P L D 1957 (W (PLP)

ORTCHESON, J.‑

Dana, aged 22 years has been convicted by Mr. M. M. Aslam Khan, Additional Sessions Judge, Montgomery under section 302, P. P. C. by order dated the 25th of July 1956, and sentenced to death for the murder of his wife Mst. Mehran. He has appealed and the case is also before us under section 374 of the Code of Criminal Procedure for confirmation of the death sentence. The motive for the occurrence is said to be that the appellant wished to marry the niece of one Teja, and took strong exception to the action of his relations in giving the girl in question to his brother Mansha in exchange for a marriage between the appellant's sister and Teja. He had protested but was met with the objection that he was already married. According to the prosecution, the appellant made up his mind to remove the obsracle to his marriage with Teja's niece by murdering his own wile Mst. Mehran, which he 7s alleged to have done on the night between the 19th and 20th of February 1956. Ghulam Muhammad (P. W. 4) states that about a month and five or six days before he gave evidence (he appeared in Court on the 26th of March 1956) he was smoking at the shop of one Wali Muhammad when he saw the appellant anti Mst. Mehran going in the direction of the house of one Sultan, a brother‑in‑law of the appellant. On his enquiry they informed him that they were going to spend the night there as there was a shortage of accommodation in their own house. Gheba (P. W. 5), who also gave evidence on the 17th of July, deposes that about five months previously he was checking the theekri pahra in his village when he met the appellant carrying Mst. Mehran. He asked why he was doing so and the appellant replied that his wife was ill and he was taking her home. Finally, the prosecution rely on an alleged extra‑judicial confession of the appellant to Baqar Khan (P. W. 6) and Goman (P. W. 7). The witnesses state that at about mid‑day they were sitting at the dera of Baqar Khan in Thatta Yaraka, within the area of village Murdana, when the appellant came to them and stated that he had killed his wife by strangu lation (ghotu) for the reason set out above. He added that the Assistant Sub‑Inspector of police had come to the spot and had sent the body for post‑mortem examination, and begged the witnesses to intercede with Mst. Mehran's step‑uncles. The witnesses took the appellant to the latter's chak and handed him over to the Assistant Sub‑Inspector. It is also in evidence that Muzaffar Khan, Assistant Sub‑Inspector (P. W.9), had gone on the morning of the 20th of February 1956, to investigate a case of arson when he was informed by Fazal (P. W. 3), that Mst. Mehran had died in suspicious circumstances. He sent the body for post- mortem examination, and later Baqar Khan and Gheba went to him and produced the appellant. The post‑mortem examination was carried out by Dr. Niaz Ahmad, Medical Officer, Civil Hospital, Depalpur, (P. W. 1). No injury was found with the exception of a superficial abrasion on the front of the neck. On dissection no congestion was found. Both lungs are stated by the doctor to have been congested, the right weighing some 13 ozs. and the left 12 ozs. Both the liver and the spleen were enlarged, weighing 3 lbs. 12 ozs. and 1 (b. 3 ozs. respectively. In his first examination in the Court of the committing Magistrate, the doctor stated: "In my opinion the probable cause of death was asphyxia as a result of an attack of pneumonia helped by the anaemic condition of the deceased shown by the enlarge ment of the liver and the spleen . . . . . . . In my opinion the death of the deceased did not take place due to strangulation." He was called in the Sessions Court and submitted to a very lengthy examination and cross‑examination, obviously directed towards making him change his opinion, but though he weakened to the extent of stating that so quick a death was rare in pneumonia, he gave no other explanation of the death. Certain organs had been sent to the Chemical Examiner but no traces of poison were found. The District Health Officer, Dr. A. H. Mallick, was also called as a Court witness, the significant portion of his examination being the following:‑ "Q.‑What is the probability in the present case as to how death occurred ? . A.‑It is very difficult to tell. Q.‑Is there any hypothesis, which is more likely than any other hypothesis ? A.‑It is difficult to tell. There was no factor except the congestion of lungs. ***************************************************** Q.‑In view of the history of enlarged spleen and liver, would you say that the possibility of death of violence is remote ? A.‑In view of this, and in the absence of other signs of throttling, it is difficult to say that the death was particularly due to violence. Court Question.‑Would you exclude the possibility ? A.‑The possibility is there but is very remote." The appellant pleaded not guilty and denied having made any extra‑judicial confession of guilt. His position is that the deceased died of pneumonia and that the case is the outcome of enmity on the part of Fazal Lambardar. He produced no evidence in defence. The most important evidence for the prosecution is that of the alleged extra‑judicial confession of the appellant to Baqar Khan and Goman P. Ws., but an analysis of these witnesses' statements shows that they are far from reliable. In the first place, Baqar Khan is a man of more than doubtful character, as is shown by the following excerpt from his statement :‑ "I am not aware if my name is on register No. 10 of the police. I was never challaned under section 110, Criminal P. C. I did not state before the committing Magistrate that three or four years earlier, I had remained on security under section 110, Criminal P. C. (So stated in his statement dated 30th April 1956 as P. W. 9 before the C. M. Confronted). I was not being prosecuted under section, 182 P. P. C. before the Tahsildar, Okara, when I appeared before the C. M. nor was there any proposal for such prosecution. I did not remember if I stated before the C. M. that such a case was under contemplation (so recorded before the C. M. Confronted)." Goman P. W. is related to Baqar Khan, though Baqar Khan himself made an attempt to deny the fact. His recollec tion of events is also far from accurate. At the trial he stated that no one else was with Baqar Khan when the appellant came, and on being confronted with his statement to the committing Magistrate that two or three other persons were also sitting there at the time, he denied having made it. He further stated in the Sessions Court that the appellant came on foot, whereas before the committing Magistrate his position was that Dana came riding a mare that he (Dana) and Baqar Khan P. W. left for Chak No. 17/1‑R on their respective mares. An essential condition for reliance on an extra‑judicial confession is that there should be no doubt as to the language used by the deponent, but in the present case it is clear the is the actual words used by the appellant have not been accurately reproduced. For example at the trial Baqar Khan stated that the appellant had told him that he had strangled his wife at Sultan's house but this fact was not disclosed either in his report (Exh. P. F.), or in his previous statement to the committing Magistrate, the witness explaining that the omission was probably due to forgetfulness. For the above reasons, we are quite unable to place any reliance on the evidence of Baqar Khan and Goman. The evidence of Gheba (P. W. 5) is also not very helpful to the prosecution. After stating that he saw the appellant carrying Mst. Mehran, who was lying limply across his shoulder, the witness admitted that he entertained no suspicion at that time that Mst. Mehran might be dead. In other words at that time the witness saw nothing suspicious in the appellant's explanation that he was carrying Mst. Mehran as she was ill and he was taking her home. From the above analysis of the evidence of Baqar Khan, Goman and Gheba P. Ws., it is clear that even if the medical evidence had shown that Mst. Mehran died of violence, it would have been impossible to convict the appellant, but the prosecution case already severally shaken, was completely put out of Court by the statements of Dr. Niaz Ahmad and Dr. A. H. Mallick that the symptoms found at the post‑mortem in no way proved that Mst. Mehran had died of violence. The learned Additional Sessions judge has assumed the role of a medical expert in this case, and has disagreed with the findings of the two doctors, but has given no convincing reason for his opinion, and it appears that he was influenced in his conclusion by his impression that the extra‑judicial confes sion of the appellant could be relied upon, an impression which we do not share. The appellant is clearly entitled to be acquitted of the charge against him, but before concluding we are reluctantly compelled to record our strong disapproval of the manner in which Dr. Niaz Ahmad wets examined. The examination itself is too lengthy to reproduce, but a perusal of it shows that no effort, fair or unfair, was spared to induce the witness to change his initial opinion that death was probably due to pneumonia. We have used strong language, but the following extracts from the examination of the witness and the note made by, the Court will show that it is justified:‑-- "Q.‑If an eyewitness says that he saw the woman being strangulated, would you contradict the possibility ? (The learned counsel for the defence, at this stage, said `there are no such witnesses'. It would have been more proper not to say this because the witness may take a hint from this as to his answer). A. ‑‑My findings do not correlate themselves with the possibility of strangulation. * * * * * * * * * Q.--If the relations of the accused have made a statement that they had fixed up matters with you, are they making a correct statement or an incorrect statement ? A.‑A totally incorrect statement." A perusal of the record shows that there was no foundation for either of the above two questions. As rightly pointed out by learned counsel for the defence at the time the first question was put, no witness stated that he saw the woman being strangled, and an attempt to shake the evidence of a medical expert by misrepresenting the evidence in the case can only be described as outrageous. We confess we find it most surprising that the learned Additional Sessions Judge should have allowed such a question to be put. The seconds question cited above was equally preposterous, since no relations of the accused made any such statement as is attributed to them, and the question should not have been allowed by the Court. We may add that in our view there was no justification whatever for granting the Public Prosecutor permission to cross‑examine Dr. Niaz Ahmad, his own witness, or for calling the Civil Surgeon. The doctor had given reasons for the conclusion at which he had arrived, and there is no material for the suggestion that his Opinion was other than honest. For the reasons given above we reluctantly give it as our opinion that the methods adopted by the prosecution, and allowed by the Court, to influence Dr. Niaz Ahmad were grossly unfair, and have set a precedent which, it is to be hoped, no other Court will follow. In the result, we accept the appeal, set aside the convic tion and sentence of the appellant and acquit him. The sentence of death is not confirmed. A.H. Appeal accepted,