1. SHAHABUDDIN, J.-This is an appeal by special leave from the judgment of the High Court of Judicature at Lahore whereby the conviction for the murder of Mst. Ghulam Fatima and the sentence of death imposed on the appellant Ghulam Rasool alias Ghulam Hussain by the Sessions Judge of Gujranwala at Gujrat were confirmed and his appeal was dismissed.
2. Mst. Ghulam Fatima, a resident of Dipalpur, Montgomery District, was on the morning of the 8th September 1951 found lying at the outer signal of Gujrat Railway Station with punctured wounds on either side of the abdomen and an incised wound on the palm of the left hand. On information being telephoned to Lalamusa Railway Station, P. W. 6 S. H. O. Of that station, came to Gujrat the same morning and recorded her statement which contains the following particulars. She was a resident of Dipalpur. One Ghulam Rasool, a tailor and a refugee from Ferozpur, who was living in her Mohalla in Dipalpur had asked her to arrange for his marriage. Three days prior to the date of the statement, in order to find a wife for Ghulam Hussain, she set out with him taking Rs. 150 in currency notes tied in a handkerchief. After visiting the neighbouring Chaks they went to Wazirabad from Okara. At Wazirabad, Ghulam Hussain left her at the railway station and went into the town. He came back with a churra and when asked why he had brought it, said that it was intended for Qurbani purposes. They then boarded a train at sunset and alighted at the next railway station, where he took her in the fields from place to place and ultimately asked her to lie down and rest, saying that they would proceed further after a short-while. Hardly had she sat on the ground when the 'said Ghulam Hussain forced her down and gagging her, stabbed her with the churra in the belly. She tried to extricate herself and in that attempt sustained an injury on one of his hands.
3. Ghulam Hussain then ran away taking her money, but he left the churra and the torch there. After regaining consciousness she proceeded with the churra and the torch to the place where she was found.
4. After this statement was recorded, she was taken to the hospital at Gujrat at 10 a.m. And her condition was bad the doctor asked the police to arrange for her dying declaration being recorded.
5. P. W. 4, a Second Class Magistrate, recorded her statement, in which after stating briefly the particulars found in her first statement she added that Ghulam Hussain's sister was at Lyallpur, that an aunt of his who had four or five children lived with him, that Nazar and Allah Ditta worked at his shop and that it was on his suggestion that she brought Rs. 150 with her. This statement was recorded at 1 p.m. And she died in the hospital an hour later the same day. According to the doctor who examined her on admission into the hospital, her injuries were probably 12 hours old ; and the post-mortem examination revealed that death had resulted from shock and haemorrage due to the stab wounds in the abdomen which were sufficient in the ordinary course of nature to cause death.
6. With the photographs taken of the dead body of Mst. Ghulam Fatima, P. W. 21, A. S. I. Went on the 11th September 1951 to Dipalpur, and there he met Elahi Bakhsh (P. W. 8), a resident of that place. This witness, had gone out of Dipalpur in connection with a case, and on his return on the 2nd September 1951 he found his wife Mst. Sardaran (P. W. 9) and her daughter absent from his house.
7. His enquiries revealed that the deceased and the appellant had taken his wife and daughter that day towards Okara. P. W. 21, however did not proceed towards Okara. Straightaway but tried to trace out the appellant at Dipalpur. He did not find him there. On the 16th September 1951 he went with P. W. 8 to Wazirabad and the latter pointed out the appellant in the train. P. W. 21 interrogated the appellant and arrested him that day. Next day, the 17th September 1951, the appellant took P. W.
8. 8 and P. W. 21 to the house of Ramzan (P. W. 19) at Dharowal, where Mst. Sardaran (P. W. 9) and her daughter were found.
9. The evidence of Mst. Sardaran was to the effect that there were differences between herself and her husband and so she was tempted by the offer of the deceased to get her married to a better man, that while her husband was away Mst. Ghulam Fatima and the appellant took her and her daughter in a tonga to Okara and ultimately reached the house of Ramzan where they stayed for four days, and that then Mst. Ghulam Fatima and the appellant left her saying that they would get for her a divorce from her husband. Ramzan corroborated this version of P. W. 1 and added that the appellant and Mst. Ghulam Fatima told him that they wanted to sell Mst. Sardaran and that he then stated to them that as he was in need of a wife she should be offered to him. According to Ramzan the appellant demanded Rs. 70 and when asked to show the deed of divorce the appellant said he would get it and then he left with Mst. Ghulam Fatima.
10. On the 20th September 1951 the appellant was produced before a Magistrate who recorded his statement under section 164, Cr. P. C. In this statement some of the particulars of the prosecution case are admitted. It is stated there that the appellant and the deceased were living in Dipalpur, that one evening she came to him and said that there was a widow who was not on good terms with her husband's parents and he should make arrangements for her marriage. He declined to do so, but she tempted in saying that she could sell her for Rs. 200 or 300 and share the money with him. Two days later the deceased brought Mst. Sardaran, and all of them went in a tonga to Okara from where they reached Lahore and then proceeded towards Wazirabad and from there to Mansurwali. They then went to the house of Ramzan to whom the appellant stated the object of their visit. Next day, however, the mother of Ramzan threatened to get him and the deceased arrested on the charge that they were abducting girls and then he left that house at 3 a.m. Without informing the deceased, and Mst. Sardaran and that he did not know what happened thereafter.
11. The police made enquiries about Ghulam Hussain at Dipalpur and when they were unable to secure him, they arrested him (the appellant) but his name was Ghulam Rasool and he was a refugee from Amritsar, while Ghulam Hussain was a refugee from Ferozpur.
12. The rest of the material evidence was to this effect. Sultan Muhammad (P. W. I1), a cloth merchant of Dipalpur stated that the appellant used to work as a tailor at his shop and left it on the 2nd September 1951 saying that he was going to Lyallpur for his betrothal, that he returned on the 8th September 1951 and paid the witness Rs. 30 towards the sale price of a machine which he had purchased. According to this witness the appellant was known only as Ghulam Rasool. He, however, admitted in answer to a question put by Court that the accused gave out that name, but he did not verify whether he had only that name or was known by any other name also. P. W. 5, another shopkeeper of Dipalpur stated that the accused was known both as Ghulam Rasool and Ghulam Hussain, that he used to visit the house of Mst. Ghulam Fatima and that on the 2nd September 1951 he (the witness) saw the appellant and Mst. Ghulim Fatima with Mst. Sardaran and her daughter at the lorry-stand at Okara. He asked Mst. Ghulam Fatima where she was going and her answer was that she was proceeding to Gujranwala for arranging the appellant's marriage. The witness then saw her, the appellant, and Mst. Sardaran and her daughter going towards the Railway Station of Okara. P. W. 12, a partner of P. W. 5 also deposed that the appellant had two names Ghulam Rasool and Ghulam Hussain and used to visit the house of the deceased. This witness also stated, though he did not mention the date, that he saw the appellant on the road to Okara in a tonga with the deceased and Mst. Sardaran and her daughter. In cross-examination he admitted that the appellant used to tell him that he was a mohajir from Amritsar. Another witness of Dipalpur was P.
13. W. 13, who is a tailor. According to him the deceased was living in the chubara opposite to his shop, and the appellant whom also he knew, was known both as Ghulam Rasool and Ghulam Hussain. He further deposed that one morning the appellant came to the deceased's chubara and called her, that the deceased came out with a burqa and that they then went away, but that thereafter he, the witness, never saw the deceased. P. W. 18 Saeed Muhammad owns a cutlery shop styled as "Joseph Brothers & Sons" at Wazirabad. According to him, the appellant purchased from his shop about the 6th or 7th of September 1951 the churra found with the deceased on the morning of the 8th September 1951. This churra had a blade about one foot long and bore the stamp "Joseph Brothers & Sons". The medical evidence is that the injuries that resulted in the death of Mst. Ghulam Fatima could have been inflicted with this churra.
14. When questioned by the Committing Magistrate the appellant denied having accompanied the deceased or having stabbed or robbed her. He added that he did not know her, and when asked why this case had been brought against him he said that he was a resident of Gujranwala and not a mohajir and he did not know why he was implicated. At the trial he admitted having made the statement recorded by the Magistrate but explained that he did so under the pressure of the police. He however admitted that he was working as a tailor at the shop of P. W. 11, that he had purchased a second hand machine from him and used to make payments in installments, but he did not remember whether he had or had not made the monthly installment of Rs. 30 on the 8th September 1951. He also stated that he was arrested at Dipalpur on the 12th September 1951 while he was laid up in his house with fever and that he was in Dipalpur from the 2nd September till his arrest. No evidence was adduced for the defence.
15. The reference under section 374, Cr. P. C. And the appellant's appeal were heard by Cornelius and Kayani, JJ. Kayani, J. Saw no reason to doubt the evidence for the prosecution, though he came to the conclusion that the dying declarations were not true with regard to the purpose of the journey from Dipalpur. As regards the identity of the assailant named in the dying declarations, Cornelius, J.
16. Found it difficult to rely on those statements solely or on the evidence that the appellant was known as Ghulam Rasul also ; but he believed the evidence of Saeed Muhammad that the appellant purchased the churra from his shop, in view of the complete absence of motive for Saeed Muhammad to give false evidence against the appellant, the remarkableness of the churra which rendered frequent sales of such churras unlikely and thus supported the evidence of the witness that no more than two or four customers visited his shop daily and the fact that the appellant was a stranger to Wazirabad which would be a further reason for Saeed Muhammad to notice him particularly. The learned Judge held that the evidence of Saeed Muhammad established the truth of the statement of the deceased that her companion brought the churra at Wazirabad, and that it also established that the appellant was the companion of the deceased.
17. It was argued before us for the appellant that the descrip--tion of the assailant in the dying declarations by name as well as the place of origin was not proved to apply to the appellant, and that the evidence of Saeed Muhammad that the appellant purchased the churra in question could not safely be made the basis of a conviction. Reliance was placed on the evidence of P. W. 11 that the appellant was not known by any name other than Ghulam Rasool and also on the evidence of P. W. 12 that the appellant used to say that he was a refugee from Amritsar. As regards the evidence of Saeed Muhammad, the argument was that no identification parade was held and the version that the appellant took the police to the shop of Saeed Muhammad was not supported by him. But the learned Advocate had to concede that it was clear from the statements of the deceased that her assailant was the man who had accompanied her from Dipalpur. He however argued that it might be that as stated in his statement recorded under section 164, Cr. P. C. The appellant left Ramzan's house alone, and that the deceased returned to Dipalpur and set out again with another person who stabbed her. But there is nothing in the evidence to support this theory.
18. On the other hand, Ramzan's evidence is that the appellant and the deceased left his house together. The evidence of P. W. 13, as already stated, is that the deceased was living in front of his shop, that after he saw her leaving with the appellant on morning he did not see her again. This witness was cross-- examined; but the theory of the deceased's return to Dipalpur and her setting out again with another man was not suggested to him.
19. It is true that the prosecution did not adduce evidence to show that the appellant was a refugee from Ferozpur District and P. W. 12 stated that the appellant used to say that he was from Amritsar ; but it is in the evidence of P. W. 12 and that of P. Ws. 5 and 13 that the appellant was known as Ghulam Hussain also. P. W. 11, who stated that that was not so, admitted in answer to a question by Court that he had not verified if the accused was known by any other name. However, even if there be a doubt as to whether the appellant was known as Ghulam Hussain, there seems to be no difficulty in accepting the case that the appellant is the person referred to in the dying declarations as he was the man who had accompanied the deceased from Dipalpur. The evidence of Saeed Muhammad also fixes his identity. It is significant in this connection that in her first dying declaration the deceased said that at Wazirabad while she was at the railway station the person who had come with her went into the town and came back with the churra. Saeed Muhammad's shop is at Wazirabad, and there can be no doubt that the churra was brought from his shop. The evidence of this witness that he sold the churra to the appellant is definite, and there was no reason for him to perjure himself if he was not certain of the identity of the person to whom he sold it.
20. Leave to appeal was granted in this case on the ground that it had to be considered, if in view of the observations of Cornelius, J., this was a case of no evidence or such flimsy evidence as would be utterly insufficient to support a conviction. We have examined the evidence from this point of view and in our opinion there is no ground for interference by this Court. The appeal is therefore dismissed.