2009 SCMR 427 (PLP)

ZIA PERWEZ, J.

This criminal appeal is directed against the judgment dated 3-10-2003 of the learned Single Judge of the Lahore High Court, Rawalpindi Bench, whereby Criminal Appeal No.388 of 2001 preferred by respondents Nos.1 and 2 was allowed and they were acquitted.

2. Leave to appeal was granted by this Court on 5-8-2005 to examine as to whether learned High Court reversed the judgment, dated 13-1-2001 passed by learned trial Court whereby respondents were convicted/sentenced under section 308/34, P.P.C. without taking into consideration the incriminating evidence available on record, contrary to the principle laid down in the cases of Ghulam Sikandar and another v. Mamaraz Khan and another PLD 1985 SC 11 and Iftikhar Hussain and others v. The State 2004 SCMR 1185.

3. Deceased Shaheen Kosar lodged F.I.R. No.324, dated 6-8-1999 at Police Station Margallah, Islamabad under section 324/34, P.P.C. She alleged that respondent No.1 Muhammad Shahbaz Qamar husband of the deceased poured kerosene oil upon her and put her on fire with the help of his father Qammar-ud-Din and brother Iftikhar Ahmed (Iftikhar Qammar) co-accused. When she was on fire Muhammad Shahbaz Qammar accused made his father Qammar-ud-Din and Iftikhar ran away from there. Muhammad Shahbaz Qammar accused then took her to Capital Hospital, Islamabad, where she was hospitalized for one week. She was threatened by the accused not to give any statement against him, therefore, she could not make any statement due to fear. On 3-8-1999 at about 2-00 a.m. Muhammad Shahbaz Qammar accused and his father moved her to village Chiti Sheikhan, District Sialkot at the house of Riaz Qammer elder brother of Muhammad Shahbaz Qammar accused. In the meantime, on information that his daughter was missing her father Shams-ud-Din and brother Ghulam Muhammad made inquiries to trace her. They went to said village and after locating brought the deceased from there. She was shifted to District Headquarters Jhelum for medical treatment where she died subsequently. Her statement was recorded by Mushtaq Ahmed, S.-I./S.H.O. The statement of the deceased was sent to Police Station Margallah, Islamabad and was treated as a complaint.

4. The Additional Sessions Judge, Islamabad took cognizance in pursuance of the report under section 173, Cr.P.C. and framed charge under section 302/34, P.P.C. against Muhammad Shahbaz Qammar, Iftikhar Qaqmmar, Qammar-ud-Din and Mst. Alia Naheed wife of Shahbaz Qammar.

5. The prosecution examined Dr. Zulfiqar Hussain Shah D.H.O. (P.W.1), Muhammad Arshad L.H.C. (P.W.2), Dr. Ghulam Hussain, D.M.S., D.H.Q. Jhelum (P.W.3), Mushtaq Ahmed S.-I. (P.W.4), Shams Uddin (P.W.5), Ghulam Muhammad (P.W.6), Lady Dr. Sarwar Jan (P.W.7), Mushtaq Ahmed (P.W.8), Wahid Ahmed (P.W.9), Muhammad Akram, Draftsman (P.W.10), Muhammad Akram, A.S.-I. (P.W.11), Muhammad Afzal S.-I. (P.W.12), Akhtar Niqash, Draftsman (P.W.13), and Muhammad Ashraf S.-I. (P.W.14.). Dr. Kaleem Tariq was given up as having been won-over by the accused while Naeem Akmal, Mst. Mumtaz Begum and Nasir Uddin P.Ws. were given up as unnecessary. Dr. Kaleem Tariq was examined as Court-witness on the application of the accused. On conclusion of trial, the learned trial Court, found Muhammad Shahbaz Qammar and his father Qammar-ud-Din guilty under section 308/34, P.P.C. for Qatl-e-Amd of Mst. Shaheen Kosar and sentenced both of them to pay Rs.3,00,000 each as Diyat in default be kept in jail till the realization of Diyat amount. They were also sentenced to undergo R.I. for 10 years each. The benefit of section 382-B, Cr.P.C. was also extended to them by the learned trial Court. The co-accused Iftikhar Qammar and Aalia Naheed were acquitted by giving benefit of doubt. The respondents/co-accused being aggrieved of the judgment of learned trial Court filed Criminal Appeal No.388 of 2001 before the learned High Court which was allowed and they were acquitted from the charge. Hence this appeal.

6. We have heard the learned counsel for the parties and have perused the record.

7. The case of the prosecution is duly supported by the dying declaration of Mst. Shaheen Kosar in which she narrated the entire story about the incident. The fact of burning is duly supported by medical evidence which is furnished by Dr. Sarwar Jan (P.W.7). The deceased was kept in Capital Hospital Islamabad from 28-7-1999 to 3-8-1999. There is specific motive in the instant case as the husband of the deceased lady, the said respondent Muhammad Shahbaz Qamar had contracted second marriage as a consequence whereof she was not enjoying cordial relations with him. He took her deceitfully to his house and poured kerosene oil upon her and set her on fire due to which she died later on. In our opinion, the motive coupled with circumstantial evidence has been established. In the case of Ghulam Sikandar (supra) held that this Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion.

8. In the case of Iftikhar Hussain (supra) this Court has held as follows:-- "It is well-settled principle of criminal administration of justice that when an accused is acquitted of the charge, he enjoys double presumption of innocence in his favour and Courts seized with acquittal appeal under section 417, Cr.P.C. are obliged to be very careful in dislodging such presumption. Undoubtedly, two views are always possible while appreciating the evidence available on record, therefore, for such reason and in order to avoid the multiplicity of litigation, it is always insisted that the Court should follow the recognized principles for interference in the acquittal judgment as held in the case of Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 that the Appellate Court seized with the acquittal appeal under section 417, Cr.P.C. is competent to interfere in the order challenged before it provided it has been established that the trial Court has disregarded material evidence or misread such evidence or received such evidence illegally. We have noted with concern that learned High Court in the impugned judgment has not applied these principles in the case in hand for the purpose of making interference in acquittal order dated 25-7-1981 passed by learned trial Court."

9. To arrive at a judicious decision, it is necessary to consider and appreciate the evidence in its true perspective. The evidence available on record cannot be ignored and disregarded. The deceased suffered severe burns on her body including arms having suffered severe burns, the question of holding a pen will not arise, therefore, her inability to sign the statement cannot be made a ground for acquittal. The consequential effect cannot be ignored so as to set aside the judgment based evidence on mere hypothetical assumptions as to her putting thumb-mark on the complaint and failure to inscribe her signatures. Indeed the accused are entitled to benefit of doubt but such doubt has to be reasonable and rational and not hypothetical and whisperical in utter disregard to the facts of the case, positive evidence available on record and the principles as laid down in the cases of Ghulam Sikandar and Iftikhar Hussain (supra), which resulted in serious miscarriage of criminal justice. Accordingly, we set aside the impugned judgment and restore the judgment of the learned trial Court.

10. For the foregoing reasons, this criminal appeal is allowed. M.H./S-4/SC Appeal allowed.