Riaz (decd) through his brother Abdur Rauf vs Gulzar and another

2026 SCLR 11

Other citations: 2025 SCP 469

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Musarrat Hilali and Shakeel Ahmad, JJ

Riaz (decd) through his brother Abdur Rauf --- Petitioner

versus

Gulzar and another --- Respondents

Criminal Petition No. 99-P/2019 & Jail Petition No. 614/2019, decided on 13th August, 2025.

(Against the judgment dated 23.10.2019 passed by the Peshawar High Court, Peshawar in Cr.A.No.776-P/2019 with Murder Reference No.18- P/2019)

HEADNOTES by Noor Ahmed, Civil Judge and Judicial Magistrate

(a) Qanun-e-Shahadat (10 of 1984) ---

--- Art. 46 --- Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant --- Dying declaration --- Scope --- A dying declaration is admissible in evidence under Article 46 of the Qanun-e-Shahadat Order, 1984, without any pre-condition that the maker should be in imminent expectation of death --- Normally, the Courts attach great importance to a dying declaration, presuming that “truth sits upon the lips of the dying man” --- The shadow of impending death is in itself a guarantee of truth of the statement of the deceased regarding the circumstances leading to his death --- The grounds for admissibility are: firstly, the necessity for the victim being generally the only principal eyewitness to the crime, the exclusion of the statement might defeat the ends of justice; and, secondly, the sense of impending death, which creates a sanction equal to the obligation of oath --- The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth, a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice --- The principle on which dying declaration is admitted in evidence is indicated in legal maxim “Nemo Moritus Proesumitur Mentire”— a man will not meet his maker with a lie in his mouth --- Yet, it is always put to close scrutiny before placing reliance thereon, for such statement is seldom on oath and its maker is not available for cross-examination, and also because our society’s moral fibre has gone very weak. [A]

(b) Criminal law ---

--- Non-recovery of crime empties --- Scope --- Where crime was committed at a railway track near masjid, Supreme Court observed that there was strong possibility that the people of the vicinity would have attracted to the crime scene after the occurrence, and some crime empties would have been misplaced due to rush of people --- Such defect was not considered fatal to the prosecution’s case. [B]

--- Abscondence --- Scope --- Unexplained disappearance of the accused immediately after the occurrence from his place of residence, knowing that the deceased was his co-villager, strongly indicates towards his guilt. [C]

(d) Penal Code (XLV of 1860) ---

--- S. 302 --- Qalt-i-amd --- Quantum of sentence --- Scope --- Although death sentence is a normal penalty for the offence of murder, but, in appropriate cases, where some extenuating circumstances exist, the Court retains the discretion to award lesser punishment of imprisonment for life. [D]

Syed Mubashir Shah, Advocate Supreme Court (in Crl.P.L.A.99-P/2019) for the petitioner.

Danial Khan Chamkani, Advocate Supreme Court (Pauper counsel in J.P.614/2019 as well as for the respondent No.1 in Cr.PLA No. 99-P of 2019)

Muhammad Inam Yousafzai, Additional Advocate-General Khyber Pakhtunkhwa (in both petitions) for the State.

Date of hearing: 13th August, 2025.

JUDGMENT

Shakeel Ahmad, J.- Gulzar, (“the accused-petitioner”) was tried by the learned Addl. Sessions Judge/Judge MCTC, Mardan, pursuant to Crime No. 570 dated 07.09.2007 registered under Section 302 PPC, at police station Saddar, Mardan, for committing murder of the complainant (then injured), Riaz. The trial Court vide its judgment dated 13.06.2019 convicted him under Section 302 (b) PPC and sentenced him to death. He was also directed to pay compensation amounting to Rs. 100,000/- to the legal heirs of the deceased in terms of Section 544-A Cr.PC. In default whereof, he was directed to suffer further one-year simple imprisonment. In appeal, the High Court, vide its judgment dated 23.10.2019 (“the impugned judgment”), while maintaining the conviction and sentence of the accused-petitioner under Section 302(b) PPC, altered the sentence of death into imprisonment for life. The amount of compensation and the sentence in default thereof, was maintained. Benefit of Section 382-B Cr.PC was also extended to the accused-petitioner. Feeling aggrieved by the findings of the High Court, the accused-petitioner has filed the instant Jail Petition, while brother of the complainant (then injured) has sought restoration of the death sentence awarded to the accused-petitioner by the trial Court, by filing Criminal Petition for Leave to Appeal No. 99- P of 2019, under Article 185 (3) of the Constitution of the Islamic Republic of Pakistan, 1973.

2. The incident took place at 08.50 am on 07.09.2007 at railway track, near new Masjid Mirwais Major Abad, wherein Riaz, aged about 20 years, charged the accused-petitioner for murderously assaulting at him by means of firearm. He was taken to DHQ Hospital, Mardan, in injured condition. Initially, he was examined by Dr. Shahid Durrani (PW-6) at 9.15 am on the same day, whereafter, the report was recorded in the shape of Murasila (Ex.PA/1) at the same Hospital on the basis of dying statement made by the deceased at 09.25 am. It was recorded by Mushtaq Ahmad. It was, subsequently, incorporated into FIR (Ex.PA) by Ali Khan (PW-2).

3. The case of prosecution, briefly, is that the complainant (then injured) reported to the police at the casualty of DHQ Hospital, Mardan, that on the relevant day and time, when he came out of his home and reached near the place of occurrence, the accused-petitioner, already present there, murderously assaulted at him by means of firearm. The motive for the occurrence was stated to be previous blood feud enmity between the parties. Later on, on the same day, at 04.30 pm, he succumbed to his injuries, and accordingly, the Section of law was changed from 324 PPC to 302 PPC.

4. After completion of the investigation, a report under Section 173 Cr.PC was submitted before the trial Court. The prosecution, in order to prove its case, produced twelve witnesses. In his statement recorded under Section 342 Cr.PC, the accused-petitioner, pleaded innocence and refuted all the allegations levelled against him. However, he neither appeared as his own witness on oath, as provided under Section 340 (2) Cr.PC in disproof, nor produced any evidence in his defence.

5. Heard and record perused.

6. It is reflected from the record that the most important piece of evidence, from prosecution's point of view, in this case, is the dying declaration of the complainant (then injured) (Ex.PA/1) and ocular account furnished by Abdur Rauf (PW-7). A dying declaration is admissible in evidence under Article 46 of the Qanun-e-Shahadat Order, 1984, without any pre-condition that the maker should be in imminent expectation of death. Normally, the Courts attach great importance to a dying declaration, presuming that “truth sits upon the lips of the dying man”. The shadow of impending death is in itself a guarantee of truth of the statement of the deceased regarding the circumstances leading to his death. The grounds for admissibility are: firstly, the necessity for the victim being generally the only principal eyewitness to the crime, the exclusion of the statement might defeat the ends of justice; and, secondly, the sense of impending death, which creates a sanction equal to the obligation of oath. The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth, a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice. The principle on which dying declaration is admitted in evidence is indicated in legal maxim “Nemo Moritus Proesumitur Mentire”— a man will not meet his maker with a lie in his mouth. Yet, it is always put to close scrutiny before placing reliance thereon, for such statement is seldom on oath and its maker is not available for cross-examination, and also because our society’s moral fibre has gone very weak; therefore, we proceed to examine if it is worth reliance. It is in the evidence that the incident was reported by the deceased himself on 07.09.2007 at 08.50 am to Mushtaq, IHC at casualty of Mardan Hospital. It was recorded in the shape of Murasila (Ex.PA/1) at 09.25 am. It was reported within thirty-five minutes of the occurrence. The report was endorsed by the eye-witness, namely Abdur Rauf (PW-7), brother of the deceased.

7. It is seen from the statement of Dr. Shahid Durrani (PW-6) that the deceased was brought to the hospital in injured condition, he examined him at 09.15 am on the same day. He found that he was fully conscious and oriented in time and place. The medicolegal report (Ex.PW-6/1) reflects that the deceased had sustained multiple firearm injuries on different parts of his body. During cross-examination, PW-6 stated that he had asked the deceased (then injured) some questions before examining him, which he responded to clearly, which suggests that he was in a fit condition to give a statement. In cross-examination, nothing contrary has been elicited to discredit the Doctor’s evidence. He has denied the suggestion made to him that he had not examined the injured, and he has given a false and fictitious report. A comparison of the dying declaration (Ex.PA/1) and the statement of Abdur Rauf (PW-7), recorded before the trial Court, shows that they tally on material points. There is no conflict or inconsistency between these two statements. The recovery of blood-stained earth and one crime empty of .30 bore pistol confirmed the scene of crime as the railway track. So far as non-recovery of rest of the crime empties are concerned, we observe that the crime was committed at a railway track near new Masjid, Major Abad, therefore, there is strong possibility that the people of the vicinity would have attracted to the crime scene after the occurrence, and the remaining empties would have been misplaced due to rush of people. In the present case, the evidence of the prosecution clearly establishes, beyond a shadow of doubt, that the deceased was conscious when he was moved to the hospital. The prosecution's evidence shows that the deceased was in a fit state of health to make statement on the date and time of report. He expired on the same day, i.e., 07.09.2007 at 15.45 hours at Lady Reading Hospital, Peshawar. His autopsy was conducted by Dr. Tayyab on 07.09.2007 at 04.30 pm. No justifiable reason is pointed out to disbelieve the testimony of eye witnesses and dying declaration (Ex.PA/1) made by the deceased. The prosecution's evidence does not suffer from any legal infirmity, which would render the dying declaration as doubtful or unworthy of evidence. In such a situation, the lapse on the part of the recorder of the dying declaration, i.e., failure to get the statement attested by the medical officer, should not be taken in favour of the accused, may be that such lapse is committed designedly or because of negligence, particularly when, as observed in the preceding para of this judgment that prior to recording of statement of the then injured (now deceased), the Doctor examined him and opined that he was conscious and was in a position to make a statement.

8. It is an admitted fact that the occurrence took place on 07.09.2007, while the accused-petitioner was arrested on 20.04.2015. Soon after the occurrence, he went into hiding and remained fugitive from the law for about eight years, for which he could not offer a plausible explanation. Proceedings under Sections 204 and 87 Cr.PC were initiated and completed against him. The unexplained disappearance of the accused-petitioner immediately after the occurrence from his place of residence, knowing that the deceased was his co-villager, strongly indicates towards his guilt.

9. Turning to the quantum of sentence, although death sentence is a normal penalty for the offence of murder, but, in appropriate cases, where some extenuating circumstances exist, the Court retains the discretion to award lesser punishment of imprisonment for life. In this case, we find from the record that the motive as alleged by the prosecution, could not be proved. Such is the mitigating and extenuating circumstance, justifying conversion of death sentence into one of life imprisonment.

10. For the foregoing reasons, we are of the view that the impugned judgment of the High Court is well-reasoned and needs no interference. Accordingly, both these petitions are dismissed, and leave declined.

These are the detailed reasons for our short order of even date, reproduced below:

“Crl.P.L.A.99-P/2019:

For the reasons to be recorded later, this petition is dismissed by majority of two over one (Musarrat Hilali, J, dissenting).

J.P.614/2019:

2. For the reasons to be recorded later, this petition is dismissed”

Sd/-

Jamal Khan Mandokhail, J

(I agree and add my additional note)

Sd/-

Musarrat Hilali, J

Sd/-

Shakeel Ahmad, J