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Petitioner: Rashid Mehmood VS Respondent: State Honorable Justice Iqbal Hameedur Rahman, C.J and Ameer Muhammad Khan Waji-ur-Rehman (Swati) and Saad Abbasi
CITATION: 2026 YLR 2182 CASE: 2026F4003 TITLE: Rashid Mehmood VS State Honorable Justice Iqbal Hameedur Rahman, C.J and Ameer Muhammad Khan Waji-ur-Rehman (Swati) and Saad Abbasi COURT: FEDERAL-SHARIAT-COURT YEAR: 2026 JOURNAL: YLR ============================================================
2002 Y L R 2026 Y L R 2182 [Federal Shariat Court] Before Iqbal Hameedur Rahman, C.J and Ameer Muhammad Khan, J Rashid Mehmood ---Appellant Versus The State and another---Respondents Criminal Appeals Nos. 04-P, 05-P, Criminal Revisions Nos. 02-P and 03-P of 2025, decided on 19th May, 2026. (a) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)--- ----S. 17(4)---Penal Code (XLV of 1860), Ss. 302(b), 460, 148 & 149---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Haraabah, qatl-i-amd, lurking house-trespass or house-breaking by night, rioting armed with deadly weapons and unlawful assembly---Appreciation of evidence---Ocular account not proved---Masked accused not identified by eye-witnesses at the spot---Accused were charged with committing murder of two inmates of a house by firing and looting mobile phones/gold ornaments---Prosecution relied upon the daughter-in-law and daughter of the deceased, both residents of the house, who stated that three culprits entered the house, one wearing a mask and having curly hair, one having a half beard and one of slim build/normal height---During the occurrence the masked culprit was allegedly grappling with the female deceased, while the half-bearded culprit was grappling with the male deceased---Shots were also fired, the female deceased died at the spot and the male deceased was shifted to hospital---Complainant/daughter claimed that in hospital her injured father stated before the police that, during the scuffle, the mask of the curly-haired culprit slipped/was removed for some time and he saw that the culprit was his maternal nephew/ accused-appella nt---Record showed that the said witness herself could not identify the accused at the spot as the culprit was masked and she had not charged him in her statement recorded on the day of occurrence; she also stated that her statement was recorded only once---Ocular account, therefore, did not furnish safe basis for conviction---Prosecution failed to prove its case beyond reasonable doubt---Appeal against conviction was allowed accordingly. (b) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)--- ----S. 17(4)---Penal Code (XLV of 1860), Ss. 302(b), 460, 148 & 149---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qanun-e-Shahadat (10 of 1984), Art. 46---Haraabah, qatl-i-amd, lurking house-trespass or house-breaking by night, rioting armed with deadly weapons and unlawful assembly---Appreciation of evidence---Dying declaration---Fitness of declarant to make statement not medically established---Accused were charged with committing murder of two inmates of a house by firing and looting different articles---Statement recorded by the Officer Incharge Investigation under S. 161, Cr.P.C. was relied upon as dying declaration of the male victim, who died later---Medical Officer, who examined the victim on his admission in the hospital, stated that the injured was conscious but was not oriented to space, time and place, and that he did not charge anybody before the police in his presence---Prosecution did not produce the surgeon who treated the injured, the surgical notes or the bed-head ticket to establish his condition at the time when his statement was allegedly recorded---Investigating Officer admitted that he had earlier visited the hospital twice or thrice but did not record the statement because the condition of the injured was serious; he also admitted that he did not obtain any certificate from the Medical Officer regarding fitness of the injured to make the statement---Medical evidence available on record indicated that the victim's condition remained deteriorated from the very first day of his admission till his death---Capability of the deceased to make the alleged statement was, therefore, unsupported by medical evidence and the dying declaration could not safely be relied upon---Prosecution failed to prove its case beyond reasonable doubt---Appeal against conviction was allowed accordingly. (c) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)--- ----S. 17(4)---Penal Code (XLV of 1860), Ss. 302(b), 460, 148 & 149---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qanun-e-Shahadat (10 of 1984), Art. 164---Haraabah, qatl-i-amd, lurking house-trespass or house-breaking by night, rioting armed with deadly weapons and unlawful assembly---Appreciation of evidence---Video clip/USB---Mode of proof---Video not admitted or proved in accordance with law---Accused were charged with committing murder of two inmates of a house by firing and looting different articles---Daughter-in-law of the deceased claimed that, after two days of the occurrence, she went to the hospital to inquire about her injured father-in-law, who made a statement before the police implicating the accused-appellant, and that she recorded such statement on her mobile phone and produced the video before the Trial Court in the shape of USB---Defence objected that the USB had not been produced during evidence, was inadmissible and had not been supplied to the accused---Trial Court neither decided the objection nor passed any order admitting the USB into evidence--- Investigating Officer stated that no video was prepared in his presence and no such video was produced before him during investigation---Trial Court did not view the video in open Court, take notes thereof in accordance with law or provide an opportunity of cross-examination to the defence---Contents of the video, therefore, could not be read in evidence or used against the accused---Prosecution failed to corroborate the making of statement by the deceased before the police---Trial Court also failed to exercise its powers to take such relevant electronic evidence/document in accordance with law, if it was essential for the just decision of the case---Video was inadmissible in evidence---Prosecution failed to prove its case beyond reasonable doubt---Appeal against conviction was allowed accordingly. (d) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)--- ----S. 17(4)---Penal Code (XLV of 1860), Ss. 302(b), 460, 148 & 149---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Haraabah, qatl-i-amd, lurking house-trespass or house-breaking by night, rioting armed with deadly weapons and unlawful assembly---Appreciation of evidence---Recovery of weapon of offence and crime empties---Contradiction regarding pistol number and delayed forwarding of empties to Forensic Science Laboratory---Accused were charged with committing murder of two inmates of a house by firing and looting different articles---Investigating Officer claimed that consequent to disclosure made by the accused while in custody, he recovered a 9 mm pistol without number loaded with three live rounds---He had also collected a spent bullet and crime empties from the place of occurrence and sealed them into parcels---Moharrir/Head Constable admitted that the parcels containing the pistol and empties were sent together to the Forensic Science Laboratory and that the empties had not earlier been sent for safe custody---Forensic Science Laboratory report also showed that the pistol and empties were received together---Defence pointed out that while the Investigating Officer had claimed recovery of a numberless 9 mm pistol, the pistol mentioned in the Forensic Science Laboratory report bore No. 45207158---Said contradiction regarding the weapon of offence, coupled with the failure to send the empties to the Forensic Science Laboratory forthwith, deprived the ballistic report of evidentiary value---Recovery and Forensic Science Laboratory report could not be used as corroborative evidence---Prosecution failed to prove its case beyond reasonable doubt---Appeal against conviction was allowed accordingly. (e) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)--- ----S. 17(4)---Penal Code (XLV of 1860), Ss. 302(b), 460, 148 & 149---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Haraabah, qatl-i-amd, lurking house-trespass or house-breaking by night, rioting armed with deadly weapons and unlawful assembly---Appreciation of evidence---Recovery of stolen gold ornaments---Articles neither sealed nor certified as gold---Identification proceedings lacking sanctity---Accused were charged with committing murder of two inmates of a house by firing and looting different articles---Investigating Officer claimed that the accused produced one gold necklace and two gold earrings from a room, which were taken into possession and later produced before the Illaqa Magistrate for identification by the daughter of the deceased---Statement of Judicial Magistrate showed that the ornaments so produced were not in a sealed parcel, nor was it mentioned that he himself opened any sealed parcel for purposes of identification---Investigating Officer admitted that the ornaments were not sealed into a parcel at the spot and that he did not obtain any certificate from a jeweller that the ornaments were of gold---No sanctity could, therefore, be attached to the identification of such property as stolen property---Manner of recovery and failure to take the ornaments into possession in accordance with law gave rise to manipulation and doubt---Prosecution failed to prove its case beyond reasonable doubt---Appeal against conviction was allowed accordingly. (f) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)--- ----S. 17(4)---Penal Code (XLV of 1860), Ss. 302(b), 460, 148 & 149---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qanun-e-Shahadat (10 of 1984), Art. 22---Haraabah, qatl-i-amd, lurking house-trespass or house-breaking by night, rioting armed with deadly weapons and unlawful assembly---Appreciation of evidence---Identification of accused---No features mentioned in first information report or S. 161, Cr.P.C. statements---No role assigned in identification parade---Disclosure of co-accused before police inadmissible---Accused were charged with committing murder of two inmates of a house by firing and looting different articles---So far as accused-appellants "A" and "J" were concerned, eye-witnesses had not given features of the culprits either in the first information report or in their statements recorded under S. 161, Cr.P.C.---When the eye-witnesses stated features of the culprits during examination-in-chief, their statements were duly confronted with their previous statements, where such details were not recorded except that the culprits were young persons---Identification parade of accused "A" was conducted in the District Jail and the eye-witnesses identified him as one of the culprits; however, no witness assigned any role to him either during the occurrence or at the time of identification---In absence of prior description and role attribution, such identification did not pass the test acceptable to ordinary prudence---As to accused "J", there was no evidence against him except disclosure by accused "RM" before the police as his companion, which by itself was inadmissible in evidence---Prosecution witnesses merely stated that, during investigation, accused "J", "I", "B" and "N" were found involved, but no evidence was produced to show how they were connected with the offence---Prosecution failed to prove its case beyond reasonable doubt---Appeal against conviction was allowed accordingly. Waji-ur-Rehman (Swati) and Saad Abbasi for Appellants. Atif Ali Jaddon for the Complainant/Petitioner. Jawad Ali, Assistant Advocate General, Khyber Pakhtunkhwa for the State. Date of hearing: 7th April, 2026. Judgment Ameer Muhammad Khan, J .--- Rashid Mehmood, Asad and Javed convicts challenged their conviction and sentence awarded to them vide judgment dated 28.11.2024 passed in the Court of learned Additional Sessions Judge, Abbottabad at Havelian, in case FIR No.181 of 2020, registered at police station Nara, under Section 17(4) of The Offences Against Property (Enforcement of Hudood) Ordinance, (VI) of 1979, ( The Ordinance ) read with Sections 324 and 460 of The Pakistan Penal Code, 1860 (XLV of 1860) ( The Penal Code ) and Section 15-AA KPK wherein appellant Rashid Mehmood was convicted for lurking house trespass by night as a member of an unlawful assembly and sentenced to 14 (fourteen) years RI with fine of Rs.100,000/- and in default the payment thereof to further undergo 03 (three) months SI under Section 458 of The Penal Code read with Sections 148/149 of The Penal Code, besides that he was convicted for the commission of murder of Mst. Amraiza Jan and Muhammad Zaman co-jointly and sentenced to life imprisonment on each count with fine of Rs.500,000/- and in default the payment thereof to further undergo 06 (six) months SI. Appellant Rashid Mehmood has also been sentenced to imprisonment of 03 (three) years under Section 15-KP Arms Act, 2013. Appellant Asad was convicted for co-jointly commission of murder and sentenced to 10 (ten) years RI with fine of Rs.100,000/- and in default the payment thereof to further undergo 03 (three) months SI, under Sections 396/460 of The Penal Code read with Sections 148/149 of The Penal Code and appellant Javed for the same offences was sentenced to 10 (ten) years RI with fine of Rs.100,000/- and in default the payment thereof to further undergo 03 (three) months SI. All the said appellants/convicts were benefited with Section 382-B of The Code of Criminal Procedure, (Act V of 1898)
( The Code ) . 2. The brief facts of the case are that PW.6 Maria Zeb lodged the FIR Ex.PA regarding the occurrence taken place on 26.06.2020 at about 01:30 a.m, on the same night at about 03:15 a.m vide her fard-e-bayan/murasila recorded by PW.11 Fazal-ur-Rehman Inspector/SHO P.S Nara against unknown persons stating therein that on 26.06.2020 at night time, she along with Neelum Zaman PW, Saad son of Bashir aged about 13/14 years were sleeping in one room whereas her father-in-law Muhammad Zaman aged about 65 years and mother-in-law Amraiza Jan aged about 55 years (both deceased) were sleeping in their respective room. At about 01:30 a.m in the night she got up on the noise, came outside and saw that two amongst three young male were quarrelling with her father-in-law and mother-in-law and were manhandling, someone standing near them made fire shots, hitting her mother-in-law Amraiza Jan on the chest, who fell down on the ground and succumbed to the injury at the spot whereas her father-in-law also received firearm injury on his chest. Further stating that she did not scrutinize the losses in the room, however, the articles were found in a scattered position. A mobile telephone Nokia 216 bearing SIM No. 0308- 5644338 and that of her mother-in-law Nokia Mobile 3310 bearing SIM No. 0303-5625158 were snatched and taken away by the culprits. The occurrence was witnessed by her and Neelum Zaman PW. Thereafter, the appellants/accused were arrested and after completion of formalities they were finally charge sheeted on 14.03.2022 whereby they denied the charge and claimed trial. 3. The prosecution evidence was summoned and recorded by the learned trial Court. The gist of prosecution witnesses is as under:- PW.1 Zahid Khan MHC recorded the FIR on the basis of murasila. PW.2 Shabeer Ahmed IHC, a witness of the recovery memo. Ex.PW.2/1 regarding one green colour mask and a Q-mobile bearing SIM No.0345-0477547. PW.3 Aurangzeb received the dead body of Muhammad Zaman deceased. PW.4 Naeem Akhtar, is the marginal witness of the recovery memos Ex.PW.4/1, Ex.PW.4/2 and Ex.PW.4/3 regarding taking into possession of blood through cotton from the places of murder of two deceased persons, that of Sikka Goli, crime empties of 9mm and 30 bore pistol, electric bulb, and those of last worn clothes of Amraiza Jan deceased and those of Muhammad Zaman deceased. PW.5 Fiaz Khan, is the witness of recovery of 9mm pistol from accused Rashid along with three live rounds and also the recovery of golden ornaments comprising of one chain (locket) and two Jhumkay and attested the memo. of said recovery Ex.PW.5/1. PW.6 Maria Zeb, is the first informer, eye-witness of the occurrence, reiterated the story contained in the mursaila Ex.PA/1 and gave detail of the missing articles comprised of gold ornaments two earrings, one locket of her mother-in-law beside cash amount of Rs.28,000/-. This PW visited the injured Muhammad Zaman in the hospital, who disclosed the name of accused Rashid. She also recorded a video of making of said statement by the injured Muhammad Zaman to the police. She also participated in an identification test parade on 13.10.2020 and identified Asad accused. PW.7 Neelum Zaman, is also the eye-witness of the occurrence and witness of the disclosure of the name of Rashid Mehmood by her father. On 13.10.2020 she participated in an identification test parade and identified Asad accused. PW.8 Sardar Faisal MHC, got transmitted the case property to the Forensic Science Libratory. PW.9 Jamshed constable, transmitted the case property to the Forensic Science Laboratory. PW.10 Dr. Mariyam Riaz PGT, Ayub Teaching Hospital District Abbottabad, conducted postmortem examination on the dead body of Amraiza Jan deceased. PW.11 Fazal-ur-Rehman Inspector recorded the statement of Maria Zeb on 26.06.2020 at about 03.15 a.m in the form of murasila Ex.PA/1 and forwarded the same to the police station for registration of the FIR. PW.12 Farooq Khan Inspector prepared the report under Section 173 of The Code. PW.13 Asim No. 1328 transmitted the murasila on 26.06.2020 to the police station for registration of FIR. PW.14 Dr.Aamir Nawaz Khan on 26.06.2020 at about 02:45 a.m medically examined Muhammad Zaman in an injured condition in the DHQ hospital Abbottabad and found firearm injuries. On 20.07.2020 conducted postmortem examination on the dead body of Muhammad Zaman deceased. PW.15 Mehmood Khan, this PW as Madd-e-Moharrir at PS Nara got transmitted the case property to the Forensic Science Laboratory. PW.16 Muhammad Bashir SI prepared supplementary challan under Section 173 of The Code against accused Javed and Asad. PW.17 Shiraz No.602 received injury sheet, inquest report and dead body of Amraiza Jan and escorted to TDH hospital for postmortem examination. PW.18 Gulvaiz Khan SI conducted the basic investigation of the instant case. PW.19 Mr. Zeeshan Gul, Civil Judge-cum-Judicial Magistrate, on 13.10.2021 supervised the identification test parade vide his report Ex.PW.19/2, wherein Asad accused was identified as culprit. PW.20 Ghafoor Khan SDPO also conducted the investigation of this case, collected call data record of Rashid Mehmood accused, recovered the weapon and the stolen articles and also proceeded for arrest of the accused. He also recorded statement of Muhammad Zaman, who was in an injured condition in Ayoub Teaching Hospital which has been dealt with as dying declaration Ex.PW.20/28. PW.21 Ghulam Naz constable is the witness of the recovery memo. of Rs.2,000/- effected from Asad accused. PW.22 Hayat Khan Judicial Magistrate Havelian on 28.09.2020 supervised the identification of case property comprised of golden ornament and prepared report Ex.PW.22/1. The learned APP gave up PW Irshad ASI being unnecessary on 31.05.2023 and closed the prosecution evidence on 02.04.2024. 4. After closure of the prosecution evidence, the statements of the appellants/accused were recorded under Section 342 of The Code wherein they denied the incriminating part of the prosecution evidence put to them and professed their innocence. They neither opted to be examined on oath under Section 340(2) of The Code nor produced defence evidence. Thereafter they were convicted and sentenced vide impugned judgment dated 28.11.2024. Hence, these appeals. 5. Learned counsel appearing on behalf of the appellant/accused Rashid Mehmood contended that the prosecution failed to prove the charge against the accused and he has been convicted and sentenced by the learned trial Court on the basis of misreading and non-reading of evidence. There is no admissible evidence against appellant/accused Rashid Mehmood. He has been nominated without any source at a belated stage after consultation and deliberation. Further contended that the dying declaration in the form of a statement recorded under Section 161 of The Code attributed to Muhammad Zaman deceased is a manipulated statement, not proved on record and violative of all norms of prudence. The prosecution failed to prove on record that Muhammad Zaman was capable to make a statement rather medical evidence suggests that on the very first day he was not well-oriented and he got deteriorated day by day. The prosecution failed to adduce his record of surgical operations/notes prepared by the surgeons nor any surgeon doctor has been produced in evidence. Further contended that the recoveries from Rashid accused are manipulated and bogus were never sealed into parcels, nor the articles have been exhibited in the prosecution evidence. Therefore, the case of the prosecution is not proved against appellant Rashid and the impugned judgment is based on surmises and conjectures. 6. Learned counsel appearing on behalf of appellant/accused Asad categorically contended that no features whatsoever were given in the first information report or in the supplementary statements of the PWs and that the identification test parade report is manipulated by the police. The identifying PWs did not assign any role to the appellants. Further contended that the learned trial Court convicted and sentenced without appreciation of evidence and that appellant Javed has been convicted and sentence without any discussion, evaluation or appreciation of evidence. Further contended that the petitions for enhancement of sentence are not well-founded and vehemently opposed the same. Finally contended that the prosecution has miserably failed to prove the charge against the appellant. 7. On the other hand, learned State Counsel on behalf of A.G, KP with the assistance of the learned counsel for the complainant/petitioner vehemently opposed the contention raised by learned counsel for the appellants and contended that the prosecution has proved the charge against the appellants and supported the impugned judgment advancing that the same is well-founded and that no chain of the evidence has been found disconnected and finally requested for dismissal of the appeals. 8. Whereas learned counsel for the complainant/petitioner contended that the revision petitions filed against the appellants are well-founded and no mitigating circumstance was available to the learned trial Court. Therefore, requested that when the convicts/appellants were found connected with the commission of crime, they were entitled to be given major sentence. 9. Arguments heard. Record Perused. 10. The case of the prosecution hinges upon the following pieces of evidence:- i. Ocular account ii. Dying declaration iii. Identification test parade iv. Medical evidence v. Recoveries vi. Call Data Records 11. The date, time and the place of occurrence has been stated as midnight of 25/26.06.2020 at about 01.30 a.m, the residential house of the two deceased Muhammad Zaman and Amraiza Jan situated in village Bagh Barri Dewal, District Abbottabad, has not been contested by the defence. The star witnesses of the prosecution are PW.6 Maria Zeb daughter in law and PW.7 Neelum Zaman daughter of the deceased persons, admittedly both residents of the house of occurrence, they advanced the ocular account regarding the commission of this occurrence by three culprits one wearing mask having curly hairs, second with half beard (Buchni Dhari) and the third one having slim body with a normal height. The one wearing the mask was quarrelling with Amraiza Jan deceased whereas the half beard person was quarrelling with Muhammad Zaman. During the commission of occurrence, the culprits fired shots upon Muhammad Zaman and Amraiza Jan, both received injuries, Amraiza Jan succumbed to the injuries at the spot whereas Muhammad Zaman was shifted in injured condition to the DHQ hospital, Abbottabad by the people who gathered at the spot after the occurrence. A Nokia mobile 216 of Muhammad Zaman and Nokia 3310 of Amraiza Jan were also taken away by the culprits. The police reached at the spot at about 03:15 a.m. The said PW.6 Maria Zeb stated the occurrence to the police which was reduced into writing in the shape of report Ex.PA/1, the very basis of the FIR against unknown culprits. Thereafter, Maria Zeb the first informer after searching her house found that gold ornaments consisting of two earrings and one locket (pendent) of…
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