1989 PLP 798 (MLD)

During cross‑examination he stated that Jamshed Khan, brother of Alam Khan, and his wife named Mst. Rubina (appellant) used to live in the same house (place of occurrence). He stated that he had not gone to the police station but had gone to the hospital. He admitted that he had moved the High Court and the Supreme Court against grant of bail to the accused but had failed. He denied the suggestion that his stance before the High Court and the Supreme Court was that the dying declaration was not correctly recorded. He admitted that he had got the investigation transferred to a D.S.P. Dr. Naveed Bari who had appeared as P.W.10, stated that he had counter‑signed the statement made by Mst. Nasreen to the S.H.O. He stated that initially he had objected to the signing of statement as the same had not been recorded in his presence but when Mst. Nasreen admitted to have made the statement on the same being read over to her, he signed that. During cross‑examination he stated that it had come to his notice that Mst. Nasreen on her admission to the hospital had stated that she was burnt accidentally. He added that mother of the deceased was present there and some of her relatives had told him that the deceased wanted to change her previous statement. Kh. Khalid Hassan, Councillor who appeared as P.W.12, stated that he had visited the place of occurrence on coming to know of the occurrence, and from there had gone to the hospital to see Mst. Nasreen, where she had told him that it was an accidental occurrence. He added that her mother and sister were pressing her to excuse the accused persons (appellants). He was declared hostile and cross‑examined by the State. While answering questions to the State counsel he stated that Exh.P.B./1 was recorded in his presence and he had signed the same. He added that he had told the police that Mst. Nasreen had made a different statement before him prior to that. On cross‑examination by the defence counsel, he stated that Mst. Nasreen had made statement Exh.P.B./1 as a result of pressure from her mother and sister. Haq Nawaz Baloch who had recorded statement Exh.P.B./1 of the deceased and had investigated the case appeared as P.W.13. He stated during cross‑examination that the occurrence was stated to have taken place at 2/3 p.m. In answer to another question he stated that he had not received any information about this case before 10‑40 p.m. He added that Akbar Ali, A.S.I. had gone to the hospital after receiving information but he had not sent him there. He expressed inability to say whether Akbar Ali had initiated any proceedings in the hospital before his arrival. He stated that he never came to know that Mst. Nasreen was a matriculate. In answer to another question he stated that the relatives of Mst. Nasreen had been meeting her in the hospital before his arrival there. He admitted that he had made no efforts to have the statement of the deceased recorded by a Magistrate. Akbar Ali S.I. P.W.14 stated of having witnessed the taking into possession of parts of the oil stove from the place of occurrence, by the S.H.O. Dr. Zia Ullah who had admitted the deceased in the Casualty Ward, appeared as P.W.15. He stated during cross‑examination that Mst. Nasreen was brought to the hospital at 11‑15 a.m. and he had informed the police immediately about her injuries. During cross‑examination he stated that in the relevant column of Exh.P.K. (medico‑legal certificate of Mst. Nasreen) it was noted that it was a case of accidental fire. He also stated that there was a note on the report that Moharrir Ijaz Ahmad of Police Station Akbari Gate had received the information.

4. Mst. Ghazala, Mst. Akhtar Begum and Mst. Rubina during their statements under section 342, Cr.P.C. denied the prosecution case as a whole and pleaded innocence.

5. Ch. Abdul Aziz, S.I. who was serving as Reader to Abdul Qadir Bhatti S.P. during the days of occurrence, was examined as C.W.1. He stated that he had recorded the statements of Muhammad Hanif and Haji Shamsuddin on the direction of the S.P. During cross‑examination by the State counsel he stated that the statements were recorded in the presence of the S.P. He was cross‑examined by the defence counsel as well. The counsel put him questions about details of the statements made by Haji Shamsuddin and Muhammad Hanif and he answered the same. I am not noting the same as that cannot be taken into account for being inadmissible. Statements made by the witnesses before the Police Officer can only be used for contradiction purposes, if the said witnesses appear at the trial. The details of statements made by them cannot be evidence if they do not appear at trial. This was a novel method adopted by the counsel and allowed by the Presiding Officer.

6. Muhammad Alam Khan husband of the deceased was examined as D.W.1. He stated that on the demise of his parents he was brought up by Ashraf Khan and that his cousin Jamshed Khan had also been brought up by Ashraf Khan. He stated that Jamshed Khan used to five with him alongwith his wife Mst. Rubina (appellant). He also stated that he had married Mst. Nasreen with the good offices of Ashraf Khan. He admitted that his family members did not like the parents of Mst. Nasreen. He stated that at the time of occurrence his wife was cooking in the kitchen while he alongwith Mst. Rubina and Ashraf Khan, was present on the upper floor. He stated that he heard the hue and cry raised‑by his wife and ran to the kitchen where she had caught fire from the oil stove. He stated that he extinguished the fire and took her to the hospital. During cross‑examination he denied that his wife had been burnt by the appellants. He stated that Mst. Ghazala appellant was married a year ago. He stated that he had not reported the matter to the police as he was busy in looking after his wife.

7. Learned trial Judge vide judgment, dated 25‑6‑1988 convicted the appellants under section 302/34, P.P.C. and sentenced them to imprisonment for life plus to pay a fine of Rs.5,000 each, in default whereof to suffer further R.I. for one year each. They have also been directed to pay a sum of Rs.10,000 each as compensation to the heirs of the deceased, in default whereof to suffer six months' imprisonment. The convicts have filed appeal.

8. It is quite apparent from the enumeration of prosecution evidence in the earlier part of this judgment that there is no ocular account in this case; that the appellants had not made judicial or extra‑judicial confession; that nothing was recovered from them. The whole case rests on statement Exh.P.B./1 made by the deceased to Haq Nawaz Baloch, Inspector/S.H.O. P.W.15.

9. Learned counsel for the appellants while criticising the impugned judgment contended that the superior Courts have generally upheld the view that conviction on the basis of dying declaration solely is not a safe administration of justice, in offences of capital punishment. In this regard, learned counsel cited Zarif Khan v. The State P L D 1977 SC 612 and Muhammad Anwar v. The State P L D 1984 Lah.

132. Learned counsel elaborated that the dying declaration in this case even otherwise does not inspire confidence as neither it appears to have been made voluntarily nor it has been recorded keeping in view the safeguards provided for noting down such statements. Learned counsel submitted that sustaining the conviction on an uncorroborated testimony of a lady who made statement while being under the influence of her relatives, would be highly unsafe.

10. Learned counsel for the State/complainant defended the judgment of the trial Court.

11. The deceased was admitted to the hospital at 11‑15 a.m. The statement, therefore, made by her that the occurrence had taken place at 2/3 p.m. was incorrect. This error finds explanation from the fact that the figures `2/3' written p in Exh.P.B./1 seem to have been tampered with. Although on close examination the tampering does not show that the change was made from `11‑15' to `2/3', yet I am not of the view that the statement can be merely thrown away on that account. However, there are other aspects which require close scrutiny. 11‑A. The occurrence, admittedly, had taken place before eleven as the evidence of admission of the deceased to the hospital m injured condition at 11‑15 a.m. bears out. Muhammad Hanif brother‑in‑law of the deceased had received information of the occurrence at about 12/1 noon. Shamsuddin father of the deceased had received information between 1 and 1‑1/2 p.m. Both of them had reached the hospital. The mother and sister of the deceased had also gone there. Other relatives had also reached there. Even if it be ruled out that the deceased had informed the Casualty Medical Officer that she was burnt as a result of accidental fire, it has to be kept in mind that she would have given out the story of having been burnt by the three appellants, to her father, mother, sister or brother‑in‑law immediately on their arrival. It is not the case of the prosecution that she was unconscious during that period. If she had made such disclosure to anyone of them, they would have definitely not waited till the arrival of the S.H.O. after 10 p.m. in the hospital. The police station was not far away. Someone of them could have definitely gone to report the matter. It is not the case where only one person was available to look after the injured lady. In fact, the nature of her illness was such that the ladies could have looked after her better than the male persons (a burnt lady would not be able to wear the clothes properly). If in spite of that the father and brother‑in‑law of the deceased failed to report the matter to the police till after 10 p.m., the doubts arising therefrom would lead one to draw inference that none of these fellows had been told by the deceased of having been intentionally burnt. The other aspect is that according to the Casualty Medical Officer the police had also been informed by him immediately on admission of the deceased to the hospital in injured condition. That had happened before 12 noon. The Police Officers by themselves also did not take any steps in this regard till Haq Nawaz Baloch, S.H.O. paid visit to the deceased in the hospital. The fact of no steps having been taken both by the police and relatives for initiating action of registering the case for so many hours, only leads to draw an inference that none of them knew as to what actually had happened or that at least they had not the information that, the lady had been burnt intentionally.

12. The manner in which the statement of the lady was recorded by the S.H.O. also is not beyond doubts. She was admitted to Mayo Hospital in a war4i where everybody knows that doctors on duty are always available. But in spite of that the S.H.O. recorded the statement of the lady in the absence of the doctor. No doubt Dr. Naveed Bari has claimed that he had signed the statement after the same had been admitted to be correct by the: deceased on being read over to her but that is no proof of the fact that she had; made that statement voluntarily. All that, it proves, is that she admitted that the, contents read over to her were recorded in her name. It is in evidence that prior to the recording of her statement her mother and sisters had been with her. It had also been suggested that they had been pressurising her to make statement against the relatives of her husband. In fact the Councillor who has signed the statement, while appearing as a D.W. himself expressed doubts about the statement being voluntary. Yet another important aspect is that the statement (Exh.P.B.1) bear thumb‑impression. It is in evidence per statement of Shamsuddin father of the deceased that his deceased daughter was a matriculate. She obviously knew how to sign. No explanation has been given as to why‑ thumb‑impression was obtained E instead of getting her signatures. It is not the case of anyone that she was unable to hold the pen. The only thing one can guess about it, is that either she was not willing to sign that statement or that she was unconscious and so her thumb impression was put on the statement for which neither consciousness nor consent was required.

13. The deceased had remained' alive for some days even after making statement Exh.P.B./1. If the father of the deceased or for that matter the Investigating Officer was so sure of the allegation levelled by the deceased, they F could have taken some steps to get her statement recorded from a Magistrate. This particularly, should have been done when the S.I. himself thought that the deceased was not likely to survive (this he had voluntarily stated during the cross examination). In the circumstances, maintenance of conviction of the appellants on such a piece of evidence does not appear to be safe. It is worth noticing that learned trial Judge before coming to the conclusion of holding the appellants guilty under section 302/34, P.P.C. had observed as follows in para. 22 of the l impugned judgment: " . On account of these discussions this Curt after a very close and critical appreciation of the dying declaration alongwith the circumstantial evidence available is of the view that it was the present accused persons who had sprinkled the oil through the burning oil stove on the deceased as a result of which she was fatally burnt. All the three accused persons had intentionally taken part in this occurrence with the common intention of taking the life of the deceased. The presumption of law is that a man intends the natural and inevitable consequences of his own act." But prior to that he had made observations which showed that he was not believing the version of the occurrence given by the deceased in her statement. In that he had observed as follows in para. 19 of the judgment. "... If at all it is presumed that the oil stove had bursted then at the most it would have been the front portion of her body and that too from chest downward that could have been burnt and in that case her back would have been comparatively safe except the superficial burns on account of the burning of the clothes covering the back side. This is not the case in the present situation. The post‑mortem report shows that from head to knees the deceased was burnt on all the sides of her body. This could only be possible if the kerosene oil was sprinkled on the head of the deceased where after it had travelled downwards. It cannot be the result of any accident even if maximum benefit is extended to the accused persons. The type of burns received by the deceased could only be possible if a determined effort was made to set her on fire. The fact that the oil stove is in working condition rules out the possibility of an accident. Hence, the recovery of the oil stove not only negates the defence version taken up in this case but it also provides a material circumstantial and corroborative evidence to the dying declaration of the deceased." The story propounded by him that someone had poured kerosene oil on the deceased as a result of which her whole body was burnt, was never told by the deceased at any stage. He must have come to this conclusion on the basis of surmises and conjectures. Surmises and conjectures, howsoever well‑intentioned, they, may be, can never be accepted as sound basis for convicting the people on capital charges. For all the reasons noted above, I am of the view that it would be unsafe to maintain the convictions and sentences of the appellants on the basis of sole testimony of dying declaration recorded in this case. This appeal is, therefore, allowed and the appellants are acquitted by way of grant of benefit of doubt. SA./A‑569/LAppeal accepted.