' FAROOQ ALI CHANNA J.---The appellant through instant criminal jail appeal has challenged the judgment dated 26-10-2009, passed by learned IV Additional Sessions Judge, Karachi (East)
(hereinafter referred to as trial court) in Sessions Case No,221/2004, arising out of F.I.R No,62/2004 of Police Station Zaman Town, Karachi, convicting the appellant under section 308 P.P.C, sentencing him to undergo R.I. For 14 years and to pay Diyat amounting to Rs,3,60,209 to the legal heirs of deceased Mst. Afzal in 36 equal monthly installments within the period of 3 years.
2. Brief facts of the case are that complainant Falak Sher has lodged F.I.R that on 23-4-2004 at about 2.30 a.m. (night) Asghar Ali the husband of his sister Mst. Afzal came to his house and informed them that his house has been set on fire, resultantly his wife Mst. Afzal has also burnt. The complainant and other family members rushed towards the house of his sister Mst. Afzal, and saw she was lying injured, she narrated that her husband Asghar Ali has sprinkled kerosene oil and set her on fire. They removed the injured to civil hospital where she succumbed to injuries. The complainant in F.I.R has further stated that his sister Mst. Afzal was employee in a factory and was complaining that Asghar Ali has committed fraud with some persons and she has compensated them, Asghar Ali was also insisting her to sell the house and pay the share of his mother and brothers, which she refused saying that she has built the said house from her own income, which annoyed Asghar Ali.
3. It is further case of prosecution that accused Asghar Ali soon after the incident narrated the same facts to his neighbours, P.W. Abdul Haqeeq informed police on telephone, in response A.S.-I.
Zulfiquar Ali Khokhar came at the place of incident, recorded the statement of Mst. Afzal in presence of P.Ws. Abdul Haqeeq, Bashir Muhammad and Muhammad Akram. Deceased Mst. Afzal in her statement has stated that her husband Asghar Ali has set her on fire by sprinkling kerosene oil due to dispute over the sale of house.
4. The investigating officer carried out investigation, recorded the statements of the prosecution witnesses under section 161 Cr.P.C, seized the burnt bed sheet, pillow. Cover, one gallon bottle of green colour with black cap containing some quantity of kerosene oil, a match box and also arrested the appellant from the place of incident. After completing investigation, the investigating officer submitted challan. The trial court recorded the evidence of prosecution witnesses, examined the appellant under section 342, Cr.P.C. And after affording an opportunity of hearing to the counsel of both the sides convicted and sentenced the appellant as referred hereinabove.
5. The prosecution in order to substantiate the charge against the appellant has examined complainant Falak Sher, P.Ws. Javed, A.S.I Zulfiquar Ali Khokhar, Bashir Muhammad, Abdul Haqeeq, investigating officer S.I.P. Aziz Muhammad, Dr. Farida Ayaz, Judicial Magistrate Parvez Qadir, who had recorded the statements of P.Ws. Under section 164, Cr.P.C. And Dr. Thakur Das, who issued the death certificate.
6. Undoubtedly it was an un-witnessed incident, which had taken place during odd hours of night in the house of appellant, where he was residing with his wife deceased Mst. Afzal having no issue.
The entire prosecution case hinges upon the statement of deceased Mst. Afzal recorded by A.S.I.
Zulfiquar Ali Khokhar in presence of 3 persons of locality namely Abdul Haqeeq, Bashir Muhammad and Muhammad Akram. The prosecution has examined them except P.W. Mohammad Akram, they have fully supported the prosecution, P.W. A.S.I Zulfiquar Ali Khokhar in his evidence before the trial court has deposed that on 23-4-2004 he was posted at Police Station Zaman Town, at about 2.40 a.m he received a telephone call of Abdul Haqeeq that a woman is lying burnt in house No,265, Gilgit Colony, Korangi No,1-1/2, Karachi, he reached immediately at the place of incident and saw a woman was lying burnt, she disclosed her name to be Mst. Afzal wife of Asghar Ali and narrated the incident as referred in the proceeding paras, he removed the injured to civil hospital for medical treatment, but she succumbed to her injuries, this witness was cross-examined at length, during cross-examination he has denied his relationship with deceased, he has also denied that when he reached at the house of deceased the people of locality informed him that deceased Mst. Afzal has committed suicide, however he has admitted that he did not record the statement of deceased in presence of M.L.O.
7. The evidence of A.S.I. Zulfiquar Ali Khokhar was corroborated by P.Ws. Abdul Haqeeq and Bashir Mohammad, they both in their evidence before the trial court have deposed that deceased Mst.
Afzal in her statement had stated that her husband Asghar Ali has set her on fire by sprinkling kerosene oil, they also testified their signatures on the statement of deceased. P.W Abdul Haqeeq has also deposed that he informed the police of Police Station Zaman Town on telephone and within 10 minutes the police came at the place of incident. Both the witnesses were also cross examined, but the learned defence counsel has failed to shake their evidence or extract any contradiction to cause dent in prosecution evidence. Complainant Falak Sher in his evidence before the trial court has reiterated the same facts mentioned in the F.I.R., his brother P.W. Jawed has corroborated the evidence of complainant. The investigating officer in his evidence before the trial court has narrated in detail whatever evidence he had collected during investigation Dr. Farida Ayaz in her evidence has deposed that she examined the injured Mst. Afzal Bibi and declared her death due to severe burning injuries and suffocation, during cross examination Dr. Farida Ayaz has denied that Mst. Afzal has committed suicide.
8. Learned counsel for the appellant during arguments has contended that the complainant has managed this case falsely to usurp the property of appellant Asghar Ali, the prosecution witnesses have deposed falsely at the instance of complainant Falak Sher and his brother Liaquat Hussain, who is A.S.-I. In police department. However, learned counsel has failed to produce the record of property mutated in the name of appellant Asghar Ali, which the complainant intended to usurp by implicating the appellant Asghar Ali in this case falsely. Learned defence counsel has also failed to point out enmity or any reason compelling P.Ws, A.S.-I. Zulfiquar Ali Khokhar, Abdul Haqeeq and Bashir Mohammad, latters are the neighbours of appellant having no interaction with the complainant party, as such they have no reason to give false evidence against the appellant Asghar Ali.
9. Learned D.P.-G. Has contended that the prosecution has succeeded in establishing the charge by examining the independent and natural witnesses, who came at the place of incident on the call of appellant Asghar Ali, their evidence is unshaken, unimpeachable, inspires confidence, reliable and vital to prove the prosecution case without any shadow of reasonable doubt.
10. I. Have already observed that entire prosecution case is based D upon the statement of deceased Mst. Afzal, which amounts to be her dying declaration; she cannot be called as witness to affirm/testify her statement. Under Article 46(1) of Qanun-e-Shahadat Order, 1984, such Statement/Dying Declaration of deceased can be admitted to help the courts of justice to arrive at correct finding of fact. Article 46 of Qanun-e-Shahadat Order, 1984, reads as under:-- "46. Cases in which statement of relevant fact by person who is dead or cannot be found, etc, is relevant. Statements, written or verbal, or relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable are themselves relevant facts in the following cases: ' The relevant provision is Article 46(1) of Qanun-e-Shahadat Order, 1984, reads as under:
(1) When it relates to cause of death. When the statement is made by a person as to the case of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
11. Besides the above provisions of law, in order to evaluate the sanctity of statement of deceased amounts to dying declaration, the Quetta High Court in a case reported as Khashif-ur-Rehman and others v. The State (1996 PCr.LJ 1689) followed by Lahore High Court in another case reported as Khalid Memhood and others v. The State 1998 PCr.LJ 901 has laid down the following parameters/ingredients/ principles for consideration:- "(1) There is no specified forum before whom such declaration is required to be made.
(II) There is no bar that it cannot be made before a private person.
(iii) There is no legal requirement that the declaration must be read over or it must be signed by its maker.
(iv) It should be influenced free.
(v) In order to prove such declaration the person by whom it was recorded should be examined .
(vi) Such declaration becomes substantive evidence when it is proved that it was made by the deceased.
(vii) Corroboration of a dying declaration is not a rule of law, but requirement of prudence.
(viii) Such declaration when proved by cogent evidence can be made a base for conviction."
In the instant case A.S.I. Zulfiquar Ali Khokhar, who had recorded the statement of deceased Mst.
Afzal has fully supported the prosecution version, his evidence is corroborated by P.Ws. Abdul Haqeeq and Bashir Mohammad, the witnesses in whose presence the statement of deceased was recorded. The statement of the deceased Mst. Afzal that she was set on fire by sprinkling kerosene oil is corroborated by recovery of gallan bottle containing some quantity of kerosene oil and match box along with burnt bed sheet and pillow cover from the place of incident, the above said recoveries are not denied by the appellant/accused, as such I have come to the conclusion that the Statement/Dying Declaration of deceased Mst. Afzal satisfy the test of its sanctity in view of parameters/ ingredients/principles referred hereinabove. Accordingly, the prosecution has proved its case beyond any shadow of reasonable doubt, the trial court has discussed the prosecution evidence thoroughly keeping the defence plea in juxtaposition and has come to a correct conclusion that the appellant Asghar Ali was guilty of committing the murder of his deceased wife Mst. Afzal, the impugned judgment does not suffer from infirmity nor is based upon misreading and non-reading of evidence, requiring the interference of this Court.
12. Learned counsel for the appellant during arguments has requested that the appellant may be allowed to deposit diyat amount within 5 years in terms of section 331 P.P.C., the said prayer has already been considered and granted by the trial court directing the appellant Asghar Ali to pay diyat amount in 36 equal installments within the period of 3 years. If diyat amount is not paid during imprisonment, the appellant on expiry of sentence shall be released on bail enabling him to deposit diyat as ordered by the trial court, however, subject to his furnishing surety/security equivalent to diyat amount, to the satisfaction of the trial Court.
' For the above reasons and discussion the appeal is dismissed.