' MUHAMMAD AFZAL LONE, J.---Ghulam Farid, respondent, was tried for the murder of Mst. Shafia Begum alias Shamim Akhtar, aged 25, who was the wife of his real brother. By judgment dated 6-7- 1980 rendered by the learned Sessions Judge, Jhelum, he was convicted under section 302, P.P.C., sentenced to death, and fine of Rs,2,000, in default of payment of fine he had to suffer rigorous imprisonment for one year.
2. The respondent preferred an appeal, which alongwith the reference made by the learned Sessions Judge for. Confirmation of the death sentence, was heard by a Division Bench of the Lahore High Court, comprising Rustam S. Sidhwa J. (as he then was) and Lehrasap Khan, J. The latter concurred with the conviction and sentence recorded by the learned. Sessions Judge.
However, in the opinion of Rustam S. Sidhwa, J. The respondent was entitled to the benefit of doubt.
He thus accepted the appeal and set aside the conviction and sentence of the respondent. In view of the difference of opinion between the two learned Judges, a reference was made to a third learned Judge, Saad Saood Jan, J. (as he then was) who vide judgment dated 28-6-1983 agreed with Rustam S. Sidhwa, J. And held that the case against the respondent was not proved.
Accordingly, the respondent's conviction and sentence were set aside and he was acquitted of the charge against him. This judgment is under challenge before us.
3. According to the prosecution version, the occurrence took place on 16-11-1979 at 4 p.m. In the area of Village Daee-Wal, Police Station Sohawa. The deceased and his mother-in-law Mst. Daulat Bi (P.W. 6) were coming to their home after mud-plastering. The latter stopped to answer the call of nature. The respondent wanted to outrage the modesty of the deceased, but she declined to yield to his lust. On her refusal the respondent inflicted a blow with a Kamanidar knife on her abdomen.
She fell down and the respondent caused her further injuries with that knife. Meanwhile, Mst. Daulat Bi was attracted to the place of occurrence and she tried to save the victim, who was removed to the Hospital District Headquarters, Jhelum, where she was medically examined by Dr. Abdul Majid (P.W.7) and found to have suffered 9 incised wounds on different parts of her body. The said Medical Officer recorded the dying declaration of the deceased at 16-11-1979, at 7-25 p.m., on the basis whereof a formal F.I.R. Was recorded at the Police Station Sohawa on 17-11-1979 at 12-20 a.m.
She succumbed to her injuries on 17-11-1979 at 8-15 a.m.
4. The investigation was conducted by Raja Munawar Hussain (P.W.3). The respondent, who in the meantime had absconded, was arrested from Faisalabad, and produced before the Investigating Officer on 24-11-1979. He led to the recovery of knife from a field owned by one Malik Nadir.
5. 'Apart from the evidence of formal witnesses, the prosecution examined Mst. Daulat Bi (P.W.6), but she did not support the prosecution version and was declared hostile, and cross-examined.
The learned trial Court relied upon the dying declaration of the deceased as well as the testimony of Dr. Abdul Majid (P.W.7) and maintained that the deceased had no previous enmity with the respondent and no motive to implicate him. That the Medical Officer who recorded the declaration was an independent and disinterested person, which embodied a straightforward version of the occurrence and found corroboration from the medical evidence, and that there was nothing on the record to suggest that it was the result of the tutoring of the deceased by her relatives. The trial Court noticed that as per dying declaration the respondent, who was a brother of the deceased's husband and unmarried, tried to outrage her modesty, and when she refused to abide with his lust he injured her with a Kamanidar knife. From the material on the record it was concluded that the offence of murdering the deceased was proved against the respondent.
6. In the 'High Court, Lehrasap Khan, J, took the view that the dying declaration gave a truthful version of the occurrence and was entitled to full weight and did not find anything on the record to dub the dying declaration as tainted one. As identity of the accused-respondent was also not in doubt, this further persuaded him to concur with the verdict of the trial Court.
7. However, from the statement of Dr. Abdul Majid (P.W.7) and other material, Rustam S. Sidhwa, J.
Noticed that the deceased was in semi-conscious condition when her dying declaration was recorded, and a number of her relatives including females were at that time sitting around her. In these circumstances, in the opinion of the learned Judge, the possibility that she was prompted to make the declaration, as it was, could not be ruled out.
8. The referee Judge (S.S. Jan, J.) also came to the conclusion that when the deceased was brought to the Hospital she was in a semi-conscious condition; the Medical Officer, after recording the dying declaration, did not read out the same to her. It was also noticed that the deceased did not specifically name the respondent as her assailant, and all that she said was that she had been attacked by her 'Kanwara jeth', but the prosecution did not produce any evidence to connect this expression with the respondent. During the trial it also came on the record that according to the respondent he had two brothers elder to him; one of them was unmarried and the other was widower. It was also. Discovered that in the course of his statement under section 342, Cr.P.C. The dying declaration was not put to the respondent to give him an opportunity to explain his position with regard thereto. The learned referee Judge further observed that the prosecution did not lead any evidence to establish that the respondent's absence from the village was aimed at his abscondence after the commission of the offence.
9. Leave to appeal was granted to examine whether the acquittal of the respondent was against the weighi and quality of the prosecution evidence and A based on correct legal principles governing dispensation of criminal justice.
10. The fate of this appeal wholly hinges on the weight to be attached to the dying declaration, which is the only piece of evidence against the respondent-accused. For proper evaluation of the dying declaration, the surrounding circumstances in which it was made and the contents thereof have B to be kept in view. It is in the statement of Dr. Abdul Majid that at the time of making the statement,'the declarant was in semi-conscious condition and it was not read over to her after recording it. The statement of the doctor further shows that 5 or 6 persons including 3 ladies were present at the time of recording the dying declaration. The assailant is not named therein, but the deceased described him as "Kanwara Jeth". The learned counsel for the appellant has vainly endeavoured to connect this expression with the accused and contended that he is unmarried and the husband of the deceased is his only brother. In this behalf our attention was also drawn to the statement of Mst. Daulat Bi.
11. It is evident from the deposition of Dr. Abdul Majid that the deceased IC was not in full possession of senses, when her statement was recorded. To impart veracity to a dying declaration, it is necessary that the declarant should D be free from external influence and not crowded around by unauthorized persons while making the statement. The doctor admits that 5 or 6 persons were sitting around the deceased when she made the declaration. The record before us does not indicate that necessary steps were taken that no influence was brought about on the deceased.
12. Apart from the factors alluded to above, which essentially rob away evidential value of the dying declaration; there is another impediment in placing reliance on it. The prosecution has not proved that the accused alone was the "Kanwara Jeth" of the deceased. According to the Urdu version of Mst. Daulat Bi's statement "(sic)." Upon this statement, the possibility that she has other sons cannot be ruled out. In this context, reference to the statement of the accused under section 342, Cr.P.C. Renders the presence of nexus between him and the dying declaration all the more doubtful. He clearly stated that he has two brothers, who are also unmarried; one of them is a bachelor and the other a widower. In these circumstances, it would be difficult to link the dying declaration with the accused and rely upon the same for his conviction. In this case recovery has been discarded, as the knife was not blood-stained and was recovered from a place not in possession of the accused. In the circumstances of the case, corroboration is necessary before conviction is based on the dying declaration, which is missing in this case. It, therefore, cannot form sole basis of conviction of the accused..
13. After having given our careful attention to the reasons which weighed with the learned Judges in the High Court in acquitting the accused, we are of the view that the impugned judgment is founded on proper appraisal of evidence and not violative of any legal principle governing the dispensation of criminal justice.
' There is no merit in this appeal, which is hereby dismissed.