Muhammad Akram vs State etc.

Stereo. H.C. JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

Criminal Appeal No. 643 of 2018.

(Muhammad Akram and another. Vs. The State and another)

JUDGMENT

Date of hearing: 09.06.2026.

Appellants by: Malik Aamir Manzoor Awan, Advocate. State by: Mr. Naveed Ejaz, Deputy District Public Prosecutor.

SADIQ MAHMUD KHURRAM, J. The appellants namely

Muhammad Akram son of Bashir Ahmad and Sarfraz Ali son of Humayun were tried by the learned Special Judge Anti-Corruption, Sahiwal Division, Sahiwal alongwith Muhammad Siddique their co-accused (since acquitted), in case F.I.R No.25 of 2015 dated 27.06.2015 registered in respect of offences under section 161 P.P.C. and under section 5 of the Prevention of Corruption Act 1947 (Act No.II of 1947) at Police Station Anti Corruption Establishment, Sahiwal. The learned trial court vide judgment dated 03.07.2018 convicted the appellants namely Muhammad Akram son of Bashir Ahmad and Sarfraz Ali son of Humayun and sentenced them as infra:-

Muhammad Akram son of Bashir Ahmad:-

Criminal Appeal No. 643 of 2018

i)Rigorous imprisonment of two years under section 384 PPC and directed to pay fine of Rs.50,000/- and in default thereof to further undergo simple imprisonment for six months.

ii)Rigorous imprisonment of two years under section 5 (2) of the Prevention of Corruption Act 1947 (Act No.II of 1947) and directed to pay fine of Rs.50,000/- and in default thereof to further undergo simple imprisonment for six months.

Sarfraz Ali son of Humayun:-

i)Rigorous imprisonment of two years under section 384 PPC and directed to pay fine of Rs.50,000/- and in default thereof to further undergo simple imprisonment for six months.

ii)Rigorous imprisonment of two years under section 5 (2) of the Prevention of Corruption Act 1947 (Act No.II of 1947) and directed to pay fine of Rs.50,000/- and in default thereof to further undergo simple imprisonment for six months.

The convicts were, however, extended the benefit available under section 382-B of Code of Criminal Procedure, 1898 by the learned trial court. Both the sentences awarded to the appellant were ordered to run concurrently by the learned trial court .

The learned trial court acquitted Muhammad Siddique (since acquitted) the co-accused of the appellants.

2.Feeling aggrieved, Muhammad Akram and Sarfraz Ali (convicts), lodged the instant Criminal Appeal No.643 of 2018 assailing their conviction and sentences.

3.The brief facts of the prosecution case, as stated by the prosecution witnesses are that on 07.10.2014 at 01:00 p.m., the appellants

Criminal Appeal No. 643 of 2018

alongwith Muhammad Siddique (since acquitted) arrived at the stall of Aqeel Ahmad (PW-1),the complainant of the case , gave beating to him, snatched amount of Rs.35,000/- from him and thereafter, took him to police station where they demanded further amount of Rs.35,000/- for the release of Aqeel Ahmad (PW-1), however, released him after one and a half days.

4.After investigation of the case, the Investigating Officer of the case recommended the case to be cancelled, however, the learned trial court did not agree with the said report and directed the SHO to submit a report under section 173 Cr.P.C. vide order dated 15.06.2016 whereafter the accused were sent to face the trial. The learned trial court framed the charge against the accused on 08.11.2016, which was denied by them and the accused claimed trial, upon which the learned trial court summoned the prosecution evidence.

5.The prosecution in order to prove its case against the appellants got Aqeel Ahmad Khan (PW-1), Shakeel Ahmad Khan (PW-2) and Nazar Hussain (PW-3) examined with regard to the facts in issue. Muhammad Amin Awaisi (PW-4) stated that he had investigated the case from 06.08.2015 to 24.10.2015 and narrated the facts of his investigation in his statement before the learned trial court.

6.On 22.11.2017, the learned Deputy District Public Prosecutor gave up prosecution witnesses namely Muhammad Sharif and Saeed Babu being unnecessary and on 17.04.2018 closed the prosecution evidence.

7.The learned trial court also recorded the statement of Saeed Babu, Circle Officer (CW-1) who had investigated the case from 27.06.2015

Criminal Appeal No. 643 of 2018

to 26.11.2015 and narrated the facts of his investigation in his statement recorded by the learned trial court.

8.After the closure of prosecution evidence, the learned trial court examined the appellants Muhammad Akram and Sarfraz Ali, under section 342 Cr.P.C. and in answer to the question why this case against you and why the P.W.s have deposed against you, they replied that they were innocent and had been falsely involved in the case. The appellants opted not to get themselves examined under section 340(2) Cr.P.C and also did not adduce any evidence in their defence.

9.At the conclusion of the trial, the learned Special Judge Anti Corruption, Sahiwal Division Sahiwal, convicted and sentenced the appellants as referred to above.

10.The contention of the learned counsel for the appellants precisely was that the whole case was invented and untrue and that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. Learned counsel for the appellants further submitted that the appellants were quite innocent and had nothing to do with the alleged occurrence. He further submitted that the prosecution had miserably failed to prove the charge against the appellants beyond the shadow of reasonable doubt and the learned trial court, while passing the impugned judgment of the appellants’ conviction, had erred in law and facts of the case, which warranted interference by this Court.

11.On the other hand, the learned Deputy District Public Prosecutor contended that the prosecution had proved its case beyond a

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shadow of doubt by producing independent witnesses. The learned Deputy District Public Prosecutor further submitted that the appellants were involved in the commission of offences and that the impugned judgment entailing the conviction and sentence of the appellants did not warrant interference by this Court. Lastly, the learned Deputy District Public Prosecutor prayed for the rejection of the appeal.

12.I have heard the learned counsel for the appellants, the learned Deputy District Public Prosecutor and with their assistance, perused the record and evidence recorded during the trial.

13.The perusal of the record reveals that the whole prosecution case is dependent on the statements of Aqeel Ahmad Khan (PW-1), Shakeel Ahmad Khan (PW-2) and Nazar Hussain (PW-3) who stated that on 07.10.2014 at about 01:00 a.m. the appellants alongwith Muhammad Siddique (since acquitted) and some unknown accused persons arrived at stall of Aqeel Ahmad Khan (PW-1) and thereafter, tortured him and the appellant namely Sarfraz Ali took out Rs.35,000/- from the pocket of Aqeel Ahmad Khan (PW-1) and handed over the same to the appellant namely Muhammad Akram and thereafter, the appellants took Aqeel Ahmad Khan (PW-1) to the Police Station and demanded further amount of Rs.35,000/- for his release, however, subsequently, released Aqeel Ahmad Khan (PW-1) after one and a half days. It is also a fact of the prosecution's case that, though the case was registered in respect of an offence under Section 161 PPC also, however, the learned trial court did not convict the appellants for the said offence and came to the conclusion that there was no evidence

Criminal Appeal No. 643 of 2018

available in this regard. However at the same time, the appellants were convicted for the offence under section 384 PPC and also sentenced for the commission of said offence. With regard to the conviction of the appellants for the offence under section 384 PPC, this Court has come to the irresistible conclusion that the said charge could not be proved against the appellants.

The perusal of the statements of prosecution witnesses namely Aqeel Ahmad Khan (PW-1), Shakeel Ahmad Khan (PW-2) and Nazar Hussain (PW-3) reveals that all the said witnesses in their statements clearly stated that the appellant namely Sarfraz Ali took out Rs.35,000/- from the pocket of Aqeeel Ahmad Khan (PW-1), however, while stating this fact, none of the prosecution witnesses deposed that while taking out the amount of Rs.35,000/-, the said witness was put in fear of any injury to him or any injury to any other person and all the three witnesses consistently stated that removal of Rs.35,000/- from the pocket of Aqeel Ahmad Khan (PW-1) was without any force being used or any fear of injury being created. When the prosecution witnesses namely Aqeel Ahmad Khan (PW-1), Shakeel Ahmad Khan (PW-2) and Nazar Hussain (PW-3) themselves never stated that the removal of Rs.35,000/- from the pocket of Aqeel Ahmad Khan (PW-1) by the appellant Sarfraz Ali was after Aqeel Ahmad Khan (PW-1) had been put in fear of being injured or any of the witness had been put in fear of being injured, lest the amount was not handed over to the appellants, then the appellants could not have been convicted for the offence punishable under section 384 PPC and defined under section 383 PPC. As the removal of Rs.35,000/- from the pocket of Aqeel Ahmad Khan (PW-1) was not

Criminal Appeal No. 643 of 2018

associated with putting Aqeel Ahmad Khan (PW-1) in fear of any injury or any injury to any other person, therefore, the learned trial court erred while convicting the appellants for the offence under section 384 PPC. It is also a fact that Aqeel Ahmad Khan (PW-1) stated that he got himself medically examined on 13.10.2014 after obtaining the orders in this regard from the learned Magistrate concerned, however, the Medical Officer who had examined Aqeel Ahmad Khan (PW-1) did not appear before the learned trial court to prove that Aqeel Ahmad Khan (PW-1) was medically examined by him . At the same time, Aqeel Ahmad Khan (PW-1) did produce copy of Medico Legal Examination Certificate (Mark-A) during examination, however, it is the law itself that the Medico Legal Examination Certificate has no relevance, rather the opinion of the Medical Officer who had examined the injured is relevant and in this case, the Medical Officer who had examined Aqeel Ahmad Khan (PW-1) did not appear before the court nor was sought to be summoned to be examined during the trial of the case, therefore, his opinion, whatever it was, cannnot be read in evidence with regard to medical examination of Aqeel Ahmad Khan (PW-1).

14.With regard to the conviction of the appellants for the offence under section 5 of the Prevention of Corruption Act 1947 (Act No.II of 1947), it is observed that none of the prosecution witnesses namely Aqeel Ahmad Khan (PW-1), Shakeel Ahmad Khan (PW-2) and Nazar Hussain (PW-3) gave any statement that the appellants had accepted or obtained or agreed to accept or attempted to obtain any gratification as a motive or reward or agreed or attempted to obtain for themselves any valuable thing

Criminal Appeal No. 643 of 2018

without consideration or for a consideration which they knew was inadequate, from Aqeel Ahmad Khan (PW-1) , connected with the official functions of the appellants or that the appellants converted for their own use any property entrusted to them or that the appellants misused their position as police officials to obtain any pecuniary advantage or property, then, the Court cannot presume the said facts on its own and for the fact that none of the witnesses namely Aqeel Ahmad Khan (PW-1), Shakeel Ahmad Khan (PW-2) and Nazar Hussain (PW-3) specifically stated that the appellants had accepted or obtained or attempted to obtain any gratification as a motive or reward or had accepted or had obtained any valuable thing without consideration or for a consideration which they knew to be inadequate in connection with the performance of their official functions or that they dishonestly misappropriated any property or that they misused their official position as police officials, then the appellants could not have been convicted for the crime of criminal misconduct as defined and made punishable under section 5 of the Prevention of Corruption Act 1947 (Act No.II of 1947).

15.Another aspect of the case is that Saeed Babu, Circle Officer (CW-1) , after the investigation of the case, recommended that the case be cancelled as no evidence could be collected during the course of investigation pointing towards the guilt of the appellants regarding the offences in respect of which the case was registered, however, as mentioned above, the learned trial court did not agree with the said cancellation report as prepared and submitted by Saeed Babu, Circle Officer (CW-1) but the

Criminal Appeal No. 643 of 2018

fact remains that Saeed Babu, Circle Officer (CW-1) appeared as a witness before the learned trial court and made the statement that he could not collect any evidence with regard to the commission of offences in respect of which the case was registered. It is also a fact that the conclusion of Saeed Babu, Circle Officer (CW-1), regarding the falsity of the case was also not assailed by the complainant of the case before any forum. Though, the opinion of the Investigating Officer remains irrelevant as well as inadmissible in evidence,however, at the same time, the statement of Saeed Babu, Circle Officer (CW-1), the Investigating Officer of the case that he could not collect any evidence pointing towards the guilt of the appellants remains a relevant statement and also proved that during the course of investigation, the prosecution witnesses namely Aqeel Ahmad Khan (PW-1), Shakeel Ahmad Khan (PW-2) and Nazar Hussain (PW-3) could not provide evidence to the Investigating Officer of the case regarding the allegations leveled by them.

16.It is also a fact that Aqeel Ahmad Khan (PW-1), Shakeel Ahmad Khan (PW-2) and Nazar Hussain (PW-3) had also levelled the same allegations against Muhammad Siddique (since acquitted), the co-accused of the appellants, however, Muhammad Siddique (since acquitted) was not only acquitted by the learned trial court but neither the State nor the complainant assailed the said acquittal of Muhammad Siddique (since acquitted) which now has attained finality. The prosecution evidence with regard to the appellants is same as regard to Muhammad Siddique (since acquitted) in the manner that Aqeel Ahmad Khan (PW-1), Shakeel Ahmad Khan (PW-2) and

Criminal Appeal No. 643 of 2018

Nazar Hussain (PW-3) also deposed against Muhammad Siddique (since acquitted), who had deposed against the appellants and when the learned trial court did not believe the statements of prosecution witnesses namely Aqeel Ahmad Khan (PW-1), Shakeel Ahmad Khan (PW-2) and Nazar Hussain (PW-3) with regard to Muhammad Siddique (since acquitted), no reason exists with this Court to believe their statements with regard to the appellants. A witness who has been disbelieved with regard to his statement about an accused cannot be believed with regard to his statement about the other accused. Reliance in this regard is placed on the cases of MUNIR AHMED and others the State and others (2019 S C M R 2006) , SAFDAR ABBAS and othersVersus The STATE and others (2020 S C M R 219) and “Tariq Vs. The State” (2017 S C M R 1672). All the above mentioned facts of the prosecution case prove that the prosecution failed to establish the facts in issue and the relevant facts during the course of the trial.

17.Considering all the above circumstances, this Court entertains serious doubt regarding the involvement of the appellants namely Muhammad Akram son of Bashir Ahmad and Sarfraz Ali son of Humayun, in the present case. It is a settled principle of law that, for giving the benefit of the doubt it is not necessary that there should be so many circumstances;

rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available, then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of “Muhammad Mansha Vs. The State” (2018 SCMR 772) has enunciated the following principle:

Criminal Appeal No. 643 of 2018

“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 Akramv.The State (2009 SCMR 230) and Muhammad Zamanv.The State (2014 SCMR 749).”

Reliance is also placed on the judgment of the august Supreme Court of Pakistan Najaf Ali Shah Vs. the State (2021 S C M R 736) in which it has been held as infra:

“9. Mere heinousness of the offence if not proved to the hilt is not a ground to avail the majesty of the court to do complete justice. This is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. As the preeminent English jurist William Blackstone wrote, “Better that ten guilty persons escape, than that one innocent suffer.” Benjamin Franklin, who was one of the leading figures of early American history, went further arguing “it is better a hundred guilty persons should escape than one innocent person should suffer.” All the contradictions noted by the learned High Court are sufficient to cast a shadow of doubt on the prosecution’s case, which entitles the petitioner to the right of benefit of the doubt. It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must got to the petitioner. This Court in the case of Mst. Asia Bibi v. The State (PLD 2019 SC 64) while relying on the the earlier judgments of this Court has categorically held that “if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1998 SCMR 1345) and Ayyoub Masih v. The State (PLD 2002 SC 1048).” The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution’s case automatically goes in favour of an accused.”

18.For what has been discussed above, the instant Criminal Appeal No.643 of 2018 lodged by Muhammad Akram and Sarfraz Ali (appellants)

Criminal Appeal No. 643 of 2018

is allowed and the conviction and sentence of the appellants Muhammad Akram and Sarfraz Ali awarded by the learned Special Judge Anti- Corruption, Sahiwal Division, Sahiwal, vide judgment dated 03.07.2018 is hereby set-aside. Muhammad Akram and Sarfraz Ali (appellants) are ordered to be acquitted by extending them the benefit of doubt. The sentences of the appellants, namely Muhammad Akram and Sarfraz Ali, were suspended by this Court vide order dated 26.10.2018 and they are present before the Court. The sureties of the appellants shall stand discharged from their liability and the bail bonds submitted by the appellants namely Muhammad Akram and Sarfraz Ali, are hereby cancelled.

(SADIQ MAHMUD KHURRAM)

JUDGE

Munir