MUJAHID vs State Ss — 2021 PCrLJ 1114 PESHAWAR-HIGH-COURT

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MUJAHID VS State Ss. 302(b) & 392---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15--- Qatl-i-amd, robbery, possessing unlicensed weapon---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence, crime empties and other articles on the pointation of accused---Scope---Accused was charged for committing murder of the son of complainant and his companion by firing after robbery---In the present case, 06 empties of .30 bore were shown recovered from the spot and .30 bore pistol, Nokia mobile set and Rs. 1,19,000/- in cash were shown recovered on the pointation/discovery of the accused from a hay dump (Bosarra)---Said hay dump (Bosara), had been shown situated in the fields of someone---Said person had neither been cited as a witness to the recovery proceedings nor his statement with regard to existence of the hay dump (Bosarra) had been recorded to substantiate that the alleged Bossara was his ownership and whether it was open and in use or sealed (not yet opened)---Similarly, the Investigating Officer had also not clarified in the pointation memo as to whether the hay dump was open (in use) or sealed---Even otherwise, cash amount and mobile set which could easily be accommodated and adjusted in pockets, its concealment in a hay dump of a stranger did not appeal to a prudent mind---Besides, the place of alleged discovery was situated in an open field surrounded by fields of different people, hence, easily approachable---Thus, it would not be safe that such piece of evidence be made a basis for conviction of an accused in a capital charge, that too, in a case of no ocular account---Testimony of police witness/SI, who reached the spot at first instance, totally shattered the evidentiary value of the alleged crime empties---In cross-examination, said witness deposed that he had not seen any empty shell in the surroundings of the spot---In that view of the matter, recovery of 06 empties by the Investigating Officer, who visited the spot at 6.00 a.m. in the month of December, when there remained complete dark at such time, seemed to be planted and manoeuvred evidence---Complainant, in his statement under S. 164, Cr.P.C., had neither given any description and features of Nokia mobile set of his deceased son nor had disclosed about denomination of the currency worth Rs.2,50,000/- allegedly taken by deceased to purchase arms from the accused---Complainant, in cross-examination, admitted that he had not brought any evidence that his son took Rs.2,50,000/- with him---Motorcycle recovered from the spot was without number and complainant had not given any registration of the same to the police---Complainant had identified the cell phone Nokia set and cash amount on 22.12.2014, however, no other mobile phones or currency notes were placed with the recovered one at the time of identification, it would be unsafe to rely on such weak piece of evidence for sustaining conviction in a capital charge---Appeal against conviction was allowed, in circumstances.

MUJAHID vs State Ss — 2021 PCrLJ 1114 PESHAWAR-HIGH-COURT

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