JUDGMENT SHEET IN THE PESHAWAR HIGH COURT,“Deceased Zafar Ali Shah was my brother and PW Akhtar...

*M.Siraj Afridi P.S. D

1

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Cr.A.No.114-P/2014

Date of hearing: 09.09.2014

Appellant (s) : Siraj by Mr. Hussain Ali, Advocate.

Respondent(s) : State by Mian Arshad Jan AAG and

complainant by Syed Mushtaq Ali Shah,

Advocate.

JUDGMENT

ASSADULLAH KHAN CHAMMKANI, J.- This criminal

appeal is directed against the judgment dated

26.02.2014, rendered by learned Additional Sessions

Judge-VI, Peshawar, whereby appellant Siraj has

been convicted under section 302 (b) PPC for

committing murder of deceased Zafar Ali Shah, and

sentenced to undergo life imprisonment and to pay

Rs.1,00,000/- to LRs of deceased, as compensation

in terms of section 544-A Cr.P.C. in case FIR No.137

dated 05.03.2008, registered under sections 302/34


2

PPC, at Police Station Shah Qabool, District

Peshawar.

2. On 05.03.2008 at 2035 hours, Zafar Ali

Shah reported to Muhammad Gul Khan SI (PW.11),

in injured condition in LRH Peshawar, that on the

fateful day, on receipt of mobile call of Siraj

(appellant-convict herein) to see him in Manda Beri

in connection with some urgent piece of work, he

closed his shop situated in Mohallah Jhangi and

proceeded there, where he found Siraj alongwith

co-accused Sajjad standing there, with whom the

complainant conversated, but accused Siraj told him

to go now as they would have chat tomorrow. At

1945 hour, when complainant reached Manda Beri

road, both the accused named above opened fire at

him with intention to do him away, resultantly, he

was hit on front of his abdomen, buttock and thigh.


3

The occurrence is stated to have witnessed by

people present there. Motive behind the occurrence

is stated to be an altercation inter-se the accused

and complainant some two months prior to the

incident. The injured complainant was shifted to

hospital by Suleman (abandoned PW) where his

report was reduced into writing in shape of murasila

Exh.PA/1 on the basis of which FIR Exh.PA was

registered. Later on, complainant-injured Zafar Ali

Shah succumbed to injuries in the hospital and

section 302 PPC was inserted in the FIR.

3. Initially, after completion of investigation,

complete challan under section 512 Cr.P.C. was

submitted against both the accused. Accused Sajjad

was arrested and tried by the learned Additional

Sessions Judge-IX, Peshawar and on conclusion of

trial vide judgment dated 11.05.2010, convicted and


4

sentenced him under section 302 (b) PPC, against

which convict Sajjad filed Cr.A. No.440-P/2010,

which is also fixed today along with the instant

criminal appeal.

4. Later on, accused/appellant Siraj was

arrested. Supplementary challan was submitted

against him before the learned Trial Court, where he

was charge sheeted, to which he pleaded not guilty

and claimed trial. To prove his guilt, prosecution

examined eleven witnesses. After closure of the

prosecution evidence, statement of

accused/appellant was recorded under section 342

Cr.P.C. wherein he denied the prosecution

allegations and professed his innocence. He,

however, neither wished to be examined on oath

under section 340 (2) Cr.P.C. nor opted to produce

evidence in defence. On conclusion of trial, the


5

learned Trial Court, after hearing both the sides,

convicted and sentenced the appellant, as

mentioned above. Hence, this appeal.

5. Learned counsel for the appellant argued

that impugned judgment of the learned Trial Court is

perverse and against the principles of appreciation

of evidence; that the occurrence is nocturnal and

the deceased then injured has not disclosed about

any source of light in his report, nor any source of

light has been shown in the site plan or recovered

therefrom by the I.O. during spot inspection, so

identification of the assailant/assailants from back,

that too at night time, is highly improbable; that the

learned Trial court has wrongly considered the

report of deceased then injured as a dying

declaration because the same neither bear any

endorsement of the medical Officer nor any


6

certificate to the effect that the deceased then

injured was able to talk; that there is no ocular

account of the incident while PW Haider Ali, brother

of the deceased then injured has totally shattered

the prosecution case; that accused has neither

confessed his guilt before the competent court of

law nor weapon of offence has been recovered from

his possession or pointation; that three empties

recovered from the spot neither commensurate

with the number of injuries on the person of the

deceased nor the same has been sent to the FSL so

as to determine the occurrence to be the job of one

or more than one person. He went on to say that

keeping in view the dimension of injuries on the

person of the deceased the charge has been

exaggerated. He added that prosecution has

miserably failed to prove the occurrence through


7

cogent and concrete evidence in the mode and

manner as alleged by the deceased then injured,

thus, by extending benefit of doubt to the accused,

he be acquitted of the charge.

6. Conversely, learned counsel for the

complainant argued that accused/appellant

alongwith his co-accused has been directly charged

by the deceased then injured in his dying

declaration; that the place of occurrence is Bazaar

where street lights are always available hence

question of mistaken identity does not arise; that

medical evidence fully proves consciousness and

orientation of the deceased then injured at the time

of report; that recovery of 3 crime empties of 30

bore pistol and blood from the spot coupled with

unexplained noticeable abscondence of the

appellant, corroborate the prosecution case. He


8

while supporting the impugned judgment sought

dismissal of the appeal.

7. Learned A.A.G. adopted the arguments of

learned counsel for the complainant and supported

the impugned judgment.

8. We have considered the respective

submissions of learned counsel for the parties and

perused the record with their valuable assistance.

9. The learned Trial Court while considering

the report of the deceased then injured Zafar Ali

Shah Exh.PA/1 as a dying declaration and relying on

the same recorded conviction of the appellant. In

addition to above, learned trial court has also taken

into consideration medical evidence and recoveries

from the spot in support of the dying declaration.

10. Incident of the instant case is nocturnal,

taken took place in the month of March, at 07.45


9

p.m. Neither the deceased then injured has uttered

a single word about any source of light in his report

nor the I.O. has recovered any electric bulb during

spot inspection nor shown in the site plan. As per

version of deceased then injured he was fired at

from his back, so identification of the accused in a

dark night, that too, from the back, would create a

doubt about identification of the assailant by the

deceased then injured, benefit of which would

definitely goes in favour of the accused. Moreover,

Haider Ali, brother of the deceased, who appeared

as (PW.8), has totally contradicted the story of the

deceased then injured. According to deceased then

injured, on the fateful night he was present in his

shop when he was called on mobile phone by

accused Siraj to visit him, and on his visit, he found

accused Siraj with co-accused Sajjad, who


10

conversated with them, and when left them and

reached the place of occurrence, both the accused

fired at him from his back, but Haider Ali (PW.8)

deposes something else in these words “Stated that

on the day of occurrence I was present in my home

along with my brother Zafar Ali Shah deceased.

Zafar Ali Shah deceased received a phone call, on

my inquiry my deceased brother disclosed me that

he is going to met Sajjad. Thereafter hue and cry

started in the Illaqa that my brother was hit. On

this information I rushed to the hospital where my

brother was lying in injured condition. I enquired

from my brother who informed me that he was

shot dead by Siraj and thereafter his treatment was

started”. So we are confronted with two versions,

one that of the deceased then injured, who has not

stated about his presence in home with


11

his brother PW Haider Ali and has charged both the

accused for the occurrence, while the other

furnished by PW Haider Ali, where he has shown

deceased with him in home at the time of phone call

of the accused and has exonerated co-accused

Sajjad from the occurrence, as according to him he

was told by the deceased then injured only about

Siraj. At this juncture we would like to refer also to

the statement of PW Haider Ali recorded as PW.3 in

earlier trial of co-accused Sajjad which read as

“Deceased Zafar Ali Shah was my brother and PW

Akhtar Ali is also my brother. Accused Sajjad has

called my brother Zafar Ali Shah through telephonic

message to his baithak and accused Siraj Khan fired

at my brother. I charge the accused for the murder

of my brother”. These contradictory versions create

serious doubts in the prosecution case.


12

11. Despite that, if we considered the version

of the deceased then injured to be correct, the moot

question before us would be as to whether report of

the deceased then injured can be termed as a dying

declaration in terms of Article 46 of the Qanun-e-

Shahadat Order, 1984, which postulates a particular

mechanism for recording dying declaration. To find

out truth or falsity of a dying declaration, a case is

generally considered in all its physical environments

and circumstances. It is necessary to find out how far

the evidence or its different parts fit in with the

circumstances and possibility that can safely be

deducted in a particular case. Therefore, in order to

pass the test of reliability, a dying declaration has to

be subjected to a very close scrutiny, keeping in view

the fact that such statements are made in the

absence of an accused who has no opportunity of


13

testing the veracity of the statement by cross-

examination. In examining the intrinsic worth of

dying declaration the inherent consistency,

genuineness and truth of the statement in the

context of surrounding circumstances, the fact that

the deceased was not tortured or motivated by hate

or other mercenary motives to give an untrue

account or substitute or falsely implicate persons in

the crime, its credibility according to normal human

standards and the absence of any inherent infirmity

or weakness therein, all have to be apprised.

Similarly, in examining its extrinsic value, an

appraisal of surrounding circumstances i.e. that the

deceased was in a fit condition to make the

statement would also have to be carefully examined.

12. Article 46 of the Qanun-e-Shahadat

Order, 1984, postulates a mechanism for recording


14

the dying declaration, according to which, dying

declaration, whenever possible, preferably be

recorded by a Magistrate, and if Magistrate is not

available or if there is no time to call the Magistrate

due to deteriorating condition of the victim, it can be

any body e.g. public servant like a Medical Officer or

any other person. Likewise, in case of absence of the

Magistrate and the Police Officer, such statement

should be recorded in presence of two or more

reliable disinterested witnesses to the case. If

availability of two independent witnesses is not

possible then it should be recorded in presence of

two or more police officials. No doubt, conviction

can be based on dying declaration alone, provided it

is true and free from prompting from outside. To

accept such statement, without considering the

surrounding circumstances of the case, would not be


15

safe administration of justice to convict accused

merely on the basis of so called dying declaration.

13. Taking the report/statement of the

deceased then injured Zafar Ali Shah on the touch

stone of the principles referred to above, it appears

from the record that his report was recorded by

Muhammad Gul Khan SI (PW.11) in LRH Peshawar in

the shape of murasila Exh.PA/1. Dr. Javed Hussain

Khattak SMO who examined the deceased then

injured vide MLC Exh.PW.12/1, has only mentioned

that “the patient was conscious”. In cross-

examination he admitted that statement of the

injured was not recorded by the police in his

presence. He further admitted that report was not

made in his presence. Statement/murasila Exh.PA./1

of deceased then injured does not bear the

endorsement of the medical officer. The medical


16

officer has not issued any separate certificate qua

condition of the deceased then injured that he was

well oriented in time and space and capable to make

statement. Mere mentioning of word “conscious”

would not be sufficient to prove that the injured was

able to talk. Consciousness is something else which

does not mean able to talk. Despite availability of

the doctor the report of the deceased has not been

endorsed from him by the author of murasila. In

cross-examination PW.11 Muhammad Gul Khan

admitted that murasila was not endorsed by the

doctor and that the other medico legal staff also did

not endorse the same. Suleman who shifted the

deceased then injured from the spot to the hospital,

has been abandoned in this trial, however, he was

examined as PW.5 in earlier trial of accused Sajjad,

wherein he deposed that deceased then injured was


17

lying on the spot in injured condition and he along

with one Arshad shifted him to LRH, Peshawar

wherein he lodged the report and thereafter he was

admitted in the hospital, meaning thereby the PWs

Salman and Arshad were also present at the time of

report, but none of them has endorsed or signed the

report/statement of deceased then injured nor the

author of murasila did bother to sign the report from

these PWs. In the circumstances, it can be safely

concluded that the report of the deceased then

injured cannot be termed as a dying declaration

because neither the same has been recorded by a

Magistrate nor by the Medical Officer nor in

presence of two or more reliable and independent

witnesses nor the medical officer has furnished any

certificate regarding capability of the deceased to

give statement. In the circumstances, the status of


18

statement of the deceased then injured would not

be more than a statement under section 161 Cr.P.C.

and not a dying declaration. Admittedly, dying

declaration or a statement of a person without the

test of cross-examination is a weak kind of evidence

and its credibility depended upon the authenticity of

the record and the circumstances under which it is

recorded. Dying declaration like the statement of an

interested witness requires close scrutiny and is not

to be believed merely for the reason that dying

person is not expected to tell a lie. In this respect

reliance can be placed on case titled, Mst. Zahida

Bibi Vs The State” (PLD 2006 Supreme Court 255).

14. The report of the deceased then injured

does not find support and corroboration from

medical evidence, where dimensions of the entrance

wounds are same while the deceased has charged


19

two persons for firing. The recovered empties of 30

bore pistil has not been sent to the FSL for analysis,

so as to determine the occurrence to be the doing of

one or more than one man. The deceased then

injured has not stated about description of the

weapon of offence in his report. If he was also to

identify the accused, he ought to have also

mentioned the kind of weapon. The appellant has

not confessed his guilt before competent court of

law nor weapon of offence has been recovered from

his direct or indirect possession. Mere recovery of

the empties in absence of direct and substantive

evidence, would not be sufficient to prove the guilt

of the appellant. Similarly, bloodstained earth from

the place of deceased, his bloodstained garments

and positive FSL report, could only advance the

prosecution’s case to the extent that deceased was


20

done to death on that particular place/spot, but

would not be sufficient to prove that the murder has

been committed by the appellant. These being

corroborative pieces of evidence, by itself would not

be sufficient for conviction of accused in absence of

substantive evidence. Guidance may be derived

from Riaz Ahmed’s case (2010 SCMR 846). As per

the dictum of the apex Court, corroborative

evidence is meant to test the veracity of ocular

evidence. Both corroborative and ocular testimony

is to be read together and not in isolation. Wisdom

in this regard may be derived from Ijaz Ahmed’s

case (1997 SCMR 1279 and Asadullah’s case (PLD

1971 SC 541). It has been held by the apex Court in

case titled, “Saifullah Vs the State” (1985 SCMR

410), that when there is no eyewitness to be relied

upon, then there is nothing, which can be


21

corroborated by the recovery. Similarly, in case

titled, “Riaz Masih Vs the State” 1995 SCMR 1730,

the honourable apex Court held that recovery of

crime weapon by itself is not sufficient for conviction

on murder charge. Same view has been expressed

by the apex Court in Saifullah’s case (1985 SCMR

410).

15. Motive alleged also remained unproved.

Rather, keeping in juxtaposition the story of

prosecution with motive, it disturbs a prudent mind

that if there was an altercation between the

deceased and accused some two months prior to

the incident, then why the deceased then injured at

the spur of moment on one call of the accused

followed the instruction of the accused. Prosecution

though is not called upon to establish motive in

every case, yet once it has set up a motive and failed


22

to establish, it would be the prosecution to suffer

the consequence and not defence. In this regard

reference may be made to case titled, “Hakim Ali

and 4 others Vs the State and another” (1971 SCMR

432).

16. So far as abscondence of the appellant is

concerned. No doubt, proceedings under section

512 Cr.P.C. were initiated and completed against

him, however, the appellant has denied

abscondence in his statement under section 342

Cr.P.C. It is settled law that abscondence alone,

cannot be a substitute of real evidence. It has been

observed by the apex Court in Farman Ali and

others’ case (PLD 1980 SC 201) that abscondence by

itself would be of no avail to prosecution in absence

of any other evidence against the absconding

accused. Mere abscondence of accused would not


23

be enough to sustain his conviction. Reliance place

on case titled, “Muhammad Vs Pesham Khan (1986

SCMR 823).

17. The crux of the above discussion is that

prosecution has miserably failed to bring home the

guilt of appellant through cogent and confidence

inspiring evidence beyond shadow of doubt. The

prosecution evidence is pregnant of doubts and

according to golden principle of benefit of doubt,

one substantial doubt is enough for acquittal of the

accused. Basically, it is the principle enshrined in

Islamic jurisprudence, fourteen hundred years ago

that “it would be better to acquit hundred culprits

than convicting one innocent soul.” Which has now

been transformed into the form of the principle

that, “acquitting by error would be better than

convicting by error”. The said commandment has


24

evolved into the theory of benefit of doubt, which,

invariably, is extended to the accused for safe

administration of criminal justice. In the instant

case, the prosecution evidence is highly discrepant,

full of infirmities and doubts. The learned trial Court

has not evaluated the evidence in its true

perspective thus reached to an erroneous

conclusion by holding the appellant guilty of the

offence. Resultantly, this appeal is allowed.

Convection and sentence of the appellant recorded

by the learned trial court vide impugned judgment

are set aside and he was acquitted of the charge.

18. These are reasons of our short order of

even date, which is reproduced below:-

“For reasons to be recorded later on, this

appeal is allowed. The conviction and

sentences of the appellant namely, Siraj,

awarded to him in case FIR No.137 dated


25

05.03.2008 under sections 302/34 PPC

Police Station Shah Qabool by learned

Additional Sessions Judge, Peshawar vide

impugned judgment dated 26.02.2014 are

set aside and he is acquitted of the charges

leveled against him. He be released from

jail forthwith, if not required in any other

case”.

Announced.

09.09.2014

J U D G E

J U D G E


26

JUDGMENT SHEET IN THE PESHAWAR HIGH COURT,“Deceased Zafar Ali Shah was my brother and PW Akhtar...

Documents

Transcript of JUDGMENT SHEET IN THE PESHAWAR HIGH COURT,“Deceased Zafar Ali Shah was my brother and PW Akhtar...