P L D 1963 (W (PLP)

ANWARUL HAQ, J.

‑This appeal is by Zabta Khan, aged about 27/28 years, resident of village Shakarpura, in the jurisdic tion of Police Station Daudzai, in the Peshawar District, who has been convicted and sentenced to death under section 302 of the Pakistan Penal Code by Mr. Amirzada Khan, Additional Sessions Judge, Peshawar. The case is also before us for confirmation of the death sentence under section 374, Cr. P. C. This judgment will dispose of both the appeal and the reference.

2. The case for the prosecution is that there was bad blood between the appellant Zabta Khan and the deceased Abdur Rehman, who was also a resident of the same village, on account of the possession of some shamilat land, which the deceased was trying to annex to his own field, but the appellant was objecting to it. It is stated that in order to prevent the deceased from taking possession of this land the appellant planted some trees over it, which were, however, uprooted by the deceased. This led to an altercation between the two, but the elders of the village, namely, Abdul Qadir (P. W. 5) and his brother Abdul Khaliq intervened and persuaded the parties to hold their hands until the matter was finally decided by them. It is also alleged that some three or four years before the occurrence the deceased had asked the appellant's younger brother Dilawar Khan not to visit his hujra, as the deceased did not like Dilawar Khan's habits. This action of the deceased is stated to have extremely annoyed the appellant, with the result that he fired at the deceased, but fortunately no damage was done. The firing incident on that occasion was, however, not reported to the police, as the matter was amicably settled privately.

3. It seems that these incidents continued to rankle in the mind of the appellant and ultimately drove him to commit the murder of Abdur Rehman on the 14th of June 1962. It is stated that at about 2 p.m., when the deceased was lying on a cot in a kotha of his house, presumably for an afternoon nap, the appellant appeared, armed with a tamancha, and fired a shot which hit the deceased on his back. The appellant disappeared, but was seen by the deceased as well as by his first wife Mst. Tajwar Sultan (P. W. 1). Azizur Rehman (P. W. 2), the younger brother of the deceased, who had been earlier sent out by the deceased to fetch some plums from their orchard, also returned to the house on hearing the report of the shot, and rushed to his wounded brother. The deceased is stated to have informed both his wife Mst. Tajwar Sultan and his brother Azizur Rehman that he had been shot by the appellant Zabta Khan.

4. It may be stated here that the deceased had, six or seven months prior to the occurrence, taken a second wife named Mst. Gul Pari, who was also living in one of the kothas of the house, but was not present in the house on the fateful day, as she had gone to her village Mirzai a few days earlier to see her ailing brother. Two unmarried sisters of the deceased, also lived in the same house and occupied one of the kothas along with their unmarried brother Azizur Rehman, had also gone with Mst. Gul Pari. The deceased and his brother Azizur Rehman also paid a visit to village Mirzai to inquire after the health of Mst. Gul Pari's brother Azizur Rehman returned to his house on the morning of the 14th of June, whereas the deceased returned at about noon time. After his return he had the mid‑day meal with his first wife Mst. Tajwar Sultan, and was lying on the cot after the meal when he was shot.

5. Several people collected at the spot and the wounded man was taken to Police Station Daudzai, a distance of about four miles, and he himself lodged the first information report, Exh. P.A. at 3 p.m., which was recorded by Sub‑Inspector Fazal Rehman Khan (P.W. 8). This is a very brief document and may be reproduced here in extenso I was lying on a cot in my kotha in my house. The women folk of my house were sleeping in the other kotha. Zabta Khan, son of Mukarram Khan, resident of our village, came there armed with a tamancha, and fired at my back. I was injured on my left side, a little below the ribs, and he ran away. There is a dispute between me and Zabta Khan over a piece of land and finding an opportunity, he has killed me today. On the spot no one else was present except my womenfolk. I charge Zabta Khan.

6. This report was attested by two persons, who had accom panied the injured man to the Police Station, namely, Said Rehman (P. W. 3) and Aslam (P. W. 4). It was signed by the deceased, who was a literate person, practicing as a dispenser at village Masho Khel.

7. After the F. I. R. had been recorded, the deceased was rushed to Lady Reading Hospital, Peshawar, where he was examined by Doctor Fazal Rabi Khan (P. W. 9), who found the following injuries on his person :‑ (1) A bullet entrance wound, 2 " x "1", penetrating the chest on the left side of the back at the level of the scapular spine. Air was going in and out of the wound. (2) A bullet exit wound, 3" x 1", on the left side of the chest in the anterior axillary line. Air was going in and out of the wound. (3) A bullet grazed wound, 1" x 1", on the inner side of the left forearm. Charring and smoking were present on the shirt, which also had corresponding cuts. In the opinion of the doctor injuries were caused by a firearm within charring distance.

8. The deceased expired at 8‑55 p.m. in the hospital and the post‑mortem examination was conducted by the same doctor at 9‑30 a.m. the next day. The injuries described above were confirmed and on internal examination he found that the right lung had collapsed, the pleura had two tears, left lung showed a laceration, 3" x 4", going through and through, 5th rib was fractured at its angle. Death was due to shock and haemorrhage caused by injuries to the left lung. The witness further gave the opinion that if the deceased was lying on his right shoulder with his left wrist lying on his chest,, all the three injuries could be caused by the same shot.

9. The appellant was arrested the same day at 6‑30 p.m. At the trial he pleaded not guilty, and asserted that he had been falsely implicated. He did not, however, produce any defence evidence. Before the committing Magistrate he gave the following explanation for his alleged false implication :‑ "I am charged on account of enmity. I will make detailed statement in the Court of Session. In fact the deceased has been killed by Azizur Rehman P. W. his brother. The deceased had three wives and Azizur Rehman contracted a connection with his youngest wife. When the deceased came to know about this, he took his wife and Azizur Rehman P. W. to village Mirzai. There it was intended to kill Azizur Rehman but wife of the deceased warned the P. W. and he ran back to his village. The deceased also followed his brother from village Mirzai and he was killed. The deceased in order to save his honour did not charge his brother. My father gave applications in this Court and also to police through this Court to examine the witnesses, but his request fell on deaf ears. I am innocent and falsely charged."

10. When examined under section 342 of the Criminal Procedure Code at the trial, he admitted the correctness of his previous statement before the committing Magistrate, and once again denied all the allegations against him, including the exist ence of any dispute between him and the deceased. When asked to explain as to why Mst. Tajwar Sultan and Azizur Rehman P. Ws. were deposing against him, he stated that he aid not know why they were doing so. Finally when asked whether he wished to add anything to his statement, he stated as follows :‑ "I have been charged merely because Abdur Rehman (deceas ed) had strained relations with my father‑in‑law, Daud Khan. On account of those strained relations the deceased had prevented his younger brother, Azizur Rehman P. W., too, who was earlier engaged to the daughter of Daud Khan from marrying his fiancee."

11. There is no eye‑witness in this case. No doubt, Mst. Tajwar Sultan (P. W. 1), wife of the deceased, had stated at the trial as well as earlier before the committing Magistrate that she was also lying on a separate cot in the same kotha as the deceased, but as this position was contradicted by the clear statement in the first information report, made by the deceased himself, that he was lying alone in his kotha, and the womenfolk were sleeping in another kotha, the learned Sessions Judge has not placed any reliance on the evidence of Mst. Tajwar Sultan in this behalf. Further, before the committing Magistrate she had stated that soon after the shot was fired, she had seen the appellant running away from the kotha with a tamancha in his hand, but at the trial she changed her position, so as to favour the appellant, by saying that when she opened her eyes on hearing the shot, she did not see the assailant in the room. She was permitted to be cross‑examined by the prosecution, and her statement before the committing Magistrate was also brought 9a the record under section 288 9f the Criminal Procedure fact remains that she cannot be regarded as an eye-witness.

12. The case against the appellant, therefore, rests solely on the dying statement of the deceased. The question is whether this dying statement can be safely acted upon.

13. Mr. Mahmud Ali the learned counsel for the appellant, contended that the law was well‑settled that a conviction could not be based on a dying statement alone, in the absence of corro boration. He referred us to several authorities which may be briefly noticed. In Muhammad Arif v. Emperor (A I R 1941 Pat. 409), the learned Judges made the following observations :‑ There is no absolute rule that a dying declaration should not be acted on for the purpose of convicting an accused person even if uncorroborated provided that the Court is fully satisfied that it is true. But, before so acting on it, the Court should apply to it every test of its genuineness and good faith which it is possible in the circumstances of the case to apply. At the same time the danger of wrong identification of the accused by the deceased has to be borne in mind in dealing with dying declarations. The learned Judges, however, proceeded to say "Where the prosecution evidence generally indicates signs of attempt to improve and develop it at successive stages, special caution is needed also in dealing with a dying declaration." Mr. Mahmud Ali, however, wished to rely on the last passage appearing in the head‑note, to the following effect :‑ "The deceased who was stabbed in the abdomen did not disclose the name of the accused in spite of being questioned on his way to the hospital where a number of persons crowded into his room. After some conversation with the outsiders the deceased asked that his statement might be recorded and disclosed the name of the accused in his dying declaration: Held, that there was serious room for doubt as to whether the contents of the dying statement included matters suggested to the deceased by the outsiders and that it was a circumstance which could not be ignored in estimating the value to be attached to it."

14. It will be observed that the passage on which Mr. Mahmud Ali relies does not lay down any general prin ciple but merely deals with the peculiar facts of the case which was before the learned Judges. There can be no two opinions on the point that if a dying declaration is not free from suspicion, it cannot be safely acted upon. The general principle laid down by the learned Judges is, however, clear that a conviction can be based on a dying declaration without any corroboration, provided that the Court is fully satisfied that it is true.

15. In Ram Nath Madhoprasad and others v. State of Madhya Pradesh (A I R 1953 S C 420), it was stated that It is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross‑examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration. It is in this light that the different dying declarations made by the deceased and sought to be proved in the case have to be considered. After examining the facts of the case concerned, and the succes sive dying declarations made by the deceased including the one recorded by a Magistrate, their Lordships reached the following conclusion :‑ The dying declaration relied upon by the High Court and recorded by the Magistrate on 7th April at 12‑15 a.m. does not seem to us to contain a truthful version of what actually happened.

16. With the greatest respect to their Lordships of the Supreme Court of India, it seems to us somewhat contradictory that having first stated that there was no other evidence in the case except the dying declarations of the deceased, and that it was "settled law that it is not safe to convict an accused person merely on the evidence furnished by the dying declaration with out further corroboration", their Lordships nevertheless proceeded to examine whether the dying declarations available in the case were true or not. Once it is stated as a proposition of law that a conviction cannot safely be based on a dying statement without corroboration, and it is held that there is no corroboration available, the question of examining whether the dying declaration is true or not, should not arise. It seems to us, therefore, that the fact that their Lordships did examine the question of the genuineness and truth or otherwise of the dying declaration is indicative of their feeling that they might have acted on it if they were satisfied on these two points.

17. As against these authorities the learned Additional Advocate‑General drew our attention to Shahbaz and another v. The Crown (P L D 1953 Lah. 566), in which it was observed thus:‑ It must be remembered that when words are scarce they are hardly spent in vain and they usually speak the truth who breathe their words in pain. A dying declaration is a valuable piece of evidence and if it is free from suspicion and believed to be true it may be sufficient for conviction."

18. In Tai Mahmud and others v. The State (P L D 1960 Lah. 723), a Division Bench of this Court made the following observations‑

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 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 incon sistent 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 declara tion was made in relation to those facts. If a dying declaration stands the normal test, 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 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 statement without any corroboration, and the result may well be that the whole of the statement is rejected.

19. It will be seen that it cannot be said, as contended by Mr. Mahmud Ali, that it is an established principle of law that a conviction cannot be based on a dying statement alone, without corroboration. The view adopted in this country, and also in some decided cases in India as would appear from A I R 1941 Pat. 409 to which reference has already been made, is that if a dying statement is genuine and true, it can be acted upon without any corroboration. We are in respectful agreement with this view, and accordingly proceed to examine whether the dying statement made by the deceased Abdur Rehman is genuine and true. If so, we would have no hesitation in upholding the conviction of the appellant.

20. Mr. Mahmud Ali contended that the dying declaration suffers, in the first place, from patent inaccuracy inasmuch as it states that "the womenfolk of my house were sleeping in the other kotha", because we know that the only woman present in the house at the time‑ of the occurrence was the first wife of the deceased, namely, Mst. Tajwar Sultan and the other three women i.e., his second wife Mst. Gul Pari and his two unmarried sisters were away in village Mirzai. We think that this contention is without substance for the reason that when the deceased stated that his womenfolk were in the other kotha, he was not neces sarily intending to describe the number of women actually present in the house. He was only indicating that he was alone in one kotha whereas the ladies of the house, whoever among them may be actually present at that time, were in the other kotha. From the use of the word "masturat" no irresistible conclusion flows that what the deceased intended to convey was necessarily the idea of a plurality. It is well‑known that the singular of the word "masturat" is generally not employed in common parlance. Further, we were informed that the Pashto word commonly employed for womenfolk is "khazai", and it is probable that the deceased may have spoken in Pashto while making the dying declaration, which was rendered in Urdu by the Sub‑Inspector, who is also Pashto‑speaking. The word "khazai" is in the plural, meaning ladies of the house. We consider, therefore, that the so‑called inaccuracy pointed out by Mr. Mahmud Ali is of no importance in the context of this case. All that the opening part of the dying declaration discloses is that the deceased was alone in the kotha in which he was shot, whereas the women, or any woman present in the house at that time, were in the other kotha.

21. The next point urged by Mr. Mahmud Ali was that we have it from Mst. Tajwar Sultan that although the deceased disclosed the name of the assailant to her, yet he did not do so to his younger brother Azizur Rehman when the latter came in after the incident ; and that further, it is in the evidence of Azizur Rehman that the deceased did not disclose the name of the assailant to any of the persons who accompanied him to the Police Station, carrying his cot there. Finally, reliance was also placed by the learned counsel on the statement of Azizur Rehman to the effect that when he rushed to the house he asked the people present as to who had shot his brother, but they expressed ignorance.

22. We think there are two distinct aspects of the matter (a) Whether the deceased disclosed the name of the assailant to his wife Mst. Tajwar Sultan and to his brother Azizur Rehman, soon after the incident, and (b) Whether he disclosed the identity of the assailant to the persons who accompanied him to the police station.

23. As regards the disclosure of the identity of the assailant to his wife is concerned, we have her own statement which has not been challenged by Mr. Mahmud Ali. Azizur Rehman himself asserts that the deceased informed him immediately on his arrival in the room that he had been shot by the appellant Zabta Khan, but Mst. Tajwar Sultan has made a statement in the committing Court to the effect that the deceased did not disclose the name of the assailant to Azizur Rehman and asked him to wait until they got to the police station. At the trial, however, Mst. Tajwar Sultan admitted that the assailant's identity was disclosed by the deceased to Azizur Rehman when the latter came into the kotha. We are of the view that undue import ance cannot be attached to the conflicting statements made by Mst. Tajwar Sultan. Her evidence has rightly been discarded by the trial Judge for the reason that she was contradicted on a very material point, namely, her presence in the kotha with the deceased, by the deceased himself when he made the dying statement. She changed positions, at the trial, as has already been indicated earlier. We consider that there is no reason whatsoever to doubt the assertion of Azizur Rehman that when he entered the kotha where his brother was lying wounded, the latter told him that he had been shot by Zabta Khan. It must be remembered that Azizur Rehman has no enmity whatsoever against the appel lant. In fact Azizur Rehman is engaged to be married to the younger sister of the appellant's wife, namely, one of the daughters of Daud Khan. Azizur Rehman has stated that the engagement still stands, and the marriage had not taken place so far because the girl was much too young. There is absolutely no reason for Azizur Rehman to make a false statement to the effect that at the very earliest opportunity the deceased named Zabta Khan as the assailant.

24. As regards the persons who gathered at the hujra and the house of the deceased after the incident, it is clear that when Azizur Rehman rushed into the house these persons had not been told by any one as to who the assailant was. The deceased was lying injured inside the kotha and his wife Mst. Tajwar Sultan was with him, and there is no material on the record to reach the conclusion that she had rushed out to announce to the persons gathered there as to who the assailant was. But the question still remains that when these persons were carrying the injured to the police station, whether the deceased then anno unced to them the name of the assailant or not. Azizur Rehman has stated that the deceased did not, nor did Azizur Rehman himself make the announcement. We have considered whether the failure of the deceased or Azizur Rehman to announce to the persons accompanying them to the police station that the assailant was Zabta Khan, has any material effect on the case, and we have reached the conclusion that it has not. The deceased was critically injured and he had already told his wife and brother as to who the assailant was, and it was not, therefore, necessary for him to make any announcement to the persons accompanying him. It has also come in evidence that some of the persons accompanying the injured were relations of the appellant and that the deceased had cautioned Azizur Rehman against his mentioning the appellant's name in their presence. This seems to be a reasonable explanation. It is stated that two of the first arrivals at the scene were Ghaniur Rehman and Izat Khan, who are both brothers‑in‑law of the appellant. Knowing his own domestic circumstances, it may be that the deceased did not think it wise to disclose the name of the appellant in their presence. We are, therefore, of the view that the fact that the deceased and his brother Azizur Rehman did not announce the name of the assailant to the persons accompanying them to the police station, does not in any way detract from the evidentiary value of the dying declaration.

25. It was next contended by the learned counsel for the appellant that the medical evidence makes it clear that the deceased was shot in the back, and therefore, he was not in a position to see the assailant. The learned counsel also pointed out that the deceased was asleep at the time he was shot, and therefore, this made it still more difficult for him to identify the assailant. There is no clear evidence on the record as to whether the deceased had actually fallen asleep after lying on the cot. In his dying statement he did not make it clear whether he had actually fallen asleep, and there is no other person who can depose on this point, as the deceased was lying alone in the kotha at the time of the incident. It is, therefore, possible that the deceased may not have actually fallen asleep when he was shot and, therefore, it would be the most natural thing for him to turn round to see as to who had shot him. Even if he had fallen asleep, it is clear that he could not have continued sleeping after receiving the shot, and the first instinctive move made by him would be to turn round to see the assailant. It would have been a different matter if he had become uncons cious after receiving the shot, but that is not the case. The evidence of Azizur Rehman, of the Sub‑Inspector, and of the two persons who have witnessed the dying statement, namely, Said Rehman (P. W. 3) and Aslam (P. W. 4) makes it clear that the deceased remained conscious, and was able to talk coherently, until the time he arrived at the police station and made his report. It seems to us, therefore, that the deceased was definitely in a position to identify the assailant, and that in fact he actually did so. It was argued by Mr. Mahmud Ali that the deceased did not state that he turned round to see the assailant, but we do not think that the omission to say so is material in any manner. The dying statement is brief and to the point, and it was not necessary for the deceased to give the details as to how he managed to see the assailant. The circumstances themselves clearly show that on receiving the wound he must have turned round and seen the assailant.

26. Finally, the point was made that the deceased falsely implicated the appellant Zabta Khan in order to save his own brother Azizur Rehman, as well as the honour of the family, as implicating Azizur Rehman would have brought out the scandalizing fact that Azizur Rehman was carrying on an intrigue with the second wife of the deceased. This contention is based purely on the statement made by the appellant in the committing Court where he stated categorically that the deceased had been killed by Azizur Rehman, and that earlier the deceased had taken Azizur Rehman to village Mirzai for getting him killed, but fortunately Azizur Rehman was saved due to information given to him by Mst. Gul Pari, the second wife of the deceased. It seems to us that the whole story put forward by the appellant is rather fantastic. If indeed the deceased was wanting to get rid of his brother Azizur Rehman due to a suspected intrigue between Azizur Rehman and Mst. Gul Pari, it is difficult to imagine that the deceased would take both Azizur Rehman and Mst. Gul Pari to village Mirzai. The insinuation seems to be that Azizur Rehman was to be killed by a brother of Mst. Gul Pari at the instance of the deceased. The insinuation was, however, not brought out specifically by the appellant in his statement in the committing Court, nor were any facts elicited in the cross‑examination of the prosecution witnesses which could lend even an indirect support to this theory. No doubt a question was asked from Azizur Rehman whether he apprehended assassination at the hands of his deceased brother through his brother‑in‑law at Mirzai which the witness naturally denied ; but the ‑interesting part is that the motive assigned to Azizur Rehman for murdering his brother, 'in the very next question in cross‑examination is not that Azizur Rehman had become interested in Mst. Gul Pari, but "feeling over his second marriage". This line of cross‑examination seems to suggest that Azizur Rehman was annoyed with his deceased brother for taking a second wife, and not that he had become inter ested in the second wife. Then Azizur Rehman was asked whether he intended to marry Mst. Gul Pari and he replied in the negative. No question was asked on this point from Mst. Tajwar Sultan, nor from Haji Abdul Qadir, who deposed, in answer to a Court question, that their village being a small one, he usually comes to know of every thing that happened in it. It seems to us that if there was any scandal or suspicion about Azizur Rehman's carrying on with Mst. Gul Pari, some evidence could have been brought on the record to lend support to it, but this was not done.

27. Further, it is interesting to observe that at the trial the appellant did not specifically allege that the deceased was murdered by Azizur Rehman but instead put forth a new theory, namely, that he had been implicated due to enmity between the deceased and the appellant's father‑in‑law Daud Khan. Even if we assume that the appellant was only intending to add to his previous statement, the question arises that he never gave any earlier indication of the existence of any enmity between the deceased and his father‑in‑law Daud Khan. Not a single question was put to any of the witnesses on this point. On the contrary, as already stated, Azizur Rehman P. W., the younger brother of the deceased, is still engaged to be married to Daud Khan's daughter.

28. It is clear to us that there is no question of the appel lant being implicated falsely by the deceased for the reason that the latter wanted to save his brother Azizur Rehman, or that he wanted to take revenge due to any differences with the appel lant's father‑in‑law Daud Khan. It is further clear that there has been no prompting by any outsider, instigating the deceased to name the appellant. In fact all along the grievance on behalf of the appellant has been that the deceased did not speak all with the outsiders regarding the identity of the assailant and, therefore, no case can be made out that the deceased was influenced by any outsider when he named the appellant Zabta Khan as the culprit.

29. Having considered all the facts and circumstances of the case in the light of the very elaborate arguments addressed by Mr. Mahmud Ali, we have arrived at the conclusion that the dying statement in this case is both genuine and true. It was made by the deceased, when he was in possession of his senses, and was able to talk coherently. Further, the incident having occurred in broad day‑light, the deceased, although hit on his back while lying on a charpoy, was undoubtedly in a position to identify his assailant, as he must have turned on receiving the shot. There has been no prompting by any outsider, and it has not been shown that the deceased had any motive for falsely sub stituting the name of the appellant for the real culprit. The dying statement was made without avoidable delay immediately on the arrival of the deceased at the police station. The failure or omission on the part of the deceased and Azizur Rehman to mention the name of the appellant to the persons who gathered at the hujra and carried the cot of the deceased to the police station does not appear to us to be of any vital importance, for the reason that the deceased had already disclosed the appellant's name to his wife Mst. Tajwar Sultan and his brother Azizur Rehman, and he did not wish to name the appellant any further in the presence of certain persons who were directly related to the appellant. For all these reasons we are of the view that the dying statement can safely be relied upon for convicting the appellant under section 302 of the Pakistan Penal Code for the murder of Abdur Rehman deceased. We, therefore, maintain his conviction.

30. As regards the sentence, it is clear that there are no extenuating circumstances in favour of the appellant. We would, therefore, dismiss his appeal, and confirm the death sentence imposed on him by the learned Additional Sessions Judge. K. B. A. Appeal dismissed.