SHER ALAM vs STATE art — 2023 PCrLJN 13 PESHAWAR-HIGH-COURT

Fields are extracted from the reported citation and judgment text. Where a detail is not stated in the record, it is not shown.

SHER ALAM VS STATE art. 161---Questions asked by the Court---Scope---No doubt, art. 161 of Qanun-e-Shahadat, 1984, empowered the Court to compel a witness to answer any question or to produce any document that the Court may think necessary or relevant to discover the truth or obtain proper proof of the relevant fact---Court was required to use the said powers with great care and caution. Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Acquittal of co-accused on same set of evidence---Scope---Accused was charged that he along with his co-accused committed murder of the husband of the complainant by firing---Cognizant of the alleged vicarious liability of the present accused with his co-accused but not only the prosecution had failed to substantiate the said allegation against him through reliable evidence but the co-accused, to whom the same role had been attributed by complainant in the FIR, had also been acquitted of the charge on the same set of evidence, therefore, conviction and sentence of the accused could not be sustained in circumstances---Circumstances established that prosecution had not proved the guilt of accused beyond shadow of reasonable doubt---Appeal against conviction was allowed. Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular account and medical evidence---Conflict---Accused was charged that he along with his co-accused committed murder of the husband of the complainant by firing---Role of the present accused, in light of the FIR and ocular account, remained unspecified like his co-accused---Co-accused had already been acquitted by Trial Court and the said order had attained finality---Complainant had charged all the accused including the present accused for effective firing at the deceased but the doctor had reported a single injury on the dead body---Irrespective of the fact that the doctor had visited the house of complainant for examination of the dead body against the normal routine and procedure, medical report was in conflict with ocular account, therefore, the said report was of no avail to prosecution rather it created a reasonable doubt in prudent mind regarding the guilt of the accused---Circumstances established that prosecution had not proved the guilt of accused beyond shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances. Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Contradictions in the statements of witnesses---Scope---Accused was charged that he along with his co-accused committed murder of the husband of the complainant by firing---Record showed that the eye-witness had improved her earlier version by stating that two accused were on rooftop of their house while the present accused was present on thoroughfare at the time of occurrence---Complainant stated that the dead body had been brought to Police Station situated at a distance of 17/18 kilometers from the spot but neither any report was lodged in the Police Station nor the dead body was examined in hospital though the same had been shifted to hospital as per contents of Murasila---Prosecution had not explained that why the dead body was carried back without being examined by doctor in hospital and medical examination of the corpse was conducted by doctor on the following day of occurrence in the house of complainant on the request of her relatives---Time of report mentioned in Murasila bore overwriting and it appeared that figure 6 had been replaced with figure 3---If the delay of about 2 hours be considered forgiveable in view of hilly area and long distance of the spot from Police Station, even then the visible overwriting in Murasila suggested concealment of real facts of occurrence on the part of Investigating Agency---Thirteen empties recovered from the spot had not been sent to Forensic Science Laboratory for confirmation of the fact that the same had been fired from the same or different weapons---Various inconsistencies and contradictions were noticed in prosecution case creating serious doubts and accused was entitled to get the benefit thereof as of right---Circumstances established that prosecution had not proved the guilt of accused beyond shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances. Ss. 302(b) & 34---Qanun-e-Shahadat (10 of 1984), Art. 161---Qatl-i-amd, common intention---Appreciation of evidence---Questions asked by the Court---Scope---Accused was charged that he along with his co-accused committed murder of the husband of the complainant by firing---Motive behind the occurrence was disclosed as dispute over barren plot for construction---Record showed that Trial Court convicted the accused mainly on the ground of his specific role in light of the answer of complainant in response to the Court question---Such powers under Art. 161 of the Qanun-e-Shahadat, 1984, were required to be exercised only when the Court believed that certain ambiguities in light of different pieces of evidence needed clarification---In the present case, both the eye-witnesses had recorded their examination-in-chief in the line of FIR and the defence had cross-examined them almost on each and every aspect of the case, therefore, intervention of the trial judge by putting questions to witnesses, for filling up lacunas in prosecution case, was not warranted under the law---In such situations, the questions asked by trial judge were neither necessary nor there was any ambiguity which needed clarification by Trial Court---Questions having been so asked by Trial Court had caused miscarriage of justice to accused, therefore, the answers of complainant in response to the said questions could not base his conviction---Circumstances established that prosecution had not proved the guilt of accused beyond shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances. Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Absconsion of accused---Scope---Accused was charged that he along with his co-accused committed murder of the husband of the complainant by firing---Long abscondence of the accused for almost two decades could not be denied---However, abscondence per se had never been considered a proof of guilt, therefore, that factor alone could not base conviction of the accused when prosecution had otherwise failed to establish his guilt through trustworthy ocular account and circumstantial evidence of convincing nature---Circumstances established that prosecution had not proved the guilt of accused beyond shadow of reasonable doubt---Appeal against conviction was allowed.

SHER ALAM vs STATE art — 2023 PCrLJN 13 PESHAWAR-HIGH-COURT

Case information

Judgment text as reported