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Criminal Appeal No. 440 of 1968, decided on 10th March 1969.

, S. 32‑Dying declaration‑ Identification of assailant‑Single matter introduced, having a bearing on result of case, found to be false‑Renders entire dying declaration as worthless piece of evidence‑One of tests to be applied : whether there existed no chance of mistake on part of dying man in identification or naming his assailant.

Ordinarily a person would not like to tell a lie immediately before his death but if a single matter is introduced in the dying declaration which has a bearing on the result of the case and is found to be false, it will of course render the entire dying declaration as worthless piece of evidence. One of the tests to be applied is whether there was no chance of a mistake on the part of the dying man in identifying or naming his assailant.

Defining features of accused by moon‑light even at a shorter distance‑Practically impossible.

Modi on Medical Jurisprudence and Toxicology.

S. 302‑Murder‑Ocular testimony and dying declaration not corroborated by other evidence‑Absence of confirmatory circumstances connecting accused with commission of crime‑Accused acquitted on benefit of doubt.

Sh. Muhammad Shafi for Appellant.

Asghar Ali Bhatti for A.‑G. for the State.

.‑Muhammad Rashid (25) was tried on charges under sections 458 and 302, Penal Code by the learned Sessions Judge, Jhelum, who acquitted him of the charge under section 458 but convicted him under section 302, Penal Code to suffer death. The condemned person has appealed and the case is also before us on reference under section 374, Cr. P. C. for confirmation of the death sentence. We propose to dispose of the appeal and the reference by a single judgment.

2. Shortly stated, the facts of the case are that the marriage of Muhammad Hussain a son of the deceased, had been arranged with Mst. Maqsooda Begum, the sister of the appellant, but later on his father, Ashraf, bad broken the engagement. Fazal Din, father of Muhammad Hussain, had given a sum of Rs. 100 to Ashraf, father of the appellant, which he demanded from him a day before the occurrence in the presence of Ghulam Akbar (P. W. 8) and Ghulam Muhammad (P. W. 9). The appellant and his father were present at their shop. Fazal Din insisted on Ashraf to return the sum of Rs. 100 to him. Ashraf protested on the ground that Fazal Din had disgraced him by openly making the demand. He threatened to deal with him. The story goes that on the succeeding night there was a Majlis at Imam Kot at a distance of about one and a half furlongs from the heveli in which Fazal Din lived. He belonged to the Shia Sect and along with his sons Fazal Hussain and Muhammad Hussain, had attended the Majlis. They returned at 9‑30 p. m. to their house in village Maingan. The deceased slept in the baithak. Karam Din, and Muhammad Hussain, a son of the deceased, slept in the courtyard. At about 10‑30 p. m. they woke up on the cries raised by Fazal Din that he was being killed by Muhammad Rashid appellant. Karam Din and Muhammad Hussain rushed towards the baithak and within their sight the appellant gave a knife injury to Fazal Din who was Ding on the cot in the baithak and injured him in the chest. The appellant then tried to climb into the window to make good his escape. Muhammad Hussain caught hold of him by his leg. The appellant, however, managed to extricate himself and jumped out of the window to the roof of the adjoining house. Muhammad Hussain chased him for a distance of about one and a half furlongs but the appellant managed to escape. Muhammad Hussain returned to his house. Fazal Din was removed on a cot to Thoa Bahadar where they hired a taxi and reached Civil Hospital, Chakwal at about 7 a. m. on the 13th of August 1967. Lady Doctor Miss Khurshid (P. W. 2) informed the police by means of ruqqa Exh. P. K. regarding the arrival of Fazal Din in the hospital in an injured condition. On receipt of the ruqqa Exh. P. K, A. S. I. Abdul Wahid (P. W. 17) reached the hospital and after ascertaining from the Lady Doctor whether the injured person was in a fit condition to make a statement proceeded to record his statement Exh. P. M. He endorsed it to the police station and a case under sections 452 and 307, P. P. C. was registered against the appellant.

3. The Investigating Officer made the application Exh. P. E. to the Naib‑Tahsildar for recording the dying declaration of Fazal Din. Mr. Muhammad Akram (P. W, 3) reached the hospital at 10‑20 a. m. and obtained the certificate Exh. P. F/2 from the Lady Doctor regarding the ability of Fazal Din to make a statement and then proceeded to record the dying declaration Exh. P. F. The Lady Doctor made the endorsement at tile foot of the dying declaration to the effect that Fazal Din had remained fit during the statement. Since an operation was indicated and the medical officer was not present at the Chakwal Hospital, Fazal Din was referred to the Civil Hospital, Rawalpindi. He died there. On receipt of in formation regarding his death H. C. Muhammad Khan (P. W. 15) went to the District Headquarters Hospital, Rawalpindi, prepared the injury‑sheet and the inquest report and then despatched the dead body to the mortuary for post‑mortem examination. The Assistant Sub‑Inspector, who investigated the case, took into posse3sion blood‑stained earth and hawai chappal Exh. P. 1 from the baithak of Fazal Din, in .the presence of Ghulam Akbar (P. W. 8) and Qurban Hussain (not produced) and sealed the same into two separate parcels. The appellant was produced before the Assistant Sub‑Inspector by Foot Constable Ahmad Khan and was put under arrest on the 19th of August 1967. He was interrogated in the presence of Zahoor Ahmad and Ahmad Khan P. Ws. He offered to produce the weapon of offence and got recovered the knife Exh. P. 2 from inside a khokha in his shop in Chhappar Bazar, Chakwal. It may here be stated that blood on chappal as well as the knife had disintegrated and its origin could not be determined by the Serologist.

4. On the 13th of August 1967, at 8‑00 a. m. Fazal Din, while alive, was examined by Lady Doctor Miss Khurshid (P. W. 2), who found the following injuries on his person :‑

(1) A stab wound 1" x " x entering into the chest cavity on the front of left chest " above the nipple.

(2) A stab wound 1 " x " entering into the abdominal cavity on the right anterior abdominal wall 2 " above the right anterior iliac spine.

(3) Abrasion 1" x " on the back of right elbow.

(4) Contusion 2 " x 1 J" on front of upper part right leg.

(5) Abrasion 4" x 1/3" on the front part of upper part of left leg.

5. The post‑mortem examination on the dead body of Fazal Din was conducted on the 18th August 1967, at 11‑00 a. m. by Dr. Rauf Beg Mirza, Medical Officer, District Headquarters 'Hospital, Rawalpindi (P. W. 1), who found the following injuries :‑

(1) Stitched incised wound 1 on the right side of the abdomen at the level of the umbilicus and 2 " on the right of middle line going deep cutting the ascending colon which was already stitched.

(2) Stitched incised wound 1" on the front of the left chest 2" above the left nipple going deep cutting the upper lobe of the left lung.

In the opinion of the doctor death had occurred due to shock and haemorrhage as a result of injuries Nos. 1 and 2, which were dangerous in nature and had been caused by a sharp‑edged‑pointed weapon. Both the injuries, according to him, were individually and collectively sufficient to cause death in the ordinary course of nature. The duration between injuries and death was about six days and death had also been caused by peritonitis and pneumonitis of left lung.

6. The defence of the appellant was a bare denial. He asserted that he had been falsely implicated due to suspicion. No evidence was produced in defence.

7. At the trial Muhammad Hussain (P. W. 13) a son of the deceased, and Karam Din (P. W. 14), a cousin of Fazal Din, furnished direct evidence. In a nutshell, their evidence is that they were awakened by the cry raised by Fazal Din that he was being killed by Muhammad Rashid. They rushed to the baithak in which the deceased had been sleeping and saw the appellant giving a stab with a knife to the deceased in the chest. After that, Muhammad Rashid climbed into the window of the baithak towards the East. Muhammad Hussain caught hold of Muhammad Rashid by the leg, but he managed to get himself freed and jumped out of the window. Muhammad Hussain followed him and shouted that Muhammad Rashid was running away after killing his father. Amir Khan P. W. came from the opposite direction and saw the appellant running away. Muhammad Hussain continued the chase for a distance of about one and a half furlongs but Muhammad Rashid managed to escape. Amir Khan (P. W. 16), whose house is contiguous to the house of Fazal Din deceased, deposed that on hearing the alarm from the house of the deceased he jumped over the eastern wall of the haveli into the contiguous field of Haq Nawaz and saw Muhammad Rashid appellant running away. He was carrying an open knife in his hand. Amir Khan did not chase Muhammad Rashid. The witness continued that Fazal Hussain P. W. came running and was raising an alarm that Muhammad Rashid had killed his father. Amir Khan then went to the baithak of Fazal Din and found him lying injured. He accompanied him to Chakwal. Besides the ocular evidence, there are two dying declarations made by the deceased. The dying declaration Exh. P. M. was recorded by Assistant Sub‑Inspector Abdul Wahid (P. W. 17) first in point of time. It was on the basis of this statement that a case against the appellant was registered. After the death of Fazal Din, the statement Exh. P. M. came to be treated as dying declaration. The second dying declaration Exh. P. F. was recorded by Mr. Muhammad Akram, Magistrate 3rd Class, Chakwal, at 10‑20 a.m. on August 13, 1967. In both these statements Fazal Din fully implicated the appellant as his assailant. The story about the motive was disclosed by the deceased in the dying declarations and the prosecution produced two other witnesses, namely, Ghulam Akbar (P. W. 8) and Ghulam Muhammad (P. W. 9) in support of it.

8. The recoveries of the incriminating articles were supported by Zahur Ahmad (P. W. 10) and Ahmad Khan (P. W. 11) in addition to the Investigating Officer. The learned trial Judge found that the evidence in support of the recoveries was discrepant. He considered the recovery witnesses not to be reliable and as no human blood was detected on the knife by the Serologist he considered the recovery of the knife as of no help to the prosecution and we agree with him.

9. The story in regard to the motive was also considered by the learned trial Judge to be highly doubtful because the prosecution failed to prove affirmatively that the demand for money was made by the deceased in the presence of the appellant. Ghulam Akbar and Ghulam Muhammad P. Ws. omitted to mention in their statements to the police about the presence of Muhammad Rashid at the shop of his father when the deceased demanded from Ashraf the sum of Rs. 100. The reasons given by the learned trial Judge for disbelieving the threat held out to the deceased by Muhammad Ashraf to deal with him appear to us to be cogent.

10. We are thus left in this case with the evidence of Muhammad Hussain and Karam Din P. Ws. We have already observed that Muhammad Hussain is the son of the deceased. Karam Din is a cousin of Fazal Din. They were sleeping in the courtyard of the haveli when they heard cries raised by the victim that he was being killed by Muhammad Rashid. The deceased must have cried out after he was given the first blow. As Muhammad Hussain and Karam Din P. Ws. were sleeping in the open they must have taken some time to collect themselves and it is not possible for us to believe that they entered the baithak in time to see the appellant delivering the second blow to the deceased by means of the knife. We are not inclined to believe that the deceased was able to grapple with the assailant after he was given the first blow. In all probability, the assailant must have jumped out of the window on to the adjoining roof by the time the witnesses came inside the baithak. Muhammad Hussain and Karam Din P. Ws. claimed to have recognised the appellant in the light of the lantern that was burning inside the baithak at the time of the occurrence. The existence of a lantern inside the baithak at the material time is rendered doubtful by the circumstance that the deceased in neither of the dying declarations mentioned about the lantern. No lantern was taken into possession by the police. It was the fifth of the lunar month, and although the moon‑set time was 10‑58 but the moon was towards the West and no moonlight could be reflected inside the baithak where the deceased had been sleeping. It seems that the witnesses realising the difficulty regarding the identity of the culprit tried to introduce a lighted lantern. The Supreme Court in the case Barkat v. The State (1968 P Cr. L J 1287) at page 1293 observed in similar circumstances as under :‑

"Mst. Karima, realising this difficulty, tried in her evidence to introduce a lighted lantern into the room but this embellishment cannot be accepted as no such lantern was seized by the police."

We find it difficult to accept the claim of Muhammad Hussain and Karam Din P. Ws. that they woke up on hearing the deceased crying that he was being killed by Rashid of Pipliwala because they did not say so either to the police or in their statements before the Committing Magistrate. It appears that as there was no light inside the baithak where the deceased was sleeping when he was given two knife injuries the witnesses, in order to strengthen the claim that not only they themselves but also the deceased as well had identified the assailant, introduced in their statements at the trial that Fazal Din cried that he was being killed by Rashid of Pipliwala. The two witnesses being interested we find it difficult to place implicit reliance as regards their claim to have identified the culprit.

11. Taking up the report Exh. P. M., which came to be treated as the first dying declaration after the death of Fazal Din, we find that the Lady Doctor by making a positive assertion that the police did not record any statement of Fazal Din before the Naib‑Tahsildar recorded the statement Exh. P. M. virtually excluded its existence. The police came to the hospital at the instance of Lady Doctor Miss Khurshid, who stated that she remained in attendance on the patient till the arrival of the police. She admitted that she gave the certificate Exh. P. L./I and remained with Fazal Din till the arrival of the Naib‑Tahsildar but during the interval of this entire period before the Naib‑Tahsildar recorded the statement Exh. P. M. till he was removed from the hospital, the Police did not record any statement of Fazal Din. In view of this categorical assertion on the part of the Lady Doctor we consider it not safe to rely on the statement Exh. P. M. In the second dying declaration, which was recorded by Mr. Muhammad Akram, the deceased made an improvement on his earlier statement. He said in Exh. P. F. that when he got out he saw Allah Ditta son of Ghulam Bakhsh standing on the roof and that he too had seen this occurrence. We doubt if the deceased was in a position to get out of the baithak after he had been mortally wounded. There was no blood trail and the prosecution omitted to call Allah Ditta as a witness. It is in the statement of Mr. Muhammad Akram P. W. that there were certain persons from the public near Fazal Din when he went to the hospital but he sent them away before he recorded the dying declaration Exh. P. F. This dying declaration was recorded after the deceased had an opportunity to speak to his relatives and others who had removed him to the hospital. We are unable to place any reliance on the two dying declarations particularly in view of the fact that there was no light inside the room in which the deceased had been attacked. We are alive to the consideration that ordinarily a person would not like to tell a lie immediately before his death but if a single matter is introduced in the dying declaration which has a bearing on the result of the case and is found to be false, it will of course render the entire dying declaration as worthless piece of evidence. One of the tests to be applied is whether there was no chance of a mistake on the part of the dying man in identifying or naming his assailant.

12. There now remains the statement of Amir Khan (P. W. 16) to be considered. He is a neighbour and the claim made by him that he saw Muhammad Rashid running at a distance of about four karams from him and that he recognised him when he passed at a distance of three or four paces from him is tall and it is not possible for us to accept that he actually recognised the assailant. Amir Khan admitted that the other members of the family were also sleeping in the same courtyard in which he had been sleeping but they got up some time later. The witness was unable to say as to where was the moon in the sky at the material time. Amir Khan P. W. did not make any attempt to catch hold or pursue the appellant. He stated at the trial that the appellant did not advance towards him. He said in his statement before the Committing Magistrate that he followed the appellant for a distance of ten or twelve karams. He said further in his statement before the Committing Magistrate that he tried to capture the assailant and that when he was at a distance of three karams from him, he tried to attack him with the knife. These are not mere embellishments but material contradictions because the witness in his examination‑in‑chief clearly stated that on seeing an open knife with the appellant he took cover near the wall out of fear.

13. Modi in his Medical Jurisprudence and Toxicology has referred to Tidy to prove that the best known person cannot be recognised in the clearest moonlight beyond a distance of seventeen yards and Colonel Barry, I. M. S., is of the opinion that at distances greater than twelve yards the stature or outline of the figure alone is available as a means of identification and to define the features even at a shorter distance is practically impossible by moonlight. We are not inclined to accept the claim of Amir Khan P. W. to have seen and much less recognised the culprit to be Muhammad Rashid. He mixed up Muhammad Hussain with Fazal Hussain while deposing at the trial. If he was unable to correctly identify the person going in pursuit of the appellant we doubt if he really was in a position to identify the culprit. The probability favours the view that he also named Muhammad Rashid as the culprit because he was named as the assailant by the relatives of the deceased. It is in the statement of Fazal Hussain (P. W. 5) that his father used to keep cash and his tools in the almirah under the window near which he was sleeping. The possibility of any other person having entered the baithak with a view to commit theft could not be excluded to moral certainty and as the relations between the deceased and the father of the appellant had been strained he must have jumped to the conclusion that his assailant was Muhammad Rashid.

14. We feel that to accept the ocular testimony and the dying declarations without considering the surrounding circumstances would be totally inconsistent with safe dispensation of justice. In the absence of any confirmatory circumstance connecting Muhammad Rashid with the commission of the crime we are reluctant to uphold the conviction. The case against the appellant, in our opinion, is not free from reasonable doubt. The benefit of doubt must, therefore, go to the appellant. We accept the appeal, set aside the conviction and the sentence passed on the appellant. He is given the benefit of doubt and is ordered to be acquitted. The death sentence is not confirmed.

Appeal accepted.

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