1988 P Cr (PLP)

(a) There was no conspiracy among the accused persons for committing murder of Mst. Zulekhan. Ghulam Hussain and Abdul Rahim would not drive any benefit out of her death. The only beneficiary could be appellants because appellant No.2 was under the torture and agony of seeing her husband sharing bed with Mst. Zulekhan. (b) Parties had dispute and their relations were strained which resulted into separation of Mst. Zulekhan from appellant No.l and P.W.2 Hassan from Mst. Bachan. (c) The matter was patched up by the Martial Law Authorities but was not a happy union. (d) Mst. Zulekhan was taken in marriage by appellant No.l to satisfy his craving for a son but a daughter was born. Therefore, existence of dispute cannot be denied. (e) Due to dispute complainant party involved Ghulam Hussain and Abdul Rahim. (f) Mst. Zulekhan had fallen ill at the house of the appellants and not at the house of complainant. (g) It was the burden of accused to show as to how the insecticide was taken by the deceased. (h) It was proved by the prosecution that the death of Mst. Zulekhan was caused due to intake of insecticide of phosphatic group. (i) The deceased was complaining pain in her heart, since, before dark i.e. night preceding the day of death but there is no evidence from the accused that he had shown her to any medical doctor to treat her and in the next morning at about 7‑30 or 8‑00 a.m. her parents were informed although their house was only 100 paces away. It shows that both the accused kept the deceased in such a condition till they realised that she was fully under the administration of insecticide then they informed the father instead of calling the doctor.

8. The conduct of the appellants after the deceased became unconscious was as follows:‑ (a) The appellants removed her to hospital. (b) The deceased was admitted as in‑door patient at 11‑45 a.m. (c) The deceased died at 12‑45 p.m.

9. The police came to hospital and prepared inquest report. The charge does not appear to be believed by the police as no steps were taken against the appellants. The appellants, the doctor and the police set up theory of suicide and the case was closed.

10. It is contended on behalf of the appellants that the trial Court has misread and misapprehended the evidence and consequently there has been a grave miscarriage of justice.

11. There is no direct evidence in this case and this case depends entirely upon circumstantial evidence. In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof, and therefore, it is right to recall the warning addressed by Baron Alderson to the Jury in Reg. v. Hodge, (1838) 2 Levin 227 (168 ER 1136), where he said: "The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be; to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to over reach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete."

12. It is to be remembered that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.

13. In case of poisoning when there is no direct evidence of administering poison to the deceased and the evidence is circumstantial the fact that the accused had motive to cause death of the deceased, though relevant, is not enough to dispense with the proof of certain facts which are essential to be proved in such case. The prosecution must establish three propositions (1) that the death took place by poisoning, (2) that the accused had the poison in his possession, and (3) that the accused had an opportunity to administer poison to the deceased. It is only when the motive is there and these propositions are proved that the Court may be able to draw the inference, that the poison was administered by the accused to the deceased resulting in his/her death.

14. I shall first deal with the motive part of the appellants. On this part of the case, there is evidence of P.W.1 Ismail P.W.2 Mohammad Hussain, P.W.3 Mohammad Arab and P.W.4 Mohammad Jumman, P.W.1 has stated that Mst. Zulekhan was his daughter and was married to accused Talib and in exchange of her accused Talib had given his step‑daughter Mst. Bachan to his son P.W.2 Mohammad Hassan. After six or seven months dispute arose between both the parties. Accused Talib detained his daughter Mst. Bachan and expelled his son Hassan and thereafter, he detained his daughter Mst. Zulekhan. On 26‑11‑1984 P.W.2 moved an application to Martial Law Authorities against Talib. The Martial Law Authorities settled the dispute. P.W.2 brought Mst. Bachan and thereafter, he sent Zulekhan with the appellant No.l but while going Mst. Zulekhan was crying and saying that she would be killed by the accused. After two months Mst. Zulekhan sent a message to him that the accused were making designs and preparing plans to kill her. On 21‑2‑1985 he was informed that Mst. Zulekhan was ill at Talib's house. P.W.2 Mohammad Hassan has supported the P.W.1. P.Ws.3 and 4 Mohammad Arab and Mohammad Jumman have also supported the P.Ws.l and

2. The P.W.1 and the appellant No.l are cousins. P.W.2 is son of P.W.1, P.Ws.3 and 4 are also related inter se. It is an admitted position that the marriage of Mst. Bachan was in exchange. It is also an admitted position that P.W.2 Mohammad Hassan was staying with his father‑in‑law appellant Talib and after settlement of dispute Mst. Bachan was brought to the house of P.Ws.l and

2. There is, therefore, considerable doubt as to whether there is substance in the evidence that Mst. Zulekhan while going with the appellant No.l was crying that she would be killed. Similarly it is also doubtful as to whether Mst. Zulekhan sent a message that the appellants were planning or preparing plans to kill her. P.Ws. are very closely related to the deceased. It is obvious that in the background of strained relations between the appellants and the deceased, their natural sympathies would be with the deceased and not with the appellants.

15. It is true that P.W No.l is related to deceased being here father, P.W.2 is the brother of the deceased, P.W.2 is the cousin of the P.W.1 and P.W.4 is the son‑in‑law of the complainant P.W.1 and are also inimical to the appellants and, therefore, partisan witnesses and as such their testimony has to be viewed with great caution and corroborated by very strong and independent reliable piece of evidence.

16. The learned counsel for the appellant has contended that since the P.Ws. have admittedly implicated falsely two acquitted persons and Alam father of the appellant No.l who died on 30‑8‑1985 their evidence requires corroboration by independent and reliable piece of evidence. Reliance is placed in the case of Wazir and others v. The State P L D 1960 (W.P.) Kar. 674 in which a Division Bench of the erstwhile High Court of West Pakistan at Karachi held that in case of admitted enmity the statements of the eye‑witnesses who are inter?related among themselves and also with the deceased should be scrutinized with great care. In the case of Chandoo alias Chand Muhammad v. The State P L D 1985 Kar. 229 in which a Division Bench of this Court held that the evidence of interested witnesses requires corroboration. The view of the Supreme Court is that in case enmity between the complainant party and the accused party is proved or admitted and the eye‑witnesses are related to the deceased, their testimony cannot safely be the foundation for recording conviction in the absence of independent corroborative piece of evidence.

17. This leads me to the question, whether there is any independent reliable corroborative piece of evidence in order to reinforce the testimony of the above P.W.1 Mohammad Ismail. The trial Court has relied upon the motive. In my view, the motive coming from the mouths of the same witness cannot be relied upon. In this behalf, reliance is placed in the case of Nawaz Ali and another v. The State 1981 S C M R 132 where the Hon'ble Supreme Court has made the following observations:‑ "However, the learned Advocate‑General drew attention to the fact that the learned Judges were also of the view that the ocular evidence was 'fully corroborated... by the motive .... 'With respect we are unable to agree with these observations of the learned Judges, which are contrary to the evidence on record. It is true that the eye‑witnesses gave evidence of motive, but as the question was of the corroboration of their evidence, their own statements about the motive for the crime could not furnish corroboration of their evidence about the identity of the assailants."

18. It may be observed that from the evidence on the record, the alleged motive seems to be of doubtful character. It may be pointed out that motive is a double‑edged weapon, which also provides reason for the complainant party to falsely rope in innocent person belonging to the accused party.

19. In my view, the motive in the instant case cannot furnish the corroboration of the nature which is required particularly in view of the fact that five persons are involved and not the appellants. Therefore, the complainant party might have implicated them due to suspicion and enmity.

19. The case of Ghulam Sikandar and another v. Mamaraz Khan and others P L D 1985 SC 11, the Hon'ble Supreme Court held that the principle 'falsus in uno falsus in omnibus', is not applicable in Pakistan. It was further held that the testimony of an eye‑witness should not be treated as indivisible although there is no consensus with regard to the later view. It was further held that since the testimony of a witness found false with regard to implication of one accused about whose participation he had deposed on oath, the credibility of such witness regarding involvement of the other accused in the same occurrence, is shaken, but if the testimony of such witness is corroborated by very strong and independent circumstances regarding other, the reliance might then be placed on the witness of convicting the accused.

20. The consensus of view of the Supreme Court seems to be (1) that the maxim 'falsus in uno falsus in omnibus' is not applicable in Pakistan, but the Court is to sift grain from the chaff (2) in case it is found that an eye‑witness though natural falsely implicated one or more accused persons, his testimony cannot safely be relied upon in the absence of some reliable independent corroborative piece of evidence.

21. The learned Additional Sessions Judge has come to the conclusion that the parties were compelled to a settlement under the colour of Martial Law which was not a happy reunion. The learned Judge has found that Mst. Zulekhan was taken in marriage by appellant No.l to satisfy his craving for a son but she gave birth to a daughter. This cannot be a cause to kill Mst. Zulekhan and one doubts very much whether there is any truth in the allegation that as she did not give birth to a male child, she would be killed. In any case, if motive as a circumstance is put forward in a criminal case, it must like any other incriminating circumstance be fully established. It is not possible to hold having regard to the probabilities of the case that the motive alleged by the prosecution is fully established.

22. Even assuming that a male child was not born, I do not think that it can be a motive for the crime. There was no obvious advantage in doing away with Mst. Zulekhan, because appellant's step‑daughter was married to P.W.2 Mohammad Hassan and hence, there can be no reasonable motive for the murder of Mst. Zulekhan.

23. The evidence with regard to the alleged administration of poison has left many gaps in the case. There is no evidence whatsoever that the appellants had administered poison to deceased. In my considered opinion, since the witnesses in this case have natural sympathy with the deceased they should be considered as interested witnesses and it would not be safe to rely on uncorroborated testimony implicating the appellants with commission of crime who had no sympathies amongst the inmates of the house. In Taylor's Principles and Practice of Medical Jurisprudence Vol. II Eleventh Edition I have a section on chloro‑compounds at pages 494 to

496. It appears that many chloro‑compounds have been synthesised as insecticides from dichloropene (D.D.) to the very complex modern synthesis in common use as pesticides. The more common disinfactors are: (1) DD.T. (2) Gammexane Lindane (3) Pentachlorophenol and dimenthyloxy phengyl trich Lore thane (4) Aldrine, (5) Chlordan, Dieldrin (6) Ednrin etc. It is said that these insecticides and pesticides are easily available in the market. As the book notes, all these are strong stomach and contact poisons to insects. They are not highly poisonous to man though they can be absorbed readily through the skin. Acute poisoning may occur with D.D.T. if taken in considerable dosage by mouth, especially when dissolved in certain organic solvents. In sublethal dosage gastro‑enterities and vague nervous symptoms develop rapidly and pass off with equal rapidity irrespective of treatment. It is further noted that in lethal dosage, as in suicides or in children drinking concentrates by accident, death can follow within an hour‑in convulsions. The learned author further observes:‑ "It is possible, therefore, to absorb a fatal dose suicidally but it is not likely to occur accidentally, or to be used with intent to murder. A number of cases have occurred in which substances of this class have been administered with intent to injure or annoy."

24. In Modi's Medical Jurisprudence and Toxicology Twentieth Edition (Pakistan Ed.). I have a section on D . D . T . , at 673 the learned author has said 'pure D.D.T. is white, crystalline, solid substance, insoluble in water, but soluble in hit alcohol, ethyl acetate, chloroform, benzene, kerosene and many other organic solvents. The learned author observes that 'of the Cholorbenzene derivatives D.D.T. is the most toxic, it may be taken accidentally or for suicide. It has a stimulant action on central nervous system, it is also locally an irritant when swallowed. In pure solid form D.D.T. is not absorbed through the skin, but, when dissolved in kerosene oil or any organic solvent, it is easily absorbed and produces poisonous symptoms. D.D.T. emulsions and oily solutions may be readily absorbed by the lungs on inhalation and cause poisoning. The learned author further observes that 'Fatal Dose and Fatal Period. It has been estimated that a lethal dose for a man is about 30 G.O.

5. G. per Kg. of body weight. About one third of an ounce of solid D.D.T. , i. e. about half a gallon in solution would be fatal to an adult. A male child 19 months old, died in four hours after swallowing about an hour after he had taken 6 ounces of concentrated emulsion containing 34 G of D.D.T. and 2.4 ounces of methycychlohexanone. Symptoms develop in half to six hours and death results in about 24 hours.

25. The prosecution had examined Dr. Abdul Aziz who at that time was Demonstrator L. M.C.H . Jamshoro and was posted as Medical Officer taluka Hospital Sujawal. On external examination, he found no mark of ligature on the neck. He also found no kind of wound or bruise present. There were no external marks of injury. Apart from saying that Mst. Zulekhan died due to insecticides of phosphotic group, he did not say much in his evidence. In his cross‑examination, however, he admitted that generally D.D.T. openly sold in market is also known to be belonging to organic phosphorous group. The phosphatic. group (Inorganic group) is mainly used for killing rats. He also agreed with suggestion that according to Modi insecticide is chiefly used in case of suicides. The chemical Analyzer's report is (Ext. 14/C). After analysing the viscera which has been sent to him, he found insecticide belonging to phosphatic group detected in the viscera.

26. Pesticides like D.D.T. Gammexane etc. are easily available in the market and are used for various purposes especially, in urban households. The possibility of same being found in the human system is not completely eliminated. The chemical analyzer has not measured the quantity actually found in the viscera and that in my opinion is a serious deficiency in the present case. I have already referred to Taylor's and Modi's opinion that it was possible to absorb a fatal dose suicidally but it is not likely to occur accidentally, or to be used with intent to murder. Dr. Abdul Aziz has stated that when he examined her, he found that she was unconscious, garlic smell coming from her mouth. The reason obviously is that the taste on the smell is so repulsive especially when taken with kerosene as solvent, that unless it is self‑administered as in the case of suicide it would neither be swallowed either by accident or used with intent to murder. Taylor has noted that Dr. K.R. Hill had estimated the mean lethal dose for mar, to be between 150 and 600 mg. per kilogramme body‑weight: it is more likely (vide infra) to be nearer the maximum figure, but estimates must clearly depend to some extent upon the solvent. Taylor has reported the case of a market gardner's labourer who had drunk a concentrated emulsion of D.D.T. intended for spraying mush‑rooms (intended for dilution x 400) and a 6 ounce residue was found in the stomach at autopsy. The residue contained 20 per cent D.D.T. in methycycle‑hexanone and the amount of D.D.T. swallowed was estimated at 34 g., the equivalent of 500 mg. per kilogramme body weight.

27. Two things are apparent from this case. One is that if a person dies within an hour of the administration of the poison, the residue would be found in the Stomach at the time of autopsy and secondly about 34 grams of D.D.T. would require to be swallowed in order to cause death within one hour. But there can be no doubt that a large quantity of poison in emulsion form would have to be imbibed before death may result. In the case with which I am dealing I have absolutely no idea as to the quantity of the poison imbibed or whether what was imbibed was sufficient to cause death. Lesser quantities, though imbibed, do not cause death and the chemical analyser has not explained whether the insecticide which he found was negligible or lethal. The deceased, according to the trial Court died of this poison, which in its opinion must have been administered to her. It has not been explained as to whether if a lethal dose of insecticide is administered in food the victim while taking it would not be repelled either by its test or smell.

28. In view of the discussion it is clear that the evidence adduced by the complainant was interested, inimical and unreliable. It was not corroborated from any quarter, and the motive under the circumstances could not be relied upon as a corroborative evidence. I am, therefore, of the considered view that the prosecution had failed to prove its case beyond reasonable doubt against the appellants.

29. The reasoning of the learned trial Court for coming to the conclusion, that the present appellants could have administered poison to the deceased Mst. Zulekhan is based on presumptions. No doubt conviction for murder on the basis of circumstantial evidence is not unknown, but circumstances sought to be relied upon must have been established beyond all doubts and such circumstances must be found to be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. This view of mine is fully supported by the dictum laid down by the Honourable Supreme Court in case reported in PLD 1966 SC

664. In the present case in my opinion, there is no such circumstantial evidence on record so as to lead to definite conclusion, that the appellant No.l alone could have administered poison to his wife or the appellant No.2 alone could have administered poison to Mst. Zulekhan, as alleged by the prosecution.

30. For the foregoing reasons I allow the appeal and set aside the conviction and sentences awarded to the appellants, by giving them benefit of doubt and direct that appellants shall be released forthwith if they are not required in any other case. M.Y.H./M‑466/K??????????????????? ??????????????????????????????????????????????????????????? Appeal allowed.