Ijaz Ahmad Chaudhry, J.--Tanveer Hussain appellant was convicted for an offence under Section 302 PPC vide judgment dated 12.4.2000 handed down by the learned Additional Sessions Judge, Lahore and was sentenced to death. The appellant was ordered to pay a sum of Rs, 20,000/- to the heirs of Zeeshan deceased by way of compensation under Section 544-A Cr.P.C. He was also convicted under Section 380 PPC and sentenced to five years R.I. with a fine of Rs, 2,000/-. He was also convicted under Section 337-J PPC and sentenced to five years R.I. each for administering poisonous biscuits to the wife of the complainant and Zulfiqar Ali PW. All the sentences of imprisonment were directed to run concurrently. The appellant has challenged his convictions and sentences before this Court through the present appeal which has been heard by us along Murder Reference No, 285 of 2000 seeking confirmation of the sentence of death passed by the learned trial Court against the appellant. We propose to decide both these matters together through the present consolidated judgment.
2. The prosecution's case unfolded in the FIR (Ex. PQ) was that Tanveer Hussain accused/appellant had become friend of Muhammad Boota, brother of the complainant when both were in jail.
Muhammad Booth was working his brother (complainant) who was dealing in shuttering work.
After the release from jail, both Muhammad Booth and his friend Tanveer Hussain came in the house of the complainant and the complainant allowed Tanveer to work with him for one month.
Thereafter he left the job and after 4/5 months, he again cam on 19.11.1997 at about 6.00 p.m. and informed the complainant that there was a job of shuttering near police station Ichhra and he could get the same. The complainant told him that he would/visit the place of said job on the following day and he got prepared Tea for him. The appellant took Waqar and Zeeshan sons of the complainant outside the house. He did not return whereupon the complainant became worried and sent his guest Zulfiqar and son Irfan to search them who met them on their way with biscuits.
The appellant gave biscuits to the children of the complainant, his wife and guest Zulfiqar. The complainant also only tasted the biscuit. He asked the appellant to sleep and himself went to see his shuttering material. The complainant came back after a while and saw his wife and children unconscious while households were found scattered. He found his 222 licensee rifle, gold ornaments weighing 3 tolas and cash amounting to Rs, 12,000/- missing. The complainant shifted his wife and children to the General Hospital, Lahore with the assistance of the inhabitants of the Mohallah.
3. Muhammad Arif SI (PW.9) Police Station Factory Area, Lahore, received a wireless message about the incident when he was present at Chungi Amarsadhu, Lahore, and went to the General Hospital, Lahore, in the company of police officials. He met Abdul Ghani, the complainant in the Emergency Ward of said Hospital. He recorded his statement Ex. PD. The said complaint was sent to the Police Station by Muhammad Arif SI through Muhammad Ashiq Constable for the registration of the case.
Muhammad Akram ASI PW. 14 recorded formal FIR (Ex. PQ).
4. Muhammad Arif SI (PW.9) visited the Emergency Ward of General Hospital, Lahore and made application Ex. PG, Ex. PH and Exh. PI to the Duty Medical Officer for recording the statements of victims Mst. Zubaida Bibi, Zeeshan, Rizwan, Irfan and Zulfiqar. The Medical Officer, on application Ex.
PG made a note that Mst. Zubaida was fit to make the statement whereas on the applications Ex.
PH and Ex. PI, it was reported by the said Medical Officer that the victims were not fit to make their statements. LO recorded the statement of Mst. Zubaida Bibi on 20.11.1997. On 20.11.1997 said S.I. alongwith the complainant Abdul Ghani PW.6, Ghulam Hussain and Muhammad Akram want to the place of occurrence and prepared rough sketch of site-plan Ex.PJ. He also recorded the statements of the witnesses under Section 161 Cr.P.C. on 20.11.1997. He again visited the Emergency Ward and made an application for the permission to record the statements of remaining PWs which was not allowed. In the meanwhile Abdul Ghani PW.6 informed the I.O. about the death of Zeeshan and I.O. prepared inquest report Ex. PK and sent the deadbody of Zeeshan to the Mortuary for post-mortem examination through Muhammad Mansha and Muhammad Sarwar Constables. He also prepared report Ex. PL mentioning the fact of death of Zeeshan due to poisonous material. On 21.11.1997 post- mortem was conducted and deadbody was delivered to the heirs of the deceased. After the conclusion of the investigation report under Section 173 Cr.P.C. was submitted in the Court. The appellant was arrested on 4.12.1997, who on 6.12.1997 got recovered 222 bore rifle.
5. On receipt of report under Section 173 Cr.P.C. the learned trial Court supplied copies of the documents required under Section 265-C Cr.P.C. to the appellant and charge was framed against him which was denied by him and he claimed to be tried.
6. The prosecution in order to prove the guilt of the appellant produced as many as 14 witnesses.
The ocular account was furnished by Abdul Ghani complainant (PW.6), Mst. Zubaida Bibi (PW.5) and Zulfiqar Ali (PW.8) while the medical evidence was adduced by Dr. Tanveer Hussain Rana (PW.7) who on 21.11.1997 at about 3.15 p.m. had conducted the postmortem examination on the deadbody of Muhammad Zeeshan deceased and the investigation was conducted by Muhammad Arif SI (PW.9). Initially the deceased was medically examined by Dr. Capt. Muhammad Munir Hussain (PW.10) when he was taken to General Hospital, Lahore in an unconscious condition.
The remaining witnesses are of formal nature and need not to discuss here.
7. After the close of the prosecution evidence the statement of the appellant was recorded under Section 342 Cr.P.C. in which he denied the allegations and professed his innocence. On a question that "why this case against you and why the PWs have deposed against you?" Tanveer Hussain appellant replied as under:-- "The complainant suspected that I got illicit relations with his wife and due to this reason, by chance through food poisioning members of complainant became unconscious they involved me in the present case falsely just to get rid of me."
However, he did not opt to make statement under Section 340(2) Cr.P.C. and also denied to produce any defence evidence.
8. The learned trial Court after hearing arguments of both the parties had passed the impugned judgment of conviction and sentence against the appellant which is being assailed through this appeal.
9. Learned counsel for the appellant contends that the prosecution could not prove the case against the appellant beyond any shadow of doubt. It is also contended that the witnesses namely Mst. Zubaida Bibi (PW.5) and Abdul Ghani complainant (PW.6) and Zulfiqar Ali (PW.8) had not made consistent statements regarding the offering of the biscuit by the appellant to them as according to the complainant and Zulfiqar Ali (PW.8) the biscuits were offered in the baithak but Mst. Zubaida Bibi (PW.5) wife of the complainant stated that the biscuits were offered by the appellant to Zulfilar Ali (PW.8) in the baithak and her four children in the adjacent room. It is also contended that both the witnesses consistently stated that no biscuit or piece of biscuit. was present at the time when the police inspected the spot and no biscuit was taken into possession hence it cannot be said that the said biscuits had caused unconsciousness of the PW Mst. Zubaida Bibi and her children resulting in the death of Zeeshan. It is also contended that the prosecution evidence does not disclose that only due to eating of the said biscuit Zeeshan deceased had died.
It is also contended that it was alleged that an amount of Rs, 12,000/- and gold ornaments were taken away by the appellant but nothing was recovered and recovery of rifle had been planted as the said weapon was recovered from the place which was easily accessible to the general public.
It is also contended that the medical evidence also does not disclose that the death of Zeeshan was due to the taking of some poisonous biscuits. It is also contended that the meal was taken by the witnesses and the victims at 5.30 p.m. and the said tranquilizer of the victims could be as a result of the meal which was taken by them.
10. Learned counsel for the State on the other hand opposes this appeal on the ground that it had been proved on the record through the . statements of the witnesses that the appellant was present at the spot, who had brought the biscuits which were taken by the deceased and the other victims as a result of which the deceased Zeeshan bad died while the appellant had taken away the gold ornaments alongwith the rifle from the place of incident which was subsequently got recovered by him and he had committed the offence to commit theft in the house of the complainant. It is also contended that the witnesses had no enmity or grudge to falsely implicate the appellant in the present case.
11. We have heard the arguments of the learned counsel for the parties and also perused the record with due care and caution.
12.The prosecution story is that the appellant had developed friendship with Muhammad Boota brother of the complainant as both remained in jail and after having been released Muhammad Boota had introduced the appellant with the complainant for providing him employment. The appellant had been working there for one month and then left the job, who again contacted the complainant for the same purpose and brought the alleged poisonous biscuits which were taken by the deceased Zeeshan and other victims. To prove the version of taking of biscuits brought by the appellant the prosecution examined Mst. Zubaida Bibi (PW.5) who is wife of the complainant Abdul Ghani (PW.6) and Zulfiqar Ali (PW.8) a guest of the complainant. All the three witnesses consistently stated that the meal was taken by them at 5.00 p.m. and the meal was being cooked when the appellant had gone out to bring the biscuits and also taken with him two children, who then returned after sometime and brought the biscuits which were taken by the victims including Zeeshan deceased, who became unconscious. Mst. Zubaida Bibi (PW.5) during cross-examination stated that the meal was taken by them at 5.00 p.m. on 19.11.1997 and all the biscuits were utilized by them. According to PW.5 she had known the shop keeper's name from where the biscuits were purchased and they also used to purchase different edible articles from him but the complainant Abdul Ghani (PW.6) had shown ignorance that from where the appellant had purchased the biscuits. Muhammad Afif SI/I.O (PW.9) also admitted that he did not come to know during investigation from where the biscuits were purchased by the appellant. Abdul Ghani (PW.6) also claimed that he had taken a piece of biscuit and left the same, but he did not become unconscious. So when no piece of biscuit was available at the spot for the analysis, how it can be said with certainty that the biscuits had resulted in the tranquilizer of the deceased and the other victims and Zeeshan had died as a result of taking of biscuits. The tranquilizer could be as a result of taking of the meal by the deceased and the other victims as they immediately before taking of the biscuits had taken the meal and also the tea. There is no piece of evidence which pinpoints that the witnesses had become unconscious alongwith the children due to the taking of the biscuits except the suspicion of the witnesses. No witness had been produced by the prosecution who had seen the appellant while mixing some poisonous material with the biscuits. Moreover two sons of the complainant had allegedly accompanied the appellant when he had left the place and then came back with him, who could point out any nefarious design of the appellant before taking the said biscuits. No efforts were made by the prosecution for collecting the evidence regarding the purchase of the biscuits and made those poisonous by the appellant. It cannot be said with certainty that the taking of biscuits was the only reason resulting into unconscious of the witnesses as well as the deceased and the prosecution evidence is not found sufficient to connect the appellant with the commission of the crime.
13. The medical evidence also does not disclose with certainty that the death of Zeeshan had occurred due to the taking of the meal or due to the taking of the biscuits. Evert otherwise the doctor while conducting the post-mortem examination did not give the cause of the death of Zeeshan deceased and kept it pending till the receipt of the report of the Chemical Examiner regarding the analysis of the viscera. The report of the Chemical Examiner was also not sufficient to declare that the death had occurred due to some poison, which only indicated that some tranquilizer was taken but it is silent about the kind of tranquilizer or through which means it was given to the victims and whether the said tranquilizer alone was sufficient for the use of death remained shrouded in mystery.
14. The motive set up by the prosecution for the commission of this offence was to take away the household articles by the appellant. It was claimed by the complainant in the FIR that the appellant had taken away an amount of. Rs, 12,000/-, gold ornaments weighing three tolas and licensee rifle.
Admittedly, no one had seen the appellant while taking away such articles. The gold ornaments and the amount of Rs, 12,000/- were not recovered from the possession of the appellant. However, the appellant, according to the prosecution had got recovered rifle from the Jund of trees and the said rifle was taken into possession vide memo Ex. PC. To prove the said recovery proceedings the prosecution produced Muhammad Ashraf Constable (PW.11) and Muhammad Arif SI (PW.9).
Muhammad Ashraf (PW.11) had taken the stand that the said rifle was got recovered by the appellant from the Jund of Small trees after digging the earth about one foot which was wrapped in a plastic borix. This fact is in contradiction with the recovery memo Ex. PC wherein it is not found mentioned that the appellant had dig out the land and then had got recovered the rifle. On the other hand Muhammad Arif SI (PW.9) had not stated so while appearing in the Court. The place of recovery was accessible to general public. It cannot be said that the weapon was recovered from the place which was in the exclusive possession of the appellant and it was only in his knowledge that the said weapon had been concealed there. Moreover, the public witnesses had not been joined and PW-9 Muhammad Arif SI and PW-11 Muhammad Ashraf are both police officials who had admitted that no efforts were made for joining the public witnesses though there were some shops at the distance of one killa from the place of recovery. In the above circumstances it is not safe to rely upon the recovery of rifle as a corroborative piece of evidence to the ocular account, which even otherwise has already been found by us insufficient to connect the appellant with the commission of the alleged crime.
15. As a result of the above discussion we have no hesitation to holding that the prosecution had miserably failed to prove the case against the appellant Tanveer Hussain alias Ludu beyond any shadow of doubt. Hence this criminal appeal is accepted, the impugned judgment passed by the learned trial Court is set aside and the appellant is acquitted of the charges, who shall be set at liberty forthwith, if not required in any other criminal case.
16. Murder Reference No, 285 of 2000 is replied in the negative and the death sentence awarded to the appellant is not confirmed.