BASHIRUDDIN AHMAD, J.-Rashid alias Kaka (18) was tried for the murder of Mst. Kishwar and attempted murder of Ram Kishen on March 2, 1967, by the Additional Sessions Judge, Lyallpur, who convicted him under section 302, P. P. C. To suffer death and to pay a fine of Rs. 1,000 or in default of payment of fine to undergo rigorous imprisonment for three years. The fine, if realised, was ordered to be paid as compensation to Mst. Naziran. Rashid alias Kaka was also held guilty under section 307, P. P. C. And was sentenced to undergo rigorous imprisonment for a period of seven years. The sentences of imprisonment were ordered to take effect in the event of death sentence being not confirmed by this Court.
2. The condemned, person appealed and the case is also before us under section 374, Cr. P. Code, for confirmation of the death sentence. This judgment will dispose of the appeal as well as the reference.
3. The prosecution story, briefly narrated, is that on March 2, 1967, at about 5 p.m., the appellant who is the maternal cousin of Fazal Muhammad came to Chak No. 313/G. B., Lyallpur District, and handed over sweets to Mst. Naziran telling her that he had distributed the sweets as he had purchased a new bicycle. The appellant told the lady to have the sweets and also give it to the children. Mst. Naziran gave some sweets to her daughter Mst. Kishwar and Ram Kishen. The appellant left the place. Mst. Kishwar as well as Ram Kishen were token ill after eating the sweets.
Mst. Kishwar started vomiting. Ram Kishen survived, but Mst. Kishwer died on the following morning.
The poison was administered as there had been strained relations between Fazal Muhammad and Nazir, a brother of the appellant, who had been married to Mst. Bashiran, a sister of the complainant. Since the treatment of Nazir with his wife was cruel, she was brought by Fazal Muhammad to his house. About a month before the occurrence, under consideration, Nazir convened a Panchayat which included Allahdad and Sardar Muhammad. Nazir was anxious to take Mst. Bashiran to his house, but the request was refused by, Fazal Muhammad. Mst. Bashiran then filed a suit for dissolution of marriage against Nazir in the Civil Court at Toba Tek Singh, which was decreed.
4. After the occurrence, Fazal Muhammad proceeded to Chutiana Police Station, at a distance of five miles from the spot, and reaching there at 9-30 a.m. Ort 3-3-1967 lodged the report, Exh: P. A. A copy of the report was sent by the scribe to A. S. I. Imam Bakhsh (P. W. 18), who happened to be present at Chak No. 315/G. B. He reached Chak No. .313/G. B. At mid-day and found Mst. Kishawar lying dead. He prepared the injury-sheet and the inquest report and then despatched the dead body to the mortuary for post-mortem examination. Fazal Muhammad produced the left-aver sweets before the Investigating Officer which were taken into possession in the presence of Rehmat Ali (P. W. 7) and Bashir Ahmad (P. W. 8), and were made into a sealed parcel.
The case was partly investigated by S. I. Ashiq Hussain (P. W. 19). Ram Kishen appeared, before him on March 4, 1967. He prepared his injury-statement and sent him for medical examination. On March 5, 1967 the appellant was produced before the Investigating Officer by Bashir Ahmad and tie arrested him. On search of the person of the appellant, the Sub-Inspector recovered key, Exh. P. 1, which was taken into possession vide memo. Exh. P. C. On March 8, 1967, the appellant was interrogated. He took the police to his house. The door of the house was locked. It was opened with the help of key, Exh. P. 1, and from over a parchhati the police recovered a packet con--taining powder, which was taken into possession and sealed into a parcel.
5. Dr. Zaka Ullah Chaudhury (P. W. 1) performed post--mortem examination on the dead body of Mst. Kishwar on March 4, 1967, at 11-30 a.m. And found that she was a cachectic girl with eyes sunken and eye-balls depressed. The abdomen was bluish, nails of hands and toes were blue.
Rigor mortis was present only on the legs. Skull and brain were normal. Both ventricles contained blood, right contained more than the left. The blood in the left ventricle was clotted. Stomach contained semi-digested material of white colour. Small intestines con--tained chyme. Flakes of mucus membrane were present. The cause of loath was not given by the doctor at that the.
6. Dr. Ihsanul Haq (P. W. 2) examined Ram Kishen on March 4, 1967, and found him to be a case of poisoning within a duration of 48 hours.
7. The defence of the appellant was a bare denial. He ascribed the case to enmity. Elaborating the point, the appellant stated that Fazal Muhammad P. W. Wanted the hand of his sister in marriage for his brother which the appellant refused and Fazal Muhammad implicated him in the case falsely.
8. No evidence was produced in defence.
9. At the trial, Fazal Muhammad (P. W. 13), Mst. Naziran (P: W. 14), Mst. Bashiran (P. W. 15) and Ram Kishen (P. W. 16) furnished direct evidence. The substance of their evidence is that on the eventful day at about 5-00 p.m. The appellant visited the house of Fazal Muhammad in Chak No. 313/G. B., where they were present with the deceased and gave some sweets to Mst. Naziran and mentioned that as he had purchased a new bicycle, he was distributing niaz. The appellant asked Mst. Naziran to-take the sweets and also distribute it among the children of the family. Mst. Naziran gave some sweets to Mst. Kishwar deceased and also to Ram Kishen P. W. They were taken ill after consuming the sweets. They started vomiting. Ram Kishen went away to- his own house. Sardar Ali Hakeem was sent for and he examined Mst. Kishwar and declared that she had been poisoned. He prescribed Ghee and Milk for the child. Mst. Kishwar died at about 4-00 a.m. On 3-3-1967.
10. Fazal Muhammad has to sisters, namely Mst. Naziran and Mst. Bashiran, who lived with him at the material the. Mst. Kishwar deceased was the daughter of Mst., Naziran. Mst. Bashiran had been married to a brother of the appellant. The couple were unable to pull on amicably and six or seven years ago. Fazal Muhammad brought Mst. Bashiran to his house. Ram Kishen happened to be present at the house of Fazal Muhammad whose mother was ailing. He is a J. V. Teacher but was out of employment at the material the. He fully corroborated the evidence of Fazal Muhammad and his sisters when he deposed that in his presence Rashid alias Kaka came to the house of Fazal Muhammad on a bicycle and said to Mst. Naziran that he. Had brought sweets to celebrate the purchase of a new bicycle. He gave an envelop containing the sweets to Mst. Naziran. She gave some sweets to her daughter Mst. Kishwar. She also gave the sweets to Ram Kishen, who ate it and went to his house. After about five or ten minutes, he started vomitting and informed Fazal Muhammad that he started vomitting after eating the sweets. It is also in the statement of Ram Kishen that he saw Mst. Kishwar also vomitting. She was taken to Sardar Ali Hakeem, who declared that she had been poisoned. Barkat Ali, who was examined as the 17th witness 'for the prosecution said only this much in his statement that in his presence the appellant gave an envelop to Mst.
Naziran. Ram Kishen, Fazal Muhammad and Mst. Bashiran were also present at that the. Mst.
Naziran went inside her house and Barkat Ali left the place. He learnt about the death of Mst.
Kishwar on the following morning.
The evidence of Fazal Muhammad and his sisters with regard to the passing of the sweets by the appellant to Mst. Naziran is sufficiently borne out from the evidence of Ram Kishen whom we consider as completely disinterested. The evidence of Barkat Ali also proved that something was delivered to Mst. Naziran P. W., contained in an envelop, by the appellant. Sardar Ali Hakeem confirmed fat he examined Mst. Kishwar at the instance of Fazal Muhammad and found that she had been poisoned. It is also in his statement that on his query he was told that she had taken sweets brought by the appellant. Hakeem Sardar Ali was crass-examined, but nothing was elicited from him in cross-examination to show that his statement to, the effect that Fazal Muhammad mentioned to him immediately that the child was taken ill after she had eaten the sweets brought by his maternal uncle's son Rashid alias Kaka appellant, was an impro--vement. In view of the evidence of Ram Kishen and Sardar Ali Hakeem we are inclined to hold that the prosecution succeeded in proving affirmatively that the appellant gave the sweets .To Mst. Naziran and it was taken by Mst. Kishwar and Ram Kishen. The latter survived after suffering the symptoms of poisoning, but the child died. The viscera of Mst. Kishwar deceased was sent to the Chemical Examiner, who detected white arsenic:
11. Some of the sweets were left over as is clear from the evidence of the inmates of the house and Fazal Muhammad produced the same before the Investigating Officer in the presence of Rehmat Ali and Bashir Ahmad, a B. D. Member. The sweets were also sent to the Chemical Examiner and he found arsenic in the same. We have gone through the statements of Rehmat Ali. Bashir Ahmad and the Investigating Officer and notwith--standing a discrepancy here or a discrepancy there, we are satisfied that Fazal Muhammad had produced to the police in presence of Rehmat Ali and Bashir Ahmad some left over sweets which were taken into possession by the police and were later on sent to the Chemical Examiner and arsenic was found mixed in the sweets.
12. There is evidence that at the the of his arrest, the appellant was found in possession of key, Exh.
P.
1. He was interrogated by the police. He took. The police to his house at Shore Kot Road. The lock of the house of the appellant was opened with the help of key, Exh. P. 1, recovered from the personal search of the appellant at the the of his arrest, and in the presence of Muhammad Iqbal (P. W. 5) and Fazal Muhammad (P. W. 6), the 'appellant pointed out to a packet lying on a parchhali inside his house, which was taken into possession and was sealed into a parcel by the police.
Muhammad Iqbal is a Chaukidar. So is Fazal Muhammad Arain. They admitted that they have been joining the police investigation. They are, however, not proved to be inimical towards the appellant.
Learned counsel for the appellant pointed out certain omis--sions in 'the statements of the recovery witnesses, but every omission is not a contradiction. The omissions, so pointed out, do not go to affect the prosecution case on merits. After carefully considering the evidence of Muhammad Iqbal and Fazal Muhammad as also the statement of the Investigating Officer, we are satisfied that the recovery was genuine. The contention that the recovery was effected on the 3rd day of the arrest of the appellant and as such it should be discarded is without substance. It is true that the appellant was arrested on March 5, 1967, but on the following day he was sent to a Magistrate for the purposes of remand. He was interrogated on the 8th and he led to the. Recovery of a packet containing some white powder, which was sent to the Chemical Examiner and was found to contain white arsenic. We do not share the view that arsenic was planted by the police.
13. It is thus proved from the evidence on the record that the appellant was found in possession of white arsenic, he gave sweets to Mst. Naziran on the pretence that he was distributing the same as niaz because he purchased a new bicycle and insisted that not only Mst. Naziran should take it, but also give it to the children of the family. Mst. Naziran gave the sweets to he daughter. And also to Ram Kishen. The latter survived, but the child died as a result of arsenic poison, as is clear from the report of the Chemical Examiner.
14. The appellant had a motive as there is evidence that Mst. Bashiran, who was married to a brother of the appellant, had left the house of her husband. She had taken up residence with. Fazal Muhammad and a month before the present occur--rence, Nazir a brother of the appellant had taken a panchayat to Fazal Muhammad, but the latter had not agreed to send Mst. Bashiran with her husband. Mst. Bashiran filed a suit for dissolution of marriage against the brother of the appellant at Toba Tek Singh and the same was decreed after the present occurrence. We, therefore, hold that the prosecution succeeded in proving a sufficiently strong motive on the part of the appellant to have administered poison.
15. Learned counsel for .The appellant cited Mumtajuddin Khan v. The State (PLD 1958 Dacca 1) and contended that the Chemical Examiner should have been called as a witness to prove that Mst.
Kishwar died as a result of arsenic poison. The defence did not insist on the calling of the Chemical Examiner as a witness at the trial. With utmost respect to the observations in the reported case, we are of the view that the report of the Chemical Examiner is evidence in view of the provisions of section 510 of the Code of Criminal Procedure, and it was not at all necessary for the Chemical Examiner to have appeared and offered himself for cross-examination by the appellant. The Allahabad case Happu v. Emperor (35 Cr. L J 280), relied upon by the learned counsel for the appellant is also to the same effect.
16. We have considered the 'instant case in the light of to judgments Ladha Singh v. Emperor (AIR 1921 Lah. 108) and Emperor v. Suryanar-- ayana Murthy (22 M L J 333) and are of the view that the case against the appellant is established beyond all manner of doubt. He appears to have been rightly convicted both for the murder of Mst. Kishwar and the attempted murder of Ram Kishen.
The appellant mentioned his age in his statement before the committing Magistrate as 16 or 17 years. He gave his age as 13 or 14 years in his statement at the trial. The learned Additional Sessions Judge instead of getting the appellant examined for his age considered him to be 18 years old from his general appearance on 7-1-1969. The occurrence tools place on 2-3-1967. In view of the extreme youth of the appellant, we substitute the sentence of death passed on him for the murder of Mst. Kishwar to transportation for life. The conviction and the sentence passed on him for the offence under section 307, P. P. C. Is allowed to stand and is ordered to run concurrently with the life imprisonment: The death sentence is not confirmed. The sentence of fine and the order with regard to the payment of compensation is also upheld: The appeal is accepted to the above extent only.