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Criminal Appeal No. 193 of 1979, decided on 18th October, 1981.

-‑‑ S. 32 (1)‑Dying declaration, evidentiary value of‑Conviction can be based in a case on uncorroborated dying declaration alone‑Questions whether it would be adequate to base conviction upon dying declaration alone and further as to what value to be attached to it, held, would depend upon concomitant circumstances of each case.‑[Dying declaration].

Zarif Khan v. State P L D 1977 S C 612 and Mushtag Ahmad v. State P L D 1978 Lah. 507 ref.

‑‑ S. 302‑Murder‑‑Evidence, appreciation of‑--No enmity between deceased and accused, her own brother nor any reason for her to implicate her own brother if he was not real culprit while letting go scotfree actual assailant--‑No inconsistency between Police state ment and dying declaration of deceased‑Dying declaration fully implicating accused and ringing true‑--Conviction, held, rightly made on basis of dying declaration alone, in circumstances.

Mohammad Hayat Junejo for Appellant.

Raza Abbas for the State.

Date of hearing : 30th September, 1981.

This appeal is directed against the judgment dated 30th June, 1977 of learned Second Additional Sessions Judge Dadu whereby appellant named above has been convicted for offence under section 302, P. P. C. and sentenced to imprisonment for life and a fine of Rs. 1,000 in default of Payment whereof to further R. I. for site months.

Shortly stated the prosecution case is that appellant is brother of deceased Mst. Asoodi, who was married to complainant Ashraf. On the day of incident, i.e. 15th September, 1977 at 'Somahni' time deceased Mst. Asoodi was in the house of her sister Mst. Mooran, who had given birth to a son. This house was adjacent to the house of deceased. Complainant Ashraf and P. W. Inayat were also present in the house as they had come to congratulate Gul Hassan and his wife, Mst. Mooran on the birth of a son to them. Deceased Mst. Asoodi was at the time of incident cooking meals as her sister Mst. Mooran was not capable of doing so because of birth of the child. Appellant Roshan alias Tooh came there and challenged Mst. Asoodi saying that she was 'Kamini' as she had eloped with Didar Shah, hence did not deserve to remain alive. Saying so appellant took out a country‑made pistol from his folds, put it on the back of Mst. Asoodi and fired a shot, in the result whereof Mst. Asoodi raised cries and fell down injured with her face on the ground. Appellant Roshan made good his escape with his weapon. Complainant Ashraf and P. Ws. Gul Hassan, Hayat and Mst. Mooran saw the incident. Complainant then went to Police Station Khairpur Nathan Shah taking injured Mst. Asoodi with him, where he lodged report on the same day at 10.30 p. m. A. S. I. Jan Mohammad after registering F. I. R. examined Mst. Asoodi and prepared her mashirnama of injuries. . He sent Mst. Asoodi to the hospital for examination and treatment. On the following morning he visited the vardat which was pointed out by the complainant. The scene of offence was situated in the house of Gul Hassan in village' Murad Khoso. In the courtyard of the house there was place for cooking from where blood‑stained earth was secured and put into a sealed parcel. Mashirnama of the scene of offence was prepared. A. S. I. recorded statements of Mst. Mooran, Inayat and Gul Hassan. He triad to arrest the appellant who was not available. Next day A. S I. was informed that condition of injured Mst. Asoodi was critical hence he approached Mr. Roshan Ali Head Munshi and Third Class Magistrate, who went to the hospital and recorded dying declaration in presence of the Medical Officer Doctor Allah Warayo, who certified that she was capable of giving statement. On the same day, i.e. 17th September, 1977 appellant was arrested from in front of his house and while in custody led to the recovery of a .12 bore country‑made pistol and an empty cartridge from under the bedding, where they were concealed. The pistol and the cartridge were put into parcel and sent to the Ballistic Expert. Appellant could not produce licence for the pistol and a separate case under section 13‑D of the Arms Ordinance was registered against him. On 18th September, 1977 statement of witnesses under section 164, Cr. P. C. were got recorded and on 19th September, 1977 A. S. I. handed over the papers of the investigation to S. H: O. On 1^st October, 1977 Mst. Asoodi succumbed to her injuries in Civil Hospital Dadu. Mashirnama of her injuries and inquest report were prepared by A. S. I. Mohammad Miskin. After completion of investigation challan was presented in the Court.

Prosecution has examined in all 13 witnesses. P. W. 1 Mohammad Ashraf, P. W. 2 Gul Hassan and P. W..3 Inayat Ali have been examined as eye‑witnesses of the incident who have not supported the prosecution case. These three witnesses were declared hostile, and cross‑examined. Statements under section 164, Cr. P.C. of P. Ws. Gul Hassan and Inayat Ali have been brought on the record. P. W. 4 Piaro mashir, who has attested mashirnama regarding injuries of Mst. Asoodi, scene of offence, arrest of appellant and recovery of pistol and cartridges Exhs. 14 to 17 also did not support the prosecution case and was declared hostile. At the request of A. P. P. co‑mashir Mohammad Yousuf was examined and lie also did not support the prosecution case and was declared hostile,

P. W. 6 Dr. Allah Warayo had initially examined Mst. Asoodi on 16th September, 1977 at Rural Health Centre Khairpur Nathan Shah. He found one fire‑arm wound 1" in diameter on upper central part of the back to between two scapulae on third and fourth thorasic vertebrae. The wound was chest cavity deep and the track of the wound was in oblique direction, directed towards right lung. Blackening all around the wound in an area of 2" to 2 was present. This was wound of entrance and there was no wound of exit. This doctor also deposed that dying declaration of Mst. Asoodi was recorded in his presence and at that time injured lady was in full senses and he had certified this fact in the dying declaration. P. W. 7 Dr. Ghulam Rasool examined Mst. Asoodi, when she was referred to Civil Hospital Dadu on 17th September, 1977. He has deposed that she was admitted in Civil Hospital Dadu and her X‑Ray was taken, which indicated that her right lung had collapsed and multiple radio‑opaque shadows were visible on right side of the chest and few in the upper abdomen. She was treated as a case of right‑sided haentoneumothorax. During that time she also developed surgical emphysema. About 1000 cc of impure blood aspirated from the right side of the chest at different intervals. After surgical treatment she was in better condition and on 1^st October, 1977 her condition grew worse and she collapsed and died on the same day. This doctor also performed post‑mortem examination on the dead body and opined that the death had occurred due to intrathorasic haemorrhage as a result of rupture of right lung and pleura caused by a fire‑arm injury mentioned above.

P. W. 8 Mohammad Miskin A. S. I. has deposed that on 1^st October, 1977 he prepared mashirnania of injuries and inquest report of deceased Mst. Asoodi in Civil Hospital Dadu. P. W. 9 Mr. Roshan Ali Head Munshi and Third Class Magistrate has deposed that on 16th September, 1977 he recorded dying declaration of injured Mst. Asoodi in taluka hospital Khairpur Nathan Shah. P. W. 10 is Kalimullah Tapedar who prepared sketch of scene of offence Exh. 33. P. W. I 1 is A. S. I. Jan Mohammad who has investigated the case as stated above. P. W. 12 Salim Ahmed constable in corpse‑bearer, Lastly P., W. 13 Haji Juman is mashir who has attested mashirnama of injuries and inquest report of deceased Exhs. 28 and 29. Prosecution has produced report of Ballistic Expert Exh. 34 which is to the effect that empty was fired from the pistol.

Defence of appellant before the trial Court in his statement under section 342, Cr. P. C, is denial simpliciter of all prosecution allegations. He has further stated that his father had left about 26 acres of land which were inherited jointly by him and his sister deceased Mst. Asoodi, who demanded that the land should be partitioned and she be given her share exclusively. Appellant did not agree with this proposal hence he was implicated by the deceased in her dying declaration at the instance of her husband. No witness was examined in defence.

At the very outset it would be pertinent to point out that the trial Court has convicted appellant on the basis of dying declaration alone without relying upon other pieces of evidence. The question then arises whether it is legal to do so. Section 32 (1) of Evidence Act provides that when the statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in case in which the cause of death of that person comes into question such statement is relevant where the person who made it was or was not at the time when such statement was made, under expectation of death and whatever may be the nature of proceedings in which cause of his death comes into question. Eight clauses of this section 32 are exceptions to the general rule against hearsay. This hearsay evidence is made admissible by statute for the reason that with such statement attached some sort of guarantee of truth and the general principle is that such dying declaration is made in extremity when the party is at the point of death and when every hope of this world has gone, when every motive to falsehood is, silent and that mind is induced by the most powerful consideration to speak the truth. A situation so solemn and so awful is considered by law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice. The entire case‑law on this subject of English and Indian superior Courts has been discussed in the most elaborate judgment in the case of Zarif Khan. v. State (P L D 1977 S C 612). Mr. Justice Dorab Patel (as he then was) bas written the leading judgment in which it is observed that dying declaration, although a weaker type of evidence, then evidence subjected to cross‑examination, made under solemn sense of impending death and concerning circumstances wherein deceased was not likely to, be mistaken is entitled to great weight. It was further held that a person not having a deep sense of accountability to his Maker, feelings of anger or revenge, or in case of mutual conflict with natural desire of screening his, own misconduct, may be induced to make a dying declaration giving false colouring to the whole transaction and in such circumstances the presumption that the truth sites upon the lips of a dying man would be applicable only to a dying declaration made by a person knowing his death to be imminent, when the author of such dying declaration is a man of unquestionable integrity and persons giving evidence about such declaration art: also persons of integrity. It is further observed by the learned Judge that he should not be understood to mean that a conviction cannot be bated on a dying declaration. Mr. Justice Anwarul Haq (as he then was) in the same case has observed that expression "dying declaration is a weaker type of evidence" is likely to produce misleading impressions as to quality of such evidence and reliance which may be placed upon it in particular circumstances of each case. The learned Judge has further observed that :‑

It has to be remembered that the Legislature has advisedly, as a matter of sheer necessity, incorporated in section 32 an exception to the general rule that hearsay is no evidence. In the very nature of things the sanctity of oath and the test of cross‑examination are not available to ascertain the veracity of a dying statement ; but the nature of the statement itself and the circumstances under which it is made make probable the truth of the statement and thus take the place of oath and cross‑examination. On first principles, the sanctity attached to such statements by the statute should be respected unless there are clear circumstances brought out in the evidence to show that a dying declaration is not reliable for any reason.

Mr. Justice Mohammad Akram (as he then was) in the same case while agreeing with the other two learned Judges that the dying declara tion in that case was not fit to be relied upon, observed that the questions whether a dying declaration is reliable or not and as to the credibility of the declarant are primarily questions of fact to be determined depending on the facts and circumstances of each case and in this context no absolute rule can be laid down in advance. The learned Judge further concurred with the view taken by Mr. Justice Anwar-ul-Haq as stated above.

It is thus obvious that conviction can be based in a case upon dying declaration alone and the question whether it would be adequate to base conviction upon it and further as to what value is to be attached to such dying declaration would depend upon the concomitant circumstances of each case. In another case Mushtaq Ahmad v. State (P L D 1978 Lah. 507), Division Bench of Lahore High Court did not interfere with conviction in a rape and murder case based upon dying declaration of deceased woman on the ground that such declaration was simple and straight forward version of incident given by deceased who was not or inimical terms with accused and had no motive to involve them falsely. The dying declaration in that case was also further supported by medical evidence.

In the instant case the incident took place on 15th September, 1977 at, somahni' time and complainant Ashraf husband of injured Mst. Asoodi took her to Police Station Khairpur Nathan Shah from where she was referred by A. S. I. Jan Mohammad to Talija Hospital, Khairpur Nathan Shah. F. I. R. on the record shows that it was registered at 10.30 p. m. A. S. I. Jan Mohammad has deposed before the trial Court that he was informed by the doctor that condition of injured was serious hence he went with Mr. Roshan Ali Head Munshi and Third Class Magistrate, who recorded during declaration of Mst. Asoodi after she was certified to be medically fit for that purpose by Dr. Allah Warayo. Mr. Roshan Ali had deposed before the trial Court that he recorded dying declaration on the same day at 12.30 a. m. in presence of the Medical Officer. The content of dying declaration are reproduced as under :‑

"My age is about 26 years. I am married with Ashraf. I do not have any child. My real brother Roshan son of Parial, by caste Khoso, is the accused. I have been living with my husband. My sister Mst. Moran wife of Gul Hassan caste Khoso, lives adjacent to our house. My sister Morean was present. About somahni time last night, she gave birth to a son. On this happy occasion I went to her house at somahni time for cooking her food. I was cooking the food, at the hearth while my sister Mooran was lying on a cot. Gul Hassan my brother‑in‑law was also in the house. My husband Ashraf and relative lnayat by caste Khoso had also come over there to congratulate Gul Hassan on the birth of his son. As I was cooking food, may real brother Roshan came there. He gave me 'hakkal' (challenge) and said 'kamini' (you mean woman) you had eloped with Didar Shah and had thereby disgraced me. I shall finish you today. Saying so he put the pistol on my back and shot me. Receiving shot, I fell down faceward and accused Roshan ran away. He is my real brother. He shot me with his pistol with the intention to kill me. I have nothing more to say. I am still in my senses and I give this statement."

The dying declaration is thumb marked by Mst. Asoodi and is signed by Mr. Roshan Ali Head Munshi and Third Class Magistrate. This dying declaration is further endorsed by Dr. Captain Allah Warayo Shaikh who has certified that injured Mst. Asoodi wife of Ashraf was fully conscious and in her senses at the time when her statement was recorded. Mst. Asoodi was then transferred to Civil Hospital Dadu for X‑Ray examination and treatment. Her X‑Ray of chest was taken and she was given surgical treatment. Some pellets and wad were removed and she first showed signs of progress but on 1^st October, 1977 she deve loped severe haemplysis and collapsed and died at 1.15 a.m.

It has been contended before me by the learned counsel for the appellant that this dying declaration is not fit for reliance for the reason that the Magistrate Mr. Roshan Ali has admitted before the trial Court in his deposition that injured had occasionally lost her senses while the dying declaration was being recorded. It is further admitted by the Magistrate that relatives of deceased were present at the time when her dying declaration was being recorded. So far the first admission of the Magistrate as stated above is concerned, perusal of his evidence shows that in the cross‑examination a suggestive question was put to him by the defence counsel to which he replied that it was correct that injured had occasionally lost her senses while the dying declaration was being recorded. Nothing much turns on his admission for the reason that dying declara tion Exh. 31 on the record which is reproduced above does not mention this fact that injured lost her senses in the course of recording that state ment. Further more the statement was recorded in presence of Medical Officer who was present there and who has also signed the dying declara tion with endorsement certifying that injured was fully conscious and in her senses at the time when the statement was being recorded. Doctor Captain Allah Warayo Shaikh has been examined in the trial Court as P. W. 6 and he has positively asserted in his deposition that dying declara tion was recorded in his presence and Mst. Asoodi was in her full senses and he had certified the dying declaration to that effect and also signed it. The doctor further stated that he was all along sitting beside the injured Mst. Asoodi while her dying declaration was being recorded. The doctor denied a suggestion that injured occasionally lapsed into un consciousness while her dying declaration was being recorded. In the circumstances stated above the situation stands fully explained and no importance is to be attached to the admission made by the Magistrate in this context.

The second ground on which the dying declaration is assailed by the learned counsel for the appellant is that the Magistrate has admitted that relatives of deceased were also present at the time when he recorded dying declaration. Perusal of evidence of the Magistrate indicates that he has further denied a suggestion in his cross‑examination that relatives of the de‑eased suggested to injured Mst. Asoodi replies to the question put by him. The Magistrate has further stated that however the relatives were asking her to reply his questions. Police was not present in the room at the time when he recorded dying declaration of Mst. Asoodi. On this premise the learned counsel for the appellant has contended that this dying declaration was tutored and relatives of the deceased were present by her bed side and prompted her to make replies implicating the appel lant. The contention of the learned counsel has no force for the reason that such objection would have been valid if there was enmity between the parties. In the instant case no doubt the Magistrate has admitted the presence of the relatives near the injured but at the same time he has denied that they suggested replies to her. It is not on the record as to who were those relatives who were present at the bed side of the injured but there appears to be no enmity between the injured and the appellant for that matter between relatives of the injured and the appellant. Injured Mst. Asoodi was sister of appellant and in the absence of any enmity there appears to be no earthly reason why should she implicate her own brother if he was not the culprit and had not shot her. No doubt appellant in his statement under section 342, Cr. P. C. before the trial Court has asserted for the first time that his father had left 26 acres of land which were inherited jointly by him and his sister Mst. Asoodi and she demand ed that the land should be partitioned and she be given her share but he declined on the ground that doing so would affect cultivation adver sely. Mst. Asoodi was offered to have her share but she was not satisfied hence be implicated him in her dying declaration at the instance of her husband. This plea obviously is belated and an afterthought. Appellant apart from verbally stating so in his 342, Cr. P. C. statement has done nothing to substantiate this plea. He has not produced any documents to show that his father had left 26 acres of land which were inherited by him and his sister Mst. Asoodi jointly. He has not clarified as to when his father had died. He has not produced any land revenue receipts. He has not given any survey numbers of the land. In these circumstances I feel disinclined to believe this plea. Even if for the sake of argument it is assumed that some land was left behind by the father of appellant inheri ted jointly by him and Mst. Asoodi and she insisted for her exclusive share then also it is not understandable as to how could she falsely implicate her own blood brother while letting go scot free the actual culprit who had shot her. In these circumstances it cannot be said that there was any enmity between the parties and the deceased or her relatives were motiva ted against the appellant to falsely implicate him. Moreover the Magis trate has admitted in his evidence that he had recorded dying declaration which was dictated by the injured herself and the relatives did not suggest replies to her.

Another contention raised by the learned counsel for the appellant was that since the shot was fired at the back hence Mst. Asoodi did not have an opportunity to see the assailant as according to her after the shot was fired she fell down faceward on the ground. This contention cannot be accepted for the reason that Mst. Asoodi has stated in her dying declara tion in very clear terms that she‑ was sitting and other, witnesses were sitting in the house of her sister when the appellant came in and challenged her and abused her by saying "Kamini you had eloped with Didar Shah and had thereby disgraced me and I shall finish you today". It is in conceiv able that this threat would not have alerted Mst. Asoodi to see who was threatening. The fact that she was fired at her back is also explained by her that after exchanging threats appellant put the pistol on her back and shot her hence she fell down faceward. She had already stated that she was sitting at the hearth and was cooking. In sitting position it is difficult for a person to move unless she gets up. There is also no question of mistaken identity as the appellant being brother of deceased could always come to the houses of his sisters. It was somahni time and Mst. Asoodi was cooking meals and other inmates of the house were sitting in the courtyard. There must be some light also burning because the food was still to be eaten which was being cooked. Some light also must be coming from the fire in the hearth. There could not possibly .be another assailant because had there come another person or for example a stranger all the inmates of the house would have noticed him and it is not possible that the real culprit would have been allowed to escape arid sister would impli cate her own real brother.

Mashirnama of vardat Exh. 15 on the record shows that scene of offence was in the courtyard of the house of Gul Hassan in which there was a small katcha mud built room without doors towards south of the house. The door faced east while backside towards west. There were two hearths in front of the room where food was cooked. There was blood near the hearth where Mst. Asoodi was stated to have been cooking food.

Investigating Officer Jan Mohammad has deposed before the trial Court that when complainant brought injured Mst. Asoodi to the police station for report he registered report and also examined Mst. Asoodi and prepa red mashirnama of her injuries. Perusal of record indicates that there is police statement of Mst. Asoodi recorded by A. S. I. on 15th September, 1977. This statement can also be treated as dying declaration. I have cerefully read this statement and I find that there is no inconsistency between this statement and the dying declaration. Deceased has given the same story and has implicated appellant as the person who had shot her with pistol. In such circumstances T find no reason whatsoever to say that this dying declaration does not ring true.

So far other evidence produced by the prosecution is concerned all the three eye‑witnesses, namely P. W. 1 Ashraf complainant, P. W. 2 Gul Hassan and P. W. 3 Inayat did not support the prosecution case before the trial: Court and care declared hostile and were also cross examined by the prosecution. Complainant Ashraf was confronted with F. I. R. while other two‑witnesses were confronted with their 164, Cr. P. C. statements. It is obvious that complainant Ashraf and P. W. Gul Hassan are closely related to the. appellant who is their sala.' Some time after the incident when the passion cooled off they changed their mind and withdrew sup port from prosecution. In their depositions before the trial Court they stated that they did not see the assailant and at the time of incident they were sitting in the upper portion of the house. Their attention was drawn on the report of fire‑arm and when they came down they saw Mst. Asoodi lying injured and they did riot see the assailant. In F. I. R. as well as in dying declaration it .is mentioned that Mst. Mooran was lying on the cot near the hearth and she also saw the incident. In the depositions of wit nesses before the Court they stated that she was lying in the room and she did not sere the incident. It is very obvious that they have changed their statements in order to save the appellant. Although 164, Cr. P. C. statements of witnesses Gul Hassan and Inayat have been brought on the record and could be treated as substantive evidence as contemplated under section 265‑J, Cr. P. C. but there are inherent defects. Both P. Ws. Gul Hassan and Inayat have deposed before the trial Court that their 164, Cr. P. C. statements were not recorded according to law in presence of the Magistrate. They were sitting outside the office of Mukhtiarkar and their thumb impressions were obtained. Mukhtiarkar before whom those statements were recorded was not examined by the prosecution to prove that those statements were recorded in accordance with law. Similarly complain ant Ashraf also went back on F. I. R. and did not support the prosecution case. In such circumstances the trial Court has rightly excluded from consideration evidence of the eye‑witnesses.

So far the evidence with regard to the recovery of pistol and cartridge from appellant is concerned, P. W.A mashir Piaro has not supported the ‑prosecution case and was declared hostile. Co‑mashir Mohammad Yousaf was examined as P. W. 5 but he has also not supported the prosecution case and was declared hostile. The report of the Ballistic expert is positive and the learned trial Judge did not rely upon the statement of the Investi gating Officer for the reason that there was inordinate delay in sending the parcels to the laboratory which was not explained. The trial Court has convicted the appellant on the basis of dying declaration alone. Legal position as stated above is that there is no express bar that conviction can be based on the dying declaration without corroboration if that dying declaration rings true. In the instant case as stated above I find myself in agreement with the trial Court that in the absence of background of enmity between deceased and appellant there is no reason why deceased Mst. B Asoodi should falsely implicate her own real brother. For the facts and reasons mentioned above conviction is rightly made on the basis of dying declaration which sounds truthful and there is no reason whatsoever for interference. In the result the appeal is dismissed.

Appeal dismissed.

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