Zubda-tul-Hussain, J.--The appellant, Mst. Nasreen Bibi and her three brothers, namely, Abdul Ghafoor, Abdul Majeed and Muhammad Bashir were tried by the learned Additional Sessions Judge, Gujranwala, in case FIR No,251, dated 5.7.2001, registered under Sections 302/109/34 PPC, at Police Station, Nowshehra Virkan, District Gujranwala. The conclusion of the trial lead to the acquittal of Abdul Ghafoor, Abdul Majeed and Muhammad Bashir, while Mst. Nasreen Bibi was convicted and sentenced to death under Section 302(b) PPC on two counts, vide judgment dated 19.11.2002 of the learned Additional Sessions Judge, Gujranwala.
2. While the appellant has challenged her conviction and sentence through Cr.A.No,85-J of 2003, the learned Additional Sessions Judge, Gujranwala has sent Murder Reference No, 11 of 2003 for confirmation of the death sentence awarded to the appellant.
3. The convict-appellant and her acquitted brothers~ were nominated in the aforesaid FIR (Ex.P.B/1) by the complainant, Meraj Din, who happened to be the father-in-law of the appellant. The allegation against the appellant was that she, on the abetment of her brothers, mixed pesticides in the ""ghee"" with which she cooked meal and served the same to her husband, namely, Jaffer Hussain and his other family members, which included his two brothers Liaquat Ali, Arif Hussain, Mst. Seema Bibi, wife, Mst. Zahida Bibi and Kalsoom, daughters and Nadeem, son of his brother Liaquat Ali, their sister Mst. Razia Bibi, and mother Mst. Naziran Bibi. The poisonous meal made them unconscious and ultimately caused death of Liaquat Ali and Arif Hussain. The motive behind this tragic incident is stated to be a dispute over handing over of some gold ornaments by the appellant to her brothers, without the consent of her in-laws, at the time of marriage of her brother Ghafoor solemnized about one month prior to the occurrence, which not having been retrieved became a source of constant grievance of the in-laws against the accused and had at times resulted in physical mal-treatment of the accused at the hands of her husband. This, as alleged, prompted the accused to an action by which the whole family could be done to death. All the affectees of the poisonous food were also taken to hospital but, as already said Liaquat Ali and Arif Hussain died and rest were able to survive.
4. Consequent upon the postmortem of the two deceased persons the material taken from the viscera was sent for Chemical Examination on the basis of which it was opined by the Medical Officer that the case of death of both the deceased appeared to be due to organo phosphorus poisoning. The investigation of the case conducted by the police lead to the conclusion that the appellant, Mst. Nasreen Bibi, was responsible for administering poisonous material to the deceased and their family members. As a result of investigation of case by the police the accused were sent up for trial where they pleaded not guilty to the charge framed by the learned trial Court and were thus tried for the offence under Section 302 read with Section 34 PPC. The three accused, namely, Abdul Ghafoor, Abdul Majeed and Muhammad Bashir were also accused of the offence of abetment falling under Section 109 PPC.
5. The present case encompasses a tragic episode in a special sense that all concerned namely the two deceased persons, the principal accused and those who testified the ocular account all belong to one family. Out of nine persons who were allegedly administered the poisonous food, two had expired and seven others were also affected thereby.
6. The ocular account of the case primarily consists of the statements of Mst. Seeman Bibi W/o Liaquat Ali deceased and Naziran Bibi, wife of the complainant, Meraj Din. What they had told was that sons and daughters of the complainant were living in a joint family. The accused Mst. Nasreen Bibi along with her husband, Jaffer Hussain, was also residing with the same family in the same premises. It was alleged by them that Mst. Nasreen Bibi without the permission of her husband gave the gold ornaments to her parents which became a bone of contention and strained relations between the two families and for that reason the appellant mixed pesticide in the "ghee" with which the food was then cooked by her and served to the family members as a result of which they became unconscious. Necessary treatment was provided to them in the hospital but Liaquat Ali and Arif Hussain died whereas rest of the affected family members were able to survive.
7. The statements of Mst. Seeman Bibi and Mst. Naziran Bibi were supplemented by the depositions of Mst. Razia Bibi daughter of the complainant and Mst. Zahida Bibi D/o Liaquat Ali deceased. They had not directly witnessed the mixing of the pesticide by the appellant in the "ghee" for cooking but stated the circumstances leading to the inference that the food was cooked and served by the appellant because of which family members who had taken food including both these witnesses became unconscious and subsequently Liaquat Ali and Arif Hussain died because of the same incident. Jaffer Hussain husband of the appellant also appeared as a witness who narrated the circumstances of the strained relations with the appellant because of the delivery of gold ornaments by her to her brothers. He further mentioned that he was one of the nine family members who took the meal cooked by the appellant. He also asserted that Liaquat Ali and Arif Hussain died because of the poisonous food which was served by the appellant.
8. Out of the remaining P.Ws. Liaquat Ali, Constable, had received five sealed parcels along with two envelopes from the `Moharar' of the Police Station which he delivered to the Office of the Chemical Examiner at Lahore. Muhammad Riaz, P.W.2 had identified the dead bodies of Liaquat Ali and Arif Hussain. P.W.3, Ghulam Muhammad was a witness for producing the bottle of poisonous pesticide by the complainant to the police whereas P.W. Meraj Din is the complainant of the case who had reiterated the facts as stated by him in the complaint (Ex.P.B.). Zafar Abbas, P.W. 10, is also witness for the identification of the dead bodies of Liaquat Ali and Arif Hussain.
9. Muhammad Ashraf, S.I., Police Station, Satellite Town, Gujranwala had recorded the statement Ex.P.B. of the complainant and after the registration of the FIR conducted the investigation of the case details whereof were given by him in his statement as P.W.13. Masood Ahmad Bhatti the Draftsman appeared as P.W. 14 who recorded his statement with reference to the site plan prepared by him. Muhammad Arshad, `Moharar' Police Station, Wandoo, Gujranwala, deposed as P.W. 15 that Muhammad Ashraf, S.1., P.W.13 had handed over to him five parcels, four plastic jars and two envelopes, all sealed, which he kept in `Malkhana' for safe custody and thereafter gave the same to Riasat Ali, Constable, for onward transmission to the Office of the Chemical Examiner, Lahore. Muhammad Akram, (Retired F.C. No, 206), P.W. 16, deposed that after the postmortem of the dead bodies of Liaquat Ali and Arif Hussain, the Medical Officer handed over to him the last worn clothes of the deceased which he delivered to the I.O. of the case. He had also recorded formal FIR Ex.P.B/1 on the receipt of the complaint (Ex.P.B.).
10. Dr. Tahir Islam Chaudhry, Medical Officer, who had conducted the postmortem examination on the dead bodies of Liaquat Ali and Arif Hussain appeared as P.W.11 and while substantiating the contents of the postmortem report he gave the full account of the examination as well as the remarks recorded by him in relation to the postmortem and concluded his statement with specific reference to the cause of death. In this behalf he relied upon the reports of the Chemical Examiner.
The reports of the Chemical Examiner were tendered by the DDA in evidence as Ex.P.N. and Ex.P.O. It may not be out of place to point out that Ex.P.N. and Ex.P.O. are not the original documents and are in fact attested photostat copies of the original reports.
11. In her statement under Section 342 Cr.P.C. The appellant denied that she had mixed pesticide in the "ghee" or cooked or served meal to the family of the complainant on the alleged day of occurrence. She added that there were tense relations and disputes between her family and the complainant's family because they demanded more and more dowry from her parents. As to the cause of death of Liaquat Ali and Arif Hussain she stated that they died due to food poisoning as a result of meal taken from the bazaar and the complainant party after due deliberation and consultation fakely involved her and her brothers in this case due to ulterior motive just to blackmail her family. She added that the P.Ws. had stated that they were hospitalized after being served poisonous food by her but no medical evidence had been exhibited in the Court in support of their statements. She maintained that all the circumstances lead to the only conclusion that she was innocent.
12. The case in its very inception seems to be obscure and wrapped in certain unexplained circumstances but it never headed towards a direction which could provide necessary explanation therefor. As the story goes, Mst. Seeman Bibi and Mst. Naziran Bibi who were important members of the complainant's family respectively being the wife and mother of Liaquat Ali deceased had seen the appellant mixing the poisonous pesticide in the "ghee" which essentially is an edible item but they did not take a serious notice of it even when she was taking it inside the place of cooking. It has been stated by the P.Ws. that they had enquired from the appellant as to why she was mixing the poisonous material in the "ghee" and the answer given by her was that she wanted to use it against the insects. The evidence and the mode and the manner in which the P.Ws. have stated this incident shows that they were simply satisfied by the alleged reply of the appellant. It was, of course, an unusual activity because for the purpose of eradicating the insects poison is generally not used in the "ghee". It is applied either directly or through the water. Though the fact that the mixing of the poison in the "ghee" cannot be a normal act the P.Ws. did not take it seriously in spite of the fact that the family had very serious dispute with the appellant on the issue relating to the ornaments which had even crossed the noble limits and the husband of the appellant had come down to physical mal treatment and assault on the person of the appellant Even in the absence of such a situation the unusual alleged behaviour of the appellant for mixing the poison in an edible item would have been a cause of alarm and in ordinary course it ought to have been brought to the notice of the elders of the family. Remaining quiet in such a situation and proceeding to the houses of others is a factor which read with the A other circumstances leads to the suspicion that Mst Seeman Bibi and Mst. Naziran Bibi had never seen the appellant mixing the pesticide in the cooking item of "ghee.
13. The other circumstances which are deeply relevant to the above position are that the bottle containing the pesticide from which it was statedly mixed in the "ghee was produced by the complainant before the police. Firstly, there is no evidence that this was procured from the custody of the appellant and secondly, it is a very strange aspect of the case that the material contained in the bottle was never sent for chemical examination. This could have been an important piece of evidence and when this bottle had been produced before the police but has not been got chemically examined, it leads to a highly material discrepancy in the case because if the pesticide had been used for poisoning from this bottle, it ought to have been proved that the material was actually poisonous. Moreover, it was also incumbent upon the prosecution to show that the poisonous ingredient found in the material taken from the viscera of the deceased was the same or atleast of the same nature as was contained in the 'bottle: Unless and until the poisonous material of the viscera is found matching with the poisonous pesticide of the bottle it is difficult to conclude that the cause of death of the deceased was the administration of the same poison which had allegedly been mixed in the "ghee" by the appellant.
14. There is still another aspect of the case and the circumstances which seriously injured the prosecution contention. Besides the two deceased persons seven other family members had also been affected by the alleged administration of poisonous food by the appellant but no material was extracted or otherwise taken from their stomach etc. and sent for chemical examination. It is the case of the prosecution that seven surviving persons were also admitted in the hospital but no medical report or medical evidence in any form has been placed on the record to show that they suffered from the administration of poison or that they were ever admitted in the hospital. Such report was never obtained or produced even in relation to Jaffer Hussain i,e, husband of the appellant who was stated to be in a precarious condition because of the poisonous food. It may be pertinent to point out that the administration of poison to the human beings by itself was a serious offence but the prosecution never pressed it into service against the appellant nor the appellant was charge sheeted for murderous attempt on the seven surviving persons.
15. By its nature and circumstances it seems to be a case of circumstantial evidence in that none of the P.Ws. had seen the appellant cooking the meals. It is only by the circumstances that they levelled the allegation of cooking of the meals by the appellant. Mst. Seeman Bibi and Mst. Naziran Bibi allegedly witnessed only mixing of the poison in the "ghee" but the subsequent alleged activity of the appellant was not witnessed by them because they had left the place and proceeded to the neighbouring house. Mst. Razia has stated that Mst. Seeman Bibi had handed over the vegetable for cooking to the appellant but this fact has not been corroborated by the other P.Ws. Mst. Zahida Bibi who is the daughter of Liaquat Ali deceased and was also living in the same house with the same family also did not state anything towards the actual mixing of the poison in the eatable and then its use in the cooking. She only supported the contention that the meals taken by her and other family members made them unconscious. What we mean to say is that the evidence as led by the prosecution simply makes it a case of circumstantial evidence.
16. It is an established principle of law that circumstantial evidence is a weak type of evidence and conviction can be based on such evidence only if the same is duly corroborated by such evidence which maintains a complete chain of the circumstances directly relatable to each other. When any link in the chain is missing in a case of circumstantial evidence it would not be safe to record conviction. Reliance in this behalf may be placed on the case of Munawar Shah v. Liaquat Hussain and others (2002 SCM R 713) and Sh. Muhammad Amjad v. The State (PLD 2003 SC 704). The evidence as discussed above shows that marked omissions are existing in the linkage of the circumstances of the case as narrated by the P.Ws. The same having already been discussed need not be repeated or reiterated.
17. It may also be pointed out that the basis of the whole occurrence is stated to be conspiracy hatched and abetment made by the three accused brothers of the appellant who were acquitted of the charge by the learned trial Court. The findings in that behalf have not been challenged in appeal. It may not be a hard and fast rule but does have the relevancy in the circumstances of the case that when the basis of the whole occurrence i,e, the alleged conspiracy and abetment have not been proved, the evidence and the allegations in relation to the consequential action/offence of the appellant may also become doubtful. It is especially so when the motive of the case is not proved or established to be sufficient for committing such a brutal and heinous offence. As already stated the motive for the offence was that the appellant had given her ornaments to her brothers without the knowledge and permission of her husband Jaffer Hussain and the same having not been retrieved Jaffer Hussain and other family members were extremely annoyed with the appellant. The allegation in this behalf was based on assumption and the motive was thus of a very weak nature.
18. There is no doubt that ordinarily the weakness or insufficiency of motive or even the absence of motive in murder cases cannot be considered as a circumstance to justify the acquittal but where motive would be the only reason for committing the murder or the murderous assault and in the absence of such motive there would have been no possibility of murder at all, the complexion of the proposition would be changed. It is so plain a situation that the reasoning needs no illustration.
Even otherwise it is well settled that the motive once set, it is imperative for the prosecution to prove such motive in failure whereof adverse inference be drawn and the prosecution has to suffer the consequences instead of the defence. If an authority is needed in this behalf reference may be had to the cases of Muhammad Ahmed v. State and 5 others (PLJ 1996 SC 434) Hakim All and 4 others v. The State and another (1971 SCM R, 432).
19. There is still another important aspect of the case which may render it a case of no evidence at all. The whole prosecution, case hinges upon the reports of the Chemical Examiner and consequential findings of the Medical Officer that insecticide belonging to organo phosphorus was detected in the viscera of both the deceased. The learned DDA tendered in evidence the attested Photostat copies of the reports of the Chemical Examiner and not the original reports. By virtue of Section 510 Cr.P.C. any document purporting to be a report under the hand of any Chemical Examiner upon any matter duly submitted to him for examination or analysis may, without calling the Chemical Examiner as a witness, be used as an evidence in any trial under the Cr.P.C. but it can be used against an accused if it is the original report. The attested photocopy would not be admissible in evidence under the law.
20. Article 75 of Qanun-e-Shahadat Order, 1984 lays down in mandatory terms that a document must be proved by primary evidence. Article 76 thereof provides some exceptions and secondary evidence may be given of contents of a document when the original has been lost. The proof of loss of document is a condition precedent to permission to lead secondary evidence. In the present case no application was submitted nor permission was obtained for producing the evidence of the reports of the Chemical Examiner in secondary form. The attested copy of the reports of the Chemical Examiner is not admissible in evidence. The view expressed on these propositions is duly fortified by the judgments in the cases of Muhammad Yameen v. The State (PLJ 1987 FSC 28) and Mukhtar Ahmed v. Muhammad Younus (PLJ 2001 Lahore 210). By excluding the report of the Chemical Examiner (Ex.P.N and Ex.P.0) from consideration it becomes a case of no evidence against the appellant.
21. Irrespective of the above legal position we have, however, given our anxious consideration to the proposition that in the given situation where the original report of the Chemical Examiner has not been produced the circumstances might require the remand of the case to the learned trial Court so that the original report could be made available for ends of justice and the prosecution might not be knocked out on technical grounds because it is also well settled that technicalities may not be allowed to hamper the administration of justice. At the same time we are also conscious of the other cognate factors. This criminal 14 appeal and the Murder Reference pertain to the year 2003, the judgment in this case by the learned trial Court was delivered on 19.11.2002, the occurrence took place in July, 2001 and the accused appellant who is a female is facing the rigors of the trial and confinement as condemned prisoner for years along and if the case is otherwise not made out on merits against her the remand thereof shall simply perpetuate her misery. For the reasons given in this judgment it is obvious that the prosecution had failed to establish its case against the appellant beyond any shadow of doubt. We have, therefore, not considered it feasible or expedient to remand the case on technical ground and even on the basis of the material other than the reports of the Chemical Examiner find the appellant entitled to benefit of doubt.
22. For what has been discussed above, we are of the view that the prosecution had failed to prove its case against the appellant beyond doubt. Accordingly giving the benefit of doubt to the appellant the appeal is allowed and the appellant is acquitted of the charge. She shall be released forthwith if not required to be detained in any other case. Death sentence is Not confirmed and Murder Reference No, 11 of 2003 against the appellant is answered in the Negative.