Citation Name: 2023 YLR 2323 PESHAWAR-HIGH-COURTBookmark this Case MUHAMMAD ZAHIR SHAH vs AMIN-UR-REHMAN Ss

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Citation Name: 2023 YLR 2323 PESHAWAR-HIGH-COURTBookmark this Case MUHAMMAD ZAHIR SHAH VS AMIN-UR-REHMAN Ss. 302(b), 324, 311 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, common intention, possession of unlicensed arms---Appreciation of evidence---Benefit of doubt---First Information Report lodged after deliberation and consultation---Accused were charged for committing murder of the brother of the complainant by firing and also committed murder of wife of one of the accused on the pretext of honour---In the present case, if the eye-witnesses accompanied the deceased upto the spot, police would have recorded the report at least at 08:00 am but it appeared that they had deferred recording of the report till arrival of the females to the spot at 11:00 am---Thus, preliminary investigation was conducted in the matter and relatives of the deceased charged the present accused persons for the murder after deliberation and consultation as was evident from clear cut admission of witness that from 08:15 a.m. till 11:30 a.m. they consulted each other for charging the accused---Factum regarding preliminary investigation and procurement of the eye-witnesses was further confirmed from the fact that even post-mortems on the dead bodies were delayed till 04:00/04:30 pm on the same day otherwise there was no reason for such belated examination of the dead bodies by the doctor at Civil Hospital when the Police Station was also situated at a distance of only 7/8 kilometers from the spot, which could be covered within half an hour---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was accordingly allowed. Citation Name: 2023 YLR 2323 PESHAWAR-HIGH-COURTBookmark this Case MUHAMMAD ZAHIR SHAH VS AMIN-UR-REHMAN Ss. 302(b), 324, 311 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, common intention, possession of unlicensed arms---Appreciation of evidence---Benefit of doubt---Recovery of weapons of offence---Reliance---Accused were charged for committing murder of the brother of the complainant by firing and also committed murder of wife of one of the accused on the pretext of honour---Admittedly, the Investigating Officer had raided the houses of accused persons for the purpose of their arrest and recovery of crime weapons but no weapon was recovered from their houses on the same date---Recovery of 30-bore pistol had been shown from fodder-husk spread over the goat-yard inside the house of accused whereas 9 MM pistol was allegedly recovered on pointation of husband of lady deceased from the top of cupboard in veranda of his house---Prosecution had not explained that why the pistols were not recovered from the mentioned places inside the houses of accused persons during the first raid of police on their houses on the day of occurrence---Matching Forensic Science Laboratory Reports were of no avail to prosecution in view of the doubtful recoveries of crime empties and crime weapons---Parcels containing empties were handed over to constable on 10.03.2019 but he delivered the same in the forensic laboratory on 13.03.2019---Said Constable had not explained that for what purpose he had retained the empties with him for several days, hence, manipulation of the crime empties could not be ruled out in the circumstances---Corroborative recoveries of such doubtful nature could not be relied upon against the accused persons---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was accordingly allowed. Citation Name: 2023 YLR 2323 PESHAWAR-HIGH-COURTBookmark this Case MUHAMMAD ZAHIR SHAH VS AMIN-UR-REHMAN Ss. 302(b), 324, 311 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, common intention, possession of unlicensed arms---Appreciation of evidence---Benefit of doubt---Defective investigation--- Accused were charged for committing murder of the brother of the complainant by firing and also committed murder of wife of one of the accused on the pretext of honour---As per prosecution version, complainant was carrying the bag of deceased while the other eye-witness had a shopping bag of the deceased while on their way in the company of deceased---Strangely the Investigating Officer had neither taken the referred luggage of deceased into possession nor shown the same in the site plan to corroborate the version of complainant regarding departure of deceased to another place on the day of occurrence---Said omission on the part of Investigating Officer showed that the version of complainant as narrated in the FIR regarding departure of the deceased was only a concocted story---Even otherwise, carrying of loads was usually the job of males and it could not be expected from the deceased to let his sister and sister-in-law, being females to carry his bag and shopping bag---No evidence was available on record to show that the deceased was sick or otherwise incapable of carrying any load himself at the relevant time---Circumstances estab-lished that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was accordingly allowed. Citation Name: 2023 YLR 2323 PESHAWAR-HIGH-COURTBookmark this Case MUHAMMAD ZAHIR SHAH VS AMIN-UR-REHMAN Ss. 302(b), 324, 311 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, common intention, possession of unlicensed arms---Appreciation of evidence---Benefit of doubt---Disparity between the ocular account and site plan---Accused were charged for committing murder of the brother of the complainant by firing and also committed murder of wife of one of the accused on the pretext of honour---Investigating Office had not shown any stream in the site plan and it appeared that the pathway on which the occurrence took place, was leading towards a stream---From careful perusal of the statements of witnesses, it could be concluded that a stream was intervening between the spot of occurrence and houses of the accused persons but the site plan was silent regarding existence of stream in-between the houses of accused persons and the first crime spot---In light of the statements of the eye-witnesses, the place of first occurrence became doubtful because the same had been shown adjacent to the house of accused persons in the site plan---Said situation suggested concealment of real facts of the occurrence on the part of prosecution for the purpose of showing nexus of the present accused persons with the murder of deceased---Disparity between the ocular account and site plan created a reasonable doubt in prudent mind, hence, the story narrated in the FIR could not be believed---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was accordingly allowed. Citation Name: 2023 YLR 2323 PESHAWAR-HIGH-COURTBookmark this Case MUHAMMAD ZAHIR SHAH VS AMIN-UR-REHMAN Ss. 302(b), 324, 311 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, common intention, possession of unlicensed arms---Appreciation of evidence---Benefit of doubt--- Place of occurrence un-witnessed--- Scope---Accused were charged for committing murder of the brother of the complainant by firing and also committed murder of wife of one of the accused on the pretext of honour---Record showed that the second occurrence, wherein lady deceased was done to death, had remained un-witnessed because prosecution had not produced any eye-witness to establish involvement of accused with the said murder which was attributed to him---Though daughter-in-law of the female deceased, was examined but she was declared as hostile witness on the request of prosecution---During her cross-examination, said witness was only confronted with her statement under S. 164, Cr.P.C. and nothing material could be brought from her on record to establish that the assailant was the accused---Postmortem though showed that the female deceased had met an unnatural death due to firearm injuries, however, the said evidence alone was not sufficient to prove that the firearm injuries were caused to deceased by her husband/ accused---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was accordingly allowed. Citation Name: 2023 YLR 2323 PESHAWAR-HIGH-COURTBookmark this Case MUHAMMAD ZAHIR SHAH VS AMIN-UR-REHMAN Ss. 302(b), 324, 311 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, common intention, possession of unlicensed arms---Appreciation of evidence---Benefit of doubt---Delay of two hours in lodging FIR---Effect---Accused were charged for committing murder of the brother of the complainant by firing and also committed murder of wife of one of the accused on the pretext of honour---According to FIR, the occurrence took place at 09:00 am but the report was lodged at 11:00 am with delay of two hours---Even the said entries in the FIR appeared to be fictitious because witness, who had seconded the report of complainant, admitted in his cross-examination that he had reached the spot at 08:15 am and on his arrival police were already present on the spot---Thus, it appeared that the occurrence had taken place at least before 07:00 am and that fact could be confirmed from the contents of the FIR wherein the complainant stated that they had set off early in the morning---Term 'early in the morning' generally denoted the time before sunrise---Date of occurrence was 05.03.2019 and the time of sunrise in the area concerned as per calendar was 06:35 a.m.---Statement of witness clearly showed that on his arrival at the spot at 08:15 a.m. police were already present on the spot meaning thereby that real facts of the occurrence had been suppressed by prosecution---Mentioned circumstances on record suggested that police had deliberately delayed lodging of the report to procure the attendance of eye-witnesses---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was accordingly allowed. Citation Name: 2023 YLR 2323 PESHAWAR-HIGH-COURTBookmark this Case MUHAMMAD ZAHIR SHAH VS AMIN-UR-REHMAN Ss. 302(b), 324, 311 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, common intention, possession of unlicensed arms---Appreciation of evidence---Benefit of doubt---Medical evidence and ocular account---Contradictions---Accused were charged for committing murder of the brother of the complainant by firing and also committed murder of wife of one of the accused on the pretext of honour---Complainant in her examination-in-chief had attributed two effective fire shots upon deceased to accused, while other accused was assigned only one fire shot thereby causing injury on the right side of chest of the deceased---According to medical report of deceased, the Medical Officer had observed three inlet wounds all of 1/2 inch in size---Version of prosecution was that accused was armed with 30-bore pistol while other accused had fired at the deceased with 9 MM pistol---Definitely, fire shots with two pistols of different bores would have caused entry wounds of different dimensions on the deceased but the situation in the present case was different---Medical Officer stated that similar characteristics of wounds suggested firing from one and the same weapon---Thus, the entry wounds of same size on the dead body of deceased suggested that it was a one man job but the charge was exaggerated by complainant by implicating two persons in the case---Furthermore, it could not be determined from the evidence on record that which one of the two accused had killed the deceased---Lady Medical Officer had reported two entry wounds both of 1.5 cm in size which did not tally with the size of inlet wounds on the dead body of lady deceased---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was accordingly allowed. Citation Name: 2023 YLR 2323 PESHAWAR-HIGH-COURTBookmark this Case MUHAMMAD ZAHIR SHAH VS AMIN-UR-REHMAN Ss. 302(b), 324, 311 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, common intention, possession of unlicensed arms---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 brother of the complainant by firing and also committed murder of wife of one of the accused on the pretext of honour---Record showed that the dead body remained at the spot for two hours till arrival of police but neither the eye-witnesses nor anybody else shifted the dead body to police station or hospital---How could it be expected from eye-witnesses that when their near and dear was done to death in their presence they remained silent spectators for two hours without making any effort either to inform male members of their house or to inform the local police or other relatives, though their house was at walking distance of only 30 minutes from the spot---In the present era of modern technology when the entire world had become a global village and imparting a message now a days was just a matter of seconds, how the dead body laid unattended on the spot for two hours in spite of the fact that so many people were attracted to the spot soon after the occurrence as per prosecution version---Admittedly the eye-witnesses had not even touched the dead body though the assailants had decamped from the spot and for the said reason their clothes did not smear with the blood of deceased---Said conduct of the eye-witnesses was also unusual because women folk by their nature usually become more emotional as compared to males on the occasions of death of a family member---At such events women usually embrace and hug the dead bodies of their nears and dears especially when the matter was that of unnatural death but the eye-witnesses in the present case had not displayed the same conduct---Unusual and unnatural conduct of the eye-witnesses created doubts about their presence at the place and time of occurrence---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was accordingly allowed. Citation Name: 2023 YLR 2323 PESHAWAR-HIGH-COURTBookmark this Case MUHAMMAD ZAHIR SHAH VS AMIN-UR-REHMAN Ss. 302(b), 324, 311 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, common intention, possession of unlicensed arms---Appreciation of evidence---Benefit of doubt--- Recovery of crime empties and blood from the spot---Reliance---Accused were charged for committing murder of the brother of the complainant by firing and also committed murder of wife of one of the accused on the pretext of honour---Investigating Officer had visited the spot on the day of occurrence, along with Police Constables and allegedly recovered crime empties and blood from the two spots---Prosecution had examined marginal witness of different recovery memos---According to recovery memo, the Investigating Officer had recovered 05 empties of 30-bore pistol from the first spot, which were attributed to accused while a single empty of 9 MM bore pistol was recovered from the spot allegedly fired by other accused---As per other recovery memo, one empty and one live round of 9 MM bore pistol were recovered from the second spot and the same had been attributed to accused/ husband of lady deceased---Similarly, Constable, who was one of the attesting witnesses of recovery memos, recovered blood-stained earth from the first spot and blood-stained earth/grass and sickle from the second spot---Record showed that it was not the stance of prosecution that Investigating Officer had recovered the blood and crime empties from the spots during different visits at different times on the same date rather the Investigating Officer had admitted it in clear terms that besides him ASI, Constable and other private persons were present---Thus, in light of the evidence on record, the said marginal witnesses ASI and Constable were present on the spots at the time of recovery of blood-stained earth/grass and crime empties but Constable had denied recovery of empties from any spot---It was evident from the statement of Constable that no empty was recovered by Investigating Officer from both the spots in his presence though he was present there at the relevant times along with Investigating Officer and ASI, the witness of recovery of empties---Said state of affairs suggested that actually no empties were recovered by police from both the spots otherwise Constable would have verified the said factum during his cross-examination---Status of recovery of crime weapons on pointation of both the accused was similarly doubtful---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was accordingly allowed. Citation Name: 2023 YLR 2323 PESHAWAR-HIGH-COURTBookmark this Case MUHAMMAD ZAHIR SHAH VS AMIN-UR-REHMAN Ss. 302(b), 324, 311 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, common intention, possession of unlicensed arms--- Appreciation of evidence--- Benefit of doubt---Contradictions and improvements made by the witnesses---Accused were charged for committing murder of the brother of the complainant by firing and also committed murder of wife of one of the accused on the pretext of honour---Record showed that the statements of both the eye-witnesses were unreliable for the reason that not only they had contradicted each other on material particulars of the occurrence but they had also dishonestly improved their statements to bring the same in conformity with circumstantial evidence on record---Complainant stated in her cross-examination that on arrival of police, the dead body of deceased lady had not been brought to the spot of first occurrence while eye-witness stated that dead body of said deceased lady and police reached the spot at the same time---Said divergent versions of both the eye-witnesses regarding the same material fact did not tally with the version of SHO in FIR as according to him the dead body of the male deceased was lying on the spot while the people had shifted the dead body of lady deceased---Narrations of the eye-witnesses in court with regard to their order of walking on the thoroughfare at the time of incident, specification of firearms and specification of the roles of both the accused with regard to injuries sustained by deceased did not occur in the FIR---Defence had confronted both the eye-witnesses with their statements under S. 161, Cr.P.C., during their cross-examination which showed that the eye-witnesses had dishonestly improved their initial version to bring their statements in line with site plan and medical evidence---Dishonest improvements on the part of a witness casted a serious doubt on his veracity---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

Citation Name: 2023 YLR 2323 PESHAWAR-HIGH-COURTBookmark this Case MUHAMMAD ZAHIR SHAH vs AMIN-UR-REHMAN Ss — 2023 YLR 2323 PESHAWAR-HIGH-COURT

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