' Both the appeals, against conviction by Mst. Gulab Jan and acquittal by the State, are preferred against the order of the District Criminal Court, Poonch, recorded on 15th February, 1984. These are, therefore, disposed of by the single order.
2. Suleman Khan, Muhammad Rashid, his son, Mst. Gulab Jan, his wife, Mst. Sabir Jan, Mst. Nishat Begum, daughters-in-law, were tried on the charge of murder of Mst. Aslam Jan, wife of Muhammad Rashid and daughter-in-law of Suleman Khan and Mst. Gulab Jan, respondents. Mst.
Aslam Jan was deeply burnt on the night of 7th September, 1980 and expired on 11th September (A.N) in C.M.H. Rawalakot. Her statement was recorded by the Magistrate 1st Class, Rawalakot on 8th September at 10 a.m. In the hospital, in presence of the doctor. In her statement (dying declaration), she narrated that she was married to Muhammad Rashid, 4 years earlier. There was no issue out of the wedlock but presently she was pregnant for the last 9 months. Her relations with the husband were very good and they started living separate from their in-laws since Magh (February) last and after lapse of 4 months, her in-laws compelled her to live with them. Mst. Gulab Jan, her mother-in-law, persuaded Muhammad Rashid respondent, the husband of the deceased, to turn the deceased out of the house as the deceased was disliked by her mother-in-law. Last night i,e, on the night of 7th September, at the time of going to bed, her parents-in-laws quarreled with her and attempted an assault. She ran away but was overpowered by Mst. Sabir Jan, wife of Sarwar, and Mst. Nisha (Nishat Begum). Meanwhile. Mst. Gulab Jan arrived with an oil-can, sprinkled oil on the deceased with the remarks that if she did not leave the house, then she had to go otherwise and instantaneously set her on fire. It was disclosed that the father-in-law and other members of the family, were partisan to the act of mother-in-law of the deceased. Mst. Gulab Jan was incited to do so by her husband as he could not do it out of fear of defame. On conflagration, she (deceased) raised hue and cry which attracted the immediate neigbours, as a consequence, Muhammad Aziz son of Kalla, Hamid and his two grown-up sons, arrived on the scene. She (deceased) narrated the whole incident to them, by ascribing Mst. Gulab Jan sprinkling oil on her and setting fire. Suleman Khan, her father-in-law, refused to take her (deceased) to the hospital but on persuation of Aziz, Hamid, Latif and others, and their asking him as to what answer he would give to her heirs that why she was not given medical treatment, her father-in-law, husband and others brought her to the hospital. The dying declaration was recorded by Raja Lal Hussain Khan, Revenue Assistant, Magistrate 1st Class, Rawalakot. Two days after, i,e, 11th September, she (deceased) gave birth in the hospital, to a dead child.
3. The trial Court convicted Mst. Gulab Jan on the charge of murder of Mst. Aslam Jan, deceased and awarded her life imprisonment. The other accused respondents were acquitted as, in opinion of the Court, their guilt was not proved beyond reasonable doubt.
4. The primary evidence in the case is the dying.Declaration of the deceased. Rest of the evidence was adduced to corroborate the dying declaration. A dying declaration is admissible as a relevant piece of evidence in the light of the provisions of section 32 of the Evidence Act. In Famous Works, "Principles and Digest of the Law of Evidence" by M. Munir (Pakistan Edition), at page 385, some of the tests for determining the genuineness of the dying declaration, were listed as:-
(i) Whether the maker had the physical capacity to make the dying declaration;
(ii) whether the maker had the oportunity to recognize the assailants;
(iii) whether there were chances of mistake on the part of dying man in identifying and naming his assailants;
(iv) whether it was free from prompting from any outside quarter and was not inconsistent with other evidence and circumstances of the case; and
(v) whether the witnesses who heard the deceased making statement, heard him correctly and whether their evidence can be relied on.
' It was further described that if the dying declaration stands the normal tests for judging its veracity, it becomes a whole reliable piece of evidence and it can safely be accepted as a genuine and true statement of the maker. If the dying declaration is found to be genuine and true, it can by itself from a satisfactory basis for conviction. The dying declaration is a piece of evidence which is not tested in cross-examination. The maker of the statement not being subject to cross- examination, the manner in which he receives a question and replies it, the manner in which he faces the cross-examination and meets the objections affecting his veracity and such other factors by which the human judgment is assisted, are all absent. It is, therefore, in consonance that the Court should carefully scrutinize all the physical circumstances as they appear from the evidence, to reach a conclusion with a degree of certainty that the account given by the deceased and the manner in which he met his death is worthy of belief. Hence in order to be the sole basis for conviction on dying declaration alone, utmost care must be taken by the Court in considering the surrounding circumstances and comparing them with the statements in the dying declaration for safe dispensation of justice. To find out the truth or falsity of a dying declaration, the case has to be considered in all its physical environments and circumstances to find out how far the evidence or its different parts fit in with the circumstances and possiblitites that can safely be deduced in the case. Identical principles were listed by Mr. Justice Sinha, J. (as he then was) who recorded the judgment for the Court, in Khushal Rao's case PLD 1958 SC (India) 203 wherein it was observed as under:- "It cannot be laid down as an absolute rule of law that (1) dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that such case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is weaker kind of evidence than other pieces of evidence; (4) that dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character; and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night, whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.
' Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination.
But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration.
' If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the Court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities, referred to above or from such other infirmities as may be disclosed in evidence in that case "
' In identical proposition raised, Mr. Justice A.R. Cornelius, Chief Justice of the Supreme Court of Pakistan (as he then was) expressed the observations of the Court in Abdul Razik's case PLD 1965 SC 151, in the following manner:- "---The man who made these statements did not appear before the trial Judge. The usual aids to belief or disbelief, namely, the appearance of the face of the witness as he makes a statement, the manner in which he receives a question, considers his reply and states it, the manner in which he faces cross-examination and meets objections affecting his veracity, and such other factors by which the human judgment is assisted, are all absent. There is only the bare record on paper of what he said to two persons in the brief time which elapsed between the firing and his death.
Neither of the persons who recorded his statement was asked whether he thought the man was saying something which he had been prepared to say, something which was artificial, or, on the contrary, judging by his expression and the way he spoke, that he was telling the simple truth. Yet, this being the only evidence available, it is the duty of the Court to decide whether or not they can believe it. To accept it without considering the surrounding circumstances would be totally inconsistent with the safe dispensation of justice. To accept it on consideration of expressions of opinion regarding similar declarations in precedent cases, even if those opinions are accompanied by words indicating reliance on some principle of law, is no less dangerous. Only after the most careful scrutiny, applied to all the physical circumstances as they appear from the evidence, is it possible to decide whether it can be said, with the degree of certainty which is made obligatory for reaching a conclusion of guilt, that the account given by the deceased of the manner in which he met his death is worthy of belief."
5. It is evident from the aforesaid tests that the evidence resting on dying declaration is to be appreciated with due diligence, to fix the liability. Among these tests, it is noticed that Court has to keep in view whether the dying declaration was free from prompting from outside quarters and was not inconsistent with the other evidence and circumstances of the case, in addition to the integrity, demeanour and veracity of the person making such dying declaration. In the present case, it is reflected from the dying declaration that the deceased was not enjoying good relations with the respondents. She was disliked by her in-laws, as a result, she was constrained to desert the house on various occasions. The tendency of cross-examination to the prosecution witnesses equally suggests that the relations between the parties were unhappy and bad. The suggestions introduced by defence in the cross-examination, painted a picture of the deceased as a person of loose-character, indulging in flirtation, resulting in hatred and aversion between the deceased and her in-laws. In presence of the enmity, hatred and aversion between the deceased and the respondents, it is not deemed safe to rely on the dying declaration, without its independent corroboration. In Ghulam Jilani's case 1970 P Cr. L J 619, Mr. Justice Atta Ullah Sajjad, J (as he then was), recorded opinion of the Court as under:- "The consideration for which some sanctity is attached to the dying declaration is that a man while he is preparing to face his Maker will not tell a lie and falsely involve anyone. This, however depends upon the sense of accountability of a person to his Maker and varies from man to man. There have been a number of cases in which dying declarations were found to be entirely false. Of course, there is no rule of law which says that no conviction can be based on a dying declaration without corroboration but a rule of prudence has been evolved by the Courts for safe dispensation of justice that ordinarily when a number of persons have been involved and there is a background of enmity between the persons making the dying declaration and the accused, the rule regarding seeking of corroboration should be invoked."
' In the aforesaid case, Fateh Khan deceased who jointly owned a piece of land, the subject of dispute, was attacked by Ghulam Jilani and his associates. The incident was seen by some of the eye-witnesses but the deceased also made a statement (dying declaration). The trial Court accepted the dying declaration supported by the testimony of the eye-witnesses and recorded conviction of the accused. In High Court, on analysis of the dying declaration, it was observed, in the light of the facts of that case, that the dying declaration could not be placed on higher pedestal than the testimony of interested witnesses. Thus, those against whom the dying declaration was corroborated by convincing evidence, were held liable for the murder and those against whom no such independent corroboration was found, were acquitted of the charge.
' In Muhammad Latif's case PLD 1970 SC 406, it was observed that as all the eye-witnesses were present in the hospital when the dying declaration of the deceased was recorded, the possibility that the deceased was tutored by those persons could not be ruled out.
' In Abdul Rehman's case PLD 1971 Dacca 79, the tests listed above for determining the genuineness of the dying declaration were kept in view and on satisfaction of the learned Judges that the dying declaration was genuine and unfettered, the conviction on the charge of murder recorded by the trial Court, was sustained.
6. In the instant case, the incident took place on the night of 7th September, 1980, at the residence of the parties. According to the dying declaration, Mst. Aslam Jan, when set on fire, raised hue and cry which attracted the neighbours who arrived on the scene and they were told the details of the incident. She named Aziz, Hamid and his two grown up sons, who immediately arrived on the scene to whom she narrated the whole incident. Out of these persons, Hamid Azam and Muhammad Aziz appeared as prosecution witnesses. Hamid Azam deposed that on his arrival in the courtyard after morning prayer in the mosque, he was asked by Suleman Khan, respondent, to reach quickly. On his arrival on the scene, he found that a hand of Suleman Khan was burnt. He enquired about it from Suleman Khan who pointed towards Msf. Aslam Jan lying down outside the premises, with a quilt over her body. He found that her body was completely burnt and on his inquiry, he was told that she (deceased) did so as she was fed up with the treatment of her in-laws who did not like her stay in the house. On this, he turned round to respondents as to why she was ill-treated by them and was answered that she was According to prosecution, Hamid Azam, resiled from his statement before the police, as such the Public Prosecutor by drawing attention of the Court to such statement, requested to declare the witness hostile and to allow him to cross-examine him (witness). On perusal of the police statement of the witness, the request of the prosecution was turned down. In answer to a question in cross-examination of the defence counsel, the witness further stated that Mst. Aslam Jan was divorced by her previous husband and this was her second marriage. She deserted her husband on many occasions and was persuaded by respectables of the villages to live with her husband. He denied to have been informed by the deceased that she was burnt by the respondents, as a result of their preconcert. Abdul Aziz, another person named in the dying declaration, rendered the identical account of the prosecution version. It was requested by the Public Prosecutor to declare him hostile on account of his deviation from his police statement but the request was overruled. Thus, both the witnesses named in the dying declaration rendered a different account of prosecution story. The dying declaration was not corroborated by the testimony of these eyewitnesses.
6-A. The other set of prosecution evidence, produced in support of the dying declaration, consists of testimony of Hay. Muhammad Rahim Khan, brother and Mst. Shah Begum, mother of the deceased. It was disclosed in the statement of Muhammad Rahim Khan that at the time of incident, he was posted at 'Tatta pani' where he received the information and arrived in the hospital on 8th September, 1980 at 3-30 p.m. He was told by Mst. Aslam Jan, his sister, that she was burnt by Mst. Gulab Jan in connivance with Suleman Khan, Muhammad Rashid, Mst. Sabir Jan and Mst. Nisha (Nishat Begum), respondents. These witnesses gave true account of the prosecution version, as such corroborated the dying declaration as to cause of death. Mst. Shah Begum, mother of the deceased lived in a different village at a considerable distance and she was informed by Muhammad Asif alias Aasi, D.W., at the instance of the respondents. She arrived directly in the hospital where Ms'. Aslam Jan was under treatment. She also supported the dying declaration by giving details of the incident, as told to her by the deceased. The testimony of these two witnesses supports the dying declaration in material particulars. But their testimony is to be appreciated in view of their relations and interest in the deceased and hostility towards the respondents. It was suggested by the defence that Mst. Aslam Jan changed the earlier version of the incident on prompting of Mst. Shah Begum who, according to defence, tutored the deceased to involve the respondents. It was accepted by both the witnesses that Mst. Aslam Jan was previously married to a cousin who gave her divorce on which she contracted a second marriage with Muhammad Rashid Khan, respondent. It was accepted that the second marriage was not successful on account of ill-treatment and undesirable behaviour of the in-laws towards the deceased. She was turned out of the house on various occasions when she resided with her parents and subsequently, on reconciliation, the deceased lived with her husband. They admitted that four months earlier, to the incident, the deceased was turned out of the house but later on, she came back, on the intervention and persuation of elders of the family. The evidence is full of the incidents, constituting unhappy relations between the parties. The past relationship of the parties coupled with the incident of burning of the deceased who was pregnant at the time of incident, obviously was the cause of additional hostility and aversion against the respondents.
7. It is noticed in the preceding part that according to the defence, Mst. Shah Begum was already present at the time of recording of dying declaration. It was persistently suggested that Mst. Shah Begum, on receiving information of the incident, instantaneously ascribed the cause of death to the respondents and repeated it on her arrival in the hospital, in presence of the witnesses. In view of the conduct of Mst. Shah Begum, it was pointed out that, in fact, she prompted and tutored Mst.
Aslam Jan to involve the respondents. We have already examined the magnitude of ill-relationship and hostility of the parties and in presence of such a state of affairs, the possibility of prompting Mst. Aslam Jan by her mother, in the hospital, before arrival and recording of dying declaration by the Magistrate, cannot be ruled out. Thus, the dying declaration recorded by the Magistrate, cannot be accepted credible so as to record conviction on the charge of capital offence. Likewise, the testimony of the two witnesses who are related and interested in the deceased and are found hostile to the respondents, cannot be accepted as an independent corroborative piece of evidence. In other words, the dying declaration having not been found free from the possibility of having made by tutoring the deceased by her mother. This tainted piece of evidence cannot be said to get corroboration by another tainted piece of evidence of the interested witnesses.
8. The trial Court failed to take the aforesaid factors into consideration. It believed part of the dying declaration to hold Mst. Gulab Jan guilty of murder and disbelieved part of it in respect of the rest of the respondents. We do not appreciate the apporach of the trial Court by which part of the dying declaration was accepted and part of it was rejected for unknown reasons. The fact of the matter is that the dying declaration, if proved genuine and credible, is to be accepted as a whole, otherwise it has to be relied upon to the extent it finds independent corroboration. We have seen that the two sets of evidence H to support the dying declaration were produced by the prosecution.
The first set of such evidence resting on the testimony of Hamid Azam and Abdul Aziz, does not corroborate the dying declaration at all. The other set of evidence, consists of the testimony of close relations of the deceased whose interest in the deceased and hostility towards the respondents patently leads to the inference against the prosecution. Therefore, unless the dying declaration was corroborated in material particulars, it could not be partly accepted against Mst.
Gulab Jan.
9. For the foregoing conclusion, we are satisfied to disallow the charge against the respondents.
The conviction of Mst. Gulab Jan is set aside and her appeal is allowed. The appeal against the acquittal filed by the State being devoid of force, is hereby dismissed.