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Criminal Appeal No. 3 of 1986, decided on 17th June, 1987.

(On appeal from. the judgment and order of the High Court, dated 7‑2‑1985 in Criminal Appeal No. 2 of 1984).

‑‑‑S. 302‑‑Qanun‑e‑Shahadat Order (10 of 1984), Art. 46 Dying declaration, reliability of‑‑Conviction when can be based on‑‑Number of persons involved in murder and existence of background of enmity between them and deceased‑‑Not safe to rely upon dying declaration and rule seeking corroboration should be invoked.

Abdul Razik v. The State P L D 1965 SC 151 ref.

Manzoor Hussain Gillani, Advocate‑General for the State.

Raja Mumtaz Hussain Rathore for Respondents.

'This appeal, by leave, is directed against the judgment of the High Court dated 7‑2‑1985 whereby accepting the appeal, respondent No. 1, namely, Mst. Gulab Jan, was acquitted of the charge of murder and the appeal filed by the State to question the order of acquittal recorded by the Sessions Judge, Poonch, in favour of respondents Nos.2 to 5, namely, Suleman, Muhammad Rashid, Mst. Sabir Jan and Mst. Nishat Begum, was disallowed.

2. The appeal is the outcome of the circumstances detailed below: The respondents were tried for the murder of Mst. Aslam Jan wife of Muhammad Rashid, respondent No.3 and daughter‑in‑law of Suleman, respondent No. 2. The learned Sessions Judge, Poonch, vide judgment dated 15‑2‑1985 convicted and sentenced Mst. Gulab Jan, respondent to life imprisonment under section 302, A.P.C. whereas the other respondents (accused) were acquitted.

3. Mst. Gulab Jan appealed against her conviction before the High Court while the State rolled in an appeal against the order of acquittal recorded in favour of other respondents. The High Court, vide order dated 7‑2‑1985 allowed the appeal of Mst. Gulab Jan, respondent, and acquitted her whereas the appeal filed against the order of acquittal recorded in favour of other respondents (co‑accused) was dismissed.

4. Leave to appeal questioning the acquittal order of all the respondents was moved. It was only granted to determine as to whether the High Court has misdirected itself in holding that the dying declaration of Mst. Aslam Jan to involve Mst. Gulab Jan, respondent, could not be believed as it was the result of her being tutored by her mother and if dying declaration inspires confidence, the conviction can be based on it without its confirmation by independent evidence. Leave to appeal was refused so far as other respondents are concerned.

5. The prosecution story, as narrated in the judgment of the High Court is "Suleman Khan, Muhammad Rashid, is son, Mst. Gulab Jan, his wife, Mst. Sabir Jan, Mst. Nishat Begum, daughter‑in‑law. were tried on the charge of murder of Mst. Aslam Jan, wife of Muhammad Rashid and daughter‑in‑law of Suleman Khan and Mst. Gulab Jan, respondents. Mst. Aslam Jan was deeply burnt in the night of 7th September, 1980 and expired on 11th September .(A.N.) in C.M.H. Rawalakot. Her statement was recorded by the Magistrate Ist Class, Rawalakot on 8th September at 10 A.M. in the hospital, in presence of the doctor. In her statement (dying declaration), she narrated that she was married to Muhammad Rashid, 4 years earlier. There was no issue out of the wedlock but presently she was pregnant for the last 9 months Her relations with the husband were very good and they started living separate from their in‑laws since Magh (February) and after lapse of 4 months, her in‑laws compelled her to live with them. Mst. Gulab Jan, her mother‑in‑law, persuaded Muhammad Rashid respondent, the husband of the deceased, to turn the deceased out of the house as the deceased was disliked by her mother‑in‑law. Last night i.e. on the night of 7th September, at the time of going to bed, her parents‑in‑laws quarrelled with her and attempted an assault. She ran away but was over powered by Mst. Sabir Jan, wife of Sarwar, and Mst. Nisha (Nishat Begum). Meanwhile, Mst. Gulab Jan arrived with an oil‑can. sprinkled oil on the deceased. with the remarks that if she did not leave the house then she had to go otherwise ‑and instantaneously set her on fire. It was disclosed that the father‑in‑law and other members of the family, were partisan to the act of mother‑in‑law of the deceased. Mst. Gulab Jan was incited to do so by her husband as he could not do it out of fear of defame. On conflagration, she (deceased) raised hue and cry which attracted the immediate neighbours, as a consequence, Muhammad Aziz son of Balls, Hamid and his two grown‑up sons, arrived on the scene. She (deceased) narrated the whole incident to them, by ascribing Mst. Gulab Jan sprinkling oil on her and setting fire. Suleman Khan, her father‑in‑law, refused to take her (deceased) to the hospital but on persuasion of Aziz, Hamid, Latif and others, and their asking him as to what answer he would give to her heirs that why she was not given medical treatment, her father‑in‑law, husband and others brought her to the hospital. The dying declaration was recorded by Raja Lal Hussain Khan, Revenue Assistant, Magistrate Ist Class, Rawalakot. Two days after, i.e., 11th September, she (deceased) gave birth in the hospital, to a dead child."

6. The learned Sessions Judge, as said earlier, found that Mst. Gulab Jan, respondent, was guilty of culpable homicide amounting to murder for causing the death of Mst. Aslam Jan, deceased, by setting fire to her body after spraying kerosine oil. The other accused were, however, acquitted.

7. Mr. Manzoor Hussain Gillani, the learned Advocate‑General, submitted that since there is no substance in the appeal, he would not contest it.

8. We have, for our own satisfaction, looked into the evidence and the impugned judgment.

9. The primary evidence against Mst. Gulab Jan in the case is the dying declaration of the deceased. What is the value of dying declaration The law is that conviction can be based on dying declaration alone. But since the dying declaration does not stand the test of cross‑examination, utmost care is always taken by the Courts in recording conviction on dying declaration alone. To find out truth or falsity of a dying declaration, a case is generally considered in all its physical environments and circumstances. It is necessary to find out how far the evidence or its different parts fit in with the circumstances and possibility that can safely be deduced in a particular case., Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that such statements are made in the absence of an accused who has no opportunity of testing the veracity of the statement by cross- examination. But once, the Court comes to the conclusion that the dying declaration is the truthful version as to the circumstances of the death, conviction can be recorded on such dying declaration alone. However, as a matter of prudence the Courts invariably insist for independent corroboration of such a declaration for recording the conviction.

10. If the Court, after examining the dying declaration in all its aspects, and testing its veracity, comes to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, corroboration it cannot form the basis of conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the Court, in a given case, has come to the conclusion that the particular dying declaration was not free from the infirmities and such infirmities made the dying declaration alone as insufficient to record conviction. Surrounding circumstances, in such cases weigh heavily to accept or reject the dying declaration.

11. The above statement of law gets support in various authorities; one being Abbul Razik v. The State P L D 1965 SC 151. In that case it has been observed:‑

"To accept it without considering the surrounding circumstances would be totally inconsistent with the safe dispensation of justice. To accept it on considerations of expressions of opinion regarding similar declarations in precedent cases, even if those opinions are accompanied by words indicating reliance on some principle of law, is no less dangerous. On after the most careful scrutiny, applied to all the physical circumstances as they appear from the evidence, is it possible to decide whether it can be said, with the degree of certainty which is made obligatory for reaching a conclusion of guilt, that the account given by the deceased of the manner in which he met his death is worth of belief."

12. In the present case the evidence sufficiently proves the enmity, hatred and aversion between the deceased and the respondents. The suggestion made by the defence counsel in the cross‑examination gives an impression that the accused were of the view that the deceased was of loose character and indulged in flirtation. This may have created hatred and aversion between the deceased and her in‑laws. In these circumstances it would not be safe to rely on the dying declaration without independent corroboration. This view prevailed in Ghulam Jillani and others v. The State 1970 P Cr. L J 619. In this case Mr. Justice Attaullah Sajjad, J. (as he then was), observed that sanctity cannot always be attached to dying declaration and there have been a number of cases in which the dying declaration was found entirely false.

13. To meet such like case, rule of prudence has been evolved by the Courts, for safe dispensation of justice, that ordinarily when a number of persons have been involved and there is a background of enmity between the persons making the dying declaration, the rule seeking of corroboration should be invoked. We respectfully agree with the view taken in the above case. In fact all the superior Courts in the Sub‑continent are in agreement with the above statement of law.

14. In the instant case the incident took place on the night of 7th September, 1980. On raising hue and cry by Mst. Aslam Jan, Aziz, Hamid and his two grown‑up sons, are said to have arrived at the scene of occurrence. They, the prosecution case is, were narrated the whole incident by the deceased. Out of these witnesses, Hamid Azam and Aziz appeared as prosecution witness. Hamid Azam deposed that on his arrival in the courtyard after morning prayer in the mosque, he was asked by Suleman Khan, respondent, to reach quickly. On his arrival on the scene, he found that a hand of Suleman Khan was burnt. He enquired about it from Suleman Khan who pointed towards Mst. Adam Jan lying down outside the premises, with a quilt over her body. He found that her body was completely burnt and on his inquiry, he was told that she (deceased) did so as she was fed up with the treatment of her in‑laws who did not like her stay in the house. On this, he turned round to respondents as to why, she was ill‑treated by them and was answered that she was ayash

15. According to prosecution, Hamid Azam, resiled from his statement made before the Police under section 161 Cr.P.C. The Public Prosecutor by drawing attention of the Court to such statement, requested the Court to declare the witness hostile and to allow him to cross‑examine the witness. On perusal of the police statement of the witness, the request of the prosecution was turned down by the Court. In answer to a question in cross‑examination of the defence Counsel, the witness further stated that Mst. Aslam Jan was divorced by her previous husband and this was her second marriage. She deserted her husband on many occasions and was persuaded by elders of the village to live with her husband. He denied to have been informed by the deceased that she was burnt by the respondents, as a result of their preconcert. Abdul Aziz, another person named in the dying declaration, rendered the identical account of the prosecution version. It was requested by the Public Prosecutor to declare the witness as hostile on account of his deviation from his police statement but the request was turned down. Thus, both the witnesses named in the dying declaration rendered a different account of prosecution story. The dying declaration thus, not corroborated by the testimony of these eye‑witnesses, cannot be relied upon to record conviction.

16. The second set of the prosecution witnesses produced to corroborate the dying declaration consists of testimony of Hav. Muhammad Rahim Khan, brother and Mst. Shah Begum, mother of the deceased. Both of them own the prosecution case. But since these witnesses are inimical to the respondents and the possibility of Mst. Aslam Jan having been influenced by her mother in the hospital to make the dying declaration against the respondents cannot be ruled out, the testimony of two witnesses named above, as held by the High Court, cannot be accepted as independent corroborative piece of evidence. The dying declaration, thus, not free from the possibility of having been made on the influence of her mother, loses the evidentiary value and cannot safely be made basis of conviction without independent corroboration which, as said earlier, is lacking in this case. Besides, the dying declaration is to be accepted or rejected as a whole. It is not, in the circumstances, safe to accept the dying declaration in respect of Mst. Gulab Jan and rule it out in respect of other respondents.

For the foregoing reasons we are satisfied that Mst. Gulab Jan was rightly acquitted by the High Court vide its order dated 7‑2‑1985. The judgment of the High Court, therefore, needs no interference. The appeal, therefore, stands dismissed.

M.Y.H./195/S.A. Appeal dismissed.

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