P L D 1966 (W (PLP)

Dates of hearing: 7th and 8th December 1965. The six appellants, (1) Gaman, (2) Nura, (3) Allah Ditta, (4) Mathela, (5) Waryam, and (6) Sultan, were tried for offences under sections 326/149 and 148, P. P. C and by his order of the 23rd of November 1962, the Additional Sessions Judge, Lahore, at Sheikhupura, convicted and sentenced Gaman to 10 years' rigorous imprisonment, Nura to 7 years' R. I. and the other four appellants to four years' R. I. under section 326/149, P. P. C. They were further convicted under section 148, P. P. C. and sentenced each to one year's R. I. for forming an unlawful assembly. The sentences were ordered to run concurrently. Their co‑accused, Bashir, was acquitted.

2. The daughter of Gaman, appellant, Mst. Naziran, was found missing and the deceased, Nazir Ahmad, was "suspected for her abduction. On the 21st of January 1962, Gaman went to the house of Ibrahim, father of the deceased, in village Dera Dhaban, police station Muridke, District Sheikhupura, and asked the deceased to accompany him to village Tootanwala to locate the missing girl. Nazir Ahmad, deceased, accompanied Gaman, accordingly. When after some time Nazir Ahmad did not return to his house, his father Ibrahim became restless and asked his sons, Muhammad Siddiq (P. W. 12) and Allah Rakha (P. W, 11) to find the whereabouts of their brother, who accord ingly left for the same village, Tootanwala. When they reached near village Tootanwala, they found that the deceased was being led by Gaman, appellant, from that village to village Dera Dhaban. They were seen by Allah Rakha from a distance of about one killa, and at a distance of about 4/5 karams he saw all the other five appellants armed with deadly weapons. The deceased was attacked by all these persons. The deceased ran towards village Arainanwala where he was overpowered and given some beating by all the six appellants. From there, the victim was dragged from his neck by wrapping a chadar round it and was brought to the house of Muhammad Husain at village Dera Dhaban. It is stated that in the village Dera Dhaban, Allah Rakha and Muhammad Siddique P. Ws. parted towards their houses. Up to the village, they kept behind, following the accused‑party but did not intervene to rescue the deceased from the accused. It is further stated that at mid‑night moaning was heard outside the house of Ibrahim, father of the deceased, and by opening the door, the deceased was found in injured condition by Ibrahim, Muhammad Siddique and Allah Rakha, who took him inside the house. It is alleged that the accused‑persons guarded the house to prevent making the report and from taking the patient to the hospital. The deceased was taken to the hospital two days after the occurrence by Muhammad Yaqub and Ali Muhammad. No report was made about the occurrence till the statement of the deceased was recorded on the 22nd of January, 1962, at 3‑15 p. m. in the hospital, on which a case was registered, vide F. I. R. Exh. P. C/l. The victim mentioned in his dying declaration, the intervention of Barkat and Muhammad Husain, P. Ws. 13 and 14, for his rescue. He did not mention his brothers Allah Rakha and Muhammad Siddique to have witnessed the occurrence, who were disbelieved by the learned trial Court.

3. From the statement of Barkat and the dying declaration, there can be no doubt about the elopement of Mst. Naziran, daughter of Gaman, appellant. It has not been fully established as to whether the deceased had really enticed away Mst. Naziran, but he was a suspect for having abducted her. The deceased was a black‑smith and Barkat stated that theirs is the only house amongst the Chaddars, that is, the clan of the appellants in village Dera Dhaban. The deceased being a suspect for having taken away Mst. Naziran, who though was not found with the deceased, yet to brush aside the suspicion the deceased could not resist the demand of Gaman to accompany him.

4. The moon was full on the night of occurrence. There could be no doubt about the identification of the assailants by the‑‑deceased, firstly, because he was pressed to disclose the whereabouts of Mst. Naziran, and under the circumstances the assailants could in no manner remain unidentified. Secondly, the injuries were caused by balms etc. In a hurt case the culprits, might very rarely remain unidentified unless very elaborate precaution is taken against identification. I am clear to my mind that the delay in making the report was not because the assailants were not known to the victim but because he could not proceed to the police station. The helplessness of the deceased is apparent from the fact that for 37 hours he could not be removed for medical aid. A question was raised by the learned counsel that Yaqub and Muhammad Ali were not produced to explain the delay. About Yaqub, it is in evidence that he too is Chaddar by caste. The fact cannot be ignored that in villages the bondage of kinship cannot easily be shaken off unless there is either enmity with the accused persons, or the witness is powerful enough to B disregard all such obligations. It was held in a Division Bench case, Taj Muhammad v. The State (P L D 1960 Lah. 723). "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 inconsis tent 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 tests, for judging its varacity it becomes a wholly reliable piece of evidence." The victim did not name even his brothers to have seen him in tortures which he could easily do, if he were a liar. It is but natural that under the circumstances he may not have noticed his brothers and, therefore, did not make mention of their presence at the time of occurrence. If he were susceptible to outside prompting, he would have mentioned the presence of his brothers in his dying declaration, at the scene. I do not in the least suspect the genuineness and truth of the dying declara tion. A dying declaration is admissible in evidence as to the cause of death of the dying man. There can be no manner oil doubt that a dying declaration is a piece of evidence which the Courts have to consider along with other evidence and they is nothing in law to prevent a conviction being based on a dying declaration alone.

5. The point raised by the learned counsel that the dying declaration was made after a long delay, is a question which loses weight, when looked at under the peculiar circumstances of the case, cannot be termed as inordinate. Whether or not weight should be attached to the dying declaration as to record convic tion of the accused persons is a question which largely hinges on the integrity of the dying man. I have dealt with this fact that the deceased's truthfulness is not questionable. It follows, there fore, that there can be no place for doubt that innocent person or persons might have been added with the guilty ones. I am fortified in taking this view by Muhammad Khan v. State (P L D 1961 Lah. 936), wherein it was held: "The dictim that if a dying declaration is recorded with delay, it must be rejected, cannot be accepted."

6. Having given my thoughtful consideration, I have come to the conclusion that the guilt of all the appellants has been established beyond all reasonable doubt and uphold their convic tion. Consequently the appeal is dismissed. K. B. A. Appeal dismissed.