2011 PLP 1215 (SCMR)

ANWAR ZAHEER JAMALI, J.

In Crime No. 11 dated 4-2-1998, registered at Police Station Gumbat, for commission of offences under sections 302/201/337-J, P.P.C., both the appellants were charged with the allegations that under a conspiracy they had administered poison to deceased Mobin Tariq, husband of appellant Mst. Tasleem Bibi, which incident had occurred on 31-1-1998. The motive of such offence was purported illicit relations between the two appellants, which tempted them to remove the deceased from the scene. Such F.I.R. of the incident was lodged by Mst. Sahib Sultana, mother of deceased Mobin Tariq four days after the occurrence.

2. After investigation of the crime, during which exercise of exhumation of dead body of the deceased was also undertaken, both the accused were sent up for trial before the Court of Additional Sessions Judge, Kohat, where, on 27-1-1999, they were charged as under:-- "That on 31-1-1998 at unknown time, in the house of deceased Mobin Tariq situated in Khushal Garh within the jurisdiction of Police Station Gumbat, you accused Muhammad Riasat managed to bring the poison which was to be administered to the deceased through his wife (co-accused) with which you had illicit relations to kill the husband of your co-lady accused and due to said poison which was administered to him through his wife (your co-accused) who died. That co-accused Mst. Tasleem Bibi administered the poison to your husband in consultation with your co-accused Muhammad Riasat due to which your husband was died and you kept mum about the said fact and tried to conceal/destroy the evidence against you, thus you both committed an offence punishable under sections 302/201/337J/109, P.P.C. and within my cognizance."

3. Since both the appellants did not plead guilty and claimed trial, the prosecution was called upon to prove its case. In this process, from the side of prosecution nine witnesses were examined and relevant record of the investigation was produced as Ex.PA to PZ. Among these witnesses, P.W.6 Ms. Noreen Bibi, a minor girl, aging about eleven years at the time of occurrence, was stated to be the eye-witness of the occurrence, who narrated the whole story in support of prosecution case, showing involvement of both the appellants in the commission of such heinous crime for committing qatl-e-amd of her father. Section 342, Cr.P.C. statements of both the appellants were recorded on 6-9-2000, wherein they completely denied their involvement in the commission of crime or any immoral relationship between them, and alleged that their involvement was at the behest of P.W.7 Muhammad Iqbal, who had inimical terms with appellant Muhammad Riasat, as he married his sister-in-law, who was earlier divorced by his brother.

4. On conclusion of trial, the Court of Additional Sessions Judge, Kohat, in its judgment dated 2-6-2001, came to the conclusion that on the basis of oral as well as documentary evidence the prosecution had succeeded to bring home the guilt of both the accused, and accordingly they were convicted under section 302(b)/34, P.P.C. and 201, P.P.C., awarding imprisonment for life and two years rigorous imprisonment respectively, with further directions to appellant Muhammad Riasat for payment of Rs.20,000 to the legal heirs of the deceased in terms of section 544-A, Cr.P.C. and in default whereof to undergo further simple imprisonment for six months. Benefit of section 382-B, Cr.P.C. was also extended to both the appellants.

5. The judgment of the trial Court, referred to above, was unsuccessfully challenged by the appellants before the Peshawar High Court, through Criminal Appeal No.721 of 2003, which was dismissed by impugned judgment dated 8-3-2005, inter alia, with the observations that since P.W.6 Noreen Bibi was not only real daughter of the deceased, but also of the appellant Mst. Tasleem Bibi, therefore, she had no ill-will or motive to falsely implicate her real mother for committing qatl-e-amd of her father in league with appellant Muhammad Riasat by administering him poison.

6. Malik Muhammad Kabir, learned Advocate Supreme Court for the appellants, at the outset, brought to our notice that none of the appellants in their section 342, Cr.P.C. statements was confronted with the Chemical Examiner's report, thus the whole proceedings based against them on the allegations of administering poison to the deceased have vitiated due to this patent illegality, therefore, on this account alone conviction of both the appellants cannot be sustained. In the same context, learned counsel made reference to the deposition of P.W.1 Dr. Khial Muhammad to show that even he has not said anything in support of prosecution story regarding administering of poison to the deceased, who was admittedly hospitalized and remained under treatment for sometime. Learned Advocate Supreme Court also made reference to column No.23 of the inquest report to show that it was not for the first time that the deceased Mobin Tariq was hospitalized for treatment of having taken poison. He further made specific reference to the delay of four days in the lodging of F.I.R., which, according to him, was sufficient proof of mutual consultation and conspiracy for false implication of appellants in the commission of offence, thereby depriving appellant Mst. Tasleem Bibi of her right of inheritance from the estate of the deceased, if any, and also taking revenge from the co-appellant Riasat for his marriage with the sister-in-law of P.W.7 Muhammad Iqbal.

7. As nobody has appeared on behalf of the State in both these appeals, with the assistance of learned counsel for the appellants, we have carefully perused the whole case record, which reveals that the two appellants were not confronted with the Chemical Examiner's report in their section 342, Cr.P.C. statements, nor any other witness was examined to prove said document. P.W.1 Dr. Khial Muhammad (Medical Officer), in his opinion also did not disclose the exact cause of death of the deceased. Further, other material pieces of evidence were not collected by the prosecution to show that appellant-Mst. Tasleem. Bibi, being wife of deceased Mobin Tariq had arranged poisonous material with the assistance of appellant Muhammad Riasat and thereafter administered it to the deceased through the food (daal) offered to him for eating for the second time.

8. Admittedly the deceased before his death was hospitalized for treatment of diarrhoea in a conscious condition and remained under treatment for one day, but during this period nowhere he made any allegation against any of the two appellants about their role of administering poison to him. This fact gains more importance in the background that earlier too on one occasion the deceased was brought to the hospital for treatment, having taken some poisonous material. Moreover, without any plausible explanation, F.I.R. of the incident was lodged four days after the occurrence, during which P.W.7 Muhammad Iqbal all along played an active role, and for the first time statement of only eye-witness of the occurrence P.W.6 Noreen Bibi was recorded before the police (P.W.8) ten days after the occurrence i.e. on 10-2-1998. In such circumstances, it does not appeal to reason that P.W.6 Noreen Bibi, aged 11 years, with normal prudence, who is stated to have full knowledge of the occurrence, particularly, as regards mixing of poison in the "daal" offered by her mother for the second time to her deceased father Mobin Tariq, would remain a silent spectator, instead of immediately disclosing this fact to her father before he could eat such poisonous meal. Similarly, the story narrated by her about the involvement of appellant Muhammad Riasat also does not appeal to reason. If at all appellant Muhammad Riasat had to provide poison to appellant Mst. Tasleem Bibi, why would he do so in presence of P.W.6 Noreen Bibi, who at the relevant time was not a small child, who could not understand such conspiracy and its consequences.

9. After careful perusal of the whole evidence brought on record by the prosecution, as discussed above, and keeping it in juxtaposition with the prosecution story, we have no doubt in recording our conclusion that not only the story set up by prosecution was highly doubtful, improbable and weak, but there were also material lacunas and flaws in the case of prosecution to prove commission of such offence by the two appellants beyond reasonable doubt. Naturally, the benefit of doubt, arising out of such lacunas and weaknesses in the prosecution case should have been extended to the appellants, which, for no cogent reason, both the Courts below failed to extend. Having reached to this conclusion, extending the benefit of doubt to both the appellants, their appeals are allowed, and they are acquitted of the charges levelled against them.

10. Foregoing are the reasons for our short order passed in these appeals today, which reads thus:-- "For the reasons to be recorded separately, Criminal Appeal No.93 of 2010 and Criminal Appeal No.486 of 2006 are accepted, impugned judgment is set aside and in consequence appellants are acquitted of the charges, who shall be set at liberty forthwith, if not required to be detained in connection with any other case." M.H./T-4/SC Appeals allowed.