Yousaf Vs The state & another

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Cr. A No. 40/2025

Yousaf Vs The State & another

JUDGMENT

Date of hearing: 22.01.2026

Appellant by: Mr. Fida Muhammad Yousafzai, Advocate.

The State by: Mr. Ayub Zaman, AAG.

Respondent / Complainant by Mr. Muhammad Sajid Khan, Advocate.

SAHIBZADA ASADULLAH, J.- Through this criminal appeal, appellant Yousaf has questioned the judgment of the learned Additional Sessions Judge-I, Lahor, District Swabi dated 11.01.2025 rendered in case FIR No. 111 dated 16.02.2022 under sections 302/427/34 PPC registered at Police Station Yar Hussain, District Swabi whereby, the appellant was convicted and sentenced as under: -

“Under section 302(b) PPC to imprisonment for life as Tazir and to pay a fine of Rs.5,00,000/- (rupees five lac) to the legal heirs of the deceased within the meaning of section 544-A CrPC and in default whereof, to further undergo simple imprisonment for six months.

Benefit of section 382-B Cr.P.C is extended in favour of the appellant.

2.According to the prosecution story, as reflected in the FIR are that on 16.02.2022, complainant/deceased then injured Muhammad Tariq, reported the matter at Yar Hussain Hospital to the effect that he, alongwith Usman, had come to village Yar Hussain in the motorcar of Usman in connection with some work; that after completing the said work, they were returning to their homes, when they alighted therefrom for the purpose of purchasing groceries, in the meantime, accused Yousaf, alongwith Sardar, arrived at the spot on motorcycle and started firing at him, as a result

whereof he sustained firearm injuries; that due to the firing made by the accused, the motorcar also sustained damage; that motive behind the occurrence was stated to be a domestic dispute;

that the accused were charged for the commission of the offence hence, the present FIR. Subsequently, the injured Muhammad Tariq succumbed to his injuries; therefore, Section 324 PPC was converted into Section

302 PPC.

3.It is pertinent to mention that soon after the occurrence, the accused went into hiding and during this period, proceedings under section 512 CrPC was completed on 22.07.2022.

It was upon arrest of the appellant that challan was submitted before the Court. Provisions of section 265-C CrPC were complied with and the appellant was charge sheeted, to which he pleaded not guilty and claimed trial. In order to substantiate its case, the prosecution produced and examined as many as ten (10) witnesses.

After closure of prosecution evidence, statement of the appellant was recorded under section 342 CrPC, wherein he posed innocence, however,

neither he wished to be examined on Oath as required under section 340 (2) Cr.PC, nor wanted to produce evidence in defence. The learned trial Court, after full-fledged trial convicted and sentenced the appellant vide the impugned judgment hence, the instant appeal.

4.Arguments heard and record

scanned through with valuable assistance of the learned counsel.

5.In the shocking incident, the

deceased then injured after sustaining firearm injuries, was immediately shifted to the hospital, where he reported the occurrence. The injury sheet was prepared and the deceased was medically examined by the doctor. His medico- legal certificate was issued and, due to the seriousness of his condition, he was referred to Bacha Khan Medical Complex, Swabi for specialized treatment. After receiving copy of the FIR, the Investigating Officer visited the place of occurrence and, on the pointation of the eyewitness, prepared the site plan. During spot inspection, blood through cotton was recovered from the place of the deceased inside the

motorcar. The investigating officer also succeeded in collecting 03 empties of .30 bore and the vehicle was also taken into possession.

The recovered empties were sent to the Firearms Expert, whose report confirmed that all the empties were fired from one and the same weapon. Unfortunately, the injured succumbed to his injuries on the same day, whereupon Section 302 PPC was added. The accused managed to abscond, but was subsequently arrested by the local police of Police Station Kalu Khan, District Swabi, while under treatment in an injured condition at the hospital.

After completion of investigation, the appellant was sent up for trial and, upon conclusion thereof, was convicted and sentenced vide the impugned judgment.

6.This Court is now required to

examine whether the learned trial court was justified in reaching to such a conclusion and whether the evidence was properly appreciated.

The learned trial court made a detailed assessment regarding the involvement of the appellant in the occurrence. However, this Court

must independently determine whether the findings are sustainable and whether sufficient corroborative material, apart from the dying declaration, exists on record to establish the presence of eyewitnesses at the spot and to support the prosecution version. It is true that conviction can be based solely on a dying declaration; however, it is equally well-settled that the prosecution must establish that the deceased made the statement voluntarily, truthfully, and in a fit state of mind, and that the same inspires confidence and satisfies the legal parameters. An important aspect of the case, which cannot be overlooked, is that a real brother has been charged with the murder of his own brother alongwith another co-accused therefore, this Court is inclined to examine whether the possibility of substitution exists, particularly when the case hinges upon the dying declaration of the deceased. In order to avoid any miscarriage of justice, it is imperative to minutely scrutinize the entire record and reappraise the evidence available on file.

7.The crucial questions which now fall for determination are whether the medical evidence supports the prosecution version and whether the prosecution has succeeded in bringing home the guilt of the appellant beyond reasonable doubt. There is no denial of the fact that a real brother, alongwith another co- accused, has been charged with the murder of his own brother; however, this circumstance alone does not dispense with the obligation of the prosecution to collect independent and reliable evidence in support of its claim and to produce convincing material sufficient to establish the guilt of the accused. It is also not disputed that the occurrence was reported by the deceased himself while in an injured condition however, an interesting circumstance emerges from the record that at the time of the occurrence, the deceased was seated in a motorcar belonging to one Usman, who accompanied the injured to the hospital, surprisingly, he neither verified nor supported the version given by the deceased. Instead, for the purpose of verification of the FIR, the

widow of the deceased visited the hospital, whereafter the report was formally verified by her. This unusual conduct requires careful consideration. For proper appreciation of the manner of occurrence, this Court deems it necessary to examine the statement of the deceased, which, upon his death, acquired the status of a dying declaration. In his report, the deceased explained the purpose of his presence at the place of occurrence and his company with one Usman. He further stated that Usman had boarded the vehicle for the purpose of purchasing grocery when the accused arrived at the spot and fired at him. This Court is required to assess whether the incident occurred in the manner and at the time alleged by the prosecution and to examine why PW Usman neither supported the prosecution version nor was produced before the Court to record his statement, either in favour of or against the prosecution case. In order to evaluate the peculiar circumstances of the case, it is also essential to consider whether any previous enmity or motive was established on record to

show that the accused were pursuing the deceased and that any convincing cause for the commission of the offence was brought forth.

From the inception of the case till its conclusion, the matter appears to remain shrouded in ambiguity, as even the report of the deceased does not clearly disclose the circumstances, which allegedly led the accused to commit the murder. During investigation, the Investigating Officer visited the spot and recovered blood through cotton from inside the motorcar, which corroborates the fact that the deceased was fired upon while seated in the vehicle. He also recovered three empties of .30 bore lying scattered at the place of occurrence, which were subsequently sent to the Firearms Expert. The report received confirmed that all three empties were fired from one and the same weapon. It is pertinent to note that the deceased sustained three firearm injuries and exactly three empties were recovered from the spot. When the number of injuries is juxtaposed with the number of empties and the forensic report, no ambiguity remains that all the injuries were caused by a

single weapon. However, the prosecution attributed the role of firing to two accused persons. In such circumstances, the recovery of only three empties create serious doubt regarding the alleged participation of more than one assailant. This exaggeration in the number of accused appears to have adversely affected the credibility of the prosecution case and has raised a serious question in the judicial mind of this Court as to whether the occurrence could be attributed to a single individual, rather than multiple accused as alleged. This particular situation has been dealt with by the Apex Court in case titled “Muhammad Zaman Vs The State and others” (2014 SCMR 749) which reads as follows: -

“The number of assailants in the circumstances of the case appears to have been exaggerated. It seems that most of the persons including the respondents have been charged because of previous enmity.”

8.Another significant aspect which warrants consideration is the non-examination of Usman, who admittedly accompanied the injured to the hospital. No plausible explanation has been offered by the prosecution for abandoning this material witness. This Court is unable to comprehend what persuaded the prosecution to withhold such a crucial witness and on what basis it was presumed that his testimony would not support the prosecution version. When the physical circumstances of the case do not fully align with the narrative of the complainant and when the medical and forensic evidence points towards exaggeration in the prosecution story, this Court is constrained to apply extra caution while assessing the culpability of the accused solely on the strength of the dying declaration, which itself requires careful scrutiny to determine its reliability and evidentiary worth. The report was verified by the widow of the deceased. Admittedly, she being a housewife, was present at her residence in village Yaqoobi at the time of occurrence.

Thereafter, she was brought to the hospital by

one Sajjad, where she verified the report of the complainant. Mst. Baseerat was examined as PW-08. She stated that on the day of occurrence she was present at her house and was telephonically informed by the alleged eyewitness regarding the incident, whereupon she proceeded to the hospital alongwith Sajjad.

Upon arrival, she found the police present and the injured deceased in the process of lodging the report. During cross-examination, this witness was confronted on a crucial aspect, namely, the source of information regarding the occurrence. However, she failed to give a convincing explanation and could not clarify as to why she had not disclosed the name of the informant in her statement recorded under section 161 CrPC. She was further contradicted with her previous statement regarding the identity of the person, who brought her to the hospital, the person who informed her about the occurrence, the time at which such information was received, the distance between her house and the place of occurrence, and the distance between her residence and the hospital.

Although the deceased was admittedly shifted to the hospital promptly, this Court is constrained to examine how, within such a short span of time, Mst. Baseerat could have reached the hospital, particularly when her residence is situated approximately three to four kilometers from the place of occurrence and about four to five kilometers from the hospital. These circumstances create a serious doubt regarding the timing of her arrival. The attending circumstances suggest that her presence at the hospital was subsequently procured. When this aspect is viewed in conjunction with the fact that it was she who verified the report, this Court is persuaded to infer that either the report was not prepared at the stated time or that it was not recorded at the instance of the injured deceased in the manner alleged by the prosecution. Furthermore, this Court is also required to examine the inter-se relationship between the accused and the deceased and to ascertain what material was brought on record by the Investigating Officer to establish motive.

The prosecution has failed to convincingly

explain what compelled a real brother to commit the murder of his own brother. Although Mst.

Baseerat was examined at length and attempted to justify her presence at the hospital at the time of registration of the report, but this Court finds it difficult to comprehend how she could reach the hospital at the precise time when the injured deceased was allegedly lodging the FIR, considering the distance of her village from the place of occurrence and the hospital. Her arrival at the hospital under such circumstances is a factor which puts this Court on guard and necessitates the application of greater caution while evaluating the evidentiary worth of her testimony and while determining whether the report was in fact lodged at the stated time and duly verified by her simultaneously with the recording of the statement of the injured deceased.

9.We do not deny that conviction can be based solely upon a dying declaration and that, if such a statement inspires confidence, it may, by itself, suffice to sustain conviction.

However, we cannot ignore the fact that, with

the passage of time, the evidentiary value of such declarations has undergone significant scrutiny. In earlier times, society was considered morally upright, and it could reasonably be assumed that a dying person would not speak falsehood. Yet, with the gradual erosion of moral values and changing social circumstances, it has become imperative that conviction cannot rest solely upon a dying declaration, rather corroboration through independent and reliable evidence is now essential. It remains true that a dying person is unlikely to tell a lie, but it is equally possible that the report attributed to the deceased may have been influenced, assisted, or even presented by others, including legal heirs, under the guise that it was made by the injured deceased. In such circumstances, the Court must be vigilant and cautious. Accordingly, it is incumbent upon the prosecution not only to rely upon the dying declaration but also to adduce independent evidence to substantiate and corroborate it. This is particularly critical where the deceased is no longer available for cross- examination, and the integrity and veracity of

the declaration cannot be tested directly. Now, the moot question for determination is whether it was, in fact, the deceased who reported the occurrence while in an injured condition. In order to properly appreciate this aspect of the case, it is essential to examine the testimony of the police officer to whom the report was allegedly made, examined as PW-01, as well as the medical officer (PW-2), who initially examined the injured, prepared his medico-legal certificate, and thereafter conducted the post- mortem examination on the deceased. Both witnesses were cross-examined on the crucial issue of whether the injured deceased was physically and mentally capable of narrating the occurrence. PW-01, the scribe, explained that upon receiving information regarding the incident, he proceeded to the hospital, by which time the deceased had already been shifted there. He further stated that the report was made by the deceased in an injured condition and was subsequently verified by the widow of the deceased. The witness was also asked whether any certification from the medical officer was

obtained to confirm the ability of the deceased to report the incident. He admitted that no such certificate had been sought but attempted to assure the Court that the matter had been duly endorsed by the doctor. In the present case, the statement of the medical officer bears critical importance, as he was the first to examine the deceased in injured condition and found him conscious and oriented. To determine whether the injured deceased was capable of making a statement and was in a fit state of mind, it is essential to carefully examine the observations and symptoms noted by the doctor prior to his death. According to the medical officer, the patient initially presented in shock, with profuse bleeding, tachycardia, and low blood pressure.

Despite being drowsy, he was oriented in time and space. The doctor highlighted the nature and location of the wounds and described the physical condition of the deceased at the time of his examination. The opinion of the doctor, reproduced verbatim, reads as follows:

"In my opinion, death occurred due to firearm injury to major

blood vessels in the neck, causing excessive bleeding and airway compromise."

During cross-examination, the doctor admitted that he had not recorded the Glasgow Coma Scale (GCS) of the deceased at the time of examination. He also noted that there was a corresponding exit wound at the midline of the thyroid with active bleeding. Given these circumstances, several questions arise. Can a declaration attributed to the deceased be relied upon as the sole basis for conviction when the medical officer, though noting consciousness and orientation, did not record formal GCS findings? What weight should be attached to the opinion regarding the injuries, their severity, and their impact on the capacity of the deceased to comprehend and narrate events accurately?

To properly evaluate the evidentiary value of the alleged dying declaration, this Court must take into consideration the nature and extent of the injuries, the physical and mental condition of the deceased at the time of reporting, and the fact that certain critical medical assessments

were not formally documented. These aspects are essential in determining whether the statement of the deceased can inspire confidence sufficient to sustain conviction. The sanctity attached to a dying declaration arises not merely from the solemnity of approaching death, but from the presumption that the declarant was capable of understanding the questions posed, responding coherently, and narrating the facts accurately, where this important requirement is damaged, the evidentiary value of the statement stands materially diluted. In the present case, it was essential for the examining doctor to have recorded the Glasgow Coma Scale (GCS) while determining the consciousness of the deceased.

The GCS is a standardized neurological tool, internationally recognized, for objectively assessing the level of consciousness. Its exclusion raises serious doubt regarding the ability of the deceased to comprehend and communicate the incident reliably at the time of reporting. Consequently, in the absence of such a formal assessment, the credibility value of the alleged dying declaration cannot be taken at face

value and must be evaluated with heightened caution. In the present case, the medical officer admitted that no GCS score was recorded at the time when the fitness certificate was issued.

This exception is not a mere technical lapse. In cases involving serious injuries, particularly those affecting the airway and neck region, an objective neurological assessment becomes indispensable. A bare endorsement that the patient was “conscious” without supporting clinical parameters renders the certification subjective and unverifiable. This Court observes that consciousness in medical terms does not necessarily imply mental fitness in legal terms.

A patient may open eyes or utter words, yet suffer from hypoxia, shock or neurological impairment, thereby damaging comprehension and judgment. The non-recording of GCS thus deprives the Court of an objective benchmark to assess whether the deceased possessed sufficient cognitive clarity to make a reliable statement.

The evidence on record establishes that the airway of the injured was compromised. Airway compromise has direct physiological

consequences on cerebral oxygenation. Reduced oxygen supply to the brain results in hypoxia, which manifests in confusion, restlessness, delayed responses and reduced decision-making.

Medical jurisprudence recognizes that even transient hypoxia can affect higher cortical functions necessary for coherent narration. In such circumstances, the ability of the declarant to sustain attention, comprehend questions and provide uninterrupted responses becomes doubtful. This Court is constrained to observe that the primary medical priority in airway compromise is stabilization of respiration, not recording of statements. Proceeding to record a dying declaration without first ensuring adequate oxygenation casts serious doubt on the mental fitness of the declarant at the relevant time. The injury to the midline thyroid region carries grave anatomical implications. This area houses vital structures including the larynx, vocal cords, trachea and major blood vessels.

Bleeding from this region not only threatens airway patency but also compromises phonation. Voice production requires

coordinated airflow through the vocal cords.

Injury, swelling or hematoma formation in the thyroid and laryngeal region impairs vocal cord vibration, resulting in hoarseness, weak voice or inability to articulate clearly. Furthermore, active bleeding leads to hypovolemic shock, which reduces cerebral perfusion, reduced blood supply to the brain further impairs consciousness and responsiveness. Thus, the Court finds that the combination of airway compromise and thyroid region injury creates a medically hostile environment for the making of a clear, voluntary and coherent statement.

Human speech intelligibility depends upon stable respiratory airflow and intact laryngeal function, enabling production of undisturbed acoustic frequencies. In cases where the airway is compromised and the laryngeal region is injured, the frequency modulation required for articulate speech is physiologically disturbed. In such conditions, the ability of the declarant to speak audibly, continuously and distinctly becomes lessened. This raises the possibility that the recorder may have misunderstood,

misheard or reconstructed responses based on assumption rather than clear articulation. The prosecution has not placed on record any evidence showing that the declarant was able to speak in uninterrupted, audible and spontaneous manner. No contemporaneous note exists regarding voice clarity, respiratory distress or duration of recording. The absence of GCS, airway compromise, and thyroid injury each raise doubt. Collectively, they create a serious infirmity in the prosecution version. When such is the state of affairs, then this court finds that the Mental fitness was not objectively assessed, oxygenation status was not documented, speech capacity was medically compromised, and the certification of fitness was mechanical in nature, such circumstances mandate strict judicial caution. Where the dying declaration is recorded under medically unstable conditions, the settled rule of prudence requires corroboration from independent evidence. In the absence of such corroboration, reliance on the dying declaration alone would be unsafe. When medical science itself casts doubt upon the capacity of the

declarant to perceive, comprehend and communicate, the benefit of such doubt must necessarily accrue to the accused. Accordingly, the dying declaration in the present case does not inspire the degree of confidence required for sustaining conviction on its sole basis. It may at best be treated as a weak piece of evidence requiring strong corroboration, which is conspicuously absent. Similar circumstances came before the Supreme Court of India which were answered in the following manner in a judgment passed in criminal appeal No. 646 of 2006 titled “Sher Singh and others Vs State of Punjab” where reliance was placed on a case titled “Paparambaka and Ors. State of Andhra Pradesh” where the like circumstances were dealt with in the following manner:

“It was held by this Court that although the doctor had appended a certificate to the dying declaration to the effect that the patient was conscious while recording the statement, yet it would not be safe to accept the dying declaration as true and genuine, since the

certificate of the doctor was only to the effect that the patient was conscious while recording the statement. It is necessary for the prosecution to prove that the dying declaration is true, voluntary and free from all doubts. But the doctor’s certificate only said that the patient was conscious, it did not say that the patient was in a fit state of mind. In medical science there are two stages one of consciousness and the other of fit state of mind. The Court did not rely upon the dying declaration as the Court had also found serious lacunae in other material particulars”.

10.The medical evidence does not support the prosecution version, as the effective role of firing has been attributed to both accused persons, whereas the seat and nature of the injuries clearly indicate that the act was committed by a single assailant. This conclusion is further reinforced by the report of the Firearms Expert, which confirms that all the recovered empties were fired from one and the

same weapon. The dimensions, number, and nature of the injuries sustained by the deceased further falsify the prosecution claim regarding the joint participation of appellant and the absconding co-accused in the commission of the offence. After carefully examining the medico- legal documents and the testimony of the medical officer, this Court has reached the conclusion that the medical evidence is in direct conflict with the ocular account. It is settled law that medical evidence is corroborative in nature and, by itself, may not be sufficient to determine culpability in the absence of reliable ocular evidence. However, where the prosecution succeeds in producing trustworthy and confidence-inspiring evidence, such conflict may not prove fatal. In the present case, however, not only the testimony of the medical officer regarding the nature and trajectory of the injuries, but also the laboratory and forensic reports, clearly belie the version put forth by the complainant. This irreconcilable contradiction between the medical evidence and the alleged dying declaration has further weakened the

prosecution case and has damaged its credibility. Reliance is placed on the judgment of the apex court titled “Muhammad Nawaz Versus The State” (2025 SCMR 1053), wherein, it has been held as under:

“The abovementioned conflict between the ocular account and the medical evidence shows that in-fact the prosecution eye- witnesses were not present at the spot at the relevant time because, had they been present at the time of occurrence then they should have given the correct number of injuries sustained by Mst. Azran Bibi (deceased).”

11.The attending circumstances of this case inexorably lead to the conclusion that the prosecution has failed to prove the guilt of the appellant beyond reasonable doubt. The learned trial court, in delivering the impugned judgment, failed to properly appreciate the evidence on record and fell into error both on facts and law.

In these circumstances, the impugned judgment cannot be sustained and warrants interference by this Court. Accordingly, the instant criminal

appeal is allowed. The impugned judgment is hereby set aside, and the appellant is acquitted of the charge. He shall be released forthwith, if not required to be detained in connection with any other matter.

Announced

JUDGE

JUDGE

*Muhammad Fiaz* *D.B* Hon’ble Mr. Justice Sahibzada Asadullah, J Hon’ble Mr., Justice Dr. Khurshid Iqbal, J