IN THE HIGH COURT OF SINDH AT KARACHI

Cr. Appeal No. 349 of 2006 & Cr. Revision Application No. 143 of 2006

Present:

Mr. Justice Gulzar Ahmed &

Mr. Justice Irfan Saadat Khan.

J U D G M E N T

Date of hearing : 18.2.2010 & 10.3.2010.

Appellant through : Mr. Ali Nawaz Channa, Advocate.

Complainant through : Mr. Muhammad Ashraf Kazi, Advocate.

State through : Mr. Saleem Akhtar, Additional Prosecutor

General.

>>>>>> <<<<<<<

GULZAR AHMED, J.:- By this common judgment we propose to dispose off Criminal Appeal No. 349 of 2006 and Criminal Revision Application No. 143 of 2006. Both, the Criminal Appeal as well as Criminal Revision Application have arisen out of the common judgment dated 27.9.2006 passed by the learned Vth Additional District & Sessions Judge, Karachi-East by which the appellant Abdullah Khan has been convicted under section 265-H(2) Cr.P.C. for the offence of committing Qatal-e-Amad and sentenced him under section 302-B PPC to undergo R.I. of ten years and to pay compensation of Rs.100,000/- to the heirs of deceased and in default to suffer R.I. for a period of six months more with concurrent sentence and benefit of section 382-B Cr.P.C. Criminal Revision Application is filed by the complainant seeking enhancement of sentence.

Brief facts of the matter are that complainant Feroze Ali Rasheed recorded statement under section 154 Cr.P.C. on 21.7.2002 at 0230 hours incorporated in the Book under section 154 Cr.P.C. lodged on 21.7.2002 at 0250 hours at Police Station Tipu Sultan, Karachi alleging that he is residing at house No. M-50, Block-6, PECHS Nursery, Karachi. Today at 01:15 a.m. his younger brother Asif Ali Rasheed informed him on telephone that Chowkidar of bungalow of their brother Arif Ali Rasheed had informed Asif Ali Rasheed that some blood was seen in front of the door of bungalow of Arif Ali Rasheed and some person is lying inside, therefore, he is going to bungalow of Arif Ali Rasheed and asked him to reach there immediately. On receipt of this information, he reached the bungalow of Arif Ali Rasheed at 01:45 a.m. where his brother Asif Ali Rasheed was present and police mobile was also parked there and he went inside the bungalow and saw that in the T.V. Room dead body of his younger brother Arif Ali Rasheed is lying in pool of blood. His neck was cut by Chhuri and there were other injuries on his face, forehead, mouth and Chhuri was lying near the dead body. The wife and children of deceased brother had gone to Tehran on 18.7.2002 and his brother was alone in the house and today i.e. 21.7.2002 his brother was also to go to Tehran. He has alleged that unknown culprits for unknown reason have killed his brother by cutting his neck.

Investigation was conducted as a result of which the accused Abdullah Khan was arrested, challan was submitted in Court. Charge of commission of Qatal-e-Amad under section 302 PPC was framed to which the accused pleaded not guilty. Trial was commenced and prosecution produced eight witnesses and closed its side. Statement under section 342 Cr.P.C. of accused was recorded and after hearing the counsel for the parties, the impugned judgment was passed.

Mr. Ali Nawaz Channa, learned counsel for the applicant after taking us through the evidence available on the record has contended that statements under section 164 Cr.P.C. of PW Muhammad Sadiq and PW Muhammad Junaid were not voluntarily nor true and no reliance can be placed on them and in any case conviction cannot be based on such statements. He has further contended that I.O. Hayatullah was not produced and he was said to have been dismissed from the service but the reasons of dismissal was not assigned. He further contended that there is no ocular evidence of the incident and the circumstantial evidence produced by the prosecution is defective, inconsistent and not trustworthy and even the evidence of Finger Print Expert is of no value. He has contended that there is no evidence of commission of crime by the appellant and the impugned judgment is liable to set aside and the appellant may be acquitted. In support of his submissions he has relied upon the case of THE STATE & OTHERS V/S RAHIM DAD & OTHERS (2005 MLD 1620), STATE THROUGH DEPUTY ATTORNEY GENERAL V/S QAZI TALIB MOHYUDDIN & 2 OTHERS (PLJ 1996 P 1637), MUHAMMAD SHAFIQUE AHMED V/S THE STATE (PLJ 1981 SC 835), MD. NAZIR HOSSAIN SARKAR & ANOTHER V/S THE STATE (1969 SCMR 388), ALI KHAN V/S THE STATE (1999 SCMR 955), YAROO ALIAS YAR MUHAMMAD V/S THE STATE (1969 P.CR.L.J.1580), NASRULLAH V/S THE STATE (1995 MLD 515), ABDUL SATTAR V/S THE STATE (PLD 1976 S.C.404), SAJID MUMTAZ & OTHERS V/S BASHARAT & OTHERS (2006 SCMR 231), RASAB KHAN V/S THE STATE (2003 SCMR 1385), ZIAUL REHMAN V/S THE STATE (2001 SCMR 1405), RAHIMULLAH JAN V/S KASHIF & ANOTHER (PLD 2008 S.C 298), MUHAMMAD KHAN & ANOTHER V/S THE STATE (1999 SCMR 1220), MUNAWAR ALI ALIAS MUNAWAR HUSSAIN V/S THE STATE (PLD 1993 S.C.251) and ALLAH YAR & ANOTHER V/S THE STATE (2005 P.Cr.L.J.83).

Mr. Saleem Akhtar, the learned Additional Prosecutor General has contended that the case is mainly based upon circumstantial evidence and the circumstance that the appellant was an employee of deceased had free access to house of deceased and his thumb was found injured, pointing of place of incident by him, recovery of dead body from the same place and evidence of Finger Print Expert provides proof of commission of crime by the appellant.

Mr. Muhammad Ashraf Kazi, learned counsel for the applicant in Cr.Revision Application No. 143 of 2006 has filed written synopsis and has contended that it is a case of last seen evidence which is corroborated by recovery of blood stained cloths of accused and presence of the accused at the deceased’s bungalow soon after the incident of murder, injury on the two fingers of the accused. He has contended that Finger Print Expert’s report is positive and that the appellant ought to have been sentenced to life. In support of his submissions he has relied upon the cases of ALLAHDITTO V/S THE STATE (1968 P.Cr.L.J. 762), KHURSHID V/S THE STATE (PLD 1996 S.C 305), AFTAB MASIH AND ANOTHER V/S THE STATE (1994 P.Cr.L.J. 1580) NISAR AHMAD AND 2 OTHERS V/S THE STATE (1994 P.Cr.L.J.1587), SHAMSUD DOHA V/S THE STATE AND ANOTHER (2005 P.Cr.L.J. 310) and (1968 SCMR 378).

We have considered the submission made by learned counsel for the parties and have gone through the record.

The incident appears to have taken place on 21.7.2002 at about 0045 hours and PW-2 Muhammad Sadiq, the Chowkidar of the deceased in his statement has stated that on 21.7.2002 at about 12 midnight deceased had given him Rs.10 to bring milk and he left the bungalow for purchasing the milk and within 10/15 minutes he returned to the bungalow and constantly knocked the door but no one paid attention. He went to the house of deceased’s brother informing about the situation who came with him to the bungalow of the deceased. The brother of deceased called the security guards of the bungalows meanwhile police also reached. Police had broken the door of bungalow where he saw dead body of Arif Ali Rasheed. Police then took him to Police Station where he was examined thereafter he was taken to office of SSP East two times. He stated that he was tortured by the police as they wanted to query about whatever he has seen to be disclosed to police and that thereafter the police had not visited the crime place in his presence. He has produced Exh: 5/A memo of seizure of cloths of accused Abdullah and admitted his signature on it. He also produced Exh: 5/B memo regarding inspection of place of Wardat and admitted that it bears his signature. He stated that he does not know accused Abdullah personally, however, he knows one person by the name Abdullah who used to visit the said bungalow. He stated that accused Abdullah present in Court is same who was arrested in this case. He further stated that except what he stated above he does not know about any thing about the incident. In cross examination, he stated that police immediately took him to the Police Station where he was detained for 13 days in this case and was suspected in the crime. He was produced before the Magistrate where his statement under section 164 Cr.P.C. was recorded which was produced by him as Exh: 5/C. He further stated that during the whole period of 13 days he was not taken at the crime place by the police or any other place except the office of SSP. As regards Exh: 5/A and 5/B he admitted that they bears his signatures but such signature were taken by the police at Police Station. He admitted the suggestion that no case property was secured by the police in his presence. He stated that he was taken to Police Station at 3:00 a.m. in night from the bungalow while accused Abdullah was brought by the police at Police Station at 7:00 a.m. and stated that he had seen the accused Abdullah at Police Station. He stated that police has put pressure upon him to make statement as per their instruction and also stated that if he has produced in Court he would say that he has seen Abdullah in the Bazar to which he declined as police wanted wrong false statement. He admitted that he has not seen murder of deceased with his own eyes and had not seen accused Abdullah killing the deceased with any weapon or otherwise. He further stated that whatever he has deposed as per saying of police.

The second relevant evidence is that of PW-4 Feroze Ali Rasheed, the complainant and brother of the deceased. He has stated in this statement that deceased Arif Ali Rasheed was his younger brother. The incident took place on 21.7.2002 in night time and at that time he was present in his house. On the day of incident he has received telephone call of his younger brother Asif Ali Rasheed who informed that Chowkidar of deceased has come to him and informed that blood was coming from inside the house of deceased. He immediately reached the house of deceased and found that police was already there. He stated that we entered inside the bungalow and found deceased lying dead in pool of blood in TV lounge and his neck was found cut. Police recorded his 154 Cr.P.C. statement which he produced as Exh: 7/A but stated that it does not bear his signature and on basis of his 154 Cr.P.C. statement the case was registered by the police and produced FIR as Exh: 7/B and stated that it does not bear his signature. He stated that police inspected the dead body of deceased recovered Chhuri prepared inspection memo of the place of Wardat and recovery which he produced as Exh: 7/C and admitted that it bears his signature. Police also recorded his 161 Cr.P.C. statement. He has stated that PW Junaid told him that accused Abdullah had to come late in the bungalow of deceased for packing purpose as deceased was going abroad on same night of the incident. He further stated that police has disclosed to him that it has arrested the accused Abdullah and cloths of accused with pool of blood were recovered from the house of accused Abdullah. Police has also disclosed him that accused Abdullah has sustained injuries and he was taken to the hospital for stitching of his wounds and treatment. He has further stated that Abdullah was working as peon in the office of the deceased. He, however, cannot recognize the accused person in Court. It appears that this witness was not cross examined by the defence.

The next relevant evidence is that of PW-3 Muhammad Junaid. He has stated in his evidence that he knew the deceased as he was working with him since last two years. On 20.7.2002 in evening time he was present in the office and after finishing office time he along with Arif Ali Rasheed (now deceased) visited Sea View where they took ice cream and thereafter returned to office from where deceased made phone call to other staff member namely Farhan. Farhan reached the house of deceased from where they left the house for taking meal at Bar B.Q. Clifton thereafter deceased dropped Farhan near his house situated at Shah Faisal Colony and then dropped him at Nursery bus stop thereafter about 2:30 a.m. in night one Asghar Mehmood the General Manager asked him on phone to come to the house of deceased where he reached and found police personnel and brother of deceased present and on enquiry he told the police that lastly deceased had dropped him at Nursery Bus Stop and informed him that he is going to take one Abdullah who was working as peon with him. Police inspected the place of incident in his presence and obtained his signature and stated that Exh: 5/B bears his signature. Police inquired from him the residence of Abdullah. He led the police party to the house of Abdullah but Abdullah was not present there. However, the police accompanied younger brother of Abdullah to the house of his uncle and on pointation of his brother accused Abdullah was arrested by the police. He produced memo of arrest of Abdullah and stated that it is the same and correct and bears his signature. He further stated that Exh:5/A also bears his signature. He stated that police then produced him before the Magistrate where his 164 Cr.P.C. statement was recorded which statement he produced as Exh: 6/A. He further stated that his statement under section 161 Cr.P.C. was also recorded. He stated that accused present in Court is the same who was arrested in his presence. He stated that he does not know any thing more about the incident nor he has seen the incident with his own eyes. In cross-examination he stated that after the incident the police has taken him and he remained in custody for 14 days. He admitted the suggestion that whatever documents produced by him were signed by him on last date of his release by police and he does not know the contents of documents produced by him. He stated that he remained 14 days in Police Station along with accused Abdullah and was not informed as to why he has been detained at the Police Station. He admitted the suggestion that he was pressurized by the police to give the evidence against accused Abdullah and stated that if he had given the same, he will be released. He also admitted the suggestion that he has not seen the accused at the time of commission at the place of Wardat nor he has seen the accused with deceased on the day of Wardat.

PW-5 Ms. Zahida Perveen, the IXth Judicial Magistrate, Karachi-East has deposed that SIP Hayatullah had moved an application before her requesting for recording of 164 Cr.P.C. statements of witnesses, which was allowed by her which she produced as Exh: 8/A and directed the I.O. to produce the accused as well as witnesses for recording of 164 Cr.P.C. statements and on 27.4.2002. I.O. appeared before the Court alongwith accused and witnesses and she recorded statements under section 164 Cr.P.C. of Muhammad Sadiq and Muhammad Junaid as Exh: 5/A and 5/C and stated that they bear her signatures. In cross-examination she denied that she had knowledge that witnesses have remained in custody of police and denied that whatever is deposed by the witnesses was at the influence of police. She denied that no notice under section 160 was given to the witnesses.

PW-6 Taj Muhammad, Finger Print Expert, stated that on 22.7.2002 he was posted as Incharge Finger Print Sindh. He received an application from SHO Tipu Sultan requesting for taking of finger prints upon which he has sent SIP Muhammad Bashir Khan to secure finger prints of person from the scene of occurrence. The said SIP obtained some finger prints of culprit and reported him. He also received letter from Police Station Tipu Sultan bearing thumb impression of accused Abdullah and after usual investigation he gave his opinion vide letter dated 28.3.2002. He has produced the application of SHO Tipu Sultan as Exh: 10/A, 10/B, the thumb impression of accused Abdullah as Exh: 10/D and his opinion as Exh: 10/E. In cross-examination he admitted that he himself did not got to the scene of incident but has sent SIP Muhammad Bashir.

PW-7 Dr.S.M.Rathore stated that on 21.7.2002 he was MLO at Jinnah Post Graduate Medical Center, Karachi. At about 3:30 a.m. dead body of deceased Arif Ali Rasheed was brought by SI Hayatullah of Police Station Tipu Sultan for post mortem and to ascertain the cause of death. He conducted post mortem of deceased. He has produced the post mortem report as Exh: 10/A so also certificate of cause of death as Exh: 10/B.

PW-1 Khalid Mehmood stated that on 25.7.2002 he was posted as Head Constable at Police Station Tipu Sultan when SI Hayatullah interrogated in his presence the arrested accused Abdullah. Accused Abdullah showed willingness to lead the police party to the bungalow where wardat took place upon which he, SIP Hayatullah and accused went in taxi. Accused led the police party to the bungalow where the wardat took place. There was a room adjacent to the TV lounge where one bed was lying and accused said before him that there happened a quarrel whereupon he got annoyed and committed murder of deceased. Memo of place of incident on the pointation of accused was prepared which he produced as Exh: 4/A. In cross-examination he stated that except himself SI Hayatullah alongwith accused had gone to place of incident but two private witnesses had already reached there when they reached at the said bungalow. He stated that he does not remember the number of taxi nor does he remember the fare of taxi. He stated that only one watchman was there namely Sadiq when they reached the pointed place and except watchman no other witness was there and denied the fact that Mashirnama was prepared at Police Station. He voluntarily stated that it was signed by him at the spot and he was the only person who signed such memo and no other person had signed such memo and the taxi driver was not made the witness and no person was there when they reached at the pointed bungalow.

PW-8 Muhammad Aslam stated that on 21.7.2002 he was posted at Police Station Tipu Sultan while SIP Hayatullah was posted at same Police Station. He knew that SIP Hayatullah has been dismissed from the service and since he remained posted with him at different Police Stations he was conversant with his hand writing and signatures and stated that Exhs: 7/A, 7/B/ 7/C, 9/A and 10/C bear signatures of SIP Hayatullah. Upon closure of the side of prosecution statement under section 342 Cr.P.C. of accused was recorded.

PW Muhammad Sadiq, the Chowkidar of deceased bungalow in his evidence has stated that he does not know accused Abdullah personally, however, he knows one person by name Abdullah, who used to visit the said bungalow. PW Feroze Ali Rasheed, the complainant, stated in his evidence that accused Abdullah was working as peon in the office of deceased, however, he could not recognize accused present in Court. So far the evidence of Muhammad Sadiq to the effect of knowing the accused Abdullah, he altogether says that he does not know him personally but knows some other person by the name of Abdullah who used to visit the bungalow of deceased, while Feroze Ali Rasheed complainant and bother of deceased though stated that accused worked as peon in the office of deceased but failed to recognize him in Court. PW Muhammad Junaid in his cross-examination has stated that he has not seen the accused at the time of commission at the place of wardat nor he has seen accused Abdullah with the accused on the day of alleged wardat. The cumulative effect of the evidence of the above named three witnesses shows that though the accused may be working as peon in the office of deceased but he was not the visitor to the house of the deceased and on the date of incident nobody seems to have seen the accused Abdullah at the place of incident. There is no ocular evidence directly connecting the accused with the commission of crime. Thus, it is not a case where any of prosecution witnesses may have seen the commission of crime by his own eyes and that of last seen evidecen.

The prosecution has relied upon the circumstantial evidence that the accused was an employee of deceased and had free access to the house of deceased and his thumb was found injured, he has pointed the place of incident, recovery of dead body from the same place and evidence of Finger Print Expert. So far the question of appellant being an employee of deceased, there is evidence of Muhammad Junaid so also that of PW Feroze Ali Rasheed, the complainant, that the appellant was an employee of the deceased but so far the contention of the learned APG that the appellant had free access to the house of deceased, the same is not supported by any evidence to the extent that Chowkidar of deceased house namely PW Muhammad Sadiq in his evidence did not say that appellant Abdullah was visitor of the house of the deceased rather he said that he did not know appellant Abdullah and some other person by the name of Abdullah was the visitor of bungalow of deceased. None of the other prosecution witnesses have said anything that appellant Abdullah was the visitor of bungalow of deceased or had free access to it. As regards the injury on the thumb of the appellant, only PW Feroze Ali Rasheed, the complainant, in his evidence has stated that police has disclosed him that accused Abdullah also sustained injuries and he was taken to hospital for stitching on his wounds and treatment. No other prosecution witness has said anything of seeing any wounds on the hand of appellant and yet again the evidence of PW Feroze Ali Rasheed is based upon the information provided to him by the police only and not that of his own knowledge of seeing himself wounds in the hand of the appellant. Although this witness has stated that the police got the wounds in the hand of appellant stitched and treated at hospital but there is even no medical evidence on the record to support or corroborate this piece of evidence. The evidence of this witness on the question of having the wounds in the hand of appellant can easily be discarded as hearsay evidence. As regards the arguments of learned Additional Prosecutor General, that the appellant has pointed the place of incident and recovery of dead body is also made from the same place, it may be noted that there is no substantial evidence on the record to support this very arguments of learned Additional Prosecutor General. PW Muhammad Sadiq has stated that appellant was brought to the Police Station at 7:00 a.m. on the date of incident that is on 21.7.2002. PW Khalid Mehmood was posted as Head Constable at Police Station Tipu Sultan stated in his evidence that while the appellant was in custody and was being interrogated by SI Hayatullah on 25.7.2002, he agreed to lead the police party to the place of incident and on his pointation memo of place of incident was prepared and produced the same as Exh: 4/A. In his cross-examination he stated that he was the only person who has signed such memo as Mashir. The memo Exh: 4/A shows that it is signed as Mashirs by two persons; one is the complainant Feroze Ali Rasheed, and the other appears to be PW Khalid Mehmood. This witness in his cross-examination has made inconsistent statement as he stated that while he, SI Hayatullah and the appellant went to the place of incident, two private witnesses had already reached there. In the latter part of cross-examination he states that only one watchman namely Sadiq was there when they reached at the pointed place and except watchman no other witness was there and further in the same cross-examination he stated that he only signed such memo and no person was there when they reached at pointed bungalow. This inconsistency in the cross-examination of PW Khalid Mehmood could only lead one to a reasonable belief that the story of appellant leading to the place of incident was a cooked up one and the witness himself seems to be hesitant in supporting it. The memo of place of incident is also signed by PW Feroze Ali Rasheed, the complainant, although PW Khalid Mehmood said nothing about his presence at the time of preparation of memo of place of incident. Yet again this memo was not shown to PW Feroze Ali Rasheed in his evidence to say whether it was prepared in his presence and whether he had singed it on the spot. Besides this inconsistent and defective evidence on the record there is no other evidence to show that appellant at all took the police party at the place of incident.

As regards the contention of learned Additional Prosecutor General, that opinion of Finger Print Expert connects the appellant with the commission of crime and in this respect has referred to section 510 Cr.P.C. to the effect that report of Finger Print Expert can be used in evidence without even calling the Expert as witness. The Finger Print Expert, PW Taj Muhammad, has, however, been examined. He has stated that on receipt of application from SHO Tipu Sultan he has sent SIP Muhammad Bashir Khan to secure finger prints from the scene of occurrence and said SIP obtained finger prints and reported to him. He has further stated that he has received from the police a paper bearing thumb impression of the appellant for the purpose of report and after usual investigation he has given his opinion dated 23.8.2002 Exh: 10/E. SIP Muhammad Bashir Khan has not been examined and there is nothing in the evidence to show that said SIP at all visited the place of occurrence and took the finger prints from there nor is there evidence to show that by what means and from which specific place the finger prints were secured. Further there is no evidence to show that when and in whose presence thumb impressions of the appellant was obtained for the purpose of sending it to Finger Print Expert. Though it is true that the opinion of Finger Print Expert in terms of section 510 Cr.P.C. could be used in evidence without calling the Expert himself but there has to be a proper sequential and reliable supporting evidence to show that the finger prints were duly obtained from the place of occurrence and that of the appellant for which there is no material on the record. In the absence of any independent and corroborative evidence to support the obtaining of finger prints from the place of occurrence and that of the appellant mere reliance on the opinion of Expert cannot be placed when it is not known on whose finger prints such opinion is based. It may also be noted that though PW Taj Muhammad in his evidence has stated that he has deputed SIP Muhammad Bashir Khan to secure the finger prints from the scene of occurrence and the said SIP obtained finger prints of culprit and reported to him but Exh: 9/B produced by this very witness shows that it was Head Constable Muhammad Yaseen of Finger Print, Sindh who has obtained the finger prints from the place of occurrence. This contradiction in the statement of PW and the Exh: 9/B wholly makes the evidence of PW Taj Muhammad a doubtful one also.

Although, it is the case of prosecution that they have recovered from the place of incident blood stained Chhuri, blood of deceased in glass jar, two cassettes of VCR, one tablet of Viagra and have also recovered blood stained cloths of the appellant but as it appears from the record none of the recovered items were produced in Court nor there is any report of Chemical Analyzer that the blood stained Chhuri and blood stained cloths did in fact were stained with the blood and that too of the deceased as per version of prosecution it has collected the blood of deceased in the glass jar which could have easily matched from the crime items.

The prosecution seems to have badly handled the case in not producing before the Court the recovered items and in not obtaining Chemical Analyzer’s report. Where the case is based upon circumstantial evidence only, the guiding factor for appreciation such evidence is that no link in the chain should be missing and all the circumstances must lead to the guilt of the accused. Reference in this regard is made to the case of ALI KHAN V/S THE STATE (1999 SCMR 955) and the case of MD. NAZIR HOSSAIN SARKAR & ANOTHER V/S THE STATE (1969 SCMR 388). As noted above, not a single chain of circumstances through evidence has been proved by the prosecution leading to the guilt of the appellant.

The I.O. in the case has not been examined and it has been stated by PW Muhammad Aslam that he has been dismissed from service and he was examined only to prove the signature of I.O. on various exhibits. No explanation has been given by the prosecution as to why I.O. was dismissed from the service and even he was dismissed from the service, why his attendance was not procured in Court for having his evidence recorded. No efforts seem to have been made in this regard and he seems to have been given up by the prosecution. Thus, none of the steps taken in the investigation of the case could validly be proved by the prosecution. All the Mashirnamas that have been produced are signed by the prosecution witnesses although respectable persons of the area could have been associated as independent witnesses which has led to serious violation of section 103 Cr.P.C.

Further more; PW Muhammad Sadiq and Muhammad Junaid have respectively remained in custody for 13 and 14 days. PW Muhammad Sadiq in his evidence has stated that he was tortured and pressurized by the police to give evidence against the appellant and that Exh: 5/A and 5/B were singed by him at Police Station. PW Muhammad Junaid has also stated in his evidence that he was pressurized by the police to give evidence against the appellant and that it was a condition for his release from the custody. He stated that whatever documents have been produced by him were signed by him on the last date of his release by the police and does not know the contents of the documents produced by him. Both these witnesses were hostile to the prosecution but prosecution has not cross-examined them and their evidence of they having remained in custody for 13 or 14 days and were tortured and pressurized to give evidence against the appellant and having signed documents at the Police Station or on the last date of release and have been allowed to go unchallenged.

From the over all above discussion, it appears that prosecution has miserably failed to prove the case against the appellant. We, therefore, allow this appeal, set aside the impugned judgment and direct that appellant be released forthwith if not required in any other case. For the same reasons as discussed above, Criminal Revision Application filed by the complainant is dismissed.

J U D G E

Aamir/PS