' MAZHAR IQBAL SIDHU, J.---This judgment will dispose of above captioned criminal appeal, filed by Khalid Hussain appellant, convicted and sentenced by learned Addl: Sessions Judge, Lahore in case vide FIR No.716 dated 4-6-2008 under section 302, P.P.C. Registered lat Police Station Nawankot, Lahore vide impugned judgment dated 6-3-2010. Infra conviction and sentence was imposed on the appellant:-- ' KHALID HUSSAIN ' Life ImprisOnment under section 302(b), P.P.C. As Taazir for the murder of Razia Bibi along with compensation of Rs.50,000 to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default thereof to further undergo six months' S.I.
' Benefit of section 382-B, Cr.P.C. Was also extended.
2. Briefly the prosecution case as narrated by Shahzad Ali complainant (PW-1) is that he is a cultivator; his sister Razia Bibi aged about 39/40 years was married with Khalid Hussain appellant.
From the wedlock three children were born. On 26-5-2008 his sister called him telephonically that her husband used to maltreat her. On 27-5-2008 he alongwith Abdul Jabbar and Nawazish Ali in order to inquire about her sister came to her house at about 4.00 p.m. And when they entered the house, saw that the appellant was beating Razia Bibi with elbows and fists while pressing her neck in his knees. He separated her with the help of his companions and took her to Government Mian Mtlhammad Munshi Hospital, Lahore from where on the next day the doctors referred Razia Bibi to General Hospital Lahore and he got admitted her in General Hospital, Lahore where she succumbed to the injuries. Hence the case.
3. Dr. Sameena Alam WMO, Mian Munshi Hospital Lahore PW-6 deposed that on 27-5-2008 she medically examined Mst. Razia Bibi on 28-5-2009 vide MLC No.SMA 49/2008. The victim Razia Bibi gave history of physical violence by her husband on 27-5-2008 at 4.30 p.m. According to her the husband flexed her neck up to his knees and applied force' and pressure and also tried to twist her neck, which created a click sound heard by the patient also. Husband (appellant) left her alone.
' REMRKS.
' She reserved her final opinion till getting consultation report of Neuro Surgeon, treatment ticket, notes and discharged slip of General Hospital. The injury was caused by blunt means. Exh.PC was the correct carbon copy of her MLC report, the same bore her signature. Mst. Razia Bibi the injured died on inpatient.
4. Dr. Atfa Naheed, Demonstrator Forensic Medicine Kemu, Lahore (PW-5) on 31-5-2008 conducted the post-mortem examination on the dead body of Razia Bibi and observed as under:-- EXTERNAL EXAMINATION "It was a dead body of a female of above stated age, well built, length 165 cm, clad in green printed qameez, dark pink printed shalwar, matching Dupatta and black braw. The clothes signed, removed and handed over to police. Eyes and mouth close, rigor mortis was developing, postmortem staining present on the back in between the areas of contact flattering. Though no mark of violence or injury was visible on her body at the time of examination, two surgical wounds (1), 0.5 x 0.1 cm on the right side of head, 5 cm above right ear and 11 cm from mid line, (2) 0.3 x 0.2 cm on the left side of head, 4 cm above left ear and 13 cm above from mid line. Two small corresponding holes were present in the skull bones which indicate that traction had been applied to the head for collection of spinal injury.
' On dissection of heck blood was present deep to the muscles of neck and both sides. Of cervical spine. The body of 4th cervical vertebra was fractured.
' All the visceras of thorax were healthy.
' All the visceras of abdomen were healthy. She was not pregnant.
REMARKS "Injury to spine stated was ante-mortem in nature. The cause of death in this case was fracture of 4th cervical vertebra due to blunt trauma to neck, resulting in injury to spinal cord and its subsequent complications. It was a hospital death and the time between death and postmortem was eight hours and forty five minutes vide death certificate. The dead body along with clothes of deceased, carbon copy of postmortem report, signed police papers were handed over to the police. Exh. PB was the correct carbon copy of her postmortem report initialed and signed by her.
She also testified Ex.PB/1 and Ex.PB/2 which were the correct carbon copies of pictorial diagrams showing the exact location of injuries."
5. Upon the completion of investigation, the matter was placed before the learned trial court for trial where prosecution produced as many as 10 witnesses to prove the charge against the appellant.
6. Learned DDPP, renounced the PWs namely Abdul Jabbar, Falak Sher 7085/constable and Nadeem Ahmad ASI as being un-necessary and by tendering in evidence inquest report Ex. PG closed the prosecution case (under objection).
7. The learned trial court also examined the appellant under section 342 Cr.P.C. Wherein he gainsaid the charge and claimed innocence. He neither appeared as his own witness as required under section 340(2), Cr.P.C. Nor produced any evidence in his defence.
Khalid Hussain appellant while answering to question "why this case was made against you and why the PWs deposed against you?, replied as under:-- "I do not know about the occurrence, because I was not present at the relevant time and was involved in this case with mala fide of the complainant. The PWs have made their statements with the relations of the complainant."
8. The learned trial court vide judgment dated 6-3-2010, convicted and sentenced the appellant as mentioned optic, hence this appeal.
9. Learned counsel for the appellant submits that the alleged incident took place on 27-5-2008, on 28-5-2009 she was medically examined at 10.10 p.m. Through Ex.PC and in her medical examination it has been mentioned that "she was married lady, well oriented in time and space.
She had three kids, last one was- of 9 months old and she had lactation amenorrhea. She gave history of physical violence by her husband on 27-5-2008 at 4.30 p.m. According to her, the husband flexed her neck up to his knees and applied force and pressure and also tried to twist her neck, which created a click sound heard by the patient also. Her husband left her alone. The kids came back from the tuition at 6.30 p.m. And informed the neighbors and then she was brought to emergency treatment in Govt. Mian Munshi Hospital, Lahore at 10.00 p.m." This was the statement of the deceased before the doctor but no case was registered against the appellant till her death and after her death occurred on 31-5-2008 the case was not got registered subsequent to that on 4-6- 2008 the matter was reported to the police, in this way, the whole prosecution case raises (sic) to ground to the effect that the occurrence had not been happened in conspectu ejus of the complainant and eyewitnesses. Had the incident befallen in their presence and they would have reported it earlier to the police. Therefore, the delay in reporting the matter to the police is very meaningful which makes the prosecution version doubtful. Learned counsel submits by another angle that P.Ws. Were not present at the spot for the reasons that they did not try to apprehend the appellant at the spot nor they tried to rescue the deceased nor the injured was transported to Hospital by them and on receiving the information of occurrence at some later stage when the deceased had already been got admitted in the hospital by the complainant party, came in the Hospital and after her death the story was maneuvered in connivance with the police. Learned counsel further submits that even on the statement of the injured deceased which she had made before the examining doctor when she was alive neither the doctor nor any body else reported the incident to the police, circumstances in which the deceased received back bone injury shrewd and the PWs were not present at the spot at the time of occurrence, therefore, the prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubts. Further submitted that no weapon of offence was used in the commission of murder and more so had the intention of the appellant to commit the murder of deceased then he could have done so at any time in absence of PWs. Lastly it has been submitted that the deceased had left three minor children who have become shelter-less on account of death of their mother as well as conviction and sentence of the appellant, therefore, the submissions may be considered as mercy arguments, in order to save future of the minors, appeal may be accepted.
10. Learned D.P.G. Has opposed the submissions and argued that it is case in which the responsibility/liability primarily lies on the appellant to explain how his wife sustained injury and how she was murdered/died because, she was the mother of three children and was living in the house of the appellant during the days of incident and if he does not explain, it justifiably acceptable to the law in the circumstances of the case then without any second thought by applying the principle of res ipsa loquitur (things speaks for itself), inter se relationing of P.Ws. And with the deceased by itself do not make their testimonies featherweight and he is liable to be punished by dismissing his appeal.
11. Arguments heard. Record has been gone through.
12. It has been noticed that PWs are related to the deceased but at the same time no aforethought or malice has been found in existence by them against the appellant to become a false witness. So far delay in reporting the matter to the police is concerned, it is naturally understandable that the dispute between the husband and deceased was existing and there might be prospective of betterment between the parties because the couple had blessed three children, there was also no previous enmity, therefore, delay in reporting the matter to the police is of minor significant in the circumstances of the case. The most important piece of evidence in this case is the statement of the injured deceased made before the first examining doctor who narrated how the incident took place and how she received injury in the occurrence. Women Medical Officer (PW-6) Sarneera Alam has deposed as follows:-- "On 27-5-2008 I was posted as WMO at Mian Munshi Hospital, Lahore. On the same day Razia Bibi wife of Khalid Hussain, Caste Bhatti, Age 39/40 years, resident of Yasrab Colony, Multan Road, Lahore was brought in the hospital and I medically examined her on 28-5-2009 vide MLC No. SMA49/2008 on 28-5-2009. She was married lady, well oriented in time and space. She had three kids, last one was 9 months old and she, had lactation amenorrhea. She gave history of physical violence by her husband on 27-5-2008 at 4.30 p.m. According to her the husband flexed her neck up to his knees and applied force and pressure and also tried to twist her neck which created a click sound heard by the patient also. Husband left her all alone. The kids came back from tuition at 6.30 p.m. And informed the neighbourers and then she was brought to the emergency of Mian Munshi Hospital at 10.00 p.m. Emergency treatment was given by CMO and then she was kept under observation. The number of emergency slip was 14120."
The deceased herself narrated the incident that her husband flexed her neck up to her knees and applied force and pressure and also tried to twist her neck which created a click sound heard by the patient (deceased) also. "Husband left her all alone in the house." The neighbourers were called for by the kids of the deceased on returning of tuition education.
' PW-5 Women Medical Officer Dr. Atfa Naheed who performed post mortem examination on the dead body of the deceased and observed "on dissection of neck blood was present deep to the muscles of neck and both sides of cervical spine." The body of 4th cervical vertebra was fractured, in this way, prosecution has proved its case through the statement of the deceased recorded by the examining doctor through the testimony of the doctor which is relevant and admissible by virtue of Article 46 of Qanun-e-Shahadat Order 1984. For the better understanding Article 46 of the Qanun-e-Shahadat Order is reproduced as follows:-- "Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. 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 thL: Court unreasonable, are themselves relevant facts in the fo'lowing cases:
(1) When it relates to cause of death. 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 statement of the deceased before the doctor is relatable to cause of her death, she was subjected to torture by the appellant on 27-5-2008 at about 4.00 p.m., on the same night at about 1.10 p.m. Was got admitted in Government Mian Munshi Hospital, Lahore and on account of her knife-edged condition was referred to Lahore General Hospital, Lahore on 28-5-2008 (following day) where she lost her breath on 31-5-2008 at about 9.15 a.m. And on the same day post mortem examination was performed at about 6.00 p.m. On her dead body, in this way, the injured deceased remained incessantly under the treatment as inpatient and died as such. In these circumstances, the statement of the deceased before the doctor about application of violence of her/injury is relevant and admissible. No reasons exist on earth to disbelieve it and the same has been corroborated by the medical examination. In the circumstances, of the case, no need exists to ask for independent corroboration in support of the dying declaration of moribund lady. It has been noticed in her statement that she did not said that P.Ws. Were present at the spot at the time of occurrence but excluding the statements of the eye-witnesses statement of dying declaration of the deceased which rings true and on account of its intrinsic value duly supported by the medical evidence is worth reliable and the court believes it and relies on it. In case of Imran Ashraf v. State reported in 2002 YLR 325, a full bench of Hon'ble Federal Shariat Court has highlighted the importance and characteristics of dying declaration as under:--
24. In order that a dying declaration is relied upon it must be established that:--
(i) the maker of the statement is dead;
(ii) that the dying declaration is relevant whether or not its maker was under expectation of death;
(iii) that the maker of declaration was a competent witness;
(iv) that the declaration may be oral or in writing or even by way of F meaningful gestures;
(v) if it is available in written form then the identity of the scribe and the circumstances under which it was written or dictated may be proved. It may be true that a person under apprehension of death may not be mendacious because he has to meet his Creator soon but the witness who recorded or listened to those words may not be conscious of his legal or moral obligation. The testimonies of a living person about the pronouncement made by a dead person have to be accepted with due care and caution in the given circumstances of the case.
(vi) The declaration relates in fact to the cause of his death or any of the circumstances resulting in his death;
(vii) It is otherwise believable like the testimony of any other witness. The entire object of this exercise is to ascertain the whole truth possible Under the prevailing circumstances and (viii)that the statement was not made several days before the occurrence.
' It has further been observed:--
26. A dying declaration may not only incriminate its maker but such a statement would be admissible against all those persons who are allegedly involved in the episode which ultimately resulted in the unnatural death of the maker. This aspect is covered by the term "in cases in which the cause of that person's death comes into question" as mentioned in Clause (1) of Article 46 of Qanun-e-Shahadat Order, 1984. A dying declaration may not be refused on the sole ground that there was delay in recording the same. Was the injured person in a position to give a statement?
What was his orientation to the time, place and persons at the time the statement was recorded? It has been held that even gestures, which convey the message clearly, can be acted upon in given circumstances. A dying declaration is proved, at the trial, by the evidence of a witness who heard it being made by the deceased or by the evidence of a person who recorded it. In case it is recorded the scribe must appear and be available for cross-examination.
' The elaboration of the concept by the F.S.C. On the point of acid burn cases with reference to dying declaration is as under:--
27. The category of a dying declaration made consequent upon grievous injuries caused by burn through fire, kerosene oil, and acid, chemical or by any other way, has, since 2001, assumed a peculiar significance. The law and judicial practice relating to dying declaration is almost settled inasmuch as that (i) it may be oral or in writing; (ii) it is made after injuries have been inflicted and before death of the victim; (iii) it is not necessary to administer oath before statement is offered by the declarant; (iv) the presence of accused is also not essential; (v) the declaration may be heard or recorded by any one present at the spot; (vi) no particular form of recording a dying declaration has been prescribed. However, reliability of such a declaration is dependent upon attending circumstances. In view of the amendment effected in the Code of Criminal Procedure by way of addition of section 174 (A), a dying declaration within the circumstances mentioned therein has received a different dimension. Special obligation has been imposed upon the Police and Medical Officer to act in the prescribed manner as and when a person injured by burns etc. Is brought before them.
' In Shahrukh v. State, 2013 PCr.LJ 237, a learned Division Bench of Peshawar High Court has held that a statement in the nature of dying declaration can be relied upon by the prosecution in capital charge. The learned Bench observed: ' The record reveals that Mir Ahmad after having been injured was taken to the Hospital where he lodged the report in the Casualty. Since he died, this report was treated as dying declaration. The Prosecution besides relying on this piece of evidence also examined Teeti as PW-6 who, according to the dying declaration, happened to be the eye-witness of this incident. Thus the Prosecution case primarily rest on the dying declaration of the deceased and the ocular account of the incident furnished by PW-6, Teeti. There can be no cavil with the proposition that the statement of the deceased in the form of an FIR can be treated as a dying declaration which itself is good enough under Article 46 of Qanun-e-Shahadat Order, 1984, for sustaining conviction on a capital charge.
' Thereafter, Hon'ble Bench has highlighted the prerequisites for relying on a dying declaration in the following, words:-- But for believing dying declaration and convicting a person on its basis, the following essential conditions must be established by the prosecution.
(1) That dying man was in full senses, conscious and alert to the surrounding, was fully oriented in space and time and was able to make a coherent speech.
(2) That the dying declaration otherwise rings true and is sound in substance to be relied upon.
(3) That it is free from promptness given by the outside quarter.
(4) That Doctor present at the occasion shall give a fitness certificate about the condition of the dying man.
About the philosophy of dying declaration and its sanctity, the learned Court, at para 8 of the judgment above, has mentioned as follows:-
8. It is universal principle of criminal jurisprudence that dying declaration by itself if not a strong evidence being not tested by way of cross-examination. The only reason for accepting the same is the belief phenomenon of the Court of law that a person apprehending death due to injury, caused to him is ordinarily, not expected to speak a falsehood. To believe or disbelieve a dying declaration, thus, is left to the ordinary human judgment. Howewer, the Courts always insist upon strong, independent and reliable corroborative evidence for the sake of safe dispensation of justice. As it is repeatedly held by the august Supreme Court that relying blindly and without proper scrutiny on such a statement, would be no less dangerous approach on the part of the Courts of law.
Reference is made to Sher Bahadur and another v. The State (1972 SCM R 661) and Muhammad Yaseen v. The State (1972 SCMR 303). A rule of caution was also laid down by the Hon'ble Supreme Court th case of Tawab Khan and another v. The State (PLD 1970 SC 13). Reference is also made to (2011 SCMR 464) wherein the Hon'ble Judge while dealing with similar situation observed as under:- - "Mere Dying Declaration shrouded by mystery and fraught with so many infirmities is not enough to convict a person---Dying Declaration is weaker type of evidence, which needs corroboration when fully corroborated by other reliable evidence---Facts and circumstances of each case have to be kept in view and also credibility, reliability and acceptability of such Declaration by Court."
' In Smt. Devi v. State (NCT of Delhi) 2001 IIIad Delhi 584, 90 (2001) DLT 626, (DB), it was mentioned that doctor recorded on the MLC Ex.PW-3/A the alleged history of burns as given to him by the deceased Meera. After Meera's death Ex.PW-3/A was read as her dying declaration. The conviction awarded by the learned trial court was maintained by the High Court.
' The learned counsel for the accused argued:-- ' That parents of the deceased have not supported the case of the prosecution. They testified that deceased was unconscious when taken to hospital. Hence, dying declaration purported to have been recorded by the doctor is doubtful;
4. That deceased was having 95 % burns, therefore, it was impossible for her to give such a lengthy dying declaration; ' The Court after deliberations has held:--
5. Admittedly dying declaration is a substantial piece of evidence provided it is not tainted and the statement had been made by the dying person, who was in a fit condition to make the same. Dying declaration is a best guarantee of the truth of the statement made by a dying person provided that the time of making the statement, he or she was not unconscious and fit to disclose the cause leading to her death which must be fresh in mind and untainted by any consideration except speaking truth, leaves no impediment in convicting the accused based on such a dying declaration.
6.And that:
10. That Ex.PW-3/A is the version of the deceased having been truly recorded by the doctor on duty immediately after she was brought to hospital. The incident was fresh in her mind and, therefore, it can be concluded that she spoke the truth. Since there was none who could have influenced her mind against the appellant hence the version given by her mind against the appellant hence the version given by the deceased and as recorded by the doctor cannot be discarded nor doubted.
Deceased could not be said to be in an unfit state of mind. Merely because she had approximately 95 % burns is no ground to conclude that the history given by her to the doctor was incoherent or borrowed one.
11. That merely because dying declaration was recorded by a doctor is also no ground to discard the same.
It has been closely observed that at the time of medical examination of the deceased injured in Government Mian Munshi Hospital, Lahore by Women Medical Officer she was in complete senses and without being prompted by any body she recorded a statement in a compos mentis way, therefore, her statement is regarded as dying declaration.
13. For what has been discussed above, the tout-ensemble is that the prosecution has succeeded in proving the case against the appellant and H in bringing home the charge against the appellant beyond shadow of reasonable doubt and the judgment of the learned trial court has not been explored to suffer from any illegality or irregularity, incorrectness and impropriety, the same is legal and just. The learned trial court has judiciously applied its mind while handing down the impugned judgment. Therefore, the same is upheld. The instant appeal being devoid of force is dismissed.