ABDUL HAYEE KURESHI, J.---Appellant Naney Khan was tried on a charge of murder of Mst. Aziza, his wife, in the Court of 1st Additional Sessions Judge, Hyderabad, and on being found guilty he was sentenced to death and ordered to pay a compensation of Rs. 5,000 (in default R. I. For six months) under section 544-A, Cr. P. C. The appellant has filed an appeal through Mr. Muhammad Hayat Junejo, Advocate, who has appeared before us for him. The State was represented before us by Mr. Manzoor Hussain, Advocate, who has not supported the judgment of the trial Court. On the conclusion of the hearing of this case on 13-9-1978, we had, by a short order, set aside the judgment and the sentence imposed upon the appellant and acquitted him. The Additional Sessions Judge has also referred the case under section 374, Cr. P. C. For confirming the death sentence imposed on the appellant and this reference was also heard along with the appeal and we declined to confirm the sentence of death. The reasons for the said order follow presently.
2. The brief facts of the case are that Mst. Aziza, the deceased was married to appellant Naney Khan about two years before the date of this incident which took place on 2-3-1975. The appellant and the deceased lived along with the father and brother of the appellant in a house located in Unit No. 8 at Latifabad, Hyderabad. On the date of incident, in the early morning hours; the appellant asked the deceased to prepare breakfast for him but' the deceased stated that she would do so after returning from the latrine. As soon as the deceased returned from the latrine, the appellant sprinkled kerosene oil from a bottle on her clothes and set fire to the clothes, which resulted in the burning of body of the deceased. It seems cries were raised by the deceased, which attracted the father and mother of the appellant as also P. Ws. Abdul Hakim and Mst. Rashida, who is a sister of the deceased and was married to brother of the appellant. The appellant and his father carried the deceased to the Liaquat Medical College Hospital, where she was treated but unsuccessfully and she died on 6-3-1975. The cause of death, as stated by Dr. Muhammad Siddiq, was extensive burns on the whole of the face, neck, chest, abdomen and both the upper and lower extremities as also on the back of whole of the body.
3. When the deceased was carried to the Hospital Dr. Bashir Ahmad, the Registrar of Liaquat Medical College Hospital, admitted her in Surgical Unit No. 3. It seems that there is a police post near the Casualty Department of the Hospital and since no report had been made in respect of the crime at any Police Station, Dr. Bashir Ahmad informed a policeman at that post on telephone. It is then the prosecution case that a police constable did come to the Ward but he went away after 15/20 minutes. It is then stated that this constable brought some other policeman after a couple of hours and a statement of the deceased was recorded. Be that as it may, the prosecution has placed a statement of the deceased which was recorded on 2-3-1975 by H. C. Gohar Rehman.
Earlier the deceased had told Dr. Bashir Ahmad that she had been burnt by her husband, the appellant, on 3-3-1975, S. I. P. Ali Nawaz of Latifabad Police Station visited the hospital at or slightly before 5-30 p.m. And recorded another statement of the deceased while she was to the hospital.
This statement was subsequently incorporated in section 154, Cr. P. C. Book maintained at Latifabad Police Station and treated as the first information report. Again on 5-3-1975, S. I. P. Ali Nawaz requested the Additional District Magistrate, Hyderabad, to depute a Magistrate for recording the dying declaration of Mst. Aziza. Mr. Sher Ali, the Head Munshi and 3rd Class Magistrate was deputed and he came to the hospital on the same day at about 1 p.m. And recorded another statement of the deceased.
4. After S. I. P. Ali Nawaz of Latifabad Police Station registered the first information 'report he visited the scene of occurrence which was in the house of the appellant and secured a burnt quilt, one under-sheet, a part of burnt shalwar, tape and an empty bottle smelling kerosene oil as well at match-box. A Mashirnama was prepared in the presence of Habibullah and Haji Shah Muhammad, the former out of whom has. Been examined as a witness. The Police Officer had also prepared a Mashirnama in regard to the injuries on the person of the deceased in the presence-of Mashirs Abdul Shakoor and Aziz out of whom the latter has been examined in the Court. The appellant was arrested on 3-3-1975 and he was found to have burnt marks on the right hand. A Mashirnama of his arrest was drawn up in the presence of Abdullah and Abdul Hameed. The Police Officer recorded the statement of H. C. Gohar Rehman at the police, post near the Casualty Department and Dr. Bashir Ahmad, who had examined the deceased. On 4-3-19.75, the Police Officer recorded the statements of Mahboob, Nazeer, Mst. Hafizan, Allahdin, Saleem, Nizam, Mst. Rashida and Abdul Hakim. On 6-3-1975, the Police Officer was informed about the death of deceased Aziza when he converted the offence he was investigating from one under section 307, P. P. C. To one under section 302, P. P. C:
5. At the trial the prosecution examined Dr. Bashir Ahmad, who had treated the deceased and to whom the deceased narrated that the injuries were caused to her by the appellant. The prosecution examined H. C. Gohar Rehman, who had recorded the dying declaration of the deceased and had informed Latifabad Police Station in regard to occurrence. Magistrate Sher Ali was examined to prove the dying declaration recorded on 5-3-1975. This dying declaration was attested by Dr. Wazir Muhammad, who has been examined as a witness. S. I. P. Ali Nawaz has been examined to depose in regard to the first information report, which had been treated as dying declaration pursuant to death of the deceased. The prosecution has also examined Mst. Rashida, the sister of the deceased and Abdul Hakim, who was produced t:) corroborate the evidence of Mst. Rashida. Both these witnesses have deposed in regard to the circumstances under which Mst.
Aziza was burnt. The deposition of Dr. Muhammad Siddiq, who had treated the deceased was brought on the record of the Sessions Court under section 509, Cr. P. C. The remaining witnesses examined by the prosecution were the Mashers in the case whose evidence is of a formal nature.
6. The appellant in his statement under section 342, Cr. P. C. Denied the prosecution case and stated that Mst. Rashida was not present in the house. He went on to state that his relations with his wife were as cordial as can be of spouses. In regard to P. W. Abdul Hakim he stated that ht was a friend of the father of the deceased. To the general question asked of him if he would like to state anything he replied as follows:-- "T was married to Mst. Aziza 2 years prior to the incident. She was my relation and my brother also married Mst. Rashida sister of Mst. Aziza. I and my wife used to live with my father and mother at Latifabad. I loved Mst. Aziza very much. I had no disagreement with my wife during my marriage.
The father of Mst. Aziza died 2 months prior to this incident. I myself bad taken my wife and my sister-in-law to the house of my father-in-law where we participated in the burial ceremony. My wife and my sister-in-law stayed there up to Chehlum. My wife came back to my house alone.
While Mst. Rashida who was pregnant therefore she stayed there in the house of her mother. It is our custom that the first child after the marriage is born in the house of her parents and hence she was there up to the time of this incident and she never came to our house till the death of Mst.
Aziza. On day of incident I was sleeping along with other family members when I heard cries of Mst.
Aziza, my father Allahdin, my brother Mehboob and my mother also got up and we saw that Mst.
Aziza's clothes had caught fire from the stove and she was raising cries. She was wearing nylon clothes and therefore fire spread very rapidly. I and my father tried to extinguish fire by putting quilt and dart over her. On the cries, our neighbours, Salim and Nizam had also come there. In our presence we asked her the reason how she got the fire. She said that her Dupatta of nylon had accidentally caught fire from the stove and hence she has been burnt. She was in habit to prepare the tea in the morning and on that day also she was preparing tea for ourselves. I never asked her to prepare meals nor I beat her or set fire on her. I was also burnt from the fire. I produce the outdoor patient Department slip dated 2-3-1975 as Exh. 19-A. When I, my father and others had taken her to the hospital she had said in her statement before the clerk who bad written the prescription of Mst. Aziza and also Casualty Medical Doctor who examined her first on the arrival in the hospital she said that she had been accidentally burnt. When the parents of Mst. Aziza came in the evening in the hospital they tutored her this story which is false and fabricated. I am innocent.
Mst. Rashida has taken divorce from my brother therefore we both are ruined now."
The appellant also produced a slip from the Outdoor Patient Department to show that he had received burn injuries while rescuing the deceased. The appellant examined his father, Allahdin and his neighbour Nizam in his defence. Both these witnesses have stated that the deceased was injured by fire while she was igniting the stove when her clothes caught fire. Both these witnesses have stated that the deceased and the appellant lived a happy married life.
7. The trial Court has not relied on the evidence of Mst. Rashida and Abdul Hakim. Mst. Rashida is the sister of the deceased and she claimed to reside in the same house in which the deceased resided because she was married to Mehboob, the brother of the appellant. She has stated that for some days before the occurrence she had gone to attend the burial ceremony of her father and the deceased in spite of having been prevented by the appellant had accompanied her to their father's house: It was sought to be established that for such reason the deceased used to be maltreated by the appellant. In regard to the occurrence she has stated that the appellant asked the deceased to prepare breakfast, upon which she replied that she would prepare the same after returning from the latrine and when she returned the appellant sprinkled kerosene on her body and set her a fire with a burning match-stick. It was stated by her that the deceased fell on a cot and the bedding also caught fire. She, however, stated that on the cries of the deceased the father and mother of the appellant extinguished the fire and in the meantime P. W. Abdul Hakim also came there to whom the circumstances of the transaction were related by the deceased. The evidence of Abdul Hakim is also substantially to the same effect. The several dying declarations, three out of which are in writing do not mention the presence of Mst. Rashida or the arrival of P. W. Abdul Hakim at the scene. On a perusal of the deposition of Mst. Rashida it appears that she had gone to the house of her parents presumably on account of the death of her father and had returned on the day previous to the incident. She had stated in the Committal Court that even the deceased was with her all along. In the dying declaration it has not been stated by the deceased that she had gone away to the house of her parents or that her going to her parents' house was against the wishes of her husband, the appellant, or that this fact was the reason which gave a motive for the crime to the appellant. However, this statement of Mst. Rashida in the Committal Court was denied by her in the Sessions Court. Mst. Rashida also denied that the appellant attempted to extinguish the fire, although it is established on the record that appellant also received burn injuries on his hand. Mst. Rashida even denied that the appellant received any burn injuries. Mst. Rashida had not mentioned P. W. Abdul Hakim as having come on the scene at the time of incident in her police statement, although in her statement under section 164, Cr. P. C. Which was recorded after 15 days of the incident she had mentioned that the people from the Mohallah had come but the name of Abdul Hakim does not transpire even in that statement. She has admitted that her police statement was recorded after 15 days of the incident. Several contradictions have been brought out in cross-examination of Mst. Rashida in relation to her polite statement, 164, Cr. P. C. Statement and her statement in the Committal Court. For the reason of delay of 15 days in recording of her police statement and her 164, Cr. P. C. Statement, we are not inclined to rely on her evidence. She has been divorced by Mehboob, the brother of the appellant. The evidence of P. W. Abdul Hakim is also not credible. He has also attempted to show that while others were trying to extinguish the fire that had enveloped the deceased, the appellant was quietly standing by. This witness also was examined under section 164, Cr. P. C. After 15 days of the incident. Admittedly be is residing at a distance of one mile from the scene of occurrence and has explained his presence by stating that he sells eggs and bread and therefore had come to the locality at such an early hour but he has also admitted that he was serving in a mill until a month before when his services were terminated.
There is some searching cross-examination in regard to the vocation of this witness but he was unable to produce any document which might support his assertion that he was a hawker. In any case he had given up the profession of hawking when he appeared before the Court of Session. He has admitted that he did not inform the police about this occurrence and proceeded to state that police had called him in the morning for recording his statement but told him to come again in the evening for the same purpose. This is patently false because report was registered on the day following the incident at 5 p.m. He was confronted with his statement under section 164, Cr. P. C.
And in that statement he had not stated the reasons for which the appellant had committed this crime.
8. Both witnesses P. W. Mst. Rashida and P. W. Abdul Hakim have admitted that thousands of persons live in the locality and many of them had come at the time of incident. Mst. Rashida had, however, named Nizam as one of those persons who had come on the scene but in spite of his having been examined by the police he was not produced in the Court by the prosecution and the appellant examined him as a defence witness. Nizam has stated that Mst. Rashida was not in the house on the day of the incident and in regard to P. W. Abdul Hakim he has stated that he used to work in some textile mill and has never sold eggs as a hawker. Good reasons have been shown for disbelieving these two witnesses and we agree with the result at which the Additional Sessions Judge arrived.
9. The only piece of evidence that deserves consideration in this case is the several dying declarations made by the deceased. Under this head of evidence there are three dying declarations in writing viz. One recorded by H. C. Gohar Rehman, the other recorded by S. I P. Ali Nawaz and the third by Magistrate Sher Ali. Oral dying declarations have been deposed to by Dr. Bashir Ahmad and prosecution witnesses Mst. Rashida and Abdul Hakim as well as defence witness Nizam. While dealing with the evidence of Mst. Rashida and Abdul Hakim, we have arrived at a conclusion that these two witnesses are not reliable. We have entertained grave doubts in regard to their presence at the scene and consequently, in regard to the deceased having disclosed any facts to them. We, therefore, proceed to consider the remaining four dying declarations namely the three in writing and the fourth oral deposed to by Dr. Bashir Ahmad.
10. Dr. Bashir Ahmad was the Registrar in the Liaquat Medical College Hospital, Hyderabad, where the deceased was brought for treatment. He has stated that the deceased was conscious and told him that she had been burnt by her husband, who had thrown kerosene oil on her clothes and set her a fire. The name of the husband was not disclosed by her. This witness has further stated that he informed a policeman in regard to the case and such policeman came to the Ward and stood by the side of the deceased but did not write anything. He has further gone on to state that this policeman had brought another policeman after 1 J or 2 hours when the latter recorded the statement of the deceased. The Assistant Public Prosecutor called some head constable in Court, who was identified by Dr. l3ashir Ahmad as the first policeman, who had come on his telephonic call. Curiously, neither the Public Prosecutor nor the Court thought it necessary to record the name of that Head Constable, who had been called in Court for identification. This Head Constable might have been Gohar Rehman. Dr. Bashir Ahmad has not stated the time when he called the policeman on telephone. In cross-examination Dr. Bashir Ahmad was confronted with his statement in the Committal Court in which he had stated, "On that day police did not come in the Ward". These two statements are in complete variance to each other because when read together they create a doubt as to whether the statement of Mst. Rashida was recorded by H. C. Gohar Rehman on 2-3- 1975 or on the following day. In addition, it may be pointed out that Dr. Bashir Ahmad had not stated in the Committal Court that the policeman in question had recorded the statement of the deceased in his presence. In such context we have seen the original dying declaration recorded by H. C. Gohar Rehman on the top of which is written the date as "2-3-1975" but the figure "2" in this statement contains an interpolation or overwriting. We again have the evidence of S. I. P. Ali Nawaz, who has stated that it was only on 3-3-1975 that he received in--formation with regard to the occurrence and he then proceeded to the hospital where he recorded the dying declaration of the deceased which he incorporated in section 154, Cr. P. C. Book, to be treated as the first information report. This report was registered at 5-30 p.m. These circumstances clearly cast a doubt on the evidence of Dr. Bashir Ahmad as to whether on 2-3-1975 he had at all informed the police and whether H. C. Gohar Rehman had recorded the statement of the deceased on 2
11. Coming to the factual aspect of the dying declaration recorded by Gohar Rehman, it would be profitable to reproduce the whole of it and the same reads as follows :-- "About 2 years ago I was married to Naney Khan. Today in the morning I woke up, my husband, Naney Khan also woke up. Other inmates of the house and two brothers of my husband, mother- in-law and father-in-law all were sleeping in the house. My husband asked me to prepare meals for him. I told him that I will prepare the same after making water. Thereafter I went to latrine. When I returned from latrine, my husband gave two slaps over my face and sprinkled kerosene oil over my body from the bottle and set me on fire. I raised cries on which all inmates of the house who were sleeping awakened. My father-in-law and other inmates of the house tried to extinguish the fire. After extinguishing the fire my husband and father-in-law brought me at Red Lamp of Civil Hospital for treatment. On the way my husband told me that I should tell Hospital people that I have been burnt due to the bursting of the stove accidentally. But in fact my husband has set me on fire and all Mohallah people know this thing but nobody will depose as these Mohallah people are related to my husband."
It would appear on a plain reading of this document that the deceased did not state that her relations with the appellant were strained and what is more that no witness besides the inmates of the house was named in this statement: What is more surprising is an anxiety on her part to show that the appellant had persuaded her to disclose that she was burnt on account of the bursting of a stove. The Investigating Officer did not find any stove in the house which may have burst and if that be so, it is hardly credible that the appellant would have asked the deceased to attribute injuries to the bursting of a stove. In regard to the 'witnesses she exhibited her anxiety to explain away the absence of witnesses or at least to conceal the names of such persons who might have seen the incident or may have come-on the scene immediately.
12. The next dying declaration is the one which had been recorded by S. H. O. Ali Nawaz. This witness had stated that for the first time that he bad received any information about this incident the time was 3-25 p.m. On 3-3-1975. On a perusal of this statement one finds a marked improvement over the earlier statement recorded by H. C. Gohar Rehman. We find that she has made an allegation that before the date of this incident appellant quarrelled with her several times on domestic affairs.
We also find that the deceased had introduced the name of one Salim, a son of the elder brother of her father-in-law as a person to whom she had narrated the facts. Salim has not appeared as a witness and therefore there is no means of knowing if her statement to such effect is correct. The story about the appellant prompting her to disclose in the hospital about the bursting of the stove is once again repeated but the extent to which this part of her statement can be criticised has already been stated in the foregoing paragraph.
13. Lastly there is the dying declaration recorded by the Magistrate on 5-3-1975. In this statement again the deceased wend on to state that ever since her marriage with the appellant she had always been beaten and threatened by him. She also introduced a story that before the kerosene oil was thrown on her body she had been given a eating. She further improved the narration that besides Salim, the person whose name was introduced in the statement which was recorded by S. H. O. Ali Nawaz, Nizam also came on the cries and rescued her. Nizam, as stated above, was not examined by the prosecution but he was examined by the appellant and he has not supported the dying declaration. In this last statement she has not stated that the appellant had prompted her to disclose that injuries were received by her on account of stove burst.
14., On a careful perusal of the three dying declarations in writing and the oral one, we find that there is a constant desire on the part of the deceased to show that the incident was a result of previous quarrels between the spouses as also a desire to introduce witnesses, who according to her, might be favourable. It has come in the evidence of Dr. Wazir Muhammad that the relatives of the deceased were living with the deceased in the hospital. Even H. C. Gohar Rehman had stated that when he had gone to the Ward to record the statement of the deceased at about 4 or 5 p.m.
On 2-3-1975 (which we believe is 3-3-1975) he saw two ladies sitting by her side.
15. Our attention has been drawn to the case of Zarif Khan v. The State (PLD 1977 S C612) in whish several cases on dying declarations were reviewed by their Lordships of Supreme Court and while holding that a dying declaration may, by itself, form the basis of conviction, his Lordship, the present Chief Justice of Pakistan, has observed that a dying declaration has to be judged as any other piece of evidence in the light of surrounding circumstances. In th4t context the Court, while testing the credibility and reliability of a dying declaration, has to keep in mind the various circumstances to find, in cases where there are more than one dying declaration, that the several statements are consistent and also whether the dying declaration is made at the earliest opportunity and does not exhibit tutoring by interested party. In short it would appear that since the maker of a dying declaration does not make the statement on oath nor is subjected to cross- examination, the evidence furnished by such dying declaration has to be scrutinized very carefully to find out if a sanctity is exhibited by the statement, which is of a nature as might remove all doubts. If on the other hand the dying declaration contains varying versions and shows a desire on the part of the maker thereof to make improvements in the successive statements, such dying declarations are always viewed with suspicion, more so when motives are attributed and witnesses are sought to be introduced in the latter dying declarations.
16. Motive in this case is of special significance. There are two versions namely that death was accidental and that the death was homicidal. The version of the appellant is that the clothes of the deceased caught fire while she was preparing breakfast. The version of the prosecution is that the appellant sprinkled kerosene on the deceased and set her on fire. In the case of Sultan Muhammad v. The Crown (PLD 1954 FC 29), the Court pointed out that in cases of this nature there can be no presumption that the act was voluntary and intentional. By reference to section 105 of the Evidence Act the Federal Court expressed the view that even if the accused failed to show circumstances necessary to establish the accident pleaded by him, still the prosecution has, by evidence, to prove the general issue. In such cases both the versions have to be placed in juxtaposition and the Court has to see whether the probability of an accident is completely excluded. This appears to be consistent law which was propounded by the Court of Appeal in England in the case of Woolmington and armed by the Federal Court of Pakistan in the case f Safdar Ali v. The Crown (PLD 1953 FC 93) and later cases. In cases where the question is whether death was caused by accident or was homicidal, motive assumes importance. Applying these tests it would appear that the desire on the part of the deceased to introduce the story of previous quarrels and beatings, in her subsequent dying declarations rob these declarations of a greater part of their sanctity and reliability. The deceased even tried to introduce the names of the witnesses in her latter statement, although in the first statement before H. C. Gohar Rehman, she had stated that many people of the Mohallah knew about this incident but none of them would depose because all of them were related to the appellant. In the last statement she even stated about a beating immediately preceding the sprinkling of kerosene.
17. In juxtaposition with the dying declarations, which contain the belated disclosure of motive, the conduct of the appellant immediately after the incident is also not without significance. While Mst.
Rashida and Abdul Hakim are interested in showing that while the deceased was enveloped by fire, the appellant quietly stood by, although his mother and father Acre trying to save the deceased.
We have disbelieved these witnesses for more than sufficient reasons, but there are circumstances to show that the appellant made efforts to save the deceased. The evidence discloses that the fingers of the appellant were burnt for which he was medically treated and further that the appellant had carried the deceased to the hospital for treatment. Both these circumstances together with the evidence of defence witnesses Allahdin and Nizam, supported by the evidence of Dr. Bashir Ahmad and H. C. Gohar Rehman clearly shows that the appellant tried to rescue the deceased and promptly took her to the hospital for treatment. Such circumstances are more compatible with the innocence of the appellant rather than his guilt.
18. It, therefore, appears that the various dying declarations which have their own frailities are also contradicted by established circumstances of the case. The law is clear that dying declarations are to be tested for their veracity by the same standards as any other piece of evidence and when there are more than one dying declarations all of them have to be considered together and none in isolation. We are, therefore, of the view that it would be risky to rely on this piece of evidence to sustain the conviction without corroboration.
19. Having given our anxious consideration to the facts of the case we are of the view that the case against the appellant has not bee proved beyond reasonable doubt. He is entitled to benefit of doubt and w accordingly acquit him of the charges. We allow this appeal and decline t confirm the sentence of death imposed on him. The appellant shall be set at liberty forthwith unless required in any other case.