IN THE HIGH COURT OF SINDH, KARACHI

Cr. Revision Application No. 54 of 2018

Present:

Mr. Justice Abdul Maalik Gaddi

Mr. Justice Amjad Ali Sahito

Applicant : Usman Moazzam through Mr. Muhammad

Farooq, Advocate.

Respondent : The State through Mr. Saghir Abbasi, A.P.G.

Mr. Sajid Mehboob Shaikh, SPP for Rangers

Date of hearing : 12.4.2019

Dated of Order : 12.4.2019

ORDER

Abdul Maalik Gaddi, J. Through this Criminal Revision application, the applicant has prayed following relief(s):

a) That the impugned order dated 27.02.2018 passed by the learned Judge of ATC-II may be set-aside and learned Judge may be stopped from exhibiting the joint interrogation report as the report is inadmissible;

b) That the proceedings of Special Case No.192 of 2015 (The State vs. Usman Moazzam & others) pending before Anti-Terrorism Court No.II may be stayed until the pendency of this Application.

c) That the R&P of the case from the ATC-II may be called in order to decide the matter in question.

d) That any other relief which this Hon’ble Court deems fit and proper under the prevailing circumstances.

2. The brief facts of the prosecution’s case for deciding the application in hand as mentioned in the FIR, which is reproduced as under:

“At this time, I, ASI Imdad Ali Duty Officer received application number 388/2015 dated today for initiation of legal proceeding was received. The memo of the application is incorporated as under to the SHO Police Station Samanabad District West Karachi. I, DSR Zafar Mahmood Ranjha employed at Pakistan Rangers Sindh dated 28/08/2015 accused Usman Moazzam properly known as Usman s/o Moazzam Ali was arrested from his house located at House No.WSA/12, Block 18, Samanabad, FB Area, Karachi with the help of other rangers employees their names are not being disclosed for security reasons. During initial interrogation accused has disclosed that he was initially working with Jamat-e-Islami and during that time accused was involved and posted at Afghanistan Post Faiz where he was given jihadi training as well as physical training and use of ammunition especially pistol and SMG. The accused told us that during those days Jamat-e-Islami and MQM were having rifts due to which members from both the parties were injured and dead. Accused told us that when Pasban separated from Jamat-e-Islami since then he is office bearer in Pasban and by using Pasban’s resources accused has provided different terrorists of Al-Qaida and IS at different places medical facilities as well as transportation and also provided directions and information. The accused discloses names of the terrorists included Abdul Hakeem father-in-law of Qari Shahidul Maroof Faiz, Taha Riaz, Sabiha widow of Qari Shahid, Danial Al-Maroof Zarar (Commander Al-Qaida) at Afghanistan, Doctor Abdul Waheed and Al-Qaida Commander Sohail Al-Maroof Harris and others were included. Accused disclosed about his three sons Saad Siddiqui, Hamza and Muhammad, that they are also jihadi and Hamza and Saad share a very close mental bond with each other. He said that his son Saad took computer accessories and left his house and went to Lahore but instead of reaching Lahore he went to Waziristan and from there he received jihadi training and now he is included Al-Qaida and is known as Tariq Double. The accused told about Hamza that he is also a trained member of Harkath-ul-Mujahideen. The accused was taken for 90 days detention and then he was shifted to sub-jail were JIT was concluded wherein above mentioned indications of the accused were repeated with great bravery. The incorporate the same in the FIR this written request is being attached since accused is involved in illegal activities which falls within the terrorism causing serious apprehension to the safety and integrity of the country therefore it is considered that accused may be tried for terrorism charges and a proper report is lodged before the competent court so that he can get convicted. Signature English DSR 26/11/15 Zafar Mahmood Ranjha Sindh Rangers Karachi. 26/11/2015.”

3. It appears from the record that after due investigation, the prosecution submitted the final charge-sheet for trial of the accused persons, the same was transferred to Anti-Terrorism Court-II, Karachi for disposal according to law. It also appears that the applicant was shown arrested in the said FIR by the police on 26.11.2015 from the 61-Wing Ranger’s Sub-Jail Mitha Ram Hostel, Karachi, as he was handed over by the Rangers to the Police Station Samanabad after expiry of detention period of 90 days under section 11EEEE of Anti-Terrorism Act, 1997.

4. It reveals from the record that the controversy in between the parties arose when the complainant (DSR Zafar Mahmood Ranjha) of the case during the course of his examination-in-chief produced the photocopy of the joint interrogation report (JIT), on which the counsel for the applicant has raised objections pertaining to admissibility of the document, on the following points mainly;

a) the joint interrogation report was a photocopy and the complainant was not the author of the same nor was he member of interrogation team;

b) the joint interrogation report has no evidentiary value and it was conducted prior to registration of FIR;

c) that on such occasion, the learned Judge of the trial Court passed an order and directed the Home Department to produce the original joint interrogation report;

d) that on production of the joint interrogation report (JIT), the applicant filed written objection on said report which was rejected vide order dated 27.02.2018, hence this criminal revision application.

5. Mr. Muhammad Farooque, learned counsel for applicant has argued that the accused Usman Moazzam was picked up from his house in July 2015 along with his son, and his wife had filed Constitution Petition No.4253/2015 on 25.7.2015. The comments were called on 06.8.2015 which were filed by the Ranger’s authority on 31.8.2015 and he was under detention for 90 days from 28.8.2015 up-till 25.9.2015. On 26.11.2015 he was handed over to Police Station and FIR No.179/2015 was registered on 26.11.2015. JIT was conducted on 10.9.2015 within the detention period and the investigation starts after interrogation and registration of FIR, therefore, he prayed that JIT report cannot be produced in the Court. He further argued that it is an admitted fact that the complainant of FIR No.179/2015 DSR Zafar Mahmood Ranjha is not the author, signatory or the member of the joint interrogation team, therefore, he is/was not the authorized person to produce the same during his evidence, but the learned trial Court allowed the complainant to produce the JIT report through the impugned order without addressing completely his reservation for producing the said report in evidence, as such, according to him, the learned Judge is/was in complete abrogation of the principle as stated in Article 75 of Qanoon-e-Shahadat Order, 1984. He further argued that joint investigation team is constituted under Section 19 of Anti-Terrorism Act, which clearly states that such team is constituted after the registration of criminal case, whereas in the present situation, the document which is being exhibited in Court is not a joint investigation report but a joint interrogation report, which was conducted while the applicant was under preventive detention for 90 days, and FIR was not registered, but the learned trial Judge did not consider this aspect of the case in her order and passed the impugned order in hurriedly manner, as such, according to him in doing so the applicant has been seriously prejudiced and his all contentions as agitated before the trial Court was not addressed by the trial Court, therefore, he was of the view that the impugned order may be set-aside and case may be remanded to the trial Court for passing appropriate order after hearing the parties and after taking into consideration all the points involved as far as the admissibility of the document in-question in evidence is concerned. During the course of argument, learned counsel for applicant has also reiterated the same facts and grounds which he has stated in the memo of this revision application.

6. Mr. Sajid Mahboob Sheikh, learned Special Prosecutor for Rangers and Mr. Saghir Abbasi, learned APG though opposed this criminal revision application and when confronted the points involved in this revision application, they have submitted that they have no objection if the impugned order is set-aside and case is remanded to trial Court for re-hearing of the objections raised by learned counsel for applicant with regard to admissibility or otherwise of the document in-question in all respect.

7. We have heard the learned counsel for the parties and perused the record so made available before us.

8. It appears from the record that examination-in-chief of the complainant DSR Zafar Mehmood was partly recorded on 18.11.2017, who during his evidence wanted to produce JIT report in evidence which was opposed by the learned counsel for the applicant by taking the plea that under Article 75, 76, 78, 80 and 84 of Qanoon-e-
Shahadat, 1984, it cannot be produced. The main grievance of learned counsel for applicant is that his all legal objections raised in his application with regard to admissibility of the document have not been addressed by the learned trial Court, as such, the applicant has been seriously prejudiced and learned trial Court has also unnecessarily made a reference of another case in the impugned order, which is contrary to law. We have perused the impugned order with the able assistance of learned counsel for the parties and have gone through the relevant laws and come to the conclusion that the point raised by the counsel for applicant goes to the root of the case but the learned trial Court passed the impugned order in a cursory manner and also observed that whatever mentioned in the JIT shall be considered after recording of evidence by prosecution but some of the grounds as mentioned above and as raised by the applicant have not been addressed in the impugned order. Relevant laws which have been mentioned in the application have also not been discussed. In this view of matter, further proceedings and recording statement of witnesses before deciding the questions raised by applicant first by the learned trial Court would prejudice the rights of the accused. As point of admissibility of evidence is involved in this case, it was required to be decided by the learned trial Court at the moment when the objection is raised, but in the present case, all the legal objections have not been replied by the learned trial Court in the impugned order. Therefore, before proceeding further, the trial Court is directed to decide the question of admissibility of document in evidence as well as other objections, if the Court comes to the conclusion that such evidence is admissible only then evidence of the witness can be recorded and if it forms the opinion that the evidence is not admissible then document should not be tendered in evidence. However, it is left with the learned trial Judge to decide the question as per law.

9. We would, therefore, set-aside the impugned order dated 27.02.2018 and remand the case to the trial Court to first consider and decide the matter of admissibility of document in evidence along with other objections raised by the applicant before the trial Court before proceeding further within the period of one month afresh as per law after hearing the parties’ counsel with due notice to them. This Criminal Revision Application stands disposed of in the above terms.

JUDGE

asim/pa