Summary: Background: This case arises from an appeal against the judgment dated 18.10.2018 by the IV-Additional Sessions Judge, Karachi East, in Sessions Case No. 610 of 2013. The case involved the appellant, who was convicted of murder under Section 302(b) of the Pakistan Penal Code (PPC) and sentenced to life imprisonment with a fine of Rs. 50,000. The incident occurred on 05.09.2012, when the accused allegedly assaulted and later fatally shot the victim over a personal dispute. The appellant was arrested after a year of evading the law and pleaded not guilty to the charges. ----Issues: 1- Was the appellant guilty of committing murder under Section 302(b) PPC? 2- Could the contradictions in the evidence, specifically between medical reports and eyewitness testimony, affect the credibility of the prosecution’s case? 3- Should the absence of the recovery of the weapon or other investigation flaws lead to an acquittal? ----Holding/Reasoning/Outcome: The court upheld the conviction of the appellant, ruling that the prosecution had proven its case beyond reasonable doubt. Despite certain minor contradictions and flaws in the investigation, the evidence provided by the prosecution's witnesses was deemed reliable. The major contradiction between medical evidence (which indicated an injury to the right eye) and eyewitness testimony (which mentioned the left eye) was noted but considered insufficient to discredit the consistent and credible accounts of multiple witnesses. The court held that in cases where there is a discrepancy between medical and ocular evidence, ocular testimony generally takes precedence if it is otherwise reliable. The court dismissed the argument that the absence of the weapon should lead to an acquittal, given that the appellant had sufficient time to destroy the weapon after absconding for nearly a year. The appeal was dismissed, and the conviction and sentence were maintained, with the benefit of Section 382-B Cr.P.C. extended to the appellant. -----Citations/Precedents: Allah Ditta vs. The State and another (2019 P. Cr. L.J. 172) Mohammad Mansha vs. The State (2018 SCMR 772) Tanveer alias Chand vs. The State (2018 YLR 2264) Ashfaque Ali vs. The State (2018 YLR Note 246) Mohammad Imran vs. The State (2018 YLR 2394) Sikandar alias Sani vs. The State (2018 MLD 1220) Mohammad Islam vs. The State (SBLR 2018 Sindh 1580) Allah Ditta vs. The State (PLJ 2018 Cr.C. 843) Mohammad Nadeem alias Deemi vs. The State (2011 SCMR 872) NAWAB ALI vs. The State (2014 P. Cr. L.J. 885) MOHAMMAD ARSHAD vs. The State (2020 SCMR 2025) Mohammad Ilyas vs. The State (2011 SCMR 460) Mohammad Javed and Others vs. Zameer Haider and two others (2018 YLR 1021) Muhammad Aslam and others vs. The State and others (2005 P.Cr.L.J. 1352) The State/ANF vs. Muhammad Arshad (2017 SCMR 283) Arif vs. The State (PLD 2006 Peshawar 5) Riaz Masih alias Bhola vs. The State (2001 YLR 279) Muhammad Safdar through Attorney vs. The State (2016 MLD 1325) Zakir Khan vs. The State (1995 SCMR 1793) ASHFAQ AHMED vs. THE STATE (2007 SCMR 641)

Summary: Appeal against conviction.(1) As the complainant and others constantly used to visit the police station, where the accused were confined, so the possibility cannot be excluded of their having been seen by the witnesses prior to the identification parade. In such a situation, the identification parade so conducted has no evidentiary value, that too, through an interested witness.(ii) The Investigation Officer though collected evidence in respect of the Qingqi Rickshaw allegedly snatched by the accused/ appellant, but he failed to collect its registration book and even he could not collect any independent witness to confirm its ownership. Neither father of the deceased nor any other person produced the relevant documents before the Investigating Officer.(iii) Last seen evidence is merely a circumstantial evidence, and that too a weal type of evidence, which alone cannot sustain the weight of a capital punishment, and would require other independent corroborative evidence to effect conviction.

Summary: Appeal against conviction. (i) Eyewitness could not succeed in establishing the purpose of his presence at the time and at the place of incident.(ii) The medical evidence was in conflict with the ocular account.(iii) When an accused takes the plea of right of self-defence then in that situation the accused is under the obligation to prove the same failing which the Court, dealing with the matter, can take it into consideration against the accused charged, but in the instant case the situation is otherwise as it is the prosecution to establish its case through cogent, convincing & trustworthy witnesses & the burden never shifts to the accused/appellant.(Appeal was allowed, conviction & sentence was set aside in the circumstances)

Summary: Criminal Appeal against Conviction.Held: (i). it is pertinent to mention that the deceased was the youngest, whereas the complainant was the eldest, and that it was the complainant, who was charged for the murder of the brother of absconding co-accused Zahid. The complainant is to tell that when it was broad day light and that when he was chasing the deceased with a distance of few yards , then why the accused did not kill the complainant and that why the deceased fell a prey. The complainant being the real enemy would have been the prime target, but lack of interest in killing the complainant indicates his absence from the spot at the time of incident.(ii). The presence of complainant, is further doubted from the fact that the report was made at 17:00 hours, in the same hospital where postmortem was conducted, but the dead-body was examined at 6:30 p.m, surprisingly, when report had already been made and the injury sheet along with inquest report were prepared, then why the postmortem examination was postponed till 06:30 p.m. The delay caused in examining the dead-body when read in juxtaposition with non-mentioning of time of arrival and examination of dead -body in the postmortem report belies the stance of the complainant.(iii). True, that the medical evidence is confirmatory in nature and equally true that in presence of the direct eye-witness account, it has a little significance but, here it speaks to contrary. In the present case, as the witness failed to prove their presence on the spot and their statements were not trustworthy being chance witnesses, so it is the medical evidence that steers the wheel, and the conflict between the two has spoiled the prosecution case to a greater extent.(Criminal Appeal Allowed).

Summary: Held: (i) The matter was reported with a delay of almost one hour & forty five minutes & till reporting the matter no effect was made to shift the deed body to the hospital or to police station, when casts serious doubt with regards to presence of eyewitnesses on the spot.(ii) Presence of complainant on the spot is belied by the site plan.(iii) Confessional statement of one accused was recorded in the presence of other accused, which could not be relied upon for safe dispensation of justice.(iv) Empties recovered from the spot were not earlier sent to the FSL which were subsequently sent to the FSL when the alleged weapon of offence was recovered, which smack of foul play on the part of investigating Officer.Appeal was allowed & Conviction/sentence of the appellant was set aside in the circumstances.

Summary: Criminal appeal against Conviction. Held: (I). The dead-body was shifted to the local police station, where the matter was reported by the complainant and verified by the eye-wttnesses. The Injury sheet and the inquest report was prepared after registration of the case, but surprisingly, the inquest report does notbear FIR Number and section of law. it invites our attention that when report was made at the police station in the shape of first information report, then why inquest report is lacking FIR number and the relevant section of law, it cannot be interpreted in any other way, but that the matter was not reported in the mood and manner.(II). The presence of eye wittnesses is further doubted from the fact that instead of absence at the time of postmortem examination, the docotor mentioned his name in the column of identification, this aspect of the case leads this court nowhere but that the prosecution examination was conducted earlier to the report made; and so the inquest report was prepared and, we cannot refrain ourselves from holding taht preliminary investigation was made in the case.(iii). One of the wittness categorically stated that the distance between the police station and the hospital is about 10/11 kilometer, if so, then it is for prosecution to explain that when the matter was already reported at 12:30 p.m., then why the dead body was produced to the doctor at 2:37 p.m., after a considerable delay of two hours, but prosecution could not explain the same. The belated examination of the dead-body strengthens our belief regardin the absence of wittness, and their conduct.(iv). it spells out from the record that both i.e. the complainant and the eye-wittness were working in the brick kiln of one Karim Khan and a particular question was asked in this respect, to which the wittnesses confirmed. The record is silent and even the statements of wittnesses to give an otherwise explanation regarding their presence at home on the day and at the time of incident , in such eventuality, we lurk no doubt in mind that the wittness were present in the brick kiln in connection of their routine work.(Criminal Appeal Allowed)

Summary: Held: (i) We are surprised if the doctor examined the lady at 8:00 a.m. the time when the report was not yet made then how he endorsed the injury sheet which was prepared at 08:20 a.m. and the report was made at 08:10 a.m. Again it is astonishing that the doctor did not mention as to whether the complainant was fully conscious, capable to talk and oriented in time and space, so much so, her blood pressure and pulse rate was not recorded.(ii) We cannot ignore this aspect of the case, that when the report was made in the hospital and the doctor was available what prevented PW-13 to request the doctor for a certificate to ascertain as to whether the injured was capable to talk or not. PW-13 did not take the pains to call for the doctor so that the report of the complainant could be taken in his presence and even after the report was made no endorsement of the doctor was requested on the murasila.(iii) The cumulative effect of what is stated above, leads us nowhere but to hold that the injured was brought to the hospital by the co-villagers and the initial investigation was conducted prior to the report and it was on arrival of some interested person that the matter was shown reported by the complainant and the appellant was charged.(iv) The Investigating Officer was examined on this particular aspect of the case, but he could not explain that why the empties were received much later than the garments and even he could not explain that where these empties were lying.

Summary: Held: (i) It is for the complainant to establish his presence on the spot and to tell that why the dead body was not taken either to the hospital or to the local police station to register the case and that why they kept on waiting till arrival of the local police to the spot, despite presence of the complainant and eye-witness at the time of incident no efforts were made to approach the local Police Station to register the case, rather the complainant kept on waiting on the spot till the police arrived.(ii) The appellant right from beginning attempted hot to bring on record his plea to which we cannot close our eyes, it beings with an application submitted to the Deputy Inspector General of Police for fair investigation in the matter where he took the plea of his innocence.(iii) could it be taken into consideration to benefit the accused/ appellant, we do not find ourselves in agreement with the learned counsel, as this Court is yet to see as to which of the theories is more probable, we cannot deny the efforts of the appellant to bring on record his plea and even he ran the risk to be examined under section 340(2) Cr.P.C and to produce defence witnesses, knowing the fact that he and his witnesses were to stand the test of cross-examination.(iv) We have before us the legality of the awarded sentence and we are to thrash it out as to whether the sentence awarded will meet the ends of justice. The overall impact of what has been stated above leads us nowhere but to hold that the occurrence was the result of free fight and that both the sides twisted the facts to their favour, hence, in such eventuality the quantum of sentence calls for interference, resultantly, we partially allow this appeal by altering the conviction awarded to the appellant under Section 302(b) P.P.C to one under Section 302(c) P.P.C.

Summary: (a) An accused convicted on the basis of plead guilty cannot appeal against his conviction and his appeal can only be considered to the extent of legality and magnitude of the resultant sentence, but the High Court, while dealing with such an appeal, may also look into legality of the conviction under the powers vested in it by section 439 Cr.P.C.

Summary: Held: (i) The complainant being the prime target and visible to the assailants, was spared despite blood-feud enmity between the parties.(ii) Why the people dancing in circle intervening between the parties did not receive firearm injuries despite firing by four persons with sophisticated weapons. (iii) The scribe did not ask for verification of the report from the injured and did not include section 324 PPC to the report rather section 302/34 PPC was mentioned. (iv) The injured Rehmatullah was abandoned being won over and in this way the prosecution withheld the best available evidence, therefore, an adverse inference under Article 129(g) of Qanun-e-Shahadat Order, 1984, could be drawn therefrom.(v) The empties recovered from the spot were received in the FSL after delay of 20 days and the prosecution could not explain that where the empties were lying till its dispatch and receipt to the office of chemical examiner.(Appeal was allowed in the circumstances)