P L D 1960 (W (PLP)

SHABIR AHMAD,_J.‑--Seven persons, namely, Taj Mahmood, Dost Muhammad, Din Muhammad, Sher Muhammad, Muhammad Ashraf, Bashir Ahmad and Salehon, all inter‑related, residents of village Bana Mian, Tahsil Bhalwal, were tried by Ch. Hamid Ullah, Additional Sessions Judge, Shahpur at Sargodha, on charges under sections 148 and 302/ 149, Pakistan Penal Code, for having, on the 23rd of August 1957, formed themselves into an unlawful assembly and committed rioting armed with deadly weapons and in prosecution of the common object of the unlaw ful assembly committed the murder of their co‑villager Muhammad Hayat. The learned trial Judge acquitted all the accused of the murder charge as well as of the charge under section 148, P. P. C. but convicted Taj Mahmood, Dost Muhammad, Din Muhammad and Salehon under sections 325/34, Pakistan Penal Code, sentenc ing each of them to seven years' rigorous imprisonment. Two appeals have been preferred against this judgment, one by the State No. 306 of 1959 against the acquittal of all the accused persons of the murder charge and the second by the four convicts named above against their convictions under section 325/34, Pakistan Penal Code. This judgment will dispose of both the appeals.

2. The occurrence took place at sunset time on the 23rd of August 1957 and was reported at the Miani Police Station, situated at a distance of four miles from the scene of occurrence at 7‑45 p.m. on the same day by P. W. 5 Muhammad Haider a Claims Officer of Sargodha and a real uncle of Muhammad Hayat deceased. The deceased was a Graduate and was doing zamindara work. Three of the accused persons were studying at different colleges in Lahore during the days of occurrence; Sher Muhammad n the F. C. College, Bashir Ahmad in the Law College and Muhammad Ashraf in the Hailey College of Commerce at Lahore.

3. P. W. Muhammad Haider stated in the first information report that he had learnt about the occurrence in his field from Mst. Shahzada Begum P. W., wife of Muhammad Hayat deceased, who told him that Muhammad Hayat had been mercilessly injured by Taj Mahmood appellant and others. On this information he went to the house of Muhammad Hayat where P. Ws. Shamas and Alam were also present. He asked Muhammad Hayat as to what had happened and he (the deceased) informed him that while he (the deceased) was coming from his baithak to his house at about sunset time and reached the shop of Muhammad Din blacksmith he was suddenly attacked by Taj Mahmood, Dost Muhammad, Din Muhammad, Sher Muhammad Bashir Ahmad, Muhammad Ashraf and Salehon who were armed with hatchets and dangs and on receipt of the injuries Muhammad Hayat fell down. The cries of Shamas and Alain P. Ws. brought Ghulam Husain P. W. to the spot. Mst. Shahzada Begum P. W., wife of Muhammad Hayat, and Mst. Ghulam Fatima, his aunt, had also reached there. Mst. Ghulam Fatima had received an injury on her hand, while she was trying to save Muhammad Hayat from the attack of the accused. As for the motive for the crime Muhammad Haider stated in the first information report that Mst. Nawab Begum wife of Din Muhammad accused had eloped with someone in village Bhalwal and the accused suspected that Muhammad Hayat deceased had a hand in this elopement and that he was assisting the enticer.

4. Chaudhri Anwar Mahmood (P. W. 24), the then Station House Officer, Miani Police Station, took up the investigation in hand. He reached the spot at 9‑30 p.m. the same day and the first thing which he did was to record the statement of Muhammad Hayat, which has been tendered in evidence as Exh. P. T. as a dying declaration of the deceased. Before his expiry, the deceased had made another statement Exh. P. M. which has been tendered as a second dying declaration, recorded at 12 midnight, also written by Chaudhri Anwar Mahmood and bearing his signatures. It also bears the attestation of Dr. Captain Muhammad Nawaz, a retired Civil Surgeon of Miani, and the signatures of one Abdul Latif, a dispenser as a marginal witness. It may be stated that Exh. P. T. mentioned above, which is written by Ch. Anwar Mahmood does not indicate the time when it was recorded, nor does it bear the signatures or attestation of any marginal witness.

4. The eyewitness account of the occurrence was given at the trial by Muhammad Din (P. W. 6), Nazar Muhammad (P. W. 7), Ghulam Husain (P. W. 8). Shamas (P. W 11) and Mst. Shahzada Begum (P. W. 12). The learned trial Judge has discarded the evidence of each one of these witnesses on the ground that between themselves they formed one faction and by reference to certain documents produced on the file it was made clear that they were all hostile and inimical to the accused party. The criticism of these witnesses made by the trial Judge and not effectively met by the prosecution leads us to concur in the conclusion arrived at by the learned trial Judge that it was quite unsafe to accept their testimony. Muhammad Din and Nazar Muhammad P. Ws. were neither mentioned in the first information report nor in the dying declaration (Exh. P. M.) but are mentioned in Exh. P. T. The eyewitnesses mentioned in the first informa tion report were Shamas, Alam and Ghulam Husain. Ghulam Husain was admittedly a member of the party of the deceased against that of Taj Mahmood accused and it was brought out in evidence that Ghulam Husain P. W. was implicated in certain criminal complaints in which Taj Mahmood was openly assisting his opponents. Alam P. W. showed himself to be a tenant of Taj Mahmood accused and the prosecution urged for the credibility of his statement on that score. It is not proved that he is a tenant of Taj Mahmood, but even if he were, the fact that he has come forward to depose against Taj Mahmood and his party would only speak of his open animosity against them. He is a chance witness having allegedly gone to the house of the deceased to obtain a lease of land from him which points out to his contacts. with the deceased. Shamas P. W. is closely identified with the deceased party and has figured in litigation between the party of the deceased and that of the accused. Mst. Shahzada Begum P. W., wife of the deceased, was injured and her injuries would apparently point to her presence at the spot at the time of the occurrence but curiously, neither in the first information report nor in the dying declarations made by the deceased was any mention of her injuries made although the injuries of Mst. Ghulam Fatima (not produced at the trial) were specifically noted in these documents. Shahzada Begum was not examined medically until the 27th of August 1957, four days after the occurrence, and the. reason for this delay has not been ex plained. But brushing these considerations aside, the fact that she is the widow of the deceased makes it difficult to accept her version of the case implicating the whole lot of the accused persons as the assailants of her husband as wholly true.

5. The other item of evidence in the case was certain recoveries alleged to have been made from some of the accused persons but it is no use dwelling on this part of the evidence as none of the weapons allegedly produced by the accused party was stained with blood to show that these articles or anyone of them, was used in this occurrence.

6. We are then left with the two dying declarations (Exhs. P. T. and P. M.). The defence assailed the document Exh. P. T. as a bogus document which was fudged into the case, and from the several relevant indications appearing in this connection we have formed the view that prima facie this con tention is perhaps not wrong. This document was written by Ch. Anwar Mahmood P. W. the investigating officer, earlier in time than Exh. P. M. and it contains far larger details than the latter, introducing in particular the names of Muhammad Din and Nazar Muhammad, P. Ws. 6 and 7, respectively, as eyewitnesses. As already stated above, this document does not have the advantage of any marginal attestation like Exh. P.M., but the worst criticism against this document, which has been made by the defence and not explained at the trial by the prosecution, is that Exh. P. T. was showed as the opening sheet of the zimni statements in this case and was written on a page taken from some blank zimni book, not bearing any number. The zimni book of the present case bears serial No. 3215 beginning with page 38 and it would appear that page 37 of the same book was used in recording the zimni statement of one Muhammad Yusuf in another case under section 411, Pakistan Penal Code on the 8th of August 1957. The page containing the alleged statement of Muhammad Hayat deceased and introduced as a dying declaration cannot be page 37 of book No. 3215. Page 37 of book No. 3215 relating to F.I.R. No. 26, Miani Police Station. referred to above was put in a sealed cover by the committing Magistrate at the instance of the defence, which was opened by us for examining it. The Sub‑Inspector Chaudhari Anwar Mahmood was not asked any question about it during the proceedings of this case.

7. The learned trial Judge has excluded the statement (Exh. P. T.) from consideration and on the facts revealed we see no reason to adopt a different course. The prosecution is then left with Exh. P. M. as the only piece of evidence forming the sum total of its proof against the accused persons. The law with regard to dying declarations is clear. If a dying declaration is found to be genuine and true, it can by itself form a satisfactory basis for conviction. Some of the main tests for determining the genuineness of a dying declaration are whether intrinsically it rings true, whether there is no chance of a mistake on the part of the dying man in identifying or naming his assailants and whether it is free from prompting from any outside quarter and is not inconsistent with the other evidence and circumstances, of the case. The value of a dying declaration in each case depends on its own facts and the circumstances in which the dying declaration was made in relation to those facts. If a dying declaration stands the normal tests, for judging its veracity it becomes a wholly reliable piece of evidence, but if it does not it is far worse than an ordinary statement of a witness because the maker of the dying declaration was not subjected to cross examination and was not under an oath. If a dying declaration is found to be false in a material particular, it must react on its genuineness as a whole because in the case of a dying declaration the veracity of its contents is presumed on the basis that it happens to be the word of a dying man, who on normal human behaviour would not at the close of his life like to tell a lie therefore if a single matter is introduced in the dying statement which has a bearing on the result of the case and is found to be false, it will hit the whole dying declaration, as it cannot then be said that it is the statement of a truthful person who has made the statement in realisation of his obligations to adhere to the truth while he is quitting his mundane existence to join his creator, to whom he is answerable for his deeds. This is not saying that if a dying declaration is false in some particulars, it must always be rejected, but most certainly if it is found that the dying man in his statement has indulged in telling lies even partially, that would put the Courts on guard against accepting the rest of the statement without any corroboration, and the result may well be that the whole of the statement is rejected.

8. The dying declaration Exh. P. M. in this case is not consist ent with the medical evidence. The seven accused persons all named in the dying declaration, were stated to be armed with hatchets and dangs, but none of the injuries on the person of the deceased was caused with a sharp‑edged weapon and the nature and location of his injuries, although they are numerous in number‑being twenty three (23) out of which fourteen were abrasions, do not show that it was the work of seven assailants armed with hatchets and dangs. The two alleged eyewitnesses mentioned in the dying declaration, namely, Alam and Shamas, have been held by the trial Court to be false witnesses, yielding the obvious result that they were falsely introduced by Muhammad Hayat in his death bed statement. There is a further lacuna in this statement which it is difficult to get over. The scribe of this document is the same as the scribe of Exh. P. T. and in respect of that document we feel that his conduct requires explanation. In the result, we find ourselves unable to act on Exh. P. M. as a satisfactory and truth ful piece of evidence. In this view of the matter, the prosecution case fails wholly with the result that we dismiss the State Appeal No. 306 of 1959 and accept that of the convicts, namely, Taj Mahmood, Dost Muhammad, Din Muhammad and Salehon, and order their acquittal. They shall be released forthwith unless they are wanted in any other case.

9. As the document Exh. P. T. appears to be a fabricated piece of evidence and the conduct of Chaudhri Anwar Mahmood, who is its author, makes him prima facie liable for fabricating it, we direct that he should be prosecuted for the offence under section 194, P. P. C for fabricating false evidence, intending thereby to cause, or knowing it to be likely that he will thereby cause, the accused persons to be convicted of a capital offence, viz. murder of Muhammad Hayat. The Registrar will draw up a complaint giving details of the facts constituting the offence, which prima facie appears to have been committed by the aforesaid Sub Inspector Chaudhri Anwar Mahmood. The complaint shall be forwarded to the District Magistrate, Sargodha, for trial by him according to law. The document Exh. P. T. with its original and the zimni statement of Muhammad Yusuf in F. I. R. 26 of Police Station Miani written on page 37 of Book No. 3215 and the covering paper of that statement containing the report of proceed ings taken in the same case by the investigating officer on the 8th of August 1957 shall be forwarded as annexures to the complaint. K.B.A. Appeal accepted.