Muhammad Qasim Khan, J.--Briefly the facts of the case as reported by Atta Rasool (complainant PW.2) through application (Ex.CA) which formed basis for registration of FIR No. 925/2014, are that his daughter Mst. Asima Mehmood was given in marriage with Ghulam Abbas and out of the said wedlock three daughters and a son were born. On 03.10.2014, the accused perso ns namely Ghulam Abbas convict/appellant, Sabir and Shahbaz (father and brother of Ghulam Abbas) burnt his daughter and after twenty hours of the occurrence informed the complainant. On 4.10.2014, the complainant party reached the hospital, whereas Asima had been admitted, met her and inquired from her, who told that accused Shahbaz, Ghulam Abbas and Sabir had set her on fire by sprinkling petrol. The complainant asked Ghulam Abbas why they did it, he replied that they had committed mistake and sought pardon. Similarly Sabir , and Shahbaz also confessed their guilt. On 05.10.2014, Mst. Asima died, whereupon, the complainant moved application before the police for FIR, followe d by another written statement before the police Ex.P A, both under his thumb impressions.
The reason behind the occurrence was alleged to be a dispute between the convict/appellant and the deceased over a plot.
Afterwards, the complainant came out with the stance that during investigation he was disturbed, therefore, could not make correct statement before the police and further the Investigating Officer also did not properly investigate the matter , thus the, complainant had to file private complaint Ex.PG.
2. After recording cursory evidence, accu sed Shahbaz, Ghulam Abbas and Sabir Hussain were summoned and after trial vide judgment dated 16.01.2015 passed by Judge, Anti-T errorism Court, Faisalabad, Shahbaz and Sabir Hussain were acquitted of the charges against them, whereas, Ghulam Abbas was convicted and sentenced as under: Under Section 336-B, PPC sentenced to imprisonment for life with fine of Rs. 10,00,000/- (one million), in case of default to further undergo simple imprisonment for two years; Under Section 302(b), PPC sentenced to imprisonment for life with further order to pay compensation of Rs.
500,000/- under Section 544-A, Cr .P.C., in case of failure to further suf fer simple imprisonment for six months; Under Section 7 of the Anti-T errorism Act, 1997 sentenced to imprisonment for life with fine of Rs. 500,000/-, in case of default to undergo simple imprisonment for one year .
All the sentences were ordered to run concurrently and benefit of Section 382-B, Cr.P.C. was extended. Criminal Appeal No. 221/2016 has been filed by Ghulam Abbas to challenge his above conviction and sentence, whereas, Criminal Revision No. 220/2015 has been filed by complainant Atta Rasool to seek enhancement of sentence qua Ghulam Abbas. Since both these matters have arisen out of one and the same complaint as well as judgment, therefore, are being decided through this judgment.
3. Entire proceedings of the trial, the crux of prosecution evidence and the stance of the convict/appellant stand recorded in detail in the judgment of learn ed trial Court itself, therefore, it is not thought appropriate to reiterate the same here.
4. We have heard the arguments of learned counsel for the convict/appellant, the learned counsel for the complainant as well as the learned law of ficer and have also examined the record.
5. It is admitted position that deceased was wife of the convict/ appellant, she was residing with the convict/appellant in one and the same house and admittedly she was at home when she caught fire. With this background, under Article 122 of the Qanoon-e-Shahadat Order , 1984 the convict/appellant was under an obligation to explain the situation and at the same time we cannot lose sight of the fact that the explanation offered by the convict/appellant could not absolve the prosecution from its primary duty to establish its case through confidence inspiring evidence. It was for this reason that we had to deeply look into the prosecution case.
6. After going through the entire record, examining the statements of prosecution witnesses as well as Court witnesses, it remains a fact that it was an unseen occurrence; however , the cause of death (fire by petrol) is admitted. Thus, the prosecution tried to build its case mainly on following four aspects:-- a) Motive; b) Disclosure of story/reason of her death by Mst. Asima before the complainant, when she was admitted in hospital; c) Extra judicial confession, purportedly made by all the three accused before the complainant; d) Medical evidence.
6A. Here in this case, in the complaint although the complainant had only alleged that convict/appellant and the deceased had a dispute over some plot, but during his statement before the Court Atta Rasool complainant (PW-2) came out with a clear improvement by stating that there was a three marla plot in the name of Mst. Asima Bibi (deceased) and the accused wanted to get the same transferred in their name. Similar is the statement of Shahid Mehmood (PW-4) who is real brother of Mst. Asima Bibi (deceased). But we have noticed that except these bald statements no other evidence either oral or documentary in support of this motive has been brought on the file by the complainant. Had it been the real cause behind the occurrence, the complainant could have produced witnesses to establish earlier differences between the convict/appellant and the deceased or any document to reflect transfer of plot in the name of deceased, which according to the complainant the accused persons wanted to get transferred in their name. On the contrary , it is a fact born out from the record that couple was admittedly residing together for the last 13/14 years and had been blessed with four children. In furtherance to the above, it has also come on the record that as a matter of fact that on 29.10.2013 i.e. just one year before the occurrence the convict/appellant had himself got transferred a plot in the name of his wife (decea sed) through a sale deed. This being the position, if the convict/appellant had any grudge or grouse against his deceased wife and also wanted to get transfer a plot in the name of his wife in his own name, why he would have volunteered to transfer a plot in her name. Thus, we are convinced that motive has not been established in this case. The legal position is well settled that an occurrence can be motiveless; the prosecution is not required to come out with a motive all the times and absence of motive may also not be fatal for the prosecution case, but it is equally admitted proposition that once the prosecution sets up a definite motive then it is obligatory to establish the same without any doubt and where it fails to prove the same, then prosecution is bound to face its adverse impact and then at least rest of the prosecution evidence is required to be seen with extra care and caution.
7. As regards discovery of some facts allegedly made by deceased herself, we have noticed that Lady Dr. Saira Bano (CW-6) had conducted medical examination of Mst. Asima Bibi on 3.10.2014 at 11.10 p.m and while appearing in the witness box she in categorical terms stated that injured was in critical condition and she was unable to make statement due to unconsciousness. It is admitted fact that ultimately Mst. Asima Bibi died of those burn injuries on 5.10.2014 and her post-mortem examination was conducted by Lady Dr. Kishwar Naheed (PW-3).
In such a condition when Mst. Asima Bibi was brought to the hospital in unconscious or senseless, critical condition and according to the medical officer she was unable to make a statement and this statement coming from the mouth of a most relevant expert. the statement of Atta Rasool (PW.2) or Shahid Mehmood (PW-4) regarding disclosure of actual incident to them by Mst. Asima Bibi, herself, becomes extremely doubtful, especially when Mst.
Asima Bibi right from the date of her medical examination till her death remained admitted in hospital and if she had gained senses and was able to make a statement then the complainant and the other witness at least could have conveniently attracted any independent person, nurse, attendant, employee or the doctor from the hospital, but no such effort was made and there is no certificate from any corner to support that Mst. Asima Bibi had gained senses and though for a shorter period, still had came to a position to make a statement. In the absence of any such evidence, whereas, both the witnesses produced to establish this element being closely "related to the deceased, we are not convinced with veracity of statements of both these two witnesses on this aspect.
8. Above all, if the convict/appellant had committed the murder of his wife by sprin kling petrol on her, then it looks ridiculous that he would have himself sprinkled the petrol, set his wife at fire and then himself shifted her to the hospital and that too when she was alive, as is the statement of Lady Dr. Saira Bano (CW-6) who had medically examined the injured on 3.10.2014 and found that the injured was in critical condition, meaning thereby she was at least alive at that time. This aspect further damages the prosecution case for another reason also i.e. if the convict/appellant had set the deceased on fire then firstly he would not have shifted her to hospital alive and secondly if convict/appellant was the guilty person then he would have shifted the deceased to hospital in such a condition when she may be just breathing but with not a slightest chance of her making any statement and if this element is considered then the stateme nts of above two witnesses about the deceased having made some statement before them, become further doubtful.
9. Taking up the question of extra judicial confession, after going through the statem ent of Atta Rasool complainant (PW-2) we have noticed that although according to him all the three accused/ persons (the convict/appellant and two acquitted accused) confessed their guilt before him and begged for pardon, but no further details have been attributed to the convict/appellant or his co-accused, as to why, how and in what manner the accomplished their nefarious design and how the occurren ce proceeded and furthermore, if the accused persons had already confessed their guilt then said aspect must have been incorporated in the FIR, as well. Thus, these important aspects having been found missing here in this case, the extra judicial confession does not in any way Advance the case for the prosecution and could not be made basis to record conviction or to sustain it.
10. So for as medical evidence is concer ned, instead of advancing the case of the prosecution, the same in fact strengthens the base of the defence, for the reason that according to Lady Dr. Saria Bano, the deceased Mst.
Saima was brought to the Hospital on 03.10.2014 at 11.10 p.m, by her husband (convict/appellant) and that duration of injuries was fresh on arrival, as is the case of the convict/appellant himself. Whereas, the statement of Lady Dr. Kishwar Naheed (PW-3) is of no avail to the prosecution as it only mentioned the nature of injuries or the cause of death, which is not under dispute in this case.
11. For what has been discussed above, we have no doubt to hold that prosecution has not been able to prove its case against the convict/appellant beyond any shadow of doubt. Consequently , the criminal appeal is allowed, the conviction and sentence recorded against the convict/appellant is set-aside and he is ordered to be released forthwith if not required in any other case . The record of the learned trial Court be sent back immediately and the case property , if any , be disposed of in accordance with law .