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IN THE COURT OF

MUHAMMAD RAUF KHAN

SESSIONS JUDGE, PESHAWAR. Sessions Case No.163/SC of 2012. The State VERSUS Khan Hazrat son of Ghulam Hazrat,

resident of Gulab Khana, Peshawar …………….…………………(Accused)

CASE FIR NO.506 DATED 01.09.2012

U/SECTION 302 P.P.C, POLICE STATION KHAN RAZIQ SHAHEED,

PESHAWAR.

Date of Receipt … … … … (25.10.2012) Date of Decision … … … … (22.09.2016)

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Present:

Mr. Qaisar Khan, Dy.P.P for the State assisted by Sahibzada Riazat ul Haq Advocate, counsel for the complainant, Mr. Hussain Ali, Advocate/counsel for the accused.

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J U D G M E N T

Accused Khan Hazrat son of Ghulam Hazrat faced his trial in

case F.I.R # 506 dated 01.09.2012 under Section 302 P.P.C of Police

Station Khan Raziq Shaheed, Peshawar.

2. As per report Ex:PW 4/1, on 01.09.2012 at about 1630 hours,

deceased Muddasir Shah then injured was present alongwith his

brother Tariq Shah, Babar S/O Juma Khan and Maqsood S/O Ghulam

Muhammad at the place of occurrence. In the meanwhile, accused

facing trial came out from his house and told him as to why he was

standing there. On this hot words exchanged between them and as

such the accused drew out his pistol and started firing at the deceased,

due to which he was hit and sustained fire arm injuries. The occurrence

was reportedly witnessed by the above mentioned witnesses. After the

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occurrence, the deceased then injured was shifted to LRH, Peshawar

by his brother Tariq Shah where he lodged the report in injured

condition to the local police. In his report the deceased charged the

accused facing trial for the commission of the offence. The report was

also endorsed by PW Tariq Shah and he signed the same. After

recording the report, PW-4 Shah Wali ASI, LRH Casualty, prepared the

injury sheet of the injured and referred him to the Doctor for medical

treatment. Later on, injured Muddasir Shah succumbed to his injuries,

hence section of 302 PPC was added in this case.

3. After completion of investigation and arrest of the accused, the

case was challaned to the Court for trial. Accused was summoned to

the Court and copies of allegations were provided to him under Section

265-C Cr.P.C. He was formally charged under section 302 PPC, to

which he pleaded not guilty and claimed trial. Hence the prosecution

evidence was summoned.

4. In order to prove its case, the prosecution examined as many as

15 witnesses including PW-1 Akhtar Muneer HC, PW-2 Muhammad

Israr SI, PW-3 Akhtar Naveed S/O Mukhtiar Ahmad, PW-4 Shah Wali

SI, PW-5 Tariq Shah S/O Farooq Shah, PW-6 Babar Ahmad S/O Juma

Gul, PW-7 Bilal S/O Naseer Ahmad, PW-8 Daud Khan S/O Hakeem

Khan, PW-9 Sher Zaman FC, PW-10 Constable Tasbeeh Ullah, PW-11

Rehmeen Khan SI, PW-12 Dr. Obaid Ullah KMC, Peshawar, PW-13 Dr.

Shah Nawaz, PW-14 Mirza Khan SI and PW-15 Muhammad Habeeb

Assistant, Deputy Commissioner Office, Peshawar. The remaining

prosecution witnesses were abandoned by the State counsel. The

prosecution also tendered in its evidence the Fire Arm Expert Report

i.e. Ex.PZ/1 and the report of Chemical Examiner i.e. Ex.PZ, regarding

the blood stained clothes of the deceased. The brief resume of the

prosecution evidence is as under:-

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PW-1 is Akhtar Munir, HC No.1511, who is marginal

witness to the recovery memo Ex.PW1/1, vide which

Moharir Operation of police station Khan Raziq Shaheed

produced one 30 bore pistol bearing No.C-28827, “Qash

Charmi Naswari” colour and 12 live rounds of .30 bore, to

Mirza Khan SI in his presence. The said pistol was

already recovered by Rekhmeen Khan ASI from the

personal possession of the accused facing trial namely

Khan Hazrat and in this respect separate case vide FIR

No. 507 dated 01.09.2012 under section 13 A.O P.S KRS

was registered against the accused facing trial. The I.O of

the present case namely Mirza Khan took into his

possession the above mentioned pistol as a weapon of

offence, in his presence. The I.O initialed the said pistol

through sharp thing/Nokidar and sealed the said pistol into

parcel No.3 while he sealed “Qash Charmi Naswari”

colour and 12 live rounds of .30 bore in to parcel No.4 and

affixed 3/3 seals on each parcel with monogram of “MK”

and put one seal into the parcel as sample in his

presence. In this respect the I.O prepared recovery memo

in his presence and he signed the same as marginal

witness. He has seen the recovery memo which is correct

and correctly bears his signature. His statement was

recorded under section 161 Cr.PC.

PW-2 is Muhammad Israr S.I, who deposed that during

the days of occurrence he was posted in police station

KRS. On receipt of murasila, he incorporated the contents

of murasila into the FIR i.e. Ex.PA. He has seen the FIR

which is correct and correctly bears his signature.

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PW-3 is Akhtar Naveed son of Mukhtiar Ahmad, who

deposed that deceased Muddasir Shah was his close

friend. He correctly identified the dead body of the

deceased before the doctor at the time of P.M

examination in the mortuary. His statement was recorded

under section 161 Cr.PC.

PW-4 is Shah Wali ASI, deposed that on 01.09.2012 he

was present in Casualy LRH, Peshawar, when at 1700

hours, complainant Muddasir Shah was brought in injured

condition. He reported the matter to him and the same

was scribed in the shape of murasila. After admitting the

report as correct, he thumb impressed the same. The

report was duly endorsed by one Tariq Shah and he also

signed the same as a token of its correctness. The

murasila is Ex.PW4/1. He also prepared the injury sheet

Ex.PW4/2 and produced the injured to the doctor for

medical treatment. Later on the injured succumbed to the

injuries in the hospital and he also prepared his inquest

report Ex.PW4/3 and sent his dead body to the mortuary

under the escort of one Nishat FC. Similarly, he also

informed the local police regarding the death of the injured

and regarding the change of section of law in the case.

PW-5 is Tariq Shah son of Farooq Shah, who deposed

that they were standing in the front of the Baitak of one

Gul Allah when accused Khan Hazrat came out from his

Hujra and asked his brother Mudasir as to why he was

standing there. On this pretext an altercation started, and

the accused took out his pistol and started firing. His

brother sustained injuries and he took him to the hospital.

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That when they reached to the hospital, police came there

and his brother reported the matter. Thereafter he was

telephonically called form his house and he also recorded

his statement to the police. He charged the accused for

the commission of the offence.

PW-6 is Babar Ahmad son of Juma Gul, who deposed

that after his return from his shop, it was lunch time. He

along with Mudasir Shah and Tariq Shah were present

there. Accused Khan Hazrat came out and asked Mudasir

Shah as to what was he doing there. An altercation

started and accused Khan Hazrat took out his pistol and

started firing. He was then taken to the hospital by PW

Tariq Shah. Thereafter the police came and in his

presence 12 empties were recovered and were put in an

envelope. Thereafter the same were stamped by the IO

and his signature was also obtained on the paper.

Thereafter he left the spot.

PW-7 is Bilal Khan son of Naseer Ahmad, who deposed

that deceased Mudasar was his relative and he correctly

identified his dead body before the police and doctor in

the mortuary.

PW-8 is Daud Khan son of Hakim Khan, who deposed

that he is marginal witness to the recovery memo

EXPW8/1 vide which the I.O took into possession the

blood stained garments of the decd; consisting of one

shirt,EXP-1 one shalwar EXP-2 kakhi colour and one

banayan EXP-3 white colour belonging to the decd; in the

LRH, Peshawar and sealed the same into parcel. In this

respect the I.O prepared the recovery memo and he

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thumb impressed the same. His statement u/s 161 Cr.PC

was recorded by the I.O.

PW-9 is Sher Zada FC No. 2119, who deposed that he

is marginal witness to the pointation memo Ex.PW9/1 vide

which the accused facing trial namely Khan Hazrat while

in the police custody, when reached near his Hujra, he

made pointation of the place of occurrence. He also

pointed out to the I.O all the places where he was

standing and place of the deceased at the time of firing

through his pistol. He also pointed out other places of the

occurrence to the I.O. In this respect the I.O prepared the

pointation memo on the spot and he signed it as a

marginal witness. He has seen the pointation memo

which is correct and correctly bears his signature. His

statement was recorded under section 161 Cr.PC. (STO

by defence counsel that the memo Ex.PW9/1 is of no help

to the prosecution because neither any thing was

recovered nor discovered during the said pointation).

PW-10 is Tasbeeh Ullah Constable-3035, who deposed

that during the days of occurrence he was posted as

constable in P.S KRS, Peshawar. He is marginal witness

to the recovery memo Ex:PW-10/1, vide which in his

presence the I.O namely Mirza Khan took into possession

12 empty shells of .30 bore produced by Rehmeen Khan

ASI, which were already recovered by Rehmeen Khan

from the place of occurrence. The I.O sealed the same

into parcel No.1 i.e. Ex: P.4 and affixed 3 seals with

monogram of MK and put one seal into parcel as sample

in his presence. In this respect the I.O prepared recovery

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memo on the spot and he signed the same as marginal

PW. He is also marginal witness to the pointation memo

already exhibited as PW-9/1. He has seen all the above

mentioned exhibits which are correct and correctly bear

his signatures. His statement was recorded under section

161 Cr.P.C. (STO by defence counsel that the memo Ex:

PW-9/1 is inadmissible in evidence because neither any

empty was recovered nor discovered during the said

pointation).

PW-11 is Rehmeen Khan S.I, who deposed that on

1.9.2012 he arrested the accused facing trial namely

Khan Hazrat in case FIR No. 506 dated 1.9.2012, under

section 324 PPC of police Station KRS, Peshawar along

with a 30 bore pistol # C 28827, “Qash Charmi” and 12

live rounds of .30 bore. In this respect he issued his card

of arrest i.e. Ex:PW-11/1. He also recovered 12 empty

shell of .30 bore from the place of occurrence in the

presence of PWs and he handed over the same to the I.O

namely Mirza Khan in the presence of marginal PWs.

PW-12 is Dr. Obaid Ullah KMC, Peshawar, who on

02.09.2012, at 8: 20 A.M conducted P.M examination of

the dead body of the deceased namely Mudasir Shah son

of Haji Farooq Shah resident of Gulab Khana Peshawar,

aged about 20/22 years brought by constable Nishat,

identified by Akhtar Naveed son of Mukhtiar Ahmad and

Bilal son of Naseer Ahmad, both residents of Gulab

Khana, Peshawar and found the following;

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General condition:

A young man of aged 20/22 years, well built, clothes changed, R.M and

P.M lividity were developed.

Injuries:

1. Dressed and stitched wounds having 11 stitches on front of

abdomen at interior mid line, starts 4 cm below , xyphisterni up to

pubic bone having length of 22 cm.

2. Right hand was also dressed from 6 cm above wrist joint up to

tip of fingers, on examination fire arm entry wound on mid of

dorstal aspect of right hand , 2 cm below writs joint and 9 cm

above base of first phalanx of middle finger .5x.5 cm in size

3. Fire arm exit wound on interior aspect of right hand 1x1 cm in

size , 3 cm below to writs joint and 8 cm above of first phalanx of

middle finger

4. Surgical wound on right side of abdomen 3x4 cm in size, 5 cm

from mid line and 2 cm below costal margin.

5. Fire arm wound on left inguinal area 3x4 cm in size, 16 cm from

mid and 6 cm below iliac crest.

6. Fire arm wound on right buttock 1x1 cm in size, 7 cm below iliac

crest and 25 cm from interior mid line and 3 cm behind mind

axillary line.

7. Surgical wound on left side of the abdomen 1x1 cm in size, 9 cm

from mid line and 14 cm from costal margin.

Abdomen: Wall, peritoneum, intestines and blood vessels and lower

abdomen were injured.

Stomach healthy and empty.

Opinion:

In his opinion the deceased died due to injuries to blood vessels

leading profuse bleeding and intestine due to fire arm.

Probable time between injury and death..hospitalized.

Probable time between death and P.M…4 to 8 hours.

He also endorsed the inquest report and injury sheet of the

deceased Mudasir. After conducting P.M examination, he handed

over the P.M report and dead body of the deceased to the local

police. The PM report is Ex.PZ, which consist of six sheets. He has

seen the P.M report which correctly bears his signature.

PW-13 is Dr. Shah Nawaz, Maulvigee Hospital Peshawar, who

deposed that during the relevant days he was posted in casualty

LRH, Peshawar as CMO. On 1.9.2012 at 4.50 hours, he examined

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injured Mudasir Shah son of Haji Farooq Shah aged about 20 years

resident of Gulab Khana Peshawar and found the following:

On examination the patient was conscious, having the following

injuries.

1. Entry wound about 1x1 cm on right wrist joint medial side. 2. Exit wound about 2x2 cm on right wrist lateral side. 3. Entry wound about 1x1 cm on right hip joint lateral side. 4. Exit wound about 2x2 cm on left hip joint lateral side. Emergency treatment given, Advised X Ray and referred to COW/CSW and Radiology departments. The nature of injuries:- Later on. The kind of weapon:- Fire arm. Probable time in between injury and examination; half to one hour.

His report is Ex:PW-13/1. He also endorsed the injury

sheet, which is Ex:PW-13/2. The patient also made a

report in his presence. In this respect he signed the

murasila report as a certificate of his consciousness and

orientation. His endorsement upon the murasila is Ex:PW-

13/3. He has seen the documents which are correct and

correctly bear his signatures.

PW-14 is Mirza Khan S.I. (Retired), who deposed that

during the days of occurrence he was posted in police

Station Kabali. After registration of the FIR, the

investigation was marked to him, so he visited the spot

and prepared the site plan Ex:PB at the instant of eye

witnesses. During the spot inspection he has taken into

possession 12 empties of 30 bore vide recovery memo

Ex.PW10/1 and a 30 bore pistol already Ex:P.4 which

were recovered by Rehmeen Khan ASI prior to his arrival

as he arrested the accused after the occurrence along

with 30 bore pistol. He has also taken into possession

blood stained garments of complainant injured consisting

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of qamees, shalwar and banyan already exhibited as P.1,

P.2 andP.3 vide recovery memo already exhibited as

Ex:PW-8/1. After the spot inspection he came back to P.S

where he has taken into possession vide recovery memo

Ex:PW-1/1, the weapon of offence i.e 30 bore pistol Ex:

P.5 bearing # C 28827 along with bandolier containing 12

rounds of 30 bore pistol i.e. Ex:P.6 which were recovered

from the accused facing trial by Rehmeen Khan in respect

of which FIR No. 507 dated 1.9.2012 under section 13

A.O was registered in Police Station KRS. He placed on

file copy of FIR # 507 in respect of recovery of pistol

mentioned above along with recovery memo and made an

application to FSL for the examination of the weapon of

offence i.e. 30 bore pistol and recovered empties from the

spot. The copy of the application is Ex:PW-14/1. He also

made an application for FSL examination of the blood

stained garments, copy of which is Ex:PW-14/2. He also

placed on file the card of arrest prepared by Rehmeen

Khan. He produced the accused before the Illaqa

Magistrate vide his application Ex:PW-14/3 for obtaining

10 days police custody which was allowed and 2 days

police custody was granted. He interrogated the accused

who confessed his guilt before him and led the police

party to the spot and made pointation of the place of

occurrence which he added in the site plan with red ink

and prepared the pointation memo already Ex:PW-9/1.

After lapse of period of custody he produced the accused

before the Illaqa Magistrate for recording his confessional

statement vide his application Ex:PW-14/4, but the

accused refused to confess his guilt and was sent to the

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judicial lock up. The complainant then injured succumbed

to his injuries and died in the hospital. So he placed on

file all the medical treatment documents along with death

summary consisting of 10 sheets which are Ex:PW-14/5

and also placed on file the P.M report along with inquest

report. He also produced the eye witnesses and father of

the deceased before the Illaqa Magistrate for recording

their statements under section 164 Cr.P.C vide his

application Ex:PW-14/6, whose statements were recorded

and the original were handed over to him, which he

placed on file. He also received the FSL report regarding

the blood stained garments of the deceased which is

Ex:PZ and placed the same on file. He also received the

Fire Arm Expert report in respect of the recovered pistol

and empties and placed the same on file which is

Ex:PZ/1. He also made an application to the license clerk

in respect of knowing the name of license holder of 30

bore pistol bearing No.C 28827, the application is Ex:PW-

14/7 and he received the report according to which the

pistol bearing # C 28827 was issued to Khan Hazrat

accused i.e. the facing trial. He has recorded the

statements of PWs under section 161 Cr.P.C. After

completion of investigation he handed over the case to

the SHO for submission of complete challan.

PW-15 is Muhammad Kabir Assistant, Deputy

Commissioner Office, Peshawar, who deposed that in the

month of September 2012, he was posted as license

Clerk in the office of Deputy Commissioner, Peshawar.

On 14.9.2012, the local police of police station Khan

Raziq Shaheed produced /submitted to him an application

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already exhibited as Ex:PW-14/7 for verification /detail

report of the license issued in 1995 in respect of pistol # C

28827, .30 bore. As per his office record, license No.

6091/DC PR dated 27.04.1995, is issued in the name of

accused facing trial namely Khan Hazrat son of Ghulam

Hazrat. His report on the back of above mentioned

application is Ex:PW-15/1. He has seen his report, which

is correct and correctly bears his signature. The extract

from the relevant register is Ex:PW-15/2.

5. After the close of prosecution evidence, statement of the

accused facing trial was recorded under Section 342 Cr.P.C,

wherein he professed his innocence and did not opt to produce DWs

or to record his statement on Oath as required under Section 340(2)

Cr.P.C.

6. Dy. PP for the State assisted by learned counsel for the

complainant argued that the occurrence has taken place on

01.09.2012 at 1630 hours; whereas the report has been lodged by

the deceased then injured himself on the same day at 1700 hours in

the casualty of LRH, Peshawar. He argued that there is no delay in

lodging the report, therefore question of false implication of the

accused facing trial in this case does not arise at all. He contended

that the report of deceased then injured is a dying declaration and

the same has been endorsed by the Medical Officer, who initially

examined him at LRH, Peshawar. He further argued that apart from

dying declaration of the deceased, the two eye witnesses i.e. PW-5

Tariq Shah & PW-6 Babar Ahmad have furnished the ocular account

of the occurrence, which lends support from the corroborative

evidence produced by the prosecution in this case. He argued that

the accused facing trial was arrested on the same day by the local

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police and the weapon of offence has also been recovered from his

possession, therefore the prosecution case against the accused is

not suffering from any legal infirmity. He added that the positive

report of the Chemical Examiner i.e. Ex.PZ, regarding the blood

stained garments of the deceased and the report of Fire Arm expert

i.e. Ex.PZ/1, fully corroborates the prosecution version. Learned

counsel for the complainant also referred to the medical evidence

and argued that the same is inline with the ocular account of the

occurrence furnished by the prosecution witnesses. In view of his

arguments, he submitted that the prosecution has been able to

prove the guilt of the accused beyond shadow of any doubt,

therefore, the accused deserves punishment in accordance with

law.

7. On the other hand, learned counsel appearing on behalf of the

accused argued that there are glaring contradictions between the

statement of material prosecution witnesses, hence their testimony

is not confidence inspiring. He referred to the statement of PW-5 &

PW-6 and argued that both these alleged eye witnesses have totally

negated the prosecution case on the material points, therefore their

testimony needs to be scrutinized with great care & caution. He also

argued that prosecution has not been able to establish that the

report was lodged by the deceased then injured therefore the so

called dying declaration of the deceased is worthy of no credence.

He added that PW-5 & PW-6 are the close relatives of the deceased

and are highly interested therefore their testimony is not believable.

He referred to the statement of PW-11 and argued that the same is

full of contradictions and dishonest improvements. In view of his

arguments he submitted that the case of prosecution has not been

established against the accused beyond shadow of any doubt,

therefore, he deserves outright acquittal.

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8. I have heard arguments of learned Dy.P.P for the State assisted

by learned counsel for the complainant and learned defence counsel

and have perused the case record as well.

9. The edifice of prosecution case mainly rests upon the alleged

dying declaration of the deceased then injured, the ocular account of

the occurrence furnished by PW-5 Tariq Shah and PW-6 Babar

Ahmad besides the medical evidence produced by the prosecution.

The prosecution has also relied upon the corroborative evidence in

the shape of firearms expert report and the report of chemical

examiner. The alleged dying declaration of the deceased in the

present case is of paramount importance because the same is a

determining factor for proving the innocence or guilt of the accused

facing trial in the instant case. It is well settled law that, no hard and

past rule can be laid down about the standard of the dying

declaration as its veracity, authenticity and reliability varies from

case to case. In this case, as per prosecution’s version, the

deceased then injured has lodged the report Ex.PW-4/1 to PW-4

Shah Wali Khan ASI in the casualty of LRH, Peshawar in the

presence of PW-13 Dr. Shah Nawaz, who has certified that, the

deceased then injured was conscious at the time of lodging the

report. PW-5 Tariq Shah has also endorsed the report Ex.PW-4/1 by

putting his signature over it. Hence, while determining the

genuineness or otherwise of the alleged dying declaration of the

deceased, statements of PW-4 Shah Wali ASI, PW-5 Tariq Shah

and PW-13 Dr. Shah Nawaz need to be scrutinized with great care

& caution.

10. While appearing as a PW-4, Shah Wali ASI in his examination in

chief, has stated that, after recording the report Ex.PW-4/1 lodged

by deceased Mudassar Shah, he prepared his injury sheet Ex.PW-

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4/2 and produced him before the doctor for medical treatment. This

PW has not uttered a single word in his entire statement showing

that PW-13 Dr. Shah Nawaz has furnished any certificate regarding

the consciousness and orientation of the deceased then injured over

Ex.PW-4/1 at the time of lodging the report. The cross examination

of this witness shows that, the deceased then injured was brought to

the hospital at 16:50 hours and he was medically treated upon as

well as examined at the same time. PW-4 is the scribe of the alleged

dying declaration of the deceased but he has nowhere stated that

the deceased then injured has lodged the report in the presence of

PW-13 Dr. Shah Nawaz and that Dr. Shah Nawaz has recorded his

remarks on the report regarding the consciousness and orientation

of the deceased then injured. PW-5 Tariq Shah is another important

witness, in whose presence the alleged dying declaration was made

by the deceased then injured. In his entire statement, this witness

has nowhere mentioned that the report of deceased then injured

was either recorded in the presence of PW-13 Dr. Shah Nawaz or

the said doctor has recorded any remark over it regarding the

consciousness of the deceased then injured. In his cross

examination, PW-5 Tariq Shah has stated that his statement was

recorded on 01/09/2012 at 1700 hours/17:30 hours in the street

situated at Gulab Khana, Peshawar. The question arises that when

on 01/09/2012 at 1700 hours/17:30 hours, PW-5 Tariq Shah was

present in the street at Gulab Khana, then how he was present at

the same time at LRH, Peshawar, where exactly at the same time,

the deceased then injured has lodged the report Ex.PW-4/1. To yet

another cross question, this witness has replied that when he came

to the spot, the police was already present on the spot before his

arrival. He further stated that he remained on the spot with the

police for 10/15 minutes and thereafter he went to the hospital. If

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this portion of the cross examination of PW-5 Tariq Shah is kept in

juxtaposition with the report Ex.PW-4/1, then one would reach to an

irresistible conclusion that either PW-5 Tariq Shah is not an

eyewitness of the occurrence or the occurrence has not taken place

in the manner as reported. It is worth mentioning that, pw-5 Tariq

Shah is the real brother of deceased hence, he is not only an

interested witness but is also close relative of the deceased. His

entire statement is nothing but a supplement of contradictions and

dishonest improvements, hence worthy of no credence. He is

reportedly also an eyewitness of the occurrence but his entire cross

examination would show that he has negated the other prosecution

witnesses on the material points and thus have brought major dents

in the prosecution case, which cannot be brushed aside at all.

Statement of pw-5 Tariq shah further shows that there is a police

post of Police Station Shah Qabool just opposite to the place of

occurrence. Again question arises that, why the matter was not

reported to the police at the said police post, which is situated just

opposite to the place of occurrence. Cross examination of PW-5

also negates the site plan Ex.PB as well as the statement of PW-6

Babar Ahmad on the material points which cannot be overlooked

and ignored at all.

11. The statement of PW-13 Dr. Shah Nawaz would show that in his

presence the deceased lodged the report Ex.PW-4/1 and he also

recorded his certificate over the same regarding the consciousness

and orientation of the deceased then injured at the time of lodging

the report. However, this version of PW-13 Dr. Shah Nawaz has

been totally denied by PW-4 Shah Wali ASI, who drafted the report

Ex.PW-4/1. PW Shah Wali has stated in his cross examination that,

brother of the victim was present with him at the time of lodging the

report. This witness has not stated regarding the presence of PW-13

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Dr. Shah Nawaz at the time of lodging the report. The entire

statement of PW-4 Shah Wali ASI is silent regarding this aspect of

the case. Similarly, statement of PW-5 Tariq Shah would show that

there is no mention in it regarding the presence of PW-13 Dr. Shah

Nawaz at the time of lodging the report by the deceased then

injured. The careful scrutiny of the statements of the

abovementioned witnesses would clearly show that it is highly

doubtful that the report Ex.PW-4/1 was made by the deceased then

injured himself in the presence of PW-13 Dr. Shah Nawaz. It is well

settled law that before placing reliance on a dying declaration, great

care & caution has to be exercised because the dying declaration is

always treated as a weak piece of evidence for the reason that its

maker is not subjected to cross examination. Reliance in this regard

can be placed upon reported case law 1999 P.Cr.LJ Peshawar

Page 1087. In the present case, the prosecution has failed to

establish that deceased then injured has made any dying

declaration to PW-4 Shah Wali ASI in the presence of PW-5 Tariq

Shah and PW-13 Dr. Shah Nawaz.

12. The ocular account of the occurrence in this case has been

furnished by PW-5 Tariq Shah and PW-6 Babar Ahmad. As earlier

stated, the testimony of PW-5 Tariq Shah is worthy of no credence

because the same is nothing but a supplement of contradictions and

dishonest improvements. As far as PW-6 Babar Ahmad is

concerned, he is also a close relative of the deceased and is highly

interested in the success of prosecution case. His presence at the

scene of occurrence at the relevant time is also doubtful. Cross

examination of PW-6 would show that, he has contradicted the site

plan Ex.PB on the material points. Statement of PW-6 Babar Ahmad

not only contradicts the version of PW-5 Tariq Shah but also

contradicts the statement of PW-14 Mirza Khan SI, who has

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conducted investigation in the case. PW-5 Tariq Shah and PW-6

Babar Ahmad are not only closely related to the deceased but also

appear to be highly interested and chance witnesses. Their

presence at the scene of occurrence at the relevant time has not

been proved by the prosecution. The testimony furnished by both

these witnesses is in conflict with the site plan Ex.PB and the

medical evidence produced by the prosecution. Hence, it can be

held without any hesitation that being close relatives of the

deceased, PW-5 and PW-6 have tried to make dishonest

improvements in their court statements and have contradicted each

other, thus rendered their testimony worthy of no credence.

13. According to site plan Ex.PB, point No.1 denotes the presence of

deceased, whereas point No.5 denotes the presence of accused

facing trial at the time of occurrence. Similarly, points A & B shown

in the site plan are situated inside the hujra of accused facing trial.

The site plan has been prepared by PW-14 Mirza Khan SI at the

pointation of PW-5 and PW-6. As per site plan Ex.PB, 12 empties of

.30 bore were recovered from point “A” by PW-11 Rahmeen Khan

SI. PW-14 Mirza Khan SI has also confirmed this fact in his court

statement. A question arises that when in the site plan, the presence

of accused has been shown at point No.5, then how and why

recovery of alleged crime empties was made from point “A” which is

situated inside the “hujra” of accused facing trial. In the site plan,

distance between point A and point No.5 has not been shown,

hence, reasonable doubt has been created in the prudent mind,

which adversely affects the prosecution’s case. Besides this,

according to the site plan, the deceased was present at point No.1

at the time of occurrence, which is situated at the front of house of

one Naseer. PW-5 Tariq Shah has stated in his cross examination

that, at the time of firing, the deceased was standing ahead of him

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and the houses of various persons are situated at the back of places

where they were standing at the time of occurrence. However, the

site plan indicates that no sign of bullet mark was found by PW-14

Mirza Khan at the time of preparation of site plan. Even the said

witness has admitted this fact in his cross examination. The report

Ex.PW-4/1 would show that the occurrence took place in the front of

house of accused facing trial, however, the site plan Ex.PB totally

contradicts this fact. Similarly, Mirza Khan SI (Investigating Officer)

has also contradicted this fact in his court statement. Even PW-5

Tariq Shah and PW-6 Babar Ahmad i.e. the alleged eyewitnesses

are also contradicting each other regarding this material fact

because PW-5 Tariq Shah in his cross examination has stated that,

the deceased was standing in the front of house of accused,

whereas PW-6 Baber Ahmad has stated that the spot is not situated

in the front of the house of the accused. Although the site plan by

itself is not a substantive piece of evidence but its importance

cannot be ignored as the same is always used for scrutinizing

testimony of prosecution witnesses.

14. During the course of arguments, it was vehemently argued on

behalf of the prosecution that, weapon of the offence has been

recovered from the possession of the accused facing trial and

positive report of the firearms expert has been received , which is an

important piece of evidence against the accused facing trial. Record

shows that, PW-11 Rehmeen Khan SI has allegedly arrested the

accused facing trial and he has allegedly recovered a .30 bore pistol

bearing No.C-28827 alongwith 12 rounds of the same bore from his

possession. This witness has registered a separate case u/s 13 A.O

against the accused facing trial. Record further indicates that this

witness has also recovered 12 empties of .30 bore from the place of

accused at the time of spot inspection. In his cross examination, this

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witness has stated that, he handed over the empties to the I.O on

the spot, whereas he took the pistol with him to the police station.

The question arises as to why the pistol was not handed over to the

I.O on the spot, especially when the recovered empties were

handed over to the I.O on the spot. Admittedly, the alleged recovery

has been made from the possession of accused in a thickly

populated area but no independent witness has been cited to

confirm the factum of alleged recovery. The willful non compliance

of mandatory provisions of section 103 Cr.PC has rendered the

alleged recovery of .30 bore pistol from the accused to be much

doubtful. Even otherwise, PW-14 Mirza Khan SI has admitted in his

cross examination that the pistol in question was handed over to him

in the P.S by the Moharir and the same was not in a sealed

condition. This witness has stated in his cross examination that the

empties and pistol were handed over to him on 01/09/2012 and he

sent the same to FSL on the same day alongwith his application

through Moharir of the P.S. He further stated that the pistol was

received to the FSL on 07/09/2012 and he does not know as to who

was the custodian of the pistol in question during the intervening

period i.e. from 01/09/2012 to 07/09/2012. Admittedly, the pistol and

the alleged crime empties have been sent to the labouratory after

much delay and it is not known as to who was the custodian of the

same from 01/09/2012 to 07/09/2012, therefore, the positive report

of the Firearms Expert does not lend support to the prosecution

case in any manner because this delay has destroyed the

evidentiary value of Firearms Expert report. Moreover, even the

recovery of alleged .30 bore pistol from the possession of the

accused facing trial is also doubtful. Hence, it can be safely

concluded that the positive report of Firearms expert is of no help to

the prosecution in this case and the same carries no judicial value at

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all. Reliance in this regard can be placed upon reported case law

2008 SCMR page 707.

15. The alleged dying declaration of the deceased then injured in the

case could not be proved by the prosecution. Likewise, the ocular

account of the occurrence furnished by the prosecution witnesses is

not trustworthy, confidence inspiring and independent hence, the

corroborative evidence in the shape of medical evidence and

recovery of various articles from the place of occurrence is also of

no help to the prosecution. Moreover, mere dying declaration

shrouded in mystery and fraught with many infirmities is not

sufficient enough to hold an accused guilty of an offence for which

he has been charged because a dying declaration is always treated

to be a weaker type of evidence, until and unless it is corroborated

by other reliable evidence. Reliance in this regard can be placed

upon reported case law 2011 SCMR page 646. It is well established

law that, only one reason creating reasonable doubt in the prudent

mind is sufficient for discarding the prosecution witnesses and

numerous infirmities are not necessary to disbelieve a witness. In

the present case, the alleged eyewitnesses have totally discarded

the so called dying declaration of the deceased besides negating

each other on the material points. They have also rendered their

testimony worthy of no credence. The prosecution has thus failed to

prove the guilt of the accused beyond shadow of any doubt.

16. In the light of what has been stated above, I hold that

prosecution has not been able to establish the guilt of accused

beyond shadow of any doubt, therefore, while extending the benefit

of doubt to the accused, he is hereby acquitted from all the charges

leveled against him. He is present in custody, be set free forthwith, if

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not required in any other case. The case property be kept intact till

the expiry of period of appeal/revision.

File be consigned to record room after compilation & necessary

completion.

Announced Dt: 22.09.2016.

(Muhammad Rauf Khan) Sessions Judge, Peshawar

CERTIFICATE Certified that this judgment consisting of twenty two pages,

each page has been read over, checked, and signed by me after

making necessary corrections therein.

Sessions Judge, Peshawar