PESHAWAR: A Peshawar High Court bench on Tuesday acquitted an accused person charged with murder of a transgender person Alishah, whose death had resulted into public outcry in 2016, and set aside the sentence of death awarded to him by a trial court.

The bench of Justice Roohul Amin Khan and Justice Syed M Attique Shah accepted an appeal filed by the convict, Fazal Dayan alias Fazal Gujjar, ruling that the prosecution failed to prove its case against the appellant.

The court of additional district and sessions judge had convicted the appellant in July 2019 and sentenced him to death besides imposing a fine of Rs1 million on him.

A co-accused in the case named Rehmatullah was acquitted by the trial court due to lack of evidence.

PHC sets aside death sentence awarded to accused by trial court

The trial court had mostly relied on the dying declaration of Alishah, a 23-year-old transgender activist, who allegedly recorded her statement when she was taken to Lady Reading Hospital in critical condition after the occurrence on May 23, 2016.

The prosecution claimed that Fazal Gujjar was known for receiving extortion from transgender persons and he fired at Alishah as she declined to fulfil his illegal demands.

Advocate Khizar Hayat Khazana appeared for the appellant and contended that the prosecution case suffered from several loopholes and the trial court erred in convicting his client.

He pointed out that the dying declaration of the deceased was defective as the prescribed rules and procedure for recording the same were not followed.

He argued that in the first instance the medical officer concerned stated that the deceased was received in injured condition with profuse bleeding and was in a state of shock.

He contended that under the rules the doctor had to issue certificate with the dying declaration to prove that the deceased was in a position to record statement.

He added that the rules provided that the dying declaration should be recorded in presence of two police officers or two public witnesses or a magistrate, but in the instant case that requirement was not fulfilled.

Mr Khizar Hayat contended that the time of occurrence in the FIR was shown as 11pm but it was registered at 10:41 pm.

He questioned as to how the FIR could be registered prior to the occurrence.

The counsel appearing for the deceased’s side contended that the accused persons were directly charged for the commission of the offence in promptly lodged FIR.

He argued that specific role was attributed to Fazal Gujjar, Rehmatullah and two unidentified absconding accused for the murder of the deceased. He added that the dying declaration of the deceased was as per law and was fully corroborated by the evidence in shape of recoveries and FSL report.

The deceased had remained in critical condition for few days and later on expired in the hospital, which had resulted into protests by transgender community as well as civil society members accusing the hospital staff of not providing immediate medical treatment to her because of her gender.

The funeral of Alishah was held at the residence of a human rights defender Qamar Naseem. It was for the first time that funeral of a transgender person was attended by people in a large number including social and political activists and members of transgender community.

Published in Dawn, February 24th, 2021