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1
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)
**********
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.
**********
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
2
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:-
3
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.
4
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.
5
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
6
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
7
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;
8
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
9
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
10
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
11
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
12
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
13
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.
14
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-
15
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
16
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
17
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
18
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