Mst. YASMIN Versus State
SADAQAT ALI KHAN, J.--- Appellant (Mst. Yasmin) has been tried by learned trial Court in case FIR No.264 dated 23.05.2017 offences under sections 302, 324, 336-B, P.P.C. and sections 7 and 21-L of Anti-Terrorism Act, 1997, registered at Police Station Ludden, District Vehari, and was convicted and sentenced vide judgment dated 17.10.2017 as under:-
Mst. Yasmin (appellant)
Under section 302(b), P.P.C.
Sentenced to DEATH as 'Tazir' for committing Qatl-i-Amd of Muhammad Imran Ashraf (deceased) with compensation of Rs.5,00,000/- payable to legal heirs of the deceased under section 544-A, Cr.P.C. in default whereof to further undergo simple imprisonment for 6-months.
Under section 7(a), ATA
Sentenced to DEATH with fine of Rs.5,00,000/- in default whereof to further undergo simple imprisonment for 6-months.
Under section 336-B, P.P.C.
Sentenced to Life Imprisonment with fine of Rs.10,00,000/- in default whereof to further undergo simple imprisonment for 6-months.
Under section 21-L, ATA
Sentenced to five years R.I.
2. Appellant has filed this Criminal Appeal against her conviction and learned trial Court has sent Capital Sentence Reference for confirmation of her death sentence or otherwise, which are being decided through this single judgment.
3. Brief facts of the case have been stated by the Irfan Ashraf (PW-5) in his statement before learned trial Court, which is hereby reproduced as under for narration of the facts:-
On 22.05.2017, I along with Sajid ur Rehman went to the house of my brother Imran Ashraf and slept in courtyard of his house while my brother, his wife Mst. Yasmin accused present in court and his daughter Ayesha also slept there. At about 11.30 PM, I and Sajid ur Rehman woke up at the hue and cry of my brother and saw Mst. Yasmin accused present in court sprinkled acid with iron Balty upon my brother Imran Ashraf and he received swear burn injuries. I and Sajid ur Rehman, tried to apprehend Mst. Yasmin accused present in court but she ran away by taking the advantage of dark night. I and Sajid ur Rehman attended my brother Imran and called Rescue 1122 and took my brother via ambulance DHQ Vehari. Thereafter, my brother was referred to Burn Unit Nishtar Multan. Motive behind the occurrence was that my brother had contracted second marriage due to which Mst. Yasmin sprinkled acid upon my brother.
4. After hearing learned counsel for the appellant as well as learned DDPP, and on perusal of record with their able assistance, we have observed as i. Muhammad Imran deceased (the then injured) being complainant on 23.05.2017 at 7:55 a.m. got registered FIR stating therein that about 15-years ago he got married with Yasmin appellant, has also daughter namely Alisha aged about 12-years who was living with her mother due to family dispute, about 2-1/2 years ago he contracted second marriage with Asma Safdar, then compromise was also effected between him and his first wife Mst. Yasmin appellant who asked him to take her to his home, on 22.05.2017 after "Maghrib Prayer" he, Irfan Ashraf P.W.5 and Sajid ur Rehman P.W.10 went the house of the appellant, he along with his wife (appellant) and daughter Alisha slept in the courtyard outside the room of the house, whereas his brothers (Irfan Ashraf P.W.5 and Sajid ur Rehman P.W.10) slept in the courtyard at some distance, at about 11:30 p.m. his wife Mst. Yasmin (appellant) brought having acid when he was sleeping and had poured upon him, Irfan Ashraf P.W.5 and Sajid ur Rehman P.W.10 also attracted there, the appellant while taking benefit of darkness succeeded to escape, on call, officials of 1122 came there and took him to DHQ Hospital, Vehari. ii. FIR was lodged with the delay of about nine hours. Muhammad Imran has died on 18.07.2017. Dr. Mujeeb ur Rehman P.W.9 who conducted medical examination of Muhammad Imran (deceased) in injured condition, stated in his statement before the learned trial Court that on 23.05.2017 at about 12:05 a.m. (midnight), Imran Ashraf came to emergency department of DHQ Hospital Vehari with the history of acid burning. After giving the patient first aid treatment he was referred to burn unit of Nishtar Hospital, Multan immediately. He admitted in his cross-examination that he recorded the statement of injured Imran Ashraf (now deceased), he voluntarily made statement before him, he (Dr. Mujeeb ur Rehman P.W.9) informed the police rescue 15, also recorded the statement of injured Ex.P.L which was thumb marked by him in token of its correctness, he (Imran Ashraf deceased) stated before him that it was sudden incident, he did not want to prosecute anyone at that time, he admitted that all the injuries were on non-vital part including gentile part of the injured. All this shows that at the time of medical examination of Imran Ashraf deceased (the then injured) at 12:05 a.m. (midnight) on 23.05.2017, accused was unknown. iii) Nazar Muhammad Inspector P.W.8 admitted in his cross-examination that doctor of DHQ Hospital Vehari recorded the statement of Imran Ashraf deceased (the then injured), according to Ex.D.B, Imran Ashraf deceased made statement before him that it was sudden incident and did not want to proceed against anyone. Nazar Muhammad Inspector P.W.8 stated in his statement before the learned trial Court that on 25.05.2017, he visited burn unit of Nishtar Hospital Multan where Imran Ashraf deceased (the then injured) verified his statement. Nazar Muhammad Inspector P.W.8 admitted in his cross-examination that FIR as well as statement of the deceased which was recorded by him during medical examination was not verified by the doctor. He did not move any application before the medical officer for recording statement of Imran Ashraf deceased (the then injured). Stated in volunteer portion that the deceased was conscious due to this reason, he recorded statement of the deceased. He further stated in his cross-examination that during investigation it came to his knowledge that the deceased had contracted more than two marriages. He admitted in is cross-examination that he only mentioned the source of light is moon light. iv. Above discussed circumstances suggest that delayed FIR allegedly got recorded by Imran Ashraf deceased (the then injured) is result of fabrication and concoction which cannot be relied upon. The dying declaration is an exception to the hearsay rule and thus the same is to be scrutinized with due care and caution, particularly in the backdrop of observations made by the different courts about veracity of a dying declaration. In the case in hand, it quite clearly appears that the deceased (the then injured) had no regard for the truth as according to his version occurrence took place in the house of Mst. Yasmin appellant where the deceased (the then injured) along with his brothers had gone to bring her as compromise was effected between him and his wife (appellant). Contrary to this, his brothers Irfan Ashraf P.W.5 and Sajid ur Rehman P.W.10 stated in their statements before the learned trial Court that occurrence took place in the house of Imran Ashraf deceased (the then injured). In these circumstances, either Imran Ashraf deceased (the then injured) had economized with the truth while making his dying declaration or the dying declaration itself was a fabricated document which had been manufactured at some subsequent stage for the purposes of implication of the appellant. In these particular circumstances, we have decided not to place reliance upon such a dying declaration. (2016 SCMR 1233) "Muhammad Ameer and another v. Riyat Khan and others", (2011 SCMR 646) "Tahir Khan v. The State" and (2007 SCMR 1825) and "Farman Ahmed v. Muhammad Inayat and others". v. Irfan Ashraf P.W.5 and Sajid ur Rehman P W.10 while claiming themselves to be the eye-witnesses of the occurrence stated in their statements before the learned trial Court that on 22.05.2017, they went to the house of their brother Imran Ashraf deceased, slept there, at about 11:30 p.m. woke up on hue and cry of their brother Imran Ashraf deceased and saw his wife Mst. Yasmin appellant was pouring acid with iron on him. Contrary to this, Imran Ashraf deceased (the then injured) got recorded in his statement that occurrence took place in the house of the appellant where he along with his brothers had gone to bring her after compromise with her. Irfan Ashraf P.W.5 stated in his cross-examination that he had not stated in his statement recorded under Section 161, Cr.P.C. that occurrence took place in the house of his brother. He was confronted with his statement Ex.D.A. wherein it was so recorded. He has stated in his statement recorded under Section 161, Cr.P.C. that they had got Bangla Fazilwala for compromise, he was confronted with his statement Ex.D.A. where it was not so recorded. Even otherwise, both these witnesses are not residing in the house of occurrence or around the place of occurrence, they being chance witnesses have failed to establish their presence at the place of occurrence at the time of occurrence with their stated reasons. The story of the prosecution discussed above is neither plausible nor believable. (2014 SCMR 1698) "Muhammad Rafique v. The State" and (2017 SCMR 564) "Arshad Khan v. The State".
5. In view of the above discussion, we entertain serious doubt in our minds regarding participation of appellant in the present case. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in the prudent mind about the guilt of the accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right.
6. For the foregoing reasons, instant criminal appeal is allowed, conviction and sentences of Mst. Yasmin appellant awarded by learned trial Court through impugned judgment are hereby set-aside and she is acquitted of the charges. She is directed to be released forthwith, if not required in any other case. Capital Sentence Reference is answered in NEGATIVE and death sentence of Mst. Yasmin (appellant) on all counts is NOT CONFIRMED.
JK/Y-7/L Appeal allowed.