SHAMEEM HUSSAIN KADRI, J.-Appellant Abdul Aziz welt tried -by the learned Additional Sessions Judge, Rawalpindi, for the murder of his wife Mst. Shahzada Begum. He was convicted under section 302, P. P. C. And sentenced to transporta--tion for life on 8th July 1967. The State filed Criminal Revision No. 1263 of 1967 in which notice was issued to the appellant as to why he should not be awarded capital punishment. Both the appeal and the revision are disposed of by this order.
2. The prosecution relied on the dying declaration of Mst. Shahzada Begum (Exh. P. H/3), which was recorded by Irshad-ul-Hassan (P. W. 2) on 28th July 1966 in hospital after securing certificate (Exh.
P. H/2) from the doctor who declared that the deceased was in a fit condition to make the statement. The doctor later certified vide Exh. P. H./4 that the deceased remained in full senses while making her statement.
3. Four persons, namely, Mst. Nusrat Aziz daughter of the deceased (P. W. 12), Aurangzeb, neighbour of the deceased (P. W. 13), Sher Mohammad father of the deceased (P. W. 16) and Khair Mohammad husband of the sister of the deceased (P. W. 15) saw the appellant with a revolver standing near Mst. Shahzada Begum who was profusely bleeding. There is no eye-witness in this case.
4. Khair Muhammad [(P. W. 15) along with Mohammad Zaman (P. W. 8) proceeded to Police Post Racecourse Road. Khair Mohammad reported the occurrence at 1 p. m. To Ajaib Hussain (P. W. 3)
Foot Constable, who recorded report No. 7 in the daily diary and informed Muhammad Nawaz M. H.
C. Police Station Cantonment on telephone that one Abdul Aziz of Nai Abadi, Mughalabad had shot his wife and the injured person had been removed to the hospital. Muhammad Nawaz M. H. C. (P.
W. 4) recorded F. I. R. (Exh. P. E.) on receipt of telephonic message from Ajaib Hussain at 1 p.m. The same day.
5. Ata Ullah Sub-Inspector (P. W. 14) visited the spot on 28-7-1966 and took into possession blood- stained burqa (Exh. P. 1) having many holes, vide Memo. Exh. P. A. Mst. Nusrat Aziz daughter of the accused, produced pistol (Exh. P. 10), with cover (Exh. P. 2), Magazine (Exh. P. 11) and a box (Exh. P. 12) containing 16 live bullets, along with its licence (Exh. P.6). She also produced gun (Exh. P. 3), with an envelope (Exh. P. 4) containing 22 cartridges (Exh, P. 511 to 22) along with licence (Exh. P. 7) and cover (Exh. P. 8). All these articles were taken into possession vide Memo. (Exh. P.B.). The Sub-- Inspector also collected clots of blood from a drain and the floor. An empty (Exh. P. 13) from a place, near the well in the courtyard, and a piece of bullet (Exh. P. 14) from a drain, ware also recovered.
These recoveries were sealed into parcel and Memo. Exh. P. C. Was prepared; All these memos.
Were attested by Mst. Nusrat Aziz (P. W. 12) and Aurangzeb (P. W. 13).
Dr. Fazal -Elahi- (P..W. 1) examined Mst. Shahzada Begum on 28-7-1966 at 12-35 p. m. And found the following injuries on her person: -
(1) A round wound quarter inch diameter on the middle of abdomen 4 above and at .12 o'clock level to umblicus. There was no scorching or gun-powder mark on skin or shirt. Corresponding hole in shirt was present.
(2) A round wound quarter inch diameter on the left side of back just near the last rib and two inches from the middle lines. There was no scorching or gun-powder mark on the skin or shirt.
He informed the police on telephone to record her statement and make arrangements for recording her dying declaration as the injuries were dangerous to her life.
On 31-7-1966 this doctor performed the post-mortem examination on the dead body of Mst.
Shahzada Begum and found the following injuries on her person: -
(1) A stitched wound 1/3" long on the middle of abdomen 4" above and at 12 o'clock level to umblicus. It was deep up to abdominal cavity.
(2) A stitched wound 1/3" long on the left side of back just near the last rib and 2" from the middle line. It was deep into abdominal cavity.
(3) Stitched wound 6" long on the left side of abdomen 1" from the middle line in upper part.
(4) A stitched wound -- " long on the left leg front area near the ankle.
He found parietal fracture of bone of third lumber vertebra in its left side. A bullet was removed from the fatty tissues of left side of abdomen. Peritoneum was ruptured under injuries Nos. 1 and 2.
Peritoneal cavity contained slight fluid. Mesentery was conjected and stitched at three places.
Omentum was stitched at on place. Evidence of peritonitis was present. Small intestines and their contents were stitched at 12 different points at its entire length. It contained some fluid. Large intestines and their contents were full of foul smelling fluid, otherwise healthy. Death in the opinion of the doctor was due to acute peritonitis developed because of injuries Nos. 1 and 2 and aided rupture of small intestines, mesentery and omentum. Both the injuries Nos. 1 and 2 were severally and collectively sufficient in ordinary course of nature to cause death. Both injuries 1 and 2 were the result of firearm. Injuries Nos. 3 and 4 were the operation wounds. On 28-7-1'966 he gave his opinion on the endorsement of Magistrate 1st Class (Exh. P. H/1) that Shahzada Begum was in a fit state to make her dying declaration. This report is Exh. P. H/2. This witness later certified vide Exh. P.
H/4 that the deceased remained in full senses while making her statement.
7. No motive has been alleged for the crime. The, appellant denied the allegation and stated that he had gone to his village Wah a day before the occurrence. On his return on the day of occurrence at about 11 a.m. He found his wife lying unconscious in an injured condition. None was present in the house at the time. He went to the house of his father-in-law and asked Mst. Nusrat Aziz, his daughter about the incident upon which she told him that there was a guest in the house during the night who stayed there until the morning. Nusrat Aziz had come to the house of Sher Mohammad and did not know how injuries were caused to her mother, until he told her about it. A large number of persons including Sher Mohammad and Khair Mohammad his brother-in-law came to the house and the deceased was taken to the hospital by Sher Mohammad, Khair Mohammad and Mst. Gulzar. The appellant took out some money from the attache-case which he had earlier carried to Wah and then followed his wife to the hospital. He was not allowed to see his wife by a large number of persons including the hospital staff. He was taken from the hospital at about 5/6 p.m. By the Inspector of Police who told him that the case had been registered against him. He further stated that he was involved in this case due to enmity with Khair Mohammad and Sher Mohammad P. Ws. Who used to take away miscellaneous articles from his house on which he used to protest.
8. In defence the appellant produced one Fazal Elahi who stated that he knew the appellant since childhood and got him married to Mst. Shahzada Begum 15/16 years ago. The witness gave him a chit of good character when he stated that none including his wife, father-in-law Sher Mohammad or brother-in-law Khair Mohammad ever complained about the illicit relations of the appellant with other women. This witness admitted in cross-examination that the appellant was grandson of his paternal aunt, and he had very little contact with him after his marriage. The defence evidence is of no help to the appellant.
9. Exh. P. H./3, the dying declaration of Mst. Shahzada Begum is reproduced as under: - "My husband Abdul Aziz is a vagabond. He possesses bad character and runs after other women.
We used to stop him, but with no effect. Last night a guest came. My husband is of loose character.
He directed me to get up. I did not do so. Early in the morning he again directed me to get up and leave the house. I replied in negative (?) You have disgraced me. He used to beat me. He used to pull out pistol on minor matters. My husband gave me burqa (veil) to go away. I did not do so whereupon he fired two pistol shots. I fell down. Then I do not know what happened. I was coming out after making water when I received two pistol's bullets at the hands of my husband one of, which hit me on the front and the other on the back. My husband keeps pistol 24 hours."
Mst. Nusrat Aziz (P. W. 12) appellant's daughter resiled from her statement at the trial and denied her presence at the spot. The learned Special Public Prosecutor cross-examined her after obtaining permission of the Court. Before the Committing Magistrate she stated that she was present with her mother at about 12-30 p. m. She also stated that her father asked her mother to go out of the house. Thereupon she took her shoes and burqa and when she reached the deori her father fired at her at the back with his pistol. She further stated that on hearing the report of fire she came out and in her presence the appellant gave a second shot which hit her mother in the belly. She also stated that her maternal grandfather Sher Mohammad, Khair Mohammad, her aunt Mst. Gulzar and Aurangzeb came at the spot. Her father told her to warm some water in order to wash the barrel of the pistol. He then placed it in the attache-case. All this she denied at the trial including the production of pistol (Exh. P. 10), Magazine (Exh. P. 2) with 16 bullets and the licence of pistol (Exh.
P.6). She also denied the recovery of burqa, but admitted her signatures on Exh. P. A., Exh. P. B. And Exh. P. C. She stated at the, trial that she deposed before the Committing Magistrate what the Sub- Inspector instructed her to say. She further deposed that her maternal grandfather, Sher Mohammad and uncle Khair Mohammad reached the house about half an hour after her arrival.
The young girl, who is 13 years of age, has obviously resiled from her statement in order to save her father from the gallows. Aurangzeb (P. W. 13) who is a neighbour and an independent witness has supported the prosecution case about the presence of the appellant when he reached the spot and saw Mst. Shahzada Begum lying injured and unconscious on the ground in the deori of the house. The appellant had a pistol in his hand at that time. This witness reached the spot first Khair Mohammad, Sher Muhammad and Mst. Gulzar Begum reached the spot afterwards. He stated that the recoveries were effected in his presence. He, however, stated that he never noticed any quarrel between husband and wife. He admitted that the appellant, his father-in-law Sher Mohammad Khair Mohammad P. W. And his wife Mst. Gulzar remained in conversation with each other away from him. He did not know what they were talking about. He, however made some concession in favour of the appellant that he did not see the empty and the bullet at the spot before arrival of the police and that the appellant had asked Khair Mohammad not to visit his house and when he came he hesitated to enter the house out of fear. Khair Mohammad is his friend and neighbour. He stated that the recovery Memos. Were not read over to him. We have no reason to disbelieve the evidence of this witness, Khair Mohammad (P. W. 15) and Sher Mohammad (P. W. 16) about the presence of the appellant at the spot when they reached the place of occurrence. If they had any enmity, they would have certainly deposed as eye-witnesses of the occurrence. They live nearby.
Their testimony shows that they are truthful witnesses.
10. The sole question is whether conviction of the appellant can be based on the dying declaration of the deceased. There is no allegation that the deceased made the dying declaration under influence of somebody. She has plainly stated what has happened. She was perfectly within her senses and knowing that she was dying she would not falsely implicate her husband, earlier she having told her father of receiving the fatal injuries. Much stress was laid by the learned counsel for the appellant that the conviction should not be based on the uncorroborated dying declaration of the deceased. But he was unable to produce any authority in support of his submission. On the other hand in Taj Muhammad and others v. The State (PLD 1960 Lah. 723) it was laid down that dying declaration can itself form a satisfactory basis for conviction if it is found to be genuine and true. The question is whether what is said in the dying declaration intrinsically rings true, whether there is any chance of mistake on the part of the dying person in identifying or naming the assailant, whether any outside influence from any quarter is alleged on the deceased before she made the dying declaration. Judging the veracity on the above tests, we find the dying declaration as reliable piece of evidence against the appellant. Even if we discard the circumstantial evidence of Aurangzeb; Sher Mohammad and Khair Mohammad against the appellant, for which we have no reason to do so, we are convinced that the appellant is the assailant of the deceased. It is unfortunate that) the motive has not been disclosed in this case. The fact, however, remains that there was some altercation between the husband and the wife and that circumstance to our mind is itself e a mitigating factor for awarding the lesser penalty to the appellant.
11. We would, therefore, maintain the conviction and sentence of the appellant and dismiss both the appeal and the revision in this case.
Appeal and revision both dismissed.