P L D 1954 Lahore 646 (PLP)

SHABIR AHMAD, J.‑Having by his order dated the 9th of January 1954 sentenced Mian Khan, son of Palhu, a Jat of Chak Basawa, in the district of Gujrat, to death for the murder of Mst. Fatima and her sister Mst. Sardaran, Sardar Ata UIlah, Additional Sessions Judge, Gujranwala at Gujrat, has referred the case to this Court under section 374 of the Code of Criminal Procedure for the confirmation of the sentence of death, and the condemned man has presented an. appeal against that sentence. Though the learned judge has not said so specifically in his order yet it is clear that separate sentence of death has been passed for each of the two murders. This order will dispose of the appeal and the reference. The two victims were the daughters of Hassan, son of Khawaja Jat, a resident of Chak Basawa, who had in addition two other ‑daughters, namely, Mst. Rasulan and Mst. Rehinat Bibi, of whom the latter is the wife of the appellant. Hasan had no male issue and gifted his land measuring 1 square and 18 acres to his cousin Mst. Husain Bibi and to his two daughters, Mst. Fatima and Mst. Sardaran, the victims, who were the daughters‑in‑law of Mst. Husain Bibi, but were living with him in his house along with their husbands. This gift was made by a deed which was registered some time before the partition of British India. Mian Khan appellant and his wife brought a suit to have the deed of gift in favour of Mst. Fatima and Mst. Sardaran declared null and void but in spite of protracted litigation failed to secure an order in their favour. The prosecution case was that it was the gift made in their favour by their father that was the motive for Mst. Fatima and Mst. Sardaran being done to death by Mian Khan appellant. According to the prosecution, the occurrence out of which the case arises took place on the 13th of March 1953 in the afternoon in Chak Basawa and was witnessed besides Hasan, the father of the victims, by Lal Chaukidar of Chak Basawa; Ghulam Muhammad, and Ghulam Rasul son of Maula.' A report was made the same day at 2‑0 p.m. by Lal Chaukidar at Police Station Mandi Baha‑ud‑Din, which is at a distance of about four miles from the scene of the occurrence. In the report, it was stated, inter alia, that the informant had seen the attack on the two victims as had Hasan, Ghulam Muhammad and Ghulam Rasul and that though Mst. Fatima was done to death in the house of her father, Mst. Sardaran ran away to save her life to the haveli of a neighbour, Shahabal Shah, where Mian Khan appellant followed her and caused her a number of injuries. Mst. Fatima died at the spot but, though she had received a number of serious injuries, Mst. Sardaran did not die till 6‑0 a.m. on the 7th of April 1953 when she expired in Mandi Baha‑ud‑Din Hospital, where she had been admitted on the 13th of March 1953. The post‑mortem examination conducted by Dr. S. M. Yusaf on the dead body of Mst. Fatima on the 14th of March 1953, disclosed that she had received four incised wounds and a contusion. The four incised wounds were as follows :‑ (1) An incised wound, 4 " x 1", oblique on the left side of the face starting 1" in front of the left ear going down to the left lip cutting down the face bone and the hose., (2) An incised wound, 6" x 1", on the left side of neck horizontally oblique, cutting the vertebra of the neck underneath. (3) An incised wound 2" long peeling away skin with subcutaneous tissues for three inches on the inner side of the left fore‑arm just. below the elbow. (4) An incised wound, 1 " x x ", longitudinal on the palm of the left hand. The doctor deposed that on dissecting the body, he found that third cervical vertebra was completely cut as were the spinal cord at the level of that vertebra and the blood vessels of the neck on the left side. It is fairly obvious, and the doctor gave it as his opinion, that death was due to shock and haemorrhage as the result of the cutting of the spinal cord and blood vessels with a heavy sharp‑edged weapon. The post‑mortem examination on the dead body of Mst. Sardaran was conducted on the 7th of April 1953 and disclosed that the victim had received no less than eleven injuries which were as follows :‑‑ (1) A dressed wound, 9" x 3", longitudinal on the front of left fore‑arm peeling skin and subcutaneous tissues and baring naked the tendous and ulna bone in upper part. (2) An incised wound, 3" x ", along the inner border of the left elbow longitudinally. (3) An incised wound, 3" x 1", oblique on the back of right elbow. (4) A healed up wound 2 " long horizontal on the inner side of right fore‑arm a little below the elbow. (5) An incised wound horizontal, 4" x 1", healed up in its outer 1 " on the right side of the face and pinna of ear. The bone underneath was cut. (6) A healed up wound 4" long horizontal running parallel to injury No. 5, 1" above it. (7) A wound cutting skin, 3" x 3", on the back of head left side. (8) An incised wound, 1 " x ", oblique on the back of neck more to the right. (9) A healed up wound, " x. ", on the right side' of chin. (10) A healed up wound, 3" x ", on the top of left shoulder. (11) A wound, 1" x ", on the left shoulder blade spine. This post‑mortem examination was also conducted by Dr. S. M. Yusaf, who deposed that on dissecting the body, he found that the lobes of both the lungs were congested. In the opinion of the doctor, death was due to passive congestion of lungs, sepsis and exhaustion brought about by multiple wounds inflicted with a sharp‑edged heavy weapon. The doctor added that injuries Nos. 1 and 5 showed no healing. At the trial the prosecution produced Ghulam Muhammad (P. W. 14), Ghulam Rasul (P. W. 15) and Lala (P. W. 16) as eyewitnesses of the occurrence. All these three witnesses, however, did not support the prosecution case to the extent which would justify their statements being used against the appellant for his conviction. In addition, the prosecution relied on the statement of Hasan made in the Court of the Committing Magistrate which was used as substantive evidence at the trial under section 33 of the Evidence Act, because Hasan had died before the case came up for trial and two dying declarations of Mst. Sardaran, one made by her on the 13th of March 1953 to Abdur Rahman, Sub- Inspector Police, who investigated the case and the other recorded on the 27th of March 1953 by Captain Abdul Majid a Magistrate of the First Class who was in those days working at Mandi Baha‑ud‑Din. The learned trial judge accepted the statement of Hasan and the dying declaration of Mst. Sardaran recorded by the Magistrate but did not place reliance on her statement recorded by the investigating officer on the 13th of March 1953. The prosecution also relied on evidence about the production by the appellant of a toka, which was stated to be the weapon of offence, but the learned trial Judge did not accept that evidence as reliable. The above discussion will have shown that the learned trial judge has based the conviction of the appellant on the statement of Mst. Sardaran before a 1st Class Magistrate under section 164, Criminal Procedure Code, which has been used as a dying declaration and the statement of Hasan made in the Court of the Committing Magistrate. Learned counsel for the appellant urged that the above evidence was not sufficient to justify the conviction and, therefore, his client was entitled to acquittal. The statement of Mst. Sardaran recorded under section 164, Criminal Procedure Code, was attacked by the learned counsel for the appellant on more than one ground. The first contention about this piece .of evidence was that as it was not 'recorded as a dying declara tion but only as the statement of a witness under section 164 of the Code of Criminal Procedure, it was inadmissible in evidence and, at any rate, not entitled to much weight. This statement of Mst. Sardaran was admitted under subsection (1) of section 32 of the Evidence Act, which is reproduced below "32, Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases :‑ (1) When the statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question." The above reproduced provision of law makes it fairly clear that it is not necessary for a statement to be admitted in evidence under subsection (1) of section 32 of the Evidence Act that it should have been made by a person who, when it was made, was under expectation of death. No doubt, in Singh v. Crown (I L R 4 Lah. 451.) a Division Bench of this Court expressed the view that before a statement of a dead man is admitted with regard to the cause of his death it must be made by him when he is dying from the result of the injury which caused his death. This remark, as is evident from page 458 of the report, was based on the English Law applicable to dying declarations and cannot in view of the statutory provision applicable to such statements made here be binding on Courts in Pakistan. I am prepared to concede that if a statement is not made by a person who does not know that he is at death's door, it may in certain circum stances not be as valuable as it would be if it were made by a person who was conscious of his death, but, as the law stands, a statement made by a person who at the time of making it is not under expectation of death does not become inadmissible in evidence. The weight to be attached to a statement‑of a dead person depends on the circumstances of each case and obviously no hard and fast rule of general application can be laid down. In one case a statement, even though not made by a person under expectation of death, may have very great weight, while in another even a statement made by a person who is at death's door may' not be very convincing. In cases of this kind, the Court has to look at all the circumstances and then to determine whether or not the statement of the dead person with regard to the cause of his death is to be attached any weight to. Coming to the dying declaration in the present case, it cannot be overlooked that it was made by Mst. Sardaran against the husband of her real sister and I can think of no reason why she should have falsely implicated the appellant as the person who caused injuries to her. It is no doubt true that the appellant had been litigating with regard to the gift made by his father‑in‑law in favour of Mst. Sardaran but that, in my opinion, could not have induced her to falsely implicate the appellant. It is a matter of great significance that the appellant was named as the only assailant and if the argument of the learned counsel for the appellant with regard to the weight attachable to the dying declaration of Mst. Sardaran were to be accepted, it will have to be found that she had substituted the name of the appellant for that of the real culprit for which finding there is on the record absolutely no material. I will hold, therefore, that the statement of Mst. Sardaran recorded by Captain Abdul Majid on the 27th of March 1953 was not only admissible evidence but also a piece of strong evidence against the appellant. The next contention of the learned counsel for the appellant .with regard to the dying declaration of Mst. Sardaran was that it could not be used as evidence with regard to the attack on her sister, Mst. Fatima. This argument, which is based on a decision of the Allahabad High Court, in 49 Cr. L J 140, found favour with the learned trial Judge and it was when in this Court the statement of Mst. Sardaran was sought to be used as evidence with regard to the cause of death of Mst. Fatima that the learned counsel for the appellant raised an objection with regard to its admissibility for that purpose. Subsection (1) of section 32 of the Evidence Act, which has been reproduced already, lays down that the statement of a dead person is admissible not only when it relates to the cause of death but also if it relates to any, of the circumstances of the transaction which resulted in his 1 death provided the case relates to the cause of the person's death. Can it be seriously urged that when two persons are attacked in the course of the same transaction injuries received by one are not received by him in the transaction which resulted in the death of the other? The two sisters were attacked when they were sitting together in the court yard of their father's house and while Mst. Fatima was done to death in that courtyard Mst. Sardaran ran out to the house of a neighbour where she was followed and attacked. In these circumstances, I would bold that the statement of Mst. Sardaran with regard to the attack on her sister related also to the circumstances of the transaction in which she herself received injuries which caused her death. If the learned Judges who decided the case reported in 49 Cr. L J 140 wanted to lay down that even in cases of the present kind the statement of a dead person was not admissible with regard to the attack on his companion, I would most respect fully dissent from that view. In this connection, one may with advantage refer to a decision of their Lordships of the Privy Council in Pakala Narayana Swami v. The King Emperor (66 Ind. App. 66.). The facts of the case dealt with by the Privy Council were that Pakala Narayana Swami, who was the appellant before their Lordships, had been convicted of the murder of Kurree Nukaraju. Nukaraju told his wife on the 20th of March 1937, that he was going to Berhampore as Pakala Narayana Swami's wife had written and asked him to come and receive payments due to him. On the 21st of March, Kurree Nukaraju left his house in time to catch the rain for Berhampore where Pakala Narayana Swami lived with his wife. On the 23rd of March, Kurree Nukaraju's dismembered body was found in a trunk, which had been purchased for Pakala Narayana Swami. Before their Lord ships, it was urged that the statement of Kurree Nukaraju made on the 20th of March was not admissible in evidence under section 32 of the Evidence Act but this contention was repelled by their Lordships who remarked:‑ "The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. The circumstances must be cir cumstances of the transaction: general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person, or that he had been invited by such person to meet him would each of them be circumstances of the transaction, and would be so whether the person was unknown, or was not the person accused. Such a statement might indeed be exculpatory of the person accused. `Circumstances of the transaction is a phrase, no doubt that conveys some limitations. It is not as broad as the analogous use in `circumstantial evidence, which includes evidence of all relevant facts. It is on the other hand narrower than `regestae'. Circumstances must have some proximate relation to the actual occurrence; though, as for instance, in a case of prolonged poisoning, they may be related to dates at a considerable distance from the date of the actual fatal dose. It will be observed that `the circumstances' are of the transaction which resulted in the death of the declarant.......... In the present case the cause of the deceased's death comes into question. The transaction is one in which the deceased was murdered on March 21 or 22; and his body was found in a trunk proved to be bought on behalf of the accused. The statement made by the deceased on March 20 or 21 that he was setting out to the place where the accused lived, and to meet a person, the wife of the accused, who lived in the accused's house, appears clearly to be a statement as to some of the circumstances of the transaction which resulted in his death." Applying the remarks of their Lordships of the Privy Council to the facts of the present case, I cannot think of any valid reason why the attack on Mst. Fatima should not be held to be one of the circumstances of the transaction which resulted in the death of Mst. Sardaran and I would, therefore, hold that the statement .of Mst. Sardaran was relevant even with regard to the attack on Mst. Fatima and the trial judge committed an error in holding to the contrary. I might also remark that I have not been impressed by the reasons given by the learned trial Judge for rejecting the evidence relating to the dying declaration of Mst. Sardaran 1 recorded by the investigating officer, but as that matter was not fully argued I will not use that dying declaration against the appellant. The other piece of evidence against the appellant is the statement of his father‑in‑law who died before he could appear as a witness at the trial. Here again, one cannot overlook the close relationship between the witness and the appellant and I cannot bring myself to believe that the witness was giving false evidence against the appellant which he knew would result in his own daughter losing her husband either permanently or for a long term of years. No doubt, the appellant had brought a suit to question the gift made by the witness in favour of the two victims but that, in my opinion, will not be sufficient to induce the witness to give false evidence against the appellant. The learned counsel for the appellant contended that the statement of this witness should not be accepted as true, because he Clad been pinned down to that statement by having a statement of his recorded under section 164 of the Code of Criminal Procedure during the course of the investigation. It is true that when a witness has made a statement under section 164 of the Code of Criminal Procedure, he is more or less wedded to that state ment though cases are not uncommon in which witnesses have resiled from those statements. But the law as it stands allows statements under section 164 of the Code of Criminal Procedure to be recorded during the course of investigation and the deposition in Court of a witness whose statement was recorded under section 164 of the Code of Criminal Procedure cannot be doubted simply because section 164 of the Code of Criminal Procedure was resorted to. In such cases, the Court should scrutinize the evidence of the witness carefully but where it appears to the Court that there were good grounds for having the statement of the witness recorded" under section 164 of the Code of Criminal Procedure, I do not see why any presumption should arise against the prosecution simply because a thing which is allowed by law was done. Hasan was the father‑in‑law of the appellant and if the police were apprehensive that as time passed he would be inclined to forgive his own son‑in‑law and forget that two of his daughters had been butchered by that son‑in‑law, the apprehension was by no means entirely unjustified. That the appellant and his friends and relatives could exercise a good deal of influence on the witness is clear from the fact that three persons who were mentioned as eye‑witnesses in the first information report which was made by one of them turned a complete somersault and made statements which were useless for the prosecution. I would, therefore, hold that the statement of Hasan, the father‑in‑law of the appellant, suffered from no legal or other defect. In his statement, the old man implicated the appellant for causing injuries to his two daughters and I see no ground for holding that the attack by the appellant on the two victims was not proved to the hilt by the statement of this witness. In addition there is the dying declaration of Mst. Sardaran which, in my view, was entitled to no less weight than the state ment of Hasan. The injuries inflicted by the appellant on the two victims were serious in character and resulted in the immediate death of Mst. Fatima. With regard to the death of Mst. Fatima, therefore, there can be no manner of doubt that the offence committed by the appellant fell under section 302 of the Pakistan Penal Code. The death of Mst. Sardaran occurred some days later but the statement of the doctor, who performed the post‑mortem examination, proves that had it not been for the injuries inflicted on the unfortunate woman