' This appeal is directed against judgment, dated 31-10-1994 passed by the learned Sessions Judge, Karachi (East) in Sessions Case No,780 of 1991 State v. Muhammad Jamil and another (F.I.R.
No,222/91 Police Station Landhi) whereby both the appellants were convicted and sentenced to suffer R.I. For ten years and a fine of Rs,10,000 each and in default of payment of fine each to suffer R.I. For one year more under section 302(c) of Qisas and Diyat Ordinance.
2. Briefly stated the prosecution case as narrated in the F.I.R. Lodged on the basis of a statement under section 154, Cr.P.C. Of Mst. Surriya recorded in hospital on 18-7-1991 while she was lying injured there, is that she resides in Street No,3, Landhi, Karachi and her parents reside at Sargodha.
The house where she resides is the house of her deceased uncle Pir Bux, who was elder brother of her father and she was brought up by him. Jamil and others who are distant relatives of late Pir Bux intend to dispossess her from the abovesaid house. An application was made to the Ilaqa Councillor. On 17-7-1991 one Jamil, Muhammad Ali (son-in-law of Jamil) and Mst. Zubaida wife of Muhammad Ali stayed at her house against her will. One Abdul Majeed being a tenant resides in one portion of her house, who is relative and well-wisher of Jamil. Mst. Bilquis wife of Abdul Majeed and Mst. Zubaida wife of Muhammad Ali had beaten her, yesterday. She further alleged that she slept in her room while Jamil, Muhammad Ali and Zubaida had slept in courtyard of the house. At about 5-00 a.m. She went to latrine and while coming back, Jamil threw kerosine oil upon her and Mst. Zubaida fired by match-stick on her clothes. She cried and sat in the gallery. Muhammad Ali, Abdul Majeed and Mst. Bilquis were also there. They started crying in the street and people gathered and now she is hospitalized. Her complaint is against the above said persons, who had tried to kill her by burning.
3. At the first instance the F.I.R. Was registered under section 324 of Qisas and Diyat Ordinance, but subsequently due to death of the complainant (Mst. Surriya) the same was converted into 302/34 of Qisas and Diyat Ordinance. After usual investigation and arrest of the appellant/accused the case was sent up for trial.
4. The prosecution examined 13 witnesses to prove its case. P.W.1 Ali Muhammad is father of deceased Mst. Surriya (Exh.7) P.W.2 Muhammad Ali is son-in-law of accused Jamil, who was declared hostile (Exh.8). He has produced his statement under section 164, Cr.P.C. (Exh.9), P.W.3 Latif Ahmed Khan (Exh.12) is Mashir of Wardat, who produced Mashirnama of Wardat (Exh.13), P.W.4 Mst.
Jamila (Exh.14) is mother of deceased Mst. Surriya P.W.5 Abdul Majid, who attracted on the cries of deceased Mst. Surriya and saw her in burnt condition, P.W.6 Asghar Ali (Exh.15) is Mashir of inspection of dead body of deceased Mst. Surriya and arrest of the accused. He produced the said Mashirnamas (Exhs.16 and 17 respectively) P.W.7 Basharat Ali P.C. (Exh.18) is also Mashir of the dead body and the inquest report (Exh.19), P.W.8 Ghulam Muhammad (Exh.20) who reached the Wardat and deceased told him the manner in which she was burnt. He also produced his 164, Cr.P.C.
Statement (Exh.21) P.W.9 Mst. Bilquis (Exh.22) was also attracted on the cries of deceased Mst.
Surriya and found her sitting in the gallery of her house in burnt condition, P.W.10 Abdul Mannan A.S.I.P. (Exh.23) who took up the initial investigation and recorded 154, Cr.P.C., statement of Mst.
Surriya (Exh.24) and incorporated the same in 154, Cr.P.C. Book kept at police station (Exh.25) P.W.11 Dr. Abdul Hameed, Medico-legal Officer (Exh.26) who examined the injured Mst. Surriya and issued such certificate (Exh.27) P.W.12 Muhammad Salcem (Exh.29) reached the Wardat alongwith Ambulance and saw Mst. Surriya in burnt condition and was informed by deceased that accused Jamil threw kerosine oil on her while Mst. Zubaida fired match stick to her. He also produced his 164, Cr.P.C. Statement (Exh.30) and P.W.13 Muhammad Ahmed Baig, S.I.P. (Exh.37) who investigated the case. The prosecution closed his side (Exh.31).
5. The appellants named above in their statements under section 342, Cr.P.C. Denied the prosecution allegations and stated that they have been falsely implicated due to enmity. They did not lead any evidence in their defence.
6. That learned Sessions Judge believing the prosecution evidence convicted and sentenced the appellants as indicated above.
7. Mr. Muhammad Ishaque, the learned counsel for the appellants contended that the investigation of the case on the face of it appears to be dishonest. He argued that in this case there is no eye- witness. The statement of the deceased Mst. Surriya which is incorporated in the F.I.R. Neither bears the signature of a doctor nor a certificate that the injured/deceased who was in the hospital was capable to make her detailed statement and more over no other person is examined by 'the prosecution, in whose presence the said statement was recorded by the A.S.I.P. Abdul Mannan. He has also drawn my attention to a glaring mistake committed by the Sessions Judge in framing of the charge against the appellants, as in the charge date of offence is mentioned as 15-7-1991 instead of 1S-7-1921. He has also drawn my attention to the statements of 'the accused in which too, the date of offence is mentioned as 157-1991 instead of 18-7-1991. He also brought to my notice another mistake committed in the trial Court by showing that the prosecution side was closed vide Exh.31 on 19-10-1993 and again vide Exh.33 on 13-1-1994 and thereafter the statements of the accused were recorded on 7-2-1994 as mentioned by the learned Sessions Judge under his signatures but in type date is shown to be 6-11-1993. (Exhs.34 and 35). After the statements of the appellants/accused were recorded on 4-5-1994 an application under section 540, Cr.P.C. For summoning the S.H.O. Muhammad Ahmed Baig was made by the A.P.P. Which was granted on the very day and the said witness was examined. Mr. Muhammad Ishaque, Advocate submits that after the evidence of S.I.P./S.H.O. Muhammad Ahmed Baig was recorded, the appellants/accused ought to have been further examined under section 342, Cr.P.C. But it has not been done. In the end he submits that it is a fit case in which sentence be set aside and the case be remanded for fresh trial.
8. Mr. Agha Zafir, the learned Advocate for the State supported the conviction awarded to the appellants but was not able to say anything to the mistakes and lacunas pointed out by the learned Advocate for appellants.
9. I have applied my mind to the circumstances of the case and have gone through the entire evidence with the valuable assistance of the learned counsel. Apart from the mistakes/lacunas pointed out by the Advocate for the appellants, I also noticed that the statements of the witnesses under section 164, Cr.P.C. Are not properly recorded as it is nowhere mentioned as to A whether the same were recorded in presence of the appellants and as to whether any chance was given to them to cross-examine them. Simply the thumb-impressions of the appellants alongwith the witness concerned are obtained on the said statements. It is a fit case to be remanded to the trial Court for fresh decision but since the accused/appellants have already remained in jail as under- trial prisoner as well as convict for about four years and in case of fresh trial another period of 4/5 years shall be needed to decide their fate.
10. I have given my anxious consideration to this aspect of the case whether the sentence imposed upon the appellants by the trial Court needs consideration or not. I find that the motive, though alleged in the F.I.R. Stood not proved because, there is no elaboration of the motive for the crime, except that there was some dispute regarding the property. The parties are related inter se. It appears that there was bickering between the parties regarding the said property. The possibility cannot be ruled out that something immediately preceded the occurrence, which has been concealed by the prosecution. P.Ws. Muhammad Ali, Abdul Majeed, Ghulam Muhammad, Mst.
Bilquis and Muhammad Saleem in their statements have stated that each one of them reached the Wardat and saw Mst. Surriya in burnt condition lying in the house and was saying that accused Jamil threw kerosine oil on her while accused Mst. Zubaida showed match stick to her, which shows that incident took place but none from the said witnesses shows the presence of other witness at the time of disclosing the incident by the deceased Mst. Surriya which also creates doubt. I have already opined that it is a fit case for remand but since the appellants have already remained in jail for about four years dining the pendency of the case and this appeal and in case of fresh trial it will take couple of years more, as such, the appellants deserve concession in sentence; so while dismissing the appeal on merits and maintaining the conviction- of the appellants under section 302/34 of Qisas and Diyat Ordinance on two counts I reduce the sentence from ten years to the period already undergone under each count. In the result, the appellants shall be released forthwith, if not required in any other case.