Appellant Mst. Fazlan Bibi through Criminal Appeal No, 480 of 2003 has challenge her conviction and sentence recorded by Mr. Shafique Ahmad Chaudhary, learned Additional Sessions Judge, Mandi Bahauddin vide his judgment dated 29.3.2003 in case FIR No, 184/2001 under Section 302/109 PPC registered with Police Station Miana Gondal.
2. He has convicted her under Section 302 (b) PPC and sentenced under the same to imprisonment for life as Ta'zir.
3. The facts in detail are available in the impugned judgment. I, therefore, avoid to burden this judgment unnecessarily by repeating all those here.
4. However, the precise facts relevant for the disposal of her appeal are that she along-with her husband Muhammad Siddique, son in law Muhammad Azam and daughters Mst. Zahida, Mst.
Nusrat and Mst. Shahida was tried under Section 302 read with Section 109 PPC for committing the Qatal-e-Amd of her deceased son in law Muhammad Ashraf by administering her poison in the tea on 17.7.2001 at about 6/7:00 a.m. in her village Sanda falling within the jurisdiction of the aforesaid police station with their abetment.
5. On the conclusion of the trial, the learned trial Court has acquitted her aforementioned co- accused, while finding her guilty of the same has convicted and sentenced her as stated above.
6. The prosecution in support of it's case has mainly relied upon the dying declaration of the deceased, motive and the evidence of the I.Os.
7. The learned trial Court has believed these pieces of evidence in convicting and sentencing her.
8. It has been argued on her behalf that dying declaration of the deceased in fact was not worth relying against her as it was neither recorded in the presence of the doctor nor by a Magistrate or any other independent official and it so could be treated a mere statement under Section 161 Cr.P.C. and in this regard reliance has been placed upon the case of Abdul Majid alias Majha v. The State (1976 P.Cr.L.J. 545 Lahore); that nobody had seen her administering poison to the deceased; that she had no motive to do away with him and the motive set up by the prosecution has remained unproved on the record; and that the I.O. who has recorded the dying declaration of the deceased was not an independent official and rather was acting in league with the complainant party, who wanted to involve her due to some matrimonial dispute; and that in any case the prosecution as per it's evidence on the record has failed to bring home the guilt to her beyond any shadow of reasonable doubt.
9. As against the same the learned state counsel has contended that dying declaration in the instant case was a reliable piece of evidence and so it has rightly been relied upon by the learned trial Court; and that the motive and the circumstance of investigation against the appellant has corroborated the said piece of evidence and all this has established her guilt on the record and in this regard has relied upon the case of Niamat Ali v. The State (1981 SCM R 61).
10. I have carefully considered the submissions made by both the sides and gone through the available record.
11. It is admitted position on the record that nobody had seen the appellant administering poison in tea to her deceased son in law. The prosecution has tried to link her up with that charge on the basis of the dying declaration of the deceased.
12. The same as per the evidence of Hasnat Shah, SI (PW7) was recorded by him on 17.7.2001.
According to him on that day he had made application Ex. PD to the doctor for his opinion that if the deceased was fit to make statement. The doctor when had declared him fit for that purpose he had recorded his statement Ex. PD/1 in presence of the witnesses. The deceased according to him had died thereafter.
13. Nazir Ahmad is the real brother of the deceased and Bati Khan as per his showing his acquaintance. Although, it was suggested to Bati that complainant cultivates his land but he has denied the same. However, one thing is clear from his evidence that he had some connection with the complainant. He has tried to show that he per chance was present in the hospital when the said statement of the deceased was recorded. According to him he had gone there to take medicine for his ailing son. But this seems not so as his interest in the matter has appeared to be more than that. He as per his own showing had gone to the hospital to take medicine for his son but he had not come back after taking medicine, if it was so and rather had remained there till evening. This suggests that he had told lie that he had gone there to take medicine for his son. Had it been simply so, he then must have come back after taking the same and had not stayed there till evening. This is, thus concoction on his part. However, there seems no need to dilate any further upon this aspect of the matter. However, one thing in this context is necessary to mention that the prosecution has tried to show by the said statement that the deceased had named the appellant as the person, who had administered him poison in the tea.
14. According to both of these witnesses and Hasnat Shah SI (I.0), the dying declaration was made by the deceased in presence of the doctor as well. This has been recorded by Hasnat Shah SI. It has been mentioned in the same that it was made in presence of the doctor but strangely enough doctor Iftikhar Ahmad (PW10) at the trial has clearly stated in the cross-examination that the deceased had not made any such statement in his presence. He has also stated that the statement did not contain his signatures. He, therefore, has contradicted Nazir Ahmad, Bati and Hasnat Shah, SI in this respect.
15. Nazir Ahmad had the interest in the matter as he is brother of the deceased. Bati is his acquaintance and he also seems to have extra interest in the matter and obviously due to his connection with Nazir Ahmad. Hasnat Shah, SI was the I.O. of the case. He too might be interested to create some evidence due to his official compulsion being I.0 and particularly when no direct evidence of administering poison to the deceased by the appellant was available so, his interest in the matter too is obvious. This interest of him in the evidence is also evident from the fact that when doctor was available in the hospital at that time then why he did not care to get it recorded by the doctor or at least in his presence or had obtained his signatures particularly when he had obtained the signatures of the two other above mentioned witnesses. It is available in the evidence that the deceased had died about two hours of the dying declaration. In those two hours Hasnat Shah S.I. could manage to get recorded his statement by a Magistrate but he did not do so and instead has recorded it by his own self. This is some thing suspicious about his having recorded that statement of the deceased himself not by any independent official. This suspicision is further strengthened by the fact when the doctor has stated that it was not in his presence while he as per his showing had certified to Hasnat Shah, SI that he was fit for that purpose. In the case of Abdul Majid alias. Majha u. The State (1976 P.Cr.L.J. 545, Lahore) was the similar situation. In that case the deceased's statement neither was recorded in the presence of doctor nor cared to be recorded through a Magistrate or any other independent official. It was held in that case that the same amounted to mere statement under Section 161 Cr.P.C. and not dying declaration.
16. It has also been held in the same that such statement could not be used as dying declaration.
The learned trial Court has used it as dying declaration and not statement under Section 161 Cr.P.C.
This statement, if may be treated as one under Section 161 Cr.P.C. the same could not be of any avail to the prosecution because the use of such statement in the evidence has been suggested by Section 162 Cr.P.C. It could be used only to contradict the maker in the manner provided in law and in other way. It's use has not been made in that way. So, it could be of no effect as regards the question of culpability of the appellant. Therefore, it is to be kept out of consideration. The dying declaration of the deceased, thus was not a reliable piece of evidence. It has wrongly been relied upon by the learned trial Court. The case of Niamat Ali v. The State (1981 SCM R 61), therefore, is not aptly applicable to the instant case.
17. The motive part of the prosecution has been furnished by PW Nazir. According to him deceased Ashraf had abducted Mst. Nusrat, the daughter of the appellant and due to the same the appellant had administered poison to him in tea. This is interesting to note that he in the same breath has stated that compromise was effected between the deceased and the appellant's family in that matter. He in the cross-examination has also admitted that about 1-1/2 year prior to the occurrence the deceased has contracted marriage with the said daughter of the appellant. He has also admitted it to be correct that Mst. Nusrat was leading happy matrimonial life with the deceased after her marriage with him.
18. The compromise when was effected between the deceased and the appellant's family in the above indicated matter, and the marriage of the deceased with the said daughter of the appellant had taken place and she was living with him happily, it is then irreconcilable that the appellant had been left with any grudge against him.
19. It is further interesting to note that Nazir Ahmad complainant has admitted in the cross- examination that the deceased since his marriage till the incident had lived with his in-laws. His marriage with the daughter of the appellant was solemnized about 1 1/2 year prior to his evidence.
The deceased, if since then was living with his in laws, it then definitely was with their consent. The appellant then could not be having any animus against him of the type indicated above. The motive part of the prosecution, therefore, has not been proved as per it's evidence on the record.
The same, therefore, could not be received as of corroborative value to the dying declaration.
20. It is the plea of the appellant that deceased had annoyance with his brothers and he due to the same out of frustration had taken some poisonous pills and the same has resulted into his death. It may be important to mention here that Nazir Ahmad complainant in the cross-examinations has admitted that his sister Mst. Aziz Bibi was married to Safdar, the son of the appellant but her Rukhsati had not taken place. He has also admitted that her marriage with Safdar was a Watta marriage. This perhaps was in exchange of marriage of Mst. Nusrat with the deceased. It was suggested to him that the deceased had pressed them to send Aziz Bibi to the house of the appellant and a quarrel had taken place between him and his brothers over the same. Although he has denied the same but this suggestion seems to be with some meaning in view of the fact that marriage of Mst. Aziz Bibi, the sister of the deceased had taken place with the brother of his wife in her Watta and her Rukhasti had not taken place and his wife or her other family members might be pressing him (deceased) to compel his family to send her to their house as he was living in their house. The deceased in such situation could ask his family to send his said sister to the house of the appellant and possibly some quarrel might have taken place between him and his brothers over the same. This is also possible that the deceased when had not succeeded in his that object, he then might be ashamed of the same and feeling small in the eyes of his in-laws. He then might have taken some poisonous pills or substance out of frustration. This is just a possibility or probability of a situation spelt out from the evidence on the record. The motive set up by the prosecution, thus has remained unproved on the record.
21. In the above circumstances, when the dying declaration has not been found to be reliable piece of evidence and the motive set up by the prosecution has not been proved, the circumstance of investigation alone could not be sufficient to take the same as of any support to the prosecution case. Even otherwise, the conduct of Hasnat Shah, SI in the matter of recording of statement of the deceased by himself and not in presence of the doctor or by any Magistrate heavily suggests that the same was not above board. He has also told lie that it was in doctor's presence while doctor has contradicted such position. Hence, the circumstance of the investigation in the instant case is not of any support to the prosecution case.
22. I, therefore, have found that the prosecution as per it's evidence on the record has failed to bring home the guilt to the appellant beyond any shadow of reasonable doubt. The learned trial Court, therefore, has erred in convicting and sentencing her. The case law Muhammad Arif & another v. The State & another (1999 P.Cr.L.J. 707 Peshawar) referred to by it rather is favourable to the appellants case not to the prosecution. The impugned judgment, therefore, to the extent of her conviction and sentence is open to serious exception. The same in no way is liable to be sustained.
23. I, therefore, accept her appeal and set aside the impugned judgment to the extent of her conviction and sentence and acquit her of the charge giving her the benefit of doubt. She is in custody. She be set at liberty forthwith, if not required in any other case.