P L D 1956 (W (PLP)

AKHLAQUE HUSSAIN, J.

The respondent, Abdul Ghani, was tried by the learned Sessions Judge, Lahore, for having wilfully caused the death of the late Mst. Nasim Chaudhry on the 7th of December 1953, by administering to her arsenic. By his order dated the 15th of September 1954, the learned Sessions judge found that the guilt of the accused had not been proved and acquitted him. This appeal has been filed by the Crown against that order. It was alleged by the prosecution that the deceased, who was born of Christian parents and was originally a Christian herself, met the accused some time in 1948; both of them developed a strong liking, or love, for each other and even tually the deceased embraced Islam and married Abdul Ghani. Apparently, the parties had not the consent of their parents for this marriage and their life thence-forward was not the life of a normally married couple. Some time towards the middle of 19.49, a portion of the house at 101, Ferozepur Road, was rented from its owner, P. W. 15 Mrs. R. B. Alvi, and, the deceased started living in it. The respondent did not live there himself but used to come there quite frequently and ordinarily had his lunch with the deceased. In June 1953, when Mrs. Alvi shifted to the official residential quarters in the Government Mint premises where her husband had been appointed as Medical Officer, the respondent took the remain ing portion of the house as well and agreed to pay Rs. 195 a month as rent for the whole house. The deceased who appears to have had some training as a nurse before her marriage with the respondent, worked for about five months from April 1949 as a nurse under training at the clinic of P. W. 37 Dr. Muhammad Ali which is situate in Tagore Park, Mcleod Road, Lahore, and is also the residence of the doctor. It is alleged that during this period the respondent normally used to take her to the clinic every morning in his car and similarly bring her back in the evening. While the deceased was still living at 101, Ferozepur Road, the respondent went away to England in December 1952. Thereafter, the financial position of the deceased seems to have become quite precarious and the rent of the house started falling in arrears. The landlady, Mrs. Alvi, in course of time became impatient and after some unpleasant, but unsuccessful meetings or quarrels with the deceased, made a report against the latter at the Police Station Ichhra on the 3rd of February 1953. Probably as a result of police report, the deceased vacated the house on the following day, and shifted to the clinic of Dr. Muhammad Ali. It seems that on account of her critical financial position, she had approach ed Dr. Muhammad Ali a few days before vacating Mrs. Alvi's House, with a view to take up service with him as a nurse. According to Dr. Muhammad Ali, she actually took up service with him on the 1st of February 1953, on a salary of Rs. 100 a month besides food and a room in the inter-floor of the clinic to live in. The respondent returned from England in the beginning of April 1953 but no other arrangement for the residence of the deceased was made and she continued to live in the clinic until her death on the 7th of December 1953. The story after this period, as alleged by the prosecution, is as follows:-The respondent continued his relations with the deceased whom he used to take out every evening in his car for about two or three hours. The father of the respon dent had arranged the latter's marriage with some girl in Multan and, according to the respondent, it was settled in September 1953, that the marriage will take place on the 11th of the following December. The respondent proposed to the deceased that in view of his impending marriage in Multan, the deceased should quit Lahore altogether and live somewhere outside obviously to avoid complications either during the marriage itself or in the married life of the respondent. This proposal was made at the insistence, or at the instance of the respondent's father. The deceased resented the suggestion and vehemently refused to fall in with it. The respondent, on the other hand, continued to insist upon it with equal vehemence and from time to time continued to threaten the deceased with dire consequences to her life if she remained adamant in her refusal. The services of some goondas were also obtained in order to threaten the life of the deceased. In the meanwhile, the deceased became pregnant from the respondent. At the time of her post-mortem examination, an ovum of about two weeks was found in her uterus. The respondent insisted upon abortion and the deceased refused to have it. On the 3rd of December 1953, the respondent took about 21 mashas of arsenic from P. W. 34 Hakeem Ghulam Nabi. In the evening of 7th December 1953, the respondent was seen by P. W. 38 Ata Hussain and one Shah Jahan, servants of P. W. 37 Dr. Muhammad Ali, taking away the deceased from the clinic in his car at about 6 p.m. as usual. Thereafter, the story may be related in the words of P. W. 38 Ata Hussain:- "The same evening after about two hours, the same car was brought back to Dr. Muhammad Ali's clinic by Abdul Ghani accused, who blew the horn after stopping it. I and Shah Jahan went near the car to find its door on the side on which Nasim was sitting open. Nasim's condition appeared to me to be rather unusual and she was unconscious. Abdul Ghani accused asked us to help her out of the car and show her to the doctor. We made some attempts to bring Nasim out of the car. She was unconscious and had, therefore, become too heavy to be brought by us. On this, Abdul Ghani accused pushed her out of the car with the result that she dropped on the ground. Abdul Ghani then drove away the car. " After the departure of Abdul Ghani accused, I and Shah Jahan began to attend on the deceased and after some time when I was proceeding towards the clinic to give information to the doctor (Muhammad Ali P. W.) I found the doctor himself emerging out of the building and coming towards us. His driver Abdul Aziz had also reached in the meantime and we told Dr. Muhammad Ali how the accused had dropped the deceased there in a state of unconsciouness. With some efforts we carried Nasim in the clinic where Dr. Muhammad Ali gave her first aid in the form of injection etc." As to what transpired after the deceased had been taken into the clinic is thus described by Dr. Muhammad Ali (P. W. 37):- " I carefully examined her. She was completely uncons cious and could not be roused even on shaking. She had cold and clammy skin, contracted pupils and her muscles had relaxed. I suspected morphia poisoning and gave her coramine injections, two in number, first immediately in the upper arm and second after about 45 minutes in the arm. I did not find her returning to consciousness although her pulse had improved after the first injection. After I gave the first injection to the deceased and at the time when I noticed an improvement in her pulse, I received a very urgent telephone call to see a patient whose condition was said to be very bad. I went out to see that patient and returned within half an hour after which I gave the above mentioned second injection to the deceased. When I returned, I found that her pulse had become weak and that is why I gave the second injection. After giving the second injection, I thought that I had better take her to the Mayo Hospital, and actually took her to the Casualty Department of the Mayo Hospital in my car . . . . . . . .We reached the Casualty Department of the Mayo Hospital at about 10 p.m. A stretcher was sent for by me and Nasim who was still alive was put on it and carried into the Casualty Department. I accompanied' her into the department, leaving my servants to look after the car. Dr. Durrani P. W. was sent for and he came within a short time. Dr. Durrani also examined the patient, felt her pulse and gave her injections. Within about fifteen minutes, Dr. Durrani declared Nasim dead and with this I agreed ". According to Dr. Durrani (P. W. 3), when he saw the deceased for the first time, he " believed that 'it was a dead body ". It would thus appear that the deceased had died either on her way from the clinic to the Mayo Hospital or soon after reaching the hospital before Dr. Durrani could examine her. The prosecution attempted to establish the guilt of the respondent by proving (1) That the deceased died of arsenic poisoning; (2) that the deceased was the wife of the respondent and had become pregnant from him about two weeks before her death ; (3) that the respondent was going to be married on the11th of December 1953 and thought that the continued presence of the deceased in Lahore and her pregnancy were likely to create complications in his marriage and, therefore, insisted upon the deceased having an abortion and shifting from Lahore to some other place ; (4) that the deceased refused to comply with the demands of the respondent ; (5) that on the 3rd of December 1953, the respondent took about 2 mashas of arsenic from P. W. 34 Hakeem Ghulam Nabi ; (6) that while the deceased was living at the clinic of Dr. Muhammad Ali, the respondent used to go there almost every evening in his car and take the deceased out for two or three hours ; (7) that the respondent had been seen by P. W. 38, Ata Hussain, taking out the deceased in his car at about 6 p.m. on the 7th of December 1953 ; (8) that Ata Hussain had seen the respondent bringing back the deceased to the clinic after about two hours and dropping her in front of the clinic in an unconscious state which was the result of poisoning ; and (9) that P. W. 35, Buland Akhtar, had, the same evening after 7-30 p.m., seen the respondent's car parked on Bogi Road near Griffein High School for Girls in which the deceased was sitting with the respondent in the front seat and that the witness heard .the deceased addressing the respondent: " Ghani, what have you administered me ; I am dying ". On inquiry by the witness, the respondent told him that " there was nothing particular ", and drove away the car. In the evening of the following day, the respondent saw the witness and, taking him aside, confessed to him that he had got rid of the deceased and requested him to " keep away from public view for some days to come ". It was contended in the trial Court that the guilt of the accused stood proved from these circumstances. The learned Sessions Judge recorded the following findings on the various aspects of the prosecution case:- " The summary of prosecution evidence given above leaves no doubt in my mind that the accused contracted intimacy with Nasim some time in the year 1948 and that they were for all practical purposes living as husband and wife. However, they do not appear to have gone through any formal ceremony of nikah in order to legalize their illicit cohabitation. Abdul Ghani accused originally main tained her, but wanted to separate from her at some later stage mainly in deference to the wishes of his parents and also because of his proposed marriage, which was to be celebrated in December 1953. But in spite of all this, I still feel inclined to think that Abdul Ghani did not want to finally bid good-bye to Nasim and that, in any case, he was not anxious to get rid of her or for the matter of that to murder her. Abdul Ghani's clandestine meetings with Nasim were well known and even his parents were aware of it. I fail to understand, why he should have taken an extreme step of taking away the life of Nasim. He could as well ignore her or continue occasional secret meetings with her even after his marriage at Multan. We know of several such spoilt sons of rich men in this sinful world who would marry one and yet carry on relations with other women without let or hinderance and who would always deceive and keep in darkness their loyal and credulous wives. In my opinion, Abdul Ghani accused had no motive to murder Nasim ". His final findings as recorded towards the end of his judgment are as follows:- " My finding is that the accused had no motive to kill Nasim; that the accused did not take away Nasim on the evening of the 7th of December 1953; that the accused did not bring her back that evening ; that Buland Akhtar P. W. is a liar and that Hakeem Ghulam Nabi never gave any arsenic to the accused. In the light of these findings, no case for murder can be said to be established against Abdul Ghani accused ". In an earlier part of his judgment, the learned Judge had remarked:- " The diary (Exh. P. 4) also shows that Nasim was annoyed with Doctor Muhammad Ali and some others (whom I need not mention), because all of them including the aged doctor were anxious to satisfy their lust on her and would always make indecent advances towards her in order to fulfil their wicked designs ". Ultimately he recorded the conclusion:- " Poison appears to have been mixed in her food which the doctor's servants used to give her, and if I mistake not. somebody in the clinic seems to have cohabited with her either before or immediately after the administering of poison ". The judgment was rounded off by the following observa tions regarding Dr. Muhammad Ali (P. W. 37):- " Briefly speaking, the doctor is an unscrupulous and dishonorable person who appears to be up to anything and whose conduct in this case has been most unsatisfactory, if not criminal. He should thank his stars that he did not figure as an accused in this case, and only if he had not very cleverly succeeded in side-tracking the issue and shifting the responsibility on the shoulders of the accused, who knows what difficult time he would have had at his trial . . . . . . . . ". " All the above factors will show that the record of Dr. Muhammad Ali is not clean and that his intentions qua Nasim were quite wicked ". Learned Assistant Advocate-General, Mr. Mahmud, who appeared for the Crown in this appeal, stated at the very outset that he would not rely on the evidence of P. W. 35 Buland Akhtar. On the third day of the hearing, he stated that he would also accept the finding of the learned Sessions judge regarding the evidence of P. W. 34 Hakeem Ghulam Nabi and would refrain from reading it in support of this appeal. He, however, challenged the other findings of the learned trial Court. Mr. Saleem for the respondent opened his arguments by challenging the finding of the lower Court that the deceased had died of arsenic poisoning. As it is necessary to hold that the deceased had died of poisoning before any question of the respondent's guilt can arise, we shall deal first of all with this contention of Mr. Saleem. P. W. 2, Dr. Allah Bakhsh, Chemical Examiner of the Punjab Government, received the following four sealed bottles for examination:- (1) Bottle No. 1 containing the stomach and its contents. (2) Bottle No. 2 containing one whole kidney, pieces of liver and spleen. (3) Bottle No. 3 containing portions of small bowels with their contents. . (4) Bottle No. 4 containing sample of rectified spirit. By applying Reinsch's Test, he found a total quantity of 2-3 grains of white arsenic in the viscera contained in bottles Nos. 1 and

3. He also detected arsenic in the contents of bottle No. 2 but did not estimate the exact quantity because he considered it unnecessary after having discovered in the other two bottles a quantity of arsenic, which was more than the lethal dose. He did not find any poison in the sample of the spirit contained in the fourth bottle. He also applied other tests in order to exclude the possibility of other poisons besides arsenic. Wagner Reagent, Ferric Chloride, Marquix Reagent and Frohdes Reagent Tests were applied to discover morphia, and Millons Reagent and Cobalt Nitrate Tests for barbiturates. He also ascertained the symptoms before and after the death from Dr. Muhammad Ali, Dr. Durrani and Dr. S. G. M. Shah, who had made the post-mortem examina tion, in order to find out whether the symptoms tallied with the result of the tests made by him. The experience of Dr. Allah Bakhsh is beyond question. He was appointed Chemical Examiner to the Punjab Government in the year 1949 and before that had been acting as an Assistant to the Chemical Examiner ever since 1932. He was subjected to a very lengthy and minute cross-examination but nothing was brought out to shake his testimony. The learned judge was impressed by his evidence and accepted his conclusions- In support of his contention that death by arsenic is not satisfactorily proved, Mr. Saleem urged three points: Firstly, that in view of the facts that Dr. Allah Bakhsh did not complete his report until as late as the 23rd of December 1953 and that before that he consulted three other doctors, throw considerable doubt upon his bona fides; secondly, that Reinsch's Test is so very delicate in its nature that, in the absence of great care and skill on the part of the person making it, serious errors are likely to occur, and that the requisite amount of care and skill on the part of Dr. Allah Bakhsh has not been proved; and thirdly, that Reinsch's Test applied in this case is only a qualitative test and, therefore, the result of Dr. Allah Bakhsh's test cannot be treated as correct as regards the quantity of arsenic alleged to have been discovered. We have already adverted to the fact that Dr. Allah Bakhsh tried to obtain information from three doctors regarding the symptoms found by them on the deceased before and after her death. Before consulting them, the Doctor also wrote a letter to the Senior Superintendent of Police, Lahore, on the 9th of Decem ber 1953 (Exh. P. A/O) in which he requested for the supply of the following information:- " (1) Any suspected medicines or drugs found in the possession of the accused or in the residential quarter of the deceased. (2) The stomach washing or induced vomiting which any medical man might have carried out before the deceased was taken to the Mayo Hospital. (3) Any other kind of treatment or injections which were given to the deceased. (4) Any other relevant information which may have come to the possession of the police during the investigation." Everything done by the doctor was above board and there is nothing in these incidents, or another on record, which, in any way, reflect adversely upon the integrity of the Chemical Examiner. Perhaps it might have been more proper on his part to have confined himself to his own examination; but the further steps taken by him only indicate an excessive, but not suspicious, anxiety on his part to be sure of the correctness of the result of his tests. The doctor was also cross-examined at considerable length regarding the alleged delay on his part in submitting his report but nothing could be brought out to show that actually there was any reprehensible or suspicious delay in the matter. As regards the second point raised by Mr. Saleem, we have already referred to facts which would show that Dr. Allah Bakhsh is an experienced Chemical Examiner. He claimed to have applied the Reinsch's Test " hundreds of times " and asserted that "it had always given him the most satisfactory results". This test which, in his personal experience, he had always found to be "very reliable, very satisfactory and very sensitive", had never failed him. There is nothing in his long cross-examination to indicate that while making the tests in this case he had failed to take any care or caution which was necessary. In fact, Mr. Saleem frankly admitted this before u, and added that, from his point of view, the cross-examination in this respect had not been satisfactory. We are, therefore, unable to hold that there was any want of care on the part of the Chemical Examiner or that he failed to take any precaution or safeguard necessary for the accuracy of the test. Mr. Saleem relied upon the following passage at page 508 of the second volume of Taylor's Principles and Practice of Medical jurisprudence (8th edition): "In consequence of errors into which faulty methods of employing Reinsch's Test have led, its reliability has been much discredited; and though in skilful hands the results obtained by it are trustworthy, it would perhaps be unsafe to rely upon it in any important criminal investigation." Upon the evidence in this case, we have no reason to doubt either the skill or the long and varied experi ence of Dr. Allah Bakhsh; and there is nothing whatever to suggest that the methods employed by him in making the test were in any respect faulty. It should further be noted that this particular edition of Taylor's is of the year 1928 and we have failed to find anything against the reliability of the test in books written much later, e. g., Glaister's Medical Jurispru dence and Toxicology, 1947 edition, and Modi's Jurisprudence, 1952 edition. We are also unable to uphold Mr. Saleem's last contention. In the first place, it is based upon the erroneous assumption that the Reinsch's Test applied in this case is that orthodox test which is stated in the text books cited by him. In his cross -examination, Dr. Allah Bakhsh was confronted with the description of the test as given at page 72 in Bamford on Poisons, 1940 edition, and to this he replied; "I did not apply exactly the same test as has been"'aeSCribed in Bamford in the quotation. I applied it with some modification as suggested in Griffin's Forensic Medicine and Toxicology, page 383. " The witness had with him this latter book, but no further question was put to him with reference to it. At the hearing before us, Mr. Saleem did not refer us to either of these two books. It is not fair to try to discredit the test made by this witness without reference to those books, and with reference to others with which he was not confronted during his cross- examination. It might have been possible for the witness, as an expert and experienced medical man, to have given satisfactory explanation of the points which are now sought to be made by the respondent's learned counsel. Moreover, it would be incorrect to say that the Chemical Examiner confined himself only to Reinsch's Test, because he also called into aid that part of Marsh's Method which relates to the ascertainment of the quantity of the arsenic. He stated in his cross-examination:- "Arsenic collects on the copper strip, which is then heated in a sublimation tube and the crystals which are seen in the sublimation tube are compared with another tube in which a weighed quantity of arsenic has been heated and crystals formed. This method of quantitative estimation of arsenic by the tube corresponds to the comparison of tubes in Marsh's method." Some genuine doubt may have been caused in the mind of the learned counsel on account of a sentence which occurs earlier in the cross-examination of the witness, namely, " I applied only Reinsch's Test because that was the best", but in that very passage he had further explained: " I applied Reinsch's Test for the purpose of discovering arsenic". It is, however, clear from his later statement that he ascertained the quantity by a definite method which has not been impeached at the bar and, from the text books, on the subject, appears to be unimpeachable. Again, nothing was said during the hearing to make us suspect that Reinsch's Test is not a quantitative test. The only drawback of the test in this respect as pointed out by Glaister at page 500 of his Medical Jurisprudence and Toxicology, 1947 edition, is that it "fails to take up all the arsenic which may be present in the material suspected." It would', therefore, be more correct to say that by applying this test, one cannot be sure that there was no more arsenic than the quantity actually discovered. In this case, however, this consideration is wholly inapplicable. Dr. Allah Bakhsh has himself stated that he had also discovered the presence of arsenic in the contents of the second bottle supplied to him; but he considered it wholly unnecessary to ascertain the quantity in it because the quantity discovered by him in the contents of the first and third bottles was enough for a fatal dose. For the foregoing reasons, we are satisfied that a sufficient quantity of arsenic was discovered in the body of the deceased to fully justify the conclusion that the deceased died of arsenic poisoning. In addition to the report and evidence of the Chemical Examiner, we have further the evidence of three other doctors, namely, P. W. 1 Dr. Shah, P. W. 3 Dr. Durrani, and P. W. 37 Dr. Muhammad Ali, to the effect that the symptoms of the deceased, both before and after her death, clearly indicated that she had died of poisoning and that those symptoms did not indicate any known disease. It is true that before the test of the Chemical Examiner, all of them suspected it to be a case of morphia poisoning; but this was so because in this particular case, as sometimes happens, the symptoms had assumed narcotic form. They were, however, agreed that it was definitely a case of poisoning. Before we can proceed to discuss the evidence against the respondent, we have yet to deal with another objection taken by Mr. Saleem to the admissibility of the diary of the deceased (Exh. P. 4) which was admitted in the trial Court without objection and which forms the most substantial piece of evidence against the respondent. The diary was used in the lower Court, and is now sought to be relied upon before us, to prove (1) That the deceased was married to the respondent and continued to be his wife till her death when she was pregnant from him for about two weeks; (2) that in view of his impending marriage in Multan, the respondent was insistent that the deceased must have an abortion and must leave Lahore; (3) that since some time before the deceased's death, the respondent had started threatening her with death in case she refused to carry out the aforementioned wishes of the respondent; and (4) that the respondent actually made several attempts on the life of the deceased before she actually died on the 7th of December 1953. As regards the first point sought to be proved by the prosecution from the diary, Mr. Saleem had nothing to say against it and admitted that it was permissible to use the diary for that limited purpose. He, however, contended that it cannot be used for any of the other purposes mentioned above. Learned counsel relied upon certain English authorities and cases and the ruling of their Lordships of the Privy Council in Pakala Narayana Swami v. Emperor (1) to support his contention. Learned counsel cited the following passage appearing at page 332 of the 9th edition of Phipson on the Law of Evid ence:- "Declarations are only admissible to prove the cause of, and circumstances of the transaction resulting in, death and not previous or subsequent transactions, although relevant to the issue". This passage was relied upon in order to throw light on the expression "circumstances of the transaction resulting in death"; occurring in section 32 (AIR1930PC47) of the Evidence Act; but there is nothing in it, or for the matter of that, in the whole chapter in Phipson dealing with dying declarations, which may help in a greater understanding of the expressions than the language of section 32 (1) of the Evidence Act. The fact that the circumstances must not relate to previous or subsequent transactions, or any other transaction, is obvious. The question, however, still remains as to what meaning should be assigned to the word "transaction" and what circumstances can be treated as its circumstances. The ruling in R. v. Beddingfeld (1), is hardly more helpful. In that case, the accused had been charged with the murder of the deceased who was a laundress. It was alleged that the accused and the deceased had been together in the latter's room and "in a minute or two the deceased came suddenly out of the house towards the women (her assistants) with her throat cut and on meeting one of them she said something, pointing book towards the house. In a few minutes she was dead." The prosecution made repeated attempts to prove what the deceased said; but Cockburn C. J., who tried the case, ruled out the evidence on the grounds ( ) that he was not satisfied that the dying declaration had been made by the deceased under a sense of impending death, and (ii) that it was not admissible as part of the res-gestae "for it was not part of anything done, or something said while something was being done, but some thing said after something done". This ruling of the Chief Justice invoked widespread criticism so much so that he eventually published a pamphlet to justify it. This ruling does not throw much light on the question before us which has to be decided with reference to different rules of evidence con tained in subsection (14 Cox C. C. p. 341) of section 32 of the Evidence Act, It is, however, interesting to note an observation made in that case by Cockburn C. J.: "I regret . . . . . . . that according to the law of England, any statement made by the deceased should be admissible. The sentiment expressed in this observa tion was responsible for doing away, in our own Evidence Act, with the conditions that the declaration must have been made under a sense of impending death and that it can be admitted only in murder or manslaughter trials. We have looked into the other, authorities cited by Mr. Saleem and find that, for the reasons already stated, they are of little use to us. It would, therefore, be useless to discuss them at all. The ruling in Pakala Narayana Swami v. Emperor, so much relied upon by the learned counsel for the respondent does not tend to produce the feeling in us that the statements in the diary (Exh. P. 4) which are in question, are inadmissible under section 32 (14 Cox C. C. p. 341) of the Evidence Act. We have carefully read the entire judgment and are convinced that it definitely goes against the contention of the respondent. In that case, the accused, his wife, his wife's brother and his clerk, who all lived in Behrampur, were charged with having murdered the deceased who lived at Pithapur. The body of the deceased had been found in a steel trunk in a third-class compartment where the trunk had been left unclaimed. It was alleged that on the 20th of March the deceased had received a letter inviting him to go to Behrampur. His widow stated at the trial that on that day her husband showed her i a letter and said that he was going to Behrampur as the accused's wife had written to him and told him to go and receive payment of his dues. It was contended before their Lordships of the Privy Council that this statement was inadmissible under section 32 (1) of the Evidence Act. This objection was overruled and, therefore, on the face of it, this ruling is not at all helpful to the respondent in this case. The entire tenor of the observations of their Lordships in Narayana Swamis case, runs counter to the proposition canvassed by Mr. Saleem, namely, that the scope of sec tion 32 (1) of the Evidence Act is very restricted. Much stress was laid on the following three sentences appearing in the judgment:- "Circumstances of the transaction is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in 'circumstantial evidence which includes evidence of all relevant facts. It is, on the other hand narrower than res gestae These sentences, at first sight, do appear to lend some support to the learned counsel's contention; but that is so only when they are torn from their context. In order to appreciate the full meaning of their Lordships, it is necessary to consider and analyse the entire observations made by them on the subject. The question was disposed of by their Lordships in the following paragraph:- "The first question with which their Lordships propose to deal is whether the statement of the widow that on 20th March the deceased had told her that he was going to Behrampur as the accused's wife had written and told him to go and receive payment of his dues was admissible under section 32 (1), Evidence Act, 1872. That 'section provides 'Statements written or verbal of relevant facts made by a person who is dead . . . . are themselves relevant facts in the following cases (1) when the statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not 'at the time when they were made under expectation of death and whatever may be the nature of the proceeding in which the cause of his death comes into question. A variety of questions has been mooted in the Indian Courts as to the effect of this section. It has been suggested that the statement must be made after the transaction has taken place, that the person making it must be at any rate near death, that the 'circumstances' can only include the acts done when and where the death was caused. Their Lordships are of onion that the natural meaning of the words used does not convey any of these limitations. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. The circumstances must be circum stances of the transaction general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person, or that he had been invited by such person to meet him would each of them be circumstances of the transaction, and would be so whether the person was unknown, or was not the person accused. Such a statement might indeed be exculpatory of the person accused. 'Circumstances of the transaction' is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in 'circumstantial evidence' which includes evidence of all relevant facts. It is, on the other hand, narrower than 'res gestae'. Circumstances must have some proximate relation to the actual occurrence; though, as far for instance, in a case of prolonged poisoning they may be related to dates at a considerable distance from the date of the actual fatal dose. It will be observed that 'the circumstances' are of the transaction which resulted in the death of the declarant. It is not necessary that there should be a known transaction other than that the death of the declarant has ultimately been caused, for the condition of the admissibility of the evidence is that 'the cause of (the declarant's) death comes into question'. In the present cage, the cause of the deceased's death comes into question. The transaction is one in which the deceased was murdered on 21st March or 22nd March and his body was found in a trunk proved to be brought on behalf of the accused. The statement made by the deceased on 20th or 21st March that he was setting out to the place where 'the accused lived, and to meet a person, the wife of the accused, who lived in the accused's house, appears clearly to be a statement as to some of the circumstances of the transaction which resulted in his death. The statement was rightly admitted". It would be noticed that their Lordships at the very outset expressed a very definite and unequivocal opinion that certain limitations placed by the Indian Courts upon the admissibility of declarations under subsection (1) of section 32, were, on the language of the section itself, unsustainable. This clearly shows that the scope of the provisions of that subsection was held to be wider than what had been considered by some Indian Courts. The last limitation mentioned, and rejected, by their Lordships namely, "that the 'circumstances' can only include 'the acts done when and where the death was caused" is noteworthy. Thus the limit on the time and place to which the circum stances should relate was brushed aside. Their Lordships observed: "The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed". The first part of this sentence definitely indicates that the circumstances which occurred before the cause of death even arose fall within the ambit of the provision. "General expressions indicating fear or suspicion, whether of a particular individual or otherwise" were held to be excluded only when they were "not directly related to the occasion of the death". The sentence in which this observation was made shows that statements regarding all circumstances are admissible if they are directly related to, or have a direct bearing on, the occasion, or of the transaction, of the death. The next sentence beginning with the words "But statements" and ending with "whether the person was unknown or was not the person accused", again points out the fact that facts and incidents, although not parts of the transaction which resulted in death, are admissible as circumstances of the transaction if they have any direct bearing, positive or negative, on the transaction itself. After this occur the three sentences relied on by Mr. Saleem. To our mind, the first of these, namely. " `Circumstances of the transaction' is a phrase no doubt that conveys some limitations," goes against the contention of the learned counsel. It obviously does not mean that the meaning to be given to the phrase should be limited or restricted. It only means that this phrase places some limitation on the evidence to be received; in other words, that all relevant evidence is not to be admitted under this subsection. The word "some" in the sentence, if anything, indicates that the evidence to be received under this head is fairly wide in its range. The second sentence, again, shows that their Lordships considered the phrase in question not to be narrow but wide although not as wide as to include "evidence of all relevant facts". The idea underlying the third sentence is practically the same as the one contained in the preceding sentence just referred to. The expression "res gestae" as used in the English law of evidence is, so far as its contents and application are concerned, by no means a definite, or a precisely definable, term. In Munir's Principles and Digest of the Law Evidence it has been "broadly defined as matter incidental to the main fact and explanatory of it, including acts and words which are so closely connected therewith as to constitute a part of the transaction, and without a knowledge of which the main fact might not be properly understood". At page 59 of Phipson on Evidence, 9th edition, it is stated: "The term 'yes gestae' though generally applied to the fact or transaction in issue, may, as will be seen, be used in the sense of any relevant fact, i.e., to indicate the admissibility of such act, and, as a part of it, its accompanying declarations". It will be thus seen that the term "Yes gestae" has been extended to include any relevant fact, and their Lordships of the Privy Council, when they referred to this expression in their judgment under discussion, only meant that all relevant facts are not included in the expression `'circumstances of the transaction". Mr. Saleem ingeniously argued that since section 6 of the Evidence Act contains the rule of res gestae, which their Lordships indicated to be broader than "circumstances of the transaction", the latter expression must be given a meaning more limited than the provisions of section

6. We are unable to accept this argument because it is based upon the fallacious assump tion that all that which is understood in English law by the expression "res gestae" is included in section

6. It is true that section 6 partially covers the field covered by the expression "res gestae"; but it is not correct to say that it covers the entire field. While "res gestae", as already shown, may include any relevant fact; a fact to be admissible under section 6 must be shown to be "so connected with a fact in issue as to form part of the same transaction". The next sentence in that judgment, to our mind, contains the one and the only test laid down by their Lordships for admission of evidence as constituting "circumstances of the transaction" within the meaning of section 32 (1) of the Evidence Act. Such circumstances, according to their Lordships, are those which have "some proximate relation to the actual occurrence". (We would again emphasise the use of the word "some" to show that their Lordships did not intend to place a narrow interpretation on the expression "circumstances of the transaction"). In this sentence, their Lordships took care to point out that in a given case the admissible circumstances may have taken place "at a considerable distance from the date" of the actual occurrence in question. The next two sentences are again very illumi nating. There it is laid down that it is unnecessary that the transaction itself should be known before evidence can be admitted as constituting its circumstances. It is enough that the result, namely, the death, is known, and since the result must have been the effect of some transaction, evidence may be admitted as being either of the transaction itself or of its circumstances provided it has "some proximate relation" to the result. Their Lordships did not attempt to define the expression "proximate relation" because it defines a universally applicable definition and it depends upon the factors of time, place, logical connection, etc., with reference to the facts of each case. We are, however, satisfied that their Lordships did indicate in Narayana Swami's case that a legitimately wide and broad interpretation should be placed upon the phrase "circumstances of the transaction" as used in section 32 (1) of the Evidence Act. A careful examination of the language employed in the section itself also leads independently to the same conclusion. The English rule relating to the dying declarations is founded upon the principle of necessity and the supposed trustworthiness of the declaration, which, considering the solemnity of the situation in which it is made, is assumed to be as trustworthy, if not more, as it would have been if the declarant had been administered an oath and subjected to cross-examination. The second consideration has been dispensed with by the Evidence Act, and, therefore, the rule in this country obviously rests upon the principle of necessity alone. This principle may, in the first place, mean that as the declarant is not available for examination and cross-examination on oath, his statement may be admitted to help the Courts of justice to arrive at correct findings of fact. It, however also means that only so much of a declaration of such a person be admitted in evidence as is necessary, or absolutely necessary, for the purpose of the; case. In either view, the rule according to logic and common sense should extend to all matters which are logically relevant and, therefore, necessary for a correct decision of the case. The legislature, however, in its wisdom, has chosen to make admissible only such facts as can be treated as the "circumstances of the transaction which resulted" in the death of the declarant. While it is true that the Courts must respect, and keep within, the limit prescribed by the legislature, there seems to be no justification in principle to construe the limit thus imposed narrowly. Any fact which can reasonably be treated either as a part of the transaction itself or as its circumstance, is admissible under that subsection. A large number of cases decided by the High Court in this sub-continent were cited at the bar. We have carefully examined these and it would serve no useful purpose to discuss them individually. The large majority of them have, consciously or unconsciously, given a wide and liberal meaning to the words in subsection (1) of section

32. With such of them as proceed upon a narrow construction, we are respectfully unable to agree. We have noticed that sometimes the question of the weight of a particular piece of evidence has been confused with its admissibility. It was also mooted at the bar whether a declaration evidencing a motive for the crime is or is not admissible under the provision in question; and rulings were cited for both the propositions. The expression "motive" has not always been used in its correct sense, namely, the emotion which could have led to the act in question. It has been often confused with intention and design. It is clear that mere emotion; which mayor may not have led to the commission of the act in E question, cannot be treated as a part of the transaction itself; but there seems to be no reason as to why it should not be treated as one of the circumstances of the transaction provided it is sufficiently proximate in point of time and. sequence. For the reasons indicated, we are of the opinion that the diary (Exh. P. 4) is admissible in evidence, and was rightly admitted by the learned trial Court, to prove the facts stated at the commencement of this discussion, We might add here that nothing has come, or been brought, to our notice to cast doubt upon any statement in the diary. At the hearing we repeatedly asked the learned counsel for the respondent whether he could point out to any evidence on the record to show the incorrectness of a single statement in the diary; but every time he frankly admitted his inability to do so. Reverting to the facts of the case, the next matter which requires consideration relates to the relation between the deceased and the respondent. It is alleged by the prosecution that the deceased was the wife of the respondent and was pregnant from him at the time of her death; that in view of the respondent's second marriage which was to take place, and in fact did take place, on the 11th of December 1953, he was insisting upon her to have an abortion and to shift from Lahore to some other place and that on the deceased's refusal to do either of these things, the respondent threatened her with death and eventually did cause it by means of arsenic poisoning. Mr. Saleem expressly stated at the bar-and in our opinion very correctly-that according to him it would make no difference to the prosecution case whether the deceased was or was not the legally wedded wife of the respondent, because it is clear upon the evidence on the record that the relation between the two, to all intents and purposes, was that of husband and wife. Nor did he contest the allegation that the two-week-old ovum in the womb of the deceased owed its existence to the respondent. Voluminous evidence was produced on either side to prove and disprove that the deceased was the respondent's wife and that she had been impregnated by the respondent. Efforts also appear to have been made not without some conspicuous success-on behalf of the respondent who is reputed to be the son of a wealthy father, a tamper with witnesses who appeared, or might have appeared, for the prosecution. After a careful consideration of the entire evidence we are definitely of the opinion that the deceased was the wife of the respondent and that at the time of her death she was pregnant from him. As this aspect of the prosecution case was not at all challenged on behalf of the respondent during the course of long and protracted arguments before us, we need only briefly indicate some of the evidence and circumstances which have convinced us of the correctness of our conclusions. P. W. 7 Syed Mahmud Rizvi is a hakeem of- Montgomery who has been on quite friendly terms with the parents of the deceased. He has stated that the deceased was not getting on well with her parents and that some time in the year 1948 she told him at Montgomery that she had embraced Islam and had married the respondent against the wishes of her parents. She also requested the witness to exercise his good offices with her parents and persuade them to forgive her. The evidence of this witness was not seriously challenged in cross -examination and there is absolutely nothing to make us doubt his truthfulness. It is noteworthy that the parents of the deceased, P. W. 23 Nawab Din and his wife P. W. 24 Mumtaz, have not stated that, to their knowledge, the deceased was the respondent's wife. The only incident to which they have deposed is that the deceased informed them in 1948 that she had borrowed Rs. 15 from the respondent and that they gave him Rs.

30. It is quite clear from their statements, as well as from other evidence, that the relations between the deceased and the respondent, and their consequent marriage, had never their approval and that from 1948 till her death they had nothing whatever to do with her. The brother of the deceased, P. W. 22, was apparently for 1; similar reasons silent on the question of the alleged marriage. He, however, deposed to having received a letter, dated the 28th of September 1948, from the deceased in which she said: "To those with whom I am living at present, I have given the information that Abdul Ghani is a distant relative of mine and that is why he comes to see me now and then. I have also told them that Abdul Ghani is the son of Ch. Eid Muhammad, proprietor of the Rattan Cinema and the Friends Film Service. What I mean to suggest to you is that if ever those people make enquiries from you, you may also admit that Abdul Ghani is your distant relative." P. W. 21 Suraiyya, the sister of the deceased, quite straight forwardly stated that not only the respondent had never admitted to her the fact of being the husband of the deceased but that he had definitely denied it. His conduct and treatment, the details of which she stated at some length, however, '"fortified" her belief that he had married her sister. P. W. 26, Dr. Abdul Aziz, Professor of Surgery in Fatima Jinnah Medical College, and Surgeon in Sir Ganga Ram Hospital, Lahore, produced a register of the Ganga Ram Hospital showing that one Mrs. Chaudhary, whose address was care of Mr. M. A. Chaudhary, 115, Ferozepur Road, Lahore, had been admitted twice in the hospital in 1949 as an indoor patient. The number 115 is obviously a mistake for

101. M. A. Chaudhary means Muhammad Abdul Ghani Chaudhary the respondent, and his wife Mrs. Chaudhary, is the deceased Nasim Chaudhary who was known by the latter name till her death. The witness identified the patient in question from the photo of the deceased Exh. P. B. As to what happened on the first occasion is thus described by the witness: "She was operated upon for dilatation and duration for sterility. She had no issue and was anxious to have a child. This operation was intended to remove defects, if any. I performed the operation. Exh. P. W. 29/A is the original entry of my register and Exh. P. W. 29/13 is its true copy." This entry relates to the month of May 1949 and thus it would appear that the deceased who had been married on Abdul Ghani since sometime had had no child till then and was anxious to have one. According to this witness, the deceased was admitted into the hospital the second time on the 25th of October1949 and discharged on the 21st of November 1949 after having been treated for pelvic inflammation. The fact that at the time of her death the deceased was pregnant from the respondent and the following entry in the diary, Exh. P. 4, leave no room for doubt that the tie of husband and wife between the two persons had not been dissolved until her death on the 7th of December 1953. After having noted on the 30th of November 1953 that she believed she was pregnant, she wrote on the 2nd of December:- "The doctor has verified my idea to be correct. Now I can make this whole family dance. Now I shall do, whatever I can. What does it matter that you have burnt all my papers! I still have some letters with me, And then the whole world is a witness. Every particle of the dust in Lahore is a witness and knows what relationship exists between you and me." Indeed, it would appear from the following entry in the diary that at one time she felt so much exasperated by the conduct of the respondent that she asked him to release, or divorce, her; but of course she did not really mean it 18th November 1953: "Oh! So Mr. Ghani did open his lips last night! 'I am marrying a second time just to please my parents: Do it, darling-with pleasure. Thanks God. I shall be well rid of you. You do not wish to set me at liberty because I am your 'soul, life and love'! I curse you and my relation with you. God willing, your father will have to release me. I shall marry before you do. You want to sacrifice me at the altar of the pleasure of your parents? I refuse to be the sacrificial goat." The evidence of P. W. 15 Mrs. Alvi and C. W. 4 Asghar Shamim was relied on in the lower Court by the defence to show that the deceased was not in fact-married to the respondent and that she was a woman of loose character-a most unworthy and unjustifiable suggestion to be made by the respondent even though he had to defend himself against the charge of murder. Upon a consideration of the whole evidence, we are convinced beyond a shadow of doubt that the deceased was a lady of high integrity and unimpeachable character, and that, even after having discovered the respondent to be a man of questionable character and devoid of all gentle manliness, she never wavered in her love towards him, and almost on a set purpose, as it were, unflinchingly sacrificed her life at the altar of her love. We are also convinced that the evidence of these two witnesses, in so far as it purports to support the defence, is false and was most probably given under the pressure and influence exerted on behalf of the respondent. On the 9th of April 1954, the date on which she was examined before the committing Magistrate, Mrs. Alvi made an application (Exh. P. W. 21/A) to the Inspector-General of Police, copies of which were forwarded to the Senior Superintendent of Police, the Additional District Magistrate and the District Magistrate, Lahore, complaining: "As I left the Court-room (that of the committing Magistrate) the station house officer and some other police officials of the Naulakha Police Station were standing there and they passed some very objectionable remarks about my character and about the evidence which I had given in the Court. For instance, the Station House Officer said that I had taken bribe and that the part of the statement in which Nasim, the deceased, was expressed as having told me that she was married to one Ijaz at Karachi, was a deliberate lie calculated to sabotage the case of the police." This application, to our mind, instead of vindicating her character rather creates suspicion against her. We are not at all sure that it was not made at the instance of the defence. In her examination-in-chief she stated that she had leased her house to the respondent for the residence of the deceased and that when after the departure of the respondent to England towards the end of 1952 the rent fell in arrears, she went to the parents of the respondent to ask for payment, and eventually did realise Rs. 200 from the mother. She said: "I went to see Ch. Eid Muhammad, father of the accused, and asked him whether he knew if his son Abdul Ghani was keeping a wife in a separate house." This clearly shows that Mrs. Alvi did know that the deceased was the wife of the respondent, and, at any rate, having seen them living as husband and wife for years, she had every just reason to believe it. In her cross-examination, however, she sprang a surprise upon the prosecution by stating: "I remember having heard from the deceased during the earlier days of her residence in my bungalow that she was the wife of one Ijaz of Karachi." In the first place, it is hardly likely that the deceased would have made such a statement to the witness and lose her face in her eyes when to the knowledge of the latter she was living as the wife of the respondent. Secondly, the entire evidence oral and documentary, relating to the years 1949 and 1950 leaves no room for doubt that this statement of Mrs. Alvi is false and was made for the benefit of the defence. This is not the only instance which has come to our notice where the defence have clearly been shown to have tampered with the evidence in this case. As regards the report (Exh. P. W. 19/C) made by Mrs. Alvi against the deceased on the 3rd of February 1953, already referred to in an earlier part of this judgment, in which she alleged: "I have now come to know that she (the deceased) is the keep of Abdul Ghani without nikah", we have no doubt that Mrs. Alvi, being what she is, deli berately and viciously made this false allegation in order to hurt the deceased who was unable to pay the rent due from her. She asserted in her examination that her sweeper Buta had actually informed her that he had heard the deceased saying that if she (Mrs. Alvi) again demanded rent, she (the deceased) would shoot her, and that after this she made the report at the police station (Exh. P. W. 19/C). The threat on the part of the deceased to shoot the witness is again a false allegation as the report itself does not even remotely mention it. But, undoubtedly, Mrs. Alvi was annoyed and that when annoyed she is up to anything is demonstrated by her following statement: One day I . . . . marched into the house of the accused . . . . I saw the old grandfather and grandmother of the accused as also his mother. I pressed my demand for the arrears of rent and uttered some unpalatable words in a state of excitement. This provoked the mother of the accused into making the payment of arrears of rent to me, because I felt that she could not brook the insult, which my hot words had obviously brought to the family." The assertion in the police report: "I have now come to know" is again noteworthy inasmuch as according to her examination-in-chief and other evidence on the record, she must have at that time known or believed the deceased to be the married wife of the respondent "with nikah" and according to her cross-examination just referred to, she had already come to know in 1949 that the deceased was the wife of one Ijaz of Karachi I C. W. 4 Asghar Shamim is rather a well-to-do youngman with unsteady and loose mind and emotions. He met the deceased some time in the beginning of 1953, probably while the respondent was still in England, through a girl friend of the deceased and fell desperately in love with her at first sight. At that time, having left the Ferozepur Road house and being in straitened circumstances, the deceased had taken service with Dr. Muhammad Ali and was, as already stated, living in his clinic. We have on record Exh. C. W. 4/C dated 9th August 1953 and Exh. C. W. 4/D dated 15th August 1953, letters written by Dr. Muhammad Ali to this witness, and Exh. D. W. 19/D dated 3rd April, 1953, Exh. D. W. 19/A dated 3rd June 1953, Exh. D. W. 19/C dated 15th June 1953 and Exh. D. W. 19/E dated 17th February 1954 letters written to the witness by his friend D. W. 19 Muhammad Siddiq. All these letters and the evidence of Muhammad Siddiq leave no room for doubt that the deceased never responded to the love of this foolish and impetuous youngman, that Dr. Muhammad Ali and Muhammad Siddiq made a fool of him in order to get frequent consignments of fresh fruits from Quetta, where the witness was then living, and possibly some other advantages, by making him believe that they were continuously exerting themselves in his behalf and that one day his love was sure to be requited. On her own part, the deceased behaved with exemplary propriety and dignity throughout the affair. The following excerpt from the evidence of Muhammad Siddiq (D. W. 19), who was called to support the defence version, is illuminating "Nasim had once told me that she was the wife of one Abdul Ghani who was in England in those days . . . . As already stated by me, she loved Ghani from the core of her heart but would at the same time feel slow to disappoint Asghar Shamim, who had done her a good turn by helping her in the investigation of a criminal case for theft and misappropriation, which Lady Doctor Qureshi had got registered against her and Doctor Muhammad Ali. She felt beholden to Asghar Shamim for what he had done, but did not at all wish to marry him or contract any liaison with him. As she wanted to lure Asghar Shamim into the belief that she was responding to his wishes, she would at times request me to send letters to him on her behalf. That accounts for a number of letters sent by me to Asghar Shamim. When I used to deliver Asghar Shamim's letters to Nasim, she would invariably tear them off instead of preserving them, and scrupulously abstained from writing any letter to Asghar Shamim in her own hand. Pieces of one such torn letter will be seen enclosed in the envelope Exh. D. W. 18/H. Asghar Shamim would generally write letters to Nasim couched in most undesir able and obscene words. Even I did not like those words and whenever Nasim used to read them, she would get offended. That is the main reason why she would always tear off the letters. On one particular occasion, she tore off a letter as usual and then in an angry mood told me to pick up the pieces and send them to Asghar Shamim. We both collected the torn pieces and she (Nasim) sent those pieces to Asghar Shamim by post after covering them in the envelope Exh. D. W. 18/H. This envelope was sent by Asghar Shamim enclosed in another envelope for the purpose of reply and Nasim had written her own name and the date as 18th May 1953, in the corner of this envelope in my presence. To Court--I never had any courtship with Nasim. She was for all intends and purposes (a) pious woman and I have been seeing her offering prayers, reciting scriptures while sitting in solitude, paying homage to the shrines of Holy Data Ganj Bakhsh and other saints and keeping fasts." In spite of all these facts and in spite of the so-called love which he professed to bear to the deceased while she was alive, this unscrupulous youngman had the courage, obviously at the instance of the defence, to state in the witness-box "Nasim was anxious to marry me and that is the reason why she wanted a reply at my address. I had a talk with her a number of times at the clinic of Dr. Muhammad Ali. She had told me that she was an unmarried girl. I did not marry her because I found her to be a girl of bad character." We refrain from making any further comments on the evidence of this witness because it needs none to reject it as atrociously false. Reliance was also placed by the defence on two statements of the deceased made to the police in 1953, Exhs. D. W. 17/A and 17/C. It seems that in April 1948, one Lady Doctor Qureshi reported to the police that some goods belonging to her and her daughter Rashida which had been left at the place of Dr. Muhammad Ali (P. W. 37) had been pilfered. The report itself has not been placed on record and it is, therefore, not possible to say definitely as to whom the complainant suspected. An investigation was made by the police during which Dr. Muhammad Ali and the deceased were examined twice and these four statements have been produced in this case. It would appear from the fact that the goods had, according to Dr. Muhammad Ali himself, been placed "in the room set apart for the examination of patients" that the complainant suspected Dr. Muhammad Ali who in his turn, in the first place, denied the allegation of theft altogether and in the alternative asserted that if they were stolen at all, they must have been stolen by his servants. P. W. 9 also states that the Lady Doctor Qureshi had got registered, in April 1953, a case against Dr. Muhammad Ali. In her first statement to the police (Exh. D. W. 17/A) the deceased stated: "About four months ago I got divorce from my husband (the respon dent)". This statement has been much relied upon by the defence. It may, however, be noted that this is not consistent with the defence set up in this case, or the statement made by the respondent, because the defence case has all along been that the deceased was never married to the respondent and was really never anything to him more than a mere friend. In her second statement (Exh. D. W. 17/C) made a few days afterwards, she asserted: "I resided at bungalow No. 101, Ferozepur Road. I was married to Chaudhary Feroze- Din. I was divorced in December 1952." It will be seen that the two statements are diametrically . opposed to each other. There are also other indications to show that the deceased deliberately made wrong statements to the police. On the first occasion she said: "I am a refugee from Amritsar. My father was a Naib-Tahsildar. He died in the disturbances. I am a resident of Mauza Patti, District Amritsar. During the disturbances I was studying at Lady Harding in Delhi. I came to Pakistan in 1948." Her father Nawab Din is still alive and was examined in this case as P. W.

23. From the evidence of P. W. 7 it is clear that her father was working in Multan as a Qanungo in 1939 and was sometime after 1940, transferred to Montgomery in the same capacity. According to P. W. 21, the sister of the deceased: "The deceased took nursing as her profession and started as such in the year 1945 or 1946, at Montgomery and was still at that place in the year 1948." We do not know the reason but it is obvious that the, deceased took pains in these statements to dissociate the respondent from herself and to suppress the identity of her father from the knowledge of the police. It may have been that she did not want either of these persons to be interro gated, and perhaps harassed, by the police in connection with that investigation. Be it as it may, we are convinced that her assertions, in the first statement, that she had been married to Abdul Ghani in Karachi in 1949 and divorced by him in January 1953-when Abdul Ghani was still in England; and, in the second statement, that she had been really married to one Chaudhry Feroze Din in Karachi and had been divorced by him in December 1952, are definitely wrong and cannot be relied upon to discredit the overwhelming evidence on the record that she was in fact the wife of Abdul Ghani and remained so till her death. Before parting with this aspect of the case, we would take this occasion to point out that when the defence summoned these two statements of the deceased, an objection was taken by the prosecution,' under the signature of the Inspector-General of Police that they cannot be produced because they related to "affairs of State". The objection having been overruled in the lower Courts, the matter was brought by the Crown to this Court in revision. One of us disposed of the revision petition, and while rejecting it observed: " . . , a duty is also cast upon H the heads of the departments of the State . . . to inspire confidence in Courts by their; conduct that objection to production of evidence, the non-production of which may cause the gravest consequences to a citizen, can never be made by any Government department unless it is necessary and unavoidable for the preservation of some vital public interest." Now that we have seen these two statements, we are convinced that the objection raised by the Inspector-General of Police obviously on the wrong and irresponsible advice of his subordinates was grossly ill-conceived and mala fide. The sole object was to unjustly keep away a certain piece of evidence which it was feared was likely to help the accused. No State interest whatever was involved. In view of such attitude, the Government can hardly expect the Courts of Law to take the mere word of the head of a department as sufficient to up-hold an objection, under section 123 of the Evidence Act, to the non-production of a document. The evidence on the record leaves no room for doubt that the married life of the deceased became extremely hard and unhappy after the respondent left for England in November 1952. He did not provide for her maintenance or make adequate provision for it during his absence from Pakistan. The deceased had to break up her home at 101, Ferozepur Road, and was forced to take up service with Dr. Muhammad Ali and live in company which she did not like. Even after his return from England, he does not appear to have done his duty towards the deceased. Although the respondent did not deny himself the pleasure of her body, he did not provide her with a home until her death. The reason for this changed attitude on the part of the respondent appears to be contained in his statement in the Sessions Court at the close of the prosecution case: "I was betrothed to my wife in the month of November 1952, before I went to England. The date of my marriage (11th December 1953) was fixed about three months earlier, that is, in September 1953." It appears that after Abdul Ghani's marriage in Multan had been settled his attitude towards the deceased showed a marked change. It may have been that he was sent away to England by his parents in order to give him a chance to forget the deceased. Be it as it may, it is evident that after his return from England he had no real love left for the deceased -but probably the physical infatuation still persisted in some degree. The respondent has admitted that the date of his marriage in Multan was settled about three months before the 11th of December 1953. On the 4th of November, for the first time, we find the deceased complaining that goondas were after her life . "Today I have again a great grievance against Ghani. By this very car I am followed. In it the goondas (ruffians) who are after my life shadow me, and this very car comes in the evening to take me out for an outing! This is revenge and treachery! But I do not fear." On the 12th of November she wrote "Ghani, you are an utter fool (son of a fool). You are afraid of me and still want to meet me. You threaten me and yet cringe when you come before me. Why? All this is beyond my comprehension " The entry of the next day runs "There was again a row between you and me today. What a cheat and traitor you are 1 You are like your father. He throws dust in the eyes of the Government of Pakistan and you in mine. But what is the good of throwing dust in my eyes? I shall continue to live in this very town-in Lahore-even if you get me murdered. I again received a threatening telephone message from your ruffian (badmash); but I am not afraid." 14th of November - "Ghani, why are you so desparately after me (my life)? What harm have I done to you? These threats of yours I am not afraid . . . ." 15th of November-"Was enjoying life with some one the whole of today. Congratulations! Even if I have to die tomorrow, I shall continue meeting you. Ghani, you, Eid Muhammad (the respondent's father) or the goondas of Rattan Cinema cannot make me afraid. I have never known fear till this day. I shall continue to live here. You think I shall put spokes into your marriage. Then, my dear darling, why did you not come to a settlement with me from before? There was no occasion for such haste." 16th of November 1953:-" I shall see you for certain today and shall enumerate all your black deeds in your face. You will shoot me. I shall be happy. The pistol bullet which you had sent before is still lying there. I advise you to run away to Peshawar after killing me. Understand? Do you remember the Ichhra murder? Because you find a haven there. Your father will gag the police with money. Treat this as my last testament or advice." 17th November:-''It was great fun yesterday. Your face had a curse on it. You heard every thing quietly and meekly-without the slightest demur. What a coward I have at least the courage to say things to one's face. I knew that whatever you were saying to console me was a lie. Lying you have inherited from (your father) Eid Muhammad. The whole lot of you are mean since creation." 18th November:-"Oh! So Mr. Ghani did open his lips last night. I am marrying a second time just to please my parents'. Do it, darling-with pleasure. Thanks God. I shall be well rid of you. You do not wish to set me at liberty because I am your soul, life and love'! I curse you and my relations with you. God willing, your father will have to release me. I shall marry before you do. You want to sacrifice me at the altar of the pleasure of your parents? I refuse to be the sacrificial goat." . . . . 19th November:-"This Nasir is a strange fellow: He thrust himself upon me without any introduction or ceremony. I wish I could know what this man really is. I suspect he is a man of the 'Rattan' people. Wait and see!" 20th November:-"Liar! All right. Be as cruel as you can. I shall not demur. So far as I am concerned to day was the day of our last meeting Now I shall not seek a meeting with you. But if it is brought about by an accident, it will be a different matter. Oh! that pistol is with me ; it should be returned. All right, I shall see about it in the morning." 21st November:-"Liar I He again somersaulted today. The car excuse! All right. My dear sir, what can I say you are afraid? Be afraid. Sometime I feel like maltreating you and so much too that you will never forget it. But, how can I do it! I had once worshipped you. Can one ever maltreat his God? It is for the worshipper ever to submit and suffer . . . ." 22nd November:-''Dishonest! Traitor! How neatly you have deceived! All right! Your will must prevail. At any rate, the forecast of the old man (Dr. Muhammad Ali) has been proved to be wrong. How full of danger was this evening! Can any one make a human being weep so? If retribution comes in this world, then I shall wait for it for the rest of my life. I wish the world would maltreat you as well-and smash you!" 24th November:- All right, darling Ghani, revel in pleasure. You will never stop lying. My ears have become sore (by hearing your lies). I said nothing because you had returned from a journey; otherwise I would have taught you a lesson which you would have never forgotten. I wish Eidoo had taught you to be human instead of giving you plenty to eat and drink. He himself is devoid of all human qualities ; but he should have taught him (the respondent) something. But here (in his family)! God help everybody! " 25th November: --" Why did you become upset because the "old man" (Dr. Muhammad Ali) saw? Probably the cover of respectability slipped! May God destroy you. I hate you. You have sunk my boat and may you be drowned too! 26th November:-" Ghani! How cruel you are! You are going to shed blood at such a time! I am unable to express it. What have I to do with your father? Don't mention him before me. What is the use of- going to Data Sahib (to the tomb of the saint Data Ganj Bakhsh)? Every drop of my blood is a curse for him. What good effect can his prayers have! " 27th November:- Darling Ghani! Do whatever you please. I am not afraid of you If my ire is roused, yours and your family's nose (honour) would be seen dancing in the winds. I do not fear your ' goondas ' (ruffians). But I shall not leave Lahore. I accept the alternative of death. And what grand luck it would be if I die with your hands! 28th November:-" I again received today a telephonic message from that goonda saying that if I give Rs. 2,000 more than, besides telling me all the secrets of Eid Muhammad, he will refrain from being after me. But, to what purpose? One has to die some day, then why worry! It is no use wasting breath on Ghani. I wish he were a human being I " 29th November:-" Again the same lie 1 You say a thing and then go back upon it. Ghani! May God destroy you -but even my curses act as prayers for you. All right ". 30th November:-" Now my side of the scale is heavier. If you kill me Ghani, it does not matter but with mine you will also be shedding your own blood I Probably God destined thus otherwise why this thing should have happened at all after such a long time! I shall go and consult a doctor. I wish my idea will turn out to be right ". 1st December:-" December, the most inauspicious month of my life, has again arrived today. In this very month last year my life was shattered. My corpse has been wandering about for a whole year now. Let me see if it is burried this month-or will it have to drag itself on still further! Wait and see: Dear Ghani was flabbergasted at the news! and I laughed!" 2nd December:-" The doctor has verified my idea to be correct. Now. I can make this whole family dance. Now I shall do, whatever I can. What does it matter that you have burnt all my papers 1 I still have some letters with me. And then the whole world is a witness. Every particle of the dust in Lahore is a witness and knows what relationship exists between you and me ". 3rd December:-" Khan (Shah Jahan, the ex-cook of Dr. Muhammad Ali) has foretold (after consulting the Holy Book) that we are to be separated from each other for ever. Oh God, what would I do! How can I exist without him I He has said that there is danger to my life from him and that I should not see him. Never! This can never be I See him I shall-till the last moment of my life ". 4th December:-" . . . Now Mr. Ghani insists that I must see some doctor. I am fed up with the " delegation " (probably, messengers). I wish he would talk to me face to face ". 5th December:-" Khuda our nakhuda milker dibo-than yeh to mumkin hai ; Meri wajhe tabahi sirf toofan ho nahin sakta 1 (It is possible that God and the Captain may between them sink my ship; but the storm alone cannot wreck my ship). You are worried about the child? It is a gift from God. When He wishes to give, His gift comes tumbling down (from the Heaven) by breaking through the roof. Had you not gone to the feast at the place of Shorish today, you would have probably put into effect some plan regarding me. Thank God, it is Sunday tomorrow; and if you do not desist, I shall inform the police. I shall face whatever happens ; but your bidding shall not be done ". 6th December:-" You came twice and went away (without my seeing you) 1 It could not be helped. What can I do, I am forced to it because, Ghani darling, I apprehend danger from you. You want to sacrifice two lives at the altar of Eidoo's respectability (nose) ". Poor Nasim was not in this world to write her diary the following night. She had met the fate which for so long she had tempted and dared. There is a great paucity, indeed almost a complete absence, of other evidence, docu mentary or oral, regarding- the relations between the deceased and the respondent-and their doings during the fateful months -of November and December. The diary, however, in so far as it is admissible in evidence, establishes the following facts beyond all doubt. Ever since the date of his marriage in Multan was settled, the respondent started insisting upon the deceased-either on his own account or at the instance of his father-to quit Lahore. The deceased was not at all agreeable. While this tussle was still going on between the two, the deceased became-just about twenty days before the date of the second marriage of the respondent, and two weeks before her death! pregnant from the respondent. This created a further complication. The respondent considered the presence of the deceased in Lahore and her pregnancy as sure obstacles in his marriage and he appears to have been determined to remove them both. He demanded that the deceased should go to a doctor and have an abortion; but this demand too was resolutely resisted by the deceased. On his part, the respondent was threatening the deceased with death if the latter failed to do as desired by him. We, however, know for certain that at least until a day before her death the deceased was adamant and was determined, at all costs-even at the cost of her life-to stay in Lahore and not to have an abortion. Can there be the slightest doubt from these facts that until the 6th of December 1953 the respondent had the strongest possible motive to murder the deceased; and, indeed, had even formed the intention to do so? As we have already observed, there is not upon the evidence on the record, the slightest semblance of doubt regarding the truth of the entries in the diary. Their accuracy was not challenged on behalf of the respondent-even at our repeated invitations to do so. It is a matter of some surprise that in spite of the entries in the diary, which he fully believed to be true, the learned Sessions judge should have come to the conclusion "that Abdul Ghani did not want to finally bid good-bye to Nasim and that, in any case, he was not anxious to get rid of her or for the matter of that to murder her". This opinion runs counter to a very great extent to the conclusions arrived at by the learned Judge himself in the preceding paragraph of his judgment ". . . that she got scent of Abdul Ghani's disloyalty and his intended marriage; that she had still irrevocably resolved to cling fast to Abdul Ghani accused till her last breath; that all attempts to scare her away or to alienate her from Abdul Ghani had proved futile; that the impregnable, Nasim got conceived from the accused (even the post-mortem result shows two weeks' pregnancy) that Abdul Ghani wanted abortion to which Nasim did not agree; that Nasim had entertained fears at the hands of the accused and that She was, at all costs, prepared to fight adversities and calamities with the fire of a crusader. She was a woman of extraordinary calibre and her attachment with Ghani accused gradually increased in proportion to his inattention. She never felt demoralised or dissipated. Undaunted by threats of death, she kept on cajoling, shaking and hammering the unwilling Abdul Ghani into the fulfilment of his original pledges made during the sweet early days of romance and baffled all dis ruptions". The real reason which led the learned judge to the conclusion is contained in the following two sentences: " He (the respondent) could as well ignore her or continue occasional secret meetings with her even after his marriage at Multan. We know of several such spoilt sons of rich men in this sinful world, who would marry one and yet carry on relations with other women without let or hindrance and who would always deceive and keep in darkness their loyal and credulous wives." We also know that " in this sinful world " (the learned Judge could, with justification, have been referr ing only to the "world" of the respondent) " spoilt sons of rich men " are uncultured and uncouth desperadoes to whom the taking away of the life of a human being means no more than casting off a worn-out shirt. That the respondent could not "as well ignore her or continue occasional secret meetings with her even after his marriage at Multan" is abundantly clear from the opinion of the learned Sessions judge himself that she was " possessed of a strong determination and strength of character". With all the respect due to it, we have no hesitation whatever in brushing aside the opinion of the learned Sessions Judge. We are definitely of the opinion that the respondent had not only a very strong motive to murder the deceased but had also intended to do so. We are equally in disagreement with another conclusion of the learned Sessions judge, namely, that the real culprit appears to be Dr. Muhammad Ali and that " he had . . . . . . very cleverly succeeded in side-tracking the issue and shifting the responsibility on to the shoulders of the accused . . . . . ." We agree with the learned Sessions judge that this witness does not appear to be either a very honourable or a very straightforward gentleman. He does create the impression of being rather an avaricious person-in more than one respect. But in spite of all this, there is not the slightest indication of his having had any motive to murder the deceased or his having ever dreamt of it. It is quite likely that he may have been prevailed upon by the respondent or his father to suppress some of the facts which were within his knowledge and which would have gone against the respondent. Some of the entries in the diary which the learned Sessions judge has incorporated in his judgment have not been correctly rendered in English, e.g. " This budha (old man) is after me" would, in the context made out by the learned Sessions Judge, give one the impression that the Doctor was after her in a sexual way. Nothing is farther from the meaning of the original words which are "budha jan pichhe para hai" which, in the context of the diary itself can only mean that the old man had made her life hell or was harassing her. The diary certainly does paint Dr, Muhammad Ali in most unattractive colours; but there is nothing in it to indicate him as a potential murderer. ; Similarly, the opinion of the learned Sessions judge that" Poison appears to' have been mixed in her food which the doctor's servants used to give her, and if I mistake not, somebody in the clinic seems to have cohabited with her either before or immediately after the administering of poison" is equally repugnant to us. This is wholly without any founda tion and the learned judge ought not to have resorted to such an unjustifiable conjecture. The possibility of suicide was not seriously mooted before us and was rejected by the learned Sessions Judge. We ourselves consider it as extremely unlikely. The next, and the last, circumstance which the learned counsel for the Crown endeavoured to establish before us was that the respondent had taken away the deceased in the evening of the day of occurrence in his car and that he had brought her back to the clinic of Dr. Muhammad Ali in an unconscious state suffering from the effects of the poison which had been given to her. The proof of these facts rests upon the evidence of P. W. 37, Dr. Muhammad Ali and his servant P. W. 38 Ata Hussain. We have already incorporated in an earlier portion of this judgment the relevant portions from the statements of these two witnesses. P. W. 38 Ata Hussain had seen the respondent taking away the deceased, as usual, in his car at about 6 p.m., and he and another fellow-servant, Shah Jahan, had seen the former bringing back the latter and leaving her in an unconscious state in front of Dr. Muhammad Ali's clinic. P. W. 37 happened to come out of his house and saw his three servants, Ata Hussain, Shah Jahan and the driver Abdul Aziz, attending on .the deceased who had been dropped by the respondent there. He had the deceased taken into his clinic and after examining her suspected it to be a case of morphia poisoning and gave her a coramine injection. It was strenuously contended on behalf of the respondent that the statements of these two witnesses, at any rate in so far as they relate to the allegation of the respondent having taken her away and brought her back in the evening of the 7th, should not be believed in view of the contents of, or rather the omissions in Exh. P.A/J., (the so-called F. I. R. recorded by the S.

1. Fazal Din). In order to appreciate this argument, it is necessary to state a few facts. When after having been taken to the Mayo Hospital it was discovered that the deceased had died, P. W. 4 Dr. Bakhtiar Rizvi, who was on duty in the Casualty Department of the hospital, reported the matter to the constable (P. W. 29 Sardar Ali) who was on duty in the hospital. The latter made a telephonic report to the Naulakha Police Station which was recorded in the roznamcha (diary) Exh. P.A/1. Thereupon P. W. 43 Fazal Din himself proceeded to the hospital to hold an inquest under section 174, Criminal P. C., and sent A. S.

1. P. W. 42 Ahmad Khan to make inquiries on the spot. P. W. 42 recorded on the spot the statement of Shah Jahan at 6 a. m. in the following morning, that of Dr. Muhammad Ali between 9 and 10 a.m., and of Ata Hussain at 10 a.m. While P. W. 42 was still in the clinic, he opened the drawer of a table in the room of the deceased with a key given to him by Dr: Muhammad Ali and recovered therefrom the diary Exh. P.

4. The exact time of the recovery of this diary is not known. P. W. 43, who had proceeded from Mayo Hospital to the spot, left the place at 5 a.m., before the statement of any person could be recorded by P. W. 42 Ahmad Khan. Thereafter he was throughout the day too busy in his other work to attend to this case and without doing anything further in the matter left in the evening for his house for the night. An entry in the police diary (roznamcha) Exh. P. W. 43/E reads: " I, Fazal Din, returned at 8 p.m. from my house where I had gone for the night, in connection with a most important official work". When he returned to the police station, the A. S. I. Ahmad Khan (P. W. 42) produced before him, at 8 P.M., the zimnis which he had prepared in this case, along with the diary Exh. P. 4 which he had recovered. P. W. 43 says: " I perused these papers as also the diary. On perusal of these papers, I came to the conclusion that it was prima facie a case for murder, and, therefore, registered a case under section 302, P. P. C., vide F.

1. R. Exh. P. A/J". In Exh. P. A/J, there is absolutely no mention, or indica tion, of the respondent having either taken out or brought back or met the deceased on that day. The relevant portion of the report-which also states the result of the investigation made till then is as follows:- " Consequently, an enquiry was accordingly made under section 174 Criminal P. C., which revealed that Abdul Ghani, son of Eid Muhammad, caste not known, resident of McLeod Road, the proprietor of Rattan Cinema, Lahore, had an illicit connection with Mst. Nasim Chaudhry, the deceased, for a long time, and the aforesaid was residing in the house of the aforesaid Abdul Ghani as his wife. For some period, Ch. Eid Muhammad had made an arrangement for his (Abdul Ghani's) marriage at another place, and a date for Abdul Ghani's marriage was also fixed. Now, the aforesaid Abdul Ghani with a view to enter into anew marriage wanted to discontinue his relations with Mst. Nasim Chaudhary, the deceased, but the aforesaid did not leave him. Therefore, the aforesaid Abdul Ghani, in order to get rid of the aforesaid, had murdered Mst. Nasim Chaudhary intentionally with the help of his other companions. Dr. Muhammad Ali, his employees Ata Hussain, etc., and other men also knew the ins and outs of his life." This omission of the most material fact which could have been, or was, discovered against the, respondent during the investiga tion until the making of the first information report is strongly relied upon, and in our opinion, with justification, by the respondent's learned counsel to show that either the alleged statements of Dr. Muhammad Ali and Ata Hussain had not been recorded at all till then, or, if they had been recorded, they did not contain the allegation in question against the respondent. In other words, the statements which are now alleged to have been made to Ahmad Khan by these two witnesses in the morning of the 8th were prepared by the police some time after the making of the first information report. The reason for this omission can at beat be a matter for conjecture. It is possible that until before 8 p. m., the S. I. Fazal Din, and perhaps also the A. S. I. Ahmad Khan, were trying to shield the respondent who is the son of a wealthy man in the city. This suspicion finds some support from certain circumstances floating on the surface of the record. It is clear from the evidence of P. W. 42 that the statements of Dr. Muhammad Ali and Ata Hussain had been recorded in the morning and that having completed his investigations on the spot, he must have returned to the police station by or before noon. Nothing further appears to have been done either by him or any other police officer in the matter on that day. P. W. 43 Fazal Din has stated that on that day he had returned to the Police Station Naulakha at 6-30 p.m. and that he left for his residential quarter at 7-25 p.m. It is a matter of some surprise that although he stayed there for three quarters of an hour, he left the police station without having made any inquiries from Ahmad Khan regarding this important case which was sure to, and eventually did, become a sensation in the whole city-and possibly in the Province. In Exh. P. W. 43/E. he recorded that he had to return from his house at 8 p.m. " In connection with a most important official work". P. W. 39 Agha Sultan Ahmad. D. S. P., C. I: D., who was at the relevant time the Inspector in charge of Naulakha Circle, stated: " I took up the investigation of this case under orders of the S. S. P. on the 9th of December 1953. Abdul Ghani accused was arrested under my orders on the 9th of December 1953." Was it that by the evening of the 8th, the S. S. P., having come to know that the investigation of this important case was not proceeding satisfactorily, had ordered this witness to look into it and it was this fact which hurriedly brought back Fazal Din to the police station from his house-or possibly from his bed? From the facts that Fazal Din reached the police station at 8 p.m. and forthwith recorded the F.I.R., it would appear that this alone was "the most important official work" which had compelled him to return hurriedly, and obviously against his inclination, to the police station. Assuming that in fact the statements of Dr. Muhammad Ali and Ata Hussain, as they now stand, had been recorded in the morning of the 8th, as alleged by the prosecution, the only other possible conclusion is that while recording the F. I. R. Fazal Din was grossly negligent in the performance of his duty. Since the report in question appears to have been based exclusively upon the contents of the diary Exh. P. 4, it is possible-although a very weak and remote possibility indeed! that Fazal Din recorded the report Exh. P. A/J in a hurry without having bothered to look into the statements of witnesses recorded by Ahmad Khan. There are, however, also facts to indicate that neither Dr. Muhammad Ali nor any of his servants had actually made, or were willing to make, the damaging statements in question against the respondent. If Dr. Muhammad Ali did in fact know before taking the deceased to the Mayo Hospital, as he has stated in Court, that the respondent brought the deceased in an unconscious state arid left her in front of his hose under suspicious circumstances, he could not but have known that a case had arisen for investigation against the respondent in A 6a connection with the poisoning of the deceased, which he had -himself suspected, and that it was his duty to bring the facts in his knowledge to the notice of the persons concerned at H" the first opportunity. In Exh. P. A/1 it is stated: " Dr. Muhammad Ali had told that it was a case of poisoning. He (Dr. Muhammad Ali) stated that he had brought the aforesaid after lifting her from near his bungalow i.e., from near the Victoria Hotell, Tagore Park ". This report, as well as the statements of the two doctors in the Mayo Hospital, P. W. 4 Dr. Bakhtiar Rizvi and P. W. 3 Dr. Zafar Durrani, and of P. W. 29 the Foot Constable Sardar Ali, as also his own statement, show that Dr. Muhammad Ali did not inform either the two doctors or the Police Constable that the respondent had anything to do with, or could even be suspected of, the poisoning of the deceased. He in fact blacked out altogether all mention of the name of the respondent in connection with the deceased-in spite of the fact that he must have known enough about the relations to throw some light on, or give some indication to, the question of the unnatural death of the deceased. His allegation, as recorded in Exh. P. A/1, that the deceased had been lifted " from near the Victoria Hotel, Tagore Park ", does not appear to be without some signifi cance, inasmuch as it suggests-perhaps to mislead deliberately -some connection between the murder and Victoria Hotel. In the entry in his own register (Exh. P. W. 37/A), which he alleges to have made that very night after returning from the Mayo Hospital, he describes the events of the evening with great detail but no mention whatever is made, in it, of the respondent. Nor is there any mention of his alleged visit, while the deceased was breathing her last in his house, to some patient in response to an urgent telephonic call. For all that we know, the delay in taking the deceased to the hospital may have been caused by an interview between the witness and the respondent, or some one else on his behalf. It would not be unfair to presume that Dr. Muhammad Ali had some influence with his servants. When P. W. 39 took over the investigation of the case under the orders of the S. S. P., his first concern appears to have been to get the statements of the prosecution witnesses recorded by a Magistrate under section 164 Criminal P. C. in order to safeguard against the possibility of the wealthy father of the respondent influencing them before their examination in Court. He got the statement of Ata Hussain so recorded on the following day, namely, the 9th of December (Exh. P. W. 45/B. It is remarkable that the statement of Dr. Muhammad Ali himself could not be recorded as late as the 12th of December. Was it that the doctor was not until then willing to make any statement against the respondent at all? As already indicated, we are compelled to agree with the opinion of the learned Sessions judge that this gentleman is an " avari cious " person. The statements of his two other servants, Shah Jahan the cook and Abdul Aziz driver, were never recorded under section 164 Criminal P. C. It would appear from the fact that Shah Jahan's was the first statement to be recorded during the investigation of this case, about four hours before the statements of Dr. Muhammad Ali and Ata Hussain were recorded, that the investigating officer (P. W. 42 Ahmad Khan) probably considered Shah Jahan to be the most important of the three witnesses. Shah Jahan all of a sudden disappeared on the 19th of December 1953 and was not found b9 the police till the conclusion of this case. He was, however, living with Dr. Muhammad Ali between the 8th and 19th December and yet his statement under section 164 could not be recorded. We are also convinced, having regard to all the circumstances of the case, that Dr. Muhammad Ali and his servants knew more about the respondent's connection with the death of the deceased than they have told either the police or the Court. The suspicion that Dr. Muhammad Ali has tried to shield the respondent, as much as he could with impunity, is not without some foundation. There is yet another feature to be noted in connection with this aspect of the case. One Chaudhary Muhammad Bakhsh, an Assistant in the office of the Inspector-General of Police, and Aslam Khan lived close to the clinic of Dr. Muhammad Ali. According to P. W. 38 Ata Hussain, both of them were present close by when the respondent allegedly dropped the unconscious Nasim from his car in front of the clinic. Both of them would have been, if examined, apparently independent witnesses but neither of them was produced. It may be that in fact they were not present and their names were introduced by, the police as possible witnesses or by Ata Hussain to create a suspicion against the prosecution case. Be it as it may, we are satisfied after having carefully considered all the circumstances that the statements of Dr. Muhammad Ali and Ata Hussain cannot, in the absence of corroboration from other evidence, be considered as truthworthy. We, therefore, bold that it is not proved that the respondent brought the deceased in an unconscious state in his car to the clinic of Dr. Muhammad Ali in the evening of the 7th of December 1953, as alleged by the prosecution It is extremely unlikely that after poisoning the deceased, the respondent would have himself brought her to the clinic under circumstances which would have raised strong suspicion against him. But we do not by any means hold that the respondent did not meet the deceased at all on the 7th of December. Indeed, considering the usual routine, it is very likely that the deceased had gone out with the respondent on that fateful evening-although this circumstance by itself is not at all sufficient to justify a definite finding to that effect. There is, however, an undeniable circumstance which has convinced us beyond all reasonable doubt that the deceased must have met the respondent some time on the 7th of December. Swabs from the vagina of the deceased were taken at the time of the post-mortem examination and on examination by the Chemical Examiner they were found to be stained with semen showing that the deceased had had sexual inter course with some one recently. Mr. Saleem did not-and in our opinion, very rightly-contend before us that the deccased might have had such an intercourse with someone other than the respondent. The learned Sessions judge also rejected this possibility. We are convinced that she could not have done it and there is absolutely nothing on the record to suggest this possibility. Mr. Saleem drew our attention to a textbook on Medical jurisprudence wherein it is stated that spermatozoa may survive as long as three days. From this fact the learned counsel argued that the respondent may have cohabited with the deceased on the 5th or 6th of December. The entries in the deceased's diary relating to these dates make it quite definite that the two did not meet on either of these dates; in fact from the diary it appears that the last meeting between them took place as far back as the 1st of December. We are, therefore, satisfied to the point of moral conviction that the respondent did meet the deceased on the 7th of December and had thus an opportunity to give poison to the deceased if - he then intended to do so. This completes the examination of all the circumstances which were sought to be established against the respondent in this appeal. Learned Assistant Advocate General maintained that the facts that the respondent had a strong motive to kill the deceased, that he had been threatening her with death in' case she refused to carry out his behests, namely, to quit Lahore and have an abortion, and that he had opportunity to administer poison to her on the 7th of December cumulatively establish that the respondent murdered her. When we pointed out that these facts make it only likely-strongly likely, that the respondent poisoned the deceased; but that in view of the complete absence of all evidence connecting him with the act of murder itself, the possibility, although comparatively of much inferior kind, still remained that the deceased may have been actually murdered by someone else, the learned counsel contended that it was nowhere laid down that in crimi nal cases, unlike civil matters, all possibilities must be exclud ed and that a strong probability is, in cases of all kinds, quite sufficient to return the finding of "proved" under section 3 of the Evidence Act by which provision of law alone the Courts ought to be guided in deciding questions of fact. We might have dismissed this argument by just pointing out that no judge, administering the system of criminal justice which governs us, had in the modern times gone to the extent of expressly denying either the existence of the principle or its applicability to every case where a citizen stands charged with the commission of a crime, great or small. Since, however, the argument is sometimes raised in law Courts as it has been in this case, the great importance, and indeed the sanctity, of the principle demands that it should be suitably repelled. We would, therefore, briefly point out, not the reasons for the invalidity of the argument which is wholly unnecessary, but its dangerous character by drawing attention to the considerations .of fundamental importance to human society which underlie the rule in question. Section 3 of the Evidence Act defines the expression "Proved" as follows:- "A fact is said to be proved when, after considering the matter before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does exist." This section does not even remotely provide that a Court ought to ignore all doubts regarding the existence of a fact if it considers its existence more probable or likely. It does not lay down a comparative standard of probability-a circumstance which is sometimes overlooked. It enjoins that the judgment regarding the probability must be that of a prudent man acting with due regard to all the circumstances of the case before him. "Prudent man" is not defined. Will a "prudent man" in matters of great and grave moment, especially when he sits to administer Justice, hold a man guilty of a crime simply on balance of probabilities arising from the matters before him? In practice, the answer to this question will ultimately depend upon the person who is called upon to lay the role of the "prudent man"; upon his knowledge and experience and his intellectual, cultural, moral and spiritual background, all of which go to constitute prudence and, in varying degrees, are perceptibly or impercep tibly, involved in all human actions. There are certain rules of prudence which at a given time are clearly and unmistakably recognised by a particular society. Some of these gain a universal and eternal recognition. The rule of giving the benefit of doubt to every person-whether in a Court of law or in private life-has been recognized and given effect to throughout the ages by all the great religions-whose primary object and function after all was to put the man on the path of prudence and evolve a society which makes life of man worth living-and also by men whose "prudence" has evoked instinctive recognition from millions in all ages. Occasional lapses from the path of prudence by a particular society or country at any stage of its history do not affect the validity of these observations. It is true that only a few centuries back there was a time in England when the benefit of doubt, at any rate, where the interests of the King or State were involved, was given to the prosecution; but this deviation from the path of prudence by the law Courts does not prove that even in those times the British people or society rejected the validity of this principle. There were philosophers and poets whose whole outlook was based upon it and there were many who in their dealings and social intercourse with their fellow human beings instinctively acted in accordance with it. The attempt to maintain, by reference to mere rules of logic and mathematical reasoning, that the acquittal of a guilty person stands exactly on the same level as the convic tion of an innocent person, ignores fundamental facts regarding human nature and human society, which do not always act in conformity with the laws of logic and material sciences. It was recognised that punishment alone cannot remedy all the evil tendencies of men. It can be effective only to a very limited extent. Human nature being., a mixture of opposite and even warring emotions, most men at one time or another commit acts which are in a lesser or greater degree criminal ; and if every criminal were to be sought out from his lair and readily and lightly punished, every society would soon become overwhelmingly a society of ex-convicts. A far more effective way of controlling and reforming man was found to be the extollation of his dignity and respect so that there may be in him an incentive to preserve his self respect in his own eyes by suppressing his disgraceful and unsocial tendencies ; not only in his actions but also in his thoughts and emotions which constitute the fountain source of all human actions. As every man by his very nature is liable to an occasional lapse, the golden means was struck by enjoining caution and putting restraint upon condemnation of human beings. A man is to be declared guilty only when his guilt has been clearly proved beyond doubt-in the L words, when he has been definitely "found out". The rule of giving the benefit of doubt to the accused was rigorously enforced by Islam as well (Whenever possible, save the Muslims from the sentence (punishment). Do it whenever you find any loophole; because it is better for the Imam (Judge) to err in acquittal than in conviction. -Tirmizi.) (If there is any possible way of doing it, save God's creatures from conviction and punishment.-Ibn-i-Maja.) (Ward off punishment with doubts, i.e., if any doubt arises, avoid conviction Masnad Abi Hanifa.) In a long letter to Malik Ashtar, the Governor of Egypt, Ali, the then Caliph of Islam, wrote "Keep at a distance him who peers into the weaknesses of others. After all, the masses are not free from weaknesses. It is the duty of the ruler to shield them. Do not bring to light that which is hidden, but try to remove those weaknesses, which have been brought to light. God is watchful of everything that is hidden from you, and He alone will deal with it. To the best of your ability, cover the weaknesses of the public, and God will cover the weaknesses in you which you are anxious to keep away from their eye . . . . . . . . . . . . . . . . . . . .Select for your Chief judge . . . one who will not decide before knowing full facts, one who will weigh with care. every attendant doubt and pronounce a clear verdict after taking everything into full consideration . . . ." We do not mean that all this is a part of the law which we have to administer. We only wish to point out that the principle in question is much more than a mere rule of law-it is one of the foundations of all good and civilized societies. It is a rule of `prudence'. which no man ought to, and no judge acting in accordance with the provisions of sections 3 of the Evidence Act can, ignore. It is true that it is nowhere laid down in any enactment that the benefit of fair doubt shall be given to a person charged with the commission of a crime; but ail principles of "justice" which the Courts in this country are enjoined by statute to administer, are also not to be found in any enactment. The rule is implicit in section 3 and has also been expressed in other words in the rule that every person, unless proved guilty, shall be presumed to be innocent and honest-a presumption which we know from our experience of human beings is not entirely correct; but is all the same necessary for the preservation of an indispensable value in human society. Reverting to the facts of the case we now proceed to record our conclusions in the light of our findings. The respondent undoubtedly had the motive and intention of murdering the deceased; but it is crystal clear from the diary, and the facts of the situation of the respondent, that his father also had them-perhaps in a greater degree. The law allows -again as a corollary of the rule relating to the benefit of doubt-a locus penitentiae to every man till the last moment; far as long as the crime has not been committed. In the absence of convincing and conclusive evidence to connect the respondent with the crime itself there remains a fair and reasonable doubt that ultimately the death of the deceased may have been brought about by his father, e.g., by getting her poisoned through the missing cook, or some other servant, of Dr. Muhammad Ali. The benefit of that doubt must go to the respondent. The fact that the respondent had oppor tunity on the 7th of December is wholly inconclusive. It is neither murder nor any step towards it. The whole case of the prosecution really fell to the ground when the learned Assistant Advocate General refused to rely on the evidence of Hakim Ghulam Nabi. We have read his statement but do not find it so indisputable as to rely upon it ourselves. We are, therefore, constrained to reject this appeal and we dismiss it accordingly. The respondent who is in jail shall be released forthwith. A. H. Appeal dismissed.