SHAH JEHAN vs GULISTAN S — 2023 YLRN 3 PESHAWAR-HIGH-COURT

Fields are extracted from the reported citation and judgment text. Where a detail is not stated in the record, it is not shown.

SHAH JEHAN VS GULISTAN S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of two hours in lodging the report---Scope---Accused was charged for committing murder of the son of complainant by firing---Unexplained delay of more than two hours in lodging the report---However, the prosecution had advanced reason for it that the road was a Kacha one at that time, but, it was not appealable to a prudent mind keeping in view the distance between the spot and Police Station, when the complainant voluntarily stated that there was metal road to Police Station, which they had adopted for approaching the Police Station---Investigating Officer in his cross-examination had stated that he reached the spot at 22:45 hours, obviously he went to spot after registration of FIR within 35 minutes as time of report was 22:10 hours---Circumstances suggested that an abortive attempt had been made by prosecution witnesses to overcome the question of delay in FIR---Circumstances established that the prosecution had not been able to prove the charge against the accused beyond any reasonable shadow of doubt---Appeal against conviction was allowed accordingly. S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Night time occurrence---Source of light---Scope---Accused was charged for committing murder of the son of complainant by firing---Complainant and eye-witness had alleged that they had identified the accused in the light of bulb---Even otherwise, if it was presumed for a while that the complainant and eye-witness had identified the assailant in the light of bulb even in that eventuality the identification of the accused by the complainant and eye-witness at dark night hours was an important aspect of the case, which needed cautious attention by the Court---As per FIR, the time of occurrence had been mentioned as 20:00 hours in the month of April---According to prosecution, the complainant and alleged eye-witness had identified the accused in light of electric bulb installed in the thoroughfare---Eye-witness in his statement recorded under S.161, Cr.P.C., did not utter a single word regarding the bulb---Though vide recovery memo a 100 watt bulb was taken into possession by the Investigating Officer, which was allegedly lit in the thoroughfare, but, the marginal witness to the said recovery memo in cross-examination stated that it was about 10:00/10:30 p.m. when he thumb impressed the said recovery memos and that he did not know if any house or Hujra were situated near the place of occurrence---Investigating Officer in the opening sentence of cross-examination stated that he had reached the spot at 22:45 hours---Thus, the prosecution had failed to prove the source of light on or near the place of occurrence to corroborate the assertion of the complainant and eye-witness regarding identification of the accused in the pitch dark, therefore, their testimony to that effect, being suspect evidence, was not believable---Circumstances established that the prosecution had not been able to prove the charge against the accused beyond any reasonable shadow of doubt---Appeal against conviction was allowed accordingly. S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Identification of accused by the eye-witnesses was doubtfull---Scope---Accused was charged for committing murder of the son of complainant by firing---Assailants chose the nocturnal time for killing the deceased to conceal the identity and for that purpose he must had taken all necessary precautions in view whereof it was not so easy for the complainant and eye-witness to identify him in the mode and manner as narrated by them in their statements---If their statements were believed, it would mean that the assailant had willfully exposed his identity to the complainant at the time of firing, specifically when there was agricultural property, which was adjacent to the place of occurrence mentioned in the site plan and the assailant could easily conceal his identity in the landed property and achieve the target---If that was the aim of the assailant he would have never chosen the night time for committing the crime rather he would have committed the same in broad daylight---So, keeping in view the time as well as mode and manner of the occurrence, identification of the accused by the complainant and eye-witness was doubtful---Identification of the assailants by the complainant and eye-witness was not free from doubt, the benefit of which must be given to accused as per well settled principle of criminal justice---Mode and manner as narrated by complainant and eye-witness was not appealable and believable to a prudent mind---Circumstances established that the prosecution had not been able to prove the charge against the accused beyond any reasonable shadow of doubt---Appeal against conviction was allowed accordingly. Benefit of doubt---Principle---If there was circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right. S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Presence of eye-witnesses at the spot was doubted---Scope---Accused was charged for committing murder of the son of complainant by firing---Motive behind the occurrence was altercation took place between the accused and deceased over cutting of "Bakayan trees" few days before the occurrence---Record showed that the occurrence had taken place on a thoroughfare---As per site plan on both sides of the thoroughfare there were houses and Hujra and that several persons attracted to the spot after the occurrence, but, even then the dead body of the deceased was lying on the spot for about 30 to 40 minutes and could not shift the dead body to hospital which was situated at a short distance, which could be covered within short time---As per postmortem report, the probable time between injury and death had been mentioned within 20 minutes---Complainant and eye-witness in their respective cross-examination stated that they all placed the dead body of the deceased in a Pickup after about 30 minutes of the occurrence and all accompanied the dead body to the Police Station, but, they did not utter a single word that their hands and clothes were besmeared with the blood of deceased---Even they did not produce their clothes besmeared with the blood of the deceased to the Investigating Officer---Investigating Officer did not bother to record the statement of driver of the Datsun Pickup and other persons who accompanied the dead body to the Police Station in order to establish the prosecution version regarding shifting the dead body to the Police Station in Pickup---Circumstances established that the prosecution had not been able to prove the charge against the accused beyond any reasonable shadow of doubt---Appeal against conviction was allowed accordingly. S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Motive was not proved---Scope---Accused was charged for committing murder of the son of complainant by firing---Motive behind the occurrence was altercation took place between the accused and deceased over cutting of "Bakayan trees" few days before the occurrence---Record showed that the Investigating Officer stated that he had recorded the statement of eye-witness at about 11.30 p.m. and that the eye-witness had not disclosed the motive as altercation over cutting of trees rather had disclosed the dispute over not selling of the house by the accused to the complainant---From the said statement of the Investigating Officer that there was direct motive in between accused and complainant over the refusal of accused about non-selling of his accused to the complainant on low market price---Since the direct motive was in between complainant and accused and it was not possible that he would have been spared if he was present at the spot at the relevant time---Circumstances established that the prosecution had not been able to prove the charge against the accused beyond any reasonable shadow of doubt---Appeal against conviction was allowed accordingly.

SHAH JEHAN vs GULISTAN S — 2023 YLRN 3 PESHAWAR-HIGH-COURT

Case information

Judgment text as reported