JAVED KHAN vs State Ss — 2023 PCrLJN 17 PESHAWAR-HIGH-COURT

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JAVED KHAN VS State Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of one hour in lodging FIR---Scope---Accused were charged that they, in furtherance of their common intention committed murder of the brother of the complainant by firing---Motive for the offence alleged by the complainant was previous blood feud---Record showed that occurrence took place at about 04.00 p.m.---Incident was reported by the complainant to the local police, who soon after the incident shifted the dead-body of the deceased to Hospital, where the police of the local Police Station were already present---Matter was reported at 05.00 p.m. to Police Official, who after drafting Murasila, prepared injury sheet and inquest report and thereafter, sent the dead-body to the mortuary for postmortem examination---Though the dead-body was examined by the doctor, yet the time of examination and arrival of the dead-body did not find mention in the postmortem report and it was later on disclosed by the doctor that he examined the dead-body at 06.30 p.m.---Circumstances established that the prosecution failed to bring home guilt against the accused---Appeal against conviction was allowed, in circumstances. Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Medical evidence and ocular account---Conflict---Accused were charged that they in furtherance of their common intention committed murder of the brother of the complainant by firing---Record showed that the medical evidence was in conflict with the ocular account---Medical evidence was confirmatory in nature and equally true that in presence of the direct eye-witness account, it had a little significance but, here it spoke to the contrary---Witnesses failed to prove their presence on the spot and their statements were not trustworthy being chance witnesses, so it was the medical evidence that steered the wheel and the conflict between the two had spoiled the prosecution case to a greater extent---Circumstances established that the prosecution failed to bring home guilt against the accused---Appeal against conviction was allowed. Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Chance witness---Scope---Accused were charged that they in furtherance of their common intention committed murder of the brother of the complainant by firing---Complainant stated that on the day of incident he was informed by the deceased regarding the interest of a party in their shop to purchase and in order to negotiate the price, he along with eye-witness went to the place where his shop was situated---Complainant further stated that party who was interested in purchase of their shop was hailing from Waziristan---Complainant further stated that the matter was negotiated, but the bargain could not be stuck between the parties---Record told that the only and only purpose of the complainant to visit his brother was the negotiation regarding the sale of their shop, but the complainant admitted that it was not his routine to visit---Site-plan was prepared at the instance of the complainant---Record told that the deceased was few paces ahead while the complainant a few paces behind and that it was at 04.00 p.m., when the accused attracted to the spot and fired at the deceased---Deceased was the youngest, whereas the complainant was the eldest, and that it was the complainant, who was charged for the murder of the brother of absconding co-accused---Complainant was to tell that when it was broad day light and that when he was chasing the deceased with a distance of few yards, then why the accused did not kill the complainant and that why the deceased fell a prey---Complainant being the real enemy would have been the prime target, but the lack of interest in killing the complainant indicated his absence from the spot at the time of incident---Had complainant been present he would have been the prime target---Presence of the complainant was further doubted from the fact that the report was made at 05:00 p.m., in the same hospital where the postmortem was conducted, but the dead-body was examined at 06.30 p.m.---When report had already been made and the injury sheet along with inquest report were prepared, then why the postmortem examination was postponed till 06.30 p.m.---Delay caused in examining the dead-body when read in juxtaposition with non-mentioning of time of arrival and examination of dead-body in the postmortem report belied the stance of the complainant---Circumstances established that the prosecution failed to bring home guilt against the accused---Appeal against conviction was allowed. Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence from accused---Scope---Accused were charged that they in furtherance of their common intention committed murder of the brother of the complainant by firing---Accused was allegedly arrested by the local police, from his possession a .30 bore pistol was recovered and a separate FIR under section 15 Arms Act was registered---Concerned Police Official stated that he arrested the accused and prepared his card of arrest---Said witness categorically admitted that he did not mention the recovered pistol along with ammunition in the card of arrest---Said witness was further examined as to whether after arrest of the accused the information was conveyed to the Police Station, he replied in affirmative, it was on the following day that the Investigating Officer, who was investigating the murder case, came to the Police Station---At that particular aspect of the case, the Investigating Officer was examined, who admitted that on the day of arrest he visited the Police Station, but it was on the following day when the accused was formally arrested in the case, when the accused was brought to the District Courts---When the two statements were read in juxtaposition, it smelled foul, despite the fact the accused was arrested and a .30 bore pistol was recovered from his possession, the Investigating Officer did not take interest to rush to the Police Station there and then and to arrest the accused, who was badly needed in the case---Moharrir of the Police Station did not inform the Police Station and even the weapon of offence was not handed over on the day when the accused was arrested---Moharrir of the Police Station stated that a .30 bore pistol with lit and spare magazine along with 13 live rounds were handed over to the Investigating Officer of the present case, which were lying in the Malkhana of Police Station, who sealed the same and recorded his statement under S. 161, Cr.P.C.---Said witness was cross-examined, who admitted that no application was submitted for sending the case property i.e. .30 bore pistol to the Arms Expert---Said witness further admitted that the pistol was handed over to him in unsealed condition and that the entries were made in the relevant Register of the case property of the Police Station---Witness went on to say that he did not produce copy of the said Register to the Investigating Officer of the case---Moharrir candidly conceded that he did not give any documentary proof about the safe custody of the recovered pistol---Circumstances did tell that neither the accused was arrested in the manner nor the pistol was taken into possession, rather it was a conscious attempt on the part of the prosecution to generate evidence to connect the accused with commission of the offence---When the prosecution failed to prove recovery of crime weapon and its safe custody, then in that eventuality said piece of evidence could not be taken into consideration against the accused---Circumstances established that the prosecution failed to bring home guilt against the accused---Appeal against conviction was allowed. Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Unnatural conduct of complainant---Scope---Accused were charged that they in furtherance of their common intention committed murder of the brother of the complainant by firing---Record showed that soon after reporting the matter, the complainant left the Police Station for the spot and he reached to the spot at 06.35 p.m., the time when the dead body was still to be examined---Conduct of the witness (complainant) was unnatural, being real brothers, their first priority would have been to attend the dead-body at the time of postmortem examination---Circumstances established that the prosecution failed to bring home guilt against the accused---Appeal against conviction was allowed. Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Motive not proved---Scope---Accused were charged that they in furtherance of their common intention committed murder of the brother of the complainant by firing---Motive was stated to be the blood-feud between the parties, but the Investigating Officer failed to collect either documentary or oral evidence in that respect and even the complainant failed to substantiate the same---Complainant himself was uncertain regarding his enmities, as admittedly his family was involved in several blood feud with different people and to fix the responsibility on a single side was next to impossible, that too when complainant was spared as he should have been the prime target---Proposition that the prosecution was not under obligation to prove the motive and even its weakness or absence will not damage the prosecution case, but it could not ignore that once the prosecution alleged motive, then it is under obligation to prove the same, if it does not, then it is only and only the prosecution to suffer---Complainant failed to connect the accused with the alleged motive---Circumstances established that the prosecution failed to bring home guilt against the accused---Appeal against conviction was allowed. Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Site plan---Scope---Accused were charged that they in furtherance of their common intention committed murder of the brother of the complainant by firing---Site plan showed that deceased was shown at down the metalled road and the Investigating Officer recovered blood stained earth from there---If the deceased was riding a motorcycle, then instead of driving on the metalled road, he would have not selected unpaved path to drive on---Situation helped in making an opinion that the deceased was on foot---Investigating Officer stated that on arrival to the spot during spot inspection, he took into possession blood-stained earth, three empties of .30 bore along with a motorcycle belonging to the deceased---In the same breath Investigating Officer stated that he revisited the spot on the next day of the incident and photography was made---Interesting to note that while making snap shots on the following day of occurrence, the motorcycle was shown standing there with the same registration number, left by the deceased---Prosecution was to tell that when Investigating Officer had already taken into possession the motorcycle on the day of incident, then instead of having been parked in the concerned Police Station, who brought it to the spot and for what purpose---Said fact indicated that at the time and on the day of incident the deceased was not riding on a motorcycle---Circumstances established that the prosecution failed to bring home guilt against the accused---Appeal against conviction was allowed, in circumstances.

JAVED KHAN vs State Ss — 2023 PCrLJN 17 PESHAWAR-HIGH-COURT

Case information

Judgment text as reported