1. Applicant Dr. Sarwar H. Rehman has applied to this Court for bail. He is involved in the murder case of his own wife, Mst. Salma whom he had married in 1966. They have one daughter."
2. It is said tat their relations had become strained because the applicant wanted to marry another woman. Mst. Salma on the evening of 27th August 1968 went to visit her father with her daughter and returned home late in the evening. It is alleged that the husband and the wife quarrelled and the appli--cant maltreated her. The applicant left his house at 8 o'clock on 28th August 1968 to attend to his work but returned at 11 a.m. He then called his servant Nurus Salam anti asked him to prepare coffee. Soon after, he brought it along with to cups. The applicant filled one cup with coffee and then asked Nurus Salam to fetch his bag from the car, which he did. He took out white powder from the bag and added it in the cup filled with coffee and he then gave it to Mst. Salma, who drank it. The applicant then, left his house. After half an, hour Nurus Salam noticed that Mst. Salma felt unwell. She started vomiting and going to the bath room at short intervals. He then contacted the applicant when her condition worsened on telephone but the applicant advised him that she would soon get better. The applicant, however, came at about 1 p.m. When. Mst. Salma had lost consciousness. She died an hour latter. It appears that Nurus Salam did not disclose, it to anybody as to what the applicant had given to the deceased until 20th April 1970 and she was buried without any autopsy being carried, out as it was said that she had died of heart failure. Nurus Salam continued to remain at Karachi for another 3 or 4 months and then he went to East Pakistan.
3. He returned from there in April 1970; it was on or about 20th April 1970 that for the first the he disclosed to Zahoor Ahmad Qureshi, her father, the circumstances under which she had died. He swore an affidavit to this effect and upon that basis Zahoor Ahmad Qureshi filed an application on 6th May 1970 before the District Magistrate for getting the body exhumed to enable the cause of death to be determined. This application was sent by the District Magistrate to the Additional City Magistrate by the 1, Qazi Muhammad Saleh, who according to Mr. Qureshi, the learned counsel for the com--plainant, passed an order either on 7th car 8th May 1970 for exhuming the body. On 29th May 1970, in the presence of police Surgeon and a First Class Magistrate, the body was exhumed.
4. Body and earth specimens were taken and sent for chemical analysis to the chemical analyser at Karachi. Two days thereafter an application was filed by Zahoor Ahmad Qureshi before the Additional City Magistrate doubting the integrity of the public analyst, Dr. Akram Shaikh. On 12th June 1970 another application was filed for getting the body exhumed with a view tee obtain fresh specimens of soil and body. On 13th June 1970 the public- analyst gave his report and it was in the negative. According to him no metalic poison was detected from the skull hair, specimens of sand and mud collected from under the body and to nails of fingers. Again on 4 July 1970, the body was exhumed in the presence of a doctor from Jinnah Hospital and Magistrate and earth and body specimens were taken. One set of these specimens was sent to the Laboratory at Rawalpindi and the other to Dacca. The specimens sent to Rawalpindi were returned as they had so facilities for detection. They were again analysed by Dr. Noor Ahmad, who had come in place of Dr. Akram Sheikh. According to his report arsenic was detected in the soil taken from near the hand while his opinion was in the negative as to the body specimens. The result of the test carried out at Dacca was also to the same effect.
5. On 7th August 1970 complainant Zahoor Ahmed Qureshi filed a complaint in the Court of the Additional City Magis--trate No. 1, Karachi in which he alleged that the applicant and his father Suleman and brother Athar had committed the murder of the deceased by administering arsenic to her. The learned Additional City Magistrate took cognizance of the offence and issued non- bailable warrants against the applicant and the to others. It appears thereafter that upon an earlier application of the complainant which he had sent to the Addi--tional I. G. For action, the police also registered a case on 12th August 1970. On .17th August 1970 the applicant and his brother appeared in Court while his father, who was in custody, was also produced. An application for bail was filed and the learned Additional City Magistrate after hearing the counsel for the complainant, who was then present in Court, enlarged the applicant and the other to on bail by an order of the same date. The complainant and the State then moved the Sessions Court for the cancellation of their bail and on 4th September 1970 the learned Sessions Judge partly accepted the application and cancelled the bail of the applicant. He, however, rejected the application qua the other to persons. The applicant has now approached this Court under section 498, Cr. P. C. For the grant of bail to him.
6. Mr. Abdul Hayee Qureshi has appeared to oppose the application on behalf of Zahoor Ahmed Qureshi while Mr. Abdul Karim Lakhan has appeared for the State. Mr. Ansar Hussain, in support of the plea for the grant of bail, has argued that the applicant has been falsely involved in the case on account of enmity. He has invited my attention to a notice dated 8th October 1968 sent by an Advocate on behalf of the complainant claiming his share of the dower money, return of dowery and the custody of the girl, aged about 3 years. Mr. Ansar Hussain has also invited my attention to the order of the Additional District Judge dated 9th August 1969, wherein the request of the complainant for the custody of the girl was rejected. This order, according to him, has even been affirmed by the High Court. His case is that the applicant has been falsely involved in the murder case because he had refused to fulfil his demands. It is not possible for me to appraise at this stage the pleas of his false implication in the crime. However, one feature remains outstanding and that is, that Nurus Salam, for some reason best known to him, kept quiet for more than a year and a half without disclosing that the deceased was administered some drug and shortly thereafter she diems after exhibiting symptoms of illness. The result was that no post-mortem examination couldth be conducted with a view to determine the cause of death. Despite this feature in the prosecution case and placing the prosecution case at the highest only this much is apparent that some medicine was given to the deceased. What that medicine was has not been established. The prosecution has not been able to con--nect the powder with the arsenic found in the soil nor is there any evidence to suggest that the arsenic detected in the soil could not be from any other source except the soft issues of the body. Even the reports are not consistent. In the firs report no arsenic was detected from the soil taken from under the body. The second specimen in which arsenic was detected, it is alleged, was from the soil taken from near the hand. Under the circumstances it is not possible even to reach a prima facie conclusion as to whether it is arsenic from the soft tissues of the body. There is, therefore, nothing to show whether' the death was natural or homicidal. It is very unfor--tunate that because of the silence of Nurus Salam no autopsy on the body of the deceased could be carried out and incri--minating, evidence was lost. However, I have merely to see at this stage whether reasonable grounds exist to connect the appli--cant with the crime and though it is strenuously argued by Mr. Qureshi that the circumstances point to the fact that poison was administered and that symptoms showed thereafter of arsenic poisoning but even then there is no legal basis for establishing prima facie whether her death was homicidal.
7. I would like to make it clear that my observations are purely tentative and it will still be open to the investigating agency to move this Court for the cancellation of his bail if it is able to collect material which could indicate the cause of death.
8. Under the circumstances I would allow bail to the applicant in the sum of Rs. 20,000 with personal bond and one surety in the like amount to the satisfaction of the Inquiry Magistrate. The application is accordingly accepted.