Appellant Noor Jehan was tried for committing murder of her husband by poisoning him by the First Additional Sessions Judge, Larkana who by his judgment, dated 1st January, 1979 convicted and sentenced the appellant to life imprisonment under section 302, P. P. C. By a short order dated 21st December, 1982, I had allowed the appeal and acquitted the appellant for reasons to be recorded later on which follow as under :
2. Mst. Noor Jehan the appellant was the wife of deceased Ali Muhammad who died on 14th August, 1977 at 2-00 a. m., apparently developing stomach pain and by vomitting. She married the deceased three or four months prior to the death of the deceased. It was an arranged marriage whereby the appellant was given to Ali Muhammad and Mst. Bhagul sister of the deceased was married to the brother of the appellant. Complainant Talib Hussain is the brother of deceased. Talib Hussain and the family of the deceased lived in the same house where amongst others resided Kauro Khan father of the deceased Mst. Subhan Khatoon and her husband Sultan. During the time of incident Talib Hussain was not present in the house and had gone to visit his uncle Khuda Bux in the village of Dur Muhammad Sihar, Taluka Mehar, District Dadu. On the fateful night All Muhammad the deceased had gone in the town and returned late at night at 11-00 p. m. His wife Noor Jehan waited to him consisting of Bhat (rice), milk and sugar. After having taken the meals deceased slept with the appellant. After an hour the appellant raised alarm that something has gone wrong with her husband. The inmates of the house such as Kauro, Sultan and Subhan Khatoon woke up and found the deceased shivering and struggling for life. He was hurriedly taken to medical practitioner Muhammad Shafi in the same village who divulged that he has been poisoned and that he be taken to the Civil Hospital. However, the same night at 2-00 a. m. The deceased, vomitted once or twice and then died. The deceased was buried. Complainant was called from the village of Dur Muhammad and he came three days later on. However, when Talib Hussain brother of the deceased returned he suspected some foul play. His sister Subhan Khatoon had informed complainant Talib Hussain that about one week prior to the incident the appellant was making enquiries if the powder used for killing the rats would also kill human beings. Due to this conversation the complainant suspected the wife of the deceased and accordingly he filed the F. I. R. At Nasirabad Police Station.
3. The F. I. R. Was filed on 16th August, 1977 which was registered by S. H. O. Nasirabad Police Station.
The S. H.O. Hastened to the place of occurrence which was in the house of the complainant Talib Hussain in the village of Lalu Raunk. In presence of rnashirs Roshan Ali and Madad Ali he prepared the mashirnama of vardat. He secured the vomitting material mixed with dust from the place of occurrence and sealed the same in presence of the mashirs, vide mashirnama Exh.
21. The eating pot was also secured. He recorded the statements of Kauro. Sultan, Mst. Subhat, Mst. Karimat and Shafi Muhammad the learned medical practitioner. On 17th he applied to the S. D. M. Warah for exhumation of the dead body of the deceased. It was exhumed on 18th August, 1977 in presence of Mukhtiarkar and F. C. M. Dr. Ubedullah of the Nasirabad dispensary conducted autopsy on the spot.
He took out some internal organs. The inquest report of the body, vide Exh. 23 was prepared. On 26th August, 1977 namely about 12 days after the incident Mst. Noor Jehan was arrested from bus stop at village Wagan. On 30th August, 1977 she voluntarily produced the pills of poison from her house at Lalu Raunk and the same were taken out from kacha wall. The pills were secured and sealed, vide mashirnarna Exh.
24. The S. H.O. Further examined Mst. Bhagul and Khuda Bux on 31st August, 1977. Subsequently he challaned the appellant before the trial Court. It is in the evidence that those pills which were alleged to have been produced by the appellant were not sent to the Chemical Analyser and the report of the Chemical Examiner is not available in this respect.
4. The appellant in her statement before the trial Court has stated that she is innocent and that she was not in the house of her husband at the relevant time. She has further stated that her husband had driven her away from the house about three months prior to the occurrence and she was arrested from the house of her parents. She denies to have produced the so-called pills of the poison. Her version is that her father had filed a theft case against Talib Hussain the complainant some time back and therefore, her relations with her deceased husband became strained and finally she was verbally divorced and driven out.
5. Arguments of Mr. Hayat Junejo learned counsel for the appellant were fully heard. Mr. Jalaluddin Baloch made his submissions on behalf of the State. Mr. Baloch has not supported judgment of the trial Court.
6. The points raised by Mr. Junejo briefly are that the case against the appellant is not proved beyond any reasonable doubt and that it is also not proved that the poison was administered to the deceased, by the appellant.
7. The prosecution has examined Dr. Ubedullah Exh. 6, tapedar Abdul Aziz Exh. 9, complainant Talib Hussain Exh. 11, Dr. Muhammad Shafi Exh. 13, Kauro the father of deceased Exh. 14, Subhan Khatoon Exh. 16, Sultan Exh. 18, mashir R oshan Ali Exh. 20, S. H.O. Jan Muhammad Exh. 25, S. Fl.0. Iqbal Ahmad Exh. 30 and W. H. C. Qurban Ali Exh.
31. The appellant in her defence had examined her father Haji Sher Khali Exh, 34.
8. The evidence of Medical Officer Mr. Ubedullah is important in this case. He had conducted the post-mortem of the dead body from 9-00 a. m. To 10-30 a. m. On 18th August, 1977. The body was decompossed. Skin, hair and nails were loose. There was no external wound on the dead body. On the internal examination he has found both the pleaura having disappeared. Major portion of both the lungs had also disappeared. The stomach was empty and all other internal organs were found healthy. He took out the stomach, small and large intestines, liver, spleen, heart, kidneys, urinary bladder and femur bone for sending these organs to the Chemical Analyser. He however, reserved the opinion as regards the cause of death but subsequently when the Chemical report was received, vide Exh. 8, he opined that the death was caused due to poison. Ing. According to the report of the Chemical Analyser the poison was insecticide belonging to phosphatic group in the organs such as stomach, small and large intestines, liver, spleen, heart, kidney and urinary bladder.
However, there was no poison in the femur bone.
9. Dr. Muhammad Shafi Exh. 13 is another important medical practitioner designated as Health Inspector at Lalu Raunk village. He states that at about 1-00 a. m. The deceased was brought to him. He suspected a case of poisoning and administered first aid. He advised the relatives of deceased to take him to Civil Hospital. Larkana. In cross-examination he has stated that the symptoms of blackness on the nails or on the face also could be, those of cholera.
10. Apart from these two medical officers there is evidence of complainant, Kauro, Sultan and Subhan Khatoon on record. The complainant Talib Hussain has filed the F. I. R. Three days after the incident. In the F. I. R. No motive is given for the murder of the deceased by his wife. However, in the deposition the complainant has divulged some sort of Imotive stating that Noor Jehan was carrying on with Punhal and therefore, she wanted to separate from Ali Muhammad the deceased.
P. Ws. Kauro, Sultan and Subhan Khatoon all have given the brief story namely that the deceased returned from the village of Lalu Raunk late at night at 11-00 p. m. And that the appellant gave him the meals consisting of rice, sugar and milk. After one or two hours the condition of deceased worsened and he was taken to Dr. Muhammad Shafi who suspected it to be case of poisoning. He advised them to take the deceased to Civil Hospital for stomach wash. However, the deceased after vomitting died. These three witnesses have narrated the facts of the case as simple as that and next day in the morning the deceased was buried. It was only after the return of Talib Hussain from the village of his uncle Khuda Bux that he suspected some foul play. The witnesses indeed state that the appellant was inquiring whether the insecticide meant for killing the rats would kill a man. That was one week prior to the incident. This enquiry raised suspicion in the minds of close relatives of the deceased and F. I. R. Was filed.
11. The learned counsel of the appellant has submitted that the ieceased returned from the village of Lal Raunk late at night time i. e.
11-00 p. m. And one does not know as to with whom he remained during hat time and as to what he had eaten during his stay outside the house. Kcondly he has submitted that every wife waits for her husband to give him the meals and such simple food consisting of rice, sugar and milk vas given to the deceased. The deceased did not complain of any odour, bad smell or unpleasent taste of the meals. He quietly took them and lept. The learned counsel has further submitted that actually none saw he poison being administered to the deceased it cannot be presumed that ppellant gave the poison to him. There is no evidence on this particular point. The pills which are alleged to have been produced by the appellant were never sent to the Chemical Analyser as they were misplaced. The presumption therefore, is that such pills were not produced by the appellant. The appellant has denied to be present in the house of the deceased and claimed to be living with her parents at Larkana bus stand three months prior to the occurrence. She states that she was arrested from the house of her parents. Why the case was concocted against her, is explained by her that because a theft case was filed by her father against complainant Talib Hussain. It is at the instance of complainant that the body was exhumed and she was wriggled in the present case.
12. The submissions made by the appellant's Advocate carry weight. Unless it is proved beyond any reasonable doubt. That verily the poison was administered to the deceased by the appellant, she could not have been found guilty from the mere circumstances which were also explainable. She waited for her husband upto 11-00 p. m. To give him food. This circumstance is normal and every house wife does wait for her husband to feed him. There is nothing strange about it. The second circumstance in this case is the inquiry made by appellant Noor Jehan whether the medicine which kills the rats would also kill a man. This enquiry as per statements of the witnesses was made seven days prior to the incident and the evidence led on this aspect of the case cannot be depended upon as reliable. The enquiry might have been innocent if at all it was made by the appellant.
13. The case of the appellant is that she was not in the house of her husband and she was arrested from the house of her parents. S. H.
0. Jan Muhammad visited the house of Kauro and complainant on the very day when he registered the F. I. R. And he had recorded statements of the witnesses but he did not make any enquiry from the appellant. This is significant that Noor Jehan was not present in the house. After 12 day of the incident she is said to have been arrested from a bus-stand at Wagan. This indicates that in all probability the version of the appellan might have been true and that she was with her father at Larkana. The house of her father is situated near the bus-stand at Larkana. When B suspicion was shown there was no reason for the S.H.O. To delay arrest of the woman. This factor goes in favour of the appellant. Besides the production of pills from the walls appeared to be fictitious. The insecticide meant for killing the rats is the insecticide generally given by the farmers to their crops and bags of it are lying in the house of every cultivator. It is known to be poison and is odorous.
None can take the odorous food so innocently as is alleged in this case. Those pills were misplaced and not sent to the Chemical Analyser. So the direct evidence which could possibly be against the appellant is significantly missing and as such the benefit of doubt could be given to the appellant to which sh is entitled.
14. I am referred two authorities having bearing on the instant case ; Mst. Hajul v. The State PLD 1958 Dacca 1. In the first case Mr. Khamisani, J. Observed as follows :- "Apart from that, the solitary circumstance of Mst. Hajul having brought the meals for her husband without there being any evidence to show that she had cooked the meals or mixed up the arsenic in the meals will not be sufficient for holding Mst. Hajul to be liable for the offences with which she has been charged. On this view of the matter, the motive alone cannot be the basis for conviction."
15. In the second case it was held that Chemical Analyser's report should not be accepted as a proof of death in case of a murder by poisoning without examining Chemical Examiner himself in Court. The rule is that the evidence of one party should not be received as evidence against the other party without the latter having an opportunity of testing it by cross-examination. It was further held that the rule of law should be strictly enforced if any weight is sought to be attached to the report of the Chemical Examination of suspect material and no person ought to be put in peril of capital or any other 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 of law.
16. In this case the trial Court has believed the report of Chemical Examiner and certain vague circumstances. In view of the two authori ties referred hereinabove the benefit must be given to the appellant and she is fully entitled to such a benefit. Accordingly I allow the appeal D and acquit the appellant. The judgment of the trial Court is consequently set aside. The appellant is on bail and her bail bonds stand discharged. PLD 1962 (W. P.) Kar. 5321 1