ASIM NAWAZ alias KALEEM NAWAZ Vs The STATE and another

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lahore high court
lahore high court

ASIM NAWAZ alias KALEEM NAWAZ—Appellant

Vs

The STATE and another—Respondents

Criminal Appeal No. 797-ATA of 2016, decided on 18th December, 2018.

Before Mujahid Mustaqeem Ahmed and Sadiq Mahmud Khurram, JJ

(a) Anti-Terrorism Act (XXVII of 1997)—

—-Ss. 9 & 11-W(2)—Sectarian hate speech and propagating banned organizations—Appreciation of evidence—Sentences, reduction in—Special circumstances—Effect—Accused was convicted by Trial Court on sectarian hate speech, propagating banned organizations and was variously sentenced to imprisonment and fine—Validity—Detail of audio files, graphic files and multimedia files was provided in accompanying DVD-I, DVD-II and DVD-III by Punjab Forensic Science Laboratory—Investigating officer also received Verisys verification regarding ownership of SIM Card recovered from mobile phone, which was in name of accused—Prosecution witnesses gave each and every detail of prosecution case and were cross-examined at length—Nothing fruitful cropped up during cross-examination—Tenor of cross-examination also revealed that facts in issue were not challenged seriously—Trial Court rightly appreciated evidence and had rightly found accused guilty of charge levelled against him—Prosecution had successfully proved its case beyond shadow of doubt by producing relevant and admissible evidence—High Court maintained conviction of accused but taking into account mitigating circumstances reduced sentence of imprisonment to that of already undergone but quantum of fine was maintained—Appeal was dismissed accordingly.

(b) Anti-Terrorism Act (XXVII of 1997)—

—-Ss. 9 & 11-W(2)—Sentence—Words ‘may extend to’ in Ss. 9 & 11, Anti-Terrorism Act, 1997—Connotation—By using words ‘may extend to’ in such provisions of law provides unspecific sentences and is indicative that courts have to appreciate circumstances indicative of reformation of a convict before deciding about quantum of sentence.

(c) Criminal trial—

—-Sentence, quantum of—Philosophies of sentencing accused enumerated.

There are the five philosophies of sentencing .The first one is retribution and the purpose is to emphasize taking revenge on a criminal, perpetrator or offenders. The next philosophy is incapacitation which means a way to reduce the chances of an offender committing another crime. Then is the deterrence in which a criminal is made to fear going back to jail or prison. Rehabilitation is also another philosophy of sentencing by which an effort is made to reform and rehabilitate a criminal, such as trying to give him a second chance. Reparation is the last of the five philosophies of sentencing in which effort is made to repay victim(s).

Muhammad Maalik Khan Langha for Appellant.

Ashfaq Ahmad Malik, Deputy District Public Prosecutor with Mian Yaqub, ASI, CTD for the State.

Date of hearing: 18th December, 2018.

JUDGMENT

SADIQ MAHMUD KHURRAM, J.—The appellant, namely Asim Nawaz alias Kaleem Nawaz, was tried by the learned Judge, Anti-Terrorism Court-I, Multan, in case FIR No.88 of 2015 dated 06.1.2015 registered at Police Station CTD Multan, in respect of offences under sections 11-W(2) and 9 of Anti-Terrorism Act, 1997. The learned trial court vide judgment dated 20.09.2016 convicted Asim Nawaz alias Kaleem Nawaz, appellant, and sentenced him as infra:-

i) Rigorous Imprisonment of 5 years and fine of Rs. 20,000/- and in default of payment of fine to further undergo Simple Imprisonment of one month under section 9 of Anti-Terrorism Act, 1997.

ii) Rigorous Imprisonment of 5 years and fine of Rs.20, 000/- and in default of payment of fine to further undergo Simple Imprisonment of one month under section 11- W(2) of Anti-Terrorism Act, 1997.

Both the sentences were ordered to run concurrently. The benefit available under section 382-B, Cr.P.C. was also extended to the appellant.”

2. Feeling aggrieved, Asim Nawaz alias Kaleem Nawaz (convict) lodged this Criminal Appeal No.797-ATA of 2016 against his conviction and sentences.

3. The prosecution story, as unfolded through the complaint (Exh.PA) drafted by Muhammad Yaqub, ASI, posted at CTD Circle, Mailsi (PW-1), the complainant of the case , is as under:-

“Stated that on 06.11.2015, I was posted at CTD Circle, Mailsi. On the same date, I came to know through reliable source that accused Muhammad Asim Nawaz alias Kaleem Nawaz son of Muhammad Nawaz, Caste Arain, resident of Mohallah Islampura Jallah-Jeem Mailsi who is notified in 4th schedule share/disseminates hatred material against Ahle Tashi through his Facebook I.D. and post hatred material at his Facebook account. On this information I went to Office CTD where through Sajjad Ahmad 135/C computer operator, Muhammad Siddique 25/HC, Muhammad Siddique 1587/C checked the Facebook I.D. www.facebook.com/kaleemnawaz0304-5102879 and on checking the hatred material was found which the accused on different dates had disseminated. The material is as under:-

“Solli Pe Latka Do Phansi Par Charha Do Zabane Khichwa Do Lakin Har Dil Ki Hi Sada Hogi Kafir Kafir Shia Kafir….. Siddqiue Ka Dushaman Kafir Ha, Umer Ka Dushaman Kafir Ha, Usman Ka Dushman Kafir Ha, Ali Ka Dushamn Kafir Ha, Kafir Kafir Shia Kafir, Shia Kaynat Ka Badtareen, Ghaleeztareen Kafir Ha, Kafir Kafair Shia Kafir, Jo Na Mane Wo Bhi Kafir.”

Apart from this the accused posted the flag of banned organization on his I.D. and he also disseminated on his list of shares that Ghulam Rasool Shah is Shaheed of Namoos-e -Sihaba, Usama Bin Ladan the prince of Arab, Afghanistan Ka Bayabano Main and Malik Ishaq Ameer Ul Mujahidin is commander. The computer operator took the prints of the above stated material and I drafted the complaint Ex.P4 against the accused as he disseminated and spread hatred material through his Facebook I.D. and sent, the same through Muhammad Sadiq 492/C to Police Station CTD, Multan for registration of case. The file of this case was entrusted to Muhammad Anwar Khan Inspector for investigation. I verified the version of my complaint before him who recorded the statement of witnesses and prepared recovery memo.”

On the basis of the complaint (Exh.PA), the formal FIR (Exh.PA/1) was registered at Police Station CTD, Multan by Arsalan Ibrahim 789/CPL (PW-8). Muhammad Anwar, Inspector (PW-7) conducted the investigation of the case.

4. After having completed the usual formalities and investigation of the case, the police submitted report under section 173, Cr.P.C. against the accused before the learned Court of competent jurisdiction. The charges against the accused were framed by the learned trial court on 28.01.2016, to which the appellant pleaded not guilty and claimed to be tried.

5. The prosecution in order to prove the facts in issue of the case examined as many as eight witnesses before the learned trial court. Muhammad Yaqub, ASI, (PW-1) stated as mentioned supra in paragraph No.3 of the judgment. Muhammad Siddique 25/FIC (PW-2) stated that on 6.11.2015, in his presence and that of Muhammad Yaqub, ASI, (PW-1) and Muhammad Siddique 1587/C (given up PW), Sajjad Ahmad 135/C, Computer Operator (PW-4) opened the Facebook profile of the appellant and printed 21 pages of hate material (Exh.P1 to Exh.P21) which were taken into possession through recovery memo (Exh.PB). Zahoor Ahmad 209/C (PW-3) stated that on 09.11.2015 Muhammad Anwar Inspector (PW-7) arrested the appellant in his presence and on the personal search of the appellant, articles (Exh.P22 to Exh.P29), were taken intc possession through recovery memo (Exh.PC). Sajjad Ahmad 135/C, Computer Operator (PW-4) supported the statement of Muhammad Siddique 25/HC (PW-2) and further submitted that on 26.11.2015 he handed over the mobile data comprising 15 pages (Exh.P30/1-15) to Muhammad Anwar Inspector (PW-7) who took the same into possession vide recovery memo (Exh.PD). Muhammad Akram ASI (PW-5) stated that on 10.11.2015 Ghulam Yasin, ASI (PW-6) handed over to him a sealed parcel said to contain a mobile phone which he deposited in the Office of Punjab Forensic Science Agency. Ghulam Yasin ASI (PW-6) stated that on 09.11.2015 Muhammad Anwar Inspector (PW-7) handed over to him a sealed parcel for safe custody and the said sealed parcel was handed over to Muhammad Akram ASI (PW-5) for its onward transmission. As already mentioned, Muhammad Anwar Inspector (PW-7), investigated the case and detailed the facts of the same before the learned trial court.

6. On 20.06.2016 learned :DDPP gave up PWs namely Muhammad Sadiq 492/C2, Muhammad Ikram 592/C and Muhammad Siddique 1587/C as being unnecessary and closed the prosecution case on 26.07.2016 after tendering the report of Computer Analysis Forensic Report (Exh.PH/1-4) along with glossary of terms used in the said report (Exh.PJ-1/8), list of banned organization (Exh.PK/1-2), personal bond of convict (Exh.PM), surety bond (Exh.PN) and another surety bond (Exh.PN/1).

7. The appellant was examined in terms of section 342, Code of Criminal Procedure, 1898 and in reply to the 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 the police had involved him in the case just to show their efficiency though he did not belong to any proscribed organization.

8. Neither the appellant opted to get himself examined under section 340(2), Cr.P.C. nor adduced any evidence in his defence. On the conclusion of the trial, the learned Judge Anti-Terrorism Court-I, Multan convicted and sentenced the appellant as referred to above.

9. Learned counsel for the appellant submitted that the prosecution has failed miserably to prove the caase against the appellant. Learned counsel further argued that there were glaring contradictions in the statements of the witnesses hitting at the very basis of the prosecution case. Learned counsel also stated that nothing was recovered from the appellant however after these arguments the learned counsel has conceded to the fact that the conviction is correct, and he pleads for the reduction in sentence of the appellant.

10. On the other hand learned Deputy District Public Prosecutor appearing on behalf of the State submitted that the prosecution has proved the charge by producing admissible and relevant evidence. He further submitted that all the witnesses have corroborated each other. With respect to the submission of the learned counsel of the appellant regarding the reduction of sentence, learned Deputy District Public Prosecutor has not seriously challenged the same. Lastly, he prayed for the rejection of appeal.

11. We have heard the learned counsel for the appellant and learned Deputy District Public Prosecutor and with their assistance carefully perused the record and evidence recorded during the trial.

12. In order to prove the facts in issue the prosecution produced eight witnesses, however, the statements of Muhammad Yaqub, ASI (PW-1), Muhammad Siddique, 25/HC (PW-2) and Sajjad Hussain 135/C (PW-4) are of importance as they established the charges leveled against the appellant. The perusal of the said statements reveals that the appellant had posted hate material inciting sectarian hatred. We have also perused the cross-examination conducted upon the said witnesses and have found that during the said cross-examination the actual existence of the Facebook profile, in the name of the appellant, was not challenged, however, it was suggested that he had not posted any hate material inciting sectarian hatred. Furthermore, when the appellant was arrested on 09.11.2015 by Muhammad Anwar Inspector (PW-7) a mobile phone (Exh.P22) as well as two SIMs (Exh.P23/1-2), memory card (Exh.P24) and an USB (Exh.P26) were recovered along with other articles, which were taken into possession through recovery memo (Exh.PC) and the same were sent to the Punjab Forensic Science Agency, Lahore for forensic analysis. Upon the perusal of the report of Punjab Forensic Science Agency, Lahore, (Exh.PH/1), it is revealed that audio files, graphic files, multimedia files, video recording, text messages and details of 250 contacts were identified following the forensic analysis of the articles recovered from the appellant at the time of his arrest. The detail of the audio file, graphic files and multimedia files was provided in the accompanying DVD-I, DVD-II and DVD-III by the Punjab Forensic Science Agency, Lahore. During cross-examination, Muhammad Anwar Inspector (PW-7) revealed that he had also received the Verisys verification regarding the ownership of the SIM card, recovered from the mobile phone (Exh.P22), as being in the name of the appellant. The prosecution witnesses have given each and every detail of the prosecution case and were cross-examined at length. Nothing fruitful cropped up during the said cross-examination. The tenor of cross-examination also reveals that the facts in issue were not being challenged seriously. Learned trial court has rightly appreciated the evidence and has rightly found the appellant guilty of the charge levelled against him.

13. In view of the material available on the record we are of the considered view that the prosecution has successfully proved this case beyond shadow of doubt by producing relevant and admissible evidence. We are, however, of the considered view that in this particular case there are some special features relevant to determining the quantum of sentence. We have observed that the appellant is a middle aged man and that this was his first conviction. We have also noticed that the appellant suffered the rigours of trial. We have also observed that it seems likely that the appellant would have mended his conduct in these years. Learned counsel for the appellant, on appellant’s instructions, has earnestly and humbly prayed that the appellant may be given a chance to rehabilitate himself. The said requests seem genuine as it is a fact that while being on bail, during the trial, the appellant did not repeat any such offences. There are the five philosophies of sentencing .The first one is retribution and the purpose is to emphasize taking revenge on a criminal, perpetrator or offenders. The next philosophy is incapacitation which means a way to reduce the chances of an offender committing another crime. Then is the deterrence in which a criminal is made to fear going back to jail or prison. Rehabilitation is also another philosophy of sentencing by which an effort is made to reform and rehabilitate a criminal, such as trying to give him a second chance. Reparation is the last of the five philosophies of sentencing in which effort is made to repay victim(s). Indeterminate sentencing means that criminal punishment that promotes rehabilitation through the use of unspecific sentences. Both the offences under sections 11-W(2) and 9 of Anti-Terrorism Act, 1997 are punishable with imprisonment which may extend to five years. The very intention of the Legislature for providing indeterminate sentencing, by using the words “may extend to” in both of the sections 11-W(2) and 9 of Anti-Terrorism Act, 1997, was that it would provide for rehabilitation of a convict. Such provision of law providing for the unspecific sentences is indicative that the Courts have to appreciate circumstances indicative of reformation of a convict before deciding about the quantum of sentence. A reformed convict will not only be a better person for the society but may also be helpful for his dependents. The plea of reduction in sentence, however, shall not be available to hardened and desperate criminals. The enormous increase in prison populations has led to severe prison overcrowding. Rehabilitation addresses the problem of prison overcrowding. The Islamic theory of punishment derives from the Holy Quran and the Hadith. On the whole, the Holy Quran has about 200 verses dealing with the legal issues. The main goal of Islamic Penology is to secure human welfare, maintain peace and to establish a righteous society. It is very clearly enunciated in the Holy Quran that Allah has sent His messengers and the Holy Quran, so that men can establish justice. It is categorically expressed as: “God commands justice, righteousness, and spending on ones relatives, and prohibits licentiousness, wrongdoing, and injustice…” The discretionary punishments are flexible enough to take into account the needs of individual and society and also to realize the maximum general benefit to society and the reformation possibilities of the criminal. Starting from exhortations and reprimands to flogging, to fines, and to imprisonment, Islamic Law has defined different types of discretionary punishments some of which are:

a) Admonition (Al-Waz)

b) Reprimand ( Al-Tawbika)

c) Threat (Al-Tahdid)

d) Boycott (Al-Hajr)

e) Public Disclosure (Al-Tashhir)

f) Fines and seizure (Al-Gharamah walMusadarah)

g) Imprisonment (Al-Habs)

h) Banishment (Al-Nafy)

The Criminal Justice Act, 2003 (2003 c.44) is an Act of the Parliament of the United Kingdom which received Royal assent on 20th November 2003. Section 142 of the Criminal Justice Act 2003 sets out five purposes of sentencing, to which any court dealing with an offender must have regard. Section 142 of the Criminal Justice Act 2003 reads as under:

“Purposes of sentencing

(1) Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing-

(a) the punishment of offenders,

(b) the reduction of crime (including its reduction by deterrence),

(c) the reform and rehabilitation of offenders,

(d) the protection of the public, and

(e) the making of reparation by offenders to persons affected by their offences.”

This is not intended to be a hierchical order. The Sentencing Council for England and Wales, created by Coroners and Justice Act 2009, has stated that “the Criminal Justice Act 2003 does not indicate that any one purpose should be treated as more or less important than another. In an individual case, any or all of the purposes may be relevant to a certain degree and it will be for the Judge or Magistrate to decide how they apply.” Hence the ultimate goal of rehabilitation is to restore a convicted offender to a constructive place in society through some combination of treatment, education, and training. The terminus a quo of these ideas in the WEST are the influential writings of H.L.A. Hart (1959) in England and John Rawls (1955) in the United States. The august Supreme Court of Pakistan has also observed in the case of Niaz-ud-Din v. The State (2007 SCMR 206) at page 209 as under:-

“However, coming to the question of sentence we note that it has been conceded by learned A.A.G. that petitioner is a previous non-convict and there is no other instance of petitioner’s involvement in drug trafficking. It has also been brought in evidence that at the time of his arrest he met custodial violence and on that account he received injuries. Perhaps those who arrested him wanted to extract confession for his alleged involvement with some other narcotic dealer. In these circumstances petitioner needs to be given a chance in his life to rehabilitate himself.”

Hence, being guided by the case of Niaz ud Din v. The State (supra), we, while maintaining the conviction of the appellant but taking into consideration the above mentioned mitigating circumstances, reduce the sentence of rigorous imprisonment of 5 years, passed under section 9 of Anti-Terrorism Act, 1997, to that of already undergone. However, the sentence of fine of Rs.20,000/- shall remain intact but we reduce the period the appellant has to undergo in case of default of payment of fine from one month to ten days simple imprisonment. We are also reducing the sentence of rigorous imprisonment of 5 years, passed under section 11-W(2) of Anti-Terrorism Act, 1997, to that of already undergone. However, the sentence of fine of Rs.20,000/- shall remain intact but we reduce the period the appellant has to undergo in case of default of payment of fine from one month to ten days simple imprisonment. Therefore we while maintaining the conviction of the appellant recorded by the learned Judge Anti-Terrorism Court-I, Multan vide judgment dated 20.09.2016, dismiss the instant appeal with the above modification of the sentence.

MH/A-21/L Order accordingl

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