sent with the record. We have also examined
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two reports u/s 173 Cr.P.C. available in the record which according to its column No. 5 speak about availability of case property as per details of documents attached with the reports. At the end of both reports in details of documents we have not found mentioned any of the documents like P1 to P10. So far as the contention that judicial function are protected as having presumption of truth, suffice it to say that such presumption falls under Article 129 of Qanun-e-Shahadat Order, 1984, it says that 'Court may presume' which means that it is optional with the court to presume or not to presume because it is not like rebuttable presumption as of some referred under Article 90 to 95 & 99. Such Articles use word "shall" for presumption of facts mentioned therein, therefore, if facts are not rebutted, shall be presumed as in existence. Presumption under Article 129 of the said Order is also not like irrebuttable presumptions (conclusive) as referred in Article 55 and 128 of the said Order. We therefore, in the circumstance do not presume that such documents were ever produced before the learned trial Court. Therefore, prosecution case fails due to non-production of primary or secondary evidence in the form of documents in support of oral assertions. Prosecution has also not produced the material thing (mobile etc.) before the Court which was in the form of indirect evidence, nor trial Court required its production which is in complete defiance to proviso (2) of Article-71 of Qanun-e-Shahadat Order, 1984 which says; Provided further that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection: 11. As a legal challenge we turn to the contention of learned APG that fact of alleged non-exhibition of documents has not been challenged during recording of evidence, therefore, any fact if not cross examined shall be presumed as admitted or proved. We know that principles of evidence in criminal matters stand at variance or at different premise to one applied in civil matters. In a situation like above, the Honourable Supreme Court has clarified the principles of evidence in criminal matters in a case reported as "Mst. ASIA BIBI Versus The STATE and others" (PLD 2019 Supreme Court 64) as under:- 19. The argument of the learned counsel for the complainant that some factual assertions made by the prosecution witnesses were deemed to have been admitted by the defence because the prosecution witnesses were not cross-examined regarding those assertions and no suggestion was put to them regarding incorrectness of such assertions has been found by me to be misconceived. In the case of Nadeem Ramzan v. The State (2018 SCMR 149) this Court had clarified while referring to the earlier cases of S. Mahmood Alam Shah v. The State (PLD 1987 SC 250) and State v. Rab Nawaz and another (PLD 1974 SC 87) that "the principle that a fact would be deemed to be proved if the witness stating such fact had not been cross-examined regarding the same was a principle applicable to civil cases and not to criminal cases. It was held that a criminal case is to be decided on the basis of totality of impressions gathered from the circumstances of the case and not on the narrow ground of cross-examination or otherwise of a witness on a particular fact stated by him." (Emphasis supplied) In the light of above dictum, it can safely be concluded that prosecution evidence is bereft of exhibition of very basic documents to prove the possession of same with the accused/appellant; therefore, when there is no hate material or the stickers of banned organization on the record, conviction on charges u/s 11-G, 11-W or 8/9 does not sustain. 12. Prosecution's stance that if the documents were not exhibited in the evidence during the trial, criminal liability of accused/appellant can still be proved through material extracted or retrieved from mobile phone recovered from his possession on the day of raid. We have examined the material placed on record as well as PFSA report with respect to extraction of such material from
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the mobile phones; so much so prosecution has also attached with the record a USB Exh.PR/1 allegedly containing images, audios, videos, chat, call log etc., retrieved from the phone. This evidence cannot be used against the accused due to the reason that images P12/1-10 retrieved from mobile phone were not put to the accused in his statement u/s 342 Cr.P.C., and USB Ex.PR/1 was not played in the Court during the statement of any witness so as to prove its contents. We are also seriously concerned about extraction of data from a personal mobile phone, may be of an accused, without her consent; which is not a good practice as it opposes to constitutional guarantee of 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, Anti-terrorism Court supervised the processes of investigation whenever needed but we have not found any such permission in the record nor Learned APG has shown the same to us, therefore, retrieval of data from mobile phone of accused/appellant by PFSA 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. 13. Extracting information from a personal phone of accused during a criminal process is a serious issue which attracted our attention to examine the law on the subject. In this modern day, we are virtually living in our cell phones, chatting with our nears and dears, talking through audio or video calls, sharing material in public and private, passing messages, throwing information, pasting advertisements and storing images, audios-video clips, subject information and what not, therefore, our phone is like or not less than a home. Every relation domestic or private which the people keep within four walls of their house is legally protected under the Constitution, that is the reason dignity of a man and, subject to law, the privacy of home is inviolable right of every individual as per Article 14 (1) of the Constitution of the Islamic Republic of Pakistan, 1973. We know that the human inclinations have no limits, it expands to religion, Sufism, ideology, politics, art, culture, customs, traditions, literature, music, Poetry, history, business, sports etc., anything can appeal to an individual in whose pursuit it explores books, knowledge vents like public libraries, websites on Google, Face book, U-tube, Twitter, correspondence with scholars etc., and such exploration of physiological knowledge is not prohibited under the law. Reason flies beyond comprehension, institutionalized processes and worldly scheme of avenues; it struggles, unless it is settled to an acquiesced concept of understanding. Until then if any information which the person wants to keep secret in his cell phone cannot be extracted except with his consent or as the law directs because privacy of home is subject to law as reflected from Article 14 above; therefore, if his limits or collection of information are against the law of land, then he can well be restricted through the process of law. As a fundamental constitutional right, the right to privacy is meant to take precedence over any other inconsistent provisions of domestic law. Article 8 of the Constitution provides that "any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred under the Constitution, shall, to the extent of such inconsistency, be void." Article 8 (5), furthermore, states that "the rights conferred by this Chapter shall not be suspended except as expressly provided by the Constitution." 14. 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
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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." 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." 15. A number of laws regulate communications surveillance, acquisition of data and protection thereof in 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…
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