Case Law (Delay---Effect- recording of the statement, Statement of prosecution witnesses to be recorded as promptly as possible, without giving any opportunity to improve upon and subtract from what he had seen)

 S. 161---Statement of witnesses before police---

Delay---Effect---
Statement of prosecution witnesses to be recorded as promptly as possible, without giving any opportunity to improve upon and subtract from what he had seen---
Delayed recording of the statement of the witness would be fatal and sounded death knell for the prosecution case.*

2018 MLD 226


(a) Penal Code (XLV of 1860)---

----Ss. 302, 324, 440, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, mischief committed after preparation made for causing death or hurt, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Ocular account did not support the medical evidence---Accused party allegedly assaulted on complainant party, made firing upon them with their weapons as a result whereof, one person died while three persons received injuries---Ocular account was furnished by the prosecution witnesses including complainant and injured persons---Said witnesses claimed to be the eye-witnesses of the incident---Incident allegedly had taken place at 3.00 p.m.---Place of occurrence was situated at a distance of four miles from the police station---Complainant had alleged that police got recorded his statement after reaching at the spot and thereafter injured were shifted to Rural Health Center for medical treatment and from where injured were shifted to District Headquarter Hospital---Statement of Investigating Officer was in line with the version of complainant---Medical Officer, who conducted medical examination of the injured persons deposed that all the three injured were produced before him by the police at 3.30 p.m.---Facts remained that injured prosecution witnesses were medically examined by Medical Officer between 3.35 p.m. to 4.00 p.m.---Medico Legal Certificates of the injured showed that injured were not fit for statement---Fard Bayyan indicated that Investigating Officer after police karwai written the time as 4.00 p.m. at the bottom of the verbal statement of the complainant---Said circumstances transpired that neither the complainant along with other injured witnesses were present at the place of occurrence at 4.00 p.m. nor they were referred by the Investigating Officer for medical treatment as well as injury statements were prepared at the time of recording Fard Bayyan---Testimony of Medical Officer suggested that complainant not in a position to make statement due to his deteriorating condition---Complainant specifically stated that deceased lost his life immediately on the spot---Time of receiving information of death of deceased was mentioned as 3.00 p.m. in the inquest report---Postmortem report of the deceased showed that duration between injury and death was two hours whereas complainant had alleged that police reached at the place of occurrence at 3.30 p.m.---Inquest report, however showed that death of victim took place at 3.00 p.m. and all the prosecution witnesses deposed in the similar line that occurrence took place at 3.00 p.m. and deceased lost his life immediately---Circumstances established that ocular account was not in line with the medical evidence, which created doubt about the prosecution case, benefit of which would resolve in favour of accused-appellants---Accused-appellants were acquitted by setting aside conviction and sentence recorded by the Trial Court.

(b) Penal Code (XLV of 1860)---

----Ss. 302, 324, 440, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, mischief committed after preparation made for causing death or hurt, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Unnatural conduct of witnesses---Interested and related witnesses---Effect---Record showed that prosecution witnesses did not make any effort in shifting injured to the hospital for medical treatment or in trying to go to the police station for reporting the case---Such conduct of prosecution witnesses was not natural---No evidence was available as to why the said witnesses had not called police for reporting the incident or ambulance for shifting the injured to the hospital for medical treatment---Said witnesses admitted that all the private witnesses were relatives inter-se---Said witnesses being relatives of deceased and injured could have taken the injured to hospital for medical treatment soon after the incident and the life of the deceased could have been saved, that was not done---Conduct of said witnesses was unnatural and no reliance could be placed upon the evidence of said witnesses---Accused-appellants were acquitted by setting aside conviction and sentences recorded by the Trial Court.

(c) Penal Code (XLV of 1860)---

----Ss. 302, 324, 440, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, mischief committed after preparation made for causing death or hurt, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Material contradictions and discrepancies existed in the testimony of witnesses---Effect---Record showed that there were material contradictions and discrepancies in the testimony of witnesses regarding inflicting injuries on the person of injured witnesses---By giving collective role of discriminating firing to the accused persons towards injured witnesses and the deceased, created doubt about the truthfulness of the prosecution witnesses---Accused-appellants, in circumstances, deserved benefit of doubt---Accused-appellants were acquitted by setting aside conviction and sentence recorded by the Trial Court.

(d) Criminal Procedure Code (V of 1898)---

----S. 161---Statement of witnesses before police---Delay---Effect---Statement of prosecution witnesses to be recorded as promptly as possible, without giving any opportunity to improve upon and subtract from what he had seen---Delayed recording of the statement of the witness would be fatal and sounded death knell for the prosecution case.

(e) Criminal trial---

----Medical evidence---Scope---Medical evidence could only indicate that the deceased had lost his life due to certain injuries but it did not lead to the culprit.

??????????? Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 rel.

(f) Penal Code (XLV of 1860)---

----Ss. 302, 324, 440, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, mischief committed after preparation made for causing death or hurt, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Crime weapon---Report of Forensic Science Laboratory---Scope---Report of Forensic Science Laboratory was only to the effect that the weapon allegedly recovered from the accused was in working condition---Recovery of the weapon from the accused was of no consequence in circumstances.

(g) Criminal trial---

----Enmity---Scope---Enmity was a double edged weapon, which would cut both ways; on the one hand, it provided a motive for the accused to commit the occurrence and on the other it equally provide opportunity to the first informant to implicate his enemy.

(h) Penal Code (XLV of 1860)---

----Ss. 302, 324, 440, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, mischief committed after preparation made for causing death or hurt, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Testimony of closely related witness---Reliance---Scope---Prosecution witnesses were not only inimical towards accused persons but were also closely related to the deceased---Circumstances suggested that complainant had reasons to falsely implicate the accused-appellants in the case; in such state of affairs, corroboration from independent source was required which was not forthcoming from any independent source---In the present case, occurrence took place on a thoroughfare and no one from the locality had joined the investigation---Circumstances established that prosecution had not been able to prove its case against the accused persons beyond any shadow of doubt as there were many dents in the prosecution case---Accused-appellant were acquitted by setting aside conviction and sentence recorded by the Trial Court.

(i) Criminal trial---

----Benefit of doubt---Scope---Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused, would entitle the accused to its benefit, not as a matter of grace or concession but as a matter of right.

??????????? Muhammad Akram v. The State 2009 SCMR 230 rel.

Bashir Ahmad Rai and Saleem Akram Chaudhary for Appellants with Appellant No.3 in person.

??????????? Muhammad Akhlaq, Deputy Prosecutor General for the State.

Salman Sadiq for the Complainant (in Criminal Appeal No.1405 of 2012) and for the Petitioner (in Crl. Revision No.1038 of 2012).

??????????? Date of hearing: 24th February, 2017.

Post a Comment

0 Comments

close