1968 SCMR 325 (PLP)

S. A. RAHMAN, J.-Nur Ahmad, petitioner, was sentenced to death for murder, by the trial Judge. On appeal and reference, the High Court of West Pakistan upheld the conviction and confirmed the sentence of death. This is a petition on his behalf 'for special leave to appeal from the order of the High Court. Mr. Muhammad Ismail, on behalf of the petitioner, has attempted to argue before us that there is some confusion in the evidence as to the exact date of occurrence in this case. The dying declaration of the deceased, Muhammad Saleh, recorded in the hospital by the Investigating Officer, after obtaining a certificate from the Doctor that the deceased was in a conscious state and able to make a statement, bears the date the 19th October 1965, and purports to show that the occurrence took Place at 7 p.m. on the previous day, i.e. on the 18th of October 1965. The First Information Report is apparently consistent with this position. But the learned counsel draws attention to the evidence of Doctor Farooq Ahmad who, apparently, stated that he had examined the deceased at 1 a. m. on the 18th of October which means 1 a. m. on the night between the 17th and I8th. It may be that the Doctor had made a slip in mentioning the 18th, whereas he should have described the date as the 19th. Learned counsel also drew attention to the statement of the Investigating Officer to the effect that on the 18th October 1965, at 7 a. m. Medico-legal Certificate of the deceased was brought to him and he then recorded the dying declaration of the deceased at 8-15 a. tn. the same day. Undoubtedly, there is this confusion in the evidence, but no questions were put to any of the relevant witnesses to resolve this confusion in the Courts below. We do not think the point involves any substantial ground for re-appraisal of the evidence which was accepted as reliable by the Courts below. The learned counsel then argued that at the time of occurrence it was dark and it was not possible to identify the culprits who is said to have shot at the deceased. The dying declaration mentions 7 p.m. as the time of the occurrence, whereas the eye-witnesses who were undoubtedly there, stated that it was soon after sunset time and some persons were actually offering maghreb prayers at that time. If the P. Ws. are correct, then there could be no question that darkness might have prevented identification. There would have been sufficient twilight at that time. The mention of 7 p. m. by the deceased in his dying declaration may have been his own estimate of the time of the occurrence and it is not necessarily to be assumed that he had a watch by which he had fixed the time. Notions of villagers about time are proverbially vague. We are not, therefore, impressed by the argument that this was a case of mistaken identity. Another consideration to be kept in mind in this regard is that the petitioner is nephew of the deceased and the latter would have been the last person to name him falsely as his murderer. The learned counsel also suggested that the dying declaration may have been partly prompted by the witnesses around the deceased at the time it was recorded and in this connection reference was made to the statement of the deceased's mother who, apparently stated before the Committing Magistrate but not at the trial, that when the deceased stopped talking, he was encouraged to say something by those present. The woman denied having made this statement at the trial and it therefore, does not constitute substantive evidence. No question was put to any other relevant witness to support the allegation that there was any prompting of the deceased during the recording of the dying declaration. There was some delay in reporting the matter to the police, but it is explained by the fact that the injured man was first taken A to the hospital for treatment. No motive for a false implication existed in this case and we find no adequate ground for re-appraisal of the evidence by this Court, after its acceptance by the Courts below. The petition is dismissed. Petition dismissed.