ABDUL UHANI KHATTAIC, J.-By his order of 11th March 191,5, the Sessions Judge, Sialkot, convicted Muhammad Rashid (28), under section 302 of the Pakistan Penal Code for the murder of Mst.
Zohran Begum, deceased, and sentenced him to death. By the same order, Muhammad Rafiq (24), who was also tried for the same offence, was acquitted. Muhammad Rashid has appealed against his conviction and sentence. The reference for confirmation of the sentence of death under sec-- tion 374 of the Code of Criminal Procedure is before us. This judgment will dispose of both the reference and the appeal.
2. Mst. Zohcan Begum and her husband, Muhammad Yasin, lived together with Muhammad Rashid, Muhammad Rafiq and their wives in the same house in Jandar Bazar, Sialkot. Muhammad Yasin is the brother of Muhammad Rashid and Muhammad Rafique, whose wives Mst. Sarwar and Mst.
Anwar are sisters inter se. On the 16th of June 1964, at evening time, there had been a quarrel of no serious consequence between Mst. Zohran Begum and the two sisters, Mst. Anwar and Sarwar. On the 17th of June 1964 at 9 a.m. Muhammad Rashid and Muhammad Rafique were incited by their wives against Afst. Zohran Begum and her husband, Muhammad Yasin, and they started abusing them to which Mst. Zohran retorted. 1t resulted into an attack on .Mohammad Yasin by Muhammad Rafi q and Muhammad Rashid, find the former was thrown to the ground. Mst. Zohran Begum in order to rescue her husband tried to intervene but was attacked by Muhammad Rashid with knife.
Mst. Zohran Begum withdrew and out of fear started running down stairs for safety and was chased by Muhammad Rashid, appellant; and gave her a blow with the knife in the stairs. On the cries of Mst. Zohran Begum, Rahim Bakhsh, her father-in-law Rehmat Ali, Haji Umar Bakhsh, and Muhammad Yasin, her husband; were attracted. She was taken to the hospital where she made the report Exh. P. S. At 10-40 a. m. Recorded by Abdul Karim A. S. 1. Which was incorporated into Exh.
P. S./1. The condition of the patient got worsened and her dying declaration Exh .P. J. Was recorded at 1 p.m. By Muhammad Jalil Khan (P. W. 3) Magistrate, Sialkot. Mst. Zohran Begum died the same day in the hospital at 10 p. m.
3. Dr. Ghulam Sarwar (P. W. 1) civil Hospital Sialkot, performed the post-mortem examination on the dead -body of Mst. Zohran Begum, deceased, on the 18th of June 1964, at 9 a.m. And found the following injuries on her person
(1) A repaired incised penetrating wound 1--" long obliquely situated on the back lumber region 2" from the mid line.
(2) An abrasion 1-- x 1" on the front of the right knee.
(2) An abrasion 1" x --" on the front of the left knee.
On internal examination the doctor found that peritoneum had a cut 1" long on the left back part.
Left kidney had 1" long and 5/8" cut deeply, on the back left part above pericle. Large intestine had a cut 1" long in the region of descending colon to its attachment of mesentery. Cause on death of the deceased was due to shock and haemorrhage from the cut of the left kidney and mesentery of large intestine and peritoneum as a result of injury No. 1. Injury No. 1 was sufficient in the ordinary course of nature to cause death of the deceased. Injury No. 1 was caused with the pointed sharp- edged weapon. Injuries Nos. 2 and 3 were simple, caused with blunt frictional force. All the injuries were anti-mortem. Probable time between injuries and death was about 12 hours.
On the 17th of June 1964, at 9-35 p.m. The same doctor examined Muhammad Yasin and found the following injuries on his person
(1) Contusion 1" x 1" on the top of the head.
(2) Abraded contusion 3" x 5/8" on the back.
(3) Abrasion 1" x 1" on the back of the chest, left side.
(4) Abrasion 1/3" x 1"8" on the back of the right middle finger.
(5) Red contusion 1" x 3/4" around the nail with detached partially nail and blood present underneath the big toe of the right foot.
All the injuries were caused with blunt weapon of 12 hours duration.
On the same day at 8-45 p.m. The same doctor examined Muhammad Rafiq, the acquitted accused. He had five injuries of minor nature.
4. The prosecution produced Mr. Muhammad Jalil Khan, Magistrate (P. W. 3) who had recorded the dying declaration (Exh. P. J.) and catagorically denied any prompting from any person to the deceased. The dying declaration of Mst. Zohran Begum, deceased, remains isolated as the witnesses to the occurrence named by her in the First Information Report did not support her.
Rahim Bakhsh, father-in-law of the deceased, who was mentioned in the report, was not produced as against his sons, the reason is obvious. Haji Omar Bakhsh another witness mentioned in the report was also not produced and Rehmat Ali P. W. Was declared hostile by the prosecution. It appears that the deceased had no roots in the family of her husband, therefore, it is not unnatural that her husband, Muhammad Yasin (P. W. 14) stated "When I returned within half an hour after purchasing meat, etc., I was told before entering the house that women of the house had fallen out with one another again, and that my wife had been injuried. On hearing this I fainted and fell down on the ground just at the foot of the stairs."
The Sessions Judge remarked in his judgment: "There is a proverb in Urdu in which the death of the wife has been likened to the hurt received on the elbow. Both are extremely painful in the beginning but the pain passes off very fast."
It is not at all surprising that Mohammad Yasin P. W. Has tried to favour the appellant, who is his brother, by denying his presence at the spot to witness the occurrence.
5. The learned counsel for the appellant argued before us that the conviction of the appellant based on the dying statement alone, without having been corroborated, is bad in law and that it is essentially tainted by the suggestions made to the deceased by Muhammad Rafiq (P. W. 13). As regards the value of the evidence of Muhammad Rafiq, we are not influenced by the evidence of this witness because his presence at the scene, or his arrival just after the occurrence is not mentioned by the deceased in her statement. If we accept his statement to the effect that the deceased had charged the appellant in his presence, then the point raised by the learned counsel is not totally devoid of force. His conduct of leaving the deceased in a precarious condition and his going back to his house to inform his relatives is not compatible with human conduct. Therefore, we reject his statement-to be used for the purpose of corroborating the dying declaration. Even if we assume that he had come before the dying declaration was actually recorded, any suggestion by him to the deceased to implicate any member of the house of which he is an outsider, cannot be accepted. Thus, there was no one to prompt the deceased for making a false charge against the appellant. Only one knife blow, caused to the deceased, has been attributed to the appellant.
By no means this can be a case of substitution. The deceased was fatally struck in the stairs, therefore, it cannot be argued that during the quarrel in the house some one else might have injured her. There were five minor injuries on Muhammad Yasin and Muhammad Rafiq (acquitted accused) each of 12 hours duration which can safely be used as a corroborative piece of evidence, as to the circumstances of the transaction resulting in the death of the deceased, wherein Muhammad Yasin has had a beating by his brothers.
6. Both the statements made by the deceased are consistent and corroborative of each other. The dying declaration was mad by her when she was in full possession of her faculties. We are convinced about the genuineness of the dying declaration and o the truthful version as to the circumstances of the death. Therefore, the conviction of the appellant can be safely based on the dying declaration alone. The necessity for corroboration arises not from any inerent weakness of a dying declaration as a piece of evidence, but from the fact, that the Court, in a given case, comes to the conclusion that the dying declaration itself is not free from infirmities. We believe the dying declaration to be true and genuine.
7. The question that falls for determination is the sentence that should be awarded to the appellant. As the initial quarrel ensued between the three brothers, therefore, it cannot be said that it was a plan to involve Mst. Zohran Begum. Probably she might not have even been attacked, had she not intervened and hurled abuses at the appellant. Since the murder was committed in the heat of passion, without premeditation, and one blow was inflicted (but there was no fight) therefore, we are of the opinion that the lesser of the two punishments provided in law will meet the ends of justice.
8. While maintaining the conviction of the appellant, we alter the sentence from death to transportation for life. The appeal is accepted to this extent only. The sentence of death is not confirmed.