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Criminal Appeal No. 427 of 1968, decided on 19th October, 1971.

---S.302--Evidence Act (I of 1872), S.32--Dying declaration, probative value of--A genuine and true dying declaration, held, could acted upon without any corroboration for convicting a person for murder under S.302, P.P.C.

Zabta Khan v. State P L D 1963 Pesh. 66 ref.

---S.302--Evidence, appreciation of--Dying declaration of deceased recorded by a Magistrate appearing genuine and true--No previous enmity or ill-will between deceased and accused nor his relations having any motive whatsoever for falsely implicating accused, if culprit was indeed some other person--Conviction maintained in 21'.-cunistances.

2abta Khan v. State P L D 1963 Pesh. 66 and Siraj pin v. Kala P L D 1964 S C 26 ref.

---S.302--Evidence, appreciation of--Finding of acquittal rf accused on charge under Arms Ordinance, held, would have no, siring upon guilt of accused under S.302, P.P.C7.Tp.

Muzaffar v. State P L D 1961 Lah. 561 ref.

Yusuf Ali Khan, Bar-at-Law for Petitioner.

Mufti Nazar Muhammad, A.A.-G. for the State.

Date of hearing: 19th October, 1971.

--The appellant Sher Baz has been convicted under section 302, P.P.C. by the learned Sessions Judge at Sargodha, and sentenced to undergo transportation for life, for the murder of Rab Nawaz. Both the appellant and the deceased belonged to village Chhaphar Sharif in the jurisdiction of police station Khushab.

2. The facts alleged by the prosecution are very brief. There is said to be enmity between the appellant Sher Baz and Abdul Majid (P.W.9) owing to the fact that 8 or 9 years before the present occurrence Abdul Majid was alleged to have murded the appellant's father. However, Abdul Majid was acquitted with the result that Sher Baz decided to take private revenge. On the 18th of December, 1965, at about raid-day, Abdul Majid was returning to the village after cutting green fodder. He was accompanied by the deceased Rab Nawaz and Manzoor (P.W.10). Shera (P.W.11), who is a Khalazad brother of the deceased and lives in another village, also joined them. As the party approached More Wandha near the Khanqah, the appellant Sher Baz suddenly appeared from the bushes and fired at his enemy Abdul Majid. The shot, however, missed Abdul Majid and hit Rab Nawaz who fell down. The appellant thereupon escaped from the spot. 'Shera proceeded to inform the father of the deceased, namely, Khan Muhammad (P. W.6) who then came to the spot in the company of r5hulam Murshid (P.W.8). The injured Rab Nawaz was taken to the hospital at Khushab, a distance of 15 miles. He was admitted at the hospital at 8 p.m. and examined by Dr. Muhammad Asghar at 8-30 p. gin. On information being sent to the police station, Head Constable Ashiq Hussain (P.W.14) came to the hospital ar.d recorded the first information report (Exh. P.J.) at the dictation of Rab Nawaz himself. The Head Constable later on made an application to the doctor for certifying whether the injured was in a fit condition to make a dying statement, but the doctor opined that owing to an injection having been given to Rab Nawaz, the latter was not in a fit state to make a statement. In these circumstances the recording of the dying statement was deferred to the next day. The Naib-Tehsildar of the area, namely, Mr. S. Sadiq Ahmad (P.W.2), exercising the powers of a Magistrate III Class, visited the hospital on the 19th of December, 1965 and after obtaining the necessary information from the doctor ( xh. P-*G/A), he recorded the statement of Rab Nawaz. This statement is Exh. P.N. and names the appellant as the assailant. It is practically in the same terms as was the earlier statement made by the injured person before Head Constable Ashiq Hussain, soon after his admission at the hospital. There is some conflict of opinion between the Naib-Tehsildar and Doctor Asghar as to the time at which the dying statement (Exh. P. N) was recorded. The Naib Tehsildar has stated that it was soon after mid-day whereas the doctor has deposed that it was soon after sunset. The learned Sessions Judge has chosen to prefer the statement of the Naib-Tehsildar, while observing that it is a pity that none of these officials noted the exact time on the relevant documents.

3. The appellant was arrested on the 30th of December, 1965. A single barrel gun was produced before the police officer by Ghulam Murshad, who had picked up the same from near the spot alongwith two cartridges including one empty. However, no effort was made to connect the gun with the crime. The learned trial Judge has not placed any reliance on this recovery and has in fact acquitted the appellant of the charge under the Arms Ordinance. The learned counsel appearing for the State has said nothing on this score, and, therefore, the evidence of Ghulam Murshid as regards the recovery of the alleged weapon of offence does not in any manner advance the case of the prosecution.

4. The appellant pleaded not guilty at the trial and asserted that he had been falsely implicated at the instance of his enemy Abdul Majid. He did not produce any defence evidence, but in the cross-examination of Abdul Majid it was suggested that the deceased Rab Nawaz had in fact been hit by an accidental fire from the gun carried by Abdul Majid. The suggestion was of course flatly denied by this witness.

5. In support of its case, the prosecution has placed reliance not only on the dying statement made by the deceased Rab Nawaz, but also on the eye-witnessed account furnished by Abdul Majid, Manzoor and Shera. The learned Sessions Judge has rejected the evidence of Abdul Majid and Manzur on the ground that they are inimical towards the appellant on account of the murder of the appellant's father, but he has placed full reliance upon the dying statement and the oral testimony of Shera, who, as already stated, is a first cousin of the deceased. The question is whether there are any circumstances present on the record militating against the acceptance of the evidence relied upon by the learned trial Judge.

6. We first take up the dying 'statement. We have mentioned that Rab Nawaz made two statements, first to Head Constable Ashiq Hu sain at 9-15' p.m. on the 18th of December, 1965, and the second bore Nailrtehsildar Mr. S. Sadiq Ahmad at about mid-day on the 19th of December, 1965. In both these statements, he has given a consistent account of the incident and has frankly stated that the appellant has aimed his gun at Abdul Majid but the shot accidentally hit the deceased. He has also stated that there was no enmity between him and the appellant Sher Baz. It is now well settled that if a dying declaration; is genuine and true, it can be acted upon without any corroboration for convicting a person for murder under section 302, P. P. C. As observed in Zabta Khan v. State P L D 1963 Pesh. 66, the value bf1 a dying declaration in each case depends on its own facts andl circumstances. It has, however, to be seen whether the dying declaration intrinsically rings true, whether there is no chance of mistake on the part of the dying man in identifying or naming hiss assailant; and whether it was free from prompting from any outside quarter and was not inconsistent with the other evidence and circumstances of the case. Applying these tests to the dying statement before us, we have no reason to doubt its genuineness and truthfulness. The injured person lived until 9-15 p.m. on the 19th December, 1965. The certificate (Exh. P.G/A) recorded by the Medical Attendant Dr. Muhammad Asghar clearly shows that at the time the deceased made his statement before the Naib-Tehsildar, he was in a fit state to do so. It is true that the doctor did not remain present with the Naib-Tehsildar during the recording of the statement, but that is immaterial for the reason that the statement is a very short one indeed and could not have taken more than a few minutes to record. The Magistrate has clearly deposed that throughout the making of his statement, Rab Nawaz remained fully in possession of his senses. The discrepancy as to the time at which the statement was recorded, becomes immaterial in the circumstances. In the absence of the timings having been recorded in the relevant documents, we see no reason to differ from the learned Sessions Judge when he prefers the timing given by the Naib-Tehsildar. Even if the lame indicated by Dr. Asghar is accepted as the correct time when the statement was made, the fact remains that at that time the deceased was in a fit state to make the statement. The dying declaration must, therefore, be regarded as a genuine statement made by the deceased himself before a responsible official exercising magisterial powers.

7. As to the truthfulness of the statement itself, it is clear that there was no previous enmity or ill-will between the deceased and the appellant. Shera, the first cousin of the deceased, was cross-examined at some length but nothing was brought out to show that the deceased or his relations could have any motive whatsoever for falsely implicating the appellant, if the real culprit was indeed some other man. The observations of their Lordships of the Supreme Court in Siraj Din v. Kala P L .D 1964 S C 26, viz. that. in the case of a single assailant substitution is somewhat. rare, are fully attracted to this case. In these circumstances we have no hesitation in placing full reliance upon the dying statement of Rab Nawaz to the effect that he was hit by a shot fired by the appellant Sher Baz.

8. Besides the dying statement; reliance has been placed upon the ocular account given by Shera (P.W.11). The observations, we have already made regarding the credibility of the deceased Rab Nawaz, apply equally to Shera. He is no doubt related to the deceased but has no motive whatsoever for the false implication of the appellant. The suggestion that the deceased had been hit by an accidental shot fired by Abdul Majid was significantly enough not put to Shera. The learned trial Judge was, therefore, right in placing reliance on the evidence of Shera.

9. For the foregoing reasons we are satisfied that the appellan has been rightly convicted under section 302, P.P.C. for causing the death of Rab Nawaz. The learned trial Judge has already give the appellant the benefit of his tender age at the time of the offence was committed.

10. Before we conclude, we might take note of the submission made by the learned counsel for the appellant that as the latter has been acquitted of the charge under the Arms Ordinance, it must be held that he never wielded the gun with which the death of Rab Nawaz is supposed to have been caused. The argument is clearly untenable, as the learned Sessions Judge has confined his attention, in this connection, only to the gun produced before the police officer by Ghulam Murshad (P.W.8) The learned Judge has said nothing about the gun which was in the hands of the appellant at the time he committed the offence. Having placed full reliance upon the dying statement and the evidence of Shera (P.W.11), the learned Judge was bound to hold that at the time of the commission of the offence the appellant was in possession of a gun with which the death of Rab Nawaz was caused. However, he did not advert to this aspect of the matter and recorded the finding of acquittal only in respect of the gun produced before the police officer by one of the prosecution witnesses, It is clear that in these circumstances this finding of acquittal has no bearing upon the guilt of the appellant under section 302, P. P. C. In any case, as observed by the learned Judges in Muzaffar v. State P L D 1961 Lah. 561 the acquittal of the appellant of a charge under the Arms Ordinance does not necessarily vitiate his conviction for the main offence.

11. For the foregoing reasons the appeal fails and is hereby dismissed.

S.G.D./5-58/L Appeal dismissed.

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