IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
PRESENT: 
Mr. Justice Asif Saeed Khan Khosa 
Mr. Justice Qazi Faez Isa  
Mr. Justice Tariq Parvez 
 
 
Criminal Appeals No. 235 and 236 of 2010 
(Against the judgment dated 08.04.2010 passed by the Lahore 
High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeal No. 
158 of 2006 and Murder Reference No. 486 of 2006)  
 
 
Muhammad Ameer 
 
(in Cr. A. 235 of 2010) 
Riyat Khan 
 
 
(in Cr. A. 236 of 2010) 
…Appellants 
 
 
 
 
 
versus 
Riyat Khan, etc.  
 
(in Cr. A. 235 of 2010) 
The State  
 
 
(in Cr. A. 236 of 2010) 
 
 
 
     …Respondents 
                  
 
For the appellants: 
Mr. Sana Ullah Zahid, ASC 
Mr. Ejaz Muhammad Khan, AOR 
(late) (in Cr. A. 235 of 2010) 
Syed Zulfiqar Abbas Naqvi, ASC 
Mr. Arshad Ali Ch., AOR (absent) 
(in Cr. A. 236 of 2010) 
 
For respondent No. 1: 
 
Syed Zulfiqar Abbas Naqvi, ASC 
Mr. Arshad Ali Ch., AOR (absent) 
(in Cr. A. 235 of 2010) 
 
For the State: 
Mr. Ahmed Raza Gillani, Additional 
Prosecutor-General, Punjab 
 
(in both cases) 
 
Date of hearing: 
 
 
26.04.2016  
 
 
 
JUDGMENT 
 
Asif Saeed Khan Khosa, J.: 
 
Criminal Appeal No. 236 of 2010 
 
At about 12.00 Noon on 24.03.2004 Riyat Khan appellant 
had allegedly stabbed one Muhammad Afzal on the left side of his 
Criminal Appeals No. 235 and 236 of 2010 
2 
chest in Chak Thoa Mahram Khan within the area of Police Station 
Saddar, Talagang, District Chakwal which injury had proved fatal 
and the said Muhammad Afzal died two days later, i.e. on 
26.03.2004. In respect of the said murder FIR No. 33 was 
registered at the above mentioned Police Station on 26.03.2004 on 
the basis of a dying declaration allegedly made by Muhammad 
Afzal deceased before the local police in a hospital. After a full-
dressed trial the appellant was convicted by the trial court for an 
offence under section 302(b), PPC and was sentenced to death and 
to pay compensation but on appeal his sentence of death was 
reduced by the High Court to imprisonment for life. Hence, the 
present appeal by leave of this Court granted on 25.05.2010.  
 
2. 
Leave to appeal had been granted in this case so as to 
reappraise the evidence in order to examine as to whether the 
prosecution had succeeded in establishing the appellant’s guilt 
beyond reasonable doubt or not. With the assistance of the learned 
counsel for the parties we have gone through the record of the case 
minutely.  
 
3. 
The linchpin of this case was a dying declaration attributed 
to Muhammad Afzal deceased which declaration he had allegedly 
made before the local police in an injured condition in a hospital 
on 24.03.2004 and which was subsequently made the basis of an 
FIR two days later, i.e. on 26.03.2004. It has been found by us to 
be rather intriguing that if the dying declaration had actually been 
made by the deceased on 24.03.2004 before the police itself then 
why an FIR had not been chalked out on the basis of the same 
during the next two days. Another factor sufficient to raise an 
eyebrow in the context of the dying declaration is that Dr. Nazir 
Ahmed (PW2), under whose medical care Muhammad Afzal 
deceased was when alive, had categorically stated before the trial 
court that the police had not recorded any statement of 
Muhammad Afzal deceased in his presence and he had gone on to 
state that Muhammad Afzal deceased had never made any 
statement before him about the alleged occurrence. A dying 
Criminal Appeals No. 235 and 236 of 2010 
3 
declaration is an exception to the hearsay rule and, thus, the same 
is to be scrutinized with due care and caution, particularly in the 
backdrop of the observations made by different Courts about 
veracity of a dying declaration in the Province of the Punjab and a 
reference in this respect may be made to the cases of Bakhshish 
Singh alias Bakhshi and others v. Emperor  (AIR 1925 Lahore 549), 
Tawaib Khan and another v. The State (PLD 1970 SC 13) and 
Usman Shah and others v. The State (1969 P.Cr.L.J. 317). In the 
case in hand it quite clearly appears that Muhammad Afzal 
deceased had no regard for the truth because he had categorically 
stated in the so-called dying declaration that he was taken to the 
hospital in an injured condition by Ghulam Abbas (PW9) and by 
one Noor Muhammad but the above mentioned doctor had 
contradicted the deceased by stating that the deceased had been 
brought to the hospital in an injured condition by a police 
constable 
and 
on 
that 
occasion 
no 
private 
person 
was 
accompanying the deceased. Even Ghulam Abbas (PW9) had given 
a big lie to Muhammad Afzal deceased by unambiguously stating 
before the trial court that he had not taken Muhammad Afzal 
deceased to the hospital in an injured condition at all. The other 
person who had statedly taken Muhammad Afzal deceased to the 
hospital in an injured condition was Noor Muhammad but the 
record of the case shows that the said person, though cited in the 
Calendar of Witnesses, had been given up by the prosecution as 
unnecessary. The legal inference to be drawn in that context is 
that if the said witness had entered the witness-box then he would 
not have supported the case of the prosecution. All this shows that 
either Muhammad Afzal deceased had economized with the truth 
while making his dying declaration or the dying declaration itself 
was a fabricated document which had been manufactured at some 
subsequent stage for the purposes of implication of the present 
appellant and to justify availability of the so-called eyewitnesses. In 
these peculiar circumstances we have decided not to place any 
reliance upon such a document.  
 
Criminal Appeals No. 235 and 236 of 2010 
4 
4. 
As already observed above, one of the eyewitnesses relied 
upon by the prosecution, i.e. Noor Muhammad had not been 
produced by the prosecution before the trial court and the ocular 
account was furnished in this case only by Ghulam Abbas (PW9). 
The said witness was a first cousin of Muhammad Afzal deceased 
and was admittedly a chance witness who ordinarily resided about 
one kilometer away from the place of occurrence. The stated 
reason for availability of this witness near the place of occurrence 
had never been established through any independent evidence at 
all. Apart from that the said witness had demonstrated an unusual 
conduct because according to him he had found the deceased in 
an injured condition, had shifted the deceased to the deceased’s 
house and had then gone to attend a marriage ceremony rather 
than taking the injured close relative to a hospital or informing the 
police about the incident. The said so-called eyewitness had not 
received any independent corroboration from the motive or from 
the alleged recovery of the weapon of offence inasmuch as no 
witness had been produced by the prosecution to prove the alleged 
motive and the memorandum of the alleged recovery of the weapon 
of offence had admittedly been signed by the recovery witnesses at 
the police station and not at the place of recovery whereat such 
memorandum had allegedly been prepared.  
 
5. 
For what has been discussed above a conclusion is 
inescapable and irresistible that the prosecution had failed to 
prove its case against Riyat Khan appellant beyond reasonable 
doubt. This appeal is, therefore, allowed, the conviction and 
sentence of the appellant recorded by the courts below are set 
aside and he is acquitted of the charge by extending the benefit of 
doubt to him. He shall be released from the jail forthwith if not 
required to be detained in connection with any other case.  
 
Criminal Appeal No. 235 of 2010 
 
6. 
As respondent No. 1 namely Riyat Khan has been acquitted 
by this Court today upon acceptance of his Criminal Appeal No. 
Criminal Appeals No. 235 and 236 of 2010 
5 
236 of 2010, therefore, the present appeal seeking enhancement of 
his sentence has lost its relevance. Dismissed.  
 
 
 
 
Judge 
 
 
Judge 
 
 
Judge 
 
Islamabad 
26.04.2016 
Approved for reporting.  
 
Arif 
