' MUHAMMAD RAFIO TARAR, J.---This appeal by Muhammad Din alias Manni and Mst. Parveen Akhtar alias Mukhtari with the leave of this Court is directed against the judgment of a learned Division Bench of the Lahore High Court dated 6-10-1987 whereby their conviction under section 302/34, P.P.C. For the murder of Mst. Maqsoodan Bibi was maintained but the death sentence awarded to Muhammad Din by the trial Court was altered to imprisonment for life and with this modification their appeal was dismissed. This appeal and Criminal Petition for Leave to Appeal No,201/1989 seeking enhancement of the sentence of Muhammad Din convict are being disposed of through this judgment.
2. The brief facts of the prosecution case are that the house of Mst. Mukhtari and acquitted accused Mst. Parveen Akhtar adjoins the house of the complainant family and there is a common wall between the two houses. On 13-2-1985 at 10-11 a.m. Mst. Parveen and Mst. Mukhtari came to the house of Mst. Rani complainant and requested her daughter Mst. Maqsoodan deceased to join them in mud plastering the common wall. The deceased expressed her inability to help them as she was indisposed. Thereafter she lay down on a cot. Leaving her and her younger sister in the house Mst. Rani accompanied her husband Muhammad Din to the fields for work. At about 1-2 p.m.
Mst. Rani and her husband returned home and saw Muhammad Din alias Manni, Mst. Mukhtari and Mst. Perveen hurriedly coming out of their house. On entering the house they saw the wearing apparels of Mst. Maqsoodan in flames; she was running in the courtyard and throwing water on herself to extinguish the fire. Mst. Maqsoodan and Mst. Razia informed them that Mst. Parveen, Mst.
Mukhtari and Muhammad Din had sprinkled kerosine oil on Mst. Maqsoodan Bibi and set her on fire.
Mst. Rani and her husband Muhammad Din then took Mst. Maqsoodan Bibi to General Hospital where she was admitted. Mst. Rath reported the occurrence to Muhammad Rafiq, Incharge Police Post Heer in General Hospital, Lahore, at 8-20 p.m. Vide her statement Exh.PC, incorporating the above facts and further alleging that accused persons had set fire to Mst. Maqsoodan as she had declined to help them in mud plastering the common wall.
' On 14-2-1985, aforementioned police officer recorded the statement of Mst. Maqsoodan Bibi Exh.PN in the General Hospital wherein she stated that after her parents left for the fields, she went on the roof of her house and saw Mst. Mukhtari and Muhammad Din alias Manni embracing and kissing each other in the courtyard of the house of Mst. Mukhtari and Mst. Parveen; she reprimanded them and declared that she would tell about it to everyone; a short while after when she was lying on the cot in her courtyard, Mst. Mukhtari, Mst. Parveen and Muhammad Din alias Manni came there; Muhammad Din sprinkled kerosine oil on her, Mst. Mukhtari set fire to her clothes while Mst. Parveen stood near them and in the meantime on the alarm of her sister Mst. Razia, her parents and many other persons reached the spot and extinguished the fire.
3. Muhammad Rafiq Sub-Inspector visited the spot on 14-2-1985 and took into his possession ashes of the strings of the cot, burn clothes of Mst. Maqsoodan and a tin. He arrested the appellants on 19-2-1985. After the usual investigation they were challaned.
4. On 13-2-1985 Dr. Muhammad Ashraf, Medical Officer, Emergency Ward, General Hospital, Lahore, examined Mst. Maqsoodan Bibi, when alive and found "extensive burns of face, whole of anterior surface of trunk (including anterior surface of chest and abdomen, both upper and lower parts) and both the upper limbs including both hands". Both the ears were also burn. The injury was dangerous to life.
' Mst. Maqsoodan expired in the hospital on 24-2-1985. On 26-2-1985, Dr. Syed Shoaib Shah conducted the autopsy on her dead body and found that burnt area was about 45%. The face and neck were completely burnt. Front of chest, abdominal wall, peritoneum and both thighs on front side were also burnt. Right and left arms were partially burnt. The wounds were foul smelling. The burnt area was covered with greenish white pus with sloughing of skin. The burnt caused scepticaemia resulting in death.
5. In support of its case the prosecution examined Mst. Razia as an eyewitness of the occurrence.
Another eye-witness namely Khadim Masih did not support the prosecution and was cross- examined by the prosecutor with the permission of the Court. Prosecution also relied on the evidence relating to motive and Wajtakkar evidence furnished by Mst. Rani and her husband Muhammad Din.
6. The appellants pleaded not guilty to the charge and denied the prosecution allegation against them. Muhammad Din appellant when asked to explain why this case against him, made the following statement:-- "Mst. Rani complainant used to quarrel with my wife, daughter and other persons of the village including Mst. Parveen Akhtar alias Mukhtari and Mst. Parveen accused over petty matters and quarrels of children and she was insulted by me and co-accused when she was arrested by the police in an offence of Zina Hudood Ordinance and I asked my co-villagers to extern Mst. Rani from the village due to her bad character and for this reason she became my worst enemy and falsely involved me in this case by joining hands with Muhammad Rafiq, ' When asked whether he had anything else to say, he stated:-- "I am innocent. Mst. Maqsooda wanted to contract marriage with a man of her own choice but the complainant Mst. Rani wanted to marry her somewhere else and on the morning of the occurrence both of them exchanged hot words and Mst. Rani while leaving the house asked her to die by jumping in some well or setting her on fire and that she would not accede to her demand and thereafter Mst. Maqsoodan brought kerosine oil from a nearby shop and while entering into the Khola of her house put herself on fire by sprinkling , kerosine oil on herself and set herself to fire which was extinguished by Khadim Masih and Haron Masih along with other co-villagers and Mst.
Rani was called from the fields and who subsequently joined hands with Muhammad Rafiq S.I.
Fabricated this case against us due to enmity."
' Mst. Parveen alias Mukhtari denied the allegation that the deceased had seen her with Muhammad Din in an objectionable position and stated that this allegation had been levelled against her to defame her and to create false motive subsequently during the investigation. When asked why this case against her, she made the following statement:-- "I have been falsely implicated by Mst. Rani as she was involved in a Zina case and she was admonished by me and by my co-accused and was defamed in the village so she bore a grudge against me and my co-accused and there were minor quarrels between us and the family of the deceased over the quarrels of children which ultimately resulted into an enmity."
' She further stated that the deceased had committed suicide "having been rejected of her marriage with a man of her own choice which was opposed by her mother". The appellants and acquitted accused Mst. Parveen Akhtar also made statements under section 340(2) of the Cr.P.C.
On oath and examined six witnesses in defence. Of them, Abdul Hameed, Haroon Masih given up P.W. And Muhammad Hayat supported the defence version.
7. The learned trial Court rejected the defence version and relying on the prosecution evidence convicted and sentenced all the three accused persons. On appeal, the learned Judges of the High Court acquitted Mst. Parveen Akhtar on benefit of doubt by way of abundant caution. They upheld the conviction of Muhammad Din and Mst. Mukhtari but reduced the sentence of the former from death to imprisonment for life.
8. Learned counsel for the appellants contends that the motive alleged in the F.I.R. Is too meagre to have prompted the appellants to take the life of the girl and the one alleged in the dying declaration is an afterthought; the F.I.R. Was lodged with inordinate delay after the preliminary investigation therefore it is of no consequence; Mst. Razia, the solitary eye-witness being a child, could conveniently be tutored, therefore, it will be hazardous to place implicit reliance on her; the alleged dying declaration Exh.PN having been recorded by an ASI, is not an authentic document; the statements of Mst. Rani and her husband Muhammad Din suffer from material discrepancies and contradictions, therefore, no reliance can be placed on them and that in the circumstances of the case the defence version seems more plausible.
' The learned counsel for the State supported the finding of the Courts below and contended that in the circumstances of the case there was no justification to withhold the normal penalty of death as Muhammad Din appellant had acted in a very cruel manner.
9. After going through the evidence we feel that the contention of the learned counsel for the appellant regarding motive is well-founded. We agree with him that refusal of Mst. Maqsoodan to help the appellants in mud plastering the common wall was matter so petty in nature that it could not have provided a motive to them to take her life in the manner it was done. The only evidence in support of immediate motive that Mst. Maqsoodan deceased had reprimanded Muhammad Din and Mst. Mukhtari on seeing them in objectionable position, is the statement of the deceased in the dying declaration Exh.PN. No such statement finds mention in the F.I.R. Although Mst. Rani in her statement at the trial claimed that when she reached her house the deceased had narrated the occurrence to her. Even at the trial Mst. Rani did not state that Mst. Maqsoodan deceased had made any statement about the immediate motive. She rather stated in examination-in-chief: "I cannot tell as to why the accused set her on fire" and likewise Muhammad Din also did not state that Mst. Maqsoodan had informed them that she had seen Mst. Mukhtari and Muhammad Din appellants in an objectionable position when she narrated the occurrence to them Mst. Razia who was present in the house right from the time her parents left for the fields till the time of occurrence also did not state anything in regard to immediate motive. In the circumstances we feel that the real motive for this unfortunate occurrence remains shrouded in mystery.
10. As for the other contentions raised by the learned counsel for the appellants we find that the same were also raised before the Courts below and were repelled by the learned Judges of the High. Court on very solid and sound reasons. The findings arrived at by them have the support of evidence and are not shown to have suffered from misreading, non-reading or misconstruction.
There is no legal error in the appraisement of evidence and the Courts below have accepted the ocular account and Wajtakkar evidence for valid reasons. We are, therefore, satisfied that the appellants were rightly convicted under section 302/34, P.P.C.
11. Now we come to the question of sentence. The learned Judges altered the death sentence of Muhammad Din appellant to that of imprisonment for life on the ground that he "sprinkled kerosine oil on Mst. Maqsoodan whereas Mst. Mukhtari co-appellant lit match stick and set her on fire, so he cannot be held solely responsible for the death of the deceased although he had materially contributed towards the same". We agree with the learned State Counsel that after accepting the evidence relating to immediate motive there was no justification to alter the sentence of Muhammad Din appellant from death to imprisonment for life. However, since we have observed above that evidence relating to alleged immediate motive is unsatisfactory and the real motive in this case remains shrouded in mystery, we do not feel inclined to interfere with the sentence of Muhammad Din appellant.
' Resultantly the appeal and the Criminal Petition for Leave to Appeal are dismissed.