Syed Mubarak Shah Vs. The State

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH

(JUDICIAL DEPARTMENT)

Cr.Appeal No. 197-A/2024 With Murder Reference No. 05-A/2024 Syed Mubarak Shah...............Appellant. Vs.

The State...................Respondent.

Present:

M/s Abdul Saboor Khan and Waqar Ahmed Khan, Advocates for the appellant.

Mr. Shoaib Ali, Assistant AG for the State.

Mr. Muhammad Arshad Awan, Advocate for the complainant/respondent.

Date of hearing: 19.05.2026

JUDGEMENT

AURANGZEB, J.- This single judgment shall dispose of Criminal Appeal No.197-A/2024 filed by appellant Syed Mubarak Shah, connected Criminal Appeal No.201-A/2024 filed by appellant Yaqoob Khan as well as Murder Reference No.05- A/2024 sent by the learned trial Court for confirmation of death sentence awarded to appellant Syed Mubarak Shah. Since all these

matters arise out of one and the same judgment, therefore, the same are being decided through this consolidated judgment.

2.Briefly stated, the prosecution case as set forth in the FIR is that on 13.07.2021 at about 05:25 p.m., complainant/injured Faizan Zeb along with injured Danish reported the occurrence to local police at Emergency Ward, King Abdullah Teaching Hospital, Mansehra. It was alleged that after finishing their work near Thandi Khoi, while they were returning to their houses and reached near a shop situated at Thandi Khoi, accused Mubarak Shah along with co-accused persons was standing there. Upon seeing the complainant party, the accused persons allegedly started altercation and abuses. In the meanwhile, accused Mubarak Shah allegedly picked up a glass bottle and struck the same on the head of injured Danish. Thereafter, accused Yaqoob Khan allegedly took out a pistol and fired at Danish causing firearm injury on his left thigh. Subsequently, accused Mubarak Shah allegedly drew out his pistol and fired at complainant Faizan Zeb causing firearm injury on

the right side of chest and abdomen. The occurrence was witnessed by Mohsin and Asad.

Initially, case under Sections 324/34 PPC was registered, however, after death of injured Faizan Zeb, Section 302 PPC was incorporated in the FIR.

3.After completion of investigation, challan was submitted before the learned trial Court. Formal charge was framed against the accused persons to which they pleaded not guilty and claimed trial. In order to substantiate the charge, prosecution produced as many as sixteen witnesses. Statements of accused persons under Section 342 Cr.P.C. were recorded wherein they denied prosecution allegations and professed innocence. However, they neither opted to appear as witnesses under Section 340(2) Cr.P.C. nor produced any evidence in defence. Upon conclusion of trial, learned trial Court convicted and sentenced the appellants in the following manner:-

Appellant Syed Mubarak Shah was convicted under Section 302(b) PPC and sentenced to death for committing qatl-i-amd of deceased Faizan Zeb. He was also directed to pay compensation amounting to Rs.500,000/- to the legal heirs of

deceased under Section 544-A Cr.P.C. and in default whereof, to further undergo six months simple imprisonment. He was further convicted under Sections 324/34 PPC and 337-F(iii)/34 PPC and sentenced accordingly.

Appellant Yaqoob Khan was convicted under Section 302(b) PPC read with Section 34 PPC and sentenced to imprisonment for life besides payment of compensation under Section 544-A Cr.P.C. He was also convicted under Sections 324 PPC and 337-F(iii) PPC and sentenced accordingly. Benefit of Section 382-B Cr.P.C. was extended to both the appellants.

4.We have heard learned counsel for the parties at considerable length and have meticulously gone through the entire available record with their able assistance.

5.The unfortunate occurrence in the instant matter is not disputed. It stands admitted from the record that deceased Faizan Zeb sustained firearm injury during the occurrence and subsequently succumbed thereto, whereas injured Danish also sustained firearm injury on his left thigh. The prosecution case mainly rests upon the dying declaration of deceased Faizan Zeb embodied in the Murasila/FIR, testimony of injured witness

Danish (PW-13), ocular account furnished by Mohsin Ali (PW-14), medical evidence, recoveries and forensic report.

6.At the very outset, before adverting to the ocular account, it would be advantageous to discuss the evidentiary value of the FIR lodged by deceased Faizan Zeb himself, which subsequently assumed the character of dying declaration within contemplation of Article 46 of the Qanun-e- Shahadat Order, 1984. The record reveals that the occurrence took place on 13.07.2021 at about 05:00 p.m., whereas the matter was reported to police at 05:25 p.m. at King Abdullah Teaching Hospital, Mansehra through PW-3 Muhammad Riaz ASI. Thus, the report was lodged with utmost promptitude and without any delay whatsoever.

The prompt reporting of occurrence excludes possibility of deliberation, consultation or fabrication and lends strong assurance to truthfulness of prosecution version.

7.The prosecution evidence consistently establishes that immediately after sustaining firearm injury, deceased Faizan Zeb along with

injured Danish was shifted to hospital in a taxi where his statement was recorded by PW-3 Muhammad Riaz ASI. Injured Danish (PW-13), who himself sustained firearm injury during the occurrence and also attested the report as witness, categorically deposed before the Court that after the occurrence he along with injured Faizan Zeb travelled in the same taxi towards hospital and there, deceased Faizan Zeb himself narrated the occurrence to PW-3 in his presence, whereafter he attested the report as marginal witness. His testimony on this aspect remained consistent and confidence inspiring throughout.

8.Likewise, PW-3 Muhammad Riaz ASI unequivocally stated that injured Faizan Zeb was conscious and in senses at the time when he reported the matter to him. He further proved Murasila/report Ex.PW-3/1 along with injury sheets Ex.PW-3/2 and Ex.PW-3/3 pertaining to deceased Faizan Zeb and injured Danish respectively. He further deposed that injured Danish attested the report as witness. The witness remained steadfast during lengthy cross-

examination and nothing favourable to defence could be extracted from his testimony.

9.The prosecution version regarding physical and mental condition of deceased Faizan Zeb at relevant time also finds full support from medical evidence. PW-11 Dr. Usman medically examined both injured persons immediately after occurrence and specifically stated that although injured Faizan Zeb was in critical condition, however, he was conscious. During cross-examination, the witness replied to the suggestion of learned defence counsel that even if lung of injured had been damaged, medically such injured could still speak.

Thus, the medical evidence completely negates defence contention that deceased Faizan Zeb was incapable of making statement.

10.Before placing reliance upon the statement of deceased Faizan Zeb embodied in the Murasila/FIR, it would be appropriate to discuss the legal principles governing evidentiary value of dying declaration. A dying declaration is an exception to the general rule excluding hearsay evidence and has been made admissible under

Article 46 of the Qanun-e-Shahadat Order, 1984 on the principle that a person standing at the brink of death is not likely to falsely implicate an innocent person. The law consistently recognizes that when a statement is made by a deceased person relating to cause of his death or circumstances resulting in his death, such statement becomes relevant and admissible provided the same inspires confidence and is proved in accordance with law.

11.The august Supreme Court of Pakistan in the case of “Abdul Khaliq versus The State” reported as 2021 SCMR 325 held that where a deceased was conscious and medically fit to make statement and the same was recorded immediately after occurrence, such dying declaration carries substantial evidentiary value and can safely be relied upon if surrounding circumstances establish its truthfulness. Likewise, in “Majeed versus The State” reported as 2010 SCMR 55 and “Nazeer Khan versus The State and another” reported as 2019 SCMR 1308, the august Supreme Court recognized the evidentiary sanctity of dying

declaration where circumstances establish that the same was made voluntarily and truthfully.

12.It is equally settled that a dying declaration need not necessarily be made under immediate expectation of death. In “Wazir Gul versus The State” reported as 1976 SCMR 471 and “Zarif Khan versus The State” reported as PLD 1977 Supreme Court 612, the august Supreme Court held that expectation of immediate death is not a sine qua non for admissibility of dying declaration.

Similarly, FIR lodged by injured person himself, who subsequently succumbs to injuries sustained during occurrence, can legally be treated as dying declaration if proved in accordance with law.

Reference in this regard may be made to 1990 SCMR 588, PLD 2003 Supreme Court 635, PLD 2006 Supreme Court 186 and 2011 PCr.LJ

13.The principles for determining genuineness and reliability of dying declaration have consistently been elaborated by superior Courts. In the celebrated judgment rendered by the Hon’ble Lahore High Court in “Taj Muhammad and

others versus The State” reported as PLD 1960 Lahore 723, it was held that if a dying declaration is found to be genuine and true, it can by itself form sufficient basis for conviction. It was further held that some of the principal tests for judging veracity of dying declaration are whether intrinsically it rings true, whether there existed any chance of mistaken identity, whether the maker of declaration was physically and mentally capable of making statement, whether the statement was free from prompting or tutoring from outside influence and whether the same remained consistent with other evidence and circumstances of the case.

14.Likewise, this Court in “Zabta Khan versus The State” reported as PLD 1963 (W.P.)

Peshawar 66 adopted and reiterated the above principles. Similarly, in “Abdur Rahim versus The State” reported as 1997 PCr.LJ 1274, the criteria for evaluating evidentiary worth of dying declaration was further elaborated in the following terms:-

(i)Whether there was no chance of mistaken identity;

(ii)Whether deceased was capable of making statement;

(iii)After how much time of sustaining injury the statement was made;

(iv)Whether the statement rings true;

(v)Whether it was free from prompting or outside influence; and

(vi)Whether deceased was a person of questionable character.

15.The august Supreme Court of Pakistan in “Muhammad Afzal versus Faqir and others” reported as PLD 1984 Supreme Court 375 further observed that merely because injured person had sustained serious injuries, it cannot automatically be presumed that he was incapable of making statement, particularly where medical evidence establishes that injured remained conscious and fit to communicate. The august Supreme Court emphasized that medical opinion and surrounding circumstances are of decisive importance while assessing truthfulness of dying declaration.

16.Similarly, in “Abdul Razik versus The State” reported as PLD 1965 Supreme Court 151, it was held that though dying declaration is admissible under law, however, its acceptance or rejection

ultimately depends upon judicial evaluation based upon ordinary human conduct, surrounding circumstances and intrinsic worth of statement itself.

17.Examined in the light of the above settled principles, the dying declaration embodied in the Murasila/FIR in the present case fully satisfies all legal requirements necessary for placing reliance upon the same. Firstly, there existed no possibility of mistaken identity because parties were admittedly known to each other prior to occurrence. Secondly, the statement was made immediately after occurrence at the earliest possible opportunity leaving hardly any time for consultation, deliberation or fabrication. Thirdly, the prosecution evidence consistently establishes that deceased Faizan Zeb was conscious and mentally fit to make statement at the relevant time.

PW-3 Muhammad Riaz ASI categorically stated that injured Faizan Zeb himself narrated the occurrence to him at hospital, while PW-11 Dr.

Usman specifically deposed that although injured was in critical condition, however, he was

conscious. Even during cross-examination, the doctor stated that despite injury to lung, an injured person could still speak. Fourthly, the statement made by deceased Faizan Zeb intrinsically rings true and remained fully consistent with the ocular account subsequently furnished by injured Danish (PW-13) and eyewitness Mohsin Ali (PW-14). The role attributed by deceased to accused Mubarak Shah and accused Yaqoob Khan remained consistent throughout prosecution evidence and materially corresponded with medical as well as forensic evidence available on record. Fifthly, there is nothing on record suggesting that the statement was outcome of tutoring, prompting or external influence. On the contrary, the promptness with which the report was lodged itself excludes possibility of concoction.

18.The deceased in his dying declaration specifically narrated that accused Mubarak Shah fired at him causing firearm injury on his chest, whereas accused Yaqoob Khan caused firearm injury to injured Danish. This narration was subsequently corroborated by injured witness

Danish (PW-13), who also stated that accused Mubarak Shah first inflicted bottle blow upon him whereafter accused Yaqoob Khan fired at him causing firearm injury on his thigh and subsequently accused Mubarak Shah fired at deceased Faizan Zeb. Likewise, eyewitness Mohsin Ali (PW-14) furnished substantially same account of occurrence. Thus, the dying declaration not only remained intrinsically trustworthy but also received independent corroboration from ocular, medical and forensic evidence.

19.In the circumstances discussed above, we are of the considered view that the statement of deceased Faizan Zeb embodied in the Murasila/FIR constitutes a truthful, voluntary and reliable dying declaration within contemplation of Article 46 of the Qanun-e-Shahadat Order, 1984 and the same can safely be relied upon as a substantive piece of evidence against the accused persons.

20.The dying declaration of deceased Faizan Zeb further receives substantial corroboration from testimony of injured witness Danish (PW-13). It is

by now well settled that testimony of an injured witness carries its own sanctity and evidentiary worth because his presence at the place of occurrence stands established through injuries sustained by him during the same transaction. An injured witness ordinarily would not substitute actual offender and falsely implicate an innocent person at the cost of allowing real culprit to escape.

21.Injured Danish (PW-13) furnished a straightforward, natural and confidence inspiring account of occurrence. He categorically deposed that on the day of occurrence he along with deceased Faizan Zeb and witness Mohsin was returning from work and when they reached at Thandi Khoi, accused Mubarak Shah and accused Yaqoob Khan started altercation with them.

According to him, accused Mubarak Shah picked up a bottle and struck the same on his head.

Thereafter, accused Yaqoob Khan took out a pistol and fired at him causing firearm injury on his left thigh. Subsequently, accused Mubarak Shah drew

out pistol and fired at deceased Faizan Zeb causing firearm injury on the right side of his chest.

22.The testimony of injured Danish remained consistent on all material particulars regarding date, time, place, manner of occurrence and identity of assailants. Despite lengthy and searching cross-examination, no material contradiction, improvement or infirmity could be pointed out in his statement. His presence at the place of occurrence stands conclusively established through firearm injury sustained by him during same occurrence, which was medically examined immediately thereafter.

23.The august Supreme Court of Pakistan in the case of “Ansar and others versus The State” reported as 2023 SCMR 929 held that testimony of injured witness supported by medical evidence clearly establishes his presence at place of occurrence and such testimony ordinarily carries strong probative force. Similarly, in “Altaf Hussain versus The State” reported as 2025 SCMR 1427, it was held that injured witness enjoys a special status because injury sustained by

him during occurrence constitutes an unimpeachable circumstance regarding his presence at crime scene.

24.The prosecution version further finds corroboration from independent ocular witness Mohsin Ali (PW-14), who was specifically named in the FIR as witness of occurrence. He fully supported prosecution case and deposed that on relevant day he along with deceased Faizan Zeb and injured Danish was returning from work and reached at Thandi Khoi where altercation took place between parties. He further stated that accused Mubarak Shah inflicted bottle blow upon Danish whereafter accused Yaqoob Khan fired at Danish causing firearm injury on his leg and subsequently accused Mubarak Shah fired at deceased Faizan Zeb causing firearm injury on right side of chest.

25.PW-14 Mohsin Ali further deposed during cross-examination that both injured persons were shifted to hospital in a single taxi. This aspect materially corroborates testimony of injured Danish regarding shifting of injured persons to

hospital immediately after occurrence and recording of report by deceased Faizan Zeb at hospital. The ocular account furnished by PW-13 and PW-14 remained in complete harmony with each other and no material discrepancy could be pointed out therein.

26.The ocular account furnished by prosecution witnesses further finds complete support from medical evidence. PW-11 Dr. Usman medically examined injured Danish as well as injured Faizan Zeb immediately after occurrence and noted firearm injuries on their respective persons. Injury sustained by injured Danish on left thigh fully corresponds with ocular account regarding role attributed to accused Yaqoob Khan. Likewise, firearm injury sustained by deceased Faizan Zeb materially supports prosecution case that accused Mubarak Shah fired at him during occurrence.

27.Subsequently, PW-7 Dr. Ijaz Ahmad conducted postmortem examination upon dead body of deceased Faizan Zeb and opined that death occurred due to firearm injury damaging vital organs resulting in hemorrhagic shock and

hypoxia. The medical evidence thus fully corroborates prosecution version regarding seat of injury, nature of weapon used and manner of occurrence.

28.Apart from ocular and medical evidence, prosecution case also receives substantial corroboration from forensic and recovery evidence. The investigation officer during inspection of place of occurrence recovered blood- stained earth along with three empties of .30 bore pistol and four empties of 9 mm pistol from spot.

Thereafter, .30 bore pistol allegedly used by accused Mubarak Shah was recovered on his pointation on 18.07.2021, whereas 9 mm pistol was recovered from accused Yaqoob Khan on 05.08.2022. Both the recovered weapons along with crime empties were sent to Forensic Science Laboratory for examination.

29.The report of Forensic Science Laboratory returned positive wherein empties recovered from place of occurrence were found to have been fired from respective recovered weapons. The positive forensic report constitutes an important

corroborative piece of evidence connecting accused persons with commission of offence.

Similarly, blood-stained articles secured from spot and clothes of injured/deceased were also taken into possession during investigation and same further supported prosecution case.

30.It is significant to observe that defence failed to establish any previous enmity, ill-will or ulterior motive on part of deceased or injured witnesses for falsely implicating accused persons in such a serious offence while sparing actual culprits. The prosecution witnesses remained consistent, natural and confidence inspiring throughout. Their testimony finds full support from prompt FIR treated as dying declaration, medical evidence, recovery of crime empties, positive forensic report and surrounding circumstances of case. Hence, we are satisfied that prosecution has successfully established participation of accused persons in occurrence to extent of their respective roles beyond shadow of reasonable doubt. Reference may be made to the case of “Ali Taj and another Vs. The State” reported as 2023 SCMR 900 and

“Muhammad Shabbir and others Vs. The State” reported as 2020 SCMR 1206.

31.However, despite the fact that prosecution succeeded in proving occurrence and participation of accused persons, the crucial question requiring determination is whether the case falls within ambit of premeditated murder attracting extreme penalty or whether mitigating circumstances are available warranting lesser sentence. Admittedly, prosecution itself alleged that occurrence had taken place all of a sudden on a trivial issue. The FIR itself reveals that altercation and abuses started between parties at spot and thereafter unfortunate occurrence took place. No previous motive or enmity has been attributed by prosecution. Entire occurrence appears to have taken place at spur of moment without preplanning or premeditation.

32.It is also noteworthy that appellant Syed Mubarak Shah is not shown to be previous convict nor there is any evidence on record demonstrating his involvement in previous criminal cases of similar nature. Thus, possibility that he acted under sudden provocation and emotional excitement

cannot be ruled out. It is settled principle of criminal jurisprudence that where occurrence takes place at spur of moment without premeditation and mitigating circumstances are available, normal penalty of death may be substituted with imprisonment for life.

33.We are therefore of the considered view that present case is not one of extreme penalty.

Occurrence admittedly took place suddenly during altercation. There was no previous motive, no preplanning and no evidence of calculated design.

Hence, sentence of death awarded to appellant Syed Mubarak Shah under Section 302(b) PPC warrants reduction to imprisonment for life. In the case of “Muhammad Shabbir and others Vs. The State” reported as 2020 SCMR 1206, the honourable Supreme Court held that;

“In such like cases where the murders are committed as revenge depends upon human physiology. The human being a creature of the environment; therefore, he is governed by the background of the society from where he hails. Although this aspect do not cover the doctrine of provocation still the area and other

antecedent of persons are relevant factor while taking into account which might be suggesting for a moment where revenge can be regarded as mitigating circumstances, however, the question of sentence in each criminal case definitely has direct nexus with the particular circumstances of the said case. This principle was considered and relied upon by salutary judgment titled "Ajun Shah v. The State" (PLD 1967 Supreme Court 185). The learned High Court while handing down the judgment impugned before us has already taken care of all established principles of law and converted the sentences of each appellant from death to imprisonment for life which seems to us appropriate and in accordance with law.”

34.The next important question pertains to applicability of Section 34 PPC. Upon careful scrutiny of prosecution evidence, we are unable to persuade ourselves that prosecution succeeded in establishing shared common intention between appellants within contemplation of Section 34 PPC. Occurrence erupted suddenly during altercation. Role attributed to each accused is distinct and individual. Prosecution evidence does

not establish any preconcert or prior meeting of minds. Above all, the accused charged alogn with the present appellants have been acquitted of the charge by the learned trial Court through the same judgment. In such circumstances, principle of individual liability would apply and each accused would be liable only for his own overt act.

35.So far as appellant Syed Mubarak Shah is concerned, specific firearm injury causing death of deceased Faizan Zeb is attributed to him.

Therefore, his conviction under Section 302(b) PPC is maintained. However, for reasons already discussed, sentence of death awarded to him is reduced to imprisonment for life. He shall also pay compensation of Rs.500,000/- to legal heirs of deceased under Section 544-A Cr.P.C. and in default whereof, shall further undergo simple imprisonment for six months.

36.However, since common intention has not been established, therefore, conviction and sentence of appellant Syed Mubarak Shah under Sections 324/34 PPC and 337-F(iii)/34 PPC are hereby set aside.

37.So far as appellant Yaqoob Khan is concerned, admittedly no injury to deceased Faizan Zeb has been attributed to him. His conviction under Section 302(b) PPC read with Section 34 PPC is therefore not sustainable and same is hereby set aside. Nevertheless, prosecution evidence consistently establishes that appellant Yaqoob Khan caused firearm injury to injured Danish. His conviction under Section 324 PPC is therefore maintained. However, sentence awarded to him under Section 337-F(iii) PPC as Ta’zir is set aside, whereas conviction to extent of payment of Daman is maintained.

38.Consequently, Criminal Appeal No.197- A/2024 filed by appellant Syed Mubarak Shah is partly allowed in the manner that while maintaining his conviction under Section 302(b) PPC, his sentence of death is reduced to imprisonment for life along with compensation of Rs.500,000/- payable to legal heirs of deceased under Section 544-A Cr.P.C. and in default whereof, to further undergo simple imprisonment for six months. His conviction and sentence under

Sections 324 PPC and 337-F(iii) PPC are set aside.

Benefit under Section 382-B Cr.P.C. is extended to him.

39.Criminal Appeal No.201-A/2024 filed by appellant Yaqoob Khan is also partly allowed. His conviction and sentence under Section 302(b) PPC read with Section 34 PPC are set aside. His sentence under Section 337-F(iii) PPC as Ta’zir is also set aside; however, conviction under Section 337-F(iii) PPC to extent of Daman is maintained.

Similarly, his conviction and sentence under Section 324 PPC are maintained. Benefit under Section 382-B Cr.P.C. is also extended to him.

40.Resultantly, Murder Reference No.05- A/2024 is answered in negative.

Announced:

JUDGE

JUDGE

/*Tufail. P.S*/ Hon’ble Mr. Justice Syed Mudasser Ameer Hon’ble Mr. Justice Aurangzeb