Farooq Ahmed vs State

Judgment Sheet

IN THE LAHORE HIGH COURT RAWALPINDI BENCH,

JUDICIAL DEPARTMENT

Crl. Appeal No. 397 of 2012 (Farooq Ahmad alias Rauf vs. The State etc) Crl. Appeal No. 380 of 2012 (Muhammad Rehman alias Mani vs. The State etc) Crl. Revision No. 227 of 2012 (Muhammad Khalid Mehmood vs. Farooq Ahmed etc)

JUDGMENT

Date of hearing: 15-09-2014.

Appellants by: M/s Basharat ullah Khan and Ch. Muhammad Zardad, Advocates for the appellants.

The State by: Ch. Qaiser Mushtaq, Assistant District Public Prosecutor.

Complainant by: Mr.Sakhi Muhammad Kahut, Advocate for the complainant.

AALIA NEELUM, J: Farooq Ahmad alias Rauf s/o Hakam Khan, Caste Jatt, resident of Aima Jattan, Tehsil and District, Jhelum (appellant in Crl. Appeal No.397-2012) and Muhammad Rehman alias Mani s/o Muhammad Shan, Caste Nai, resident of Bagh Mohallah, Sohawa, Tehsil Sohawa, District, Jhelum (appellant in Crl. Appeal No.380 of 2012), appellants were involved in case F.I.R. No.70-2010 dated 20.02.2010, offence under Sections 302, 324, 34 P.P.C., registered at Police Station, Saddar, District, Jhelum, and were tried by Mr. Abdur Rehman, Additional Sessions Judge, Jhelum. The learned trial court seized with the matter vide its

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judgment dated 04.08.2012, convicted the appellants under Section 302 (b) of P.P.C. read with Section 34 of P.P.C. and sentenced them to undergo imprisonment for life as Tazir. The appellants were also burdened to pay Rs.2,00,000/-as compensation to the legal heirs of deceased-Abid Ali and in case of default in payment thereof, to suffer S.I. of six months. The appellants were also convicted under Section 460 of P.P.C. read with Section 34 of P.P.C. and sentenced to undergo imprisonment for life along with fine of Rs.50,000/- and in case of default in payment of fine, to further undergo S.I. for six months. The appellants were also convicted under Section 324 of P.P.C. read with Section 34 of P.P.C. and the appellants were sentenced to undergo R.I. for ten years along with fine of Rs.30,000/- and in case of default in payment of fine, to further undergo S.I. for three months. The appellants were also convicted under Section 337-A(ii) of P.P.C. read with Section 34 of P.P.C. and sentenced to payment of Rs.60,000/- shall be paid to the injured and the convict shall be kept in jail till the payment of Diyat. All the sentences inflicted upon the appellants were directed to run concurrently and benefit of Section 382-B of Cr.P.C. was also extended in favour of the appellants.

2.Being aggrieved by the judgment of the learned trial court, Farooq Ahmed/appellant impugned the same through filing Crl. Appeal No.397 of 2012 and Muhammad Rehman alias Mani/appellant impugned the same through filing Crl. Appeal No.380 of 2012, whereas the complainant being dis-satisfied with the judgment dated 04.08.2012 has prayed for enhancement of sentences through Crl. Revision No.227 of 2012. As all the matters are arising out of one and the

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same judgment of the learned trial court, therefore, they are being disposed of through a single judgment.

3.Prosecution story, in brief, as per contents of crime report (Exh.P.L-ii), which was lodged on the statement of Khadim Hussain s/o Qadir baksh, (Exh.P.L), complainant (PW-9) is that he is resident of Kala Gujran and running business of construction and owned tractor trolleys and for parking them, he had taken a haveli near Kohinoor Mill. Due to non- availability of accommodation, Khalid Mahmood who was the driver of Raja Iftikhar used to sleep in his haveli for the last one week and Khalid Mehmood’s brother namely Abid Ali who was driver of Mian Atiq, joined the complainant as driver of tractor trolley. The complainant used to return back home after parking the vehicles. The complainant stated that he used to arrive at his haveli at 8:00 a.m. Khalid Mehmood and Abid Ali were used to sleep in the complainant’s haveli. On the day of occurrence i.e. 20.02.201, the complainant arrived at his haveli at 8:30 a.m. but he could not find Khalid Mehmood and Abid Ali. The complainant asked about both brothers from one or two persons but could not know about them. The complainant unlocked the door of the room for taking cot, he heard cry of Khalid, whereupon the complainant became confounded and the complainant immediately called Hafiz Sheraz from his hotel and went into the room and saw Khalid Mehmood and Abid Ali, both brothers, lying unconscious with injuries on their heads and faces. On which Hafiz Sheraz called rescue-1122 and they took both injured to Civil Hospital, Jhelum but due to their serious condition and unconsciousness, injured were referred to District Headquarter hospital, Rawalpindi.

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The mobile phone numbers of Khalid Mehmood (0303- 5764332) and Abid Ali (0303-5940906) were also not found. Both were unconscious, they have no enmity with any one but some unknown persons committed murderous attempt upon them in the room at night.

4.Thereafter, the Investigating Officer (PW-14) proceeded to District Headquarter Hospital, Jhelum at about 10:00 a.m. from where he went to the District Headquarter Hospital, Rawalpindi, as both injured were referred to District Headquarter Hospital, Rawalpindi due to their serious condition. Thereafter, Investigating Officer prepared injury statement of Khalid Mehmood (Exh.P.R) and Abid Ali (Exh.P.S) and sent the same through Abdul Rauf 770/C to District Headquarter Hospital, Jhelum for obtaining the Medicolegal Certificate. Thereafter, he prepared the rough site plan (Exh.P.T). He also secured bloodstained-earth from the place of occurrence (beneath the cot) of the injured into possession through recovery memos (Exh.P.B and Exh.P.C). At the time of spot inspection, the Investigating Officer took into possession the bloodstained brick (P-3) near from the cot through (Exh.P.B).

5.Later on, on 22.02.2010 injured-Abid Ali expired at District Headquarter Hospital, Rawalpindi. The complainant-PW.7 telephonically informed to the Investigating Officer about the death of Abid Ali. The information of death was entered into daily diary through Rapt No.7 dated 22.02.2010 at Police Station, Sadar and offence under Section 302 P.P.C was added. Thereafter, Investigating Officer went to District Headquarter Hospital, Rawalpindi from where he took

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the death slip of the deceased-Abid Ali. Thereafter, Investigating Officer prepared inquest report (Exh.P.V) and drafted application for postmortem examination (Exh.P.U) and entrusted the dead body of deceased- Abid Ali at District Headquarter Hospital, Jhelum to Muhammad Riaz-165/C for autopsy. After the postmortem examination upon the dead body of Abid Ali-deceased, his last worn shalwar (P-1) and chaddar brown coloured (P-2) along with two sealed parcels and envelops were produced by Muhammad Riaz-165/C before the Investigating Officer, which he took into possession vide recovery memo (Exh.P.A). The Investigating Officer also drafted application (Exh.P.Y) for issuance of mobile phone data of both the injured.

6.Subsequently the Investigation of the case was entrusted to Muhammad Akram, S.I. (PW-15), called Draftsman on 24.02.2010 and on the same day, Draftsman took rough notes of the place of occurrence and thereafter prepared the scaled site plan, which was made part of the file as (Exh.P.N, Exh.P.N/1 and Exh.P.N/2). The Investigating Officer also recorded his statement under Section 161 of Cr.P.C.

7.On 07.03.2010, the injured-Khalid Mehmood through written application (Exh.PM) nominated accused persons namely Muhammad Rauf and Muhammad Rehman alias Mani. The Investigating Officer also recorded his statement under Section 161 of Cr.P.C.

8.During the course of investigation, on 19.04.2010 the appellant Muhammad Rehman alias Mani after making disclosure led to the recovery of mobile phone (P-4) of Khalid Mehmood-injured, which

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the Investigating Officer took into possession vide recovery memo (Exh.PK). The Investigating Officer also prepared site plan of the place of recovery (Exh.P.Z). On 24.04.2010 during the course of investigation, the Investigating Officer took into possession Rs.10,000/- (P-S/1 to P.S/20) recovered from appellant-Muhammad Rehman alias Mani vide recovery memo (Exh.PO). The Investigating Officer during investigation, also took into possession certified copy of CNIC of appellant- Muhammad Rehman alias Mani and mobile phone data vide recovery memo (Exh.Ph).

9.Thereafter, the investigating of the case was entrusted to Nazim Abbas Shah S.I/Investigating Officer who arrested Farooq alias Rauf. Having found the appellants guilty, the Investigating Officer prepared report under Section 173 of Cr.P.C. and sent the same to the court of Sessions en-routed through learned Illaqa Magistrate as provided under Section 190(2), Cr.P.C.

10.On 04.12.2010, the learned Additional Sessions Judge, Jhelum formally charge sheeted the appellants to which they pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced as many as sixteen (16) prosecution witnesses. Khadim Hussain (PW-9) is the complainant of the case whereas ocular account in this case has came out from the statement of injured-Muhammad Khalid (PW-10). On the complaint of Khadim Hussain, Muhammad Azam, A.S.I (PW-11) had chalked out formal F.I.R. and Asif Akhter, Draftsman (PW-12) had prepared scaled site plan of the place of occurrence. Primarily, the matter was investigated by Muhammad

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Nawaz, A.S.I (PW-14), thereafter Muhammad Akram S.I (PW-15) conducted investigation and finally the investigation was completed by Nazim Abbas Shah, S.I.

11.Dr. Mehmood Ahmed (PW-4) medically examined Khalid Mehmood and found following injuries on his person:-

Injuries.

1.Head injury with lacerated wound about 2 1⁄2 cm x 1 cm, bone exposed on forehead.

2.Bleeding from nose present.

Pupils were dilated and reaction to light was diminished.

Probable time:-

Between injuries and medical examination was within 14 to 16 hours.

12.Dr. Fayyaz Ahmad Malik (PW-3) had conducted postmortem examination upon the dead body of deceased-Abid Ali and found following injuries on his person:-

Injuries.

1.A lacerated wound measuring 0.5 cm x 05 cm on left temporal region of skull near left ear.

2.A stitched wound measuring 5 cm long on left pinna of left ear.

3.The clotted blood was present in both nostrils.

4.The left eye was slightly swollen and was of bluish coloured.

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Dissection of injuries.

On dissection of area of injury No.1, the wound involved the skin, soft tissue and ultimately the skull bone of the area was found fractures measuring 2.5 cm x 2 cm and the brain-matter was exposed.

After the postmortem examination, the doctor rendered the following opinion:-

Opinion.

On external and internal postmortem of the said deceased, I was of the opinion that the cause of death was head injury, due to injury No.1 which was sufficient to cause death in ordinary course of nature. This may be contributed by the other injuries present on the head.

However, the viscera were sent to the Chemical Examiner, Government of Punjab Lahore for deduction of poison was received as nil and poison was not detected in the contents.

Probable time:-

1.Between injury and death within seventy two hours.

2.Between death and postmortem within seven hours.

Statements of rest of the prosecution witnesses are formal in nature.

On the same day i.e. 20.02.2010, Dr. Mehmood Ahmed (PW-4) also medically examined Abid Ali and found following injuries on his person:-

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Injuries.

1.Head injury with lacerated wound about 2 x 1⁄2 cm muscle deep on left eye brow.

2.Abrasion about 8 x 1 1⁄2 cm on left side of face.

3.Bleeding from ear and nose.

4.Both eyes swollen and pupils dilated and reaction to light was diminished.

Probable time:-

Between injuries and medical examination was within 14 to 16 hours.

13.Learned Assistant District Public Prosecutor gave up Abdur Rauf (C) on 21.12.2010, Anwar Ali 227/C on 06.07.2011, Muhammad Rizwan-PW on 08.05.2012 being unnecessary. On 19.07.2012 after tendering in evidence the reports of Chemical Examiner (Exh.P.AA) and (Exh.P.BB) and report of Serologist (Exh.P.CC), learned Assistant District Public Prosecutor closed the prosecution evidence.

14.After conclusion of the prosecution evidence, the appellants were also examined under Section 342, Cr.P.C., wherein they opted neither to produce defence evidence nor to appear as their own witness in terms of Section 340 (2), Cr.P.C., in disproof of the allegations levelled against them in the prosecution evidence. While replying to the question that why this case was against them and why the PWs deposed against them. The appellant-Farooq Ahmad alias Rauf made the following deposition:-

“Both the injured were my servants since 2 years and they were very much aware about my financial status and they nominated me just to gain the financial means. I remained in U.K for 25 years and

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all my family members are permanently residing at U.K and this fact is very much in the knowledge of the injured so they deposed against me without any lawful justification with a considerable delay which is unexplained till date. Whereas the remaining police officials who conducted the investigation never deposed a single word against me and according to the statement of Muhammad Akram SI there is no incriminating or corroborative piece of evidence against me which can possibly connect me with the alleged occurrence.”

The appellant-Muhammad Rehman alias Mani while replying to the question that why this case was against him, made the following deposition:-

“I have no concern whatsoever with the alleged occurrence, in fact on the instigation of one Saeed ASI (brother in law of the replier) in connivance with the local police as well as the injured Muhammad Khalid, I was involved in the instant case. All the PWs are police officials who investigated wrongfully against me on the instigation of Saeed ASI and tried to fraudulently involve me in the instant case. In fact it is an unseen occurrence and the local police used me as a scapegoat.”

15.Learned trial court after evaluating the evidence available on record found the version of the prosecution proved beyond shadow of reasonable doubt resulting into their conviction in afore-stated terms.

16.The learned counsel for the appellants submitted that the appellants were not named as accused by the injured-Khalid Mehmood even while appearing in the witness box he did not depose that he identified the accused

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in court; that the injured-Khalid Mehmood after discharge from hospital went to his native town and at belated stage made statement against Muhammad Rauf and Muhammad Rehman alias Mani whereas the injured one was aware about the names of appellants and belated statement of the injured against other accused persons is result of deliberation which makes his statement highly doubtful. It was contended by the learned counsel for the appellants that there was no eye witness of the occurrence and the whole prosecution case hinges upon the evidence of injured-PW which is not supported by medical evidence. Learned counsel for the appellants submitted that no evidence of poisoning was found. Learned counsel further contended that the witnesses had made dishonest improvements in their statements. Learned counsel lastly submitted that this is a case of no evidence, which squarely lacks sufficient incriminating evidence to convict any person on the capital charge, prosecution badly failed to prove its case against the appellants beyond shadow of reasonable doubt, therefore, they are entitled to be extended the benefit of doubt, resulting into their acquittal from the charge.

17.Learned counsel for the complainant as well as learned Law Officer have vehemently opposed the contentions raised by learned counsel for the appellants with the submissions that nevertheless the occurrence was unseen till lodging of FIR, however, through leading cogent and confidence inspiring evidence in the shape of evidence of injured-PW, the prosecution proved its case to the hilt against the appellants. Learned counsel further argued that ocular account furnished by Khalid Mehmood-injured PW is corroborated by the medical evidence available on the record. That mere difference in names of accused does not make any difference as PW deposed that they are his

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accused. Moreover, the appellants were also found guilty during the course of investigation and their names were placed in Column No.3 of the report prepared under Section 173 of Cr.P.C. Learned counsel for the complainant finally submitted that the prosecution through leading cogent and trustworthy evidence has rightly proved its case against the appellants beyond shadow of reasonable doubt, therefore, the appellants do not deserve any leniency and the learned trial court was not justified in inflicting life imprisonment upon the appellants rather normal sentence of death would be appropriate sentence to the act done by the appellants. Lastly states that appeals of both the appellants be dismissed.

18.Arguments advanced from all the corners have been heard and gone through the record available on the file with the able assistance of the learned counsel for the appellants and complainant as well as the State.

19.As per prosecution version contained in the statement (Exh.PL) on the basis of which crime report (Exh.PL ii) was chalked out on 20.02.2010 at 5:50 p.m. when Khadim Hussain-complainant on 20.20.2010 arrived at his haveli at 8:30 a.m. he had not found Khalid Mehmood and Abid Ali, on which the complainant asked about both brothers i.e. Khalid Mehmood and Abid Ali from different persons but he could not know about them, upon which the complainant unlocked the door of the room for taking cot and when he heard about cry of Khalid Mehmood whereupon complainant became confounded and he immediately called Hafiz Sheraz (not produced) from his hotel and they went into the room and saw Khalid Mehmood and Abid Ali, both brothers were lying unconscious with injuries on their heads and faces. Hafiz Sheraz called rescue-1122 and they shifted both brothers to Civil Hospital, Jhelum from where both injured were referred

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to the District Headquarter Hospital, Rawalpindi due to their serious condition and unconsciousness. As per contents of crime report some unknown accused persons committed murderous attempt upon both brothers in the room at night.

20.In the instant case, one thing is admitted that the appellants are not named in the F.I.R. and the occurrence was not witnessed by the complainant. The most important aspect of the prosecution case is that Muhammad Khalid (PW-

10)injured PW, on 07.03.2010 through application (Exh.PM) named Farooq Ahmad alias Rauf and Muhammad Rehman alias Mani as accused after seventeen days of occurrence and after four days of his discharge from hospital, for which he did not render any explanation and while appearing in the witness box as PW-10 deposed that he regained conscious after 15/16 days of the occurrence and he was brought from Rawalpindi to police post, Kala Gujran by his father whereas during cross-examination he deposed as under:- “It is correct that after my discharge on 04.03.2010 from DHQ hospital, Rawalpindi, I went to my native village at District Khushab along with my father and other relatives. It is correct that after reaching my native village I used to meet my father daily. It is correct that (Exh.PM) in writing was moved to the SHO on 07.03.2010 after four days of my discharge from the hospital. Exh.PM was drafted by police official in police post, Kala Gujran. It is correct that I was completely healthy when I was discharged from DHQ Hospital, Rawalpindi.”

21.It is admitted position that written application (Exh.PM) of Muhammad Khalid had introduced the names of culprits as Ch. Rauf and Mani. This witness while appearing

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before the court deposed that his accused are Ch. Rauf and Mani and admitted during cross-examination as under:- “It is correct that I had recorded in Exh.PM the names of Ch. Rauf and Imran alias Mani.”

The Investigating Officer, Muhammad Akram, SI (PW-

15)deposed during cross-examination as under:- “It is correct that according to the statement of injured Ch.Rauf and Imran alias Mani were introduced as culprits of the case by the injured.”

He further deposed as under:-

“It is correct to suggest that the name of accused was never corrected when the investigation remained pending with me.”

The Investigating Officer (PW-15) also deposed during cross-examination that:-

“During the investigation of this case by me, the name of accused Rauf was referred to and not that of Farooq. It is correct that accused Muhammad Farooq is having a good financial status and his brothers are living abroad since long.”

The entire prosecution evidence is silent about the fact that how names of the appellants as accused came into picture at all. The question of wrongly identification of accused in the instant case is not made out. The injured PW-Muhammad Khalid (PW-10) admitted as correct that he had nominated Imran alias Mani. The relevant part of his deposition is reproduced as under:- “It is correct that I had nominated Imran alias Mani. It

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is correct that during the whole course of investigation, I named the accused as Imran alias Mani.”

Muhammad Khalid (PW-10) also deposed during cross- examination that Investigating Officer had come to his village at District, Khushab after he was discharged from the hospital and prior to recording of his statement. He also admitted as correct that he did not nominate any accused to the Investigating Officer in my village. Whereas Muhammad Akram-S.I (PW-15), Investigating Officer deposed during cross- examination that:-

“The injured Khalid Mehmood was accompanied by the complainant along with two unknown persons on 07.03.2010 when he came to the Police Station, I did not go to the house of injured/PW at District, Khushab.”

22.The evidence on record clearly disclosed that the injured, PW-Khalid Mehmood had failed to prove that alleged occurrence was committed by the appellants. It is not possible to say in the absence of evidence on record, as to whether the appellants are responsible for the occurrence wherein Abid Hussain lost his life due to injuries and Khalid Mehmood-injured prosecution witness remained under treatment for thirteen days. In my view, the fact that PW-10 while submitting application (Exh.PM) did not mention about the names of the appellants as accused as well as while appearing in witness box, was certainly a relevant fact to be taken into consideration while appreciating the evidence on record and judging the credibility of the injured prosecution

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witness. It is difficult to believe that he was not aware of the names of the accused. The Investigating Officer (PW-15) during the course of deposition stated that it came into his knowledge during investigation that both injured remained with Farooq as servants and to gain financial benefit, the injured wanted to implicate Farooq as his culprit. Apart from this, PW-10 also failed to mention that mobile phone of his brother namely Abid Ali-deceased and his money were also stolen by the accused persons. These omissions certainly reflect on the credibility of the injured witness. The statement of Muhammad Khalid (PW-10) appears to be untrue because in (Exh.PM) the allegation was that Ch. Rauf took brick from outside the wall and inflicted 2/3 brick blows on the head of Abid Hussain (deceased) and thereafter gave him brick blow whereas during deposition, he stated that Muhammad Rehman alias Mani had brought a brick from outside and gave the same to Ch. Rauf. The names of both the appellants were nowhere in the picture. I have also gone through the entire record along with Exh.PM and noticed that parentage and address of Muhammad Rehman alias Mani is not mentioned/stated by Muhammad Khalid (PW-10). The presence of Muhammad Khalid (PW-10)/injured-PW at the place of occurrence can not be doubted but his presence was not the proof that whatever he stated is based on true facts. The Hon’ble Supreme Court of Pakistan in case titled “Amin Ali and another v. The State” (2011 SCMR 323) held that:

“-----Presence of injured witness can not be doubted at place of incident merely because they had injuries on their person does not stamp them to be truthful witness.”

23.It is not denied that unexplained delay in making statement by PW-10 leads to suspicion and also reflects

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adversely on the prosecution case. It is un-believable to the prudent mind that one brother was done to death and other received serious injuries and injured despite awareness of names of accused, did not make any effort to lodge a report. The delay in nominating the accused along with other set of accused in the peculiar facts and circumstances of the present case could not be ignored. Thus it appears that statement (Exh.DA) along with written application (Exh.PM) of injured witness and his deposition was result of consultation and deliberations. All above referred facts do indicate that PW-10 is not believable witness.

24.Now I shall consider the time when the occurrence took place. The time of reporting the alleged occurrence as noted in (Exh.PL) was 3:45 p.m. on 20.02.2010. According to PW-9/Khadim Hussain, his statement (Exh.PL) was recorded by police in the District Headquarter Hospital, Rawalpindi. It is admitted fact that complainant (PW-9) has not seen the occurrence, he only reported the incident to the police and shifted the injured to the District Headquarter Hospital, Jhelum. Whereas when the complainant appeared in witness box, he deposed that on 18.02.2012 he along with Rescue 1122 shifted both the injured to the District Headquarter Hospital, Jhelum and also introduced “Hafiz Sahib”. The statement of PW-9 was confronted on material points. The PW-10 deposed that on 19.02.2010 at 9:30 p.m. they took meal. As per Medicolegal Reports-Exh.PF and Exh.PG probable duration of injuries is within 14 to 16 hours. The medical evidence is in conflict with the ocular account, deposed by PW-10/Muhammad Khalid. The medical evidence does not support version of PW-10. The deposition of PW-9 is not trust worthy. For the reason that he deposed that Abid Ali and Khalid were not medically examined at District Headquarter Hospital, Jhelum, which is against the

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deposition of Dr. Mehmood Ahmed, Senior Medical Officer (PW-4). According to which both injured Abid Ali and Khalid were medically examined at District Headquarter Hospital, Jhelum on 20.02.2010 at 8:30 p.m. and also issued Medicolegal Reports (Exh.PF and Exh.PG). As per medical evidence, occurrence took place on 19.02.2010 between 4:30 p.m. to 6:30 p.m. The prosecution also failed to establish time of occurrence. In the circumstances, it appears that the occurrence had taken place in a different manner altogether and a false case was sought to be concocted by the prosecution and that is why these inconsistencies have appeared in the evidence of the witnesses.

25.There is another important aspect of the case that officials of Rescue-1122 and Hafiz Sheraz were important witnesses, as Hafiz Sheraz called Rescue-1122 and officials of Rescue-1122 who had shifted both the injured to the District Headquarter Hospital, Jhelum but neither they were interrogated nor the record of Rescue-1122 was taken into custody by the Investigating Officer. PW-14 admitted that:- “It is correct that the complainant Khalid Hussain introduced one Hafiz Sheraz. I did not summon or join Hafiz Sheraz in investigation of this case. It is also correct to suggest that Rescue-1122 officials who also allegedly took the said injured to the District Headquarter Hospital, Jhelum were neither interrogated nor their record was obtained by me during the investigation of the case.”

The act of withholding of material witnesses who after the alleged occurrence had seen the injured and informed about it to the Rescue-1122, and officials of Rescue-1122 had shifted both the injured were important witnesses. To prove presence of the complainant and thereafter calling to Hafiz Sheraz is

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required corroboration and same could be proved by producing said Hafiz Sheraz as Medicolegal Reports reflect that Rescue-1122 brought both the injured and presence of complainant is not proved from any other evidence. The act of withholding of material witnesses creates impression that if they were produced or joined in the investigation, they might not support the prosecution. Therefore, the case of prosecution has become further doubtful. The Hon’ble Supreme Court of Pakistan in case titled “Muhammad Rafique and others v. The State and others” (2010 SCMR 385) held that:-

“-----Best evidence withheld---- Presumption----If any party withholds the best piece of evidence, then it can fairly be presumed that such party has some sinister motive behind it.”

26.As far as recovery of mobile phone of Sony Erickson 2201 having IEMI No.35907800582308 and Rs.10,000/- from the appellant-Muhammad Rehman alias Mani is concerned, the prosecution has examined PW-13 Muhammad Usman (Constable) regarding the fact that Rs.10,000/- was got recovered by the appellant Muhammad Rehman alias Mani whereas PW-13 Muhammad Usman (Constable) during deposition stated that during interrogation, the appellant disclosed that he could get recovered the amount of Rs.10,000/- through his wife and Muhammad Rehman’s wife brought the money in police station which was taken into possession. As far as mobile phone is concerned, the complainant-Khadim Hussain (PW-9) in his statement (Exh.PL) made before police stated that

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mobile phone numbers of Khalid Mehmood (0303- 5764332) and Abid Ali (0303-5940906) were not found but while appearing in witness box PW-9 had not deposed a single word about missing of any mobile phone. Whereas injured prosecution witness Muhammad Khalid (PW-10) deposed that his Rs.42,000/-were stolen by the accused persons but he did not state any single word regarding missing of his mobile as well as of Abid Ali. The money alleged to have been recovered from the appellant-Muhammad Rehman alias Mani in fact, was brought by the wife of the appellant-Muhammad Rehman when he was in police custody. Whereas in the entire prosecution evidence, no description of mobile is mentioned which is allegedly missing and only numbers of mobile phones pertaining to Khalid Mehmood and Abid Ali were mentioned in Exh.PL. In absence of any description of any mobile phone and in absence of evidence on the record regarding missing of mobile phones, it can not be safely stated that allegedly recovered mobile phones relate to Khalid Mehmood and Abid Ali. Even the Investigating Officer-Muhammad Akram, SI (PW-15) during his cross examination admitted it correct that such kind of mobile phone is easily available in the market. In the circumstances, it is difficult for the Court to hold that prosecution has established the recovery of stolen money as well as mobile phones from the accused.

27.In the instant case, prosecution has tried to link the appellants with the alleged occurrence through mobile call data. The prosecution has brought on record the mobile phone call details, on record as (Exh.PJ). The mobile call data details (Exh.PJ) and

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testimony of PW-5 Muhammad Jehangir, ASI could be valuable in nabbing the accused in the aid prosecution, if call details print out in respect of mobile numbers 0303-5764342 and 0303-5940906 is supported by the certificate. In absence of any such material, the Court can not entertain and rely on such documents. There is no declaration that the print outs are in conformity with the record faithfully and accurately maintained in respect of the all call logs concerning the particular mobile phones. Therefore, the call data print out (Exh.PJ) can not be considered as evidence. At best, it can only help the police in investigation. Muhammad Jehangir, ASI (PW-5) admitted it as correct that only data which was collected relates to Khalid Mehmood- injured and Abid Ali-deceased and no call data was collected related to the accused persons. On the other hand, the Investigating Officer Muhammad Akram-SI (PW-15) during his cross examination admitted that on 14.04.2010, the injured PW-Khalid Mehmood mentioned his telephone number as 0303-5769332 and of his deceased brother 0303-5740906 which were taken away by the accused persons and entire prosecution case is silent regarding mobile numbers of accused persons. In absence of such material, the above referred data can not connect the accused specially appellant- Muhammad Rehman alias Mani with the alleged offence. Only in this state of the evidence on record, I find that the evidence adduced by the prosecution is in fact inconsistent and creates a serious doubt about the truthfulness of the prosecution case.

28.It is settled principle of law that conviction must be based on unimpeachable evidence and any doubt arising in the prosecution case, must be resolved

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Crl. Revision No.227-2012.

in favour of the accused. The Hon’ble Supreme Court of Pakistan in case titled “Muhammad Khan and another v. The State” (1999 SCMR 1220) held that:- “-----Appreciation of evidence---- Conviction must be based on unimpeachable evidence and certainty of guilty and any doubt arising in the prosecution case must be resolved in favour of the accused.

29.From the facts and circumstances narrated above, I am persuaded to hold that prosecution has badly failed to substantiate its case against the appellants to the hilt and the learned trial court was not justified in convicting the appellants while basing upon such weakest and uncorroborated evidence and conviction passed by the learned trial court in the circumstances is against all cannons of law recognized for the dispensation of criminal justice. As per dictates of law, benefit of every doubt is to be extended in favour of the accused. Moreover, it is golden principle of law that the court may err in letting off hundred guilty persons but should not convict one innocent person.

30.Consequently, instant appeals are allowed and conviction and sentence imposed upon the appellants are hereby set aside and Farooq Ahmad alias Rauf and Muhammad Rehman alias Mani are acquitted of the charge levelled against them. The appellants shall be released forthwith, if not required in any other case. These appeals are accordingly allowed.

31.Now coming towards the Criminal Revision No.227 of 2012 filed by Muhammad Khalid Mehmood for enhancement of the sentence of imprisonment of life awarded to the appellant namely Farooq Ahmad alias

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Crl. Revision No.227-2012.

Rauf and Muhammad Rehman to the sentence of death is concerned, for the foregoing reasons, the same has no weight, which is accordingly dismissed.

(Aalia Neelum) Judge

Approved for reporting A.S.Khan.