2017 P Cr. L J 509
اگر نہ بالغ بچہ سوالات کو سمجھ سکتا ہے اور ان کا صیحح سے جواب دے سکتا ہے تو اس کی گواہی کو نظر انداز نہیں کیا جاسکتا
(a) Penal Code (XLV of 1860)---
----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 49---Qatl-i-amd---Appreciation of evidence--- Sentence, reduction in---Dying declaration---Scope---Accused was charged for causing death of his wife by setting her on fire---Trial Court relied upon dying declaration of deceased and testimony of minor daughter of accused and sentenced him to death--- Validity---No material irregularity was noticed in recording dying declaration of deceased by investigating officer in presence of prosecution witnesses when doctor found her fit for recording her statement---Dying declaration made by deceased was voluntary without any probability of prompting as to cause of her death and the same was recorded in writing by investigating officer who had no enmity with accused---High Court declined to discard dying declaration as made by deceased duly supported and corroborated by evidence of prosecution witnesses and the doctor---Daughter of accused had witnessed the incident and stated that her father quarrelled with her mother and sprinkled petrol on her mother who was standing near stove and fire caught her mother and such evidence was straightforward and trustworthy---Accused immediately after the incident repented and realized wrong act and tried to extinguish the fire and in the result he sustained burn wounds--- Actual and immediate cause of occurrence was not clarified by complainant during trial--- High Court converted sentence of death into imprisonment for life as such were mitigating circumstances--- Appeal was allowed accordingly.
Mst. Zahida Bibi v. The State PLD 2006 SC 263; Ulfat Hussain v. The State 2010 SCMR 247; Ali Bux and others v. The State 1985 MLD 697; Niaz-ud-Din and another v. The State 2011 SCMR 725 and Farmanullah v. Qadeem Khan and another 2001 SCMR 1474 ref.
Abbas Hussain and another v. The State 1992 SCMR 320 rel.
(b) Qanun-e-Shahadat (10 of 1984)---
----Art. 3---Testimony of child---Principle---If child gives statement which indicates that such witness understands questions and has given answers intelligently and rationally, the same cannot be ignored due to tender age of witness.
Mudassar Ali Shah v. The State 2011 MLD 873 rel.
(c) Criminal trial---
----Incriminating articles---Tampering with---When seals were intact and articles were not tampered or substituted and question of manipulation and tampering with the sample at appellate stage was without substance, which was not agitated at the time of trial.
Munir Uddin for Appellant.
Abrar Ali Khichi, A.P.G. for the State.
Ahtesham Ullah for the Complainant.
Date of hearing: 25th April, 2016.
AHSAN BANGASH alias JUNAID VS State2017 P Cr. L J 509[Sindh]Before Naimatullah Phulphoto and Ghulam Qadir Leghari, JJAHSAN BANGASH alias JUNAID---AppellantVersusThe STATE---RespondentCriminal Appeal No.107 and Confirmation Reference No.07 of 2014, decided on 13/05/2016.
JUDGMENT
GHULAM QADIR LEGHARI, J.---Appellant Ahsan Bangash alias Junaid was tried by learned Additional Sessions Judge-III, Karachi (Central) for offences under sections 302/324/506, P.P.C. registered at Police Station Super Market, Karachi. By Judgment dated 29.03.2014, accused Ahsan Bangash alias Junaid son of Badar Munir Bangash was convicted under section 302(b), P.P.C. and sentenced to death as Ta'zir. He was ordered to pay compensation of Rs.100,000/- (Rupees One Hundred Thousand Only) to be paid to the legal heirs of the deceased. In case of default in payment of compensation, he was ordered to suffer S.I. for six months to him. Benefit of section 382-B, P.P.C. was also extended to him. Trial Court has made reference to this Court for confirmation of death sentence. By this Single Judgment, we intend to decide the Appeal as well as Reference made by the trial Court for confirmation of death sentence.
2.Brief facts of the prosecution case are that on 04.05.2011 ASI Khadim Hussain was performing duty at Yousuf Plaza. At 09:35 hours he received wireless message from Civil Hospital, Karachi that two persons, namely, Mst. Erum and her husband Ahsan Bangash alias Junaid, residents of House No.1033, Block-16, F.B. Area, Karachi have been brought in the hospital in Burns Ward. ASI proceeded to Civil Hospital and met Dr. Shahida for recording statement of Mst. Erum. Dr. Shahida certified that Mst. Erum was fit to record her statement. Thereafter, ASI recorded statement of Mst. Erum, in which Mst. Erum alleged that her husband Ahsan Bangash alias Junaid has sprinkled petrol on her. FIR was recorded on 04.05.2011 vide Crime No.61 of 2011 under sections 324, 506, P.P.C. Ahsan Bangash alias Junaid who was injured, was arrested by the Police.
3.Investigation of aforesaid FIR was entrusted to ASI Sajjid Hussain. He visited the place of Vardat, from where he secured burnt pieces of clothes, hair and bottle containing some petrol, the same articles were sealed at spot and mashirnama of place of wardat was prepared. I.O. recorded 161, Cr.P.C. statements of the witnesses. On 05.05.2011 I.O wrote a letter to the Medical Officer for production of accused in the Court but MLO wrote a note that accused was unable to be produced in the Court. On 12.05.2011, I.O. sent three sealed parcels to the chemical examiner and made search for absconding accused Faisal Bangash. On 15.05.2011 MLO informed the police that injured Mst. Erum had expired. Thereafter, he along with a police constable reached in Civil Hospital where he completed formalities and prepared inquest report. Thereafter, he handed over dead body of Mst. Erum to her brother Irfan. Then, he returned back to the police station and added section 302, P.P.C. Further investigation was entrusted to SIP Shahbaz Hussain. He recorded 161, Cr.P.C. statements of remaining witnesses and collected chemical report. On conclusion of investigation, submitted report against accused Ahsan Bangash alias Junaid for offence under section 302/506, P.P.C. Accused Faisal was shown absconder. Subsequently, accused Faisal surrendered before the trial Court after seeking bail before arrest.
4.Charge was framed against both the accused at Exh-2. Accused pleaded not guilty and claimed to be tried.
5.At trial, prosecution examined Irfan Ali (PW-1), Anis Ahmed Khan (PW-2), Neha (PW-3) Khadim Hussain (PW-4), Dr. Jagdesh Kumar (PW 5), ASI Sajid Hussain (PW-6), Shahbaz Hussain (PW-07). Thereafter, prosecution side was closed.
6.The statements of accused were recorded under section 342, Cr.P.C. at Exhs.11 and 12 respectively, wherein they denied the prosecutions' allegations and claimed innocence. They stated that they have been falsely implicated in the case because there was some property dispute between deceased Mst. Erum, Irfan and her father. Accused Ahsan claimed that at the time of incident, he was sleeping and when he woke-up, tried to save his wife from fire and brought her first to house of in-laws in injured condition and then took her to Civil Hospital. He stated that prior to marriage, deceased was also burnt and she got treatment from PNS Shifa. Because she was harsh, she had also fractured the hand of her daughter at the house of his in-laws. He also claimed that his name is Muhammad Ahsan Bangash and not Junaid. His name as Junaid was given by Irfan and Anis Ahmed in collusion with each other. Accused Muhammad Faisal claimed that on 12th May, 2011 after getting pre-arrest bail, he joined the investigation but on account of non-payment of bribe the police has falsely implicated him in this case at the instance of Irfan and Anis. However, neither they have got examined themselves on oath nor have examined any witness in their defence.
7.Learned trial Court after hearing the defence and State counsel convicted the appellant/accused and awarded him death sentence, whereas co-accused Muhammad Faisal son of Badar Munir Bangash was acquitted by giving him benefit of doubt. Hence, this Criminal Appeal.
8.Mr. Munir Uddin, learned counsel for the appellant has contended that statement of deceased Erum cannot be termed as dying declaration as it was recorded without certificate of the doctor and it was not before any Magistrate. He further contended that PW Baby Neha is daughter of the deceased. It is further contended that at the time of incident, she was residing in the house of her maternal uncle as such she was not eye-witness of the occurrence. It is further argued that Investigation Officer had kept the case property viz bottle of the petrol and clothes of the deceased, for eight days at police station, hence tampering with the case property could not be ruled out. Lastly, he contended that the appellant had also sustained burns injuries in the incident but this fact has been suppressed throughout by the prosecution. In support of his contentions, he has placed reliance upon following authorities:-
(i)Mst. Zahida Bibi v. The State (PLD 2006 SC 263).
(ii)Ulfat Hussain v. The State (2010 SCMR 247).
(iii)Ali Bux and others v. The State (1985 MLD 697)
9.Conversely, Mr. Abrar Ali Khichi, A.P.G. assisted by the learned counsel for complainant vehemently opposed the above appeal and controverted the submissions raised by learned counsel for the appellants. He has argued that in this case eye-witness of incident was Baby Neha aged about 9 years. He further argued that dying declaration of deceased Erum was recorded in presence of witnesses Anis Ahmed and Irfan. Both witnesses deposed that Mst. Erum stated in their presence that appellant used to quarrel with her on petty matters of the house and on the day of incident appellant burnt her by sprinkling petrol on her. He further argued that before the recording of dying declaration, the Investigation Officer had moved application before the Doctor for seeking permission to record the statement of injured Erum and Doctor had endorsed on the application that she was fit to give statement. Thereafter statement/dying declaration of deceased Mst. Erum was recorded. He further argued that the defence plea had not been substantiated at the trial by the accused through independent witness. In support of his contentions, he placed reliance upon following authorities.
(i)Mudassar Ali Shah v. The State (2011 MLD 873) [Lahore]
(ii)Niaz-ud-Din and another v. The State (2011 SCMR 725)
(iii)Farmanullah v. Qadeem Khan and another (2001 SCMR 1474)
10.We have carefully heard the arguments of learned counsel for appellant and learned A.P.G assisted by Advocate for Complainant and have gone through the evidence and the case law cited by the learned counsel for the parties.
11.The fact that Mst. Erum died her unnatural death after sustaining burn injuries is not in dispute. MLO Dr. Jagdesh Kumar deposed that on 04.05.2011 he was posted as Senior Medico Legal Officer at Civil Hospital, Karachi. On that day, he was on duty at about 9:10 a.m., two injured namely Junaid and Mst. Erum were brought by Irfan Ahmed. The statement of burn percentage as per report of RMO burns ward namely S.M. Junaid son of Badar Muneer aged about 40 years, history of fire burn was about 38 percentage along with pro forma of RMO burns ward vide ML No.2263. Second injured Erum wife of Junaid aged about 32 years history of fire burn as per report of assessment of burn percentage as per report proforma of RMO burns ward was about 73 percentage vide ML No.2264 then he informed to police control vide entry No.10, ASI Villayat. He produced both MLCs as Exh 7-A to 7-D respectively. Exh: 8/F inquest report regarding the unnatural death also revealed that death of the deceased Erum occurred due to burning 73% of body.
12.Baby Neha (PW-03) sole eye-witness of incident has deposed that her father asked her mother Erum, to prepare food (Kabab), to which she replied that same were for lunch. She further deposed that her father became angry on her mother. Thereafter, her father went to top of the house, then light came, after taking dinner they went to bed and it was some dark. Thereafter, her father took her mother out of the room, in the Varanda and her mother's hand hit on the water pump due to which her hand swelled. This happened, in the morning at about 7/8 a.m. She further stated that her father came to her mother and became angry on her and thereafter went to take bath. Then her father came and said mother of baby Neha that there was petrol in his hand and he would throw it on her, then sprinkled the same on her mother. Her mother was standing near the stove and fire caught her immediately. Thereafter, her mother was brought out of the-room and again petrol was sprinkled on her. Baby Neha stated that her uncle Faisal came down and took her mother to shower to extinguish the fire and fire was extinguished. Her mother was laid on bed and her father phoned the Ambulance. Then her mother was taken to the Hospital. Baby Neha in cross-examination denied the suggestion that at the time of incident she was residing with maternal uncle (mamo).
13.ASI Khadim Hussain (PW-4) has deposed that he was posted as ASI at Police Station Yousuf Plaza on 04.05.2011. His duty hours were from 8:00 AM to 8:00 PM. At about 0935 hours he received message from Civil Hospital, Karachi, that two injured persons namely Erum wife of Ahsan Bangash and Ahsan Bangash son of Badar Munir have been burnt in the house and they have been brought at Civil Hospital, Burns Ward. He further deposed that he on receipt of such information, went to Civil Hospital, Karachi, where he met with Dr. Jagdesh Kumar at Hospital, who asked him to meet with WMO Shahida. He also gave letter to WMO for permission to record the statements of both the injured persons. Dr. Shahida endorsed on letter that injured Mst. Erum was fit to give statement. Thereafter he recorded statement of Mst. Erum at Burns Ward, Civil Hospital, Karachi. In his cross-examination, he replied that he recorded the statement of Erum within one or two hours and he first recorded the statement of accused Muhammad Ahsan Bangash and then arrested him. He denied the suggestion that he had registered false FIR at the instance of Irfan and falsely implicated the accused Muhammad Ahsan Bangash.
14.Irfan Ahmed (PW-1) has deposed that on 04.05.2011, at about 7:30 a.m. his sister Erum was brought in ambulance by her husband Ahsan Bungash to his house at F.B. Area, Karachi in burnt condition she was taken to the hospital. His father took Mst. Erum and her husband in the ambulance and went to the burns ward of Civil Hospital. He has further stated that he enquired from his sister about incident and she told him that her husband had thrown petrol on her, in kitchen and burnt her. He further deposed that on receiving such information he informed the police and the police of Police Station Yousuf Plaza arrived at burns ward Civil Hospital and recorded the statement of his sister in his presence and in the presence of his brother-in-law Anis Ahmed. He further deposed that she gave a statement that her children had asked her for Shami Kababs on which her husband became angry and gave her beating last night. She further informed him that in the next morning, her husband had thrown her out in the varanda of the house and told her that she should go to her parents' house and he would send her the Talaqnama at her parents house and would look after children himself. She further stated that when she entered into kitchen to boil milk for the children, her husband entered in the kitchen and closed the door from inside and then he sprinkled petrol on her, as she was standing near the stove, she got fire immediately, in the result, his sister Erum expired in Hospital. In his cross-examination, he has denied the suggestion that his sister received burn injuries due to the leakage of gas and denied suggestion that he wanted to usurp her share.
15.Anis Ahmed Khan (PW-2) has deposed that on 04.05.2011, at about 8:15 am he was present in his house. He received a call from Irfan, his brother-in-law that his sister Erum has been burnt, then he went to the Burns Ward of Civil Hospital, Karachi, and met Erum and in his presence, her statement was recorded by police. She stated that she had dispute with her husband Ahsan Bangash alias Junaid last night over preparation of Shami Kababs and in the morning her husband drove her out of the room and she set in varanda, she went to the kitchen to warm the milk for childdrn and her husband sprinkled petrol on her and she was burnt. He further deposed that at that time brother of her husband Faisal also came down and took her to the washroom and put water upon her. Fire was extinguished she was taken by her husband Ahsan alias Junaid to her father's house in Ambulance and from there her father shifted Mst. Erum and her husband to Civil Hospital in the burns ward. In his cross-examination, he has denied the suggestion that he was deposing falsely. However, he has admitted that the deceased and his wife were sisters inter se.
16.ASI Sajjid Hussain (PW-6) has deposed that on 04.05.2011 he was posted at Police Station Yousuf Plaza in investigation Branch. On that day, he received a copy of FIR, memo of arrest and recovery, one parcel containing burnt clothes of deceased. Accused Junaid @ Ahsan Bangesh was admitted in burns ward Civil Hospital as he was injured due to burning and on the same day he visited the place of occurrence wherefrom he secured some burnt pieces of clothes and one bottle containing some petrol, which were sealed at the spot and prepared memo of site inspection in presence of mashires. He recorded the statements of PWs under section 161, Cr.P.C., on 05.05.2011 he issued letter to the MLO for producing accused, in the Court on which the MLO wrote that the accused was not fit to be produced before Court. On 15.05.2011 the MLO informed police that injured Erum has expired. Thereafter he along with constable reached at Hospital and issued letter to the WMO for conducting postmortem. I.O. prepared inquest report in presence of mashirs. Thereafter, I.O. handed over the dead body to brother of deceased namely Irfan. He returned back to PS and inserted section 302, P.P.C. Further investigation of this crime was entrusted to SIP Shahbaz on 16.05.2011. In his cross-examination, he denied suggestion that he has not properly investigated the case and the accused Faisal was innocent in the case.
17.SIP Shahbaz Hussain (PW-7) has deposed that on 16.05.2011 he received complete police file and accused Junaid @ Ahsan Bangesh was admitted in burns ward Civil Hospital as he had burn wounds, while another accused could not be arrested and was shown as absconder. After usual investigation challan was submitted before the competent Court of law under section 302(b), P.P.C. He had produced positive chemical examiner report at Exh.9/A. In his cross-examination, he has admitted that postmortem examination of deceased was not conducted.
18.The first contention of the learned counsel for the appellant is that the statement of deceased Erum cannot be termed as 'dying declaration' as it was recorded without certificate of the doctor and it was not recorded before Magistrate, hence the dying declaration cannot be relied. The contention of the learned counsel for appellant is without substance, as per statement of ASI Sajid Hussain on receiving information about burning of Erum and her Husband, he went to the Hospital and he gave application to the doctor for permission to record the statement of the injured, doctor endorsed on the application fit, then he recorded the statement of injured Erum in presence of PWs Irfan and Anis Ahmed. PWs Irfan and Anis Ahmed have fully supported the dying declaration made by deceased Erum written by ASI Khadim Hussain and deceased has fully implicated the accused in this case. In the case of Farmanullah v. Qadeem Khan and another reported in 2001 SCMR 1474, the principles of recording dying declaration have been laid down as follows.
"7. A bare perusal of the said Article would indicate that there is no ambiguity in it and it is a combination of the following ingredients and the language as employed does not permit to add, delete or insert anything new:-
(a)It relates to the cause of death.
(b)It includes the circumstances which resulted into death.
(c)It is relevant when the cause of declarant's death comes into question whatever may be the nature of proceedings irrespective of the fact whether such statement was made under the expectation of death or otherwise?
The abovementioned ingredients were discussed by various higher Courts in different cases which resulted into formulation of acknowledged and time tested principles which are mentioned hereinbelow:-
(i)There is no specified forum before whom such declaration is required to be made.
(ii)There is no bar that it cannot be made before a private person.
(iii)There is no legal requirement that the declaration must be read over or it must be signed by its maker.
(iv)It should be influenced free.
(v)In order to prove such declaration the person by whom it was recorded should be examined.
(vi)Such declaration becomes substantive evidence when it is proved that it was made by the deceased.
(vii)Corroboration of a dying declaration is not a rule of law, but requirement of prudence.
(viii)Such declaration when proved by cogent evidence can be made a base for conviction."
19.In view of the above cited authority, there was no material illegality in recording the dying declaration of Mst. Erum by ASI Khalid Hussain in presence of PWs Irfan and Anis Ahmed, when W.M.O found Mst. Erum fit for recording her statement. We are fully satisfied that dying declaration has been made by the deceased Erum voluntarily without any probability of promptitude as to cause of her death and the same has been reduced in writing by ASI Khadim Hussain, who had no enmity with accused thus, we find no reason to discard the dying declaration as made by deceased Erum duly supported and corroborated by the above said witnesses and WMO. Moreover, Baby Neha had witnessed the incident and has stated that her father quarreled with her mother and sprinkled petrol on her mother, who was standing near the stove and the fire caught her mother. Her evidence was straight forward and trustworthy.
20.The second contention of learned counsel for the appellant/ accused is that the alleged eye-witness Baby Neha was residing in the house of her maternal uncle at the time of incident and she was not eye-witness of the incident.
21.From the perusal of the evidence of witness baby Neha, it transpired that baby had given the detail ocular account of the incident, which demonstrated that she had witnessed the occurrence and she has disclosed the minor details of occurrence whatever happened in her presence. Presence of baby Neha in the house of her parents was not doubtful. PW Anis Ahmed has also stated that on the day of incident in the morning time he received a call from his bother-in-law Irfan that his sister Erum has been burnt and his father had taken her to the hospital and asked him to go to the house of Erum to see how her children were. He went there, one mohallah people informed him that three children of Erum had been taken to the House of Faisal brother of Husband of Erum. Then he went to the house of Faisal, from Faisal and his wife, took the children and brought them to the house of her father-in-law. It reveals that all the three children including the Neha were present in the house of accused at the time of incident and Neha had witnessed the occurrence. As regards to the evidence of the child witness, the trial Court had taken all possible and due steps to judge the level of her intelligence before proceeding to record her evidence. It may be observed that mere fact that witness was tendered age does not ipso facto make her evidence un-liable. It is true that while relying upon the evidence of child witness, close and careful scrutiny is required, which in the instant case was duly adopted by the trial court and not to that effect was also recorded by the trial Court in the deposition about the satisfaction of the court. Moreover under Article 3 of the Qunun-e-Shahadat Order, 1984, a child if gave statement which indicated that such witness understood the questions and gave answers intelligently and rationally, the same could not be ignored due to the tender age of the witness. The reliance is placed on the case Muddsar Ali v. The State reported in 2011 MLD 873, it is held that a child in the age of 8/9 years if gives statement which indicates that the witness under stands the questions and gives answers intelligent and rationally then the testimony cannot be ignored merely due to tender age. In the present case, child witness is daughter of accused, her evidence is quite reliable and trustworthy.
22.The third contention of the learned counsel for the appellant/accused is that Investigation Officer had kept the case property viz. bottle of the petrol and clothes of the deceased eight days at police station and manipulation and tampering with the case property could not be ruled out. The contention of the learned counsel for the appellant/accused is without legal force, as the learned defence counsel had not cross examined the Investigation Officer ASI Sajjad Hussain that the property was tampered or substituted while perusal of the chemical report produced by SIP Shahbaz Hussain at Exh.9-A, which shows two sealed parcels and one bottle were received by the office of the Chemical examiner by hand of the ASI Sajjid Hussain on 12.05.2011. Further, it is mentioned that two sealed parcels and one bottle each with three sealed respectively, seals perfect and as per copy sent. It is clear that seals were intact and articles were not tampered or substituted and the question of manipulation and tampering with the sample at the appellate stage is without substance, which was not agitated at the time of the trial.
23.Learned counsel for the appellant/accused lastly contended that the appellant had also sustained burn injuries in the incident but this fact has been suppressed throughout the prosecution story. The contention of the learned counsel for the appellant requires consideration as first of all, accused quarreled with his wife deceased Erum and-sprinkled petrol and set her fire on her and when he saw that she was burning and screaming then he realized his wrong act and tried to extinguish the fire of deceased Erum in struggle, he also sustained burn injuries and according to medical certificate appellant was burnt 38% however; the appellant cannot be discharged from the charge of burning and murdering his wife.
24.We have carefully examined the statement ASI Khadim Hussain, who had stated that he received information from Hospital that two persons Erum and her husband have been burnt and were brought at the Hospital he went to the Hospital and gave application to doctor for permission to record the statement of the injured, doctor had endorsed on his application fit for recording of statement, thereafter, he recorded the statement of victim deceased Mst. Erum, who had stated in her dying declaration that on 04.05.2011 at about 0935 hours the accused Ahsan Bangash quarreled with her on house hold matters and used filthy language and locked her in kitchen and set her on fire by sprinkling petrol, as such, she raised cries, whereupon her brother in law Faisal reached there and extinguished fire. Baby Neha who was present in the house at the time of incident she was natural witness of the occurrence and had witnessed the occurrence and narrated the incident in a manner as disclosed by the deceased Erum in her dying declaration and she has fully implicated accused who is also her father. PWs Anis Ahmed and Irfan only were present in the Hospital in the Burns Ward and fully corroborated the version of ASI Khalid Hussain that deceased recorded her statement in their presence. Exh: 8/F inquest report regarding the unnatural death of deceased Erum also reveals that death of the deceased Erum occurred due to burning 73% of body. Defence counsel had cross-examined PWs Baby Neha ASI Khalid Hussain, Irfan and Anis Ahmed at length but he could not shatter the prosecution evidence nor he could get any reply in favour of accused from which it be presumed that accused had not sprinkled petrol on the deceased and not set her on fire.
25.The dying declaration of deceased, ocular statements of baby Neha, ASI Khalid Hussain, Irfan and Anis have been fully corroborated by medical evidence. Chemical report shows that petrol was detected from the pieces of clothes, few hair and bottle, contained 10 ml. petrol, hence the Chemical report also supports that accused Muhammad Ahsan Bangash sprinkled the petrol on deceased Eram and set her on fire, in the result she died. The reliance is placed on case of Farmalullah v. Qadeem Khan, reported in 2001 SCMR 1474, wherein it is held s follows:-
"Dying declaration once believed is not legally required to be supported by independent corroboration, specifically in the absence of allegation of the substitution of real culprit with the accused."
26.This is a case of result of quarrel between husband and wife and accused/husband became emotional and sprinkled petrol on his wife and set her on fire. Thereafter, he repented and realized his wrong act and tried to extinguish fire of the deceased Erum to save her life and in the result he was also burnt to the extent of 38%. Moreover, he is father of three children and the mother of the children has been murdered. Hence reliance is placed on case Muddasar Ali v. The State, reported in 2011 MLD 873, it is held as follows.
"The motive, therefore, is not proved. What happened immediately before the occurrence is not unveiled. P.W.11 has stated that her father had shifted here mother to the hospital by carrying her on his shoulders. This shows that after the occurrence he did repent and tried to save her life. It is also obvious that the occurrence took place in heat of passions for the reasons, which are not explicitly brought on the record. These are strong mitigating circumstances, we are of the considered view that the sentence awarded to the appellant is no the higher side and harsh although he is responsible for causing Qatl-i-amd of the deceased. Under the circumstances and for the reasons elaborated above, to our considered view the imprisonment for life would meet the ends of justice".
27.We have minutely gone through the case law cited by learned counsel for the appellant but facts and circumstances of the same are distinguishable from the facts and circumstances of the instant appeal, therefore, the same are not applicable to the present case.
28.We have come to conclusion that prosecution has proved its case against appellant Muhammad Ahsan Bangash alias Junaid beyond any shadow of doubt. Trial Court has rightly appreciated evidence according to the principles of law.
29.We have given our anxious consideration to the quantum of sentence. It is the matter of record that deceased Mst. Erum left behind three minor children. Appellant is father of these children, under the law he has to maintain his children. It has also come on record that appellant immediately after the incident did repent and realized wrong act and tried to extinguish the fire, in the result he sustained bum wounds. Actual and immediate cause of occurrence has not been clarified by the complainant party during trial. While relying upon the dictum laid down by the Honourable Supreme Court in the case of Abbas Hussain and another v. The State and another (1992 SCMR 320) and Mudassar Ali Shah v. The State (2011 MLD 873) we have come to the conclusion that these are mitigating circumstances, therefore, we convert sentence of death to imprisonment for life.
29(sic.) As a sequel the conviction recorded by trial Court is maintained. However, for the aforesaid reasons, we modify and covert the death sentence to imprisonment for life. Compensation as ordered by trial Court is maintained. Accordingly, the instant appeal is partly allowed. Death reference made by trial Court is answered in negative. Appellant shall be extended benefit of section 382-B, Cr.P.C.
MH/A-65/Sindh Order accordingly.
(a) Penal Code (XLV of 1860)---
----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 49---Qatl-i-amd---Appreciation of evidence--- Sentence, reduction in---Dying declaration---Scope---Accused was charged for causing death of his wife by setting her on fire---Trial Court relied upon dying declaration of deceased and testimony of minor daughter of accused and sentenced him to death--- Validity---No material irregularity was noticed in recording dying declaration of deceased by investigating officer in presence of prosecution witnesses when doctor found her fit for recording her statement---Dying declaration made by deceased was voluntary without any probability of prompting as to cause of her death and the same was recorded in writing by investigating officer who had no enmity with accused---High Court declined to discard dying declaration as made by deceased duly supported and corroborated by evidence of prosecution witnesses and the doctor---Daughter of accused had witnessed the incident and stated that her father quarrelled with her mother and sprinkled petrol on her mother who was standing near stove and fire caught her mother and such evidence was straightforward and trustworthy---Accused immediately after the incident repented and realized wrong act and tried to extinguish the fire and in the result he sustained burn wounds--- Actual and immediate cause of occurrence was not clarified by complainant during trial--- High Court converted sentence of death into imprisonment for life as such were mitigating circumstances--- Appeal was allowed accordingly.
Mst. Zahida Bibi v. The State PLD 2006 SC 263; Ulfat Hussain v. The State 2010 SCMR 247; Ali Bux and others v. The State 1985 MLD 697; Niaz-ud-Din and another v. The State 2011 SCMR 725 and Farmanullah v. Qadeem Khan and another 2001 SCMR 1474 ref.
Abbas Hussain and another v. The State 1992 SCMR 320 rel.
(b) Qanun-e-Shahadat (10 of 1984)---
----Art. 3---Testimony of child---Principle---If child gives statement which indicates that such witness understands questions and has given answers intelligently and rationally, the same cannot be ignored due to tender age of witness.
Mudassar Ali Shah v. The State 2011 MLD 873 rel.
(c) Criminal trial---
----Incriminating articles---Tampering with---When seals were intact and articles were not tampered or substituted and question of manipulation and tampering with the sample at appellate stage was without substance, which was not agitated at the time of trial.
Munir Uddin for Appellant.
Abrar Ali Khichi, A.P.G. for the State.
Ahtesham Ullah for the Complainant.
Date of hearing: 25th April, 2016.
JUDGMENT
GHULAM QADIR LEGHARI, J.---Appellant Ahsan Bangash alias Junaid was tried by learned Additional Sessions Judge-III, Karachi (Central) for offences under sections 302/324/506, P.P.C. registered at Police Station Super Market, Karachi. By Judgment dated 29.03.2014, accused Ahsan Bangash alias Junaid son of Badar Munir Bangash was convicted under section 302(b), P.P.C. and sentenced to death as Ta'zir. He was ordered to pay compensation of Rs.100,000/- (Rupees One Hundred Thousand Only) to be paid to the legal heirs of the deceased. In case of default in payment of compensation, he was ordered to suffer S.I. for six months to him. Benefit of section 382-B, P.P.C. was also extended to him. Trial Court has made reference to this Court for confirmation of death sentence. By this Single Judgment, we intend to decide the Appeal as well as Reference made by the trial Court for confirmation of death sentence.
2.Brief facts of the prosecution case are that on 04.05.2011 ASI Khadim Hussain was performing duty at Yousuf Plaza. At 09:35 hours he received wireless message from Civil Hospital, Karachi that two persons, namely, Mst. Erum and her husband Ahsan Bangash alias Junaid, residents of House No.1033, Block-16, F.B. Area, Karachi have been brought in the hospital in Burns Ward. ASI proceeded to Civil Hospital and met Dr. Shahida for recording statement of Mst. Erum. Dr. Shahida certified that Mst. Erum was fit to record her statement. Thereafter, ASI recorded statement of Mst. Erum, in which Mst. Erum alleged that her husband Ahsan Bangash alias Junaid has sprinkled petrol on her. FIR was recorded on 04.05.2011 vide Crime No.61 of 2011 under sections 324, 506, P.P.C. Ahsan Bangash alias Junaid who was injured, was arrested by the Police.
3.Investigation of aforesaid FIR was entrusted to ASI Sajjid Hussain. He visited the place of Vardat, from where he secured burnt pieces of clothes, hair and bottle containing some petrol, the same articles were sealed at spot and mashirnama of place of wardat was prepared. I.O. recorded 161, Cr.P.C. statements of the witnesses. On 05.05.2011 I.O wrote a letter to the Medical Officer for production of accused in the Court but MLO wrote a note that accused was unable to be produced in the Court. On 12.05.2011, I.O. sent three sealed parcels to the chemical examiner and made search for absconding accused Faisal Bangash. On 15.05.2011 MLO informed the police that injured Mst. Erum had expired. Thereafter, he along with a police constable reached in Civil Hospital where he completed formalities and prepared inquest report. Thereafter, he handed over dead body of Mst. Erum to her brother Irfan. Then, he returned back to the police station and added section 302, P.P.C. Further investigation was entrusted to SIP Shahbaz Hussain. He recorded 161, Cr.P.C. statements of remaining witnesses and collected chemical report. On conclusion of investigation, submitted report against accused Ahsan Bangash alias Junaid for offence under section 302/506, P.P.C. Accused Faisal was shown absconder. Subsequently, accused Faisal surrendered before the trial Court after seeking bail before arrest.
4.Charge was framed against both the accused at Exh-2. Accused pleaded not guilty and claimed to be tried.
5.At trial, prosecution examined Irfan Ali (PW-1), Anis Ahmed Khan (PW-2), Neha (PW-3) Khadim Hussain (PW-4), Dr. Jagdesh Kumar (PW 5), ASI Sajid Hussain (PW-6), Shahbaz Hussain (PW-07). Thereafter, prosecution side was closed.
6.The statements of accused were recorded under section 342, Cr.P.C. at Exhs.11 and 12 respectively, wherein they denied the prosecutions' allegations and claimed innocence. They stated that they have been falsely implicated in the case because there was some property dispute between deceased Mst. Erum, Irfan and her father. Accused Ahsan claimed that at the time of incident, he was sleeping and when he woke-up, tried to save his wife from fire and brought her first to house of in-laws in injured condition and then took her to Civil Hospital. He stated that prior to marriage, deceased was also burnt and she got treatment from PNS Shifa. Because she was harsh, she had also fractured the hand of her daughter at the house of his in-laws. He also claimed that his name is Muhammad Ahsan Bangash and not Junaid. His name as Junaid was given by Irfan and Anis Ahmed in collusion with each other. Accused Muhammad Faisal claimed that on 12th May, 2011 after getting pre-arrest bail, he joined the investigation but on account of non-payment of bribe the police has falsely implicated him in this case at the instance of Irfan and Anis. However, neither they have got examined themselves on oath nor have examined any witness in their defence.
7.Learned trial Court after hearing the defence and State counsel convicted the appellant/accused and awarded him death sentence, whereas co-accused Muhammad Faisal son of Badar Munir Bangash was acquitted by giving him benefit of doubt. Hence, this Criminal Appeal.
8.Mr. Munir Uddin, learned counsel for the appellant has contended that statement of deceased Erum cannot be termed as dying declaration as it was recorded without certificate of the doctor and it was not before any Magistrate. He further contended that PW Baby Neha is daughter of the deceased. It is further contended that at the time of incident, she was residing in the house of her maternal uncle as such she was not eye-witness of the occurrence. It is further argued that Investigation Officer had kept the case property viz bottle of the petrol and clothes of the deceased, for eight days at police station, hence tampering with the case property could not be ruled out. Lastly, he contended that the appellant had also sustained burns injuries in the incident but this fact has been suppressed throughout by the prosecution. In support of his contentions, he has placed reliance upon following authorities:-
(i)Mst. Zahida Bibi v. The State (PLD 2006 SC 263).
(ii)Ulfat Hussain v. The State (2010 SCMR 247).
(iii)Ali Bux and others v. The State (1985 MLD 697)
9.Conversely, Mr. Abrar Ali Khichi, A.P.G. assisted by the learned counsel for complainant vehemently opposed the above appeal and controverted the submissions raised by learned counsel for the appellants. He has argued that in this case eye-witness of incident was Baby Neha aged about 9 years. He further argued that dying declaration of deceased Erum was recorded in presence of witnesses Anis Ahmed and Irfan. Both witnesses deposed that Mst. Erum stated in their presence that appellant used to quarrel with her on petty matters of the house and on the day of incident appellant burnt her by sprinkling petrol on her. He further argued that before the recording of dying declaration, the Investigation Officer had moved application before the Doctor for seeking permission to record the statement of injured Erum and Doctor had endorsed on the application that she was fit to give statement. Thereafter statement/dying declaration of deceased Mst. Erum was recorded. He further argued that the defence plea had not been substantiated at the trial by the accused through independent witness. In support of his contentions, he placed reliance upon following authorities.
(i)Mudassar Ali Shah v. The State (2011 MLD 873) [Lahore]
(ii)Niaz-ud-Din and another v. The State (2011 SCMR 725)
(iii)Farmanullah v. Qadeem Khan and another (2001 SCMR 1474)
10.We have carefully heard the arguments of learned counsel for appellant and learned A.P.G assisted by Advocate for Complainant and have gone through the evidence and the case law cited by the learned counsel for the parties.
11.The fact that Mst. Erum died her unnatural death after sustaining burn injuries is not in dispute. MLO Dr. Jagdesh Kumar deposed that on 04.05.2011 he was posted as Senior Medico Legal Officer at Civil Hospital, Karachi. On that day, he was on duty at about 9:10 a.m., two injured namely Junaid and Mst. Erum were brought by Irfan Ahmed. The statement of burn percentage as per report of RMO burns ward namely S.M. Junaid son of Badar Muneer aged about 40 years, history of fire burn was about 38 percentage along with pro forma of RMO burns ward vide ML No.2263. Second injured Erum wife of Junaid aged about 32 years history of fire burn as per report of assessment of burn percentage as per report proforma of RMO burns ward was about 73 percentage vide ML No.2264 then he informed to police control vide entry No.10, ASI Villayat. He produced both MLCs as Exh 7-A to 7-D respectively. Exh: 8/F inquest report regarding the unnatural death also revealed that death of the deceased Erum occurred due to burning 73% of body.
12.Baby Neha (PW-03) sole eye-witness of incident has deposed that her father asked her mother Erum, to prepare food (Kabab), to which she replied that same were for lunch. She further deposed that her father became angry on her mother. Thereafter, her father went to top of the house, then light came, after taking dinner they went to bed and it was some dark. Thereafter, her father took her mother out of the room, in the Varanda and her mother's hand hit on the water pump due to which her hand swelled. This happened, in the morning at about 7/8 a.m. She further stated that her father came to her mother and became angry on her and thereafter went to take bath. Then her father came and said mother of baby Neha that there was petrol in his hand and he would throw it on her, then sprinkled the same on her mother. Her mother was standing near the stove and fire caught her immediately. Thereafter, her mother was brought out of the-room and again petrol was sprinkled on her. Baby Neha stated that her uncle Faisal came down and took her mother to shower to extinguish the fire and fire was extinguished. Her mother was laid on bed and her father phoned the Ambulance. Then her mother was taken to the Hospital. Baby Neha in cross-examination denied the suggestion that at the time of incident she was residing with maternal uncle (mamo).
13.ASI Khadim Hussain (PW-4) has deposed that he was posted as ASI at Police Station Yousuf Plaza on 04.05.2011. His duty hours were from 8:00 AM to 8:00 PM. At about 0935 hours he received message from Civil Hospital, Karachi, that two injured persons namely Erum wife of Ahsan Bangash and Ahsan Bangash son of Badar Munir have been burnt in the house and they have been brought at Civil Hospital, Burns Ward. He further deposed that he on receipt of such information, went to Civil Hospital, Karachi, where he met with Dr. Jagdesh Kumar at Hospital, who asked him to meet with WMO Shahida. He also gave letter to WMO for permission to record the statements of both the injured persons. Dr. Shahida endorsed on letter that injured Mst. Erum was fit to give statement. Thereafter he recorded statement of Mst. Erum at Burns Ward, Civil Hospital, Karachi. In his cross-examination, he replied that he recorded the statement of Erum within one or two hours and he first recorded the statement of accused Muhammad Ahsan Bangash and then arrested him. He denied the suggestion that he had registered false FIR at the instance of Irfan and falsely implicated the accused Muhammad Ahsan Bangash.
14.Irfan Ahmed (PW-1) has deposed that on 04.05.2011, at about 7:30 a.m. his sister Erum was brought in ambulance by her husband Ahsan Bungash to his house at F.B. Area, Karachi in burnt condition she was taken to the hospital. His father took Mst. Erum and her husband in the ambulance and went to the burns ward of Civil Hospital. He has further stated that he enquired from his sister about incident and she told him that her husband had thrown petrol on her, in kitchen and burnt her. He further deposed that on receiving such information he informed the police and the police of Police Station Yousuf Plaza arrived at burns ward Civil Hospital and recorded the statement of his sister in his presence and in the presence of his brother-in-law Anis Ahmed. He further deposed that she gave a statement that her children had asked her for Shami Kababs on which her husband became angry and gave her beating last night. She further informed him that in the next morning, her husband had thrown her out in the varanda of the house and told her that she should go to her parents' house and he would send her the Talaqnama at her parents house and would look after children himself. She further stated that when she entered into kitchen to boil milk for the children, her husband entered in the kitchen and closed the door from inside and then he sprinkled petrol on her, as she was standing near the stove, she got fire immediately, in the result, his sister Erum expired in Hospital. In his cross-examination, he has denied the suggestion that his sister received burn injuries due to the leakage of gas and denied suggestion that he wanted to usurp her share.
15.Anis Ahmed Khan (PW-2) has deposed that on 04.05.2011, at about 8:15 am he was present in his house. He received a call from Irfan, his brother-in-law that his sister Erum has been burnt, then he went to the Burns Ward of Civil Hospital, Karachi, and met Erum and in his presence, her statement was recorded by police. She stated that she had dispute with her husband Ahsan Bangash alias Junaid last night over preparation of Shami Kababs and in the morning her husband drove her out of the room and she set in varanda, she went to the kitchen to warm the milk for childdrn and her husband sprinkled petrol on her and she was burnt. He further deposed that at that time brother of her husband Faisal also came down and took her to the washroom and put water upon her. Fire was extinguished she was taken by her husband Ahsan alias Junaid to her father's house in Ambulance and from there her father shifted Mst. Erum and her husband to Civil Hospital in the burns ward. In his cross-examination, he has denied the suggestion that he was deposing falsely. However, he has admitted that the deceased and his wife were sisters inter se.
16.ASI Sajjid Hussain (PW-6) has deposed that on 04.05.2011 he was posted at Police Station Yousuf Plaza in investigation Branch. On that day, he received a copy of FIR, memo of arrest and recovery, one parcel containing burnt clothes of deceased. Accused Junaid @ Ahsan Bangesh was admitted in burns ward Civil Hospital as he was injured due to burning and on the same day he visited the place of occurrence wherefrom he secured some burnt pieces of clothes and one bottle containing some petrol, which were sealed at the spot and prepared memo of site inspection in presence of mashires. He recorded the statements of PWs under section 161, Cr.P.C., on 05.05.2011 he issued letter to the MLO for producing accused, in the Court on which the MLO wrote that the accused was not fit to be produced before Court. On 15.05.2011 the MLO informed police that injured Erum has expired. Thereafter he along with constable reached at Hospital and issued letter to the WMO for conducting postmortem. I.O. prepared inquest report in presence of mashirs. Thereafter, I.O. handed over the dead body to brother of deceased namely Irfan. He returned back to PS and inserted section 302, P.P.C. Further investigation of this crime was entrusted to SIP Shahbaz on 16.05.2011. In his cross-examination, he denied suggestion that he has not properly investigated the case and the accused Faisal was innocent in the case.
17.SIP Shahbaz Hussain (PW-7) has deposed that on 16.05.2011 he received complete police file and accused Junaid @ Ahsan Bangesh was admitted in burns ward Civil Hospital as he had burn wounds, while another accused could not be arrested and was shown as absconder. After usual investigation challan was submitted before the competent Court of law under section 302(b), P.P.C. He had produced positive chemical examiner report at Exh.9/A. In his cross-examination, he has admitted that postmortem examination of deceased was not conducted.
18.The first contention of the learned counsel for the appellant is that the statement of deceased Erum cannot be termed as 'dying declaration' as it was recorded without certificate of the doctor and it was not recorded before Magistrate, hence the dying declaration cannot be relied. The contention of the learned counsel for appellant is without substance, as per statement of ASI Sajid Hussain on receiving information about burning of Erum and her Husband, he went to the Hospital and he gave application to the doctor for permission to record the statement of the injured, doctor endorsed on the application fit, then he recorded the statement of injured Erum in presence of PWs Irfan and Anis Ahmed. PWs Irfan and Anis Ahmed have fully supported the dying declaration made by deceased Erum written by ASI Khadim Hussain and deceased has fully implicated the accused in this case. In the case of Farmanullah v. Qadeem Khan and another reported in 2001 SCMR 1474, the principles of recording dying declaration have been laid down as follows.
"7. A bare perusal of the said Article would indicate that there is no ambiguity in it and it is a combination of the following ingredients and the language as employed does not permit to add, delete or insert anything new:-
(a)It relates to the cause of death.
(b)It includes the circumstances which resulted into death.
(c)It is relevant when the cause of declarant's death comes into question whatever may be the nature of proceedings irrespective of the fact whether such statement was made under the expectation of death or otherwise?
The abovementioned ingredients were discussed by various higher Courts in different cases which resulted into formulation of acknowledged and time tested principles which are mentioned hereinbelow:-
(i)There is no specified forum before whom such declaration is required to be made.
(ii)There is no bar that it cannot be made before a private person.
(iii)There is no legal requirement that the declaration must be read over or it must be signed by its maker.
(iv)It should be influenced free.
(v)In order to prove such declaration the person by whom it was recorded should be examined.
(vi)Such declaration becomes substantive evidence when it is proved that it was made by the deceased.
(vii)Corroboration of a dying declaration is not a rule of law, but requirement of prudence.
(viii)Such declaration when proved by cogent evidence can be made a base for conviction."
19.In view of the above cited authority, there was no material illegality in recording the dying declaration of Mst. Erum by ASI Khalid Hussain in presence of PWs Irfan and Anis Ahmed, when W.M.O found Mst. Erum fit for recording her statement. We are fully satisfied that dying declaration has been made by the deceased Erum voluntarily without any probability of promptitude as to cause of her death and the same has been reduced in writing by ASI Khadim Hussain, who had no enmity with accused thus, we find no reason to discard the dying declaration as made by deceased Erum duly supported and corroborated by the above said witnesses and WMO. Moreover, Baby Neha had witnessed the incident and has stated that her father quarreled with her mother and sprinkled petrol on her mother, who was standing near the stove and the fire caught her mother. Her evidence was straight forward and trustworthy.
20.The second contention of learned counsel for the appellant/ accused is that the alleged eye-witness Baby Neha was residing in the house of her maternal uncle at the time of incident and she was not eye-witness of the incident.
21.From the perusal of the evidence of witness baby Neha, it transpired that baby had given the detail ocular account of the incident, which demonstrated that she had witnessed the occurrence and she has disclosed the minor details of occurrence whatever happened in her presence. Presence of baby Neha in the house of her parents was not doubtful. PW Anis Ahmed has also stated that on the day of incident in the morning time he received a call from his bother-in-law Irfan that his sister Erum has been burnt and his father had taken her to the hospital and asked him to go to the house of Erum to see how her children were. He went there, one mohallah people informed him that three children of Erum had been taken to the House of Faisal brother of Husband of Erum. Then he went to the house of Faisal, from Faisal and his wife, took the children and brought them to the house of her father-in-law. It reveals that all the three children including the Neha were present in the house of accused at the time of incident and Neha had witnessed the occurrence. As regards to the evidence of the child witness, the trial Court had taken all possible and due steps to judge the level of her intelligence before proceeding to record her evidence. It may be observed that mere fact that witness was tendered age does not ipso facto make her evidence un-liable. It is true that while relying upon the evidence of child witness, close and careful scrutiny is required, which in the instant case was duly adopted by the trial court and not to that effect was also recorded by the trial Court in the deposition about the satisfaction of the court. Moreover under Article 3 of the Qunun-e-Shahadat Order, 1984, a child if gave statement which indicated that such witness understood the questions and gave answers intelligently and rationally, the same could not be ignored due to the tender age of the witness. The reliance is placed on the case Muddsar Ali v. The State reported in 2011 MLD 873, it is held that a child in the age of 8/9 years if gives statement which indicates that the witness under stands the questions and gives answers intelligent and rationally then the testimony cannot be ignored merely due to tender age. In the present case, child witness is daughter of accused, her evidence is quite reliable and trustworthy.
22.The third contention of the learned counsel for the appellant/accused is that Investigation Officer had kept the case property viz. bottle of the petrol and clothes of the deceased eight days at police station and manipulation and tampering with the case property could not be ruled out. The contention of the learned counsel for the appellant/accused is without legal force, as the learned defence counsel had not cross examined the Investigation Officer ASI Sajjad Hussain that the property was tampered or substituted while perusal of the chemical report produced by SIP Shahbaz Hussain at Exh.9-A, which shows two sealed parcels and one bottle were received by the office of the Chemical examiner by hand of the ASI Sajjid Hussain on 12.05.2011. Further, it is mentioned that two sealed parcels and one bottle each with three sealed respectively, seals perfect and as per copy sent. It is clear that seals were intact and articles were not tampered or substituted and the question of manipulation and tampering with the sample at the appellate stage is without substance, which was not agitated at the time of the trial.
23.Learned counsel for the appellant/accused lastly contended that the appellant had also sustained burn injuries in the incident but this fact has been suppressed throughout the prosecution story. The contention of the learned counsel for the appellant requires consideration as first of all, accused quarreled with his wife deceased Erum and-sprinkled petrol and set her fire on her and when he saw that she was burning and screaming then he realized his wrong act and tried to extinguish the fire of deceased Erum in struggle, he also sustained burn injuries and according to medical certificate appellant was burnt 38% however; the appellant cannot be discharged from the charge of burning and murdering his wife.
24.We have carefully examined the statement ASI Khadim Hussain, who had stated that he received information from Hospital that two persons Erum and her husband have been burnt and were brought at the Hospital he went to the Hospital and gave application to doctor for permission to record the statement of the injured, doctor had endorsed on his application fit for recording of statement, thereafter, he recorded the statement of victim deceased Mst. Erum, who had stated in her dying declaration that on 04.05.2011 at about 0935 hours the accused Ahsan Bangash quarreled with her on house hold matters and used filthy language and locked her in kitchen and set her on fire by sprinkling petrol, as such, she raised cries, whereupon her brother in law Faisal reached there and extinguished fire. Baby Neha who was present in the house at the time of incident she was natural witness of the occurrence and had witnessed the occurrence and narrated the incident in a manner as disclosed by the deceased Erum in her dying declaration and she has fully implicated accused who is also her father. PWs Anis Ahmed and Irfan only were present in the Hospital in the Burns Ward and fully corroborated the version of ASI Khalid Hussain that deceased recorded her statement in their presence. Exh: 8/F inquest report regarding the unnatural death of deceased Erum also reveals that death of the deceased Erum occurred due to burning 73% of body. Defence counsel had cross-examined PWs Baby Neha ASI Khalid Hussain, Irfan and Anis Ahmed at length but he could not shatter the prosecution evidence nor he could get any reply in favour of accused from which it be presumed that accused had not sprinkled petrol on the deceased and not set her on fire.
25.The dying declaration of deceased, ocular statements of baby Neha, ASI Khalid Hussain, Irfan and Anis have been fully corroborated by medical evidence. Chemical report shows that petrol was detected from the pieces of clothes, few hair and bottle, contained 10 ml. petrol, hence the Chemical report also supports that accused Muhammad Ahsan Bangash sprinkled the petrol on deceased Eram and set her on fire, in the result she died. The reliance is placed on case of Farmalullah v. Qadeem Khan, reported in 2001 SCMR 1474, wherein it is held s follows:-
"Dying declaration once believed is not legally required to be supported by independent corroboration, specifically in the absence of allegation of the substitution of real culprit with the accused."
26.This is a case of result of quarrel between husband and wife and accused/husband became emotional and sprinkled petrol on his wife and set her on fire. Thereafter, he repented and realized his wrong act and tried to extinguish fire of the deceased Erum to save her life and in the result he was also burnt to the extent of 38%. Moreover, he is father of three children and the mother of the children has been murdered. Hence reliance is placed on case Muddasar Ali v. The State, reported in 2011 MLD 873, it is held as follows.
"The motive, therefore, is not proved. What happened immediately before the occurrence is not unveiled. P.W.11 has stated that her father had shifted here mother to the hospital by carrying her on his shoulders. This shows that after the occurrence he did repent and tried to save her life. It is also obvious that the occurrence took place in heat of passions for the reasons, which are not explicitly brought on the record. These are strong mitigating circumstances, we are of the considered view that the sentence awarded to the appellant is no the higher side and harsh although he is responsible for causing Qatl-i-amd of the deceased. Under the circumstances and for the reasons elaborated above, to our considered view the imprisonment for life would meet the ends of justice".
27.We have minutely gone through the case law cited by learned counsel for the appellant but facts and circumstances of the same are distinguishable from the facts and circumstances of the instant appeal, therefore, the same are not applicable to the present case.
28.We have come to conclusion that prosecution has proved its case against appellant Muhammad Ahsan Bangash alias Junaid beyond any shadow of doubt. Trial Court has rightly appreciated evidence according to the principles of law.
29.We have given our anxious consideration to the quantum of sentence. It is the matter of record that deceased Mst. Erum left behind three minor children. Appellant is father of these children, under the law he has to maintain his children. It has also come on record that appellant immediately after the incident did repent and realized wrong act and tried to extinguish the fire, in the result he sustained bum wounds. Actual and immediate cause of occurrence has not been clarified by the complainant party during trial. While relying upon the dictum laid down by the Honourable Supreme Court in the case of Abbas Hussain and another v. The State and another (1992 SCMR 320) and Mudassar Ali Shah v. The State (2011 MLD 873) we have come to the conclusion that these are mitigating circumstances, therefore, we convert sentence of death to imprisonment for life.
29(sic.) As a sequel the conviction recorded by trial Court is maintained. However, for the aforesaid reasons, we modify and covert the death sentence to imprisonment for life. Compensation as ordered by trial Court is maintained. Accordingly, the instant appeal is partly allowed. Death reference made by trial Court is answered in negative. Appellant shall be extended benefit of section 382-B, Cr.P.C.
MH/A-65/Sindh Order accordingly.
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