1979 P Cr (PLP)

Magistrate Nawabshah Khatoon wife of Ghulam Hussain Certified that Mst. Shah Khatoon is in proper senses. She is able, to give the statement. (Sd.) Doctor A.R. Bhatti, Medical Officer P.M.C. Hospital, Nawabshah. The accused Ghulam Hussain Kerio, on account of dispute of land, has fired revolver shots at his wife Mst. Shah Khatoon in order to kill her. I, therefore, file this report, against him on behalf of the State. Steps may be taken." After recording the F. I. R. Mr. Zaffar Iqbal visited the scene of 1 offence in presence of Mashirs Mohammad Anwar and Mohammad Umer, which was pointed out by Mst. Hakimzadi, the mother of the appellant. The scene was in a room of the house of the appellant where blood was found lying on the cot but there was no blood on the ground or anywhere else in the room. The mashirnama of the scene of Offence was prepared. The Investigating Officer then recorded the state ments of Mst. Hakimzadi and Muhammad Anwar. The appellant could not be arrested. On 12th May 1976 the A.S.I.P. recorded the statements of Mohammad Ali and Ali Mohammad. On 16th May, 1976, the A.S.I.P. received telephonic messages from Town Police Station, Nawabshah regarding the death of Mst. Shah Khatoon in the Civil Hospital, Nawabshah. He, therefore, went over and secured the mashirnama of the dead body of the deceased and the inquest report from the Town Police, Nawabshah. On 18th May 1976, the Investigating Officer arrested the appellant at Sakrand Police Station in presence of mashirs Mohammad Anwar and Mohammad Hassan and prepared such mashirnama. The appellant voluntarily led the Investigating Officer to the place where he claimed to have thrown the revolver in Rohri Canal. A search was made for securing the revolver from the Canal through divers but the same could not be found. Such rnashirnama was pre pared. The statement of the divers Hote Khan and Ali Hassan were then recorded. On 31st May 1970, the A.S.I.P. gave the papers to S.P.O. Syed recorded. Hussain Shah, who challaned .the appellant in the Court.

4. The material evidence on which the prosecution relied at the trial consisted of the evidence of Mr. Ali Ahmed, Head Munshi and III Class Magistrate, Nawabshah (P. W. 1), who recorded the Dying Declaration of the deceased, Mst, Hakimzadi (P. W. 2), Mr. Syed Mohib Shah M. O. Sakrand (P. W. 3), Dr. Allahrakhio, M. O. Civil Hospital, Nawabshah (P. W. 4). Dr. Mohammad Sharif, R.M.O. Civil Hospital, Nawabshah (P. W. 5), Mohammad Anwar (P. W. 10) and Mr. Zaffar Iqbal A.S.I.P Sakrand P. S. (P. W. 11).

5. The defence of the appellant was of denial. In his statement the appellant stated that the Dying declaration was a concocted piece of evidence prepared at the instance of his mother-in-law Mst. Sara and A.S.I. Zaffar 1qbal. He further stated that he refused to accede to the urgings of his mother-in-law to shift over to her house along with his wife, on account of which she was annoyed with him. On the day of incident the appellant claimed to be at Karachi and when he returned from there he was informed by co-villagers that some thieves had caused injuries to the deceased and had run away. In support of his plea of innocence, the appellant asserted that he had very good relationship with his deceased wife who had given birth to two sons out of whom one was two years and the other one year old at the time of the incident.

6. At the trial the prosecution relied upon the oral testimony of P.Ws. Mst. Hakimzadi and Mohammad Anwar. The first named witness is the mother of the appellant. She stated that she was present in the house when at about noon time she heard the gun report of a gun and went over to the room of the deceased. The deceased informed her that there were two culprits and that they had injured her with revolver shots. On hearing this both raised cries which attracted Ali Muhammad, Muhammad Ali and Muhammad Anwar. Both women then narrated the incident to them. The witness was then declared hostile and cross examined by the prosecutor. P. W. Mohammad Anwar also did not support the prosecution. His version was that he was attracted on the promotion from the house of the appellant and upon reaching there he found the deceased lying injured on the ground and Mst. Hakimzadi present there Both women then informed him that the incident had taken place in the manner described by Mst. Hakimzadi. The witness then found the footprints of two persons at the scene of offence but they could not be tracked. Despite the fact that the witness was the Headman of the village, he admitted that he did not lodge the report with the police.

7. Thus it will be seen that there is a total lack of ocular evidence and the circumstantial evidence in this case. The only remaining evidence on which the prosecution had to fall back was the evidence of Dying Declaration of deceased Mst. Shah Khatoon. Now it is not disputed that the deceased died as assault of injuries from afire-arm. Dr. Mobib Shah who had examined the deceased on 8th May 1976, while she was alive found the following injuries on her person :- , (1) One punctured wound 1/6 x 1/6 x muscles deep on the right arm, above the elbow joint. (2) One punctured wound 1/6 x 1/6 x cavity deep on the hypo-gastrium region. (3) One punctured wound 1/6 x 1/6 x muscles deep on the right iliac region. According to the Doctor these injuries appeared to have been ''caused by discharge from a fire-arm such as a revolver. The Doctor further deposed that there was no charring present on the margins of the wounds. These injuries were confirmed on the Post Mortern Examination held by Dr. Muhammad Sharif after the death of the deceased occurred. In the opinion of the latter medical expert two of the injuries were sufficient to cause death in the ordinary course of nature.

8. However, on the question of the appellant s culpability the learned Judge in the trial Court placed sole reliance upon the Dying Declaration for which he found corroboration in the medical evidence.

9. Mr. Mohammad Hayat Junejo, learned counsel for the appellant strongly contended that in the circumstances of this case the conviction of the accused cannot be sustained on the sole basis of the Dying Declara tion. He further argued that the learned Judge in the trial Court has wrongly excluded from consideration the evidence of Mst. Hakimzadi and Muhammad Anwar. According to him there was no justification for declaring the former as a hostile witness in view of the fact that her statement under section 164, Cr. P. C. was not recorded. As to Mohammad Anwar, he urged that his evidence cannot be thrown away as he was not a relation of the appellant and was not even declared hostile by the prosecution. Therefore, the effect of his evidence upon the Dying Declaration had to be considered, for, testimony on oath is on a higher level as against the dying declaration.

10. It was laid down in Tawaib Khan v. The State (P L D 1970 S C 13) that although the dying declarations of the deceased have a degree of sanctity under the law but 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. The principle was, therefore, laid down that no rigid rule can be made to the effect that a person who is injured and is under an apprehension of meeting his death, would suddenly be gifted, as if by magic transformation, with a clean conscience and a purity of mind to shed all the age-old habits and deep rooted rancour and enemities. The conclusion was that a close scrutiny of a dying declaration like the statements of the interested witnesses, become absolutely necessary. In a recent pronouncement in Zareef Khan v. The State (P L D 1977 S C 612) their Lordships reiterated the rule that a close scrutiny of evidence of dying declaration is necessary before it can be safely acted upon.

11. In view of the aforesaid authoritative pronouncements as to the evidentiary value of a dying declaration, specially when the prosecution is seeking to base its entire case upon the dying declaration, it becomes necessary to scrutinise the same carefully. According to the deceased she was shot and injured at 8-15 in the morning and the motive disclosed by her was that the appellant was annoyed upon her refusal to transfer her property in his name. There is no other evidence whatsoever on the point of motive. No witness was produced to testify whether the deceased at any time complained to anyone including her own relations that she was being pressed in this behalf. The allegations made by the deceased would seem to indicate a case of premediated murder and unless some thing suddenly and unexpectedly occurred, it is most unlikely that a husband who has easy access to his wife at all times would choose that hour of the day to commit a heinous crime in open daylight with a fire weapon, which inevitably would attract attention from the neighbour hood. There also seems to be a mystery surrounding the manner in which the A.S.I received information about the crime and in this behalf A. S. I. Zaffar Iqbal, stated that none from the village of the appellant was prepared to file the report. He stated that he received spy informa tion but it is not known why the informant did not like to disclose his name. It is admitted by the M. O. Syed Mohib Shah that when he received the deceased at 11-00 a. m. on the day of incident she was in sense and yet the A.S.I. did not arrange to have her statement recorded at Sakrand nor is there any evidence that the deceased orally informed anyone that she bad been injured by her husband. In the opinion of Dr. Allahrakhio, M.O., Civil Hospital, Nawabshah, there was no possibility of deceased being unconscious after receiving injuries till her dying declaration was recorded. He has stated that some relatives of the deceased may be present at the time of recording of the dying declara tion. The A.S.I.P. was admittedly present at that time. In view of these circumstances the possibility of tutoring the deceased or suppression of the real circumstances of the case by her cannot be ruled out and the; manner in which the deceased was injured according to the dying declaration does not appear to be plausible. On the other hand, prosecution itself produced evidence to indicate that the appellant was absent from the house at time of the incident and the deceased herself informed P.W.1 Anwar that two persons whose names are not mentioned were found in the house and one of them fired the shots at the deceased. Taking into consideration the entire evidence on record one is left with an element of doubt as to the authenticity of the dying declaration. The benefit of doubt must, therefore go to the appellant.

12. In the result, the appeal of the appellant allowed and the conviction and the sentence set aside. The appellant shall be released forthwith if not required in any other case. The reference for confirma tion of death sentence is consequently dismissed. Appeal allowed.