Disclosure leading to recovery of crime weapon.
In order to bring the case within the ambit of Article 40 of the Qanun-e-Shahadat Order, 1984, the prosecution must prove that a person accused of any offence, in custody of police officer, has conveyed an information or made a statement to the police, leading to discover of new fact concerning the offence, which is not in the prior knowledge of the police. Such information or statement should be in writing and in presence of witnesses. In absence of information or statement from a person, accused of an offence in custody of police officer, discovery of fact alone, would not bring the case of the prosecution under the said Article. According to the prosecution, a dagger used in the commission of the offence was recovered on the disclosure and pointation of the appellant. Surprisingly, the IO did not record the information received from the appellant in -writing, in presence of a witness, while he was in police(Naeem) custody. The prosecution has failed to establish any disclosure from the appellant, therefore, recovery of the dagger, in the circumstances was immaterial.
PWs were about 20 paces away from the deceased and the appellant, when they saw both of them were altercating. In reply to a question, the complainant stated that after 10 seconds, the appellant inflicted first blow upon the deceased. Admittedly, the appellant was alone, whereas, the complainant, PW and the deceased were three in numbers. Taking the words (Naeem)of the complainant that he and the eyewitness were 20 paces away from the appellant, they could have easily reached the appellant and overpowered him within few seconds, but no attempt was made by them to avert the attack. It is hard to believe that life of the brother and uncle of PWs respectively, was in danger, why they did not react immediately? Had the complainant and his nephew been present at the time and place of the occurrence, the appellant could have been apprehended before causing any injury to the deceased. Despite the fact that the complainant and his companion were 20 paces away from the appellant, they did not make any attempt to catch hold of him, even after causing injuries to the deceased.
It is a settled principle of law that a documentary evidence carries with it a presumption of truth, therefore, there is no reason to disbelieve the postmortem report and the statement of the doctor, which proves the fact that the injured remained at the place of the occurrence for a considerable long period of time. Had the complainant and PW been present at the place and time of the occurrence, the injured could have been taken to the hospital, without loss of time and thereby, rigor mortis could not have been developed. It is also worth noting that in his cross examination, the doctor explained that the injuries were lunar shaped, which means that probably, the injuries was caused through lunar shaped weapon. On the contrary, the complainant and the eye-witnesses alleged that the appellant inflicted dagger blows on the deceased. Their statements regarding nature of the injures sustained by the deceased and the weapon used contradict the postmortem report and the statement of the doctor. We are conscious of the fact that just because the witnesses are related to the deceased, their testimonies cannot be disregarded, however, it is also important that testimonies of such witnesses have to be scrutinized with greater care and circumspection. The facts discussed herein makes it clear that the conduct of the witnesses was unnatural. It leads us to a conclusion that presence of the witnesses at the time of the crime was doubtful, as such the occurrence seems to be unseen.
Criminal Appeal No. 577/2019 & Crl. P. 596/2016
0 Comments