1. ALI MUHAMMAD BALOCH, J.- Anthony Gonsalves. The accused in a case of murder, was convicted by IInd Additional Sessions Judge. Karachi South, on 31-3-1996. He was found guilty of having set on fire his wife Sabistain Gonsalves, after sprinkling combustive powder on her body. The accused appellant Anthony Gonsalves was sentenced to undergo life imprisonment. He was not awarded death penalty as he had undergone the agony of trial for a period of about 18 years at the tine of the judgment. Benefit under provisions of section 382-B of Cr.P.C, was also given to the appellant.
2. The appellant/accused has challenged the judgment and sentence passed by IInd Additional Sesseion Judge Karachi South against him. The learned counsel for the appellant and Seamed counsel for State, argued the matter in great details and assisted the Court in reading the evidence recorded by the trial Court.
3. The facts in short, disclose that on 15-3-1978 at about 9-00 a.m. Deceased lady Sabistain Gonsalves, was present in her house when Anthony Gonsalves, remonstrated with her as to why she had used bad words for the son of one Dad Batti. In reply Sabistain stated that Dad Batti had called Sabistain and her sister prostitutes. This enraged Anthony Gonsalves, who went inside the room and came back and demanded a match-box from Sabistain. Sabistain handed over the matchbox to her husband Anthony Gonsalves who sprinkled the combustive powder on Sabistain and lit her with a match-stick. Fire caught Sabistain, on which she cried for help and went running to the neighbouring house of Rehmat Bibi. Rehmat Bibi, noticed that clothes of Sabistain were on fire, therefore, she put a quilt over her in order to extinguish the lire. Anthony Gonsalves also followed Sabistain to the house of Rehmat Bibi and reaching there he removed quilt from the person of Sabistain. Rehmat Bibi then provided a be-sheet to Sabistain and after wrapping around the bed-sheet Sabistain was taken back to her house by Anthony Gonsalves.
4. Manuel Fernandes, the brother of Sabistain. Learnt about the incident when he was present in the Passport Office, through his friend and the message was to the effect that accused Anthony ad set his wife on fire. Manuel Fernandes, rushed to the house but learnt that Sabistain had been removed to Jinnah Hospital Karachi. He reached Jinnah hospital, where he found Sabistain. In burnt condition. On inquiry to her brother Fernandes. Sabistain had told that her husband Anthony had set her on fire. Anthony' was not present in the hospital and had by that time absconded. On sending intimation to the police by Hospital Authorities, one Fateh Muhammad an ASI of P.S. Memoodabad, the duty officer had reached the hospital and found Sabistain lying in the hospital with bum injuries. Fateh Muhammad, after getting permission from the doctor that Sabistain was in senses and able to make a statement, recorded statement of Sabistain. Which w as subsequently incorporated in the 154 Cr.P.C, book as the FIR. The statement of Sabistain-to Fateh Muhammad disclosed that on that day at 9-00 a.m. Anthony Gonsalves and picked a quarrel with her and he brought some powder from inside the room and after throwing the powder on his wife, he and lit a match and put her on fire and thus had burnt her. Fateh Muhammad after recording the statement of Sabistain w Which according to him w as recorded 'verbatim', obtained the signature of Sabistain on such statement.
5. Son of accused then-led the police to Punjab Colony wherefrom accused Anthony Gonsalves was arrested from his brother s house in presence of Manuel Fernandes, brother of victim Sabistain. The victim lady Sabistain, succumbed to injuries in the hospital on the next day. On completion of investigation the police produced a challan against accused for an offence punishable u'S. 302 P.P.C.
6. The trial took place in Court of IInd Additional Sessions Judge. Karachi South, and the accused in his statement under section 342 Cr.P.C, simply denied the incident stating that he was innocent.
7. However, he also stated in the statement that he was present in another room at the time of incident when his wife had caught fire from the stove. He also stated that his wile did not cry for help.
8. From prosecution side the main evidence comprised statement of the neighbor Rehmat Bibi.
9. Exh.25. PW. Fateh Muhammad. Exh. 27 who produced the original statement of the victim Sabistain bearing her signature Exh. 29 and also report incorporated in 154 Cr.P.C, book Exh.
30. The other material witnesses examined by the prosecution were Mujtaba Ahmad Khan Exh. 37, who was the Investigating Officer, who had recorded statement of Rehmat Bibi and had secured the clothes of deceased Sabistain.
10. Anthony Gonsalves, the accused after having been arrested was found having burns on his had therefore, he was referred to Medical Officer for examination. The doctor had observed first-degree burns on his right had as well as left forearm, which according to the doctor were about 24 hours old. The examination of Anthony Gonsalves, by the doctor had taken place on 17-3-1978 at 10-50 a.m. Whereas the incident had taken place On 15-3-1978 at about 9-00 a.m. The accused had not examined himself on oath to disprove the allegations of the prosecution nor he examined any defence witness.
11. PW Rehmat Bibi, in her deposition in Court which took place after about 10 years of the date of incident identified the accused Anthony Gonsalves and stated that he was living in het neighbourhood. On the day of incident at about 9-00 a.m. The wife of the accused rushed to her house when she was having fire on her clothes. Rehmat Bibi stated that she put a quilt which was lying in her Courtyard, on the wife of the accused in order to extinguish the fire. Anthony Gonsalves, the accused also came there and put of the quilt from the body of his wife and thereafter took away his wife from the house of Rehmat Bibi after Rehmat Bibi had provided a bed-sheet to his wife. Rehmat Bibi, however, stated in Court that later on wife of accused was taken to the hospital but she had not told her at that time, as to by whom she was set on fire, in the cross-examination, the learned counsel for the accused did not put any question to Rehmat Bibi and thus her above statement went unchallenged.
12. Similarly when PW Fateh Muhammad was examined by the trial Court, he stated that on receiving information from the hospital thai Sabistain had brought to the hospital as she was burnt, he had reached there and found Sabistain in burnt condition. Fateh Muhammad stated in his. Deposition that on seeking permission from the doctor and after his certification that she was in senses and able to make statement he had recorded the statement of the victim and obtained heer signatures.
13. He produced the original statement of the wife of the accused recorded by him bearing her signatures. Fateh Muhammad, also produced his letter written by me to the doctor seeking his opinion for recording the statement of the victim and the doctor an such letter from Fateh Muhammad had given in writing that she was in a position to give her statement. This certificate of the doctor is Exh. 28, on the record of the trial Court. Fateh Muhammad, in his deposition hat) stated that the victim had stated before him that she was set on fire by her husband the accused.
14. On reaching the Police Station he had incorporated statement of the victim Sabistain in the 154 Cr.P.C, book which was signed by him and this statement u/s. 154 Cr.P.C, (the FIR) was produced in evidence as Exh.\M). The learned counsel for' the accused was asked to cross-examine the witness Fateh Muhammad, but the learned counsel requested for reserving the cross-examination of PW Fateh Muhammad for next date. His request was allowed. Again the witness appeared, he was re- called and re-affirmed and the learned counsel for the accused was given a chance to cross- examination him. The learned counsel availed the chance but chose not to cross-examine the witness and thus did not put any question to this witness in cross-examination. By this way the evidence given by Fateh Muhammad and the documents produced by him went unchallenged.
15. The learned counsel for the appellant while arguing this appeal mainly insisted the evidence of Rehmat Bibi and Fateh Muhammad did not prove the charge against the appellant, as according to the learned counsel for the appellant they were not the eye-witnesses of the incident. The learned counsel only disputed the finding of the trial Court on his argument that Rehmat Bibi had in her examination-in-chief stated that the victim wife of the accused had not stated in her presence as to who had set her on fire. The argument of the learned .Counsel therefore, was that evidence of Rehmat Bibi was of no value to the prosecution and it did not prove that Anthony Gonsalves, was the only person responsible for setting fire to his wife. In respect of Fateh Muhammad, the learned counsel for the repellant argued that his evidence was 'hearsay' evidence and therefore, of no value and consequently should not be relied upon. No reason for not cross-examining the PW Fateh Muhammad was advanced, except that even if the evidence of PW Fateh Muhammad, is considered to be true, the same according to the learned counsel for the appellant did not prove anything against the appellant as according to him it was 'hearsay evidence and since the victim had died, her statement did not stand proved. Learned counsel for the appellant, however, failed to Substantiate this argument by citing any case law on this point or citing any provision of law under which the evidence of Fateh Muhammad was to be discarded as regard his corroboration of the statement of the victim which was recorded in the hospital.
16. Under the circumstances, I do not find compelled to disagree with the findings of the trial Court and f also do not find any weight in the argument-of the learned counsel for the appellant. In may view' statement given by deceased wife of the accused in the hospital to Fateh Muhammad, stands amply proved by proper evidence before the trial Court in which she very clearly implication the accused and she made it clear that she was set on fire by her husband on account of the quarrel which took place between them that morning on account of her stating that son of Dad Batti had called her and her sister prostitutes and therefore, she had used bad words for him.
17. In my view the accused having failed to challenge the statement of PW Fateh Muhammad, having failed to deny the signatures of Sabistain on the statement recorded by Fateh Muhammad and produced as Exh. 29, in trial Court, proved the fact that Sabistain had given such statement in presence of Fateh Muhammad. This according to me amounted to a 'dying declaration' of the deceased as from all the circumstances, it is "clear that victim lady w as in a precarious condition in the hospital after receiving bum injuries and the Police Officer had also found her in such condition that he found it necessary' to seek the opinion of doctor and the doctor gave the opinion in writing and thereafter, her statement was recorded.
18. The second strong feature which had convinced the trial Court about the guilt of the accused was his receiving bum injuries on his hands which also stood proved from medical examination of the accused. The accused himself admitted in his 342 Cr.P.C, statement, his presence at the scene of incident and admitted that is wife caught fire but according to the accused she had caught fire from Stove. Keeping the statement of the accused in juxtaposition, it becomes necessary to examine the conduct of the accused in order to consider the statement of accused in order to give him any benefit of doubt. Accused could have been extended benefit of doubt if he had taken his wife to the hospital, if he had been present in his house had found her burnt by Stove fire, but the circumstances show that he was not present in his house when the police came for his arrest. He did not volunteer himself to go to the police to report burning of his wife nor he stated that he had taken his wife to the hospital when she received bum injuries from Stove. Therefore, the statement of accused appears to be a clear lie when put in juxta-position with the prosecution story. No benefit of doubt therefore, could be extended to the accused which otherwise, does not arise from the evidence of the prosecution. Under the circumstances no exception can be taken with the judgment of the trial Court and I hold that the trial Court had rightly come to the conclusion that the prosecution had proved the case against the appellant beyond reasonable doubt and found him guilty of setting his wife on fire. As regards the sentence the trial Court did not award the death penalty to the appellant as he had faced the agony of trial for about 18 years. Now this appeal has also taken 2 years to be decided the- agony' of the trial of the appellant has extended to about 20 years. Under these circumstances, I feel that the trial Court should have been more lenient in awarding sentence to the appellant as it has come in evidence that the deceased lady had also left children who are also children of the appellant. They are sufferers as they have lost their mother while their father is incarcerated. Therefore, in my view a sentence of imprisonment for a period of 15 ( Fifteen) years in addition to payment of fine of Rs. 30,000/- half of which is payable to the legal heirs of deceased lady (excluding the appellant) will serve the interest of justice. In case appellant failed to pay the amount of fine, he should undergo rigorous imprisonment for to years more.
19. As a result, the appeal is dismissed with alteration of the sentence to the above extent. The benefit of section 382-B Cr.P.C, will remain available to the appellant as ordered bv the trial Court.