1987 P Cr (PLP)

Appellant Mst. Zareena wife of Hameed Ahmed has preferred this appeal under section 410, Cr.P.C. against her conviction for an offence punishable under section 302, P.P.C. and sentence therefor of imprisonment for life and fine Rs.5,000 or rigorous imprisonment for six months in default awarded by learned IIIrd Additional Sessions Judge, Karachi by judgment, dated 18‑7‑1983 in Sessions Case No. 2002 of 1976. The appellant and her husband Hameed Ahmed were tried on the charge of an offence punishable under section 302 read with section 34, P.P.C. for causing death of Hameed Ahmed's another wife by name Mst. Mumtaz Bano by setting fire to her body in their house at Vilayatabad, Karachi City, on 20‑6‑1974, at about 2‑00 p.m. Prosecution case briefly stated is that the deceased and the appellant were living with their husband at House No. 7/21, Vilayatabad, Karachi. She did not have happy relations with her husband and the appellant. There was quarrel between them on the eventful day at noon time and it is alleged that the appellant poured up kerosine oil on the body of the deceased and set fire to her clothes at the instigation of their husband Hameed Ahmed. Clothes of the deceased were burnt and her body was scorched. The news of the incident was conveyed to her father Sardar Ahmed Khan at his shop in Vilayatabad by some children. He rushed to the house of the husband of the deceased and found her writhing with fire burn on her body downstairs the house. She narrated the incident to him. He took her to Civil Hospital, Karachi. The Civil Hospital Authorities informed the police at Vilayatabad Police Out‑Post, during the course of night. Police made entry in the station diary. Muhammad Sadiq S.I.P., Incharge Police Out‑Post Vilayatabad, visited the Civil Hospital during the day hours of 21‑6‑1974. He recorded statement of the victim lady after getting certificate from the Duty Medical Officer that she was in a position to make statement. He forwarded her statement to P.S. Kalakot where it was transcribed in 154, Cr.P.C. to constitute as First Information Report. The deceased succumbed to the injuries in the hospital during night hours of 21‑6‑1974. Muhammad Sadiq S.I.P. conducted investigation. He visited the Vardat and arrested the appellant and her husband. He observed burn injuries on a hand of the appellant and got her medically examined. The investigation conducted by Muhammad Sadiq S.I.P. was finally verified by S.H.O. Muhammad Suleman and he challaned the appellant and her husband. The appellant and her husband Hameed Ahmed were tried in the Court of Illrd Additional Sessions Judge, Karachi. Prosecution examined Sardar Alain Khan (P.W.1), Muhammad Sadiq (P.W. 2), Syed Nasir Hussain Mashir (P.W.3), Mr. Malik A. Jaffri (P.W.4), Dr. Muhammad iqbal (P.W.5), Dr. Hameed Qureshi (P.W.6), Muhammad Taj A.S.I.P. (P.W.7) and Muhammad Suleman S.H.O. (P.W.8). The appellant and the co‑accused Hameed Ahmed denied that they had set the fire to the deceased. Both stated that the deceased had caught fire while doing cooking and she was rescued by the appellant. The learned trial Judge held, by the impugned judgment, dated 18‑7‑1983, that the deceased Mst. Mumtaz Bano had died, due to fire burn injuries and she was set fire by the appellant but the complicity of their husband Hameed Ahmed in commission of the crime was not proved beyond reasonable doubt. Accordingly the appellant was convicted of the offence punishable under section 302, P.P.C. and was awarded the aforesaid sentence appealed against, while the co‑accused Hameed Ahmed was acquitted. The factum of death of the deceased due to fire burns was not disputed nor has it been disputed at the hearing of the appeal. The conviction of the appellant was based on the evidence of dying declaration by Mst. Mumtaz Bano, the deceased, injuries on the person of the appellant, and the medical evidence. The learned counsel for the appellant has contended that the alleged dying declaration by the deceased is not confidence inspiring and, at any rate, it is a very weak piece of evidence as held by the Superior Courts in several cases cited by him as P L D 1970 S C 132, 1981 P Cr. L J 67, P L D 1977 S C 612, P L D 1978 Kar. 792, P L D 1974 Kar. 91, 1976 P Cr. L J 106 and 1975 P Cr. L J

590. He has contended that the factum of injuries on the appellant has satisfactorily explained that she had sustained those minor injuries while rescuing the deceased who had caught fire while doing cooking. According to him, medical evidence proved the factum of the death of the deceased due to fire burns, and the injuries sustained by the appellant, the former fact is not disputed while the latter fact stands explained and it does not advance the prosecution case. The learned counsel for the State has supported the judgment of the trial Court and argued that dying declaration by the deceased involves the appellant that she had set fire to her. He has further argued that the fact that the appellant and her husband did not make report of the incident at the police station makes pointation of their guilty conscience and it is an adverse circumstance against their proclaimed innocence. He has also made reference to the medical evidence lending support to the dying declaration that the deceased was set on fire by the appellant who too had sustained injuries while doing so. Prosecution case mainly rests on the evidence of dying declaration by the deceased Mst. Mumtaz Bano. The incident took place on 20‑6‑1974. at about 2‑00 p.m. Its information, somehow or the other, reached her father Sardar Alam Khan soon thereafter. He found her writhing with the injuries downstairs the house of her husband where she and the appellant were living with him and she apprised him of the incident as under: (as stated by him in his evidence). "My daughter Mst. Mumtaz Bano told me that both the accused had demanded from her jewellery and money and on her refusal to give them the same both of them put her on fire." The deceased was taken to the Civil Hospital, Karachi and was admitted there and was provided treatment. Her statement was recorded there on the next day viz. 21‑6‑1974 at 10‑30 a.m. by Muhammad Sadiq S.I.P. The relevant part of the statement recorded by the S.I.P. reads as under:‑ "Yesterday, on 20‑6‑1974, at about 2‑00 p.m., 1, Mst. Zarina and my husband were in the house when there was quarrel between me and my husband as he always used to agree with the points of his second wife Mst. Zarina and used to misbehave with me. While we were quarrelling with each other Mst. Zarina said to me that she would not spare me that day as I used to incite her husband and she (Mst. Zarina) brought kerosine oil in a steel glass from the kitchen and threw it on my clothes and set me on fire. My clothes immediately got into flames. My entire body was scorched. I got down from my house after great difficulty then my father Sardar Alam Khan whose shop is nearby, brought me to the hospital where I am under treatment." Thus, there are two versions to the alleged occurrence in the alleged statements made by the deceased Mst. Mumtaz Bano to her father and Muhammad Sadiq S.I.P. It may be mentioned that the complainant Sardar Alam Khan has stated in his evidence that on hearing the news of the incident through some children he went running to the house of Hameed Ahmed (husband of deceased and the appellant) and he contacted Hameed Ahmed who told him that Mst. Mumtaz Bano (the deceased) and Mst. Zarina (the appellant) had left the house and gone somewhere and he then went in search of his daughter and saw that Mst. Zarina (the appellant) was dragging his daughter Mst. Mumtaz Bano on the road near round tank and Mst. Zarina then took to her heels. But the version given by Mst. Mumtaz Bano deceased in her statement before Muhammad Sadiq S.I.P. is that her husband and his second wife (i.e. Mst. Zarina) did not take her to the hospital and she got down from her house after a great difficulty when her father took her to hospital. These inconsistent versions shake the supposed dying declaration made by the deceased Mst. Mumtaz Bano and even otherwise dying declaration is a weak type of evidence as held in the cases relied upon by the learned counsel for the appellant, referred to above. The only corroborative evidence relied upon by the prosecution is that of the injuries sustained by the appellant. She was examined by Duty Medical Officer Dr. Hameeda Qureshi (P.E.7), whose evidence reveals that the appellant was examined on 22‑ 6‑1974 and only two injuries, one described as superficial burn on right forearm 1" x 1", and another being superficial burn mark on right middle finger 1/2" v A". The injuries on the appellant were so minor that they could have been sustained while saving the deceased as stated by her and the Medical Officer has also opined that such injuries could be sustained while extinguishing fire. The appellant's plea is that the deceased had caught fire while doing cooking and such incident was quite probable as the incident had taken place round about the lunch time. The implication of the appellant and her husband in the incident could be due to heart burning as it has been brought on the record that there was jealousy between the deceased and the appellant in sharing the courtesy, if not love, of the husband. There are other circumstances also which further weaken the sanctity of the evidence of dying declaration said to have been made by the deceased. They are that the incident took place at about 2‑00 p.m. on 20‑7‑1974, the deceased's father took her to civil hospital soon thereafter but he did not make report to the police till the police went there on the next day and recorded the statement of the deceased at about 1‑30 a.m. The deceased's father must have remained with her in the hospital. He must not have been happy with the appellant and her husband as the deceased was not receiving cordial treatment by them and it is probable that he had inspired the deceased to involve the appellant and her husband in the unfortunate incident. No reliance can be placed on such evidence of dying declaration which does not find corroboration from any quarter except that the incident had taken place in their house and the appellant had sustained two minor fire‑arm injuries which find plausible explanation. Evidently, the evidence adduced by the prosecution does not, at all, prove the charge against the appellant. The appeal is allowed and she is acquitted of the offence she has been convicted of and sentenced for. Her bail bonds stand discharged. The order was announced by short order recorded a little before and these are the reasons therefor. S.A./Z‑9/K Appeal allowed.