1. MUHAMMAD YAQUB ALI, J.-The appellants have been found guilty of offences under sections 302, 366 and 37o read with section 34, P. P. C. And sentenced on the first count to death and to different terms of imprisonment on the 2nd and 3rd counts.
2. According to the prosecution the appellants forcibly abducted Mst. Jahanwar Mai deceased from a field in village Waddu Wala when she had gone to ease herself, took her to the bed of a nearby Nullah and committed rape on her. Eventually they assaulted her fatally with knives when she resisted the attempts made by the appellants to carry her away on a cycle.
3. The occurrence took place in the early morning of the 5th June, 1968. The cries raised by the deceased attracted Wali Muhammad (P. W. 2) and Ibrahim (P. W. 13). On their arrival the appellants made good their escape on the cycle carrying their respective blood-stained knives with them.
4. Mst. Jahanwar Mai was taken to Civil Hospital in a critical condition. Dr. Muhammad Afzal who examined her injuries sent ruqqa Exh. P. A. 2 to the S. H. O. Alipur at 11 a.m. Informing him that it was necessary to record the dying declaration of the injured woman. On the receipt of the informa-- petition Riaz Muhammad Khan A. S. I. (P. W. 10) who was posted as Muharrir made an entry in the daily diary at 11-05 a.m. And left for the Civil Hospital. On making oral inquiry from the doctor that Mst. Jahanwar Mai was in a fit condition to make a statement, the A. S. I. Recorded her statement Exh. P. A. At 11-20 a.m. It was countersigned by the doctor. According to the entries in the daily Roznamcha the A. S. I. Returned to the Police Station at 11-20 a.m. And sent the dying declaration to Police Station Jatoi through a Foot Constable for registration of a case against the appellants under section 307, P. P. C.
5. The formal F. I. R. Exh. P. A. 1 was recorded there by Abdul Aziz A. S. I. (P. W. 3) at 12-30 p.m.
6. Investigation in the case was undertaken by Malik Abdur Rahman A. S. I. Jatoi Police Station, (P. W.
7. 14). Mst. Jalanwar Mai died on the same evening whereupon the charge against the appellants was altered from section 307, P. P. C. To section 302 read with section 34, P. P. C. The accused were arrested on the 6th June, 1968. The blood stained chaddars worn by them were taken into custody and made into sealed parcels in the presence of 3 witnesses including the step-father of the deceased. The appellants further led to the recovery of a blood-stained knife each from their respective houses which were made into sealed parcels in the presence of the name witnesses.
8. According to the reports of the Chemical Examiner and the Sereologist the blood found on all these articles was of human origin.
9. During the trial all the material prosecution witnesses turned hostile. It was apparent that they had been won over. The trial Judge according did not rely on them and also discarded the evidence of incriminating recoveries from the appellants. He relied however on the dying declaration of Mst.
10. Jahanwar Mai deceased and convicted and sentenced the appellants as aforesaid.
11. On appeal and reference the High Court maintained the conviction of the appellants and confirmed the sentences of death awarded to them by the trial Judge. The learned Judges also relied solely on the dying declaration of the deceased.
12. Leave to appeal was granted to consider the plea that the circumstances in which the dying declaration was recorded did not warrant that any reliance should have been placed on it.
13. We have heard Mr. Aftab Farrukh in support of the appeal. His main contention was that the doctor who appeared as a prosecution witness in the case did not say in so many words that the statement Exh. P. A. Was recorded in his presence or that he had put his signatures on it. It was also contended that although the offices of the Tehsildar, Naib-Tehsildar and Deputy Superintendent of Police were adjacent to the Civil Hospital, Alipur no proper reason was given as to why none of them was called to record the dying declaration.
14. There is little force in the contentions raised in support of the appeal. As mentioned earlier Mst.
15. Jahanwar Mai was brought to the Civil Hospital Alipur at 11-00 a.m Her condition was so critical that the doctor Incharge at once sent ruqqa Exh. P. A. 2 to the S. H. O. Of the local Police Station. On the receipt of the ruqqa P. W. 10 Riaz Muhammad A. S. I. Lost no time to reach the Civil Hospital and by 11-20 a.m. He had recorded the statement Exh. P. A. Of Mst. Jahanwar Mai By 11-30 a.m. The statement had been sent to the Police Station Jatoi for registration of the case against the appellants. The doctor who appeared as P. W. 10 before the Committing Magistrate stated that the injured woman was `conscious to give dying declaration and that on verbal inquiry of A. S. I. Riaz Muhammad. I had opined that Mst. Jahanwar Mai is fit to make a statement.' There are', five documents on the record which bear the signature of Dr. Muhammad Afuay Medical Officer, Alipur ruqqa Exh.
1. Dying declaration Exh. P. A. The injury statement of Mst. Jahanwar Mai Exh. P. K. Ruqqa Exh. P. K. 1 informing S. R. O. Alipur that Mst. Jahanwar Mai had died at 8-00 p.m. On the same day and the post-mortem examination report Exh. P. N. It is visible to naked eye that all the five signatures are in the same hand. The mere omission on the part of the Public Prosecutor and the Inquiry Magistrate to ask the doctor whether he was present at the time when Exh. P. A. Was recorded and whether h-- had pit his signatures on it did not therefore detract from the fact that he was present when the dying declaration was recorded on his confirmation that Mst. Jahanwar Mai was id a fit condition to make the statement Exh. P. A. Further his signatures at the foot of the statement leave no room for doubt that be was present when the statement was recorded.
16. There is no evidence, that Mst. Jahanwar Mai was tutored by her relatives to falsely implicate the two appellants. They bore no grudge against Abdul Ghafoor appellant at all. Mushtaq Ahmad appellant had abducted Mst. Jahanwar Mai prior to the occurrence but so far one can see her step-father Wahid Bakhsh who accompanied her to the Civil Hospital Alipur had no love lost for her as he did not even appear as a prosecution witness in the case to depose about the recovery of blood-stained chaddars from the persons of the appellants and the recovery of blood-stained knife each from their respective houses. It further transpires that the statement Exh. I was recorded by Riaz Muhammad A. S. I. In the Operation Theatre of the Civil Hospital, Alipur and no relative of her was present near of her at that time. We accordingly agree with the Courts below that it was safe to place reliance on the dying declaration made by Mst, Jahanwar Mai in which she had charged both the appellants far forcible abduction, rape and fatal assault with knives.
17. The dying declaration was further corroborated by finger nail injuries found on the cheeks and neck of Mushtaq appellant. These injuries indicated that the deceased had resisted the act of rape. In our opinion the recovery of blood--stained chaddars and knives has also been wrongly excluded from consideration by the Courts below. It was obvious that the eye-witnesses and the witnesses to the recoveries had been won over by the accused. In the circumstances reliance could be placed on the statement of Malik Abdur Rahman A. S. I. (P. W. 14) who had conducted investigation in the case. The learned Judges were inclined to do so but considered that the omission in the daily diary about the receipt of the sealed parcels in Police Station Jatoi on 6-6-1968 made the evidence of recovery suspect. Reference was made to the statement of Muhammad Sharif Head constable who appeared as D. W.
1. He had brought with him the daily diary of Police Station Jatoi dated 6-6- 1968 in which at serial No. 7 it was recorded that Allah Bakhsh Foot Constable P. W. 4 had returned to the Police Station along with the accused but there; E was no mention of his having brought any sealed parcels with him. It was ignored that receipt of sealed parcels and case property is entered in the Register Malkhana and not in the daily diary. That is why the defence did not call for Register Malkhana from which it could be positively inferred whether or not an entry existed in it that on 6- 6-1968 six sealed parcels were delivered by Allah Bux Foot Constable (P. W. 4) for deposit in the Mal--khana. There was no material omission in the record of the Police Station Jatoi on the basis of which the statement of Malik Abdur Rahman (P. W. 14)/ regarding recoveries of blood-stained chaddars from the possession of the appellants and the blood-stained knives from their homes could be rejected.) These recoveries furnished ample corroboration of the dying declaration of the deceased.