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Petitioner: STATE VS Respondent: ZAHEER-UD-DIN BABARAltaf Muhammad Khan,ZAHEER-UD-DIN BABAR
1988 P Cr
1988 P Cr. L J 2387
[Lahore]
Before Ijaz Nisar and Fazal Karim, JJ
STATE‑‑Appellant
versus
ZAHEER‑UD‑DIN BABAR‑‑Respondent
Criminal Appeal No.151 of 1988, decided on 25th September, 1988.
Penal Code (XLV oaf 1860)‑‑
‑‑‑S.302‑‑Trial Court doubted presence of eye‑witnesses at spot on material day on grounds that they did not ordinarily live in house when occurrence took place and that their names were omitted from alleged dying declaration of deceased‑‑Eye‑witnesses appeared before police one and a half months after occurrence and there was nothing on record to indicate that they had made any written application to local police or higher authorities for not registering case against accused‑‑Alleged dying declaration was ruled out by Trial Court for want of proof, its scribe having not been examined by prosecution‑ Doctor who claimed to have seen deceased signing dying declaration stated that same was not recorded in his presence and he could not say as to when, where and by whom it was recorded or who made it‑‑Doctor who had countersigned the dying declaration also stated that it was not recorded in his presence‑‑Finding of Trial Court was not based upon any misreading of evidence or upon such error which would speak for itself‑‑View taken by Trial Court being in accord with settled principles governing administration of criminal justice, was neither perverse nor based on some gross error in reading of evidence‑‑Interference with order of acquittal of accused declined by High Court.
Altaf Muhammad Khan for the State.
ORDER
IJAZ NISAR, J‑‑This appeal has been filed by the State under section 417, Cr.P.C. challenging the acquittal of Zaheer‑ud‑Din Babar accused‑respondent by Mr. Azhar Hafeez Sheikh, Additional Sessions Judge, Sialkot in a case under section 302, P.P.C. vide his order dated 5‑10‑1987.
2. The prosecution case is that the respondent had been married to his cousin Mst. Lubna Khanum (deceased) about 8/9 years prior to the occurrence. They lived quite happily for 6/7 years but 2 years prior to the occurrence behaviour of the respondent changed and he started drinking and mixing up with women of ill‑repute, resultantly their relations became strained and the respondent occasionally gave her beating. On 26‑2‑1986 he again beat the deceased severely whereupon Lubna Khanum deceased phoned her mother Mst. Razia Durrani P.W.2 who accompanied by her daughter‑in‑law Mst. Rukhsana Khanum P.W.3 came to Sialkot. Mst. Razia Durrani asked the respondent as to why he had misbehaved with her daughter who became annoyed and started abusing the deceased who went upstairs. The respondent followed her. Soon thereafter he came down and went ‑upstairs carrying a bottle of kerosene oil. Mst. Razia Durrani and Mst. Rukhsana P.Ws followed him. He entered the room in which the deceased was present and closed the door from inside. The P.Ws. saw through the, glass of the door the respondent giving fist blows to her whereafter he sprinkled kerosene oil on her and put her to fire. Lubna Khanum covered her body with a quilt to save her life. The P.Ws. pushed the door and removed the deceased to the hospital. Meanwhile the respondent fled away. On coming to know of the occurrence father of Lubna Khanum deceased reached Sialkot the next day and contacted the police but to no avail. Consequently writ petitions were filed in the High Court complaining the attitude of the police as a result of which a case was registered on 10‑4‑1986. The statement Exh.PC (dying declaration) of the deceased was recorded by a family friend in the Hospital on 9‑3‑1986 and she died on 27‑3‑1986.
3. The prosecution examined Mst. Razia Durrani PW.2, mother of the deceased and Mst. Rukhsana Khanum PW.3 (daughter‑in‑law of the complainant) as eye‑witnesses. Muhammad Hanif S.I PW.7 investigated the case and took into possession partly burnt curtain P.1, two quilts, P.2 and 3, Foam matress P.4 and a bed cover P.5 from the house of the accused and arrested the respondent on 28‑4‑1986.
4. Dr. Rizwan Mehmood P.W.8 medically examined the deceased and found generalised burns over almost whole of her body.
5. The respondent denied the prosecution allegations and stated that he was not present in the house when the incident had taken place. According to him it was either an attempt to commit suicide on the part of the deceased or she caught fire accidentally. He had informed Razia Durrani and Mst. Rukhsana Khanum about the incident who reached Sialkot on the following day, he added.
6. The learned trial Court doubted the presence of Mst. Razia Durrani PW.2 and Mst. Rukhsana Khanum PW.3 at the spot on the material day. Serious notice was taken of the fact that Mst. Razia, Durrani PW.2 being real mother of the deceased had not accompanied the deceased to the hospital who was removed by the brother of the respondent. The explanation advanced by Mst. Razia Durrani that since she was a heart patient and had become unconscious on account of horrible spectacle was not found convincing by the learned trial Court. The other reason for doubting their presence at the spot wall omission of their names from the statement Exh.PC made by Lubna Khanum. The delay in the registration of the case was also found to have not been satisfactorily explained. The so‑called dying declaration Exh.PC was ruled out of consideration on the ground that it was not known under what circumstances the same was recorded.
7. Learned counsel appearing on behalf of the State contends that there has been a grave miscarriage of evidence and there was no cogent reason for discarding the testimony of Mst. Razia Durrani PW.2 and Mst. Rukhsana Khanum PW.3 who were very closely related to the respondent. The delay in reporting the matter to the police is well‑explained, and the dying declaration Exh.P.C. was wrongly excluded, it is stated.
8. As already stated above the presence of Mst. Razia Durrani PW.2 and Mst. Rukhsana PW.3 was doubted because they did not ordinarily live in the house where the occurrence in question had taken place. There is nothing on the record to indicate that Mst. Razia Durrani had made any written application to the local police or higher authorities for not registering the case Against the respondent. The eye‑witnesses appeared before the police very late i.e. one and a half months after the occurrence. The dying declaration was ruled out of consideration for want of proof because its scribe was not examined by the prosecution. Dr. Muhammad Aslam Lodhi PW.6 who claimed to have seen the deceased signing the statement Exh.PC said that it was not recorded in his presence and he could not say as to when, where and by whom it was recorded or who made it. Dr. Khurshid Sikandar who had countersigned it also stated that it was not recorded in his presence.
9. We have re‑assessed the evidence with a view to find out whether the conclusion arrived at by the trial Court was in accord with the settled principles governing administration of criminal justice and we find that it is not based upon any misreading of evidence or upon such error which would speak for itself. The view taken by the trial Court was neither perverse nor based on some gross error in reading of evidence. Consequently no ground appears for interfering with the order of acquittal of the respondent. The appeal is, therefore, dismissed.
H.B.T./S‑307/L. Appeal dismissed.