2022 Y L R 424
(a) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of seven hours in lodging FIR---Scope---Accused was charged for committing murder of seven years old daughter of her brother/complainant by inflicting iron pipe blow---Record showed that the occurrence took place at 7:30 am but the matter was reported to the police with a delay of seven hours and that too on the arrival of police at their own---Such delay had not been explained---Had the witnesses been present, they must have reported the matter to police, particularly when injured died after 2/3 hours---Said delay on the part of prosecution was fatal, which suggested concoction and deliberation and also raised question about the presence of witnesses at the time of occurrence---Circumstances established that the prosecution had failed to bring home guilt of the accused to the hilt---Appeal against conviction was allowed, in circumstances.
(b) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Non-recovery of incriminating material---Scope---Accused was charged for committing murder of seven years old daughter of her brother/complainant by inflicting iron pipe blow---Record showed that spot recovery was missing in the case---Cot upon which allegedly the deceased was sitting was not taken into possession nor availability of blood at the crime scene or recovery of blood-stained earth therefrom was shown effected---Investigating Officer had not been produced by the prosecution in support of facts emanating from the registration of FIR routing through post mortem examination till finalization of investigation which was a major lacuna in the case that created gap in complete chain of events--- Circumstances established that the prosecution had failed to bring home guilt of the accused to the hilt---Appeal against conviction was allowed, in circumstances.
(c) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of nine hours in conducting post-mortem---Scope---Accused was charged for committing murder of seven years old daughter of her brother/complainant by inflicting iron pipe blow---Record showed that the time of death was 09:40 am but post-mortem was conducted after about 09-hours and there was no plausible explanation of such delay---Circumstances established that the prosecution had failed to bring home guilt of the accused to the hilt---Appeal against conviction was allowed, in circumstances.
(d) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Medical evidence and ocular account---Contradictions---Accused was charged for committing murder of seven years old daughter of her brother/complainant by inflicting iron pipe blow---Medical Officer during examination of the dead body found only one injury i.e., an abrasion 1.5 cm x 0.5 cm---As per prosecution case, the injury was caused with iron blow pipe but the Medical Officer in her cross-examination deposed that possibility of receiving the injury by fall could not be ruled out---Pattern of injury in the case was swelling on the right side of head with clinical fracture of right temporal, frontal and occipital bones about 2 cm from the right ear pinnae, which showed that right, front and back side of skull was involved in the injury which obviously could not be caused with an iron blow pipe used domestically to flame the fire---Such type of injury was regarded as coup or counter coup injury---Injury observed by the Medical Officer during post-mortem was subjacent to the area of impact and not perfectly opposite to it, thus, it could be regarded as coup injury and not a counter coup, but confusion persisted that an injury with iron blow pipe could cause a simultaneous fracture of temporal, frontal and occipital bones, obviously not---If injury was caused by fall then there must be a counter coup injury which was missing in the case---However, it was probably due to the reason that bones of child of that age were soft and elastical and injuries usually caused greenstick fractures, thus, there must be depressed fracture in the case but Medical Officer observed otherwise---Injury probably was sustained when head struck against a hard surface, i.e., by fall, yet from a considerable height--- Investigating Officer didn't appear as witness to prove that there was hard surface at the place of occurrence---Hitting of blow pipe with force could not cause 1.5 cm x 0.5 cm injury, therefore, medical evidence contradicted the ocular which made the story of prosecution doubtful---Circumstances established that the prosecution had failed to bring home guilt of the accused to the hilt---Appeal against conviction was allowed, in circumstances.
(e) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence--- Reliance---Scope---Accused was charged for committing murder of seven years old daughter of her brother/complainant by inflicting iron pipe blow---Record showed that the accused was arrested on the next day of occurrence---Iron blow pipe recovered at the instance of the accused was not blood stained, thus, there was no report of the Chemical Examiner---Recovery was inconsequential rather adverse to the prosecution---Circumstances established that the prosecution had failed to bring home guilt of the accused to the hilt---Appeal against conviction was allowed, in circumstances.
(f) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Accused was charged for committing murder of seven years old daughter of her brother/complainant by inflicting iron pipe blow---Medical Officer had observed that the scalp was injured and hematoma was present but no blood spots were found on any article or place at the crime scene---Even no bandage was shown applied on the wound of the deceased---Nothing was available to prove the place of occurrence in the case---Police Constable who escorted the dead body had only joined the complainant party in the hospital, therefore, link of dispatching the injured from the crime scene to hospital was also missing which was fatal for prosecution, particularly when injured remained alive for 2 to 3 hours---Circumstances established that the prosecution had failed to bring home guilt of the accused to the hilt---Appeal against conviction was allowed, in circumstances.
(g) Penal Code (XLV of 1860)---
----S. 302(b)---Qanun-e Shahadat (10 of 1984), Art. 129(g)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Withholding material witness---Effect---Accused was charged for committing murder of seven years old daughter of her brother/complainant by inflicting iron pipe blow---Mother of the deceased being natural witness was not produced before the trial court though was present when the occurrence took place---Presence of mother of deceased in the hospital with dead body was also not denied by the prosecution witnesses, it seemed that the prosecution had withheld the natural witness, therefore, an adverse inference could be drawn in the circumstances--- Circumstances established that the prosecution had failed to bring home guilt of the accused to the hilt---Appeal against conviction was allowed, in circumstances.
(h) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Motive was not proved---Scope---Accused was charged for committing murder of seven years old daughter of her brother/complainant by inflicting iron pipe blow---Motive behind the incident was stated to be the dispute over turn of water---Motive alleged by the complainant/prosecution had not been proved---Admittedly, turn of water was joint between the parties---No witness was produced to prove the early morning altercation which took place prior to the occurrence over turn of water---Prosecution case lacked information of the circumstance which was immediate or remote cause of occurrence---Circumstances established that the prosecution had failed to bring home guilt of the accused to the hilt---Appeal against conviction was allowed, in circumstances.
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