' BASHIR A. MUJAHID, J.---Faqir Muhammad, Shaukat Ali sons of Ghulam Muhammad and Ghulam Muhammad son of Imam Din, respondents were tried by the learned Additional Sessions Judge, Lahore, under section 302/34, P.P.C. In case F.I.R. No,182 dated 7-7-1988 registered with Police Station, Green Tog n. Lahore for commission of murder of Mst.Ghafooran Bibi and were acquitted of the charge vide the impugned judgment dated 14-7-1991.
2. The brief facts as narrated in the F.I.R. Lodged by Abdul Rashid, P.W.1, brother of Mst. Ghafooran, deceased are that Mst.Ghafooran was married to Faqir Muhammad son of Ghulam Muhammad for last 15/16 years. They had no issue out of the wedlock, due to which they used to quarrel with each other. On 7-7-1988 at 10-00 a.m. Abdul Rashid (complainant) and his brother Muhammad Ramzan, P.W.2 had come to see their sister Mst. Ghafooran when Ghulam Muhammad, Faqir Muhammad and Shaukat Ali accused had a quarrel with Mst.Ghafooran at about 11-30 a.m.
Ghulam Muhammad caused a Sarya blow on her neck, on which, she fell down. Faqir Muhammad, accused sprinkled kerosine oil on her and Shaukat Ali put her on fire with match-box and she received burn injuries and was admitted in Mayo Hospital, where she was medically examined through Dr.Moeenud-Din Malhi, P.W.12.
3. F.I.R. Exh.P.C./1 on the statement Exh.P.C. Of the complainant was originally recorded under sections 307, 306/34, P.P.C., subsequently Mst. Ghafooran died in the hospital on 15-7-1988 and section 302, P.P.C. Was added and Zulfiqar Ali, A.S.-I. P.W.5 undertook the investigation.
4. An application Exh.P.A. Was moved on behalf of Mst.Ghafooran through Muhammad Yousaf Khan, Advocate to the Assistant Commissioner for recording of her statement under section 164, Cr.P.C. Which was marked to Mr.Muhammad Salah-ud-Din Sumbal, MIC/P.W.9, who after taking formal proceedings Exh.P.A./2 recorded the statement Exh.P.A./3 on 10-7-1988 after verification about her condition by Dr.Muhammad Usman, which is Exh.P.A./4. On 14-7-1988, statement under section 161, Cr.P.C. Exh.P.W.5/2 was recorded by Zulfiqar Ali, A.S.-I. P.W.5 (duly thumb-marked by Mst.Ghafooran). On 15-7-1988, Mst.Ghafooran died in the hospital and her post-mortem examination was conducted by Dr.Zahid Bashir, P.W.11 and in his opinion death in this case was due to dry burns leading to septicemic shock.
' The case was investigated by Zulfiqar Ali, A.S.-I. P.W.5, Ghulam Qasim, Inspector/P.W.8 and thereafter by Zafar Iqbal, Inspector/P.W.10, who arrested the accused, completed the investigation and submitted the challan.
5. During the trial, the prosecution examined as many as 12 witnesses to prove the guilt of the accused. Abdul Rasheed and Muhammad Ramzan, P.W.1 and P.W.2 were real brothers of the deceased and were stated to be the eye-witnesses of the occurrence, but were not believed as they had disowned their presence at the spot. Aown Muhammad, S.-I./P.W.4 had recorded the formal F.I.R. Exh.P.C./1. Zulfiqar Ali, A.S.-I./P.W.5 had partly investigated the case. Muhammad Hussain, P.W.6 produced the record of Mayo Hospital to show that Dr.Muhammad Usman had issued death certificate P.W.6/1 of Mst.Ghafooran. He identified the signatures and handwriting of Dr.Muhammad Usman. Ghulaln Qasim, Inspector was examined as P.W.8, who had also investigated the case and recommended for cancellation of case. Muhammad Salah-ud-Din Sumbal, M.I.C. Was examined as P.W.9, he had recorded the statement under section 164, Cr.P.C. Of Mst. Ghafooran Exh.P.A./3. Zafar Iqbal, Inspector was examined as P.W.10, who had arrested the accused, finalised the investigation and challaned them to face the trial.
6. Towards the end of the trial, statements of the accused were recorded under section 342, Cr.P.C.
They denied the charge and claimed their innocence.
7. The trial culminated into acquittal of the accused. The State has challenged their acquittal through the instant appeal.
8. This Court vide order, dated 22-2-1993 had admitted the appeal for regular hearing and issued bailable warrants against the respondents/accused.
9. Ghulam Muhammad son of Imam Din expired during the pendency of the appeal and report was summoned through S.H.O., Police Station, Factory Area, Lahore, who has verified the death of Ghulam Muhammad, respondent through his report dated 23-8-2001, therefore, appeal against Ghulam Muhammad has become infructuous.
10. Learned counsel for the appellant at the very outset does not press the appeal against Shaukat Ali, respondent No,2 on the ground that there is not enough material brought on record by the prosecution against him to connect with the alleged crime. After going through the record we find that the learned counsel is justified for not pressing the appeal and appeal against Shaukat Ali is also dismissed.
11. As far as case against Faqir Muhammad, respondent/accused is concerned, learned counsel for the appellant has argued that even if the eye-witnesses namely, Abdul Rasheed and Muhammad Ramzan, real brothers of the deceased had not supported the prosecution case, but dying declaration i,e, statement under section 164, Cr.P.C. Exh . P. A . /3 recorded by Mr. Sal ahud-Din Sumbal, M.1.C./P.W.9 has been fully corroborated by her statement under section 161, Cr.P.C.
Exh.P.W.5/2 and by medical evidence and the prosecution case has been proved against Faqir Muhammad beyond any shadow of doubt, and the reasons given by the trial Court to discard this piece of the prosecution evidence is not legal and are based on conjectures and surmises.
12. Learned counsel for the respondents has supported the impugned judgment.
13. Heard. Record perused.
14. We have gone through the entire proceedings taken by Mr.Salah-ud-Din Sumbal, M.I.C./P.W.9 for recording of statement of Mst. Ghafooran under section 164, Cr.P.C. He had taken all the legal precautionary measures before recording the statement i,e, the doctor verified the condition of the patient that she was fit to make the statement. All the persons concerned and even other patients from the Ward were turned out. Mst.Ghafooran in her statement fully implicated Faqir Muhammad, accused for sprinkling kerosene oil and thereafter putting her on fire. Dr.Muhammad Usman also gave a certificate Exh.P.A./4 after recording her statement that Mst.Ghafooran was well-oriented in time and space and alive after the statement. Muhammad Salah-ud-Din Sumbal, M.I.C./P.W.9 was not cross-examined by the accused in this regard. Likewise, in statement Exh P W .5/2 under section 161, Cr . P. C . Recorded by Zulfiqar Ali, A.S.-I., Faqir Muhammad, respondent is fully implicated by the deceased. Her statement is consistent qua Faqir Muhammad and we do not find any contradiction or discrepancy in her statements. Dying declaration of Mst.Ghafooran implicating Faqir Muhammad has been corroborated by medical evidence particularly by Dr.Moeen-ud-Din Malhi, P.W.12, who stated that on examination he found smell of kerosene oil on her person. The plea of the accused that it was a blind murder and he has been falsely implicated is not sufficient to exonerate him of culpability. He never took the plea that it was an accidental death. He has failed to show any mala fide to implicate him .
We agree with the contention of the learned counsel for the respondent/accused that it is not safe to record the conviction merely on dying declaration without independent corroboration but in the instant case, the dying declaration has been fully corroborated by medical evidence and after taking all the circumstances into consideration, we are convinced that dying declaration was true, the assailant was nominated with role and was free from prompting by any outsider. There is no reason for his false involvement. The prosecution has successfully proved its case beyond any shadow of doubt against Faqir Muhammad son of Ghulam Muhammad. Resultantly, we allow this appeal and set aside the impugned judgment and find Faqir Muhammad, accused/respondent guilty for intentional murder of Mst.Ghafooran, therefore, he is convicted under section 302, P.P.C.
' As far as the sentence is concerned, the occurrence took place in the year 1988 and the accused/respondent was acquitted of the charge in the year 1991. During this long period of ten years, he had the right of expectancy of life, therefore, he is sentenced to imprisonment for life which will meet the ends of justice. He is further directed to pay compensation of Rs,50,000 to the legal heirs of the deceased under section 544-A, Cr.P.C., in default thereof he will have to undergo six months' S.I. However, benefit of section 382-B, Cr.P.C. Will be available to him.
Learned Sessions Judge, Lahore is directed to cause arrest of the accused/respondent and he be lodged in jail to serve out his sentence.