Khadim Hussain vs State S — 2024 YLR 2247 FEDERAL-SHARIAT-COURT

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Khadim Hussain VS State S. 17(4)---Penal Code (XLV of 1860), Ss. 202 & 412---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Harrabah, intentional omission to give information of offence by person bound to inform, dishonestly receiving property stolen in the commission of dacoity---Appreciation of evidence---Material witness abandoned by the prosecution---Effect---Accused were charged for committing murder of the brother and nephew of the complainant during dacoity---Allegedly, the accused snatched mobile sets from the deceased---None of the mobile sets were recovered from the possession or on the pointation of any of the three accused, however, witness, who allegedly produced and handed over the alleged stolen mobile of deceased, stated that the said mobile set was given to him by respondent---Being a material witness it was necessarily to examine said witness, but the prosecutor and counsel for the complainant by filing joint statement before the Trial Court gave him up on the plea that he had been won over---There was nothing on the record to show that the said witness had been won over, therefore it could be said that he did not come forward to support the prosecution case in that regard before the Trial Court---Mere declaration of the prosecutor would not be enough to abandon such a material witness---If the witness, after appearance, did not support the prosecution, he could be declared hostile having been won over and subjected to cross-examination by the prosecutor to find out the truth, but the prosecution did not adopt such procedure for reasons best known to it---In such view of the matter, an adverse inference in that regard could be drawn, under Illustration (g) to Art. 129 of the Qanun-e-Shahadat 1984, against the prosecution---Even otherwise it was rather difficult to believe that accused after committing the offence had given the alleged mobile set of deceased to the said witness---Said witness, who was found in possession of stolen mobile set, claimed that he handed over the mobile through his son to the Investigating Officer on 07.08.2018, at the door of his house when police party headed by Investigating Officer arrived for the purpose of raiding his house for recovery of the alleged mobile set---Investigating Officer stated that he knocked the door of the house of said witness and accordingly his son came out from the house and his son was asked to call his father but the son responded that his father was not available, and when he asked that his father had mobile belonging to deceased to which he replied that the same was available in the house and he produced the same---Such stance had been belied by marginal witness to the recovery memo. who that the Investigating Officer took into possession the mobile phone of the deceased presented by witness in my presence as well as in the presence of other marginal witness---In such view of the matter, said witness was deserved to be dealt with in accordance with the law by associating him with the investigation for offence punishable under S.411 or under S.412, P.P.C---Even otherwise neither any proof relating to the ownership of the deceased persons over the alleged mobile sets had been produced nor the alleged mobile sets on recovery were identified through the complainant party---This Fact had also been admitted by Investigating Officer in his evidence---Thus the recovery of the alleged mobile sets was not helpful to the prosecution---Appeal against conviction was accordingly allowed.

Khadim Hussain vs State S — 2024 YLR 2247 FEDERAL-SHARIAT-COURT

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