JUDGMENT SAJJAD AHMED SIPRA, J.- The present criminal appeal calls into question the legality and propriety of the judgment dated 6.11.1986, whereby the learned Addl. Sessions Judge, Kasur had convicted the appellant under Section 302 PPC and sentenced him to imprisonment for life and a fine of Rs.5000/- or in default thereof to further R J. For one year. The fine, if realized, was directed to be paid to the legal heirs of the deceased as compensation. The co-accused of the appellant, Mst Surraya Bibi and Mst. Sairan Bibi, were, however, acquitted by the same judgment by being given the benefit of doubt.
2. The brief facts leading to the present criminal appeals are that Palloo Masih lodged a report that Mst Niamat Bibi, who was his maternal cousin, was married with Salamat Masih accused/appellant and remained with him for six months in cardial atmosphere, but afterwards they started quarrelling with each other and the said Niamat Bibi went to the house of her parents at Lahore. On 2.8.1985 Mst Niamat Bibi deceased left the house of her parents quite hail and hearty in the presence of Panchayat, as Mst Surraya Bibi and Mst Sairan Bibi, acquitted co-accused, had gone there to bring her back. On 4.8.1985, the complainant along with other members of his family, on receipt of a sudden information about the death of Mst Niamat Bibi through one Ashraf Masih son of Kashmira Masih, went to the house of Salamat Masih, appellant, in village Malloki and saw the dead body. At that time blood was coming out of her nose, mouth and ears and the dead body was changed in blue colour. They suspected that Mst. Niamat Bibi had been murdered by administering some poisoness substance or she had been maltreated and asked Salamat Masih appellant not to bury the dead body. But the accused were insisted to bury the dead body which further strengthened their suspection. According to the complainant, at the time of burial, the accused Salamat Masih and others promised to satisfy the complainant and his family, in the presence of punchayat, but later on they backed out from their promise. He had further deposed that thereafter all the three accused went to. Lahore and in the presence of Mehtab son of Chhajju, Niamat son of Jindu and Niamat son of Umra made extra Judicial confession about the murder of Mst. Niamat Bibi deceased and begged pardon and requested that case should not be registered against them, but the complainant party did not agree with their proposal, submitted an application for registration of case and applied for exhumation of the dead body of Mst Niamat Bibi deceased and to get the postmortem.
The motive as stated by the complainant was that Mst. Sairan Bibi accused had developed illicit relations with Salamat Masih accused/appellant and in order to remove his were, Mst. Niamat Bibi deceased, from their way, she had administered poison to her.
3. Ultimately the post mortem was conducted in the presence of the Magistrate and Dr. Sadiq Hussain Naqvi and viscera were sent to the office of the Chemical Examiner, Lahore for his report, which was to the effect that insecticide belonging to chlorinated hydro carbon group was detected in the above said viscera. A judicial inquiry was also conducted and ultimately, under the order of the District Magistrate, Kasur, the case was registered against all the three accused.
4. At the trial the prosecution had examined as many as 12 witnesses to prove its case. PW.1 Jindhu Masih had deposed that Mst Niamat Bibi deceased was his daughter and was married to Salamat Masih accused/appellant two years prior to the occurrence. In the beginning relations between the spouses remained cordial, but six months prior to the occurrence, Niamat Bibi deceased came to his house and she was sent back to the house of her husband with Mst Sairan Bibi and Mst Surrya Bibi accused, who had come to his house to take her back. Two days after her departure from his house, on receipt of the information about her death, he along with Pahu Masihjriahtab Masih, Niamat and other ladies went to village Malloki. He noticed that there was bleeding from the mouth, nose and ears of the deceased Mst Niamat Bibi and having suspected some foul play, he had stopped the accused from the burial of the dead body, but inspite of his resistence and protests the dead body of Mst Niamat Bibi was buried by the persons of the village. Punchayats were convened in the village and all the three accused begged pardon, but he did not agree to their proposal and no decision was made. He made an application to the police and under of D.C.
Kasur grave of Mst Niamat Bibi was opened and post mortem was conducted and the doctor had reported that she had been given poison. This witness had identified the dead body of Mst Niamat Bibi at the time of post mortem. Grave of Mst Niamat Bibi deceased was opened and the dead body was given buried in the presence of this witness and. He had thumb marked the concerned documents.
5. PW2. Pallu Masih had supported the statement of PW.1 on material particulars and had further stated that Mst Sairan Bibi, Mst Surrya Bibi and Salamat Masih accused had made extra judicial confession in his presence and in the presence of Jindu Masih and Mehtab PWs, and had requested for pardon and further told that they had poisoned Mst Niamat Bibi deceased. He had further deposed that the motive behind this murder is that Mst Sairan Bibi accused persuaded Mst Niamat Bibi deceased and other ladies to lead an adulterous life. He was also the witness of opening and closing the grave of the deceased.
6. PW3 Mehtab Masih. Had deposed that he along with Pallu Masih, Niamat Masih and some other relatives went to village Malloki and saw the dead body of Mst. Niamat Bibi deceased. He had further deposed about the extra Judicial confession of all the three accused and their having asked for pardon from Pallu Masih and Jindu Masih PWs. PWA Niamat Masih had also supported the statement of Mehtab Masih PW3.
7. PW3 Faqir Muhammad Javed, Magistrate 1st Class, had recorded the order Exh. PC on the report dated 8.10.85 and had directed the local police for guarding the grave till further order. He had also recorded the statement of Dr. Sadiq Hussain Naqvi Exh.PB and the statements of Jindu Masih, Pahu Masih, Jeeta Masih and Bashir Masih PWs Exh.PE, PB/1, PF and PG respectively, which were duly signed by them. This witness had also got exhumated the deceased and re-examined her dead body by Dr. Sadiq hussain Naqvi and prepared the site plan of the grave Exh.PB/2, vide his note Exh.PJ. He had prepared the inquest report Exh.PK, duly, signed by him. Exh.PL, PM PN and Exh. PB/3 also bear his signatures.
8. PW.6 Zulfiqar Ali H.C. Being Moharrir of the police station concerned, had prepared the formal FIR Exh. PB/1 on receipt of the complaint Exh.PB. PW.7 Muhammad Rafique Constable had received a sealed parcel and envelope from the doctor and handed over the same to M.H.C on 19.10.85 and had transmitted the same parcel to the office of Chemical Examiner, Lahore and the said parcel was returned by the said office on that day, he had again on 22.10.1985 transmitted it to the office of Chemical Examiner, Lahore, intact. PW.8 Amanat Ali constable had taken the complaint Exh. PB to the police station and after the registration of case had handed over the copy of the FIR Exh.PB/1 to the Inspector Haq Nawaz at the spot.
9. PW.9 Dr. Sadiq Hussain Naqvi, on 17.10.1985 had conducted the post mortem examination on the dead body of Niamat Bibi deceased, identified by Salamat Masih and Jindu Masih, her husband and father respectively, in the supervision of Faqir Muhammad Javed Magistrate 1st Class and under the orders of the District Magistrate Kasur. According to his statement no mark of ligature was present on the neck. Hyoid bone was intact. No mark of violence was present on the dead body, Scalp was in advance stages of purification and decomposition. Skull and vertebre were normal. Brain matter, spinal cord and membranes were liquified and in advance stage of purification and decomposition. In the thorax all organs we were in advance stages of purification and decomposition. In abdomen all the organs were in advance stages of decomposition and purification. The doctor had sealed the following viscera for sending to the office of Chemical Examiner, Lahore, for deletion of any poison etc:-
1. Pieces of liver spleen and kidneys.
2 .Stomach and its contents.
3. Pieces of small and large intestines.
4. Sample of spirt used for observation of the above viscera.
The doctor had reserved the cause of death till the receipt of report from the office of Chemical Examiner, which was received on 11.11.1985, vide report No. 2685/P dated 28.10.1985. This report was to the effect that insecticide belonging to chlorinated hydro carbon group was detected for the viscera and according to the opinion of the Chemical Examiner the deceased had died due to the above mentioned poison. This witness had further deposed that approximate time between death and post mortem was within about three months. Exh.PO is the correct carbon copy of his PMR which was duly signed by him.
10. PW.10 Muhammad Ahmad Anwar Draftsman on 5.12.85 had prepared the site plans Exh.PR and PR/1 at the instance of the police and on the pointing out of the witnesses. PW. 11 Haq Nawaz Inspector had investigated the case. According to him, on 25.11.1985 he had recorded the statement of Pallu Masih complainant Exh. PB, and had also received letter No. RDM-3193 dated 3.11.85 for registration of the case and thereafter he got registered FIR Exh.PB/1. On 26.11.1985 he inspected the spot, prepared the rough sketch of the place of occurrence Exh.PO and had recorded the statements of witnesses. On 29.11.1985 he had arrested all the three accused. On 5.12.1985 he got prepared the site plans Exh.PR and PR/1 from the draftsman and after the. Completion of the investigation he had challaned all the three accused. PW.12 Muhammad Iqbal SI, along with Faqir Muhammad Javed, Magistrate, had supervised the opening and closing of the grave of Mst.
Niamat Bibi deceased and the conducting of post mortem examination by the doctor on her dead body and this witness had deposed to that effect.
11. The prosecution had tendered in evidence the report of Chemical Examiner Exh.PR/2 and after giving up Niamat Masih, Jetta Masih and Dr. Saifullah Khan PWs, had closed its case.
12. In this statement under Section 342 Cr.P.C. Salamat Masih accused/appellant had denied the prosecution version and deposed that since the dowry was not returned, so this case has been fabricated against him and that the , complainant Pallu Masih wanted to pressurise him by involving his unmarried sister Msf. Surrya Bibi and Mst Sairan Bibi, who is respectable of the christian brotherhood. He had further deposed that the witnesses are relatives of Pallu Masih and Jindu Masih. He had also produced in his defence Sardar Akhtar DW.1, Ashraf DW.2 and Sahib Din DW.3 and had also summoned Ramzan Beg Inspector CW.1. DW.1 Sardar Akhtar had deposed that on receipt of information about the death of Mst Niamat Bibi, he had gone to village Malloki and prayed for the dead body. Jindu Masih father of the deceased was also present there. He had seen the dead body, but did not notice any symptom on the face or any bleeding from the mouth nose or ears of the deceased. DW.2 Ashraf, had deposed that he was deputed by Salamat Masih accused to inform Jindu Masih father of Mst. Niamat Bibi deceased, about her illness, because she was suffering from cholera. He had gone to Lahore and had informed her father accordingly, who along with the mother of the deceased had accompanied him to village Malloki and that on the third day after their arrival Mst. N'iamat Bibi had died. DW.3 Sahib Din had deposed that on the request of Salamat Masih accused he had attended the Panchayat, which was in respect of return of dowry and that it was decided in the Panchayat that after the death, the dowry cannot be returned to the parents of the deceased. Another Panchayat was arranged by the parents of the deceased at Police Station Mustafabad and that Panchayat too was regarding the return of dowry.
13. CW.1 Ramzan Beg Inspector had deposed that while posted at Police Station Mustafabad in the month of October, 1985, he had received an application submitted by Jindu Masih father of the deceased stating that the death of Mst. Niamat Bibi was not natural and that the complainant had suspected that the accused had committed her murder. Muhammad Iqbal SI was deputed to probe into the matter and the said SI had reported that there was some dispute about the return of dowry of the deceased and Salamat Masih accused had also claimed for the return of ornaments and that both the disputes were decided in equal by the Panchayat. It was further reported that the complainant party while leaving Panchayat had threatened Salamat Masih accused that he would be involved for the murder of Mst. Niamat Bibi deceased. Version of the accused Salamat Masih to the effect that he had not poisoned Mst. Niamat Bibi deceased, but in fact she had died due to cholera, was also recorded by the said Iqbal SI in his report dated 1.10.1985, which was submitted, along with the endorsement of this witness, to the Superintendent of Police, Kasur on the same day.
However, after the perusal of their reports, D.S.P. Iftikhar Ahmad Khan, ordered for exhumation of the grave and postmortem of the deceased. By that time he was transferred to Police Station Kanganpur and that he had not given his independent opinion regarding the natural death or murder of Mst. Niamat Bibi deceased.
14. In their statements under Section 342 Cr.P.C, the acquitted co- accused, Mst. Surrya Bibi and Mst.
Sairan Bibi had deposed that they had been falsely involved in this case just to strengthen the prosecution case. They however, did not produce any witness in their defence, nor did they record their statements under Section 340(2) Cr.P.C. Salamat Masih accused/appellant also did not record his on statement under Section 340(2) Cr.P.C.
15. The learned trial Court, after having gone through the evidence on the record and having taken all the facts and circumstances of the case, while acquitting his co-accused, had convicted and sentenced the appellant, as stated above.
16. As argued by the learned counsel for the appellant, the prosecution had to discharge the burden of proving its case against the appellant as charged beyond reasonable doubt in accordance with the established principle of administration of criminal justice and that the conviction of the appellant in the absence of the prosecution having proved its case beyond reasonable doubt, simply on the ground that the appellant had failed to prove that the deceased had died of natural causes, can not sustain in law. In this context, it may be pointed out that PW.1 to PW.4, i.e Jindu Masih, Pallu Masih, Mehtab Masih and Niamat Masih, respectively, had gone to the village, where the unfortunate occurrence was alleged to have taken place after having come to know about the death of Mst. Niamat Bibi deceased, being her relatives, but they did not claim to be present at the spot at the time of the alleged occurrence or claimed to have witnessed the commission of offence under the provision of Section 302 PPC, for which the appellant has been convicted. Further notice has been taken of the testimony of the said prosecution witnesses to the effect that .Even after the burial of the deceased a number of meetings of punchayat were held to amicably settle the dispute regarding the dowry between the appellant and his acquitted co- accused and the said prosecution witnesses, which creates serious doubts in view of the said prosecution witnesses' failure to name the appellant and his acquitted co-accused as the perpetrators of the death of the deceased through poison at the first opportunity. In this respect, it has been further taken notice of that there is no direct evidence against the appellant of having poisoned the deceased Mst. Niamat Bibi whatsoever oh the record. Further notice has been taken of the testimony of the said prosecution witnesses to the effect that all the accused had jointly stated before them, winch is claimed by the prosecution to be extra Judicial confession in respect of the offence alleged which is, therefore, not admissible in evidence. In addition thereto, the said prosecution witnesses, related inter-se, were confronted time and again with the improvements that they had made during their respective depositions before the trial Court, which creates further doubt the case of the prosecution. The appellant Salamat Masih had been convicted only under the provisions of Section 302 PPC and was acquitted of the charge under Section 328 PPC, as stated above. The acquittal of the appellant of the charge under the provisions of Section 328 PPC obviously demolishes the case of the prosecution against the appellant to the effect that the appellant was guilty of administering poison to the deceased Mst. Niamat Bibi. In this respect it shall be helpful to reproduce herein the relevant provision of the said Section 328 PPC:- "Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to Commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
Therefore, it is hereby observed that the conviction of the appellant under Section 302 PPC on the sole ground that the appellant had failed to prove that the deceased Mst. Niamat Bibi had died of natural causes in view of the medical evidence to the effect that the deceased had died due to poison, is not sustainable in law, as it is a cardinal principle of criminal justice that the prosecution has to prove its case against the accused beyond reasonable doubt and that the charge of having caused the death of deceased by poisoning cannot be claimed to have been proved, by the prosecution in the absence of any direct evidence to prove that the poison had been administered to the deceased by the accused/appellant, as is the position in the instant case duly legally fortified by the acquittal of the appellant/accused of the charge under Section 328 PPC, as stated- above. It is totally perverse to convict the accused/appellant on the ground that he had failed to prove that the deceased Mst. Niamat Bibi, his were, had died of natural causes, despite the failure of the prosecution to have produced cogent, direct and reliable evidence to prove the charge that the appellant had caused the death of the said deceased by having poisoned her. Therefore, it is hereby held that the instant case is of no evidence against the appellant under the provisions of Section 302 PPC. In this respect, may be pointed out that the State had not preferred an appeal against the acquittal of the appellant under the charge of Section 328 PPC.
17. Therefore, pursuant to the above discussion, it is hereby held that the prosecution had failed to prove its case against the appellant. Hence, the present criminal appeal is hereby allowed and the appellant is acquitted of the offence charged. The appellant is on bail, his bail bonds stand discharged accordingly.