P (PLP)

The provisions contained in section 32 of the Evidence Act are in no way dependant on, or circumscribed by, the provisions of section 164 of the Code of Criminal Procedure. Mahmud Ali, Advocate, Federal Court, instructed by Muhammad Siddiq, Attorney, for petitioners. Respondent, not represented. ABDUR RAHMAN, J: As the result of a petty dispute arising out of a game of card, which was being played by Sharif and Ghulam Rasul as partners on one side and Sher Muhammad and Muhammad Shafi as partners on the other, and being watched by petitioners 1, 2 and 4 (Allah Bakhsh and Maula Bakhsh sons of Rahim Bakhsh and Allah Bakhsh son of Sarbaland) along with one Aslam as casual observers, near the pound in Chak No. 223‑G.B. in Samundari tahsil, Ghulam Rasul and Muhammad Shafi were done to death and Sher Muhammad injured. As the petitioners and one Aslam were alleged to have been responsible for the above stated murders and injuries, they were tried under sections 148, 326,/149 and 302/ 149 of the Pakistan Penal Code by the Additional Sessions Judge, Lyallpur. He acquitted Aslam altogether but convicted the petitioners under section 304 Part II, read with section 34 of the Pakistan Penal Code and sentenced all of them to eight. years' rigorous imprisonment for causing the death of Muhammad Shafi and Ghulam Rasul and to two years' rigorous imprisonment with fine of Rs. 100 each under section 326/34 for causing grievous and simple injuries to Sher Muhammad. The petitioners appealed against their convictions and sentences to the High Court of Judicature at Lahore. The Provincial Government appealed against the order of acquittal. At the preliminary hearing, however, notices were, in the appeal preferred on behalf of the Government, issued only to Allah Bakhsh and Maula Bakhsh sons of Rahim Bakhsh. After hearing both the appeals, the Lahore High Court dismissed the appeal preferred on behalf of the petitioners, but allowed the appeal preferred on behalf of the Provincial Government with the result that Allah Bakhsh and Maula Bakhsh sons of Rahim Bakhsh were found guilty of murder. Their convictions were accordingly altered from section 304, Part II, to section 302 of the Pakistan Penal Code and their sentences were enhanced to transportation for life. The two other petitioners were found guilty under section 304 Part II, read with section 34 of the Pakistan Penal Code, and the convictions and sentences in regard to them were, therefore, maintained. All the four petitioners have applied for special leave to appeal. Realising that this Court does not interfere with the findings of fact, counsel for the petitioners urged that the dying declarations of the deceased persons, on which considerable reliance bad been placed both by the Sessions Judge and the High Court, were inadmissible in evidence. In support pf that contention he preferred to section 164 of the Code of Criminal Procedure and urged that the statements made by the deceased persons before their death were not admissible in evidence as they had not been recorded in the manner stated in Chapter XXV of the Code, and the provisions such as those contained in section 360 of the Code had not been complied with. It is true that the word " statement " in subsection (1) of section 164 appears to have been used in a wider sense and may include statements either of a witness or even of a deceased person, and they would have had to be recorded in accordance with the provisions contained in Chapter XXV of the Code, if they were intended to be used as statements made during the course of investigation under Chapter XIV, or at any time afterwards before the commencement of the inquiry or trial. But, if recorded behind the back of the accused, they could not have been used as substantive evidence against him. The only object in getting such statements recorded must be either to obtain a hold over witnesses or possibly for the purpose of showing that they had not been made long after the date of occurrence, bat as soon as after an incident as F9ssible in the circumstances of a particular case. These could, however, be used by the accused for the purpose of cross‑examining the witnesses and discrediting their evidence at the trial, if they materially differed from what had been given before. It must, however, be remembered that the provision in section 164 of the Code of Criminal Procedure, does not in any way affect the admissibility of a statement made by a person, if it falls within the terms stated in section 32 of the Indian Evidence Act. To be admissible under that section, it is not necessary that such statements, usually described as 'dying declarations', must necessarily have been recorded and much less recorded in accordance with the provisions contained in Chapter XXV of the Code of Criminal Procedure. Dying declarations are admissible even if orally made. They may contravene the general rule of hearsay evidence, but that is because the Legislature has, on obvious considerations, made them expressly admissible.' There are certain other exceptions to that general rule, but it is unnecessary to refer to them here. Confining ourselves to the admissibility of dying declarations in the present case, and saying nothing as to the weight and degree of credit to be attached to them, which would depend on the facts of each case there is no doubt in our minds that no exception could be taken to them on that ground as long as they are made by a deceased person and refer, as in this case, to the cause of his death. In short, the provisions contained in section 32 of the Evidence Act are in no way dependant on, or circum?scribed by, the provisions of section 164 of the Code of Criminal Procedure. No other objection was raised before this Court which deserves any mention or consideration. For the above reasons, this petition fails and is dismissed. K.M.A./A.H.?????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.