LEHRASAP KHAN, J.----The convict- appellant Ghulam Farid 25, was tried by the learned Sessions Judge Jhelum under section 302, P. P. C. For causing the murder of Mst. Shafia Begum alias Shamim Akhtar 25, his sister-in-law (wife of his brother) on 16th November, 1979 at 4 p. m. In the area of village Daeewal, Police Station Sohawa.
2. The learned trial Judge vide his judgment dated 6th July, 1980 has convicted the appellant under section 302, P. P. C. And sentenced him to death and a fine of Rs. 2,000 or in default thereof, one year's R. I. It has further been directed that half of the fine, if realized, would be paid to the legal heirs of the deceased, as compensation.
3. The appellant has challenged his conviction and sentence through the present appeal while the matter is also before us, under section 374, Cr. P. C. For confirmation of the death sentence awarded to the appellant. The appeal as also the murder reference shall be disposed of by this judgment.
4. The prosecution version which is based on the dying declaration, Exh. P. B., of the deceased recorded by Dr. Abdul Majid (P. W. 7), the then Medical Officer, District Headquarters Hospital, Jhelum, on 16th November, 1979 at 7-25 p. m. On the basis of which formal F. I. R., Exh. P. B./1, was recorded at Police Station Sohawa on the following day i.e. 17th November, 1979 at 12.20 afternoon, is as follows :- The deceased and her mother-in-law were coming to their home after mud-plastering. The mother-in-law of the deceased stopped to answer the call of nature. The unmarried 'Jeth' (elder brother of husband) wanted to outrage the modesty of the deceased. She did not want to dishonour herself as well as her husband who was in the Army at Quetta. On her refusal, her `Jeth' attacked into her abdomen with a spring knife. She fell down. He sat on her and continued causing injuries to her. Her mother-in-law tried her best to rescue her. The deceased in her dying declaration disclosed that her mother-in-law was not at fault.
5. Dr. Abdul Majid (P. W. 7) medically examined Shamim Akhtar deceased vide medico-legal report, Exh. P. D., while in injured condition and found nine incised wounds on different parts of her body and also swelling. He also noticed bleeding from her vagina. He opined that injuries Nos. 6 and 7 viz. Swelling and bleeding were due to blunt weapon while all the other injuries were caused by a poorly sharp-edged weapon.
6. The doctor informed Sohawa Police about the admission of Mst. Shamim Akhtar in injured condition. She, however, succumbed to her injuries on the following day, i.e. 17th November, 1979 at 8-15 a. m. At 11 a. m., Raja Munawar Hussain (P. W. 8), the then Sub-Inspector S. H. O. Police Station, Sohawa, came to the District Headquarters Hospital, Jhelum. Dr. Abdul Majid handed over the statement, Exh. P. B., of the deceased to him. He sent the same to the Police Station for the registration of case. He prepared injury statement and inquest report in respect of the dead body of the deceased and despatched the dead body of the deceased for autopsy to the mortuary under the escort of Muhammad Shafiq Foot Constable (P. W. 1). Thereafter, he went to the spot and secured blood-stained earth from the spot and made the same into parcel vide memo. Exh. P. H.
He got prepared site plan in triplicate, Exh. P. C., P. C./1 and P. C./2, by Muhammad Yaqoob Patwari (P. W. 4).
The appellant, who in the meantime had absconded, was arrested by the police of Rail Bazar Police Post, Faisalabad. Raja Munawar Hussain deputed Muhammad Akram Head Constable (P. W. 3) to bring the appellant from Faisalabad. The said Head Constable brought the appellant and produced him before Raja Munawar Hussain on 24th November, 1979. On 30th November, 1979 while in police custody, he led to the recovery of knife (P. 5) from a field owned by. Malik Nadir. The same was taken into possession vide memo. Exh. P. J. This-knife was not blood-stained at the time of its recovery.
After completing the investigation, Raja Munawar Hussain S.-I. Submitted the challan.
Dr. Abdul Majid (P. W. 7) performed the autopsy on the dead body of the deceased on 17th November, 1979 at 3 p. m. And noticed the same injuries which he observed while he examined her in injured condition on 16th November, 1979. He opined that death of the deceased occurred due to shock and haemorrhage as a result of the aforementioned injuries and particularly injury No. 1 which were sufficient to cause death in the ordinary course of nature. According to him, all the injuries were ante--mortem and the sharp-edged weapon injuries were caused by a poorly sharp- edged weapon. Exh. P. E. Is the carbon copy of the post--mortem examination report while P. E./1 is the pictorial presentation of the injuries.
8. In addition to the formal witnesses, namely, Muhammad Shafiq Foot Constable (P. W. 1), Matlub Hussain Head Constable (P. W. 2), Muhammad Akram Head Constable (P. W. 3), Muhammad Yaqoob Patwari (P. W. 4), and Ghulam Haider (P. W. 5) who identified the dead body at the time of autopsy, the prosecution examined at the trial Mst. Daulat Bi (P. W. 6), the mother-in-law of the deceased and the real mother of the appellant. This witness did not support the prosecution version against the appellant and the learned Public Prosecutor declared her as hostile witness before the learned trial Judge and cross-examined her. She admitted in her cross-examination that Ghulam Farid appellant was her real son and was unmarried. She also admitted that she had called the deceased for mud-plastering of their house. She also deposed that Karam Hussain, the husband of the deceased, and Ghulam Farid, the appellant, were her sons. According to English record, she stated that Ghulam Farid and the husband of the deceased were only her sons. It is not recorded that they were her only sons. In Urdu record, however, it is written that Ghulam Farid and the husband of the deceased were her sons. She has, however, not stated that in addition to Ghulam Farid and the husband of the deceased, she had other sons as well. During her cross- examination by the appellant, Mst: Daulat Bibi disclosed that previously the deceased was married to one Iqbal in Azad Kashmir and that her son contracted marriage with the deceased without getting divorce from her first husband. She also disclosed that the deceased was a woman of easy virtue.
Abdul Majid, Muhammad Sadiq, Muhammad Usman and Zahir Ahmad were, however, given up by the prosecution on account of having been won over by the accused to whom they were closely related. Abdul Habib A. S. I. Was also given up as unnecessary.
9. The plea of the appellant, as transpires from his statement recorded under section 342, Cr. P. C., is that of denial simpliciter. He pleaded that he has been involved in the case due to enmity with the mother of the deceased and that knife (P. 5) was not recovered at his instance and that it did not belong to him. He also claimed that he has two other brothers besides himself and Karam Hussain, the husband of the deceased. No evidence, however, in defence has been led by the appellant.
10. It transpires from the above resume of facts of this case that the prosecution case against the appellant is based on dying declaration, Exh. P. B., the medical evidence, the alleged recovery of knife (P. 5) and the circumstance of absconscion of the appellant.
11. So far as the alleged recovery of the knife (P. 5) is concerned, the recovery admittedly took place from an open field belonging to Malik Nadir, which was not in exclusive possession of the appellant.
The knife was not blood-stained at the time of its recovery. It is, therefore, not connected with the crime and thus the recovery is not of any consequence and cannot be utilized by the prosecution as a corroborative piece of evidence.
12. The dying declaration, Exh. P. C., however, is of such a nature that it inspires confidence and rings true. Mst. Shafia Begum alias Shamim Akhtar deceased while recording her dying declaration gave a simple and straightforward account of the occurrence. She did not even name the appellant as her assailant and stated that her unmarried 'Jeth' (elder brother of husband) wanted to outrage her modesty but she did not succumb to his lust and did not want to dishonour herself and her husband who was in the Army service at Quetta. The deceased admittedly had no previous enmity against the accused and had no motive for his false involvement.
Dr. Abdul Majid (P. W. 7), the then Medical Officer, District Headquarters Hospital, Jhelum, who recorded the dying declaration, Exh. P. B, is also an independent and disinterested witness. He had no enmity against the appellant and had no motive to involve the appellant falsely in a murder case. He appears to have recorded the dying declara--tion in a forthright manner like a disinterested person. There is nothing in the contents of the dying declaration to suggest that any portion of this statement was prompted by any person or was introduced by the scribe himself. Dr. Abdul Majid has admitted that 5/6 persons including three ladies were present near the injured lady when her dying declaration was recorded but it is on record as has been deposed by Raja Munawar Hussain (P. W. 8), the Investigating Officer, that the injured was taken to the hospital by the relatives of the husband of the deceased. They had passed in front of the Police Station but no body lodged the report at the Police Station. The relatives of the husband of the deceased who also happened to be the relatives of the appellant could not, naturally, prompt the deceased to make a dying declaration involving the appellant in the murder case.
It has been argued on behalf of the appellant that even in the dying declaration, Exh. P.B., name of the appellant has not been mentioned and there were two other elder brothers of the husband of the deceased who too were unmarried. There is no evidence on the record to suggest that Karam Hussain, the husband of the deceased, has two other un--married elder brothers besides the appellant except the statement of the appellant himself made without oath under section 342, Cr.
P. C. Mst. Daulat Bi, the mother of the appellant, while appearing as P. W. 6, stated that she had two sons, namely, Karam Hussain, the husband of the deceased and Ghulam Farid, the appellant. She had been cross-examined at some length by the appellant but he could not dare to ask from her that she had two other sons besides Ghulam Farid and Karam Hussain who too were unmarried. In the circumstances, reference in Exh. P. B. To the unmarried, `Jeth' is to none else but to the appellant.
13. The medical evidence furnishes corroboration to the contents of the dying declaration (Exh. P. B.) to this extent that injuries on the person of the deceased were caused by sharp-edged weapon as alleged in Exh. P. B.
14. There may also be some justification for drawing adverse inference against the appellant on account of his absconscion. He no doubt, in his statement under section 342, Cr. P. C., denied of having absconded but the fact remains that he was arrested by Faisalabad Police and brought to Sohawa Police Station by Muhammad Akram Head Constable (P. W. 3) on 24th November, 1979 i.e. About nine days after the occurrence. There is no explanation forthcoming from the record as to why the appellant had gone to Faisalabad and evaded his arrest for so many days.
15. It has also been pleaded on behalf of the appellant that the deceased was a woman of easy virtue. She contracted marriage with Karam Hussain without obtaining divorce from her previous husband named lqbal and, therefore, the possibility that he might have done her to death, cannot be excluded. This argument has certainly no substance. She (the deceased) bad no love-lost for her previous husband and had he done her to death, she would have named him as her murderer in the dying declaration and would not have mentioned her unmarried `Jeth' against whom she had no animosity whatsoever, as her assailant.
16. In the light of above discussion, I have come to the conclusion that the dying declaration, Exh. P.
B., in the circumstances of this case, deserves full credence and there is nothing on the record to show by any stretch of imagination that it is tainted or not reliable for any reason. From the manner and the circumstances in which it has been made before a witness whose independence and veracity is unimpeachable, I am fully satisfied that this statement it true and genuine. In Zarif Khan v. State (PLD 1977 SC 612) it has been ruled by the Supreme Court of Pakistan that it cannot be laid down as an absolute rule of law, nor even of prudence, that a dying declaration cannot form tote sole basis of conviction unless it is corrobora--ted. 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.
As already observed, I have found that the dying declaration, Exh. P. B., in this case is the truthful version as to the circumstances of death of Mst. Shafia Begum alias Shamim Akhtar deceased and the identity of h the appellant as assailant. This statement does not suffer from any infirmity. I am, therefore, of the considered view that Ghulam Farid appellant had done Mst. Shafia Begum alias Shamim Akhtar to death in a cruel manner in broad-daylight on her refusal to satisfy his lust.
17. In this view of the matter, no exception can be taken to his con--viction and sentence as recorded by the learned trial Judge.
18. His appeal is, therefore, dismissed and .His death sentence is confirmed.
RUSTAM S. SIDHWA, J.----I have read the above judgment of my learned brother Lehrasap Khan J, but as I do not agree with some of the findings arrived at by him, I respectfully record my views in respect of the same.
2. In the first instance, I am not somewhat very sure that the dying declaration Exh. P. B. Of Mst.
Shafia Begum, deceased, was not tutored. According to her dying declaration, she and Mst. Daulat Bi P. W. 6, .Her mother-in-law, were returning home after having carried out some mud plastering.
The mother-in-law of the deceased stopped to answer a call of nature, during which period her unmarried jeth (elder brother of her husband) tried to outrage her modesty. On her refusal, her brother-in-law inflicted injury on her abdomen with a spring knife. She fell down. He then sat on her and continued injuring her. Her mother-in-law tried he, level best to rescue her. She finally added that her mother-in-law was Trot at fault. According to the statement of Dr. Abdul Majid P. W. 7, at the time of the recording of the dying declaration Exh. P. B. Ghulam Haider, Haider and 2,13 other ladies were also present there. He further corrected himself by stating that 5/6 persons, including three ladies, were present. He also stated that Mst. Shamim Akhtar was semi-conscious at the time of recording of her dying declaration Exh. P. B. Since a number of persons were sitting around her, who were not requested to leave the room when the dying declaration was recorded, the probability that she was turtored, cannot be entirely excluded. The very fact that in the conclu-- ding part of her dying declaration, Mst. Shamim Akhtar stated that the mother-in-law was not responsible for the action, shows that she was prompted to make that statement by her mother- in-law Mst. Daulat Bi P. W. 6 who must have been present there and prompted her to make that statement. Even otherwise, the dying declaration Exh. P. B. Ha certain inherent contradictions.
According to her statement, she was returning home with her mother-in-law after having done some mud plastering work. It is not shown in the said dying declaration as to whose home she was returning to, because according to the statement of her mother-in-law Mst. Daulat Bi P. W. 6, she had called the deceased to her house for plastering her home. If it be assumed that she came to her mother-in-law's house to mud plaster her home, then, according to the dying declaration, she was returning to her own house, accompanied by he, mother-in-law and her 'Jeth' (elder brother- in-law). The prosecution ha not cared to show at all how far her home was from that of her mother in-law. The site plan Exh. P. C. Shows that she was done to death a point No. 1, a few paces outside a small kotha. According to her dying declaration, if she was going to her own home, accompanied by he mother-in-law and her `Jeth', it seems impossible to believe that her ---Jeth--- would attempt to molest her in the open, just within the short period that her mother-in-law found time to ease herself. In the dying declaration it is not stated that she was molested in the kotha. Rather, the impression given is that she was molested right in the open. It is impossible to believe this story.
What apparently may have happened is that she was returning to her own home, accompanied by her brother-in-law, who successfully lured her into the said kotha, shown at point No. 2 in plan Exh.
P. C. Where he tried to molest her, but finding her an unwilling party; he mur--dered her out of heinous rage. It also seems that she attempted to rescue herself and, in that process, ran out and fell down at point No. 1, a few paces away from the kotha. The presence of Mst. Daulat Bi P. W. 6 at the place of occurrence appears to be doubtful. Had she been anywhere near by, her son would not have attempted to molest the deceased in any way. These circumstances also show that the dying declaration was tutored, at least to the extent that it attempted to show Mst. Daulat Bi P. W. 6 as accompanying her daughter-in-law at the time of occurrence. The Medico-legal report of Mst.
Shamim Akhtar shows that her vagina was found bleeding, when she was examined, which was within 3-- hours of the occurrence. The next day, when the post-mortem examination on her body was conducted, Dr. Abdul Majid P.W. 7 found that the vagina bore a pack of cloth which had no blood on it. Since there were no signs of mensuration, it was obvious that whoever had attempted to assault Mst. Shamim Akhtar, had brutally first tried to push a pack of cloth into her vagina, to prevent conception, and in that brutal process had injured her vagina. Obviously, he would not have attempted any such thing in the open. Very likely the assault was attempted in the kotha. This also raises the fair inference that the dying declaration is not a true story of what actually transpired and that it suffers from certain material suppression. In these circumstances, in the absence of strong corroboration, the dying declaration of Mst. Shamim Akhtar cannot be accepted aside as the sole basis for convicting the appellant.
3: The next important question that arises is as regards the identity of the actual assailant.
According to the dying declaration of the deceased, the assailant was her 'Jeth' (elder brother in law). This, therefore, leaves me with the question as to how many `Jeths' (elder brothers-in-law) the deceased had. The prosecution has not cared to clear this point, so as to remove all doubts. Mst.
Daulat Bi P. W. 6, the mother-in-law of the deceased, in cross-examination admitted that Ghulam Farid and the husband of the deceased were only her sons. The Assistant Public Prosecutor did not clearly ask her in cross-examination whether Ghulam Farid and the husband of the deceased were her only sons. The expression "are only my sons" does not totally exclude other persons also being her sons. In the Urdu transcript of the evidence, the following words appear: - It is, therefore, clear that this statement cannot be read as implying that Ghulam Farid appellant and Karam Hussain, the husband of the deceased, were her only sons. It was the duty of the prosecution to have had the matter clarified beyond any shadow of doubt. The prosecution has failed and must, therefore, bear the consequences. Even otherwise, Ghulam F arid, appellant, in his statement under section 342, Cr. P.C., clearly stated that he also had two eider brothers, in addition to Karam Hussain, who was younger to him. He also stated that two of his brothers were unmarried, as one was a bachelor and the other a widower. Taking into consideration the evidence on the record and the surrounding circumstances, it cannot be said with certainty that Ghulam Farid was the only 'Jeth' (elder brother-in-law) of the deceased at the time of incident. The identity of the assailant being in doubt, the much needed corroboration is lacking in the instant case.
4. .In the absence of proper identification of the real assailant, the short abscondence of the appellant or for that matter the medical testimony, cannot be treated as an adequate corroboration to the dying declaration to warrant a conviction.
5. The upshot of the above discussion is that the dying declaration, apart from being tutored, does not appear to be a true version of the incident and that the identity of the assailant, appears to be in doubt. In these circumstances, the appellant is entitled to the benefit of doubt.
6. For the foregoing reasons, I cannot bring myself to believe that the case against the appellant has been established beyond every shadow of doubt, as to warrant his. Conviction and sentence, as recorded by the trial Judge. Whilst respectfully dissenting from the final conclusion arrived at by my learned brother, I would hold that the appellant is entitled to the benefit of doubt. I would, therefore, accept his appeal and set aside his conviction and sentence. The fine, if any, recovered from him, shall be refunded to him.
SAAD SAOOD JAN, J.-The appellant. Ghulam Farid (aged : 25 years), was convicted by the learned Sessions Judge at Jhelum of an offence under section 302 of the Pakistan Penal Code on the allegation that he had caused the death of his brother's wife, namely, Mst. Shafia Begum alias Shamim Akhtar, deceased. For the said offence he was sentenced to death and also asked to pay a fine of Rs. 2,000 ; in default of payment of the fine he was to suffer rigorous imprisonment for a period of one year. He filed an appeal against his conviction and sentence and the learned Sessions Judge also made a reference to this Court for confirmation of the sentence of death imposed upon him. The appeal and the reference were placed before a Division Bench consisting of Rustam S. Sidhwa and Lehrasap Khan, JJ. There was a difference of opinion between the two learned Judges. Lehrasap Khan, J. Dismissed the appeal and confirmed the sentence of death. On the other hand Rustam S. Sidhwa, J. Accepted the appeal, rejected the reference and directed the acquittal of the appellant, in the circumstances under the directions of the learned Chief Justice both the appeal and reference have been placed before me. This judgment will dispose of both the said matters.
2. The deceased was first married to one Muhammad Iqbal alias Baloo, resident of Azad Kashmir.
She deserted her husband and later contracted marriage with Karam Hussain in District Faisalabad. Karam Hussain as already mentioned is a brother of the appellant. He is serving in the army and was at the relevant time posted at Quetta. The deceased took residence in village Daiwal of District Jhelum where the parents of her husband and her own relatives lived.
3. It was the case of the prosecution that on 16th November, 1979 at about 4.00 p. m., the deceased accompanied by her husband's mother, Mst. Daulat Bi (P. W. 6), was returning to their house from the fields. Mar. Daulat Bi (P. W. 6) stopped on the way in order to ease herself. The appellant came there and on finding the deceased alone he tried to make love to her. The deceased resisted the advances made to her as she did not want to dishonour herself and her husband. The appellant became annoyed. He took out a knife and struck the deceased in her abdomen. She fell down. The appellant then sat on her and inflicted some more blows with the knife. While this attack was going on Mst. Daulat Bi (P, W. 6) returned and rescued the deceased.
4. It was further alleged by the prosecution that after the occurrence Ghulam Haider (P. W. 5), an uncle of the deceased, together with some other persons, carried her to District Headquarters Hospital at Jhelum. She reached there at 7-25 p. m. And was examined by Dr. Abdul Majid (P. W. 7) who was posted as medical officer in the said hospital. The doctor found nine incised wounds on the various parts of her body including chest, abdomen and scapula bone.
5. Dr. Abdul Majid (P. W. 7) also recorded the statement (Exh. P. B.) of the deceased soon after her arrival at the hospital. On the following morning at 8.15 a. m. The deceased succumbed to her injuries. The doctor informed the officer incharge of Police Station Sohawa about her death. On receiving the said information S. I. Raja Munawar Hussain (P. W. 8) reached the hospital. Dr. Abdul Majid (P. W. 7) gave the statement of the deceased to this officer. On the basis of this statement (Exh. P. B.) an F. I. R. Was registered at Police Station Sohawa on 17th November, 1979 at 12-20 p. m.
6. The appellant was arrested from Rail Bazar, Faisalabad on 24th November, 1979. On 30th November, 1979 he took a police party to a field in village Daiwal from where a knife was recovered.
It was lying in the open and wits not stained with blood.
7. The post-mortem examination of the deceased was performed by Dr. Abdul Majid (P. W. 7). On dissection, amongst other injuries, he found cuts on the pleura and left lung. The diaphragm too had been ruptured.According to the doctor the deceased had died on account of shock and haemorrhage and one of the injuries found on her person was sufficient in the ordinary course of nature to cause her death.
8. The appellant pleaded not guilty to the charge against him. He den1ied that he was responsible for causing the death of the deceased and alleged that he had been falsely implicated on account of enmity with the mother of the deceased. He did not lead any evidence in his defence.
9. The only eye-witness of the occurrence mentioned by the deceased in her statement was the mother of the appellant, namely, Mst. Daulat Bi (P. W. 6), and she declined to support the case of the prosecution. She was declared hostile. Thus, the case of. The prosecution against the appellant rests entirely upon the statement (Exh. N. B.) made by the deceased. This statement which may also be termed as dying declaration reads as follows :- The sole question for consideration in this appeal is whether this dying declaration is of a quality that on its basis alone the appellant may safely be convicted on a capital charge. Dr. Abdul Majid (P. W. 7) who recorded the statement at first averred that the deceased remained conscious throughout while dictating it but, later, in his cross-examination he took a contradictory position for then he admitted that she was semi-conscious while getting her statement recorded. It may be mentioned that his later statement is in conformity with the observations which he made about the state of the deceased when, she first arrived at the hospital. He had then found her to be semi- conscious. Admittedly, after recording the statement he did not read it over to her. This may well have been on account of her being in a semi-conscious state.
10. It is to be noticed that in her statement the deceased did: not specifically name the appellant as her assailant. All that she said was that she had been attacked by her 'kanwara jeth', that is, her bachelor brother-in-law. The prosecution did not lead any evidence to show that the description `kanwara jeth' applied only to the appellant. It was the case of the appellant at the trial that he had two other brothers older to him. One of them was unmarried and the other was a widower. There is no evidence worth the name to refute his assertion. Though from the English record of the proceedings it would seem that Mst. Daulat Bi (P. W. 6) did admit that she had only two sons, namely, the appellant and the husband of the deceased but then the version of her statement as appearing in the Urdu record is slightly different. In the Urdu record the following statement has been ascribed to her :- If the Urdu version of her statement is accepted this would not pre--clude her having other sons as well.
11. As already noticed the only evidence linking the appellant with the death of the deceased is her dying declaration. It is surprising that while examining the appellant under section 342 of the Code of Criminal Procedure the learned Sessions Judge did not care to give an opportunity to the appellant to explain his position with regard to the said declaration. This, no doubt, deprived the appellant of an opportunity to give his explanation and state his position with regard to either its authenticity or the circumstances under which it was recorded.
12. The appellant was arrested from Faisalabad about 8 days after the occurrence. The prosecution led no evidence to prove that his absence from the village and his presence in Faisalabad were so unnatural or unusual events that a presumption of guilt could be raised against him. Apparently the family of the appellant had some links in Faisalabad for it is to be noticed that the marriage of the deceased with the brother of the appellant took place not in Daiwal but at Faisalabad.
13. It will thus be seen that the only evidence against the appel--lant is the dying declaration of the deceased. The said dying declaration was recorded at a time when the deceased was not. In full possession of her senses. The doctor did not care to read it to her after be had taken it down. The deceased did not specifically name the appellant as her assailant and, there is no satisfactory evidence that the descrip--tion which she gave of her killer applied only to the appellant. Apart from that, there is no corroboration of the dying declaration. The corroboration would seem necessary in. View of the state in which she was when recording her statement and also on account of the fact that she had not specifically named her assailant. Further, the learned trial Judge did not question the appellant about the statement of the deceased and thus gave no opportunity to him to state his position with regard to that statement. Taking all the circumstances into consideration I do not think it will be safe to base the conviction, of the appellant on the said statement. I would, therefore, agree with my learned brother Rustam S. Sidhwa, J. And hold that the case against the appellant does not stand proved. Accordingly, I would set aside his conviction and sentence and acquit him of the charge against him. He shall be set at liberty forthwith if not required in any other case.