' IJAZ N1SAR, J.-Muhammad Anwar (32) son of Faqir Muhammad, caste Awan, resident of Dhok Pari Sari Sara!, Police Station Sangjani, Tehsil and District Rawalpindi has been convicted by the learned Sessions Judge, Rawalpindi on 17-3-1980 under section 302, P. P. C. And sentenced to death and to pay a fine of Rs, 5,000 or in default to undergo one year's R. I. The fine, if recovered, was ordered to be paid to the heirs of the deceased.
' We have before us the reference as well as the appeal.
2. Briefly stated the prosecution case is that on 6-9-1978 at about Peshiwela the appellant sprinkled kerosene oil on, his wife Mst. Nishan Bi deceased and set light to it with a match stick. Mst. Nek Bakhat sister of the appellant with the help of Barkhurdar (P. W. 7) and Muhammad Taj (P. W. 8) extinguished the fire by putting water on the deceased. Barkhurdar and Muhammad Taj P. Ws.
Removed the deceased to the Civil Hospital, Rawalpindi. Dr. Agha Muhammad Zafar (P. W. 1) informed the police on phone whereupon Ghulam Yasin, A. S. I. (P. W. 9) reached the hospital. He made query Exh. P. B. From the doctor as to whether Mst. Nishan Bi was fit to make a statement. On getting reply in the affirmative he recorded the statement Exh. P. E. 1 of Mst. Nishan Bi on the same night at 9.30 p. m. The said statement was sent to Police Station, Sangjani for formal registration of the case.
3. According to the deceased she was married to the appellant about 8/9 years ago. Out of that wedlock, she gave birth to four daughters. The eldest daughter was about 6/7 years old. On the day of occurrence, the appellant forbade her from visiting her parental house without his permission and started abusing her and in the meantime brought a bottles of kerosene oil from inside the house and set the deceased on fire. She further gave out that the appellant had solemnized a second marriage' as a result of which their relations were strained which led to the present occurrence. According to her the occurrence was witnessed by Mst. Nek Bakhat (given up), Barkhurtiar (P. W. 7) and Muhammad Taj (P. W. 8).
4. Mst. Nishan Bi, died in the hospital on 7-9-1978 at 5-45 p. On coming to know of her death the A.
S. I. Reached the hospital, prepared her injury statement Exh. P. K. And the inquest report Exb. P. L. He took into possession burnt clothes of the deacesed viz., shalwar P. 4 and shirt P. 5 through memo.
Exh. P. G. The appellant was arrested on 12-9-1978. The A. S. I. Seized bottle of kerosene oil Exh. P. 6 and Match Box P. 7 through memo. Exh. P. H. From the spot.
5. The appellant pleaded not guilty to the charge and denied the prosecution allegation. He admitted that he had contracted a second .Marriage but denied that there was any dispute over it with the deceased. He denied his presence at the spot; He stated that Muhammad Azad P. W. Had asked the hand of his sister which he had refused on which he felt annoyed and thus got him falsely involved in the case with the help of P. Ws. Who are related to him. As regards the occurrence, he stated that it appeared that the clothes of the deceased had caught fire accidentally as a result of which she died. He could not have any motive to kill her because he had small children from her. Whom she was looking after.
6. No evidence was led by him in defence.
7. The prosecution case rests on the evidence of Dr. Agha Muhammad Zafar (P. W. 1) who medically examined the deceased and later conducted autopsy on be? Dead body. Barkhurdar (P. W. 7) and Muhammad Taj (P. W. 8) furnished the ocular account. Ghulam Yasin A. S. I. (P. W. 9) recorded the statement Exh. P. E. 1 (dying declaration of the deceased) while Muhammad Ibrahim, A. S. L (P. W.
10) effected recoveries from the spot.
8. Dr. Agha Muhammad Zafar (P. W. 1) examined Mst. Nishan Bi deceased on 6-9-1978 at 7-30 p. m.
And found the following injuries on her body :- ' An extensive superficial burn covering face both the upper arms front and back of chest, front and back of trunk, front and back of both the thighs. Front of both the knees, back of both the knees and both the bands. Hair of scalp were singed. Blisters were formed at places. Some of the burns were of first degree and some of the second degree.
' The injuries were caused within about 3 hours.
' On 8-9-1978 at 8 a. m., the same doctor conducted post-mortem examination on the dead body of Mst. Nishan Bi deceased and found the injuries mentioned above on her body. Skin was peeled off at many places. Both the lungs were congested. Membrane and brain were congested, heart was full of Intestines were congested and contained faecal matter and gases. Bladder was full of urine. The cause of death in his opinion was extensive burns of the body causing cardio-respiratory failure and shock. The burns were ante-mortem and were sufficient to cause death in the ordinary course of nature. The probable time between injuries and death was about 24 hours and that between death and post-mortem examination about 15 hours. Exh. P. C. Is the post-mortem report.
9. The learned trial Court disbelieved Barkhurdar (P. W. 7) and Muhammad Taj (P. W. 8) by observing that they had reached the place of occurrence after the incident and thus could not witness the occurrence. The recoveries were also disbelieved by him. He, however, considered the dying declaration to be genuine and in consequence convicted the appellant.
10. The learned counsel for the appellant has assailed the judgment of the trial Court on a number of grounds. According to him the conviction could not be based on the dying declaration alone. He submitted that the circumstances in which it was recorded by the police made its genuineness and authenticity doubtful. The condition of the deceased was not such as would enable her to make such a detailed statement, it is added.
11. The important question to be considered is as to whether the deceased could be in a position to make statement Exh. P. E. 1 after having received burns all over her body. The doctor who examined her found the, burns covering her face, both the arms, front and back of her chest, front and back of trunk, front and back of both the thighs, front and back of both the knees and the hands.
Acccording to Modi (Chapter IX 5th Edition) the burns caused by kerosene oil are usually very severe and the brain is some times shrunken. Severe pain from excessive burns causes shock to the nervous system and the excessive burns of the trunk even though superficial are much more dangerous than those of the extremities. Ghulam Yasin, . A. S. I. (P. W. 9) who recorded the dying declaration also stated that the deceased was in severe pain when she was making the statement.
In view of the injuries suffered by the deceased she must have been in a shock if not altogether unconscious and thus it appears to be improbable that the deceased was in possession of full mental faculties in having got recorded the details o the occurrence in so precise manner as not to omit any necessary and relevant details. There is another reason for doubting the genuineness of the dying declaration by the failure of the police to associate any person from the hospital staff.
According to Ghulam Yasin, A. S. I. (P. W. 9) the dying declaration was recorded in the presence of the doctor but no reason whatsoever appears for the absence of the signatures of the doctor on it.
The doctor has not positively admitted his presence at the relevant time and on the other hand stated that he did not remember if the said statement was recorded in his presence. It appears that the doctor might not have agreed to share the responsibility by attesting the statement not coming from the mouth of the deceased but recorded by the police at the instance of the attendants of the deceased. The fact that the A. S. I. Did not obtain a certificate from the doctor to the effect that the deponent remained conscious throughout casts a further doubt on its genuineness. It stands established from the record that the A. S.
1. Had come to know of the manner in which the incident had taken place before he actually recorded the statement of the deceased. The sequence of the statement of Burkhurdar (P. W. 7) shows that he had informed the A. S. About the occurrence before hand.. The presence of Muhammad Taj (P. W. 8) in the hospital at the relevant time can also not be denied because according to him he had accompanied the deceased to the hospital. On the contrary, Ghulam Yasin A. S. (P. W. 9) has denied if Barkhurdar or Muhammad Taj P.Ws. Had met him in the hospital.
' There is a consensus of opinion that the dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement is made in the absence of the accused who bad no opportunity of testing the veracity of the statement by cross-examination. The two eye- witnesses mentioned in the dying declaration have been held by the trial Court to be false witnesses, yielding the obvious result that they were falsely introduced by the deceased 1n her death-bed statement. In Zarif Khan v. The State (1), it was held that the dying declaration stands on the same footing as other piece of evidence and has to be put in the light of the surrounding circumstances and with reference to the principles governing the appreciation of evidence in criminal cases. In order to test the reliability of the dying declaration, the Court has to keep in view the various circumstances like the opportunity of the deceased to see and identify the assailant, whether his capacity to remember the facts had not been impaired at the time he was making the statement, whether the statement had been consistent throughout and whether it had been made at the earliest opportunity and was not the result of tutoring by interested patties. The contents of the dying statement should be proved by reliable evidence. Applying the above tests, we feel that in the present case the dying declaration alone is not sufficient to sustain the conviction of the appellant.
(I) PLD 1977 C 612
12. As already stated above, both the eye-witnesses had been di believed by the trial Court.
According to them they were proceeding to Village Gia Chauntra when they witnessed the occurrence by entering into the house of the deceased. In cross-examination they admitted that the route adopted by them was longer in distance. Since it was an Eid Day they were not expected to have wasted time in following a longer route. In all probability, they were not present at the spot and were falsely introduced. It is apparent from the record that there were some houses adjacent to the deceased's house but un-understandably no resident of the said house has been examined by the prosecution. Even Mst. Nek Bakhat, wife of Azad P. W. (brother of the deceased) and a cousin of the deceased who was said to be present at the spot at the relevant time was not examined by the prosecution. She was a natural witness and why she was given up is difficult to explain.
' The motive for the occurrence as set up by the prosecution also does no appeal to reason.
According to the deceased the appellant had contracted a second marriage about a year prior to the occurrence. No evidence ha been led by the prosecution to show that there was any dispute between the appellant and the deceased over it or that any untoward incident had ever taken place between them. In these circumstances, there appears to be no reason for the appellant to bear any grudge against the deceased, particularly, when he had small children from her.
13. On an overall consideration of the prosecution evidence in the light of the circumstances enumerated above, the prosecution has not been able to prove its case against the appellant beyond all reasonable doubt. Consequently, we accepted the appeal and acquit the appellant by giving him benefit of doubt. He shall be set at liberty forthwith if not required in any other case.