Law: Pakistan Penal Code (PPC),1860

Section: 302(b), 302(c), 324, 34

Law: Criminal Procedure Code (V of 1898)

Section: 374, 544-A, 342, 340(2), 382-B

REMARKS:Court Killing

i. When these circumstances are taken into consideration, no ambiguity is left that the complainant had suppressed the material facts. Though this Court is not in a happy mood to accept that the incident did not occur and this Court is not inclined to hold that the complainant did not witness the incident, but this Court is confident in holding that the prosecution case is based on the concealment of facts. This Court is to determine that once the facts were concealed, whether the defense would get the benefit and that whether the accused would be entitled for acquittal.
ii. We are conscious of the fact that the complainant is the sole eyewitness and to place reliance on his testimony, would require much care and would require much caution. True that conviction can be awarded on the strength of a sole eyewitness, but equally true that the witness must convince his credibility, his truthfulness and his presence on the spot. There is no cavil with the preposition that the quality of evidence would determine the fate of an accused and not the quantity.
iii. The spot arrest of the appellants is a circumstance which the defense, despite efforts, could not get rid of and even the recoveries, more particularly, the pistols used in the tragic incident, could not be disputed.
iv. As the appellant Fazal-e-Wahid, could not be arrested on the spot, so this Court is anxious to know that what evidence was brought against him and that what evidence is to be taken into consideration to assess his involvement and to assess his participation in the instant case. In our understanding, the presence of the appellants who were arrested on the spot, is not disputed, but the presence of the appellant Fazal-e-Wahid disturbs the judicial mind of this Court, as soon after the occurrence, the gates were closed with no chance to leave.
v. This conflict between the report and the confessional statement has increased our anxiety to determine that who was telling the truth. If, this Court would accept the report of the complainant, which this Court is constrained to accept, then the confessional statement would lose its efficacy, but at the same time the report does not contain the real facts, rather we found the facts concealed, now to choose one out of the two, would need judicial prudence.
vi. It is not the causalities that would determine the involvement of the accused, rather it is the evidence which must point towards the accused and which must convince the participation of the accused in the tragic incident. If, on one hand we are to rescue the prosecution, then on the other, this Court is under the obligation to extend the same treatment to the accused, as after maintaining equilibrium we would be in a better position to pick the guilty and to rescue the innocent. It is the complex situation of this case which demands a caution of a great degree from us, so we are inclined to apply the required caution.
vii. We are to look into the matter independently, as not only the complainant, but also the appellant while confessing his guilt twisted the circumstances and to untwist the twists, we are to appreciate the evidence and we are to see the cumulative effect of the mysterious circumstances that has surrounded the case. viii. When both the parties twisted the facts and when both the parties concealed and exaggerated the number of accused, then this Court is left with no other option but to determine the involvement of the accused on the strength of the circumstances that were holding the field.
viii. It is the uncertainty of events which invite the attention of this Court to the innocence of the appellant Fazal-e-Wahid, so the prosecution failed to connect him with the tragic incident and as such, the learned trial Court fell into error while holding him responsible for the commission of the offence. It is pertinent to mention that the learned trial Court convicted and sentenced this appellant under section 302(c) PPC, extending him the benefit of the circumstances, but such benefit was wrongly extended, as the Court had the only choice of either to acquit or to convict him, so the learned trial Court failed to take this particular aspect of the case, into consideration. The impugned judgment to his extent is set aside and he is acquitted of the charge. He shall be released forthwith if, not required to be detained in connection with any other criminal case.
ix. We do not doubt the involvement of the appellants in the commission of the offence, but as both the parties put appearance before the Court, as both the parties tendered sworn affidavits expressing their consent to the confirmation of their Bail Before Arrest, so no ambiguity is left that till that time, the situation was calm and the parties were at ease. It was after getting their Bails confirmed that the unfortunate incident occurred, so the concealment of facts from both the sides has created an atmosphere of uncertainty regarding the exactness of the situation that prevailed before and after the occurrence, so these circumstances by itself are sufficient to call for interference, so the awarded sentence is harsher than the needed.