The appellant above-named, being aggrieved by two Judgments dated 6th November, 1976 of the learned Ex. Office III Additional Sessions Judge, Karachi, passed in Sessions Cases Nos. 91 and 93 of 1972 by which in Sessions Case No. 91/72, -he has been convicted under section 304, P. P. C. For administering some medicine, which contained methyl alcohol, a deadly poison to deceased Bashiruddin and Ibrahim and sentenced to 3 years' R. I.. And fine of Rs. 10,000 in default of payment of fine to suffer further R. I. For two years and in Sessions Cases Nos. 92 and 94 of 1972, in which he has been convicted under section 304, P. P. C. For administrating some medicine, which contained methyl alcohol, a deadly poison to deceased Mumtaz Khan and Abdul Majid and sentenced to suffer R. I. For 4 years, bas preferred above two appeals, on the following facts and grounds :-
2. In Sessions Cases Nos. 91 and 93 of 1972, the prosecution case against the appellant is, that appellant administered medicine containing methly alcohol to deceased Nasir son of Jamal, Yasin son of Taj Muhammad, Gafoor son of unknown Bashir son of Sher Mohd. Ibrahim son of Gulab Khan Bashiruddin son of Naney Khan, as a result of which all these six persons died, first three on 9th February, 1969 and the last three during the night between 8th and 9th February, 1969. Both the Sessions cases in question were - consolidated and tried together. According to prosecution case appellant was running drugstore and also practised as medical practitioner. Appellant in his statement under section 342, Cr. P. C. In these cases denied having supplied any medicine, to the above-named six deceased persons. Prosecution examined in all 20 P.Ws. And produced reports of Chemical Examiner Exhs. 28, 29, 30, 31, 37 and 38, without examining the Expert, as well as post- mortem reports of the bodies of the six persons in question, as Exhs. 33, 34, 35, 39 and 50. Whereas appellant produced with his statement under section 342, Cr. P. C., 2 drug licences as Exh. 58 and denied all the allegations of the prosecution. The learned trial Court after taking into consideration the evidence adduced before it, convicted the appellant in said Session cases as hereinabove mentioned for culpable homicide not amounting to murder under section 304, P. P. C. For the deaths of Bashiruddin and Ibrahim only.
3. In Sessions Cases Nos. 92 and 94 of 1972 the prosecution case against the appellant is, that appellant practised as doctor and also owned a medical store and he used to supply contraband liquor to his customers and in these cases, he supplied medicine or drink containing methyl alcohol to deceased, Abdul Majid and Mumtaz Khan, with the result, that both of them died on 9th February, 1969. Both the cases were tried together and disposed of by common judgment dated 6th November, 1976. In support of its cases prosecution examined in all 9 P. Ws. And produced reports of Chemical Examiners as Exhs. 27, 28, 29, 31 and 33 and post-mortem reports as Exhs. 60 and 61. Whereas appellant produced with his statement under section 342, Cr. P. C., 2 drug licences as Exh. 65 and denied all the allegations of the prosecution against him. The learned trial Court, after taking into consideration all evidence adduced before it, convicted the appellant in said Sessions cases as hereinbefore mentioned, for culpable homicide not amounting to murder under section 304, P. P. C., for the death of Abdul Majid and Mumtaz Khan.
4. Appellant above named, being aggrieved by above two impugned judgments dated 6th November, 1976 of the learned Ex Officio III Additional Sessions Judge, Karachi given in Sessions Cases Nos. 91, 92, and 94 of 1972 has preferred above two appeals, on the grounds mentioned in the memo. Of appeals.
5. Since similar facts and common law points are involved in both the above appeals, 1 propose to dispose of both the above appeals, by this common judgment.
6. The learned Advocate for the appellant in support of both the above appeals submitted as under :-
(a) Prosecution has not at all examined even a single eye-witness, that appellant prescribed and/or gave the medicine and/or methyl alcohol to any of the four persons in question, as medicine.
(b) That no incriminating red medicine was recovered from the possession of the appellant and/or alleged red poison prescribed by the appellant was seized from the houses of the deceased persons.
(c) Chemical Analyser was not produced as witness for proving the reports in question, which was absolutely necessary in such cases, to offer opportunity to appellant to cross-examine him, specially when reports in question did not mention actual fatal doze nor quantum of such poison's presence in the bodies of deceased persons. In support of this contention the learned Advocate for the appellant relied upon cases reported in PLD 1958 Dacca 1, AIR 1958 All. 1 and AIR 1957 Andh.
Para. 456.
(d) Evidence of P. Ws. Is based on the statements of the deceased persons made to them and as such said witnesses are not eye--witnesses for prescribing of alleged red medicine to the victims by the appellant and as such in the absence of examination of Chemical Analyser, before the learned trial Court, the evidence of these witnesses have no evidentiary value at all. Further evidence of some of these witnesses was not legally admissible, but the learned trial Court has still relied on the same.
In view of the above submissions, the learned Advocate for the appellant submitted, that appellant is entitled to benefit of doubt.
7. The learned State counsel at the outset submitted, that he was not supporting the impugned judgments, on account of above facts and legal position.
8. I have carefully considered the above submissions made by the learned Advocate `or the appellant and statements of the prosecution witnesses recorded by the learned trial Court and have gone through the Chemical Examiner's Reports and post-mortem reports, as well as through the various authorities cited by the learned Advocate for the appellant.
9. The main contention urged by the learned Advocate for the appellant before me was, that since on the basis of the Chemical Examiner's reports in question, the appellant was to be convicted for alleged murder of the deceased persons, suspected to have died of poison, which was prescribed to them according to the prosecution by the present appellant, the learned trial Court, ought not to have accepted the said reports of the Chemical Examiner, as proof of death of such persons on account of poisoning, without examining Chemical Examiner himself in Court, specially when the Chemical Examiner's reports in question are completely silent about the fatal and lethal dose of alcohol and/or poison discovered by him in his examination and in view of the fact, that the said reports are also silent about the actual quantity of such stuff found on examina--tion, by the Chemical Examiner. In support of this contention the learned Advocate for the appellant had relied upon a case of Mumtazuddin Khan v. State (PLD 1958 Dacca 1). In the instant case, the Divisional Bench of the High Court of East Pakistan held as under :- ---The rule that the evidence of one party should not be received as evidence against another party without the latter having an oppor--tunity of testing it by cross-examination, applies with great force to a criminal case where death has been the result. This rule of law should be strictly enforced, if any weight is sought to be attached to a report of the chemical examination of suspect material. No person, therefore, ought to be put in peril of capital or any punishment on a written report not given on oath and untested by cross-examination. To accept such a report, whatever it may contain, as proof of death by arsenic poisoning, or of anything, is an impossible proposition in law.---
10. Besides relying on the above authority, the learned advocate for the appellant has also relied upon a case reported in AIR 1958 All. 1 in which also the learned Judges have held as under :- .
It is of the utmost importance in a case of arsenic poisoning, that the prosecution should prove that a lethal dose of arsenic, that is, two grains or upwards, had been administered. In India, arsenic is used as a medicine ---in all manner of diseases---. It is, therefore, impossible to take the mere evidence, that arsenic was detected as sufficient to prove conclusively, that death was from arsenic poisoning. It is of the utmost importance before a Court can find any individual guilty of murder by the administration of arsenic that a complete analysis should be made. Given the necessary knowledge and the necessary instruments, modern science has no difficulty in coming to a conclusion as to the approximate quantity administered.---
11. The other case oil which the learned Advocate for the appellant relied upon was one in AIR 1957 Andh. Para. 456 in which the learned judges of the said Court held as under:- ---Where an accused is charged with an offence of murder by poison--ing the deceased with sodium nitrite, the lethal dose of which is about 20 to 30 grains, and only one grain of the poison is detected in the viscera of the deceased, the benefit of the doubt arising from the absence of proof, that the lethal dose must have been adminis--tered by the accused, has to be given to him.---
12. It is clear from the above cases, cited by the learned Advocate for the appellant, that rule of prudence demands, in the absence of anything on record to show that was the fatal or lethal dose, as far as the poison detected by the Chemical Examiner and/or about the actual quantity found by the Chemical Examiner in his examination, the Chemical Examiner ought to have been examined by the learned trial Court and opportunity afforded to the appellant to cross-examine him, if he so desired; in view of provisions of sections 100 and 104 of the Evidence Act. In the present case the Chemical Examiner's reports in question are completely silent, both in respect of the fatal dose as well as the quantity of the poison found by the Chemical Examiner on his examination and as such I am in respectful agreement with the views of the Hon'ble Judges in the above-mentioned three cases, that the prosecution ought to have examined the Chemical Examiner before the learned trial Court and since prosecution failed to do so, it was the duty of the learned trial Court, in view of the proviso of section .410, Cr. P. C. To summon and examine the Chemical Examiner in question.
Since this was not done, in my opinion, the appellant is entitled to benefit of doubt, on the ground, that A the prosecution has failed to prove conclusively beyond reasonable doubt, that the deceased persons in question really died as a result of poison or alcohol found in their bodies. It may be noted, that even the doctors, who performed the post-mortem examination of the deceased persons in question, have not mentioned the quantity of the poison or alcohol, which they actually found in the bodies of the deceased persons in question and g as such their opinion about the cause of the death of said persons, cannot be accepted as conclusive, in the circumstances and the facts of the present cases, as prosecution has not examined a single witness to establish, that the deceased persons were actually prescribed and given a red medicine in question by the appellant and further that beside the said red medicine, said deceased persons, had not taken any other medicine or alcohol, which could have been the cause of their deaths. In view of above conclusions of mine, I see no reason to agree with the conclusions and findings of the learned trial Court, that the prosecution has established its case beyond reasonable doubt against the present appellant in respect of the deaths of these four deceased persons, respect of whose deaths the learned trial court has convicted the appellantunder section 304, P. P. C. And sentenced him, as here in above-mentioned. In view of my above conclusions and findings it is not necessary for me to consider in any further details, the other grounds urged by the learned Advocate for the appellant, before me.
13. Therefore, I allow both the above appeals and set aside both the impugned judgments of the learned trial court and acquit the appellant in both the cases by giving him benefit of doubt and consequently discharge the bail bonds executed by the appellant, in both these appeals.