' ABDUL RASOOL MEMON, J.---This appeal is directed against the judgment dated 17-5-2012 passed by the learned West Additional Sessions Judge, Karachi South in Sessions Case No,453 of 2006 under section 302, P.P.C.Whereby the appellants were found guilty for committing Qatl-e-Amd of Mst. Rabia, therefore, have been convicted and sentenced for imprisonment for - life, benefit of section 382-B, Cr.P.C. Has also been extended to them.
2. The alleged incident had occurred on 26-2-2006 in the house of appellant No,1 Shamsul Haq and the F.I.R. Of the above incident was recorded on 9-5-2006 by Siraj Khan father of deceased Mst.
Rabia, contents whereof are reproduced in verbatim as under:- "Orally by the complainant I reside at above address mentioned in Column No,2 along with wife and children and do work on contract in Western Marine Private Company, I had got solemnized marriage of my daughter named Rabia about 2 years back with Shams-ul-Haq son of Nadir Rehman. During first 6 months, my daughter and son-in-law remained living happily, after that, the person named Jaffer who used to reside with my son-in-law brought his wife Neelofar from Bengal, then, quarrels started between my daughter and son-in-law on each and every matters. On 26-2- 2006. At about 1215 Hrs. My daughter having burnt inside the house No,2345, Street No,5, Near Firdous Masjid Khadda, Baghdadi, Karachi she brought to Civil Hospital, but on 27-2-2006, she had expired in Civil Hospital during treatment, I remained inquiring personally till yet, now, I am sure that my daughter did not commit self immolation, but her husband Shams-ul-Haq along with Jaffar and latter's wife Neelofar have murdered my daughter by setting on fire. Now, I have come to report the incident, action may be taken. My complaint is against three accused persons to commit murder of my daughter by setting her on fire. Action may be taken."
3. After registration of the F.I.R. The police took up the investigation and appellants were sent up to face trial. As they pleaded not guilty to the charge and claimed to be tried therefore prosecution to substantiate accusation produced as many as fifteen witnesses namely complainant Muhammad Siraj Khan (P.W.1), Laila Begum (P.W.2), Munawar Begum (P W.3), Abdul Aziz (P.W.4), Muhammad Shuja (P.W.5), Kabir Ahmed (P.W.6), Sajida Siraj (P.W.7), Abdul Majid (P.W.8), Abdul Razzak (P.W.9), Khan Muhammad (P.W.11), Dr. Abdul Rub Naveed (P.W.12), A.S.-I. Muhammad Qasim (P.W.13), Dr. Roshina Hassan (P.W.14) and Sub-Inspector Muhammad Aamir (P.W.15). The statements of the appellants were recorded under section 342, Cr.P.C., they did not examine themselves on oath within the purview of Section 340(2) Cr.P.C. However, Muneer Ahmed and Muhammad Aslam were examined as their defence witnesses. The trial Court on completion of trial found the appellants guilty of the offences under section 302, P.P.C. Thus they were convicted and sentenced in the above terms mentioned in para 1 supra.
4. The appellants have questioned the impugned judgment and it has been contended by Mr. M.
Ashraf Kazi learned counsel for the appellant that the F.I.R. Of the instant case was lodged after delay of more than two months, without any explanation; that in fact deceased Mst. Rabia was engulfed with fire while she was working in kitchen and the appellant No,1 attempted to rescue her by putting blanket upon her and then took her to hospital where A.S.-I. Muhammad Qasim after permission from the doctor recorded the statement of the injured/deceased Rabia wherein she has clearly stated that she was burnt accidently while she was working in the kitchen and none had put her on fire, A.S.-I. Qasim also recorded the statement of appellant No,1/ husband of deceased Rabia and her brother Shuja at hospital on the very day of the incident who have also stamped the version of Mst. Rabia and he alsb inspected the place of crime scene; that the mother of the deceased Munawar Begum, complainant Siraj and sister of deceased Sajida were present at the hospital and participated in burial proceedings of deceased Rabia but had not doubted regarding accidental death of the said deceased.; hence no postmortem was got conducted to know the cause of death; that the names of witnesses were not mentioned in the F.I.R. Were subsequently examined by the complainant, furthermore the statement of those witnesses were recorded after four days of lodging F.I.R. On 14-5-2006 during investigation.; that the story of dying declaration introduced by the prosecution witnesses is a weak type of evidence which has not been established through some concrete proof or independent evidence; that on the point of motive, none of the prosecution witnesses have deposed for having seen appellant No,1 and appellant No,3 Nelofar in objectionable condition to prove illicit relations between them, which compelled the appellants for allegedly throwing kerosene oil upon deceased for causing her death as alleged or otherwise; that the trial Court without properly evaluating the material evidence has convicted and sentenced the appellants through impugned judgment, hence the same is liable to be reversed.
5. In support of his contention he has placed reliance on the following case-law.
(1) Faqir Ali v. The State (1997 PCr.LJ 1453)
(2) Raziqdino v. The State (1975 PCr.LJ 590)
(3) The State v. Rahim Gul (1999 PCr.LJ 1087)
(4) Mehmood Ahmad and 3 others v. The State and another (1995 SCM R 127)
(5) Syed Saeed Muhammad Shah and another v. The State (1993 SCM R 550)
(6) Ata Muhammad and another v. The State (1995 SCM R 599
(7) Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others (1994 SCM R 1928)
(8) Unreported judgment dated 17-1-2000 passed by High Court of Sindh in Criminal Appeal No,124 of 1999
6. Conversely, Mr. S. Nadeem Abbas learned counsel representing the complainant has argued that delay ipso facto in recording F.I.R. Is no ground for discarding the evidence of the prosecution witnesses, who have given true account of incident in a straightforward manner and supported each other on the point of dying declaration before P.Ws Mst. Laila Begum, Kabir Ahmed, Mst Sajida Siraj and Abdul Razzaq, who all have deposed at trial that deceased Rabia on 26th February, 2006 in hospital made disclosure before them that she had been set on fire by the appellants; that on the point of motive also P.Ws. Mst. Laila and Munawar Begum mother of the deceased have supported the prosecution version i,e, illicit relations between appellants Shamsul Haq and Mst.
Nelofar; that the judgment of the trial Court does not suffer from misreading or non-reading of the material evidence. He has prayed for maintaining the judgment of the trial Court and dismissal of appeal. The advocate for the complainant has relied upon the following case-law:--
(1) Muhammad Akram alias Pehalwn v. The State (2007 PCr.LJ 173)
(2) Mohabbat v. The State (1990 PCr.LJ 73)
(3) Allah Yar and another v. The State (2006 PCr.LJ 1748)
(4) Yusuf and 6 others v. The State (1984 PCr.LJ 684)
(5) Yasir Mahmood v. The State (2009 SD 401)
7. Mr. Muhammad Iqbal Awan learned Assistant Prosecutor General during arguments has supported the version of learned counsel for the complainant.
8. I have considered the arguments advanced at bar and have gone through the material placed on record.
9. The foundation of the prosecution case is the oral dying declaration of the deceased Mst. Rabia before the prosecution witnesses namely Laila Begum (P.W.2) relative of the deceased, Munawar Begum (P.W.3) mother of the deceased, Shuja (P.W.5) brother of the deceased, Kabeer (P.W.6) maternal grandfather of the deceased, Sajida Siraj (P.W.7) sister of the deceased and Abdul Razzaq (P.W.9) maternal uncle of the deceased. For evaluating the dying declaration, it will be appropriate to discuss the gist of evidence of all the prosecution witnesses brought on record.
10. The complainant Siraj Khan father of the deceased has deposed that on 26-2-2006 he came to know through one Aslam at noon time that his daughter had been burnt and taken to hospital, thereafter his wife asked him that he should pardon his daughter as he was angry with his daughter. He went to hospital on the next day at about 7:30 a.m. He has admitted that he is not an eye-witness of the occurrence. He has not deposed for his any talk with the deceased Rabia.
11. Mst. Laila (P.W.2) deposed that deceased Rabia was friend of her daughter namely Salma, on coming to know that Mst. Rabia had been burnt she went to hospital on 26-2-2006 at about 8:30 to 9:00 p.m. Where on enquiry she was told by deceased Rabia that she has been burnt by her husband, Jafar and his wife Nelofar. She in her cross-examination stated that she informed the complainant in presence of his family members namely Sajida and Shuja about dying declaration of deceased on the very day. In her cross-examination she has admitted that the complainant is related to her.
12. The evidence of P.W. Mst. Munawar Begum (P.W.3) mother of the deceased, on the point of dying declaration is hearsay and she is not an eye-witness of the incident. As regards motive she has stated that she saw that appellant No,1 used to quarrel with deceased Rabia and used to go in the room of Nelofar wife of Zafar sister in law of Muneer elder brother of appellant Shamsul Haq.
13. Abdul Aziz (P.W.4) is mashir of dead body and inquest report as such is a formal witness.
14. P.W. Muhammad Shuja brother of the deceased Rabia is an important witness of this episode.
He had taken the deceased from her house to hospital. He has admitted that police had obtained his signature on the statement (Exhibit 10/A). He has not deposed regarding dying declaration of the deceased before him. On the contrary in his statement which is placed on record as Exhibit 10/A recorded by A.S.-I. Muhammad Qasim, indicates that his sister had accidently burnt in kitchen as told to him by his deceased sister. He remained at hospital upto 5:00 or 5:30 p.m. When his mother and relatives came then he went to his house.
15. P.W. Kabir Ahmed is maternal grandfather of the deceased, he introduced on the record that he went to the hospital on 26-2-2006 at 8:00 p.m. Where the deceased told him that she was burnt by appellants.
16. P.W. Sajida Siraj has deposed that her sister Rabia on 26-2-2006 told her that she was beaten by appellants on previous night and in the morning they throwing kerosene oil set her on fire. While she was confronted with her statement under section 161 Cr.P.C. She has admitted that in her statement under section 161 Cr.P.C. This fact was not mentioned.
17. P.W. Abdul Razzaq maternal uncle of the deceased, has also deposed the same facts that on 26-2-2006 the deceased disclosed before him that the appellants put her on fire and in cross he states that he arrived at hospital at 5:00 to 5:30 p.m.
18. Apart from the above evidence there is evidence of investigation officers and doctors. The first I.O. Of this case A.S.-I. Muhammad Qasim whose evidence is of much importance, has deposed that on 26-2-2006 he was posted at Police Station Baghdadi, he received information from 15 madadgar that a lady who was burnt has been shifted to civil hospital, he kept such entry (exhibit 20/A) and went to hospital after handing over the letter to MLO, who declared her fit for recording statement, he recorded statement of deceased Rabia at hospital in which she has clearly stated that she was burnt accidently while working in the kitchen and none, has put fire upon her. She has lastly stated that since her hands were burnt, hence, she was not able to put her signature. He has produced the said statement of the deceased as exhibit 20/C. He states that he has also recorded the statement of appellant No,1 and so also of brother of deceased namely Shuja at Civil Hospital who had also supported the deceased on the point of her engulfed by fire in Kitchen accidently. He thereafter inspected the place of wardat, came back to police station and kept entries, which has been produced on record while the second Investigation Officer P.W.10, S.I. Wazeer had conducted the proceedings under Section 174 Criminal Procedure Code and prepared mashirnama of dead body. The third investigation officer Inspector Khan Muhammad, who on receipt of F.I.R. On 9-5- 2006, collected the documents from the previous I.O., inspected the place of incident in presence of the complainant and seized one piece of nylon shirt and on 14-5-2006 recorded the statements of witnesses Shuja, Sajida, Abdul Majeed, Kabeer and Abdul Razaq under section 161, Cr.P.C. In cross he stated that from investigation whatsoever evidence was collected, it transpired that the death of deceased was accidental. Then the investigation was transferred to Sub-Inspector Muhammad Aamir (P.W.15) on 7-6-2006. He recorded the statement of Mst. Laila and Mst. Gulzar. It is relevant to mention here that no postmortem of the deceased was conducted after her death and doctor Roheena and Dr. Abdul Rab only deposed for examining burns/ wounds of the deceased.
19. From the perusal of the above evidence it appears that all the witnesses to the dying declaration who are related to the complainant stated that the deceased made oral declaration before them on 26-2-2006. It is also deposed by them that they disclosed this fact to the parents of the deceased on the very day. It has also come in the evidence that the deceased died on the next day i,e, 27-2-2006 at 8:30 or 9:00 p.m. The question arises, if the dying declaration was made by the deceased on the very day of the incident viz. 26-2-2006 when the deceased was whole day alive then why they did not report the matter to the police on the same day or call the doctors or magistrate for certifying the dying declaration made before them. They all have deposed that they had informed the complainant on the very day about dying declaration then why he remained silent and did not inform the police then and there rather making enquiries in the matter till 9-5- 2006. Even in the F.I.R., which was recorded after about two months and thirteen days of the incident, the names of the witnesses before whom the dying declaration was allegedly made by the deceased, are not referred and the silence on their part till, 14-5-2006 for more than two months and 19 days, when their statements under sections 161 were recorded, adversely affect upon the veracity of their statements because they are not stranger to the complainant and deceased but were their kith and kin. For such a long period none of them made any disclosure to police for bringing machinery of law in motion. Thus, remaining silent of these witnesses does not appeal to reason, as no explanation has either been furnished by the witness in their evidence or the complainant in his F.I.R. For not reporting the matter to police on 26-2-2006, when dying declaration was allegedly made by the deceased. As per P.W. SIP Khan Muhammad the statements under section 161, C.P.C. Of the witnesses namely Sajid, Sajida, Abdul Majeed, Karim and Abdul Razaq were recorded on 14-5-2006 while as per I.O. Muhammad Amir the statement of Mst. Laila Bibi was recorded after 7-6-2006 without any explanation, the said delay in recording the statement of witnesses named above is of vital significance to discredit the said statements. On this point, I am fortified by a case of Syed SAEED MUHAMMAD SHAH and another v. THE STATE (1993 SCM R 550).
20. Now explaining the dela in making the report with inconsistencies in the testimony of eye- witnesses has rendered their evidence doubtful, unreliable and does not inspire confidence.
21. All the above witnesses are related to the deceased. It is settled principle of law that the dying declaration made in the presence of the relatives will always be taken with a pinch of salt and the same renders the 'dying declaration doubtful thus the corroboration of independent source is necessary, same is lacking in this case.
22. It is significant to mention that the first I.O. Muhammad Qasim in his evidence pointed out for having recorded the statement of the deceased Mst. Rabia at hospital on the very day of the incident and she clearly spoken to have burnt accidentally while working in the kitchen. The assertion of I.O. And statement of deceased Rabia (Exh.20/C) has not been disputed/refuted by the complainant and P.W. The said scenario gives presumption that the complainant and the witnesses have accepted the death of the deceased as accidental and it has come on record that litigation between the parties has started after the death of the deceased. Indeed, after two months and thirteen days this new story i,e, the deceased was burnt by the appellants was introduced. The two investigation Officers namely A.S.-I. S. Muhammad Qasim and Inspector Khan Muhammad during evidence admitted that as per investigation carried out by them, the deceased Rabia was burnt accidentally. The piece of silky shirt of deceased recovered from the house of the appellants was sent to the chemical examiner on 18-9-2009 after three years of the occurrence and the report of the chemical examiner is received in negative that Kerosene oil not detected from it. Therefore, the said piece of evidence is also not helpful to the case of the prosecution.
23. Adverting to the motive, there are general allegations and no direct evidence is brought on record for alleged elicit relations between the appellants Nos.1 and 3. Moreover, in any way, evidence of motive can never be regarded as sufficient to take the place of actual evidence of participation in a crime if the latter is absent. It is important to mention that the motive as setup also appears to be improbable for the reason that if the appellant No,1 would have been interested to get rid of his wife then pronouncement of Talaq was sufficient instead of setting her on fire by throwing kerosene oil.
24. It follows from the above discussion that the alleged dying declaration cannot be relied upon because the truthfulness of its contents are not free from doubt and in any case it is settled law that great caution is to be taken before placing reliance on dying declaration because it is a weak piece of evidence as its maker is not subjected to cross-examination. The ocular account of the crime furnished by the witnesses is untrustworthy hence is taken out of consideration. Motive is not proved. The result of the above discussion is that the prosecution has failed to prove the charge against the appellants thus the judgment passed by the trial Court is not sustainable, which is set aside by accepting the appeal and the appellants/accused are acquitted by extending benefit of doubt to them. Appellants confined in jail are directed to be released forthwith, if not required in any other crime.