1. QAISAR KHAN, J.-Muhammad Yasin son of Shamas Din aged 18 years according to the Magistrate and 25... Years according to the Sessions Judge, resident of Factory Area, Lyallpur (now Faisal Abad) was tried by the Sessions Judge, Lyallpur on a charge under section 302 of the Pakistan Penal Code. By his judgment dated the 2nd of April, 1973 the learned Sessions Judge convicted him for the said offence and sentenced him to death and to pay a fine of Rs. 5,000 or in default to undergo 3 years' rigorous imprisonment. The convict went up in appeal to the High Court and the death sentence was also referred to the High Court for confirmation. The learned Judges in the High Court by their judgment death the 1st of April, 1975 dismissed the appeal and confirmed the death sentence. Mohammad Yasin filed a petition for special leave to appeal through jail. Since the High Court had disbelieved the ocular evidence and the recovery and conviction had been based solely on the dying declaration, leave to appeal was therefore granted to examine the question as to whether the conviction could be based solely on the dying declaration part of which was found to be false.
2. The facts of the case in brief are as follows: Mujahed deceased and Mohammad Yasin the appellant were friends. On the 17th of June 1972 round about 9 p.m. Mohammad Yasin allegedly came to the house of Mujahed and told him to accompany him (Yasin) to Mehal Cinema for seeing a picture. The two thereupon started going towards Mehal Cinema. When the two were passing through the graveyard Mohammad Yasin took out a knife from the folds of his trousers and threatened Mujahed with it telling him to submit to his lust. Mujahed refused to accede to his demand and Mohammad Yasin thereupon placed the knife on his abdomen and tried to open his trousers string. Mujahed pushed Yasin whereupon Yasin started stabbing Mujahed. Mujahed started shouting whereupon his father Nazir Ahmad, Nazar Mohammad son of Ghulam Hussain and Manzoor Ahmad arrived at the spot and witnessed the occurrence. The accused Mohammad Yasin however ran towards Tariq Abad. The father of the deceased put the deceased in a rickshaw and took him to the Civil Hospital, Lyallpur.
3. The information of the occurrence was allegedly conveyed from the hospital to the Police Station, Civil Lines, Lyallpur on telephone whereupon Amanullah. Khan A. S. 1. P. W. 5 rushed to the hospital and recorded the dying declaration of Mujabed at 11 p.m. To the effect mentioned above. This dying declaration was sent to Police Station, Civil Lines, Lyallpur distant 2 -- miles from the spot on the basis of which Shahbaz Khan M. H. C. P. W. 7 registered a case under section 307, P. P. C. At 11-15 p.m.
4. Which was later on altered to one under section 302, P. P. C. On the expiry of Mujahed in the hospital the next day at 10-30 p.m.
5. Dr. Bashir Hussain Kahloon P. W. 1 examined Mujahed aged 18 years on the 17th of June 1972 at 10-30 p.m. And found four stab wounds on his chest and abdomen. After the. Expiry of Mujahed in the hospital the next day at 10-30 p.m. The doctor performed post-mortem examination on his dead body on the 19th of June 1972 and found that he had died of the aforesaid injuries which had injured his stomach, large intestine and liver.
6. Nasimul Hassan S.1. P. W. 11 investigated the case. He recorded the statement of the injured under section 161 of the Code of Criminal Procedure and took into possession his blood-stained clothes.
7. He got the site plan prepared through Aurangzeb draftsman P. W. 3 and took into possession blood-stained earth from the spot. . He prepared the inquest report of the deceased after his expiry in the hospital and arrested the accused on the 26th of June 1972: At the instance of the accused he recovered the blood--stained knife and after ~ completing the investigation challaned the accused to the Court of the Illaqa Magistrate from where he was committed for trial to the Court of Session and where he was convicted and sentenced as mentioned above. Mr. Agha Aziz Ahmad Khan learned Advocate for the appellant and Mr. M. Bilal learned Advocate for the State- respondent beard at length. The material evidence in this case was the ocular testimony of Nazir Ahmad P. W. 8, Nazar Muhammad P. W. 9 and Manzoor Ahmad P. W. 10, the recovery of blood- stained knife at the instance of the accused and the two dying declarations of the deceased one Exh. P. K. Incorporated in the first information report recorded by Amanullah Khan A. S. 1. P. W. 5 and the other Exh. P. Y, which is the statement of the deceased recorded under section 161 of the Code of Criminal Procedure by Nasimul Hassan S. I. P. W.
11. Now so far as the statement of the three ocular witnesses and the recovery of the blood-stained knife at the instance of the accused are concerned these pieces of evidence have been disbelieved by the learned Judges of the High Court. After going through the statements of the ocular witnesses and the evidence regarding the recovery we are also of the opinion that the High Court was right in disbelieving these pieces of evidence. Valid and sufficient reasons had been given for disbelieving these pieces of evidence and we need not reiterate these. Under the circumstances it is therefore to be seen as to whether the conviction could be justified on the basis of the dying declarations.
8. So far as the second dying declaration that is to say the statement of the deceased recorded under section 161 of the Code of Criminal Procedure is concerned its genuineness according to the learned counsel for the defence was very much doubtful. This statement was recorded in the hospital but neither the doctor nor any compounder was made a witness to it. Despite the fact that it was recorded to the hospital no certificate was obtained from the doctor to the effect that the deceased was in a fit condition to make a statement. Even in the statement of the doctor it has not been brought out from him as to whether the deceased was or could be in senses to give a coherent statement at past mid-night. Furthermore the relations of the deceased were present with the deceased all along when his statement was recorded. Relying on the authority reported in 1976 P Cr. L J 545 the learned counsel contended that this dying declaration could not be relied upon. There is no doubt that there are these infirmities in this dying declaration but then it is not in any way different from the one recorded earlier and it is thus to be seen as to whether the earlier dying declaration could be made the basis of conviction or not.
9. So far as the first dying declaration recorded by Amanullah Khan A. S. I. Is concerned its genuineness was also -doubtful according to the learned counsel for the defence. According to him there were serious discrepancies in the statement of Amanullah Khan A. S. I. P. W. 5 and Shahbaz Khan M. H. C. P. W.
7. The distance between the police station and the hospital has not been given by any P. W. But it appears that they were situated close to one another as the dying declaration according to Amanullah Khan P. W. Was recorded at 11 p.m. And F.
1. R. On its basis was drawn by Shahbaz Khan M. H. C. At 11-15 p.m. Shahbaz P. W. Has stated that the telephonic message from 'the hospital was received by the A. S. I. But Amanullah Khan A. S. I. Has stated that be did not receive the telephonic message himself. The telephonic message was received in the police station at 10-30 p.m. But Amanullah Khan A. S. I. Has stated that the medico-legal report was given to him by the doctor at 10-30 p.m. Whereas the statement of the doctor shows that he started the examination of the injured at 10-30 p.m. According to Amanullah Khan P. P.W. Immediately on reaching the hospital he obtained the medico-legal result from the doctor and after going through had started recording the dying declaration of the deceased but his statement however shows that the doctor was not present when he started recording the dying declaration. His statement also shows that despite the fact that on reaching the hospital he submitted an application to the doctor for a certificate as to whether the deceased was in a fit condition to make statement yet no certificate was given by the doctor before the recording of the dying declaration. The statement of Amanullah Khan shows that the certificate was obtained from the doctor after the dying declaration had been recorded. Despite these discrepancies which in our opinion are of a minor nature we have no doubt in our mind about the genuineness of the dying declaration. The deceased had been brought to the hospital soon after the occurrence and the injuries on his vital organs disclosed by the post-mortem examination would not suggest that he could have lost consciousness all at once. At any rate there is no reason why the statement of the doctor in this - respect be disbelieved. We therefore hold that the deceased did make this dying declaration when he was in senses and that it was genuine.
10. The matter however does not en ere and it is now to be seen as to whether it was true also and could be relied on without any corroboration whatsoever. In this respect parts of the dying declaration have been found to be false. It states that his father Nazir Ahmad, Nazar Muhammad and Manzoor Ahmad witnessed the occurrence but this has been found to be false. It further shows that he was taken to the hospital by his father but there is evidence on file to show that it was false and that he was taken to the hospital by one Zulfiqar son of Fazal of Mansurabad. Furthermore the statement of Amanullah Khan P. W. Shows that the deceased was in the ward where he recorded his dying declaration and it appears from the state--ments of the three ocular witnesses that they were present with the deceased when the dying declaration was recorded as all of them were examined by the Sub-Inspector in the hospital.
11. Now there is no doubt that conviction could be based solely on a dying declaration as held in the authority reported in PLD 1977 SC 612, but then the dying declaration in that case should be free from every sorts of taint. If doubts arise about the truthfulness of a dying declaration then it is not safe to base a conviction solely on its basis without any independent corroboration. In the instant case major portion of the dying declaration as mentioned above has been found to be false and there is evidence to show' that it was recorded at a time when the relations of the deceased were present with him. The possibility that the deceased might have been tutored could not therefore be excluded. There is no corroboration whatsoever of the dying declaration on file. Relying on the authorities reported in 1969 SCMR 84, PLD 1970 SC 406 and 1972 SCMR 40 we are of the opinion that it is not safe under the circumstances to base the conviction solely on this dying declaration.
12. Giving the accused the benefit of doubt we therefore accept his appeal, set aside his conviction and sentence and acquit him.
13. MUHAMMAD AKRAM, J. -I agree.
14. DORAB PATEL, J. -I agree.