JIT report has no evidentiary value unless proved during trial, rules SHC

A joint investigation team’s report has no evidentiary value unless the material on the basis of which the report has been prepared is produced and proved during a trial, the Sindh High Court observed on Saturday.

The observation came in a detailed judgment of a division bench headed by Justice Abdul Maalik Gaddi on an appeal of senior journalist Nasarullah Khan against his five years’ conviction by an anti-terrorism court for possessing literature and magazines of banned organisations. The court on April 8 had set aside five years’ imprisonment awarded to the journalist in its short order.

The court observed that allegations against the appellant were that he was a facilitator of Khalid Makashi, a terrorist of proscribed organisation Al-Qaeda, having possession of a black colour bag containing four magazines “Nawa-e-Afghan Jihad”, one book in the name of “Rahe-Jihad”, one book in the name of “Punjabi Talban” and other literature at the time of his arrest.

However, the court observed that on perusal of record, no convincing evidence was available on record to show that the appellant had any nexus with the terrorist of proscribed organisations.

The court observed that there was nothing on record that the alleged material so collected by the recovery officer was authoured, printed or published by the appellant nor even any material was placed on record to show that the appellant was a member of any proscribed organisation.

“No evidence on record that the appellant was spreading these materials among the people,” the court observed, adding that there was only verbal assertions of the prosecution witnesses, which had not been supported by any independent witness.

“Merely asserting that the appellant has connection with proscribed organisations is not enough to connect him in this case,” the court observed.

It further said that it had been vehemently argued by the deputy prosecutor general that a JIT was also constituted to probe the matter wherein the journalist was found black and his conviction be maintained. The court observed that it had not felt persuaded to agree with the DPG Sindh for the reasons that the JIT report was neither produced in evidence nor brought on record and in the absence thereof no reliance could be placed on it.

The division bench observed that the alleged case property that was four magazines of “Nawa-e-Afghan Jihad”, one book in the name of “Rah-e-Jihad”, and one book in the name of “Punjabi Talban”, along with other literature allegedly recovered from the possession of the journalist, were not produced/tendered or exhibited in the evidence by the prosecution to “prove that the alleged material was in fact hatred”.

The court remarked that the alleged recovered material was also not available in the record and proceedings R&Ps of the trial court, and when the court confronted this fact from the deputy prosecutor general he had no satisfactory answer with him.

It said that evidence so brought on record by the prosecution appeared to be stereotyped. The court observed that the investigation officer had deposed that the case property was not handed over to him in a sealed condition, and he also admitted that about none of the nine books/journals recovered from the appellant, the complainant put his signature, and that the alleged material pertained to year 2011-2012, but this fact had also been ignored by the trial court.

According to the division bench, it is obligatory upon the prosecution to produce/tender the alleged recovered material from the appellant before the court during the trial, as the initial burden lies upon the prosecution. The court observed that in the absence thereof, it could not be held that the appellant was carrying alleged recovered material with his person and the same was recovered from him.

The court observed that it is a settled principle of law that the non-production of the case property in evidence before the trial court is fatal to the prosecution case and destroys its very foundation.

The court also questioned the arrest of the journalist and the recovery of hate material in the absence of private witnesses, observing that no explanation had been furnished by the prosecution and also no efforts were made by the complainant of the case to secure independent witnesses.

The court observed that the record of the case shows that the investigation officer not only failed to dig out the source of the publication of the alleged recovered material, but also failed to find out from where the appellant obtained the alleged recovered material. It said that needless to say that the investigating officer was duty-bound to collect all relevant pieces of evidence pertaining to the allegation of the crime and to dig out the truth enabling and facilitating the court to administer justice; however, it appears that the investigating officer has failed to discharge his duties in the manner as provided under the law.

The court observed that it was also admitted by the investigating officer of the case in his cross examination that the appellant had no previous criminal record of any kind as well as nothing also on record that the appellant had indulged in such type of activities in past.

It said that the prosecution remained fail to prove the case against the appellant beyond the shadow of reasonable doubt, while there is no cavil to the proposition that responsibility to prove its case squarely rests upon the shoulders of the prosecution and that has not been discharged successfully in this case and it is settled law that benefit of each and every doubt is to be extended to the accused and that only a single reasonable doubt qua the guilty of the accused is sufficient to acquit him of the charge.

Nasrullah Khan, who has been associated with an Urdu daily, was sentenced to five years’ imprisonment by the ATC on December 26, 2019 for possessing literature and magazines of outlawed organisations that incited hatred against state institutions and the government, besides having links with activists of a banned outfit.

According to the prosecution, the Counter Terrorism Department had arrested Khan on a spy’s information in the Soldier Bazaar area on November 11, 2018, and seized four backdated magazines of the Nawa-e-Afghan Jihad from his possession, in which people had been incited against state institutions, sectarian hatred and supporting the late Afghan Talban emir Mullah Omer.

The appellant’s counsel, Mohammad Farooq, submitted that his client was a senior journalist and had nothing to do with any proscribed organisation. He submitted that Khan had been arrested at his house on November 10, and after two days of illegal detention he had been implicated in a false and fabricated case.

He argued that the material shown to be recovered from the possession of the journalist was old magazines and police failed to prove that the appellant was printing, publishing or disseminating any material to incite hatred in the public or giving projection to any person convicted of a terrorist act.

He submitted that the appellant was charged with possessing literature of a banned organisation and having links with activists of a proscribed outfit but nothing had been produced before the trial court to prove such allegations neither was he a publisher, printer or author of the literature that incited hatred against the state institutions.

He also questioned the arrest of the appellant by the police and submitted that no independent witnesses had been produced to prove the arrest and the recovery of hatred material from the possession of the appellant despite his arrest was shown to have been made in a populated area.

The counsel submitted that the joint investigation team’s opinion had no value in the eyes of the law; besides, it failed to prove any nexus of the applicant with any proscribed organisation. He stated that the trial court erred in judgment by convicting the appellant as the prosecution case was full of doubts and based on fictitious grounds. He requested the court to set aside the trial court order and acquit the appellant of charges as prosecution miserably failed to prove its case against the appellant.