1994 PLP 1731 (MLD)

Zulfiqar All son of Abdul Ghafoor aged 20 years was tried by the learned Additional Sessions Judge, Rahimyar Khan for administering poison to Iqrar Hussain (P.W.14) and his family members and thereby causing the death of four children named Mst. Saima aged 2 months, Mst. Ambreen aged 4 Years, Mst. Tehmina aged 1-3/4 months and Fahad Hussain aged 2-1/2 years, and vide its impugned judgment, dated 28-10-1985 the learned trial Court convicted him on 8 counts and sentenced him under section 328, P.P.C. to undergo 5 years' R.I. and a fine of Rs.2,000 on each count for having administered the poison to Iqrar Hussain (P.W.14), Syeda Musarrat (P.W.12), Tariq Hussain, Dildar Hussain, Mst. Suria, Mst. Serwat, Mst. Sakina and Atiq Hussain Shah on each count, in default of payment of fine to suffer further RI. for 1-1/2 years. The fine, if realized, half of it was directed to be paid to the P.Ws. as compensation. He was further convicted and sentenced under section 304, Part II, P.P.C. to undergo 10 years' R.I. and a fine of Rs.2,000 on four counts for having caused the death of four children Mst. Ambreen, Mst. Tehmina, Mst. Saima and Fahad Hussain on each count, in default of payment of fine to suffer further R.I. for 1-1/2 years. The fine, if realized, half of it was directed to be paid to the legal heirs of the deceased. All the sentences were directed to run concurrently. To assail his conviction and sentence the appellant has come up in appeal. The complainant has preferred Criminal Revisions Nos.105/1986/BWP and 106/1986/BWP for awarding the sentences consecutively as well as for convicting and sentencing the appellant under section 302, P.P.C. or for remanding the case for retrial. The learned counsel for the petitioner/complainant has not pressed criminal revisions, which are dismissed for having not pressed.

2. The prosecution case in brief is that on 13-9-1982 at noon time in the house of Iqrar Hussain (P.W.14) the appellant served tea to Iqrar Hussain (P.W.14), Syeda Musarrat, Syeda Serwat and other P.Ws. and due to that the P.Ws. started vomiting. Baby Saima aged 2 months died on 16-9-1982, baby Ambreen aged 4 years died on 17-9-1982, Fahad Hussain aged 2-1/2 years died on 21-9-1982 and baby Tehmeena aged 1-3/4 months died on 25-9-1982, but the case had already been registered on 21-9-1982 on the basis of the statement Exh.PM of Iqrar Hussain complainant (P.W.14) and F.I.R. Exh.PM/1 was recorded by Muhammad Safdar Yar, S.H.O. (P.W.20) on 21-9-1982 at 10-00 p.m. The appellant was working as a servant with the complainant and had prepared tea in the kitchen and had served the same to the P.Ws. The P.Ws. were examined by the Doctors, who had administered medicine to them, but babies Tehmeena, Saima and Ambreen died. A baby Fahad Hussain was shifted from Khanpur to B.V. Hospital, Bahawalpur, where he died. The complainant was told by a P.W. that the appellant to have administered poison to the deceased and the P.Ws.

3. The appellant was challaned and sent up for trial. Charge under sections 328, 302 and 301, P.P.C. under 12 heads was framed, to which he denied and claimed trial.

4. The prosecution examined 21 P.Ws. in all to substantiate its case. Dr. Muhammad Aftab Iqbal Surgeon (P.W.5) conducted autopsy on the dead body of Syeda Ambreen on 15-11-1982 after exhumation of the' same and had sent viscera etc. for chemical analysis. On the same day he conducted autopsy on the dead body of Tehmina and sent her viscera etc. for chemical analysis. On the very day he also conducted autopsy on the dead body of Saima and sent her viscera for chemical analysis. P.W.15 Dr. Hafeez-ur-Rehman on 21-9-1982 conducted autopsy on the dead body of Syed Fahad and sent the viscera etc. for chemical analysis.

5. P.W.3 Muhammad Shafique Shah stated that the appellant made a disclosure in his presence, who led the police to the shop of Ghulam Sanwa, which was searched. Police recovered shangrif as well as hertal warqi from the said shop and secured some quantity of hertal warqi and shangrif vide memo Exh.pD attested by P.W.3, and prepared parcels. P.W.2 Irshad Ahmad witnessed the recovery of matress P3 and Dari P4, Dagchi P5 and made the same into sealed parcels vide memo. Exh.PB attested by him. A box P6 was also taken into possession by the police which was locked. The lock was broken by the police who took into possession some clothes, two packets containing shan if and hertal wargi. The same were secured by the police vide memo. EXh.PC attested by P.W.2. P.W.10 Syed Waqar Hussain Shah stated that the appellant made extra-judicial confession before him as well as before Mumtaz Hussain P.W. (not produced) that he had administered poison to the deceased and others in order to remove the jewellery as well as cash from the house of complainant Iqrar Hussain (P.W.14) and had further made extra-judicial confession that he had caused the death of four children for which he was ashamed of and that pardon should be sought from the complainant. The appellant desired his production before the police and accordingly he was produced. P.W.12 Syeda Musarrat, P.W.13 Syeda Serwat and P.W.14 Iqrar Hussain stated that the appellant served tea to them and they had fell ill. All of them started vomiting. The doctor was called, who gave injections and medicine to them. Mst. Asman and Mst. Tehmina; twin daughters of P.W.10 Syed Waqar Hussain Shah, and Saima daughter of P.W.13 Syeda Serwat also fell ill and started vomiting, because P.W.12 and P.W.13 had been feeding their children through their breasts. Saima daughter of P.W.13 expired. P.Ws. were admitted in the Hospital, where Ambreen daughter of P.W.12 also died. P.W.12 and P.W.13 were shifted to B.V. Hospital, Bahawalpur where Fahad also died. P.W.14 Iqrar Hussain corroborated the statements of P.W.12 Syeda Musarrat and P.W.13 Syeda Serwat and also stated that the appellant served tea to them except Asman, Tehmina and Saima, and after taking tea they all started vomiting. Dr. Salah-ud-Din Khan (D.W.1) and Dr. Mukhtar had given them medical treatment. Four infant children Ambreen, Sarnina, Saima and Fahad had expired. The case was investigated by P.W.20 Muhammad Safdar Yar Khan, Inspector, F.I.A. P.W.21 Mr. Masood Akbar, Magistrate 1st Class, Bahawalnagar supervised exhumation proceedings in respect of three children Syeda Ambreen, Syeda Tehmina and Syeda Saima. The other P.Ws. are of formal nature.

6. Reports of the Chemical Examiner Exhs.PN, PO, PP, PQ, PR and PT Pertaining to viscera are positive i.e. those contained mercury.

7. The appellant when examined under section 342, Cr.P.C. denied the Prosecution evidence against him and stated that he had worked in Iran and earned Rs.50,000 and out of the same deposited Rs.45,000 with Atiq Hussain Shah P.W. (given up), brother-in-law of the complainant and the complainant wanted to misappropriate the amount, hence he has been falsely implicated. The P.Ws. were related to each other. He made statement on oath as D.W.2 and reiterated the statement made under section 342, Cr.P.C. He produced D.W.1 Dr. Salah-ud-Din who medically examined the P.Ws. and the deceased babies, and suspected poison and prescribed few medicines for their treatment and advised the patients to take admission in the Civil Hospital.

8. The learned trial Court after evaluating the evidence on record convicted and sentenced the appellant.

9. P.Ws. 12, 13 and 14 unanimously stated that the appellant had served them with tea and after taking tea they started vomiting and had summoned D.W.1 Dr. Salah-ud-Din who had administered medicines for their treatment and advised the patients to take admission in the Civil Hospital. Fahad deceased had taken tea in presence of P.Ws.12, 13 and 14, whereas the other deceased babies had been given milk by their mothers through breast. P.W,10 Syed Waqar Hussain Shah stated about the extra-judicial confession made by the appellant. P.W.10 is related to the deceased and had produced the appellant before P.W.20 Muhammad Safdar Yar Khan, Inspector, F.IA., after the appellant had made extra-judicial confession that he had mixed shingraf in the tea which he served to the P.Ws. and deceased Fahad in order to deprive them of their golden ornaments.

10. The appellant was serving the complainant P.W.14 Iqrar Hussain as personal servant. P.Ws. 10, 12, 13 and 14 had no malice against the appellant as well as no motive to falsely involve him in the present case. The P.Ws. have made their statements in a straightforward manner and their statements have been supported by the statement of P.W.10, before whom the appellant had made extra-judicial confession. The same was corroborated by the statements of P.W.5, Dr. Muhammad Aftab Iqbal and P.W.15 Dr. Hafiz-ur-Rehman who conducted autopsy on the dead bodies of the deceased, and the reports of the Chemical Examiner.

11. The learned counsel for the appellant at first vehemently argued that the case against the appellant was not established and thereafter he prayed for leniency in the matter of sentence.

12. Tariq Hussain, Dildar Hussain, Mst. Suriya, Mst. Sakina and Atiq Hussain, who were allegedly served tea containing mercury by the appellant had not been produced by the prosecution, the sentence and conviction of the appellant under section 328, P.P.C. on that account cannot be sustained, which is set aside.

13. Pursuant to the above discussion, the conviction and sentence d imprisonment and fine of the appellant under section 304, Part II, P.P.C. on four counts and under section 328, P.P.C. on three counts is maintained and the appeal is dismissed with this modification. The sentences shall run concurrently with the benefit of section 382-B, Cr.P.C. The appellant is on bail he shall be taken into custody and sent to jail to undergo his sentence. N.H.Q./Z-120/L????????????????????????????????????????????? ???? ?????????????????????????????? Order according).