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ZISHAN versus THE STAT

ections Sections 2 302 and - 34 at Qatim Um, Joint Intention evidence Testimonies of evidence ?? The accused filed a criminal case of rape against the victim, which was dismissed by the police as a false case - the complainant alleged In such a backdrop, the victim and the accused were warmly debated. What aspect of the prosecution case was not trustworthy - the circumstances said that the prosecutor failed to prove the motive - the trial court sentenced the convict and the defendant was acquitted [page 735] A

PLD 2017 Lahore 731

Before Qazi Muhammad Amin Ahmed and Ch. Mushtaq Ahmad, JJ

ZISHAN and others—Appellants

versus

THE STATE and others—Respondents

Criminal Appeals Nos. 879-J of 2011, 771, 741 and Murder Reference No.34 of 2010, heard on 1st November, 2016.

(a) Penal Code (XLV of I860)—

—Ss. 302 & 34—Qatl-i-amd, common intention—Appreciation of evidence—Motive not proved—Effect—Motive for the crime was indirectly referred as the prosecution was reluctant on salient details thereof—Complainant furnished detail of motive and stated that mother of accused had got registered a criminal case of zina-bil-jabr against the deceased, which was cancelled by the police as a false case— Complainant had alleged that in such backdrop, deceased and accused had exchanged hot words; which aspect of prosecution case was not confidence inspiring—Circumstances suggested that prosecution had failed to prove the motive—Accused were acquitted by setting aside conviction and sentence recorded by Trial Court. [p. 735] A

(b) Penal Code (XLV of I860)—

—-Ss. 302 & 34—Qatl-i-amd, common intention—Appreciation of evidence—Benefit of doubt—Ocular account—Prosecution case was that accused had asked the deceased to accompany him, with the promise that he would facilitate compromise with co-accused— Deceased accompanied him and thereafter co-accused persons armed with daggers gave multiple blows on the abdomen of deceased and slit the throat of the deceased with dagger—Ocular account was furnished by witnesses including the complainant—Apparently there was no reason for the deceased to oblige accused in a chilled winter night to accompany him to visit his opponent pitted against him in a dispute involving family honor—Deceased could have safely deferred the proposal to some other convenient time and at a safe venue—Record showed that complainant was present when deceased left with accused for the settlement of serious dispute—Arrival of witness an odd hour of night to join the complainant, in the absence of any specific reason was mind boggling—Record showed that a good number of FIRs had been registered against the deceased from time to time involving cases of murderous assaults, lurking house trespass, abduction, rape, illicit arms, etc—Said criminal past of deceased showed improbability of prosecution case—Reaching of witnesses at the venue exactly at a point when the deceased came under assault did not fit in comfortably within the ambit of probability—Inference would be that occurrence did not take place in the manner as alleged in the crime report—Circumstances created suspicion in the case, benefit of which would resolve in favour of accused persons—Accused persons were acquitted by setting aside conviction and sentence recorded by Trial Court.[pp. 735,736] B, D & E

(c) Penal Code (XLV of I860)—

evidence—Delay in lodging FIR—Effect—Occurrence had taken place at 10.00 p.m. at a place situated at a distance of one kilometer from the police station—Incident was reported at 12.30 a.m.—Autopsy was conducted at 11.45 a.m. on the following day—Delay in autopsy admitted a real possibility that complaint was not prepared at a point of time mentioned therein—Circumstances created doubt in the prosecution case that matter was not reported to the police with promptitude—Accused persons, in circumstances were acquitted by setting aside the conviction and sentence recorded by Trial Court. [p. 736] C

Khawaja Qaisar Butt and Shahnawaz Khokhar for Appellants.

Ch. Faqir Muhammad for the Complainant.

Malik Riaz Ahmad Saghla, Deputy Prosecutor-Gneral, Punjab for the State.

Date of hearing: 1st November, 2016.

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