MUHAMMAD AMIN Versus THE STATE

SYED SAKHI HUSSAIN BUKHARI, J.‑ ‑Muhammad Amin, appellant has filed this appeal against the judgment dated 22‑6‑1998 passed by learned Sessions Judge, Bahawalnagar whereby he was convicted under section 302(b), P.P.C., and sentenced to suffer imprisonment for life. He was also ordered to pay Rs.50,000 to the legal heirs of deceased as compensation.

2. Abdul Hakeem, has filed Criminal Revision No.65 of 1998 for enhancement of sentence awarded to Muhammad Amin. So appeal brought by Muhammad Atnin (No.87 of 1998) and said Revision Petition No.65 of 1998 shall be disposed of by this single judgment.

3. The facts of the case according to F.I.R (Exh.P.D) are that Mst. Robina Samreen wife of Muhammad Amin, accused stated before police on 13‑6‑1997 that she was living with her husband (Muhammad Amin, accused). She further stated that on 12‑6‑1997 her husband reached his house at about 11‑00 p.m. and asked her to prepare meal, but she enquired from him as to where he remained till the mid‑night whereupon Muhammad Amin abused her. She was preparing meal but Muhammad Amin gave her beating, therefore, she stopped preparing meal and slept. She stated that at about 2‑30 a. m. Muhammad Amin accused sprinkled kerosene oil and set her on fire and on her alarm Abdul Sattar, Abdul Ghaffar and Muhammad Abdullah reached the spot. Muhammad Amin had a pistol .30 bore with him and he gave 'butt'. blow on her head and fled away while firing in the air. Abdul Sattar took her to Civil Hospital. Her statement was recorded by Liaqat Ali, A.S.‑I. (P.W.6). On her statement case under section 324, P.P.C., was registered against Muhammad Amin. Later on Mst.Robina Samreen succumbed to her injuries, therefore, section 302, P.P.C., was added and after usual investigation accused was challaned.

4. The accused appeared before trial Court and charge under section 302, P.P.C. was framed against him to which he pleaded not guilty and claimed trial whereupon prosecution evidence was recorded. Prosecution examined six witnesses in all to prove its case.

5. P.W.1 Muhammad Tahir prepared site plans Exh.PA, Exh.PA/1 and Exh.PA/2. P.W.2, Dr. Muhammad Afzal Bashir medically examined Mst.Robina Samreen on 13‑6‑1997. He also conducted post‑mortem examination on her dead body on 28‑6‑1997 at about 5‑30 p.m. During cross‑examination he stated that he medically examined her at about 5‑00 a.m. He further stated that first of all medical aid was provided to injured immediately after her arrival in hospital. The injury statement was received in the hospital after about 2‑1/2 hours after giving first medical aid to her. He did not observe any injury on her head at the time of medical examination as well as post‑mortem examination. He admitted that A.S.‑I. did not verity from him whether she was capable to make any statement or not at that time. He also admitted that he did not obtain her thumb‑impressions on M.L.R. because she was not in a position to fix her thumb‑impression on the M.L.R. The witness admitted that her thumbs of both the hands were also burnt, therefore, he did not obtain her thumb‑impressions. P.W.3, Jamshed Ali received complaint sent by Liaqat Ali, A.S.‑I. and recorded F.I.R., Exh.PD. During cross‑examination he stated that after 5‑00 a.m. he received information about the occurrence on telephone from D.H.Q. Hospital, Bahawalnagar whereupon he sent Liaqat Ali, A.S.‑I. to the hospital. He did not record the information received on telephone in any register or in the daily diary. P.W.4 Abdul Sattar stated that. Mst.Robina Samreen was daughter of his brother and wife of accused. He further stated that at about 2‑30 a.m. he, Abdullah and Abdul Ghaffar heard shrieks from inside the house of accused and suddenly accused came out of his house with a pistol in his hand. They tried to stop him but he threatened, fired with pistol in the air and ran away from the spot. They put water on Mst.Robina Samreen and extinguished the fire. Thereafter, they asked about the fire and she told that accused had put her on fire after throwing kerosine oil on her and had also given a 'butt' blow. They took her to hospital. During cross‑examination he admitted that his place of residence is at a distance of 3 Kms. from the place of occurrence. He stated that D.H.Q. Hospital is at a distance of 2 acres from the place of occurrence. At the time of arrival of police the Medical Officer was attending her. Mst.Robina Samreen was matriculate. The witness stated that when Investigating Officer came in hospital he narrated the occurrence to him and thereafter he recorded her statement. He denied that Mst.Robina Samrren did not make any statement before Liaqat Ali, A.S.‑I. and neither she put her thumb‑impressions upon the statement and that they had concocted a false story against accused with the connivance of police. P. W.5, Munir Ahmad took the complaint to police station. P. W.6 Liaqat Ali is the Investigating Officer in this case. He stated that he recorded statement of Mst.Robina Samreen Exh.PH on her dictation. She put her thumb -impressions on the statement. After completion of investigation, challaned the accused. During cross‑examination he stated that at the time of recording of statement, Exh.PH the medical officer was not present in the room. Both the hands of the deceased were burnt. In the site plan Exh.PA Point No. 1 is the place where she had allegedly been set on fire. He stated that Point No. 1 is inside the kitchen. Thereafter, accused was examined under section 342. Cr.P.C. wherein he denied the allegations leveled against him by the prosecution and pleaded his innocence. He stated that "Abdul Sattar and others, relatives of Mst.Robina Samreen were not happy over their marriage as it was love marriage. Also that on 13‑6‑1997 early in the morning his wife. Mst.Robina Samreen was preparing breakfast when she caught fire from the stove of kerosene oil but he was sleeping at that time. On her noise he yoke up and went inside the kitchen where he tried to extinguish the fire that she had already burnt and with the help of neighbours, he took her to the hospital for medical treatment. He informed father of Mst.Robina Saanreen, who was living at a distance of three kilometres from their house, who alongwith his other family members came to the hospital. Abdul Sattar, P.W. was close friend of Liaqat Ali, A.S.‑I. and Jamshed, S.H.O. and they managed to involve him in this case falsely. None of the P.Ws. including Abdul Sattar was present at the time of incident and that statement Exh.PH had been fabricated by Liaqat Ali, A.S.‑I. in connivance with and at the instance of Abdul Sattar, P.W. and that Mst.Robina Samreen had not made any statement".

6. After hearing the parties learned Sessions Judge convicted the accused/appellant and sentenced him as mentioned above. Now Muhammad Amin has filed appear whereas Abdul Hakeem, father of. Mst. Robina Samreen has filed revision petition for enhancement of sentence.

7. We have heard the arguments and perused the record.

8. As mentioned above the prosecution case is that on 13‑6‑1997 at about 2‑30 a.m. Muhammad Amin, appellant sprinkled kerosene oil upon his wife (Mst.Robina Samreen deceased) while she was lying asleep in her house and set her on fire as a result of which she was burnt. She was taken to hospital after the occurrence and according to prosecution case she made statement, Exh.PH before police but later on died. Learned counsel for the appellant submits that according to medical evidence hands of Mst.Robina Samreen, deceased were burnt, therefore, she could not thumb‑mark statement Exh.PH. The prosecution has examined Dr. Muhammad Afzal Bashir as P.W.2. He medically examined Mst. Robina Samreen on 13‑6‑1997. During cross‑examination. he admitted that he did not obtain thumb‑impression on the M.L.R. because she was not in a position to fix her thumb‑impression on the M.L.R. He also admitted that thumbs of both the hands were burnt, therefore, she did not obtain her thumb‑impression. In view of statement of medical officer (P.W.2) prosecution story becomes doubtful.

9. The most important aspect of the case is that statement Exh.PH was recorded in hospital but according to statement of medical officer (P.W.2) Liaqat. Ali, A.S.‑I. P.W.6 did not verify from him whether at that time she was capable to make statement or not.

10. According to statement of Mst.Robina Samreen (Exh.PH) she was lying asleep when Muhammad Amin, accused/appellant threw kerosene oil upon her. The site plate (Exh.PA) shows that at that time she was in kitchen. However, it is not understandable as to why she Was lying asleep in the kitchen because the site plan (Exh.PA) shows that there were two rooms, Warranda and courtyard of the house where she was living with her husband, Muhammad Amin. It too creates doubt in the prosecution story.

11. As mentioned above the prosecution case is that occurrence took place in summer (on 13‑6‑1997) and in this season none can sleep in a kitchen measuring 9 X 8 ft. It is against normal human conduct. As such prosecution story does not sound to be natural.

12. According to prosecution case Muhammad Amin, appellant. threw kerosene oil upon his wife and set her on fire when she was lying asleep. During investigation Investigating Officer took into possession pieces of her burnt clothes (shirt, Shalwar and Dopatta). However, cot where she was lying asleep and bed‑sheet, etc. were not taken into possession. There is nothing on record to show that whether cot and‑bed‑sheet, etc. were also burnt or not, and why the same were not taken into possession and it also makes prosecution story doubtful.

13. Prosecution examined only one eye‑witness (Abdul Sattar, P.W.4). Admittedly, he is paternal uncle of deceased and his house is at a distance of three kilometres from the place of occurrence. His presence at the scene of occurrence at the relevant time is doubtful. Even otherwise his statement is not convincing and confidence‑inspiring and the same cannot be believed. The perusal of judgment passed by learned Sessions Judge too shows that he had discarded his evidence. In the circumstances of the case we find that learned trial Court had rightly discarded the same. The other eye‑witnesses (Abdullah and Abdul Ghaffar) have been given up by prosecution.

14. The trial Court considered statement of Mst. Robina Samreen (Exh.PH) as‑dying declaration and convicted the appellant vide impugned judgment. However, as mentioned earlier prosecution has failed to prove beyond any shadow of doubt that Mst.Robina Samreen made her statement before Liaqat Ali, A.S.‑I; P.W.6, therefore, appellant could not be convicted on her statement alone. It was duty of Liaqat Ali, A.S.‑I. to obtain a certificate from a doctor of the hospital, before recording statement (Exh.PH) that injured was in a fit position to give statement. This was not done. As mentioned above there is no other evidence against the accused/appellant to show that he sprinkled kerosene oil upon her as a result of which she was burnt.

15. Recording of the dying declaration by a police officer instead of a Magistrate diminishes its value. So, basing conviction on such kind of dying declaration would be risky and not in accordance with the established and recognized principles of law and justice. Reliance is placed upon Muhammad Sadiq v.. State (1997 PCr.LJ 794).

16. It is clear from the above discussion that dying declaration cannot be relied upon because it is not free from doubt. It is well‑settled that great caution is to be taken before placing reliance on a dying declaration because it is a weak piece of evidence as its marker is not subjected to cross‑examination. Reliance is placed upon State v. Rahim Gul (1999 PCr.LJ 1087). In these circumstances, we find that prosecution has failed to produce any worthwhile evidence against the accused.

17. For what has been discussed above., we are of the considered opinion that prosecution has failed to prove its case against Muhammad Amin, appellant. So, appeal brought by him is accepted, impugned judgment is set aside and he is accordingly acquitted of the charge preferred against him by the prosecution. He is in jail and he shall be released forthwith, if not required in any other case.

18. The criminal revision petition (Criminal Revision No.65 of 1998) brought by Abdul Hakeem stands disposed of being infructuous.

N.H.Q./M‑1674/L Appeal accepted.