1. By way of filing above-captioned Criminal Appeal No. 326-ATA of 2015 under section 25 of Anti-Terrorism Act, 1997, Maulvi Mohammad Naeem Rahimi appellant has impugned the punishing judgment dated 24.6.2015 handed down by the learned Judge Anti-Terrorism Court, Bahawalpur Division Bahawalpur, who after having been tried in a case registered vide FIR No. 19/2015 dated 26.01.2015, under sections 9/11-W ATA, 1997 at Police Station Abbasnagar District Bahawalpur, was convicted under section 9 of ATA, 1997 and sentenced to five years imprisonment alongwith fine of Rs. 10,00,000/- and in case of non-payment to further undergo one year S.I.
2. Facts in-curt divulged in complaint (Ex. PB) drafted and sent by Raees Ahmad, S.I. (PW-3) on the basis of which formal FIR (Ex. PC) was reduced into writing by Imran Ahmad Siddiqi, Inspector (PW-4) are that on 26.1.2015, he (complainant) alongwith Iftikhar Ali, ASI, Abdul Rauf ASI, Nabi Ahmad 983/C and Sohail Sarwar/C Driver on official vehicle were present at Chak No. 30/BC on patrolling and search of criminals where he received spy information that Maulvi Mohammad Naeem Rahimi who used to teach Quran Kareem to children in Masjid of Chak No. 30/BC ‘Gharbi’ had some sectarian hatred books, journals and CDs wherein terrorists were declared martyred and heroes and also contained hate material. He alongwith his companions upon this information reached Masjid Chak No. 30/BC and found that one person was teaching to the children who disclosed his name as Mohammad Naeem Rahimi and on inquiry he produced books titled ‘Khutbat-e-Juma’ (P1), Haqai-e-Bader (P2), Housloon-ki-jang (P3), Jawaherat-e-Farooqi (P4), Awaz-e-Qasimi (P5), Khutbat-e-Nadeem two journals titled Nidai-Haq (P6/1) and Nifaz-e-Khilafat-e-Rashida’ (P6/2), wherein Riaz Basra was declared martyred and hero of defunct organization ‘sipahe-sahaba’ alongwith sectarian inciting speeches and also produced three CDs, whereon ‘Wasiyat Abdul Rasheed Ghazi Laal Masjid’ (P7) was written with marker on back side, CD titled ‘Speeches program ‘Daish’ etc (P8) and CD titled Speeches of Al-Qaida’ (P9) from almirah fixed in the western wall of Masjid. He took into possession above said books and CDs vide recovery-memo Ex. PA, attested by Iftikhar Ali, ASI (PW-2) and Abdul Rauf ASI.
3. The investigation culminated into the submission of report under section 173 of Code of Criminal Procedure, 1898. The learned trial court framed charge against the appellant on 13.5.2015, to which he pleaded not guilty and claimed to be tried.
4. In order to prove its case against the appellant, the prosecution produced and examined, in all, four witnesses i.e. Ejaz Ahmad, ASI (PW-1), Iftikhar Ali, ASI (PW-2), Raees Ahmad, S.I. (PW-3) and Imran Ahmad Siddiqi, Inspector (PW-4). While giving up Abdul Rauf, ASI, Nabi Ahmad 983/C and Mohammad Siddique MHC, being un-necessary, the prosecution closed its evidence.
5. Thenceforth, statement of the appellant under section 342 of the Code of Criminal Procedure, 1898 was recorded wherein; he refuted the allegation levelled against him. In reply to the question “Why this case against you and why PWs have deposed against you?” the appellant has replied as infra:
“As the complainant of case is police official, he registered this false case against me to show his fake performance to his high-ups. In fact, in those days there was campaign to register the false cases against religious persons on instructions of Government after Peshawar incident, so to fulfill these instructions many false cases of same allegation were registered in Police Station Abbasnagar as well as whole District of Bahawalpur and this case is also the result of that campaign. I was already in illegal custody by the police in Police Station and later-on complainant registered this false case against me. The recovery shown against me is fake and planted by the police. Neither I retained any book nor any CD as alleged in the FIR was recovered from my possession nor I was disseminating any alleged hate material by using these alleged recovered books or CDs in any manner. I never gave projection to any defunct organization or its member. No occurrence as narrated in the FIR ever took place. I have no concerned with any proscribed organization. I am not enlisted in 4th schedule of 11-E ATA 1997 and no criminal case previously stood registered against me throughout my life. All the witnesses are police officials and they have deposed against me on the instructions of their high-ups just to strengthen the prosecution case.”
Neither the appellant opted to make statement on oath as his own witness in disproof of the allegation levelled against him as provided under section 340 (2), Cr.P.C. nor he produced any evidence in his defence.
6. After considering the arguments of the learned counsel for the parties and weighing the material brought on record, the learned trial Judge found the appellant guilty of the charge under section 9 of Anti-Terrorism Act, 1997 and thus on conviction sentenced him as mentioned above. However, he was acquitted of the charge under section 11-W of Anti-Terrorism Act, 1997, hence, this appeal.
7. Learned counsel for the appellant contends that the appellant has falsely been implicated in this case as he did not retain alleged recovered material; that the prosecution remained fail to establish affiliation of the appellant with any banned organization or to prove his membership with any defunct organization; that there are glaring contradictions and dishonest improvements in the statements of the prosecution witnesses; that no private witness was associated with the investigation or produced before the learned trial court; that the appellant has no previous record of involvement in any criminal case and was never enlisted in 4th schedule of ATA 1997; that the learned trial court has not applied its judicious mind while convicting the appellant; that no incriminating evidence was available with the prosecution to bring home guilt of the appellant, hence, this appeal may be accepted and the appellant may be acquitted of the charge.
8. Conversely, learned Deputy Prosecutor General vehemently opposes the contentions raised by learned counsel for the appellant and maintained that both the recovery witnesses have made corroborating statements and books, journals and CDs containing hate sectarian material have been recovered from the appellant who is member of defunct organization and gave it projection and when he got recovered CDs containing slaughter of Pak Army-men, destruction of Army-camps and hate speeches so accused intended to stirring-up sectarian hatred; that there are no contradictions or improvements in the statements of prosecution witnesses; that the police officials had no mala fide or ill will against the appellant to falsely implicate him in the instant case; that prosecution has fully proved its case beyond shadow of reasonable doubt, against the appellant and finally submits that the appeal in hand may be dismissed, being devoid of merits.
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