IN THE HIGH COURT OF SINDH AT KARACHI

Special Criminal AT Appeal No. 160 of 2018

Special Criminal AT Appeal No. 161 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 : 15.08.2018

J U D G M E N T

Naimatullah Phulpoto, J.- Appellant Rao Nadeem @ Goga was tried by learned Judge, Anti-Terrorism Court No.X, Karachi, in Special Case No.746 of 2016 & Special Case No. 747 of 2016, in FIRs No. 155 & 156 of 2016, registered at Police Station Korangi, Karachi. On conclusion of trial, learned trial Court vide judgment dated 09.05.2018 convicted appellant Rao Nadeem @ Goga son of Hassan Ali, for offence punishable under Sections 4/5 Explosive Substance Act, 1908 read with Section 7 (1) (ff) of Anti-Terrorism Act, 1997 and sentenced him to undergo fourteen [14] years R.I and also convicted accused under Section 23(1) (a) of the Sindh Arms Act, 2013 and sentenced him to five [05] years R.I. Both the sentences were ordered to run concurrently. Appellant was extended benefit of Section 382-B, Cr.P.C.

2. Brief facts leading to the filing of the appeals are that on 25.04.2016 ASI Zulfiqar Ali Kiyani alongwith his sub-ordinate staff was busy in patrolling duty. When the Police party reached at Link Road, Sector 34/3, Korangi No. 2 ½, Karachi, it was 0150 hours, where it is alleged that present accused was found by the police party in the suspicious manner, who on seeing the Police party, tried to run away from there but police surrounded and caught him hold. On enquiry, the accused disclosed his name as Rao Nadeem @ Goga son of Hassan Ali. ASI Zulfiqar Ali Kiyani conducted personal search of the accused in presence of mashirs, namely, H.C. Muhammad Ali, P.C. Azhar Ali & P.C. Waqar Ali and secured one Awan Bomb [wrapped in the plastic shopper] from the right pocket of his trouser. Upon his further search, ASI Zulfiqar Kiyani had also secured one 9 MM Pistol, containing five bullets in the magazine from the left side of his belt. ASI Zulfiqar Kiyani inquired from the accused about license, to which he replied in negative. ASI Zulfiqar Kiyani prepared mashirnama of arrest and recovery in presence of aforesaid mashirs; pistol was sealed at the spot. Thereafter, accused and the recovered property were brought at the Police Station Korangi, Karachi, where two separate FIRs bearing No.155 of 2016 under Section 4/5 Explosive Substance Act, 1908 read with Section 7 ATA, 1997 & FIR No.156 of 2016 under Section 23 (1) (a) of the Sindh Arms Act, 2013 were lodged on behalf of the State against the appellant / accused.

3. After usual investigation, challan was submitted against the accused under the above referred sections. Both the cases were ordered to be tried jointly as provided under Section 21-M of the Anti-Terrorism Act, 1997.

4. Trial court framed charge against appellant Rao Nadeem @ Goga at Ex.04, to which the appellant did not plead guilty and claimed to be tried.

5. At trial, prosecution examined four witnesses, who produced the relevant record. Thereafter, prosecution side was closed.

6. The statement of the appellant under Section 342 Cr.P.C., was recorded at Ex-11, wherein, he denied the prosecution allegations. Accused/appellant raised plea that he has been involved in this case falsely because he had filed a Constitutional Petition No.1012 of 2014 before this Court against SHO of Police Station Zaman Town, SSP CID & other Police Officials in the year 2014. Accused did not examine himself on oath nor produced any witness in his defence in disproof of prosecution allegations.

7. Learned trial Court, after hearing the learned counsel for the parties and assessment of evidence available on the record, vide judgment dated 9^th May, 2018, convicted the appellant as stated above, hence this appeal.

8. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 09.05.2018 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

9. Learned counsel for the appellant has mainly contended that the prosecution story was unbelievable. According to the prosecution case, one Awan Bomb and 9 MM Pistol were recovered from the possession of the accused at midnight time. Nothing has come on record as to why appellant was carrying the weapons at mid night time. It is further argued that efforts were not made by ASI to call independent persons of the locality for making them as mashirs in this case. It is also argued that accused was not a previous convict and he was also not involved in the offence of the nature as present one. It is submitted that descriptions of 9 MM pistol and Awan Bomb have not been mentioned in the mashirnama of arrest and recovery. Lastly, it is contended that the appellant had filed a Constitutional Petition No.1012 of 2014 before this Court against the Police Officials regarding high handedness and the police was annoyed with the appellant and false cases were registered against the accused to learn him lesson. In support of his contention, learned counsel for the appellant has relied on the cases of ASIF KHAN vs. The STATE [2018 YLR 661], Muhammad Imran Afridi vs. The State [SBLR 2018 Sindh 1086], Mehboob Alam @ Mandi vs. The State [SBLR 2017 Sindh 1967], Muhammad Umair & Others vs. The State [SBLR 2017 Sindh 1247] & Muhammad Hafeez v. The State [SBLR 2017 Sindh 2231].

10. Mr. Muhammad Iqbal Awan, Deputy Prosecutor General has argued that one Awan Bomb and 9 MM Pistol were recovered from the possession of the appellant by ASI in presence of mashirs and report of expert was positive. He has further argued that no specific enmity has been alleged by the appellant against the police officials. Lastly, it is submitted that prosecution has proved its case against the appellant by cogent and confidence inspiring evidence. Learned D.P.G. prayed for dismissal of appeals.

11. We have carefully heard the learned counsel for the parties and perused the evidence minutely.

12. Record reflects that ASI Zulfiqar Ali, who was head of the police party has deposed that on 24.04.2016 at 0150 am., when the police party reached at Link Road, Korangi, Karachi, present accused was found in the suspicious manner and he was arrested and from his personal search one Awan Bomb and one 9 MM Pistol, containing five bullets without license were recovered in presence of police mashirs. In the cross-examination, said ASI has replied that description of the pistol has not been mentioned in the mashirnama of arrest and recovery. ASI has also admitted that time is not mentioned in the mashirnama of arrest and recovery at Ex.6/G. In the cross examination ASI Zulfiqar Ali has replied that he did not know that accused had filed a Constitutional Petition No.1012 of 2014 before this Court against the Police Officials. PW-03 mashir PC Muhammad Ali has supported the prosecution evidence. However, in the cross-examination he has admitted that number 33 and words VMG-K 1-05 are written on the Awan Bomb, but same are not mentioned in the mashirnama of arrest and recovery. PC/mashir has also admitted that description of the pistol is also not mentioned in the mashirnama of arrest and recovery. SIP Ghulam Mustafa of Bomb Disposal Unit has deposed that on 25.04.2016, he received information regarding recovery of the Awan Bomb. He proceeded to the Police Station and checked / examined the Rifle Grenade and found it without launcher. He has further stated that some marking numbers were written on the recovered Rifle Grenade and some words were readable and some words were not readable. He has clarified that words 1-115 were visible and he suggested the Investigation Officer that Rifle Grenade be sent to the FSL for further examination. Athar Malik investigation officer has carried out the investigation in this case. IO stated that he had visited the place of incident and prepared such mashirnama on 25.04.2016. He deposited pistol at police station for sending to FSL examination and received a positive reports of recovered Awan Bomb. In the cross examination, Investigation Officer has replied that at the time of inspection, he tried to associate private mashirs, but they did not co-operate. However, he has admitted that number of recovered Awan Bomb is (33) VMG1-115. He has also admitted that said number is not mentioned in the mashirnama of arrest and recovery.

13. It is the matter of record that appellant was arrested from the street on 24.04.2016 at 01:50 a.m. and he was found in suspicious manner. Police officials failed to disclose the source of light. The powers of the police to arrest a person accused of commission of an offence are provided in sections 54 and 55, Cr.P.C. and some provisions in the Police Rules, 1934 also deal with the same. Learned Lahore High Court in the case of Khizer Hayat v. Inspector-General of Police (Punjab), Lahore and 7 others (PLD 2005 Lahore 470) observed on the subject as follows:

"20. ------- The powers of arrest in both the said sections are the same but they relate to different situations. In the case of Abdul Qayyum v. S.H.O., Police Station Shalimar, Lahore (1993 PCr.LJ 91) this Court had an opportunity to attend to the requirements of section 54, Cr.P.C. and it was observed by this Court as follows:

"Under the provisions of clause first of section 54, Cr.P.C., the Police Officer can arrest a person in the following four conditions:-

(a) The accused is involved in a cognizable offence;

(b) Against the accused a reasonable complaint has been made for the said offence;

(d) Reasonable suspicion exists that the said person is involved in the cognizable offence.

The expression 'credible information' is not a technical legal expression importing that the information must be given upon oath or affirmation. It includes any information which in the judgment of the officer to whom it is given appears entitled to credit in the particular instance and which he believes. The credible information mentioned therein need not be in writing. -------

The object of section 54, Cr.P.C. is to give the widest powers to the Police Officers to arrest the persons who are involved in cognizable cases and the only limitation placed upon their power is the necessary requirement of reasonability and credibility to prevent the misuse of the powers by the Police Officers.

As the powers mentioned above given to the Police Officers under section 54, Cr.P.C. encroaches upon the liberty of a person, this wide power has to be construed, interpreted and defined strictly. A general definition of what constitutes reasonableness in a complaint or suspicion and credibility of information cannot be given. Both must depend upon the existence of tangible legal evidence within the cognizance of the Police Officer and, he must judge whether the evidence is sufficient to establish the reasonableness and credibility of the charge, information or suspicion. It has been laid down by this Court in 1992 PCr.LJ 131: 'An arrest which is beyond the provisions of section 54, Cr.P.C. would be illegal and void per se'."

Prior to that in the case of Muhammad Shafi v. Muhammad Boota and another (PLD 1975 Lahore 729) this Court had observed that

"The words "reasonable suspicion" (in section 54, Cr.P.C.) do not mean a mere vague surmise, but a bona fide belief on the part of the Police Officer that an offence has been committed or is about to be committed. Such belief has to be founded on some definite averments tending to show suspicion on the person arrested. --- The action of a police Officer under section 54, Cr.P.C. must be guarded inasmuch as he should first satisfy himself about the credibility of the information which, as stated already, should relate to definite facts. It was not at all the intention of the law-giver that the Police Officer should at his own sweet will arrest anybody he likes, although he may be a peace loving citizen of the country."

14. This Court has also observed in the case of Muhammad Siddiq v. Province of Sindh through Home Secretary, Karachi and 2 others (PLD 1992 Karachi 358)(DB) that

"It will thus be seen that the first sub-clause of section 54(1), Cr.P.C. a person can be arrested without a warrant in the following circumstances:-

(a) If he be concerned in any cognizable offence.

(b) Against whom a reasonable complaint has been made.

received that he is concerned with commission of such offence.

(d) If reasonable suspicion exists about him being so concerned.

It is true that a Police Officer has been conferred sufficient powers to arrest a person in the investigation of a cognizable offence if he be concerned with commission of such offence. But such a power can be exercised only in those cases where a Police Officer is possessed of some evidence indicating involvement of a person under the four situations mentioned in section 54(1), Criminal Procedure Code."

15. In the case of Mst. Razia Pervez and another v. The Senior Superintendent of Police, Multan and 5 others (1992 PCr.LJ 131) it is observed as follows:

"No doubt, the Police Officer can arrest a person where a reasonable suspicion exists of his having been concerned in any cognizable offence but power given to the Police Officer under this section (section 54, Cr.P.C.) being an encroachment on the liberty of a citizen is not unlimited. It is subject to the condition stated therein. An arrest purporting to be under this section would be illegal unless the circumstances specified in the various clauses of the section exist. This section does not give free licence to a Police Officer to arrest anybody he may like. In order to act under this section, there must be a reasonable suspicion of the person to be arrested having been concerned in a cognizable offence. An arrest of a citizen in a reckless disregard of the conditions imposed in this section would make the arrest and detention of the subject illegal and the Police Officer arresting or detaining the subject would be exposed to prosecution under the Pakistan Penal Code and also for departmental action under the relevant rules."

16. The above mentioned precedent cases clearly show that an arrest of a person in connection with a criminal case is not to be a matter of course and the power to arrest is conditional upon fulfillment of the requisite legal requirements.

21. One of the cardinal principles of criminal law and jurisprudence is that an accused person is presumed to be innocent until proved guilty before a court of law. However, of late we have noticed a growing tendency on the part of the complainant party to insist upon arrest of an accused person nominated by it in the F.I.R. and an increasing willingness, any eagerness, on the part of the investigating officer of a criminal case to affect arrest of the accused person even before initiating or launching a proper investigation of the allegations levelled in the F.I.R.. Such an approach has been found by us to be absolutely against the spirit of the relevant law, to be wrought with inherent dangers to cherished liberty of citizens who may ultimately be found to be innocent and to amount to putting the cart before the horse! It had been observed by the Hon'ble Supreme Court of Pakistan in the case of Brig. (Retd.) F. B. Ali and another v. The State (PLD 1975 Supreme Court 506) as under:

"In my view the mere lodging of an information does not make a person an accused nor does a person against whom an investigation is being conducted by the police can strictly be called an accused. Such a person may or may not be sent up for trial. The information may be found to be false. An accused is, therefore, a person charged in a trial. The Oxford English Dictionary defines an "accused" as a person "charged with a crime" and an "accusation" as an "indictment". Aiyer in his Manual of Law Terms also gives the same meaning. I am of view, therefore, that a pAerson becomes an accused only when charged with an offence. The Criminal Procedure Code also uses the word "accused" in the same sense, namely; a person over whom a Court is exercising jurisdiction."

Even the Hon'ble Federal Shariat Court had remarked in the case of Mst. Asho and 3 others v. The State (1987 PCr.LJ 538) that

"Mere leveling accusations against a person in F.I.R. does not make him an accused person unless and until some evidence implicating such person in the commission of the offence is available."

17. We may add in this context that a general impression entertained by some quarters that an arrest of a suspect or an accused person is necessary or sine qua non for investigation of a crime is misconceived and the same portrays scant knowledge of the relevant statutory provisions. We may briefly allude to such statutory provisions here. Section 46, Cr.P.C. provides as to how an arrest is to be made, section 54, Cr.P.C. deals with arrest by a police officer without a warrant, section 55, Cr.P.C. pertains to arrest of vagabonds, etc. by an officer in charge of a Police Station, section 59, Cr.P.C. caters for a situation where a private person may affect an arrest and section 151, Cr.P.C. authorizes a police officer to arrest a person in order to prevent commission of a cognizable offence. Section 169, Cr.P.C. visualizes a situation where a suspect may be released if the investigating officer finds no sufficient evidence or reasonable ground for suspicion against him. The parameters of such arrests are essentially those already discussed in the above mentioned precedent cases. According to Article 4(1)(j) of the Police Order, 2002 it is a duty of every police officer to "apprehend all persons whom he is legally authorised to apprehend and for whose apprehension sufficient grounds exist". Rules 24.1, 24.4 and 24.7 of the Police Rules, 1934 clearly contemplate situations where an information received by the police regarding commission of a cognizable offence may be doubted or even found false. Rule 25.2(1) of the Police Rules authorizes an investigating officer to associate "any person" with the investigation and Rule 25.2(2) categorically provides that "No avoidable trouble shall be given to any person from whom enquiries are made and no person shall be unnecessarily detained". Rule 25.2(3) clinches the issue by clarifying that it is the duty of an investigating officer to find out the truth of the matter under investigation. Object of IO shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person. As if this were not enough, Rule 26.1 emphasizes that Section 54, Code of Criminal Procedure, authorizes any police officer to arrest without a warrant any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned. The authority given under this section to the police to arrest without a warrant is, however, permissive and not obligatory as held by the Honourable Supreme Court in the case of Sugran Bibi Vs. The State (2018 SCMR 595).

18. In the present case, ASI Zulfiqar Ali Kiyani was not in possession of evidence indicating involvement of the accused under four situations mentioned in Section 54.1 Cr.PC and encroached upon the liberty of a person. According to the case of prosecution, police party was patrolling on 25.04.2016 at 01:50 a.m. and found the present accused in suspicious manner, he was surrounded and caught hold and from his possession awan bomb and 9MM pistol without license were recovered. We are unable to believe the prosecution story for the reason that source of light has not been disclosed by the prosecution witnesses, description of awan bomb and 9MM pistol have also not been disclosed. There was also delay in sending the weapons and explosive substance to the experts; safe custody of the weapon and explosive substance at the police station has not been established. Investigation officer has also failed to inquire/interrogate about the filing of Constitution Petition No.D-1012/2014 by the appellant before this Court. It is the duty of the police officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case but IO failed to perform his duty. Though our criminal legal system proceeds on the presumption of honest, God fearing and fair police officers, impartial and honest investigation system but this is far from the reality in the society we live in. The manner in which the investigation of this case was conducted, we have no hesitation to hold that investigation was totally dishonest and colourful. The evidence of police officials brought on record was not trustworthy and reliable. Trial court failed to appreciate the evidence according the settled principles of law. We have already held that prosecution has utterly failed to establish the safe custody of the awan bomb and 9MM pistol and safe transmission to the experts.

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.

24. These are the reasons of short order announced by us on 15.08.2018.

J U D G E