MISAL KHAN vs AMJAD KHAN Ss — 2021 YLR 2153 PESHAWAR-HIGH-COURT

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MISAL KHAN VS AMJAD KHAN Ss. 324, 334 & 34---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Attempt to commit qatl-i-amd, itlaf-i-udw, common intention---Appreciation of evidence--- Benefit of doubt---Withholding material evidence---Scope---Prosecution case was that the accused made firing upon the complainant, as a result of which, he was hit and fell down---Presence of the eye-witness was not established from record, as the complainant at the time of report was fully conscious but he did not mention the name of his brother to have witnessed the occurrence, neither the eye-witness had shown his presence in the hospital---If the eye-witness was present at the time of report, he would have verified the same---Record showed that soon after receiving injury the complainant was rushed to the hospital by the co-villagers---In case, the eye-witness was present on the spot, he would have definitely rushed his brother to the hospital to save his life---Complainant had stated that his brother had witnessed the occurrence but when he was questioned that why he did not mention the same in his report and even to the Investigating Officer, his reply was that as he was not asked for the same---As to who witnessed the occurrence, it had nowhere been the practice that the Police Officials were to ask and then the complainant was to mention---Such part of the statement of the complainant was an improvement, which could rightly been taken as dishonest, with the sole purpose to strengthen the prosecution case---Prosecution did not produce the eye-witness during trial, he was simply abandoned being unnecessary---Prosecution was yet to explain that being the most important witness why was he abandoned and it was yet to explain that the site-plan was prepared at the instance of the eye-witness---When the witness on whose pointation site plan was prepared was not examined such site plan would have no value---Non-production of eyewitness had created dents in the prosecution case and had questioned the integrity of the complainant---Admittedly, both the complainant and eye-witness were brothers inter-se, when a brother did not support the case of his brother, it would tell otherwise---If the best available evidence was withheld, it reacted upon the case of the prosecution and a negative inference would be drawn---Logic behind Art. 129(g) of the Qanun-e-Shahadat, 1984, was to cater for the like situation---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court.

MISAL KHAN vs AMJAD KHAN Ss — 2021 YLR 2153 PESHAWAR-HIGH-COURT

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