FAZAL DAYAN vs State Ss — 2021 YLRN 106 PESHAWAR-HIGH-COURT

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FAZAL DAYAN VS State Ss. 302(b), 109 & 34---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Dying declaration---Scope---Prosecution case was that the accused made firing at a transgender and was shifted to hospital, where in injured condition, he reported the matter to police and succumbed to the injuries---As to who brought the deceased to the hospital was not established---Murasila was also silent, however, as per Police Official/ witness, the complainant was brought by a passer-by but neither name of said passer-by had been mentioned nor was he examined by police---Another transgender, who being friend of deceased, introduced himself to be present with him at the time of report and also thumb impressed the said report being rider of the same, but the murasila did not bear any other thumb impression except that of alleged deceased then injured---Though as per Police Official/ witness, complainant was in well oriented condition at the time of report, but as per statement of friend of complainant, when he reached the hospital, complainant was in Operation Theatre and after becoming conscious, reported the matter to the police in his presence---Had the friend been present at time of report in casualty ward of hospital, he would have been mentioned as rider of the same but neither scribe of murasila nor the Investigation Officer had shown him present at the time of report---Even witness, who conducted partial investigation, had deposed that when he went to hospital, the deceased then injured, was unconscious and was not capable of giving statement that was why his statement was not recorded at that time---Said assertion was further affirmed by Medical Officer, who initially examined the deceased then injured by stating that complainant was received in casualty ward of hospital at 10.41 pm in semi conscious condition through casualty slip---Said assertion not only contradicted the report of complainant, whereby time of occurrence had been shown as 11.00 p.m., but also the depositions of Police Official and friend of complainant as according to him, complainant was in shock and sufficient amount of blood might have been lost and at the time of examination, the patient was not responding to his questions being in shock---Had the occurrence taken place at 11.00 p.m., then how the deceased then injured was received in the hospital at 10.40 pm, prior to the alleged occurrence, which created doubt qua authenticity of alleged dying declaration as well as the mode and manner of the occurrence---All the witnesses were only at one page qua oozing of sufficient blood from the deceased then injured, due to which there was possibility of going in shock of complainant as well as incapability of making his statement---Accused had not confessed his guilt before the competent court of law despite remaining in police custody for sufficient time, therefore, his mere nomination on the basis of a manipulated dying declaration without corroboration by other strong and cogent evidence, was not sufficient to establish his guilt for the offence carrying capital punishment---Circumstances established that the prosecution had not proved its case beyond reasonable doubt against the accused---Appeal against conviction was allowed, in circumstances.

FAZAL DAYAN vs State Ss — 2021 YLRN 106 PESHAWAR-HIGH-COURT

Case information

Judgment text as reported