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(In appeal from the judgment and order of the High Court of East Pakistan, dated the 13th February 1970, in Criminal Appeal No. 125 of 1967).

(a) Penal Code (XLV of 1860),

S. 396‑Dacoity with murder- High Court acquitting two accused‑appellants but maintaining convic tion of third‑Contention that since High Court doubted truth of statement of deceased's son in so far as other two acquitted accused were concerned, the Court should have refrained from considering such witness's evidence of recognition of petitioner‑appellant -Evidence of witness as to recognition of petitioner very well known to witness, receiving support from dying declaration while, recognition of acquitted accused not receiving such support‑No difficulty, held, appeared in relying upon such witness's evidence of recognition.

(b) Evidence Act (I of 1872),

S. 32‑Dying declaration‑Frank admission of deceased in dying declaration that he did not recognize accused who fired at him and approaching death of maker of dying declaration‑Afford sufficient guarantee of truth of declaration-Penal Code (LXV of 1860), S. 396.

Nasiruddin Chowdhury, Attorney Supreme Court instructed by S. M. Huq, Advocate‑ on‑Record for Petitioner.

Nemo for the State.

Date of hearing : 23rd June 1970.

SALAHUDDIN AHMED, J.‑

This petition for special leave arises out of an order of conviction and sentence under section 396 of the Pakistan Penal Code passed against the petitioner. The sum and substance of the prosecution case is that a dacoity took place at 1‑30 a.m. in the house of Ruhini Mohan Das (deceased) in course of which his house was broken into by the dacoits and he himself was attacked and injured by the dacoits. In course of the occurrence Ruhini, too, succeeded in inflicting blows with a Chhia' on some of the dacoits, but ultimately under the order of petitioner Wasibullah, another dacoit fired with a gun causing injury in the abdomen of Ruhini. The dacoits had with them torches and a petromax lamp, and Rullini was able to recognise petitioner Wasibullah and he told about his recognition to the inmates of his house P. Ws. 1, 2, 3 and 4. Ruhini's eldest son P. W. 1 Rama Kania also saw and recognised petitioner Wasibullah and two other dacoits and spoke about his recognition to P. Ws. 2, 3 and 4. P. W. 5, a doctor, was summoned from the thana hospital and he came and gave first aid to Ruhini and at the latter's request recorded a dying declaration Exh. 3 in which Ruhini specifically mentioned petitioner Wasibullah as one of his assailants. It was also stated therein that Ruhini had dealt blows with a Chhia' to two persons and that Wasibullah son of Hasibullah ordered opening of fire and somebody shot at Ruhini, but he could not recognise who actually shot at him.

The defence of petitioner Wasibullah was that he had been falsely implicated in the case out of previous enmity between him and Ruhini, and that none of the accused persons was concerned in the dacoity.

The facts of the occurrence of dacoity, and the death of Ruhini as the result of gunshot by one of the dacoits have not been disputed.

The trial Court on a consideration of the evidence found the offence under section 396 well proved against the petitioner and two others and convicted and sentenced each one of them to suffer rigorous imprisonment for ten years. The High Court on appeal confirmed the conviction and sentence of petitioner Wasibullah alone and dismissed his appeal, but allowed the appeal of the other two convicts and set aside their conviction and sentences.

Mr. Nasiruddin Chowdhury, learned Advocate appearing on behalf of the petitioner has criticised the judgment of the High Court on two grounds. He has contended, in the first place, that inasmuch as the High Court doubted the truth of the evidence of P. W. l as to recognition of petitioner and the other dacoits, the Court should have refrained from taking into consideration his evidence of recognition while convicting the petitioner.

He has next contended that the dying declaration itself, suffers from certain infirmities and it should not, therefore, have been relied on. The infirmities mentioned are that there was enmity between the deceased and the petitioner as a result of long‑standing litigation and that there were certain discrepancies as to the time when the dying declaration was actually recorded by P. W. 5.

As regards the first contention it appears that the evidence of P. W. 1 as to recognition of the petitioner received support from the dying declaration Exh. 3 although his recognition A in respect of the other two dacoits was not supported by the dying declaration. The evidence of P. W. 1 further appears to be that in the committing Court he said he saw the back of the dacoits he recognised and that he recognised them by their voices also. Furthermore he stated that he had to say in the committing Court that he did not see the faces of the decoits because he was then living in the village home and was mortally afraid of the dacoits. At the time of his deposition before the Sessions Court, however, he was in Sylhet town and could venture to tell the truth and the truth was that he had recognised the dacoits. Although some of the inmates of the house corroborated P. W. 1 that the latter spoke about his recognition of the dacoits, no outsider corroborated him on this point. We ourselves think that since the petitioner was very well‑known to P. W. 1 and since his recognition of the petitioner was supported by the dying declaration, it should not have been difficult to rely on the evidence of recognition of the petitioner as furnished by P. W. 1.

As regards the second contention it appears from the evidence of P. W. 5 the doctor, that he had faithfully recorded the dying declaration of Ruhini who according to the doctor was in his full senses when he made the declaration. We see no reason whatsover to doubt the evidence of P. W. 5, and we feel that the H'gh Court and the trial Court rightly relied on his evidence. The mere fact that the petitioner had enmity with the deceased is no reason for doubting the veracity of Ruhini as to his recognition of the petitioner as one of his assailants. The straightforward manner in which the deceased frankly stated that he could not recognise the dacoit who had actually shot at him, and the approaching death of the maker of the dying declaration afforded sufficient guarantee for the truth of the declaration. As regards the discrepancies about the exact time when the dying declaration was recorded, both the Courts rightly preferred the evidence of P. W. 5 the doctor to the evidence of the three closest relations of the deceased who, it is legitimate to presume, must have been overwhelmed with grief at the tragedy that befell Ruhini.

We accordingly think that the dying declaration alone which is corroborated by the earlier dying statement of the deceased made to the inmates of the house is sufficient to sustain the conviction of the petitioner:

There is, therefore, no substance in this petition, and it is dismissed.

Petition dismissed.

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