' Aiwa RIAZ HUSSAIN, J.-Mustaq Ahmad and Abdul Ghafoor were tried for offences under sections 366, 376 and 302 read with section 34. P. P. C., by Mr. Abdul Khaliq Khan, Additional Sessions Judge, Muzaffargarh. The learned trial Judge by his judgment dated 10-8-1970 found them guilty of all the charges and sentenced both of them to death under section 302/34, P. P. C. To 5 years' R. I. Under section 366/34, and to another 5 years' K. I under section 376/34, P. P. C. The sentences of imprisonment were ordered to run concurrently and to take effect only if the sentences of death imposed upon them were not confirmed by the High Court. Both the appellants have filed a joint appeal against their conviction, and sentences. The matter is also before us under section 374, Cr.
P. P. For considering the question of confirmation of the sentences of death awarded to the appellants.
' The occurrence took place at dawn on 5-6-1968. The F.I. R. (Exh. P. A/1), in this case is based on the statement (Exh. P. A) of Mst. Jhanwar Mai, the deceased, herself. She was forcibly abducted by the two appellants, who committed rape on her and thereafter inflicted knife blows on her. The hue and cry raised by her attracted some persons, on seeing whom the two appellants ran away. She was taken to the Civil Hospital at Alipur Dr. Muhammad Afzal (P. W. 1), the incharge of the said hospital informed the police about her arrival vide letter Exh. P. A/2. The letter was sent to S. H.O.
Alipur and was received by Riaz Muhammad Khan A. S.
1. P. W. 10, who was posted there as 'Moharrir'. On receiving the same he proceeded to the hospital and, after ascertaining from the doctor that Mst. Jhanwar Mai was in a fit condition to make a statement, he recorded her statement Exh. P. A., at about 11-30 a.m. Since Mst. Jhanwar Mai died subsequently, the statement was treated as a dying declaration.
2. The facts of the case as given by Mst. Jhanwar Mai deceased in the said statement are briefly as follows: ' She was residing at Mauza Wadduwala. Early in the morning she went out to the field to ease herself. She had just sat down for the said purpose, when the two appellants turned up and asked her to accompany them. On her refusal, Abdul Ghafoor appellant caught hold of her from the head.
And Mushtaq Ahmad appellant caught hold of her by the logs. They lifted her forcibly and took her towards Nala Sohrab where both of them committed rape on her, one after the other. They then wanted to take her away, forcible., on their bicycle. But she resisted. There upon both of them started inflicting knife blows on her, which fell on the abdomen, arms and hands, etc. She raised a hue and cry on which Wali Muhammad P. W. 12 and Ibrahim P. W. 13, who lived nearby, turned up and witnessed the attack. On seeing them the assailants ran away on their bicycles.
' The reason for the occurrence as given by the deceased is that she had once eloped with Mushtaq Ahmed appellant. (She was subsequently married to Pir Bakhsh). Mushtaq Abmad appellant was, however, still keen on marrying her but she refused to cooperate. Mushtaq Ahmad appellant was aggrieved by her refusal and it was for this reason that he alongwith Abdul Ghafoor appellant, had acted in the manner narrated above.
' The two appellants were arrested on the next day i,e, 6-6-1958 and following recoveries were made during the investigation:
(1) Blood-stained earth from the place of occurrence was taken into possession vide memo Exh. P.
B.
(2) Knife P. 1 was taken into possession at the instance of Abdul Ghafoor appellant on 6-6-1968 from his kotha in which Bhoosa was stored, vide memo Exh. P. C.
(3) Knife P. 2 was taken into possession at the instance of Mushtaq Ahmed appellant on the same day from his residential katha, vide memo Exh. P. D.
(4) Chadar P. 3, stained with blood and semen, was taken into possession from the person of Mushtaq Ahmad appellant on 6-6-1968, ride memo Exh. P. E.
(5) Chadar P. 4, stained with blood and semen, was taken into possession from the person of Abdul Ghafoor appellant on the same day vide memo Exh. P. F.
3. Dr. Muhammad Afzal P. W. 1, who had examined Mat. Jhanwar Mal, when she was alive, found the following injuries on her person:
(1) A transverse deep 1' x 4' on the right side of the chest. The wound was going deep into the body.
(2) A deep oblique cut x r was present on the left side of the chest at the level of the spleen.
(3) A deep cut 1' x r on the left lumber region near a spin.
(4) A cut 7/8' x 4" x 4' on the right fore-arm just below elbow.
(5) A cut 5/8' x 4' x 1-4' on the back of right hand.
(6) A cut 1.1-4 x on the back of left elbow.
(7) A cut 1}' x on the back of left wrist.
(8) A cut 2' x 4' as r on the palm of right hand.
(9) A semi circular cut 3' x 4' x 4' on the inner aspect of upper and left lower leg.
(10) A cut 1-4 x 4' x 4' on the front of upper end of left lower leg. {{TABLE}} ' All of these were caused by a sharp edged weapon. Injuries Nos. 1 to 3 were grievous and dangerous to life while the rest were simple in nature.
' Mst. Jhanwar Mai survived for about 14/15 hours and died at 8 p.m.. On the same day. The same doctor performed the post-mortem examination and found the same injuries as mentioned above on her body. He opined that injuries Nos. 1 to 3 were individually or collectively sufficient to cause death in the ordinary course of nature. Two vaginal swabs were taken, which were subsequently found by the Chemical Examiner to be stained with semen. The doctor also informed the Police vide letter Exh, P. K/1. He stated that, according to her own statement, rape had been committed on the deceased. He said that, at times Mst. Jhanwar Mai went into a state of unconsciousness, for short periods, otherwise she replied to questions and was conscious enough to make a statement.
He stated in the end that on a verbal inquiry by Riaz Muhammad Khan A S.
1. P. W. 10, he-had opined that Mst. Jhanwar Mai deceased was in a fit condition to make a statement.
' The same doctor medically examined Abdul Ghafoor appellant on 7-6-1968 and found him capable of performing sexual intercourse. On the same day he also examined Mushtaq Ahmad appellant who too, was found capable of performing sexual intercourse. The doctor found certain injuries on the person of Mushtaq Ahmed, which have been described as follows:-
(1) Seven superficial scratches were scattered on the right cheek.
(2) Four superficial scratches were present on the left side of the neck.
(3) A scratch was present below the right neck. The doctor opined that these had been caused by finger nails.
' After the conclusion of the investigation the appellants were challaned and were ultimately committed to stand their trial before the Court of Session.
4. In support of its case the prosecution produced 14 witnesses and relied on the ocular testimony of Wali Muhammad P. W. 12 and Ibrahim P. W. 13, the evidence of recoveries and the dying declaration (Exh. P. A) read with the medical evidence
5. The appellants when examined at the trial denied their guilt and pleaded that they bad been involved due to enmity, or party faction. They also denied the recoveries. Mushtaq Ahmad appellant explained his injuries by saying that he had sustained them in his daily routine pursuits.
They produced one witness in defence, namely, Muhammad Sharif Head Constable, Record Keeper, who produced the daily diary of Police Stations Alipur and Jatoi relating to the period in question.
6. We have heard the learned counsel for the parties and have also gone through the entire record.
' The learned counsel for the appellants contended firstly, that the testimony of Wali Muhammad P.
W. 12 and Ibrahim P. W. 13, the alleged eye-witnesses in the cave, cannot he relied upon for the conviction of the appellants inasmuch as none of them has supported the prosecution case at the trial and although they were declared hostile, their statements before the Committing Magistrate were not transferred to the Session's file because even before him (i,e, before the Committing Magistrate) they had not supported the prosecution case.
7. We have carefully considered this contention. We notice that the statements of both the eye- witnesses were got recorded by the Investigating Officer under section 164, Cr. P. C. Wherein they supported the prosecution' version as given in the F. I. R. Subsequently, however, both of them resiled from their earlier statements and did not support the prosecution case either before the Committing Magistrate or before the trial Court. At the trial they were got declared hostile and were cross-examined by the P. P. They admitted having wade statements under section 164, Cr. P. C supporting the prosecution case, but explained that they had made the same at the instance of the police, who had threatened them with involvement in the case.
' The learned State Counsel argued that the portions of the statements under section 164, Cr. P. C.
Of these witnesses, which were put to them at the trial, are admissible as substantive evidence in the case and conviction can be based upon the same. He, however, could not support this contention with any authority. The learned defence counsel, on the other hand, relied on Muhammad Ahmad v. The State (1).
' In that case the statements of some of the eye-witnesses had been recorded Under section 164, Cr. P. C. And their statements before the Committing Magistrate were transferred to the Sessions' file under section 288, Cr. P. C. Their Lordships observed, Inter alia that on being so transferred the statements made by the witnesses before the Committing Magistrate become a substantive piece of evidence but since the witnesses stand self-condemned,, their testimony cannot be accepted with implicit faith and independent corroboration is, therefore, required before the same can be relied upon. The High Court had relied on the statements of these two witnesses recorded under section 164, Cr. P. C. The Supreme Court however held that the statements of the witnesses under section 159, Cr. P. C. Could not be treated as independent corroboration of their own statements made subsequently before the Committing Magistrate and transferred to the Sessions file under section 288, Cr. P. C. In view of these observations it is clear that the statements of Wali Muhammad and Ibrahim P. Ws. Recorded under section 164, Cr. P. C. Or even the portions thereof, put to them during the trial cannot be relied upon to constitute independent corroboration of their own statements.
' No doubt they (i,e, Wali Muhammad and Ibrahim) have been mentioned by the deceased in the F.
I. R. As eye witnesses and are neither said to be relegated to "list. Jhanwer Mai deceased nor alleged to have had any previous enmity with the appellants, yet none of their statements is of any use to the prosecution as they have not supported its case either at the trial or before the Committing Magistrate and, as already mentioned, their statements under section 164, Cr. P. C.
Cannot be used to corroborate their own statements before the Committing Magistrate.
8. The next piece of evidence is the recovery of knives P. 1 and P. 2-from Abdul Ghafoor and Mushtaq Ahmad appellants respectively and the blood-stained chadors P. 3 and P. 4 belonging to Mushtaq Ahmad and Abdul Ghafoor appellants respectively. Four persons attested the recovery memos relating to the said recoveries. Out of these only Baloch Khan P. W. 8 and Malik Abdul Rehman P. W. 14 (the Investigating Officer) were produced at the trial. The other two namely, Hayat Muhammad and Wahid Bakhsh were given up as having been won over. It may also be mentioned that Boloch Khan had appeared as P. W. 2 before the Committing Magistrate (1) PLD 1970 SC 72 but since ho died before the commencement of the trial, his statement before the Committing Magistrate was transferred to the Sessions file under section 33 of the Evidence Act. Even before the Committing Magistrate this witness did not support the prosecution ease with regard to the recoveries of the abovementioned incriminating articles and was, therefore, got declared hostile by the Public Prosecutor. As such, the only witness who supported the recoveries is the Investigation Officer himself. It could be said that he is as good a witness as anyone else, notwithstanding the fact that he is a Police Official, but there is another flaw in the prosecution case with regard to these recoveries. The investigating officer is said to have sent the sealed parcels containing the above-mentioned incriminating articles to the police station through Allah Bakhsh F. C., P W. 4, on 5-6-1968. (Nasrullah Khan F. C., P. W. 9 only took the parcel containing the blood-stained earth to the Police Station) Allah Bakhsh F. C. (P. W. 4) has stated that he delivered these parcels to A. S. I. Abdul Aziz (P. W. 3) on the same day, at Police Station Jatoi. Abdul Aziz P. W. 3 admitted having received the perces. The witnesses are, however, contradicted on this point by Muhammad Sherif (D. W. 1) who is the Record Keeper of Police Office Muzaffargarh. He brought the daily diary of Police Station, Jatoi pertaining to the relevant period and stated that the return of Allah Bakhsh F. C. (P. W. 4) to the Police Station alongwith the appellants is shown in the daily diary on 6-6-1968 at Serial No, 7 but there is no entry of his having brought any sealed parcel.
' In view of these infirmities we are inclined to feel that the recovery of knives P. 1 and P. 2 and blood-stained clothes P. 3 and P. 4, is rather doubtful and in any case it has not been proved to have taken place, beyond reasonable doubt. As such this piece of evidence, too, has to be ignored.
9. We are now left only with the dying declaration Bib. P. A. And the medical evidence. The learned counsel for the appellant contended that the dying declaration was not worthy of reliance because the required formalities were not complied with and that although the Court of the S. D. M. Was adjacent to the hospital and Tehsildar and Naib Tehsildar etc., were available. Riaz Muhammad A.
S. I. (P. W. 10) did not care to call them for recording the dying declaration and proceed to recorded the same himself. He contended further that there is no proof that at the relevant time Mst.
Thanwar (deceased) was in a fit condition to make a statement, because according to Dr. Muhammad Afzal P. W. 1, when she was at the hospital, at times she lapsed into consciousness.
10. We have carefully considered the above-mentioned contentions put forward by the defence counsel with regard to the dying declaration but are not persuaded to agree with him.
' It will be noticed that shortly after the medical examination Dr. Muhammad Afzal M.
0., Civil Hospital Alipur (P. W. 1), addressed a letter Exh. P. A/2 (printed at page 1 of the paper-book) to S. H.
0., Police Station Alipur, suggesting that the dying declaration of Mst. Jhanwar Mai be recorded. It will be useful to produce this letter: "Subject : Medicolegal case.-Dying Declaration of Mst. Jhanwar Mai wife of Peer Bakhste Mochi aged 27 years resident of Mauza Wadduwala P. S. Jatoi has been brought to the hospital in a serious condition. She has multiple cuts on her abdomen, chest and other parts of the body. It is suggested that her dying declaration may be recorded immediately.
' The underlining is ours.
' On receiving this Information Riaz Muhammad A. S. I. P. W. 10 who was posted as Moharrir at the said Police Station immediately proceeded to the hospital and after ascertaining from the doctor that Mst. Jhanwar Mai was in a fit condition to make a statement, he recorded her statement Exh. P.
A. It was then read over to her and she thumb-marked it in token of its correctness. The A. S. I. And Dr. Muhammad Areal also signed it. The doctor has appeared as P. W. 1 and supported the statement of Riaz Muhammad A. S. I., P. W. 10 in this respect. He stated Inter alia that: "On verbal inquiry of A. S. I. Rise Muhammad I had opined that Mst. Ihanwar is fit to make a statement."
' No doubt he (the doctor) has stated that the patient went into a state of unconsciousness for short periods, but he has also stated that she was able to reply to the questions put to her and "was conscious to give the dying declaration." In other words she was conscious at the time when she made the statement in question. It is significant that the defence did not cross-examine the doctor at all. His above-noted assertion, therefore, remains unchallenged. It may be added that Mat.
Jhanwar Mai's ability to make the statement is also borne out by the fact that she survived for about 14/15 hours after receiving the injuries. Although some of the injuries were quite sever, yet their location was not such as could effect her power of speech. It is true that Riaz Muhammad A. S. I. (P. W. 10) would have done better if he had made arrangement for getting the dying declaration recorded by a Magistrate or Tehsildar, etc., but he did not do so. Nor has the defence cared to ask him as to why he did not make any attempt in that direction. Had he been asked, he would probably have given a satisfactory explanation. In any case, the fact that Mst. Jhanwar Mai was Conscious at the relevant time and that her statement Bah. P. A. Was recorded by the A. S. I. In the presence of the doctor is not only borne out by the latter's statement but also by the fact that he (the doctor) had himself signed it. In Taurgul v. The State (1), where also the dying declaration had been recorded by a Sub-Inspector of police after obtaining the doctor's permission and was then signed by the doctor, it was held by a Division Bench of the High Court of West Pakistan that such a dying declaration could be safely relied upon because the doctor's signatures on the same confirmed the presence of the S. I. And further that the deceased (in that case) was obviously conscious because otherwise the doctor would not have permitted ham to record her statement.
Moreover, we do not see why the negligence of the concerned police officer in omitting to follow the relevant polio rules or that of the defence counsel (at the trial stage) to question him, should affect the veracity of the dying declaration or serve to falsify the deponent who, being completely helpless at that time, was in no way at fault. In view of the above-mentioned facts we are satisfied that the deceased was in fact fit enough to make a statement and that Rita Muhammad A. S. i. P.
W. 10 had recorded h statement (Exh. P. A.) in the presence of Dr. Muhammad Afzal P. W.
1.
11. The next question to be considered is whether the contents of the dying declaration are correct.
' The learned counsel for the appellants contended that the story given (1) 1971 P Cr. L if 474 by Mst.
Jhanwar MM (deceased) in statement Exh. P. A. Is not a correct one and that it appears that she was a consenting party to the sexual intercourse because no such injury was found on her person which could indicate that she had been forcibly subjected to rape. He also referred to the statement of Muhammad Nawaz P. W. 6, a brother of the deceased, who has stated during his cross-examination that at the time of her death Mst. Jhanwar Mai (deceased) was living with her parents (i,e, mother and steps father) ; that their women folk observe pardah and that they have a latrine within the four-walls of their house. The learned defence counsel argued that this admission by Muhammad Nawaz P. W. 6 completely falsifies the reason given by Mst. Jhanwar Mai deceased in her dying declaration for having gone out of her house so early in the morning, because in the presence of a latrine inside the house there was no need for her to go out into the fields for easing herself. He contended next that the occurrence had taken place at a time when it was dark {{URDU TEXT}} and the witnesses were not in a position to identity the assailants. The counsel contended further that there was a reasonable possibility that the deceased had gone out to have a sexual intercourse with Mushtaq Ahmad appellant but was discovered by her relatives, who killed her at the spot and then falsely involved the appellants.
12. We have carefully considered these contentions but are not impressed by them.
' It is note-worthy that the defence has not alleged that there was any previous enmity between the deceased and her family on the one side and the two appellants on the other. Mst. Jhanwar Mai (deceased) had, therefore, no reason whatsoever to name either Mushtaq Ahmad or Abdul Ghafoor (appellants) as her assailants. Even if it be said that it was the father and the brother of the deceased who had a grudge or resentment against Mushtaq Ahmad appellant it stands falsified by the fact that none of them has supported the prosecution case against him. Wahid Bakhsh, the step-father of the deceased, was given up by the prosecution as having been won over, while Muhammad Nawaz P. W. (as would be shown presently), went out of his way to make admissions in favour of the appellants.
From a reading of the dying declaration we have formed a strong impression that it has a ring of truth about it. Mit. Jhanwar Mai (deceased) has given a very simple and straight-forward version of the incident. As already mentioned she had no previous enmity with the appellants and as such had no motive to involve them falsely. Moreover, her story is supported by the medical evidence, inasmuch as numerous scratches were found on the neck and face of Mushtaq Ahmad appellant which, according to Dr. Muhammad Afzal P. W. 1, were caused by finger nails.
' The learned counsel for the appellants laid great stress on the admissions made by Muhammad Nawas P. W 7 that at the relevant time Mst. Jhanwar MM deceased was living with her parents and that the house in question had a latrine within its four-walls. However. While considering the effect of these admissions it must be borne in mind that the two appellants are zamindars (land owners), in the village while the complainant party is Mochi by caste. M such the accused party was in a position to influence the prosecution witnesses in the case. 'this view is supported by she application (Exh. P. W. 11/Al made by Abdur Rehman S. I., P W. 14, the Investigating Officer, wherein he requested Malik Wazir-ud-i in, M.
1. C., Muzaffargarh, to word the statement of the eye-witnesses in the case. Under section 164, Cr. P.
C. The reason given in that application was that while the complainant party were poor Mochis, the accused were influential zamindars; that the eye-witnesses were under the influence of the latter and that, there was a danger of their being won over. The above-noted apprehension of the Investigating Officer subsequently proved to be correct, inasmuch as all the prosecution witnesses in the case, (except those who were police officials), either resiled from their earlier statements or made concessions in favour of the appellants. Not only the two eye-witnesses and Baloch Khan P.
W. 8 (the solitary witness of the recovery of the incriminating articles), refused to support the prosecution case but even Muhammad Nawaz P. W. 6, the real brother of the deceased, who bad been produced only to say that he had identified her deed-body at the time of the post-mortem examination, lent himself to the appellants and willingly made admissions in their favour as mentioned above. We find that the admissions made by Muhammad Nawaz P. W. 6 during the cross-examination were made deliberately to help the appellants and, as such, we attach no importance to them.
' It may be mentioned that Mst. Jhanwar Mai (deceased) was a married woman and the natural presumption would be that she was living in the house of her husband, namely, Peer Bakhsh, whose house probably did not have a latrine. It was apparently for this reason that the defence felt it neceseary to show that at the relevant time she was living in her parents' house. Moreover, it is well known that the womenfolk of the kammis of the village like Mcchis, etc., do not observe pardah. In any case, as already observed, the concessions made by Muhammad Nawaz P. W. 6 are of no consequence.
' Although Mau Jhanwar Mai (deceased) had gone out of her house to ease herself at a time which she has described in her statement, &h. P. A, {{URDU TEXT}} the incident itself took place some time later, It cannot therefore be argued that it was too dark ?Or her to identify the assailants. Moreover, she was assaulted from such close quarters that it would not have been difficult for her to recognize the assailants whom she already knew well. There is thus no force in the contention that there is any doubt about the identity of the assailants.
As already observed the deceased had no enmity with the appellants ; she had no motive to involve them falsely and her statement has a ring of truth about it. From the doctor's statement, read with that of Riaz Muhammad A. S. I., P. W. 10, it is obvious that her statement was completely voluntary. In the circumstances of this particular case we feel that the dying declaration (Exhs. P.
A.) can be safely relied upon, without any corroboration. But, as already mentioned, independent corroboration is available in the shape of scratches on the cheek and neck of Mushtaq Ahmed appellant, which were caused by finger nails. It may be mentioned that the duration of these scratches as given by the doctor coincides with the time of the incident. The presence of these scratches also falsifies the suggestion put forward by the defence that she was a consenting party to the sexual intercourse with Mushtaq Ahmed appellant and that on being discovered in a compromising position with him she was murdered by her own relatives. As to the culpability of Abdul Ghafoor appellant, we attach great importance to the fact that the deceased has clearly named him in the dying declaration and has attributed to him equal part in the incident. There is nothing on the record to show that either she or any of her relatives had any previous enmity, grudge or grouse against him, which could have induced her or them, to have named Abdul Ghafoor appellant as one of the assailants. Moreover, we are inclined to agree with the argument of the learned State Counsel that the offence described in statement Exit. P. A. Could not be committed by one person alone and that it required at least two persons to have forcibly carried the unwilling woman to the place of occurrence and caused her ten injuries.
13. As a result of of the above discussion we are inclined to feel that the case against the appellants stands proved beyond reasonable doubt. We, therefore, see no reason to interfere with the impugned judgment. The appeal is accordingly rejected and the death sentences of both the appellants are confirmed.
' This disposes of the appeal and the murder reference.