Find a Lawyer

YASIR ALI versus THE STATE

ections Section 30 302 - i at Qatil Um, Joint Intentation evidence Testimonies of Evidence The story of the prosecution's extraordinary and unreasonable delay in reporting the case to the police for filing an FIR FIR regarding the disappearance of the victim. Cast doubt on the truth of

PLD 2017 Lahore 737

Before Abdul Sami Khan and Aalia Neelum, JJ

YASIR ALI and others—Appellants

versus

THE STATE and another—Respondents

Criminal Appeals Nos. 311, 412 and Murder Reference No. 117 of 2012, heard on 8th June, 2016.

(a) Penal Code (XLV of I860)—

—Ss. 302 & 34—Qatl-i-amd, common intention—Appreciation of evidence—Delay about ten days in lodging FIR—Complainant had not advanced any plausible justification as to why he kept mum for such a considerable span of time and did not infÓrm; the police about missing of deceased—Inordinate and unexplained delay in reporting the matter to police for lodging FIR cast serious doubt about the veracity of prosecution story— Conviction and sentence recorded against accused was set aside. [p. 742] A

(b) Penal Code (XLV of I860)—

-—Ss. 302 & 34—Criminal Procedure Code (V of 1898), S.161—Qatl-i-amd, common intention—Appreciation of evidence—Supplementary statement—Scope—Supplementary statement got recorded by the complainant immediately after registration of FIR, which was lodged with the delay of ten days—No reason had been explained for not straightway nominating the accused in the FIR—Ante-dated supplementary statement recorded at belated stage had no legal value— Conviction and sentence recorded against accused was set aside accordingly, [p. 742] B

(c) Penal Code (XLV of I860)—

—Ss. 302 & 34—Qatl-i-amd, common intention—Appreciation of evidence—Last seen evidence—Scope—Prosecution witnesses stated that deceased was seen in the company of accused on the day of occurrence at evening time—According to the story of FIR, deceased was seen sitting at a tube well along with accused and deceased went towards place ”M" after receipt of a mobile call—Departure of deceased in the company of accused did not qualify proximity of time and space so as to be treated as last seen evidence—Such fact was alone sufficient to demolish the evidence of last seen—Prosecution witnesses never tried to inquire from the accused about the missing of deceased—Prosecution witnesses did not get recorded their statements under S.161 Cr.P.C, before the investigating officer immediately after registration of FIR about such fact—Evidence of prosecution witnesses was not worthy of reliance—Conviction and sentence recorded against accused was set aside [p. 742] C

(d) Penal Code (XLV of I860)—

—Ss. 302 & 34—Qatl-i-amd, common intention—Appreciation of evidence—Benefit of doubt—Extra-judicial confession—Scope—Story as narrated by the prosecution witnesses was that accused had made extra-judicial confession before them but the said witness neither approached the complainant nor the investigating officer to infÓrm; them about alleged extra-judicial confession—-Story introduced by prosecution witnesses about extra-judicial confession of the accused seemed to be improbable—Even otherwise, extra-judicial confession was of weak type of evidence and the same needed impartial/strong corroboration from other independent sources, which was missing in the case—Conviction and sentence recorded against accused was set aside accordingly, [p. 743] D

Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231 and Tahir Javed v. The State 2009 SCMR 166 rel.

(e) Penal Code (XLV of I860)—

—Ss. 302 & 34—Qatle-i-amd, common intention—Appreciation of evidence—Medical evidence—Scope—Supporting evidence—Medical evidence was only a supporting piece of evidence because it might confirm the ocular evidence with regard to the receipt of injury, its locale, kind of weapon used for causing the injury, duration between the injury and the death, but it did not connect the accused with the commission of offence, [p. 746] E

.Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53; Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 and Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 rel.

(f) Penal Code (XLV of I860)—

—Ss. 302 & 34—Qatl-i-amd, common intention—Appreciation of evidence—Recovery evidence—Scope—Weapon, recovery of—Weapon of offence pistol .30 bore was recovered from the accused—Positive report of the forensic science laboratory showed that pistol .30 bore matched with the empty recovered by the investigating officer from the place of occurrence, but not even a single firearm injury was found on the body of deceased rather deceased was done to death with the help of blunt and sharp edge weapons—Such recovery of weapon of offence

did not render any help to the case of prosecution—Conviction and sentence recorded against accused was set aside accordingly. fr. Z46] F

(g) Penal Code (XLV of I860)—

—Ss. 302 & 34—Qatl-i-amd, common intention—Appreciation of evidence—Circumstantial evidence—Scope—Case of prosecution was based on circumstantial evidence—Chain of circumstances should be so strong and solid that one circumstance should start right from the toe of the deceased and the same should be encircled around neck of the accused—Single break in the chain of circumstances would definitely make the grip of chain loose and also break the geometrical progression of the chain—Case of the prosecution was a Mind murder—No direct evidence was available to prove the ocular account—Delay of 10 days in lodging FIR had not been explained— Medical evidence did not corroborate the ocular account of the complainant—Deceased died due to the injuries of blunt and sharp edged weapon but weapon of offence, pistol .30 bore was recovered from the accused—No reliance could be placed on the evidence of prosecution witnesses in respect of extra-judicial confection—Last seen evidence furnished by prosecution evidence was not worthy of reliance—Prosecution had failed to prove its case against accused beyond any reasonable doubt through circumstantial evidence— Conviction and sentence recorded against accused was set aside. [pp. 742, 743, 746, 747] A, C, D, E, F & G

Asadullah and another v. State and another 1999 SCMR 1034; Ch. Barkat Ali v. Major Karam Elahi Zia and antoher 1992 SCMR 1047; Sarfraz Khan v. The State and 2 others 1996 SCMR 188 and Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 rel.

(h) Penal Code (XLV of 1860)—

—Ss. 302 & 34—Qatl-i-amd, common intention—Appreciation of evidence—Benefit of doubt—Scope—Many circumstances were not required for creating doubt in the story of prosecution, one circumstance creating doubt was enough to acquit the accused— Number of circumstances, had created serious doubt about guilt of the accused—Accused, in circumstances, would be entitled to such benefit, not as a matter of grace or concession but as of right—Conviction and sentence recorded against accused was set aside, [p. 748] H

Tariq Pervz v. The State 1995 SCMR 1345; Ayub Masih v. The State PLD 2002 SC 1048 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Muhammad Arshad Bhatti for Appellants.

Muhammad Ikhlaq Deputy Prosecutor General for the State.

Date of hearing: 8th June, 2016.

immigration advocates phone number from Turbat lawyer