' MIAN ABDUL KHALIQ, J.---Samson Masih alias Pappu son of Inayat Masih, aged 19/20 years, was tried for the murder of Mst. Nasreen Bibi by the learned Additional Sessions Judge, Lahore, who vide his impugned judgment dated 10-2-1991 had convicted and sentenced the appellant under section 302, P.P.C. To death and a fine of Rs, 50,000 in default whereof to undergo 5 years' R.I. The fine, if realised, Rs,40,000 out of the same were directed to be paid to the legal heirs of the deceased as compensation. He preferred this appeal to assail, his conviction and sentence. The learned Additional Sessions Judge has also sent a reference under section 374, Cr.P.C. Both the criminal appeal and the murder reference shall be disposed of together by this judgment.
2. The prosecution case in brief, as unfolded in the FIR. Exh.PA/1 recorded at Police Station Factory Area, District Lahore on 7-3-1989 at 2-05 p.m. Recorded on the basis of statement of deceased Mst.
Nasreen Bibi Exh. PA is to the effect that her husband in connection with his service was in Saudi Arabii for the last 4/5 years and during the wedlock 3 daughters and a son were born. In the absence of her husband, the appellant, real sister's son of the husband of the deceased, was living with her, who developed bad intentions and had been trying to persuade the complainant in indulging in Zina, but she had been refusing, while the appellant had been giving threats of murder.
On 6-3-1989 at about 12 o'clock (night) the deceased was sleeping in the house and her father Rehmatullah (P.W.4) and maternal-uncle Naseer Ahmad (P.W.5) were sleeping outside, who had come to see her. The appellant went to her and wanted to commit Zina, but she refused, on which the appellant sprinkled kerosene oil from the oil burner which was lying nearby and set her at fire with the match. On the alarm of the deceased P.Ws. 4 and 5 reached and started extinguishing fire and the appellant escaped, due to which head, face, breast, arms and other parts of the body of the deceased were burnt. Thereafter, P.Ws. 4 and 5 admitted the deceased in the hospital. The appellant had done a great cruelty with the deceased lady and she had prayed for action and her statement was correct.
3. P.W.2 Muhammad Abdullah, A.S.I. Recorded statement Exh. PA of deceased Mst. Nasreen Bibi after obtaining opinion (Exh. PD/1) of P.W.9 Dr, Furrukh Mahmood. At first the case was registered under section 307, P.P.C. And the deceased succumbed to her injuries on 20-3-1989 at about 12-30 (night) when the offence was altered to section 302, P.P.C. He proceeded to the spot and secured plastic gallon P. 1 and kerosene burner P.2 vide memo Exh.PB. Naseer Ahmad (P.W.5) produced before him burnt shirt P.3 and Shalwar P.4 of the deceased which were secured vide memo Exh.PC. P.W.7 Muhammad Aslam S.H.O. Arrested the appellant on 28-3-1989 and after completion of the investigation challaned him.
4. Dr. Afzal Hussain (P.W.6) on 6-3-1989 at about 12-15 a.m. (night) medically examined deceased Mst. Nasreen Bibi in injured condition and had found the following injuries on her person:--
(1) Patient was conscious.
(2) She was burnt. Whole of head and neck including face the burn was of superficial degree. Both arms superficial burn. Both thigh and upper half of right lower leg was also of superficial degree burn. Front of abdomen half of front of chest and half of back of chest was also superficial burn.
This concludes the total area of burn as 68 per cent. Of body surface and the injury is the grievous.
' Probably duration of burn injuries was less than one hour. She was burnt by flame. Exh. PG is the correct carbon copy of the M.L.R.
' Dr. Muhammad Farooq (P.W.8) on 21-3-1989 at 11-45 a.m. Conducted autopsy on the dead body of Mst. Nasreen Bibi deceased and found about 6 per cent. Burn present on the face, front of abdomen and back of chest, front of upper arms and forearms on both sides, front and back of both thigh, front of whole left leg and upper half of right leg, on front patches of black and yellow were present on burnt part and foul and whitish discharge was also present on different areas.
Signing of hair present on sketch and pubis. Rigor mortis was fully developed and faint post- mortem staining was present on back. All other organs were healthy except brain, plauri, lungs.
Liver spains and kidney were congested. He opined that the cause of death in this case was 76 per cent. Antimortem burn leading to septicemia shock and death. The time between injuries and death was within 16 days and between death and post-mortem was 12 to 24 hours.
5. The prosecution examined 11 P.Ws. In all to substantiate its case. P.W.4 Rehmat Ullah and P.W. 5 Naseer Ahmad were examined as eyewitnesses. P.W 2 Muhammad Abdullah, A.S.I. And P.W.7 Muhammad Aslam, S.H.O. Had investigated the case. The other P.Ws. Are of formal nature.
6. The appellant when examined under section 342, Cr.P.C. Denied the prosecution evidence against him and while answering the question "why this case against you and why the witnesses have deposed against you?" he replied that he had been wrongly involved in this case with mala fide intention of the complainant and prosecution witnesses. The appellant made statement on oath under section 340(2), Cr.P.C. And appeared as D.W. 1 and had stated that on the night of occurrence the deceased had asked him to have an illicit intercourse with her, but he refused in view of his relations with her, on which the deceased threatened that she would commit suicide and at the time of her setting herself on fire, none was present in the house. He took her to the hospital, informed the P.Ws. He was falsely involved in this case. D.W.2 Sohail Younus son of the deceased had stated that her deceased mother herself set on fire and P.Ws. We're not present. The appellant informed his grandfather and as her maternal-grandparents did not like the accused, therefore, he was involved falsely. D.W.3 Dumnick Masih stated that on 6-3-1989 the appellant informed him about the accident and stated that the deceased was set ablazed. He reached Lahore. He remained in the Services Hospital and in her presence the deceased had not made any statement before the police, but P.W. 4 Rehmat Ullah made the statement. The learned trial Court after evaluating the evidence on record convicted and sentenced the appellant.
7. We have heard the learned counsel for the parties and have perused the record. The learned counsel for the appellant has vehemently contended that the case against the appellant is false.
The deceased wanted to have sexual intercourse with the appellant and on his refusal, had set herself on fire and P.Ws. We're not present. The deceased was admitted in the hospital at Lahore when P.W.2 received information about the present occurrence, he reached the hospital, made query vide application Exh.PD whether the deceased was fit to make statement, on which P.W.9 Dr. Farrukh Mahmood had opined (Exh.PD/1) that she was fit to make statement. The deceased made her statement Exh. PA on the basis of which formal F.I.R. Exh. PA/1 was recorded by P.W.1 Arif Ali. In Exh. PA the deceased had specifically stated that the appellant had been enticing her for Zina and at the relevant time he wanted to commit Zina with her and on the deceased's refusal sprinkled kerosene oil and set her on fire.
8. Nothing was brought on record by the defence that Exh. PA was tutored one and was not voluntary. Exh. PA is the dying declaration of the deceased. P.Ws. 4 and 5 had no enmity against the appellant and no motive whatsoever to falsely involve him in the present case.
9. Great stress was made by the learned counsel for the appellant on the statement of D.W.2 Sohail Younas, aged 10 years, son of the deceased, who stated that the deceased had set herself on fire and the appellant gave information about the occurrence to his grandfather and P.Ws.4 and 5 were not present in the house at that time. The P.Ws. Did not like the accused/appellant and, therefore, he was involved falsely. During cross-examination he stated that he was living with his paternal-grandfather and mother, who were not on speaking terms with her maternal- grandfather. Paternal-grandfather and mother did not allow him to go to the house of his grandfather. He further stated that it was correct that his paternal-grandfather and mother usually talked in the house to save the accused/appellant. It is pertinent to mention here that nothing is on record to establish that rational questions were put to the child Sohail Younas (D.W.2) aged 10 years, which he could answer the same.
10. The learned counsel after arguing the appeal at some, length had prayed for leniency in the matter of sentence.
11. We, after perusing the record and hearing the learned counsel for the parties, are of the view that the appellant was rightly convicted and sentenced. P.W.7 Muhammad Aslam, S.H.O./I.O. Has stated during cross-examination that none of the persons from the locality told him anything about the character of Mst. Nasreen Bibi deceased. However, the appellant was having illicit relations with Mst. Nasreen Bibi deceased and the same fact came to his knowledge, during investigation. The deceased had specifically stated in Exh.PA on the basis of which formal F.I.R. Exh.PA/1 was recorded that the appellant wanted to commit Zina with her and she refused. It is surprising that the appellant used to live with the deceased in the absence of her husband as well as used to sleep in the same room. The genesis of the case is shrouded in mystery and it has not been brought on record that what happened immediately before the alleged occurrence, and taking into consideration the statement of P.W.7 Muhammad Aslam, S.H.O./I.O. While dismissing the appeal of the appellant we alter the sentence of death to imprisonment for life and a fine of Rs,5,000 in default whereof to suffer further R.I. For 6 months. The appellant shall also be extended the benefit of section 382-B, Cr.P.C. The death sentence is not confirmed. 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.