Haya Malik Law association and Co.

22/11/2024

27/08/2024

Chance witnesses---Presence of eye-witnesses at the time and place of occurrence not proved---Accused was charged for committing the murder of his wife/daughter of complainant by cutting her throat---Record showed that one of the eye-witnesses and a complainant were not residents of the place, where the occurrence took place---Place of occurrence in the case was 'MM' whereas both the said witnesses were residents of 'HK' located in another District---Eye-witness stated before the trial Court that on the day of occurrence he was asked by his father-in-law, complainant and other in-laws that there was a quarrel between deceased and her husband whereupon he accompanied the complainant to 'MM' and witnessed the occurrence but no such story was mentioned in the F.I.R which showed that the said story was later on concocted by the prosecution to justify the presence of eye-witnesses in the village of occurrence at the relevant time---Thus, the eye-witnesses could not justify their presence at the spot at the relevant time through any valid reason, therefore, they were chance witnesses and as such their evidence was not free from doubt---Though female eye-witness was resident of the area where the occurrence took place but she recorded her statement before police for the first time on 18.02.2019 i.e., after two days of the occurrence---Said witness remained mum for two days after the occurrence and as such her evidence was also doubtful.

Imran Ali vs State
2024 YLR 1868

02/07/2024

MAGISTRATE TRIAL.

241-A:- Supply of documents on Magistrate Trial.
242:- Framing of charge.
243:- Conviction on pleading guilty.
244:- Recording of evidence in case the accused plead not guilty.
245 (1):- Acquittal of an accused after evidence.
245 (2):- Conviction of an accused after evidence.
245-A:- Previous conviction of an accused shall be added to the sentence.
246:- Omitted.
247:- Non-appearance of the complainant:- The Magistrate shall acquit the accused unless for reasons adjourning the matter.
248:- Withdrawal of complaint:- If complainant before a final order is passed in any case satisfy the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint, the Magistrate may permit him to withdraw the same and thereupon acquit the accused.
249:- Power to stop proceeding when complainant.
249-A:- Power of Magistrate to acquit accused at any stage.
250:- False, Frivolous, or vexatious accusation.
250-A:- Special summons i.e petty offence.

Note:-
1. Dismissal of an application U/s 249 is not Appealable but a criminal Revision application U/s 439-A.
2. Acquittal U/s 249-A is Appealable U/s 417 before Honourable High Court.

SESSIONS TRIAL

265-C:- Supply of statement and documents to accused.
265-D:- When a charge is to be framed.
265-E:- Plead guilty, if so, would be convicted.
265-F:- Evidence for prosecution.
265-G:- Summoning up to prosecutor and defence.
265-H:- Acquittal or conviction.
265-I:- Procedure in case of previous conviction.
265-J:- Statement U/s 164 Cr.P.C admissible.
265-K:- Power of Court to acquit accused at any stage.
265-L:- Power of Government to stay prosecution.

28/06/2024

اگر تفتیشی آفیسر ملزم کا بیان اسکے موقف کے مطابق تحریر نہ کرے تو ملزم مجسٹریٹ کے روبرو پیش ہو کر زیر دفعہ 164 ض ف اپنا بیان قلمبند کرا سکتا ہے

Section 164 of the Code of 1898 authorizes the Magistrates of the First Class and of the Second Class, who are specifically empowered by the Provincial Government, to record any statement or confession made to them during an investigation by the police or at any time afterwards but before the commencement of the inquiry or trial. The Magistrate should take down the statement in the manner prescribed by the Code of 1898 for recording evidence as, in his opinion, is most suited to the circumstances of the case. He may record it in the accused’s presence and give him an opportunity to cross-examine the maker. However, the Magistrate must record the confessions as stipulated in sections 164(3) and 364 of the Code of 1898. The Explanation states that the aforesaid Magistrates may exercise these powers even if they do not have jurisdiction in the case. The object of section 164 is to protect a person against extortion or oppression or to fix him to it when it is feared that he may resile afterwards or tamper with it.

The phrase “before the commencement of the inquiry or trial” in section 164 of the Code of 1898 is crucial. The term “inquiry” has a wide connotation. Section 4(k) states that “inquiry” encompasses any inquiry other than a trial conducted under the Code by a Magistrate or a Court. The terms “inquiry” and “investigation” must be distinguished. The former refers to proceedings before Magistrate prior to trial, while “investigation” is confined to proceedings taken by the police or by any person other than a Magistrate who is authorized in this behalf. Inquiries may be in respect of (i) offences or (ii) of matters which are not offences.

The High Court Rules and Orders distinguish explicitly between “confessions” and “statements” of accused persons. The language in Rule 1 that “Section 164 deals with the recording of

24/06/2024

سپریم کورٹ نے قرار دیا ہے کہ فوجداری مقدمات میں کسی بھی گواہ کا بیان زیر دفعہ 161ضابطہ فوجداری میں غیرمعمولی تاخیر شکوک وشبہات پیدا کرتا ہے اور ایسےبیان کی کوئی قانونی خیثت واہمیت نہیں ہے

A bare perusal of the record reflects that in the instant case the incident wherein the paternal cousin of the complainant was done to death, took place on 27.03.2016 at 6:20 p.m. However, the matter was reported to the police by the complainant on 28.03.2016 at 9:00 a.m. approximately more than fifteen hours after the incident, despite the police station being only one furlong away from the place of occurrence. In the entire evidence, the prosecution has not explained the reason for such a delay in reporting the matter to the police. Such delayed F.I.R. on the part of the complainant shows dishonesty and that it was lodged with deliberation and consultation. Reference in this regard may be made to the case reported as Amir Muhammad Khanversus The State (2023 SCMR 566) wherein a delay of only five hours and ten minutes in reporting the matter to and lodging the FIR by the police was considered indicative of dishonesty on the part of the complainant. Even otherwise, the post-mortem was conducted on 28.03.2016 at 11:00 a.m. and the time in between death and post-mortem was within eighteen hours which also cast serious doubt on the part of the prosecution. 9. Perusal of record also reveals that eye-witnesses of the occurrence namely Zahoor Ahmad (PW-2) and Cr. A. No.36 of 2023 and Cr.P. No.5-Q of 2021 - 6 -Shahenshah (PW-7) stated in their statements before the trial court that on 27.03.2016 they were present at the main bazaar near Karbala Adda Pishin. At about 06:20 PM, the accused made firing upon the deceased Nisar Ahmed with a pistol who succumbed to injuries at the spot. Both the prosecution eyewitnesses Zahoor Ahmad and Shahenshahdeposed before the trial Court that immediately after theincident they stopped a car and took the deceased/injured to the civil hospital Pishin and