2007 P Cr (PLP)

SYED HUSSAIN MAZHAR KALEEM,, J.

The above titled appeals have been directed against the judgment of District Court of Criminal Jurisdiction, Mirpur dated 26-9-2005, whereby appellant was convicted and sentenced 25 years' rigorous imprisonment. The Appeal No.121 has been filed by the convict appellant while the other Appeal No.118 stands registered on behalf of the complainant for enhancement of the sentence.

2. Brief facts leading to the background of these appeals are that a case under section 302/34, A.P.C. was registered against the appellant and his father Muhammad Iqbal at Police Station Afzalpur on the complaint of Ch. Javed Iqbal. It was reported that complainant and his family was British national and were residing in U.K. Shagufta Nazli daughter of the complainant was married to Fiyyaz Ahmad appellant 6 years before the :occurrence. During this period she gave birth to two children. The spouses were not enjoying good relation for last some time because of which she left Pakistan to live with her parents. This annoyed Fiyyaz Ahmad and he threatened relatives of the complainant for serious consequences and to divorce Shagufta Nazli. Upon this the complainant sent his daughter to live with her husband. On the night falling between 27/28 March, 2005 the complainant came to know that his daughter died and he came back to Pakistan. It was alleged that Fiyyaz Ahmad and his father Muhammad Iqbal by hatching conspiracy, poisoned his daughter and did not inform him or his other family members about her death. It was further stated that without informing the police and post-mortem they tried to burry her which was proof of their guilt. The dead body was taken into possession by the police and post-mortem was conducted. It was further alleged that accused persons were professional criminals and they killed his daughter. According to the complainant he was aware of the unpleasant relations between his daughter and son-in-law.

3. During investigation Muhammad Iqbal was found innocent and was given benefit of section 169, Cr.P.C. however, a challan under section 302, A.P.C. was submitted before the trial Court against Muhammad Fiyyaz. The charge was framed against the accused on 22-8-2005. He pleaded not guilty and the prosecution was ordered to lead evidence in support of its case. Nineteen witnesses were produced before the Court in support of the claim of the prosecution and after completion of trial, the Courl arrived at the conclusion that the prosecution succeeded in proving its case against the accused consequently he was convicted under section 302, A.P.C. and was awarded 25 years' rigorous imprisonment through the impugned judgment. Hence these appeals.

5. Since both the appeals arise out of same order of the trial Court, therefore, these shall be disposed of through this common judgment.

6. Learned counsel for the convict-appellant argued that Fiyyaz Ahmad was involved in a false case by the complainant. The occurrence was not witnessed by anybody. Circumstantial evidence brought on record against the appellant was incredible and without any substance. The trial Court failed to appreciate the material on record in a judicial fashion. According to the learned counsel the prosecution failed to prove motive. It was alleged that spouses were having unpleasant relations but the prosecution's claim was rebutted by its witnesses. He further argued that Shagufta Nazli was admitted in hospital on 27-3-2005 where she died. The police intervened and started proceedings under section 174, Cr.P.C. without any justification. Learned counsel contended that the post-mortem report was highly doubtful. Initially excessive intake of sedatives was shown the cause of death. According to the post-mortem report material such as stomach with content, intestine with contents and stomach wash were sent for chemical examination. The examiner's report shows that organophosphorous was detected in it and the opinion was added in the post-mortem report. Learned counsel pointed out that no evidence regarding purchase of organophosphorous or to poison the victim was brought on record but after obtaining the report from Chemical Examiner the convict appellant was arrested by the police and about two months after the occurrence alleged bottle containing the poison was recovered at his instance in presence of two interested witnesses. No respectable of the locality as required under section 103, of the Cr.P.C. was asked to joint he proceedings. He submitted that prosecution failed to prove its case against the convict-appellant. The whole prosecution story being highly doubtful was not worth relying and there was no justification to convict the appellant, therefore, by accepting the appeal he may be acquitted of the charge.

7. On the other hand it was argued that the prosecution has a very strong case against the convict-appellant. In light of the record it stands established that appellant was not having good relations with his wife. He threatened her relatives for serious consequences and to divorce her. On 27-3-2005 he poisoned her and without informing any of the relatives tried to burry the dead body but it was taken into custody by the police. The post-mortem report disclosed the secret that she was poisoned. The report of the Chemical Examiner confirmed the claim of the prosecution. During investigation poison was recovered at the instance of the convict-appellant. According to the learned counsel though the occurrence was not witnessed by anybody but the prosecution successfully proved that due to unpleasant relations the appellant poisoned his wife. He submitted that in view of the conspirational effort and cruel act of the convict there was no ground for lesser punishment, therefore, by accepting the appeal the convict may be awarded normal punishment provided for the offence of murder which is death sentence.

8. Learned Assistant Advocate-General supported the arguments advanced by the learned counsel for the complainant.

9. I have heard the learned counsel for the parties and perused the record of the case.

10. The prosecution case as it appears from the record that Shagufta Nazli was married to Muhammad Fiyyaz appellant. Due to unpleasant relations she left Pakistan and started living with her parents in U.K. however she came back to live with her husband but on the night falling between 27/28 March, 2005 was poisoned by him.- After post-mortem stomach with contents, intestine with contents and stomach wash were sent for Chemical examination. The report of examiner Exh.P.KK. shows that she was administered Organophosphorous. Later on the appellant was arrested by the police and remaining quantity of the poison used for the murder was recovered at his instance through recovery memo. Exh.P.E.

11. Motive as alleged by the prosecution was that Shagufta Nazli was British national. Muhammad Fiyyaz married her to get the nationality and settle in U.K. but was refused visa. He started accusing his 'wife and the episode ended at her murder. From perusal of the statements of P.W. Javed Iqbal and P.W. Shahzad Iqbal it appears that Muhammad Fiyyaz made four attempts to get visa but all the times it was refused and the appeals filed by his wife were also rejected by the relevant authorities. It further appears that Shagufta Nazli bought a house in U.K. for her husband. The spouses were parents of two children. Though minor unpleasant incidents have been brought on record but there was nothing to convince that appellant was not satisfied with all the efforts made by the deceased for his settlement in U.K. Even otherwise it was difficult to accept that a person who wants to settle in U.K. shall kill his wife who was the only source to achieve the objective.

12. According to the prosecution case on 27-3-2005 Shagufta Nazli was admitted to Hospital where she died at 11-00 p.m. Due to suspicious circumstances the police intervened and autopsy was conducted. Initially it was shown that she died of excessive intake of sedatives however, stomach with contents, intestine with contents and stomach wash were sent for chemical examination. On 28-4-2005 after obtaining the report from the examiner, doctor and the police came to know that Organophosphorous was present in the articles and this opinion was added in the post-mortem, report Exh. P. W . On 20-5-2005 the appellant was arrested and on 25-5-2005 poison of the same group was shown to have been recovered at his instance through recovery memo. Exh.P.E. No evidence against the appellant regarding purchase of Organophosphorous or to poison the victim was brought on record. Thus, it becomes clear that the whole prosecution story revolves around the recovery of poison and reports of Chemical Examiner Exh.P.KK. and Exh.P.KK./2.

13. A point which needs serious consideration is that at the time of lodging F.I.R. the accused was alleged for poisoning his wife. According to the prosecution case allegation was confirmed by the Chemical Examiner's report Exh.P.KK. which was obtained on 28-4-2005. It is clear from the record that after the said date use of Organophosphorous for commission of the offence was an open secret and it was sufficient to alert the accused that the presence of same group of the poison in -his house could be dangerous for him. It may be added further that accused was arrested on 20-5-2005 while the recovery was effected on 25-5-2005 through recovery memo. Exh.P.E. from the house of Muhammad Iqbal at the instance of his son appellant Muhammad Fiyyaz in presence of recovery witnesses the father of the deceased and Abid Hussain Naqvi a resident of District Gujrat and a close friend of the complainant party. It shows that the recovery of aforesaid item was suspicious and was of no consequence.

14. It may also be mentioned here that any report prepared by a Chemical Examiner, Serologist or Fire-arm Expert etc. can be used as evidence without recording his statement but the author must be cited as prosecution witness to establish that the report was prepared by him. C Section 510 of the Cr.P.C. provides that a Court may if it considers necessary in the interest of justice summon and examine the person by whom such report has been made. Wisdom behind the principle is that in case of dispute or a doubt it is the author alone who can resolve it. It is interesting to note that in the present case the Chemical Examiner who according to the prosecution case prepared Exh.P.KK. and.Exh.P.KK./2 was not cited as witness and there was no evidence to establish that the reports were prepared by any expert appointed by the Government under law.

15. The upshot of the above discussion is that in my view the trial Court failed to appreciate the above listed facts in a judicial manner. The prosecution story being highly doubtful was not worth relying. Therefore, the appeal filed by appellant Muhammad Fiyyaz is accepted and that of complainant's is dismissed resultantly the appellant is acquitted of the charge. H.B.T./3/Sh.C.(AJ&K) Appeal accepted.