MIR ALI SHAH vs State Ss — 2022 YLRN 169 PESHAWAR-HIGH-COURT

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MIR ALI SHAH VS State Ss. 324 & 337-F(vi)--- Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Criminal Procedure Code (V of 1898), Ss. 164 & 265-J---Qanun-e-Shahadat (10 of 1984), Art. 47---Attempt to commit qatl-i-amd, ghayr-jaifah-munaqqillah, possession of unlicensed arms---Appreciation of evidence---Power to record statements and confessions---Transposition of statement of witness already recorded----Scope---Accused was charged for injuring the complainant by firearm---No doubt, the court was competent to transfer statement of a witness under S.164, Cr.P.C. into trial of accused in exercise of its power under S.265-J, Cr.P.C. but subject to certain limitations---Accused must be present at the time of recording statement under S.164, Cr.P.C. and must be given a notice of such statement and thereafter he should be afforded opportunity to cross-examine the witness---In the present case, neither the accused was present at the time of recording 164 Cr.P.C. statement of the injured complainant, though he had already been arrested on the day of occurrence, nor he was given notice of the statement nor any opportunity was afforded to him to cross-examine the injured complainant---Similarly, proviso to Art. 47 of the Qanun-e-Shahadat, 1984, also laid down the limitation of cross-examination of a witness by adverse party otherwise his statement would not be admissible in evidence---Statement recorded by injured complainant in the present case did not fulfil the basic criteria provided under S. 265-J, Cr.P.C. and Art. 47 of the Qanun-e-Shahadat, 1984, hence, the Trial Court had illegally based conviction of the accused on the statement under S. 164, Cr.P.C. recorded by injured complainant---Admittedly, the accused was neither given a proper notice of the statement recorded by injured complainant under S. 164, Cr.P.C. nor he was afforded an opportunity of cross-examining the injured through a counsel of his choice, therefore, the said statement recorded by complainant could not be considered as a substantive piece of evidence---No eye-witness of the occurrence was available while statement of the injured complainant under S. 164, Cr.P.C., could not be taken into account against the accused---Circumstances established that the prosecution had failed to prove its case against the accused to the extent of offences under Ss.324 & 337-F(vi), P.P.C.---Appeal was partially allowed and accused was acquitted by setting aside conviction and sentence recorded by Trial Court under Ss. 324 & 337-F(vi), P.P.C., whereas the prosecution proved its case under S. 15 Arms Act, thus appeal to the extent of said offence was dismissed. Head Notes

MIR ALI SHAH vs State Ss — 2022 YLRN 169 PESHAWAR-HIGH-COURT

Case information

Judgment text as reported