P L D 1961 (W (PLP)

7. Doctor Abdul Haq (P. W. 1) conducted the post‑mortem examination on the 28th of September 1959, at 10‑45 a m. and observed seven injuries on different parts of Mst. Said Begum's dead body. In the opinion of the doctor, the injuries had been caused with a sharp‑edged weapon. Death, in the opinion of the doctor, was due to severe internal haemorrhage.

8. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. He stated that he had been involved in 3 false case on account of enmity. No evidence was led in defence.

9. The prosecution case against the appellant rests on the (i) Evidence of Inayat (P. W. 9) and Mst. Zainab Bibi (P. W. 10), the alleged eye‑witnesses of the occurrence; and (ii) Exh. P. G. and the oral dying declaration of Mst. Said Begum deceased.

10. The learned Additional Sessions Judge did not rely on the evidence of the eye‑witnesses as would appear from the following passage occurring in his judgment :? "As already noticed, according to the dying declaration. Exh. P. G., nobody had seen the occurrence and this casts a serious doubt as to the truth of the statements of Inayat and Mst. Zainab P. Ws. Again, Inayat did not report the matter to the police promptly and he did not even accompany Mst. Said Begum to the hospital. So, his statement appears to have been recorded the next morning. His house was about 251 feet from the place of occurrence and there was not a good chance of his having heard the shrieks of the deceased. Mst. Zainab Bibi is an aged woman and admitted that she could identify a man from a distance of five or six karams only. So she had no opportunity to identify the culprit correctly from the turn in the street. For the above reasons. I am of the view that Inayat and Mst. Zainab had not seen the accused at the spot of occurrence. They, however, may have reached the spot soon after the occurrence and may have been told by Mst. Said Begum that she had been stabbed by the present accused." He, however, convicted the appellant on the dying declaration Exh. P. G? recorded by Mian Abdus Samad Magistrate.

11. The evidence of Mian Abdus Samad and Lady Dr. Hamida Khatun P.Ws. shows that the dying declaration is incomplete. The question for determination is : what is the value of an incom?plete dying declaration ? The following passage at page 332 of Phipson on Evidence, 9th Edition, deserves consideration :‑ "The declarations should be complete, conveying the whole of what the declarant intended to say. An unfinished statement, or one which the declarant intended, but was prevented from, qualifying is inadmissible." The following passage from paragraph 721 of Tayler on Evidence, Volume I, also deserves consideration :‑ "Whatever the declaration may be, it must be complete in itself, for if the dying man appears to have intended to qualify it by other statements which he is prevented by any cause from making, it will not be received." In Cyril Waugh v. The King ((1950) A C 20), Lord Oaksey observed :‑ "Their Lordships are of opinion that the dying declaration was inadmissible because on its face it was incomplete and no one can tell what the deceased was about to add ; that it was t in any event a serious error to admit it in part ; and that it was a further and even more serious error not to print out to the jury that it had been subject to cross‑examination."

12. The dying declaration Exh. P. G., suffers from another defect also. Mian Abdul Samad, Magistrate, stated in cross?-examination :‑ "The husband and mother‑in‑law of Mst. Said Begum were present with her and were attending to her because she was feeling severe pain. They too spoke now and then to her during her statement but I had correctly recorded only what Mst. Said Begum herself had stated." In Dial Singh v. Emperor (A I R 1934 Lah. 805), Monre and Abdul Rashid, JJ., held that the value of a dying declaration altogether disappears when parts of it have obviously been supplied to the dying man by other persons whether interested parties or police officers. A "touched up" dying declaration has no value. In the present case, Mian Abdus Samad categorically stated that the husband and mother‑in-?law of the deceased were interfering while the statement was being recorded. While a person is making a statement, a mere hint by another person may completely change the nature of the statement.

13. Respectfully following the above views, we do not con?sider it safe to rely on the dying declaration of Mst. Said Begum, and exclude it from consideration altogether.

14. If the dying declaration is ruled out of consideration, nothing is left on the record against the appellant. After going through the evidence and the other material on the record, we accept the appeal, set aside the conviction and sentence of the appellant, decline to confirm his sentence of death, and acquit him. He shall be released forthwith if not required to be detained in connection with any other case. R. B. A.?????????? Appeal accepted.