Citation Name: 2023 YLR 1625 PESHAWAR-HIGH-COURTBookmark this Case AHMAD KAMAL alias KAMAL KHAN vs State Ss

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Citation Name: 2023 YLR 1625 PESHAWAR-HIGH-COURTBookmark this Case AHMAD KAMAL alias KAMAL KHAN VS State Ss. 302(b) & 34---Qatl-i-amd, common intention--- Appreciation of evidence--- Benefit of doubt--- Safe custody of crime empties not proved---Accused were charged for committing murder of the son of the complainant by firing---Record showed that the Investigating Officer collected 21 empties of 7.62 bore from the place of incident---Surprisingly, the said empties were not sent to the firearms expert soon after its recovery, rather the same were received at the laboratory after a considerable delay of 34 days, which the prosecution failed to explain---Investigating Officer did not record the statements of independent witnesses regarding the safe custody of the collected empties and even no record was collected from the concerned police station as to where these empties were lying---Neither the Muharar of the concerned police station was produced nor the Police Official who took the same to the firearms expert---When safe custody of the collected empties could not be proved on record, then in such eventuality, said piece of evidence could not be taken into consideration and as such, it had lost its evidentiary value---Circumstances established that the prosecution failed to bring home guilt against the accused persons---Appeal against conviction of accused was allowed accordingly. Citation Name: 2023 YLR 1625 PESHAWAR-HIGH-COURTBookmark this Case AHMAD KAMAL alias KAMAL KHAN VS State Ss. 302(b) & 34---Qatl-i-amd, common intention--- Appreciation of evidence---Benefit of doubt---Absconsion of accused---Inconsequential---Accused were charged for committing murder of the son of the complainant by firing---Attempt was made to convince the Court that the long abscondance of the accused persons was a sufficient factor to help in their conviction, but abscondance was a circumstance which could be of benefit to the prosecution, provided the prosecution succeeded in establishing its case against the accused, but when the prosecution was lacking evidence, then abscondance had little role to play---In case in hand, as the witnesses could not succeed in establishing their presence on the spot and the mode and manner was still shrouded in mystery, so the abscondance could not be taken into consideration, that too, to convict the accused persons---Appeal against conviction of accused was allowed accordingly. Citation Name: 2023 YLR 1625 PESHAWAR-HIGH-COURTBookmark this Case AHMAD KAMAL alias KAMAL KHAN VS State Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Conflict between statements of witnesses and site plan---Accused were charged for committing murder of the son of the complainant by firing---Both the witnesses i.e. the complainant and the eye-witness did not support each other regarding the place where the deceased died, as the complainant stated that soon after receiving firearm injuries, the deceased fell on the ground, and so did the eye-witness, but the complainant never stated that after receiving firearm injuries, the deceased rushed back and fell at point No. 1A---Conflict between the statements of witnesses and the site plan left no ambiguity to hold that the deceased received firearm injury at point No. 1A and not at point No. 1---Appeal against conviction of accused was allowed accordingly. Citation Name: 2023 YLR 1625 PESHAWAR-HIGH-COURTBookmark this Case AHMAD KAMAL alias KAMAL KHAN VS State Ss. 302(b) & 34---Qatl-i-amd, common intention--- Appreciation of evidence---Benefit of doubt---Accused were charged for committing murder of the son of the complainant by firing---Record showed that it was after 12:00 midnight that the Investigating Officer visited the spot after receiving copy of the FIR---To be more specific, the Investigating Officer, visited the spot on 04.08.2014 as the FIR was registered after 12:00 hours in the night---Witnesses were examined who stated that the Investigating Officer recorded their statements on 04.08.2014,whereas, the record told that their statements under S. 161, Cr.P.C., were recorded on 03.08.2014---Prosecution had to explain that when the FIR was yet to be chalked out, then how the Investigating Officer visited the spot and recorded statements of the witnesses---Record showed that the date of preparation of site plan was mentioned as 03.08.2014, whereas, later on, the same was tampered and rectified as 04.08.2014---Overall situation had created an atmosphere of confusion which the prosecution failed to resolve---Appeal against conviction of accused was allowed accordingly. Citation Name: 2023 YLR 1625 PESHAWAR-HIGH-COURTBookmark this Case AHMAD KAMAL alias KAMAL KHAN VS State Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Ocular account and medical evidence---Conflict between---Accused were charged for committing murder of the son of the complainant by firing---In the present case, the medical evidence did not support the case of the prosecution---Medical Officer admitted that the deceased received injuries on the vital parts of his body, and such statement got support from the postmortem report---Postmortem report told that the most vital organs of the body of deceased were damaged---If such was the precarious condition of the deceased at the time of incident, then, it could not be accepted that the deceased could run from point No. 1 to point No. lA of the site plan, and even if he did so then between the two places the Investigating Officer would have shown the trail of blood---Conflict between the medical evidence and ocular account had damaged the prosecution case beyond repair---True that the medical evidence was confirmatory in nature and in case of availability of strong eye-witness account, it played little role---In case where the witnesses failed to establish their presence on the spot then in that eventuality, it would become obligatory that the medical evidence must be respected and appreciated---In case in hand, the witnesses failed to establish their presence on the spot at the time of incident, so the medical evidence was to play the decisive role and as such, the conflict between the two had created dents in the prosecution story---Appeal against conviction of accused was allowed accordingly. Citation Name: 2023 YLR 1625 PESHAWAR-HIGH-COURTBookmark this Case AHMAD KAMAL alias KAMAL KHAN VS State Ss. 302(b) & 34---Qatl-i-amd, common intention--- Appreciation of evidence---Benefit of doubt---Postmortem conducted before reporting the matter---Accused were charged for committing murder of the son of the complainant by firing---Record showed that the dead body was brought before the Medical Officer for postmortem examination at 11:00 p.m., by which time no report was made---Medical Officer stated that he started postmortem examination of the dead body at 11:00 p.m. and completed the same at 11:30 p.m.---Medical Officer when appearing before the Trial Court stated that at 11:00 p.m., the dead body was brought before him along with injury sheet and inquest report---Statement of the Medical Officer did not find support from record of the case, as, by then, the report was not made---Surprisingly when the matter was reported at 11:15 p.m., how the Medical Officer could lay hands on the injury sheet and inquest report, as the same were admittedly prepared after the Murasila was drafted---All the said anomalies when taken into consideration, coupled with the column of identification, where neither the complainant nor the eye-witness stood as identifiers, an inference could be drawn that either the dead body was shifted to the hospital by the co-villagers, where the injury sheet and inquest report were prepared and by then the report was not made, as the complainant was not available, or the complainant was searching for the real culprits, who killed the deceased, and that it was after consultation and deliberation that the accused persons were charged for the death of the deceased---Appeal against conviction of accused was allowed accordingly. Citation Name: 2023 YLR 1625 PESHAWAR-HIGH-COURTBookmark this Case AHMAD KAMAL alias KAMAL KHAN VS State Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Night time occurrence---Source of light---Bulbs from relevant spot of occurrence not collected--- Effect--- Accused were charged for committing murder of the son of the complainant by firing---Complainant disclosed that the deceased was fired at and that the accused were identified in the light of bulbs, which were installed in different houses of the street---Complainant was examined on this particular aspect of the case, where he stated that the Investigating Officer recovered a bulb from the main gate of his house and another, installed in the electric pole---Investigating Officer, while preparing the site plan, allegedly took into possession a bulb from the main gate of the complainant which had been shown at point-D, whereas, the recovered tube light from the electric pole was mentioned at point-A in the site plan---As at the time of incident, it was pitch dark and the complainant and eye-witness were able to identify the assailants in the bulbs light installed at the place of incident, so its importance could not be overlooked and the same needed consideration---Site plan transpired that the place where the deceased received firearm injuries no electric tube light was installed---Prosecution alleged that the assailants were identified in the tube light installed in the electric pole---In order to ascertain as to whether the identification from such a long distance i.e. the pole where the tube light was installed, and the assailants wherefrom they fired at the deceased, was possible it was essential to go through the statements of the witnesses and that of the Investigating Officer---Complainant stated that the inter se distance between the electric pole and the assailants was 35 paces with further explanation that the deceased was seven paces ahead from them, whereas, the distance between the assailants and the deceased was given as eight paces---Keeping in view the distance between the parties and that of the electric pole, it did not appeal to a prudent mind that from such a long distance of more than seventy feet the identification was possible---Investigating Officer, during spot inspection, took into possession an electric bulb from the main gate of the complainant, but he did not collect any bulb from the house where the deceased received firearm injuries---If the complainant's statement was admitted as correct that different lights were installed on the surrounding houses, then in that eventuality, it would have been of prime importance for the Investigating Officer to collect an electric bulb from the house of one Mr. "H", where the deceased received firearm injuries---Circumstances suggested that the deceased was not fired at, at point No. 1, rather he was fired at, at point No. 1A, in front of his house---Physical circumstances of the case ran in conflict with the statements of the witnesses---Had the deceased received firearm injuries at point No.1, then there was hardly an occasion for him to rush back to point No. 1A, as the injuries received by the deceased were on the most sensitive parts of the body---If it was admitted that the deceased received firearm injuries at point No.1 and fell on the ground at point No. 1A, then in that eventuality, the Investigating Officer would have found the trail of blood between the two points, but neither he mentioned the same nor it was found---Circumstance of the case negated the version of the complainant and it gave birth to suspicion that the deceased did not receive firearm injuries on the stated position---Appeal against conviction of accused was allowed accordingly. Citation Name: 2023 YLR 1625 PESHAWAR-HIGH-COURTBookmark this Case AHMAD KAMAL alias KAMAL KHAN VS State Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Ocular account belied by medical evidence---Accused were charged for committing murder of the son of the complainant by firing---Eye-witness stated that after collecting the dead body from the spot, they reached the hospital at 10:00 p.m., whereas, in the same breath, he further explained that it was at 10:08 p.m. that they reached the hospital---Prosecution had to explain as to why the matter was not reported soon after reaching the hospital---Dead body was received by the doctor for postmortem examination at 11:00 p.m. and the same was completed at 11:30 p.m., whereas, the report was made at 11:15 p.m.---Prosecution remained silent on that particular aspect of the case and even, if the statements of the witnesses were taken to be correct, then in that eventuality, the time of report and the time when the postmortem examination was conducted, did not support each other---After reporting the matter, the injury sheet and inquest report were prepared---In the relevant column of the inquest report, the time of death was mentioned as 09:30 p.m., which further belied the stance of the complainant regarding the time of occurrence---In order to ascertain as to whether the deceased received firearm injuries at 09:00 p.m. or earlier, it was essential to go through the opinion of the doctor, who, at the time of postmortem examination, mentioned the time between injury and death from one to one and half hours---As the witnesses were in conflict regarding the survival of the deceased after receiving the firearm injuries and when the doctor mentioned the time between injury and death as 1-½ hours, then the statements of all the said three witnesses when placed in juxtaposition, no other opinion could be formed, but that the incident did not occur at the stated time---Appeal against conviction of accused was allowed accordingly. Citation Name: 2023 YLR 1625 PESHAWAR-HIGH-COURTBookmark this Case AHMAD KAMAL alias KAMAL KHAN VS State Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Motive not proved---Accused were charged for committing murder of the son of the complainant by firing---Motive was alleged as oral altercation between the accused persons and the deceased a few days earlier to the incident---Complainant could not bring on record any substantial evidence in that respect and even the Investigating Officer did not record the statements of independent witnesses in support of the alleged motive---Except mere oral assertion by the complainant, no positive evidence was produced in respect of the motive, thus, the Court had no other option, but to hold that the prosecution failed to establish the motive---True that absence or weakness of motive, in itself, was not sufficient to dislodge the prosecution story, but at the same time, it could not ignore its importance, more particularly in the given circumstances of the present case---As the reason to kill was the altercation between the deceased and accused, so the liability of the prosecution was more than ordinary cases since the complainant failed to convince the Court through reliable witnesses that a day earlier to the incident an altercation took place between the parties, the Court was not hesitant to hold that the charge against the accused persons was the outcome of consultation and deliberation---Appeal against conviction of accused was allowed accordingly. Citation Name: 2023 YLR 1625 PESHAWAR-HIGH-COURTBookmark this Case AHMAD KAMAL alias KAMAL KHAN VS State Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Presence of eye-witnesses at the place and time of occurrence doubtful---Accused were charged for committing murder of the son of the complainant by firing---In the present case, if the deceased and eye-witnesses were present on the points, as had been shown in the site plan, then in that eventuality, the complainant and eye-witness would have also received firearm injuries, but they did not---Complainant in his court statement stated that the street was closed towards north, but surprisingly, the Investigating Officer did not notice any bullet mark on the surrounding walls---Complainant, when appearing before the Court, stated that he along with the deceased and the witness were on their way to the local mosque to perform Isha prayer, when the incident occurred---Said fact time and again came from the mouth of the witnesses that Isha prayer was to be performed at 09:00 pm---If the claim of the witnesses that it was their routine to go to the mosque and perform prayer, was taken as correct, then in that eventuality, the complainant, eye-witness and the deceased would have gone to the mosque a little earlier---Record revealed that it was the deceased who was walking ahead, whereas, in the part of the country where the occurrence took place, if a father and a son went to the mosque together, then as a matter of respect, the elders took the lead and the youngster followed---If all the three left the house together, then there was hardly an occasion for the deceased to go eight paces ahead, rather all the three would walk together---Complainant, when appearing before the Trial Court, stated that as soon as they took a turn, the assailants fired at them, whereas, the site plan depicted that after taking turn, the deceased walked eight paces towards the assailants---So, the witnesses remained inconsistent on that particular aspect of the case and even, the site plan contradicted the stance of the complainant---Appeal against conviction of accused was allowed accordingly.

Citation Name: 2023 YLR 1625 PESHAWAR-HIGH-COURTBookmark this Case AHMAD KAMAL alias KAMAL KHAN vs State Ss — 2023 YLR 1625 PESHAWAR-HIGH-COURT

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