2024 M L D 212
[Peshawar (D.I. Khan Bench)]
Before Ishtiaq Ibrahim and Muhammad Faheem Wali, JJ
ARSHAD ALI---Appellant
Versus
The STATE and others---Respondents
Criminal Appeal No. 3-D with Criminal Miscellaneous No. 2-D of 2021, decided on 17th May, 2022.
(a) Penal Code (XLV of 1860)---
----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Carrier of the murasila not produced---Accused was charged for committing murder of the brother of the complainant by firing---In the present case, neither the murasila was signed/thumb impressed by the complainant, nor Constable, who allegedly brought the murasila to the police station, was cited in the calendar of witnesses---Said fact had created a serious dent in the prosecution case---Sub-Inspector stated before the Court that he transmitted murasila to the police station through Constable---Moharrir also stated that actually the murasila was brought by said Constable, but that alone was not sufficient to believe that actually the murasila (not signed or thumb impressed) was brought to the police station by said Constable, when his name did not figure in the calendar of witnesses, what to talk of his appearance in the witness box---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal against conviction was accordingly allowed.
Javed and 2 others v. The State 2020 YLR 311 rel.
(b) Penal Code (XLV of 1860)---
----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Ocular account and medical evidence---Contradictions---Accused was charged for committing murder of the brother of the complainant by firing---Complainant narrated almost same story as mentioned in the FIR, however, he added that they identified the accused in the light of a bulb lit at that moment---Stance of the complainant was that at the time of occurrence, the deceased was ahead of them, who was fired at by the accused from front, but his deposition was totally in conflict with the medical evidence because the concerned Medical Officer noted a lacerated wound over scalp, an entry wound on the back of head with its exit on left side of nose with visible brain matter---If the accused had fired upon the deceased from front side, surely all the bullets should have landed on front of the deceased, which was not the case here---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal against conviction was accordingly allowed.
Mansab Ali v. The State 2019 SCMR 1306 rel.
(c) Penal Code (XLV of 1860)---
----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Presence of the complainant at the time and place of occurrence not proved---Accused was charged for committing murder of the brother of the complainant by firing---Record showed that arranging transport for shifting the deceased then injured to the hospital was not mentioned in the FIR---Even the complainant while testifying before the Court in his examination-in-chief did not mention the source of transportation of the dead body from the spot to the hospital, however, he stated during cross-examination that the dead body was transported to the hospital in a pickup---One Mr. "R" was the driver of pickup through which the injured was transported to the hospital and said Mr. "R" was attracted there because they heard fire shots, however, said Mr. "R" had not been cited as witness in the present case to support stance of the complainant---Astonishingly, the dead body of the deceased was received by one Mr. "M" at the hospital after postmortem examination, but said Mr. "M" was abandoned by the prosecution---Said witness stated that the distance between the place of occurrence and Masjid was about 6/7 paces, which was negated by the Investigating Officer, who stated that the Masjid was far away from the place of occurrence, that's why he had not noted/shown the same in the site plan---Complainant further testified that blood was oozing from the body of injured which might had stained the cot as well, however, that stance was not supported by the Investigating Officer, who stated that he did not remember that whether the hands of the complainant and the witness were besmeared with the blood of deceased---Complainant stated that there was an electric bulb installed on western side of the wall of a shop, however, he admitted that he had not stated in his initial report about the installation of bulb on the said shop---Even otherwise, stance of the complainant was negated by other witness, who stated that when the police reached the spot the bulb was lit, the Police Officials later brought a search light during spot inspection and the bulb was not lit at that time---Even otherwise, the bulb was produced by witness in pieces---Scanning of statement of said witness showed that it remained a mystery that where the deceased breathed his last---Keeping in view the alleged motive, the complainant was at the mercy of the accused, but he was not fired at, rather as per stance of the complainant, before firing the accused raised lalkara at his brother---Accused sparing the complainant to create evidence against himself was nothing but a mystery in itself because the accused had every opportunity to settle the score keeping in view the alleged motive---In view of the said situations, it was concluded that the complainant was not present at the time of occurrence and the events of the incident narrated by him were not in line with the story mentioned in the FIR---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal against conviction was accordingly allowed.
(d) Penal Code (XLV of 1860)---
----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Eye-witness abandoned by the prosecution---Effect---Accused was charged for committing murder of the brother of the complainant by firing---In the present case, other alleged eye-witness was abandoned by the prosecution---Presumption would be that, had he been produced, he would have not supported the prosecution case---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal against conviction was accordingly allowed.
(e) Penal Code (XLV of 1860)---
----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Defective investigation---Accused was charged for committing murder of the brother of the complainant by firing---Investigating Officer stated that Constable, who brought the post-mortem documents and garments of the deceased was not examined under S. 161, Cr.P.C---Said witness admitted that name of said Constable was not mentioned in the calendar of witnesses---Admittedly, Investigating Officer had not recorded the statement of any Police Official who took the crime articles including the alleged recoveries to the Forensic Science Laboratory---Admittedly, Investigating Officer had not verified the status of ownership of any shop where bulb was installed---Investigating Officer did not remember that who took the empties and pistol to the Forensic Science Laboratory---Admittedly, pistol was recovered on 31.08.2017, whereas it was received in the Forensic Science Laboratory on 14.09.2017, however, Investigating Officer had not annexed any documents on file regarding safe custody of the said articles---Investigating Officer admitted that he did not annex the daily diary regarding his departure and arrival to the police station---In view of such discrepancies, such statement could not be made the basis to sustain conviction on a capital charge---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal against conviction was accordingly allowed.
(f) Penal Code (XLV of 1860)---
----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of pistol from the possession of the accused---Doubtful---Accused was charged for committing murder of the brother of the complainant by firing---Regarding recovery of pistol, marginal witnesses i.e. Head Constable and SHO were examined---Head Constable during cross-examination admitted that except SHO, the Investigating Officer had not associated any other notable person from the area in connection with recovery, but nothing of the sort was forthcoming from the statement of said witness---Similarly, the other marginal witness to the recovery stated that he made entry in daily diary of the even date but the same was not available on the judicial file---During course of cross-examination of said witness, the parcel was de-sealed on the request of defence counsel and some sharp object on the body beside the trigger was found on the pistol allegedly recovered from the accused, but astonishingly as per recovery memo .30 bore pistol without number having fit magazine containing five rounds of .30 bore was allegedly recovered from the accused---In that view of the matter, recovery of pistol from the accused was disbelieved---Such type of pistols could easily be procured and after making some fire shots, the same along with empties were sent to the Forensic Science Laboratory to make the prosecution case a success---Needless to mention that why the empties allegedly recovered from the spot were not sent to the Forensic Science Laboratory, rather same were sent to the Forensic Science Laboratory after arrest of the accused---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal against conviction was accordingly allowed.
(g) Penal Code (XLV of 1860)---
----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Safe custody of the recovered crime empties and pistol not proved---Accused was charged for committing murder of the brother of the complainant by firing---Record showed that the empties were collected on 10.8.2017, but the same were not sent to the Forensic Science Laboratory after they were recovered---Even there was nothing on the record which could suggest that the same remained in safe custody till those were received in the Forensic Science Laboratory on 14.9.2017 along with .30 bore pistol allegedly recovered on 31.8.2017, on the date at which the accused was arrested---In that view of the matter, the positive Forensic Science Laboratory report could not be taken into consideration for sustaining conviction---Besides, when the ocular account of the prosecution case had been disbelieved, mere recovery of the pistol and crime empties, would not be sufficient for recording conviction---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal against conviction was accordingly allowed.
Mst. Sughra Begum and another v. Qaisar Pervez and others 2015 SCMR 1142 rel.
(h) Penal Code (XLV of 1860)---
----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of incriminating material---Inconsequetial---Accused was charged for committing murder of the brother of the complainant by firing---Recovery of blood from the spot, the last worn blood-stained garments of the deceased and unnatural death of the deceased with firearm as per postmortem report, proved the factum of murder of the deceased, but never told the name(s) of the culprit/killer---Such pieces of evidence were always considered as corroborative pieces of evidence and were taken along with direct evidence and not in isolation---Record showed that there was no eye-witness to be relied upon, then there was nothing, which could be corroborated by the recovery---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal against conviction was accordingly allowed.
Riaz Ahmed's case 2010 SCMR 846; Ijaz Ahmed's case 1997 SCMR 1279; Asadullah's case PLD 1971 SC 541 and Saifullah v. The State 1985 SCMR 410 rel.
(i) Penal Code (XLV of 1860)---
----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Motive not proved---Accused was charged for committing murder of the brother of the complainant by firing---Motive for the offence was stated to be a dispute over the landed property---So far as motive was concerned, it was always considered a double-edged weapon which cut both sides---Motive could be a reason for involvement of an accused and the same could be a reason for false implication of an accused---In the present case, although motive was stated to be a dispute over landed property, but the evidence in that respect was deficient, therefore, same could not be taken into consideration---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal against conviction was accordingly allowed.
Saleemullah Khan Ranazai for Appellant.
Adnan Ali, Assistant A.G. for the State.
Muhammad Ismail Alizai for Respondent.
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