1968 P Cr (PLP)

BASHIR-UD-DIN AHMAD, J.-Aziz Ullah (35) was tried for the murder of his wife Mst. Zarina, on the night intervening the 8th and 9th of May 1963, by the Additional Sessions Judge, Lahore, who convicted and sentenced him under section 302, Penal Code, to transportation for life. The convict has appealed.

2. Briefly the facts of the case are that ten years ago the appellant was married to the deceased and they had four children from this wedlock. Seven months before the present occurrence, which is the subject-matter of this case, the appellant took another woman Mst. Zakia by name. Naturally the deceased not only quarreled with Mst. Zakia but also with her husband and the story goes that the appellant administered white arsenic to the deceased in order to clear his way to marry Mst. Zakia. The deceased started vomiting after she had been administered the poison and was removed to the Mayo Hospital, Lahore, where she died and the appellant gave out that Mst. Zarina had died of cholera. Ejaz Ahmad, a distant relative of the deceased went to Mochi Gate Police Post and made the statement (Exh. P. C.) on the 9th of May 1963 at 11 am.

3. After scribing the statement, Assistant Sub-Inspector Sagheerul Hassan proceeded to the spot, prepared the inquest report and then despatched the dead body to the mortuary for post-mortem examination. The Chemical Examiner's report was received on the 19th of May 1963, to the effect that white arnesic was found in the stomach of the deceased and consequently a case under section 302, Penal Code was registered against the appellant and he was arrested on the 22nd of May 1963.

4. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. He ascribed the case to enmity with Ijaz Ahmad but slid not produce any evidence, in defence.

5. There is no eye-witness to the occurrence. The evidence against the appellant divides itself into the following categories: - (i) the evidence of the dying declaration; (ii) the extra judicial confession; and (iii) the evidence of the motive.

6. The evidence on point (i) consists of the statements of Fayyaz Hussain, Khalid Dad and Muhammad Riaz. On the 8th of May 1963, Fayyaz Hussain was returning from his shag to his house at noon-time for taking meal. He met the appellant and the deceased person near the Power House, which is at a distance of 10 or 20 karats from the house in which the deceased lived. The deceased was vomiting. and the appellant was standing by her side. On the inquiry by the witness as to what was the matter, Mst. Zarina told him that Aziz Ullah appellant had given her something mixed in syrup and after taking it she felt as if her liver would burst. The deceased said further that the appellant was taking her to the doctor. Fayyaz Hussain (P. W. 5) admitted that when he had a talk with the deceased near the Power House no other person was present. The witness did not state to the police that Mst. Zarina told him that as a result of taking the syrup she felt as if her liver was bursting. The witness failed to mention in his statement to the police that the deceased had told him that ever since she had taken the syrup, she had been purging and vomiting. Therefore, it is obvious that the story told by the witness that the deceased mentioned to him that the appellant gave him something mixed in the syrup is a fabrication. It is curious that when the deceased told Fayyaz Hussain in the presence of the appellant that he had given her something in the syrup, the witness did not put any question to the appellant as to whether he had really administered something noxious to Mst. Zarina in the syrup. Khalid Dad (P. W. 6) was in his house on the 8th of May 1963, when at mid-day he came out in the street on hearing a noise and saw the appellant taking the deceased to the doctor. In his presence Muhammad Riaz enquired from Aziz Ullah as to what had happened to Mat. Zarina. The appellant kept quiet but Mst. Zarina replied that Aziz Ullah and Mst. Zakia had administered her something in the syrup and she felt as if her liver was bursting. The witness did not mention in his police statement that he saw the appellant taking Mst. Zarina to the doctor. To the contrary he stated to the police (at portion A to A in the copy Exh. D. C.) that on the 8th of May 1963, the witness after remaining away from his house during the day time; returned at night and came to know from the residents of the Mohallah that Mst. Zarina had died suddenly. It is thus clear that the statement of this witness that he had seen the appellant taking the deceased downstairs at mid-day, that she was vomiting and that on his enquiry she told him that the appellant and Mst. Zakia had given something to her in the syrup and after taking it had felt that her liver was bursting, is a tissue of lies. The statement of this witness, which he made in Court that the appellant stated in his presence at mid-day that Mat. Zarina was suffering from cholera is incorrect. It is contrary to what he stated to the Committing Magistrate. On reference to his statement before the Committing Court, it is dear that the appellant told Khalid Dad during the night and not at mid-day that Mir. Zarina was seized by cholera. Muhammad Riaz (P. W. 7) stated that he went and stood in front of the house in which the appellant lived with the deceased at the material time on hearing a noise. He noticed a number of persons already present there. The witness saw the appellant taking the deceased downstairs. The deceased vomited and the witness inquired from her as to what was the matter and she replied that she did not know what was administered to her by the appellant in the syrup and after taking it she felt as if her liver was bursting. Muhammad Riaz questioned the appellant but he made no reply and took the deceased towards the hospital where she died. The witness did rot tell the police, not even to the Deputy Superin tendent of Police, that on his inquiry Mst. Zarina - had told him that her husband had administered something to her in the syrup, as a result of which she felt as if her liver was bursting: The witness omitted to mention in his statement before .the Committing Magistrate that the deceased said this in the presence of Khalid Dad. The omission is significant and casts grave doubt as regards the genuineness of the oral dying declaration alleged to have been made by the deceased in the- presence of Fayyaz Hussain, Khalid Dad and Muhammad Riaz, which we do not consider as trustworthy and as such discard it as worthless. The evidence of Dr. Shuja-ud-Din, who treated the deceased in the Mayo Hospital cuts across the prosecution case as the deceased did not complain to him of administering of any poison to her by anybody much less her husband with whom she claimed to have had very good relations. Had the story that the deceased was administered poison mixed in syrup given to her by her husband been true, it would have been uppermost in her mind and she could not have possibly omitted to mention it to the doctor, who treated her in the hospital.

7. The evidence on point (ii) consists of the statements of Khalid Dad and Fazal Muhammad. They both kept guard over the dead body of Mst. Zarina after - the same was brought back from the Mayo Hospital. During the night it is -alleged that the appellant entreated Khalid Dad and Fazal Muhammad and told them that blinded by passion for Mst. Zakia he had administered poison to Mst. Zarina. This he said at 2-30 a.m. Having said this, the appellant entreated 'Khalid Dad and Fazal Muhammad to allow him to bury the dead body. It is surprising that after hearing from the appellant that he poisoned the deceased in order to clear his way for marriage with Mst. Zakia, the witnesses did not mention this thing either to the Chairman or any Member of the Union Council or respectables of the Mohalla. Fazal Muhammad did not say in his statement that the appellant made the extra judicial confession to Khalid Dad in his presence. Since Khalid Dad has not been relied on by us in proof of the oral dying declaration alleged to have been made in his presence by Mst. Zarina, we consider it extremely unsafe to accept his word of mouth in proof of the extra-judicial confession by the appellant. We know from experience that the police introduce extra-judicial confession in a case, which they, consider to be otherwise weak.

8. The evidence on point (iii) consists of the statements of Ejaz Ahmad, Fayyaz Hussain, Khalid Dad, Muhammad, Riaz, Muhammad Jahangir and Abdur Rashid, The gist of their evidence is that -a year before the occurrence under consideration the appellant started living with his wife in Gali Soodan Mohallah Dhal, inside Mochi Gate, Lahore. Sometime later he brought a woman named Mst. Zakia to his house. At first he said that she was like sister to him but it transpired that she was the keep of Aziz Ullah appellant. Naturally the deceased quarrelled not only with Mst. Zakia but also with the appellant on a number of occasions. , Once Mst. Zakia remarked that she would make the deceased to leave the house. Eventually Mst. Zarina left for the house of her parents but the appellant effected a reconciliation and brought her back to his house. There is evidence that the appellant has four children from the deceased and it is not believable that he had a motive to kill her. The youngest child of the deceased was a suckling babe when she died. Mst. Zakia had an equally good motive, if not a strong motive, to kill the deceased and the possibility of her having given arsenic to the deceased could not be ruled -out in this case to a moral certainty. We find from the evidence of the Investigating Officer that Mst. Zakia was also arrested but for reasons best known to the police she was got discharged from the case. The circumstances that the appellant was -anxious to bury the dead body immediately on the death of Mst. Zarina raises suspicion. Similarly the conduct of the appellant in not remaining near the dead body either because he rightly or wrongly considered that she had died o cholera or due to guilty conscience is another circumstance, which raises suspicion, but suspicion however strong cannot take the place of judicial proof. There is not a shred of evidence that the appellant procured or had white arsenic with him. Similarly 'to no utensil was recovered from the house of the appellant having traces of poison. We consider the case against the appellant no to be free from reasonable doubt. The benefit of doubt, however slight, must go to the accused. We set aside the conviction an the sentence passed upon the appellant and giving him the benefit of doubt acquit him. He is in jail and we direct that he be se at liberty forthwith, provided always that his detention is not necessary in any other matter. The appeal is accepted. Appeal accepted.