' The appellant Ismail (aged, 36 years) was convicted by a learned Additional Sessions Judge, Multan camp at Vehari of offences under sections 304-Part II, 328 and 411 of the Pakistan Penal Code for causing the death of Haq Nawaz deceased, administering poison to Rab Nawaz(P.W.7) and receiving stolen property. For the offence under section 304-Part II, P. P. C., he was awarded a term of rigorous imprisonment for ten years while under section 328, P. P. C. He was ordered to undergo rigorous imprisonment for four years. He was also asked to pay fine of Rs, 1000 on each count, or in default, to receive further rigorous imprisonment for 6 months. For the offence under section 411, P. P. C. He was sentenced to rigorous imprisonment for two years. Muhammad Nawaz alias Nazu, co-accused was also tried together with him but he was acquitted of all the charges.
The appellant has preferred an appeal against his convictions and sentences which will be disposed of by this judgment.
2. The deceased Haq Nawaz and his brother Rab Nawaz (P. W. 7), both teenagers, were the sons of Ahmad Din (P. W. 6), a resident of Chak No, 36/W.B. Within the jurisdiction of Police Station, Vehari. It was the case of the prosecution that the appellant while employed as a domestic servant with Ahmad Din (P. W. 6) developed friendly relations with Muhammad Nawaz co-accused of the same Chak. He used to sleep in the same room with the boys where valuable household articles were also stored. On- 21st January, 1975, the boys took tea in the presence of the appellant and both of them started vomiting after a short while. They were given medical treatment. Rab Nawaz (P. W. 7) survived but the deceased died on 22nd January, 1975 at 3 p.He was buried in the graveyard of Mir Murad in Chak No, 43/WB. Ahmad Din (P. W. 6) suspected that the appellant in conspiracy with the co-accused administered some intoxicant to the boys and while the family was busy in the morning, he committed theft of some cash, ornaments and pieces of cloth from the house. On 4th February, 1975,he met A.S.I. Abdul Sattar (P. W. 8) at Chak 34 WB, and made statement Exh. PA before him and on its basis formal F. I. R. Exh. PA/I was registered at police station Vehari on the same day.
3. The case was partly investigated by A.S.I. Abdul Sattar (P. W. 8) and partly by A. S. I. Zahoor Din (P.
W. 9). On 10th February, 1975, the dead body of the deceased was exhumed under the orders of the District Magistrate. Dr. Muhammad Afzal (P. W. 12), Medical Officer Civil Hospital, Vehari performed the post-mortem examination of the deceased at the graveyard. According to him, no definite cause of death could be given at that time. He took viscera from various parts of the body and sent the same to the Chemical Examiner for detection of poison, if any, and reserved h;s opinion subject to the report of the Chemical Examiner. The Chemical Examiner vide Exh. P. W. 12/A reported that no poison was detected in the viscera.
4. After a lapse of about 11 months, Bashir Ahmad (P. W. 2) and Muhammad Anwar (P.W. 3) on 1st January, 1976 produced the appellant and the co-accused before A.S.I. Zahoor Din (P. W. 9) alleging that they had made confession before them about the commission of the crime whereupon the A.S.I. Arrested them. While in police custody, on 3rd January, 1976, Muhammad Nawaz co-accused led to the recovery of stolen articles P. I. To P. 8 from his house which the A.S.I. Took into his possession vide memorandum Exh. P. C. Also witnessed by Bashir Ahmad (P. W. 5) Ahmad Din (PW 6) and one Ghulam Hussain who was given up by the prosecution as being unnecessary. Likewise the appellant, on ilth January, 1976, led to the recovery of stolen cloth pieces P. 8 to P. 12 and ornaments P. 13 to P. 20 from his house and the A. S. I. Took the same into his possession vide memorandum Exh. PD also witnessed by the same witnesses.
5. The appellant pleaded not guilty and denied the allegations against him. He attributed false implication due to suspicion. He led no evidence in defense.
6. The case of the prosecution rests entirely upon the circumstantial evidence comprising extra judicial confession, recoveries and the medical evidence.
7. Where one is charged with the murder of another, three facts obviously have to be established.
First of all that the person alleged to be murdered is dead ; secondly, that he died by the means alleged on the part of the prosecution ; and thirdly, that the accused intentionally took that part in causing his death which is attributed to him by the prosecution.
8. Here there is no doubt that the person alleged to be murdered is dead.
' However, the question arises whether the deceased died by the means alleged on the part of the prosecution and whether the appellant intentionally took that part in causing his death.
9. The prosecution suggested that the deceased was murdered by the administration to him of poison, The poison said to have been administered is opium. Rab,Nawaz (P. W. 7) stated that the appellant did not mix anything in the tea in his presence. Dr. Muhammad Afzal Malik (P. W. 12) found no marks of injury on the dead body nor any evidence of discharge at the mouth or the nostrils. He stated that as no definite cause of death could be given at the time of the post-mortem examination he reserved his opinion till after the receipt of the Chemical Examiner's report. The Chemical Examiner's report Exh. P. W. 12/A shows that he received viscera from the stomach, intestines, liver, spleen and kidney and hypertonic saline but no poison we detected in any one of the specimens. The doctor forwarded the report to the Investigating Agency. On a reference by the Investigating Agency, the doctor by endorsement Exh. P. W. 12/C opined that 'the metallic poisons are indestructible and are thus ruled out but the chance of vegetable type of poisons cannot be ruled out altogether in a putrefying body as these poisons are liable to be decomposed and destroyed by the passage of time'. The Investigating Agency again asked him to give definite opinion about the cause of death whereupon by endorsement Exh. P. W. 12/D, he reiterated his earlier stand. Once again, the Investigating Agency pressed him for a definite opinion. This time, by endorsement Exh, P. W. 12/F, while reiterating the earlier stand, he opined that since during the subsequent investigation of the police opium was pointed out by the accused, and opium being a vegetable poison, poison could be the cause of death. However, at the trial, he had to admit that no definite opinion could be given as to the cause of death and that he had given his ultimate opinion on a hypothetical basis at the insistence of the police, ' The doctor had reserved his opinion as to the cause of death till after the receipt of the report of the Chemical Examiner. In the face of the definite report of the Chemical Examiner that no poison was detected in any of the viscera, the doctor could not have possibly given a report other than the one given in the first instance in the absence of any fresh data before him.
10. The approach of the learned Additional Sessions Judge in deciding a case involving capital punishment on the basis of a mere hypothetical report is wholly incomprehensible. He had himself ruled out of consideration the extra judicial confession for the reasons given in para. 17 of bus judgment, and, in my opinion, rightly so. Rab Nawaz (P. W. 7) had also stated that the appellant did not mix anything in the tea in his presence. Thus, there was no evidence whatsoever before him to establish that the deceased died of poison, much less opium, as alleged by the prosecution.
Before a person can be convicted of murder by poisoning, it is essential to prove that the death of the deceased was caused by poison and that the poison was administered to the deceased by the accused. Where the cause of death cannot be ascertained with any certainty a conviction of murder by poisoning cannot be sustained.
11. The prosecution has also failed to lead evidence to prove that Rab Nawfiz (P. W. 7) was administered any poison. Rab Nawaz (P. W. 7) c himself stated, as already noted above, that the appellant did not mix anything in the tea in his presence.
12. As to the recoveries, the learned Additional Sessions Judge has observed that the statements of Bashir Ahmad (P. W. 5), Ahmad Din (P. W. 6) and A.S.I. Zahoor Din (P. W. 5) suffered from glaring inconsistencies and categorically found the recovery from Muhammad Nawaz acquitted co- accused to be false. For the same reason, the statements of these witnesses cannot be accepted against the appellant as well. Bashir Ahmad (P. W. 5) was a resident of another village, 10 miles away from the place of recovery. He enjoyed no special status in the locality. The other witness Ahmad Din (P.W. 6) was the complainant himself. A.S.I. Zahoor Din (P.W. 9) admitted that several respectables of the locality were available but he did not associate any one of them in the recovery proceedings as they were not prepared to support the same. In these circumstances the recoveries are wholly useless and therefore, cannot form the basis for conviction of the appellant.
13. For all the reasons stated above, it is not possible for me to maintain the convictions and the sentences of the appellant as recorded by the learned Additional Sessions Judge. Accordingly, I set aside his convictions and sentences and acquit him of the charges. I have already directed by a short order that he shall be released forthwith if not required in any other case.