P L D 1977 Supreme Court 612 (PLP)

The appellant repudiated the charge against him as false and in support of his defence he examined D. W. Amir Khuban Shah, the Compounder Incharge of the local Rural Health Centre. This witness recalled having treated the deceased on his arrival at the Health Centre and he was emphatic that the deceased was unconscious at that time. He also said that the Investigation Officer had come after some time and had told him that he was going to record "the statement of the injured and that I should sign the same. In reply I told him that Abdul labbar was unconscious refused to sign any statement". The appellant did not produce any other evidence. At the outset I have to observe that according to the prosecution, the appellant had fired at the deceased through the door of the shop and had succeeded in hitting the deceased with a single shot. As there is no evidence that the deceased was visible to the assailant through the door, the prosecution version of the occurrence is somewhat improbable. Additionally, there were many discrepancies in the prosecution case. Thus, for example, P. W. Yaghistan was the brother-in-law of P. W. Abdul Sattar and both the witnesses claimed to have met at the shop of the deceased before P. W. Abdul Sattar left to lodge the F. I. R. yet P. W. Abdul Sattar did not state in the F.

1. R. that P. W. Yaghistan and his brothers had seen the murder. Again, whilst P. W. Yaghistan claimed to have informed the family of the deceased about the occurrence before the arrival of P. W. Abdul Sattar at his brother's house, P. W. Abdul Sattar stated !n the F. I. R. that he had informed on reaching his brother's house "that some body had killed" his brother. According to the learned Sessions Judge these discrepancies were not material, and he appears to have reached this conclusion because of his finding that the appellant had failed to prove that these witnesses were hostile to him. Next as to the dying declarations, the deceased was alleged to have made four dying declarations, and as according to the prosecution, the last of these four dying declarations Exh. P. D. had been recorded by P. W. Din Muhammad, A. S. I., shortly before the death of the deceased, the question which required examination was whether the deceased was in a fit condition even to talk, mush less to record dying declarations in view of the mortal injury su8'erred by him. This aspect of the case was ignored by the learned Sessions Judge, who also did not notice the discrepancies between the various dying declarations of the deceased and the further circumstance that on the evidence of P. W. Abdul Sattar one written dying declaration had bees supressed. It is not surprising that the learned Judges of the High Court were not impressed by this cursory appreciation of evidence of the Sessions Court. First of all, as to the dying declarations, in view of the evidence of P. W. Fir Sabbir Shah (a con .in of the deceased) and Pir Khuban shah (who was the compounder incharge of the local heath centre) the learned Judges rightly held that the last dying declaration Exh. P. W. recorded by P. D. Din Muhammad was a fabrication. And on a careful scrutiny of the dying declarations, they ale) rejected the other written dying declaration Exh. P. C. which had impressed tae Sessions Court. They also pointed out that P. W. Faizullah (a Police Constable who was not on duty at the relevant time) bad attested these false dying declarations. They then referred to P. W. Abdul Sattar's statement that P. W. Faizullah had, in his presence, recorded the dying declaration of the deceased before he left to lodge the F. I. R. and before the deceased had been taken to the Rural Health Centre. The prosecution did not produce this written dying declaration, and a9 P. W. Faiaullah denied having recorded it, the question was which of these two witnesses had given false evidence. The Sessions Court did not care to examine this question, but after scrutinising the witnesses' evidence and the other evidence produced by the prosecution, the learned Judges of the High Court held that P. W. Faizullah had given false evidence and had deliberately supressed the dying declaration recorded by him because it was inconsistent with the other two written dying declarations (Exh. P. C. and P. D.). Finally although P. W. Abdul Sattar had fully supported the claim of P. W. Yaghistan that he had seen the occurrence, the learned Judges, re-examined the question whether P. W. Yaghistan had seen the occurrence. They referred to the many discrepancies between P. W. Yaghistan's evidence and the other evidence on the record. They also pointed out that P. W. Yaghistan was the brother-in-law of the deceased (a circumstance which P. W. Abdul Sattar had attempted to supress in examination in chief) and as P. W. Abdul Sattar had not stated in the F. I. R., that P. W. Yaghistan had seen the occurrence, the learned Judges held that P. W. Yaghistan's evidence was absolutely false and that he had not been at the place of occurrence at the relevant time. We have re-examined the evidence with the assistance of the learned counsel and I agree with the findings of the High Court. But as the corrollary of these findings is that both P. Ws. Abdul Sattar and Faizullah were dishonest witnesses, the obvious question for consideration was whether it was safe to rely on the evidence of such dishonest witnesses about oral dying declarations, and I can only express my very great regret that this question escaped the attention of the learned Judges of the High Court. Another question which also required examination was- whether it was safe to base a conviction on the evidence of dying declarations, because no evidence was produced to show, in the words of Shabbir Ahmad, J. in Muhammad Khan v. The State (P L D 1961 Lah. 936), that the deceased was a man of unquestionable integrity. Therefore, this Court granted leave to examine the question whether a conviction based on an oral dying declaration alone was consistent with the principles governing the safe dispensation of criminal justice. As there is no pronouncement by this Court directly on this question, I would observe that if a dying declaration falls under section 32 of the Evidence Act, it becomes evidence. And as neither this section nor the Evidence Act State in terms that a conviction cannot be based on a dying d declaration, it can be contended that a conviction can be based solely on a dying declaration, the more so, if it is presumed to be true, because, as observed by Eyre, C. B. 200 years ago in R. v. Woodcock (1 Leach C C 500) such "declarations (see) made in extremity, when the party is at the pint of death, and when every hope of this world is gone ; when every motive of falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth". But in Bakhshish Singh alias Bakhshi and others v. Emperor (A I R 1925 Lah. 549), a Division Bench of the Lahore High Court held that it would not be sate to follow this view because family feuds and enmities did not end with death. However, whilst setting aside a conviction based on a dying declaration, Beaumont, C. J. observed in Emperor v. .Akbaroli Karimbhai (A I R 1933 Born. 479), that a conviction could be based on a dying declaration "made by a man in imminent expectation of death. Next, as to the view of the Madras High Court (see A I R 1940 Mad. 193), according to Beasley, C. J. "Whilst the contents of a dying declaration can be relied upon as evidence for the prosecution in the absence of any corroboration of its contents, it is clear from the authorities and the text books that it is dangerous, imprudent and opposed to practice to do so, even when no justifiable criticisms can be levelled against the declaration". But as another Bench of the Madras High Court had taken a contrary view, the question was referred to a Full Bench In re : Guruswami Tevar and others (A I R 1940 Mad. 196), and the Full Bench was of the view that a conviction could be based solely on a dying declaration even if it was not made under an imminent expectation of death. On the other hand, the Calcutta High Court appears to have been more cautious in its approach to dying declarations, and in Hussain Sh. and others v. The State (A I R 1953 Cal. 383), the learned Judges of the Calcutta High Court set aside a conviction based on a dying declaration and held that as a rule of prudence "it is ordinarily unsafe to base a conviction on the mere statement of the dead man". However, the Madras Judgment was followed in Rango Mir Bhand v. Crown (1 L R 1942 Kar. 587). Additionally the Courts observed in Khurshaid Hussain Salthon and others v. Emperor (A I R 1941 Lah. 368), in Muhammad Arif v. Emperor (A I R 1941 Pat. 409) and in Gulabrao Krishanjee Maratha v. Emperor (A I R 1935 Nag. 153,) that a conviction could be based on a dying declaration. This was also the view of Sbabbir Ahmad, J., in Taj Muhammad and others v. The State (P L D 1960 Lah. 723) and in Muhammad Khan v. The State (P L D 1961 Lah. 936), and these judgments were followed in Abdul Raziq v. The State (P L D 1964 Posh. 67). This brief reference to the judgments of the High Courts shows at first sight that the majority of the High Courts were of tire view that a conviction could be based on an uncorroborated dying declaration, and this view has the merit of logic. But, as observed by Oliver Wendell Holmes, the life of the Common Law has been commonsense and not logic. I have referred to the dictum of this great American Judge, because I am disturbed by the obvious infirmities in hearsay evidence, and a dying declaration is a form of hearsay evidence. "The lair has, in its wisdom, by enacting an exception to the hearsay rule made a dying declaration evidence, but the law has no means of recalling the author of the dying declaration for cross-examination, and similarly by the nature of things such a declaration is seldom on oath. This means, as observed by Beaumont, C, J. in Emperor v. Akbara'i Karimbhai, that a dying declaration is "a weaker type of evidence than the evidence by a witness in the witness-box", therefore, as a rule of prudence, as distinct from a rule of law, can a piece of evidence suffering from such infirmities be sufficient by itself to support a conviction ? Now all the Judges who have expressed the opinion that a conviction can be based on a dying declaration have been of the view that a conviction can be based on a dying declaration only if in the words of Shabbir Ahmad, J., in Muhammad Khan's case the author of the dying declaration was a man of unquestionable integrity. But how is the Court to satisfy itself that the author of the dying declaration was a man of unquestionable integrity ? This is the dilemma which confronts Courts, except in the case of trials by Jury, because it is for the Jury to decide the question of the guilt of the accused, I would, therefore, at the outset point out that English cases as well as cases arising out of trials on the original side of the High Courts would be distinguishable on this ground. No doubt, a dying declaration can be challenged on any ground on which the evidence of a witness can be challenged. So, for example, it can be challenged on the ground of enmity, but how is the accused to prove the hostility of a person who is dead? In the instant case, the appellant had challenged P. W. Abdul Sattar's evidence on a suggestion of enmity which is not clear, and the witness bad repudiated this suggestion, but he was not a reliable witness. On the other hand, the deceased might have been a very honest man, and if he had survived his injury, he might have admitted the suggestion of hostility on his part, if that suggestion had been true. And further, there will be many cases in which the witness who gives evidence about a dying declaration does not know the deceased or knows him casually. In such cases, unless the prosecution produces evidence to show that the deceased was a person of unimpeachable integrity, the accused would have no means to prove the bias of the deceased against him, unless of course it is assumed that truth sits upon the lips of a dying man. However, the question is not merely of the veracity of the author of a dying declaration and of the witnesses who give evidence about that dying declaration. A person can make an honest mistake about the identity of the person who attacks him, and if he has implicated the wrong person, his cross-examination may help to bring out the truth. But this is not possible in the case of a dying declaration, although the possibility of an error in identification is far greater in such cases for obvious reasons. Woodroffe in his commentary on Evidence (8th Edition, 309) observes : "It will often happen that the particulars of the violence to which the deceased has spoken were likely to have occurred under circumstances of confusion and surprise calculated to prevent their being accurately observed. The consequences also of the violence may occasion an injury to the mind, and an in distinctness of memory as to the particular transaction. The deceased may have stated his inferences from facts, concerning which he may have drawn a wrong conclusion, or he may have omitted important particulars, from not having his attention called to them. Such evidence, therefore, is liable to be very incomplete. He may naturally, also, be disposed to give a partial account of the occurrence, although possibly not influenced by animosity, and resentment are not unlikely to be felt in such a situation. Such considerations show the necessity of caution ire receiving Impressions from accounts given by persons in a dying state ; especially where it is considered that they cannot be subjected to the process of cross-examination, and the security afforded by the terror of punishment and the penalties for perjury cannot exist in this case." Sarkar in his treatise on Evidence (10th Edition page 330) takes a similar view and observes : "The observation of the Supreme Court that it is settled law that it is not safe to convict merely on the evidence of a dying declaration without further corroboration (Ramnath v. State (AIR 1953 S C 420) and Hussain v. State (AIR 1953 3 C 383) makes no change in the existing law. It only emphasises on the necessity of corroboration as a matter of prudence, not as an absolute rule of law. The necessity of corroboration should therefore be present in the mind of the judge or jury, except in cases where the circumstances are such that it can be safely dispensed with." However, Beaumont, C.1. pointed out that these infirmities in a dying declaration could be cured in view of the presumption that truth sits upon the lips of a dying man. This presumption goes back at least to the judgment of Eyre, C. B. in R. v. Woodcock to which I referred earlier, and further as the rule about dying declarations has been adopted with some modifications from the English Common Law it would be appropriate to refer here to the English Law. According to the books, a conviction can be based on an uncorroborated dying declaration, but Taylor in his treatise on Evidence (11th Edition, section 716) stresses the dangers of relying exclusively on a dying declaration and his view is the same as that of Woodroffe which I quoted earlier. Next, as to the weight to be attached to a dying declaration, Taylor observes in section 722 :- "

722. Though these declarations, when deliberately made under a solemn sense of impending death, and concerning circumstances wherein the deceased is not likely to be mistaken, are entitled to great weight, precisely identified, it should always be recollected that the accused has not the power of cross-examination, a power quite as essential to the eliciting of the truth as the obligation of an oath can be, and that, where a witness has not a deep sense of accountability to his Maker, feelings of anger or revenge or, in the case of mutual conflict, the natural desire of screening his own misconduct, may affect the accuracy of his statements, and give a false colouring to the whole transaction." I agree with this passage, and, in my humble opinion, it is not possible to dissent from the view of Beaumont, C. J. that a dying declaration is "a weaker type of evidence than evidence which can be subjected to cross-examination." I have also attempted to examine the English case law but from Taylor, Archbold and Phipson, I have found only one case, R. v. Fitspatrick (1910) 46 I L T R 173 C C R in which a conviction was based solely on a dying declaration. There is, however, the obiter of the Privy Council in Chandraaekera alias Allsandirl v. The King 1937 A C 220 that a conviction can be based on a dying declaration, but this obiter had reference to a finding by the Jury, and further the dying declaration of the deceased on the basis of which the appellant was convic. tad was corrobrated by ample evidence. On the other hand, in Ciril Waugh v. The king 1050 A C 203 Lord Oaksey, who pronounced the judgment of the Privy Council, observed that it was a serious misdirection "not to point out to the Jury that (the dying declaration) had not been subject to cross-examination." And further, Lord Oaksey expressly approved of the passage in Taylor on Evidence, to which I referred earlier, I find it difficult to reconcile Lord Oalssey's observations with the earlier obiter of the Judicial Committee, but even if I am wrong, the position that emerges is that English Judges have based a conviction solely on a dying declaration only in a couple of reported cases. Why then is it that we have rushed in where the English Judges have been so cautious in applying a doctrine evolved by them? The answer to this question is obvious from the leading case of Emperor v. Akbarall Karimbhal in which as I indicated earlier the observations of Besument, C. J., were obiter because he had set aside a conviction based on a dying declaration. Even then his Lordship emphasised that the presumption that truth sat upon the lips of a dying man would only apply to a dying declaration made by the person who knew that his death was imminent. Unfortunately, In re : Guruswami's case, the Madras High Court did not agree with this view, because) it held, on the basis of illustration (b) to section 114 of the Evidence Act, that a dying declaration could not be equated with an approver's evidence. And although the judgment is not very clear, Leach, C. J., also appears to have disapproved of Taylor's cariticism of a dying declaration which I quoted earlier, because, Leach, C. J. observed that a statement by a person who had received a mortal wound made immediately after the Injury had very high probative value, and in answer to the question whether a conviction could be based solely on a dying declaration, he stated the Court must of course be fully convinced of the truth of the statement and naturally it could not be fully convinced if there were anything in the other evidence or In the surrounding circumstances to raise suspicion to its credibility. Now whilst I agree with the proposition that a Court can convict a person on the basis of a dying declaration, if it is fully convinced of its veracity, the practical problem confronting the Courts is of deciding whether the statement of a person whom it cannot even see is fit to be relied upon without any corroboration. Leach, C. J., did nut have occasion to examine this question because the Court was merely giving an answer to an abstract question of law and it is easy to observe obiter that a dying declaration can be relied upon if it rings true. But the statement that a conviction can be based on a dying declaration if it rings true, does not really carry the matter any father because it is very difficult but not impossible for a Court to hold that a statement rings true although its author cannot be cross-examined. Stephen observes in his History of the English Criminal Law (p. 565): "The practical abolition of cross-examination would in oar eyes deprive the evidence of the strongest security for its truthfulness and accuracy." As this principle of the Common Law is enshrined in our Evidence Act, in my humble opinion the observation; of Beanment, C. J., are to be preferred to that of Leach, C. J , which assume that Truth sits upon the lips of a dying man even if the is not aware that his death is imminent. However, the Madras view was followed by the Sind Chief Court in Ranoo Mir Bhand's case because the Court, assumed that truth sits upon the lips of a dying man. Next, a3 to the judgment of the Nagpur High Court in Gulabrao Krishanjee Maratha's case the Court followed the Madras view but the dying declaration was corroborated by other evidence. Similarly in the Patna case to which I referred earlier the observations of the learned Judges that a conviction could be based solely upon a dying declaration were obiter because the Court bad set aside conviction which was based on a dying declaration. In Khurshaid Hussain Salihon Shah and others v. Emperor the Lahore High Court had also set aside a conviction based upon a dying declaration therefore, the observations about the very high probatives value of dying declarations were obiter only. Turning now to the judgment of the West Pakistan High Court, Changes, J. observed in Rang Ali. v. The State P L D 1958 Lah. 242 "It is entirely out of question to accept a portion of the dying declaration and to reject the rest. There must be absolute guarantee of the truth of the entire statement before it can be acted upon." I respectfully agree with those observations. The question of the probative value of dying declaration was also considered by Shabbir Ahmed, J., in Taj Muhammad and others v. The State P L D 1960 Lah. 723 and in Muhammad Khan v. The State P L D 1961 Lah. 936 and Shabbir Ahmad, J., observed in Taj Muhmmad's case "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" In Muhammad Khan's case Shabbir Ahmad. J., clarified that a conviction could be based on a dying declaration only if its author was a man of unimpeachable integrity. Now in Taj Muhammad's caste Shabbir Ahmad, J., had set aside a conviction based on a dying declaration whilst in Muhammad Khan's case lie relied on it only for the purposes of corroborating the ocular evidence, therefore, in neither case did the Court have occasion to decide whether the deceased was a man of unimpeachable integrity, and the difficulties of applying the test laid down by Shabbir, Ahmad. J., and by Changes J., in the cases cited were illustrated by the cleavage of opinion in Abdul Raziq v. The State P L D 1964 Pesh

67. The facts in Abdul Raziq's case were that one Sharifullah and his three sons including the said Abdul Raziq were charged for a murder, Abdul Raziq and Sharifullah were tried for the murder because the other two accused were absconded even at the date of the appeal in the High Court which was six years after the murder. The prosecution case was based on the evidence of eye-witnesses, on two dying declarations by the deceased, on evidence of motive and on the abscondence of the accused. The Sessions Court rejected the ocular evidence as false. It convicted Abdul Raziq on the basis of the two dying declarations and it observed that the dying declarations were corroborated by his abscondonee. However although tile appellant's father Sharifullah had been fully implicated by the deceased in both the dying declarations, the Sessions Court gave him the benefit of doubt on the ground that the ingredients of section 34 of the Penal Code had not been made out against him. No appeal was filed against Sharifullah's acquittal but the appellant challenged his conviction in the High Court and his submission appears to have been that as the dying declarations had been rejected against his father, they were not fit to be relied upon. One of the learned Judges of the High Court observed that the appellant's father had not been implicated in the dying declarations but with respect this view was bayed on a misreading of the dying declarations. However, the learned Judge also held that the dying declarations were corroborated against the appellant by evidence of motive and by the evidence of appellant's abscondence. In a vary able judgment (I say so with respect) Faizullah, J., dissented from this view and held on a careful scrutiny of the evidence that the dying declarations did not ring true. Therefore, the case was referred to a third Judge who agreed with the view of the Sessions Court. According to the headnote of this case, the majority view of the Court was that a conviction can be based on a dying declaration. ,This head note is correct, but the relevant observations were once again obiter dicta, because according to the majority view, the dying declarations were corroborated by other evidence. Further, although the corroboratory evidence included the evidence of motive, what the prosecution relied upon was only the fact that the deceased had filed a criminal complaint against the family of the appellant. This means that according to the prosecution, the deceased had animosity against the appellant and his family. In these circumstances, far from corroborating the dying declarations, the evidence of motive cast great doubt on them, and in my humble opinion, the majority view in this judgments (which appears to have been followed by the High Court in the instant case) is not correct. But I may explain here that this majority view is based upon the assumption that great sanctity attaches to a dying declaration because truth sits upon the lips of a dying man. In view of the importance of the question, I would also briefly refer to the Indian Supreme Court's view. In Ram Nath Modhoprasad and others v. State of Modhya Pardesh AIR 1953 S C 420, the Indian Supreme Court held that it was ' settled Law that it is not safe to convict an accused person merely on evidence furnished by a dying declaration without further corroboration " but in Khusol Rao v. State of Bombay AIR 1958 S C 22 the Indian Supreme Court reversed its earlier view and hold that a conviction could be based on an uncorroborated dying declaration. However, the Court observed that a dying declaration had "to be subjected to a very close scrutiny" and the Court had to satisfy itself that the deceased had been able, despite his injuries, to identify the assailant by keeping in view circumstances like the opportunity of the dying man for observation whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement???" I respectfully agree with these observations, and it cannot be laid down as a rule of law that a conviction cannot be based on a dying declaration. However, the learned Judges of the Indian Supreme Court dissented from the view of Beaumont, S`. J., that a dying declaration was "a weaker type of evidence". With the utmost respect, in my humble opinion, the view of Beaumont, C. J,, is the correct view, and even the learned Judges observed that it a dying declaration was made by a person of doubtful antecedents it would invite suspicion. Now except in cases where the prosecution produces evidence to show that the deceased was a man of unquestionable integrity how is the Court to assess his antecedents ? As observed by Munir, C. J,, in his Law of Evidence (4th edition, page 409) "To sum up, a dying declaration is not to be believed merely because no possible reason can be given for accusing the accused falsely. It can only be believed a there are no grounds for doubting it at all". This passage states the correct law, and as far as I can see the Indian Supreme Court's judgment in Khushal Rao's case assumes that the integrity of a dying man cannot be questioned because of the presumption that truth sits upon his lips and if this presumption be correct no doubt it would go a very long way to offset the fact that the author of a dying declaration cannot be cross-examined. ??????????? However, this presumption that truth sits upon the lips of a dying man, is a presumption of the Common Law, and as it is a generalisation about human beings it must necessarily have reference to social conditions. Stephens, who was Law Member of the Government of India, observed about this presumption in his history of English Criminal Law (p. 448) : "It has worked, I am informed, all in India into which country it has been introduced together with many other parts of the English Law of Evidence ???????? " This was also the view of a Division Bench of the Lahore High Court in Bakhshish Singh alias Bakild and others v. Emperor (A I R 1925 Lam 549), and even in Khurshid Hussain Salehon's case, Young, C. J.. gave a warning that there was a tendency to implicate people falsely in dying declarations on account of family feuds. This view was criticised by Shabbir Ahmad, J., in Muhammad Khan's case and I am conscious that ft is hazardous for Judges to indulge in generalisations about human nature, but I venture to think that future historians of our Jurisprudence will describe as the most notable development of our Criminal Jurisprudence in the last thirty years the evolution of the doctrine of sifting the grain from the chaff. What'; precisely does this doctrine mean ? It means that people very often give false evidence about crimes in order to implicate their enemies, therefore, whenever evidence is tainted by enmity, as it is in a very large number of cases, we do not base a conviction on such evidence unless it is corroborated by other evidence. In plain English, the doctrine means that standards of honesty have declined and are declining. But if standards of honesty are declining, can any man be an island unto himself ? This question was examined by this. Court in Tawab Khan and another v. The State, and Sajjad Ahmad )an, J., who pronounced the judgment of the Court, observed a "in the same line, there are the dying declarations of the deceased which have a degree of sanctity under the law, being the statements of a dying man, on the belief that he being placed in a situation of immediate apprehension of severance of his ties with the mundane affairs, he would not tell a lie " In this country, the habit, unfortunately, is quite common, now judicially recognised, that people do add innocent persons along with the guilty to satisfy their sense of revenge and to put the other side to the utmost grief. It is difficult to lay down a rigid rule that a person who is injured and is under an apprehension of meeting his death, would suddenly be gifted, as if by a magic transformation, with a clean conscience and a purity of mind to shed all the age-old habits and deep-rooted rancours and enmities. Even, assuming that the pangs of conscience are there at the time to prohibit making of false charges, the question arises whether these pangs are strong enough to fortify him to resist the promptings and persuasions of his relations and others who may be surrounding him at the time and irciie vim to support the pattern of the charge which they have chosen to make against the accused persons, whether innocent or guilty. It is for this reason that a close scrutiny of the dying declarations like the statements of interested witnesses, becomes absolutely necessary". The cleavage of opinion amongst the superior Courts on the evidentiary value of a dying declaration must be resolved in the tight of this authority, which escaped the attention of the learned Judges of the High Court in the instant case. Perhaps on account of the majority view in Abdul Raziq's care the learned Judges have assumed in the instant case that a dying declaration was necessarily a piece of c>vidence of very high probative value because of the presumption that truth sits on the lips of a dying man. But as pointed out by Sajjad Abmad Jan, J., a man cannot undergo a magic transformation at the moment of death. And, as he cannot shed "the age-old habits and deep-rooted rancours and enmities", it is clear that generally there would be little, if any, sanctity attached to a dying declaration, which should not be placed, so to say, on a very high pedestal. But the Judges who have treated a dying declaration as a superior piece of evidence were conscious of the dangers of relying on a statement by a person who could not by the nature of things be cross-examined. They were, however, of the view that this infirmity was cured by the scarcity inherent in the very idea of a dying declaration. As I explained, this was the view of the Indian Supreme Court in Khushal Ran'' case but as we are of the view that there is ordinarily little, ii any, sanctity about a--dying declaration, it follows that ordinarily a dying declaration in criminal cases, is in the words of Beaumont, C. J., "a weaker type of evidence than the evidence given by a witness in the witness box". I have deliberately confined my observations to criminal cases, because the burden of proving the guilt of the accused beyond reasonable doubt is on the prosecution in criminal cases I would also make it clear that I should not be understood to mean that a conviction cannot be based on a dying declaration. But as the burden of proving the guilt of the accused is on the prosecution, the result of Tawab Khan's case is that the burden would be on the prosecution to prove that the author of a dying declaration was a man of unquestionable integrity, and if the prosecution discharges that burden, a conviction can be based on a dying declaration subject to the further condition that the persons who give evidence about the dying declarations are also persons of integrity. That is why a dying declaration recorded by a Judicial Officer is generally considered to be more reliable than a dying declaration recorded by the police or by the relations of the deceased. I now turn to the oral dying declarations of the deceased in the instant case, and at the outset I would observe that the prosecution did not produce any evidence to show directly or indirectly that the deceased was a man of unimpeachable integrity, therefore, I would confine my observations to the questions which should have been examined in order to test the veracity of the dying declarations in the light of the evidence on the record. As the deceased died within about three hours of the injury suffered by him, the first and most obvious question for examination was whether his mental and physical faculties had been affected by the mortal injury suffered by him. Both the Courts assumed that he was in a fit condition to make dying declarations, but Mr. Kundi's submission was that this concurrent finding was contrary to the evidence on the record, and the attention of the Courts does not appear to have been drawn to the evidence on which Mr. Kundi relied. However, even if it is assumed for the sake of argument that the deceased was in a fit condition to make a dying declaration, the prosecution had to prove that he had the opportunity to see and identify the assailant, and, here the prosecution had created al difficulty for itself by contending that the appellant bad fired at the deceased through the door of the shop of the deceased. According to the evidence this door was 5J feet high and as it had been pierced by a bullet it was produced as an exhibit in the case. At the appellant is alleged to have fired through the door, I would not have doubted the prosecution case if the prosecution case bad been that the appellant had fired two or three shots. But it is difficult to believe that the appellant could have killed the deceased by a single shot as alleged. It is also no body's case that the door was a glass door. How then could the appellant have seen through the door ? Mr. Safdar Hussain did net a: tempt to throw any light on this question but he wanted us to hold that the prosecution story was true. However, even if we make the assumption that the very first shot fired by the appellant hit the deceased, the further question which, required examination was whether the deceased had seen the appellant ? The door was 5? feet high and it is not the prosecution case that the deceased was standing outside the door when the appellant fired at him How then could he have seen the appellant ? The prosecution examined P. W. Yaghistan to prove that the appellant had threatened the deceased before firing at him but the High Court rightly held that this witness was a liar and bad never been at the place of occurrence. And, Mr. Kund pointed out here that an adverse inference bad to be drawn against the prosecution for not examining Shah Nawaz who according to the prosecution was another eye-witness of the occurrence. In the circumstances, as the prosecution dropped Shah Nawaz as an unnecessary witness, an adverse inference has to be drawn against it for not examining this witness. But apart from this adverse inference, the further result of failure of the prosecution to examine this witness was that it withheld the evidence which would have shown whether the deceased had been able to identify the person who had-fired at him. Neither of the Courts noticed this aspect of the case and assumed that the deceased had seen his assailant, but this assumption is not supported by any evidence whatsoever, as the High Court rightly held that P. W. Yaghistan had not seen the attack on the deceased. In these circumstances, the oral dying declarations were not fit to be relied upon on this ground also but as Mr. Kundi, further, submitted that the High Court had not subjected them to any scrutiny, much less to a very careful scrutiny, it is necessary to examine the evidence of P. W. Abdul Sattar and Faizullah, I pointed out that according to the learned Judges the two written dying declarations Exhs. P. C. and P. D., were fabricated and that P. W. Faizullah had attested these fabricated dying declarations. The High Court also held that this witness bad deliberately suppressed) the dying declaration recorded by him, because it was inconsistent with the other two dying declarations Exhs. P. C. and P. D. In view of this finding, I am unable to understand bow the High Court accepted the evidence of this very witness about an oral dying declaration. Additionally, the witness was a polices Constable. I am aware that he was not on duty at the relevant time, but, in the circumstances of the case, the view of the learned Judges is contrary to the judgment of this Court in Ghulam Farid v. The State P L D 1966 S C 264 and in' Waheeduddln v. Allah Ditta and others 1977 S C M R

72. On this ground also the learned Judges erred in law in relying on P. W. Faizuilah's evidence. There remains for consideration P. W. Abdul Sattar's evidence about the oral dying declaration, and I referred earlier to the discrepancies in the evidence of this witness which bad been noted by the High Court. Apart from these discrepancies, the witness said that the deceased had first asked him to "remove Sahib Jan, Yaghistan and Shah Nawaz aside. I, thereupon, requested the aforementioned P. Ws. to get aside . Abdul Jabbar told me that he was bit by Zarif Khan, accused, with a topak". As, according to the prosecution, Sahib Jan and others were related to the deceased and had seen the occurrence, it is difficult to believe P. W. Abdul Sattar's claim that his brother refused to disclose the identity of the assailant in the presence of the persons who bad seen the assailant. The witness was cross-examined on this aspect of the case, and he said about the F. I. R., lodged by him : "I had stated In my said report that my brother had told me in privacy that Zarif accused had shot him with a rifle and if it is omitted from his report, Exh. P. A. I cannot account for the same. The deceased had told me that the accused had shot him from a point outside his shop .... It is wrongly recorded in my report, Exh. P. A. that the accused had entered his shop, armed with a rifle and after firing a shot at him went away". I have no doubt that what the witness had stated in the F. I. R., was correct, and as he lied deliberately given false evidence in the Sessions Court, his evidence about the oral dying declarations, does not inspire confidence. However, after pointing out that the witness had given false evidence on material particulars, the learned Judges accepted the evidence of this witness about the mal dying declarations, because, according to them, the appellant had failed to prove that the witness was hostile to him. Now whilst the witness lead repudiated the suggestion of enmity about which he was cross- examined, the appellant had proved through his cross-examination that the witness had given false evidence about every material particulars of the prosecution case on which he bad been examined. This means either that the witness was inimical to the appellant, and had therefore given false evidence, or that he had given false evidence because he was not a witness of truth. In either case, I am not able to, understand how a conviction could be based on the evidence of sack a dishonest witness about oral dying declarations. In the result, the prosecution has failed to prove the appellant's guilt, and, I would allow his appeal, set aside the conviction and sentence passed against him and order his release unless required on any other charge. ANWARUL HAQ, J.-While I agree with my learned brother Dorab Patel J., that, on the facts and circumstances as brought out by him, the conviction of the appellant cannot be sustained. I wish to make a few observations regarding the evidentiary value of a dying statement made admissible under section 32(1) of the Evidence Act. As my learned brother has exhaustively examined the leading cases, from various jurisdictions, it is not necessary for me to go over the same ground again. I notice that although his Lordship has expressed the view that "there is ordinarily little, if any, sanctity about a dying declaration it follows that ordinarily a dying declaration in criminal cases is, in the words of Beaumont, C. J., a weaker type of evidence than the evidence given by a witness in the witness-boa, "yet be has made it clear that he should not be understood to mean that a conviction cannot be based on a dying declaration. Speaking with respect, I venture to think that expressions like "weaker type of evidence", as employed in some of the precedent cases to describe the evidentiary value of a dying declaration, are likely to produce a misleading impression as to the quality of such evidence and the reliance which may be places upon. it in the particular circumstances of each case. It has to be remembered that the Legislature has advisedly, as a matter of she:, necessity, incorporated in section 32 an exception to the general rule that hearsay is no evidence. In the very nature of things the sanctity of oath and the test of cross-examination are not available to ascertain the veracity of a dying statement ; but the nature of the statement itself and the circumstances under which it is made make probable the truth of the statement and thus take the place of oath and cross-examination. On first principles, the sanctity attached to such statements by the statute should b5 respected, unless there are clear circumstances brought out in the evidence to show that a dying declaration is not reliable for any reason. Accordingly, I am inclined to take the view, in respectful agreement with the dicta in Chanderasekar v. The King 1937 A C 220, In Re : Guruswami Tevar A I R 1940 Mad. 196, Khushal Rao v. State of Bombay AIR 1958 S C22, Taj Muhammad v. State P L D 1960 Lah.

723. Mohammad Khan v. State P L D 1961 Lah.

939. Abdul Raziq v. State P L D 1964 Pesh. 67, Tawaib Khan v. State P L D 1970 S C 13 and Ekabbar Ali v. State 1971 P Cr. L J 275, that a dying declaration stands on the same footing as any other piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the appreciation of evidence in criminal cases. It cannot be laid down as an' absolute rule of law, nor even of prudence, that a dying declaration cannot force the sole basis of conviction unless it is corroborated. Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made so that the Court is satisfied that the same is true and genuine. In order to test the reliability of a dying declaration, the Court has to keep in view the various circumstances like the opportunity of the dying man for observation, and whether the capacity of the deceased to remember the facts stated had not been impaired at the time be was making the statement, by circumstances beyond his control; which she statement had been consistent throughout if be had made several dying declarations ; and whether the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. It also goes without saying that the exact contents of the dying statement should be proved by reliable evidence, and for this reason a dying statement recorded by a competent Magistrate in the proper manner in the wordy of the maker of the declaration would obviously carry greater weight than an oral statement which may suffer from all the infirmities of human memory and human character. If the Court comes to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the identity of the assailants there is no need for further corroboration. But if it appears to be unreliable by itself, or suffers from some infirmity, then it cannot form the basis of a conviction without corroboration. I might add that the observations made by Sajjad Ahmad Jan, J. In Tawaib Khan's case, already referred to, as reproduced in the judgment of my learned brother, as to the circumstances which might impair the quality of a dying statement are indeed highly relevant and point to the necessity for a close scrutiny of this kind of evidence before it can be safely acted upon. The Court has, in my humble view, rightly observed in that case that "in the matter of administration of criminal justice, taking in view the present state of our society, the assessment of evidence, whether it is the statement of a witness or the statement of a person who is dead is essentially an exercise of human judgment to evaluate the evidence so as to find out what is true and what is false therein". MOHAMMAD AKRAM J.-I have the advantage of having gone through the main judgment proposed by my learned brother Dorab Patel, J. and the note appended by my other learned brother S. Anwarul Haq, J. I fully share their opinion that on the facts and circumstances of this case the conviction of the appellant cannot be sustained. I would, therefore, humbly allow the appeal and set aside his conviction and sentence. At the same time I am constrained to observe that the questions whether a dying declaration is reliable or not and as to the credibility of the declarant, are primarily questions of fact to be determined depending on the facts and circumstances of each case. In this behalf no absolute rule can be laid down in advance. I respectfully share the views expressed by my learned brother S. Anwarul Haq, J and concur with him. ORDER OF THE COURT According to the unanimous view of the Court, this appeal is allowed, and the conviction and sentence of the appellant are set aside. He shall be set at liberty, provided he is not required to be detained in any other case. S. A. H.?????????????????????????????????????????????????????????????????????????????????????????????? Appeal allowed