P L D 2009 Quetta 33 (PLP)

AHMED KHAN LASHARI, J.

This Criminal Jail appeal has been forwarded by Superintendent, Central Jail, Gaddani on behalf of appellant Abdul Khaliq, seeking his acquittal in Murder Case, No.7 of 2003, whereby; learned Additional Sessions Judge, Panjgur vide judgment dated 18-11-2003 convicted and sentenced him under section 302(b), P.P.C. to suffer life imprisonment as Ta'zir and fine of Rs.2,50,000 in default whereof to further undergo three years imprisonment, with benefit of section 382-B, Cr.P.C. while the co-accused persons Abdul Rehman and Khaliq-ur-Rehman were acquitted of the charge.

2. The stated facts of the prosecution case are that P.W. Haji Nasir Ali on 13-5-2003 lodged report at police station, Panjgur against the appellant and acquitted accused persons for committing the murder of her daughter Mst. Naheeda Bibi, the wife of appellant. P.W.8 S.H.O. Muhammad Gul, after registration of the crime, proceed with the investigation. He reached at Civil Hospital, Paniugur and, after preparation of the inquest report, released the dead body to the legal heirs. Thereafter, he came to the place of occurrence and, after inspection of the venue, prepared the site sketch. The clothes of deceased were taken into possession vide recovery memo. and sent to Forensic Science Laboratory, Karachi for report. The acquitted accused person including the appellant were arrested and the statements of the witnesses were recorded. On completion of the investigation, challan was filed in the Court and the appellant as well as co-accused persons were sent up to face the trial.

3. On the stated allegation, charge was framed and read over to the appellant, to which he did not plead guilty and claimed trial. The prosecution, in order to prove the accusation, produced P.W.1 complainant Haji Nasir Ali, the father of deceased Mst. Naheeda Bibi, P.W.2 Zakir Hussain, took the deceased lady to hospital for treatment, P.W.3 Abbas Khan and P.W.4 Abdul Ghani, Head Constables, are witnesses to the recovery of clothes of deceased, P.W.5 Abdullah, informed" the father of deceased about the incident and shifted the dead body to Civil Hospital, P.W.6 Parveen Akhtar, LHV, on examination of the lady, advised for shifting her to Civil Hospital, Quetta for better treatment, P.W.7 Dr. Sadiq Baloch, Medical Officer, examined the dead body and issued certificate and P.W.8 Muhammad Gul, S.H.O. is the Investigating Officer. The appellant in his examination under section 342, Cr.P.C. denied the prosecution allegation and in his statement on oath under section 340(2), Cr.P.C. deposed that on the day of incident, he was present in his house, his wife asked him to go and bring colour and prints for her clothes. On his refusal, she went out to smoke hookah, in the meanwhile she cried, as soon he came out and saw she had caught fire, he immediately put the beddings on her to extinguish the fire. He is innocent and has not committed any offence. Since he was suffering from kidney problem, therefore, he remained in the house and his mother and sister-in-law took his injured wife to hospital. In defence, he produced his son Abdul Shakoor, aged about 9 years, who supported the plea of appellant. The Additional Sessions Judge, Panjgur, after close of parties evidence, vide impugned judgment convicted and sentenced the appellant and acquitted the co-accused persons, as mentioned hereinabove, hence this appeal.

4. Haji Liaquat, learned counsel for pauper appellant, contended that there is no direct evidence, indicating the appellant set on fire his wife or beaten him, on account of which she died, rather his wife, after sprinkling kerosene oil, set her on fire, due to which, she died. The learned trial Court, on mis-appreciation and wrong conclusion of evidence, illegally convicted the appellant.

5. Raja Rab Nawaz, Advocate, representing the complainant, argued that the prosecution has successfully proved its case against the appellant beyond any reasonable doubt. The evidence produced by the prosecution is trustworthy and confidence inspiring; therefore, the trial Court, after having gone through the record, rightly convicted the appellant.

6. Mr. Muhammad Umer Dogar, Advocate, appearing on behalf of, State, supported the arguments of complainant's counsel as well as impugned judgment and contended that the counsel for pauper appellant has failed to point out any misreading or non-reading of evidence, thus, appeal may be dismissed and the conviction and sentence awarded to the appellant may be maintained.

7. We have considered the arguments of learned parties' counsel and have gone through the record including the impugned judgment. It is the case of prosecution that the appellant, after beating her wife Mst. Naheeda, set her on fire, due to which she expired. Before dealing with the contentions of parties' counsel, it would be appropriate to reproduce the portion of evidence produced before the trial Court. P.W.1 Haji Nasir Ali is the father of deceased lady. He, on receiving information of incident at his shop, came to the house of appellant (the son-in-law of complainant) and found her daughter dead, while appellant and acquitted accused persons were present there. He shifted the dead body to hospital, where he came to know that she was physically tortured and burnt to death. He disclosed that the deceased lady had four children and the appellant, who was drug-addict person, used to beat her daughter. He noted injuries on right side of forehead, abdomen and other parts of her body and there was bite mark near to the eye. He lodged report vide case crime No.48 of 2003, offence under section 302, P.P.C. with S.H.O. at police station, Panjgur against the appellant and acquitted co-accused persons. P.W.2 Zakir Hussain deposed that the son of appellant, namely, Abdul Shakoor came and informed him that her mother is ill and not feeling well. He took the deceased lady to doctor in his vehicle. The appellant gave him Rs.200 for the medicine for his wife. He, after getting treatment and purchasing the medicine, took her back to the house. On the next morning, he came to know that the lady had expired. He disclosed that one day prior to the death of lady, the appellant and his wife had quarrelled. P.W.3 Abbas Khan, HC, deposed that on 13-5-2003, the S.H.O. on receiving information about a dead body lying in the hospital reached there, where they came to know that one Abdul Khaliq burnt to death his wife. They came to the place of incident, seized the clothes of deceased vide memo. P.W.4 Abdul Ghani, HC, deposed that on 17-5-2003, complainant produced the clothes of deceased to the S.H.O, which was taken into possession vide memo. and he stood mushir to it. P.W.5 Abdullah deposed that he informed about the death of deceased to her father by telephone. He along with complainant shifted the dead body to hospital and found certain injuries on her person. The S.H.O. in his presence prepared the injury memo. and he stood mushir to it. P.W.6 Parveen Akhtar, LHV, deposed that on 12-5-2003 at Mughrab prayer time, two women brought the injured lady Naheeda Bibi to the clinic in a burnt condition. She advised them to take the injured to a hospital at Quetta for better treatment. P.W.7 Dr. Sadiq Baloch, on examination of the dead body, noted the following injuries and issued certificate Exh.P/7-A: (i) Teeth mark right cheek. (ii) Multiple imprints on back side. (iii). Abrasion left side head. (iv) Abrasion on the chest. (v) Bruises left on shoulder joint. (vi) Burnt whole abdomen right side of thorax. (vii) Burnt lower lips. P.W.8 Muhammad Gul, S.H.O. is the Investigating Officer. He, on receiving written report of the complainant, registered the crime and proceeded with the investigation.

8. There is no direct evidence, indicating that the appellant, after sprinkling kerosene oil or in any other manner, set his wife on fire. P.W. Haji Nasir Ali, the father-in-law of appellant, only deposed that the appellant is a drug-addict person and used to beat his wife. On the day of incident, he was not present on the spot and, subsequently, he, on receiving information about the incident, came to the house of accused and saw his daughter dead. P.W.2 Zakir Hussain deposed to the extent that one day prior to the incident, the appellant and his wife had quarrelled with each other, while P.W.3 Abbas Khan, HC, when along with S.H.O. reached hospital, came to know that the appellant had burnt to death his wife. P.W.6 Parveen Akhtar, LHV, deposed that the deceased was brought to the clinic in a serious burnt condition, therefore, she advised the accompanying ladies to shift the injured to a hospital. The appellant in his statement deposed that, on the day of incident at about 12-30 noon, he was present in the house. When he refused to bring colour and prints for the clothes of his wife, he went out for smoking hookah. In the meanwhile, he heard cries of his wife, at which he came out and saw that she had caught fire. He put the beddings on her and extinguished the fire. D.W.1 Abdul Shakoor, the son of deceased, deposed that at the time of incident; he was also present in the home and saw her mother, after sprinkling kerosene oil on her clothes, set herself on fire. His father extinguished the fire with the blanket, thus, the allegation of burning the lady by appellant has not been proved by tangible evidence. P.W. stated that the appellant used to beat her daughter and he noted injuries on forehead, bite mark closed to the eye end there were also marks of sticks on her back. The medical report and. the statement of P.W.7 Dr. Sadiq Baloch indicate that the cause of death was excessive loss of fluid due to burn, however, there were bite marks on cheek and multiple imprints on backside, abrasion on left side head, chest, bruises on left side shoulder joint, for which the appellant failed to explain as to how these injuries were caused to the lady, nor he has denied the injuries were not existing on the person of deceased noted by the doctor and the complainant, nor any suggestion was put to the witnesses that the injuries were not caused to the deceased by the appellant, who happened to be the husband of deceased. The overall circumstances indicate that the appellant has not committed the Qatl-i-Amd of his wife with the intention of causing bodily injury to her, which in the ordinary course of nature is likely to cause the death, or with the knowledge that his act is so imminently dangerous that it must in all probability cause death of the deceased as defined under section 300, P.P.C. There is no such evidence that the injuries sustained by the deceased were actually the result of her death, thus, the charge against the appellant under section 302(b), P.P.C. has not been proved and the evidence, which has come on record is that the appellant beaten the deceased lady, due to which she lost her temper and, after sprinkling kerosene oil, set herself on fire. No doubt, in criminal cases, the prosecution is duty bound to prove the case against the accused, however, in case, specific defence is put forward, the accused has to prove that his plea is reasonable, true and possibility cannot be ruled out that he was compelled ' to act due to the circumstances. Though no such direct evidence has come on record, for which the prosecution was bound, but still the Court, for just conclusion and fair decision of the case, is entitled to presume the existence of any fact, which it thinks likely to have happened.

9. Such like cases of burning of married women are very common in our and the neighbouring countries. It is difficult for the prosecution to collect evidence against the accused husband or his relatives, where the victim resides, so there is a need of amendment in the law for punishment of a husband or his relative or any person related to the victim, who torture and harass the woman with a view to coerce or pressurize her for unlawful gains and demands, compelling her to commit- suicide. By shifting the burden of proof from prosecution to that of the accused providing that a woman committed suicide and her husband and such relatives of her husband subjected her to cruelty, the Court may presume that her husband or such relatives of her husband have abetted such suicide and it is for the husband and such relatives to prove their innocence. Then Indian Penal Code has been amended and section 498-A IPC has been introduced, wherein the husband or relatives of husband of a woman subjected her to cruelty shall be punished with imprisonment and shall also be liable to fine in such like cases and, accordingly, section 113-A of the Evidence Act, 1892 has also been amended by shifting the burden of proof from prosecution to that of accused. It may be noted that in view of above amendment in the Indian Penal Code, new section 198-A has been added in Criminal Procedure Code, 1973, empowering the Court to take cognizance of the offence under section 498-A, L.P.C. upon police report or upon a complaint made by the person aggrieved of the offence or by her parents, brother, sister etc, while section 113-A of the Evidence Act shifts the burden of proof from prosecution to that of accused, according to which, if it is shown that a woman committed a suicide and her husband or the relatives of her husband subjected her to cruelty, the Court may presume that her husband or such relatives of her husband are (have) abetted such suicide and it is for the husband to prove that he has not committed the offence. The copy of this judgment be sent to the Federal Secretary, Ministry of Parliamentary Affairs (Justice and Law Division), Islamabad, Chief Secretary and Secretary, Home & Tribal Affairs Department, Government of Balochistan for taking steps at the appropriate forum for legislation in order to provide fair justice to the unfortunate victims of the burning eases. What has been discussed hereinabove, we are of the view that the prosecution has failed to prove the charge against the appellant under section 302(b), P.P.C. and the evidence available on record certainly lead us to, the conclusion that a case under section 337-A(i), P.P.C. is made out against the appellant for causing injuries to the deceased as mentioned in the medical report, thus, the charge under section 302(b), P.P.C. is altered to that of section 337-A(i), P.P.C. and the appellant is convicted under section 337-A.(i), P.P.C. and sentenced to suffer two (2) years' RI as ta'zir with Daman of Rs.50,

000. The appellant may not be released till realization of the Daman amount. With the above modification in the quantum of sentence as well as alteration in the charge, the appeal, being devoid of any merit, is dismissed. H.B.T./5/Q Order accordingly.