2026 PLP 1345 (YLR)

Ss. 302(b), 114 & 34

Criminal Procedure Code (V of 1898), S.417(2-A)

Qatl-i-amd, abettor present when the offence was committed, common intention

Appreciation of evidence

Appeal against acquittal

Presence of the eye-witnesses at the time and place of occurrence not proved

Accused were charged for committing murder of the brother of the complainant by firing

In his cross-examination, complainant stated that eye-witnesses were his close relatives

One of the witnesses was having a business of poultry, whereas other witness was driver by profession and likewise complainant was working as teacher in Madrassa, therefore, presence of all those three witnesses at the venue of crime and that too at the same time, was not appealable to a sane mind, as otherwise, they should have been busy in their respective professions instead of enjoying a get-together on a working day in a public thoroughfare

There was also an admission on part of complainant that he was imparting religious education to children of the locality at Madrassa from 08:00 a.m. to 10:00 a.m. and on the day of occurrence he went out of the Madrassa and came to the spot of occurrence, however, in subsequent part of his cross- examination he admitted that the Madrassa and his house were poles apart from each other, therefore, complainant could not put-forward any logical and plausible explanation qua his presence on the spot at the relevant time

Likewise, the other alleged eye-witness of the occurrence deposed in his cross-examination that the accused had spotted them (complainant-party) at the time of firing, however, they had been spared and amongst the set of four accused, two of them were present on the spot for surveillance

Said witness also added that the complainant-party was not armed with firearms at the relevant time and as a whole 12 fire-shots had been made

However, such narrations of alleged eye-witness were not appealable to a prudent mind because if complainant-party was present on the spot being empty-handed, then why the accused-party spared them to depose against them in Court as witnesses, especially, when one of them was none else but real brother of deceased, therefore, the story advanced by eye-witness was illogical and unnatural

Said witness also admitted in his cross-examination that except one accused, the other three members of accused-party were his cousins and with whom they had land dispute, therefore, the alleged mala fide of said eye-witness against accused-party was not out of question

In such circumstances, Trial Court had rightly disbelieved testimonies of these alleged eye-witnesses of the occurrence being contradictory in nature

Appeal being bereft of any merits was dismissed in limine. Sarfaraz and another v. State 2023 SCMR 670 and Liaqat Ali and another v. The State and others 2021 SCMR 780 rel.

Ss. 302(b), 114 & 34

Qanun-e-Shahadat (10 of 1984), Art. 129(g)

Criminal Procedure Code (V of 1898), S.417(2-A)

Qatl-i-amd, abettor present when the offense was committed, common intention

Appreciation of evidence

Appeal against acquittal

Withholding best witness

Adverse presumption

Effect

Accused were charged for committing murder of the brother of the complainant by firing

Record showed that the most relevant and important witness of the prosecution i.e., who was cited as an eye-witness of the occurrence in the FIR was not examined in Court as witness, therefore, an adverse inference under Art.129 (g) of Qanun-e-Shahadat, 1984, could be inferred in terms that had this witness been produced in Court, he would not have supported the case of prosecution

Appeal being bereft of any merits was dismissed in limine. Muhammad Rafique and others v. The State and others 2010 SCMR 385 rel.

Ss. 302(b), 114 & 34

Qatl-i-amd, abettor present when the offense was committed, common intention

Appreciation of evidence

Ocular account contradicting the medical evidence

Accused were charged for committing murder of the brother of the complainant by firing

As per narration of FIR, two accused/respondents had been assigned a general role of firing upon deceased brother of complainant

However, Forensic Science Laboratory Report was in total conflict with ocular-account, whereby it was mentioned that all the crime empties recovered from the spot were fired from one and the same pistol

Otherwise, when substantive evidence failed to connect an accused person with commission of an offence or was disbelieved, corroborative evidence was of no help to prosecution, as corroborative evidence could not by itself prove prosecution's case

Appeal being bereft of any merits stood dismissed in limine. Muhammad Afzal alias Abdullah and others v. The State and others 2009 SCMR 639; Imran Ashraf and 7 others v. The State 2001 SCMR 424 and 2007 SCMR 1427 rel.

Benefit of doubt

Principle

Single doubt is sufficient to extend its benefit to an accused person as it is the cardinal principle of criminal administration of justice that let hundred guilty persons be acquitted but one innocent person should not be convicted. Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Double presumption of innocence

Scope

Acquittal carried with it double presumption of innocence; it could be reversed only when found blatantly perverse, resting upon fringes of impossibility and resulting into miscarriage of justice

Acquittal could not be set aside merely on the possibility of a contrary view. Muhammad Shafi alias Kudoo v. The State and others 2019 SCMR 1045 rel. Imran Khan, Asst. A.G for the State. Judgment Salah-ud-Din, J.

Appellant (State) has filed instant criminal appeal under section 417 (2-A) of Criminal Procedure Code, 1898 ("Cr.P.C"), against judgment of acquittal dated 06.9.2019, handed down by learned Additional Sessions Judge/M.C.T.C, Malakand at Batkhela, whereby he has acquitted accused/respondents Nos. 1 to 3 from the charges levelled against them, rendered in case FIR No. 103 dated 19.3.2017, registered under sections 302, 114,34 P.P.C at Levy Post Dargai, District Malakand.

3. As per prosecution story, complainant namely Farman Khan reported the matter to local police at casualty ward of Dargai hospital in terms that on the day of occurrence his deceased brother namely Kamran Khan was present on the bank of water canal/Khwar, situated adjacent to their house, whereas he (complainant), along with his cousins Maqbool Zaman and Muhammad Islam were present in the thoroughfare. In the meanwhile, accused namely Aftab, Sher Zaman, Fawad Khan and Abbas came there, duly equipped pistols and Kalashnikov. Accused namely Aftab and Sher Zaman duly armed with pistols started firing upon brother of complainant, whereas accused namely Fawad Khan and Abbas (duly equipped with Kalashnikovs) have been present at the venue of crime for the purpose of surveillance. It was also alleged by complainant that due to firing of aforesaid two accused namely Aftab and Sher Zaman, his deceased brother got hit on different parts of his body and died on the spot. In addition to complainant-party, subject occurrence might have been witnessed by anyone else. Motive qua commission of offence was disclosed to be previous between the parties over an issue of civil dispute. In view of report of complainant Murasila' (Ex. PA/1) was drafted which culminated into ibid FIR (Ex. PA) registered against present respondents and other co-accused at Levy Post concerned.

4. In nutshell, allegations against accused/respondents are that they have committed the murder of brother of complainant namely Kamran Khan, wherein the effective role of firing upon the deceased has been attributed to accused/respondents namely Aftab Khan and Sher Zaman, whereas respondent Fawad Khan has mainly been charged for his alleged role of abetting/ facilitating the main of offence murder, allegedly committed by the co-accused. "Not a single person from the inmates of the house where occurrence took place or from surrounding inhabitants appeared in support of the prosecution version and the whole prosecution case was silent about this aspect of the matter. Record clearly reflected that the prosecution witnesses were not present at the place of occurrence, rather they managed to appear as witnesses after due consultation and deliberation. Record further showed that the complainant was inimical towards the deceased. In such circumstances, it seemed impossible that deceased would have invited an inimical person for his help before his death. Prosecution had failed to prove its case beyond any reasonable shadow of doubt." "All the circumstances highlighted above lead us to a definite conclusion that presence of eye-witnesses at the place of occurrence at the relevant time is not free from doubts and the prosecution has failed to prove its case against the appellant beyond reasonable doubt." "It is well-settled that if any party withholds the best piece of evidence, then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129(g) of Qanun-e-Shahadat Order can fairly be drawn that if P.W. Amir All would have been examined, his evidence would have been unfavorable to the prosecution."

7. Ocular-account furnished in the case in hand by alleged eye-witnesses of the occurrence is not confidence inspiring qua guilt of accused/respondents. Same is the case with other circumstantial evidence produced in the case in hand. It is also part of record that as per narration of FIR, accused/ respondents namely Aftab and Sher Zaman have been assigned a general role of firing upon deceased brother of complainant, however, FSL report, Ex. PW-7/10 is in total conflict with ocular-account, whereby it was mentioned that all the crime empties recovered from the spot were fired from one and the same pistol. It is otherwise well settled that when substantive evidence fails to connect an accused person with commission of an offence or is disbelieved, corroborative evidence is of no help to prosecution, as corroborative evidence cannot by itself prove prosecution's case. Hon'ble Supreme Court of Pakistan while rendering its judgment in case titled "Muhammad Afzal alias Abdullah and others v. The State and others" reported as 2009 SCMR 639 has also expressed almost a similar view in para-12 of its judgment, which is reproduced hereunder for ready reference; "After taking out from consideration the ocular evidence, the evidence of identification and the medical evidence, we are left with the evidence of recoveries only, which being purely corroboratory in nature, in our view, alone is not capable to bring home charge against the appellant in the absence of any direct evidence because it is well-settled that unless direct or substantive evidence is available conviction cannot be recorded on the basis of any other type of evidence howsoever, convincing it may be." Hon'ble Supreme Court of Pakistan in its judgment rendered in case titled "Imran Ashraf and 7 others v. The State" reported as 2001 SCMR 424, has also observed; "Recovery of incriminating articles is used for the purpose of providing corroboration to the ocular testimony. Ocular evidence and recoveries, therefore, are to be considered simultaneously in order to reach for a just conclusion." In support of same ratio, further reliance may also be placed on the judgment reported as 2007 SCMR 1427.

8. Prosecution has not been able to discharge its initial burden in the instant case. learned trial Court has therefore rightly extended benefit of doubt to accused/ respondents through impugned judgment dated 06.9.2019, in shape of their acquittal.

9. It is also settled law that for giving benefit to an accused, it is not essential that there should be many grounds for the same, even a single doubt is sufficient to extend its benefit to an accused person as it is the cardinal principle of criminal administration of justice that let hundred guilty persons be acquitted but one innocent person should not be convicted. In the case of "Tariq Pervaiz v. The State" reported as 1995 SCMR 1345, the Hon'ble Apex Court has held in this respect as under; "The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.