MUHAMMAD SARWAR vs State Evidence — 2022 YLR 1844 LAHORE-HIGH-COURT-LAHORE

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MUHAMMAD SARWAR VS State Evidence--- Direct or substantive evidence---Scope---Unless direct or substantive evidence was brought on record, conviction could not be recorded on the basis of such type of evidence howsoever convincing it might be. S. 302(b)---Qatl-i-amd---Appreciation of evidence---Motive not proved---Scope---Accused was charged for committing murder of his wife/sister of the complainant by firing---Motive behind the occurrence was stated to be the quarrel between the spouses i.e. accused did not pay maintenance allowance to the deceased but it was an oral assertion of the complainant---No material evidence in the shape of ocular or documentary evidence was produced to substantiate the motive alleged by the prosecution---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances. S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence and crime empty---Reliance---Scope---Accused was charged for committing murder of his wife/sister of the complainant by firing---Accused was arrested and he got recovered 12-bore double barrel gun and a cartridge having been fired from the same gun---Crime empty was sent to the office of Forensic Science Agency after the arrest of the accused---Although report of Forensic Science Agency was positive qua the gun but it had not been explained by the prosecution that why the crime empty was not sent to the office of Forensic Science Agency till the arrest of accused---Said fact made the report of Forensic Science Agency inconsequential--Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances. Motive---Scope---If prosecution set-up a motive but failed to prove it, then, it was the prosecution who had to suffer and not the accused. Benefit of doubt---Principle---If a single circumstance creating doubt in a prudent mind, the benefit thereof must accrued in favour of the accused as matter of right and not of grace. S. 302(b)---Qatl-i-amd---Appreciation of evidence---No justification for the presence of eye-witnesses at the spot---Chance witnesses---Scope---Accused was charged for committing murder of his wife/sister of the complainant by firing---Record showed that the complainant and eye-witness, happened to be the real brother and nephew of the deceased---Said eye-witnesses were not residents of the village where the occurrence took place, which fact was also admitted by Investigating Officer---Although, in the FIR, it had been narrated by the complainant that his deceased sister informed him telephonically through someone's phone that her husband had beaten her---During evidence, the prosecution had failed to describe phone number through which deceased made call to the complainant---Complainant had also not described about his phone number upon which he received the phone call of deceased---Complainant further stated that he could not tell the exact ages of all the children of his deceased sister---Said fact also indicated that complainant had no visiting terms with his sister and for that reason he failed to describe the ages of her children---Both the said eye-witnesses, therefore, could not justify the reason given by them for their presence in the house of the occurrence at the relevant time---Said witnesses were chance witnesses and as such their evidence was not free from doubt---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances. S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd---Appreciation of evidence---Withholding material evidence---Scope---Accused was charged for committing murder of his wife/sister of the complainant by firing---Prosecution evidence, showed that the lady had three sons and two daughters, who were also inmates of the house but not a single child was produced during the trial as a witness---Although, Investigating Officer, during his cross-examination stated that he had interrogated the children but he did not bring on record their interrogation---Abandoning of the said witnesses obviously led to an adverse inference in terms of Art. 129(g) of the Qanun-e-Shahadat, 1984 that had they been produced in the witness box, they might have not supported the prosecution case---If any party withheld the best piece of evidence, then it could fairly be presumed that such party had some sinister motive behind it---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances. S. 302(b)---Qatl-i-amd---Appreciation of evidence---Delay of ten hours and fifteen minutes in conducting the post-mortem upon the dead body of the deceased---Effect---Accused was charged for committing murder of his wife/sister of the complainant by firing---Record showed that the post-mortem examination on the dead body of the deceased was conducted by Medical Officer with the delay of ten hours and fifteen minutes after registration of FIR---Keeping in view said material discrepancy arising out from the prosecution case, an adverse inference to the prosecution's case could be drawn that the intervening period had been consumed in fabricating a story after preliminary investigation and to wait for the relatives of the deceased, who were made witnesses subsequently, otherwise there was no justification for non-dispatching the dead body to the mortuary and providing police papers with such delay---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances. Recovery--- Scope--- Recovery being purely corroboratory in nature could not only be considered to sustain conviction on a capital charge. S. 302(b)---Qatl-i-amd---Appreciation of evidence---Ocular and medical evidence--- Contradictions--- Effect---Accused was charged for committing murder of his wife/sister of the complainant by firing---Record showed that the accused made fire shot upon deceased, which landed on her back but the Medical Officer, who conducted the autopsy on the dead body of deceased, had described that injury as exit wound---Material contradiction existed between the ocular and medical evidence---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

MUHAMMAD SARWAR vs State Evidence — 2022 YLR 1844 LAHORE-HIGH-COURT-LAHORE

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