Fateh Sher vs The State
This criminal petition for leave to appeal arises from a judgment of the High Court whereby the petitioner's death sentence under section 302(b) of the Pakistan Penal Code, 1860, for a homicide case tried through a private complaint, was altered to imprisonment for life. The core legal question involves the sustainability of the conviction given the wholesale failure of the prosecution case against the co-accused who were assigned identical roles, doubts regarding the identity of assailants during a night-time occurrence, an unanticipated encounter, and an inconsequential forensic report. The Supreme Court granted leave to examine these contentions, holding that the circumstances warrant a thorough reappraisal of the evidence to ensure the safe administration of criminal justice. The key principle laid down is that where the prosecution case fails against the majority of co-accused assigned identical roles and identification in a night-time occurrence is doubtful, the evidence requires reappraisal.
- Does a conviction for homicide sustain when the prosecution case fails against the majority of co-accused assigned identical roles?
- Is a reappraisal of evidence warranted in a night-time occurrence involving an unanticipated encounter and doubtful identity of assailants?
- Whether inconsistencies between the crime report and a supplementary statement affect the reliability of eyewitness testimony?
- Section 302(b), Pakistan Penal Code 1860
ORDER
1. QAZI MUHAMMAD AMIN AHMED, J.---From amongst a large array of accused, prosecuted through a private complaint after complainant's dissatisfaction with the investigative process, Fateh Sher, petitioner, alone was returned a guilty verdict in a case of homicide by a learned Additional Sessions Judge at Pindi Bhatian; convicted under clause (b) of section 302 of the Pakistan Penal Code, 1860 vide judgment dated 01.8.2013, he was sentenced to death, altered into imprisonment for life by the learned High Court vide impugned judgment dated 12.3.2018, vires whereof are being assailed on a variety of grounds, wholesale failure of prosecution case being most prominent.
2. The incident is a night affair on fringe of the village Abadi when according to the complainant he accompanied the deceased and the injured at 10:45 p.m., without any apparent purpose. Besides the petitioner, his brothers Ikram Ullah and Ihsan Ullah, each lethally armed, alongside three unknown, confronted them with fire shots.
3. Abid Hussain and Asghar Ali PWs were statedly attracted to the scene at that unearthly hour of the night to witness the occurrence, instigated by Javed co-accused. Through a supplementary statement purportedly recorded on 24.5.2010, unknown assailants were introduced by their names with specific roles. The co-accused were exonerated by the Investigating Officer and the complainant having found 'investigative conclusions inconsistent with the case set up in the crime report, preferred a private complaint which again resulted into failure barring the petitioner. Prosecution's failure qua majority of the accused, one of whom is indivisibly assigned identical role, question of identity of the assailants in a moonlit night as mentioned in the crime report, an unanticipated encounter between the deceased and the injured with the assailants and inconsequential forensic report, makes out a case for reappraisal of evidence to ensure safe administration of criminal justice.
4. Leave granted.