Ocular account was not corroborated by medical evidence | Acquitted

2018 Y L R 216
Before Muhammad Iqbal Kalhoro, J
LAL DINO alias LALOO—Appellant
The STATE—Respondent

 (a) Penal Code (XLV of 1860)—
—-Ss. 302, 324, 148 & 149—Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly
weapon, unlawful assembly—Appreciation of evidence—Ocular account was not corroborated by
medical evidence—Prosecution case was that accused duly armed with a gun along with ten other coaccused
armed with different weapons including rifles, hatchets etc. assaulted on complainant party,
made firing, as a result of which, son of complainant was hit by the fire of accused and died—Motive
behind the occurrence was enmity of the parties over a plot—First Information Report stated that
accused was armed with a gun, two co-accused were armed with rifles, whereas the remaining coaccused
persons were armed with lathis and hatchets—Statement that co-accused armed with firearms
fired at the complainant party did not appear to be supported by any evidence—Memo of place of
incident indicated that only one crime empty was recovered from there, which suggested that only one
fire was shot—Witness, real brother of the deceased, had not supported the factum of firing upon them
by the accused persons having fire arms—Said witness deposed that the accused caused fire arm injury
to the deceased, whereas the remaining co-accused persons fired in the air—Said assertion of witness
that co-accused persons made firing in the air contradicted the FIR and was not corroborated by any
other evidence—Witness/real brother of the deceased in his cross-examination had disclosed that he did
not receive any injury in the incident because he saved himself by running from there—Other witness
stated that he and the brother of deceased had not run—Such discrepancies suggested that two witnesses
were not present at the spot at the time of incident—Tapedar, who prepared the sketch of place of
incident to show exact location of the accused, the witnesses and the deceased, was given up by the
prosecution, which showed that he did not support the case in the manner as presented by the
prosecution in the trial—Location of the incident and positions of the accused, eye-witnesses and the
deceased at the time of incident had remained shrouded in mystery due to absence of sketch and
evidence of the Tapedar—Injured witness was a natural witness to support the prosecution case in the
manner as described in the FIR but his evidence was withheld—Postmortem of the deceased showed
that besides a firearm injury, he sustained three incised wounds caused by sharp edged weapon—
Witnesses who claimed to have seen the incident had not attributed specifically those wounds to any of
the accused in their deposition, which further strengthened the impression that they were not present at
the time of incident—Co-accused persons on the basis of same set of evidence had been acquitted by the
Trial Court—Acquittal of co-accused persons had not been challenged by the complainant party,
although prosecution case was that all the accused persons with their common object committed murder
of the deceased—Such situation indicated that the Trial Court was not sure about worthiness of evidence
of the witnesses in respect of them—Circumstances established that prosecution had not been able to
prove the case against the accused beyond a reasonable doubt—Accused was acquitted in circumstances
by setting aside the convictions and sentences recorded by the Trial Court.
1999 SCMR 697; 2010 SCMR 1009; 2004 PCr.LJ 42; 2001 SCMR 56 and PLD 1978 SC 1 ref.
(b) Penal Code (XLV of 1860)—
—-Ss. 302, 324, 148 & 149—Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly
weapons, unlawful assembly—Motive not proved—Effect—Motive behind the incident stated to be
enmity on a plot of land had not travelled beyond a bald statement and no proof thereof had been
brought on record—Circumstances established that prosecution failed to prove the alleged motive.
(c) Criminal Procedure Code (V of 1898)—
—-S. 161—Statement of witness before police— Delay— Effect— Delay in recording the statement of
the witnesses who were either family members or close relatives of the deceased would be inexplicable.
(d) Penal Code (XLV of 1860)—
—-Ss. 302, 324, 148 & 149—Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly
weapons, unlawful assembly—Recovery of weapon of offence from accused—Reliance—Scope—Gun
used in the offence was recovered from the accused at the time of his arrest—Alleged recovered gun
was never sent for examination along with the crime empty to Forensic Science Laboratory to find out
as to whether the empty was fired from the same gun or not—Gun allegedly recovered from the accused
in absence of Forensic Report in that regard could not be opined to be the crime weapon and thus could
not be considered as supporting evidence against accused.
(e) Criminal Procedure Code (V of 1898)—
—-S. 342—Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149—Statement of accused was recorded
under S. 342 Cr.P.C. in the stereotype manner and all the incriminating pieces of evidence were not put
to the accused—Effect—Record showed that neither the medical evidence, nor the recovery of crime
empty from the incident or confession of accused or even the motive part of the case had been put to
accused while recording his statement under S. 342, Cr.P.C.—If any piece of evidence, relied upon by
the prosecution, was not put to accused in his statement recorded under S.342, Cr.P.C., such statement
could not be considered for the purpose of conviction

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