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Petition for Special Leave to Appeal No. 201 of 1967, decided on 4th December 1967.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 15th June 1967, in Criminal Appeal No. 460 of 1965).

S. 302‑Petition to Supreme Court for special leave to appeal against acquittal‑Dying declaration sole evidence ‑Deceased making three dying declarations including one before a Magistrate‑Veracity of first and third dying declaration disclosing stamp of outside influence‑Second declaration made before Magistrate also cannot be relied‑Acquittal of accused by High Court, in circumstances, held, justified‑Leave refused Evidence Act (I of 1871), S. 31.

Raja Muhammad Anwar, Advocate Supreme Court instructed by Abdul Karim, Attorney for Petitioner.

Rustam Sidhwa, Advocate Supreme Court instructed by Ijaz Ali, Attorney for the State.

Nemo for Respondent No. 1.

Date of hearing: 4th December 1967.

‑Special leave to appeal is sought by a private party against acquittal by a learned Single Judge of the High Court, of the respondent Khalid Mahmud who had been convicted under section 302/34 of the Pakistan Penal Code and sentenced to transportation for life by the Additional Sessions Judge, Rawalpindi.

The prosecution case was that at about 7‑15 p. m. on 4th August 1962, the respondent Khalid Mahmud along with Abdul Manan @ Mani, Muhammad Amin, Muhammad Usman and Farooq went to the firewood stall of Mian Noor Khan at R. A. Bazar, Rawalpindi. First they threw brick‑bats at Nur Khan, then Khalid Mahmud tried to catch hold of him and he while retreating fell down in a drain. Thereupon, Khalid Mahmud caught hold of his bands and Mani gave four knife‑blows to him. Redi Gul, Rehmat Khan and Wali Dad who were there, then rescued Nur Khan. Shortly thereafter, Umra Khan, uncle of the injured Nur Khan, arrived at the spot and the latter informed him of the incident. He then took his nephew to the District Headquarters Hospital, Rawalpindi. Head‑Constable Muhammad Banaras on being informed of his admission to the hospital went there and recorded his statement and sent it to Lal Kurti Police Station. After about two hours, a Magistrate on being informed by the doctor that the condition of the injured was critical, came and recorded the statement of Nur Khan at 10 p. m. At about midnight Sub‑Inspector Ayub Shah went to the hospital and again recorded his statement at 12‑30 a. m. Nur Khan succumbed to his injuries on the night between 6th and 7th August 1962.

As Khalid Mahmud and Mani were absconding, the remain ing three accused, namely, Muhammad Amin, Muhammad Usman and Farooq were committed to the Court of Sessions to stand trial on the charge of murder of Nur Khan.

Direct evidence was furnished by Rehmat Khan, Gulab Khan and Redi Gul. The Sessions Judge, Rawalpindi, however, was unable to place any reliance on their evidence and therefore acquitted them.

On 9th March 1964, Khalid Mahmud appeared before the Police and he was eventually committed to the Court of Sessions.

The case against him rested on the evidence of three eye witnesses, Rehmat Khan, Redi Gul and Gulab Khan and on the three dying declarations of the deceased.

The learned Sessions Judge came to the conclusion that the presence of Rehmat Khan and Redi Gul at the time of occurrence "was not free from doubt" and that Gulab Khan was a "hired witness" and "he did not see the occurrence at all".

With regard to the first dying declaration which was recorded by Head‑Constable Banaras, he found that the names of witnesses Rehmat Khan and Redi Gul were introduced by the deceased at the instance of his relations. He then observed:‑

"I cannot entertain any doubt in my mind about the fact that this was the only addition which was made by Mian Noor Khan in his statement under discussion without any basis and that too was made by him under the pressure of his relatives who were present by his side at the time when he made the statement Exh. P. F. Otherwise, his statement is true and in conformity with the actual facts and the circumstances of the case."

He further found that the third dying declaration was recorded by Sub‑Inspector Ayub Shah "under very suspicious circumstances".

While accepting the second dying declaration he observed that it "contains nothing but truth and that the deponent did not indulge in exaggerating the matters while giving the aforesaid statement". Hence, relying on the first and second dying declarations he convicted and sentenced the accused.

On appeal, the learned Single Judge while dealing with the first dying declaration observe:‑‑

"If the deceased could introduce Redi Gul and Rehmat Khan as witnesses to the occurrence in his statement on the prompting of his relations knowing fully well that they were not at the spot, there is no sanctity of the dying declaration left and it cannot be found with judicial certitude that the part assigned to the appellant by the deceased person actually represented the truth."

Because, the first dying declaration was recorded at the prompting of the relations of the deceased, the learned Single Judge was also unable to place much reliance on the second dying declaration. He then expressed his opinion thus:‑‑

"The conduct of the deceased, in my opinion, introduces an element of doubt as regards the complicity of the appellant in the commission of the crime."

In this view of the matter he acquitted the appellant Khalid Mahmud.

The learned counsel for the petitioner has contended that the dying declaration recorded by the Magistrate is entitled to be believed inasmuch as the Magistrate recorded what had been dictated by the deceased. The first dying declaration had the stamp‑of outside influence. . In view of the above fact, the second dying declaration which was recorded shortly thereafter by the Magistrate, cannot be implicitly relied upon. It would, therefore, be difficult to say that the learned Single Judge acted illegally in not maintaining the conviction of the appellant Khalid Mahmud on the second dying declaration. As the conviction of the appellant was based entirely on the dying declarations of the deceased, the learned Single Judge was justified in allowing the appeal and acquitting the appellant.

For the reasons stated above, we see no ground for interference and dismiss this petition.

Petition dismissed.

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