' CH. MUHAMMAD SIDDIQUE, J.-The Sessions Judge, Gujranwala vide impugned judgment dated 28- 3-1983 convicted and sentenced the two accused persons as under :- Muhammad Abbas under section 499,10 years' R. I. plus a fine of P. P. C.Rs. 1,000 or in default further R. I. for 6 months.
Under section 302/34, P. P. C.Death plus a fine of Rs. 5,000 or in default thereof further R. I. for one year.
Under section 18 read with section 1910 years' R. I. plus whipping of the Ordinance:numbering 10 stripes.
' In case the sentence of death is not confirmed but the conviction is maintained then all the sentences of imprisonment were ordered to run concurrently. The period spent by the accused as undertrial in this case shall be deducted from the sentence awarded; to him. It was ordered that Muhammad Abbas accused shall be hanged by neck till his death.
Ejaz Ahmad under section 449,R. I. for 5 years plus a fine of P.P.C.Rs. 500 or in default there- of further R. I. for three months.
Under section 302/34, P.,P. C.Imprisonment for life and a fine of Rs. 5,000 or in default thereof further R. I. for one year.
Under section 18 read with section 19Two years` R. I. and whipping of the Ordinance.numbering 5 stripes.
' All the sentences of imprisonment were ordered to run concurrently. The trial Court further directed that out of fine if realized then its 4/5th shall be given to the legal heirs of the deceased.
The learned Sessions Judge made a reference to this Court for the confirmation of death sentence.
Muhammad Abbas convict challenged bis convictions and sentences through Criminal Appeal No, 54/L of 1983 filed through Mr. M. Dilawar Mahmood, Advocate. Ejaz Ahmad alias Jajji convict has filed a separate Criminal Appeal No, 50/L of 1983 through his counsel Mr. Rafique Ahmad Bajwa, Advocate. Since the reference and the appeals arise out of the same judgment they shall be disposed of by this judgment.
2. In support of its case the prosecution produced 10 witnesses. Doctor Harbans Lal (P. W. 1) on 19-8- 1981 at 4-15 p.m. Medically examined Mst. Nasreen, daughter of Asghar Ali and found the following injuries on ber person :-- "(1) Incised wound 3 can. x 1 c.m. x muscle deep on top of left shoulder.
(2) Incised wound 1 c.m. x c.m. Muscle deep on top of left shoulder, 3 c.m. Inner to injury No, 1.
(3) Incised wound 6 c,m. x 3 c.m. Muscle deep on back of left upper arm in lower part.
(4) Incised wound 7 c.m. x 2 c.m. Muscle deep on inner side of left forearm in lower part.
(5) Incised wound 3 c.m. x 1 c.m. Going deep on the front of abdomen on right side 5 c.m. From umblicus, intestines were coming out of the wound.
(6) Incised wound 2 c.m. x 1 c.m. Muscle deep 2 c.m. Behind injury No, 3.
' Her condition was serious and she was semi-conscious. Injury. No, 5 was grievous whereas others were simple ; all were caused by sharp-edged weapon within duration of 'fresh'. She was admitted in the female casualty ward."
' On 19-8-1981 A. S.-I. Zulfiqar All P. W. Submitted an application Exh. P. B. Enquiring whether Mst.
Nasreen was fit to make a statement or not and vide note Exh. P. B/1 this doctor declared her unfit to make a statement. Again on 25-8-1981 the same A. S.-I. Made a similar application Exh. P. C. And vide note Exh. P. C/I the doctor had declared Mst. Nasreen fit to make a statement F. C. Abdul Rauf (P. W. 2) escorted the dead body of Mst. Nasreen to mortuary for post-mortem examination. M. H. C.
Muhammad Asghar (P. W. 3) received from A. S.-I. Zulfiqar Ali P. W. a sealed parcel containing bloodstained earth with the direction that he should send the same to the office of the Chemical Examiner, Lahore. Accordingly, on 2-9-1981 be sent the said sealed parcel to the office of the Chemical Examiner Lahore through F. C. Muhammad Azam P. W. Again on 6-9-1981 A. S.-I. Zulfiqar Ali P. W. Gave him a sealed parcel containing blood-stained Churri pertaining to this case which he kept in the Malkhana and sent the same intact to the office of the Chemical Examiner, Lahore on 14-9-1981 through F. C. Muhammad Azam P, W. SO long the sealed parcels in remained his custody nobody tampered with them. Ch. Muhammad lbraham, Draughtsman (P. W. 4) prepared site plan Exh. P. D. And P. D./1 at the instance of the Police. In cross-examination this witness has admitted that the place of occurrence is surrounded by many houses and shops and is situated in a thickly populated street. F. C. Muhammad Azam (P. W. 5) as mentioned above took the sealed parcel and delivered the same intact in the office of the Chemical Examiner, Lahore. Muhammad Amin (P. W.
6) attested the recovery memo. Exh. P. E. Of bloodstained scrapings taken from the duri and bethuk of the house of Asghar Ali. Gbulam Rasool (P. W. 7) is the formal witness who identified the dead body before the doctor at the time of post-mortem examination. Doctor Muhammad Zahir P. W. 8) on 29-8-1981 at 1-45 p.m. Conducted post-mortem examination, of the dead body of Mst. Nasreen, daughter of Asghar Ali, and found the following injuries on her person :- "(1) Stitched wound 3 c.m. With two stiches on top of left shoulder.
(2) Stitcbed wound with five stitches 6 c.m. Long on the back of lower part of left upper arm.
(3) Scabbed wound 1 c.m., 3 c.m., inner to injury No, 1.
(4) Stitched wound 2 c.m. With two stitches 2 c.m. Behind injury No, 2.
(5) Stitched wound 6 c.m. With six stitches on front of abdomen 5 c.m. From umblicus at its level towards right side.
(6) Stitched wound 7 c.m. With six stibches on lower part of inner side of left forearm.
(7) Lamparotomy 17 c.m. With 16 stitches on front of middle of abdomen, above the umblicus.
' On internal examination, abdominal walls were found Injured under injury No, 5, peritonium was injured under injury No, 5 and covered by yellowish slough all over. There were two cuts in stomach, pancreas was also injured and covered with yellowish slough. Small intestines were also injured, the rest of the organs were healthy. All injuries were caused by sharp-edged weapon. Injury No, 5 was grievous, but remaining were simple. In my opinion death occurred due to peritonitis as a result of toxaemia, on account of injury No, 5 which was sufficient to cause death in the ordinary course of nature."
' Asghar Ali (P. W. 9) is the father of Mst. Nasreen deceased. He has stated that his wife died 8/9 years ago, leaving behind four children namely, Mst. Nasreen deceased, Khadim Hussain, Mst.
Shamim and Akbar Ali. The deceased was the eldest and was used to manage his home affairs.
During the days of occurrence he was employed in the factory of Haji Amiruddin situated on Hafizabad Road. He knew both the accused Abbas and Ejaz accused. They usually used to roam about on College Road. On the day of . Occurrence he was ill and therefore did not go to factory to perform his duties there. At about 2 p.m. He left his house for purchasing vegetable etc. Leaving behind his deceased daughter Mst. Nasreen and her younger sister Shamim. At about 3 p.m. When he was returning to his house he saw two persons entering the main gate of his house. He also rushed to his house and saw that Abbas accused was attempting to open the string of the Shalwar of his daughter Mst. Nasreen deceased but she was resisting. Ejaz accused armed with Churri was standing there. Abbas accused caused injury to the deceased in the flank on right side in order to force her to leave her string. Ejaz Ahmad accused gave a blow hitting on the shoulder but she kept her hand on her string. Abbas accused repeated the blow hitting on the arm 4th blow was given by ljaz which also hit on the arm. Two more injuries were caused by accused one by Abbas and the other by Ijaz accused. This witness claims to have seen the occurrence while standing in the duri.
He raised alarm which attracted Nadeem Hussain and Ilm Din and other residents of the locality.
On seeing these persons both the accused persons left the place and ran away holding their respective Churri in their hands saying that if anybody came near them they would kill him. His neighbour Idrees and Sanaulla and others took Mst. Nasreen to the Hospital in a rikshaw. After a short time Asghar All also reached the Hospital. On receipt of information A. S.-I. Zuffiqar Ali P.
W.'reached the Hospital and recorded the statement Exh. P. G. Of Asghar All complainant. This witness also attested the recovery memo. Exh. P. J. Of Churri P. 1 recovered at the instance of Abbas accused. The complainant also produced torn blood-stained shirt P. 2, blood-stained Shalwar P. 3, Dupatta P. 4 and torn bloodstained piece of brassier P. 5 which were taken into possession by the Police vide memo. Exh. P. J. Thumb marked by him. A. S.-I. Zulfiqar Ali (P. W. 10) i3 the Investigating Officer in this case. At the relevant time this Police Officer was in the District Courts when he received information that Mst. Nasreen in injured condition had been taken to D. H. Q. Hospital. He, therefore, reached the Hospital and submitted an application Exh. P. B. To the doctor enquiring from him as to whether she was fit to make a statement or not, through note Exh. P. B/1, the doctor declared her unfit to make a statement. The Police Officer then recorded the statement Exh. P. G. Of Asghar Ali father of Mst. Nasreen and sent the same to the police station for formal registration of the F. I. R. Exh. P. G./I. This Police Officer inspected the spot, collected blood-stained scrapings from the place of occurrence and made it into a sealed parcel vide memo. Exh. P. E. The complainant Asghar Ali produced before him shirt P. 2 totally torn Shalwar P. 3, Dupatta P. 4 and portion of brassier P. 5 all blood-stained which he took into possession vide memo. Exh. P. J. He prepared rough sketch of the place of occurrence Exh. P. K. Off and on he bad been enquiring from the Hospital whether Mst. Nasreen had gained consciousness and was fit to make statement or not. On 25-8-1981 he again visited the Hospital and submitted an application Exh. P. C. To the doctor enquiring as to whether the injured was fit to make a statement or not. Through certificate Exh. P.
C./1 the doctor declared her fit to make the statement. Then this Police Officer. Recorded her statement Exh. P. L. Under section 161, Cr. P. C. On 29-8-1981 after receipt of information that Mst.
Nasreen had died in the Hospital, this Police Officer went there and took her dead body under his supervision and after preparing injury statement Exb. P. M. And inquest report P. N despatched the dead body to mortuary for P. M. Examination under the escort of Abdur Rauf P. W. He arrested the accused on 2-9-1981 and interrogated about the crime weapons. Abbas accused after making disclosure, led the Police party to a place near Alam Chowk Hafizabad Road and from there got recovered blood-stained Churri P. 1 which was lying in a ditch. The same was taken into possession and was made into a sealed parcel vide memo. Exh. P. H. He prepared the rough sketch of the place of recovery Exh. P. H/1, and he gave sealed parcels containing blood-stained earth and Churri to the M. H. C. With the direction that he should send the same to the office of the Chemical Examiner, Lahore. He got prepared site plans Exh. P. D. And Exb. P. D/1 from Muhammad Ibrahim Draughtsman. After the completion of the investigation he challaned the accused persons.
3. Ejaz Ahmad in his statement recorded under section 342, Cr. P. C. Denied the prosecution allegations and stated that this case was made against him due to enmity created by the elections with the father of the deceased and Abdul Sattar. When asked if he wanted to say anything else, he stated as under :- "1 am innocent. My age was less than 16 years at the time of occurrence, I produce Exh. D. B. My school leaving certificate."
' Muhammad Abbas accused also made a similar statement denying the prosecution allegations.
The accused persons produced no evidence in defence. The trial Court convicted and sentenced the accused persons as mentioned above.
4. We have beard at length the learned counsel for the parties and have also perused the entire material available on the record.
5. Mr. M. Dilawar Mahmnood, the learned defence counsel has raised a preliminary plea that reference to this Court by the Sessions Judge, Gujranwala was not legally correct as according to him, the learned Sessions Judge was trying this case as ordinary murder case under the Code of Criminal Procedure and not under the Hudood Ordinance. We do not agree with him. The allegation of the prosecution against the accused persons was that in order to commit rape with Mst.
Nasreen deceased daughter of Asghar Ali they had committed house trespass of the complainant.
Since she did not yield to their desire and when they tried to cut the string of her Shal was by force, she resisted their attempt and consequently in order to overpower her, they caused injuries to her with their respective 'Churris' which ultimately resulted in her death. On these allegations the trial Court framed the charge against the accused persons under section 449, P. P. C., section 18 read with section 19 of the Ordinance and under section 302/34, P. P. C. It is in this factual background that we have to see whether the case was triable under the Ordinance or under the Code of Criminal Procedure. In order to appreciate this point we have to examine the Legislative history of this enactment.
6. On 2-12-1978 Shariat Benches of Superior Courts Order, 1978 (President's Order No, 22 of 1978), was published for general information, and was to come into force on the 12th day of Rabi-ul-Awal 1399 A. H. (9th February, 1979). Under this Order in each High Court a Bench to be called the Shariat Bench of the High Court was to be constituted. The power and jurisdiction of such Shariat Benches was to examine and decide the question whether or not any law or provision of law was repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet (PBUH). Similarly the Shariat Appellate Bench was to be constituted in the Supreme Court to hear appeals against the judgments of the Shariat Benches of the High Courts.
7. By Constitution (Amendment) Order, 1979 (President's Order No, 3 of 1979) dated the 7th February, 1979 in the Constitution of Pakistan in Part VII after Chapter 3 a new Chapter 3-A was inserted. This Chapter created Shariat Benches of superior Courts and in each High Court a Bench called the Shariat Bench was constituted to examine and decide the question whether or not any law or provision of law was repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet (PBUH). Any party to any proceeding before a High Court under Article 203-D, aggrieved by the final decision of the High Court, could prefer an appeal to the Supreme Court.
8. On 9-2-1979 the following Ordinances/Order called Hudood Ordinances/Order were promulgated by the President of Pakistan and they were to come into force on the 12th day of Rabi- ul-Awal 1399 A. H. (9-2-79) :- "(1) The Offence Against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979).
(2) The Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979).
(3) The Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (VIII of 1979).
(4) The Execution of the Punishment of Whipping Ordinance, 1979 (IX of 1979).
(5) The Prohibition (Enforcement of Hadd) Order, 1979 (P.
0. No, 4 of 1979).
9. Constitution (Amendment) Order 1980 (President's Order No, 1 of 1990) was published for general information on 26th May, 1980 and Chapter 3-A in Part VII of the Constitution was substituted with a new Chapter 3-A and Federal Shariat Court was set up under Article 203-C of the Constitution.
Under Article 203-D this Court on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, may examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet (PBUH). Thus up to this stage this Court was conferred only original jurisdiction in certain matters. Under Article 203-F any party to any proceeding before the Federal Shariat Court under Article 203-D, aggrieved by the final decision of that Court may prefer an appeal to the Supreme Court.
9. The Constitution (Second ,Amendment) Order, 1980 (President's Qrder No, 4 of 1980) was promulgated on 21st June, 1980. Under this Order after Article 203-D the following new Article 203- DD was inserted in the Constitution :- "203-DD. Further jurisdiction of the Court.-The Court shall have such other jurisdiction as may be conferred on it by of under any law."
Simultaneously on the same day 1.e. 21st June, 1980 the Offence or Zina (Enforcement of Hudood)
(Amendment) Ordinance, 1980 (Ordinance XX of 1980) was published for general information and section 20 of the main Ordinance was amended and in clause (1) after the proviso the following further two provisos were added :- "Provided further that an offence punishable under this Ordinance shall be triable by a Court of Sessions and not by a Magistrate authorised under section 30 of the said Code and an appeal from an order of the Court of Session shall lie to the Federal Shariat Court : ' Provided further that a trial by a Court of Session under this Ordinance shall ordinarily be held at the headquarters of the Tehsil in which the offence is alleged to have been committed."
' Note.-(This proviso is not relevant for the purposes of the'present case).
' Similar amendments were introduced in the other Hudood Ordinances/Order referred to above, A mere perusal of the above-quoted proviso clearly shows that (a) an offence punishable under the Ordinance was made triable by a Court of Session instead of a Magistrate authorised under section 30 of the Code and (b) an order of the Court of Session was made appealable to the Federal Shariat Court. Thus the appellate criminal jurisdiction was conferred upon this Court for the first time on 21-6-1980 by first making a provision in the Constitution and then conferring jurisdiction in the Ordinance and other Hudo.Od Ordinances/Orders.
9. The use of the word 'shall' in the above proviso is rather significant to show the nature of the appellate jurisdiction of this Court in such matters.Even otherwise the language used in this proviso leaves no room for any doubt that appeal against such order of the Sessions Judge shall lie to the Federal Shariat Court and nowhere else. In other words this appellate jurisdiction of the Federal Shariat Court is exclusive in nature. The words 'an appeal' also indicate that only one appeal to the Federal Shariat Court is contemplated under this proviso. Same is the position about the words 'an order of the Court of Session' which clearly mean the whole of such order or decision which the Court of Session is competent to pass and not a part or parts thereof. If the argument of the learned defence counsel is accepted then one appeal for the conviction under section 18 of the Ordinance could lie before this Court while under sections 302/34 and 449, P. P. C. Before the High Court. In such a situation the possibility of conflicting judgments being given by two superior Courts against one and the same judgment and the same set of evidence could not be ruled out. Apart from this absurdity it will also involve great hardship and immense expense to a convict appellant for fighting litigation before two different superior Courts.
12. A joint trial of such different offences could be valid before the Sessions Judge under section 235 of the Code of Criminal Procedure which is reproduced below :- "235. Trial for more than one offence.-(I) If, in one series of acts so connected together as to form the same transaction more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
(2) Offence falling within two definitions.-If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences, are defined, or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences.
(3) Acts constituting one offence, but constituting when combined a different offence.-If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for, the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts.
(4) Nothing contained in this section shall affect the Pakistan Penal Code, section 71."
The different offences allegedly committed by the accused persons in one series of acts are so connected together that they form the same transaction because they are so related to one another in point of purpose. We are conscious that the question whether distinct offences form part of the same transaction or not, must depend on the facts of each particular case and no generalization is possible. In the instant case however, we entertain no doubt in our minds that the purpose of all different offences was the same i,e,, to commit Zina with Mst. Nasreen deceased and, therefore, all different offences were committed in the course of same transaction and therefore, could be tried together in one trial-
13. The trial of the different offences was also valid under first proviso to clause (1) of section 20 of the Ordinance which is reproduced below : "20.-(1) The provisions of the Code of Criminal Procedure, 1898, hereafter in this section referred to as the. Code, shall apply, mutatis mutandis, in respect of cases under this Ordinance: ' Provided that, if it appears in evidence that the offender has committed a different offence under any other law, he may, if the Court is competent to try that offence and award punishment therefor, be convicted and punished for that offence."
' The simple meaning of the above-quoted first proviso is that if an offender has committed different offences one of which is covered by the Ordinance and the other by some other law then if the Sessions Judge is competent to try that other offence or offences and to award punishment therefor then that offence or offences will also be tried alongwith the offence under Hudood Ordinance. In the instant case it is not disputed that the learned Sessions Judge was competent to try and punish the offender under sections 302/34 and 449, P. P. C. Thus, both the ingredients of the above proviso are satisfied in the instant case and, therefore, these offences under the Penal Code were rightly tried alongwith the offence under section 18 of the Ordinance. It is further not denied that the purpose for which the present appellants are alleged to have gone to the house of the deceased was to commit Zina with Mst. Nasreen and made actual attempt to achieve that object and therefore, the offence was clearly covered under section 18 of the Ordinance. The Sessions Judge in these circumstances was competent to try the accused under section 18 of the Ordinance as well as under sections 302/34 and ,49, P. P. C. Consequently it can safely be held that under first proviso to subsection (1) of section 20 of the Ordinance, the order of conviction passed by the Sessions Judge under the Ordinance as well as the Penal Code for all purposes has to be treated as an order under section 20(1) of the Ordinance and consequantly appeal would be competent before this Court which has got exclusive jurisdiction under the Ordinance. The result is that in the circumstances no exception can be taken either against the trial and conviction of the accused persons by the trial Court for different offences or competence of the appeal before this Court.
14. Apart from the above reasoning there is another principle which is attracted in this case. As mentioned above the Federal Shariat Court is one of the important superior Courts of the country and is the creation of the Constitution and the jurisdiction has also been conferred upon it under the Constitution. In view of the well-recognized principles of interpretation of statutes, the jurisdiction of such a Court is not to be easily ousted. This Court has already held so in Fazal Din's case (1) after relying upon Maxwell on the Interpretation of Statutes.
15. There are certain special features of this case which have to be kept in view before considering the case on merits. It is not disputed that Mst. Nasreen deceased received injuries at the time ' and place and in the manner alleged by the prosecution. The nature of injuries found on the person of Mst. Nasreen deceased indicates that they were caused from very close range and therefore there could be no doubt about the identification of her assailants. The occurrence took place in broad daylight at 3.00 p.m. In the house of Asghar Ali complainant situated in a thickly populated locality.
Mst. Nasreen deceased on the receipt of first injury must have raised hue and cry which 'should have attracted the neighbours to the place of occurrence who should have witnessed the occurrence or at least the assailants.. It is no body's case that it was an unwitnessed occurrence.
Certain neighbours were cited as eyewitnesses but were given up as having been won over by the accused persons. There is no suggestion or even an indication that Mst. Nasree deceased was injured by some other assailant and the present accused person have been substituted for the real culprit. Apart from the fact the substitutions
16. {{FOOTNOTE}}
(1) PLD 1983 F SC 33 ' in this age of awakening is rather difficult, the conduct of the accused party which otherwice seems to be quite influential should have been different and they could leave no stone unturned to bring this fact to the notice of the appropriate authorities in order to bring the real culprit to light.
The record however, is completely silent on this point. Moreover, there should be strong motive to let off the real culprit and to falsely implicate the present accused persons. If there had been any substance in such allegation, the investigation of the case could easily be got entrusted to some other independent agency. No serious motive or enmity is alleged against the complainant party to falsely implicate the accused persons.
16. On merits the main attack of the learned defence counsel is that the statement of Hs/. Nasreen recorded by the Investigating Officer A. S.-I. Zulfiqar Ali P. W. 10 under section 161, Cr. P. C. (Exh. P. L.) on 25-8-1981 could not be treated as dying declaration, under section 32 of the Evidence Act.
According to him, it was a mere Zimni. No particular form is prescribed by the statute for dying declaration. According to section 32 of the Evidence Act it can be written, oral or even by gestures.
It can be recorded by any one-a Magistrate, a Doctor, public man or Police Officer. However, the value of dying declaration is to be judged in each case, keeping in view the facts and circumstances of that particular individual case. The mere fact that it was recorded by the Police Officer during investigation under section 161, Cr. P. C. Could not make it inadmissible in evidence because clause 2 of section 162 of the Code of Criminal Procedure has inter alia clearly provided that any statement falling within the provisions of section 32, clause 1 of the Evidence Act would not he hit by section 162, Cr. P. C. Clause 2 of section 162, Cr. P. C. Is reproduced below ; "162. Statements to police not to be signed ; use of such statements in evidence.-(1) .
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of section 32, clause (1) of the Evidence Act, 1872 or to affect the provisions of section 27 of that Act."
Clause (1) of section 32 of the Evidence Act reads as under :- "(1) When it relates to cause of death.-When the statement is made by person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made under expectation of death,' and whatever may be the proceeding in which the cause of his death comes into question."
' A mere perusals of the statement of Mst. Nasreen made before the Investigating Officer shows as to how she was injured by the accused persons which ultimately caused her death. Thus, so far the admissibility or relevancy of dying declaration is concerned no exception can be taken again'* it.
Keeping in view the provisions of section 32 of the Evidence Act read with clause 2 of section 162 of the Code of Criminal Procedure reproduced above, it can reasonably be held that a statement recorded by the Investigating Officer under section 161, Cr. P. C. During investigation can be treated as dying declaration. The learned defence counsel has not been able to point out any provision of law to hold to the contrary. Thus, no objection can be taken against the admissibility of such dying declaration and the mere fact that it was recorded by the Investigating Officer himself- under section 161, Cr. P. C. Would not make it inadmissible in evidence: The Police Officer has enumerated the circumstances in which the said statement was recorded by him. He approached the doctor on the first day on 19-8-1981 when Mst. Nasreen was admitted in the hospital enquiring whether she was fit to make a statement or not but the doctor declared her unfit to make any statement.
Subsequently also he has been enquiring from the doctor about the fitness of Mst. Nasreen to make a statement and it was ultimately on 25-8-.981 when the doctor certified that she was fit to make a statement and then the Investigating Officer recorded her statement (Exh. P. L). She died as mentioned above 29-S-1981. After determining the admissibility of the dying declaration let us examine its evidentiary value. This dying declaration is reproduced below :- {{URDU TEXT}}
17. We have minutely scrutinized the above dying statement and find that it inspires confidence and gives full and accurate details of the occurrence and how she was inflicted injuries by the accused persons. A. S -I. Zulfiqar All P. W. 10 has categorically stated that he recorded the said statement of Mst. Nasreen under section 161, Cr. P. C. Without addition or omission. No enmity or motive is alleged against this Police Officer by the defence. If he wanted to fabricate such statement be could do so earlier without any reference to the doctor. He took necessary precaution to enquire from the doctor whether she was fit to make a statement or not. It was only when the doctor certified that she was fit to make a statement then this Police Officer recorded her statement. The learned defence counsel has cited several authorities regarding the evidentiary value of such statements. We however feel that we are Constitutionally bound to follow the majority view expressed by Anwarul Haq, J., as he then was in Zarif Khan's case (1). His Lordship after referring to various authorities enunciated the principle in the following words : "That a dying declaration stands on the same footing as any other piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the {{FOOTNOTE}}
(1) PLD 1977 SC 612 ' apreciation of evidence in criminal cases. It cannot be laid down as an absolute rule of law, nor even of prudence, that a dying declaration cannot form the sole basis of conviction unless it is corroborated. 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. In order to test the reliability of a dying declaration, the Court has to keep in view the various circumstances like the opportunity of the dying man for observation, and whether the capacity of the deceased to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; whether the statement had been consistent throughout if he had made several dying declarations ; and whether the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. It also goes without saying that the exact contents of the dying statement should be proved by reliable evidence, and for this reason a dying statement recorded by a competent Magistrate in the proper manner in the words of the maker of the declaration would obviously carry greater weight than an oral statement which may suffer from all the infirmities of human memory and human character. If the Court comes to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the identity of the assailants there is no need for further corroboration. But if it appears to be unreliable by itself, or suffers from some infirmity, then it cannot form the basis of a conviction without corroboration."
18. Applying the above-quoted principle to the facts of the instant case we are clearly of the view that the dying statement of Mst. Nasreen is truthful and genuine and is not the result of tutoring by any interested person. Accordingly, we are clearly of the view that this statement has been rightly believed and relied upon by the trial Court. We also believe that statement.
19. Another important piece of evidence available in this case is the statement of Asghar All complainant. He is the father of Mst. Nasreen and on the day of occurrence claims to be on leave from his employer due to sickness. At the relevant time he had gone to the bazar to purchase vegetable etc., and on his return he saw the occurrence. He has fully supported the prosecution version. He was subjected to lengthy cross-examination but the defence could not shake his credibility. The learned defence counsel has tried to point out certain discrepancies and contradictions in his statement but we do not attach much importance to them for the reason that such discrepancies are but natural especially when the statement is recorded after a lapse of about 18 months. According to the learned defence counsel this witness was on duty and, therefore, could not see the occurrence and that is why he could not accompany his injured daughter to the hospital. If it bad been so, the same could easily be proved from the record of his employer, but the defence made no such attempt. The trial Court has already given several reasons for his not accompanying his daughter to the hospital. After minute scrutiny of his statement we are convinced that he saw the occurrence and has given the true account of the occurrence. The trial Court has rightly believed the testimony of the complainant.
20. Mr. Muhammad Rafique Bajwa the learned defence counsel for Ejaz Ahmad has contended that his case is distinguishable from the other accused as no weapon has been recovered from him. He also relies upon the report under section 173, Cr. P. C. Prepared by S. H.
0. Masood Ahmad in which it is mentioned as under :- {{URDU TEXT}}
21. As mentioned earlier the Investigating Officer in this case was A. S.-I. Zulfiqiar Ali (P. W. 10) who has made no such concession in favour of this accused. The S. H.
0., it seems, merely submitted the final challan and even did not appear as a witness in this case.
We are clearly of the view that the above obliging remarks have been made by this Police Officer in order to show favour to this accused, otherwise there is no material available on the record to substantiate such remarks. On the other hand, Mst. Nasreen in her dying statement as well as her father Asghar Ali (P. W.) have specifically attributed certain injuries of the deceased to this accused. Even this Police Officer placed this accused in column No, 3 as an accused person longwith co-accused Muhammad Abbas and challaned him. If there had been any truth in this assertion, the defence could easily produce this Police Officer as a witness and then after his cross- examination his assertion could be tested. The presence of this accused at the spot has been admitted even by this Police Officer. As observed earlier the accused persons seem to be influential and this may be the result of that influence that this Police Officer has tried to oblige this accused.
Accordingly in the circumstances we attach no importance to the above remarks of this Police Officer. We are satisfied that this accused was not only present at the spot but he also participated in the occurrence and, therefore, has been rightly held guilty alongwith co-accused.
22. Although the learned defence counsel have not seriously argued the defence plea yet we have considered the same but find no substance in it. Muhammad Abbas accused in his statement recorded under section 342, Cr. P. C. Has stated that this case was made against him due to enmity with the complainant created by preceding B. D. Elections. Similarly Ejaz Ahmad, accused has stated that the case was the result of enmity created by the elections with the father of the deceased and Abdul Sattar. It is an admitted fact that Asghar Ali father of the deceased was not himself a candidate in the preceding B. D. Elections. As regards the enmity with one Abdul Sattar, the details of that enmity are completely missing and it is not shown how the present occurrence could be the result of such enmity in the B. D. Elections and how this occurrence could be connected with those elections. The complainant has denied his association with any political group in the said elections. He has merely stated that Muhammad Aslam Butt, Mayor of Gujranwala Corporation has contested election from his Muhallah and he was his supporter and did not know Abdul Sattar Councillor. The said Muhammad Aslam Butt 'tame to the house of the complainant for Fateha Khawani but he did not help him in this case. He denied the defence suggestion that Abdul Sattar and Amanullah Burt had contested the elections from his Muhallah and father of Ejaz accused was supporter of Amanullah Burqi and the complainant was supporter of Abdul Sattar. He further denied that at the instance of said Abdul Sattar Councillor he falsely involved Ejaz accused in this case. Thus, from the record no election rivalary is established between the complainant Asghar Ali and the accused party. Even if the complainant supported one Councillor Abdul Sattar in B. D. Election while the father of Ejaz accused supported another councillor Amanullah Burqi this would not materially affect the result of the present occurrence. As indicated above the question is whether Mst. Nasreen deceased received injuries at the time and place and the manner alleged by the prosecution and if so who caused those injuries-whether the present accused persons or someone else. There is thing on the record to show that Mst. Nasreen was inflicted injuries by some other accused persons who have been let off and the present accused persons have been substituted for the real assailants. Keeping in view the normal human nature and conduct neither Nasreen deceased nor her father Asghar Ali (P. W.) would have any sympathy with her murderer and allow him to go scot-free. In our society the net. Of accused persons can be enlarged and even some innocent persons can also be implicated but the real assailant is not let off unless there is some settlement with him, which is not even suggested in the present case. We, therefore, feel no hesitation to reject the defence, plea.
23. After taking into consideration the facts and circumstances of the case and the arguments of the counsel for the parties we have reached the conclusion that the prosecution has proved the guilt of both the appellants beyond any reasonable doubt and they have been rightly convicted and sentenced by the trial Court. We also maintain their convictions and sentences and confirm the sentence of death awarded to Muhammad Abbas. Consequently these appeals fail and the same are hereby dismissed.