' This judgment will dispose of Criminal Appeal No,456 of 2002 directed against the judgment, dated 5-3-2002 passed by learned Additional Sessions Judge, Gujranwala, whereby he convicted the appellant under section 308, P.P.C. And sentenced him to undergo 14 years R.I. With further direction to pay Rs,3,00,000 as Diyat to Wali of deceased. The accused/appellant was also ordered to pay Rs,1,00,000 as compensation to the legal heirs of the deceased or in default thereof six months' further S.I.
2. The facts of the case in brief as narrated in the F.I.R. By Mst. Shazia deceased herself that on 12-8- 2000 she alongwith her husband returned from Wazirabad to their own home after the fixation of a date for the marriage of her sister Aalia. She alleged that at 10-30 p.m. (night) she and her husband accused Aurangzeb were present in the home, a quarrel took place between them, her husband gave her beating and set her ablazed after sprinkling kerosene oil on her. She was burnt seriously. Then accused lifted her daughter Mobin Zahida and left the house. After much time Abdul Waheed, Bilal Attique her brothers and her father Muhammad Bashir reached there and brought her to the hospital.
3. Initially the criminal case was registered against the appellant under section 324, P.P.C. And subsequently the offence was amended to section 302, P.P.C. After the death of Shazia Bibi.
4. After getting information about the occurrence firstly, the matter was investigated by Munir Hussain, A.S.-I. And then by Arif Hussain, S.-I./S.H.O. Who on 22-8-2000 got inspected the place of occurrence by the draftsman. On 2-9-2000 he arrested the accused Aurang Zeb on rejection of his bail before arrest, and on the same day on his pointation he prepared the Fard Nishandahi Exh.P.D.
About the place where the oil stove was left by the accused, which had already been taken into possession by Munir Hussain A.S.-I. Vide memo. Exh.P.C. Injury statement Exh.P.J. And inquest report Exh.P.K. Were also prepared by Munir Hussain, A.S.-I. Ultimately the accused/appellant was challaned by Arif Hussain, S.-I./S.H.O.
5. Prosecution in order to prove its case has produced as many as 11 witnesses including Doctor, Investigating Officers, and other relevant and formal witnesses. On 22-10-2001 learned D.D.A.
Closed the prosecution evidence. Thereafter statement of the accused/appellant was recorded under section 342, Cr.P.C. In which he pleaded his innocence. Taking into consideration all the evidence produced by the prosecution and also statement of one C.W. And hearing the arguments advanced by both the parties learned Additional Sessions Judge convicted and sentenced the appellant as mentioned above. Hence this appeal.
6. Learned counsel for the appellant in support of this appeal submits that there was no cause of grievance against the deceased by the present appellant, so there was no need of sprinkling kerosene oil on her body in order to cause her murder. Learned counsel for the appellant further submits that C.W.1 Mst. Afshan Kiran Imtiaz had recorded the statement of the deceased when she was alive and that statement should be treated as dying declaration. Adds that after the unfortunate incident the appellant immediately informed the father of the deceased, that it was the appellant who tried to save the life of the deceased by putting water on her body and also provided her medical treatment. Learned counsel adds that in the dying declaration which was recorded by Mst. Afshan Kiran Imtiaz, M.I.C. On 18-8-2002 which is Exh.P.F./1, in which Mst. Shazia Bibi deceased did not name the lady who had brought the message from Mst. Zubaida Begum the sister of the appellant for making her statement in favor of the appellant. Learned counsel submits that mention of Rs,1,50,000 in Exh.P.F./1 by the deceased is not plausible because according to the father of the deceased the appellant was jobless at the time of occurrence. Learned counsel submits that the appellant alongwith Munir Hussain, S.-I. The Investigating Officer got her admitted in D.H.Q. Hospital, Gujranwala for medical treatment. Learned counsel submits that the father of the deceased who was examined as P.W.5 has admitted before the learned trial Court that he did not inform the police about this incident for 5 to 6 days, that both the versions one put forward by the prosecution and the other put forward by the appellant in his statement recorded under section 342, Cr.P.C. Specifically in reply to question that why this case against you? The version of the appellant seems to be more plausible and convincing one, that appellant has been falsely implicated in this case because the deceased had given her ornaments to her parents for providing in dowery to the sister of the deceased who was going to be married after few days. He lastly submits that case against the appellant is of very doubtful nature and the appellant is entitled to acquittal.
7. On the other hand learned counsel for the State submits that prosecution has proved its case against the appellant on every point apart from the statement of Mst. Shazia Bibi deceased which is Exh.P.F./1 is corroborated by different incriminating evidence produced by the prosecution against the appellant. Learned State Counsel submits that if story of the appellant is believed on the point that spouses i,e, the appellant and his wife the deceased in this case were living happily, then there was no question of false implication of the appellant in this case, that Exh.P.F./1 was got registered by Mst. Shazia Bibi when she was apprehended an immediate danger to her life, that Mst. Afshan Kiran Imtiaz M.I.C. Examined as C.W.1 while recording the statement of Mst. Shazia Bibi deceased has ignored all the formalities as provided under the law because there is no provision in whole of Criminal Procedure Code to record a statement of a person/P.W. Unless a case is registered or the person making the statement is an accused, that the version of the deceased is corroborated by medical evidence, recovery of oil stove, further corroborated by the statements of P.Ws.5 and 6, that the reason for awarding lesser penalty is not warranted by law. He submits that prosecution has proved its case against the appellant beyond any shadow of doubt.
8. 1 have heard the learned counsel for the parties. In the instant case the deceased was wife of the appellant. A person can tell a lie but not the documents. If according to the version of the appellant the deceased herself set herself on fire then it was the duty and responsibility of the appellant being husband of the deceased to take Mst. Shazia Bibi immediately to the hospital for medical treatment. In this regard I would like to refer M.L.R. Which is Exh.P.E. On the record where in the name of a person who took the deceased in an injured condition is mentioned as Muhammad Bashir son of Muhammad, father of the deceased, i,e, in the relevant column of relative or friend. Had the appellant took the deceased to the hospital for providing medical aid then the name of the appellant should have been mentioned or given by the appellant in the said M.L.R. By the Doctor. As far as name of Munir Hussain, A.S.-I. Is concerned that is mentioned in case F.I.R. 364 of 2000 registered under section 302, P.P.C. In Police Station Civil Line Gujranwala. The occurrence has taken place on 12-8-2000; the deceased was admitted in the hospital and examined medically on 13-8- 2000 at 1-30 a.m. While case was registered on 18-8-2000 i,e, 5 days after the admission of Mst.
Shazia Bibi deceased in the Hospital. Muhammad Bashir and Abdul Waheed who were father and brother of the deceased and were examined as P.W.5 and P.W.6 respectively have stated before the learned trial Court that when they got information through the appellant that Mst. Shazia Bibi has been burnt, they went to the house of the appellant but appellant was not present there. Mst.
Shazia Bibi was lying in a burnt condition in her house, she was asked by both of them that what happened and then she narrated the whole occurrence to her father and brother. Thereafter her father Muhammad Bashir took Mst. Shazia Bibi deceased to the hospital for providing medical aid but he could not inform the police about the occurrence for the reason that the condition of the patient Shazia had become very serious. 89/90 % of her body was burnt so she was referred to Mayo Hospital, Lahore and it was also expected that Mst. Shazia Bibi may not die and that the appellant was their son-in-law and at that time they did not want to take any action against him.
Mst. Shazia Bibi in her statement recorded by Munir Hussain, A.S.-I., the Investigating Officer which is now dying declaration on which F.I.R. Was registered by the police, has fully implicated the appellant in the instant case. She has also explained the reason for making statement before Mst.
Afshan Kiran, M.I.C. Examined as C.W.1 in Exh.P.F./l. When the statement of Mst. Zhazia Bibi deceased was being recorded on 18-8-2000 by Munir Ahmad, S.-I., the same was attested by Dr. Farrukh Arshad Khan, M.O. P.W.9 who also verified that she was fit to make a statement. Unfortunately, she died later on on 19-8-2000 so the statement which was made by Mst. Shazia Bibi deceased was made under the immediate apprehension of her death, so it is a dying declaration. There was no reason whatsoever to falsely implicate the appellant either by the deceased Mst. Shazia Bibi or by P.W.5 and P.W.6 who are father and brother respectively, coupled with the fact that the statement of Munir Hussain, A.S.-I. The Investigating Officer who recorded the same. Ocular account in this case is fully. Corroborated by medical evidence and also dying declaration of Mst. Shazia Bibi which is Exh.P.F./1.
9. Now I take up the case about recording of the statement of Mst. Shazia Bibi the deceased by Mst.
Afshan Kiran Imtiaz, M.I.C. The application in this regard was submitted by the mother-in-law of Mst. Shazia Bibi deceased who is mother of the present appellant, that application was made on 17-8-2000 addressed to the Deputy Commissioner, Lahore which was marked to Mst. Afshan Kiran Imtiaz, M.I.C. On the same day. A bare perusal of section 164, Cr.P.C. Would show that either according to the said section the confessional statement of an accused person can be recorded or statement of a P.W. Can be recorded if the case has already been registered. In the instant case the case was never registered on the day when the statement of Mst. Shazia Bibi deceased was recorded by Mst. Afshan Kiran Imtiaz, M.I.C. (C.W.1), even otherwise he did not give any certificate as required under section 364, Cr.P.C. She even did not fulfill the formalities which found mention under section 164, Cr.P.C. Mst. Shazia Bibi in her statement of dying declaration Exh.P.F./1 has also given the reason for recording the said statement. In my view that statement was not recorded according to law by Mst. Afshan Kiran Imtiaz, C.W.1 and even she was not authorized under the law to record that statement so the same is completely ruled out of consideration.
10. Even if both the versions one put forward by the appellant in his statement recorded under section 342, Cr.P.C. And the other put forward by the prosecution are put in a juxtaposition then the version of the prosecution seems to be more plausible and convincing one and near to truth while the version of the appellant is totally false.
11. After having heard the learned counsel for the parties and going through the record, I am fully convinced that prosecution has proved its case against the appellant through dying declaration Exh.P.F./1, statements of Muhammad Bashir, P.W.5 and Abdul Waheed, his son P.W.6 and also the statement of Dr. Farrukh Arshad Khan, M.O. In whose presence Exh.P.F./1 was recorded coupled with the fact that recovery of oil stove alongwith 24 wicks (URDU TEXT) was effected from the place of occurrence and that ocular account is corroborated by medical evidence. In this view of the matter, there is no merit in this appeal and the same is dismissed.
12. Copy of the judgment shall be sent to the learned Registrar, Lahore High Court, Lahore who would get the explanation from Mst. Afshan Kiran Imtiaz, M.I.C., that under what law she had recorded the statement of Mst. Shazia Bibi, when there was no case registered against anybody at that time neither Mst. Shaiza Bibi deceased was an accused in that case at that time and thereafter the explanation submitted by Mst. Afshan Kiran Imtiaz, M.I.C. Would be submitted to this Court. This exercise should be done within two weeks.