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Constitutional Petition No. 41 of 1985, decided on 19th May, 1986.

---‑‑Ss. 3 & 4‑‑Provisional Constitution Order (I of 1981), Art. 9‑ Constitutional jurisdiction‑‑Questions of facts‑‑Appreciation of points pertaining to facts and circumstances of case‑‑Exclusive jurisdiction for better appreciation thereof, held, was of forums created under Ordinance‑‑High Court exercising constitutional jurisdiction, would not go into disputed facts and circumstances of case.

‑‑‑Ss. 3 & 4‑‑Provisional Constitution Order (1 of 1981), Art. 9‑‑ Constitutional jurisdiction‑‑Points not raised before forums created under Ordinance who had exclusive jurisdiction to‑ give findings thereon‑‑Such points, held, could not be taken .up before High Court in constitutional jurisdiction.

‑‑‑S. 3(2)‑‑Evidence Act (I of 1872), preamble‑‑Provisions of Evidence Act, 1872 excluded from proceedings under Ordinance 11 of 1968‑‑Purpose for non‑application of Evidence Act is to make admissible evidence of type which would Otherwise be inadmissible in judicial proceedings to which Evidence Act was applicable‑‑Even hearsay evidence would become admissible to proceedings under Ordinance.

‑‑‑--S. 4(1)(b)‑‑Evidence Act (I of 1872), S.32‑‑Dying declaration Admissibility‑‑Deceased taking a report about incident to Naib‑Tehsildar when he was alive but injured‑Such report was an information to a Police Officer on basis of which Police Officer made a report in writing of offence under S.4(1)(b) of Ordinance‑‑Such report was not required to be made on ‑ oath‑‑Report became a dying declaration and piece of evidence only after deceased had died‑‑Such report could also not be treated as a statement under S.161, Criminal Procedure .Code being First Information Report of commission of an offence by accused which became admissible piece of evidence before Tribunal after death of informant.

‑‑‑S. 4(1)(d)‑‑Evidence Act (I of. 1872), S.32‑‑Dying declaration‑‑‑Admissibility‑‑Dying declaration is admissible in proceedings before Tribunal under Ordinance‑‑Although Evidence Act was not applicable to proceedings under Ordinance but merely on this account dying declaration, held, could not be excluded from consideration by forum created by Ordinance‑‑Such dying declaration could be a valid piece of evidence before Tribunal‑‑On analogy that dying declaration was a good piece of evidence in judicial proceedings and conviction could be recorded on its basis.

‑‑‑S. 32‑‑Dying declaration‑-A straight forward narration of circum stances of offence.

‑‑‑Art. 9‑‑Criminal Law (Special Provisions) Ordinance (II of 1968). Ss. 3 & 4‑‑Constitutional petition‑‑Authorities having jurisdiction to adjudicate upon matter, had ample evidence available before them and they properly appreciated same and their judgment was based on sound reasoning and evidence and no error of jurisdiction found in impugned order‑‑Interference declined in 'constitutional jurisdiction.

Tahir Muhammad Khan for Petitioner.

Yaqub Khan Yousufzai, A.‑G for Respondents Nos. 1 to 4.

Date of hearing: 19th May, 1986.

This petition, filed by Ghulam Muhammad petitioner under Article 199 of the Constitution of Islamic Republic of .Pakistan, 1973 read with Article 9 .of the Provisional Constitution, order, challenges the order, dated I1‑10‑1982 of the Deputy Commissioner. Turbat respondent No., 2, which was upheld in appeal by judgment, dated 16‑11‑1982 by the Commissioner Mekran Division and the judgment, dated 16‑4‑1985 of the Member Board of Revenue, respondent No. 4, maintaining conviction and sentence of the petitioner.

2. The facts relevant for the purpose of this petition are that one Rahim Khan son of Dad Muhammad made a report to Naib‑Tehsildar Mand on 23‑2‑1981 that on the said date at morning time (9. a.m.) he had gone to the Karez of the village for ablution when Ghulam Muhammad, petitioner herein came and started abusing him about a dispute of the house and then fired three pistol shots which hit him and he was injured. The injured was taken to the hospital and he said that he had no enmity with the assailant. The injured Rahim Khan subsequently died on the same day. The petitioner was challaned under section 302, P.P.C. and as the offence was covered under the provisions of the Criminal Law (Special Provisions) Ordinance, 1968 (hereinafter referred to as the 'Ordinance'), the Deputy Commissioner, Turbat took cognizance of the offence and referred it to the tribunal for decision. The tribunal recorded evidence of six witnesses for the prosecution. The tribunal also recorded the statement of the petitioner who denied the commission of the offence and also produced two defence witnesses. The tribunal held the petitioner guilty of murder of Rahim Khan and recommended for his conviction. The Deputy Commissioner agreed with the finding of the tribunal, convicted the petitioner, vide order, dated 10‑11‑1982 and sentenced him to undergo R.I. for 14 years. This conviction and sentence was upheld in appeal by the Commissioner and in revision by the learned Member Board of Revenue.

3. The learned counsel for the petitioner has challenged the impugned orders of the learned respondents Nos. 2 to 4 on three‑fold grounds; firstly the report of the injured, which was treated as dying declaration after his death, disclosed three injuries whereas the doctor found only two injuries on the person of Rahim Khan; secondly, there was no evidence about dispute about house and there was no motive against the petitioner to commit the offence; and thirdly, there was no evidence of any other person to corroborate the dying declaration.

4. It shall be seen that the aforesaid three points pertain to the facts and circumstances, of the case, the better appreciation of which was the exclusive jurisdiction of the forums created under the Ordinance. The High Court exercising the constitutional jurisdiction would not go into disputed facts and circumstances of the case. Moreover, to our querry whether these points were taken Up before the learned respondents Nos. 2 to 4, the learned counsel for the petitioner replied in the negative. It shall thus be seen that these. points were for the first time taken up in the present constitutional petition and were not taken up before the forums where they should have been taken up. It was the exclusive jurisdiction of the forums created under the Ordinance to give their findings on the aforesaid points put the same were not at all pleaded before them. These points could not, therefore, be taken up before us.

5. Confronted with this situation the learned counsel for the petitioner challenged the dying declaration on the grounds that Evidence. Act was not applicable to proceedings under the Ordinance and that dying declaration was inadmissible as it was neither made on oath nor in the presence of the Court nor before the accused nor it was subjected to cross‑examination and it was a piece of evidence made by the I.O. under section 161, Cr.P.C. and was not admissible.

6. It is correct that under subsection (2) of section 3 of the Ordinance the application of the Evidence Act has been excluded from the proceedings under the Ordinance. The purpose before the Legislature for non‑application of the Evidence Act to proceedings under, the Ordinance was to make admissible evidence of the type which would otherwise be inadmissible in judicial proceedings to which the Evidence Act is applicable. It would thus mean that evidence which would ordinarily be inadmissible under the evidence Act in judicial proceedings would become admissible to the proceedings under the Ordinance. Even hearsay evidence would become admissible to proceedings under the Ordinance.

7. However, the contention of the learned counsel cannot prevail for the simple reason that dying declaration became a piece of evidence in the proceedings before the tribunal after Rahim Khan expired. He had made this report to the Naib‑Tehsildar when he was alive but injured. It was, therefore an information to a police officer on the basis of which the police officer made a report in writing of this offence under clause (b) of subsection 11) of section 4 of the Ordinance. This being the information to the police officer was not required to be made on oath. This report became a dying declaration and piece of evidence only after Rahim Khan had died. Naturally it could neither be made on oath nor in the presence of a Court nor before The accused. It cannot also be treated as a statement under section 161, Cr.P.C. because it was a First Information Report of the commission of an offence by the petitioner and it became admissible piece of evidence before the tribunal after the death of the informant.

8. Dying declarations have been made admissible piece of evidence under section 32 of the Evidence Act. Although this Act is not applicable to proceedings under the Ordinance, but merely on this account this cannot be excluded from consideration by the forums created by the Ordinance. On the analogy that a dying declaration is, a good piece of evidence in judicial proceedings and conviction can be recorded on its basis, it could be a valid piece of evidence before the tribunal. It is a straightforward narration of the circumstances of the offence. The mere fact that it narrates that Rahim Khan was injured by three fire shots and the doctor found only two injuries would not throw .any doubt of discredit on its veracity. The actual emphasis in the dying declaration is on the three shots fired by the petitioner, and not on the point that the information received three injuries.

9. The learned respondents Nos. 2 to 4. had the jurisdiction to adjudicate upon the matter, ample evidence was available before them and they, properly appreciated the same and their judgments were based on sound reasoning and evidence. We do not find any error of jurisdiction in the impugned judgments. There is no merit in this petition which is dismissed with no order as to costs.

10. By our short order of today we had dismissed the petition and above are the reasons therefore.

M.Y.H. ‑‑‑‑‑ Petition dismissed

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