1. WAHIDUDDIN AHMAD, J.--This appeal by special leave is directed against the judgment and order of the High Court of West Pakistan, Lahore, dated the 15th October 1969, in Criminal Appeal No. 178 of 1969/Murder Reference No. 58 of 1969. By this judgment the appeal was dismissed and the death sentence of the appellant was confirmed.
2. Appellant Fazal Ahmad alias Phallu was convicted by the Sessions Judge, Jhelum for committing lurking house trespass and the murder of Mst. Rajan on the night intervening 29th and 30th June 1968. He was sentenced under section 458, P. P. C., to 7 years' rigorous imprisonment and under section 302, P. P. C. To sentence of death. The appellant challenged this judgment in the above- mentioned appeal but it was dismissed and the death sentence was confirmed.
3. The prosecution case is that the appellant who was carrying on love affair with the deceased was desirous of taking her away from the house of her husband but she was not prepared to leave her children and refused to go with him. It is alleged that on the night of the alleged occurrence, the appellant committed lurking house trespass and approached the deceased on the roof of her house in village Mamyan where she was sleeping and insisted on her to accompany him to which she did not agree. On this he got infuriated and caused fatal injuries to the deceased with a spear in the abdomen. On the cries of the deceased her son Ghazanfar Ali woke up. Painda Khan P. W. 14, a neighbour of the deceased was also attracted to the spot by the outcries. The appellant jumped down the roof and managed to escape.
4. The husband of the deceased had gone to Jhelum in search of work. Mst. Allah Rakhi, the mother of the deceased left for Jhelum to inform Muhammad Sadiq of what had happened. The husband of the deceased returned to his house on the evening of the 30th June 1968. She was then removed to Jhelum on the 1st of July 1968. She lodged First Information Report at Sadar Police Station, Jhelum on the 1st July 1968, at 8-00 a.m. And was sent to the hospital. Her dying declaration, Exh. P. A., was recorded by a Magistrate Ch. Irshad Ahmad, Naib Tehsildar, and she died on the 1st July 1968. The appellant was arrested on the 3rd July 1968.
5. The appellant denied the prosecution allegation against him. He alleged at the trial that the deceased was a woman of easy virtue and was possibly killed by her husband on finding her in a compromising position with somebody.
6. The prosecution case was supported by the ocular testimony of P. W. 13 Ghazanfar Ali and P. W. 14 Painda Khan. The learned Sessions Judge, Jhelum, relied on this evidence but it was disbelieved by the High Court on the ground that the alleged murder took place at about midnight time and P. W.
7. Ghazanfar Ali could not identify the appellant in the darkness. It was further held that P. W. 14 Painda Khan who was living at some distance from the deceased's house must have reached at the place of occurrence after the appellant had escaped, and, there--fore, was not in a position to identify the appellant. The learned Judges of the High Court relied on the dying declaration of the deceased in the First Information Report, Exh. P. H., and the dying declaration, Exh. P. A., recorded by a Magistrate. The High Court found the dying declarations genuine and true and upheld the conviction of the appellant.
8. Special leave was granted in this case to consider the question whether the conviction of the appellant on the dying declarations of the deceased was proper and whether implicit reliance can be placed on the dying declarations.
9. Mr. M. Saleem, learned counsel for the appellant, has taken us through the record. His contention is that from the very beginning there was a deliberate attempt by the relatives of the deceased to hush up the matter. According to him, P. W. Muhammad Sadiq, the husband of the deceased was responsible for the murder of the deceased. He contended that the matter was not reported to the police till the 1st of July 1968, as it was expected that the deceased would recover. He further contended that there is discrepancy between the two dying declarations and when dying declaration, Exh. P. A., was recorded by the Magistrate, the mother and the aunt of the deceased were present and the possibility of falsely involving the appellant in the crime cannot be ruled out.
10. He also contended that the statement in the dying declaration of the deceased that she struggled with the appellant and caught hold of the blade of the spear cannot be supported on the medical evidence.
11. The contention of the learned counsel has received our anxious consideration. The occurrence in this case took place at midnight and it being a dark night, it was not possible for P. Ws. Ghazanfar Ali and Painda Khan to witness the occurrence. The assessment of the evidence of these two witnesses by the High Court appears to us to be quite satisfactory. The only question, therefore, for consideration is whether the conviction of the appellant on the dying declarations of the deceased can be upheld. It will be noticed that the First Information Report, Exh. P. H., was lodged by the deceased herself and, therefore, this piece of evidence can be used as a dying declaration against the appellant Before the death of the deceased another dying declaration Exh. P. A., was recorded by Ch. Irshad Ahmad, Magistrate. Wet have compared the two dying declarations. There are some omissions in the 2nd dying declaration made by the deceased. There are also some discrepancies in the two dying declarations. In the 2nd dying declaration, the deceased did not state that she struggled and caught hold of the spear with her two hands. She also did not state in the 2nd dying declaration that when she refused to go with the appellant he slapped her. In the F. I. R., the deceased stated that she had illicit relations with the appellant for the last two years. While in the 2nd dying declaration she stated that her illicit relations with the appellant were for the last one year. It will be further noticed that when the 2nd dying declara--tion was recorded, Mst. Fatima, a relative of the deceased and Mst. Allah Rakhi, the mother of the deceased were also present. There is one significant circumstance in the statement of the deceased which shows that she wanted to save her husband. She stated in her statement that "no one else has injured me. My husband lives in Jhelum and is a labourer there". In these circumstances, it is not possible to hold that the dying declarations of the deceased are true and genuine statements. The statement of P. W. Muhammad Sadiq, the husband of the deceased also does not appear to be a statement of a truthful witness.
12. The deceased stated that he was doing work at Jhelum but he was contacted at Kantrila. There is nothing to show how Mst. Allah Rakhi contacted him at Kantrila when he was working at Jhelum.
13. Mst. Allah Rakhi has not been produced as a witness in the case.
14. In the light of the above discussion, no implicit reliance can be placed on the dying declarations of the deceased. Her statement in the first dying declaration that she struggled and caught hold of the spear is not supported by the medical evidence. The medical evidence shows that the deceased received a contused wound --" x 3/4" on palmer surface of left hand only skin deep. If the deceased had struggled with both hands and caught hold the blade of the spear with both hands, she would have received injuries on both the hands. The statement of the deceased in this behalf is not corroborated by the injuries received by her on the hands. In view of this, we would give the appellant benefit of doubt.
15. In the result, the appeal is allowed and the appellant is directed to be released forthwith, if not required in any other case.