' NAZIR AHMAD BHATTI, J.---Deceased Muhammad Arshad resident of Mohallah Nainan Mandi, District Okara, who was working in Lahore, was travelling towards his village on the night of 18-5- 1990 and was taking some cash and some articles in connection with the marriage of his sister. He got down from the bus at about 1-00 a.m. At bus stop Haveli and started going towards his village on foot. When he reached the street in front of the house of Dr. Asghar, he was confronted by Mubashir Iqbal appellant herein, and accused Ghulam Murtaza alias Geega, both armed with daggers. Appellant Mubashir challenged him and ordered him to surrender whatever he had got.
Both the accused tried to catch him and on his resistance appellant Mubashir Iqbal inflicted dagger blow on his left side abdomen. Accused Ghulam Murtaza alias Geega also inflicted a dagger blow on his left abdomen. Deceased Muhammad Arshad raised alarm whereupon Sardar Ahmad and Muhammad Ahmad were attracted to the spot who saw the accused attacking him.
Appellant Mubashir Iqbal and accused Ghulam Murtaza gave the deceased one more dagger/injury each whereby he was injured on the front neck and left chest respectively and they also started giving him more daggers injuries. The deceased fell down whereupon accused Ghulam Murtaza injured him on the hip. While decamping from the spot both the accused snatched one samsonite hand bag which contained two ladies suits and a pair of shoes. He had identified both the culprits in the street light. In the meantime Maulana Mukhtar Ahmad also reached the spot and the other persons who had come to the spot took him to the hospital. Mian Ghulam Ahmad, Sub-Inspector reached the Hospital at 2-15 a.m. On the same night and he recorded complaint of the deceased for incorporation in the F.I.R.
2. It transpires that the condition of the complainant Muhammad Arshad became serious whereupon the same Sub-Inspector gave an application, copy Exh.PL, to P.W.7 Dr. Muhammad Arshad, who was attending the injured and the dying declaration of the injured was recorded by the doctor at 2-30 a.m. The dying declaration is copy Exh.P.D. Injured Muhammad Arshad succumbed to the injuries at 4-00 a.m.
3. P.W.7 Dr. Muhammad Arshad had also examined the injured Muhammad Arshad and had given him medical aid. According to that examination the injured had following injuries on his person:-
(1) An incised wound 2-1/2 c.m. x 1 c.m. Just above and lateral to the sternal notch on left side just above the medical side of left clavicle. Air seems to be coming out of wound. Depth cannot be calculated.
(2) An incised wound 3-1/2 c.m. x 1-1/2 c.m. Muscle deep on front and lower part of left arm.
(3) An incised wound 2-1/2 c.m. x 1 c.m. At lower and inner part of left arm and was muscle deep.
(4) An incised wound 3-1/2 c.m. x 2 c.m. Muscle deep on outer and upper part of left arm.
(5) An incised wound 2 c.m. x 1 c.m. Muscle deep in left axilla.
(6) An incised wound 1-1/2 c.m. x 1 c.m. Muscle deep at upper and outer part of left chest axilla.
(7) An incised wound 2-1/2 c.m. x 1 c.m. On lower part of left chest 1/2 c.m. Below left nipple, Depth not calculated.
(8) An incised wound 2-1/2 c.m. x 1 c.m. On lower part and front of left chest. Depth not calculated.
(9) An incised wound 3 c.m. x 1 c.m. On outer and lower part of left chest. Depth not measured.
(10) An incised wound 1-1/2 c.m. x 1/2 c.m. At left lumbar region. Depth not measured.
(11) An incised wound 1 c.m. x 1 c.m. On dorsal of left wrist joint.
(12) An incised wound 2 c.m. x 1/2 c.m. On left index finger.
(13) An incited wound 5-1/2 c.m. x 1 c.m. On front and lower part of right forearm and was muscle deep.
(14) An incised wound 2-1/2 c.m. x 1 c.m. On back of right chest 6 c.m. Away from mid line. Depth not measured."
' According to the opinion of the doctor all the injuries were caused by sharp-edged weapon within approximately one hour. Injuries Nos.2 to 5 and 11 to 13 were simple in nature while the other injuries were grievous. At that time the injured was semi-conscious. When the injured sccumbed to the injuries, the same doctor performed autopsy on his dead body and according to the opinion of the doctor fifth and seventh ribs on the left side were perforated, fourth intercostal space on back of right chest was perforated, fourth parital and viceral pleura were also parforated under injuries Nos.8 and 14, pleura cavity was full of blood, injury No,1 penetrating deeply cutting the underline muscles passing through and through the trachea. The doctor gave the opinion that the death occurred due to haemorrhage and shock due to injuries Nos.1, 7, 8 and 14.
4. The dying declaration, Exh.P.D. Recorded by the same doctor, is reproduced hereunder for the sake of better appreciation of the case:--- "Confidential Desp No,1/C RHE Haveli Dated 18-5-1990, time 2-30 a.m.
DYING DECLARATION {{URDU TEXT}}
5. Both the accused were arrested on 19-5-1990 and after investigation they were sent up for trial before the Sessions Judge, Okara who charged them under section 302/34, P.P.C. And section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. Both the accused pleaded not guilty to the charges and claimed trial.
6. It has also to be noted that one knife each was recovered at the pointation of both the accused on 24-5-1990 by P.W.14 Mian Ghulam Ahmad, Sub-Inspector/Investigating Officer from palm tree in the presence of P.W.12 Shabbir Hussain. On the same day one lady suit each was recovered from both the accused by the Investigating Officer in the presence of P.W.13 Riaz Ali.
7. The learned Sessions Judge recorded the prosecution evidence and statement of both the accused under section 342, Cr.P.C. But in the meantime the case was transferred to the file of Additional Sessions Judge, Depalpur who carried out further proceedings in the case and on the conclusion thereof convicted appellant Mubashar Iqbal and accused Ghulam Murtaza under section 302/34, P.P.C. By judgment dated 30-6-1992 and acquitted them of the charge under section 17 of the Hudood Ordinance. Both the accused were sentenced to undergo life imprisonment and to pay a fine of Rs,10,000 or in default to further undergo rigorous imprisonment for 2 years each. Aggrieved by the judgment, convict Mubashir Iqbal has come up to this Court with the appeal in hand. A Criminal Suo Motu notice No,48/L of 1993 was also issued to the appellant as to why the sentence be not enhanced. Judgment in the aforesaid appeal will also dispose of the suo motu notice.
8. The evidence against the appellant consisted of ocular testimony of two witnesses, P.W.1 Sardar Ahmad and P.W.2 Muhammad Ahmad but the same was disbelieved by the learned trial Judge, and dying declaration and recoveries from both the accused. However, the knives were not sent to the Arms Expert and the ladies suits were not identified. It shall thus be seen that the real evidence against the appellant consisted only of dying declaration of injured Muhammad Arshad. No doubt a dying declaration can form basis of conviction, provided it rings true and is free of any doubt, was made without any interference from other persons and was made by the deceased consciously. We have, therefore, to examine the contents of the dying declaration and its evidentiary value in the light of the aforesaid principles.
9. The occurrence took place at about 1.00 a.m., the injured was taken to the Hospital within 15 minutes and he was provided medical aid by a doctor within the next half hour, the Investigating Officer had also reached the hospital and seeing the condition of the injured moved application at 2.00 a.m. For recording his dying declaration and the same was recorded within the next half hour and one and half hours thereafter the deceased succumbed to the injuries.
10. P.W.7 Dr. Muhammad Arshad, who had provided medical aid to the deceased complainant, recorded the dying declaration. When at about 1-45 a.m. He had examined the injured, the latter was in a semi-conscious state. This would show that the injured had not completely become unconscious when his dying declaration was being recorded. The doctor stated during the trial that he had recorded the exact words in the dying declaration which were spoken by the injured and he neither translated them in any other language, nor he added or omitted any word in writing the same. The doctor also stated that when he was writing the dying declaration no relative of the injured was either present near him nor any person interfered with what the injured had stated or with what he had recorded. The doctor also stated that the injured was at that time in possession of senses and was asked from him or was understood whatever narrated by him. After writing of the dying declaration the doctor obtained the thumb-impression of the injured thereon. Mirza Basharat Hussain, who appeared as P.W.10, Muhammad Hassan, Dispenser, who appeared as P.W.8 and Raj Muhammad attested the dying declaration as marginal witnesses. The latter was not produced as a witness whereas the former two completely corroborated and supported the statement of the doctor to the effect that the injured was in possession of his senses at that time and no other person either helped him or interfered with the contents of the dying declaration.
11. It was contended by the learned counsel for the appellant that the dying declaration did not ring true. We have considered this contention very seriously but we are unable to agree with the learned counsel. The perusal of the contents of the dying declaration would show that it is very precise in the narration of the facts. The contents of the dying declaration consist of the words actually spoken and used by the maker thereof and the fact that it has been recorded in the same language in which the words were spoken by the injured would show that every effort was made to record the true dying declaration. Two of the three witnesses, who were present at the time of recording the same had also clearly stated during the trial that the doctor had written the same words which were spoken by the injured.
12. It was contended by the learned counsel for the appellant that the offence had taken at the dead of night and the question of identification of the appellant was of great importance. The evidence in this respect was that the appellant belonged to the same place as that of the injured and was known to the latter already. It was also disclosed during the trial that there was a street light close to the place of occurrence. Also no evidence was brought on the record that the culprits had tried to conceal their features. The contents of the F.I.R. Had disclosed that the injured had identified the culprits from all the aforesaid circumstances. As such there was no question of mistaken identity nor the question of identification of the culprits was involved. Even otherwise no evidence was brought on the record to show that the injured had falsely Implicated the appellant.
It is not accepted of a person suffering from the pangs of death that he would implicate a person falsely. Generally people under imminent danger of death avoid speaking falsely on account of the fear that they are likely to immediately reach before their maker.
13. The learned counsel also stated that the injured was profusely bleeding and was not having a clear mind. In this respect we have checked the medical evidence and we find that the injured was bleeding only from 4 injuries when he was being medically treated and the doctor nowhere stated that the injured was profusely bleeding. On the contrary the medical evidence was that the injured was in possession of his senses when he was narrating the occurrence.
14. It was also contended by the learned counsel for the appellant that according to the testimony of the doctor the injured was in a state of semiconsciousness when he was being examined by the doctor at 1-45 a.m. And the dying declaration was recorded some time thereafter which would show that the injured was not in a state of consciousness to make the dying declaration as his condition may have further worsened. We have considered this contention also very seriously. The doctor had stated that the injured was in possession of his senses when he was narrating the incident to him. No interest of any kind of the doctor towards the injured was proved or brought on the record on behalf of the defence. As such there is no reason to disbelieve the testimony of the doctor in this respect.
15. It was next contended by the learned counsel for the appellant that the dying declaration was not corroborated by any other evidence. We are also unable to accept this contention for the reason that the injuries caused to the deceased were all incised wounds inflicted with a sharp- edged weapon and the injured had clearly stated that he was injured by the appellant and his co- accused by daggers. The medical evidence also showed that all the injuries were caused by sharp-edged weapon. As such there was ample corroboration of the dying declaration by the medical evidence.
16. It was next contended by the learned counsel for the appellant that conviction on sole dying declaration was not justified. This contention is without any foundation, legal or otherwise. If a dying declaration rings true and has been corroborated by any circumstantial evidence or any recovery, it can form the basis of conviction, although no ocular testimony may be available or may not have been accepted by the Court.
17. The learned counsel also contended that since the learned trial Judge had not believed the other ocular evidence, the dying declaration should have also not formed basis of conviction. This objection was also without any foundation, legal or otherwise. There is no prohibition under law for conviction of a culprit on the sole basis of a dying declaration if it rings true and its execution is proved.
18. We have gone through the dying declaration very carefully. It is a marvellous piece of evidence.
We have very rarely come across such a document produced in any trial. Its genuineness has been proved by its contents and by the language in which it has been written down. Very rarely dying declarations have been recorded in the same language as may have been used by the maker thereof. There is not an iota of doubt in its contents. No interest of any kind was proved against the doctor who recorded it. The witnesses who attested this document are both independent and uninterested. They neither had any interest with the injured nor any animous against the appellant.
No animous of the doctor against the appellant was also brought on the record.
19. For the aforesaid reasons we have come to the conclusion that the offence of the appellant in causing the murder of deceased Muhammad Arshad was proved from the evidence brought on the record in the shape of the dying declaration. Consequently he was appropriately convicted by the learned trial Judge. We also agree with the learned trial Judge that evidence in respect of the charge under section 17 of the Hudood Ordinance was not brought on the record and the appellant was appropriately acquitted of that charge.
20. The question of sentence has very much agitated our minds. Complainant Muhammad Arshad was brutally injured and done to death. However, since two persons had caused the aforesaid injuries and it was not known as what injury proved fatal, as such the sentence of life imprisonment imposed by the learned trial Judge appeared to be appropriate. Even otherwise the matter of sentence is the sole discretion of the trial Court. We do not, therefore, propose to interfere with the sentence. The appeal is dismissed accordingly. The appellant is also extended the benefit under section 382-B, Cr.P.C. The criminal suo motu notice also stands discharged.