' AFRASIAB KHAN, J.--The appellant Mst. Mukhtaran Bibi, aged 23 'years, was convicted under section 302, P.P.C. For the murder of her husband Taj Din, aged 28/30 years, by throwing boiling ghee o the face and other parts of his body and was sentenced to death plus a fine of Rs,10,000 or in default to suffer three years' rigorous imprisonment vide judgment dated 3-4-1985 passed by the learned Additional Sessions Judge, Faisalabad. The appellant has challenge her conviction and sentence by filing the present appeal and the reference for confirmation of her death sentence under section 374 Cr.P.C. Is also before us. We propose to dispose of both the criminal appeal as well as the murder reference together by this consolidated judgment.
2. Briefly, the facts of the case arising out of Exh.P.C. The dying declaration of the deceased Taj Din, are that the deceased-complainant was the resident of Chak No,37, Tehsil Khanpur, District `Rahimyar Khan. For the last two months, the deceased had taken a house on rent from Mst.
Fatima, widow of Barkat (P.W.1) in the Thata known as Girimal and was living with the appellant, his wife. The deceased was employed as labourer in the power looms. The deceased disclosed that last night he had been working in the power looms of Mien Akhtar and early in the morning he was free from his duty and that immediately thereafter he slept in his house. He woke up at about 12 noon and took his lunch and again went to bed. On 29-5-1983 at about 1-30 p.m., the deceased stated, that when he was keeping inside his room his wife, the appellant Mst. Mukhtaran Bibi, hew boiling ghee from a pot upon him which boiling ghee fell on is mouth, face and other parts of his body. The deceased raised a hue and cry whereupon the appellant while throwing away the pot an away. The occurrence was witnessed by Mst. Fatima (P.W.1) and Hashmat Ali (P.W.2). About the motive, the deceased stated that about two years ago, he had given a beating to the appellant on account of her immoral character and consequently she was injured. A case was registered against the deceased. However, he was acquitted. The deceased disclosed in his dying declaration that since then the appellant to her parents house. The appellant had come back five months and thus started living with the deceased. The second part of motive is that two days earlier to the occurrence, the deceased's other-in-law Mst. Anwar Bibi came to his house and both the appellant well as her mother persuaded the deceased to accompany them to sur so that they might live there. The deceased refused to oblige e appellant and her mother. The statement of the deceased Exh.P.C.), dying declaration, was converted into F.I.R. Exh.P.C. / which was recorded by Rashid Ahmad M.H.C. (P.W.5).
4. Muhammad Hayat S.I. (P.W.9) investigated the case. He got a euphonic message from D.H.Q.
Hospital, Faisalabad informing that injured person had been brought in the hospital for treatment witness went to the hospital and found the deceased admitted in ward of the Hospital. He made an application Exh.P.G. For ding whether the injured was fit to make a statement. The doctor duty informed him that the injured was fit to make a statement. Thereupon the witness recorded the statement of Taj Din deceased .P.C. The witness inspected the spot on the same day and prepared site plan Exh.P.H. He took into possession Gadda P.1, pillow chadar P.3 and silver pot P.4 from the spot. Ali the articles stained with ghee and were taken into possession vide Memo .P.A. The appellant was arrested on 31-5-1983. The injured Taj expired on 31-5-1983. Injury statement (Exh.P.I.) and inquest ort (Exh.P.J.) were prepared by the witness. The dead body of deceased was entrusted to Muhammad Arshad constable and was for post-mortem examination. Ghee-stained Shalwar P.5 of the aced was taken into possession vide memo. Exh.P.B. Site plan .P.D.) was got prepared from Aurangzeb Draftsman P.W.6. In s-examination, the witness stated that a lady was sitting near deceased.
5. Dr. Muhammad Ajmal Mian (P.W.8) on 29-5-1983 at 2-05 p.m. Medically examined Taj Din deceased and found the following injuries on his person:- ' Boiling ghee burns on scattered patches involving the face, front part of head, right eye, neck, front of chest, abdomen both shoulders, arms and hands.
' It was opined by the doctor that the injuries were freshly caused with boiling Ghee. The injured was wearing only a shalwar which was greasy and Ghee smelling and similar was the position of the body of the deceased.
' On the same day, Dr. Abdul Aziz (P.W.10) gave his opinion on the application (Exh.P.G.) submitted to him, that the injured Taj Din was fit to make a statement.
6. Dr. Imtiaz Ahmad Gill (P.W.7) conducted the post-mortem examination on the dead body of the deceased Taj Din on 1-6-1983, at 10-30 a.m., and he found the following injuries on the person of the deceased:-
(1) Extensive deep burns on the face, head, back of neck, front chest and back left shoulder.
(2) Extensive burn on the entire left arm.
(3) Burn on the lower 1/3 of back right
(4) Three burn marks 3 c.m. x 3.2 c.m. x 2 c.m. x c.m. In front of left leg, upper part.
(5) Two burn marks 2 c.m. x 2 c.m. On right knee.
' Ali the burn marks were ante-mortem. The internal organs of the deceased were congested. In the opinion of the doctor death occurred due to extensive burns resulting in shock. Time between the injuries and death was about two days, and between death and post-mortem examination it was about 24 hours. The doctor in cross-examination observed that he did not agree with Modi that burns could only cause grievous injury and not death. He further observed that he did not agree with the observation of Modi as laid down in his book at page 195, Chapter IV, wherein it is mentioned that burns do not, as a rule, result in death but may constitute grievous injury involving loss of sight or permanent disfigurement from unsightly scars-on the head or face.
7. Mst. Fatima, widow of Barkat (P.W.1) and Hashmat Ali (P.W.2) were the two eye-witnesses in the case. Both the eye-witnesses did not support the case of, the prosecution and as such, they were declared hostile and were subjected to cross-examination by the learned prosecutor.
8. The appellant, while making a statement under section 342. Cr.P.C. Denied the charges levelled against her and took the plea that her deceased husband was already married and that his first wife had a grudge against the' deceased after he married the appellant. She further submitted that the first wife of the deceased had committed the present crime. She pleaded that she has falsely been implicated in the case at the instance of Mst. Fatima, the first wife of the deceased. The learned trial Court mainly relying on the dying declaration (Exh,.P.C.) of the deceased, convicted and sentenced the stated earlier.
9.. It is contended by learned counsel for the appellant that this is a case of no evidence at all inasmuch as Mst. Fatima (P.W.1) and Hashmat Ali (P.W.2) the two eye-witnesses, did not support the case of the prosecution. Learned counsel argued that this being so there is absolutely no evidence to connect the appellant with the commission of crime. Learned counsel stressed that the dying declaration (Exh.P.C.) was not reliable and authentic piece of evidence on the basis of which the capital sentence could be awarded to the appellant. He stated that it is admitted by Muhammad Hayat S.1. (P.W.9)., the Investigating Officer, that some lady was sitting near the side of the deceased at the time when the dying declaration (Exh.P.C.) was recorded in the hospital. The learned counsel urged that from the dying declaration it is clear that the deceased after finishing his night duty came home early in the morning and immediately thereafter he Went to bed. The deceased slept upto 12 noon and thereafter got up and took his lunch. Again the deceased slept.
The learned counsel on the basis of this, argued that if at all the appellant had the intention to kill the deceased he could be done to death in the early part of the day when the deceased slept after coming back from his duty. The learned counsel stressed that the mere fact that the appellant had come back from her parents' house and had joined the deceased to live with him as his wife, will show that the previous ill-will or enmity between the parties automatically finished. This is in the dying declaration that the appellant was living with her husband for the last two months.
10. We have heard the learned State tour el and have perused the record very minutely. We are of the view that the prosecution has wholly failed to prove a case of intentional and premeditated murder against the appellant. We are not prepared to believe the motive part of the prosecution story according to which the appellant had nourished a grudge against the deceased because earlier the appellant was beaten by the deceased. The dying declaration (Exh.P.C.) has adequately demonstrated that there was a complete patch up between the appellant and the deceased and they had started living as husband and wife happily. The dying declaration shows that separation between the appellant and the deceased had taken place two and a half years ago. For the last about five months, the appellant had come back to live with the deceased. This shows without any shadow of doubt that there existed no differences between the appellant and the deceased as husband and wife. It may further be observed that if the appellant had any intention to murder the deceased, she could do so in the early part of the day when the deceased was admittedly sleeping in the room of the house. There was nobody else present in the house. Both the spouses were' present in the room. We have given our anxious thought to the facts and circumstances of the instant case and we are of the view that in all probability when the deceased woke up and took his lunch at about 12 noon, there might have been some serious quarrel between the appellant and the deceased. This might have provoked the appellant to cause some injury to the deceased. We do not find any evidence whatsoever to show that the appellant intended to murder the deceased.
However, she had the knowledge that pouring of boiling Ghee on the vital parts of the body of the deceased, was likely to cause death of the deceased. Thus, we find that there was absolutely no legal justification to convict and sentence the appellant under section 302, P.P.C. For committing an intentional murder of the deceased.
11. There is nothing on the record to doubt the presence of the appellant in the house of the deceased. The dying declaration shows that the appellant had come back to live as wife with the deceased. It is also established that the appellant and the deceased were living alone in the house where the occurrence had taken place. We are, therefore, clear in our mind that the appellant was there in the house and that she threw the boiling ghee upon the deceased when he was sleeping in his quarter. The recovery of the ghee-stained Gadda P.1, pillow P.2, Chadar P.3 and the silver pot P.4 establishes beyond doubt that hot ghee was thrown upon the deceased by the appellant. The medical evidence has wholly supported the case of the prosecution.
12. Thus, after considering the dying declaration of the deceased, recovery of ghee-stained articles and medical evidence, we have come to the conclusion that it was the appellant who threw the boiling ghee on the person of the deceased with intention to cause disfigurement of the person of the deceased or she might have intended to spoil the vision of the eyes of the deceased. In any case, she did not intend to cause the death of the deceased. If she intended so, she could very well acquire a dagger or could use an available kitchen knife in the house to cut the throat of her sleeping husband.
13. The whole mainstay of the prosecution case is the dying declaration of the deceased. In view of the dying declaration, we have to see as to what offence has been committed by the appellant.
The eye-witnesses, as stated earlier, have turned hostile and as such, their evidence is of no avail to any of the parties. The evidence of the eye-witnesses, therefore, has to be kept aside and as such, cannot be used by either party.
14.The learned counsel for the appellant has attacked the dying declaration on the ground that the presence of a lady by the side of the deceased at the time of recording of dying declaration has spoiled its legal value inasmuch as the deceased was tutored by the lady present at the spot. The contention is without force. There is nothing on the record that the first wife of the deceased had the information of the incident or that she was present at the spot. On the contrary, the landlady of the deceased and the appellant was in fact Mst. Fatima by name. She might have gone there to enquire about the health of the deceased. She had, however, absolutely no motive to tutor the deceased. Thus, we are of the view that the dying declaration is completely free from doubt and was recorded by the police official in a free atmosphere. Thus, the statement of the deceased stands proved. Accordingly, we repel the objection of the learned State E counsel in that behalf.
From the close and deep scrutiny of the dying declaration as well as the attending circumstances, the very I contents of the dying declaration do not spell out any evidence to show that the appellant is guilty of an intentional and premeditated murder. Her intention was not at all to finish him.
15.For all these reasons, we alter the conviction and sentence of F the appellant from section 302, P.P.C., to one under section 304, Part II, P.P.C. And thereby sentence her to five years' rigorous imprisonment. We also find that the appellant is a source less woman, and as such, we set aside the sentence of fine imposed upon her. The sentence of death is not confirmed.
16. The benefit of the provisions of section 382-B Cr.P.C. Shall also be given to the appellant while calculating the sentence of imprisonment. With the above modification, the appeal is partly allowed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.