Muhammad Ejaz etc. vs State

Stereo. H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT RAWALPINDI BENCH, RAWALPINDI

JUDICIAL DEPARTMENT

Criminal Appeal No. 45-J of 2012 Muhammad Ejaz etc v. The State etc.

W JUDGMENT

Date of Hearing: _________23.09.2014________________________________ Appellant by: Raja Ghaneem Aabir Khan, Advocate for the appellants.___ Complainant by: Mr. Muzammal Hussain, Advocate for the complainant.___ State by: Ch.Qaisar Mushtaq, Assistant District Public prosecutor.___ Aalia Neelum, J.- Muhammad Ejaz son of Raja Muhammad, Mst. Ghulam Kousar alias Rani daughter of Muhammad Sharif and Mst. Qurat- ul-Ain alias Ainy daughter of Muhammad Sharif appellants along with Muhammad Qasim son of Nazakat Hussain (since acquitted) were involved in case F.I.R. No.258-2011, dated 10.04.2011, offence under Sections 302, 365, 392, 411 PPC, registered at Police Station, Westridge, Rawalpindi and were tried by Ch. Muhammad Tariq Javed, Additional sessions Judge, Rawalpindi. The learned trial court seized with the matter in terms of judgment dated 26.05.2012 convicted the appellants as under:-

Accused Muhammad Ejaz was convicted and sentenced:-

i)under Section 302(b) P.P.C. for life imprisonment along with compensation of Rs.1,00,000/-to the legal heirs of deceased and in case of default thereof, accused further undergo S.I. for six months.

ii)under Section 365 P.P.C. for five years R.I with fine of Rs.10,000/-, in case of default in payment of fine, shall suffer S.I. for two months.

Muhammad Ijaz etc v. The State.

iii)under Section 392 P.P.C. for five years R.I. with fine of Rs.10,000/-, in case of non payment, shall further undergo S.I. for two months.

iv)under Section 201 P.P.C. for three years R.I. with fine of Rs.10,000/-, in case of default in payment of fine, further undergo S.I. for two months.

v)under Section 411 P.P.C. for two years R.I.

Accused Mst.Ghulam Kausar was convicted and sentenced:-

i)under Section 302(b) P.P.C. for life imprisonment along with compensation of Rs.50,000/-to the legal heirs of deceased and in case of default thereof, accused further undergo S.I. for six months.

ii)under Section 365 P.P.C. for five years R.I with fine of Rs.10,000/-, in case of default in payment of fine, shall suffer S.I. for two months.

iii)under Section 392 P.P.C. for five years R.I. with fine of Rs.10,000/-, in case of non payment, shall further undergo S.I. for two months.

iv)under Section 201 P.P.C. for three years R.I. with fine of Rs.10,000/-, in case of default in payment of fine, further undergo S.I. for two months.

v)under Section 411 P.P.C. for two years R.I.

Accused Mst.Qurat-ul-Ain was convicted and sentenced:-

i)under Section 302(b) P.P.C. for life imprisonment along with compensation of Rs.50,000/-to the legal heirs of deceased and in case of default thereof, accused further undergo S.I. for six months.

ii)under Section 365 P.P.C. for five years R.I with fine of Rs.10,000/-, in case of default in payment of fine, shall suffer S.I. for two months.

Muhammad Ijaz etc v. The State.

iii)under Section 392 P.P.C. for five years R.I. with fine of Rs.10,000/-, in case of non payment, shall further undergo S.I. for two months.

iv)under Section 201 P.P.C. for three years R.I. with fine of Rs.10,000/-, in case of default in payment of fine, further undergo S.I. for two months.

v)under Section 411 P.P.C. for two years R.I.

Benefit of Section 382-B of Cr.P.C., was also extended in favour of all the accused-appellants. It was also ordered that all the sentences shall run concurrently.

2.Feeling aggrieved by the judgment of the learned trial court, Muhammad Ejaz, Mst. Ghulam Kousar alias Rani and Mst. Qurat-ul-Ain alias Ainy have assailed their convictions through Crl. Appeal No.45-J of

3.Prosecution story as alleged in the F.I.R. (Exh.PA/1) lodged on the complaint (Exh.PA) of Akhtar Munir (PW-6)/complainant is that on 05.04.2011 his brother Akhtar Jehangir who was taxi driver of vehicle bearing No.4669-IDT, Suzuki FX, Colour-yellow, went from the house along with car in morning and did not turn back upon which on 07.04.2011, complainant informed it to police at Naseerabad Police Post about missing of his brother by stating that he was searching for his brother and his taxi till today. Amin Jan (given up PW) and Tariq Mehmood (PW-5) informed the complainant that on 05.04.2011 at evening, they saw Qasim and Ejaz accused went along with his brother towards Tarnol from Daewoo Adda. He believed that Ejaz etc abducted his brother along with car and they murdered him and after snatching car, they disappeared with it, hence, F.I.R. in hand.

4.Tariq Mehmood S.I. (PW-10) after sending the complaint (Exh.PA) to the Police Station through Mazhar Iqbal 4305/C for registration of formal F.I.R. on 10.04.2011, who being Investigating Officer of the F.I.R. in question, visited the place of occurrence and

Muhammad Ijaz etc v. The State.

prepared un-scaled site plan (Exh.PJ) and got recorded statements of the prosecution witnesses under Section 161 of Cr.P.C. On receiving information from Khurram Shahzad (PW-7), Arshad Mehmood (given up PW) and Babar Hussain (given up PW) informed about accused-Ejaz that he was standing at Bus Stop Qasim Abad, the Investigating Officer along with all witnesses and complainant conducted raid and apprehended him. Subsequently, on the disclosure and pointation of the accused-Ejaz, dead body of Akhtar Jahangir was recovered from village Nogazi, while dead body of the deceased was escorted by Shah Jehan (C) PW-9 to the District Headquarter Hospital, Rawalpindi for autopsy. The Investigating Officer also prepared memo of identification of the corpus (Exh.PK), inquest report (Exh.PG/1-2), prepared application for postmortem of the dead body (Exh.PF), also prepared un-scaled site plan of the place of occurrence (Exh.PL), he also prepared recovery memo (Exh.PC) of the articles i.e. engine P-2, gear P-3, floor of the vehicle P-1, two number plates P-6/1-2, hammer P-4, chhani P-5 and Tokka P-13 on 10.4.2011. Thereafter, Shah Jehan-Constable handed over to him last worn clothes of the deceased- Akhtar Jahangir i.e. Shalwar P-10, Qameez P-11, Azarband P-14 and Bunian P-12 of white colour along with five sealed parcels and two sealed envelops. The recovery memo (Exh.PH) was prepared about the last worn clothes of the deceased. On 11.4.2011 he got physical remand of the accused-Ejaz. On 11.4.2011, the Investigating Officer (PW-10) got recorded statements of Hafiz-ur-Rehman and Shahid Sattar regarding last seen under Section 161 of Cr.P.C. On the same day i.e. 11.4.2011 he arrested Qasim. On 16.4.2014, he got recovered roof of the vehicle P-15, bonnet P-16, four doors P-7/1-4, photocopy of I.D. card of accused- Ghulam Kousar P-17 from Arbab Plaza and prepared recovery memo (Exh.PD). On 21.4.2011, the Investigating Officer (PW-10) further recovered rim P-9/1-2, gas kit and cylinder P-8 and prepared recovery memo (Exh.PE). The Investigating Officer also prepared un-scaled site plans of the recoveries i.e. Exh.PC/1, Exh.PD/1 and Exh.PE/1 respectively.

Muhammad Ijaz etc v. The State.

The Investigating Officer also recorded statements under Section 161 of Cr.P.C. of the prosecution witnesses. On 20.4.2014, Draftsman handed over to him the scaled site plan Exh.PB, Exh.PB/1-2 and he also recorded statement of Draftsman under Section 161 of Cr.P.C. On 26.4.2011 accused-Ejaz and Qasim were sent to judicial lockup. On 03.7.2011, he arrested Ghulam Kousar and Qurat-ul-Ain, on physical search by lady Constable of Ghulam Kousar, a mobile Nokia 1208 P-18 was recovered and he prepared recovery memo (Exh.PM).

5.Having found the accused persons guilty, the Investigating Officer prepared report under Section 173 of Cr.P.C. and sent the same to the court of competent jurisdiction. On 06.9.2011, the learned trial court formally charge sheeted the appellants to which they pleaded not guilty and claimed trial. The prosecution in support of its version produced as many as ten (10) prosecution witnesses.

6.The learned Deputy District Public Prosecutor gave up Amin Jan, Arshad Mehmood, Babar Hussain and Hafiz-ur-Rehman being un- necessary and closed the evidence of prosecution by tendering the report of chemical examiner (Exh.PN) and report of Histopathologist (Exh.PO).

7.The appellants were also examined in terms of Section 342 of Cr.P.C., wherein they opted not to appear as their own witnesses in disproof of the allegations levelled against them in the prosecution version. In response to a particular question, why this case against him and why the PWs deposed against him, Muhammad Ejaz made the following deposition:-

“The instant F.I.R. against me is false, frivolous and baseless and has been registered by the complainant in connivance with I.O and upon instigation of Tariq Mehmood PW, who had a quarrel with me and he is liable to pay me sale consideration of a 2 nd hand fridge, which he bought from me. He is order to avoid the payment got roped me in the instant case falsely. The PWs 4, 5, 6 are relatives and neighbors inter-se. They

Muhammad Ijaz etc v. The State.

have been tutored by the I.O who give evidence against me, their depositions are false, frivolous and concocted. I neither abducted the deceased nor took him to Nogazi village, nor murdered him. The prosecution has miserably failed to bring an iota of evidence against me. All the PWs are relatives and neighbors of complainant, whereas the other are police officials and Government servant and thus were interested witnesses and tried to strengthen the prosecution case by deposing illegally, maliciously and falsely.”

Likewise, in response to a particular question, why this case against him and why the PWs deposed against her, Mst. Ghulam Kausar made the following deposition:-

“I and my daughter were falsely implicated in the instant case at belated stage when prosecution agency raised objection the evidence was created by the Investigating Officer. I and my daughter has no nexus with the alleged crime and even we do not know about the whereabouts of the deceased as well as my co-accused namely Qasim and Ejaz. Infact a putrefied dead body was recovered and local police to shown their efficiency before the high ops falsely implicated me and my daughter in the instant false case because we are living below poverty line and even no body are backing us. I and my daughter both are innocent and the allegations against me and my daughters are balled and cryptic and I have no nexus with the alleged crime. I was pregnant at the time when I was arrested and even today I have infant of less then nine months in my lap.”

Similarly, Mst. Qarat-ul-Ain, appellant in response to a particular question, why this case against him and why the PWs deposed against her, she almost made the same statement given by her co-convict, namely, Mst. Ghulam Kausar.

Muhammad Ijaz etc v. The State.

8.The learned trial court after evaluating the evidence available on record in the light of arguments advanced from both sides, found the prosecution version proved beyond shadow of reasonable doubt resulting into conviction of the appellants in the afore-stated terms.

9.It is contended by learned counsel for the appellants that the prosecution has miserably failed to bring home the guilt of the appellants; that the occurrence is un-witnessed; that the circumstantial evidence is neither persuasive nor usual; that extra judicial confession allegedly made before Akhtar Munir (PW-6), Khurram Shahzad (PW-7) and Tariq Mehmood, SI (PW-10) is not true at all; that on the pointation of the appellant-Muhammad Ejaz, dead body was not recovered. In the end, learned counsel for the appellants has prayed for indulgence of the Court in the circumstances.

10.On the other hand, the learned Assistant District Public Prosecutor assisted by learned counsel for the complainant has vehemently opposed the contentions raised by learned counsel for the appellants with the submission that the prosecution has proved its case against the appellants beyond shadow of doubt; the accused-Ejaz had made extra judicial confession and on his pointation, dead body of the accused was recovered. Lastly, argued that PWs having no enmity with the appellants, there was no question of their false implication.

11.Arguments advanced from both the sides have been heard. I have also gone through the record available on file with the able assistance of the learned counsel for the parties.

12.The prosecution case rests on last seen, extra-judicial confession, recovery of dead body from the premises rented to the appellant-Ejaz and recoveries from the appellants. Admittedly, it was an un-witnessed occurrence. The evidence of last seen was furnished by two sets of the prosecution witnesses. First set of last seen was furnished by Tariq Mehmood (PW-4) and Amin Jan (given up PW). According to Tariq Mehmood (PW-4) at about

Muhammad Ijaz etc v. The State.

4.30/5.00 p.m. on 05.04.2011 he along with Amin Jan (given up PW) were standing on Daewoo Bus Adda, when Akhtar Jahangir-deceased reached there while driving a taxi car bearing No.IDT-4669 along with Ejaz appellant and Qasim who were going towards Tarnol. On 09.4.2011, he informed the complainant about the fact that on 05.4.2011 he saw Akhtar Jahangir along with Qasim and Ejaz. PW-4 deposed during examination-in-chief that his statement under Section 161 of Cr.P.C. was recorded by the police on 10.4.2011 whereas during cross-examination Tariq Mehmood (PW-4) deposed as under:- “I did not record any statement on the relevant day, when I informed the complainant about the occurrence. I do not remember the date when I recorded my statement before police, probably it was 11 or 12 at 9:00 a.m. in the morning.”

This witness (PW-4) further deposed that :-

“Police got recorded my statement on 09.4.2011 at 9.00 a.m. He further deposed that the statement was not recorded on 11th or 12th.”

whereas, the complainant-Akhtar Munir (PW-6) deposed that on 09.4.2011 at about 9.30 p.m. when he was inquiring about his missing brother from the taxi drivers standing in Qasimabad Bazzar, Amin Jan (given up PW) and Tariq Mehmood (PW-4) informed him about complainant’s missing brother. On which the complainant went to Police Post Naseerabad to inform the police about the information given by Amin Jan (given up PW) and Tariq Mehmood (PW-4) and on asking of police, the complainant called both the prosecution witnesses, Amin Jan (given up PW) and Tariq Mehmood (PW-4) at Daewoo Adda, where their statements were got recorded by the police. During cross- examination the complainant (PW-6) while replying to specific question deposed that:-

“I called the PWs who informed me about the missing of my brother firstly and then got recorded my

Muhammad Ijaz etc v. The State.

statement before the police. I called the PWs at 2.30 a.m. on 10.4.2011.”

whereas the Investigating Officer stated that on 10.4.2011 he was on patrolling duty at Koh-e-Noor Mills stop when the complainant-Akhtar Munir (PW-6) met him and made his statement before him which he reduced into writing (Exh.PA) and after writing police proceedings, sent the complaint (Exh.PA) to the Police Station through Mazhar Iqbal 4305/C for registration of formal F.I.R. Thereafter he went to the place of occurrence and recorded statements of prosecution witnesses. The complaint (Exh.PA) was written on 10.4.2011 at 2:00 a.m. whereas formal F.I.R. (Exh.PA/1) was registered at 2.30 a.m. on 10.4.2011 but the Investigating Officer deposed during cross-examination that he wrote first case diary at 2.15 a.m. on 10.4.2011. On the other hand, the complainant-Akhtar Munir (PW-6) deposed that he made his statement before the police on 10.4.2011 at 2.30 a.m. which creates doubt about time of reporting the incident to the police and recording of the statement under Section 161 of Cr.P.C. of Tariq Mehmood (PW-4).

13.As above stated that present case entirely rests upon the evidence of the deceased having been last seen in the company of the accused persons. Second set of last seen was furnished by Shahid Sattar (PW-5) and Hafez-ur- Rehman (given up PW). Shahid Sattar (PW-5) deposed that on 05.4.2011 at 4.45/5.00 p.m. he along with Hafiz-ur-Rehman (given up PW) were standing at Naseerabad Bus Stop for urgent work when they saw Akhtar Jahangir who was driving a Suzuki FX-taxi bearing No.4669, stopped the taxi car near them and two ladies namely Ghulam Kousar alias Rani and Qurat-ul-Ain alias Ainy (appellants) sit in the car who were already standing there. He also deposed that on the front side of the taxi Muhammad Ejaz-accused and on rear seat Qasim accused was sitting and Investigating Officer recorded his statement on 11.4.2011. Shahid Sattar (PW-5) deposed that on 05.4.2011 he saw Akhtar Jahangir and Ghulam Kousar alias Rani, Qurat-ul-Ain alias Ainy, Muhammad Ejaz and Qasim in the taxi of Akhtar Jahangir-deceased.

Muhammad Ijaz etc v. The State.

Whereas during cross-examination while replying to specific question he deposed as under:-

“I do not remember as to how many times, I met Akhtar Jahangir on 9th or 10th of April.”

Shahid Sattar (PW-5) did not deny that he did not meet Akhtar Jahangir after 05.4.2011. This witness does not state a single word what, when at which time and date he informed the complainant about lastly seeing of the deceased. During cross-examination he deposed as under:-

“I do not remember as to what time on 6, 7, 8 th April 2011, I told Akhtar Munir complainant regarding the event that I saw Akhtar Jahangir on 05.4.2011 while driving a taxi.”

Shahid Sattar (PW-5) deposed during cross-examination that he got recorded his statement on 11.4.2011 and he further deposed as under:- “The statement recorded by the court is correct but the police recorded false statement. Confronted with Ex.DA, where it is so recorded.------------------I did not inform to the complainant about the deceased Akhtar Jahangir.”

14.Admittedly Tariq Mehmood (PW-4) and Shahid Sattar (PW-5) witnesses of last seen were chance witnesses. Tariq Mehmood (PW-4) is relative of the complainant (PW-6). Tariq Mehmood (PW-4) admitted that Amin Jan (given up PW) is his “Mamoon” whereas Shahid Sattar (PW-5) was neighbourer. These witnesses are chance witnesses but their presence at the relevant time and date at specific place was extremely doubtful as it is difficult to believe that Tariq Mehmood (PW-4) came out at that time and date for repair of Amin Jan’s vehicle’s bumper and Shahid Sattar (PW-5) went to visit his uncle’s house at Dhamme Phatak. Both these witnesses admitted during deposition that they did not inform the police that for what reason, they were there at relevant date and time.

Muhammad Ijaz etc v. The State.

15.As both PW-4 and PW-5 are chance witnesses and their statements require minutely scrutiny before placing any reliance after going through entire prosecution evidence of extra judicial confession of Muhammad Ejaz, recovery of dead body of Akhtar Jahangir on the pointation of Muhammad Ejaz, recovery of parts of car on the pointation of Muhammad Ejaz and mobile phone from Ghulam Kousar.

16.The evidence of extra judicial confession was furnished by Akhtar Munir (PW-6), Khurram Shahzad (PW-7) and Tariq Mehmood, S.I. (PW-10). The alleged extra judicial confession by Muhammad Ejaz-appellant was allegedly made in police custody. It was deposed by PW-6, PW-7 and PW-10 that on the disclosure and pointation of Muhammad Ejaz-appellant, dead body was recovered but in the inquest report (Exh.PG/1-2) neither Tariq Mehmood (PW-10) mentioned presence of Akhtar Munir (PW-6) and Khurram Shahzad (PW-7) at the place from where dead body was recovered nor it is stated in the inquest report that Muhammad Ejaz-appellant had made extra judicial confession. If dead body had been recovered at the instance of accused- Muhammad Ejaz after making his extra judicial confession, that should have been mentioned in the inquest report.? Akhtar Munir (PW-6) and Khurram Shahzad (PW-7) deposed that in presence of Tariq Mehmood, S.I. (PW-10), Muhammad Ejaz made extra judicial confession and lead to dead body of Akhtar Jahangir (deceased) but neither their presence anywhere near the place from where the dead body was recovered was mentioned nor there is a reference to the identification of dead body by the complainant (PW-6) and Khurram Shahzad (PW-7). If the dead body has been recovered at the instance of accused after his extra judicial confession, it should have been mentioned in the inquest report. Time of discovery of the dead body has also not been mentioned in the inquest report.

17.The documentary evidence contradicted the oral testimony of PW-6 and PW-7 regarding extra judicial confession, their presence at the place of recovery of the dead body and indentification of the dead body by them that is

Muhammad Ijaz etc v. The State.

the type of evidence regarding these crucial circumstances. It is highly dangerous to accept the same and hold that the dead body was discovered at the instance of accused-Muhammad Ejaz on his extra judicial confession. I may also point out at this stage that date of arrest of the accused-Muhammad Ejaz was not mentioned in the inquest report. It is also relevant to mention here that contents of “Fard Nishandahi” place of murder, recovery and identification of the dead body (Exh.PK) do not support inquest report. It is also relevant to mention here that Tariq Mehmood S.I (PW-10) during cross-examination admitted that:-

“It is correct that on 11.04.2011 CPO, Rawalpindi directed me to recover the abductee after perusing the crime report dated 10.04.2011 and asked me to furnish progress report. Volunteered that till that time the accused persons were not arrested.”

18.From the above deposition of the Investigating Officer, arrest of Muhammad Ejaz-appellant, his extra judicial confession and recovery of the dead body become highly doubtful. In the face of the admission of (PW-6) as noticed above, it is obvious that the so-called extra judicial confession was not admissible in evidence. The conclusion is inescapable that the prosecution has not been able to establish the case against appellants beyond a reasonable doubt and there are no circumstances which connect them with the alleged offence.

19.The prosecution made an effort to show that house from where the dead body was recovered belonged to the accused-Muhammad Ejaz who got it on rent but from bare reading of prosecution evidence, this part of the prosecution case has not been established, let alone proved beyond a reasonable doubt. The story of getting the house on rent appears to be a clumsy or concocted and there is not an iota of material to support it.

20.Apart from the above, the postmortem examination of the dead body had been conducted at 10.00 p.m. on 10.4.2011 whereas the dead body was

Muhammad Ijaz etc v. The State.

recovered between intervening night of 09.4.2011 and 10.4.2011 but the complainant (PW-6) during cross-examination deposed that:- “At 3.30 p.m. on 10.04.2011, the funeral of the deceased Akhtar Jahangir was held. At about 1:30 p.m. we reached out home along with dead body from hospital.”

21.The learned counsel for the appellant-Muhammad Ejaz contended that F.I.R. was lodged with due deliberation and consultation and dead body was with police and after preparation of postmortem report, F.I.R. was lodged anti- dated from postmortem report and inquest report. In such circumstances both above stated documents along with evidence of Tariq Mehmood, S.I. (PW-10) does require caution and careful scrutiny. It is in the deposition of the PW-10 Tariq Mehmood, S.I. that they reached at about 6.30 a.m. at Nogazi village and inquest report was prepared at about 11.00 a.m. on 10.4.2011 while sitting at the place i.e. village Nogazi from where dead body was recovered. PW-10 further deposed that he recorded statement of the complainant under Section 161 of Cr.P.C. at about 11.00/12.00 a.m. Had the report been lodged before recovery of the dead body and the Investigating Officer would have received its copy, then he would have mentioned F.I.R. number and its detail in the inquest report, at the time of preparing of inquest report, the Investigating Officer was not in position to mention the number of F.I.R. which was lodged on 10.4.2011 at 2.30 a.m. and same is the position of postmortem report (Exh.PF) wherein time of receiving of dead body and F.I.R. number were not mentioned. On perusal of both documents, it reveals that on the postmortem report (Exh.PK), inquest report (Exh.PG/1-2), application for postmortem (Exh.PG) and “Fard Shanakht” (Exh.PK) the time of preparing of above referred documents Exh.PK, Exh.PG/1-2 and Exh.PG, the F.I.R., (Exh.PA/1) was not there with Investigating Officer. Had he received the F.I.R. the Investigating Officer would have mentioned number of F.I.R. and its particulars. It is also noted that number of F.I.R. on these documents was written later on with different writing and pen. Even the “Fard” identification of dead body (Exh.PK) was written with

Muhammad Ijaz etc v. The State.

different hand writing and pen. The hand writing on inquest report and Fard identification of dead body is different, even contents of both documents do not support each other. It appears that F.I.R. has been delayed. Tariq Mehmood, S.I. (PW-10) has admitted as correct that C.P.O. Rawalpindi directed him to recover the abductee after perusing the crime report dated 10.4.2011 and admitted that accused were not arrested till then on 11.4.2011. From the above facts, it reveals that at the time of preparation of the inquest report (Exh.PG/1-2), postmortem report (Exh.PK) and application for postmortem (Exh.PG), copy of F.I.R. was not there with the Investigating Officer and later on, entries were made regarding F.I.R. on the said documents. The subscriber of the F.I.R. (Exh.PA/1) during cross-examination while replying to specific question deposed as under:-

“I can not deny that the FIR was registered after the postmortem report, obtained by S.I. Tariq Mehmood and the same was registered after the due deliberation and consultation.”

22.It is also noted that in the inquest report, it was written in the column of place and date that it was prepared on 10.4.2011 at Westridge, Rawalpindi and same was not prepared at Nogazi village, Islamabad. It shows that inquest report was prepared in the police station and this fact finds support from the inquest report (Exh.PG/1-2) and the F.I.R. had been actually recorded at a subsequent time and not at the time purported to have been written. It leads to further assertion that during the intervening period a preliminary inquiry was held, which afforded an opportunity to inculpate innocent persons and introduced false witnesses.

23.Now reverting to Section 154 of Cr.P.C., one statutory requirement of this Section is to reduce into writing the information given to the police. The other requirements mentioned therein and intended to be complied with by the Officer Incharge of the police station are merely procedural. The omission of one or more of them can not have any tangible legal consequence unless it is

Muhammad Ijaz etc v. The State.

shown that the accused has been prejudiced as a result thereof when considered in the light of other evidence. In the report lodged before police, the complainant (PW-6) had not mentioned the date and time when prosecution witnesses of last seen rendered information to him. In the light of entire prosecution evidence and circumstances, they do influence the mind of the Court that there had been some wrangling about the time of the registration of case and arrest of the accused-Muhammad Ejaz. This breed serious doubts with regard to the genuineness of the prosecution story including the names of the offenders and the eye witnesses.

24.Insofar as the alleged recoveries of floor P-1, engine P-2, gear P-3, hammer P-4, Chhani P-5, number plates P-6/1-2 were recovered from the house of Muhammad Miskeen taken on rent by Muhammad Ejaz and Mst. Qura-tul- Ain alias Ainy. Neither the said Muhammad Miskeen was associated in the investigation nor any proof was brought on record that said house was rented by Muhammad Ejaz, Ghulam Kousar and Qura-tul-Ain. So as the recoveries of four doors of Suzuki FX P-7/1-4, roof P-15, Bonnet P-16, Photocopy of I.D. card of the accused-Ghulam Kouisar P-17 from Arbab Plaza residence is concerned, the Investigating Officer (PW-10) admitted during cross-examination that neither he did remember the name of the owner of the plaza nor he associated owner of the plaza in the case proceedings. The Investigating Officer admitted that there is no proof of tenancy of accused-Muhammad Ejaz regarding the room situated at Arbab Plaza. Tariq Mehmod, S.I. (PW-10) deposed that in front of the said plaza, two shops were situated but he did not associate any one from the said plaza or locality to join the investigation. The Investigating Officer, Tariq Mehmood, S.I. (PW-10) stated that on 21.4.2011 Muhammad Ejaz-accused got recovered gas kit P-8 and four tyers P-9/1-2 from the open plot. The Investigating Officer (PW-10) deposed that he did not associate any local person in the proceedings of investigation, neither he knows the owner of the said plot nor he made any attempt to get information regarding said plot. As far as recovery of mobile phone P-18 from Ghulam Kousar-appellant is concerned, the Investigating Officer during cross-examination admitted as

Muhammad Ijaz etc v. The State.

correct that from the day first till the arrest of two ladies accused, the complainant and his witnesses did not state before him that at the time of missing of the deceased, he had mobile phone with him and he admitted that mobile P-18 is in common use and easily available in the market. PW-10 also admitted that he did not obtain any mobile data of the said mobile phone and even he did not get the IME number of the said phone. Insofar the alleged recoveries effected on the pointation of Muhammad Ejaz-appellant are concerned, the same are of no avail to the prosecution, as neither same were identified as parts of Suzuki bearing No.4669-IDT nor memo of identification qua the recovered articles had also been prepared by the Investigating Officer. Admittedly, no attempt was made during the course of investigation to get the articles recovered identified from the complainant. Neither any evidence was led to establish its connection with Suzuki FX nor any identification mark was existed to establish its ownership. Even despite presence of private persons they were not associated with search and recoveries were in gross violation of the provision of Section 103 of Cr.P.C. which provision is mandatory in nature, therefore, these recoveries can not be used as evidence against the appellants. The entire evidence of the recoveries also seems to me to be highly unsatisfactory. Moreover, when the prosecution evidence regarding last seen, extra judicial confession and recovery of dead body have been disbelieved for reason stated above, the recovery evidence does not advance the case of the prosecution any further. The irresistible conclusion which emerges as a result of scanning, perusing and dissecting the prosecution evidence is that prosecution has failed to prove its case beyond reasonable doubt.

25.Accordingly, Criminal Appeal No.45-J of 2012 is accepted and conviction and sentence recorded by the learned trial court vide judgment dated 26.05.2012 is set aside as consequence whereof, Muhammad Ejaz son of Raja Muhammad, Mst. Ghulam Kousar alias Rani daughter of Muhammad Sharif and Mst. Qurat-ul-Ain alias Ainy daughter of Muhammad Sharif-appellants are ordered to be acquitted of the charge in case F.I.R. No.258 of 2011 dated

Muhammad Ijaz etc v. The State.

10.04.2011, offences under Section 302, 392, 365, 411 P.P.C., registered at Police Station, Westridge, Rawalpindi and Muhammad Ejaz and Mst. Qurat-ul- Ain alias Ainy are directed to be released forthwith, if not required in any criminal case. Mst. Ghulam Kousar alias Rani-appellant is already on bail. Her bail bonds and sureties are discharged accordingly.

(AALIA NEELUM)

JUDGE

Approved for reporting.

Hamid/*