Deficient evidence

2016 PCrLJ 207 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 376Criminal Procedure Code (V of 1898), Ss. 173 & 561-ARapeDeficient evidenceReport of Investigating Officer

Magistrate directed Investigating Officer to submit final report under S. 173, Cr.P.C. and declined the report under 'C' class filed by Investigating Officer

Validity

No witness of incident was available to corroborate allegations levelled by victim

Even after regaining her senses, victim neither resisted accused nor raised any hue and cry to attract family members or neighbours for her help

Victim also did not raise any protest before her mother-in-law or father-in-law but silently left her house and reached at the house of her father i.e. complainant

In entire scenario, husband of victim remained absent and there was no mention about his presence during the night of alleged incident and even in subsequent events which also formed adverse inference

In statement recorded under S. 164, Cr.P.C. victim did not mention date of offence and chemical examiner report and final medical report did not support allegations of Zina levelled by victim lady

Neither swabs taken were found to be stained with semen nor victim was recently sexually assaulted and even there were no marks of violence on her body

Commission of Zina upon victim could not be proved against accused

Magistrate was not bound to agree with report submitted by Investigating Officer under S. 173, Cr.P.C. and was empowered to disagree or discard the report submitted by Investigating Officer, however, it was incumbent upon Magistrate to examine all material facts, circumstances and documents placed by Investigating Officer along with report judiciously and there should be sufficient reasons to decline such report

Order passed by Magistrate was based on non-appreciation of relevant material which was against the spirit of settled law

High Court set aside the order passed by Magistrate having no legal substance

Report submitted by Investigating Officer under class 'C' was approved by High Court

Application was allowed in circumstances.

2015 YLR 2196 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss.169 & 561-ADischarge of accusedDeficient evidenceMagistrate, on recommendations of investigating officer cancelled the case registered against respondentsValidityDispute over property persisted between parties and litigation between them was pending decisionAccording to investigation and record no incident as reported in FIR had occurredAlleged incident of kicks and fist blows caused to complainant was not supported by medical certificate

Complainant was advocate who did not give much importance to appear before medical officer for verification and also failed to lodge FIR regarding alleged incident promptly and wasted 16 to 17 hours in simply informing about the incident to one of his relative at another city through telephone

Criminal Court had taken such lapse seriously, when such delay in lodging FIR was not properly explained

Order passed by Magistrate was proper and did not suffer from any legal infirmity and the same was maintained

Application was dismissed in circumstances.

2015 PCrLJ 78 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 169Deficient evidenceRelease of accused

Magistrate was not bound by the police report submitted under S. 169, Cr.P.C., however, he was supposed to give full application of mind and he had to act fairly, justly and judiciously and was to furnish reasonable grounds for 'agreeing' or 'disagreeing' with the Investigation Officer.