' ABDUL RASOOL MEMON, J.---This appeal is directed against the Judgment dated 10-2-2007 passed by IInd Additional Sessions Judge Karachi (West) in Sessions Case No,94 of 2005 under sections 302/324, P.P.C. Whereby the appellants were found guilty of Qatl-e-amd of Mst. Asma, therefore, have been convicted and sentenced for imprisonment of life with fine of Rs,50,000 each and in default thereof to suffer R.I. For three years in case of realization of fine to be paid to the legal heirs of the deceased benefit of section 382-B, Cr.P.C. Has also been extended to them.
2. The case of the prosecution is that on 4-1-2005. Mazhar Hussain son of Shaukat Hussain went to Police Station Surjani Town, complained that his daughter Asma had been burnt by her in-laws who without informing to anyone admitted her in Patel Hospital, Gulshan-e-Iqbal. A.S.I. Mazhar Iqbal on receiving information reached at the Hospital, where he found Mst. Asma wife of Muhammad Bilal aged about 21 years in Burnt condition lying in (ICU) and after getting permission from R.M.O. He word by word recorded the statement of Mst. Asma in presence of Dr. Syed Shahzad Hussain Rizvi, later on it was incorporated in 154, Cr.P.C. Book of P.S. Surjani Town which reads as under:-- "Mst. Asma wife of Muhammad Bilal, age about 21 years, resident of House No,400, Yousuf Goth, Surjani Town stated on inquiry that I was married with Muhammad Bilal about 3 years earlier. After passing three or four happy months of matrimonial life, my mother-in-law namely Aamna and brother-in-law Bakht Ali started quarrel with me. My sister-in-law Fareeda tried to restrain them for making the quarrel but on 29-12-2005 at about 9-00 p.m., when I was present at home while my husband Muhammad Bilal has gone with his work, who had no knowledge about the same, a quarrel had taken place between me, mother-in-law Aamna and brother-in-law Bakht Ali. Saeed was advising them but the quarrel had reached at its extreme, on which my elder brother-in-law Qari Bakht Ali took the stove of kerosene oil and threw kerosene oil upon me. My daughter was in my lap who was snatched by my mother-in-law, and thrown a burning matchstick upon me. I was set on fire. Saeed rushed towards me and taken to bathroom where Fareeda was present who put water upon me I become unconscious. When I came in senses found myself at hospital. Now I give my statement on your arrival, same is correct".
3. After registration of the F,I.R. SIP Syed Abid Ali Shah took up the investigation who on the same day recorded the statement of Mst. Asma under section 161, Cr.P.C. Which was attested by Dr. Afshan. He also recorded the statement of witnesses and inspected the place of wardat. During investigation, on 9-1-2005 the deceased succumbed to her injuries at hospital, hence the offence was converted from 324 to 302, P.P.C. And then the accused were sent up to face the trial.
4. As the appellants pleaded not guilty to the charge and claimed to be tried, therefore, prosecution to substantiate accusation produced as many nine witnesses, namely Mazhar Hussain, father of the deceased (P. W.1), Sarwar, brother of deceased (P.W.2), Dost Muhammad, mashir of inspection place of incident (P.W.3), Nasir Hussain, mashir of arrest of accused Bakht Ali (P.W.4), Khalid Mehmood, mashir of arrest of Mst. Amna (P.W.5), ASI Mazhar Iqbal (P.W.6), Syed Abid Ali Investigating Officer (P.W.7), Inspector Muhammad Ramzan (P.W.8) who submitted the final challan. Thereafter the statements of the accused under section 342, Cr.P.C. Were recorded wherein they denied the allegations of the prosecution and examined themselves on oath as provided under section 340(2), Cr.P.C. And in their defence examined Ghulam Abbas, Liaquat, Hafiz Muhammad Qasim and Fahim as (D.W.1 to D.W.4). On grant of an application under section 540, Cr.P.C. Of. Prosecution, Doctor Shahzaid (P.W.9) and Dr. Mazhar Nizam were examined. The statements of the appellant under section 342,. Cr.P.C. Were re-recorded, wherein they denied the allegations of the prosecution and examined themselves on oath and D.Ws. Farida and Bilawal (D.Ws.5 and 6). The trial Court on completion of trial found the appellants guilty of offence under section 302, P.P.C. Thus they were convicted and sentenced the terms mentioned in para-1 (supra).
5. Learned counsel for the appellant has argued that Judgment of the trial Court is untenable and is based on misreading as well as non-reading of evidence. Statements of P.Ws. Sarwar and Muzaffar Hussain brother and father of the deceased are contradictory to each others which are sufficient to create shadow of doubt upon the prosecution case; that dying declaration of the deceased was recorded on 4-1-2005 as against incident took place on 29-12-2004 at 1.00 hours and deceased was alive upto 9-1-2005 but no efforts were made to record her statement in presence of the Magistrate as required under section 174-A, Cr.P.C.; that Dr. Shahzad has admitted in his cross-examination that the deceased at the time of reaching at hospital stated that she was burnt accidentally and also the I.O. In his statement has stated that at the time of recording statement under section 154, Cr.P.C. She was not in proper senses; that defence witnesses have supported the contention of the appellants that the deceased on her own accord put fire upon her and closed the door of her room which was broken by the appellants and Mohalla people; that evidence of D.W. Liaquat has not been considered by the trial Court; that the trial Court has not considered the defence of the appellants which if kept in juxtaposition with the case of the prosecutions then it also appears probable and the story favourable to the accused is to be accepted; that the dying declaration is weakest type of evidence and it requires strong corroboration which is lacking in this case. In support of his contention he has placed reliance on the cases of MUHAMMAD RAFIQUE v. THE STATE (1995 PCr.LJ 1753), NOOR MUHAMMAD v. THE STATE (2009 PCr.LJ 797), Mst. AKHTAR BEGUM and others v. THE STATE (1989 M LD 798), MEERA v. STATE OF RAJASTHAN (AIR 2004 SUPREME COURT 1879), ABBAS v. THE STATE (2008 M LD 854), ARVIND SINGH v.
STATE OF BIHAR (AIR 2001 SUPREME COURT 2124), Mst. GHULAM ZOHRA and another v. Malik MUHAMMAD SADIQ and another (1997 SCM R 449) and Malik MUHAMMAD SADIQ v. THE STATE (1997 PCr.LJ 794).
6. Learned A.P.-G. On behalf of State has argued that statement of the deceased Asma was recorded in presence of the doctor by the I.O. Which was incorporated in section 154, Cr.P.C. Book, the said statement was attested by the doctor who has supported the contents of statement of the deceased and also stated that she was conscious and able to record her statement, therefore, the said statement was in accordance with section 174-A Cr.P.C.; that the doctor, is independent witness and he has no animus with the appellants and or any league with deceased or her parents; that the defence witnesses on the contrary have supported the version of the prosecution who have admitted the presence of accused the place of occurrence and also they have admitted in their cross-examination that the quarrel took place between the deceased and the appellants.
Which also supports the case of the prosecution; that no evidence is available on record that the deceased had been influenced by the prosecution witnesses therefore, the same is free from influence and is sufficient for awarding conviction to the appellants and thereby the Judgment passed by the trial Court is in accordance with the material placed on record and does not require any interference, hence, be maintained. In support of his contention he has relied on the case of MAJEED v. THE STATE (2010 SCM R 55).
7. The foundation of the prosecution case is based on two statements of Mst. Asma which are termed as dying declarations, one incorporated in 154 Book is reproduced in para-2 (supra) and is exhibited in evidence at Exh. 9-A while the other recorded subsequently on the very day under section 161, Cr.P.C. By SIP Syed Abid Ali is available at Exh.10/A, I have carefully considered these statements. Iii the first statement Exh.9/A Mst. Asma has stated that altercation between her, and appellants/co-accused Bakht Ali Qadri and Mst. Amna (her mother-in-law) when arrived at its extreme, appellant/accused Bakht Ali Qadri took the stove and put kerosene oil upon her and snatching baby from her lap appellant/accused Amna thrown burning match stick upon her and then Saeed took her to wash room where Farida was available, who put water upon her and then she went unconscious; but in her later statement at Exh.10-A she has improved her statement by stating that her mother-in-law snatched the baby from her lap and handed over to Mst. Farida and went to her room and brought the match box and then set her on fire and then Farida and Saeed took her to bathroom.
8. It is settled proposition that a dying declaration is substantive piece of evidence if the court is satisfied about its genuineness, it can be acted upon without any corroboration. Some of the tests for determining its veracity are that (i) whether it intrinsically ring true (ii) whether there is no chance of mistake on the part of dying man in identifying or naming his assailant, (iii) whether it is free from prompting any outside quarter and (iv) whether it is consistent with other evidence and circumstances of the case.
9. Now in view of the material available on record, it is to be seen whether the above two statements/dying declarations could be acted upon and fulfil the above conditions for satisfaction of court.
10. The first statement of deceased was recorded by ASI Mazhar Iqbal (P.W.6), he has stated that on coming to know from Muzaffar Hussain (P.W.1), the father of deceased, he reached at Patel Hospital and recorded the statement of Mst. Asma which is produced at Exh.9/A. This witness has clearly deposed that at the time of recording statement of deceased Dr. Shahzad and other male doctor were present. In his cross-examination, he has stated that at the time of recording her statement deceased was not in her senses.
11. The other important witness Doctor Syed Shahzad in whose presence statement Exh.9/A was recorded, on 4-1-2005 has deposed that on 29-12-2004 he was on duty in ICU Ward in Patel Hospital, while deceased namely Asma was brought, she was in critical condition, but was in her senses and able to talk and understand. However, the doctor could not disclose the name of police officer who recorded her statement. According to doctor Shahzad statement of deceased was recorded before him wherein she disclosed to have been burnt by her mother-in-law and brother- in-law. But in his cross-examination the doctor has contradicted his own version and deposed as under:- "It is correct that at the time of arrival she had not disclosed the name of her mother-in-law and jeth as she was burnt by them. It is correct that at the time of her arrival she stated that she herself burnt."
12. This doctor has further stated that at the time of recording statement of deceased his colleague Dr. Afshan was also present but in his cross-examination he not only denied her presence but also denied presence of family members of deceased. He only admitted presence of police official.
13. On the point of non-presence of family members, Dr. Shahzad has been falsified by Muzaffar Hussain father of deceased Asma (P. W.1) who has stated as under:-- "Police took me at hospital, in my presence before Dr. Afshan and Dr. Shahzad Syed Rizvi my daughter injured has given statement stated that she was quarrelled with Amna and Bakht Ali which was increased on which Bakht Ali carried a stove matti ka chola and put the kerosene oil upon her. Amna snatched her daughter and put her on fire. Saeed and Farida was at that time also present."
14. The above statements indicates that deceased Mst. Asma was not in senses when her first statement was recorded by ASI Mazhar Iqbal. As per first dying declaration Exh.9/A, except the endorsement "Before me" of doctor Syed Shahzaid Hussain Rizvi, RMO Burns Patel Hospital, no any certificate is available on record. If as per ASI, who recorded the dying declaration of deceased that she was not in senses, then it was incumbent upon him to have obtained such certificate from the doctor before recording her statement that she was in fit condition or otherwise but admittedly such certificate was not obtained and no reasonable explanation for the omission is offered by the ASI/police officer. In such circumstances, fitness of the injured to make the statement Exh.9/A has become . Doubtful. Reliance is placed on a case of Mst. GHULAM ZOHRA and another v. Malik MUHAMMAD SADIQ and another (1997 SCM R 449).
15. Besides that the statement of Dr. Shahzad that on arrival of Mst. Asma in hospital she herself not disclosed the name of her mother-in-law or brother-in-law and stated that she herself burnt. This statement of the doctor is another drawback of this case and affects the genuineness of the said statement. The presence of father of deceased at the time of recording dying declaration is admitted, therefore, the outside prompting also cannot be ruled out.
16. So far as subsequent statement of deceased at Exh.10/A is concerned, on the face of it, indicates that it was recorded under section 161, Cr.P.C. Which is not to be signed, but surprisingly the said statement bears the thumb-impression of deceased and is attested by Dr. Afsheen. This statement was recorded at the time when its maker was not expecting to die, thus, bearing the thumb- impression on such statement is contrary to the provisions of section 161, Cr.P.C., as such affects its truthfulness and makes it veracity doubtful. Moreover, Dr. Afsheen has also not been examined in whose presence the said statement was recorded.
17. According to another important witness Syed Abid Ali (P.W.7) author of the statement of deceased (Exh.10-A) stated that the brother of victim/deceased Sarwar was present at the time of recording the said statement, therefore, possibility of outside prompting for this dying declaration too cannot be ruled out.
18. It is admitted fact on record that incident took place on 29-12-2004 and statement of the deceased was recorded on 4-1-2005 and deceased died on 9-1-2005. The subsequent statement of the deceased at Exh.10-A was also recorded on the same day by SIP Syed Abid Ali. In these circumstances, question arises that when the deceased was alive for 5 days later then why SIP Syed Abid Ali chooses to record statement of injured Asma without procuring services of Magistrate. Obviously there was no dearth of Magistrates at the place like Karachi.
19. As mentioned hereinabove, both the police officials have not obtained the certificate from the doctors before recording the statement of the deceased when she was in an injured condition that she was in fit to give the statement nor they have given any reasonable explanation for this omission. In the circumstances fitness of the injured to make Statement at Exhs.9-A and 10-A remained doubtful.
20. There is an important aspect of this case which may also not be lost sight of that under section 174-A, Cr.P.C. On receiving injured in a burnt condition the doctor was required to inform the police immediately and police officer on receiving such information is also required to give intimation thereof to the Magistrate and simultaneously the medical officer on duty is to record the statement of injured person immediately on arrival so as to ascertain circumstances and cause of the burn injuries and the statement shall also be recorded by the Magistrate in case the injured person is still in position to make the statement. In the instant case the doctors and both the Investigation Officers namely Mazhar Iqbal and Syed Abid Ali have ignored the specific provisions of section 174-A, Cr.P.C. The medical officer namely Syed Shahzaid in his cross-examination has admitted that when the deceased was brought in hospital, disclosed to have been burnt by herself, then why he did not record her statement then and there as required under section 174-A, Cr.P.C. Whereby special obligation has been imposed upon the police and medical officer to act in the prescribed manner as and when a person injured by burns etc. Is brought before them. Reliance is placed on case of IMRAN ASHRAF v.
THE STATE (2012 YLR 325)
21. It is pertinent to note that as per P.W.2 Sarwar son of Muzaffar Hussain (brother of deceased) after two days of incident his father has to know about the burning of deceased, it appears that relatives of the deceased were well in knowledge regarding this incident two days after the incident but they did not inform the police or record any statement for bringing the machinery of law in motion. The said delay in reporting the matter to the Police was not explained by the complainant as such, delay had provided sufficient time to complainant for deliberation, consultation and fabricating story and possibility of false implication cannot be ruled out.
22. Now, adverting towards the defence of the appellants appellant Bakht Ali Qadri in his statement on oath has denied the contention of the prosecution and has stated that she (deceased) burnt herself and they after breaking the door tried to save her life in presence of Mohallah people and brought her out of the room and tried to extinguish the fire by throwing water and mud on her. The D.Ws. Liaquat and Fahim have supported him by saying that they reached at home of deceased, found her locked inside the room and after breaking the doors she was brought out in injured condition. In cross-examination the learned prosecutor could not shake their evidence.
23. In view of the circumstances discussed above, I am of the opinion that the alleged dying declarations of the deceased could not meet the criteria fixed for proving the prosecution case, for the reasons, firstly that it is not free from outside prompting; not certified by the doctor about fitness of state of mind of its maker (deceased Mst. Asma); that not attested by Magistrate and not consistent to other evidence produced by the prosecution, thus it does not appear to have been true and voluntarily. Consequently the appeal is accepted and the conviction and sentence of the appellants Bakht Ali Qadri son of Malik Ahmed Din and Mst. Amna wife of Malik Ahmed Din is set aside by extending the benefit of doubt, the appellants are acquitted. They are on bail, their bail bond stands cancelled and surety discharged.