ZARSHAD vs BAHADUR KHAN AND Other
This petition for leave to appeal arose from an order of the Peshawar High Court acquitting three respondents who had been convicted by the Additional Sessions Judge, Mardan, for murder under Section 302/34 of the Pakistan Penal Code 1860. The prosecution case rested on the dying statement of the deceased and the ocular testimony of a single witness, corroborated by the alleged abscondence of the accused. The Supreme Court examined the evidentiary value of the prosecution's case, noting significant infirmities: the ocular testimony was inconsistent with medical evidence regarding the firing range, and critical evidence, including a separate dying statement, was not produced during the trial. Furthermore, the court noted the failure to bring the evidence of a deceased witness onto the record under the Evidence Act. The Supreme Court held that the High Court's acquittal was not unreasonable given these material contradictions and evidentiary gaps. Consequently, the Court found no grounds to interfere with the acquittal order and dismissed the petition, affirming that appellate courts will not disturb an acquittal where the prosecution's case suffers from substantial and unexplained infirmities.
- Does a discrepancy between ocular evidence regarding firing distance and medical evidence regarding tattooing and blackening marks undermine the credibility of an eyewitness?
- Can a court rely on a dying statement that was not produced during the committal proceedings or the trial?
- Is the failure to bring the evidence of a deceased witness on record under Section 33 of the Evidence Act 1872 a material defect in the prosecution's case?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 33, Evidence Act 1872
ORDER
1. SALAHUDDIN AHMED, J.-Respondents Nos. 1 to 3 were convicted under section 302/34 of the Pakistan Penal Code, and sentenced to transportation for life each by the Additional Sessions Judge, Mardan. On appeal before the Peshawar High Court, however, they were all acquitted. The present petition is from the order of acquittal.
2. The occurrence took place on the 4th February 1961 at 3-30 p. m., and Shamsuz Zaman (the deceased) was said to have been fired at and injured in his field by the three respon--dents. The first information report which was subsequently treated as a dying statement, was lodged by the injured Shamsuz Zaman on the same evening. It is alleged that a dying statement of the deceased was recorded by P. W. 13 Mollah Dad while the deceased was proceeding to the Police station. The injured died on his way to the Civil Hospital, Mardan.
3. The defence case is one of denial. The respondents denied abscondence, and said that they had gone to Swat in connection with their business, but no witness was examined by them.
4. The prosecution relied on the evidence of prosecution witnesses Zarshad (P. W. 7), Farid Khan (P. W.
5. 8) and Mollah Dad (P. W. 13) and the dying statement of the deceased to prove its case. For the purpose of conviction the learned Additional Sessions Judge relied on the dying statement of the deceased (i. e. F. I. R.) and the evidence of P. W. Zarshad as corroborated by the abscondence of the respondents.
6. Its may be stated here that the dying statement claimed to have been recorded by P. W. Mollah Dad was neither produced during the committal proceeding nor at the trial. S. H. O. Farid Khan who recorded the F. I. R. Did not say that he received the said statement. This statement was received by the Additional Sessions Judge after the conclusion of the trial but before the judgment. Inasmuch as, however, the statement had not been produced at any stage earlier he refused to take it into consideration.
7. There are certain unsatisfactory features of the case. Of the four witnesses of occurrence mentioned in the F. I. R. Only one of them viz. P. W. Zarshad, brother of the deceased, has come forward to depose as an eye-witness. Among the omitted witnesses is an Imam of the Mosque, and one Muhammad Ayub who died after his deposition before the committing Magistrate but whose evidence was not brought on record under section 33 of the Evidence Act. An earlier dying statement recorded by P. W, Mollah Dad vas not produced either at the committal proceeding or at trial. According to the ocular evidence of P W. Zarshad the deceased was fired at from a distance of 4/10 paces. This is inconsistent with the medical evidence which discloses that there were tattooing and blackening marks upon the deceased. This is indicated that the deceased was shot from very close range.
8. Having regard to these infirmities we do not think that the High Court acted unreasonably in acquitting the respondents. This is not a fit case for interference with the High Court's order.
9. The petition is accordingly dismissed.
Cited by 3 cases
- Ashique Ali and 2 others vs The State 2022 YLR 1211
- Abdul Sattar Bangulani vs The State 2023 YLR 1530
- Haji NISAR AHMAD alias PAHAR BABA AND 2 OTHERS vs THE STATE 1985 PLD Peshawar 148