ABDUL HAYEE KURESHI, J.---The appellant Imdad Ali Khoso was tried b the 1st Additional Sessions Judge, Jacobabad, on a charge under sections 30 P. P. C. 316 P. P. C. And section 13-D of the Arms Act. By a judgment dated 13-10-1977 he was found guilty of the offence under sections 302 and 31 P.
P. C. And was on the former charge sentenced to death and to pay a of Rs. 1,500 in default R. I. For one year). Although he was convicted and suction 316, P. P. C. No separate sentence was passed in view of the provision section 71 of the Pakistan Penal Code. The Judgment of the trial Court does not disclose any finding or sentence in relation to charge under sec--tion 13-D of Arms Act. Mr. Ghulam Ali Memon, Advocate, has appeared before us for the appellant while the State was represented by Mr. Ghulam Ali Agha, Advocate. State counsel has not supported the judgment.
2. On the conclusion of the hearing of this case we had, by a short order, allowed the appeal of the appellant, set aside the judgment, acquitted the appellant and declined to confirm the sentence of death imposed on him. We now proceed to record our reasons for the said short order.
3. The brief facts of the case are that Mst. Arbab Khatoon, the deceased, in this case was .On terms of illicit intimacy with Gnous Bux, the father of the present appellant. Such intimacy had continued for a number of. Years but some months before the date of incident viz. 15-4-1974, in regard to the illicit relations between the said deceased and Ghous Bux, the appellant used to state openly that the deceased had taken a lot of money or property from his father and be would, therefore, take revenge. It was on 15-4-1974 at about 5 p.m. When the deceased had gone to the water tap in the land of Ghulam Hussain Khoso, village Bachro, taluka Thu], to obtain water, perhaps for domestic use. After she had filled the pitcher, she started returning when the appellant came in front of her and shot at her from a pistol which hit the deceased. He successively shot at her hitting the deceased in the stomach, left shoulder and left leg. It is the prosecution case that besides three shots, which caused the injuries to the deceased, some more shots were fired which missed. Ali Mohammad, the husband of the deceased, Khan Mohammad, the brother of Ali Mohammad, and Saindad, another relative of the deceased were at that time sitting in the shop of one Punhal Khan, which is stated to be at a distance of about 500 feet from the scene. Each one of them on hearing the firs-arm reports ran towards the scene and saw the appellant running away. These witnesses also inquired from the deceased in regard to the identity of the appellant. Immediately Khan Mohammad carried the deceased to Thal Police Station where he lodged a report which was recorded by S. H. O. Mohammad Kassim at 7-30 p.m. The Police Officer recorded the statement of Mst, Arbab Khatoon and arranged to send her to Civil Hospital at Jecobabad, where she was examined and treated by Dr. Moolchand. On 16-4-1974, Sadullah Shaikh, Mukhtiarkar and First Class Magistrate, Jacobabad, was called to the Civil Hospital for recording the dying declaration of Mst.
Arbab Khatoon which was recorded at 10-35 in the night. The deceased expired on 19-4-1974 and the appellant was arrested on the following day.
4. The appellant examined no witness in his defence but he denied the prosecution case. He, however, stated that the prosecution witnesses were his Haris, whose tenancy had been terminated by him about a month prior to the incident In regard to the dying declaration he stated that it had been manoeuvred. The Additional Sessions Judge also asked the appellant a question in regard to his abscondence to which the appellant replied that he was present all along in his village and when he came to know about this case he had surrendered at the police station.
5. It would appear that the prosecution case rested on the dying declaration, the evidence of complainant Khan Mohammad and witnesses Ali Mohammad and Saindad and such evidence was sought to be corroborated by the fact of abscondence of the appellant and motive.
None of the three eye-witnesses, has supported the prosecution case.
No doubt Khan Mohammad had lodged the first information report, wherein names of Ali Mohammad and Saindad had also been disclosed. This report stated that all these three persons were sitting at the shop of Punhal where they, heard the fire-arm reports and when they went towards the scene the appellant seeing them ran away towards the nothern side. The report also disclosed the motive of the crime. Khan Mohammad has stated in his evidence that on hearing cries be went towards the scene and saw one person running away and such persons neither had any weapon nor could be identified by him. He has further stated that he inquired from the deceased about the identity of the assailant and she replied that she had been fired at by two or three persons. He was confronted with his first information report and he stated that he had mentioned therein that the appellant was seen by him going to the side of Mst. Arbab Khatoon, the deceased and saw him firing revolver shots at the deceased. However, to such extent he gave a go-bye to the first information report. It seems even in the Committal Court this witness had given the same story. In similar terms Ali Mohammad and Saindad have also not supported the prosecution. Ali Mohammad stated that he saw one person running away from the scene but that person had his back towards him so that he could not be identified. He further stated that on enquiries from the deceased he was told That Imdad had fired at her, but the present appellant was Imdad son of Ghous Bux. He had, however, stated that when the deceased made the disclosure in regard to Imdad having fired at her, Khan Mohammad and Saindad were present but both these witnesses have not spoken about this statement made by the deceased. Saindad also stated in the trial Court that he did not see any one firing at the deceased but saw one person running away whom he could not identify. He has further stated that on being asked, the deceased told him that she had been attacked by the two or three persons but she did not give the names of the assailants.
7. The above-named three witnesses, namely Khan Mohammad, Ali Mohammad and Saindad were neither sought to be declared hostile witnesses nor were they cross-examined by the prosecutor.
On such premises Mr. Ghulam Ali Memon has built up an argument that the prosecution seemed to have relied on the evidence of these three witnesses. The trial Judge, while dealing with the evidence of eye-witnesses, summed up his conclusion as follows :- "Thus so far as the ocular testimony is concerned except the statement of the complainant regarding the identification of the accused a the vardat the rest is rejected as being furnished by dishonest witnesses."
In regard to the statement of the complainant Khan Muhammad it has already been stated, that he did not support the case that he had set up in the first information report. In the Court he has stated that be did not identify the assailant. That being so, we find it difficult to appreciate how the trial Judge has observed that the ocular testimony of the complain Khan Mohammad was acceptable. It seems the trial Judge thought th first information report by itself is substantive evidence but to such exte he was clearly in error for such statements have, by a long line of decision been used only for the purpose of corroboration or, contradictions as they d not possess the characteristics of substantive evidence in Court. It seems to us that only Ali Mohammad had stated that on enquiries from his wife the deceased he was told that Imdad had fired at her but in the very next sentence; of his deposition it is stated that "the accused present in Court is also Imdad--- (the underlining* is mine). On reading this sentence it would appear that although a statement is sought to be attributed to the deceased in regard to one Imdad having fired at her yet the use of the word "also" in the next sentence would seem to indicate that such Imdad, who had fired, was a different person. We, therefore, find that the ocular testimony of these witnesses does not implicate the appellant at all. It may well be that the witnesses have been tampered with by destruction of such evidence the prosecution case does not advance any further.
8. The next piece of evidence, which may be stated to be the only piece of evidence against the appellant is that of dying declaration. The deceased received the injuries on 15-4-1974 at about 5- 3t) p.m. And was sent to the Civil Hospital at Jacobabad in the later part of that day. On 16-4-1974, Sadullah Shaikh, a First Class Magistrate at Jacobabad was called to the hospital to record the statement of the deceased and such statement was recorded at 10-35 p.m. And it reads as follows :- "Place : Civil Hospital, Jacobabad.
Date 16th April, 1974.
Time at 10-35 night.
(Ten Thirty-Five O'clock night).
Dying Declaration Name : Arbab Khatoon w/o. Ali Khan.
Religion : Muslim Caste : Pathan Occupation : Cobbler & Household (Mochi).
Resident : Village Bachro, Taluka Thul, Age about 25 years.
States that third day at evening time at 5-00 p.m. I went to fetch water from the water tap near the village. After fetching water on the half-way back Imdad Khoso came in front of me. He had a "Tumuncha" (Desi Pistol). The father of Imdad Khoso, namely Ghous Bux was standing at the shop of Mohammad Waris Khatri when Imdad Khoso came near me he fired at me with his "Tumuncha".
The shot hit me in my stomach on the left side. The second shot hit me on my left shoulder us third shot hit me on my left leg. The fourth bullet hit on the right side of my stomach. He also fired- two more shots but the same were missed, I then threw the pitcher and caught hold of his hand and tried to snatch the tumuncha but he caught hold of my neck and threw me down. He fired the seventh shot which hit me on the side of my stomach and he then ran away. Imdad Khoso who had fired at me used to reside in Deb. Bachro but now he is residing at Thul. I 'without fell down unconscious, and know nothing else. He had fired at me without any cause and I have also suffered miscarriage as I was running the eight month.
(Sd.)
Mukhtiarkar and F. C. M., 16-4-74.Jacobabad.
R. T. I. Of Mst. Arbab Khatoon. w/o Ali Khan, Pathan.
9. When the arguments opened in this case, Mr. Ghulam Ali Agha, the learned counsel for the State, who, though not supporting the Judgment of the lower Court, brought it to our notice that on 15-4- 1974, S. H. O. Mohammad Kassim had also recorded a statement of the deceased, presumably as a statement under section 161, Cr. P C . Such statement had curiously not been brought on the judicial record so that we passed an order calling S. H. O. Mohammad Kassim for recording his evidence under section 375, Cr. P. C. We have examined him in Court and he has proved this statement, which is also by reason of section 32 of Evidence Act, a dying declaration. Besides these versions the statements of the deceased have been deposed to by Khan Mohammad, Ali Mohammad and Saindad, whose evidence has already been discussed above. While Khan Mohammad and Saindad stated that the deceased told them in regard to her being attacked by two or three unknown persons, Ali Mohammad has stated that the deceased told him that she was fired at by Imdad, although he went on to state that the name of the appellant is also Imdad. We have dealt with this aspect of the case earlier. The question then, which arises in this case, is whether the dying declaration of the deceased in the present case is of such character as could be relied upon without any corroboration. Such corroboration is lacking in this case. Their Lordships of the Supreme Court have in. Two cases, namely Tawaib Khan arid another v. State (PLD1970 SC 13) and Zarif Khan v. State (PLD 1977 SC 612) laid down the principles that govern the probative value of dying declarations. In the earlier case Mr. Justice Sajjad Ahmad Jan, conscious of a degree of sanctity attaching to the statement of a dying man, relying on his vast experience in the administration of justice in criminal cases recorded that the assessment of evidence whether it be ocular or a dying declaration is an exercise of human judgment to evaluate and find out what is in such statement true and what is false therein. The learned Judge also adverted to the habits of people, who out of a desire to satisfy their sense of revenge, may implicate persons falsely. The learned Judge concluded the valuable discourse by expressing as follows:---- "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 b: 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 incite him 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."
In the latter case of Zarif Khan the leading Judgment 'was written bye Mr. Justice Dorab Patel, who took the view that a dying declaration was a "weaker type of evidence" than such evidence which is subject to cross-- examination. The learned Judge was of the view that the evidence furnished by dying declaration could be challenged on any of the grounds on which the evidence of any witness could be challenged. The learned Judge also went on to state that a dying declaration could be made the sold, basis for convicting but only in such cases when the declarant is a person o unquestionable integrity and the persons giving evidence about such declarant are also persons of integrity. My Lord the present Chief Justice of Pakistan also referred to several reported cases and laid down the tests which have to be applied in evaluating such a declaration. The relevant paragraph appears at page 627 of the volume PLD 1977 SC. It reads as follows:---- "Accordingly, I am inclined to Take the view, in respectful agreement, with the dicta in Chandrasekar v. The King (1), In re: Guruswami Tevar (2), Khusal Rao v. State of Bombay (3), Taj Mohammad v. State (4), Mohammad Khan v. State (5), Abdul Raziq v. State (6), Tawaib Khan v.
State (7), and Ekbbar Ali v. State (8), 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 lap, on even of prudence, that a dying declaration cannot form 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 he was making the statement, by circumstances beyond his control; whether the statement had been consistent throughout if he 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 words 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 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."
10. It would thus seem that a dying declaration does not become a sacred document which cannot be challenged on the hypothesis that it being the word of a dying man its contents must be fully true. On the other hand, it can be said without fear of contradiction that by itself a dying declaration can become the sole evidence for conviction only in very exceptional circum--stances.
One has to see whether the maker of the statement was immune from all rancour, animosity and resentment against the accused, whether the statement by itself is completely reliable and whether the person making the declaration and the persons deposing to it are of unimpeachable integrity so that their word cannot be doubted. In the present case we find that the deceased had shown in the first dying declaration that the appellant had previously held out threats to her because she was suspected of having taken a good price for herself for maintaining illicit relations with the appellant's father. If the appellant had indeed held out these threats it would show that the deceased harboured some rancour against the appellant. It must also not be overlooked that the deceased on her own showing was a woman living a questionable life for a number of years. Even at the time of her murder she wad carrying quick unborn child in womb and there is no means of knowing whether she had been made pregnant by the father of the appellant or her husband. On such premises unquestionable or unimpeachable integrity cannot be attributed to her. In regard to the number of injuries on her person the dying declaration made by the deceased before S. H. O.
Mohammad Kassim would seem to show that only Free shots had been fired at her which hit her in the stomach, left shoulder and left leg. In the latter dying declaration recorded before the Magistrate she had given a version that no less than seven shots had been fired her, two of which were missed. In such event she should have received eve injuries but the medical evidence disclosed that she had only three Injuries. There is also an improvement in the dying declaration made before he Magistrate in which the deceased had also stated as follows: "I then threw the pitcher and caught, hold of his hand and tried to snatch the tumuncha but he caught hold of my neck and threw me down."
The above statement, in our view, is clearly an improvement and the falsity of the statement is patent. It is inconceivable that having received three fire-arm injuries the deceased would either have had the courage or strength of catching hold of the appellant and snatching the fire-arm from him but even if we believe this story then the seventh shot, which is spoken of in this statement, must have been fired from a very close range and should have left charring marks.
Such evidence of charring is also not available. This dying declaration also gives a contradictory version to the ver--sions of the witnesses who came immediately on the scene because it neither speaks of any person coming to the deceased nor does it state that she disclosed any circumstance of the transaction to any. Of these witnesses, In addition, it may be stated that in the dying declaration recorded by the Magistrate it was stated that Ghous Bux, the father of the appellant, was also present near the scene but to such extent to fact or circumstance support the deceased and such version does not even appear to be plausible of probable. Having considered all the aspects of this declaration we are no inclined to attach such sanctity to it which may be sufficient to persuade, Court to rely on such solitary statement for basing conviction on a capital charge.
11. The earlier dying declaration recorded by the police officer he been examined by us very closely and we find that barring a few variation in the form of narration it is a substantially verbatim reproduction of the first information report. Moreover, this dying declaration contradicts the latter dying declaration in several material aspects of the case.
12. In regard to the dying declaration made by the deceased in preset of the witnesses we have already stated that the divergent versions given by the three witnesses are not reliable.
13. Following the rule of caution which is the golden thread undo lying criminal jurisprudence, we find that the dying declarations in the press case are not such as could be acted upon without corroboration.
14. The last piece of evidence is that of abscondence and in such ref the only material available before us is that the appellant was arrested of six days. No witness, not even the investigating officer, has stated that made any attempt to arrest the appellant or that the appellant .Made him scarce. On the other hand the appellant stated that he was all along in village and himself surrendered before the police on coming to know that had been implicated in this case. The evidence of abscondence, therefore hardly advances the prosecution case.
15. Regard being pad to all the circumstances of this case, we find that the eye-witnesses are not reliable, that the dying declaration does not possess such characteristics as might be sufficient to make it the sole basis for conviction and there is no proof of abscondence of the appellant. We find that the case against the appellant has not been proved beyond reasonable doubt. We, extending benefit of such doubt and setting aside judgment and sentence, acquit him. The death sentence imposed upon the appellant is not confirmed and the appellant shall be set at liberty forthwith unless required in any other case.