1979 PLP 574 (SCMR)

DORAB PATEL, J.‑Mehnga, a resident of Chak No. 3‑JB, in Faisalabad District, died of poisoning on the night between the 2nd and the 3rd March, 1973. On a complaint made by Taleh Mand more than three weeks after Mehnga's death investigations were commenced by the Police and the appellants were tried with three other accused (one of whom was the wife of the first appellant) for Mehnga's murder. By his judgment dated 26‑8‑1976, the learned Sessions Judge, Jhang, convicted the appellants for murder and sentenced them to death. Fines were also imposed. However, the learned Sessions Judge acquitted the three other accused. The appellants, therefore, challenged their conviction in an appeal in the Lahore High Court which was heard with the reference from the Sessions Court. And, as by their judgment dated 19‑9‑1977, the learned Judges rejected the reference, allowed the appeal of the appellants and set aside conviction, Taleh Mand has filed this petition for leave. According to the pr6secution, the family of the first appellant as well as of Mehnga were living in the same Ihata and as the first appellant had illicit relations with the second appellant, they conspired to murder Mehnga by poisoning him. Therefore, on the night of the 2nd March. 1973, the appellants and the three acquitted accused served Mehnga and his father vermicelli which had been mixed with arsenic. Both Mehnga and his father fell ill and although Barkat Ali was gravely ill, he recovered after a few days however Mehnga died the next morning. But. as according to the prosecu tion, he was buried surreptitiously, the Police was not able to make investigations until Taleh Mand made a report 24 days after the murder in which he made allegations against the appellants and the acquitted accused. Thereafter the appellants and the acquitted accused were arrested and tried in due course. The appellants denied as false all the allegations made against them, but neither they nor the acquitted accused produced evidence in their defence. Now, Barkat Ali died before his evidence could be recorded in the Sessions Court, therefore, the prosecution relied on his lower Court statement. The prosecution also relied upon the extra‑judicial confessions made by the appellants and the other accused to three witnesses Taleh Mand, Hassan Muhammad and a Panchait of which one Ali Ahmad was a member and who alone gave evidence. Further, in corroboration of the extra‑judicial confessions of the accused, the prosecution relied on the recovery of arsenic and in order to prove this recovery it examined Mahni, who witnessed the recovery. The learned Sessions Judge was of the view that Barkat Ali's statement supported the prosecution case against all the accused. He also accepted as reliable the evidence of Taleh Mand, Hassan Muhammad and Ali Ahmad about the extra judicial confessions of the accused. And he was further of the view that the extra judicial confessions were corroborated by the recovery of arsenic at the instance of the first appellant, therefore, he convicted the appellants but as be gave the benefit of doubt to the other three accused, he acquitted them. In a more careful appreciation of the evidence, the learned Judges of the High Court scrutinised Barkat Ali's lower Court statement and stressed the fact that it "did not make any mention of any poison." The learned Judges also pointed out that Barkat Ali had merely stated that the five accused had served him vermicelli after he had vomitted and fallen ill. And they were of the view that this evidence could not even be a link in the chain of evidence against the appellants, because Barkat Ali recovered in a few days, but the theory of poisoning was advanced for the first time by his son Taleh Mand in his statement to the Police, Exh. P. A., which was made about three weeks after Barkit Ali's recovery. The learned Judges then examined the evidence of the extra judicial confessions and noted the discrepancies in the statements of the witnesses. They were also not impressed by the evidence of the recovery of arsenic, because they were of the view that Mahni, who claimed to have witnessed the recovery was not a witness of truth. Finally, they pointed out that the evidence of the three witnesses about the extra judicial confessions implicated all the accused yet the learned Sessions Judge had acquitted three out of the five accused, who had been implicated by Taleh Mand. Hassan Muhammad and Ali Ahmed. In these circumstances, they rightly held (we say so with respect) that the evidence of the extra judicial confessions was not fit to be accepted without corroboration, but as they rejected the recovery of arsenic there was no corroborative evidence. They, therefore, gave the benefit of doubt to the appellants. Hence this petition for leave. We agree with the view of the learned Judges that Barkat Ali's evidence does not really advance the prosecution case. Therefore, as rightly observed by them, the prosecution case rests entirely on the evidence of the extra judicial confessions and of the recovery of arsenic at the first appellant's instance. But, taking first, the evidence of the recovery, the learned Judges observed:‑ "The recovery is said to have been made from above a beam in the ceiling of the room of Mehnga deceased. It appears that this witness was imported from a distance of about one mile for which there appears no justification. His evidence is also self‑contradictory. He stated first that he was the only person at the time of recovery but he had stated before the Committing Magistrate that Taleh Mand, A Hassan Muhammad and Yaru were also present at that time. He was confronted with that statement. He also admitted that after the death of Mehnga the roof of the house had been dismantled and its material had been sold. " Bearing in mind also the fact that the recovery was alleged to have been made nearly three months after the occurrence, we see no error of law whatever in the findings of the learned Judges that the evidence of the recover of arsenic at the first appellant's instance did not inspire confidence. Turning now to the evidence of Taleh Mand Hassan Muhammad and Alif Ahmad about the extra judicial confessions, in the first place, as noted by the learned Judges, the witnesses have made discrepant and inconsistent statements. Secondly, as their evidence was rejected about the other accused, it cannot be accepted against the appellants without some corroboration. But, as the evidence of the recovery does not inspire confidence, there is not other evidence which can possibly furnish corroboration of the evidence about the extra judicial confessions. Learned counsel relied on evidence of motive, but this evidence too comes from the mouths of the very witnesses whose evidence requires corroboration, therefore, it is of no corroborative value. It the result, we see no error of law in the findings of the first appellate Court which are supported by the evidence on the record therefore, no case has been made out for the grant of special leave and the petition is dismissed. Petition dismissed.