' RIAZ KAYANI, J.---Niaz Ahmad son of Nazir Ahmad has laid challenge to the judgment, dated 30-7- 1999 passed by the learned Additional Sessions Judge-III, Bahawalnagar whereby appellant was convicted under section 302(b), P.P.C. For Qatl-i-Amd of Mst. Parveen and sentenced to death alongwith a fine of Rs,50,000 and in default of payment of fine to undergo R.I. For two years. The fine, if recovered, was to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. The death sentence imposed was subject to confirmation by this Court through a reference under section 374, Cr .P.0 .
2. The occurrence which resulted in the death of Mst. Parveen took place in her house situated in Chak No,43/F, at a distance of 5 k.Ms. From Police Station Saddar, Chishtian, District Bahawalnagar on 14-5-1997 at 9 a.m. The deceased Mst. Parveen herself made a statement to the police at the hospital on the same day at 12-45 p.m. Which was recorded by Noor Ahmad, A.S.-I. And was sent to the Police Station through a constable on the basis of which First Information Report Exh. P.E./1 was drawn.
3. The facts succinctly described in the narration of the complaint are that Mst. Parveen deceased is a resident of Chak No,43/F; is married and lives in a Ahata shared by Niaz Ahmad son of Nazir Ahmad. About 7/8 days earlier she and Mst. Nasreen, wife of Niaz Ahmad quarrelled on a small matter upon which she was slapped by Niaz Ahmad, however, the matter was got patched by Wali Muhammad and other notables of the Mauza but Niaz Ahmad entertained a grudge in his heart and in order to give vent to his feelings today at 9 a.m. When she was busy in domestic chores Niaz Ahmad son of Nazir Ahmad all of a sudden emerged from outside with a pistol in his hand and fired straight at her, hitting her on right side of her neck. On her hue and cry Wali Muhammad son of Ilam Din and Muhammad Sharif son of Azeem reached the spot who tried to apprehend Niaz Ahmad but he succeeded in running away and as a result of help extended by the witnesses she was brought to hospital where she was got admitted.
4. Noor Ahmad, A.S.-I. On 14-5-1997 received information that Mst. Parveen wife of Muhammad Amin was lying in the hospital in an injured condition and accordingly he left for the hospital and recorded statement of Mst. Parveen while she was in an injured condition. The complaint was sent to the Police Station for registration of a case while he prepared injury statement Exh.P.B./6 and recorded statements of the witnesses Wali Muhammad and Muhammad Sharif. After preparing site plan Exh.P.F. He got transferred from the Police Station to Rahimyar Khan on 1-6-1997.
5. Before recording her statement Noor Ahmed, A.S.-I. Inquired from the doctor whether Mst.
Parveen injured was able to give a statement through application Exh.P.B./4 upon which doctor opined that the injured was fully conscious and was able to give her statement. Opinion of the doctor Exh.P.B./5 is on the application which bears his signatures.
6. On 14-5-1997 Dr. Muhammad Khalid Chaudhry, Medical Officer, Tehsil Headquarters Hospital, Chishtian conducted the medical examination on the person of Mst. Parveen wife of Muhammad Amin, aged 25 years and found oval shaped wound 2 c.m. x 2 c.m. Present on the right lateral side of the neck with no blackening present.
7. Vide X-ray, dated 14-5-1997 there was a bullet seen on the left side of the chest. X-rays were referred to Radiologist at District. Headquarters Hospital, Bahawalnagar for expert opinion about any bone fracture. Injury was kept, under observation and declared dangerous to life. The injury was caused by fire-arm and duration of injury was within 12 hours. Due to non-availability of expert opinion about . X-rays of Mst. Parveen injured, the doctor himself declared that there was fracture of sixth survical vertebrae. Membrane of spinal cord was also damaged which gave rise to quardplagia of the whole body so in his opinion the injury was Shujjah-i-Damihah. The injured was admitted in the hospital on the same day.
8. Ghulam Muhammad S.-I. On 11-6-1997 went to the hospital to inquire about the condition of Mst.
Parveen and was told by the doctor that she was not capable of giving a statement as her condition had deteriorated. On 17-6-1997 he was informed that Mst. Parveen had expired whereupon he reached the hospital and prepared the inquest report Exh.P.C./3 and sent the dead body to the mortuary for post-mortem examination Niaz Ahmad was arrested on 30-9-1997 and while in police custody on 5-10-1997 he got recovered pistol P.5 from his residential Kotha from an iron box which was taken in possession vide Memo. Exh. P.G.
9. On 17-6-1997 Mst. Parveen injured died in the hospital and the post-mortem on the dead body was conducted by the same doctor. The injury already noted in the medico-legal report was repeated in the postmortem examination. However, on exploration of injury track there was a fracture of 6th survical vertebrae. Bullet was removed from the lower border of left specula. No rib fracture was seen.
10. The doctor was of the opinion that the cause of death was injury No,1 which led to quardplagia of the body, ultimately respiratory and cardiac failure occurred due to shock. Injury No,1 was sufficient to cause death in the ordinary course of nature which was caused by fire-arm and ante- mortem in nature. The time between injury and death was one month and three days and between death and post-mortem was within two hours.
11. The doctor in his cross-examination observed as under: "On the first day when I medically examined Mst. Parveen I had not referred her for surgical operation due to her poverty to B.V.H., Bahawalpur. In those days, there was no Surgeon posted at THQ Hospital, Chistian".
12. During the trial appellant was indicted, he denied the charge, pleaded not guilty and claimed a trial. Prosecution examined as many as ten witnesses.
13. Prosecution produced in evidence report of the Forensic Expert Exh.P.H wherein it was opined that the pistol of .30 bore calibre recovered at the instance of Niaz Ahmad was in working order and its present condition it was a semi-automatic weapon.
14. Appellant in his statement recorded under section 342, Cr.P.C. Denied his participation in the occurrence and stated that a fake pistol was foisted upon him to bolster the prosecution case. In reply to the question as to why the prosecution has brought the case against him he stated that he was falsely involved and the witnesses have not supported the prosecution version.
15. Prosecution cited Muhammad Sharif and Wali Muhammad as eye-witnesses but both of them reneged from their statements recorded by the Police under section 161, Cr.P.C. And stated that they knew nothing about the occurrence. They were declared hostile. Muhammad Sharif in his cross- examination stated that Niaz Ahmad appellant was not related to him but was only from his fraternity. He, however, admitted that the lady after being injured was brought to the hospital by him and Wali Muhammad. Wali Muhammad also denied to have seen the occurrence and was declared hostile. He, however, stated in his cross-examination that Niaz appellant is his nephew, as well as son-in-law. Father of Muhammad Sharif P.W., mention of which has been made in the preceding para. Is the son of Azeen who was brother-in-law of Wali Muhammad P.W.3 (Behnoi).
This witness admitted that when statement of Mst. Parveen was recorded by the police at the hospital, the Investigating Officer sent him out of the room.
16. Learned counsel for the appellant vehemently contended that both the eyewitnesses having refused to support the prosecution no conviction can be based on their testimony. Having been left only with the dying declaration it was firstly stated that same having not been recorded in presence of either a doctor or a Magistrate loses its evidentiary value and secondly the conviction cannot be based on the sole basis of. Dying declaration. For this reason it was contended that the appeal merits acquittal. Conversely learned State Counsel has supported the conviction and sentence recorded by the trial Judge.
17. We have considered intently the arguments of the respective counsel and have also minutely scrutinized the record. We, at the very inception, see eye to eye with the emphatic assertion made by the learned counsel that the eye-witnesses having resiled from their evidence no credit should be attached to their testimony. Accordingly we rule out from consideration their statements as not being beneficial to the prosecution in any manner. However, we have our serious reservations to the argument that the dying declaration be discarded for reasons which we are going to discuss in the ensuing paragraphs.
18. Dying declarations previously were admissible in evidence under section 32(1) of the Evidence Act, 1872 and after its repeal now are relevant under Article 46 of the Qanun-e-Shahadat Order, 1984. Article 46(1) does not lay down any hard and fast rule to record a dying declaration, certain precautionary measures, being growth of case-law from time to time enunciated by superior Courts, have to be taken into account, to minimize the chances of tutoring of the injured by others to prop up the prosecution case. Secondly it is to be ensured that a person making a dying declaration is not deprived of his faculties as a result of the onslaught made on him causing him grievous injuries, he is capable of giving correct facts. In order to elaborate precisely the precautions which the Court is to take relying upon a dying declaration following are some of the measures, it has to keep in mind by strictly adhering to it:----
(1) That it is estatgished that the statement of a person which has to be treated as dying declaration was duly recorded.
(2) That he was fit to make a coherent statement being possessed of a conscious mind, his cognitive faculties were not numbed or blurred by the injuries caused.
(3) That he was not prompted by his near and dear ones present by his bed side to aid him in making the statement.
(4) That intrinsically the statement made has a ring of truth.
(5) That the statement is not due to any grudge or motivated by rancour, enmity or ill will. And
(6) That there was absolutely no chance of mistaken identity in naming his assailant.
19. In the instant case Noor Ahmad, A.S.-I., Police Station Saddar, Chishtian after receiving information that. Parveen wife of Muhammad Amin was lying in the hospital in an injured condition arrived at the hospital and immediately made an application Exh.P.B./4 seeking opinion of Dr. Muhammad Khalid Chaudhary, Medical Officer, Tehsil Headquarters Hospital, Chishtian whether the injured was fully conscious and was able to give her statement. Opinion of the doctor Exh.P.B./5 was in affirmative and thereafter he proceeded to record her statement. Exh.P.B./4 and Exh.P.B./5 stand proved in the statement of Dr. Muhammad Khalid Chaudhry when he appeared as P.W.4.
Similarly Noor Ahmad, A.S.-I. When he appeared as P.W.7, although in the beginning stated that he did not seek permission from the doctor whether Mst. Parveen was capable to make a statement but when his memory was refreshed by showing him document Exh.P.B./4 he immediately corrected himself by stating that the application was written by him and bore his signatures and further the permission was duly granted by the doctor to record the statement of the injured. Thus.
For all intents and purposes we are convinced that Mst. Parveen was in her complete senses and the injury did not, in any manner paralyse her senses or wisdom either to blur her vision to identify the culprit or to prevent her to give articulate and coherent account as to who was perpetrator of the crime, what weapon he used to cause her injury and the reason for which she was attacked.
We are further fortified in this conviction by the fact that the lady survived from 14-5-1997, when her statement was recorded, up to 17-6-1997 and it is only after 10-6-1997 that her condition started deteriorating and finally she succumbed to her injuries on 17-6-1997.
20. Noor Ahmad, A.S.-I. Who recorded the statement of Mst. Parveen deceased in his cross- examination stated that at the time when her statement was recorded by him two prosecution witnesses, namely, Muhammad Sharif P.W.2 and Wali Muhammad P.W.3 were sent out of the room where she was lying. Precaution taken up by Noof Ahmed, A.S.-I. While recording statement of Mst.
Parveen has been corroborated by none other but the hostile witness Wali Muhammad and that too in the cross-examination conducted by the defence counsel by stating that he was sent out of the room when statement of Mst. Parveen was recorded by the Investigating Officer. We, therefore, are also convinced that Mst. Parveen gave a totally independent account of the occurrence without any one tutoring her or sought help from any witness or an outside source. Apart from this Noor Ahmad, A.S.-I. Not only recorded the statement of Mst. Parveen but reproduced in verbatim complete statement of the deceased in his examination-in-chief when examined as P.W.7 before the trial Judge corroborating each and every fact deposed to by Mst. Parveen in her statement which formed the first information report.
21. Statement of Mst. Parveen Exh.P.E. Which is now being treated as dying declaration has a ring of truth around it. Lady had no rancour or animosity with the appellant. Undoubtedly few days earlier a brawl took place between her and the wife of the appellant but that provided motive for the appellant to feel insulted and killed the deceased at 9 a.m. When she was alone in the house, taking sufficient precautions that nobody came to rescue of a helpless lady.
22. Argument of the learned counsel that permission of the Magistrate was not taken to record the statement of Mst. Parveen which was to be treated as dying declaration, the doctor has not signed her statement as an attesting witness, and (c) having died after more than a month from the date, she received the injury, was not under expectation of death, therefore, no reliance can be placed on such a dying declaration, are arguments which are totally devoid of force.
23. Nobody could predict that the lady would subsequently die. The inactivity on the part of her husband Muhammad Amin, who has not figured in the case at all shows that no one lended a helping hand to the lady to get proper treatment from B.V. Hospital, Bahawalpur where she was referred by the Medical Officer, Tehsil Headquarters Hospital, Chishtian. The fact that her relatives, namely, Muhammad Sharif and Wali Muhammad P.Ws. Not only resiled from their statements but did not take her to Bahawalpur for surgery makes it amply manifest that there was a lurking fear that if she recovered she may depose against the appellant for a case of attempt to murder, therefore, was made to suffer her fate as it is obvious by the admission of Dr. Muhammad Khalid Chaudhry P.W.4 in his cross-examination that although the lady required expert treatment to recover from her injury but due to her poverty he had not referred her for surgical operation to B.V.
Hospital, Baham alpur and that there was no Surgeon posted at the Tehsil Headquarters Hospital, Chishtian. To argue from the Police Rules that permission should have been taken from a Magistrate to record her dying declaration amounts to the proverbial putting the cart before the horse as no one could foresee that she would die. We are fortified in our views by the judgment of the apex Court in the case of Mst. Shamim Akhtar v. Fiaz Akhtar and 2 others reported in PLD 1992 SC 211 and Niamat Ali v. The State (1981 SCMR 61), that even a statement made under section 161, Cr.P.C. Of an injured person or the F.I.R. Recorded by him is admissible in evidence as dying declaration if injuried died later.
24. The next argument of the learned counsel that at the time when the statement of Mst. Parveen was recorded she could not be said to speak gospel truth as she was not under any expectancy of death, is again an argument which has not at all impressed us. In the first instance Article 46(1) of the Qanun-e-Shahadat Order, 1984 specifically states that a statement can be used as dying declaration irrespective whether the person making it was or was not under expectation of death and secondly by accepting the argument of the learned counsel we would be importing extraneous consideration into the statutory provisions which we loathe to promote as law itself does not require that dying declaration should be made under immediate apprehension of death; any incriminatory statement made when a person is alive and subsequently dies can be legitimately treated as a dying declaration. Police Rules cannot make inroads into the provisions of a Statute.
25. Last argument of the learned counsel though feeble in nature was that a conviction cannot be based upon a dying declaration without any other corroborative piece of evidence. Again there is no law which binds the Court, which must look for corroboration although it may be a rule of prudence depending upon the facts and circumstances of each and every criminal case, where Courts would find for corroboration from other pieces of evidence. However, in the instant case it was a daylight occurrence, the appellant used to live in the same Ahata shared by the deceased and her husband, there was, therefore, no chance of mistaken identity. We have already observed that the deceased-lady had no ulterior motive to falsely implicate the appellant and to substitute him for the real culprit, therefore, we after thorough consideration of all the facts which have come on record are of the considered view that the statement of the deceased-lady not only inspires confidence but is free from taint and according to ordinary human judgment we without any reticence believe it to be an honest inculpatory statement and conviction can be based on it.
Reliance is placed on the judgment of the apex Cow t in the case of Ghulam Zohra and another v.
Malik Muhammad Sadiq and another reported in 1997 SCMR 449, where it was held that the statement of the deceased in the form of F.I.R. Can be treated as a dying declaration which itself is good enough for sustaining the conviction for capital charge. Case of Shahbaz and another v. The Crown (PLD 1953 Lahore 566) is yet another case wherein it was held that a dying declaration is a valuable piece of evidence and if it is free from suspicion and believed to be true it may be sufficient for conviction. We cannot help but to repeat the terse and beautiful words used in the judgment, as follows:--- "When words are scarce they are hardly spent invain and they usually speak the truth who breathe their words in pain."
26. Case of Niamat Ali v. The State (supra) is another precedent on this score.
' The other circumstance which provides corroboration to the dying declaration is that the occurrence took place on 14-5-1997 whereas the appellant was apprehended on 30-9-1997.
Remaining fugitive from law for more than four months sufficiently indicates that his abscondence was a clear pointer towards his guilt and is a corroborative piece of evidence which can be taken into account, secondly the medical evidence which is absolute in accord with the statement of the deceased-lady now being treated as dying declaration as far as the weapon used, locale of the injury and the damage which it did is yet another piece of evidence which corroborates the dying declaration.
28. The upshot of the discussion, therefore, is that the witnesses providing the ocular testimony having been won over by the appellant, being his close relatives, law is not so helpless as to grope in the dark. Luckily we have the dying declaration of the deceased-lady which we have discussed in detail, inspires confidence and conviction can be based upon it for a capital charge. Resultantly we affirm the appraisal made by the trial Judge to be in accordance with the norms and standards of judicial scrutiny set up by the superior Courts and confirm the sentence of death imposed upon Niaz Ahmad. Appeal of the appellant is dismissed. Murder Reference is answered in the affirmative.
Death sentence is confirmed.