M. Javed Buttar, J.--The petitioner Mst. Zahida Bibi, the co-accused Muhammad Saleem (the petitioner's husband) and Mst. Zubaida Bibi (the petitioner's sister) were tried by the Additional Sessions Judge, Lahore in case FIR No, 69/1999 dated 22.4.1999 registered at Police Station Garhi Shahu, Lahore for the offence under Section 324/34 PPC, on the statement of the complainant/Mst.
Abida Bibi (the deceased), wife of Muhammad Nadeem. On the death of the complainant the offence was changed to Section 302/34 PPC. The trial Court vide its judgment dated 30.5.2001, while acquitting the co-accused Muhammad Saleem, by extending him the benefit of doubt, convicted the petitioner and Mst. Zubaida Bibi under Section 302-B/34 PPC and sentenced them to imprisonment for life and also directed them to pay Rs, 50,000/- each as compensation to the legal heirs of the deceased under Section 544-A, Cr.P.C. and in default of the payment of the same, to further undergo six months S.I. each. They were, however, extended the benefit of Section 382-B Cr.P.C. The co-convict Mst. Zubaida was on bail. She was directed to be taken into custody. The joint appeal of the petitioner and Mst. Zubaida (Criminal Appeal No, 921/2001) was dismissed by a learned Single Judge of Lahore High Court vide his judgment dated 15.8.2002. At the announcement of the order, both the appellants were on bail and were directed to be taken into custody to serve out their sentence. Only the petitioner has come forward through this Jail Petition, seeking leave to appeal against the judgment of the High Court. We have been informed that the co-convict Mst. Zubaida Bibi, after dismissal of her appeal, was not taken( into custody and she has not filed any petition before this Court.
2. The relevant facts as alleged by the complainant, in her complaint are that she was residing on the ground floor of the house at the address mentioned in the complaint, while the accused Muhammad Saleem, her husband's brother (the complainant's Jaith) and his wife Mst. Zahida Bibi, the petitioner, resided on the first floor and the parties used to quarrel with , each other as the petitioner used to throw filth in her house on the ground floor and on the day of occurrence when her husband Muhammad Nadeem, as usual, had left for his shop, Muhammad Saleem and the petitioner called the co-accused Mst. Zubaida, sister of the petitioner, to their house and at about 1.00 p.m. when she was cooking food on a Kerosene Oil Stove, all the three accused came down stairs and Muhammad 'Saleem asked his wife, the petitioner and the petitioner's sister Mst. Zubaida Bibi to throw the burning oil stove-on her, where upon the petitioner and here sister Mst. Zubaida threw the burning stove on her, her cloths caught fire and she was badly burnt. It was further alleged that on her hue and cry, her neighbour Mst. Khurshid Bibi wife of Ashiq and other persons of the locality got attracted and Muhammad Saleem (the acquitted accused) and Mst. Khurshid Bibi brought her to the Emergency Ward of the Mayo Hospital, Lahore and got her admitted there. The complainant concluded that Muhammad Saleem, his wife the petitioner and the petitioner's sister Mst. Zubaida with the connivance of each other had thrown the burning stove on her and had burnt her with the common intention to kill her.
3. On receipt of the information in regard to the occurrence, SI Bashir Hussain (PW-11), reached the Emergency Ward of the Mayo Hospital, obtained a certificate from the doctor in regard to the fitness of the complainant to make a statement, recorded the complaint (detail above) lodged by the complainant at 5.55 p.m. on 22.4.1999 and sent the same to the Police Station through Constable Muhammad Arif for the registration of the formal FIR which was recorded by ASI Javed Iqbal on the same day, at 6.25 p.m.
4. In the investigation, all the accused were found guilty and challaned to face the trial. The accused pleaded not guilty to the charge framed by the trial Court for the offence under Section 302/34 PPC and claimed trial.
5. The prosecution produced 12 witnesses. PW-1 Mst. Munaza Arshad deposed that on the day of occurrence when she came to the house of her sister-in-law i.e. the complainant, at about 1.00 p.m., a boy was also standing at the main door, they heard the noise of quarrelling from inside the house, they entered the house and saw that the acquitted co-accused Saleem was asking his wife Mst. Zahida, the petitioner and his sister-in-law Mst. Zubaida to burn the complainant with Kerosene Oil and simultaneously both the convicts threw burning Kerosene Oil Stove on the complainant and at that time Saleem also caught hold of the complainant so that she may burn completely. She further stated that she and the other boy namely Shahzad (PW-2) tried to rescue the complainant but all the three accused pushed them away, then they went out side in the street and raised hue and cry, which. attracted the neighbourers and thereafter Saleem accused brought a Motor Cycle Riksha in which Saleem and Mst. Khurshid Bibi took the complainant Mst. Abida to the hospital. The statement of this witness was recorded by police on 12.5.1999.
6. PW-2 Shahzad Hussain deposed to the same effect as by PW-1 Mst. Munaza Arshid. He further deposed that Saleem's hands were also burnt. PW-3 Muhammad Kashif Motor Cycle Riksha driver stated that the deceased was taken to the hospital by Muhammad Saleem and another woman in his Motor Cycle Riksha, which was arranged by Muhammad Saleem and on the way to the hospital Mst. Abida deceased stated that she was burnt by Saleem, Zahida and Zubaida and at that time the hands of Saleem were also burned. The statement of this witness was recorded by the Investigating Officer on 12.5.1999. PW-4 Arshad Mehmood, the brother of the complainant deposed that the complainant was in her senses in the Emergency Ward and had told him that the petitioner and her sister Mst. Zubaida at the instigation of the petitioner's husband Saleem had thrown the burning stove of Kerosene Oil on her by which she received the injuries. PW-5 Dr. Muhammad Abaid Ullah examined the complainant on 22.4.1991 at 2.00/2.30 p.m and found 70% burning of the body involving face, both upper limbs, front and back of chest, front and back of abdomen and both thighs partially and in his opinion the burning was.due to Kerosene Oil fire. It was stated by him in the cross-examination that PW-6 took the dead body to mortuary. I do not remember that if any other person other then Saleem' accused was also present with the injured: It is correct according to the record only Saleem accused was present with the injured. I did not record a separate statement of the injured. The injured was brought to the emergency by accused Saleem and not by the police.
7. PW-7 Dr. Iftikhar Ahmad conducted the autopsy on the dead body of Mst. Abida on 23.4.1999 at 9.45 p.m. and gave the details of burns which in his opinion, were Anti-mortem and caused by thy flame. The cause of death was stated to be 80% burns and its complications.
PW-8 Nazir Ahmad S.I. arrested both the female accused on 8.6.1999.
PW-9 .laved Iqbal ASI, drafted the formal FIR.
8. PW- 10 Dr. Muhammad Absar Sarati deposed that on 22.4.1999 while he was posted as House Surgeon at South Surgical Ward Mayo Hospital, Lahore, Bashir Hussain S.I. (PW-11) presented before him an application (Ex. PG) for recording the statement of complainant Mst. Abida, upon which he gave a note (Exh. PG/1) that Mst. Abida was fit to make a statement which was in his hand writing and signed by him.
9. PW-11 Bashir Hussain SI/L0 deposed that on receiving of a report, he reached Emergency Ward of Mayo Hospital, obtained permission from the doctor to record statement of Mst. Abida through application Ex. PG, recorded the statement of Mst. Abida (Ex. PF), which was thumb marked by Abida (Ex. PF/2) dispatched the complaint (Ex. PF) for the formal registration of the FIR, went to the place of occurrence, inspected the same, took into possession Kerosene Oil Stove (P1), prepared a site-plan (Ex. PJ), on the death of Abida on 23.4.1999, prepared inquest report (Ex. PD), arrested the accused Saleem, prepared the injury statement of Muhammad Saleem accused (Ex. PK), got prepared the site-plan from the draftsman on 7.5.1999 and thereafter the investigation was transferred from him to ASP Mr. Sultan A-hmad Chaudhry (PW-12).
10.PW-12 Sultan Ahmad Chaudhry, ASP stated that on 12.5.1999 he recorded the statements of three P.Ws namely Mst. Munaza, Kashif and Shahzad, after completing the investigation the case file Was sent by him to the local police on 5.7.1999. CW-Younas Bukhari draftsman identified the hand writing and signatures of the- draftsman Imran Bukhari who had prepared the site-plans (Ex.
PE and PE/1) and had left for abroad.
11.All the three accused in their statements under Section 342 Cr.P.C. denied the allegations and alleged that Mst. Abida had committed suicide. They did not opt to appear as their own witnesses under Section 340(2) Cr.P.C. However, they produced three defence witnesses namely, Mst.
Khurshid Bibi (DW.1), Mst. Zainab Bibi (DW-2) and Muhammad Azam (PW-3).
12.DW-1 Mst. Khurshid Bibi deposed that on the day of occurrence, after hearing noise, when she reached the house of the complainant, she saw that complainant had caught fire and the petitioner and her husband Saleem were trying to put it off, she, petitioner, Saleem and the driver of the car, took her to the hospital in the vehicle provided by Mst. Zainab, she remained in the hospital from 2.00 p.m. to 7.00 p.m. and that on the way to the hospital and in the hospital, Abida did not make any statement in, her presence.
13.DW-2 Mst. Zainab Bibi stated that on the day of occurrence when she was called by Mst. Uzma daughter of Mst. Khurshid Bibi, she went to the house of Abida Bibi and saw that the clothes of Abida Bibi were burning and the Saleem accused was putting off the fire, whereupon she called her driver Azam alias Puppo (DW-3), who brought her car, in which Abida was carried to the hospital by Saleem accused, who was sitting on the front seat and that on the back seat of the car Mst.
Khurshid Bibi and the petitioner were sitting, keeping Abida Bibi in the center. She further stated that in her presence Abida did not make any statement against any one and that the accused persons in this case were innocent. DW-3 Muhammad Azam alias Puppo supported DW-2 Mst.
Zainab Bibi. He further stated that on the way to the hospital, the complainant/deceased did not make any statement against any one.
14.We have heard the learned counsel for the parties and have seen the relevant record.
15.It is submitted by the learned counsel for the petitioner that the prosecution has failed to prove its case against the accused beyond reasonable doubt, there is no eye-witness of the occurrence, the case of the prosecution is based on the sole statement of the deceased which cannot be considered as a dying declaration because it had not been verified by the doctor or the Magistrate, the statement of the alleged eye-witnesses were recorded after about 20 days of the alleged occurrence and their names are not mentioned in the F.I.R. therefore, their evidence cannot be accepted under the law, there is delay of 5 hours in lodging the F.I.R. and the distance between the place of occurrence and the police station is only one kilometer the site-plan of the place of occurrence (Ex.PE), was prepared after 7 days Of the date of occurrence. The Kerosene Oil Stove (P- 1) was produced in Court without seal and Mst. Kurshid Bibi, an eye-witness of the occurrence, was not examined by the prosecution rather she was produced by the accused in support of defence version. Learned counsel pointing out the contradictions and discrepancies in the prosecution evidence, asserted that prosecution has not been able to bring on record any independent and reliable evidence providing corroboration to the dying declaration whereas, the correctness of the defence version was evident from the circumstances under which the incident had taken. place.
The learned counsel added that the claim of Muhammad Arshid (PW-4), real brother of the deceased, of his present at the time of recording the statement of the deceased by the investigation officer, would create serious doubt qua the credibility of dying declaration of the deceased and similarly motive set up by the prosecution was not plausible.
16.The learned Assistant Advodate-General, Punjab supported the impugned judgment with the assertion that the dying declaration made by the deceased in the hospital was seeking sample corroboration from independent source and being truthful and confidence inspiring, alone would be sufficient to prove the charge. He submitted that defence version was afterthought and the concurrent finding of the two Courts qua guilt of the petitioner being not suffering from any misreading or non-reading of evidence or any other legal defect would not call for interference of this Court.
17.This is a case of two versions. The prosecution version as contained in the FIR is that the petitioner at the instigation of Muhammad Saleem, the acquitted accused, threw burning kerosene oil stove on the deceased as a result of which she sustained burnt injurious which proved fatal to her life whereas according to the defence version deceased committed suicide. The perusal of the statement of the eye-witnesses and the dying declaration would suggest that both versions of the occurrence were based on exaggerations and the circumstances leading to the sad incident would suggest that probably the deceased sustained the burnt injuries with burning kerosene oil stove by chance in consequence to the sudden quarrel between the ladies. The presence of Shahzad Hussain (PW-11), the sole eye witness of the occurrence, a resident of Kachi Abadi, Mehmoodabad, situated at. a reasonable distance from the house of deceased located in main Bazar, Garhi Shahu in the area of Police Station, Haveli Haji Moosa at the relevant time, was not satisfactorily explained therefore, notwithstanding the fact that witness had no enmity or grudge- against the petitioner or the acquitted accused, his presence at the scene of occurrence being doubtful, it would not be safe to place reliance on his evidence. The medical evidence revealed that 70% body of the deceased was burnt and this is a matter .of common sense that in such a precarious condition, it was not possible for the deceased to narrate the occurrence in each detail to Muhammad Kashif (PW-3), rickshaw driver and Sh. Bashir Hussain, S.I. (PW-2) who recorded the statement of deceased in the hospital. The Sub-Inspector has claimed to have obtained the permission from Dr. Muhammad Absar Sirati (PW-10) present on duty and no doubt the said doctor has also confirmed to have given such permission but certainly the statement of the deceased was recorded in absence of the doctor and the staff of the hospital. This may be seen that permission for recording the statement of deceased was not obtained from Dr. Muhammad Obaidullah (PW-5) who initially examined the deceased on her arrival in the hospital and provided her the treatment so much so the chart of the patient containing initial investigation regarding the condition of the deceased prepared by him was not. produced in evidence to show that she was conscious and was fit to make a statement. Sultan Ahmed Chaudhry, ASP (PW-12) stated that petitioner Had cordial relations with the deceased and as per his investigation, none of the witnesses was present at the spot at. the time of occurrence and that except the dying declaration of the deceased, no other evidence, direct or circumstantial, was available. This in an admitted fact that the statement of the deceased was not recorded by the Sub-Inspector of police in hospital in presence of the doctor and further neither any member of the hospital staff was associated at the time of recording the statement nor it was got verified by any official of the hospital that the statement was actually made by the deceased. Be that as it may, the status of such a statement would be hardly a statement under Section 161 Cr.P.C. and not a dying declaration of the deceased.
This may be seem that the dying declaration or a statement of a person without the test of cross- examination is a weak kind of evidence and its credibility certainly depends upon the authenticity of the record and the circumstances under which it is recorded, therefore, believing or disbelieving the evidence of dying declaration is a matter of judgment but it is dangerous to accept such statement without careful scrutiny, of the evidence and the surrounding circumstances, to draw a correct conclusion regarding its truthfulness. The rule of criminal administration of justice is that the dying declaration like the statement of an interested witness requires close scrutiny and is not to be believed merely for the reason that dying person is not expected to tell lie.
This is a matter of common knowledge that in such circumstances in preference to any other person, a doctor is most trustworthy and reliable person for a patient to depose confidence in him with the expectation of sympathy and better treatment to disclose the true facts. In the present case, in the manner in which the statement of deceased was recorded by the Sub-Inspector, would seriously reflect upon its correctness and consequently, could not be considered worthy of any credit to be relied upon as dying declaration. The perusal of record would show that the two Courts in complete departure to the principles of appraisal of evidence and the rule of criminal administration of justice, held the petitioner guilty of the charge on the basis of hearsay and shaky evidence.
18.In the light of the above analyses of the evidence, we are of the considered view that the dying declaration could not be treated as an admissible evidence and the conviction on the basis of such an evidence on capital charge, was not legal and with the exclusion of dying declaration of F deceased which was foundation of the prosecution case, the remaining evidence would not be sufficient to sustain the conviction. We, therefore, hold that prosecution has not been able to prove the charge against the petitioner beyond reasonable doubt.
19.In the light of above discussion, we convert this petition into an appeal, set aside the conviction and sentence awarded to the appellant and direct her release from jail if not required in any other case. This appeal is accordingly allowed.