Sultan Khan appellant was convicted by the learned Additional Sessions Judge, Rawalpindi vide judgment dated 21st March, 1979 under section 302, P. P. C. For having committed the, murder of Mst. Kalsoom Akhtar, his wife on 19th August, 1976 at 2-30 p. m. In Dhok Hashu, Police Station Rawaat, District Rawalpindi and was sentenced to imprisonment for life and to a fine of Rs. 5,000 or in default to suffer a further R. I. For 6 months. The fine on realisation was directed to be paid to the daughters of the deceased.
2. The prosecution version as contained in the F. I. R. Exh. P.G. Lodged by Mst. Kalsoom Akhtar, the deceased on 19th August, 1976 at 6-45 p. m. And recorded by Muhammad Akram, S. I., S. H. O, P. W.
Was that on the same day at about 2-30 p. m. While she was present alone in the house of Mst.
Safia, who had gone to fetch water, Sultan Khan appellant came there with a knife in his hand and saying that he would teach her a lesson for elopement, gave a knife blow by the wrong side hitting her on the right side of forehead and the second blow by the knife was given in the abdomen. It is further mentioned in the F. I. R. That the noise raised by her attracted from nearby Messrs Ashiq Hussain and Banaras (given up P. Ws.), who saw the occurrence and then sultan ran away leaving her there. It is also stated that her father was not in the house and later she was brought by his father in a wagon to the police station. After recording the F.I.R. Muhammad Akram S. I., S. H. O., made over the investigation to Khurshid Ali, Head Constable. Thereafter the deceased was taken to the Hospital where she was examined by Dr. Agha Muhammad Zafar P. W, on 19th August, 1976 at 8-40 p. m. Mst. Kalsoom Akhtar died later and the post-mortem examination was also conducted by the afore-named Doctor. The injuries as noted in the post-mortem report Exh. P.B. Are the same as were noted in the medico-legal report Exh. P.A. The injuries found were described as under: -
(1) A stab incised wound 4" x 2" x abdomen deep with coils of intestines protruding outside on upper part of abdomen above the umblicus going towards left side obliquely ;
(2) A lacerated wound 1--" x --" x bone deep on forehead right side upper part with swelling of right eye.
It mad be added that at the time of examination on 19th August, 1976 at 8-40 p. m. The condition of Kalsoom Akhtar as noted by the doctor was that the injured was in a severe shock, blood pressure and pulse were not recordable. This examination was conducted about 2 hours after making of the statement/F. I. R. (Exh. P. G.)
3. The prosecution at trial relied on F. I. R. Exh. P. G. As dying declaration, medical evidence and evidence of recovery of blood--stained knife and motive. The appellant in his statement under section 342, Cr. P. C. Denied the prosecution version and pleaded that the case has been cooked up against him and that it was well known in the village that the deceased bad run away with Sakhawat and he wanted to take her back for prostitution and on her refusal to go with him again, he caused injuries to her. He, however, did not produce any evidence to defence.
4. Learned counsel for the appellant argued that this is a case of no evidence as the eye-witnesses named in the F. I. R. The alleged dying declaration have not been produced and the statement Exh.
P. G. Cannot be believed to have been made by Mst. Kalsoom Akhtar, deceased. He further argued that even if it is assumed that Mst. Kalsoom Akhtar made the statement Exh. P. G. The same cannot be relied upon for basing conviction, as there is nothing on record in corroboration of the said statement. Lastly, it was submitted. That in case this Court comes to the conclusion that the prosecution has been able to prove its case beyond reasonable doubt, then a sentence of three years at the most would be sufficient to serve the ends of justice as a case of grave provocation emerges out of the prosecution version itself. The learned State counsel in reply argued that the dying declaration made by the deceased gets support from the motive, medical and recovery evidence and in the circumstances the conviction and sentence recorded merits to be upheld.
5-6. I have gone through the entire evidence with the assistance of the learned counsel for the parties and having considered the respective submissions of the parties. I have reached the conclusion that the prosecution in this case failed to prove its case beyond reasonable doubt. The first question to be determined in this case is whether Mst. Kalsoom Akhtar, deceased had made or was capable of making the statement Exh. P. G. Muhammad Akram, S. I., P. W. Recorded the said statement and made over the investigation to Khurshid Ali, P. W. Head Constable for the reason that he was busy in .Some special duty. The special duty was, however, not disclosed or explained.
However, 't is noted in the F. I. R. That Mst. Kalsoom Akhtar was sent to the hospital in the company of Abdul Karim, P. W. Her father and other police officials. Abdul Karim, P. W. 6 in his statement mentioned that he alongwith his daughter, Nazir Lambardar, Ashiq Hussain, P. W. Went in the wagon to Police Station Rawaat. This would show that the allegeddying declaration was recorded at the police station in the presence of the relatives and the other persons. In the F. I. R. The word "ulta" seems to have been incorporated later on in between the words ---janib--- and "lagga" This was done apparently to bring the statement in line with the medico-legal report as therein one injury as opine; to havebeen caused by a blunt weapon. Moreover Abdul Karim P. W. Father of the deceased in cross-examination stated that in the statement made to the S. H. O., he had stated that "he was in his house and a small by came and told him about the occurrence. On receiving this information he went to Dhok Hashu in the house of Maqbool the husband of the sister of Sultan Khan, appellant and there he saw his daughter Kalsoom Akhtarlying on the ground bleeding from the forehead and from the belly. He asked her as to what had happened and was told by her that Sultan Khan appellant bad injured her. He then took her to Police Station Rawaat in a wagon. The S. H. O. Asked her twice as to who had injured her and she stated that it was Sultan Khan appellant.
The S. H. O. Recorded the statement, which was thumb-marked by Mst. Kalsoom Akhtar deceased, her daughter." He was confronted with his statement under section 161, Cr. P. C. Exh. P. B as nothing of the sort as quoted above was to be found to be recorded therein. He further stated that the only statement made by Mst. Kalsoom Akhtar before the police was in reply to the question put to her by the S. H. O. Twice as to who had hit her and that the S. H. O. Neither asked anything else nor did she state. This evidence of Abdul Karim, P. W. Vocally belies the S. H. O. Muhammad Akram, S. I., P. W.
As well as the ding declaration allegedly made by Mst. Kalsoom Akhtar, deceased.
7. The condition of Asst. Kalsoom Akhtar on arrival at the hospital as noted by the doctor was that she was in severe shock and her blood pressure and pulse were not recordable. Reference to pos;- mortem examination shows that intestines were protruding out on the front upper part of abdomen, peritoneum was found cut. It is also to be noted that the injuries were caused at about 2.30 p. m., the statement was allegedly made at 6.45 p. m. The injured thus bled profusely for about 4 hours and in these circumstances it is highly doubtful that Mst. Kalsoom Akhtar would be able to make the alleged statement. Even if she was capable to make a statement, the same cannot be safely relied upon especially when neither the father, supports Muhammad Akram S. H. O. On the point nor the eye-witnesses named therein have been produced nor Nazir Lambardar who accompanied the injured to the police station was produced. The learned Judges of the Supreme Court in Waheeduddin v. Allah Ditta and 3 others (1977 SCMR 72) relying on the obser--vation made in the case of Ghulam Farid v. The State (PLD 1966 SC 264) observed that a dying declaration recorded at a police station, when the relative who had brought the injured there are present, is always suspect and certainly less, worthy of credence than one recorded by a Magistrate after exclud--ing he relatives. For all these reasons it would not be safe to rely on the alleged dying declaration Exh. P. G.
8. Learned counsel for the State faced with this situation argued that dying declaration can be spelled out from the statement of Abdul Karim, P. W. Father of Mst. Kalsoom Akhtar as it was in his statement that Mst. Kalsoom Akhtar stated before the police in reply to the ques--tions put to her by the S. H. O. Twice as to who had bit her that it was Sultan Khan appellant. This statement according to him amount to a dying declaration under section 32 of the Evidence Act and that the same can be relied upon for basing conviction. Assuming that the said statement amounts to a dying declaration, still the testimony of Abdul Karim p, W. Cannot be relied upon in this respect as it will amount to taking the appellant by surprise, because the appellant had no notice of the fact that Abdul Karim, P. W. Was also to depose about the alleged dying declaration. Reference may here be made to Muhammad Ali v. The Sate (1913 P Cr. L J 63), wherein reliance was not placed on testimony which was adduced without notice, of a witness who was given up at the commitment stage, but was called at the trial stage and his testimony was recorded. It was held that "prudence requires that no reliance should be placed on such a testimony and that a pretrial procedure provided in C Criminal Procedure Code is not without any object. It provides an opportunity to the accused person to exactly know of the evidence he has to face at his trial." The aforesaid view was taken in view of the provisions of section 286, Cr. P. C. Notwithstanding the provisions of sections 540 and 437, Cr. P. C. No doubt section 286, Cr. P. C. Is no longer part of the Criminal Procedure Code, yet provisions of sections 205-C and 265-F, Cr. P. C. Provide sufficient protection against casting a surprise by relying on any material or evidence without notice and thus to cause prejudice to an accused. (After reproducing sections 265-C and 265-F his Lordship continued with the judgment).
It is apparent from the provisions of section 265-C, Cr. P. C. That the accused is to be given copies of the material and the evidence which is being relied upon by the prosecution to prove its case and which the accused is required to meet during trial. A trial Court would therefore in exercise of its powers vesting under subsection (3) of section 265-F, Cr. P. C. Where circumstances so warrant, refuse to summon any witness for purposes of bringing on record, any material or piece of evidence of which the accused had no notice and the production of which will amount to take the accused by surprise and would not allow the pro--secution to cause prejudice to the accused and thus defeat the ends of justice. Likewise in a case where a witness in his deposition introduces anything which was not contained in his statement under section 161, E Cr. P. C. Supplied to the accused and to prove which prosecution had not cited him as a witness then the said material or part of the deposition cannot be relied upon by the prosecution as it will be violative of the principles of justice. The principle that a party to a litigation is not to be allowed to take opposite- party by surprise is based on the principle that mutual knowledge of all relevant facts gathered by both the parties, is essential to proper litigation.
9. This principle despite the deletion of section 286 from the Code of Criminal Procedure will remain applicable as this is the basic principle of justice. I may also refer to Rah Nawaz v. State (1976 P Cr. L J 1040) as in this case a dying declaration was discarded as the Magistrate who had recorded the said dying declaration, was not produced during commitment proceedings, but was called during trial. On the day when his statement was recorded, prosecution produced five more witnesses. In the circum--stances it was observed that the defence counsel was not given any extra time before recording the statement of the Magistrate to get instructions, for cross-examination of the witness and that production of the Magistrate as a witness has caused material prejudice to the defence.
In the instant case, it will be noted that the dying declaration emerging from the statement of Abdul Karim, P. W. Was for the first time introduced during trial, as this witness in his statement Exh.
D. B. Made under section 161, Cr. P. C. To police had not stated anything of the sort being stated by him in Court. According to section 161, Cr. P. C. He was merely to depose that he had identified the dead body. He thus deposed about dying declaration for the first time during trial. i.e. After three years of the occurrence and that too without any notice to the appellant. The testimony of this witness is therefore to be excluded from considera--tion. The evidence of recovery of the knife is also of no avail as the recovery witness, namely Muhammad Zaman (P. W. 5) admitted that in his statement Exh. D. A. It was not mentioned that the knife was stained with blood. The manner in which the recovery was effected, also makes this recovery highly doubtful. In these circumstances the motive cannot make out the case of the prosecution against the appellant. The prosecution, therefore, failed to make out the case against the appellant beyond reasonable doubt. The appeal is, therefore, accepted. The appellant shall be released forthwith if not required in any other case.