IN THE HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Jail Appeal No.182 of 2018

Present:

Mr. Justice Naimatullah Phulpoto

Mr. Justice Rasheed Ahmed Soomro

Appellant : Rao Nadeem @ Goga through

Mr. Shah Imroz Khan, advocate.

Respondent : The State through

Mr. Muhammad Iqbal Awan, D.P.G.

Date of hearing : 17.09.2018

Date of Announcement : 19.09.2018

J U D G M E N T

Naimatullah Phulpoto, J.- Learned D.P.G. pointed out that Special Anti-Terrorism Appeals 160 and 161 of 2018 were field by present appellant Rao Nadeem alias Goga son of Hassan Ali, arising out of the same judgment through his counsel Mr. Shah Imroz Khan, the said appeals have been disposed of by this Court vide judgment dated 15.08.2018. It is further submitted that above Jail Appeal was not fixed by office on 15.08.2018 due to rush of work.

2. Learned counsel for the appellant submits that instant appeal has become infructuous in view of the above and does not press the same.

3. Since instant appeal has become infructuous as Special Anti-Terrorism Appeals 160 and 161 of 2018 filed by appellant have already been decided by this Court vide judgment dated 15.08.2018. Relevant portion of the judgment is reproduced as under:-

“19. Prosecution has failed to establish safe custody of the Awan Bomb and 9 MM Pistol at Police Station and safe transmission to the expert. Roznamcha entries of Malkhana, with regard to weapons were not produced before trial Court. Incharge Malkhana on the point of safe custody of weapons has also not been examined by the prosecution. Learned Deputy Prosecutor General further pointed out that Awan Bomb was not sent to the FSL. Simple recovery of weapon could not be considered as corroborative piece of evidence until it was supported by positive report of forensic science laboratory as held by the Honourable Apex Court in the case of MUHAMMAD MANSHA vs. THE STATE (2018 SCMR 772).Relevant portion is reproduced as under:-

“It has also been settled by this Court in numerous judgments and recently in the cases of Sardar Bibi and another v. Munir Ahmed and others (2017 SCMR 344) and Zahoor Ahmad v. The State (2017 SCMR 1662), that simple recovery of weapon cannot be considered as corroborative piece of evidence until it is supported by the positive report of Forensic Science Laboratory (FSL). In this case the only recovery of Carbin (P-6) cannot be considered as corroborative piece of evidence in the absence of any crime empty. According to the prosecution .12 bore Carbin was allegedly recovered at the instance of appellant Muhammad Mansha. Although the report of FSL regarding working condition of a .12 bore Carbin is available on the record but in the report it is mentioned that said Carbin was recovered from the place of occurrence and as such the same was inconsequential. But the said recovery was treated as a corroborative piece of evidence. So in the absence of any corroborative piece of evidence the conviction of the appellant was not sustainable on the same set of evidence which, according to the observations of the High Court, was full of doubts due to dishonest improvements in the statements of the eye-witnesses.”

20. It is very unfortunate that the learned trial Court ignored the defence plea without assigning the sound reasons. We have perused the R&Ps and copy of the Constitutional Petition No.1012 of 2014 filed by appellant Rao Nadeem @ Goga against the Police Officials available on the record, in which serious allegations have been leveled against the police officials. Plea has been raised by the accused that he has been involved falsely in this case as he had filed a Constitutional Petition No.1012 of 2014 before this Court against the police officials. In these circumstances, in our considered view, that it was the duty of the prosecution to have examined independent and responsible persons of the locality. Descriptions of the Awan Bomb and 9 MM Pistol have also not been mentioned in the mashirnama of arrest and recovery as such false implication could not be ruled out. Safe custody of the weapons at Police Station and safe transit have also not been established, which is requirement of the law as held in the case of Kamaluddin alias Kamala vs. The State [2018 SCMR 577], wherein, the Honourable Supreme Court of Pakistan has observed as under:-

“4. As regards the alleged recovery of Kalashinkov from the appellant’s custody during the investigation and its subsequent matching with some crime-empties secured from the place of occurrence suffice it to observe that Muhammad Athar Farooq DSP / SDPO (PW18), the Investigating Officer, had divulged before the trial court that the recoveries relied upon in this case had been affected by Ayub, Inspector in an earlier case and thus, the said recoveries had no relevance to the criminal case in hand. Apart from that safe custody of the recovered weapon and its safe transmission to the Forensic Science Laboratory had never been proved by the prosecution before the trial court through production of any witness concerned with such custody and transmission.”

21. After careful reappraisal of the evidence discussed above, we are entertaining no amount of doubt that the prosecution has failed to bring home guilt to the accused as the evidence furnished at the trial is full of factual, legal defects and is bereft of legal worth/judicial efficacy, therefore, no reliance can be placed on the same.

22. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749).

23. For the reasons discussed above, appeals are allowed by extending benefit of doubt. Conviction and sentence recorded by the trial court are set aside. Appellant shall be released forthwith if not required in some other custody case.”

4. In view of the above, instant appeal, having become infructuous, is accordingly disposed of.

J U D G E

Gulsher/PS