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ASAD KHAN versus THE STATE

ection Section 302 (b) at Qatal-e-Am - evidence Taking advantage of evidence doubt Doubt benefit of doubt ??? Testimony based on testimony of isolation and opportunity - No evidence of motivation ved Post mortem inspection delay - Defendant his wife and The juvenile accused of killing minors inside his home was sentenced to death by the rial trial court under section 230b (b), PPC, and sentenced to death, which the High Court upheld. Justification - According to the prosecution, the matter was dealt with by the complainant and two other witnesses during the trial, it was stated that the prosecution had won two witnesses, Because they refused to support the prosecution's case against the accused. Only the accused's wife was the father but he also confessed to the witness who had come to the district more than 200 miles away from the crime to bring the case to the complainant on the spot before any trial by independent evidence. Was never proved or established T evidence from the trial court's evidence shows that the complainant was at his place of work in another city on the day of the incident. The FIR filed by the complainant also shows that he has admitted to working as a regular employee in another city and never claimed that he was employed on the day of the incident. Was on leave from ???? The purpose established by the prosecution was never established by any independent evidence. - The accusation of hatchet retrieval from the suspect's possession during the investigation was unreliable because the said hatchet was recovered from someone else's open field, and the investigating officer made it known to the trial court.

PLD 2017 Supreme Court 681

Present: Asif Saeed Khan Khosa,

Dost Muhammad Khan and Qazi Faei Isa, JJ

ASAD KHAN—Appellant

versus

The STATE—Respondent

Criminal Appeal No. 326 of 2013, decided on 24th May, 2017,

(Against the judgment dated 03.06.2013 passed by the Lahore High Court, Lahore in Criminal Appeal No.76-J of 2009 and Murder Reference No. 41 of 2009)

(a) Penal Code (XLV of I860)—

—S. 302(b)—Qatl-i-amd—Reappraisal of evidence—Benefit of doubt—Case based on testimony of solitary and chance witness— Motive unproved—Delay in conducting post-mortem examination— Accused was alleged to have murdered his wife and minor children inside his house—Trial Court convicted the accused under S.302(b), P.P.C and sentenced him to death, which sentence was upheld by the High Court—Validity—According to the prosecution the incident in issue had been witnessed by the complainant and two other witnesses— During trial said two witnesses had been given up by the prosecution as having been won over as they had refused to support the prosecution's case against the accused—Solitary eye-witness deposing before the Trial Court was the complainant who was not only the father of accusedys wife but was also admittedly a chance witness who had come to the place of occurrence from a district situated more than 200 miles away from the scene of the crime—Stated reason for visit of the complainant to the spot had never been substantiated or established before the Trial Court through any independent evidence—Evidence produced before Trial Court showed that on the day of occurrence complainant was at his place of work in another city—Contents of the FIR lodged by the complainant also showed that he admitted working as a regular employee in another city and he had never claimed that on the day of occurrence he was on leave from work—Motive set up by the prosecution was never established through any independent evidence— Alleged recovery of a hatchet from the possession of accused during the investigation was unbelievable as the said hatchet had statedly been recovered from an open field belonging to somebody else and the investigating officer had conceded before the Trial Court that at the time of its recovery the hatchet was not stained with blood—Medical evidence did not support the case of the prosecution for the simple reason that post-mortem examination of the deadbodies had been conducted after more than 17 hours of the alleged occurrence—Delay in conducting post-mortem examination of the deadbodies indicated that time had been consumed by the complainant party and the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution—Prosecution had not been able to prove its case against the accused beyond reasonable doubt—Accused was acquitted of the charge of murder by extending the benefit of doubt to him— Appeal was allowed accordingly. [pp. 683, 684] A & C

(b) Penal Code (XLV of I860)—

—S. 302(b)—Qatl-i-arnd—Wife/vulnerbale dependent of accused dying within the confines of his house—Burden of proof—Scope—Where a wife or vulnerable dependent of a person died an unnatural death in the house of such person then some part of the onus/obligation laid on him to establish the circumstances in which such unnatural death had occurred—Where, however, the entire case of the prosecution stood demolished or was found to be utterly unbelievable then an accused person could not be convicted merely because he did not explain the circumstances in which his wife or some vulnerable dependent had lost his life—Entire burden of proof could not be shifted to the accused in that regard, if the case of the prosecution itself collapsed, [p. 684] B

Arshad Mehmood v. The State 2005 SCMR 1524; Saeed Ahmed v. The State 2015 SCMR 710 and Abdul Majeed v. The State 2011 SCMR 941 ref,

Syeda B.H. Shah, Advocate Supreme Court for Appellant.

Muhammad Jaffar, Deputy Prosecutor-General, Punjab for the

State.

Date of hearing: 24th May, 2017.

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