P L D 1962 Dacca 418 (PLP)

RAHMAN, J.‑This appeal is by an accused person who, has been convicted under section 302 of the Pakistan Penal Code and sentenced to transportation for life. He was tried along with two others who were charged under section "302/109 of the said Code for the murder of one Fatik Khalifa, a tailor, at about 3 a.m. in the morning of Jaistha, 1366 B.S., corresponding to the 17th of May, 1959 in his but at Goadnail, P. S, Fatullah. The trial was held with the aid of four Assessors who were unanimously of the opinion that the appellant before us was guilty of the charge under section 302 of the Pakistan Penal Code but the other co‑accused should be given the benefit of the doubt. The learned Judge has accepted the unanimous opinion of the Assessors and acquitted the other two accused persons.

2. The deceased was originally a resident of village Purba Bidhuail within police station Lohajong and the three accused persons were his cousin brothers living in the same village. For various reasons the relationship between them became strained and the deceased left his village home some 4 or 5 years ago and came to settle at Goadnail in the bari of one Amiruddin Sardar. There he lived in one but with his two wives, P. Ws. 1 and 2, the former being the younger of the two and he had his tailoring shop at Goadnail Bazar. The hut was a dochala but with a tin roof and bamboo bera and it had two jhap doors which could easily be opened from outside even after being closed from within. One door was on the south of the but and the other was on the western side of it. Just to the east of the but there was a khal which flowed from north to south and on the other side of the khal was situated a barrack of the Dhakeswari Cotton Mills No.

2. The barracks were bounded by a boundary wall which were about 5 cubits high and immediately after the wall there were lamp posts of the Mill running by the passage along the barrack. The posts were 10 to 15 cubits high and one of such lamp posts was situated almost opposite to the but of the deceased. The bamboo bera of the hut, according to the prosecution witnesses, was full of chinks and the bhalki, which is the covering between the bera and the room measuring 1 cubits in width, was also stated to have been damaged by the last storm in the month of Baisakh and, therefore, there was an opening between the roof and the bera. Through this and the chinks opening in the bera there came, the prosecution claimed, sufficient light inside the but from the Mill lamp posts.

3. On this night in question the deceased slept with a child and his younger wife P. W. 1 Hasina on a cot in the but while his other wife Jobeda Khatun, P. W. 2, and her two children, a son and a daughter, slept on the floor of the hut. The wives woke up on hearing the cry of the deceased Fatik that he was being murdered. They got up and found Fatik sitting on the cot and the convicted accused Omar Ali inflicting blows on Fatik's shoulder with a long knife. The two clasped hold of the deceased Fatik and raised alarms. At this stage the accused Kaloo who was already inside the hut, it is said, caught hold of the hand of Omar Ali and dragged him out.

4. The hue and cry raised by them attracted the neighbours and a large number of people collected there. Fatik stated to them that Omar had killed him and that he had seen the accused Kaloo and Sabed Ali with him. The two wives of the deceased also told those who assembled there that they had recognised at least the two accused persons, namely, Omar Ali and Kaloo. The doctor who was later sent for, came and rendered first aid to the deceased, stitched up his wound and recorded statement of Fatik as to how he received those injuries. But as the condition of the deceased was serious, he had him sent to the Medical College Hospital, Dacca, where the deceased died at about 3 p.m. on the same day.

5. The first information report was lodged by P. W. 1 Hasina Begum, the younger widow of the deceased and upon the basis of her first information report the enquiry was taken up. The dying declaration recorded by the doctor was seized and a charge‑sheet submitted against the three accused persons on the 27th of July, 1959.

6. According to the prosecution, the motive for the crime was the ill‑feeling between the deceased and the accused persons, as also a proceeding under section 107 of the Code of Criminal Procedure said to have been started by the deceased a few months before the occurrence. The prosecution also attempted to adduce evidence of some kind of conspiracy to murder the deceased.

7. The defence, however, pleaded that the accused persons, who were close relations of the deceased, have been falsely implicated in this case at the instance of Hajrat Ali, P. W. 16, the brother of the younger widow Hasina Begum and some other interested persons due to enmity. They did not, however, challenge that the deceased Fatik had died as a result of the injuries received by him ; but according to them, those injuries must have been caused by some unknown person.

8. In order to establish this case, the prosecution examined some 17 witnesses, of whom the two wives of the deceased, namely, P. Ws. 1 and 2 also claimed to be eye‑witnesses of the incident. P. Ws. 4, 5, 6, 7, 8 and 9 were relations or neighbours who came soon afterwards to the but of the deceased and claimed that they had heard from the deceased himself as to his recognition of his assailants. Some of them also said that it was in their presence that the doctor recorded the statement of the deceased. P. W. 10 was a police constable out on patrol duty. He also visited the hut of the deceased on hearing the hue and cry. According to him, Fatik was unconscious when he reached there but he revived after receiving first aid and made a statement before the doctor, which the doctor recorded. P. W. 13 was a neighbour who came next morning but only just in time to see the doctor recording the statement of the deceased. P. W. 3 was the doctor himself who rendered first aid and recorded the dying declaration. P. W. 14 was the Civil Surgeon who carried out the post‑mortem examination and P. Ws. I1 and 12 were police officers attached to the Ramna Police Station who held the inquest on the dead body of the deceased at the Dacca Medical College Hospital. P. Ws. 15 and 16 were the two co‑villagers of the deceased called to prove the alleged conspiracy to murder the deceased between the accused persons and the deceased. Lastly, P. W. 17 was the police officer who recorded the first information report and investigated into this case.

9. From the above it will appear that the main witnesses, upon whose testimony the recognition of the accused depends are P. Ws. 1 and 2 and the evidence of the dying declaration which has been recorded by P. W. 3 and deposed to by the other witness in this case.

10. So far as P. Ws. 1 and 2 are concerned the learned Additional Sessions Judge, after a careful examination of their evidence, has come to the conclusion that the story of recognition given by these two persons has "no merit and that, in reality, they did not see the assaulting done to their husband". He was, therefore, satisfied that no assault took place within the hut, when they woke up and gathered their senses.

11. With regard to the dying declaration also, the learned Judge has taken the view that there are three different versions of it brought on the record by the prosecution, namely, the one in the first information report the second according to the statement given by the witnesses who deposed thereto, and the third, the statement as recorded by the doctor. None of the three tally. Nevertheless, the learned Additional Sessions Judge did not accept the defence contention that the doctor P. W. 3 could be a party to the preparation of a false dying declaration. He was, however, convinced that the statement was not wholly true. Yet he concluded to the following effect, namely, that "the statement is true so far as it relates to the recognition of Omar Ali but is not true so far as it relates to the other two accused persons. Thus, on, a consideration of the dying declara tion (Exh. 2) in its limited value and the other evidence on record and the circumstances of the case in all its aspect, I am fully satisfied and convinced that the accused Omar Ali caused the fatal injury to the deceased Fatik Khalifa and that he was recognised by Fatik during the attack."

12. Since in the present case the main evidence is that of the two so‑called eye‑witnesses P. Ws. 1 and 2, we have con sidered their evidence with some care. It appears that even with regard to the portion of the evidence relating to the recognition of Omar Ali, neither of them has given a consistent version. So far as the first cry, which is said to have awakened them, is concerned, P. W. 1 stated that what she heard was that the deceased cried "Omar Ali has murdered me" whereas P. W. 2 says that the deceased shouted "Omar Ali and Kaloo had murdered him". So far as the statement made by the deceased to the other witnesses is concerned P. W. 1 states that the deceased told those persons that "Omar Ali had given him the "Kups", that Omar had come inside the but with Kaloo and that Sabed stood at the door of the but". The version of P. W. 2, on the other hand, with regard to the declaration is merely that the deceased stated to those persons that "Omar Ali and Kaloo had murdered him". The name of Sabed was 'not even mentioned by P. W.

2. The two also do not agree as to the nature of the weapon used. While P. W. 1 says that it is a long `chora' P. W. 2 maintains that they used a `dao'. Apart from this, they have been contradicted by their committing Court's deposition which has been put in under section 288 of the Code of Criminal Procedure, and the contradiction is on material points. Again, it will be seen from the first information report that, according to P. W. 1 Hasina Begum, the statement of the deceased was that Omar Ali inflicted the injuries on his persons and Kaloo and Sabed were standing in front of the open door.

13. In this conflicting state of the evidence, it appears to us that the learned Judge has rightly disbelieved the evidence of these two witnesses and came to the conclusion that they actually saw nothing, for by the time they had awakened and gathered their senses, the assailants whoever they might have been, had escaped from the hut. With this conclusion we are in entire agreement.

14. This, therefore, leaves only the dying declaration upon which the conviction has been, in fact, based. There is authority for the proposition that a conviction may be based solely on as dying declaration but before that can be done, we must be satisfied of its genuineness and authenticity. In the present case although the learned Judge stated that there were three different versions of the said dying declaration, he has failed to take into account the other two conflicting ‑versions given by P. Ws. 1 and 2 in the Sessions Court. Thus, there were altogether five different versions of the declaration in this case, the first that was given in the first information report ; the second as deposed to by P. W. 1, the third which came out of the mouth of P. W. 2 in the Court of Session ; the fourth as given by the other witnesses who came there in the night and according to almost all of them the deceased told them that Omar had given him the kups and that Kaloo and Sabed were with him, and lastly, the statement was recorded by the doctor P. W. 3 which reads as follows: "Doctor Babu, I know the people who have inflicted `kopes' (cut blows) on me. They are Omar Ali, Sabed and Kaloo. You will please ask to punish them any how. Last of all, he has said, Doctor Babu shall I survive". P. Ws. 8, 10 and 13 stated that they saw the doctor record the statement deposed to by them, namely, that Omar had given the kopes and that Kaloo and Sabed were with him. The doctor's record, however, shows that this is not what the deceased stated. The defence has also contended that the wives of the deceased did not state either in the first information report or in the committing Court that any statement had been recorded by the doctor. In the circumstances, it is urged that the evidence of the record of the dying declaration is of such an unsatisfactory character that no reliance should be placed upon that record, far less, should it from the sole basis for conviction, particularly, when a portion of it is being found to be false.

15. The learned Advocate appearing in support of the appeal has, of course, also urged that a dying declaration cannot be accepted in part and rejected in part. Either it must be accepted as a whole or not accepted at all and in support of this contention he has placed strong reliance on a decision of the Calcutta High Court in the case of Emperor v. Pramananda Dutta (29 C W N 738). In this case the Calcutta High Court took the view that the dying declaration stands upon a widely different footing from the testimony of a witness given in Court and, as such, in the case of a dying declaration, to accept a portion and to reject the rest is entirely out of the question. There must be absolute guarantee of the accuracy of the record and the truth of the entire statement before it can be acted upon. The decision does not, in our view, lay down any such wide principle, for it appears that the Court also was not oblivious of the fact that the weight to be attached to a dying declaration depends upon the circumstances and surroundings under which it was made and also very much upon the nature of the record that has been made of it and, hence, it is invariably a question of fact as to whether it should be relied upon or not. Normally, when "the record does not contain the exact words of the person making the declaration but is a mixture of questions and answers, the record cannot be considered to be a very reliable one. 17 (sic). In the case before us, however, the evidence of P. W. 3 is that he made two records one in English and the other in vernacular. The latter was in the exact words used by the deceased. Both the versions, tally substantially in the present case.

18. This case has not, however, been accepted as lying down such a wide proposition of law that a dying declaration must be either accepted in toto or rejected in toto even in the Calcutta High Court also in two cases the above‑mentioned decision has not been followed, namely, in the cases of Tara Mia and another v. The Crown (7 D L R 539) and the State v. Muhammad Khalilur Rahman (9 D L R 327).

19. A similar view has also been taken in the. West Pakistan High Court in the case of Murad v. The State (P L D 1957 Lah, 332). Even accepting this view that a dying declaration like any other statement of a deceased person is admissible under section 32 of the Evidence Act and has unlike the English law no higher sanctity attached to it the question of the weight to be attached to the statement must depend upon the circumstances surrounding the making of the statement and the authenticity of the record prepared. In the present case in view of the five conflicting versions that have been given it would, in our opinion, be extremely unsafe to rely upon any portion of the dying declaration recorded by the doctor P. W. 3, for his record has not been supported by at least three prosecution witnesses who stated that they were present when the record was prepared and they heard the deceased say something which was different from the record prepared by the doctor. In this view of the matter, there can be no other alter native but to admit this appeal and acquit this accused also.

20. In the view that we have taken we also do not consider it necessary to enter into the other questions raised in this appeal as to the sufficiency or otherwise of the evidence with regard to the quantum of light that came into the but from the lamp posts outside or as to whether there were any mango trees on the bank of the khal immediately between the but and the lamp posts or whether the accused persons had been prejudiced by reasons of the refusal of the prayer for local investiga tion.

21. The appeal is accordingly allowed, the appellant is acquitted of the charge under section 302 of the Pakistan Penal Code and he is directed to be set at liberty fourth with, if not required in any other connection.

22. It may also be mentioned here that at the time of the admission of this appeal a suo motu rule was issued for the enhancement of the sentence of the convicted person. In the view we have taken in the appeal, this rule fails and is accord ingly discharged. KHAN, J.‑I agree. K. B. A. Appeal accepted.