IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
PRESENT:  
Mr. Justice Manzoor Ahmad Malik 
Mr. Justice Syed Mansoor Ali Shah 
Mr. Justice Qazi Muhammad Amin Ahmed 
 
Criminal Appeals No.3-P & 4-P/2014 
(On 
appeal 
form 
the 
judgment 
dated 
02.10.2012 passed by the Peshawar High 
Court, Peshawar in Criminal Appeal No.698 of 
2011). 
 
Somaid 
(in Crl.A.3-P/2014) 
 
Ali Gohar @ Gohar Zaman 
(in Crl.A.4-P/2014) 
 
 
 
 
 
…Appellant(s) 
VERSUS 
Ali Gohar @ Gohar Zaman & another 
(in Crl.A.3-P/2014) 
 
The State & another 
(in Crl.A.4-P/2014) 
 
 
 
 
 
…Respondent(s) 
 
 
For the Appellant(s) 
: Mr. Astaghfirullah, ASC 
Mr. Muhammad Ajmal Khan, AOR 
(in Crl.A.3-P/2014) 
 
Mr. Ghulam Mohyuddin Malik, ASC 
Mr. Muhammad Zahoor Qureshi, AOR 
(in Crl.A.4-P/2014) 
 
 
 
For the State 
: Barrister Qasim Wadud,  
Additional Advocate General,  
Khyber Pakhtunkhwa 
Along with Respondent No.1  
in Crl.A.3-P/2014 
 
 
 
Date of Hearing 
: 30.04.2019 
 
JUDGMENT 
 
 
 
Qazi Muhammad Amin Ahmed, J.-  Criminal Appeal 
No.3-P/2014 
and 
Criminal 
Appeal 
No.4-P/2014, 
by 
the 
complainant’s son and convict respectively, through leave of the 
Court, arisen out of incident dated 22.9.2005 within the remit of 
Police Station Zaida, District Swabi; with a common thread, are 
being decided through this single judgment. 
Criminal Appeals No.3-P & 4-P/2014. 
 
 
 
 
 
2 
 
2. 
 
 Prosecution case is structured on the statement of 
Haji Muhammad Zamin Khan, deceased; he was on way back after 
attending a condolence meeting when Ali Gohar, appellant fired 
upon him, as result whereof he sustained four entry wounds with 
two exits. After making statement to the police; he succumbed to 
the injuries; the accused absconded; arrested belatedly he was put 
to trial; when indicted, claimed trial, resulting into his conviction 
under Section 302 of Pakistan Penal Code, 1860; he was sentenced 
to death as tazir vide judgment dated 2.12.2011; the learned 
Peshawar High Court maintained conviction under clause (b) of the 
Section ibid, however altered penalty of death into imprisonment 
for life with a direction to pay Rs.600,000/- as compensation to the 
legal heirs; benefit under Section 382-B of the Code of Criminal 
Procedure, 1898 was extended to the appellant.  
3.  
 
Learned counsel for the complainant contends that in 
the absence of any judicially recognized mitigating circumstance, 
there was no occasion for the learned High Court to alter penalty of 
death into imprisonment for life, whereas learned counsel for the 
convict has questioned the vires of impugned conviction on the 
ground that case being founded primarily on a dying declaration, 
the prosecution miserably failed as to who recorded deceased’s last 
words and thus it would be unsafe to maintain the conviction. 
  4.   
   Fate of prosecution case is hinged upon dying 
declaration, purportedly made by the declarant at the police 
station, converted into first information report.  According to the 
statement of Munawar Khan, PW-6, he received the injured and 
recorded his statement, however in the next breath, he ascribed 
first information report to Khan Ghalib Khan statedly recorded on 
his dictation. The latter is examined as PW-13; he denies to have 
recorded the first information report, Exhibit PA and thus as to 
who recorded deceased’s last words, is shrouded into mystery. 
Dying declaration, in legislative wisdom, is an exception to general 
rule of direct evidence; it is admitted to the detriment of an 
accused without opportunity of cross examination upon the 
declarant under the belief that a person, face to face with God, 
would tell nothing but the whole truth. Sanctimonious hypothesis 
Criminal Appeals No.3-P & 4-P/2014. 
 
 
 
 
 
3 
 
notwithstanding 
before 
conviction 
is 
based 
upon 
such 
a 
declaration, prosecution must demonstrate beyond shadow of 
doubt that it comprises of the words of declarant alone without 
extraneous prompting or additions; the person who records dying 
declaration is therefore a most important witness to verify veracity 
thereof. He is conspicuously missing in the array of witnesses and 
thus declaration, Exhibit PA, cannot be relied upon without 
potential risk of error. It would be grievously unsafe to maintain 
the conviction, therefore by extending benefit of the doubt to the 
appellant, Criminal Appeal No.4-P/2014 is allowed, impugned 
judgment dated 2.10.2012 is set aside; he shall be released 
forthwith, if not required in any other case; as a natural corollary 
Criminal Appeal 3-P/2014 is dismissed.  
     
 
 
 
 
JUDGE 
 
 
 
JUDGE 
 
 
 
 
 
 
Peshawar, the 
30th of April, 2019 
Ghulam Raza/* 
JUDGE 
 
 
 
