PLJ 2024 SC (Cr.C.) 251
No doubt,the mere production of C.D.R., without transcripts of the calls or complete audio recordings, cannot be deemed reliable evidence. In addition to call transcripts, it must also be established on record that the individuals at both ends of the call are the same as those whose call data is produced as evidence.
The Courts must exercise heightened caution when evaluating such evidence, as advancements in science and technology have greatly facilitated the editing and alteration of recordings to suit one's preferences.
So far as the investigation of this case is concerned, we believe that the investigation of heinous offences, such as kidnapping or abduction for ransom, is of paramount importance due to the severe implications these crimes have on victims and society. An organized and thorough investigation serves several critical functions in the pursuit of justice. First and foremost, a well-conducted investigation ensures that all relevant evidence is collected, preserved, and presented (naeem)before the court in a manner that supports the case of the prosecution. This includes gathering physical evidence, such as surveillance footage, phone records, and ransom notes, as well as securing witness testimonies strictly in accordance with the prescribed rules/law on the subject. Each piece of evidence must be carefully analyzed to construct a coherent and compelling narrative of the events. The I.O., in such cases, must employ various modern techniques, including geofencing for tracing communications, identifying patterns in the kidnappers' behavior, and leveraging technological tools to track movements. The urgency of these situations demands prompt and precise action to prevent harm to the victim. It is essential to explore all leads and corroborate findings to build a strong case that withstands judicial scrutiny. This process also involves understanding the motives and methods of the kidnappers, which can provide invaluable insights for future prevention and enforcement strategies. Additionally, the credibility of the criminal justice system hinges on the integrity of the investigation. A flawed or negligent investigation can lead to wrongful accusations, undermining public trust and allowing the true culprits to evade justice. Therefore, the I.O. must adhere to the highest standards of professionalism and diligence, ensuring that their findings are accurate and unbiased.
It is a settled principle of law that once a single loophole/lacuna is observed in a case presented by the prosecution, the benefit of such loophole/lacuna in the prosecution case automatically goes in favour of an accused.
Having considered the available evidence from all corners in juxtaposition, we have observed that the prosecution has bumped into significant challenges in substantiating their allegations against the petitioners. The defence has presented a version of events that stands in stark contrast to the prosecution's narrative, and it is incumbent upon the latter to rebut this version with concrete evidence. However, the prosecution has not produced any such evidence to counter the defence claims. This raises serious questions about the strength of the prosecution case and whether they have fulfilled their burden of proving the guilt of the petitioners beyond a reasonable doubt.Moreover, the defence witnesses have undergone a rigorous cross-examination process, designed to test the veracity and reliability of their testimonies. Despite the length and intensity of this cross-examination, nothing has emerged that could be construed as favorable to the prosecution case. The accounts of the defence witnesses have remained consistent and unshaken, which further undermines the position of theprosecution.In light of these observations, it is clear that the case of the prosecution is lacking in evidentiary support, and the defence version of events remains uncontroverted. The absence of a rebuttal from the prosecution, coupled with the steadfast testimonies of the defence witnesses, may very well tilt the scales in favor of the petitioner-side. We find force in the submission of learned Counsel for the peitinoeors that no cause of abduction or kidnapping is made out and ingredients of offences punishable under section 365-A, P.P.C. and 7(e) of the ATA are not attracted in this case.Moreover, the prosecution presented no evidence to show that the petitioners were previously involved in similar crimes or had ever been convicted of any such offence. This situation necessitates careful consideration by the court, as the principles of justice and fairness demand that no individual should be convicted without sufficient evidence.
Under the law, a criminal appeal abates on the death of an appellant, but section 431, Cr.P.C. provides an exception to this general rule. It provides that an appeal against a sentence of the fine shall not abate by reason of death of an appellant, because it is not a matter, which affects his person, it would certainly affect his estate. Thus, upon the death of an appellant, his appeal to the extent of a portion of the sentence of imprisonment, abates whereas, the appeal to the extent of sentence of fine, affecting the property of an appellant,shall not abate and is to be heard on merits and in accordance with the settled principle of the criminal justice.
PLJ 2024 SC (Cr.C.) 251
[Appellate Jurisdiction]
Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and Ms. Musarrat Hilali, JJ.
ASMAT ULLAH KHAN and others--Petitioners
versus
STATE and others--Respondents
J.P. No. 431 of 2016 & Crl. Ps. No. 845 & 830 of 2016,
decided on 15.5.2024.
(Against the judgment dated 23.05.2016, passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeals No. 240, 266, 323, Criminal Revision No. 175, Criminal Appeal No. 281 and Capital Sentence Reference No. 01-T of 2012)
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 365-A/149--Anti-Terrorism Act, (XXVII of 1997), S. 7(e)--Criminal Procedure Code, (V of 1898), S. 431--Kidnapping--Abduction--Ransom amount--Currency notes be marked--Death of appellant--Fine--Appeal maintainable to extent of fine--Motive--CDR--Modern techniques--Geo-fencing for tracing communications--Defence plea--Defence witness--The names of petitioners and their parentage were specifically mentioned by complainant--In his application for registration of FIR--Petitioners are not unknown to complainant--Complainant did not allege any motive or enmity behind incident--Primarily, story of prosecution appears to be a dramatic one--If, for sake of argument, it is believed that both witnesses were stating true facts, then law required that said currency notes be marked or signed by an authorized Magistrate to eliminate possibility of false implication--C.D.R was produced in evidence--PW-1, therefore, received said data and delivered same to I.O. who took into his custody vide recovery memo--Said C.D.R neither bears name nor signature of any authorized officer, nor does it carry seal of issuing company--C.D.R was not sealed and was not accompanied by any covering letter even from RPO’s office--It cannot be safely relied upon in any manner. It can be doubted that I.O. has himself generated such C.D.R. or same has been issued by Company concerned--Neither were relevant entries indicated in data, nor were voice record transcripts produced--I.O, in such cases, must employ various modern techniques, including geo-fencing for tracing communications, identifying patterns in kidnappers behavior, and leveraging technological tools to track movements--A flawed or negligent investigation can lead to wrongful accusations, undermining public trust and allowing true culprits to evade justice--The I.O, must adhere to highest standards of professionalism and diligence, ensuring that their findings are accurate and unblessed--I.O. conducted investigation very casually--He did not consider it appropriate to inquire about ownership of motorcycle used in commission of offence, allegedly recovered from petitioner--He did not document denominations of currency notes intended for ransom payment--Neither of these individuals was investigated or cited as a prosecution witness--Evidence of both abductees and have found numerous inconsistencies, which cast doubt on their veracity as truthful witnesses. They have made certain notable improvements in their statements--Prosecution has shown recoveries of firearms, cars allegedly used in commission of offence and belongings of abductees from petitioners, and ropes by which abductees were tied--These recoveries are corroborative pieces of evidence and are relevant only when primary evidence, i.e., ocular account, inspires confidence. However, ocular account in this case is full of contradictions and does not inspire confidence--Defence set up by petitioners, as reflected in cross-examination, is that complainant owed an amount of Rs. 550,000 to petitioner. Meetings were held for repayment of this amount, during which there were exchanges of harsh words, leading to registration of this false--To support their defence plea, petitioners produced as many as eight DWs--Prosecution has bumped into significant challenges in substantiating their allegations against petitioners. The defence has presented a versions of events that stands in stark contrast to prosecution’s narrative, and it is incumbent upon latter to rebut this version with concrete evidence--Prosecution presented no evidence to show that petitioners were previously involved in similar crimes or had ever been convicted of any such offence--Petitioner, is acquitted of charge and be released from jail--Petitioner, died in jail during pendency of this appeal--A criminal appeal abates on death of an appellant, but section 431, Cr.P.C provides an exception to this general rule--An appeal against a sentence of fine shall not abate by reason of death of an appellant, because it is not a matter, which affects his person, it would certainly affect his estate--Criminal Petition for leave to appeal filed by petitioner, (now deceased), is also converted into an appeal but is partly allowed on merits to extent of sentence of forfeiture of his properties, whereas it is abated only to extent of death sentence--His properties, if any, confiscated under aforementioned judgments shall be released forthwith in favor of his legal heirs.
[Pp. 257, 258] A, B, C, D, E, F, I, K, L, N, O, P, R, T, W
2024 SCMR 997; PLD 2018 SC 813; 2016 SCMR 1144; 2016 SCMR 267; 2018 SCMR 2092 ref.
Call Data Record--
----Said C.D.R neither bears name nor signature of any authorized officer, nor does it carry seal of issuing company--C.D.R was not sealed and was not accompanied by any covering letter even from RPO’s office--It cannot be safely relied upon in any manner. It can be doubted that I.O. has himself generated such C.D.R. or same has been issued by Company concerned. [P. 258] F
Call Data Record--
----Mere production of C.D.R. without transcripts of calls or complete audio recordings, cannot be deemed reliable evidence--C.D.R. is of no help to prosecution in supporting its allegations against petitioners. [P. 258] G & H
2016 SCMR 274; 2021 SCMR 522 ref.
Investigation--
----Credibility of criminal justice system hinges on integrity of investigation. [P. 259] J
Benefit of Doubt--
----Once a single loophole/lacuna is observed in a case presented by prosecution, benefit of such loophole/lacuna in prosecution case automatically goes in favour of an accused. [P. 260] M
1992 SCMR 196; 2009 SCMR 431; 2019 SCMR 652; 2019 SCMR 129; PLD 2019 SC 64; 2020 SCMR 857 ref.
Death of an Appellant--
----Section 431, Criminal Procedure Code, 1898--Death of an appellant--Upon death of an appellant, his appeal to extent of a portion of sentence of imprisonment, abates whereas, appeal to extent of sentence of fine, affecting property of an appellant, shall not abate and is to be heard on merits. [P. 262] V
1971 SCMR 35; 2020 SCMR 359 ref.
Mr. Ansar Nawaz Mirza, ASC for Petitioner (in J.P. No. 431 of 2016).
Syed Ali Imran, ASC for Petitioners (in Crl. P. No. 845 of 2016)
Mr. Basharat Ullah Khan, ASC for Petitioners (in Crl. P. No. 830 of 2016).
Mirza Abid Majeed, DPG, Punjab for State.
Date of hearing: 15.5.2024.
Judgment
Syed Hasan Azhar Rizvi, J.--AsamatUllah and Lal Khan (“the petitioners”) along with co-accused namely Sharif Khan, Babar Khan, Muhammad Firdous alias Mehmood, Nisar Ahmed, Abul Majeed and Mumtaz Khan faced trial before an Anti-Terrorism Court, Rawalpinid (“Trial Court”) in case F.I.R No. 86/2020 dated 01.011.2010 for the offences under Section 365-A/149 of the Pakistan Penal Code, 1860 (“P.P.C.”) and Section 7(e) of the Anti-Terrorism Act, 1997 (“ATA”) registered at the Police Station (“P.S.”)Injra, District Attock. After a regular trial, the petitioners were convicted under Section 365-A/149, P.P.C. and Section 7(e), ATA for committing the kidnapping of the abductees for ransom and sentenced to death on two counts along with forfeiture of their properties. They were also directed to pay an amount of Rs. 1,00,000/-(one hundred thousand only) each as compensation under Section 544-A Code of Criminal Procedure, 1898 (“Cr.P.C.”) to both abductees and in default whereof they had to undergo simple imprisonment of six months. Through the same judgment dated 10.05.2012, the accused Sharif Khan, Babar Khan, Muhammad Firdous alias Mehmood, Nisar Ahmed, Abul Majeed and Mumtaz Khan were acquitted by the Trial Court while extending the benefit of the doubt.
2. Feeling aggrieved by the conviction and sentence, the petitioners filed before the learned Lahore High Court (“Appellate Court”) separate Criminal Appeals Nos.240 and 266 of 2012 and the complainant filed Criminal Appeal No. 323 of 2012 against the acquittal of the co-accused persons and a Criminal Revision No. 175 of 2012 for the enhancement of compensation under Section 544-A, Cr.P.C., while the Trial Court transmitted the Murder Reference No. 1-T of 2012 to the Lahore High Court for confirmation or otherwise of the sentence of death awarded to the petitioners. The state also challenged the acquittal of the co-accused persons by filing a separate Criminal Appeal No. 281 of 2012. A Division Bench of the learned Appellate Court took up the above matters together and through the judgment dated 23.05.2016 (“impugned judgment”), dismissed all the appeals as well as the criminal revision and maintained the conviction of the petitioners; however, altered their sentence from death to imprisonment for life while extending the benefit of Section 382-B of Cr.P.C. The compensation under Section 544-A, Cr.P.C. and the forfeiture of their properties was also upheld. Resultantly, the Murder Reference was answered in negative. Now, being dissatisfied with the impugned judgment:
a) The complainant, Mehmood-ur-Rehman, has filed the Criminal Petition for Leave to Appeal No. 830 of 2016 seeking to set aside the impugned judgment and uphold the judgment of the Trial Court imposing the death sentence on the petitioners.
AND
b) The petitioners, AsmatUllah and Lal Khan, have filed Jail Petition for Leave to Appeal No. 431 of 2016 and Criminal Petition for Leave to Appeal No. 845 of 2016, respectively, seeking acquittal against the impugned judgment whereby their death sentences were converted into life imprisonment.
This judgment will dispose of the above criminal petitions challenging the same impugned judgment supra, jointly.
3. The version of the complainant, as per the contents of the F.I.R., is that on 01.11.2010 at about 5:15 p.m., he was informed by Muhammad Bashir son of Ghulam Hussain through telephone that the petitioner Asmat Ullah and Lal Khan, along with other co-accused, kidnapped his brother Aziz-ur-Rehman son of Abdul Rehman and Bashir Ahmed son of Allah Ditta at gunpoint and took them in a white 2.O.D car bearing registration number LWA-6762 towards Turap. On receiving this information, he, along with Khurram Saeed, proceeded from Turap towards Injra on his motorcycle. When they reached Peer Abbas Chowk, they saw a white XLI car with registration number LWA-6762 being driven by the accused Lal Khan. His brother and Bashir Ahmed were sitting in the rear seat of the car along with two unknown accused persons. Another young person of medium height was sitting in the front seat of the car, who could be identified if brought forward. Alongside the car, the accused AsmatUllah was guiding his co-accused while riding his Honda 125 motorcycle. They tried to stop them, but the accused managed to flee towards Amanpur. Hence, this F.I.R.
4. Learned counsel for the petitioners empathetically contended that ingredients of offence punishable under Section 365-A, P.P.C. and Section 7(e) of the ATA are not attracted in this case; that the evidence brought on record is full of contradictions and inconsistencies and is not sufficient to connect the petitioners with the commission of the offence; that the evidence has been disbelieved qua Sharif Khan, Babar Khan, Muhammad Firdous alias Mehmood, Nisar Ahmed, AbulMajeed and Mumtaz Khan co-accused whereas, the same set of evidence has been made the basis of conviction of the petitioners, resulting in a gross miscarriage of justice.
5. As against that, the learned Deputy Prosecutor General, Punjab appearing on behalf of the State controverted the arguments of the learned counsel for the petitioners and supported the impugned judgment maintaining that the learned Trial Court as well as the learned High Court on the appraisal of evidence and material placed before them concluded that petitioners were responsible for the alleged offence. Their decision on the question of facts is not open to challenge in this Court, in the absence of any illegality, misreading, or non-reading of evidence.
6. We have heard the arguments of learned counsel for the petitioners as well as learned Deputy Prosecutor General for the State assisted by learned counsel for the complainant and have also gone through the available record.
7. The case of the prosecution mainly hinges upon (i) the statements of the complainant, MehmoodurRehman (PW-4), Khuram Saeed (PW-6), and the alleged abductees, namely Aziz urRehman (PW-5) and Bashir Ahmed (PW-11), and (ii) the recoveries, including the ransom amount as well as the abductees on the pointation of the petitioners. We have carefully examined the statements of these PWs in order to reach a just decision in the case. It has been noted with great importance that the complainant (PW-4) claimed that on the day of the alleged occurrence, he and Khuram Saeed (PW-6) saw a white XLI car with registration number LWA-6762 at Peer Abbas Chowk being driven by the petitioner Lal Khan. The alleged abductees (Aziz urRehman and Bashir Ahmed) were sitting in the rear seat of the car along with two unknown accused persons. Another young person of medium height was sitting in the front seat of the car, who could be identified if brought forward. Alongside the car, the petitioner AsmatUllah was guiding his co-accused while riding his Honda-125 motorcycle. They tried to stop them, but the accused managed to flee towards Amanpur. Later, on 12.11.2010 and 15.11.2010, the complainant (PW-4) received a call from mobile number 0300-2225179, belonging to the petitioner Lal Khan, on his mobile phone number 0301-5708156, demanding Rs. 10 lac as a ransom for the release and lives of the abductees. He (PW-4), however, informed the police about the matter/call on the same day. Again, on 20.11.2010, the petitioner Lal Khan called him (PW-4) using the same number and instructed him (PW-4) to bring the ransom amount the next day at 9 a.m. to a place known as Panjdhair. On 21.11.2010, he (PW-4) and Abdul Majid (PW-7) first went to P.S Injra and informed the police that they were going to meet the petitioner Lal Khan to hand over the ransom amount. The police instructed them to proceed and they would follow. Accordingly, they reached the designated place and handed over the ransom amount to Lal Khan. After a while, the police arrived at the spot, cordoned off the area, and arrested both the petitioners red-handed. Along with the ransom amount, a Kalashnikov and a 30-bore pistol were recovered from Lal Khan and AsmatUllah, respectively. Immediately thereafter, the petitioners led the police to the location where the abductees were kept and the police recovered the abductees on their pointation. He (PW-4) took photographs of the abductees, whose hands and legs were tied with ropes. Subsequently, he (PW-4) developed the photographs, made a CD of them, and handed it over to the police.
8. It is a matter of record that the names of the petitioners and their parentage were specifically mentioned by the complainant (PW-4) in his application (Exh.PL) for the registration of the F.I.R. (Exh.PL/1). Furthermore, during cross-examination, he (PW-4) stated that he and the petitioner Lal Khan hail from the same village, and that he knew the petitioner AsmatUllah by face. This indicates that the petitioners are not unknown to the complainant. In this scenario, the alleged kidnapping of the complainant’s brother and his business partner Bashir Ahmad, along with the demand for ransom, does not seem reasonable when the complainant did not allege any motive or enmity behind the incident. It is also surprising that the petitioner Lal Khan contacted him (PW-4) three times from the same number and provided a venue for the payment of the ransom amount a day in advance. Moreover, Abdul Majeed (PW-7) was extraordinarily daring and courageous, willingly accompanying him to hand over the ransom amount to the petitioner Lal Khan. On the other hand, the petitioners were so Courteous that they did not object to whoever might accompany the complainant (PW-4) to hand over the ransom amount. Similarly, the police succeeded in arresting the petitioner without any violence on their part, even though they (the petitioners) were equipped with deadly firearms, according to the police. Primarily, the story of the prosecution appears to be a dramatic one. In addition to this, the stance of both the witnesses, the complainant (PW-4) and Abdul Majid (PW-7) was that they first went to P.S Injra and informed the police that they were going to meet the petitioner Lal Khan to hand over the ransom amount and the police instructed them to proceed, and they would follow is of immense importance. If, for the sake of argument, it is believed that both witnesses were stating true facts, then the law required that the said currency notes be marked or signed by an authorized Magistrate to eliminate the possibility of false implication. Reference in this regard may be made to the case of Muhammad Abid versus the State and another (PLD 2018 SC 813). However, the police did not do so; hence, the alleged recovery of the ransom amount becomes doubtful and, as such, cannot be believed or relied upon for the purpose of convicting the petitioners.
9. Besides, to strengthen the case, the prosecution produced in evidence, the Call data record (“C.D.R.”) of the petitioner Lal Khan to establish the fact of making calls by him for the demand of ransom amount. The said C.D.R. was produced in evidence by one Amir Abid, 1626/C who, while appearing as PW-1, deposed that the investigating Officer (“I.O.”)Muhammad Iqbal, S.I. (PW-15) directed him to collect the C.D.R. of the petitioner Lal Khan’s phone number 0300-2225179 from the Regional Police Officer’s Office, Rawalpindi (“RPO Office”). He (PW-1), therefore, received the said data and delivered the same to the I.O. (PW-15) who took it into his custody vide recovery memo Exh. PA. We have carefully examined the said C.D.R. and found that it neither bears the name nor the signature of any authorized officer, nor does it carry the seal of the issuing company. Moreover, the witness (PW-1) acknowledged that the C.D.R.was not sealed and was not accompanied by any covering letter even from the RPO’s office. Thus, it cannot be safely relied upon in any manner. It can be doubted that the I.O. has himself generated such C.D.R. or the same has been issued by the Company concerned. It is further noted with considerable importance that neither were the relevant entries indicated in the data, nor were the voice record transcripts produced, which, if available, could have substantiated the point of the prosecution. No doubt, the mere production of C.D.R., without transcripts of the calls or complete audio recordings, cannot be deemed reliable evidence. In addition to call transcripts, it must also be established on record that the individuals at both ends of the call are the same as those whose call data is produced as evidence. The Courts must exercise heightened caution when evaluating such evidence, as advancements in science and technology have greatly facilitated the editing and alteration of recordings to suit one’s preferences. Reference in this regard may be made to the cases of Azeem Khan and another versus Mujahid Khan and others (2016 SCMR 274) and Mian Khalid Perviz versus the State through Special Prosecutor ANF and another (2021 SCMR 522). Being so, the C.D.R. is of no help to the prosecution in supporting its allegations against the petitioners.
10. So far as the investigation of this case is concerned, we believe that the investigation of heinous offences, such as kidnapping or abduction for ransom, is of paramount importance due to the severe implications these crimes have on victims and society. An organized and thorough investigation serves several critical functions in the pursuit of justice. First and foremost, a well-conducted investigation ensures that all relevant evidence is collected, preserved, and presented before the Court in a manner that supports the case of the prosecution. This includes gathering physical evidence, such as surveillance footage, phone records, and ransom notes, as well as securing witness testimonies strictly in accordance with the prescribed rules/law on the subject. Each piece of evidence must be carefully analyzed to construct a coherent and compelling narrative of the events. The I.O., in such cases, must employ various modern techniques, including geofencing for tracing communications, identifying patterns in the kidnappers’ behavior, and leveraging technological tools to track movements. The urgency of these situations demands prompt and precise action to prevent harm to the victim. It is essential to explore all leads and corroborate findings to build a strong case that withstands judicial scrutiny. This process also involves understanding the motives and methods of the kidnappers, which can provide invaluable insights for future prevention and enforcement strategies. Additionally, the credibility of the criminal justice system hinges on the integrity of the investigation. A flawed or negligent investigation can lead to wrongful accusations, undermining public trust and allowing the true culprits to evade justice. Therefore, the I.O. must adhere to the highest standards of professionalism and diligence, ensuring that their findings are accurate and unbiased. Unfortunately, in this case, the I.O. conducted the investigation very casually. He did not consider it appropriate to inquire about the ownership of the motorcycle used in the commission of the offence, allegedly recovered from the petitioner Asmat Ullah. He (PW-15) failed to investigate the sources from which the complainant arranged the ransom amount. Additionally, he did not document the denominations of the currency notes intended for the ransom payment. He (PW-15) did not use the modern technology of geofencing and acknowledged that he made no effort to determine the location of the petitioner Lal Khan from which the alleged calls to the complainant demanding the ransom were made. Furthermore, the I.O. (PW-15) concluded that two cars were used in this incident, one owned by Dr. Haroon and the other by Niaz for the transportation of the abductees from one place to another. However, neither of these individuals was investigated or cited as a prosecution witness. During cross-examination, the abductee, Aziz urRehman (PW-5) disclosed that he and the abductee Bashir were confined in two different places, one owned by Waris and the other by Muhammad Yaqoob. Yet, neither of these individuals was investigated or presented as witnesses.All these noted facts and circumstances make the case of the prosecution highly doubtful.It is a settled principle of law that once a single loophole/lacuna is observed in a case presented by the prosecution, the benefit of such loophole/lacuna in the prosecution case automatically goes in favour of an accused as held by this Court in Daniel Boyd (Muslim Name Saifullah) and another versus the State (1992 SCMR 196); Gul Dast Khan versus the State (2009 SCMR 431); Muhammad Ashraf alias Acchu versus the State (2019 SCMR 652); Abdul Jabbar and another versus the State (2019 SCMR 129); Mst. Asia Bibi versus the State and others (PLD 2019 SC 64); and Muhammad Imran versus the State (2020 SCMR 857).
11. We have also examined the evidence of both the abductees and have found numerous inconsistencies, which cast doubt on their veracity as truthful witnesses. They have made certain notable improvements in their statements compared to those previously recorded under Section 161, Cr.P.C. by the Police. Essentially, their claim that the petitioners put both of them in the trunk of a 2.0.D car, where they allegedly traveled for two and a half hours, is implausible, as it is highly unlikely that two grown men could fit into the trunk of such a vehicle together. So far as the recoveries are concerned, we have noted that the prosecution has shown recoveries of firearms, cars allegedly used in the commission of the offence and belongings of the abductees from the petitioners, and the ropes by which the abductees were tied, it does not support the case of the prosecution. For the reason that these recoveries are corroborative pieces of evidence and are relevant only when the primary evidence, i.e., the ocular account, inspires confidence. However, the ocular account in this case is full of contradictions and does not inspire confidence. Reference in this regard may made to the case of Nasir Javaid and another versus the State (2016 SCMR 1144); Muhammad Nawaz and others versus the State and others (2016 SCMR 267); and Hayatullah versus the State (2018 SCMR 2092).
12. The defence set up by the petitioners, as reflected in the cross-examinations, is that the complainant owed an amount of
Rs. 550,000 to the petitioner Lal Khan. Meetings were held for the repayment of this amount, during which there were exchanges of harsh words, leading to the registration of this false and fabricated case against them. The petitioners claimed that they were arrested by the police on 01.11.2010 but were shown to be arrested on 21.11.2010. During this period, the police fabricated all the incriminating evidence against them while they were in illegal confinement by the police of PS. Injra. In that period, there were reports in various newspapers on 04, 06, and 09/11/2010 stating that the police had arrested the petitioners Lal Khan and Asmat Ullah in this case. The DSP Circle also held a press conference disclosing the arrest of the petitioners. To support their defence plea, the petitioners produced as many as eight DWs who were allegedly confined with them in PS. Injra during those days. We have also reviewed the entire defence evidence and found that all the DWs materially supported the stance of the petitioners. The statement of Mehboob Khan (DW-1), that both petitioners were confined with him in the lock-up of P.S. Injra from 01.11.2010 until 08.11.2010, when he was sent to the judicial lock-up by the order of the concerned area Magistrate, is supported by a copy of the report under Section 173, Cr.P.C. (Exh.DB/2) in case F.I.R. No. 89/2010, offence u/S. 13/20/65 Arms Ordinance, PS Injra, as well as the Judicial Remand Order (Exh.DF), which shows that he was on physical remand with the P.S. Injra and was sent to the judicial lock-up by the area Magistrate, vide his order dated 08.11.2010. The statement of Khalil Ur Rehman (DW-2) that he was arrested by the police of the Police of the P.S. Injra on 08.11.2010 and remained in their custody until 16.11.2010; during this period, the petitioners were also confined with him in the lock-up of the P.S. Injra, is supported by the Judicial Remand Order dated 16.11.2010 (Exh.DE). The remand paper (Exh.DE) clearly shows that he (DW-2) was arrested in case F.I.R. No. 98/10, offence u/S. 13/20/65 Arms Ordinance, PS Injra, and was sent to the judicial lock-up on 16.11.2010. Similarly, Muhammad Khaliq (DW-3) stated that he was on physical remand with PS Injra in case F.I.R. No. 55/10, offence u/S. 365-A/34/109, P.P.C. read with 7(e) ATA, PS Injra from 08.11.2010 to 10.11.2010, and remained confined with the petitioners and other co-accused persons in the lock-up of the P.S. Injra. His stance is also duly supported by the physical remand order (Exh.DF) dated 08.11.2010. The petitioners also produced one Shoaib Akhtar (DW-4), who was allegedly running a hotel near PS Injra. He stated that he had been providing meals and tea to the petitioners from 03.10.2010 to 28.10.2010 at the request of LiaqatMuharrar of the P.S. Injra and his bill was paid by Ghulam Hussain, one of the relatives of the petitioners.
13. Having considered the available evidence from all corners in juxtaposition, we have observed that the prosecution has bumped into significant challenges in substantiating their allegations against the petitioners. The defence has presented a version of events that stands in stark contrast to the prosecution’s narrative, and it is incumbent upon the latter to rebut this version with concrete evidence. However, the prosecution has not produced any such evidence to counter the defence claims. This raises serious questions about the strength of the prosecution case and whether they have fulfilled their burden of proving the guilt of the petitioners beyond a reasonable doubt. Moreover, the defence witnesses have undergone a rigorous cross-examination process, designed to test the veracity and reliability of their testimonies. Despite the length and intensity of this cross-examination, nothing has emerged that could be construed as favorable to the prosecution case. The accounts of the defence witnesses have remained consistent and unshaken, which further undermines the position of the prosecution. In light of these observations, it is clear that the case of the prosecution is lacking in evidentiary support, and the defence version of events remains uncontroverted. The absence of a rebuttal from the prosecution, coupled with the steadfast testimonies of the defence witnesses, may very well tilt the scales in favor of the petitioner-side. We find force in the submission of learned Counsel for the petitioners that no cause of abduction or kidnapping is made out and ingredients of offences punishable under Section 365-A, P.P.C. and 7(e) of the ATA are not attracted in this case. Moreover, the prosecution presented no evidence to show that the petitioners were previously involved in similar crimes or had ever been convicted of any such offence. This situation necessitates careful consideration by the Court, as the principles of justice and fairness demand that no individual should be convicted without sufficient evidence.
14. Froeging in view, the Jail Petition for Leave to Appeal No. 431 of 2016 is converted into an appeal and is allowed. The impugned judgment dated 23.05.2016 passed by the Lahore High Court and that of the Trial Court dated 10.05.2012, are set aside. Consequently, the petitioner, Asmat Ullah, is acquitted of the charge and be released from jail forthwith, if not required to be detained in any other case. His properties confiscated by the Trial Court, as per the judgments supra, shall also be released forthwith.
15. The Superintendent of Central Jail, Rawalpindi, has reported that the petitioner, Lal Khan, died in jail during the pendency of this appeal.Under the law, a criminal appeal abates on the death of an appellant, but Section 431, Cr.P.C. provides an exception to this general rule. It provides that an appeal against a sentence of the fine shall not abate by reason of death of an appellant, because it is not a matter, which affects his person, it would certainly affect his estate. Thus, upon the death of an appellant, his appeal to the extent of a portion of the sentence of imprisonment, abates whereas, the appeal to the extent of sentence of fine, affecting the property of an appellant, shall not abate and is to be heard on merits and in accordance with the settled principle of the criminal justice. Reference in this regard may be made to Dr. Ghulam Hussain, represented by 8 heirs versus the State (1971 SCMR 35). Recently, this Court in Sheikh Iqbal Azam Farooqui through Legal Heirs versus the State through Chairman NAB (2020 SCMR 359) expressed a similar view. The relevant portion of the judgment is reproduced hereunder for ease of reference:
“4. Corporal consequences of a conviction wither away with the death of the convict, therefore appeal filed by the convict would automatically abate, as the death severs all temporal links with his corpus. However, financial liability, consequent upon conviction and shifted upon the estate, would certainly require the appellate Court to decide the appeal on its own merit as in the event of its failure, the liability is to be exacted from the assets devolving upon the legal heirs. A plain reading of Section 431 of the Code ibid confirms the above contemplation of law. Criminal petition is converted into appeal; allowed. The impugned order is set aside. Appeal filed by the deceased, being sustained by his legal heirs, shall be deemed as pending before the High Court for adjudication on merits.”
Emphasis supplied.
Thus, the Criminal Petition for Leave to Appeal No. 845 of 2016 filed by the petitioner, Lal Khan (now deceased), is also converted into an appeal but is partly allowed on merits to the extent of the sentence of forfeiture of his properties, whereas it is abated only to the extent of the death sentence awarded by the Trial Court but altered to imprisonment for life by the High Court. Consequently, his properties, if any, confiscated under the aforementioned judgments shall be released forthwith in favor of his legal heirs. However, it was inadvertently mentioned, in the short order dated 15.05.2024, as “on account of his [the petitioner, Lal Khan] death the appeal stands abated and the conviction and sentence awarded to the appellant under the rest of Sections are intact” which shall stand corrected, accordingly. Previously, this Court has already corrected such type of errors in the short order while recording the detailed reason. For instance, in Zulfiqar Ali Bhatti versus Election Commission of Pakistan and others (2024 SCMR 997), this Court corrected the mistake in the short order in the following terms:”
“The petition for leave to appeal of the appellant filed against the order of the Islamabad High Court is meritless and is therefore dismissed; it was mistakenly mentioned as allowed in the short order, which shall stand corrected accordingly.”
In Hamza Rasheed Khan versus Election Appellate Tribunal, Lahore High Court, Lahore and others (Civil Appeal No. 982 of 2018), this Court corrected the error in the short order as follow:
“We may clarify here that in the short order, the appeal was mistakenly mentioned as involving disqualification of the appellant, instead of the respondent, which error stands corrected as per this clarification.”
16. As a natualcollary, the Criminal Petition for Leave to Appeal No. 830 of 2016 filed by the complainant, Mehmood Ur Rehman, seeking to set aside the impugned judgment and uphold the judgment of the Trial Court imposing the death sentence on the petitioners is dismissed, accordingly.
17. Above are the reasons for our short order dated 15.05.2024.
(K.Q.B.) Petition dismissed
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