IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Bail Application No. 1358 of
2023
|
DATE |
ORDER
WITH SIGNATURE OF JUDGE. |
Present: Mr. Justice Naimatullah
Phulpoto
Justice Mrs. Kausar
Sultana Hussain
For hearing of bail application
Date of hearing: 12.09.2023
Date of
announcement: 13.09.2023
Mr.
Aamir Mansoob Qureshi advocate
for the applicants
Mr. Ali Haider Saleem Addl. P.G along with I.O/PI Syed Muhammad Sarfaraz CTD
-.-.-.-.-.-.-.-.
Naimatullah Phulpoto,
J.- Abdul Rasheed, Rafiq Juma and Muhammad Aqib applicant seek post arrest bail in Crime No. 43/2023
for offences under Sections 11-F, 11-I, 11-J, 11-K, 11-N of ATA 1997 registered
at P.S CTD, Karachi.
2. Brief facts leading to the filing of his
bail application are that on 03.04.2023, ASI Allah Dita
of PS CTD along with his subordinate staff left PS for arrest of proclaimed
offenders. During patrolling, police received spy information that a Raw agent is operating network in Karachi from Dubai in
collusion with Owais, Rasheed, Rafiq
Juma, Bashir, Aqib and Javed alias Arshi. It is alleged
that they are involved in online gambling, who extort money from poor people on
the pretext of giving them profit and they deposit such amount in the accounts
of fake companies and then take such money to Dubai through hundi. It is further informed to the police that three members of that
network namely Rasheed Juma, Rafiq
Juma and Aqib (applicants) were
available at Furniture Market, Ishaqabad, Gharibabad, Karachi. Upon receiving
such information, police reached at the pointed place and apprehended the
applicants and on personal search of two accused recovered cell phones, cash,
CNICs. Mashirnama of arrest and recovery was prepared at the spot in presence
of mashirs. Thereafter, accused and case property were brought at P.S where the
aforesaid FIR was registered against them on behalf of state. After usual
investigation, interim challan was submitted on
22.05.2023, yet final report is not filed.
3. Applicants applied for post arrest bail
before learned Judge, ATC No.XVI, the same was
rejected vide order dated 08.06.2023.
4. Mr. Aamir Mansoob Qureshi advocate for the applicants mainly
contended that ingredients of the alleged offences are not attracted from the
material collected by the I.O during investigation; that interim challan has been submitted on 22.05.2023, yet final report
has not been filed by the I.O; that cellular phones recovered from the
possession of the applicants were not sent to the forensic expert for report;
that no material has been collected to show that applicants belong to
proscribed organization and they financially support such organization. Lastly,
it is submitted that entire prosecution case is based upon the statements of
applicants before I.O during investigation, which statements are inadmissible
in evidence. In support of his submissions, reliance has been placed upon cases
of Fahad Hussain and another vs. State through
Prosecutor General Sindh (2023 SCMR 364) and Muhammad Junaid
ur Rehman
vs. The State and another (2020 P.Cr.L.J 310).
5. Mr. Ali Haider
Saleem, Addl. P.G argued that applicants had visited
Dubai several times and sufficient amount has been found in their accounts in
Banks; that applicants were supporting proscribed organization and had
affiliation with raw agent. However, learned Addl. P.G after going through the
relevant material collected during investigation conceded that there is no incriminating
material against the applicants with regard to fund raising to proscribed organization
involved in terrorist activities. It is also admitted by Addl. P.G that entire
prosecution case is based upon statements of the applicants before I.O.
However, on the basis of multiple visits of the applicants to Dubai and huge
amounts in the banks in their accounts, he opposed bail application.
6. I.O submits that he has submitted
interim report before trial Court and cellular phones were not sent by him for
forensic examination. Further submits that applicants/accused are no more
required for investigation.
7. We have heard learned counsel for the
parties and perused the relevant record.
8. Applicants are charged with
sections 11-F, 11-I, 11-J, 11-K, 11-N of the
Anti-Terrorism Act, 1997, which read as follows:
11-F. Membership,
support and meetings relating to a Proscribed Organization: (1) A
person is guilty of an offence if he belongs or professes to belong to a
proscribed organization.
(2) A person guilty of an offence under sub-section (1) shall be liable
on conviction to a term not exceeding six months imprisonment and a fine.
(3) A person commits an offence if he-
(a) solicits or invites support for a
proscribed organization, and the support is not, or is not restricted to, the
provisions of money or other property; or
(b) arranges, manages or assists in managing,
or addressing a meeting which he knows is:
(i) to support a proscribed organization;
(ii) to further the activities of a proscribed
organization; or
(iii) to be addressed by a person who belongs
or professes to belong to a proscribed organization.
(4) A person commits an offence if he addresses a meeting, or delivers a
sermon to a religious gathering, by any means whether verbal, written,
electronic, digital or otherwise, and the purpose of his address or sermon, is
to encourage support for a proscribed organization or to further its
activities.
(5) A person commits an offence it he solicits, collects or raises [money
of other property] for a proscribed organization.
(6) A person guilty of an offence under sub-sections (3), (4) and
(5) shall be liable on conviction to a term of
imprisonment not less than one year and not more than five years and a fine.
11-I. Use and possession (1) A person commits an offence if he—
(1) uses money or other
property for the purposes of terrorism; or
(2) he—
(a) possesses money or other property; and
(b) intends that it should be used, or has reasonable cause to suspect
that it may be used, for the purposes of terrorism.
11-J. Funding Arrangements: (1) A person commits an offence if he—
(a) enters into or becomes concerned in an arrangement as a result of
which money or other property is made available or is to made available to
another; and
(b) has reasonable cause to suspect that it will or may be used for the
purposes of terrorism.
(2) Any person in Pakistan or a Pakistani national outside Pakistan
shall commit an offence under this Act, if he knowingly or willfully makes
money or other property or services available, directly or indirectly, wholly
or jointly, for the benefit of a proscribed organization or proscribed person.
(3) A person commits an offence if he knowingly or willfully pays for or
provides money or other property or facilitate in any manner the travel of
a person anywhere for the purpose of
perpetrating, participating in, assisting or preparing for a terrorist act or
for the purpose of providing or receiving training for terrorist related
activities.
(4) The provisions of sub-section(2) shall also apply to-
(a) organizations owned or controlled directly or indirectly, by
proscribed organizations or proscribed persons and
(b) persons or organizations acting on behalf of, or at the direction of
proscribed organizations or proscribed persons.
11-K. Money laundering (1) A person commits an offence
if he enters into or becomes concerned in any arrangement which facilitates the
retention or control, by or on behalf of another person, of terrorist
property--
(a) by concealment;
(b) by removal from the
jurisdiction;
(c) by transfer to nominees; or
(d) in any other way
(2) It is a defence for a person charged with
an offence under sub- section (1) to prove that he did not know and had no
reasonable cause to suspect that the arrangement related to terrorist property.
11-N. Punishment under Sections
11-H to 11-K-(1)Any person who
commits an offence under sections 11-H to 11-K, shall be punishable on
conviction with imprisonment for a term not less than [five years] and not
exceeding [ten years] and with fine [not exceeding twenty five million rupees].
(2) If a legal person commits an offence under sections 11-H to 11-K
such person shall be liable on conviction to a fine not exceeding fifty million
rupees.
(3) Every director, officer or employee of such legal person found
guilty shall be punishable on conviction with imprisonment for a term not less
than five years and not exceeding ten years and with fine not exceeding twenty
five million rupees:
Provided that the punishment of the director, officer or employee shall
be effective and in due proportion to his role.
9. It
appears that apparently case of the prosecution is based upon the statements of
the applicants before I.O during investigation which are inadmissible in
evidence under Article 39 of the Qanun-e-Shahadat Order, 1984. I.O has also failed to examine any
private person with regard to the allegations mentioned in the FIR. No
incriminating material has been collected by the I.O during investigation against
applicants with regard to funds raising, use of money for the purpose of
terrorism and money laundering. So far frequent visits of the applicants to
Dubai and amount in their accounts are concerned, nexus of actions of the applicants to terrorize the public in
general and spread sense of fear is yet to be determined at trial. During
investigation, I.O has failed to send cellular phones recovered from the
applicants for forensic examination. More than 04 months have been passed, yet
final report has not been submitted. According
to I.O, applicants are no more required for investigation. It is well
settled law that whenever, reasonable doubt
arises with regard to the participation of an accused person in the crime or
about the truth/probability of the prosecution case and the evidence proposed
to be produced in support of the charge, the accused should not be deprived of
benefit of bail. Freedom of an individual is a precious right. Personal liberty
should not be snatched away from accused unless it becomes necessary to deprive
him of his liberty under the law. Where story of prosecution does not appear to
be probable, bail may be granted so that further inquiry may be made into guilt
of the accused. Reliance is placed on the case of Muhammad Arshad vs. The State and another
(2022 SCMR 1555).
10. Prima facie,
there are no reasonable grounds for believing that the applicants have
committed the alleged offences but there are sufficient grounds for further
inquiry into their guilt. Resultantly, concession of bail is extended to
applicants Abdul Rasheed son of Juma, Rafiq Juma son of Juma and Muhammad Aqib son of
Salam, subject to their furnishing solvent surety in
the sum of Rs.200,000/- (Rupees Two hundred thousand) each and P.R. bond in the like amount to the satisfaction
of the trial Court.
11. Needless to mention
here that the observations made herein above are tentative in nature, the trial
Court shall not be influenced by the same while deciding the case of the
applicants on merits.
JUDGE
JUDGE
Wasim ps