GHULAM MUST AFA MUGHAL, J.--- The captioned appeal has been directed under section 25 of Azad Jammu & Kashmir Islamic Penal Laws (Enforcement) Act, 1974 read with the Azad Jammu & Kashmir Supreme Court Rules, 1978, against the judgment dated 07.11.2018, passed by the Shariat Appellate Bench of the High Court of Azad Jammu & Kashmir (High Court) in Criminal Appeal No. 41 of 2016.
2. The facts forming the background of the captioned appeal are that Saeed Iqbal complainant, herein, made a written report at Police Station Bagh, on 29.01.2013, stating therein that he received an information through telephone call about the death of his brother namely Javed Iqbal who was residing in village Keyat along with his family . The complainant went to his brother's home and his. Bhabhi (sister-in-law) told him that his husband (brother) had passed away due to Cardiac arrest. Thereafter , the funeral rites were observed in routine. It was stated that after passage of sometime, the complainant came to know about illicit relations of his Bhabhi with Arif Shahid Butt who was running the business of cotton-gin in a shop at Hari Ghel Bazar . It was further stated that his Bhabhi used to go at the shop of Arif Shahid Butt who resided for some time in the house of Manzoor Hussain , a neighborer of Javed Iqbal (deceased) and developed illicit relationship with him. It was further stated that in order to perpetuate the illicit relationship, they managed to enter into contract of Nikah and to achieve the desired target, Arif Shahid Butt and convict-appellant planned for the murder of Javed Iqbal (deceased), in the intervening night of 28th and 29th of January , 2013. It was further stated that the convict-appellant with the abetment of co accused by administering poison, caused the murder of Javed Iqbal (deceased brother). It was further stated that on 14.03.2013, Nusrat Jan convict-appellant, got her statement recorded in the Court of Civil Judge Paniola Dattot stating therein that her husband has died a six months ago and now she wants to marry Arif Shahid Butt with her free consent but her brothers-in-law (URD U TEXT) are creating hurdles in exercise of her lawful right. It was also stated that Nusrat Jan, appellant, herein, also got her confessional statement recorded before the Magistrate 1st class, Bagh, wherein, she has confessed regarding the murder of Javed Iqbal by administering poison in connivance with Arif Shahid Butt. Upon this report, FIR No. 42/13, in the offences under sections 302 and 34, APC, was registered. After necessary investigation, the police recorded the statements of the witnesses and got conducted the post-mortem of the dead-body after exhumation. The challan was presented before the District Court of Criminal jurisdiction, Bagh, on 15.04.2013. The statement of the accused were recorded under section 265-D, Cr.PC on 07,06.2013. Mst. Nusrat Jan (convict-appellant) partly accepted the allegations, whereas Arif Shahid Butt, pleaded not guilty , whereupon, the prosecution was asked to lead evidence in support of the charge.
Out of 33 listed witnesses, the prosecution produced as many as 31 witnesses who have supported the prosecution. story . After recording the prosecution evidence, the statement of the accused under section 342, Cr.PC was recorded on 19.12.2015. The accused again pleaded not guilty . At the conclusion of the trial, the learned District Court of Criminal Jurisdiction, Bagh, vide judgment dated 29.01.2016, while holding the accused guilty convicted them and awarded them the sentence of life imprisonment under sections 302 and 34, APC. The accused were also ordered to pay a sum of rupees three lac each under section 544-A, Cr.PC to the legal heirs of the deceased; and in case of default, the accused have to further undergo six months' simple imprisonment. The accused were given the benefit of section 382-B, Cr.PC, however , the accused were acquitted of the charge under section 10, ZHA. Feeling aggrieved from the judgment dated 29.01.2016, Nusrat Jan, convict-appellant, filed an appeal before the High Court on 29.02.2016. The learned High Court after hearing the parties through the impugned judgment dated 07.1 1.2018, has dismissed the appeal.
3. Sardar Muhammad Rebaz Khan , the learned Advocate appearing for the convict-appellant argued with vehemence that the case of the prosecution is based on circumstantial evidence, hence, it was enjoined upon the learned District Court of Criminal jurisdiction as well as the High Court to appreciate the evidence for the purpose of recording the conviction with great care and caution. The learned Advocate further argued that it was the duty of the prosecution to prove that the accused was in a position to purchase the poison and she was in possession of the same on the fateful day and administered the poison to the husband which fact has not been proved through any direct or indirect evidence, therefore, the conviction is based on surmises and conjectures, hence, the same is liable to be set-aside. The learned Advocate further argued that the confessional statement recorded under section 164, Cr.PC, is also not of worth consideration because the record is silent that who brought Nusrat Jan, convict-appellant, before the Magistrate for recording the confessional statement. The learned Advocate further argued that when the confessional statement is itself found doubtful for not being recorded voluntarily as was required under section 364, Cr.PC, then the same could not be relied upon and used against the convict-appellant for the purpose of recording conviction. The learned Advocate further argued that the prosecution case is not only doubtful but there are various dents in the prosecution story, which are liable to be resolved in favour of the convict-appellant and she deserves acquittal by extending the benefit of doubt. In this regard, the learned Advocate has placed reliance on the case reported as Gulzaman vs. Sherin Bahadar & others [2010 YLR 3019 ]. The learned Advocate further argued that the circumstantial evidence can be relied upon if it is so interlinked and must form such a continuous chain that its one end touches the dead- body and the other to the neck of the accused excluding thereby all the possible hypothesis of innocence. In the case in hand, according to the learned Advocate, the chain of evidence is not interlinked, hence, cannot be relied upon. The learned High Court, thus, fell- in error of law while approving the conviction awarded to the appellant, herein, by the District Court of Criminal jurisdiction, Bagh. The reliance was placed on the case reported as M Babar vs. State [2014 .SCR 1585 ]. The learned Advocate further argued that in this case, the evidence was not of worth consideration, hence, the conviction of the appellant, herein, is not maintainable. In support of his submission, the learned Advocate has placed reliance on the case reported as M Tasleem &. another vs. The State and another [2014 SCR 893]. He further argued that the post-mortem report was also not complete because the report of the Chemical Examiner was 'not, shown to the doctors who have conducted the post-mortem, hence, there was no final opinion that the death of the accused was caused due to administering the poison. The learned Advocate argued that the FIR was lodged after a period of more than two months without any explanation, thus, this unexplained delay caused serious doubts on the prosecution story which is liable to be resolved in convict's favour,
4. Conversely , Raja Inamullah Khan , the learned Advocate-General and Mr. Zaffar Iqbal Azad , the learned Advocate for the complainant defended the impugned judgment and submitted with vehemence that the illicit relationship of the convict-appellant with the co-accused has been admitted by the convict-appellant and is proved from the statement of her sons as well as the statement recorded under section 164, Cr.P.C. They argued that during the Iddat period, an attempt was made by the convict for contracting marriage with the co-accused and for the said purpose she got recorded her statement which is that part of the record and the same has not been disowned by the convict-appellant or the co-accused, thus, the motive behind the commission of offence was very much obvious and is proved and the conv ict-appellant in furtherance of the motive in connivance of her paramour , has achieved the target by murdering her husband in a brutal manner . The learned Advocates further argued that the children of the deceased (Javed Iqbal ) have categorically canvassed in their statement, the picture of last breaths of the deceased and the demand for water by him, but the, convict-appellant, herein, did not provide the same to the deceased for achieving the target and the poison was found in the considerable quantity even after the period of two months which was sufficient and adequate for causing the death of a human being, thus, it is amply proved that the death was caused due to administering the poison. The learned Advocate-General as well as the learned Advocate for the complainant cited a paragraph from the Modi's Medical Jurisprudence and Toxicology (26th Edition), page 21, which is reproduced as follows:--- "It is possible that a person may die from the effects of a poison, any yet, none may be found in the body after death if the whole of the poison has disappeared from the lungs by evaporation, or has been removed from the stomach and intestines by vomiting and purging, and after absorption- has been detoxed, conjugated and eliminated from the system by the kidneys and other channels. Certain vegetable poisons may not be detected in the viscera, as they have no reliable tests, while some organic poisons, especially the alkaloias and glucosides, may, by oxidation during life or by putrefaction after death, be split up into other substances which have no characteristics reactions sufficient for their identification.
5. We have heard the learned Advocates for the parties and gone through the record of the case. The facts of prosecution's case have already been listed hereinabove which need not to be repeated for the sake of brevity .
Suffice it to observe that the prosecution case is based on the oral account as well as documentary evidence i.e. post-mortem report, affidavit of Mst. Nusrat Jan, her application filed before the Civil Judge (Magistrate 1st class) for recording her statement, her statement recorded under section 164, Cr.PC (Ex-Px), the call data record (CDR) of the mobiles recovered by the police used by the accused for conversation and the report of the Chemical Examiner .
6. Firstly , we would like to discuss the oral evidence led by the prosecution. So far as the statement of the complainant is concerned, he has lodged the report after receiving the information and has owned the contents of application as well as the documents appended with the Challan. We think that the illicit relationship of the convict- appellant with the co-accused has been sufficiently established on the basis of the statement of Zohaib Javed s/o Javed Iqbal , deceased, who has stated in clear terms that the convict-appellant used to meet with the co-accused for bringing the amulets (Tawizat ) and the accused had also exchanged their cellular numbers. This witness has further stated that on the fateful day, the mother gave some medicine to the father as a result whereof, the vomiting was started to his father , whereupon, he demanded water but the mother did not allow to give him the same on the pretext that some medicines have been given to him and due to this, the father died early in the morning. The other witness, namely , Zaryab Javed who is also son of the deceased has also corroborated the statement of his brother Zohaib Javaid. These statements have been made by the sons against the convict-mother , hence, the truthfulness of the statement of these witnesses cannot be doubted. The other witnesses have also fully supported the prosecution story as the evidence has sufficiently been discussed by the learned trial Court and Shariat Appellate Bench of the High Court.
7. So far as the documentary evidence is concerned, the prosecution has produced the statement of Nusrat Jan, convict-appellant, recorded under section 164, Cr.P.C. by the Magistrate, wherein, she has admitted the manner of occurrence and illicit relation with the co-accused and administering the poison to the deceased. This statement has not been denied by her at the time of statement recorded under section 265-D, Cr.P.C. rather she has admitted the same. Though, the convict-appellant, has not owned the statement recorded under section 164, Cr.P.C. while making the statement under section 342, Cr.P.C, but this denial is not sufficient for discarding the confessional statement which has been owned by her at the time of framing of the charge. The statement is reliable and all the codal provisions have been complied with by the Magistrate before recording the statement. Moreover , the fact that she applied to the Civil Judge for recording of her statement in the terms that she wants to marry the co-acccused, is also an admitted fact and the same has not been denied by the convict-appellant which conduct of the accused proves the motive for taking life of the husband. This is the strong corroborative piece of evidence 'which cannot be ignored lightly . The post-mortem report as well as the 'report of Chemical Examiner also corroborate the incident.
The contention of the learned Advocate for the convict-appellant that the prosecution failed to prove to prove the purchase, possession and administration of the deceased, by the convict-appellant which was sine qua non for recording the conviction, is devoid of any force. Ordinarily , it was necessary prove that the convict Was in possession of the poison but to prove that she had purchased the same from some store, is not necessary . It was proved through evidence that the poison , was purchased by the co-accused and was duly administered by the convict-appellant, who was in a position to administer the same as the deceased and the convict being spouses were living together in a house, thus, it cannot be said that the ,convict appellant was not in a position to administer the poison to her husband in order to get rid of him and to fulfill, her plans of marriage with her paramour . Such offences are committed secretly by the culprits without leaving any sign on the spot. In the case reported as Bhupinder Singh vs. Slate of Punjab [1989 MLD 1762 ], the apex Court of India while dealing with the identical situation at page. 1770. has observed as under:-- "24. From the foregoing cases, it will be seen that' in poison murder cases, the accused was not acquitted solely on the failure of the prosecution to establish one or the other requirement which this Court has laid down in Dharambir Singh's case. We do not also find any case where the accused was acquitted solely on the ground that the prosecution has Jailed to prove that the accused had the poison in his possession. he accused in all the said cases came to be acquitted by taking into consideration the - totality of the circumstances. including insufficient motive. weakness in the chain of circumstantial evidence and likelihood of the deceased committing suicide:'
25. We do not consider that there should be acquittal on the failure of the prosecu tion to prove the possession of poison with the accused. Murder by poison is invariably committed under the cover and cloak of secrecy . Nobody will administer poison to another in the presence of others. The person who administers poison to another in secrecy will not Keep a portion of it for the investigating officer to come and collect it. The person who commits such murder would naturally take care to eliminate and destroy the evidence against him. In such cases, it would be impossible for the prosecution to prove possession of the poison with the accused. The prosecution may, however , establish other circumstances consistent only with the hypothesis of the guilt of the accused. The Court then would not be justified in acquitting the accused on the ground that the prosecution has failed to prove possession of the poison with the accused.
26. The poison murder cases are not to be put outside the rule of circumstantial evidence. There may be abvious very many facts and circumstances out of which the Court may be justified in drawing permissible inference that the accused was in possession of the poison in question. There may be very many facts and circumstances proved against the accused which may call for tacit assumption of the factum of possess ion of poison with the accused.
The insistence on proof of possession of poison with the accused invariably in every case is neither desirable nor practicable. It would mean to introduce an extraneous ingredient to the offence of murder by poisoning. We cannot, therefore, accept the contention urged by the learned counsel for the appellant. The accused in a case of murder by poisoning cannot have a better chance of being exempted from sanctions than in other kinds of murders.
Murder by poisoning is run like any other murders. In case where dependence is wholly on circumstantial evidence, and direct evidence not being available, the Court can legitimately draw , from the circumstances an inference on any matter one way or the other ."
The contention of the learned Advocate for the convict-appellant that it is the case of circumstantial evidence and all the chains are not interlinked in the manner to connect the convict with the commission of offence, has no substance in it. We have no quarrel with the proposition that for awarding the capital punishment in the case of circumstantial evidence, all the facts established should be consistent with the hypothesis of the guilt of the accused and if any link is missing that will-destroy the whole chain of such evidence and all the links of the circumstances must lead to the guilt of the accused. By now it is well-settled law that in case the circumstantial evidence should be so interconnected that it forms such a continuous chain that its one end touches the dead-body and the other the neck of the accused by excluding all the hypothesis of his innoc ence. The learned Advocate for the convict-appellant has also targeted the post-mortem report on the ground of delay . The criticism of the learned Advocate for the convict-appellant on the, post-mortem report as well as the report of Chemical Examiner is also baseless, as the FIR was lodged after a period after a period of two months from the commission of offence, whereupon, the body was exhumed. Although the body was decomposed but the sufficient material/sample was taken by the doctor for the purpose of chemical ''analysis and the report of the Chemical Examiner is also positive, hence, the opinion of the doctor as well as the report of the Chemical Examiner corroborated the manner of the occurrence and death by administering the poison to the deceased in the light of the view expressed by Modi's Medical Jurisprudence and Toxicology , reproduced hereinabove. The contention of the learned Advocate for the convict-appellant that the FIR has been lodged with unexplained delay , hence, the same 'is fatal for the prosecution case, is also devoid of any force in the circumstances of this case. The delay has property been explained and keeping in view the circumstances of the case, it cannot be said that the prosecution has consumed time for concocting any case against the convict-a ppellant or the co-accused, however , this factor can be counted towards the quantum of punishment. The learned trial Court sentenced the convict appellant, herein, to the life imprisonment. Though, the case on the basis of circumstantial evidence has been proved, however , keeping in view the standard of evidence required for awarding sentence in the criminal case, we are of the view that there are certain mitigating circumstances which have persuaded us to reduce the sentence awarded to the convict- appellant. Therefore, after considering the entire evidence and circumstances of the case, while maintaining the conviction, we reduce the sentence awarded to the convict-appellant by the Distri ct Court of Criminal Jurisdiction, Bagh, to the sentence already undergone. She shall be released forthwith if is not involved in any other of fence.
The appeal is disposed of in the manner indicated above.