1988 P Cr (PLP)

MUHAMMAD MUNIR KHAN, J.--This Criminal Appeal No. 66/86, connected Murder Reference No. 22/86 and Criminal Revision No. 46/87 filed by Mst. Rani complainant for enhancement of sentence arise from the judgment of learned Additional Sessions Judge, Lahore whereby he on 1-2-1986 convicted Muhammad Din (50), Mst. Parveen Akhtar (22) and Mst. Mukhtari (15) appellants under section 302/34, P.P.C. for the murder of Mst. Maqsoodan (24/25) and sentenced them as under:- Muhammad Din. to death and a fine of Rs.5,000 in default thereof 2 years' R. I. Mst. Mukhtari and Mst. Parveen. Both to imprisonment for life and a fine of Rs.5,000 each, in default thereof 2 years' R.I. each. It was directed that the fine if recovered be paid to Muhammad Din, father of the deceased.

2. The occurrence took place on 13-2-1985 at about 1/2 p. m. in the house of Mst. Maqsoodan deceased situate in Gurokay Asal at a distance of 11 k.m. from P.S. Barki. The F.I.R. is statement Ex.P.C. of Mst. Rani P.W.5, the mother of the deceased, which was recorded by Muhammad Rafiq S.I., P.W. 13 in General Hospital, Lahore. The distance between place of occurrence and the General Hospital, Lahore is 15 k.m. Formal F.I.R. Ex.P.C./1 was drawn up 10-30 p.m. on the same day by Naseem-ul-Hassan, Inspector, P.W.11. the case was registered under section 307, P.P. C. Mst. Maqsoodan died on 24-2-1985 and section 307, P. P. C . was converted into section 302, P. P. C .

3. The house of Mst. Mukhtari and Mst. Parveen Akhtar appellants adjoins the house of the deceased. There is a common wall between the two houses. According to the F.I.R. at about 10/11 a.m. on the day of occurrence Mst. Mukhtari and Mst. Parveen came in the house of the deceased and asked her to assist them in mud plastering the common wall. The deceased expressed her inability on account of illness. While narrating the immediate cause of attack on her, Mst. Maqsoodan in her dying declaration Ex.P.N. stated that some time before the occurrence she went on the roof of her Kotha. She saw Mst. Mukhtari and Muhammad Din appellants embracing and kissing each other in the courtyard of the house of Mst. Mukhtari. On this she reprimanded them and declared that she would tell about it to everyone, hence this occurrence.

4. As for the main occurrence, it has been stated that at the eventful time, Mst. Maqsoodan was sleeping on a cot in the courtyard of her house and her sister Mst. Razia P.W. 9 aged 8/9 years was playing nearby when the three appellants came there. Muhammad Din was carrying tin containing kerosene oil which he sprinkled on Mst. Maqsoodan. Mst. Mukhtari appellant lit the match stick and set Mst. Maqsoodan on fire. Mst. Parveen appellant remained present during the occurrence. The appellants while coming out of the house after the occurrence were seen by Mst. Rani PW. 5 and Muhammad P.W.

6. On entering into the house they found Mst. Maqsoodan burning and trying to extinguish the fire by throwing water on herself. She as well as Mst. Razia P.W. 9 told them that the three appellants had set her on fire. The alarm raised by the PWs had attracted Khadim Masih PW. 4 and Haroon Masih P.W. 6 to the spot. Mst. Maqsoodan was then removed to the Hospital where she succumbed to the injuries on 24-2-1985.

5. Muhammad Rafiq S . I . P . W. 13 inspected the spot on 14-2-1985. He took into possession the ashes of strings of cot, Parali and dung cakes. He also took into possession the burnt clothes of Mst. Maqsoodan and a tin of kerosene oil vide memoranda Exhs.PD, PE and PF. On 19-2-1985, he arrested the appellants. Nothing incriminating was recovered from them.

6. On 13-2-1985 Dr. Muhammad Ashraf P.W.8 examined Mst. Maqsoodan. He found:- "Extensive burns of face, whole of anterior surface of trunk (including anterior surface of chest and abdomen, both upper and lower parts) and both the upper limbs including both hands. Both ears have also been burnt. All the burns are extensive. " The injury was caused by fire and was dangerous to life.

7. On 26-2-1985, Dr. Syed Shoaib Shah P.W. 12 conducted post-mortem examination on the dead body of Mst. Maqsoodan. He found:- "the estimated burnt area was about 45%. The distribution was face and neck were completely burnt: Front of chest abdominal wall, peritoneum and front of both thighs were burnt. Front and back of right and left arms were partially burnt. The wounds were foul smelling. The margins were showing vital reaction. The burnt area was covered with greenish white pus with sloughing of skin." In his opinion, the cause of death was ante-mortem flame burns leading to septicaemia. The time between injury and death was within 12 days and between death and post-mortem was within 3 days.

8. To prove its case, prosecution produced 13 witnesses. Mst. Razia P.W.9 has given the ocular account of the occurrence. She claims to have seen the appellants coming to the place of occurrence, Muhammad Din sprinkling oil on Mst. Maqsoodan and Mst. Mukhtari setting the deceased on fire. She stated that Mst. Parveen appellant remained present with co-accused at the time of occurrence. Mst. Rani P.W.5 and Muhammad Din P.W.6 are the witnesses of Wajtakar as well as resgestae. They stated that they had seen the three appellants coming out of their house and when they went into the house, they found Mst. Maqsoodan was burning and that the deceased and Mst. Razia P.W. had narrated the occurrence to them. They have also deposed about the motive mentioned in the F.I.R. They stated that on the day of occurrence at 8/9 a.m., the appellants had asked the deceased to apply mud plaster to the common wall of the houses whereupon the deceased told them that she being not well would not apply mud plaster. Khadim Masih P.W. 4 has not supported the prosecution version of the occurrence. He stated that he was present in his house when he saw Mst. Maqsooda was burning. He went there and threw water on her in order to extinguish the fire but Mst. Maqsoodan told him that since she was not being married with the person of her choice, therefore, she had committed suicide, so she should not be saved. The witness was declared hostile and cross-examined by the prosecutor and the defence counsel. Muhammad Rafiq, S.I. P.W. 13 investigated the case and recorded statement Ex.P.N. of Mst. Maqsoodan on 14-2-1985 in the hospital after obtaining certificate Ex.P.J. /2 from the doctor to the effect that Mst. Maqsoodan was fit to make statement. He also took into possession the burnt clothes of the deceased, burnt strings of the cot on which Mst. Maqsoodan was sleeping at the time of occurrence and tin of kerosene oil left on the spot by Muhammad Din appellant. Dr. Muhammad Ashraf P. W. 8 has proved the medico-legal report of Mst. Maqsoodan and Dr. Syed Shoaib Shah P.W . 12 has proved the post-mortem examination report of the deceased. The rest of the evidence is more or less of formal nature.

9. When examined under section 342, Cr.P.C., the appellants denied all the incriminating circumstances. They raised the plea of false implication. In reply to question No. 8, i.e. 'Do you want to say anything else?", Muhammad Din appellant stated:

"I am innocent. Mst. Maqsoodan wanted to contract marriage with a man of her own choice but the complainant Mst. Rani wanted to marry her somewhere else and on the morning of the occurrence both of them exchanged hot words and Mst. Rani while leaving the house asked her to die by jumping in some well or setting her on fire and that she would not acceed to her demand and thereafter Mst. Maqsoodan brought kerosene oil from a nearby shop and while entering into the Khola of her house put herself on fire by sprinkling kerosene oil on herself and set herself to fire which was extinguished by Khadim Masih and Haroon Masih alongwith other co-villagers and Mst. Rani was called from the fields and who subsequently joined hands with Muhammad Rafiq S.I. fabricated this case against us due to enmity." In reply to question No. 6, 'Why this case against you?', Mst. Mukhtari appellant stated:- "I have been falsely implicated by Mst. Rani as she was involved in a Zina case and she was admonished by me and by my co-accused and was defamed in the village so she bore a grudge against me and my co-accused and there were minor quarrels between us and the family of the deceased over the quarrels of children which ultimately resulted into an enmity." Mst. Parveen appellant made almost similar statement. In defence the three appellants gave evidence in disproof ... the charge against them and also produced 6 more witnesses. Muhammad Din appellant appearing as D.W. 1 stated that Mst. Maqsoodan had committed suicide. He further stated that his wife and children used to quarrel with Mst. Rani, therefore, she has falsely involved him in the case. Mst. Mukhtari appellant/D.We2 stated that on the day of occurrence there was a quarrel between the deceased and her mother Mat. Rani complainant and the latter gave beating to the former. She further stated that after the quarrel between the deceased and her mother, the deceased had declared that she would either jump in the well or will set herself on fire. She also stated that the deceased brought kerosene oil from the shop of Abdul Hamid, sprinkled it on her body and set herself on fire. Mst. Parveen Akhtar appellant/D.W.3 stated that Mst. Rani was of a bad character, so she (D.W.3) asked the co-villagers to boycott her. She further stated that the parents of the deceased had given beating to the deceased on the night preceding the day of occurrence and wanted to marry her with a person whom she did not like. So, she brought kerosene oil from the shop of Abdul Hamid and committed suicide. Amanat Ali D.W.4 has proved F. I. R. Ex. D.F. registered at Police Station Barki on 29-11-1983 under section 10 of the offence of Zina (Enforcement of Hudood) Ordinance, 1979 against Mst. Rani complainant and one Muhammad Hussain. The report was lodged by one Abdul Hameed. He also proved copy of an application Marked 'A' moved by Muhammad Shafi before the S . S . P. Abdul Hameed D . W .5 stated that on the day of occurrence, a minor daughter (not deceased) of Mst. Rani complainant had purchased kerosene oil from his shop. After half an hour on hearing that Mst. Maqsoodan had burnt herself, he went to her house. She was burning at that time. He tried to save her but she forbade him telling that she should not be saved. The witness stated that neither the appellants nor anyone else was present there at that time. So, he sent his son to bring the parents of Mst. Maqsoodan. They came in the house at 1/11 p.m. and took Mst. Maqsoodan to Hospital in a tongs. The witness further stated that Mst. Rani complainant was found in objectionable position with Muhammad Hussain in a sugarcane field so both of them were arrested and that Muhammad Din appellant had suggested that Mst. Rani should not be allowed to live in the Mohallah. The witness also stated that Mst. Rani had engaged the deceased with one Rehmat but subsequently refused to marry her with him whereupon Mst. Maqsoodan declared that either she would marry Rehmat or she would jump into a well or set herself on fire. Haroon Masih D.W. 6 who was originally a prosecution witness has stated that Mst. Maqsoodan had set herself on fire and no one was present in the house at that time. He stated that when he tried to extinguish the fire, Mst. Maqsoodan told her that as she wants to commit suicide, therefore, she should not be saved. Muhammad Hayat D . W . 7 stated that a Panchayat was convened on the complaint of Rehmat that Mst. Rani had resiled from marrying the deceased to him and that Muhammad Din P.W., the father of Maqsoodan wanted to marry the deceased with her cousin. The witness further stated that Mst. Maqsoodan had declared that Panchayat would see the result of her marriage with his cousin. Imam Din D.W. 8 has proved Ex.D.G. birth entry of Mst. Mukhtari. Muhammad Shafi D.W. 9 has proved application marked 'A' submitted by him to the S.S.P. , Lahore.

10. The trial Court while believing motive as disclosed by Mst. Maqsoodan in her dying declaration Ex.P.N., the ocular evidence, Wajtakar evidence and dying declaration Ex.P.N. and disbelieving defence version and the statement of the defence witnesses has convicted and sentenced the appellants as stated above.

11. Learned counsel for the appellants contended that there is inordinate delay in lodging the F.I.R.; that the F.I.R. was lodged after preliminary investigation,; that the immediate motive disclosed by Mst. Maqsoodan in dying declaration was an afterthought; that the motive alleged in the F.I.R. is flimzy; that Mst. Razia P.W.9 being a child is a dangerous witness and as such no implicit reliance can be placed on her statement; that the alleged dying declaration Ex.P.N. was recorded by A.S.I.; that Muhammad Din and Mst. Rani the parents of the deceased are not reliable witnesses and that there is a reasonable possibility that Mst. Maqsoodan might have committed suicide. In the alternative, the learned counsel argued that since Mst. Maqsoodan had died due to septicaemia and could have easily been saved. Had she been properly treated by the doctor concerned, therefore, the offence would be culpable homicide not amounting to murder. Learned counsel for the State has supported the judgment of the trial Court. Learned counsel for the complainant requested for the enhancement of sentence of Mst. Mukhtari and Mst. Parveen Akhtar appellants on the ground that they do not deserve any leniency.

12. We have anxiously attended to the elaborate arguments of the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution; the statements made by the appellants under section 342, Cr.P.C. the evidence given by them under section 340, Cr.P.C. the defence evidence and the circumstances appearing in the case, with care. We have not been able to persuade ourselves to agree with the learned counsel for the appellants. We find that it is not a case of inordinate delay in lodging the F.I.R. The occurrence took place at 1/2-00 p.m. on 13-2-1985. The statement of the complainant was recorded at 8-30 p.m. in the General Hospital at a distance of 15 miles from the place of occurrence. Since the condition of Mst. Maqsoodan was precarious, therefore, the conduct of her parents of taking her to hospital for treatment does not run counter to the natural probabilities. There is no evidence that the F.I.R. was actually recorded after some investigation. The admission made by Mst. Rant that on her way to the hospital she had given information at police post about the incidence but the police advised them to get the injured admitted in the hospital first, rings true. This however, does not mean that preliminary investigation was conducted by the police before recording the F.I.R. The F.I.R. in this case seems to be a genuine document which can legally be used to corroborate the statement of its maker i.e. Mst. Rani.

13. Adverting to the ocular account of the occurrence given by Mst. Razia P.W.9 we find that no doubt she was a child of 8/9 years of age at the time of occurrence but no general rule of universal application can be laid down that in no case should evidence of child witness be believed. The rule of prudence may however, require that the evidence of a child witness be subject to close and careful scrutiny. Having carefully examined her statement, we find that since the occurrence had taken place in her house, therefore, she was a natural witness of the occurrence. Her name is also mentioned in the F.I.R., the authenticity of which is not open to doubt. The occurrence took place in the light of the day. The appellants were previously known to her and she could easily identify them. On careful examination of her statement we do not see any reasons to doubt that she in fact saw the occurrence and was in a position to identify the offenders. There are no indications that she was tutored by anyone before she made statement in the Court. She was subjected to lengthy cross-examination. Even this powerful engine could neither elicit any falsehood in her statement nor could damage her integrity nor could impeach her credibility. The courage she exhibited while answering questions put to her in the cross-examination shows that she was not of such immature understanding so as to be found to be a dangerous witness to be believed. Even otherwise a child of 8/9 years possess intelligence and evidence given by him/her unless impeached deserves to be believed. In the instant case we find that the statement made by her could not be impeached by the defence.

14. Taking up the dying declaration i.e. statement Ex.P.N. of Mst. Maqsoodan to the Investigating Officer, we find that before recording this statement the Investigating Officer had obtained certificate of her fitness to make statement. She had no animus against the appellants. There is nothing to show that her statement was not recorded at the time and place as it purports. She was breathing her words in pain so it would be legitimate to infer that she told nothing but truth unless proved otherwise. This statement does not suffer from self-contradictions or dishonest improvements. She was intensively burnt, therefore, there was no occasion to narrate the immediate cause of her murder to Mst. Rant and Muhammad Din P.Ws'. So, non-disclosure of the incident of her going on the top of the roof and seeing Mst. Mukhtari and Mohammad Din appellants in objectional position to the complainant and its consequent omission in the F.I.R. is quite understandable. The law does not require any endorsement by the doctor on a statement recorded under section 161, Cr.P.C. We feel that .statement Ex.P.N. was not only made by Mst. Maqsoodan before the Investigating Officer but was also ..truly made. There are no material contradictions anti major discrepancies in the statement of Mst. Razia P.W. and the dying declaration. The aforesaid statements are in consonance with the probabilities; materially fits in with the rest of the evidence and are confidence inspiring and as such can be relied upon for convicting the accused without corroboration.

15. In case, the rule of prudence requires corroboration of the statement' of Mst. Razia and dying declaration Ex.P.N., the same is amply available in the shape of reliable evidence of Wajtakar and res gestae furnished by Mst. Rant P.W.5 and Muhammad P.W.6. They seem to be quite dependable witnesses. We have been very much, impressed by the straightforward manner in which they gave evidence. In the circumstances of the case, they could easily introduce themselves as eye-witnesses of the occurrence. They could say that on entering the house they saw Muhammad Din appellant putting kerosene oil or, Mst. Maqsoodan and Mst. Mukhtari appellant litting match stick and setting her on fire but they did not state so. It seems to us that they stated in the Court what they had actually seen. They had no previous enmity with the appellants. No doubt a case under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered against Mst. Rant and one Muhammad Hussain in the year 1983 but the F.I.R. of that case shows that none of the appellants was complainant or prosecution witness in that case. One Abdul Hameeu was complainant and Khadim Hussain, Muhammad Hussain and Muhammad Yaqoob were prosecution witnesses in that case. Had Mst. Rant complainant been aggrieved of her involvement in that case, she would have involved Abdul Hameed complainant and other prosecution witnesses of that case and not the appellants. The evidence of Mst. Rani and Muhammad Din P.W. cannot be discarded on account of their relationship with the deceased. They have withstood the test of cross-examination. Except for minor and immaterial discrepancies here and there, learned counsel has not been able to point out any legal infirmity in their evidence. They claim to have seen the appellants coming out of the door of the house where the occurrence took place, immediately after the occurrence. Mst. Maqsoodan (deceased) and Mst. Razia P.W.9 while narrating the occurrence had disclosed the name of the appellants to them so shortly after the occurrence that there was no time for consultation or deliberations for the formers to concoct a false version or falsely implicate the accused. The aforesaid two circumstances of the Wajtakar and res gestae .do connect the appellants with the death of the deceased.

16. This brings us to the evidence on oath given by the appellants in disproof of charge against them and the statements of other D. Ws. We find that the defence evidence has neither satisfactorily rebutted the prosecution case nor has falsified the ocular evidence as furnished by Mst. Rant and the other incriminating evidence produced by the prosecution. It was suggested in cross-examination to Mst. Rani P.W. 5, Muhammad Din P.W.6 and Mst. Razia P.W.9 and was also stated by the appellants in their statements recorded under, section

342. Cr.P.C. that Mst. Maqsoodan herself had purchased kerosene oil from the shop of Abdul Hameed D.W. and had set herself on fire because her parents did not desire to marry her with a man of her choice. Abdul Hameed D.W. 5 made a different statement. He stated that one minor daughter (not Mst. Maqsoodan deceased) of Mst. Ran complainant, had purchased kerosene oil from his shop. This to our mind is a major conflict which goes to belie the version of the defence' disclosed in cross-examination and taken up in statements under section 342, Cr. P. C . Astonishingly, the name of person whom the deceased wanted to marry was neither disclosed in cross-examination nor in statements recorded under section 342, Cr.P.C. The failure on the part of the defence to disclose the name of the person of the choice of the deceased at the earliest opportunity speaks volume and shakes the very foundation of the plea of suicide. Khadim Masih P.W.4 was declared hositle. His statement that Mst. Maqsoodan had asked him not to extinguish fire because she wanted to die for the reasons that she was not being married with a person of her choice and similar statement of Haroon Masih D.W.6, are not only improbable but also ridiculous as in the ordinary course of events Mst. Maqsoodan could not have made such a shameful declaration before strangers. The evidence given by Muhammad Hayat D. W. 7 appears to be an afterthought inasmuch as the factum of holding Panchayat on the complaint of Rehmat, the person whom the deceased wanted to marry, was neither suggested to the P.Ws. nor stated in statements recorded under section 342, Cr.P.C. The rest of the defence evidence is of not much significance. For all these reasons, we are convinced that the trial Court has rightly relied upon the motive, ocular evidence, Wajtakar evidence and dying declaration adduced by the prosecution and has rightly rejected the defence version as well as the defence evidence.

17. Despite aforesaid observations, we want to give benefit of doubt as a matter of abundant caution to Mst. Parveen appellant on` the question of her constructive liability. Her case appears to be a little different. It is alleged that she came to the place of occurrence alongwith the co-accused and remained present there during the occurrence. Without doing any overt act towards the commission of crime. The question to be determined is whether she had a common intention to cause the death of the deceased. It is well-settled that presumption of constructive intention must not be readily applied or pushed too far and in case there is a bit doubt with regard to the sharing of common intention, its benefits would go to the accused not as a matter of grace but as a matter of right. There can be no two opinion that the question of common intention is a question of fact and has to be determined in the circumstances of each case. In the instant case, there is no evidence of any pre-consultation between her and co-appellants. So, like most of the cases, the determination of common intention depends upon the inference from motive and her act/conduct before or after the occurrence. Admittedly she had no motive to harm the deceased. She did not engage with the co-accused in any conspiracy for the murder of the deceased. She did not instigate, aid or facilitate the murder of the deceased by words or deed. So, mere presence on the spot during the occurrence would not justify her being imputed with necessary intention under section 34, P.P.C.

18. How we proceed to a determine the criminal liability of the two appellants namely Muhammad Din and Mst. Mukhtari. They had a motive to kill the deceased because they were seen embracing and kissing each other by Mst. Maqsoodan sometime before the occurrence Muhammad Din brought a tin of kerosene oil with him and Mst. Mukhtarx was carrying match box with her when they came to the spot. Muhammad Din sprinkled kerosene oil on Mst. Maqsoodan and Mst. Mukhtari lit match stick and set her on fire and as such it can safely be said that Muhammad Din had shared common intention with Mst. Mukhtari in killing the deceased and they were equally liable for the death of Maqsoodan. In the instant case, the intention of appellants to expose Mst. Maqsoodan to flames, was clearly to kill her and they fully knew that the act of setting her on fire was so imminently dangerous that it would in all probabilities cause her death or such bodily injury as was likely to cause death. We do not agree with the arguments of the learned counsel for the appellants that since the death was due to septicaemia, therefore, the offence committed by the accused would be culpable homicide not amounting to murder. It was flame-burns which led to septicaemia resulting in the death and as such the offence committed by them was clearly covered by section 302, P.P.C We are convinced that Muhammad Din and Mst. Mukhtari appellants have rightly been convicted under section 302, P.P.C. for the murder of Mst. Maqsoodan.

19. Mst. Mukhtari who had set the deceased on fire has been sentenced to imprisonment for life whereas Muhammad Din who sprinkled kerosene oil on the deceased has been sentenced to death. As there is a wide difference between life and death, so we have attended to the question of sentence of Muhammad Din appellant with utmost care on our part. We feel that in all criminal cases more particularly in cases punishable with death or imprisonment for life, the sentences must be weighed in golden scales as it were properly balanced to punish the offender in proportion to the character and extent of his guilt. The sentence should be deterrent for the offender and for the rest of society, without being unnecessarily harsh and needlessly indulgent. Bearing in mind all the circumstances surrounding the guilt and the actual part played by him in the occurrence, we are o the view that lesser penalty provided under section 302, P.P.C. would meet the case. He sprinkled kerosene oil on Mst. Maqsoodanl whereas Mst. Mukhtari co-appellant lit match stick and set her on fire, so he cannot be held solely responsible for the death of the deceased although he had materially contributed towards the same. Be that as it may, the fact remains, that had Mst. Mukhtari not set Mst. Maqsoodan on fire, the latter could not have died due to the flame burns. Similarly, had Muhammad Din not sprinkled kerosene OR K then Mst. Mukhtari could not have set the deceased on fire. It seems to us that in the case in hand, it would be consistent with the rule of safe administration of justice in criminal cases that both of them should be treated equally regardless of their sex. The trial Court has given a sound reason for not awarding death to Mst. Mukhtari. We do not see any justification to interfere with the discretion exercise by the trial Court in the matter of sentence. To us it is not a fit case for the enhancement of sentence of Mat. Mukhtari appellant. So, there is no option but to reduce the sentence of Muhammad Din) appellant from death to imprisonment for life. The upshot of the above discussion is that while giving benefit of doubt, Mst. Parveen Akhtar appellant is acquitted of the charge. She is on bail, she stands discharged of the bail bonds. The appeal to the extent of Mst. Mukhtari appellant is dismissed in toto. The sentence of death of Muhammad Din appellant is altered to imprisonment for life. The fine imposed by the trial Court, the sentence in default thereof and direction for payment of fine to the father of the deceased, are maintained. The connected revision filed by Mst. Rani complainant automatically fails. Death sentence is not confirmed. M.Y.H./M-480/L Appeal partly allowed.