NAZAR KHAN alias NAN vs State S — 2023 PCrLJN 95 PESHAWAR-HIGH-COURT

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NAZAR KHAN alias NAN VS State S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Absconsion of accused---Scope---Accused was charged for committing murder of the deceased by firing---Record showed that the accused soon after the incident went into hide till his arrest---Accused could not explain his long abscondance---Abscondance alone was not sufficient to burden an accused with the liability, but the same could be taken into consideration in favour of the prosecution provided the prosecution succeeded in bringing home guilt against the accused charged---As the prosecution succeeded in proving its case against the accused through confidence inspiring witnesses, so the long unexplained abscondance could be taken as an additional ground to favour the prosecution---Circumstances established that the prosecution succeeded in proving its case, however discrepancies in the prosecution case and the uncertain cause of death led the court to hold that the awarded sentence was a bit harsh and the same needed interference, therefore death sentence was converted into imprisonment for life---Appeal was partially allowed with modification in sentence. S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Ocular account supported by medical evidence---Scope---Accused was charged for committing murder of the deceased by firing---Allegation was that the medical evidence did not support the ocular account and that both were in conflict---Attention of the Court was brought to the injury received on skull, where it was observed that the bullet travelled from down to upward---Attempt was made to convince the Court that the firing was not made in the mode and manner, which was not acceptable as head was not the static part of the body and human reacted differently in different circumstances---Possibility could not be excluded that on noticing the presence of accused duly armed, the deceased would have reacted by changing his position and while doing so received the injury on his skull---However, it was not only to see the conflict between the medical evidence and ocular account, rather after going through the attending circumstances of the case, coupled with statements of the witnesses recorded before the Trial Court as in that eventuality this court would be in a better position to appreciate that particular aspect of the case---Complainant succeeded in establishing his presence on the spot and his testimony could not be shattered, so it was the ocular account which would prevail instead of the medical evidence---Circumstances established that the prosecution succeeded in proving its case, however discrepancies in the prosecution case and the uncertain cause of death led the court to hold that the awarded sentence was a bit harsh and the same needed interference, therefore death sentence was converted into imprisonment for life---Appeal was partially allowed with modification in sentence. S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---FIR was lodged with promptitude---Scope---Accused was charged for committing murder of the deceased by firing---Record showed that there was no denial to the fact that the complainant and others reached to the place of incident at 08:45 a.m. and after receiving fire-arm injuries the deceased was shifted to the hospital where the matter was reported at 09:15 a.m.---Time spent between the injuries caused and report to police (FIR) excluded the possibility of consultation and deliberation, and it further confirmed that the complainant was present at the time of incident---Circumstances established that the prosecution succeeded in proving its case, however discrepancies in the prosecution case and the uncertain cause of death led the court to hold that the awarded sentence was a bit harsh and the same needed interference, therefore death sentence was converted into imprisonment for life---Appeal was partially allowed with modification in sentence. S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Motive was proved---Scope---Accused was charged for committing murder of the deceased by firing---Motive was stated to be the blood feud between the parties and that several persons lost their lives from both the sides---In order to substantiate its stance the prosecution placed on file the motive FIR where brother of the deceased was charged along with others---Said fact was agitated time and again that when complainant was the prime target and that when he was present at the time of incident then instead of the deceased he would have been the actual target but his escaping unhurt strengthened the belief that the incident did not occur in the manner and at the stated time---Further submitted that once the motive was alleged and the same was not proved then it was the prosecution to suffer---As the alleged motive had been proved on record and the Investigating Officer collected documentary evidence in that respect, so lurked no doubt that the prosecution had been succeeded in proving the motive---If prosecution failed to prove the motive then the same could be pressed into service for limited purposes i.e. for determining the quantum of sentence and nothing more keeping in view the peculiar circumstances of present case---Circumstances established that the prosecution succeeded in proving its case, however discrepancies in the prosecution case and the uncertain cause of death led the court to hold that the awarded sentence was a bit harsh and the same needed interference, therefore death sentence was converted into imprisonment for life---Appeal was partially allowed with modification in sentence. S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Scope---Accused was charged for committing murder of the deceased by firing---Record told that both the deceased and the accused during the days of incident were aged about 22/23 years, an age where it was hard to resist the emotions, temptations and the surrounding influences---Prosecution could not succeed in bringing on record the exact cause of the incident, rather previous blood feud was projected to be the cause of death of the deceased---Record showed that brother of the deceased was charged in the motive in FIR and the prosecution could not bring on record concrete evidence in that respect to exclude any other hypothesis---As the complainant, the deceased and the accused were nearly of the same ages, the possibility could not be excluded that it was a chance encounter which led to the death of the deceased---Record was silent as to what happened a little earlier to the incident which claimed the life of the deceased---As the complainant stated that at the time of incident, both the accused were duly armed with 30 bore pistols and that it was from the fire shots of the accused that the deceased lost his life---Had the cause of death been the blood feud, then in that eventuality the complainant would have also received fire arm injuries and the co-accused would have also resorted to firing, but the situation told another story and the created mystery could not be resolved till the end---Court was to take into consideration the attending circumstances of the case for awarding sentence---Record showed that on one hand there were minor discrepancies in case of the prosecution, whereas on the other the prosecution could not convince that it was the previous blood feud between the parties which claimed the life of deceased---When the prosecution was uncertain regarding the exact cause of death, then the same could be pressed into service to assess as to whether the accused was rightly convicted---However, when the prosecution succeeded in bringing home guilt against an accused charged, then the normal penalty was death, but in the present case the discrepancies in the prosecution case and the uncertain cause of death led the court to hold that the awarded sentence was a bit harsh and the same needed interference---High Court reduced the awarded sentence from death to imprisonment for life under S. 302(b), P.P.C.---Appeal was partially allowed, the impugned judgment was modified by maintaining the conviction and reducing the sentence from death to life imprisonment, while rest of the sentence shall remain intact. S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Recovery of crime empties from the place of occurrence---Scope---Accused was charged for committing murder of the deceased by firing---Record showed that the collected empties were sent to the Firearms Expert wherefrom a report was received in positive with an opinion that the same were fired from one weapon---As in the incident the effective role was assigned to the accused, so the laboratory report confirmed the stance of the complainant to a greater extent---Site-plan prepared on pointation of the complainant fully supported the case of the prosecution and the recoveries of empties with its positive report strengthened the prosecution case to a greater extent---Positive laboratory report was a supportive piece of evidence and the same could be pressed into service only and only when strong evidence was available on file---Prompt report and direct ocular account left no ambiguity that the prosecution was well equipped with the required evidence and in the like circumstances the positive report received from the Laboratory fully supported the prosecution case and the same could be taken into consideration---Circumstances established that the prosecution succeeded in proving its case, however discrepancies in the prosecution case and the uncertain cause of death led the court to hold that the awarded sentence was a bit harsh and the same needed interference, therefore death sentence was converted into imprisonment for life---Appeal was partially allowed with modification in sentence. Medical evidence---Scope---Medical evidence is confirmatory in nature and in presence of direct, confidence inspiring and trust worthy ocular account the same has little role to play. S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Delay of more than twenty four hours in conducting the post-mortem examination---Scope---Accused was charged for committing murder of the deceased by firing---Allegedly, the postmortem was conducted at 10:35 p.m., after a considerable delay and that the same alone was sufficient to discard the prosecution story---However, in fact the time of examination of the dead body was 10:35 a.m. and not 10:35 p.m.---In order to resolve the controversy, the opinion of the doctor was of prime importance, where the time between injury and death was given as 1 to 3 hours---Soon after preparation of the inquest report the dead body was handed over to a Police Constable, who escorted the same to the doctor for postmortem examination and no prudent mind would accept that the same was produced to the doctor after 24 long hours---Said plea of the accused could not be accepted and as such the same was discarded---As the complainant succeeded in establishing his presence on the spot at the time of incident and thereafter, so his evidence was not only trustworthy but confidence inspiring as well, the same could not be discarded, even if there were minor discrepancies in the prosecution case---Circumstances established that the prosecution succeeded in proving its case, however discrepancies in the prosecution case and the uncertain cause of death led the court to hold that the awarded sentence was a bit harsh and the same needed interference, therefore death sentence was converted into imprisonment for life---Appeal was partially allowed with modification in sentence. S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Presence of complainant at the spot was justified---Scope---Accused was charged for committing murder of the deceased by firing---Site-plan prepared at the instance of the complainant confirmed the respective places assigned to the complainant, the deceased and the accused as well---Recoveries of empties from the spot along with blood-stained earth lent support to the case of the prosecution---Soon after reaching to the hospital, the matter was reported and it was the complainant along with another who identified the dead body of the deceased to the local police at the time of preparation of the inquest report---Not only at the time of report but also at the time of postmortem examination---Complainant along with another identified the dead body of the deceased---Presence of the complainant at the time of incident and soon thereafter was established from the record and the defence could not succeed in convincing other-wise---Circumstances established that the prosecution succeeded in proving its case, however discrepancies in the prosecution case and the uncertain cause of death led the court to hold that the awarded sentence was a bit harsh and the same needed interference, therefore death sentence was converted into imprisonment for life---Appeal was partially allowed with modification in sentence.

NAZAR KHAN alias NAN vs State S — 2023 PCrLJN 95 PESHAWAR-HIGH-COURT

Case information

Judgment text as reported