ALI ASGHAR vs State S — 2023 YLR 2015 FEDERAL-SHARIAT-COURT

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ALI ASGHAR VS State S. 302(b)---Offences against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, haraabah---appreciation of evidence---Benefit of doubt--- Defective investigation---accused were charged for robbing the complainant party and when brother of the complainant offered resistance in a scuffle, accused opened fire, killing him at the spot---Perusal of the record showed that Investigating Officer had committed serious and grave mistakes either by not collecting evidence or by not presenting some very relevant pieces of evidence before the Trial Court---Hence, negligence of police, especially Investigating Officer cast a fatal blow to the prosecution case---Record showed that the blood stained clothes of the deceased were never taken into possession by the police; hence, were never produced in the Trial Court---Torch in the light of which the complainant and other witnesses saw and recognized all the three accused persons was never taken into custody; hence, was not produced in the court---Motorbike upon which all the accused persons were riding when they allegedly attempted to commit robbery and killed the deceased was not produced in the Trial Court, when the complainant was examined---Failure of the police to take possession of the relevant pieces of evidence in custody or not producing them in the court of law after taking their possession, either reflected their incompetency and or negligence on the part of Investigating Officer, causing fatal blow to the case of prosecution---appeal against conviction was allowed, in circumstances. Head NotesCase Description Citation Name: 2023 YLR 2015 FEDERAL-SHARIAT-COURTBookmark this Case ALI ASGHAR VS State S. 302(b)---Offences against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, haraabah---appreciation of evidence---Benefit of doubt---Night time occurrence---Source of light---Doubt---accused were charged for robbing the complainant party and when brother of the complainant offered resistance in a scuffle, in response, accused opened fire, killing him at the spot---Torch in the light of which the complainant saw and recognized all the three accused persons was never taken into custody---Said torch was never produced in the Trial Court creating serious doubt in the prosecution's case---Question was as to how in a dark night upon a katcha path way of village when there was no other source of light, the complainant and other witnesses recognized all three accused persons---appeal against conviction was allowed, in circumstances. Head NotesCase Description Citation Name: 2023 YLR 2015 FEDERAL-SHARIAT-COURTBookmark this Case ALI ASGHAR VS State S. 302(b)---Offences against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, haraabah---appreciation of evidence---Benefit of doubt---Delay in sending the empties and weapon of offence for expert opinion---Effect---accused were charged for robbing the complainant party and when brother of the complainant offered resistance in a scuffle, accused opened fire, killing him at the spot---Report of Forensic Experts produced by the Police Official revealed that the empty of 30 bore pistol allegedly secured from the place of incident on 25.03.2013 and three pistols with live bullets allegedly recovered from the accused on 27.03.2013, were received in the office of Ballistic Expert on 03.04.2013 i.e. after eight days of recovery of the alleged empty from the place of incident and after six days of alleged recovery of weapons from the accused---Nothing had been brought on record by the prosecution to show that where such property remained for the intervening period nor any explanation about that had been furnished by the prosecution---appeal against conviction was allowed, in circumstances. Head NotesCase Description Citation Name: 2023 YLR 2015 FEDERAL-SHARIAT-COURTBookmark this Case ALI ASGHAR VS State Benefit of doubt---Principle---Single circumstance creating reasonable doubt in the prudent mind about the guilt of the accused, benefit thereof will be extended to the accused not as a matter of grace or concession, but as matter of right. Head NotesCase Description Citation Name: 2023 YLR 2015 FEDERAL-SHARIAT-COURTBookmark this Case ALI ASGHAR VS State S. 302(b)---Offences against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, haraabah---appreciation of evidence---Benefit of doubt---accused were charged for robbing the complainant party and when brother of the complainant offered resistance in a scuffle, accused opened fire, killing him at the spot---Record showed that the incident was shown to have taken place at 09:00 pm and after the incident the complainant covered a distance of three kilometers to reach the police station and lodged his FIR at 09:15 p.m., and then after forming a police party, the Investigating Officer accompanying his police staff set out from the police station and after covering distance of three kilometers reached the place of incident where the mashirnama of place of incident and the danistnama of dead body of the deceased were shown to have been prepared at 09:30 pm i.e. within 15 minutes of lodging of the FIR, followed by preparation of lash chakas form at 09:35 pm within 05 minutes---Such condition of formalities in such short time span seemed incomprehensible--- Similarly, the reaching of co-villagers from a village, which was relatively at a greater distance to the place of crime upon hearing of the hue and cry and no person from village "H" and village "a", coming to the crime scene which were relatively nearer to the place of incident, was also incomprehensible, creating doubt in the story of the prosecution---appeal against conviction was allowed, in circumstances. Head NotesCase Description Citation Name: 2023 YLR 2015 FEDERAL-SHARIAT-COURTBookmark this Case ALI ASGHAR VS State S. 302(b)---Offences against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, haraabah---appreciation of evidence---Benefit of doubt---Contradictions and improvements made by the witnesses---accused were charged for robbing the complainant party and when brother of the complainant offered resistance in a scuffle, accused opened fire, killing him at the spot---Complainant had stated that he had mobile phone at the time of incident, while per alleged eye-witness, who happened to be his son, on the day of incident his father had no mobile phone---according to alleged eye-witness complainant had no mobile phone at the time of incident, but he went on to state that they informed their relatives on phone about the incident, therefore, mashirs reached at the scene of offence---While complainant had stated that said mashirs came at the place of vardhat on their hue and cries---Complainant and mashir had claimed that the place of incident was at the distance of two kilometers from their village; but per witness their village was at walking distance from the place of incident---Complainant had stated that the place of incident was situated adjacent to village "H" and village "B" was at a distance of about four acres from village "H" while a witness had stated that village "H" was situated at a distance of about 5/6 acres of land---according to one of the witnesses village "B" was at the distance of eight acres from the place of incident whereas per another witness village "B" was at the distance of 15/20 acres from the place of incident---Complainant had stated that they were going from southern side towards northern side to their village, while a witness had stated that they were going towards eastern side; whereas another witness stated that they were coming towards the alleged place of incident i.e. from eastern side to western side---as per complainant and a witness, the accused were standing on eastern side at the time of incident whereas according to another witness the accused were standing on western side at the time of incident---Per complainant and a witness, the accused persons had not robbed anything from them whereas another witness had stated that accused had robbed household things---One of the witnesses stated that his statement was recorded by Head Constable/Munshi of police station; police Official obtained his thumb impression on some documents but record revealed that no document, containing thumb impressions of said witness was produced by the prosecution in evidence---Complainant had stated that it was a dark night but he had one torch, which was in his hand and in the light of torch he identified the accused and, while proceeding towards Police Station he handed over the torch to the eye-witness, whereas per eye-witness when the complainant went to the police station, the torch remained with him---according to said witness, it was not in his knowledge whether the police had seized the torch as the case property or not---Complainant had stated that he had not produced the torch before the Investigating Officer, whereas according to eye-witness the complainant had produced the torch before the Investigating Officer and the police completed legal formalities with regard to the torch---On the contrary the Investigating Officer had stated that he had not seen any torch at the place of incident and, he made the mashirnamas on the headlights of police vehicle---Per complainant the deceased was fired at from a distance of one feet while one of the eye-witness stated that he saw the accused from a distance of 5/6 feet whereas another eye-witness stated that he saw the accused at a distance of two feet, but both of them did not disclose the distance from which the deceased was fired at---appeal against conviction was allowed, in circumstances. Head NotesCase Description Citation Name: 2023 YLR 2015 FEDERAL-SHARIAT-COURTBookmark this Case ALI ASGHAR VS State S. 302(b)---Offences against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, haraabah---appreciation of evidence---Benefit of doubt---Delay of one day in recording the statements of eye-witnesses---accused were charged for robbing the complainant party and when brother of the complainant offered resistance in a scuffle, accused opened fire, killing at the spot---admittedly, the statements under S. 161, Cr.P.C., of the alleged eye-witnesses were recorded by the police on the next day of the incident---although, prosecution claimed presence of the said alleged eye-witnesses at the place of vardat when police came and inspected the place of vardat and dead body and completed all the legal formalities, but no explanation for such an inordinate delay in recording statements of the alleged eye-witnesses had been offered by the prosecution---Testimony of such witnesses could not be safely relied upon---appeal against conviction was allowed, in circumstances. 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ALI ASGHAR vs State S — 2023 YLR 2015 FEDERAL-SHARIAT-COURT

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