Law: Evidence Act (I of 1872)

Section: 32

Law: Penal Code (XLV of 1860)

Section: 302

Evidence Act (I of 1872), S. 32-Dying declaration-Can be sole basis of conviction-Mere fact, however, that statement clear as to name and identity of assailant-Does not make such declaration unimpeachable-Murder-Evidence of sole eye-witness disbelieved, statements of witnesses, as regards contents of dying declaration, bristling kith material discrepancies ; possibility that deceased, at time of making declaration, was prone to imagination and hallucina tion-Basing conviction solely on dying declaration in circumstances, of case, held, unsafe-Penal Code (XLV of 1860), S. 302.   Amjad Ali v. The Crown 7 D L R 346 ; Khushal Rao v. State of Bombay A I R 1958 S C 22 ; Abdul Sattar v. The State of Mysore A I R 1956 5 C 168 ; The State v. Md. Khalilur Rehman 9 D L R 327 ; Shahbaz and another v. The Crown P L D 1955 Lah. 65 and hi re: Garuswami Tevar and other's A I R 1940 Mad. 196 considered.      JUDGMENT   BAQUER, J.-Abdur Rashid has been convicted under section 302 of the Pakistan Penal Code and condemned to death by The Additional Sessions Judge, Dacca. The Additional Sessions Judge has referred under section 374 of the Code of Criminal Procedure for confirmation of the death sentence. The condemned prisoner has also appealed. We dispose of both the Reference and the appeal together.   The trial was held with the aid of four Assessors, all of whom were of opinion that the condemned prisoner was guilty of the offence charged under section 302 of the Pakistan Penal Code.   The prosecution examined fourteen witnesses and defence did not examine any witness.   The prosecution case is that appellant Abdur Rashid is bhagina (sister's son) of deceased Safdar Ali of Gazipara within police station Joydebpur. On the 30th Magh, 1370 B. S. corres ponding to 13-2-1964, corresponding to 28th Ramzan last, Safdar Ali, after finishing his iftar, went to the corner between the east and south bhiti huts to perform ozu (ablution) for magrib prayer when appellant Abdur Rashid struck him with a katra (spear) Exh. 1, causing injury in the abdomen, as a result of which part of the intestines came out. On his outcry, his wife, P. W. 2…