Law: Penal Code (XLV of 1860)

Section: 302(b),148,149

(a) Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 148 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Chance witnesses--- Non-availability of justification for presence of witnesses at the time of preparing inquest report---Scope---Accused was charged that he and co-accused persons while armed with deadly weapons made firing upon the complainant party, brother of complainant was hit and died---Motive behind the occurrence was dispute over passage and water course---Record showed that the incident took place at 3.45 p.m. and the incident was reported to the police at 5.30 p.m. on the same day---Prosecution had claimed that the inquest report was prepared at 5.30 p.m. on the day of incident---Investigating Officer had mentioned the names of the persons who identified the dead body of deceased---Inquest report was not signed by any of the eye-witnesses or the complainant---Complainant and a witness had deposed that they were present at the police station when the inquest report of the dead body was prepared---If the complainant and witness were present at the police station at the time of preparation of the inquest report and actually the complainant had reported the incident at 5.30 p.m. and a witness met with the Investigating Officer, there was no reason why the details which were found missing from the inquest report should not have been there---Said fact outrightly suggested that the complainant was not present at the time when the inquest report was prepared---Said circumstances went to suggest that the FIR was ante time which got support from the testimony of Medical Officer, who conducted the post-mortem examination of the dead body of the deceased, as copy of FIR was not sent to the Medical Officer with other documents---Prosecution had not given any explanation as to why copy of the FIR was not sent to the Medical Officer along with other documents at the time of the post-mortem examination---Said circumstance revealed that till the time of the post-mortem examination, FIR was not in existence--- Circumstances established that the prosecution had not been able to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

(b) Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 148 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Ocular and medical evidence---Contradictions---Effect---Accused was charged that he and co-accused persons while armed with deadly weapons made firing upon the complainant party, brother of complainant was hit and died---Prosecution version was that the accused made fire shot which hit on the left side of the chest of the person of deceased---Site plan revealed that the distance between accused and deceased was eighty feet---Medical Officer deposed in his evidence that one metallic foreign body was recovered from left chest cavity, so from the careful scrutiny of the medical evidence, it was spelled out that one metallic foreign body was recovered, which showed that fire arm projectile was fired from near contact range on the body of the deceased---Said aspect further contradicted the ocular account creating serious dents on the prosecution version, going to its roots---Circumstances established that the prosecution had not been able to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Tufail v. The State NLR 2002 Criminal 636 rel.

(c) Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 148 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Motive was not proved---Scope---Accused was charged that he and co-accused persons while armed with deadly weapons made firing upon the complainant party, deceased was hit and died---Record showed that motive set up by the prosecution in the FIR and private complaint was that parties were having dispute over water Khal and passage---Complainant deposed during the cross-examination that no application was submitted to the relevant authorities regarding dispute over water course---No application was submitted to the Sub-Division Collector or District Collector regarding the passage---Witness had also took the same stance as alleged by the complainant---Investigating Officer deposed during cross-examination that complainant party did not produce any document showing that they had filed any suit or application in the Revenue Department or Irrigation Department to prove motive behind the occurrence---Complainant had admitted that land of the accused party as well as their land was irrigated through same water khal---Admittedly, on the day of occurrence, complainant party had no turn of water according to warrabandi---Prosecution, in circumstances, remained unable to connect the accused with the crime and even the prosecution case in that regard was vague and could hardly inspire confidence---Motive, as alleged, was an afterthought and had not been attributed to the accused, which as alleged could not be considered against the accused, in circumstances--- Circumstances established that the prosecution had not been able to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 rel.

(d) Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 148 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence from accused---Reliance---Scope---Accused was charged that he and co-accused persons while armed with deadly weapons made firing upon the complainant party, deceased was hit and died---Weapons recovered from the accused were of no consequence as same were not sent for forensic examination to the Forensic Science Agency---Appeal against conviction was allowed, in circumstances. [p. 63] I

(e) Criminal trial---

----Appreciation of evidence---Principle---If evidence of the prosecution is disbelieved qua major portion of the accused persons, it could not be believed qua the other in absence of strong corroboration.

Akhtar Ali and others v. State 2008 SCMR 6; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758 and Iftikhar Hussain and others v. The State 2004 SCMR 1185 rel.

JUDGMENT

AALIA NEELUM, JUSTICE:---.---

Javed Iqbal Khan, Zahid Iqbal Khan, son of Zareef Khan, Najeeb Ullah son of Ghulam Muhammad, Sami Ullah son of Khan Baig, Wazeer Khan and Hidayat Khan sons of Jehangir, Muhammad Aslam son of Wazeer Khan and Sher Abbas Khan son of Abdul Sattar Khan, all Pathan Maulana by Caste and resident of Wandah Jehangir Khelanwala, Dakhli Sawance, District Mianwali, the appellants along with their co-accused, Ghulam Muhammad and Manzoor Khan (since acquitted) were involved in a private complaint registered under Sections 302, 324, 148, 149, P.P.C., at Police Station, Pai Khel, District Mianwali in case FIR. No.09-2010, dated 12.02.2010, offence under Sections 302, 324, 148, 149, P.P.C., registered at Police Station, Pai Khel, District Mianwali and were tried by the learned Additional Sessions Judge, Mianwali. The learned trial court seized with the matter in terms of judgment dated 23.09.2013, convicted the appellant No.1-Javed Iqbal Khan under Section 302(b), P.P.C. and sentenced him to imprisonment for life with the direction to pay compensation of Rs.1,00,000/- to the legal heirs of the deceased and in case of default thereof, the appellant No.1-Javed Iqbal Khan would further suffer simple imprisonment for six months. Whereas the appellants Nos.2 to 8, Zahid Iqbal Khan, Najeeb Ullah, Sami Ullah, Wazeer Khan, Hidayat Khan, Muhammad Aslam and Sher Abbas Khan were convicted under Section 324, P.P.C. and each of them was sentenced to suffer five years R.I with the direction to pay fine of Rs.10,000/-each and in case of default thereof, each of them would suffer simple imprisonment for three months. The benefit of Section 382-B, Cr.P.C., was also extended in favour of the appellants.

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