Murder Trial

Section 302

Pakistan Penel Code

 

Punishment of qatl-i-amd

 

 

Whoever commits qatl-i-amd shall, subject to the provisions of this Chapter be:—

 

(a)        punished with death as qisas;

 

(b)        Punished with death or imprisonment for life as ta’zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or

 

(c)        punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable.

 

 

Court Decisions

 

1.                  Abatement

 

2.                  Abscondence of accused

 

3.                  Accomplice

 

4.                  Accused summoned by Trial Court after their discharge by Magistrate 

 

5.                  Acquittal of accused

 

6.                  Admissibility of evidence decided by Sessions Court

 

7.                  Admission and confession

 

8.                  Age of accused 

 

9.                  Appeal against acquittal 

 

10.              Appraisal of evidence

 

11.              Approver

 

12.              Attachment of property

 

13.              Authentication of documents

 

14.              Award of death punishment

 

15.              Badal-e-Sulh

 

16.              Bail

 

17.              Benefit of doubt

 

18.              ­Burden of proof

 

19.              Case found fit for issuance of process by High Court

 

20.              Chemical examiner

 

21.              Child witness

 

22.              Circumstantial evidence

 

23.              Common intention

 

24.              Compensation to the heirs of the deceased and imprisonment in default of such compensation

 

25.              Complaint dismissed for non-prosecution

 

26.              Compromise

 

27.              Conditions for Acceptance of Compromise by court

 

28.              Confession

 

29.              Considerations in reduction of Sentence

 

30.              Contributory negligence

 

31.              Culpable homicide not amounting to murder

 

32.              Deceased last seen

 

33.              Discharge of accused

 

34.              Discharge order not to be treated as an order of acquittal

 

35.              Doctrine of “diminish responsibility”

 

36.              Doctrine of double jeopardy

 

37.              Dying declaration

 

38.              Enhancment of amount of compensation

 

39.              Evidence of interested witnesses

 

40.              Evidence

 

41.              Examination of the accused under S.342, Cr. P. C

 

42.              Falsus in uno falsus in omnibus

 

43.              General amnesty

 

44.              Grave and sudden provocation

 

45.              Guidelines

 

46.              Hostile witness

 

47.              Identification parade

 

48.              Injured witness

 

49.              Inquiry u/S. 202 of Cr. P. C.

 

50.              Interested witness

 

51.              Jurisdiction of Trial court, determination of

 

52.              Kidnapping or abduction for extorting money and murder

 

53.              Last seen Evidence

 

54.              Leave to appeal

 

55.              Medical evidence

 

56.              Medical jurisprudence

 

57.              Mitigating circumstances

 

58.              Motive

 

59.              Murder, rape etc. by 3 persons

 

60.              Ocular testimony

 

61.              Opinion of police official and expert evidence

 

62.              Permission granted to prosecution to cross‑examine its own witness

 

63.              Petition for acquittal of accused person

 

64.              Plea of alibi

 

65.              Plea of self-defence

 

66.              Police officials as Witnesses

 

67.              Press reports—Admissibility

 

68.              Prisson Rules, Rr. 35, 38, 206 & 218

 

69.              Private defence, right of

 

70.              Procedure of Special Court

 

71.              Promptly lodged FIR

 

72.              Punishment of death as Qisas

 

73.              Quantam of Sentence

 

74.              Quashing of proceedings by High Court

 

75.              Question of fact

 

76.              Reappraisal of evidence

 

77.              Recovery

 

78.              Registration of a criminal case against police officials

 

79.              Reinvestigation of case after discharge of the accused

 

80.              Related witnesses

 

81.              Remand of Case

 

82.              Re-Trial  of accused arrested later

 

83.              Revision against Acceptance of application u/Section 540 Cr. P. C.

 

84.              Right of private defence

 

85.              Rule of consistency

 

86.              Rule of res gestae

 

87.              Scope

 

88.              Section 382-B Cr. P. C

 

89.              Sentence, reduction in

 

90.              Site plan

 

91.              Sole statement of wife of deceased

 

92.              Sole Witness

 

93.              Summoning the accused persons to face the trial

 

94.              Taking a specific plea

 

95.              Terrorism and act of terrorism

 

96.              Waiver or compounding of Qisas

 

97.              Witness

 

 

Abatement-One of the convict dying-Appeal not abated. 1989 MLD 3730 Convict dying trying to escape in jail break up Sentence of fine not abated. PLD 1987 Kar. 250.

 

Abscondence of accused :— Accused absconded after the occurrence and remained absent for about two years and nine months‑‑No plausible reason offered for his long absence‑‑Conduct of accused, held, could legitimately be taken notice of under Art.21 of Qanun‑e­ Shahadat and could be used as corroborative piece of evidence against him: 1989 P Cr. L J 1511 Abscondence Is important factor. 1989 P.Cr.L.J. 784. Has to be judged in circumstances of each case. 1989 MLD 4219. Long period-Can be’ used as corroborative piece of evidence. 1989 P.Cr.L.J. 1511, 1275. but Abscondence by itself not a substantive piece of evidence, 1989 P. Cr. L. J. 2289, therefore Not sufficient for conviction. 1989 P.Cr.L.J. 2100 + PLD 1986 Pesh. 150. nor it is a corroboratory evidence. 1987 MLD 1287. but Right of hearing may be forfeited. PLD 1987 Kar. 250. As per one view, accused can evade arrest on account of false implication., 1986 SCMR 982. it is a  weakest corroborative evidence. PLD 1977 S.C. 41. And For some days per see not helpful. 1989 P.Cr.L.J. 2038. where warrant not placed on record. 1989 P.Cr.L.J. 2315.

 

Factum of abscondence of accused cannot altogether be ignored as its corroborative value carries substantial weight. PLD 2004 SC 330

 

Abscondence by itself is not sufficient to convict an accused person, but it is a strong piece of corroborative evidence of the direct and circumstantial evidence in the case. 2004 P L D 166 quantum of abscondence of accused for more than 4 years would go a long way to corroborate and strengthen truth of prosecution version—Medical evidence was also in corroboration of ocular account of occurrence—Charge against accused was thus, proved against any shadow of doubt who had thus, been rightly convicted by trial Court. PLJ 2004 Cr.C Pesh. 138

 

Abscondence of accused alone cannot be a substitute for real evidence- No conviction can be recorded on the sole ground of abscondence. 2004 M L D 298

 

Accomplice :– Conviction of an accused in a criminal case can be legally based solely on the evidence of an accomplice, but on factual plane corroboration of the testimony of accomplice is required.‑ Approver’s evidence; though acceptable, yet should be approached ‑‑‑Usual tests for weighing evidence of an approver are, probability of the truth of his deposition, the circumstances in which evidence has been given by him, whether, he has made a full and complete disclosure of facts involved in the case and corroboration in material particulars of his testimony from other sources.‑ Defence plea had, no bearing on the prosecution case and was rejected‑‑‑Evidence regarding extra judicial confession made by accused was reliable‑‑‑Accused had killed‑the deceased in conspiracy with the approver on the night of occurrence after having entered his house and his participation in the commission of the offence was not doubtful‑‑‑Statement of approver was voluntary and was corroborated by evidence of recovery and could be relied upon for conviction‑‑‑Conviction of accused was upheld accordingly. The King v. Baskerville (1916) 2 KB p.658 and Shamsher Bahadar Saxena v. State of Bihar AIR 1956 Pat. 404 ref. Conviction of accused was based on the evidence of accomplice‑‑‑Sentence of death of accused was reduced to imprisonment for life in circumstances: ‑ 1995 M L D 1663

           

Accused summoned by Trial Court after their discharge by Magistrate  — Magistrate had discharged the accused on Police report without examining the record and without giving reasons therefor Such a mechanical order passed by Magistrate without application of mind was not binding on the Trial Court  – Accused, despite the discharge order, had been placed in column No.2 of the Challan  – Trial Court had the discretion to summon the accused in the case to face the trial and such discretion having been exercised in accordance with law did not suffer from any patent illegality so as to call for interference  – Constitutional petition was dismissed accordingly. 1999 M L D 1822

 

Acquittal of accused :–Once an accused had earned acquittal in his favour, he enjoyed double presumption of innocence and the Court while examining the case of such accused must be very careful and cautious in interfering with the acquittal order and normally should not set aside the same merely fro the reason that some other view was also possible—Interference, however, could be made in exercise of powers conferred upon the Court under S. 417, Cr.P.C if it was proved that the court whose judgment was under scrutiny had misread such evidence. PLD 2003 SC 644

Acquittal-.Does not mean that accused falsely implicated. 1990 SCMR 1277 + PLD 1959 S.C. 480.

 

Admissibility of evidence decided by Sessions Court—Statement of the accused with respect to the production of revolver by him distinctly related to the fact regarding the production of a revolver by him—Objection raised from the side of the complainant was that the statement of the prosecution witness to the effect that “j accused had stated that pistol produced by him belonged to K” was a confession before the police and as such the said statement was not admissible—Even a cursory glance through the aforesaid statement indicated that it was not a confession before the police and could in fact be treated information as visualized under Art. 40 of the Qanun-e-Shahadat, 1984—Impugned order passed by Sessions court was a legal order and could not be treated as perverse or fanciful in any way—Revision petition was misconceived and was dismissed accordingly. PLD 2003 Lah. 394

 

Admission and confession :– Trial Court in convicting accused relied upon retracted confessional statement of accused which was not recorded in accordance with provisions contained in Ss.164 & 364, Cr.P.C. which were mandatory in nature—Non-compliance of said mandatory provisions of law, was not a mere irregularity which was curable, but was an illegality which was incurable—Conditions for accepting confession as admissible evidence against person making it were much more severe and strict according to Shariat. 2000 P Cr. L J 465

           

Age of accused—Trial court as well as Appellate Court while discarding the School Leaving Certificate produced by the accused had rightly concluded that he was not below the age of 18 years on the day of incident—Accused had neither agitated the point of his minority during investigation nor produced any documentary evidence, but took such plea for the first time in the trial which appeared to be an afterthought—Ocular account furnished by the eye-witnesses including the injured witness was fully corroborated by medical evidence, motive, recovery of weapon of offence at the instance of accused and positive Serologist’s Report—Accused had committed the cold-blooded murders of his mother-in-law and her mother in a brutal and atrocious manner and he did not deserve any leniency in the matter of sentence— Impugned judgment did not call for any interference- Leave to appeal was refused accordingly.   PLD 2003 SC 1     

 

Appeal against acquittal  – Liability of accused, if any, would arise by reason of S.34, P.P.C. but neither he was named in F.I.R. nor assigned any active role in commission of crime – Identification parade in respect of accused was even held after 11-1/2 months without any justification – No weapon was recovered at instance of accused and he was already confined in judicial custody at time of his arrest – No evidence being available connecting accused with commission of crime and keeping in view his explanation given in his statement under S. 342, Cr. P. C. he deserved acquittal – Appeal against acquittal accordingly dismissed. PLJ 2002 SC 444

 

Courts below after having thoroughly examined the evidence eon record had unanimously concluded that the prosecution had failed to establish accusation against the accused—Court in an appeal against acquittal was bound to see as to whether there was any piece of evidence which had not been considered or the evidence brought on record had been discarded for the reasons which were not recognized under the Law—High court as well as Trial Court had fully taken into consideration the prosecution evidence and no piece of evidence had been brushed aside for any extraneous consideration and finally concluded that the accused were not guilty of the offence charged—Impugned judgment, therefore, was not open to any exception—Leave to appeal was declined accordingly. 2004 S C M R 249

 

Presumption of double innocence being attached to accused after their acquittal, appeal against their acquittal had distinctive features and the order of their acquittal could only be interfered when it was found on the face of it as capricious, perverse, arbitrary or foolish in nature, which were lacking in the case—Impugned judgment was based on sound and cogent reasons and did not suffer from any illegality, infirmity or impropriety. PLD 2003 SC 563

 

Private complaint suffered from an unexplained delay of three months and four days which apparently had been filed after due deliberation, consultation and in consonance with the injuries shown in the post-mortem report— Complainant and eye-witnesses had improved the prosecution case by exaggerating the matter beyond the contents of the F.I.R registered earlier by the complainant, in order to bring the case in consonance with the medical evidence— Ocular evidence was falsified by the medical evidence making the incident an unseen one- Finding of acquittal recorded by the High Court could not be shown as perverse, arbitrary or capricious—Appeal against acquittal of accused was dismissed in circumstances. PLD 2003 SC 14

 

Three hours’ unexplained delay in lodging the F.I.R showed that it was lodged after preliminary investigation, deliberation and consultation and that the complainant was called from his village situate at a distance of three miles—Retracted judicial confession of accused was not in conformity with the ocular evidence with regard to the time and circumstances to the occurrence admit was also not in consonance with medical evidence especially about the number of shots fired at the deceased and was not corroborated by material particulars—Recovery of the weapon of offence was neither made at the instance of accused nor in his presence—Acquittal of accused by High Court was not based on any misreading or non-reading of the material evidence or misconstruction of law. PLD 2003 SC 70

 

Appraisal of evidence : — Accused was caught at the spot and the rifle used in the crime was secured which was found by the Ballistic Expert to have fired the crime empty – Reliable, satisfactory and unimpeachable ocular evidence connecting the accused with the commission of the crime being available, weakness of motive could not be a mitigating circumstance for awarding lesser punishment – Accused could not be expected to carry a rifle to the house of the complainant at the odd hours of the night for the purpose of settlement – Failure of prosecution to mention the injuries found inflicted on the person of the accused was not, by itself, a sufficient ground for withholding capital punishment, as the same might not have been noticed by the complainant or other witnesses in view of the fatal incident having taken place in the family – Convictions and sentences of accused were upheld in circumstances, 2001 SCMR 1334

 

Muhammad Nawaz Khan v. Mubarak Ali 2000 SCMR 1582; Muhammad Yaqoob v. State 1999 SCMR 1138; Bilal Ahmad v. State 1999 SCMR 869; Naubahar v. State 1999 SCMR 637; Woolmingtin’s case 1935 AC 462; Talib Hussain v. State 1995 SCMR 1776; State v. Sobharo 1993 SCMR 585; State v. Rab Nawaz PLD 1974 SC 87 and Ghulam Muhammad v. AlLah. Yar PLD 1976 SC 241 ref.

 

Abduction of the deceased doctor and other doctor (eye-witness) from an open place on gun point and subsequent murder of eh deceased for the deceased for the reason that the patient could not get desired result by the treatment given by him would create unrest, panic and terror against the doctors who were discharging very sacred duty in the medical filed—Eye-witnesses were entirely independent, truthful, natural and reliable witnesses who had not enmity or grudge against the accused to depose falsely in the case—Eye-witness who was a doctor and victim of the occurrence had narrated the incident in each detail without any omission and addition and hi evidence being of unimpeachable character was alone sufficient to the charge which was amply corroborated by medical evidence, motive and incriminating recoveries—Injury on the person of the deceased attributed to accused was individually found sufficient to cause death in the ordinary course of nature—Accused had played an active role in the occurrence in which the innocent doctor was done to death in a gruesome manner with extreme highhandedness and brutality causing terror in the area—case against accused under S. 7 of the anti- Terrorism Act, 1997, had been established beyond any doubt and he was convicted thereunder accordingly and being not entitled to any leniency in such case of terrorism was sentenced to death—Conviction of accused under S. 302, P.P.C was maintained with enhancement of his sentence from imprisonment for life the death—Conviction and sentence of accused under Ss. 365& 411, P.P.C were also maintained. PLD 2003 SC 396 Legal representatives of the deceased child viz. his father and mother had compounded and compromised with the accused waiving their right of Qisas and Diyat and pardoning him in the name of Almighty Allah—Compromise being genuine and voluntary, permission to compound the offence under S. 302, P.P.C was accorded and the accused was acquitted of the charge under S. 302, P.P.C – offence under S. 365-A, P.P.C being not compoundable could not be allowed to be compounded and the case against accused thereunder had to be decided on merits—Evidence with regard to the kidnapping of the deceased child for the purpose of extorting ransom money by the accused was of unimpeachable character—Threatening letters sent by the accused to the father of the kidnapped child had been proved to be in his handwriting—Accused had arrived at the suggested place and picked up the ransom money where he was caught and received fire-arm injury at the hands of police party—Dead body of the kidnapped child was recovered at the information of the accused from the place which nobody else could have known—Minor boy aged 10/11 years had been murdered by the accused for ransom—Kidnapping for ransom was rampant in society—No mitigating circumstance for reduction in sentence was available on record—Conviction and sentence of death of accused under S. 365-A, P.P.C were upheld in circumstances.  PLD 2003 SC 389 Appreciation of evidence – eye-witness being the paternal uncle of the deceased and living at a distance of three kilometers from the place of occurrence, his presence on the spot at 2-30 a.m. was doubtful – Even otherwise statement of the said eye-witness was not convincing and confidence-inspiring and the same could not be believed—prosecution had failed to prove that the deceased had made her statement before the Investigating officer who had not even obtained a certificate from a doctor of the hospital before recording her statement that she was fit to make a statement—Recording her statement that she was fit to make a statement—Recording of dying declaration by the police officer instead of a Magistrate had diminished its value and no conviction could be safely based on the same being against the established principles of law and justice—No other evidence was available on record to show that the accused had sprinkled kerosene oil on the deceased as a result of which she was burnt—Accused was acquitted in circumstances. PLD 2003 Lah. 270 Inconsistency between the statements of prosecution witnesses made before the Investigation officer—Significance—Contention of the accused was that according to the F.I.R as well as the statements made by eye-witnesses before the police during the investigation, deceased as well as complainant and his son had also resorted to firing at the accused party but during the trial the eye-witnesses had deviated from that stand and had not only changed the complainant party’s place of presence but had also tried to suppress the factum of firing by the deceased as well as by the complainant and his son and had further tried to maintain that no gun of the deceased or any empty had been recovered from the spot by  the Investigating officer—such shifting of stand, it was contended, established that eye-witnesses were capable of telling lies and were not shy of changing their stance to hide the truth and it was thus unsafe to rely upon the statements of such witnesses to telling  a conviction of the accused on a capital charge—Validity—Held, such contention of the accused was insufficient to totally discard the entire testimony of the eye-witnesses produced by the prosecution—Apart from the said particular inconsistency between the statements of said witnesses before the Trial Court and the Investigating officer there was no other material inconsistency between the statements of said witnesses before the Trial Court and the Investigating officer there was no other material inconsistency in their statements, especially regarding the role played by the accused during the incident in question—Inconsistency pointed out by the accused was only confined to the aspect of firing by the complainant party at the accused party which firing had admittedly remained ineffective and there was no doubt that  the said deviation adopted by the eye-witnesses before the Trial Court had been intended only to minims and play down the response of the complainant party at the accused party which firing had admittedly remained ineffective and there was no doubt that the said deviation adopted by the eye-witnesses before the Trial court had been intended only to minimize and play down the response of the complainant party so that at the end of the trial the accused party might not take up a plea of self-defence—Said effort by the eye-witnesses was only confined to such aspect of the case and the exercise itself had not caused any major dent because at the end of the trial the accused party had indeed chosen not to take a plea of self-defence, then, obviously, such a suppression by the eye-witnesses qua the initially asserted claim of firing by the complainant party could have assumed greater importance and significance in the present case—Such an inconsistency in the statements of the eye-witness produced by the prosecution, therefore, had not caused any major dent in or significant damage to the prosecution case against the accused, and thus the convocation recorded by the Trial Court could be maintained despite the said deviation adopted by the eye-witnesses in that regard—prosecution, in circumstances, having proved the guilt of the accused beyond doubt his conviction for an offence under S. 302(b), P.P.C by the Trial Court was upheld by the High Court. PLD 2003 Lah. 303

 

Accused, according to the evidence eon record, had come to the “Dera” of the deceased empty-handed in hot temper which indicated that he had no intention to commit the murder and in heat of passion picked up a wooden “Thoka” from the courtyard and inflicted blow to the deceased which resulted into his death—“Lalkara” made by accused before attacking at deceased that he would kill the deceased was not supported by the facts and circumstance of the case and the same appeared to be simply customary—No previous enmity existed between the parties except for the announce of the accused due to the grazing of the deceased’s cattel in his fields which caused the present occurrence—Incident was sudden affair in heat of passion without premeditation—Sentence of death of accused was reduced to imprisonment for life in circumstances with benefit of S. 382-b, Cr.P.C. 2004 S C M R 8 Leave to appeal was granted to complainant by Supreme Court to ascertain as to whether proper appreciation of evidence had been made by the High Court while acquitting the accused. PLD 2003 SC 14

 

Mention of the names of the eye-witnesses in the promptly lodged F.I.R had established their presence on the spot who were natural and probable witnesses of the occurrence—Eye-Witness account was not only graphic and consistent but also did not suffer from any serious discrepancy or contradiction—Ocular evidence was fully augmented by the promptly lodged F.I.R., established motive set up in the F.I.R medical evidence, recovery of crime weapon and the positive report of the Fire-arms Expert—Close relationship of eye-witnesses with the deceased and acquittal of two co-accused had no adverse bearing on the prosecution case in view of the fact that maxim “falsus in uno falsus in omnibus” has been discarded and substituted by the principle “Sifting the grain from the chaff”—Murders committed by the accused were brutal and gruesome—Accused had but only murdered the person they wanted to eliminate but also killed two unconnected persons in the process and there existed no mitigating circumstance. PLD 2003 SC 583

 

Old enmity existed between the parties due to an incident in which the leg of the accused had been fractured and he had a grievance against the complainant and the deceased, in such circumstances it was not believable that the deceased would accompany the accused on the pretext of getting him employed- Presence of the deceased, a stranger, in the house of accused in the night hours was, however, a sufficient extenuating circumstance in favour of accused—Conviction of accused was, therefore, upheld; but his sentence of death was altered to imprisonment for life in circumstances.   PLD 2003 SC 26

 

F.I.R. was based on the statement made by the accused before the police tending to incriminate him with the offence charged with, which was inadmissible in evidence by virtue of Art. 38 of Qanun-eShahadat, 1984 –  Discovery of the house at the instance of the accused Where the dead body was found could prove nothing, but his knowledge about the place of occurrence – Recovery of shot gun from the possession of accused and empties from the spot as well as positive report of the Ballistic Expert might, at their best, prove the use of the shot gun in the commission of the crime, but in no manner could prove that the same had been used by the accused in the commission of the offence –  Even otherwise, Ballistic report had no value as the shot gun and the empties had been despatched to the Ballistic Expert after a delay of one month – Necessary witnesses having not been examined in the case either during the investigation or in the Court; the story about the motive for the occurrence appeared to be false and fictional – Neither any direct evidence was forthcoming to connect the accused with the crime, nor any-circumstantial evidence incompatible with his innocence was available on record – Accused was acquitted on benefit of- doubt’ in circumstances. PLD 2001 Pesh. 132

 

Weakness of motive would not come in the way of the prosecution case in the presence of strong and reliable evidence, 2001 SCMR 1334 Talib Hussain v. State 1995 SCMR 1776 and State v. Sobharo 1993 SCMR 585 ref.

 

            Occurrence had taken place in the heart of the city and the venue was a busy market place with its hustle and bustle shortly before beginning of the curfew hours—Incident took place during broad daylight and the F.I.R in that regard had been lodged with sufficient promptitude wherein the names of the accused persons had clearly been mentioned with all the necessary details as the perpetrators of the alleged offence—Motive was conclusively established—Four persons had died during the said incident and nine others had sustained injuries out of which five injured victims had specifically deposed about the participation of the accused persons in that gory, grisly and blood-soaked incident—Witnesses had the stamp of injuries on their persons and their presence at the spot could not be disputed with any degree of seriousness—Injured witnesses had made consistent statements before the trial Court ant they had absolutely no motive to falsely implicate the accused persons in a case of such a grave nature—Straightforward and forthright statements made by the said injured eye-witnesses had not only impressed the Trial Court but the same had also inspired confidence of the court—Wajtakkar evidence had also provided corroboration to the ocular account and the statement of those witnesses regarding presence of the accused persons at and around the place of occurrence immediately after the incident had gone a long way in establishing participation of the accused persons in the occurrence—Medical evidence had also provided sufficient support to the ocular account in respect of all the relevant details and with regard to all the material particulars—Prosecution, in circumstances, had succeeded in proving its case against the accused persons recorded by the Trial Court was upheld and maintained subject to modifications that the convictions and sentences of the accused persons recorded by the Trial Court under Ss. 324/149, P.P.C and S. 7, Anti-Terrorism Act, 1997 read with S. 324, P.P.C in respect of one injured victim were set aside as the said injured victim had not entered the witness-box,  the sentence of death passed against one accused person for an offence under S.7, Anti-Terrorism Act, 1997 read with S. 302(b) , P.P.C was reduced to imprisonment for life as the sentence of death against the said accused on that count had apparently been erroneously and mistakenly recorded by the Trail Court, keeping in view the tenor of the sentences passed by it, against the other accused persons on that count and with a direction that in case of default of payment of compensation ordered by the Trial Court to be paid by the accused persons on various counts they shall undergo simple imprisonment for six months each on each of such counts. PLD 2003 Lah. 432

 

Accused had committed brutal murders of high officials viz. D.I.-G. and A.D.I.-G. in collusion with-each other while acting in a callous manner and they did not deserve any leniency—Strong and independent ocular evidence furnished by three prosecution witnesses was fully established on record—Both the incidents were so connected in time and space that they had constituted one and the same transaction, as such separate confessional statements were not required to have been recorded in each case, particularly when the motive too was common in them—Judicial confessions were not only true and voluntary but they stood corroborated by matching of empty bullets recovered from the dead body of the deceased and from inside the car, their positive Ballistic Expert Report, motive, last seen evidence, extra judicial confession and recoveries and thus the delay in recording the confession was not material—Confessional statements were not shown to have been recorded under any inducement, threat or promise and, thus, they were admissible in evidence in view of Art. 37 of the Qanun-e-Shahadat, 1984—Very basis for registration of prosecution case depended upon the recovery of the dead body from the Diggi, crime empties, crime weapons at the instance of the accused, voluntary surrendering and subsequent arrest of accused and these pieces of evidence being the connecting links were the natural relevant factors for registration of the F.I.R. which could not be said to have been lodged after preliminary investigation, consultation and deliberation—Motive for the occurrence had also been established on the record—No prejudice having been caused, to the accused in the investigation conducted by S.P., C.I.A., as such contention that he merely being complainant in the case was incompetent to be an Investigating Officer, had no force—No infirmity, misreading or non-appraisal of evidence having been pointed out, concurrent findings of the facts by the two Courts below did not call for .any interference by Supreme Court.  2001 S C M R 505 ­Statement made by the accused before police was inadmissible in evidence and the same having been not recorded before any Magistrate could not be equated with his confession‑‑‑Said statement was also not got signed by the persons of the locality who were visiting the. police station at the time when the accused had appeared there‑‑‑Defence plea that the deceased had committed suicide carried weight‑‑‑Mandatory provision of S.364(2), Cr.P.C. having not been complied with by not getting the statement of accused recorded under S.342, Cr.P.C. signed by him, such statement could not be treated as recorded in the case and the important piece of incriminating evidence, thus, having not been put to accused under S.342, Cr.P.C. could not be considered for the purpose of conviction against him‑‑­Statement of accused was not only reduced into writing by the police but was also got ‑signed by him and as ‑such the. same even could not be equated with one under S.162, Cr.P.C.‑‑‑Accused was acquitted in circumstances. 2001 P Cr. L J 1300 Confession made by co-accused though relevant under Art. 43 of the Qanun-e-Shahadat, 1984, alone cannot warrant conviction of an accused unless it is corroborated by any other reliable piece of evidence. ­Prosecution case rested on circumstantial evidence i.e. extra judicial confession allegedly made by the accused before prosecution witness who was closely related to the deceased and on the statement of another witness‑‑‑Both the said witnesses were interested witnesses and their statements had not been corroborated from any other independent source‑‑‑Mere evidence of extra­ judicial confession itself was not sufficient to base conviction on it as the same could easily be procured‑‑‑Motive of the accused as narrated by witness was not believable‑‑­Contradictions were found between the ocular account and the medical evidence‑‑­Prosecution having failed to establish its case against the accused beyond shadow of doubt, benefit of doubt was extended in favour of the accused‑‑‑Conviction and sentence of the accused were set aside in circumstances. 2001 Y L R 2683 Extra-judicial confession being a weak type of evidence cannot be made basis to determine the question of guilt or innocence of accused till the same is corroborated by other incriminating and confirmatory evidence. 2000 SCMR 683 Evidence of extra-judicial confession is not a strong evidence like that of judicial confession made before a Magistrate. — 1998 M L D 299

 

Post-mortem examination report and the diagrams showing the location of injuries were got proved through secondary evidence without first having led evidence that the concerned Doctor could not be found or had become incapable of giving evidence or his attendance could not be procured without causing delay or expense which under the circumstances of the case was unreasonable—Such secondary evidence brought on the record without complying with the provisions of Art. 46 of the Qanun-e-Shahadat, 1984, had to be excluded from consideration—Case was consequently remanded to Trial Court with necessary directions for doing the needful. 1994 P Cr. L J 1323 ­Complainant’s statement having been recorded during the trial of acquitted co­accused prior to the arrest of accused and .subsequently brought on record by consent of parties and relied upon, accused lead no opportunity to cross‑examine the complainant and thus evidence of the complainant could not be used against the accused‑‑‑Eye‑witnesses including the complainant had changed their version at the trial giving an entirely different story which was absolutely contrary to the earlier one for which there was no corroboration‑‑‑Even otherwise ocular testimony being interested and partial could not be relied upon without irrefutable corroboration which was missing‑‑‑Accused was acquitted in circumstances. P L D 1997 Kar. 146

 

All eye-witnesses had been cross-examined at length but they were not shaken despite a lengthy cross-examination and nothing beneficial was brought on record in favour of appellant nor any enmity of witnesses against appellant was brought on record. Court has no reason to disbelieve witnesses merely because they are Pakhtoons when they had no reason or motive to falsely implicate accused in commission of offence even ethnic fight between Hazaras & Pathans was not proved. Injurned witness’s statement was further corroborated by medical evidence. Presence of injurned witness’s was also admitted by other eye­witnesses. All eye-witnesses have satisfactorily explained their presence at place of occurrence and have fully corroborated each other on material points, and despite a lengthy cross-examination intrinsic value of evidence has not been shaken. They were not inimical towards appellant, and their testimony cannot be descarded merely because they were Pathan and appellant was a Hazara, thus they cannot be termed as chance witnesses. Witnesses though in their police statement have not given description of appellant but during Identification Parade appellant was properly identified by witnesses and it may be mentioned here that incident took-place in broad day light and it has come on record that prior to incident of firing appellant had a scuffle with injumed at crossing “of SuraJ Gan Bazar and Circular Road and from there appellant his two companions dragged injurned witness’s towards Dakkan Pansar Store where appellant fired at deceased persons. Eye-witnesses, who have otherwise explained their presence, had ample time to have properly seen appellant; besides, it was stated that because of peciluar features of appellant as he was squint-eyed;, therefore, he could be easily identified. Even in his statement under Section 340(2) Cr.P.C. appellant has not disputed his presence before Magistrate. Statements of both witnesses recorded under Section 164 Cr.P.C. further leads to conclusion that both witnesses were present at the time of incident. Contention that there are contradictions in statements of witnesses, it may be observed that while going through evidence, learned counsel for appellant pointed out minor contradictions in statements of eye-witnesses. Statement of eye-witnesses were recorded in Court after a period of more than one year of incident and such minor contradictions are but natural. It may be noted that intrinsic value of evidence has not been shaken despite a lengthy cross-examination by accused for appellant; thus minor contradiction pointed out by learned counsel for appellant are not of such nature which can disprove prosecution ease in toto.. Coming to alternative prayer of learned counsel for appellant regarding conversion of death sentence into life imprisonment, but Court do not feel persuaded to agree with learned counsel on this point. There are no extenuating circumstances to take a lenient view. Appellant has committed murders of two innocent persons. Appellant made three fires at one deceased and two fires at other deceased. Thus mode and manner in which deceased persons were done to death would not warrant any leniency in favour of appellant.  P.L.J.1999 Cr.C. (Qta.) 594 = PLD 1999 Qta. 61.

 

Accused did not give evidence on oath in disproof of the charges and allegations made against them at the trial as required under S.340(2), Cr.P.C. and were accordingly not subjected to cross­examination in violation of mandatory provisions of Art.44, Qanun‑e‑Shahadat, 1984‑‑‑Adverse inference on this score would be drawn against accused to be availed in corroboration of other prosecution evidence. 1990 P Cr. L J 1878 Dying declaration made by the deceased qua participation of two acquitted accused in the occurrence had been disbelieved—Deceased had received only one fire-arm injury at his back and the assailant had fired at him while sitting behind a two or three feet high Banna–­Identification of the assailant by the deceased, in circumstances, was open to definite doubt—Eye-witness claiming to be present on the spot must have satisfied the mind of the Court through some physical circumstance or through some corroborative evidence about his presence thereat, but no corroboration from any source was available to confirm his presence—Said eye-witness had also twisted the story as given by the deceased in F.I.R.—Parties admittedly being on inimical terms if there was motive to commit the crime, complainant would be equally motivated either to falsely charge the accused or to charge him with exaggeration–­Accused was acquitted in circumstances. 2002 P Cr. L J 163 Sanctity is attached to dying declaration by the statute which is to be respected unless clear circumstances are brought out showing the same to be not reliable‑‑‑No absolute rule existed that dying declaration cannot be made sole basis of conviction unless corroborated. Dying declaration made soon after the incident, or at a time when the deceased expected death, or at a time by which the deceased could not have consulted others, or received hints from others, will ordinarily be deserving great weight‑‑‑If the contents of the dying declaration appear to be true, having been made without any exaggeration and without making an attempt to rope in false persons, dying declaration will be worth reliance. 2001 S C M R 1474 Deceased, while in injured condition, reported the occurrence to the police and gave a very straightforward version of the occurrence where a single accused was charged for causing fire‑arm injuries to the maker of the report and other deceased‑‑‑Previous and immediate motive of occurrence was also given in the report‑‑‑Said report was though not recorded in consonance with 8.25.21 of Police Rules, 1934, but its evidentiary value had to be determined on the basis of all the surrounding circumstances i.e. whether deceased before his death was capable of making statement and was in his senses and whether scribe of said report had any ill‑will against the accused for fabricating a false statement‑‑‑No allegation was made against injured (who later on died) to the effect that he was incapable of making any statement‑‑‑Said fact was sufficient proof as to the capacity of the injured to have made the statement‑‑‑Statements trade by injured before death to the police were dying declarations and were admissible and being duly corroborated were reliable for basing conviction of the accused especially when those were not contradictory to each other‑‑‑Presence of eye‑witness at place of occurrence was natural as occurrence had taken place in front of house of witness‑‑‑Statement of other witnesses with regard to the main occurrence was also consistent‑‑‑Relationship of a witness with the deceased would only make him an interested witness but not inimical towards the accused‑‑‑Prolonged abscondence of the accused also had furnished additional corroboration to statements of eye‑witnesses and the maker of the report‑.‑‑Case of prosecution having stood proved, the accused were rightly convicted and sentenced‑‑Fine could not be imposed under S.302, P.P.C., therefore, instead of fine accused was to pay compensation under S.544‑A, Cr.P.C. 2001 PCr.LJ 1014

 

Crime empties secured from the scent fo murder were found by the Ballistic Expert to have been fired from the rifle and the pistol recovered from the possession of accused—prosecution witnesses had corroborated each other who where independent witnesses having no enmity or motive for false implication of accused—Chain of facts and circumstances from the stage of robbery till arrest of the accused and recovery of weapons of offence from them had established that they four in number, with common intention had committed robbery in the coach and thereafter committed the murder of the police constable—Judicial confession made by accused was true and voluntary and although it had been retracted, yet it was supported and corroborated on all material particulars by other evidence on record and, thus, it could safely be relied upon for conviction of accused—prosecution, thus, had proved its case against accused beyond doubt—Section 396, P.P.C being not applicable in the case, conviction and sentence awarded to accused thereunder were set aside—Other convictions and sentences of accused were maintained with necessary modifications. PLD 2003 Kar. 195

 

Culprits who were not previously known to the complainant and other eye-witnesses, had remained unidentified at the spot—Names of accused did not figure in the F.I.R and till their arrest in some other case they were not implicated in the present case in any capacity—No motive for the occurrence was set up by the prosecution—In the absence of any matching of the crime empties secured from the spot with the weapons allegedly recovered from the accused, no corroboration was available in the case even on this score—Identification parade was held after 35 days of the occurrence and normally eye-witnesses could not be expected to have correctly identified the accused after such a long period of their fleeting glace at them during the incident—One accused had not been identified by the witnesses during identification parade, while the other accused was not picked up with reference to the role played by him during the occurrence and his identification had no legal consequence—Medical evidence had belied the prosecution version—presence of the complainant and other eye-witnesses at the scene of crime at the relevant time was doubtful—Accused were acquitted in circumstances. PLD 2003 Lah. 425

 

            Deceased who was wife of accused gave statement in hospital before her death to the effect that accused had picked a quarrel with her and he brought some powder from inside the room and after throwing powder on her he lit a match and put her on fire and the accused had burnt her‑‑‑Statement given by deceased before her death stood amply proved by proper evidence before Trial Court as accused had failed to deny signature of her deceased wife on the statement produced in Court by prosecution witness‑‑‑Said statement of deceased, thus, would amount to a “dying declaration” of the deceased as it was clear that victim lady was in a precarious condition in the hospital after receiving burn injuries‑‑‑Accused received burn injuries on his hands which also stood proved from medical examination of accused who had himself admitted his presence at the scene of incident and admitted that his wife caught fire, but ,according to the accused, she had caught fire from stove‑‑‑Accused could have peen extended benefit of doubt if he had taken his wife to the hospital, if he had been present in his house had found her burnt by stove fire, but circumstances had shown that he was not present in his house when police came for his arrest‑‑‑Accused did not volunteer himself to go to police to report burning of his wife nor he stated that he had taken his wife to the hospital when she received burn injuries from stove‑‑‑Statement of accused, thus, appeared to be a clear lie when put in juxtaposition with prosecution story‑‑‑No benefit of doubt, thus, could be extended to accused which otherwise did not arise from the evidence of the prosecution‑‑‑Case against accused having fully been established, trial Court rightly convicted accused. 1998 P Cr. L J 489 Dying declaration being a weak type of circumstantial evidence, conviction on same alone should not be based unless it is supported by strong direct or circumstantial evidence. 1998 P Cr. L J – 1927

 

Disappearance of the deceased had not been reported to the police by anybody for two days till the recovery of his dead body—Murder of the deceased was an unwitnessed one—prosecution had failed to fix any date, time or place of murder—Dead body of the deceased was recovered from a sugarcane filed which was neither owned nor possessed by the accused and it was not recovered at pointing out of the accused—Record did not show that the accused had been seen by any body throwing the dead body at the place of its recovery—Witnesses of last seen evidence were chance witnesses whose testimony ran contrary to the medical evidence and did not inspire any confidence—Recovery of the car driven by the deceased on a joint disclosure and pointing out of the accused was of no evidentiary value—No person from the locality was even associated with the said recovery despite availability— Other incriminating recoveries allegedly recovered at the instance of the accused had been found to be concocted and of no avail to the prosecution—circumstances in which the deceased had met his death had remained shrouded in mystery and the medical evidence did not in any way connect the accused with the alleged crimes—Accused were acquitted in circumstances. PLD 2003 Lah. 283

 

Eye-witness had not nominated the accused in his first statement recorded under S. 161, Cr.P.C and introduced his name for the first time in his second statement recorded under S. 161, Cr.P.C by the crimes Branch Police—Said eye-witness could not satisfactorily explain as to why he had not nominated the accused in his first statement—Prosecution had spread the net wider to involve as many male members as possible—Presence of accused at the scene of occurrence seemed to be doubtful—Accused was acquitted in circumstances. Presence of eye-witness at the place of incident was established who had nominated the accused in his statement recorded under S. 161, Cr.P.C soon after the incident by the Investigating officer and had attributed to him the role of firing on the deceased—Statement of the said eye-witness inspired confidence and appeared t be true—Plea of alibi taken by accused in his defence being not convincing had been ruled out of consideration—Conviction and sentence of accused were upheld in circumstance. PLD 2003 Quetta 109

 

Eye‑witness who was real maternal‑uncle of accused and brother of deceased, had no enmity or ill‑will against accused and nothing was on record to suggest that deceased had any enmity with anyone‑‑‑Only one person/accused having been charged, question of substitution would not arise in the case ‑‑Prosecution/eye­witness has been consistent that occurrence had taken place in his presence‑‑‑Had the charge levelled against accused by eye‑witness who was real maternal‑uncle of accused, been false, other heirs of deceased would not have allowed him to do so or they would have compromised case with accused‑‑‑Mother of accused was murdered; but accused made no effort to make a report of occurrence, which had proved that he himself had committed murder of his mother‑‑‑In initial report blows had been attributed to accused, but in witness‑box, eye‑witness spoke of one blow given by accused to deceased‑‑‑Eye‑witness having not been confronted with report, no benefit could be given to accused‑‑‑Report made in hospital in shape of Murasila was signed by complainant who was an educated person‑‑‑Iron rod with which deceased was attacked, blood picked up .from spot with help of cotton, and blood‑stained shirt of deceased, had revealed human blood of same group as that of deceased as was evident from report of Forensic Science Laboratory‑‑‑Accused remained absconded for about two months after occurrence and no plausible explanation had been given for such abscondence‑‑‑Accused was a vagabond and was earlier involved in murder of his brother‑in‑law and just ten days before occurrence was acquitted in that case on basis of compromise‑‑‑In presence of convincing and reliable ocular testimony corroborated by unexplained abscondence and various recoveries with regard to guilt of accused, insufficient motive or failure to prove motive could not adversely affect the prosecution case nor same would make out a case for lesser sentence‑‑‑Death penalty awarded to accused by Trial Court by way of Qisas for want of required number of witnesses or confession of accused being not proper sentence of death should have been imposed as “Ta’zir” under S.302, P.P.C.‑‑‑High Court amended conviction order to the extent that accused was to suffer death as “Ta’zir”. 2002 P Cr. L J 1374

 

Ocular evidence was confirmed by medical evidence, recovery of blood-stained leg of the cot from the place of incident and the motive—Judicial confession of main accused regarding presence of his co-accused at the time of occurrence could be used as a supporting evidence against him—Defence evidence did not affect the prosecution evidence, rather it confirmed the ocular testimony to the extent of its main part relating to time and place of incident and the injuries caused to the deceased by the main accused using leg of the cot—Omission of not showing the said leg of the cot to the accused while recording his statement under S. 342, Cr.P.C was not of much significance—Conviction of accused was confirmed in circumstances—Mitigating circumstance in favour of main accuse was available on record in the shape of evidence showing his involvement in crime on account of family honour—Sentence of death of the accused was reduce to imprisonment for life in consequence—Sentence of co-accused was maintained—Appeal was disposed of accordingly. PLD 2003 Kar. 349

 

Motive for the incident, as given in the First Information Report, was that a month prior to the occurrence accused had been injured as a result of quarrel of children and a case was registered against he deceased, brother of the complainant, who was on interim bail and to avenge that, the accused committed the offence— Medical evidence contradicted the ocular account—Incident had taken place in altogether different manner—Investigatory evidence showed that the deceased was fired by the person, who could not be arrested in the case nor was arrayed as one of the accused in the case—Investigatory opinion was based on material which taking the overall view of the entire material no record, could be believed as the same was an opinion, which was not motivated and fitted more adequately in the ambience of the case than the prosecution case it self—Enmity between the parties started with fight over the children and certain trivial incidents had also taken place but that aspect of the matter would not lead to the conclusion that the accused had launched a pre-concerted attack on the complainant party, including the deceased—Prosecution had planned a story in order to involve a large number of persons in the case—Role ascribed to the accused was not established, rather same was contradicted by the medical evidence—Evidence of recoveries did not advance the case of prosecution in any manner—High court, while extending benefit of doubt to the accused, allowed the appeal of the accused and his conviction and sentence by the Trial Court was set aside and he was acquitted of the charges.  PLD 2003 Lah. 571

 

­Occurrence having taken place in daylight and the accused being a resident of the same “Ahata “, no chance of mistaken identity could arise—Deceased lady had no ulterior motive to falsely implicate the accused in the case or to substitute him for the real culprit–­Statement of the deceased lady made in an injured condition and treated as her dying declaration after her death not only inspired confidence but was free from taint and could be believed to be an honest inculpatory statement on which conviction could be based—Said dying declaration of the deceased was further corroborated by the medical evidence in respect of the weapon of offence used, locale of the injury and the damage caused by it —Abscondence of accused for more than four months had further pointed towards his guilt —Eye­witnesses, no doubt, had been won over by the accused being his close relatives, but the law was not so helpless as to grope in the dark—Dying declaration of the deceased lady available on record was by itself sufficient to be made a basis for conviction of the accused on a capital charge—Conviction and sentence of death of accused were confirmed in circumstances. 2001 Y L R 1470

 

Recovery witnesses not examined‑‑‑Inference would be drawn against prosecution. 1992 M L D 713 

 

Sole eye-witness of the incident was a natural witness whose presence with his deceased father on the spot was justified and his being son of the deceased did not make him interested to the extent of involving an innocent person in the murder of his father letting free the actual culprit—Said eye-witness was a reliable witness whose version was also corroborated by the F.I.R other prosecution witnesses, medical evidence and the unexplained abscondence of accused for seven years—Conviction and sentence of accused were upheld in circumstances.  PLD 2003 Quetta 60

 

Trial Court had convicted the accused not on the basis of the material produced before it but on the basis of the judgment recorded by High Court in the appeal filed by co‑accused maintaining his conviction and also on the verdict of  S. C. whereby jail appeal of said co‑accused was dismissed‑‑­Accused being not a party to the aforesaid previous judgments, the same had no prejudicial effect against him‑‑‑Trial Court despite having independently evaluated and assessed the available material on record did not proceed to decide the matter independently which had caused prejudice to both the parties because State could not file appeal against the prejudicial observations against it as ultimately conviction was recorded on wrong assumption of law and on the other hand since the accused was convicted for the reasons not recognized by law he could have filed appeal only to such extent‑‑‑Conviction and sentence of accused were consequently set aside and case was remanded to Trial Court for recording judgment independently in accordance with law after hearing the parties. 1996 P Cr. L J 1683

 

­Trial Court had recorded conviction against accused on statement of prosecution witness who had identified accused in identification parade‑‑‑Original memo of identification parade was not produced in Court but despite objection of accused only a photo copy thereof was produced and said photo copy was also not compared with original‑‑‑Prosecution, despite order of Trial Court, neither had made serious attempt to produce on record original memo of identification parade nor tried to prove same through secondary evidence‑‑‑No further efforts were made even by Trial Court to bring on record original document or to verify its authenticity through any other source or mode which was essential for just decision of the case‑‑‑Order of Trial Court convicting and sentencing accused was set aside and case was remanded to Trial Court for fresh decision after allowing the prosecution opportunity to bring on record original identification parade memo or to prove the same on record in accordance with law. 1999 P Cr. L J 1955 

 

Approver–Exculpatory statement cannot be used against another co-accused. 1989 P.Cr.L.J. 1262. Accomplice evidence. 1989 MLD 1271. Evidentiary value of 1989 SCMR 1375 When Lacking corroboration. 1989 MLD 1638. Tests-1987 P.Cr.L.J. 631. Approver cannot corroborate himself. PLD 1979 S.C. 53. Evidence of approver-Unworthy of credit. PLD 1971 S.C. 447.

 

Attachment of property – Petition for quashing of order – Respondents/accused against whom case of murder was registered, were absconding since registration of case against them and were arrested after about 12 years of their abscondence  –  After abscondence of respondent/accused their property was attached under S. 88, Cr. P. C.  which was purchased by the petitioners  –  After arrest of absconded respondents/accused, their property which was attached during their abscondence, was released to them  –  Later on, when case of murder was compromised respondents/accused were acquitted and their attached property which was purchased by petitioner was ordered to be given to respondents/accused to enable them to complete terms of compromise, petitioners had challenged the order according to which possession of property was given to respondents/accused, in their petition filed under S. 561-A, Cr. P. C.    –  Matter in dispute related to question of fact which would require recording of evident and its proper appraisal  –  In application filed by petitioner under S. 561-A Cr. P. C.  a correct adjudication could not be arrived at as matter was already agitated before competent court of civil jurisdiction  –  only civil Court could give a decision with regard to rights and obligations of parties in respect of disputed property in circumstances. 1999 P.Cr.L.J 359

           

Authentication of documents‑‑Military Court ceased to have jurisdiction in case before conclusion of trial‑‑No sentence awarded‑‑Stage for signing sentence and authenticating entire proceedings, not yet reached‑‑Record of evidence, held, could not be sent to Military Authorities for authentication in circumstances. 1989 P Cr. L J 2308

 

Award of death punishment :– The nature of the three injuries inflicted by the appellant on the deceased with dagger having 8 inches blade Showed that the appellant murdered the deceased in cruel manner when he was empty-handed and at the mercy of the appellant-Held that: The nature and locale of the injuries caused by the appellant with deadly weapon to the deceased ruled out any justification for imposing alternate penalty-Further held: Thai there was substantial force in the submission of the AG that once the charge of murder was proved the award of death was a normal penalty and this Court ordinarily did not interfere with a legal penalty awarded to the convict. PSC (Crl.) 1993 SC (Pak) 964

           

Badal-e-Sulh:– Badal-e-Sulh cannot be accepted if the sentence was admittedly awarded by way of Tazir and not Qisas.  PLD 2003 SC 547

 

Bail :‑‑‑No material was available on record to connect the accused with the commission of the alleged offence except the simple statements of three co‑accused recorded under S. 161, Cr. P. C. ‑‑‑Statement of accomplice involving co‑accused for bail purpose was not material of that strength which might disentitle the accused to the privilege of bail against whom the only material was the allegation levelled by his accomplice which required corroboration in material particulars‑‑‑More convincing material including strong circumstantial evidence corroborating the statement of the accomplice had to be present for the purpose of denying bail to accused; which was lacking in the case‑‑‑Case of accused for bail, even otherwise, was on better footing than that of co‑accused already admitted to bail by High Court and he was also entitled to bail on the ground of consistency i.e., maintaining equality of treatment amongst several accused placed in similar and identical circumstances‑‑­Accused was allowed bail in circumstances. 2000 Y L R 994 Munawar Hussain alias Bobi v. The State 1993 SCMR 785; Mumtaz Ali Shar and another v. The State 1993 PCr.LJ 1919; Noor Hassan v. The State 1994 PCr.LJ 661; Mir Murtaza Bhutto v. The State 1995 PCr.LJ 1416; Shabbir‑ul‑Hessan v. The State PLD 1991 SC 898; Hyder Hussain and others v. Government of Pakistan and others PLD 1991 FSC 139; Asif Ali Zardari and another v. The State 1992 PCr.LJ 171; Federation of Pakistan and others v. Gul Hassan Khan PLD 1989 SC 633; Federation of Pakistan v. Muhammad Shafi Muhammadi, Advocate and 3 others 1994 SCMR 932; Bhuboni Sahu v. The King AIR 1949 PC 257; Abdul Khaliq v. The State 1970 SCMR 307; Ghulam Qadir v. The State PLD 1959 SC 377; Muhammad Karim and 3 others v. The State 1988 PCr.LJ 1543; Abdul Qadir v. The State PLD 1956 SC 407 and PLD 1991 FSC 53 ref. Muhammad Fazal alias Bodi v. The State 1979 SCMR 9; Abdul Salam v. The State 1980 SCMR 142 and Walayat and another v. The State 1984 SCMR 530 rel.

 

Basic concept. PLD 1953 F.C. 170. Merit of the case should not be gone into. 1968 SCMR 728. But Bail should “not be withheld as a punishment. PLD 1968 S.C. 349. As Heinousness of offence not by itself sufficient to take away the discretion. PLD 1962 S.C. 495.

 

Petitioner declared to be of unsound mind-Not liable to be tried till declared fit-Petitioner released on bail in terms of S. 466 of Act (V of 1898). KLR 1985 Cr. C. 351

 

Inordinate delay in prosecution amounts abusing the process of law. PLD 1968 S.C. 353. Charge of murder – Not an insuperable bar. PLD 1962 S.C. 495. In case of uttering of lalkara. PLD 1966 SC 658. On medical ground. 1980 SCMR 305. Where jappa only attributed. 1981 SCMR 850. Deceased had earlier eloped with the wife of accused. 1984 SCMR 1557. Case of further enquiry. 1984 SCMR 1559.

 

Accused were not initially named as accused in the F.I.R. by the complainant‑‑‑Accused had not caused any injury either to the deceased or to the prosecution witness‑‑‑Role of ineffective firing was even not attributed to accused at the time of occurrence‑‑‑Investigation based on special oath involving the accused in the case could not be given any weight as Criminal Procedure Code, 1898 did not provide for such procedure and Art.l63 of Qanun‑e­-Shahadat, 1984 had barred the settlement of criminal cases on special oath‑‑‑Involvement of accused in the case, thus, was a matter of further inquiry‑‑‑Accused were admitted to bail in circumstances.   2000 Y L R 1294 Mst. Bashiran Bibi v. Nisar Ahmad and others PLD 1990 SC 83 and Hussain Ahmad alias Madni v: The State 1996 PCr.LJ 130 ref.

 

Benefit of doubt:– reasonable doubt not an imaginary but which having regard to the circumstances of the case would be entertained by a person of common prudence. 1974 SCMR 215. Conclusion reached without taking into consideration the relevant circumstances Benefit of doubt given to accused. PLD 1973 S.C. 469. where evidence of eye-witnesses inconsistent with medical evidence. 1972 SCMR 74; 1972 SCMR 221. Prosecution witnesses interested and inimical towards accused. 1970 SCMR 840. Enmity between the parties – Possibility of the accused being falsely implicated not ruled out. 1970 SCMR 220. Incident in a busy market – No independent evidence Benefit goes to the accused. 1973 SCMR 12.

 

Matching of gun allegedly used in occurrence and empties was also not free from doubt and since gun and cartridge were with Police, possibility of maneuvering the matching of the two could not be ruled out —Pointation of place of murder by witnesses which was against provisions of Art.40 of the Qanun-e-Shahadat, 1984 was not of any legal value —Co-accused was acquitted by Trial Court on basis of same evidence which was relied upon to convict accused—Evidence relating to extra-judicial confession could not dividedly be used against one accused for his acquittal and against the other for his conviction—Recoveries effected from accused were also not trustworthy so as to distinguish his case from acquitted co-accused—Prosecution having failed to establish its case against accused beyond any reasonable doubt, accused was acquitted giving him benefit of doubt. 1996 M L D 909 By the time the accused was being tried, co-accused, maker of the confession, had already been executed and was dead—Neither could both the accused persons be tried jointly, nor could the co-accused be examined as a witness in the second trial where the accused was being tried—Most necessary ingredient of the joint trial envisaged by Art.43 of Qanun-e­Shahadat, 1984, therefore, could never be fulfilled in the case and the confession made, by co-accused involving the accused could not be used as a circumstantial evidence against the accused of the second trial–­Consideration of the confessional statement of co-accused against accused in the second trial where he was not being jointly tried with co-accused was unlawful—Parties had a blood feud and when involved in a murder case, the abscondence of accused could have been natural either out of fear or out of sheer desire to remain away from the, clutches of police—Motive, alone, in the absence of evidence connecting the accused with the commission of the offence, could not lead to conviction and the same was true in the case of abscondence—Accused . was acquitted in circumstances. 2000 P Cr. L J 865 Confession of co-accused was admissible under Art. 43 of Qanun-e-Shahadat, 1984 and could be taken into consideration as circumstantial evidence provided same was proved against the maker of confession—Stage of proof of confession, no doubt would come at the trial, but bail application was to be decided on the basis of record available i.e. F.I.R., statements of witnesses, the confession, if any, or any other circumstantial evidence including motive—While deciding the bail application, the truthfulness or voluntariness of the confessor was not tested, but the fact that an accused was charged in the confession by itself was material which could be looked into alongwith other surrounding circumstances. 1998 M L D 1307 Confession‑‑­Confessional statement ordinarily should either be accepted or rejected as a whole where there is no other evidence, direct or circumstantial, to connect the accused with the crime, but in the presence of reliable, direct or circumstantial evidence Court is not bound to accept those portions of the accused’s statement which on face of prosecution evidence appear to be improbable or palpably absurd. 1995 M L D 1199 Extra-­judicial confession allegedly made by accused being a joint confession could not be used against either of them‑‑‑Recovery evidence even if accepted as correct could not advance the prosecution case‑‑‑Appeal against acquittal of accused by Trial Court was dismissed in circumstances. 1993 S C M R 1378 Story of motive as given by accused before prosecution witnesses and alleged extra judicial confession was not verified by Investigating Officer, though it should have been earnestly undertaken in order to strengthen chain of circumstances against accused—With such a doubtful motive, whole story of extra-judicial confession of accused was not only weak, but unreliable—Last seen evidence was given by a witness who was in Army Service and he was not only related in close degree to deceased, but was also a chance witness— Matching of gun allegedly used in occurrence and empties was also not free from doubt and since gun and cartridge were with Police, possibility of maneuvering the matching of the two could not be ruled out —Pointation of place of murder by witnesses which was against provisions of Art.40 of the Qanun-e-Shahadat, 1984 was not of any legal value —Co-accused was acquitted by Trial Court on basis of same evidence which was relied upon to convict accused—Evidence relating to extra-judicial confession could not dividedly be used against one accused for his acquittal and against the other for his conviction—Recoveries effected from accused were also not trustworthy so as to distinguish his case from acquitted co-accused—Prosecution having failed to establish its case against accused beyond any reasonable doubt, accused was acquitted giving him benefit of doubt. 1996 M L D 909

 

Neither the prosecution nor the defence coming out with true version Discrepancies of serious nature – Benefit given to the accused. 1973 SCMR 26. No evidence as to which of the accused were responsible for the fatal injury-Benefit of doubt goes to all the accused. 1968 SCMR 18. Plea of accused also be considered. PLD 1977 S.C. 15. Unseen murder. PLJ 1979 S.C. 172. Discrepancies between statements of eye-witnesses and circumstantial evidence. 1977 SCMR 393. Mere suspicion. 1990 MLD 2374. Prosecution and defence version equally plausible. 1990 MLD 1023.

­

Burden of proof—Where an accused raises plea of self-defence of his person or property and wants to bring his case within the ambit of any of the Exceptions of S.100, P.P.C. then onus to prove the same lies upon him–­Even according to Art. 121 of the Qanun-e-Shahadat, 1984, the burden to prove the existence of circumstances bringing the case within any of general Exceptions in Pakistan Penal Code or within any special Exception or proviso contained in any other part of the said Code or any law defining the offence, lies upon the accused. P L D 2002  S. C. 553

 

Case found fit for issuance of process by High Court –  Trial. Court after having received the enquiry report did not find any sufficient ground for proceeding and consequently dismissed die complaint – High Court, however, in exercise of its revisional Jurisdiction set aside the said order directing the Trial Court to proceed with the complaint in accordance with law – Complainant undoubtedly had a right for redress of his grievance, but the same was subject to the condition that sufficient ground for issuance of process was made out – Accused had already got registered the F.I.R. regarding the occurrence and the complainant about 14 months thereafter had brought his counter-version through a private complaint – No sufficient ground was available for issuance of process against the accused in the complaint case – Impugned order passed by High Court was, therefore, not sustainable in law and the same was consequently set aside – Appeal was allowed by S.C.  accordingly,  2001 SCMR 1738

 

Chemical examiner-The duty is to indicate the number of bloodstains found on each exhibit and the extent of each stain. PLD 1956 S.C. (Ind) 59.

 

Child witness—Testimony of a child witness should only be accepted after great caution and circumspection, because he is most susceptible to tutoring and on account of fear and inducement he can be made to depose about a thing which he had not seen and once having been tutored he goes on repeating like a parrot what he has been tutored to state—Child witnesses are most dangerous witnesses. Accused had killed his wife and his son and daughter being his direct descendants as well as “Wali” of the victim, he could be convicted only under S. 308, P.P.C for Qatl-i-Amd not liable to Qisas and not under S. 302, P.P.C as Qisas or Tazir—Conviction and sentence of accused under S. 302, P.P.C., therefore, was corm non judice— Evidence of recovery was hearsay and the positive Chemical Report in the absence of blood on the incriminating articles could not connect the same with the crime and had no evidentiary value—Incident appeared to be an unwitnessed one—F.I.R had been lodged after consultation and deliberation with delay—Child witness, the only eye-witness of the occurrence, did not implicate the accused at the earliest opportunity when he disclosed the occurrence to the prosecution witnesses and subsequently at the trial he implicated his own father after remaining in custody and care of the said witnesses—Testimony of the child witness, therefore, could not be made the basis of conviction—Accused was acquitted on benefit of doubt in circumstances. PLD 2003 Kar. 355

 

Circumstantial evidence:—Death sentence can be awarded on circumstantial evidence, provided all circumstances constituted a chain and no link is missing and their combined effect is that the guilt of the accused in established beyond any shadow of doubt. PLD 2003 SC 704

 

Common intention:–  Some overt act must be established. PLD 1970 SC 316. Can be formed at the spur of moment. 1973 SCMR 503. Absence of common intention-Each of the accused can be found guilty. PLD 1957 S.C. (Ind) 390. Knife taken from dab on the spur of moment-Jndividual act. PLD 1964 S.C. 177. All the accused acquitted except one, common intention disappears. PLD 1956 S.C. (Ind) 59. Vicarious liability. 1970 SCMR 576; PLD 1977 S.C. 446. Role not convincing. 1990 P.Cr.L.J. 1. Source of light. 1990 MLD 1110. Allegation of holding deceased. 1990 P.Cr.L.J. 2074. No overt act attributed. 1989 MLD 1716. Attack neither premeditated nor preconcerted. 1989 MLD 4900. No premeditation or sharing of common object. 1989 P.Cr.L.J. 1431. Immediate cause of occurrence not known. 1989 MLD 2701. Vicarious liability. PLD 1985 Sh. C. AJ&K 18.Compromised mitigation circumstance. 1989 ALD 558(2) + 1989 P.Cr.L.J. 1628, 1289, 869; 1989 SCMR 176. Heirs receiving Rs. 2.00 lac. 1992 P.Cr.L.J. 1473, 1457, 1655.

 

Compensation to the heirs of the deceased and imprisonment in default of such compensation  – Awarding of two years R.I. accused in default of payment of compensation was patently illegal being against statute as S. 544-A (2), Cr. P. C. unequivocally provided a sentence of imprisonment for a period not exceeding six months Sentence passed against accused of two years, R.I. was modified by simple imprisonment for six months. PLJ 2002 SC 444

 

Complaint dismissed for non-prosecution – Complainant had produced his evidence but process had not yet been issued by the Court against the accused – On one date the complainant and his counsel both were absent when the case was called, but the Court did not consider it appropriate to dismiss the complaint in default – Case was then transferred to the Sessions Court which dismissed the same for non-prosecution by the impugned order .Not imperative upon the Court to dismiss a complaint before the issuance of process, for non-appearance of complainant or his counsel – Complaint contained cross-version of a case in which the complainant was facing trial in the Special Court constituted under the Anti-Terrorism Act, 1997 –  Complainant had examined his witnesses and if he was compelled to file a fresh complaint and examine the witnesses afresh, it would not only expose him to inconvenience but would also protract the proceedings unnecessarily – Impugned order having no legal compulsion, would not advance the cause of justice and thus same was held to be improper in the exercise of revisional jurisdiction – Impugned order was consequently set aside and the case was remitted to the Sessions Court with the direction to proceed in accordance with law – Revision petition was allowed accordingly. PLD 2002 Lah.341  PLD 1968 Lah.570 ref.

 

Compromise :– Parties, during pendency of the appeal, filed application for permission to compromise the matter praying that the parties had patched up outside the Court and all the legal heirs of the deceased had pardoned the accused in the name of Almighty Allah. for the better and amicable relations between the parties in future – Offence under S.302, P.P.C, against the accused having been made compoundable by virtue of S.345, Cr. P. C. at the instance of legal heirs of the deceased with the permission of the Court, all the legal heirs of the deceased having admitted the contents of the compromise application and having pardoned, the accused, request of parties was accepted and parties were permitted to compromise-the matter – Accused was acquitted of the charge and was ordered to be released, 2001 MLD 1244 1993 P. Cr. L. J 166 and 1996 MLD 916 ref.

 

All the heirs of both the deceased had compromised with the three accused in respect of all the offences committed by them—Acceptance of compromise was in the better interest of the parties for ending their enmity and giving them a peaceful living atmosphere and also saving the loss of lives in future—Compromise was consequently accepted and the accused were acquitted accordingly. PLD 2003 Kar. 127 1992 MLD 1590 and 1992 P.Cr.L.J 1960 overruled.      

 

But No compromise can be termed as a valid compromise unless and until the same is executed between the parties at their own, voluntarily with free consent and without any fear, influence, coercion and deception—Compromise under influence is liable to be rejected. Accused was sentenced to death in an occurrence which had taken place prior to 12-10-1990—No benefit, could be extended in law which was enforced on 12-10-1990—Parents of the deceased, in the present case, having not executed an compromise, the offence could not be compromised under S. 345(2), Cr.P.C which had provided that compromise had to be executed by all the legal heirs. PLD 2003 SC 547

           

Conditions for Acceptance of Compromise by court :– Note of caution for parties concerned. NO compromise will be accepted, authenticity and genuineness whereof is not above board and not disputed from any angle—Satisfaction of the court regarding execution of compromise cannot be ignored—Compromise, if executed by use of coercion and force and was controversial and disputed, cannot be taken into consideration. Accused, in the present case, was not convicted for offence of Qatl-i-Amd liable to Qisas but conviction and sentence was awarded under S. 302, P.P.C and offence could only be compounded under S. 345(2), Cr.P.C—Even if compromise was executed, same would have little significance. Compromise can only be executed with free will of the party. PLD 2003 SC 547

 

Confession – Confessional statement even if retracted subsequently but found to be voluntary and true and supported by some corroborative material, can solely be made the basis for conviction, 2001 SCMR 988 HabibulLah. v. The State 1971 SCMR 341; Abdul Majid v. The State 1980 SCMR 935; Sheri Zaman v. The State 1989 P. Cr. L. J 1526; Wazir Khan v. The State 1989 SGMR 446; Muhammad Gul v. The State 1991 SCMR 942; Arabistan v. The State 1992 SCMR 754; Javaid Masih v. The State 1993 SCMR 1574; Muhammad Ismail v. The State 1995 SCMR 1615; Mst. Naseem Akhtar .v. The State 1999 SCMR 1744; Fazal Mahmood v. The State 1999 SCMR 2040; Nasar Khan v. The State 2000 SCMR 130 and Nasreen Akhtar v. The State 2000 SCMR 1634 ref.

 

Joint extra-judicial confession allegedly made by accused and his co-accused was inadmissible in evidence, even otherwise evidence of extra judicial confession was the weakest type of evidence unless corroborated by some independent and unimpeachable evidence—Statement of the prosecution witness claiming himself to be an eye­witness recorded after 21 days of the occurrence, prima facie, did not inspire confidence—Sentence of accused was suspended in circumstances and he was allowed bail accordingly. Leave to appeal was granted to accused to consider whether approver’s testimony was satisfactorily corroborated by the evidence of extra judicial confession made by accused as well as by the medical evidence. Approver who had thought of becoming an approver after about three years of the occurrence had made number of material improvements in her statement made before the police throwing whole blame or the accused with a view to saving her skin or that of somebody else and had no made a truthful statement‑‑‑Medical evidence instead of corroborating the approver’s statement had belied the same‑‑‑Pistol alleged to have been used it the occurrence and recovered at the instance of accused did not match with the empties found at the spot‑‑‑Witnesses before whom the accused had allegedly made extra judicial confession being not the persons in authority, there was no sense in doing so by the accused before them and their statements were of little avail to the prosecution‑‑‑Nothing was available on record to substantiate the capital charge leveled against the accused‑‑‑Accused was acquitted on benefit o doubt, in circumstances. 1997 P Cr. L J 139 Magistrate who relied upon confessional statement of lady accused, never cared to ask the lady as to why at all she was going to make a confession‑‑‑Magistrate should have satisfied himself if conditions under which she was confessing were natural and sufficient enough to compel her to make a confession and take risk of punishment‑‑‑Confessions mostly were extracted through undue influence, coercion and torture, it was, thus bounded duty of Magistrate to make sure that confessional statement of accused lady was not result of torture at hands of police‑‑‑Not a single question was asked by Magistrate to that effect specially when confession came from the weaker sex though all accused were almost equally related to deceased‑‑‑In view of deficient in that behalf, confessional statement of lady accused seemed to have been obtained through coercion and torture, thus it could not be made basis of conviction of lady accused. 1996 M L D 924 Delay in recording of confession by itself cannot render the confession nugatory if otherwise it is proved on record to have been made voluntarily. 2001 S C M R 505 Confessional statement, even if subsequently retracted, can be made a basis for conviction if found genuine and corroborated by other evidence. 2001 P Cr. L J 1968 Where the Court believe a confession, judicial or extra‑judicial, retracted or unretracted, to be voluntary and true, the accused can be convicted on its sole basis. 2001 P Cr. L J 412 Prosecution witness before whom confession was made being neither a Lambarder nor a Councillor or a man of authority, it was not admissible in evidence‑‑‑Even otherwise extra judicial confession was a very weak type of evidence‑‑‑Post‑mortem report did not show the time of death of the deceased‑‑‑Crime empties did not match with the guns of the accused‑‑‑Descriptions of the accused were not given in the F.I.R.‑‑‑Identification parade having been held after 6/7 months of the occurrence, prosecution witnesses who had seen tile accused only for 2/3 minutes could not possibly identify them after such a long period‑‑‑Accused were acquitted on benefit of doubt in circumstances. 2001 Y L R 1988 Prosecution had examined the complainant besides two other eye-witnesses mentioned in the F.I.R. and non-production of the injured witness or other eye-witnesses named in the F.I.R. was of no consequence as the prosecution was not bound to examine all the witnesses cited in the case—Accused having been apprehended within minutes of the incident and he having been clearly nominated in the promptly lodged F.I.R., being the person who had fired at the deceased, holding of his identification parade was not essential, particularly when the complainant had made a positive assertion both in the F.I.R. and before the Court that he had identified the accused as the perpetrator of the crime—Mere fact of the confession having been retracted by the accused at the trial could not lead to the conclusion that the same was involuntary which was corroborated not only by the ocular evidence but also by the recoveries of the crime weapons from the possession of accused and the empties from the spot which had matched with each other—Partial non-reliance by the High Court on the ocular testimony regarding the acquitted accused could not render the whole testimony unreliable—Convictions and sentences of accused were upheld in circumstances. 2000 SCMR 785

 

Confession retracted. PLD 1990 S.C. 484. + 1987 P.Cr.L.J. 1364. Judicial confession 1987 MLD 1465. Exculpatory. 1990 MLD 581. Retraction-Effect in Islamic Law. PLD 1990 S.C. 484. Cannot be relied if necessary formalities not complied with. 1992 P.Cr.L.J. 1963.

 

Conviction of an accused can be based on a retracted confession if found by the Court to have been voluntarily made—However, Court, as a rule of caution and prudence, however, looks for other evidence and material on record of the case to seek corroboration of the retracted confession before convicting the accused.  Confession of an accused, in absence of any other ocular or circumstantial evidence to connect him with the crime, must be accepted or rejected as a whole, but in the presence of such ocular or circumstantial evidence which contradicts a part of confession Court may accept that part of the confession which is consistent with that evidence and reject the other part of confession which is inconsistent with it: 1994 P Cr. L J 490 Story of motive as given by accused before prosecution witnesses and alleged extra judicial confession was not verified by Investigating Officer, though it should have been earnestly undertaken in order to strengthen chain of circumstances against accused—With such a doubtful motive, whole story of extra-judicial confession of accused was not only weak, but unreliable—Last seen evidence was given by a witness who was in Army Service and he was not only related in close degree to deceased, but was also a chance witness—

 

Extra judicial confession not by itself sufficient to sustain conviction. 1987 P.Cr.L.J. 1469. Out of inducement. 1987 P.Cr. L.J. 576. A week type of evidence. 1987 P.Cr.L.J. 676 + 1987 MLD 959.

 

Considerations in reduction of Sentence :– Four co-accused of the accused who had also been attributed firing at the complainant party had been acquitted by the Trial Court by extending benefit of doubt to them; while labouring under the sustained provocation of seeing an alleged murderer of his brother roving Scot free and living next door the accused might have been further provoked at the time of the occurrence by the getting together of the complainant party as a cluster in the neighbouring house of the deceased fanning the flames of the frustration already disturbing the accused’s peace and sanity and effort made by the eye-witnesses to suppress at the trial their initially asserted factum about firing by the complainant party at the accused party might well be an effort to hide something from the court which had in fact sparked off the incident in the present case at the relevant time—High Court, in view of said considerations, exercised its discretion in the matter of sentence so as to err on the side of prosecution and to withhold the sentence of prosecution and to withhold the sentence of death in the case—Sentence of death passed against the accused by the Trial court was substituted with a sentence of imprisonment for life by the High Court and benefit under S. 382-B, Cr.P.C was extended to the accused and in default of payment of compensation ordered by the Trial Court the accused was to suffer simple imprisonment of six months. PLD 2003 Lah. 303

 

Contributory negligence – Accused intending to shoot A-Causing death of a child due to provocation. Death of child accidental. 1969 SCMR 855. Attack not justified. PLD 1973 S.C. 332(346) + 1969 SCMR 405.

 

Culpable homicide not amounting to murder– Trial Court in earlier part of judgment finding accused’s action performed under provocation but eventually describ­ing it as “cold-blooded and brutal” so as to be visited with extreme penalty of law-Position, held, clearly inconsistent. Having concluded in the earlier part of his judgment that the action of the accused was performed under provocation, it is clearly inconsistent to describe it eventually as “cold-blooded and brutal” and to visit it with the extreme penalty of law. Injunction order having been issued directing not to remove plaintiff’s cabins and cabin-holder also having issued notice to Sub-Inspector of Police and attached there­with true copy of injunction order subsequent demand of injunction order by police Sub-Inspector and asking accused to accompany him to thana-Action of police, held, against law and one which infuriated accused-Accused on being pressed to accompany police to thana merely showing force by aiming gun at police party and thus keeping them at a distance and thereafter taking to heels-Accused, held, committed no offence in thus running away-Attempt by police to arrest him wholly unjustified and one which could be resisted by use of force-Accused, however, in evading arrest could not justifiably cause death of pursuer and could use only minimum force and shoot pursuer in leg or arm-Accused’s shooting at face of pursuer, while giving him chase, held, an act in excess of right of private defence­ Conviction under S. 302 altered to one under S. 304(1)

           

Deceased last seen-.Jn the company of accused. PLD 1977 S.C. 515; PLD 1978 S.C. 21; PLJ 1972 S.C. 129; PLJ 1977 S.C. 352; PLJ 1976 S.C. 258; 1977 SCMR 20.

 

Discharge of accused :–Police having found the accused innocent, requested Judicial Magistrate to discharge the accused, request of the police was turned down by the Magistrate on the ground of lack of jurisdiction as the case was triable by the Sessions Court   – Validity – ­Discharge of the accused from the case did not amount to his acquittal in terms of Ss.245, 249-A or 265-K, Cr. P. C. and discharge order was not a judicial order,, but was an. administrative order amenable to recall upon emergence/discovery of fresh material by the investigator on which count the Magistrate was the Competent Authority in terms of Ss. 169 & 173, Cr. P. C.  – Prior to the commencement of the trial or taking of cognizance of the matter by the Trial Court, the Magistrate was competent to pass orders regarding discharge of the accused, but after taking cognizance by the Trial Court, exclusive jurisdiction would vest in the Trial Court to pass appropriate order  – Order of the Magistrate refusing to entertain request of police for discharge of the accused on account of lack of jurisdiction, was set aside by High Court. 2001 M L D 1578 PLD 1949 Lah.537; AIR 1938 Lah.469; PLD 1980 Lah.28; PLD 1962 Lah.405 and 1997 SCMR 299 ref.

 

Accused under 5.302/34, P.P.C. found innocent by Police investigations, placed in column No.2 and discharged by Illaqa Magistrate-Sessions Court’s order summoning them for trial, impugned – Plea raised that accused-petitioners could not be mechanically summoned by Sessions Court unless first evidence was recorded and in the light of such evidence trial Court deemed it proper to summon them – Held: Challan against petitioners had not been cancelled by placing them in column No.2, it only meant that according to police investigation they were found innocent, and therefore, they were discharged under S.63, Cr. P. C. which did not mean that they could not be summoned to stand trial – Petition being without substance, leave to appeal refused. 1988 S C M R 1428 P L D 1987 S C 103 and 1985 S C M R 1314 ref.

 

Accused soon after the occurrence went into hiding and fraudulently succeeded in obtaining transit pre-arrest bail orders for four times from the Courts of different jurisdiction without disclosing the proceedings of previous bail applications  – Range Inquiry Panel, therefore, had no authority to recommend for the discharge of accused under S.169, Cr. P. C.  – Powers under S.169, Cr. P. C. could only be exercised by the police during the course of investigation if accused had been in their custody which was a condition precedent for invoking the provisions of the said section  – Accused admittedly was a fugitive from law and the Courts, hence S.169, Cr. P. C. could not be pressed into service in case of the absconding accused  – Accused having already been placed in column No.2 of the Challan, investigation declaring the accused to be innocent was not of much value as the Court was not bound to follow and act upon the same and was at liberty to look into evidence qua his guilt or innocence  – Proceedings under 5.169, Cr. P. C. were consequently, set aside with the direction to prosecution to submit the Challan in the Court of competent jurisdiction.  2000 P. Cr. L J 25 1991 SCMR 1 and PLD 1956 FC 53 ref.

 

 Prosecution witnesses had fully implicated the accused in their statements recorded under S.161, Cr. P. C. – ­ Magistrate, therefore, could not discharge the accused on the basis of police opinion that they were innocent as such a finding could either be given by the competent Court or by High Court in quashment proceedings  – Prosecution was consequently directed to move an appropriate application in the High Court for annulment of the aforesaid order of discharge passed by the Magistrate. P L D 1997 Lah.164

 

Discharge order not to be treated as an order of acquittal  – Order of discharge passed by the Ilaqa Magistrate cannot be treated as an order of acquittal, nor the same would bar subsequent proceedings against the discharged accused by a Court of competent jurisdiction. 1999 M L D 1822

 

Doctrine of “diminish responsibility” – Accused had shot at the deceased and the prosecution witnesses on being disturbed by their game of cricket—Occurrence was admitted and there were two versions—Accused had suffered only simple injuries—Neither the door of the house of accused was broken nor he was assaulted at his house to given him a cause for shooting at the deceased and others in self-defence and he had not substantiated such plea either through defence evidence or through his own statement under S. 340(2), Cr.P.C – Accused admittedly had not brought his case under the provisions of S. 84, P.P.C but he was trying to raise the plea of “diminished responsibility” which was not available under S. 84, P.P.C – Defence before the Trial Court had attempted to procure the record about the mental abnormality of accused and applied for it even though at a belated stage, but no further action on it was taken—Psychiatrist view on the mental condition of accused in the year 1996 had come on record which was not exhibited, but it could be looked into as it did help the Court in appreciating the conditions of mens rea or automatism and also saved the parties from a remand orders and further delay in the case—No motive fro the occurrence existed—Even if no cricket ball had fallen into the hose of accused and no door of his house was broken causing him out of control and he committed the act—Since such probability existed, the doctrine of “diminished responsibility” was applied and accepted as mitigating circumstance—Conviction of accused were consequently maintained, but his sentence of death was reduced to imprisonment for life in circumstances. PLD 2003 Lah. 60

 

Doctrine of double jeopardy –  Where an accused has served out a legal sentence of imprisonment for life on the charge of Qatl-i-Amed, appeal seeking enhancement, of his sentence to death cannot be legally heard as enhanced sentence, if recorded, would be hit by doctrine of double jeopardy as per mandate of Art. 13 of the Constitution – No person shall be prosecuted or punished for the same offence more than once –  PLJ 2002 SC 444

Dying declaration – Great caution is required before relying on a dying declaration which is a weak piece of evidence as its maker is not subjected to cross-examination. PLD 2003 Lah. 270

 

Dying declaration :– Court is not bound to look for corroboration of dying declaration in order to base conviction on it, although it may be a rule of prudence depending upon the facts and circumstances of each and every criminal case where Court would seek corroboration from other pieces of evidence. 2001 Y L R 1470  Out of three eye‑witnesses two disinterested witnesses were withheld by prosecution, and the only eye‑witness produced by prosecution during the trial was the son of deceased‑‑‑Presence of said eye‑witness at the spot was not proved by prosecution‑‑‑Improvements were found in the statement of said eye‑witness‑‑‑Time of occurrence was one hour before the sunrise when it was pitch dark‑‑‑Police post fell in the way of place of occurrence and hospital but no report was lodged there‑‑‑Hospital was hardly 3/4 kilometres from the spot and conveyance was comfortably available but deceased was taken in one hour which was a waste of time‑‑‑Occurrence was an unwitnessed one and report was lodged after consultations‑‑‑Complaint was lodged on the statement of deceased while he was in injured condition in the hospital‑‑‑Due to excessive loss of blood though the deceased was in senses till then but he was in shock‑‑‑Relatives of the deceased were present around and the name of accused was prompted by such relatives‑‑‑Mode of receipt of injuries on the body of deceased according to his dying declaration was completely negated by the medical evidence‑‑‑Statement given by a person about the cause of his death was admissible in evidence but the sanctity attached to it as dying declaration could not be attributed‑‑‑Where the statement did not ring true and was glaringly controverted by physical/scientific phenomena on record there could be apprehension about the dying declaration and the truth had not dwelt upon the lips of the dying man‑‑‑Veracity as well as the sanctity of the statement of the deceased made before police disclosing his death, was not proved by the prosecution‑‑‑No conviction at all could be or could have been based on such destitude evidence‑‑‑Accused was acquitted in circumstances. 1999 P Cr. L J 707 Dying declaration having not been subjected to cross‑examination, needed to be scrutinised closely and could be accepted only if it received satisfactory corroboration from the physical circumstances of the case. 1999 P Cr. L J 817 Great caution is to be taken before placing reliance on a dying declaration because it is a weak piece of evidence as its maker is not subjected to cross‑examination. 1999 P Cr. L J 1087 Dying declaration, recording of—Principles enunciated. 1998 P Cr. L J 901

 

Dying declaration is only a corroborative piece of evidence which supports the ocular testimony given by the eye-witnesses—No hard and fast rule can be laid down about the standard of the dying declaration as its veracity, authenticity and reliability varies from case to case. 2004 M L D 298

 

Has a degree of sanctity but the case ought to have been considered in all its physical environment. PLD 1970 S.C. 13. Incomplete-Not admissible. PLD 1949 P.C. 299. All the eye­witnesses present in the hospital. PLD 1970 S.C. 406. Dying declaration can be used as FIR. 1971 SCMR 516 ; 1969 SCMR 85. Dying declaration uncorroborated. PLJ 1977 S.C. 481.

 

Deceased, in the present case, had herself lodged the F.I.R in the hospital—Deceased stated that the accused had come to her house armed with a pistol, proclaiming that he would teach lesson to her for having insulted his wife and fired a shot hitting her on the right side of her neck and on her hue and cry two eye-witnesses reached the spot, they tried to apprehend the accused, but he succeeded in making good his escape and that she was brought to the hospital by the said two persons—Deceased died subsequently one month and three days after the occurrence—Such statement of the deceased lady was a complete dying declaration as the doctor had opined in categorical terms that she was fully conscious and was capable to make a statement and only after that the police official recorded her statement—Both the eye-witnesses at the very outset stated in the court that they were not aware of the occurrence at all, upon this they were declared hostile and were cross-examined by the state as well as the defence counsel—Cross-examination revealed that one prosecution witness was admittedly a close relative of the accused, being his uncle as well as father-in-law whereas he had no relation with the complainant; it was also proved that the second prosecution witness was also closely related to the accused and had no relationship with the deceased lady—Such witnesses, obviously had resiled  from their statements before the police to negate the lady—presence of such witnesses, however, was proved from record as well as the cross-examination—Said witnesses, being related to the accused, were proved to have been won over and had gone hostile—Statement of a hostile witness was to be viewed in the light of circumstances of the case and thereafter it was to be ascertained as to what truth actually flowed from their statements, whether favouring the prosecution or the defence—Presence of said witnesses appeared to be natural from the very fact that despite their close relationship with the accused, they were truthfully mentioned by the deceased in her statement which was a complete dying declaration—Had the statement of the lady been a prompted dying declaration or a declaration made after consultations and deliberations, the deceased must have mentioned her own relations as eye-witnesses—Such strong inference not only suggested of the presence of the two witnesses but also gave a plausible strength to the dying declaration—Dying declaration, in the present case, was a strong piece of evidence against the accused, rendering the hostile witnesses to be untrue—Accused lived in the same Ahata were the deceased lived, meaning thereby that the occurrence had taken place almost in his own house yet he remained absconder for a period of 4-1/2 months—Such abscondence further supported the dying declaration—Accused had taken the plea that death of the deceased took place due to improper care and treatment at the hospital—Such a plea, if allowed to be taken by an assailant, every accused would plead the defence that had the victim been taken to the hospital, he would have survived—Hard fact of the matter was that the deceased was proved to have died to the injury caused to her person b the accused with no less than a weapon than a fire-arm—Track of the bullet would indicate that the same had caused such damage which though was fatal yet it did not result into instant death—Plea of the accused if accepted, would shift the burden of the accused to the doctors—Where the case was that of proved act of aggression such burden should not be allowed to be avoided or shifted—Accused having committed the murder in cold-blood despite the fact the in previous quarrel it was he who had slapped the deceased lady and he nursed the grudge though the quarrel had been compromised due to intervention of the notables—Deceased lady was bearing a pregnancy of 20 weeks and quite mature a foetus was found dead alongwith the bearer—No mitigating circumstances, therefore, existed for reduction of sentence of the accused. PLD 2003 SC 635

 

Not necessary to have been made under immediate apprehension of death. 1975 SCMR 289. Dying declaration lacking integrity. PLD 1984 S.C. 433. Recorded at Police Station in presence of relative. 1984 SCMR 1094. Deceased not in full control of faculties. PLJ 1980 S.C. 377. After mortal injuries. 1984 SCMR 263 + PLJ 1981 S.C. 90. Empties and crime weapons-Delay simpliciter in despatching – Not fatal. PLD 1987 Quetta 77; See PLD 1982 S.C. 92 + 1982 SCMR 531. 

 

Oral dying declaration was a weak piece of evidence which must be corroborated by independent circumstances. PLD 2003 SC 662

 

            Tests for determining the genuineness of dying declaration stated. 1997 P Cr. L J 229 Dying declaration made by deceased was corroborated by medical evidence as well as by evidence of incriminating recoveries and the same rang true ‑‑‑ Crime empty was found to have been fired from the revolver recovered at the instance of the accused ‑‑­Identification of accused by the deceased in the attending circumstances of the, case was not impossible, Accused having himself led the, police to a particular place for recovery of the weapon of offence, two independent and respectable inhabitants of the locality to witness the recovery proceedings were Dot required ‑Accused in his statement (Urdu version) under S,342. Cr.P.C. had admitted the recovery of crime weapon ‘at his instance ‑‑‑ Dying declaration of deceased having been recorded only in the presence of the Medical Officer and the Naib‑Tehsildar who had no motive to falsely implicate the accused, question of external influence on the deceased. did not arise ‑‑‑ Conviction and sentence of accused were upheld in circumstances. Conviction can be recorded on the basis of dying declaration which rings true and is proved to have been executed. P L D 1996 Quetta 40 Dying declaration may not require independent corroboration when there is no reason for substitution of real culprit. 1996 P Cr. L J 1689 ­Dying declaration is a statement made by a person as to the cause of death or as to the circumstances of the transaction resulting in his death. 1995 P Cr. L J 179 ­Statement of a deceased may be treated as dying declaration when he is at the point of death and loses every hope of survival in this world as under such stage of extremity every motive of falsehood becomes out of question. 1995 P Cr. L J 179 Dying declaration made by deceased was based on true facts and was supported by unimpeachable testimony of prosecution witnesses, medical evidence, site plan, recoveries and abscondence of accused—Conviction and sentence of accused were upheld in circumstances. 1995 P Cr. L J 1784 For proper evaluation of the dying declaration the surrounding circumstances in which the same was made and the contents thereof have to be kept in view. 1994 S C M R 1852 Report of doctor was not obtained so as to show whether deceased was Fit to make a statement or whether he was under the immediate apprehension of death‑­Deceased was accompanied by a number of relatives and the presumption would be that they must have helped deceased in making statement to police (which was treated as dying declaration) -‑No evidence on record existed that deceased knew that that was his last declaration nor it could be inferred from the evidence that deceased was under immediate apprehension of death‑‑Trial Court, held, erred in treating F.I.R. as a dying declaration in circumstances. 1989 P Cr. L J 1 Dying statements made by two deceased persons almost verbatim not only with each other but with first information report as well‑‑Investigating Officer appearing to have prepared false statements in order to use them as dying declarations‑‑No attempt made to get said dying statements recorded under 5.164, Cr.P.C., by Magistrate and same had neither been recorded in presence of nor verified by medical officer and no evidence was available to show that deceased persons remained in their complete senses in course of recording their statements‑‑Dying declarations excluded from consideration, in circumstances. 1987 P Cr. L J 2476

 

Enhancment of amount of compensation :– Accused had since been released from jail after having served to his entire sentence of imprisonment for life and appeal for enhancement of his sentence to death was not pressed, however, enhancement of compensation payable to legal heirs of deceased was prayed for S.C. though was not inclined to enhance sentence of life imprisonment in view of release of accused but it enhanced amount of compensation from Rs.50,000 to Rs.1,00,000 to be paid to legal heirs of deceased. PLJ 2002 SC 444

 

Evidence of interested witnesses—Parties had got long standing enmity against each other during course whereof they remained involved in cases of murder allegedly committed by them against each other—Search for independent corroboration to ascertain whether the evidence furnished by the prosecution witnesses rang true or not was necessary—Evidence furnished by interested witnesses ordinarily could not be discarded merely for the reason that they had relationship with the deceased, however, for safe administration of justice it became the duty of the Court to look forward for corroboration of such evidence from independent sources with a view to explore truth for the purpose of reaching at a just conclusion—Contradictions in the medical evidence and ocular account, in the present case, had created doubt in the prosecution case and keeping in view the facts and circumstances of the case conclusion could be drawn that the said witnesses had not seen the incident and thus had failed to furnish reliable evidence to substantiate accusation against the accused.  PLD 2003 SC 644

 

Evidence-Not inspiring the confidence-No evidence. 1971 SCMR 256. Witness found to be false in parts. 1969 SCMR 132. Evidence conflicting and contradictory. PLD 1973 S.C. 469. Prosecution evidence rejected-Conviction cannot be based on the statement of the accused. 1969 SCMR 839. Evidence of approver-Unworthy of credit. PLD 1971 S.C. 447. Accomplice’s evidence. PLD 1973 S.C. 595 ; 1978 SCMR 685. Medical evidence. 1968 SCMR 428. Ocular evidence must be of an unimpeachable character. 1973 SCMR 245. Prosecution evidence disbelieved qua the acquitted co-accused. Same set cannot be believed qua the accused without corroboration. 1990 P.Cr.L.J. 1840. Last seen evidence-Not sufficient to earn conviction. NLR 1987 Cr. 846 + 1987 P.Cr.L.J. 676. False implication-1969 SCMR 936; PLD 1964 S.C. 26; 1971 SCMR 432 ; 1968 SCMR 912. Witness found to be false in part cannot be disbelieved in whole. 1969 SCMR 132. Benefit of reasonable doubt arising from discrepancies and in-consistences in evidence-Cannot be denied to accused on hypothesis. 1984 SCMR 1092.

 

Examination of the accused under S.342, Cr. P. C. —Effect of not confronting the accused in examination with the identification in identification parade—Only piece of evidence against the accused was their identification in the identification parade, but the accused was not confronted with that piece of evidence during their examination under S.342, Cr.P.C.—Wisdom behind recording statement of the accused under S.342, Cr.P.C. was based on the principle that no one should be condemned unheard and that the accused should be heard and provided an opportunity of rebuttal of what was prima facie proved against him on every circumstance appearing in evidence against him—No question with regard to the evidence of their identification having been put to the accused persons during their examination, they were in fact deprived of their right to explanation–­Sentence awarded to the accused thus could not be maintained—Judgment of the Trial Court was set aside and case was remanded to the Trial Court for recording statements of the accused afresh with direction to confront them with all the incriminatory evidence including identifica­tion parade. 2001 Y L R 2431 Meer Muhammad alias Meeran and another v. The State 2000 MLD 370; Atta Muhammad and 2 others v. The State 1994 PCr.LJ 180; Gulab Sher and others v. The State 1992 PCr.LJ 1835; Mir Ahmed Khan v. Secretary to Government and others 1997 SCMR 1477; Muhammad Hassan v. Muhammad Ismail and others 1999 SCMR 697 and Munir Ahmed alias Munni v. The State 2001 SCMR 56 ref.

 

Falsus in uno falsus in omnibus—Maxim “falsus in uno falsus in omnibus” is not applicable in the prevalent system of criminal administration of justice and more o there is not rule being universally applicable that where some accused have not been found guilty the other accused would ipso facto stand acquitted, because the court has to sift the grain from the chaff. PLD 2003 SC 350

Where net is spread wider to rope in as many male members as possible, Court has to sift the grain form the Chaff—Where statement of a witness is not believed against one accused, the same cannot be automatically discarded qua the other accused and can be sued against him if it inspires confidence and is corroborated or rings true. PLD 2003 Quetta 109

 

General amnesty_Appeal pending in the Supreme Court – Benefit of general amnesty allowed. 1974 SCMR 271.

 

Grave and sudden provocation :– Accused had contended that he had acted in a spell of grave and sudden provocation as the moment he found the accused lying with the co-­accused who was his niece in objectionable condition, feeling of Ghairat arose in him and he committed the murder of both the persons‑‑‑Nothing was on record to indicate that the deceased were found before their death in compromising position‑‑‑Bodies of the deceased persons were not naked and nothing was in medical evidence to show that they were indulging in sexual intercourse at the time of occurrence‑‑‑If the prosecution evidence was disbelieved and the accused had taken plea to bring the case within any of the general exceptions in P.P.C., the onus would shift on the accused to prove existence of circumstances which could bring his case within those exceptions‑‑‑Proposition that if an accused set up, a defence plea to bring his case within any of the general exceptions in P.P.C., he had to prove those circumstances, was not only a mandate of law but was also desirable to check and control the chauvinistic tendencies in a man who at times was driven by prejudices of caste, tradition, compulsion of conceited impulses or some other ulterior motive to murder a man or woman‑‑‑No Court could and no civilized human being should sanctify murders in the name of tradition, family honour or religion‑‑‑Accused having killed two teenagers in a brutal manner, no mitigating circumstance existed to bring his case within the ambit of S.302, P.P.C.‑‑‑Conviction of accused under S.302, P.P.C. was set aside and instead he was convicted and sentenced under S.302, P.P.C. accordingly. 2002 P Cr. L J 859 1992 SCMR 247; PLD 1994 SC 392; 1997 PCr.LJ 2056; Federation of Pakistan v. Gul Hasan Khan PLD 1989 SC 633; State v. Abdul Wahid 1992 PCr.LJ 1596; Riaz Ahmad v. State 1998 SCMR 1729; Ali Muhammad v. Ali Muhammad PLD 1996 SC 274; Abdul Zahir and another v. The State 2000 SCMR 406; Abdul Majid v. The State 1991 PCr. LJ 1497; Muhammad Khan and others v. The State and others 2001 PCr.LJ 1766 and Qutab‑ud‑Din v. The State PLD 2001 SC 101 ref.

 

            “Grave”-Involving or resulting in serious consequences. “Sudden”-Happening of fact without previous notice or with very brief notice. PLD 1979 S.C. (AJK) 88. Immorality not ground for sudden provocation. PLD 1979 S.C. (AJK) 130. Accused not taking undue advantage in sudden fight. PLD 1979 S.C. (AJK) 56. Seeing of woman (sister) in the company of stranger at odd hours. PLJ 1979 S.C. 371; PLD 1965 S.C. 366. Incident taking place after 8 hours of the quarrel – Not a sudden provocation. PLJ 1978 S.C. 386. Person is fully protected in law to maintain custody of trespassing cattle by the use of minimum force. PLJ 1976 S.C. 208. Killing of wife alongwith her paramour found in a compromising position. PLD 1977 S.C. 153. Person denied access to his legally-wedded wife. Case does not fall within exception. PLD 1979 S.C. (AJK) 44. Proposal for girls hand refused. No justification for inflicting bodily injury. 1976 SCMR 199. Immoral demands-Denial-No ground for sudden provocation. 1978 SCMR 114. Sudden-.Spontaneous-Act committed in the heat of passion upon a sudden quarrel without any intentipn to kill or injure. PLD 1975 S.C. 607. Sudden fight both sides using firearms. 1982 SCMR 291. Free fight – No right of self-defence available to any member. 1983 SCMR 648. Fatal shot attributed Sentence under S. 304 maintained. PLD 1983 S.C. 390. Free fight-Complainant party found to have contributed to its origin Sentence of fine sufficient. PLD 1981 S.C. 127 = PLJ 1981 S.C. 394 = NLR 1981 Cr. S.C. 261. Distinction between knowledge and intention. PLD 1979 S.C. (AJK) 56; PLD 1971 S.C. 720; PLD 1973 S.C. 327. Lapse on the part of police to send confiscated articles to examiner. PLD 1984 S.C. (AJK) 21.Knife blow on back. 1981 SCMR 663. Absence of premeditation. 1981 SCMR 1248. Chance encounter. 1980 SCMR 247. Hitting by back side of the hatchet. 1980 SCMR 225. More proper to impute knowledge than intention. 1981 SCMR 663. Provocation-Test. PLD 1977 S.C. 153; 1983 SCMR 53; PLD 1984 S.C. (AJK) 21. 1984 SCMR 646; 1983 SCMR 969. Case of altercation. 1979 SCMR 589. Guilty intention-Test. 1973 SCMR 327. Sudden fight-Accused party also armed-Case falls under Exception IV. PLD 1957 S.C. (Ind) 277. Accused giving only one blow-Case under Exception IV. 1969 SCMR 653. Sudden fight-Question of self­gefence of an academic nature. PLD 1958 S.C. 251. Plea supported by evidence. 1989 P.Cr.L.J. 144 5+ 1989 MLD 2728. Not an exception per se. Punishment of Qisas. Where Qatl-i-Amd is committed can be mitigated only if proof of Zina is produced. 1992 P.Cr.L.J. 1596. Accused to prove plea. 1992 MLD 2196. Illicit relation with daughter. 1992 P.Cr.L.J. 1478.Identification-park night-Vain attempt to take the occurrence from dark to dark-Not possible. 1989 P.Ci L.J. 2100 + 1989 P.Cr.L.J. 1041.

 

Fundamental right-Held that; Cl. IV of S.302, PPC is meant for the cases falling within the category of grave and sudden provocation involving honour of a female relative-Hence the case of appellant while acting under grave and sudden provocation, would fall within Cl.of S. 302, PPC-Appeal is partly accepted and conviction of appellant under Section 302, PPC is set aside and is modified to that under Section 302, PPC-Question of sentence after such conviction would not remain difficult-Keeping in view circumstances it would suffice the ends of justice if sentence of death awarded to appellant is reduced to ten years R.I. after modification of conviction under Section 302, PPC-Benefit of S.382-B, Cr. P. C. .’ is extended to appellant-Sentence reduced. KLR 1999 Cr. C  (Lah) 67Ss. 426/491-See Pakistan Penal Code, S. 403-Offence u/S. 165-A PPC r/w S. 5(2), PCA, 1947-Appellant was separately challenged on basis of this case before Special Judge, Customs and was acquitted-Clerk of Special Court of Customs, who brought record and proceedings of said Court and produced photo-copies of all documents exhibited in earlier trial was neither examined in presence of appellants nor any opportunity was provided to them to cross-examine him – Held: Where an issue of fact has been tried by competent Court in a previous trial and finding has been reached in favour of accused, precludes reception of evidence to disturb with finding by way of subsequent trial – Conviction by trial Court was not justified. KLR 1999 Cr. C  (Lah) 394

 

Parties were related inter se and there was no background of enmity between them—Deceased and sister-in-law of the accused (brother’s wife), whose husband was working abroad, met each other at an isolated place and as per statement of accused, they were found by him in compromising position and due to grave and sudden provocation caused to him by the sight of his sister-in-law being with another person, he was incused and inflicted injuries on the head of the deceased, which appeared to be correct version of the incident—Defence version was more plausible and merited to be accepted—Complainant and another witness had no business at the place of incident, there was no occasion for hem to have visited that place and since they claimed to have gone there by chance, they were by all contents and measures, were chance witnesses and their testimony did not inspire confidence and had to be discarded for that reason—Accused, in circumstance, could not have been convicted under S. 302(b), P.P.C—High Court, modified the sentence of the accused from one of death under S. 302(b), P.P. to 302(c), P.P.C and was awarded 10 years’ rigorous imprisonment with benefit of S. 382-B, Cr.P.C—Where the accused acted in grave and sudden provocation when the deceased was found to be indulging in immoral activities, such as sexual intercourse, compensation was not normally granted to legal heirs of the deceased. PLD 2003 Lah. 559

 

Guidelines :– Where prosecution has established the guilt of the accused by satisfactory and reliable evidence on the touchstone of Tazkiya-e-­Shuhood, normal penalty for Qatl-i-Amad is Qisas i.e. penalty of death in which the Court is left with no option—If the witnesses do not qualify the standard of competent witnesses as prescribed by Islamic Injunctions, conviction can be recorded under cl. of S.302, P.P.C. by way of Ta’zir, i.e. death or imprisonment for life, depending on the facts and circumstances of each case—If the prosecution case is proved up to hilt, normal penalty of death must be awarded, but in cases with extenuating circumstances Court is required to judiciously consider the award of imprisonment for life which is also a sentence for Oatl-i-Amad recognized by law as Ta’zir—Where the accused is able to demonstrate that he was deprived of his capability of self­ control or that he was swayed away by circumstances immediately preceding the act of murder or there was an immediate cause leading to serious provocation, Court may be justified in mitigation of sentence—Wider discretion, no doubt, is conferred upon the Court, but under all circumstances it must be exercised in a judicious manner and not in an arbitrary manner at the whims of the Court. P L D 2002 Supreme Court 558

 

Hostile witness–-Credit of hostile witness, held, could be impeached by proof of formal statement made by him but it was to be kept in mind that contents of this statement were not actual and original evidence of this witness.- 1988 P C r. L J 1523

 

Identification parade :– The identification of a culprit by a person primarily depends upon the following factors

 

(i)                 on his situation relative to the object viewed, his nearness to or distance from it,

 

(ii)               also on his capacity td see with perfect or sufficient distinctness an object far off,

 

(iii)             he may be able to discern clearly things at a great distance from him, or to see distinctly only objects near to him: that is, he may be either far‑sighted or near‑sighted,

 

(iv)             his right perception of the object may also depend on the light by which it is seen and, therefore, on the time, whether day or night,

 

(v)               it may depend, also, on the length or shortness of the time he has, in which to view to the object,

 

(vi)             it may depend also on the freedom of his view from all obstruction at the time, from whatever cause, or momentary,

 

(vii)           the sun shining full in the face of a person may very much obstruct his sight. And the same effect may be produced by falling snow or dense rain or smoke. 1996 P Cr. L J 73

 

Where assailants were known to the complainant and were admittedly identified on the spot‑‑‑Conduct of identification parade, in circumstances, was illegal‑‑‑Such identification parade would loose its significance and was not a corroboratory piece of evidence ‑‑‑Identification parade was never conducted about culprits who were already known to the witnesses. Delayed identification test both with reference to the date of occurrence and the date when the accused was taken into custody, was always looked upon with the maximum caution by the Courts of law–­Evidentiary value of an identification parade where the accused was nominated without attributing to him his role in the crime was also minimal without corroborative evidence. 2002 P Cr. L J 349

 

Accused persons had attacked a vehicle which resulted in causing death of driver of the vehicle and 5 other inmates of the vehicle who were stated to be foreign nationals —Identification of accused persons—Acquittal of co-accused-Leave to appeal was granted by Supreme Court to consider the question as to whether accused had been correctly .identified by prosecution witness in view of the provisions of Art.22, Qanun-e-Shahadat, 1984 read with administrative instructions issued from time to time and judicial pronouncements; whether co-accused had been rightly acquitted of the charge despite the fact that sufficient incriminating evidence i.e. recovery of crime weapons at his instance from his house which had matched with the empty cartridge recovered from the place of incident was available on record to connect him with the commission of the offence as well as to prove that on the day of incident he was present at the place of occurrence where, incident took place and he fired upon the vehicle with other co-accused, whether in the circumstances of the case available material on record had been properly appreciated and appraised while maintaining conviction /sentence of accused and acquitting co-accused and whether Trial Court as well as Appellate Court had strictly observed the principle of safe administration of justice in criminal cases or otherwise. 2000 S C M R 1694 ­Holding of identification parade is essential only in cases in which a witness merely gets a momentary glimpse of the accused and claims to be able to identify him—If the accused is known to the witness previously or the witness has met the accused several times, identification parade of the accused can be dispensed with, because in such cases the witness can identify the accused even in the Court. 2000 P Cr. L J 796 ­Identification in Court‑‑‑Identification of accused in Court has always been treated as a corroborative piece of evidence, but not at all as the substitute for an identification parade. 2000 Y R 1756 

 

Description of the accused persons given in the F.I.R. being very meagre, sketchy and general in character might not be sufficient to correctly recognize them in the identification parade after the lapse of sufficiently long time‑‑‑Identification parade was not conducted in accordance with law as instead of at least ten persons only five persons were intermingled with one accused‑‑‑Investigating Officer had fabricated evidence of extra‑judicial confession and the investigation was not conducted honestly and diligently‑‑­Recovery witness having not been examined, no corroborative evidence was available to connect the accused with the crime‑‑‑Accused were acquitted in circumstances: 1996 P Cr. L J 73

 

At least ten undertrials should be intermingled with one accused in the identification parade to eliminate the possibility of chance identification of the accused persons. 1996 P Cr. L J 73 Identification of persons in identification test is a very weak type of evidence which is easily destroyed if there is any suspicion that the conduct of the investigating agency was not absolutely above board. Simple identification of accused in delayed identification parade would not be material unless the witnesses inform positively the role of the person so identified. 1996 P Cr. L J 991 Identification of accused in the identification parade without attributing to them their role in the crime is of no evidentiary value. 1995SCMR127 Where the accused are merely picked up in the identification parade and the role attributed to them is not stated by the witnesses, identification is of no evidentiary value and cannot be relied upon. 1995 M L D 1097 Courts before acting upon evidence of identification parade must look for some independent evidence direct or circumstantial to eliminate chances of false implications. 1991 P Cr. L J 1145

 

Secondary evidence of the original report of identification parade could not be permitted and adduced in the shape of a photostat thereof in the circumstances in view of the provisions of Art.76of Qanun-e-Shahadat, 1984—Accused having remained with the police for many days after their arrest possibility of their having been shown to eye-witnesses could not be rifled out particularly when such objection had been raised at the time of holding the identification parade by the accused before the supervising Magistrate—Photostat copy of the identification parade in the absence of the original report could not be attested by the Magistrate at the trial who had not even appended his certificate at the foot of the said report as contemplated in Chap. 11-C of the High Court (Lah.) Rules and Orders, Vo1.III—Identification parade, thus, had no legal force–­Crime empties taken into possession from the place of occurrence having not been fired from the recovered rifle, the same had no legal value against the accused—Record did not show that the sealed parcel of crime empties was ever delivered in the Forensic Science Laboratory—Report of the Serologist was also not produced in evidence—Prosecution having failed to connect the accused with the crime, they were acquitted. 1998 P Cr. L J 1693

 

Injured witness—Statement of an injured witness cannot be brushed aside merely on the ground of some minor contradictions which do creep in with the passage of time. PLD 2004 SC 330

 

Inquiry u/S. 202 of Cr. P. C. :– Court after conducting the inquiry u/S. 200 summoned all the accused/petitioners to face trial-Revision there against-Held that: Inquiry u/S. 202 of Cr. P. C. is not a regular trial or a full dress rehearsal for trial, for adjudicating guilt or otherwise against person complained against but only an inquiry for finding out as to whether there was sufficient – evidence to put person complained against on trial and sufficient evidence for convicting him as held in P.L.D. 1984 Lah. 323 – M.I.C. or the Court not expected to examine the evidence or the case minutely-KLR 1999 Cr. C  (Lah) 196.

 

Interested witness—Interested witness is one who has a motive for false implication of accused. PLD 2003 SC 350  Eye-witnesses despite being the father and brother of the deceased could not be labelled as interested witnesses as they had no enmity to falsely involve the accused in the murder case—Oral testimony was supported by medical evidence which was consistent, confidence-inspiring and worthy of credence—Case of acquitted co-accused, was quite distinguishable as his guilt was not established by any convincing evidence—No grave contradiction so as to result in serious miscarriage of justice could be pointed out on behalf of the accused in prosecution evidence with the passage of time could give no benefit to the accused—Defence plea was an afterthought and fabricated—conclusion arrive at by the Trail Court duly concurred by High Court being well-based and unexceptionable, did not call for any interference. PLD 2003 SC 350

 

Jurisdiction of Trial court, determination of – Co-accused had earlier been tried by a Special court constituted under the Anti-Terrorism Act, 1997, at the time when such a court used to have jurisdiction with reference to certain scheduled offences, but subsequently the said Act was amended and through an amendment in its S. 6 jurisdiction of the Special court was made determinable not with reference to any schedule of offences but with reference to the mens rea and the actus reus specified in the F.I.R had no intention or mens rea as specified in the said amended provisions—Offences had been committed by the accused in the background of personal enmity between the parties and to take private revenge—Victims in the case had not been assaulted in their capacity as public servants or with an intention to deter them from performance of their official duties—Special court constituted under the Anti-Terrorism Act, 1997, for all the aforesaid reasons had no jurisdiction to try the accused and they had been rightly referred to a regular court for trial—Impugned order was not open to any legitimate exception—Revision petition was dismissed accordingly. PLD 2003 Lah. 267

 

Kidnapping or abduction for extorting money and murder—While committing the said crime various acts are done i.e. capturing the victims and then detaining them under captivity and normally thereafter demand is made for ransom—To constitute an offence under S. 365-A, P.P.C it is not necessary that the victim must have been released—Abduction/kidnapping may be by force or by deceitful means—Written statement which was voluntarily filed by the accused, in the present case, when he was in jail to explain his point of view saying that the death of the deceased was accidental was prima facie false, accused had put the dead body in the dickey of the car and continued making demands for ransom, it was, therefore, a pre-planned murder and so was established beyond and shadow of doubt—Supreme Court maintained the convictions and sentences awarded by the Trial Court and affirmed by the High Court—Amount of Rs. 2, 00, 000 awarded, as Diyat, was directed to be taken as compensation to the legal heirs of the deceased under S. 544-A, Cr.P.C and not as Diyat. PLD 2003 SC 704

 

Last seen Evidence :—Last seen evidence, though generally is regarded as a weak evidence, yet capital punishment can be awarded if an unbroken chain of circumstances from the stage of last seen evidence till death of the victim is established by conclusive evidence. PLD 2003 SC 704

Where the accused failed to furnish a plausible explanation that on which point, time and where the deceased separated from him, the accused could not be said to have discharged the onus lay on him in view of the provisions as contained in Art. 21 of Qanun-e-Shahadat, 1984. 2000 S C M R 1784

 

Leave to appeal :— leave to appeal was granted by Supreme Court to the State to examine whether High Court was legally justified in extending the State to examine whether High Court was legally justified in extending the benefit of doubt to the accused in absence of any doubt about his misidentity and in view of the ocular evidence being supported by medical evidence, motive, retracted confession and other circumstantial evidence. PLD 2003 SC 70. Leave to appeal was granted to complainant to consider: that whether conclusion of High Court in reducing the sentence from death to imprisonment for life was sustainable on the strength of argument that motive was shrouded in mastery; that whether in the absence of motive the accused was not liable for normal penalty of death as envisaged under S. 302(b), P.P.C in view of the law laid down by supreme court in specified cases and that what would be the effect of the judgments in the specified cases because the accused had already undergone the sentence of imprisonment for life in pursuance of he impugned order passed by the High court? PLD 2003 SC 240

 

Leave to appeal was granted by S.C. to consider whether in the circumstances of the case when the motive for the murder as alleged by the prosecution was not believed by the Courts below and the Court was not taken into confidence with regard to the motive, extreme penalty of death awarded to accused was justified, 2001 SCMR 1334

 

Leave to appeal was granted by supreme court to consider contentions, as to whether the injured eye-witness had furnished truthful evidence against the accused for the murder of her father alone; whether Trial court had rightly rejected deposition of the injured eye-witness for allegedly committing murders of two other deceased and if so whether High Court was justified in converting acquittal of the accused from the charge of murder fo the said persons into conviction without seeking independent corroboration from any other incriminating material available on record and whether under the circumstances of the case trial court and the High Court had delivered judgments following the principles of safe administration of justice in criminal cases. PLD 2003 SC 368

 

Leave to appeal was granted by the S.C. to consider the points as to whether the guilt of the accused had been proved beyond doubt; whether the Trial Court evaluated/appraised the evidence in the correct perspective and in accordance with rules, laid down by the S.C. from time to time for appreciation of evidence in criminal cases; whether the Courts below had not properly considered the plea of defence and what were the legal implications of the said plea over the guilt of the accused and whether in the circumstances of the case the penalty of death was the only punishment that could legally be imposed or ends of justice would have met if the sentence of life imprisonment was awarded. 2002 SCMR1425

 

Leave to appeal was granted by the Supreme Court to consider as to whether Anti-Terrorism Court had the jurisdiction to try the case under the Anti-Terrorism Act, 1997; whether the circumstantial evidence, on which the conviction and sentence of the accused rested, connected the accused with commission of offence under S. 302, P.P.C; whether principles of safe administration of justice had been followed in the case while appraising the prosecution evidence and whether the order with regard to payment of Diyat in addition to sentence of death under S. 302(a), P.P.C. was sustainable. PLD 2003 SC 704

 

Leave to appeal was granted by the Supreme Court to determine as to whether the principle of safe administration of justice in criminal cases laid down by the Supreme Court were correctly followed by the High court. PLD 2003 SC 697

 

Leave to appeal was granted by the Supreme Court to examine as to whether High Court had not fully appreciated the evidence available on record according to the established principles regarding appraisal of evidence. PLD 2003 SC 644

 

Leave to appeal was granted to accused to reappraise the prosecution evidence to ascertain as to whether it was appreciated in accordance with the principles laid down by Supreme Court from time to tie for the appraisal of evidence in criminal cases. PLD 2003 SC 583

 

Medical evidence—Medical evidence itself without further corroboration cannot connect an accused person with the crime as it only establishes death and does not indicate at all as to who had a hand in the commission of the offence. 2004 P. L.D 157

 

Medical jurisprudence—Medical report showed that the death of the injured, in the present case, had resulted due to haemorrhage and the injuries which by themselves were not of such a nature that it could hamper the speech of the deceased instantly—With the passage of the time and due to processes of haemorrhage, the injured slowly and gradually goes into shock and his speech is hampered at a later stages. PLD 2003 SC 662

 

Mitigating circumstances—Plea of right of private defence—Without even a scratch on the body of the accused to support his plea of exercise of right of private defence and in the absence of any positive evidence to substantiate his hypothetical theory of a chance encounter of the parties resulting in deterioration of the situation at the spot the accused cold not be extended any benefit in the matter of sentence merely on the basis of suppositions on conjectures alone—Accused had not fired at the deceased once or twice but he had fired at the deceased thrice while aiming at and hitting vital parts of the body of the deceased resulting in his death—Even if the conjectural submissions of the accused were kept in view still there was absolutely no justification available with the accused for taking an undue advantage of the situation and to kill the deceased mercilessly—accused had never thought of maiming or incapacitating the deceased but he went only for a kill which he surely achieved and that too sadistically—Accused, in circumstances, had failed to evoke the sympathy of the Court in the matter of sentence. PLD 2003 Lah. 564

 

Motive :— Allegations and proof of motive are not legal requirements for awarding maximum penalty of death in a murder case when the prosecution has proved the guilt of the accused beyond reasonable doubt – Decision of the case must not be taken in relation to case of accused, but must rest on the examination of entire evidence, 2001 SCMR 1334 Woolmingtin’s case 1935 AC 462 ref.

 

Accused and deceased were immediate neighbors and their houses were situated opposite to each other—Parties were locked in pitched enmity with each other and numerous cases of murder and attempted murder had been lodged by them against each other in the past – Bother of the accused had been murdered in the year 1992 and deceased in the present case was one of the accused persons booked for that murder but only a few months before the present occurrence he had been acquitted by the Trial court in that case—Held, in the backdrop it was but natural for the accused to be recoiling in anger and frustration while watching him (the deceased) living in the house next door and leading his normal life after his acquittal in the case pertaining to the murder of the accused’s brother—Accused, in such circumstances, had the requisite motive to do away with the deceased so as to get even with him on that score. PLD 2003 Lah. 303

 

Motive set up by the prosecution and stated by the complainant had not been seriously questioned by the defence at any stage of the case—Occurrence had remained witnessed from its inception to its culmination and, thus, there was little room available for an argument that the said occurrence was a result of a chance encounter taking an ugly turn and unwittingly deteriorating into an occurrence of murder—Accused had emerged at the scene having armed himself with a pistol and had straightaway, without further ado, started firing at the deceased—Statements by the prosecution witnesses in that regard were absolutely consistent, down to all the relevant and minute details of the main occurrence, which statement had inspired confidence of the courts with their consistency, forthrightness and straightforwardness—Statement of said witnesses or their veracity could not be doubted simply on the basis of a hypothetical possibility of something else happening at the spot before start of the shooting by the accused. PLD 2003 Lah. 564

 

City, wherein the occurrence had taken place was engulfed in high tension emanating from sectarian clashes between two communities and the situation had deteriorated so much that a curfew had been clamped down in the city so as to keep the warring factions apart—Gruesome occurrence, in the present case, had taken place during a lull between the curfew hours and at a time when the members of one community (victims) were dispersing after attending a religious gathering—Nothing, was though available on record, showing any personal or individual enmity between the accused persons and their victims but at the same time it was equally true that all the prosecution witnesses, including the injured eye-witnesses, belonged to one sect and all the accused persons were from the other—Accused persons in statement recorded under S. 342, Cr.P.C had themselves asserted a background of “enmity” between the accused persons and the prosecution witnesses on the basis of sectarian differences; even the suggestions put to different eye-witnesses by the defence unmincingly referred to such sectarian enmity—Lalkara attributed by various eye-witnesses to the accused persons before launching the assault also had the overtones of sectarianism and the same unmistakably pointed towards that motivation on the part of the accused persons for perpetrating the alleged offences—One, in such context, could not lose sight of the fact that in a case of terrorism it was not vengeance against an individual but retribution and said factor could be found writ large on the entire record of the present case—Motive for commission of the offence, in circumstances, was nothing but sectarianism and the same stood conclusively established in the case. PLD 2003 Lah. 432

 

No ,Motive to kill. PLD 1977 S.C. 462. Value of. 1977 SCMR,175. May be gathered from the choice of weapon and seat of injury. 1975 SCMR 289. Not a sine qua non for bringing offence home. 1983 SCMR 806. Failure to prove immaterial if reliable inculpatofy evidence available. 1984 SCMR 646. The moment trigger is pulled, intention becomes manifest. 1989 P.Cr.L.J. 402. Dislodging of. 1989 MLD 1567. Not proved. 1989 P.Cr.L.J. 2416. Ocular evidence consistent. 1989 MLD 825. No motive of crime given. 1987 SCMR 1246. Motive set by prosecution not proved. 1990 ALD 262(1) Where there is clear proof of motive for crime it lends additional support. PLJ 1976 S.C. 283. Atrocious crimes are committed from slight motive. PLJ 1976 S. C. 234.

 

Murder, rape etc. by 3 persons – Complainant party knew appellant since before occurrence complainant and victim who was raped was a natural witness – Both witnesses had absolutely no back-ground of animosity with appellant to falsely implicate him – witnesses statements had received ample support from medical evidence – Incident commenced at 2.30 A.M. during a night but to have continued till morning – Presence of lantern inside room where occurrence had taken place and duration of incident left no doubt that complainant and victim girl had ample opportunity to identify one of the perpetrator – Two pother appellant nominated in supplementary statement four days after occurrence without any valid basis – Waj Takkar evidence provided by and witness has been found utterly unreliable as he had seen three persons running away and he had not disclosed as to how he had identified those three persons to be appellants especially when occurrence had taken place during a night and this witness had never claimed to be carrying any light with him – There are serious doubts regarding two appellant’s identification and implication as co-culprits of main appellant – Death sentence of main appellant confirmed whereas conviction and sentence of two co-culprits set aside and they are acquitted of charge by extending benefit of doubt. PLJ 2002 Cr. C   571

 

Ocular testimony: — In assessing the value of evidence of eye-witnesses it is necessary to examine whether in the facts and circumstances of the case their presence at the scene of occurrence in such a situating as would make it possible for them to witness it should be believed and further whether there is anything inherently improbable or unreliable in their evidence. PLD 2003 SC 350

 

Opinion of police official and expert evidence :– Mere personal opinion of a police official was no legal evidence and was inadmissible in evidence‑‑‑Opinion of expert was, of course, valid. 2001 P Cr. L. J. 9 Expert opinion with regard to documents— Revisional jurisdiction, exercise of—Prosecution witness who was a police officer was examined against accused to prove some documents which were written by Inspector of Police who had since died and police officer who was examined had worked with deceased Inspector—Accused applied in Court that since some documents which had not been written by deceased Inspector of Police, had been brought on evidence through prosecution witness/police officer, all exhibits and documents purportedly written by deceased Inspector of Police be sent to Handwriting Expert for obtaining his scientific and expert opinion, which application of accused was dismissed by Trial Court observing that accused had requested for sending almost all the documents exhibited in Court to the Handwriting Expert without specifying as to which documents were not in the handwriting of deceased Inspector of Police—No objection was taken to the admissibility of documents produced by prosecution witness/police officer either in. examination-in-chief or in cross-examination of prosecution witness/police officer by accused, — otherwise documents produced at the trial during statement of prosecution witness/police officer, were brought on record in accordance with Qanun-e-Shahadat—Prosecution witness/police officer had clearly stated that documents exhibited in his statement were in hand of deceased Inspector of Police and nothing was available on record to suggest that those documents were not in the hands of deceased Inspector—Mere suspicion on part of accused that some of documents were not in the hand of deceased Inspector of Police would not call for their examination by Handwriting Expert—Application of accused having been rightly dismissed by Trial Court would not call for interference by High Court in its revisional jurisdiction. P L D 1998 Lah. 316

 

Opinion of Police Not binding on Court. 1989 P.Cr.L.J. 732. Yet the factum of impact of such an opinion cannot be thrown away. 1990 P.Cr.L.J. 1607.

 

Permission granted to prosecution to cross‑examine its own witness :–Medical Officer, a prosecution witness, during cross‑examination had made a vague statement intended to help the accused‑‑‑Trial Court, however, observed that the ambiguity could be resolved by subjecting the said witness to re­examination‑‑‑Prosecution, however, was under the apprehension that during re‑examination the said witness might extend some more concession to accused with a view to create dents in the prosecution version‑‑‑High Court, in circumstances, ordered that in case the same was done and it was satisfactorily demonstrated to the Court, the witness might be allowed to be cross‑examined in the interest of justice‑‑‑Revision petition was disposed of accordingly. 2001 M L D 307

 

Petition for acquittal of accused person — When an application is accepted, accused persons are deemed to have been acquitted of charge-Section 265-K, Cr. P. C. authorises the Trial Court to acquit an accused person at any stage of case mandates that he is to take into consideration that there are no probabilities of accused being convicted of an offence. Trial Court in private complaint holding at the preliminary inquiry that there is sufficient grounds for proceeding against all the three respondents but acquitting the two under Section 265-K, Cr. P. C. without recording of any further evidence-Trial Court merely relying on investigation and police diaries – Held: While assessing the probabilities, the opinion of the police or the police diaries, cannot be used as evidence to accept an application u/S. 265-K, Cr. P. C. -Appeal against acquittal allowed. 1999 P.Cr.R. 300 ­Accused acquitted by Trial Court-State appeal against acquittal dismissed by the High Court of Sind-Appellant challenging such acquittal-Held the ocular testimony supported by the motive version and medical evidence requiring no corroboration of recovery evidence-Further the evidence of the two witnesses as they having no motive to falsely implicate the respondents-Their testimony should have not been discarded when the same supported by motive version and medical evidence-The judgments of the Trial Court as well as of the High Court are-Further held: set aside and the appeal against acquittal of respondents accepted-The two respondents who had caused incised injuries which had led to the death of the deceased are convicted u/Section 302/34 P.P.C. and sentenced to imprisonment for life plus, fine-Benefit of Section 382-B Cr. P. C.  Given-The three respondents having caused simple injuries by fist blows r to the deceased are convicted u/Section 323/34 P.P.C. and sentenced to one year’s R. 1. The appeal against the sixth respondent dismissed. PSC 1989 SC (Pak) 138

           

Plea of alibi – Failure of the accused to proof. 1969 SCMR 584. PLD 1976 S.C. 283. Credibility not to be taken at the stage of grant of bail. PLD 1974 S.C. 83. Accused entitled to benefit of doubt if not challenged. PLD 1969 S.C. 293 Plea In the light of ocular testimony not to be considered reliable. PLD 1989 S.C. 20 + 1989 SCMR 144 + 1989 SCMR 977. Plea not to be ignored. Observation of Court to be objective. 1987 P.Cr.L.J. 1728.

 

Not essential for the accused to have proved the plea of alibi to the hilt and more so it is for the prosecution to establish its case beyond the shadow of doubt. P L D 2002  S. C. 77 Amanullah v. State PLD 1982 SC 429; Surat Chandra Dhupi v. Emperor AIR 1934 Cal. 719; Suraj Bakhsh Singh v. Emperor AIR 1933 Oudh 369; Muksed Molla v. The Crow. PLD 1957 Dacca 503 and R. v. Lobell 1957 All ER 734 ref.

 

Plea of alibi taken by one accused stood proved—Other accused was allegedly standing near the place of incident empty handed and no overt act was assigned to him of firing on the deceased—Improbable for an accused to associate himself for commission of murder coming empty handed—Trial Court had rightly acquitted the accused in circumstances—Appeal against acquittal of accused was dismissed accordingly. PLD 2003 Quetta 109

 

Plea of self-defence :––  As the appellant was on alien ground but as a matter of right and under threat-of violence and rough handling of the deceased his act of killing the deceased would make it the offence of culpable homicide not amounting to murder-Further held in circumstances appeal allowed but conviction under section 302 P.P.C. is substituted with that under section 304 Part-1 P.P.C. PSC 198 SC (Pak) 35

 

Appeal   from   jail there against-Contention that F.I.R. lodged with a delay of 12 house – Unwitnessed night occurrence-Contradiction in the account of PW as to signing of medico-legal report – Injuries on the appellants’ person suppressed-Held that: Unwitnessed night time occurrence is without any substance as in the month of June darkness not immediately following the sun set – Further held: That the appellant having admitted the occurrence and postulating the theory of self-defence refusing to give evidence on Oath as contemplated by Section 340 (2) Cr. P. C. renders   his version dubious. KLR 1990 Cr. C. 324

 

Police officials as Witnesses :– Conviction and sentence of life imprisonment upheld by High Court-The appellants brothers inter se killing their own sister by strangulation due to her bad character-Appellants contending that it was an un-witnessed occurrence-There was nothing to connect them with the crime as ” the two police eye witnesses were discrepant on the point as to who had strangulated the deceased – Held: Although the police officials as citizens are as good witnesses in Court proceedings as any other person but an individual police official and not all might in mistaken zeal blur line between duty and propriety-It is necessary as a pre-requisite to see whether the witnesses is not such an over zealous witness-All the appellants-Further held: Have rightly been concerned with the crime-While conviction and sentence u/Section 302 P.P.C. in case of one appellant upheld-The other appellants found guilty u/Section 302 P.P.C. in case of one appellant upheld-The other _ appellants found guilty u/Section 325 P.P.C. and accordingly sentenced-Benefit of Section 382-B Cr. P. C. extended. PSC 1989 SC (Pak) 1

 

Press reports–Admissibility-Press reports only amount to hearsay evidence and are inadmissible unless proved by producing the Reporter and their source for verification: —1995PCr.LJ 313 P L D 1993 SC 473 distinguished. P L D 1963 BJ 14; A I R 1930 Lah. 371; P L D 1986 SC (AJ&K) 120; P L D 1960 Kar. 178; A I R 1961 Pb. 215; A I R 1953 Him. Pra. 41 and A I R 1925 Lah. 289 ref.

 

Prison Rules, Rr. 35, 38, 206 & 218—Government Punjab Notification No. So(MP)/14-1/97, 28-8-1997—Constitutional petition—Remission of sentence by president of Pakistan under Art. 45, Constitution of Pakistan (1973)—Accused was convicted under S. 302(b), P.P.C and sentenced to imprisonment for life and a compensation of Rs. 30, 000 to be paid to the legal heirs of the deceased—Sentence of accused, however, was suspended by High court on statutory ground but his appeal was dismissed whereafter he was committed to judicial custody—Government of the Punjab, during the currency of suspension of sentence of the accused issued Notification No. SO (MP)/14-1/97 conveying the order of the President of Pakistan under art. 45 of the Constitution granting remission of sentence—petitioner convict, in circumstances, could not be granted remission in terms of the notification during the period when he was out of prison and his sentence had been suspended by the High court—provisions of S. 55, prisons Act, 1894 read with Prison Rules, Rr. 35, 38, 206 & 218 had no nexus with the issue in question. PLD 2003 Lah. 387

 

Private defence, right of – Accused, in appeal before Supreme Court, had not challenged, the conviction on merits but had only urged for reduction of sentence – Court had to examine the version of accused keeping the same in juxtaposition to the case of prosecution – Mere assertion of the accused that it was the complainant party who first attacked and caused injuries to the accused side, in the absence of any medical report to such effect, would be of no avail to them – If the accused party had received injuries, in the incident, it was on their part that they should have disclosed the same to the Magistrate at the time of remand and asked for medical examination and certificate – By not agitating so before any of the concerned Authorities, it stood established on record that they were probably not injured at all and raised a false plea – Record in the present case, showed that the complainant party and the accused party had a joint Khata of disputed land which was not yet partitioned, in such circumstances, accused party was not justified to act in the exercise of right of self-defence of their property – Right of private defence of body or property would extend only when a clear danger to person or property became imminent – Number and nature of the injuries received by the complainant party suggested that they were the victims of the murderous assault and there was nothing on record that anyone from the complainant side was armed with lethal weapon just to create an apprehension in the mind of the accused person that they would be attacked and there was no option for them but to act in self-defence – When a specific plea of self-defence was raised, the onus to prove such plea lay upon the party claiming the same which in the present case, the accused had failed to do – Brutal and atrocious manner in which the accused had killed the deceased and caused severe injuries to the prosecution witnesses did not call for any leniency in the sentence – Trial Court as well as the High Court had elaborately discussed every aspect of the case and had dealt with the same in detail, leaving no room for further consideration – Finding no good reasons to interfere with the concurrent findings of the Courts below, Supreme Court, maintained the judgment and dismissed the appeal. 2002 SCMR1425

 

Procedure of Special Court—Accused was present in the court when the charge was framed and he pleaded not guilty to the charge—Accused remained present until the next date but after that date he moved an application reflecting that he was sick and sought adjournment which was granted and on the next date fixed he submitted an application for exemption of his appearance for the said date on account of ailment which was allowed, again on the next date another application was submitted and he was allowed leave and the presence of his counsel was counted towards his presence—Accused, again absented on the next date when the order allowing him bail was withdrawn and his warrant fro arrest was issued and subsequently perpetual warrant of arrest were issued against him and action was also taken against his surety—State Counsel was appointed on his behalf and proceedings continued in presence of his counsel—Statement of the Investigating officer was recorded during the proceedings and case was adjourned for recording of the statement of the accused under S. 342, Cr. P.C but on this date accused did not appear in person rather his counsel recorded statement on his behalf and the matter was fixed for arguments and alter the judgment was announced—Accused, after the announcement of the judgment before expiry of 60 days prescribed under S. 5-A(7), Suppression of Terrorist Activities (Special Courts) Act, 1975 applied for setting aside the judgment so that he could join the proceedings from where he left which was disallowed and accused had been arrested fro undergoing the sentence—Contention of the accused was that the evidence which was recorded during his absence, had to be recorded afresh and he had also to be given the opportunity under Ss. 342 & 340 (2), Cr. P.C being mandatory provisions as his counsel could not substitute him for his statement under S. 342, Cr. P.C – Validity—Trial court had followed some procedure with respect to S. 5-A, Suppression of Terrorist Activities Act, 1975 but could not issue the required proclamation; it had, therefore, not become mandatory for the Trial Court, in circumstances, to follow the procedure in entirety as envisaged by S. 5-A of the Said Act—Accused started absenting himself in the midstream but had his representation through his counsel who cross-examined the witnesses thoroughly and professionally and there was nothing to suggest any prejudice having been caused to the accused in that regard—Counsel of the accused, however, could not substitute him for recording the statement under Ss. 340(2) & 342, Cr. P.C – Rights under Ss. 342 & 340(2), Cr. P.C were basic and valuable rights which accrue to an accused for explaining incriminating evidence standing against him as well as for defending himself in his capacity as a witness—Opportunity ought to be provided to the accused with respect to his examination under S. 342, Cr. P.C or for his appearing as his won witness under S. 340(2), Cr. P.C so that he was left with no grievance of having not been heard personally—Statements of all the witnesses appearing on behalf of the prosecution and who had been thoroughly cross-examined on dates when the accused appeared and later when he absented himself, were directed to remain intact by the High court—Complainant, however, had contended that in view of such apprehension of the complainant but as a safeguard by fixing a periphery of time for recording statements under S. 342 or  340, Cr.P.C while directing the Trial court to record said statements on the first day the accused appear and to rewrite the judgment thereafter and while ensuring that the whole exercise did not take more than three weeks from the receipt of judgment of the High Court and if the accused did not cooperate, it would be deemed that he had surrendered his such right—High Court, in circumstances, set aside the judgment of Trial Court but with the condition that until a fresh judgment was given by the Trial Court in view of directions of the High Court, the accused shall not be released. PLD 2003 Lah. 481

 

Promptly lodged FIR :– If was a case of promptly lodged FIR – Both persons were named as accused of abetment and conspiracy – None of eye-witnesses who appeared before trial Court had any animus against present appellants – Investigation was very fair – It was not carried out with malice mind because had any malice been there, then names of appellants and acquitted accused must and could have been mentioned in FIR – This witness was put to lengthy cross-examination – Explanations were also brought by defence counsel as to his relationship with accused in whose house conspiracy was hatched and he explained same – Not a single word has come on record that this witness had any animus against appellants – He had no relationship either with deceased or injured PWs. – He was most independent witness – All these eye-witnesses were not cross-examined by convicts either by themselves or through counsel despite fact, as is clear from interim orders passed by trial Court, they were given sufficient opportunities. PLJ 2002 Cr. C   701

 

Punishment of death as Qisas :— Death sentence as Qisas can only be awarded when the proof of Qatl-I-Amd liable to Qisas as prescribed under S. 304, P.P.C is available—Where either of the forms of proof as prescribed in Ss. 302(a),  (b), 304, 309(1)(2) & 310, P.P.C was not available in the case because neither the accused confessed his guilt nor evidence as required under art. 17 Qanun-e-Shahadat, 1984 was available, punishment of death as Qisas under S. 302(a), P.P.C could not be awarded—Provisions of Ss. 309(1)(2) & 310(1), P.P.C would apply to the cases where punishment had been recorded as qisas and not as Tazir as such the Afw of Qisas and compounding of Qisas in case of Qatl-I-Amd would apply only to the case where conviction and sentence had been recorded as Tazir under S. 302(b), P.P.C—Offender having been punished under Tazir, provision of Ss. 309 & 310, P.P.C would not be applicable—Where the accused had been awarded sentence for murder as tazir and not as Qisas, one of the legal heirs could not waive his right of Qisas, compromise the offence or accept Badl-e-Sulh. PLD 2003 SC 512

 

Quantam of Sentence :–  Trial Court while convicting the accused under Ss.302/34, P.P.C. for an offence punishable with death had sentenced them to imprisonment for life without stating reasons as to why sentence of death was not passed – High Court had also tailed to give reasons for not passing the sentence of death – Leave to appeal was, therefore, granted to consider whether in the circumstances of the case, death sentence was the appropriate sentence or lesser sentence of imprisonment for life would serve the cause of justice. Appraisal of evidence Sentence, enhancement of – Both the Courts below had failed to record reasons for awarding lesser punishment to the accused who had committed preplanned triple murder in a very brutal and gruesome manner and buried the dead bodies in the houses where they were killed – Occurrence was not known to any body till the time it was disclosed by the accused in the confessional statements – Dead bodies had been recovered at the instance of accused from the places specified in their confessions in presence of the Magistrates – Accused had recorded their detailed confessions disclosing various facts which were only known to them and the details of which had established their voluntariness and truthfulness – Confessions of accused were corroborated by the recovery of the-dead bodies, medical evidence and other circumstantial evidence-Accused had committed the preplanned calculated murders in a highly brutal and callous manner and no mitigating or extenuating circumstances existed warranting lesser penalty to them Sentence of imprisonment for life awarded to each accused was consequently altered to death on three counts-Appeals were accepted accordingly, 2001 SCMR 988 AIR 1933 Pat. 100; PLD 1974 SC 266; PLD 1975 SC 478; 1999 SCMR 1744; 1999 SCMR 2040; 2000 SCMR 130 and 2000 SCMR 1634 ref.

 

Quashing of proceedings by High Court :– Basic mischief had arisen out of the ultrasound report given by the Lady Sinologist indicating twin child in the womb of the wife of the complainant – Complainant’s wife gave birth to a single healthy child as a result of caesarean section which was performed in the Operation Theatre of the Hospital under the supervision of Lady Doctor in the presence of a team of Doctors and para-medical staff – Complainant himself was also admittedly available in the Hospital premises outside the Operation Theatre and there was no occasion for removal of one of the children or kidnapping him in order to do away with his life, as mala fide and dishonestly alleged after a lapse of 13 days – No direct or indirect substantial evidence was available even remotely tending to show that the Hospital Management had any animus or motive to deprive the complainant of his child and to commit the murder of an innocent child without any reason or rhyme – Complainant himself had approached the Hospital Management for registration of his wife as a case of delivery and being informed about her condition after due deliberation and consideration had voluntarily executed an undertaking abiding by the consequences of the caesarean section – Complainant was at liberty to accept or decline such course of treatment and to shift the patient to another Hospital for a second opinion, but he did not opt to do so – Complainant had deliberately omitted to seek action against the Lady Sinologist whose aforesaid wrong report, duly admitted by her in writing, had given rise to the present controversy speaking volumes about the bona fides of the case, who was neither arrayed as accused nor cited as a witness before the Court of law – Complainant had launched the prosecution without any legal or moral justification – High Court was not debarred to quash the proceedings under S.561-A, Cr. P. C. in cases where either the charge had been framed by the Trial Court or the accused were summoned by a Court of law – Course of action adopted by the High Court was neither illegal nor arbitrary or opposed to the settled principles of law for dispensation of justice – High Court was under a duty to ensure that the process of law was not allowed to be misused and by passing the impugned order it had prevented the mischief and advanced the cause of justice – Proceedings amounted to sheer abuse of process of law and the same had been rightly quashed – Leave to appeal was refused to complainant by S.C.  accordingly. 2002 SCMR 1076

           

Question of fact—Question as to whether a particular piece of evidence is sufficiently reliable to be used, or even if such evidence appears unreliable whether it ought not to be accepted in view of some other independent and reliable corroborative evidence is a question of fact. 2001 SCMR 177

 

Reappraisal of evidence—Crime report was promptly lodged with the police wherein specific role of causing fatal injuries with Chhuri had been attributed to the accused which was supported by the medical evidence—Accused, during investigation produced blood-stained chhuri, which was sent to the Chemical Examiner, whose report was positive—Injured witness also support ed the prosecution version and narrated the same facts as given in the F.I.R and his evidence was not shattered in cross-examination—Parties were related inter se and no previous enmity existed between them and the incident took place on the quarrel of the children, with the result, as alleged, the deceased abused the womenfolk of the accused-party and due to that grudge the accused came duly armed and inflicted chhuri blows on the person of the deceased as well as the injured witness—Doctor opined that the injuries could be self-suffered, but he denied the version of the defence that the injured witness suffered injuries by hitting with the vehicle—Entire impugned judgment of the High court was based on the appreciation of roadmap produced by the defence during hearing of the appeal in connection with the traveling of complainant party by the same passage was repelled being not acceptable— Natural and reliable and trustworthy evidence and acceptable — Natural and reliable and trustworthy evidence and recovery of blood-stained chhuri at the behest of accused, had not been considered in its proper perspective by the High court, which had resulted in miscarriage of justice and was not in consonance with the law laid down by the Supreme court for safe administration of criminal justice—Documents produced by the accused person being not valid piece of evidence were rightly rejected by the Trial Court—Plea of accused that he received injuries at the hands of the deceased was also belied by the documentary evidence adduced by the Trial court—Medico Legal Report was in consonance with the principles of medical jurisprudence—Trial Court, in view of the facts and circumstances had rightly discarded the defence plea and accepted the prosecution case to have been proved beyond reasonable doubt against the accused persons while the other accused were correctly acquitted—Impugned judgment of the High court was quite contrary to law laid down by the supreme Court, and was based on surmises, conjectures and extraneous circumstances by relying upon secondary evidence which practice was not appreciable in the eyes of law which was repelled by the Supreme Court—Supreme court, accepted the appeal against the judgment of the High court, set aside the same and restored the judgment of Trial Court. PLD 2003 SC 697

 

Ocular testimony of prosecution witnesses had remained sufficiently constant—No material discrepancy Could be brought on record during fairly lengthy cross-examination—Testimonies were fully supported by the medico-legal and post-mortem reports in addition to the recovery of two empties and the motive involved—Motive was admitted by both the accused in their statements under S. 342, Cr.P.C—Prosecution witnesses had no enmity whatsoever with the accused—Charge brought about by the eye-witnesses had been extremely natural—Being a broad daylight occurrence and parties known to each other, identity could not be mistaken—Blackening of  the wound supported the fact as mentioned in the F.I.R that accused had fired at the deceased from close distance—Court witnesses called at the instance of the accused and one of them was the persons who happened to be the one who took the deceased to the hospital, he had not been able to shatter the case of the prosecution and to support the case of the accused—Court witness who took the deceased to the hospital had stated that the deceased before his death in the hospital told the investigating officer on a question that it was the accused who was responsible for his death which tantamount to oral dying declaration by the deceased which proved the fact that deceased was done to death by the accused—Co-accused, as per record was never attributed any overt act leading to the act of killing and was not armed—Mere Lalkara was attributed to the co-accused which as not a commanding one because to whom it was made was his own uncle—Co-accused, in circumstances was rightly extended the benefit of doubt qua the act of murder—Commission of murder of the deceased in the first degree by the accused had fully been proved by the prosecution—Accused had committed the murder in cold blood and repeated the shots from a close range sparing no chances of his survival—Accused, in circumstances, was rightly awarded death sentence while his co-accused was rightly acquitted on benefit of doubt qua the actual act of killing.  PLD 2003 SC 662

 

Recovery – Association of we respectable inhabitants of locality, we not required in case where accused himself had led police to a particular place and had got articles recovered  –  Provisions of S. 103, Cr. P.C would apply to a case where police conducted search of house/place to recover articles for which search was to be made and not to a case where anything was to be discovered in consequence of information given by or on pointation of accused  –  Recovery to be made on pagination of accused was relevant under Art. 40 of Qanun – e Shahadat 1984, 2000 P.Cr.L.J 1386 Unless from the facts and circumstances of the case it was not possible to obtain Mahsir of the same locality where the recovery and arrest was made, prosecution might pick up any other person to investigation agencies to pick up mashir form the locality itself. PSC (Crl.) 1992, S. App. C 60

 

Crime weapon recovered from a corner of a room of a person other than accused Doubtful. 1968 SCMR 161. Recovery witness discrepant on material point-Evidence discarded. 1968 SCMR 98. Recovery of incriminating items does not by itself prove the offence. 1971 SCMR 756. No recovery memo. 1972 SCMR 435. empties not sent to Expert, 1970 SCMR 527. Joint recovery. 1989 ALD 554 + PLD 1989 Kar. 466; 1989 P.Cr.L.J. 2234. No reports of forensic science laboratory about matelling of crime empties available. 1989 SCMR 1099 + 1989 P.Cr.L.J. 2038. Currency neither claimed by accused nor by witness. 1989 MLD 4016. Residents of locality not associated. 1989 MLD 4712. Mere recovery without empty, 1987 P.Cr.L.J. 1728 + 1987 MLD 1866. Recovery memo not proved. PLD 1987 Lah.162. Fact of recovery never put to the accused. 1990 Law Notes 1050 = 1991 P. Cr. L.J. 122.

 

Registration of a criminal case against police officials – Petitioner; who was mother of the deceased had charged the respondents/police officials for murder of her son when he was in police custody, whereas the version of the respondents was that the deceased died in police encounter and case had been registered in that respect – Police was not possessed with the right to murder or kill any citizen accused of any offence only for the reason that such person was involved in a criminal case and was keeping a previous bad record – Person keeping bad record could be innocent in the case registered against him because under the law presumption of innocence would continue until he was proved guilty – If the police machinery would take law in its hands it was to be dealt with in the same manner as the ordinary citizens were dealt with – Nobody could be allowed to take law into his hands and it was the duty of the Courts to curb the highhandedness strictly – In view of totally different versions of the parties regarding the occurrence, it could not be said as to which version was correct and the truth could be ascertained only if the case of the petitioner was registered and both the cases were investigated together – Unless both the versions were placed before the Court, no proper adjudication of the respective contentions could be made – To Submit Challan in one case and to ignore the other version was not at all conducive to the interest of justice – High Court accepting Constitutional petition ordered registration of case against the respondents in accordance with S. 154, Cr. P. C. for the murder of the son of the petitioner and that investigation in case should be entrusted to an experienced and honest police official of the Crime Branch. 2002 MLD 280

           

Reinvestigation of case after discharge of the accused :– Case had been registered at the direction of High Court  – Complainant having not been issued any notice had been condemned unheard Statements of some of the witnesses recorded under S.164, Cr. P. C. were not enough for exonerating the accused  – Although investigation in the case was not yet complete, report for the discharge of the accused was prepared by the S.H.O. which was verified by the D.S.P. and agreed to by the Area Magistrate  – No effort had been made for the recovery of the Klashinikov allegedly used by the accused in killing the deceased  – Even otherwise Klashinikov being a scheduled weapon under the Suppression of Terrorist Activities (Special Courts) Act, 1975 and the Anti-Terrorism Act, 1997, Area Magistrate had no jurisdiction to discharge the accused and pass the impugned order arbitrarily in a mechanical and perfunctory manner  – Impugned order was consequently set aside directing fresh investigation in the case by the Crimes Branch in accordance with law. P L D 1998 Lah.228 No order of discharge was passed by the Ilaqa Magistrate on the basis of the police report under S.173, Cr. P. C. although two different Investigating Officers had found the accused innocent and had recommended their discharge from the case Sessions Court, therefore, while rejecting the application of accused under S.265-K, Cr. P. C. through the impugned order and framing the charge, had not committed any illegality  – Case against accused was to be decided by the Trial Court on the basis of legal evidence produced before it  – Revision petition was dismissed accordingly. 1997 M L D 1745 PLD 1966 (W.P.) Lah.344; 1995 MLD 1635; 1990 P. Cr. L. J 1765 and PLD 1988 Lah.336 ref. PLD 1980 Lah.81; PLD 1985 Lah.71 and PLD 1986 Lah.81 distinguished. 1985 SCMR 1314 fol.

 

Related witnesses—Mere relationship between the witnesses and the deceased is not enough to discard their evidence unless they have a motive to falsely implicate the accused in the case. 2004 M L D 166

 

Remand of Case:– High Court had set aside the judgment of the Special Judge, Anti-Terrorism Court and remanded the case for retrial to an ordinary court on the ground that the murder had taken place at a deserted place out of personal enmity which had not nexus with Ss. 6 & 7 of the Anti- Terrorism Act, 1997—For bringing the case within the ambit of the said Act it is not necessary that the commission of murder must have created panic and terror among the people—courts have only to see whether the terrorist act was such which would have the tendency to create sense of fear or insecurity in the minds of the people or any section of the society—Such act even was not required to have taken place within the view of general public so as to bring it within the compass of the anti-Terrorism Act, 1997—What had to be seen was the psychological impact created upon the minds of the people—Where an act having taken place in a barbaric and gruesome manner had created fear and insecurity, it would certainly come within the purview of the said Act—Murder in the present case was committed by the accused by sprinkling petrol on the person of the deceased and also by firing at him with his kalashnikov—Body of the deceased was completely charred and the bones of his both hands and forearms were burnt—Death of the deceased had occurred apart from the fire-arm injury due to intense pain and difficult breathing—Charred body of the deceased when brought for funeral rites in the locality of his residence would have certainly caused shock, fear and insecurity among the people of the vicinity on seeing the barbaric and callous manner in which the human body had been mutilated—Additionally, trial in the case had resulted in the conviction of accused by the Special Court and the impugned or her had been passed in appeal by High Court—Special Court was presided over by a Sessions judge appointed by the Government after consultation with the Chief justice of the High Court concerned and the provisions with the Chief justice of the high Court concerned and the provisions of the Code of Criminal procedure, 1898 were made applicable to the proceedings before a Special Court which would be deemed to be a court of Session by virtue of S. 32 of the Anti-Terrorism Act, 1997—No prejudice whatsoever, thus, had been caused to the accused in his trial by the Special Court—Petition for leave to appeal was consequently converted into appeal and allowed—Impugned judgment was set aside and the case was remanded to High Court to decide the appeal on merits. PLD 2003 SC 224

 

Re-Trial  of accused arrested later :–After the arrest of accused attendance of prosecution witnesses was procured and accused was allowed to cross-examine them on the basis of their examination-in-chief which they had already recorded in first sound of the trial against co-accused—Procedure adopted by Trial Court was not recognized by law which had caused serious prejudice to the accused–­Conviction and sentence of accused were set aside in circumstances and the case was sent back to Trial Court for proceeding in the matter according to law keeping in view the observations made in the case. 1997 P Cr. L J 259

 

Revision against Acceptance of application u/Section 540 Cr. P. C. – During recording of the statement of the accused-petitioner u/Section 342 Cr. P. C. it was pleaded by him that he was below of 16 years of age at the time of the occurrence and in proof of the said plea birth certificate was also placed-The said document was exhibited for the first time and the prosecution was within its right to produce evidence in rebuttal – Contention that application was not moved by the Public Prosecutor but by the complainant is of no value because under the new dispensation the complainant has also been given a right of appeal under the Code of Criminal Procedure-Revision dismissed. KLR 1998 Cr. C.  206

           

            Right of private defence-law does not permit injury which is out of a proportion to the danger. 1982 SCMR 1239. A single blow with a blunt weapon-Requirements of section not proved. PLD 1981 SC 243. Injury caused though of substantial dimension, not on vital part-Offence falls under section 304. 1983 SCMR 1165.Self defence – Not to be weighed In golden scale. PLD 1987 Lah.603.

 

The question whether the police party was entitled to demand to see the injunction orders, or to require accused to accompany them to the thana was of critical importance in determining the nature of accused’s offence. The police party had no authority, and were acting in violation of the law, in more than one respects, in demanding to see the injunction, and that accused should accompany them to the thana. Clearly, if he had gone with them. he would have been in a state of virtual arrest. The trial Judge was right in holding that by these actions the accused had been infuriated. Up to that point he desisted from anything except the mere show of force by aiming his gun at the police officers, and thus having kept them at distance, he attempted to escape from them. It cannot be said that in running away, he was committing any offence, and consequently the attempt by the police to arrest him was wholly unjustified, and could justly have been resisted by the use of force. But that is not equivalent to saying that in order to avoid arrest, he was justified in causing the death of a pursuer. Having so effective a weapon as a gun, it was the legal duty of the accused so to use it as to stave off the danger of arrest with the minimum use of force. The accused should have shot the pursuer in the leg or the arm. His shooting at the face of the deceased must be regarded as deliberate. He exceeded the right of private defence, since he must have known that death would be the inevitable consequence. On these findings of fact, the Court considered that the offence of the accused properly falls under section 304, P. P. C. Part I. 1975 S C M R 80

 

Suspicion. PLD 1987 Pesh. 104. Laps of three days. 1987 SCMR 681. Apprehension of abduction of sister. PLD 1987 Lah.432. State of panic-Covered. PLD 1987 S.C. 25 = 1987 Law Notes 1147. Plea taken at the time of arrest. 1989 MLD 4069. Material available on record proving sufficient. 1989 P.Cr.L.J. 2107. Deceased aggressor. 1989 SCMR 1973. Victim unarmed. 1989 SCMR 144 + 1989 SCMR 1973. Benefit Test. 1987 SCMR 1979 + 1987 MLD 1859.

 

Date, the time and the place of occurrence, apart from the weapon used therein were admitted by the parties and accused had not only admitted his presence and participation in the alleged incident but had also gone on to admit that he was the one who had killed the deceased by firing at him—Accused, though had taken a plea of exercise of right of private defence but he had taken a plea of exercise of right of private defence but he had utterly failed to discharge the onus on him in that regard—Accused had sustained injury at the hands of the deceased at the time of occurrence but no Chhuri/dagger allegedly being carried by the deceased at the time of the occurrence had been recovered from the spot or from the person or clothes of the deceased and no witness had been produced at all to support or substantiate the assertion of the accused that he had fired at the deceased only after the deceased had assaulted the accused with a chhuri/dagger—Held, two questions were of vital importance, i.e. firstly, as to who had done it and secondly, as to who had done it and secondly, as to whether the person doing it had any legal or factual justification for doing it—Onus of proof regarding the first question though was always on the prosecution but the moment and accused person admitted killing the deceased under whatever circumstances, onus of the prosecution on the said general issue was automatically discharged and then the onus of proof shifted on the defence to establish through independent evidence as to what legal or factual justification the accused person had fro killing the deceased—Fact which was admitted may not be proved when an accused person pleaded any general or special exception the onus was always on him to prove the circumstances in that regard through independent evidence and the Court was to presume the absence of such circumstances—Plea of the accused regarding exercise of right of private defence or exceeding such right, in view of the evidence available on the record, was not at all impressive—Conviction and sentence recorded by the Trial Court was upheld and maintained by the High Court with a modification that instead of rigorous imprisonment to be suffered by him in case of default of compensation to the heirs of the deceased he shall undergo simple imprisonment in that regard. PLD 2003 Lah. 564

 

Right of Private defence can create reasonable doubt in prosecution case. NLR 1987 Cr.L.J. 487. Risk of encounter. 1987 MLD 2649. Right of. 1989 MLD 1083. Alteration of conviction. 1987 SCMR 746. Grappling is fight. 1987 P.Cr.L.J. 2211. Requisite intention not present in mind. 1969 SCMR 637. For the application of Exception there must be deprivation of the power of self-control. 1969 SCMR 375. Trespasser cannot claim right of private defence. PLD 1983 S.C. 135. Injury on vital part-intention to kill. 1981 SCMR 578. Right of self-defence exceeded. 1981 SCMR 206; 1983 SCMR 969; 1983 SCMR 796. Settlement parties reaching amicable settlement. 1983 SCMR 631.

 

Rule of consistency :– Case. of accused was clearly distinguishable from that of co-accused  – Rule of consistency was not applicable to the case of accused  –  Accused was named in the promptly lodged F.I.R. with a specific role of trying to take illegal possession of the land by ploughing the fields with his tractor  – Accused was also found guilty in investigation conducted by the local police and prosecution witnesses in their statements recorded under S.161, Cr. P. C. had fully implicated hi~ for having played a vital role during the occurrence  – Reasonable grounds were available for believing the involvement of accused in the commission of the crime as alleged in the F.I.R.  – Bail was declined to accused in circumstances. P L D 1997 Lah.164

 

Rule of res gestae :–F.I.R was promptly lodged—Accused was named in the F.I.R who had been apprehended at the spot alongwith the blood-stained clothes were also secured from his person—Injured eye-witness being an inmate of the house of occurrence was a natural witness who had fully implicated the accused fro commission of murder of her father by giving “Kassi” blows on his head and also for inflicting “Kassi” blows on her left shoulder—Identity of accused and the place of his arrest were not open to any doubt or suspicion—Ocular testimony of the said injured witness was corroborated by other eye-witness to the extent of causing injuries to her and committing the murder of her father which was further corroborated by the recovery of the blood-stained “Kassi” and blood-stained clothes from the person of the accused as well as by the apprehension of accused at the spot and medical evidence—Unimpeachable prosecution witness and committing the murder of her father inspired confidence—No mitigating circumstance was available warranting reduction in death sentence of accused for the murder—Convictions and sentences of accused on the aforesaid counts were upheld in circumstances—No direct evidence having come on record against the accused for the murders of other two deceased persons, he had been rightly acquitted by the Trial Court on the charge of those murders and his conviction by the High court, therefore, was not warranted by law as no compelling or substantial reasons existed for reversing the said acquittal order in view of the principles for safe administration of criminal justice—Rule of “res gestae” in terms of the provisions of Art. 19 of the Qanun-e-Shahadat, 1984, was not attracted in the case—Record did not show that the injured eye-witness immediately after the occurrence had made a statement simultaneously with regard to the incident implicating the accused for having given “Kassi” blows to the said two deceased – Mere fact that the said deceased were found lying dead nearly would not constitute a statement/declaration to form part of “res gestae” – Other ocular testimony on record connecting accused with the commission of murder of the father of the inured witness could not be treated relevant facts as “res gestae” to main issue with regard to the other two murders for connecting him with the said murders as well—Accused was consequently acquitted of the charge of the aforesaid two murders. PLD 2003 SC 368

 

Scope–.Accused can come within the mischief of this section only if death is direct result of the injury. As Ingredients of the offence are felonious intention and an injury causing the death. PLD 1976 S.C. 377 Mere altercation not sufficient to bring exception in operation. PLD 1962 Dacca 424. Culpable homicide may not be murder where the mental state is not of the special degree of criminality required by S. 300, 1981 SCMR 329 Section 302 (As amended)_Is compoundable offence. 1992 P.Cr.L.J. 982

 

Section 382-B Cr. P. C ; appellants sentenced to imprisonment for life-Alleged motive being that the deceased having illicit relations with appellant’s wife on being examined under Section 342 Cr. P. C. refuted the allegations Stating that the deceased being a man of immoral character they had murdered him in the passion of provocation and to vindicate their family honour-Held: One appellant having not participated in the occurrence his conviction and sentence set aside-The other on the basis of his own statement held guilty under Section 304 (1) P.P.C. and sentenced and thereby allowed benefit  of Section 382-B Cr. P. C. KLR 1988 Cr. C. 33

           

Sentence for Offence of Murder — The weapon recovered from the person of the appellant according to the report of the Arms Expert, is not linked with the commission of the crime – Contradiction between the prosecution story   and   medical   evidence-All   the requirements make the confession admissible in evidence are lacking altogether. 1995 PLR 726

 

Sentence, reduction in – Contention of the accused was that husband of the deceased lady being one of the legal heirs had entered into compromise with the accused and that such factum be considered as a mitigating circumstance—Validity—Held, such concession was applicable only in a case where the sentence was awarded as Qisas and not in case where the death sentence was awarded as Tazir—Contention of the accused was overruled by the Supreme Court. PLD 2003 SC 635

           

Site plan, Site plan is prepared only to explain or to appreciate the evidence on record and same being not a substantive piece of evidence, cannot contradict the ocular account in the case. 1998 S C M R 1823

 

Sole statement of wife of deceased – Parties having not brought any evidence to suggest any other motive behind occurrence except altercation of accused with deceased and shortly after incident of altercation accused loosing patience fired at deceased – Evidence of wife of deceased a natural witness of occurrence was being fully supported by circumstances, under which, occurrence took place, therefore, conflict of her statement with medical evidence regarding distance would be of no consequence and except contradiction in question, medical evidence provided full corroboration to statement of wife of deceased – It was a day light occurrence, which took place in shop of deceased without any back ground of enmity, therefore, there was not a remote possibility of false implication and substitution of appellant-Sole statement of wife of deceased a natural witness of occurrence would be sufficient to prove act of firing by appellant at her deceased husband – Deceased and accused without any serious dispute in back ground exchange altercation over a petty matter and accused while loosing patience shortly after altercation fired a shot at deceased without repeating same despite having opportunity – Therefore, it can be visualized from attending circumstances that it was not a premeditated occurrence and accused while under influence of provocation fired a single shot at deceased – Held : It was a sufficient mitigating circumstance for lesser punishment and consequently, while maintaining conviction of appellant under Section 302 PPC alter his sentence from death to life imprisonment and dismiss this appeal.  PLJ 2002 Cr. C   52

 

Sole Witness—Conviction can be based on the solitary statement of a witness, provided the same inspires confidence and satisfies the conscience of the court. PLD 2003 Quetta 109

 

Summoning the accused persons to face the trial :– Placing of accused in Column No.2 of report under S.173 of Cr. P. C. Summoning of such accused persons  – Jurisdiction of Trial Court  – Accused persons were found innocent by the Investigating Officer and were placed in Column No.2 of the report  – Trial Court on application made by the complainant, summoned the accused persons to face the trial  – Report of Investigating Officer was not binding on the Court and notwithstanding recommendation of Investigating Officer regarding cancellation of case and discharge of accused persons from allegation, Trial Court was authorized to take cognizance as provided in S.190, Cr. P. C.  – Trial Court had rightly summoned the accused persons and there was no irregularity or illegality or impropriety in the order passed by the Court. 2001 P. Cr. L J 1624 1999 P. Cr. L. J 731; 1990 P. Cr. L. J 1190; 1993 PCr.Li 686 and 1991 P. Cr. L. J 443 ref.  PLD 1967 SC 425; PLD 1993 Kar. 342 and 1998 SCMR 1128 rel.

 

Taking a specific plea–­Where an accused had taken a specific plea in order to bring his case within purview of S. 302 , P. P. C. then according to Art. 121 of Qanun-e-Shahadat, 1984 the onus would lie on him. 2001 Y L R 1350

 

Terrorism and act of terrorism :–- Contentions were that the testimony of the solitary eye-witness according to law could not form basis for convocation; that the trial of the case by the special court constituted under the Anti-terrorism Act, 1997, was illegal; that the prosecution evidence did not inspire confidence; that the accused being guilty of wanton, brutal and gruesome murder without any justification was liable to death sentence; that the high court had erred in holding that the act of the accused was not covered by S. 6 of the Anti-Terrorism Act, 1997 and was accordingly not punishable under s. 7 of the Said Act and that curiously enough those accused  whose were tried and convicted in absentia by the Trial Court and sentenced to death alongwith other sentences, had also been acquitted  by the High Court by the impugned judgment—Leave to appeal was granted by Supreme court in the three petitions to consider the said contentions. PLD 2003 SC 396

 

Waiver or compounding of Qisas—An adult sane “Wali” has a right to waive the right of Qisas and the retain his right of receiving Diyat or he may waive the right of Qisas as well as Diyat, which is a compensation/substitute for the waiver of right or Qisas—If a “Wali” of deceased/victim waves the right of Qisas as well as compensation i.e. Diyat, the offender is to be acquitted of the charge, but if the “Wali” of has merely waived the right of Qisas, then the offender is liable to be convicted for QatI-I-Amd or as the case may be and offender would be liable to the sentence of paying compensation by way of Diyat or payment of Badl-I-Sulh, because Qisas and Diyat are two distinct punishments and are not the same kind of punishment—Qisas and Diyat, therefore, are separately and distinctly mentioned in S. 53, P.P.C which enumerates different kinds of punishments to which offenders are liable under the P.P.C. PLD 2003 Kar. 127

           

Witness-Failure to examine independent witness 1989 MLD 3695. Witnesses not found Adil’ ( Jib ) 1989 Cr.L.J. 303. Witness as a rule are weighed and not counted. 1990 P.Cr.L.J. 73. Inherent value of evidence to be seen and not the relationship. 1990 P.Cr.L.J. 431. Non-examination of disinterested witnesses. 4992 P.Cr.L.J. 2092. Witnesses not mentioned in FIR-Not to be relied. PLJ 1976 S.C. 29.