IN THE HIGH COURT OF SINDH AT KARACHI.

Cr. Appeal No. 298 of 2002.

PRESENT: Mr. Justice Muhammad Sadiq Laghari.

JUDGMENT

Date of hearing:   16.12.2002.

Appellant:            Shahzad Ahmed through Mr. Mumtaz Ali Khan Deshmukh, Advocate.

Respondent:         The State through Mr.  Fazal-ur-Rehman Awan, Advocate.

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MUHAMMAD SADIQ LAGHARI, J. On 18.11.1998 at about 4 P.M. Shazia was taken to Poly clinic (a private hospital) having burn injuries.  After treatment  there she was  shifted to Abbasi Shaheed Hospital, where she was treated and cured.  About three and half months after that incident she (Shazia) appeared at New Karachi Police Station on 8.3.1999 and lodged FIR No. 81/99 against her husband Shahzad alleging substantially that she used to quarrel with her husband for  having illicit connection with Shamin whom  he had kept at their residence. That on 8.11.1998 at about 4:00 P.M. her husband poured kerosene oil upon her and shown torch. She raised cries in response whereof Aslam came in the house scaling over the wall and found her burning. Aslem then opened the door of the house where after the other neighbours having collected there on cries also entered the house and witnessed the happening. After registration of the case the investigation was conducted and finally Shehzad was sent for trial.

2.       During trial prosecution examined five witnesses namely Shazia PW-1, Muhammad  Saleem PW-2, Azam Ali PW-3, Muhammad Aslam PW-4 and ASI Abdul Majeed PW-5. In his statement under Section 342 Shahzad Ahmed denied prosecution allegation. He did not examined under Section 340(2) Cr.P.C. Also no witness was examined by him in defence. By judgment dated 15.8.2002, the learned IInd Additional Sessions Judge, Karachi, Central convicted Shahzad Ahmed awarding him sentence to suffer RI for five years with fine of Rs.30, 000/- in default of payment of find to suffer six months RI further.  It was also ordered that the fine if recovered be paid to the victim. The conviction and the sentence have been assailed through resent appellant.

3.       Appellant’s learned Advocate contended that the prosecution case is fails and the evidence brought on record by prosecution is not of such standard which could be made basis for the conviction. He contended that it is evident that not only the FIR was after thought and delayed but it has come in evidence that the first person who entered the house was PW Aslam and he witnesses that accused Shahzad had put blanket upon the complainant. Further that Doctor has deposed that the lady Shazia had stated before them that she was burnt accidentally while preparing tea. It was also argued that in presence of these facts and circumstances the evidence of PW Azam Ali and Saleem and Shazia can not be believed against the appellant.

4.       The learned State counsel Mr. Fazal-ur-Rehman Awan conceded to the contentions of the learned Advocate, representing the Appellant and did not defend the conviction.

5.       No doubt complainant Shazia has deposed that due to frequent quarrels between her and her husband over his illicit connections with Shamim he (her husband) set her on fire after pouring kerosene oil upon her but her evidence can not be believed safely  in the light of the evidence of Doctor Moula Baksh and PWs Aslam and Azam Ali.

6.       Dr. Moula Baksh was the owner and In charge of the private hospital (Poly Clinic) where the injured lady was taken immediately after the incident. He has deposed that the lady stated before him that she was burnt accidentally.  That she never accused her husband burning her. P.W. Aslam who timely entered the house first of all be scaling over the wall has deposed that when he entered the house the appellant was found to have put blanket upon Shazia. Nothing in his evidence that Shazia alleged against her husband that he had set her on fire.P.W. Azam Ali also does not allege that Shazia had alleged that her husband had set her on fire. His evidence only shows that Shazad had not made attempts to extinguish the fire before his entry in the house which statement is in conflict with the evidence of P.W. Aslam who deposed that when he entered the house Shahzad had already put blanket upon Shazia.  In presence of that evidence of the independent persons the  belted version of Shazia can not be believed and made basis of the conviction.

7.       In view of above it will be highly unsafe to pass the conviction upon  the evidence on record. The appellant deserve the benefit of doubt. Therefore, his conviction can not be sustained. The same is hereby set aside. Consequently, the appeal stands accepted. The appellant if in custody be set at liberty forthwith if not required in any other case.

JUDGE