Raja Shahid Ahmed Versus State
Sadiq Mahmud Khurram, J .--- Raja Shahid Ahmad son of Bashir Ahmad, Haq Nawaz Abbasi son of Khuda Daad Khan, Aurangzeb son of Umar Khan and Malik Muhammad Safdar son of Khan Bahadur (convicts) were tried by the learned Sessions Judge/Special Judge Anti-Corruption, Rawalpindi Division, Rawalpindi, in case FIR No.13 of 2022 dated 18.05.2022 registered in respect of offences under sections 409, 420, 468 and 471 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, Rawalpindi. The learned trial court vide judgment dated 13.06.2024 convicted Raja Shahid Ahmad son of Bashir Ahmad, Haq Nawaz Abbasi son of Khuda Daad Khan, Aurangzeb son of Umar Khan and Malik Muhammad Safdar son of Khan Bahadur (convicts) and sentenced them as infra:-
Raja Shahid Ahmad son of Bashir Ahmad:- i) Rigorous imprisonment of seven years under section 471 Pakistan Penal Code,1860 and directed to pay fine of Rs. 500,000/-, and in case of default of payment of fine the convict was directed to further undergo simple Imprisonment of six months. ii) Rigorous imprisonment of seven years under section 468 Pakistan Penal Code,1860 and directed to pay fine of Rs. 500,000/-, and in case of default of payment of fine the convict was directed to further undergo simple Imprisonment of six months. iii) Rigorous imprisonment of three years under section 420 Pakistan Penal Code,1860 and directed to pay fine of Rs. 200,000/-, and in case of default of payment of fine the convict was directed to further undergo simple Imprisonment of six months
Haq Nawaz Abbasi son of Khuda Daad Khan:- i) Rigorous imprisonment of seven years under section 471 Pakistan Penal Code,1860 and directed to pay fine of Rs. 500,000/-, and in case of default of payment of fine the convict was directed to further undergo simple Imprisonment of six months. ii) Rigorous imprisonment of seven years under section 468 Pakistan Penal Code,1860 and directed to pay fine of Rs. 500,000/-, and in case of default of payment of fine the convict was directed to further undergo simple Imprisonment of six months. iii) Rigorous imprisonment of three years under section 420 Pakistan Penal Code,1860 and directed to pay fine of Rs. 200,000/-, and in case of default of payment of fine the convict was directed to further undergo simple Imprisonment of six months
Aurangzeb son of Umar Khan:- i) Rigorous imprisonment of seven years under section 409 Pakistan Penal Code,1860 and directed to pay fine of Rs. 500,000/-, and in case of default of payment of fine the convict was directed to further undergo simple Imprisonment of six months. ii) Rigorous imprisonment of seven years under section 471 Pakistan Penal Code,1860 and directed to pay fine of Rs. 500,000/-, and in case of default of payment of fine the convict was directed to further undergo simple Imprisonment of six months. iii) Rigorous imprisonment of seven years under section 468 Pakistan Penal Code,1860 and directed to pay fine of Rs. 500,000/-, and in case of default of payment of fine the convict was directed to further undergo simple Imprisonment of six months. iv) Rigorous imprisonment of three years under section 420 Pakistan Penal Code,1860 and directed to pay fine of Rs. 200,000/-, and in case of default of payment of fine the convict was directed to further undergo simple Imprisonment of six months v) Rigorous imprisonment of seven years under section 5 (2) of the Prevention of Corruption Act 1947 (Act No.II of 1947).
Malik Muhammad Safdar son of Khan Bahadur:- i) Rigorous imprisonment of seven years under section 409 Pakistan Penal Code,1860 and directed to pay fine of Rs. 500,000/-, and in case of default of payment of fine the convict was directed to further undergo simple Imprisonment of six months. ii) Rigorous imprisonment of seven years under section 471 Pakistan Penal Code,1860 and directed to pay fine of Rs. 500,000/-, and in case of default of payment of fine the convict was directed to further undergo simple Imprisonment of six months. iii) Rigorous imprisonment of seven years under section 468 Pakistan Penal Code,1860 and directed to pay fine of Rs. 500,000/-, and in case of default of payment of fine the convict was directed to further undergo simple Imprisonment of six months. iv) Rigorous imprisonment of three years under section 420 Pakistan Penal Code,1860 and directed to pay fine of Rs. 200,000/-, and in case of default of payment of fine the convict was directed to further undergo simple Imprisonment of six months v) Rigorous imprisonment of seven years under section 5 (2) of the Prevention of Corruption Act 1947 (Act No.II of 1947).
The convicts were, however, extended the benefit available under section 382-B of the Code of Criminal Procedure, 1898 by the learned trial court. All the sentences awarded to the appellants were ordered to run concurrently by the learned trial court.
2. Feeling aggrieved, Raja Shahid Ahmad son of Bashir Ahmad, lodged the instant Criminal Appeal No.525 of 2024 assailing his conviction and sentences. Feeling aggrieved, Haq Nawaz Abbasi son of Khuda Daad Khan (convict) lodged the instant Criminal Appeal No.526 of 2024 assailing his conviction and sentences. Feeling aggrieved, Aurangzeb son of Umar Khan (convict) lodged the instant Criminal Appeal No.520 of 2024 assailing his conviction and sentences. Feeling aggrieved, Malik Muhammad Safdar son of Khan Bahadur (convict) lodged the instant Criminal Appeal No.534 of 2024 assailing his conviction and sentences. I intend to decide the Criminal Appeal No.525 of 2024, the Criminal Appeal No.526 of 2024, the Criminal Appeal No.520 of 2024 and the Criminal Appeal No.534 of 2024 through this single judgment.
3. The brief facts of the prosecution case, as stated by the complainant of the case in his statement before the learned trial court are as under:-
I have purchased a lot of piece of land at Mauza Rajer. I got enter number of two Mutations Nos.5442 and 5442/1 bearing land measuring 388-K 13-M and 2142-K 10-M respectively in my favor and I deposited the official fee regarding the purchasing of land in the above said Mutations. I and my family transferred the above said land to Haji Muhammad Azram and his brother Guftar in the year 2003. Since there was some commitment between me and Muhammad Azram, due to non-fulfillment of the obligations the above said land was again transferred to me through the Mutations Nos.5442 and 5442/1. Thereafter, I went to abroad after my arrival in Pakistan, I inquired record of my said Mutations in Revenue Department and to utter my disbelief that the said land was transferred in my name along with three accused persons namely accused Muhammad Almas Abbasi, accused Haq Nawaz Abbasi and accused Raja Shahid. The transfer of land in the name of accused Almas Abbasi, accused Haq Nawaz Abbasi and Raja Shahid accused person in the result of their connivance with the concerned Revenue Department. In above said Mutations the word "Mazkoor" was written instead of "Mazkooraan" which proved that I was the sole owner of the land in the above said Mutations. Almas Abbasi accused was my commissioned agent. (objected by learned defense counsel Mr. Ansar Nawaz Mirza the word commission is objectionable cannot be treated as commissioned agent). Almas Abbasi accused is also involved a number of fraud cases. These cases are pertained to Tehsil Gujjar Khan, and decided in my favor and against accused Almas Abbasi and others. The disputed property comprising of said Mutations is worth of more than three billions rupees. I moved an application to the DG Anti-Corruption Establishment Lahore to take the cognizance of the matter in issue. The application Exh.P.J which bearing my signatures and I owned my signature Exh.P.J/1. The accused persons be dealt accordingly, I have been lost a huge amount of loss. The aforesaid accused persons have alienated the some piece of land out of the disputed land to other persons.
4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court, wherein the accused were sent to face trial. The learned trial court framed the charge against the accused on 23.01.2023, to which the accused pleaded not guilty, claimed trial and the learned trial court proceeded to examine the prosecution witnesses.
5. The prosecution in order to prove its case got recorded statements of as many as eleven witnesses recorded. Muhammad Asad, Constable (PW-1) stated that on 18.05.2022, he recorded the formal FIR (Exh.PA). Muhammad Zohaib Sarwar, Senior Auditor (PW-2) stated that on 15.06.2022, he issued the letter (Exh.PB/1-2). Israr Ul Haq Constable (PW-3) stated that on 03.06.2022, he received the reports of the Punjab Forensic Science Agency, Lahore and handed them over to the Investigating Officer of the case and on 07.07.2022, he received the Death Certificate (P-4/1-4) of Haji Muhammad Azram and produced the same before the Investigating Officer of the case. Muhammad Shabbir, Girdawar (PW-4) stated that on 15.06.2006, he received the Mutation No. 5442/1 (P-1/1-6). Saleem Raza, Naib Tehsildar (PW-5) stated that on 28.06.2018, he registered the Mutation No. 5442/1 (P-1/1-6). Nasir Qureshi, Record Keeper (PW-6) stated that on 17.06.2022, he produced the Pert Sarkar pertaining to the Mutation No. 5442/1 (P-1/1-6) before the Investigating Officer of the case. Farhat Mahmood, Patwari (PW-7) stated that on 10.06.2022, he joined the investigation of the case and produced the copies of the Mutation No. 5442/1 and the Mutation No. 5442 and other documents (Exh.PG/1-57) before the Investigating Officer of the case. Ghulam Mujtaba, Naib Tehsildar (Retired) (PW-11) stated that he had not signed the Mutation No. 5442/1 and the Mutation No. 5442. Zulfiqar Muhammad Bazeed, Circle Officer (PW-8) investigated the case from 18.05.2022 till 05.10.2022 and detailed the facts discovered during the investigation of the case in his statement before the learned trial court.
6. On 14.05.2024, the learned Deputy District Public Prosecutor closed the prosecution evidence after tendering in evidence the reports of Punjab Forensic Science Agency, Lahore (Exh.PK, Exh.PL and Exh.PM) and certified copies of other documents related to the litigation between the parties (Exh.PN to Exh.PX).
7. After the closure of prosecution evidence, the learned trial court examined the appellants namely Raja Shahid Ahmad son of Bashir Ahmad, Haq Nawaz Abbasi son of Khuda Daad Khan, Aurangzeb son of Umar Khan and Malik Muhammad Safdar son of Khan Bahadu, 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 stated that they had been falsely involved in the case and were innocent. The appellants opted not to get themselves examined under section 340(2) Cr.P.C however the appellants namely Malik Muhammad Safdar and Aurangzeb produced the document (Exh.DG) as evidence in their defence, whereas the appellants namely Haq Nawaz Abbasi and Raja Shahid Ahmad produced the document (Exh.DH) as evidence in their defence.
8. At the conclusion of the trial, the learned Sessions Judge/ Special Judge Anti-Corruption, Rawalpindi Division, Rawalpindi, convicted and sentenced the appellants as referred to above.
9. 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 crimes. They 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.
10. On the other hand, the learned District Public Prosecutor and the learned counsel for the complainant contended that the prosecution had proved its case beyond shadow of doubt by producing independent witnesses. The learned District Public Prosecutor and the learned counsel for the complainant further submitted that the appellants were involved in the commission of the crimes for which they had been convicted and that the impugned judgment entailing the convictions and sentences of the appellants did not warrant interference by this Court. Lastly, the learned District Public Prosecutor and the learned counsel for the complainant prayed for the rejection of the appeals.
11. I have heard the learned counsel for the appellants, the learned District Public Prosecutor, the learned counsel for the complainant and with their assistance, perused the record and evidence recorded during the trial.
12. It is trite that in a civil action, a party has to prove his case on the test of preponderance of probability but in a case entailing criminal liability, the requirement is to prove the charges beyond the shadow of doubt. The decision of a court in a suit does not automatically act as proof of guilt of the accused in a criminal matter, without leading any evidence to prove the facts in issue in the case being tried by the learned trial court. The law is absolutely clear that the matter is to be decided in the light of the evidence that may be adduced before the learned trial court and its decision must rest on such evidence. The crux of the case of the prosecution against the appellants is that the appellants namely Raja Shahid Ahmad and Haq Nawaz Abbasi got entered their names as vendees in the Mutation No. 5442/1 and Mutation No. 5442, with the active connivance of the appellants namely Aurangzeb and Malik Muhammad Safdar, despite the fact that neither Haji Muhammad Azram (since dead), had sold any land to the appellants namely Raja Shahid Ahmad and Haq Nawaz Abbasi nor the said appellants namely Raja Shahid Ahmad and Haq Nawaz Abbasi had any title over the said land. At the very outset it has been noticed that both mutations i.e. the Mutation No. 5442/1 and Mutation No. 5442 were sent to the Punjab Forensic Science Agency, Lahore for analysis and according to the report of the Punjab Forensic Science Agency, Lahore (Exh.PK also exhibited as Exh.PC/1-13), it could not be determined that the names of the appellants namely Raja Shahid Ahmad and Haq Nawaz Abbasi had been inserted subsequently. The relevant portion of the report of the Punjab Forensic Science Agency, Lahore (Exh.PK also exhibited as Exh.PC/1-13) reads as under:-
Furthermore, Zulfiqar Muhammad Bazeed, CO (PW-8), the Investigating Officer of the case, also admitted during cross-examination that according to the report of the Punjab Forensic Science Agency, Lahore (Exh.PK also exhibited as Exh.PC/1-13), it was determined that the names of the appellants namely Raja Shahid Ahmad and Haq Nawaz Abbasi had not been inserted subsequently. During cross-examination, Zulfiqar Muhammad Bazeed, CO (PW-8), the Investigating Officer of the case, admitted as under:-
During investigation the reference was sent to PFSA only pertaining to Column No.7 of Mutation No.5442/1 regarding its "Pert Patwar and Pert Sarkar" for verification. It is correct that as per report of PFSA Exh.PC/6 does not disclose any subsequent insertion of alleged three persons in Column No.7 as mentioned . This fact also came in report PFSA Exh.PC/6 that names of alleged three persons have been written using similar kind of ink/writing instrument (pen).
It is correct that during inquiry/investigation original Mutation No.5442/1 (PF/1-6) "Pert Sarkar" was sent to PFSA for forensic report in respect to "whether the names of alleged three persons in column No.7 of Mutation are inserted subsequently or not" and "whether the names of all alleged three persons in Column No.7 of Mutation were written with same instrument (Pen) and Ink or not". Similarly, I also sent the original "Pert Patwar" of Mutation No.5442/1 to PFSA for forensic report in respect to "whether the names of alleged three persons in column No.7 of Mutation are inserted subsequently or not" and "whether the names of all alleged three persons in Column No.7 of Mutation were written with same instrument (Pen) and Ink or not".It is correct that as per report of PFSA Exh PC/1-13 in respect to Pert Patwar and Pert Sarkar of Mutation No.5442/1 no abnormality was found. (emphasis supplied)
Nisar Ahmad Afzal (PW-10), the complainant of the case also admitted during cross-examination that he had not assailed the report of Punjab Forensic Science Agency, Lahore and stated as under:-
It is correct that Mutation No.5442/1 was sent by Investigating Officer for forensic analysis to PFSL. It is correct that the report was submitted to the I.O by the PFSL. I have not challenged the report of PFSL regarding Mutation No.5442/1.
As mentioned above,the sole allegation levelled by the complainant of the case against the appellants was that the appellants namely Raja Shahid Ahmad and Haq Nawaz Abbasi got entered their names as vendees in the Mutation No. 5442/1 and Mutation No. 5442, with the active connivance of the appellants namely Aurangzeb and Malik Muhammad Safdar. During the cross-examination of Nisar Ahmad Afzal (PW-10), the learned trial court observed as under:-
Q. How many Mutations regarding the case in hand were entered in your favor as per version.
Ans. Mutations Nos.5442 and 5442/1 were entered in my favor.
Q.As per your version in this case whether the Mutations werewrongly entered or names of the accused were subsequently entered.
Ans. The names of the accused were subsequently entered through tampering.
During cross-examination, Zulfiqar Muhammad Bazeed, CO (PW-8), the Investigating Officer of the case, admitted as under:-
It is correct that the only allegation raised by the complainant that names of three persons (accused present in the Court) were subsequently inserted in the Mutations
The very report of the Punjab Forensic Science Agency, Lahore (Exh.PK also exhibited as Exh.PC/1-13) smashes the whole foundation of the prosecution case against the appellants when it was determined that the names of the appellants namely Raja Shahid Ahmad and Haq Nawaz Abbasi had not been inserted subsequently in the mutations i.e. the Mutation No. 5442/1 and Mutation No. 5442, which was the sole allegation levelled by the complainant of the case against the appellants.
13. Another admitted fact of the prosecution case is that the vendor of the land which was sold through the mutations i.e. the Mutation No. 5442/1 and Mutation No. 5442 was Haji Muhammad Azram, however, according to the Death Certificate (P-4/1-4), the said Haji Muhammad Azram died on 01.04.2021 and it was only after the death of the said vendor that Nisar Ahmad Afzal (PW-10), the complainant of the case, submitted the application (Exh.PJ) for the registration of the case on 17.11.2021. Zulfiqar Muhammad Bazeed, CO (PW-8), the Investigating Officer of the case, admitted during cross-examination as under :-
It is correct that I took into possession the death certificate P.D/1-4 and as per the said death certificate his date of death is 01.04.2021 . Whereas complaint Exh.PJ was moved on 17.11.2021 after his death. It is correct that the Mutation No.5442/1 was sanctioned on 06.07.2015 . It is on the record that since 06.07.2015, till death of Haji Muhammad Azram no application or complaint regarding Mutation No.5442/1 was ever moved by the complainant before any forum. (emphasis supplied)
It is obvious that Nisar Ahmad Afzal (PW-10), the complainant of the case, waited for the death of Haji Muhammad Azram, the vendor, before he challenged the mutations i.e. the Mutation No. 5442/1 and Mutation No. 5442 and that too only to the extent that the names of the appellants namely Raja Shahid Ahmad and Haq Nawaz Abbasi had been inserted subsequently in the mutations i.e. the Mutation No. 5442/1 and Mutation No. 5442. What precluded Nisar Ahmad Afzal (PW-10) from assailing the addition of the names of the appellants namely Raja Shahid Ahmad and Haq Nawaz Abbasi in the mutations i.e. the Mutation No. 5442/1 and Mutation No. 5442 has not been explained. Nisar Ahmad Afzal (PW-10) admitted during cross-examination as under:-
I am fully conversant with Haji Muhammad Azram, the vendor. It is correct that Haji Muhammad Azram was died in April 2021. I have not moved any application during the lifetime of Haji Muhammad Azram regarding Mutation No.5442/1 and Mutation No.5442 (emphasis supplied)
It was also admitted by Nisar Ahmad Afzal (PW-10), the complainant of the case, that on 15.03.2017, he had mutated his land in the same Mauza Rajer , however, still waited till the death of Haji Muhammad Azram, to assail the Mutation No. 5442/1 and Mutation No. 5442. During the trial, Nisar Ahmad Afzal (PW-10) was confronted with the said fact and the learned trial court recorded as under:-
Court Question: Document Exh. DA Mutation No.6464 dated 15.03.2017 is before you, wherein you have alienated the land measuring 101-Kanal in favor Raja Aurangzeb son of Abdul Majeed of same Mauza Rajer and Khewat No. 1164/2464 to 3096 is it correct?
Answer: After going through my record, I memorized that I have sold land measuring 101-Kanal in favor of Raja Aurangzeb son of Abdul Majeed from Mauza Rajer. I owned my signature and thumb impression on Exh. DA. (emphasis supplied)
It is correct that there is no estoppel in criminal matters but it is equally true that the malice of fact, when apparent, can be considered as fatal for the case. In this case, the very act of Nisar Ahmad Afzal (PW-10) of not challenging the Mutation No. 5442/1 and Mutation No. 5442 during the lifetime of Haji Muhammad Azram (since dead), the vendor, itself raises the presumption that had the Mutation No. 5442/1 and Mutation No. 5442 been assailed with regard to the names of the appellants namely Raja Shahid Ahmad and Haq Nawaz Abbasi being inserted subsequently, in the lifetime of Haji Muhammad Azram (since dead ) then the said Haji Muhammad Azram (since dead ) would not have supported Nisar Ahmad Afzal (PW-10) in his claim.
14. During the course of the investigation and trial it was also proved that Haji Muhammad Azram (since dead ) had sold his land to Nisar Ahmad Afzal (PW-10) and the appellants namely Raja Shahid Ahmad and Haq Nawaz Abbasi and the witnesses of the said sale transaction also joined the investigation of the case and made statements in favour of the appellants namely Raja Shahid Ahmad and Haq Nawaz Abbasi that the said appellants namely Raja Shahid Ahmad and Haq Nawaz Abbasi were also the purchasers of the land of Haji Muhammad Azram (since dead ). In this regard, Zulfiqar Muhammad Bazeed, CO (PW-8), the Investigating Officer of the case, admitted during cross-examination as under :-
The Mutation PF/1-6, was sanctioned on 06.07.2015 and Umar Hayat and Gull Hussain are two marginal witnesses of said Mutation.
The affidavits of both the marginal witnesses namely Gull Hussain and Umar Hayat were present on the file. It is correct that the statement of Umar Hayat marginal witness of Mutation was present on the file. It is correct that as per investigation file both the marginal witnesses of PF/1-6 joined the investigation and got recorded their statements. It is correct that Haji Muhammad Azram Vendor expired before the registration of the FIR of this case. It is correct that Majid Khan Azram son of Haji Muhammad Azram used to appear during the course of investigation. During investigation Maji Khan Azram did record his statement and not tendered affidavit before me. After examining the file it came in my notice that Majid Khan Azram also appeared before Tahir Abbas I.O and got recorded his statement.
..
It is correct that during investigation it came with in my notice that as per statements of both the marginal witnesses of the Mutation PF/1-6 and Majid Khan Azram son of the vendor accepted the genuiness and correctness of Mutation No. 5442/1 (PF/1-6).
..
It is correct that Majid Khan Azram Son of Haji Muhammad Azram Vendor joined the investigation and also affirmed that Haji Muhammad Azram made sale transaction in favor of four vendees i.e. Nisar Ahmed Afzal (complainant), Muhammad Almas, Haq Nawaz and Raja Shahid Ahmed the accused persons. Majid Khan Azram did not support the version of complainant during investigation. (emphasis supplied)
15. Not only the fact that the sale of land through the Mutation No. 5442/1 and Mutation No. 5442 was verified by the witnesses namely Umar Hayat and Gull Hassan but Haji Muhammad Azram (since dead ), the vendor of the said land, also appeared before the concerned Revenue Officer on 06.07.2015 and himself verified the said mutations. Zulfiqar Muhammad Bazeed, CO (PW-8), the Investigating Officer of the case, admitted during cross-examination as under :-
It is correct that Mutation No.5442/1 was entered on 18.02.2005 and the same sale transaction was sanctioned on 06.07.2015. It is correct that vendor Haji Muhammad Azram reaffirmed and verified the same sale transaction before the Revenue Officer on 06.07.2015 as per record. (emphasis supplied)
16. During the course of the investigation and trial it was also proved that Haji Muhammad Azram (since dead) had not sold his land only to Nisar Ahmad Afzal (PW-10) but had also sold the same to the appellants namely Raja Shahid Ahmad and Haq Nawaz Abbasi. The Investigating Officer of the case recorded the statements of the witnesses during the investigation proving that the land of Haji Muhammad Azram (since dead) was sold to Nisar Ahmad Afzal (PW-10) and also to the appellants namely Raja Shahid Ahmad and Haq Nawaz Abbasi. During the course of the trial, the prosecution witness namely Nisar Ahmad Afzal (PW-10) failed miserably to prove that he was the only buyer of the land of Haji Muhammad Azram (since dead) which was mutated through the Mutation No. 5442/1 and Mutation No. 5442. Zulfiqar Muhammad Bazeed, CO (PW-8), the Investigating Officer of the case, admitted during cross-examination as under :-
Q. Whether any calendar witness except the complainant came forward during investigation and got recorded his statement to support the version of complainant with respect to that Mutation No.5442/1 was entered or sanctioned in favor of the complainant only instead of except all the four vendees.
Ans. No such witness ever appeared during investigation to support the said version.
It is in my knowledge that regarding any sale Mutation is to be established/proved by the vendor, Patwari, the Revenue Officer and its marginal witnesses. During investigation, all the said persons affirmed the sale transaction in favor of all the four vendees and the above said persons have not supported the version of complainant. Haji Muhammad Azram had died prior to moving the complaint Exh.PJ. It is correct that Majid Khan Azram Son of Haji Muhammad Azram Vendor joined the investigation and also affirmed that Haji Muhammad Azram made sale transaction in favor of four vendees i.e. Nisar Ahmed Afzal (complainant), Muhammad Almas, Haq Nawaz and Raja Shahid Ahmed the accused persons. Majid Khan Azram did not support the version of complainant during investigation. I have not taken into possession any agreement to sell which indicates that Haji Muhammad Azram intended to sale out his land only in favor of complainant, nor any agreement was produced by the complainant during the course of investigation. During investigation, neither complainant produced nor I took into possession any document which indicates the payment of consideration amount by the complainant alone to vendor Haji Muhammad Azram. During investigation, neither complainant produced any record nor the same came on record during investigation, whereby any person challenged the sale transaction of Haji Muhammad Azram in favor of the four vendees before the Civil Court. It is in my knowledge that ACE cannot settle and determine the question of title and civil dispute. (emphasis supplied)
Similarly, Farhat Mahmood Patwari (PW-7) also admitted the fact that the land was sold by Haji Muhammad Azram (since dead) to the appellants namely Raja Shahid Ahmad and Haq Nawaz Abbasi also and stated during cross-examination, as under:-
Haji Muhammad Azram (since dead) was sold to Nisar Ahmad Afzal (PW-10) and also to the appellants namely Raja Shahid Ahmad and Haq Nawaz Abbasi.
As per rules of the land Revenue manual the Mutation in transfer of ownership has defined in land Revenue Act 1967. As per Revenue law, before sanctioning of a Mutation by a Revenue Officer the ownership of the transferer is verified accordingly and then the statement of the transferor is recorded to effect that he has received the amount and his transferring his land in favor of transfree and the witnesses thereafter are bound to verify the Mutation proceeding accordingly and the signature and thumb impression are obtained by the transferer on the concerned register. The Mutation No.5442/1 is before me on the registered Jild Nos.76, 5387 to 5445 Mauza Rajer. As per record, the aforesaid procedure was followed.
As per record, there are four "vendees/mushtrian" in Mutation No.5442/1. In Column No.8 of the Mutation No.5442 names of four vendees are mentioned. As per record, there is no cutting on the name of vendees (emphasis supplied)
Saleem Raza, Naib Tehsildar (PW-5) also admitted during cross-examination, that the names of the appellants namely Raja Shahid Ahmad and Haq Nawaz Abbasi were mentioned in the relevant column of the Mutation No. 5442/1 as vendees and stated as under:
The original register Pert Sarkar pertaining to the Mauza Rajer containing Khasra No.5442/1 is before me. In column No.8 of pert sarkar the names of four vendors are mentioned. All the names of vendors have been shown without any cutting . (emphasis supplied)
In this manner, it was admitted by the various prosecution witnesses themselves that there was no evidence available on record that the names of the appellants namely Raja Shahid Ahmad and Haq Nawaz Abbasi were added in the Mutation No. 5442/1 and Mutation No. 5442 subsequently.
17. It is also an admitted fact that the Mutation No. 5442/1 and Mutation No. 5442 have not been cancelled to date . Nisar Ahmad Afzal (PW-10) also admitted that the Mutation No. 5442/1 and Mutation No. 5442 were intact and had not been set-aside. Nisar Ahmad Afzal (PW-10) during cross-examination, admitted as under:-
It is correct that I have never challenged the Mutation No.5442/1 Ple before the Civil Court.
The Mutation No.5442/1 has not reviewed by any authority. (emphasis supplied)
Similarly, Zulfiqar Muhammad Bazeed, CO (PW-8), the Investigating Officer of the case, admitted during cross-examination as under :-
It is in the record that Mutation No.5442/1 was sanctioned in the year 2015. As per my knowledge the Mutation No.5442/1 is still intact. It was not brought into my notice by the complainant that whether the complainant had challenged the above said Mutations before Revenue Authorities or not. (emphasis supplied)
Farhat Mahmood, Patwari (PW-7) also admitted during cross-examination, as under:-
It is correct that no application was made to rectify the Mutation No.5442/1.
Not only the Mutation No. 5442/1 and Mutation No. 5442 have not been cancelled to date but the subsequent sale mutations made regard to the said land have also not been assailed and are still intact. Nisar Ahmad Afzal (PW-10), the complainant of the case, admitted during cross-examination, as under:-
It is correct that out of 2142-Kanal 10-Marlas land measuring 1590-Kanals 14-Marlas has been transferred through six different Mutations in favor of "Future Development Company/ Developer of Housing Society". (emphasis supplied)
Farhat Mahmood, Patwari (PW-7) admitted during cross-examination, as under:-
Muhammad Almas Abbasi, Haq Nawaz and Raja Shahid accused persons sold their land about 1590-K and 11-M through different Mutations to different persons. These Mutations were incorporated by Malik Tariq Patwari, Sardar Shabir Ahmed Girdawar and Malik Javed Revenue Officer.
18. It is also a fact of the prosecution case that Nisar Ahmad Afzal (PW-10) made variant claims regarding the land which was mutated through the Mutation No. 5442/1 and Mutation No. 5442. In his statement before the learned trial court,Nisar Ahmad Afzal (PW-10) claimed that the land which was mutated through the Mutation No. 5442/1 and Mutation No. 5442 was actually sold by him to Haji Muhammad Azram (since dead) in the year 2003 in lieu of an agreement, however, when the said agreement failed, Haji Muhammad Azram (since dead) transferred the said land back to Nisar Ahmad Afzal (PW-10). During the course of the investigation as well as the trial no agreement as executed between Haji Muhammad Azram (since dead) and Nisar Ahmad Afzal (PW-10) was produced. Moreover, Zulfiqar Muhammad Bazeed, CO (PW-8), the Investigating Officer of the case, contradicted the said claim of Nisar Ahmad Afzal (PW-10) and stated during cross-examination as under:-
The complainant never took this version before me during investigation that Haji Muhammad Azram vendor transferred the land in his favor due to non fulfillment of some obligation in United Kingdom.
Nisar Ahmad Afzal (PW-10) also claimed that the Mutation No.5442/1 was a sale mutation, however, also admitted that he did not produce the said agreement to sell before the Investigating Officer of the case. Nisar Ahmad Afzal (PW-10) admitted during cross-examination as under:-
There was an agreement to sell with Haji Muhammad Azram prior to purchase of land through Mutation No.5442/1. I did not produce any agreement to sell during whole investigation. (emphasis supplied)
Then during the trial, Nisar Ahmad Afzal (PW-10) took the stance that he did not know the nature of the Mutation No. 5442/1 and stated as under:-
Qustion (sic) . Whether Mutation No.5442/1 P.1/1-6 is Mutation of sale.
Ans. I don't know whether the same is sale or not .
It is apparent that during the course of the trial, Nisar Ahmad Afzal (PW-10) made contradictory claims with regard to the consideration of the transfer of the land transferred through the Mutation No. 5442/1 and Mutation No. 5442 and aslo could not prove that he was the sole buyer of the land mutated through the Mutation No. 5442/1 and Mutation No. 5442.
19. With regard to the documents related to the litigation between the parties (Exh.PN to Exh.PX) as got exhibited by the learned Deputy District Public Prosecutor, a judgment or an order passed in a civil case is irrelevant but only to the extent if the existence of such a judgment or an order is in issue. The relevancy of any judgment, order or decree has been detailed in the Articles 54 to 58 of the Qanun-e-Shahadat, 1984. The relevant provisions of Articles 54 to 58 of the Qanun-e-Shahadat, 1984 are being reproduced under:-
JUDGMENTS OF COURTS OF JUSTICE WHEN RELEVANT
54. Previous judgments relevant to bar a second suit or trial:- The existence of any judgment, order or decree which by law prevents any Court from taking cognisance of a suit or holding a trial, is a relevant fact when the question is whether such Court ought to take cognisance of such suit or to hold such trial.
55. Relevancy of certain judgments in probate, etc., jurisdiction:- A final judgment, order or decree of a competent Court in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.
Such judgment, order or decree is conclusive proof--- that any legal character which it confers accrued, at the time when such judgment, order or decree came into operation; that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person; that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease; and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property.
56. Relevancy and effect of judgments, orders or decrees, other than those mentioned in Article 55:- Judgments, order or decrees other than those mentioned in Article 55 are relevant if they relate to matters of a public nature relevant to the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they state.
Illustrations
A sues B for trespass on his land, B alleges the existence of a public right of way over the land, which A denies.
The existence of a decree in favour of the defendant, in a suit by A against C for a trespass on the same land, in which C alleged the existence of the same right of way, is relevant, but it is not conclusive proof that the right of way exists.
57. Judgments, etc. other than those mentioned in Articles 54 to 56, when relevant:- Judgments orders or decrees, other than those mentioned in Articles 54, 55 and 56, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provision of this Order.
Illustrations
(a) A and B separately sue C for a libel which reflects upon each of them, C in each case says that the matter alleged to be libelous is true, and the circumstances are such that it is probably true in each case, or in neither.
A obtains a decree against C for damages on the ground that C failed to made out his justification. The fact is irrelevant as between B and C.
(b) A prosecutes B for adultery with C, A s wife.
B denies that C is A s wife but the Court convicts B of adultery.
Afterwards, C is prosecuted for bigamy in marrying B during A s lifetime C says that she never was A s wife.
The judgment against B is irrelevant as against C.
(c) A prosecutes B for stealing a cow from him, B is convicted. A afterwards sues C for the cow, which B had sold to him before his conviction. As between A and C, the judgment against B is irrelevant.
(d) A has obtained a decree for the possession of land against B. C, B s son, murders A in consequence.
The existence of the judgment is relevant, as showing motive for a crime.
(e) A is charged with theft and with having been previously convicted of theft. The previous conviction is relevant as a fact in issue.
(f) A is tried for the murder of B. The fact that B prosecuted A for libel and that A was convicted and sentenced is relevant and under Article 21 as showing the motive for the fact in issue.
58. Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved:- Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Article 54, 55 or 56, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.
On the touchstone of the Articles 54 to 58 of the Qanun-e-Shahadat, 1984, the judgments and orders related to the litigation between the parties (Exh.PN to Exh.PX) were not at all relevant for proving the charge against the appellants in the instant case.
20. It is a well-established principle of administration of justice in criminal cases that a finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards the guilt of the accused should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilities cannot take the place of proof. Considering all the above circumstances, this Court entertains serious doubt regarding the involvement of the appellants namely Raja Shahid Ahmad son of Bashir Ahmad, Haq Nawaz Abbasi son of Khuda Daad Khan, Aurangzeb son of Umar Khan and Malik Muhammad Safdar son of Khan Bahadur, in the present case. It is a settled principle of law that for giving the benefit of 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 zeal to punish an offender even in derogation or violation of the law would blur the distinction between arbitrary decisions and lawful judgments. No doubt, the duty of the courts is to administer justice; but this duty is to be performed in accordance with the law and not otherwise. The mandatory requirements of the law cannot be ignored by labelling them as technicalities in pursuit of the subjective administration of justice. One guilty person should not be taken to task at the sacrifice of the very basis of a democratic and civilized society, i.e., the rule of law. Tolerating acquittal of some guilty, whose guilt is not proved under the law is the price which the society is to pay for the protection of their invaluable constitutional right to be treated in accordance with the law. Otherwise, every person will have to bear the peril of being dealt with under the personal whims of the persons sitting in executive or judicial offices, which they in their own wisdom and subjective assessment consider good for the society. The august Supreme Court of Pakistan in the case of Muhammad Mansha v. The State (2018 SCMR 772) has enunciated the following principle:
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 Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749).
Reliance is also placed on the judgment of the august Supreme Court of Pakistan Najaf Ali Shah v. The State (2021 SCMR 736) in which it has been observed 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 Ayub 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.
21. For what has been discussed above, the Criminal Appeal No.525 of 2024 lodged by the appellant namely Raja Shahid Ahmad son of Bashir Ahmad and the Criminal Appeal No.526 of 2024 lodged by the appellant namely Haq Nawaz Abbasi son of Khuda Daad Khan and the Criminal Appeal No.520 of 2024 lodged by the appellant namely Aurangzeb son of Umar Khan and the Criminal Appeal No.534 of 2024 lodged by the appellant namely Malik Muhammad Safdar son of Khan Bahadur (convicts) are allowed and the convictions and sentences of the appellants namely Raja Shahid Ahmad son of Bashir Ahmad, Haq Nawaz Abbasi son of Khuda Daad Khan, Aurangzeb son of Umar Khan and Malik Muhammad Safdar son of Khan Bahadur (convicts) awarded by the learned Sessions Judge/Special Judge Anti-Corruption, Rawalpindi Division, Rawalpindi, vide judgment dated 13.06.2024 are hereby set-aside . The appellants namely Raja Shahid Ahmad son of Bashir Ahmad, Haq Nawaz Abbasi son of Khuda Daad Khan, Aurangzeb son of Umar Khan and Malik Muhammad Safdar son of Khan Bahadur are ordered to be acquitted by extending them the benefit of doubt. The appellants namely Raja Shahid Ahmad son of Bashir Ahmad, Haq Nawaz Abbasi son of Khuda Daad Khan, Aurangzeb son of Umar Khan and Malik Muhammad Safdar son of Khan Bahadur are in custody and are ordered to be released forthwith if not required in any other case.
JK/S-58/L Appeals allowed.