RUSTAM S. SIDHWA, J.-This is an appeal by Latif appellant against his conviction under section 302, P. P. C. For causing the death of Mst. Saddiqa Begum passed by the learned Additional Sessions Judge, Sahiwal, on 29-7-76. By the said judgment the appellant was sentenced to death. He was also sentenced to pay a fine of Rs. 500, in default of which to suffer further R. I. For one year. The fine was directed to be paid, in case the sentence of death was commuted, to the legal heirs of the deceased.
2. Brief facts of the case giving rise to this appeal are as follows;--- At about 11-30 a.m. On 23-7-1973 Mst. Saddiqa Begum deceased came out of her kotha after having her meals. She bolted the entrance door and seated herself on a charpai lying in the courtyard. At this moment, the appellant duly armed with pistol, came into the courtyard and fired at her which hit her on the left side of the abdomen. She raised alarm. Mst. Sullan Budhi, case Muslim Sheikh, who was also present in the courtyard saw the occurrence. On the deceased's alarm, her husband Amir Muhammad P. W. Also reached the place of occurrence. The appellant fled away after firing at the deceased.
3. Mst. Saddiqa Begum deceased was first taken to the Civil Hospital, Okara. At 7-30 p.m. The Medical Officer there medically examined Mst. Saddiqa Begum who was then injured and found vide his medico legal report Exh. P. G. a fire-arm entrance wound J" in diameter on the left side of front of abdomen 1 f above and to the left of umbilicus f from the median line. The patient was under shock and pulseless. He found the injury to be caused by a fire-arm within 12 hours duration.
The Medical Officer on duty telephoned Manzoor Hussain S. I. P. W. I 1 at 8-15 p.m. Intimating that the deceased had been admitted in the hospital and arrangements should be made for her dying declaration to be recorded. Manzoor Hussain S. I. P. W. 11 immediately reached the house of Ch. Sultan Mahmood M. I. C. P. W. 7 and with him he went to the hospital, where the doctor delivered to Manzoor Hussain S. I. P. W. 11 ruqqa Exh. P. C. Which he had written out earlier and was to send to the Police Station, Saddar, for the recording of the dying declaration of the injured. It appears that at the hospital Manzoor Hussain S. I. P. W. I1 drafted the application Exh. P. D. Requesting the Magistrate to record the dying declaration, which he handed over to the Magistrate there. On the said application Exh. P. D. The Magistrate recorded his note Exh. P. D/3. Ch. Sultan Muhammad, M. I. C.
Then recorded the dying declaration Exh. P. E. Of Mst. Saddiqa Begum at about 9-00 p.m. After ensuring that the relatives and friends of the deceased were outside the verandah and at a sufficient distance from the cot of the deceased. Manzoor Hussain S. I. P. W. 11 sent the dying declaration Exh. P. E. With his endorsement Exh P. F. To the Police Station, Saddar. Okara for the formal registration of the case, whereupon F. I. R. Exh. P. F/1 was registered there at 9-45 p Ib. The same day by Muhammad Tufail, Moharrir. The doctor also handed over the medico legal report Exh. P. G. Of the deceased to Manzoor Hussain S. I. P. W.
11. On 24-7-1973 the Investigating Officer visited the place of occurrence in the morning. He inspected the spot and prepared a rough site plan Exh. P. H. On the same day he arrested Latif appellant and at his instance recovered revolver Exh. P. 2, one empty Exh. P. 3, ten live cartridges Exh. P. 4/1-10 which he sealed into a parcel vide recovery memo. Exh. P. A.
4. On 23-7-1973 Saddiqa deceased was shifted to D. H. Q. Hospital, Sahiwal where she was operated. She died on 25-7-1973. On 26-7-1973, Dr. M. A. Rauf, P. W. I conducted post-mortem examination on the-dead body of Mst. Saddiqa Begum at 10-00 a.m. Death in the opinion of the doctor was due to shock and haemorrhage from perforation of the intestines due to the fire-arm injury. On 28-7-1973, Muhammad Anwar produced his licence Exh. P. 1 of the said recovered revolver and the same was taken into possession vide memo, Exh P B. The Investigating Officer got prepared the site plan Exhs. P. K., P. K/1 by Farooq Ahmad draftsman on 6-8-1973. After completion of investigation, the appellant was challaned and sent up for trial.
5. At the trial the prosecution relied upon the evidence of the dying declaration of the deceased Exh. P. E. Furnished by Ch. Sultan Mahmood, M. I. C. P. W. 7, the eye-witness account furnished by Muhammad Amir P. W. 10, the evidence of recovery of weapon, of offence furnished by Manzoor Hussain S. 1. P. W. 11 and the medical evidence furnished by Dr. M. A. Rauf Bhatti P. W.
1. The appellant, in his statement under section 342, Cr. P. C_ pleaded not guilty to the charge and stated inter alia that; "Mst. Saddiqa Begum was having an afternoon nap on a cot when some unknown person fired at her. I have been falsely roped in merely because of suspicion by her husband who tutored her to make a statement against me in the hospital. The police has given up four eye-witnesses and the bullet which was recovered from the abdomen of the deceased did not match with the weapon of offence. The revolver was produced before the police by Muhammad Anwar P. W., who is the licensee of the said revolver."
He did not lead any evidence in his defence.
6. The learned Sessions Judge held the dying declaration Exh. P. E. Of the deceased duly proved and relying upon the statement of Muhammad Amir P. W. 10 as fully corroborating the dying declaration, he found the appellant guilty and convicted him under section 302, P. P. C. And sentenced him to death.
7. The appellant has now filed this appeal against his conviction and sentence and the learned Sessions Judge has also referred the case under section 374, Cr. P. C. For confirmation of the death sentence. This judgment will therefore dispose of both the appeal and the reference.
8. Learned counsel for the appellant has made a number of submissions with regard to the dying declaration Exh. P. E., the statement of the deceased's husband, Muhammad Amir P. W. 10 and that of the Magistrate, Ch. Sultan Mahmud M. I. C. P. W. 7 with the intent of showing that they throw grave doubts on the truth and veracity of the prosecution case. Learned counsel submitted that the dying declaration Exh. P. E. Suffered from such infirmities and the attending circumstances were such that it could not be made the basis for conviction, without strong corroboration. As regards corroboration, he submitted that the evidence of the deceased's husband Muhammad Amir P. W.
10, was contradictory to the dying declaration of the deceased on a number of particulars and in any case the husband was a chance witness and not a natural witness to the occurrence.
9. In respect of his submission that the dying declaration suffered from inherent infirmities and the attending circumstances were such that it could not be made the basis for conviction, without corroboration, learned counsel submitted that there was delay in taking the deceased to the hospital and the lodging of the F. I. R. Which was not adequately explained. He submitted that though the occurrence took place at 11-30 a.m., the injured was not taken to the hospital till late evening where she was medically examined at 7-30 p.m., that the S. I. Was not informed of the incident till 8-30 p m. And the F. I. R. Was not lodged till 9-45 p.m. It is submitted that the observation of the learned Additional Sessions Judge in his judgment that the F. I. R. Was lodged after the deceased was first taken to the hospital, in the hope that she would survive by medical aid, where she was operated upon and it was thereafter that the doctor sent the information to the S. H. O., Saddar, Okara, was wrong, considering that the operation was performed at District Headquarters Hospital, Sahiwal, on 26-7-1973 and not at Okara, as assumed by the learned Judge.
Further, the counsel submitted that the dying declaration Exh. P. E. Referred to Mst. Sallan Budhi, as a person who was present in the courtyard and saw the occurrence, but she was not produced by the prosecution. The dying declaration also stated that on the noise of the deceased, her husband arrived on the scene, which showed that her husband did not actually witness the occurrence but came afterwards. It was also pointed out that the deceased in her dying declaration stated that she had no enmity or acquaintance with the appellant, which statement seemed odd, unless it appeared that she was trying to suppress her immoral relationship with the appellant, in respect of which it was suggested that the husband of the deceased had himself killed his wife on seeing her and the appellant together in the courtyard. It was submitted that these words in her dying declaration were out of context. It was also submitted that the Magistrate who recorded the statement bad not taken sufficient steps to see that the relatives and friends were away from the deceased as not to be visible to her. The fact that they were 10 to 15 feet away and were visible to the deceased, suggested that they could influence her by visible signs from that distance: It was lastly contended that the conduct of the Magistrate in general in recording the dying declaration and preparing the report, were not totally above suspicion. It was pointed out that he could not remember if the deceased had made her statement in Punjabi or in Urdu, for, if it was in the former language, he was duty bound to furnish a certificate under section 364, Cr. P. C. That the statement he bad recorded in Urdu has been duly translated and explained to her in Punjabi and that is the absence of the same, a cloud on the genuineness of the statement had been cast. It was also pointed out that though Manzoor Hussain S. I. P. W. 11 had pointed out that he had not presented ruqqa Exh. P. C. Or application Exh. P. D. To the Magistrate at his residence before going to the hospital, the Magistrate in his order Exh. P. D/3 and in his evidence in Court had stated that application Exh. P. D. Had been presented at his residence by Manozor Hussain S. I. And that he had gone to the hospital after making note Exh. P. D/3. Since the Magistrate had made fake entries partially in his report relating to the recording of the dying declaration, his evidence could not be relied upon.
10. As regards the next contention regarding corroboration, learned counsel for the appellant drew our attention to the fact that the evidence of the husband Muhammad Amir P. W. 10 could not be relied upon as he was a chance witness. It was submitted that the husband in his evidence stated that he was returning to his house from a shop when he saw the occurrence, that his shop was at a distance of one acre from his house and that he was coming to his house to take some tools. Since he had no particular business to come to his house, at the relevant time, he was a mere chance witness. It was further stated that his statement and that of Mst. Saddiqa Begum deceased were contradictory. The husband submitted that he saw Latif appellant catching hold of the arm of his wife and trying to drag her towards him, which she attempted to get released. This fact was not mentioned by Mst. Saddiqa Begum. He submitted in evidence that it was incorrect that his wife was sitting on a cot when she was fired at and she did not get down from the cot and was not standing in the courtyard, whereas she stated that she was sitting on the cot when she was fired at. It was lastly contended that though Muhammad Amir alleged he had seen the occurrence, the evidence of Mst. Saddiqa Begum gave the impression that on her alarm, after the fire, the husband came to the spot. For these reasons it was submitted that the evidence of the husband was discrepant and totally worthless and that it could not be relied upon at all, much less to corroborate the dying declaration made by the deceased.
11. Other infirmities in the prosecution case were also pointed out by the learned counsel for the appellant, It was submitted that the natural eye-witnesses residing in the Khata where the deceased resided and who may have seen the occurrence, did not come forward to support the prosecution case. Mst. Sultan Budhi, whose name had been mentioned by Mst. Saddiqa Begum deceased herself in the dying declaration, and Muhammad Ashraf, who were named as eye- witnesses in the challan, did not come to support the prosecution case. As admitted by Muhammad Amir P. W. 10 the father and sister of the appellant took the deceased to the hospital on their cart, which conduct was unusual, unless the appellant was not then suspected of the crime. It was also submitted that there was no motive proved in the case.
12. Learned counsel for the State in answer to the contentions made on behalf of the appellant submitted that Mst. Saddiqa Begum had opportunity to see and identify the assailant, that when she made the dying declaration she was in a fit condition to make the same, that in the dying declaration she mentioned the appellant by name and clearly gave the details of the occurrence, that the Magistrate who had recorded the dying declaration had truthfully and honestly recorded the same as required by law, that before the dying declaration was recorded, all relatives and friends of the deceased were sent outside the verandah where she was lying and that the statement of the husband lends corroboration to the dying declaration of the deceased and the case stands duly proved.
13. With the assistance of the counsel for the appellant and the State we have gone through the evidence. The first material piece of evidence which falls for our consideration is the dying declaration Exh. P. E. Of Mst. Saddiqa Begum deceased. Learned counsel for the appellant on the basis of his Lordship Mr. Justice Dorab Patel's observations in Zarif v. State (PLD 1977 SC 612) desires that we should rule it out of consideration as there is no evidence that either the deceased who made the declaration or the Magistrate who recorded the same, were persons of unquestionable integrity whose evidence could be implicitly relied upon. In the first place, in Zarif v. State the ratio decidendi as to the manner in which a dying declaration has to be judged is to be found in the judgment of my Lord the Chief Justice Mr. Justice Anwar-ul-Haq, which has been concurred in by his Lordship Mr. Justice Muhammad Akram, where the learned Chief Justice has submitted that "a dying declaration stands on the same footing as any other piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the appreciation of evidence in criminal cases". The learned Chief Justice also observed that it cannot be laid down as an absolute rule of law, nor even of prudence, that a dying declaration cannot form the sole basis of conviction unless it is corroborated. Each cast has to be determined on its own facts keeping in view the circumstances in which the dying declaration is made so that the Court is satisfied that the same is true and genuine. In order to test the reliability of the present dying declaration, its intrinsic value and worth from an examination and close scrutiny of its contents, and its extrinsic value, from an appraisal of circumstances surrounding its making become necessary. In examining its intrinsic worth, the inherent consistency, genuineness and truth of the statement in the context o surrounding circumstances, the fact that the deceased was not tutored o motivated by hate or other mercenary motives to give an untrue account or substitute or falsely implicate persons in the crime, its credibility according to normal human standards and the absence of any inherent infirmity o weakness therein, all have to be appraised.
Similarly, in examining its extrinsic value, an appraisal of surrounding circumstances, e.g. That the deceased was in a fit condition to make the statement, that the declarant was not tutored, that the lapse of time between the incident and the making of the dying declaration does not warrant the inference that the deceased was influenced by third persons to change the story, that the credentials of the person who heard or recorded the dying declaration are beyond question, that the statement was faithfully recorded, that the technicalities of the law, where the same have to be complied with, were so adhered to, that the statement does not conflict with the medical evidence or the prosecution case, etc., would also have to be carefully examined. Though some of the point are common to both, they cannot be helped as in appraising one matter its interlink with the others, cannot be ignored.
14. In the above light, we will first examine the extrinsic value of the dying declaration Exh. P. E. From an appraisal of the circumstances surrounding its making.
15. First, it appears that though the deceased was done to death at 11-30 a.m., the dying declaration was not recorded till 9 p.m. And the F. I. R. In the instant case was not formally registered with the Police Station till 9-45 p.m. The Police Station is located 9 miles from the place of occurrence. The e cross-examination of Muhammad Amir P. W. 10, the husband of Mst. Saddiqa Begum deceased, shows that the deceased was taken on a cot by the appellant's father and sister to the Civil Hospital at Okara. They started from the village at 1-00 p.m. And reached the Civil Hospital Okara at 5 p.m. On the day of occurrence. Here she was medically examined at 7-30 p.m., but no F. I. R.. Was recorded by any of her relatives even thereafter and it was not till the dying declaration was recorded by the Magistrate at about 9-00 p.m. And it copy was sent to Police Station for the formal registration of the case, that the F. I. R. Was recorded at 9-45 p.m. The learned Sessions Judge is wrong in his observation when he stated that the delay in the F. I. R. Was justifiable as the deceased was first taken to the Hospital at Okara and her operation report was awaited for lodging the F. I. R.
Actually, the operation was conducted at Sahiwal much after the F. I. R. Was lodged at Okara, because after Mst. Saddiqa Begum was examined in the Civil Hospital, Okara, she' was shifted the same day late at night to the District Headquarters Hospital at Sabiwal where she was operated. All these facts show that there was great delay in lodging the F. I. R. And there was sufficient time and opportunity for the deceased to be tutored by one or more of the persons who had accompanied her to the Hospital, including her husband. Such great delay must, as held in Ghulam Muhammad v. State (1978 P Cr. L J 390) adversely affect the value of the dying declaration. Where possibility of tutoring intrudes and considering that great delay in the instant case facilitated such a process, the inherent strength attaching to the dying declaration becomes weakened.
16. Second, the circumstances in which the dying declaration came to be recorded calls for some comment. Manzoor Hussain S. I. P. W. 11 stated in his cross-examination that he received telephonic message from the doctor at Civil Hospital, Okara at 8-15 p.m. Informing him that the deceased had been admitted and that arrangement for her dying declaration should be made. The Sub- Inspector further admitted in cross-examination that he went to the residence of Ch. Sultan Mahmood M. I. C. P. W. 7 and on his request, the Magistrate accompanied him to the Hospital, where the doctor delivered to him the ruqqa Exh. P. C. This was the ruqqa which the doctor had already prepared for despatch to him informing him of the arrival of the deceased in the Hospital and requesting him to make arrangements for her dying declaration to be recorded. The Sub- Inspector further stated that he did not present any application to the Magistrate in writing at his residence to record the dying declaration of the deceased, but h drafted such an application Exh. P.
D. In the Hospital and handed over the same to him there, who thereafter recorded Mst. Saddiqa Begum's dying declaration Exh. P. E. Ch. Sultan Mahmood M. I. C. P. W. 7, however, in his evidence stated in examination-in-chief that Manzoor Hussain S. I. P. W. 1 I brought application Exh. P. D. To him at his residence as he was Duty Magistrate and the Sub-Inspector requested him to record the dying declaration of Mst. Saddiqa Begum, whereupon he accompanied the Sub-Inspector on a tonga to the Hospital. He stated that he reached the Hospital at 8-45 p.m. And went to the doctor, who led him to the cot of Mst. Saddiqa Begum deceased. He further stated that after having secured the doctor's certificate Exh. P. D/2 that Mst. Saddiqa Begum deceased was fit to make a statement, he sent away the police and the relatives of the deceased outside the verandah of the outdoor, and thereafter recorded the statement Exh. P. E. Of the deceased. The report of the Magistrate Exh. P. D/3 contains an entry showing that at 8-40 p.m. Manzoor Hussain S. I. Of Police Station, Sadar had presented a written application to him, whereafter they had proceeded to the Hospital on a tonga. The said entry bears the Magistrate's signature at Exh. P. D/3. The statements of the Sub-Inspector and that of the Magistrat regarding the place of presentation of application Exh. P. D. And the place of the recording of the note Exh. P. D/3 are contradictory to each other. The statement of Manzoor Hussain S. I. P. W. 11 appears to have a ring of truth, as it is more likely that both he and the Magistrate first proceeded E to the Hospital where later all the paper work was attended to. In this view of the situation, Ch. Sultan Mahmood M. I. C. P. W. 7 appears to have mad take entries partially in his report Exh. P. D/3 and full reliance cannot be placed generally on the veracity of his evidence.
17. Third, a few features touching upon the recording of the dying declaration which raise grave doubts about whether the deceased was not under influence when her dying declaration was being recorded, have presented themselves for examination. Ch. Sultan Mahmood, M. I. C. P. W. 7 stated in his examination-in-chief that he sent away the police and the relatives of Mst. Saddiqa Begum outside the verandah of the outerdoor where she was lying in an injured condition, before, recording her dying declaration, but in cross-examination he admitted that the relatives of the deceased, at the time of the recording of the dying declaration were at a distance of 12/15 feet from the cot of the deceased and that the cot of the deceased was visible to the relatives from that place and that the husband of the deceased who was carrying a child was also present amongst the relatives there. We are somewhat suspicious of this circumstance. Both Ch. Sultan Mahmood M.
I. C. P. W. 7 and Manzoor Hussain S. I. P. W. 11 also stated that before their arrival in the hospital, many persons were present around the cot off the deceased, including Muhammad Amir P. W.
10. The fact that amniel time had already passed since the occurrence facilitating the tutoring oil Mst.
Saddiqa Begum before her dying declaration was recorded, has already been referred to by us in an earlier part of this judgment. The fact that G Muhammad Amir P. W. 10 and other relatives were also 12/15 feet from the cot of the deceased and visible to her at the time of the recording of he dying declaration, does not totally exclude the possibility that the deceased was even then under some shadow of influence, facilitated by the presence o her husband who was visible to and close by her.
18. Apart from the fake entries made by the learned Magistrate in his report Exh. P. D/3 regarding the recording of the dying declaration another matter which has engaged our attention is the Magistrate's admission that he did not remember whether Mst. Saddiqa Begum deceased made her statement in Punjabi or in the Urdu form in which he had written out her statement. Now it appears to be. Strange that a Magistrate who could remember such minute details as to the circumstances surrounding the recording of the dying declaration, could not remember whether the deceased H had made her statement in Punjabi or Urdu. Assuming she had made the statement totally in Punjabi and understood the Punjabi language only, the Magistrate would have had to furnish a certificate under section 364, Cr. P. C. To the effect that her statement was translated into the language of the deceased and read over and explained to her, before she admitted and thumb-) marked the same, and if such a certificate was not appended, the dying declaration, would have lost much of its value. In Rehmat Bakhsh v. The State (1970 P Cr. L J 1292) it was held that where the deceased made a dying declaration in Bengali which was recorded by the Magistrate in English who did not append a certificate as required by section 364, Cr. P. C. That the dying declaration had been translated into Bengali and read over and explained to the deceased before she signed it, the same was held to throw a cloud on its genuineness. But whether Mst.
Saddiqa Begum spoke and understood only Punjabi or like average persons in the Punjab spoke Punjabi with a fair mixture of Urdu or Urdu with a fair mixture of Punjabi, is not quite clear, but, if the latter, we do not think that the absence of a certificate as required by section 364, Cr. P. C. Should prove fatal, for a person who speaks Punjabi with a flair of Urdu can understand fairly well an Urdu transcript of a statement already given by him or her when it is being read back. Section 364, Cr. P.
C. Must be applied intelligently. There should not be any doctrinaire approach to it, and what does not cause prejudice, cannot be allowed to defeat the very object which it seeks t Io protect.
However, considering that in the instant case the matter was not t pressed to elicit clearly the fact that Mst. Saddiqa Begum deceased spoke Punjabi with a fair mixture of Urdu, we hold that a certificate of the Magistrate under section 364, Cr. P. C. Was required and that in the absence of the same, the weight attaching to the dying declaration stands reduce considerably.
19. From the above, the external circumstances surrounding the' recording of the dying declaration, raise a mountain of doubt not only as regards the manner of its recording, and on the conduct of the Magistrate, who purportedly made fake entries in his report and did not fully comply with the statutory requirements required for recording such declaration, butregards whether the same was not tutored or made under the shadow also as regard of some influence.
20. We now turn to some of the intrinsic features in the dying declaration Exh. P. E. Itself, which throws some doubt on, the genuineness of the story contained therein. Mst. Saddiqa Begum in her dying declaration submitted that Mst. Sultan Budhi, Muslim Sheikh, was present in the courtyard and saw the incident when she was fired at. Strangely, neither Mst. Sultan Budhi nor the other eye- witnesses named by the Police in the challan, have come to support the prosecution case. The deceased also submitted that on her cries, her husband arrived on the scene. Muhammad Amir P.
W. 10, states that he saw the whole incident right from the time that the appellant caught hold of the arm of his wife, to the time he ran away after firing at her. The deceased further stated that she had no enmity or intimacy with the appellant and could not therefore say why he had fired at her.
This outburst seems somewhat out of context, unless it can be said that she was trying to suppress some familiarity which she already had with the appellant or to hide something in respect of which she was previously tutored. Lastly, the further fact that the details of the incident as furnished by her in he dying declaration vary considerably from that furnished by Muhammad Amir P. W. 10 her husband throws a grave doubt on the intrinsic worth of the dying declaration.
21. From the above appraisal of the intrinsic value of the dying declaration and the extrinsic features surrounding the making of the same, we have no hesitation in coming to the conclusion that the dying declaration Exh. P. E. Is inherently weak and that the possibility of its being a tutored statement cannot be excluded.
22. Turning to the evidence of Muhammad Amir P. W. 10 the husband of Mst. Saddiqa Begum deceased, his evidence is regrettably in conflict on many material points with the details of the incident as given by the deceased `N in her dying declaration. The deceased in her dying declaration stated that after the firing incident, on her. Cries her husband reached the spot, whereas her husband Muhammad Amir stated that he was coming to his hound from his shop and when he reached near his house he saw the whole incident right from start to finish. Mst. Saddiqa Begum stated in her dying declaration that she was sitting on her charpoy in the courtyard when the appellant appeared, but Muhammad Amir denied that his wife was sitting on the cot when she was fired at. The deceased in her dying declaration did not say that Latif appellant first caught hold of her arm and tried to dra4 her towards him, which arm she tried to get released from him and that when the appellant saw her husband, he fired his pistol at her on the left side of her abdomen, but the husband mentioned accordingly. These glaring discrepancies in the dying declaration of the deceased and the evidence of Muhammad Amir P. W. 10, the husband, show that the latter is not speaking the truth. This view is fortified when one considers that Muhammad A.I arrived at the spot by chance. He stated in cross-examination that he was coming to his house to take some tools. This shows at best that his appearance at the spot was anything but fortuitous. Mst. Saddiqa Begum deceased herself also mentioned that on her cries, her husband had arrived at the scene.
The dying declaration does not clearly fix the husband as having seen the occurrence. For all these reasons, we doubt very much whether Muhammad Amir P. W. 10 had actually seen the occurrence.
Most probably he came after the event. For these reasons, we cannot accept/" the evidence of Muhammad Amir P. W. 10 as an eye-witness, much less for corroborating the dying declaration of the deceased.
23. In addition to the above, certain general features of the case place us on guard in accepting the prosecution story, for whatever it is worth. The prosecution cited the names of three persons as eye-witnesses in the challan, including the name of Mst. Sullan Budhi, who had been named b--- the deceased in her dying declaration, but none except Muhammad Amir P. W. 10, was produced by the prosecution at the trial. The learned Additional Sessions Judge did not even-summon Mst.
Sullan Budhi as a Court-witness, which it was his duty to do, considering that her name was mentioned in the dying declaration as the sole solitary witness who saw the firing. It is regrettable that the learned Additional Sessions Judge did not realise that there was a duty cast on him to arrive at the truth by all lawful means and to examine persons who were known to be in a position to speak to important relevant facts, as Court witnesses, where for certain obvious reasons either party was not prepared to call them. Having not done so, he has failed in his duty of doing complete justice. Further, from the cross-examination of Muhammad Amir P. W. 10 it also appears that the father of the appellant took the deceased on his cart to the Civil Hospital Okara, accompanied b, the appellant's sister. On natural presumption, this conduct would have been unnatural, unless at that relevant time the appellant was not suspected of the firing. Lastly, no motive has been suggested for the crime, which makes the case of the prosecution more doubtful.
24. For all the reasons stated above and on a general review of the case. It appears that the dying declaration is inherently of little worth, that the conduct of the Magistrate, who recorded the dying declaration, is not totally above suspicion, for he made certain fake entries in his report which cast a grave doubt on his integrity and indirectly on the authenticity attaching to the dying declaration.
The evidence of the husband is worthless as he was not an eye-witness. The independent eye- witnesses have not been produced. And lastly, other general infirmities throw a blanket of doubt on the whole prosecution case.
25. For the foregoing reasons we cannot sustain the conviction and sentence of the appellant. We, therefore, accept this appeal and set aside the conviction and sentence of the appellant. He is ordered to be set at liberty forthwith if not wanted in any other case. The fine, if paid, by the appellant shall be refunded to him.