AJMAL MIAN, J.---By this common order, we intend to dispose of the above two petitions. The above Jail Petition has been filed by convict Sabir Hussain who was convicted by the learned Sessions Judge, Chakwal, through a judgment dated 15-4-1986 under section 302/34 P.P.C. For murdering his wife Mst. Azra Begum and was awarded sentence to death and a fine of Rs. 5,000 or in default R.I. For two years. It was also ordered that if the fine amount was realised, the same was to be paid to the legal heirs of deceased as compensation. The other two co-accused Muhammad Din and Khadim Hussain were acquitted. The above conviction and sentence have been maintained by a Division Bench of the Lahore High Court, Rawalpindi Bench, through the judgment dated 25-2-1989. The petitioner/convict seeks leave to appeal through the above Jail Petition, whereas Cr.P.LA. No. 69-R of 1989 has been filed by the sister of deceased seeking leave to appeal from the above judgment of the High Court dismissing the petitioner's revision against the acquittal of the aforesaid two accused Muhammad Din and Khadim Hussain recorded by the learned Sessions Judge, Chakwal, as stated above.
2. The facts to be noted are that the convict Sabir Hussain was married to deceased Mst. Azra Begum about two years before the date of the incident. He was living in Dhoke Hoon of Village Jandial Faizullah at a distance of two miles from Police Station Dhuman, District Chakwal. The deceased's father, P.W. 8 Muhammad Ajaib, whose village was about one mile from Sabir Hussain's house, was informed by P.W. 5 Chaudhry Khan about the incident. Thereupon, Muhammad Ajaib reached the house of Sabir Hussain at 3-00 p.m- where he found his daughter Mst. Azra Begum lying burnt in pain. It is the case of the prosecution that she in presence of P.W. 9 Abid Hussain and P.W. 10 Muhammad Hanif told her father P.W. 8 Muhammad Ajaib as to how kerosene oil had been sprinkled upon her and how she was burnt by Sabir Hussain. It is also the case of the prosecution that she had also stated that she had gone to Khanpur a day before the occurrence for the purchase of cloth and as she was short of money, she made purchase on credit and when she told about it to her husband, she was insulted for being spend-thrift but she kept quiet. It was further stated by her that on the day of occurrence her husband again entered into arguments with her over the matter of over spending and even abused her parents. Thereupon, she retorted and also abused. On that her husband Sabir Hussain sprinkled kerosene oil on her and set her to fire, whereas co-accused Khadim Hussain and Muhammad Din, the brother and the father of Sabir Hussain, respectively, stood at the door so as to block her exit from the room, but she pushed out but was burnt. On the basis of the above statement which was treated as dying declaration by the learned Sessions, Judge, P.W. 8 Muhammad Ajaib presented a written complaint (Ex.PE) to Mirza Qasim Beg, S.H.O. Of the Police Station Dhuman, on the same day who on the basis of the above written complaint, recorded F.I.R. At 6-30 p.m. (Ex.PE/1). He then reached the spot, got prepared the injury statement of Mst. Azra Begum and sent her to hospital at Chakwal. He searched for the three accused but none of them was available. On 7-7-1984 on coming to know about the death of Mst.
Azra Begum he prepared inquest report and despatched the dead body for autopsy. He arrested Muhammad Din and Khadim Hussain on 9-7-1984, whereas P.W. 4 Muhammad Afzal Kiyani, Sub- Inspector, arrested Sabir Hussain on 13-9-1984. Learned trial Court after recording the evidence concluded that the case was proved beyond reasonable doubt against Sabir Hussain but extended the benefit of doubt to the two co-accused Muhammad Din and Khadim Hussain, and disposed of the case in terms of the above judgment dated 15-4-1986. Against the above judgment, Sabir Hussain filed an appeal, whereas the learned Sessions Judge made reference for confirmation of death sentence and the complainant party filed a revision against the acquittal of the two co-accused. A Division Bench of the Lahore High Court by the above judgment dismissed Sabir Hussain's appeal and also the revision filed by the complainant, and accepted the above reference of the Sessions Judge and confirmed the death sentence. The convict Sabir Hussain has filed the above Jail Petition, whereas the complainant party has filed the above petition as stated heireinabove.
3. In support of the above petition, Mr. Nasir Saeed Sheikh, learned A.S.C. Appearing for the convict Sabir Hussain, has vehemently contended that the sole basis of recording conviction is the alleged dying declaration which could not have been relied upon by the learned Sessions Judge and the High Court in view of the factum that as per medical evidence the body of Mst. Azra Begum was burnt to the extent of 80 per cent and, therefore, she could not have been in her senses when her father reached the place of incident. In support of his above submission, reliance has been placed by him on certain passage from. The Encyclopaedia Britannica Volume IV page 457. However, we find that the medical evidence on record is contrary to what has been urged by Mr. Nasir Saeed Sheikh inasmuch as P.W. 1 Dr. Abid Hussain Shah, who examined Mst. Azra Begum on the day of incident, in his cross-examination stated that "in my opinion Mst. Azra Begum did not lose consciousness instantaneously after the receipt of injury No. 1. She should have taken some time to lose her senses. She must have taken at least four to six hours to lose her senses after the receipt of the injuries."
Whereas P.W. 3 Dr. Asghar Hamid Qureshi, who carried out the post--mortem on 7-7-1984 at 8- OO.a.m. Stated that "generally, unconsciousness does not follow the burns."
4. The above statements of doctors were not challenged by the defence nor any suggestion was made to P.Ws Chaudhry Khan and Muhammad Ajaib that MSt.A7.Ra Begum was unconscious. In view of the above state of evidence, in our view, the above contention is based on surmises and conjectures and not founded on any material on record. Additionally, we may observe that the two Courts below were competent either to believe or to disbelieve the dying declaration of the deceased and by believing the same which is a matter of appreciation of evidence, they have not committed any error of law warranting interference by this Court. The defence version that the deceased had committed suicide does not fit in the circumstances of the case. There seems to be no plausible reason for the deceased to have committed suicide. In any case the two Courts below were competent not to believe the same.
5. The other two co-accused Muhammad Din and Khadim Hussain have been given benefit of doubt by the learned Sessions Judge and, therefore, they have been acquitted. The above finding of acquittal has been concurred with by the High Court. Nothing has been pointed out by Mr. Muhammad Ilyas Siddiqi, learned counsel for the petitioner in above Cr.P.No. 69-R of 1989 which may warrant interference by this Court in the above concurrent finding of acquittal recorded by the two Courts.
6. For the foregoing reasons, both the petitions have no merits. Leave is accordingly refused.