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Criminal Appeal No. I 1-P of 1968, decided on 29th October 1969.

(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 3rd November 1967, in Criminal Appeal No. 51 of 1967).

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Dying declarations have sanctity under law but no rigid rule can be laid down that person under immediate apprehension of death would utter nothing but truth---Dying declaration like statement of interested witness requires close scrutiny---Evidence Act (I of 1872), S. 32.

The dying declarations of the deceased have a degree of sanctity under the law, being the statements of a dying man, on the belief that he being placed in a situation of immediate appre hension of severance of his ties with the mundane affairs, he would not tell a lie and implicate innocent persons on false charges. But, in the matter of the administration of criminal justice, taking in view the present state of our society, the assess ment of evidence, whether it is the statement of a witness or the statement of a person who is dead, is essentially an exercise of human judgment to evaluate the evidence so as to find out what is true and what is false therein. In this effort, the case has to be considered in all its physical environments and circumstances to find out how far the evidence or its different parts fit in with the circumstances and possibilities that can be safely deduced in the case. In this country, the habit, unfortunately, is quite common, now judicially recognized, that people do add innocent persons along with the guilty to satisfy their sense of revenge and to put the other side to the utmost grief. It is difficult to lay down a rigid rule that a person who is injured and is under an apprehension of meeting his death, would suddenly be gifted, as if by a magic transformation, with a clean conscience and a purity of mind to shed all the age-old habits and deep rooted rancours and enmities. Even, assuming that the pangs of conscience are there at the time to prohibit making of false charges, the question arises whether these pangs are strong enough to fortify him to resist the promptings and persuasions of his relations and others who may be surrounding him at the time and incite him to support the pattern of the charge which they have chosen to make against the accused persons, whether innocent or guilty It is for this reason that a close scrutiny of the dying declarations like the statements of interested witnesses, becomes absolutely necessary.

falsus in uno falsus in omnibus no longer applicable-Similarly rule that integrity of witness indivisible, cannot be accepted as universal truth-Grain has to be sifted from chaff in each case-Penal Code (XLV of 1860), S. 302.

The maxim "falsus in uno falsus in omnibus" has all along been discarded by the Courts in this country. Similarly, the rule that the integrity of a witness is indivisible, despite its moral virtue, has not been endorsed by the superior Courts of this country without reservations and cannot be accepted as one of universal applications. In the last analysis, as stated in some of the eminent judicial decisions, "the grain has to be sifted from the chaff" in each case, in the light of its own particular circumstances.

S. 302

Dying declaration: and evidence of eye-witness----Partly accepted, in circumstances of case.

Mahmood Ali Qasuri, Senior Advocate Supreme Court instruct ed by Muhammad Nazar Khan, Senior Attorney for Appellants.

Kamal Mustafa Bokhary, Assistant Advocate-General, West Pakistan instructed by Ijaz Ali, Attorney for the State.

Dates of hearing: 13th and 15th October 1969.

-Khawaja Muhammad and his paternal uncle, Tawaib Khan, the appellants herein, were convicted by the learned Sessions Judge, Peshawar, for the murder of their co-villager, Niaz Gul, under section 302/34, P. P. C. and each sentenced to death. On appeal and reference, their convictions and sentences have been confirmed by the Peshawar Bench of the High Court of West Pakistan.

The murder was committed at about 16 a.m. on the 22nd of July 1965, while the deceased, according to the prosecution case, was returning to his village Nari Panos within the limits of Teri Police Station, in the company of his wife, Mst. Meraj Dana, after having ploughed his field situated at a distance of a mile from the village. When they reached a water-spring named Khoza Khazey, they saw Khawaja Muhammad standing towards the west and Tawaib Khan towards the east, both armed with fire-arms. Khawaja Muhammad first fired at the deceased which hit him on the back. The deceased had a rifle with him which he fired in return without hitting anyone. Then Tawaib Khan fired at the deceased hitting him on the right arm. The accused then bolted away. The murder was the outcome of a long-standing blood-feud between the parties. Zar Wali, the father of Khawaja Muhammad appellant, was killed some 20 years ago for which Khial Gul, a brother of the deceased, was charged, but he was acquitted by the Court.

This account of the incident as stated above, was given by the deceased himself to P. W. Baqir Ali Khan, Sub-Inspector. who happened to be in the village in connection with some other investigation. Learning about the incident he went to the house of the deceased where he found him lying injured and recorded

his statement Exh. P.A./1, at 11-15 a.m. which was subsequently incorporated in the F. I. R. and has been accepted in evidence as a dying declaration. The information about the firing on the deceased had been given to him by P. W. 13, Gul Bagh, who is a relation of the deceased, and who claimed that he had seen the deceased being carried on a cot in an injured condition towards his house. On his inquiry, he told him that the two appellants had fired at him. The deceased survived for two days after the incident and expired at 9 a.m. on the 24th of July 1965. He was taken to the Civil Hospital, Karak, sometimes on the day of the incident, i.e. the 22nd of July 1965, where he was examined by the Doctor at 8-45 p.m. for his injuries, but earlier at 5.15 p.m. his statement was recorded by P. W. Ghulam Muhammad, compounder, which is Exh. P. M. on the record. This bears the signatures of the Doctor as well (P. W. Dr. Muhammad Alam) who stated that Ghulam Muhammad took down this statement at his dictation, meaning that he acted as the interpreter in dictating to Ghulam Muhammad what was being said by the deceased. It is not understood why the Doctor did not himself take down the statement. If he was unable or reluctant to do so, why he did not let Ghulam Muhammad record directly what was being said by the deceased, to eliminate his own effort in repeating the words of the deceased. The point would have assumed importance if we were in doubt as to the ability of the deceased to speak or as to what he had substantially stated. The statement recorded by the compounder was, in fact, a repetition of the statement earlier made by him before Baqir Ali Khan, except that in this later statement he leas increased the number of shots to three, two ascribing to Khawaja Muhammad and one to Tawaib Khan. But here he repeated again that the shot of Khawaja Muhammad bad hit him on the back but did not say where the shot of Tawaib Khan had struck him. It will be recalled that in the earlier statement he had said that the shot of Tawaib Khan bad bit him on the right arm.

The injuries suffered by the deceased, according to the medical examination, were as follows:-

(1) A fire-arm entrance wound in the front of the abdomen 2" below the umbilicus in the mid-line which was oval is shape and 1/8" x 1/8" in size.

(2) A fire-arm entrance wound 1/6" x 1/6" a little to the left of the mid-line of the back about 5' above the left iliac crest.

(3) A fire-arm entrance wound 1/8" x 1/8" on the right forearm at the middle, with an exit wound 1/6" x 1/6", 2" away from the entrance wound. The direction of the wound was downward and backward.

(4) An abrasion 1' x 1/2" on the outer side of the right shoulder, 3" below its tip.

Injury No. 4 was a grazed fire-arm wound. One pellet was recovered from injury No. 1 and another from injury No. 2. On internal examination, the abdominal walls, the peritoneum, the diaphragm, stomach and liver were found punctured. The second lumber vertebra was fractured and the spinal cord was injured. It seems that the pellets that hit him in the abdomen and the back, had done very extensive damage to him.

The prosecution case against the appellants rested on the testimony of Mst. Meraj Dana widow of the deceased, who was allegedly accompanying him at the time of the occurrence. In addition, there are the dying declarations of the deceased as mentioned above. The learned Sessions Judge did not consider that Mst. Meraj Dana was present with her husband at the time of the shooting and has disbelieved her on that score. He held that the dying declarations of the deceased were sufficient for the conviction of the appellants. The learned Judges in the High Court have not concurred in this view of the learned trial Judge, as, in their opinion, Mst. Meraj Dana was present with her deceased husband at the time of the incident and was a truthful witness. They have also held the dying declarations of the deceased to be true and genuine, to form a safe basis for the conviction of the appellants. The learned trial Judge as also the High Court, have given good reasons for their respective views about the evidence of Mst. Meraj Dana, which, on the surface, are well-balanced. The preponderant reason in favour of the High Court's views that can be urged is that in the very first statement which the deceased had made at 11-15 a.m. before the Sub-Inspector, he had said that Mst. Meraj Dana was accompanying him. If the deceased had intended to introduce false witnesses, his near male relations and partisans would have been easily at hand more usefully. The learned trial Judge was wrongly influenced by the circumstance that Gul Bagh P. W. had not said that the wife of the deceased was with the cot. Gul Bagh does mention this in his statement. The suggestions by the defense that Mst. Meraj Dana could not have gone for ploughing, having given birth to a daughter three months earlier and that her presence at the field was unlikely because the prosecution failed to produce two pairs of bullocks and yokes before the Sub-Inspector, are not of much consequence as the defence did not pursue these matters in cross-examination, to their logical conclusion to invite an explanation from the prosecution witnesses. However, the question that confronts us in this case is that even accepting the High Court's view about the presence of Mst. Meraj Dana at the spot, how far is it possible to implicitly rely on her statement and on the dying statements of the deceased himself, to support the conviction of the appellants

There is blood-feud between the parties and the evidence that has come from enemy or partisan quarters against the accused persons, cannot induce implicit confidence. Conceding that Mst. Meraj Dana was present with her husband, her statement cannot be accepted as the whole truth without reservations, regardless of all the physical possibilities which surround this occurrence. In the same line, there are the- dying declarations of the deceased which have a degree of sanctity under the law, being the statements of a dying man, on the belief that he being placed in a situation of immediate apprehension of severance of his ties with the mundane affairs, lie would not tell a lie and implicate innocent persons on false charges. But, I consider that in the matter of the administration of criminal justice, taking in view the present state of our society, the assessment of evidence, whether it is the statement of a witness or the statement of a person who is dead, is essentially an exercised of human judgment to evaluate the evidence so as to find out what is true and what is false therein. In this effort, the case has to be considered in all its physical environments and circumstances to find out how far the evidence or its different parts fit in with the circumstances and possibilities that can be safely deduced in the case. In this country, the habit, unfortunately, is quite common, now judicially recognized, that people do add innocent persons along with the guilty to satisfy their sense of revenge and to put the other side to the utmost grief. It is difficult to lay down a rigid rule that a person who is injured and is under an apprehension of meeting his death, would suddenly be gifted, as if by a magic transforma tion, with a clean conscience and a purity of mind to shed all the age-old habits and deep-rooted rancours and enmities. Even, assuming that the pangs of conscience are there at the time to prohibit making of false charges, the question arises whether these pangs are strong enough to fortify him to resist the promptings and persuasions of his relations and others who may be surrounding him at the time and incite him to support the pattern of the charge which they have chosen to make against the accused persons, whether innocent or guilty It is for this reason that a close scrutiny of the dying declarations like the statements of interested witnesses, becomes absolutely necessary. The maxim falsus in uno falsus in omnibus." has all along been discarded by the courts in this country. Similarly, the rule that the integrity of a witness is indivisible, despite its moral virtue, has not been endorsed by the superior courts of this country without reservations and cannot be accepted. as one of universal applications: In the last analysis, as stated in some of the eminent judicial decisions, "the grain has to be sifted from the chaff" in each case, in the light of its own particular circumstances.

In the present case, judging the dying declarations of the deceased and the statement of Mst. Meraj Dana, in the light of the physical circumstances of the case, I have formed the opinion that whereas the charge against Khawaja Muhammad who had fired twice at the deceased, is clearly proved, the charge against the other appellant, namely, Tawaib Khan, is not at all free from doubt. The injuries suffered by the deceased in relation to the roles which he has ascribed to his assailants, furnish the best test to find out as to what is the truth, or at least to discover what is doubtful. According to him, he was fired at by Khawaja Muhammad first in the back. He says that after this he fired his own rifle at Khawaja Muhammad ineffectively, but the latter simultaneously fired another shot at him hitting him in the abdomen. It seems obvious to me that when he first saw Khawaja Muhammad firing at him, he must have turned his back to avoid a frontal shot. It was thus that he received an injury on the back and a grazing wound (injury No. 4) which had a direction from backwards towards the front. Then, he turned to fire at Khawaja Muhammad with his own rifle without striking him and just then he received the second shot from him which hit him in the front. The second shot, to my mind, caused the two front injuries which the deceased had sustained, one in the abdomen and the other on his right forearm. According to the site plan, the firing by Khawaja Muhammad was done from a distance of 40 paces. Therefore, the dispersal of the pellets was quite large to account for the distance in the injuries.

According to the evidence of Sub-Inspector, Baqir Ali Khan, a barricade of stones had been put up at the place from where Khawaja Muhammad had fired. The learned counsel for the appellants submitted that this indicated that Khawaja Muhammad had taken precautions to conceal his identity. This would seem a mistaken impression as the barricade of stones which was very small in height, was put up more for self-protection than for concealment. The directions of the injuries on the deceased suggest that the shots were fired at the deceased from a level position more or less. It was a clear day-light occurrence and there was no possibility of the deceased missing or mistaking the identity of Khawaja Muhammad appellant who was 40 yards away and who must have been in his full view as manifested by the front injuries received by him at his hands. Card-board discs were recovered from the place wherefrom Khawaja Muhammad had fired, to confirm the prosecution story. Khawaja Muhammad's defence was of total denial. He alleged that at the relevant time he was a sepoy in the 14th Baluch, stationed at Sialkot and was on duty on the day of occurrence. This has been found to be false according to the statement of P. W. Irshad Ali Shah, a sepoy clerk in the 14th Baluch, who produced the record to show that Khawaja Muhammad was on leave from the unit from the 11th of April 1965 to the 10th of June 1965, and again from the 16th of July 1965 to the 10th of August 1965.

As compared to this, the case against Tawaib Khan is very doubtful. He is alleged to have fired from a distance of 20 yards and had allegedly succeeded in causing only one pellet injury on the right forearm of the deceased. There were no indications of any firing from the spot from which he had allegedly fired such as we find in the case of Khawaja Muhammad. If Tawaib Khan had fired from that close distance-20 paces as is alleged-he must have certainly caused a greater damage to the deceased than is attributed to him. He could not be such a bad marksman as to cause only one stray pellet injury with his gun from a distance of 20 paces. The injuries to the deceased, according to my view, were all caused by two shots, one from behind and the other from front, both of which were initially attributed to Khawaja Muhammad by the deceased as well as by Mst. Meraj Dana, although, subsequently, the deceased magnified the number of these shots to three and Mst. Meraj Dana did so into many more. This exaggeration was introduced merely to ascribe the firing of a shot by Tawaib Khan, but this, as I have said above, is very doubtful.

In these circumstances, I am constrained to reject the evidence of Mst. Meraj Dana as well as of the dying declarations of the deceased as far as Tawaib Khan is concerned, giving him C the benefit of doubt which, I consider, was wrongly withheld from him by the Courts below. I would, therefore, acquit him. As already stated above, the guilt of Khawaja Muhammad is established beyond doubt and his conviction and sentence as awarded by the trial Judge and confirmed by the High Court, are well-merited in which no interference is justified. I decide the appeal accordingly. Tawaib Khan shall be released forthwith if not wanted in any other case.

---I agree.

--I agree.

K. B. A. Appeal partly accepted.

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