SHARIFAN Versus THE STATE

DAVID IQBAL, J.‑Mst. Sharifan daughter of Ali Muhammad. aged 19/20 years, has been convicted under section 302, P. P. C. for the murder of Muhammad Akram, aged about 22 years, her husband and was sentenced to death vide judgment dated the 7th of November 1974, of the Sessions Judge, Sahiwal. Her appeal as well as reference for the confirmation of death sentence awarded to her are being taken up and disposed of together by this judgment.

2. The occurrence took place at 9/10‑00 p.m. on the 20th of December 1972, in the house of the deceased in Chak No. 52/2‑L, at a distance of four miles from Police Station Saddar Okara, District Sahiwal. F. I. R. (Each. P. A.) was lodged by Allah Ditta (P. W. 6), father of the deceased, at 7‑30 a.m. on the 21st of December 1972, and it was recorded at the Police Station by Manzoor Hussain S. I. (P. W. 12).

3. The motive for crime as set up by the prosecution is that the appellant and the deceased were married one year prior to the present occurrence. But their relations remained strained from the very beginning and that the appellant did not want to live with the deceased.

4. There is not any actual eye‑witness in this case of the crime. However, before the deceased died he is stated to have told the following witnesses that he had been given something to drink in tea by the appellant. These witnesses are : Allah Ditta (P. W. 6) father of the deceased, Mst. Rehmat Bibi (P. W. 7) mother of the deceased, Mst. Sughran Bibi (P. W. 8) sister‑in‑law (Bhabi) of the deceased, Jamai Din (P. W. 9) Kamm! of the deceased and Khushi Muhammad (P. W. 10) uncle of the deceased. Abdur Rashid and Muhammad Iqbal were also cited as P. Ws. in the F. I. R. but they were not produced.

5. The appellant was arrested from the house of the deceased on the day following the occurrence by Manzoor Hussain S. I. (P. W. 12) i.e. on the 21st of December 1972. The allegation against her was that she poisoned the deceased by giving him D. D. T. (insecticide) in a cup of tea. The tea was made in a tea‑pot and the remaining tea was thrown on the ground which as a result turned black in the morning. The recoveries in this case are metal tea‑pot P. 1 in which tea was prepared and cup P. 2 in which it was served to the deceased. These were taken into possession vide memo. Exh. P. B., dated the 21st of December 1972. The attesting witnesses are Allah Ditta (P. W. 6), Muhammad Shall and Mahboob Ali (both not produced) besides Manzoor Hussain S. I. (P. W. 12). Tea‑stained earth was picked up from the spot and taken into possession vide memo. Exh. P. D., dated the 21st of December 1972. The attesting witnesses are Muhammad Sbafi and Mabboob Ali (not produced) besides Manzoor Hussain S. I. (P. W. 12). According to the report of the Chemical Examiner P. F./3 at page 9 of the paper book, no opinion could be given about the presence of poison in tea‑pot P. 1 and cup P. 2 as these vessels were found empty. According to the report of the Chemical Examiner P. F./2 at page 8 of the paper book in tea‑stained earth picked up from the spot no poison was detected. According to the report of the Chemical Examiner P. F. at page 7 of the paper book in stomach and its contents, parts of small and large intestines and parts of liver, spleen and kidney of the deceased, small quantity of insecticide was detected. But no poison was detected in the blood from the right side of heart and urine of the deceased.

It may be pointed out at this stage that the aforementioned recoveries in this case are of no consequence as they do not connect the appellant directly with the commission of crime.

6. The appellant in her statement before the trial Court totally denied having participated in the occurrence. She stated that she was brought to the house of the deceased by her father‑in‑law Allah Ditta P. W. late at night on the day of occurrence when the deceased was already having fits due to some poison. She admitted that her brothers were employees of the Agricultural Department but she denied that they had provided insecticide to her. She stated that they did not provide insecticide to the zamindars. She further stated that the deceased did not want to keep her as his wife. She also stated that she was got implicated in this case as Bashir F. C. related to the complainant party had thought that some other members of their family would otherwise be implicated and that further by implicating her they would also save her dowry.

7. In the F. I. R. the occurrence is reported to have taken place in the following manner : The appellant had left the house of the deceased six months prior to the occurrence and was living with her parents. At digarwela of the day preceding the night of occurrence Allah Ditta P. W. her father‑in‑law brought her back from ber parents house to the house of the deceased. In the evening as usual all the inmates of the house ate their meals at the same place and thereafter tea was prepared which was also taken by all of them at the same place‑ But the appellant took her own share and that of the deceased i e. two cups of tea alongwith the tea‑pot in her room and left the place along with the deceased in order to retire to her room. Thereafter, Allah Ditta P. W. went to his cattle shed. At about 9/10‑00 p.m. Mst. Sughran Bibi (P. W. 8) came to him and informed him that something had gone wrong with the deceased. On this he returned to the house. At that time Khushi Muhammad (P. W. 10), Abdur Rashid, and Muhammad Iqbal (both not produced), Jamal Din (P. W. 9) and Mst. Rehmat Bibi (P. W. 7), were already present outside the room of the deceased. The dogeased wpjs blIvinS convulsiops and he told them that the appellant had given him something to drink in the tea and that, therefore, he was dying and something should be done in order to save him. Thereupon, Allah Ditta P. W. and others attempted to do something in order to provide treatment to the deceased but in the meantime he expired. It was stated in the F. I. R. that the deceased was given some poisonous material in the tea by the appellant due to their strained relations and as a result the deceased had died. It was further stated that the remaining tea was thrown by the appellant in the courtyard and that it should be preserved.

8. Dr. Muhammad Ashraf Khan (P. W, 1) conducted post‑mortem examination on the dead body of the deceased at , ‑00 a.m. on the 22nd of December 19;2. There was no mark of injury on the deceased. Blood‑stained froth was coming out of nose. He despatched stomach and its contents, parts of small and large intestines, pieces of liver, spleen and kidney, blood from the right side of heart and urine of the deceased to the Chemical Examiner for the detection of poison, if any. In the light of the report of the Chemical Examiner at Exh. P. F., he was of the opinion that death had occurred due to insecticide poisoning.

9. We have heard learned counsel for both the sides and carefully perused the record. What the prosecution has succeeded in proving is that the deceased had died due to insecticide poisoning. The recoveries in this case, as it has already been pointed out, are of no help at all because they do not A connect the appellant directlY with the commission of crime. Neither anyl insecticide had been recovered in this case from the possession of the appellant nor was it found in the room shared by her with the deceased. The source from where the appellant could have obtained insecticide could also not be determined. There was only a vague allegation to the effect that since her brothers were working in the Agricultural Department, she may have obtained insecticide from them. But this could not be proved. The case of the prosecution against the appellant is based exclusively on the testimony of those witnesses who are either closely related to the deceased or a Kammi of the deceased. Anyway, none of them had stated that they witnessed the appellant administering poison to the deceased in a cup of tea. There is indeed an indication that the relations between the appellant and the deceased bad remained strained from the time they got married. It is on record that they were married one year prior to the occurrence and since their relations had become strained, the appellant resided mostly with her parents and not in the house of the deceased. The case of the prosecution is that the appellant did not like to live with her husband as she was carrying on an illicit affair with someone in the village of her parents. On the other hand the appellant in her statement before the trial Court had stated that the deceased did not want to keep her as wife. From the material on the record it can be inferred that the relations between the two of them were strained and not cordial. In any case admittedly on the day of occurrence Allah Ditta P. W. father of the deceased had gone to the village of the appellant and bad brought her back to the house of the deceased. There are some discrepancies in the statements of Allah Ditta, Mst. Rehmat Bibi and Mst. Sughran Bibi P. Ws. about the taking of tea by the deceased. The version in the F. I. R. is that the deceased and the appellant did not take tea with the rest of the family but the appellant took her tea and that of the deceased to her room and that it was in that room that the deceased was given the poisonous tea by the appellant. This version is supported by Mst. Sughran (P. W. 8 ~. But Allah Ditsa and Mst. Rehmat Bibi P. Ws. had stated before the trial Court that they had taken tea at the same pl4cp but only the appellant took the tea‑pot containing tea to her room for herself as she was feeling a headache and was giddy. From the other version it appears that if the deceased had taken tea in the room of the appellant it was for the second time. We have already observed that no one had seen the appellant giving a cup of tea to the deceased. Allah Ditta Mst. Rehmat Bibi, Mst. Sughran Bibi and Khusbi Muhammad P. Ws. are' very closely related to the deceased. It is obvious that in the background of strained relations between the appellant and the deceased, their natural sympathies would be with the deceased and not with the appellant. Although Jamal Din P. W. had denied that he had any connection with the complainant party, it is clear from the statement of Allah Ditta P. W. that he was their carpenter and a neighbour. Thus, he is a Kammf of the complainant party and would also have sympathies with them. It may be pointed out at this stage that it is only through the mouths of these witnesses that we are informed that when they found the deceased in a state of convulsions he told them that he had been given something in the tea which had been given to him by the . appellant. Again these are the witnesses who informed us that on inquiry from the appellant she told them that she had administered insecticide in the tea to the deceased by mistake (according to Allah Ditta P. W.), or by way of a joke (according to MR. Rehmat Bibi P. W.) and that she did not realize that as a result he would die, On the other hand, the appellant had stated before the trial Court that when she arrived at the house of the deceased along with her father‑in‑law i.e. Allah Ditta P. W., the deceased was also having fits due to some poison. Mst. Rehmat Bibi P. W. had stated that the deceased had told them that he had sipped tea only once or twice and that since it was of bad taste he did not have the full cup. In our considered opinion, since) the witnesses in this case have natural sympathy with the deceased, they should be considered as interested witnesses and it would not be safe to rely on uncorroborated testimony implicating the appellant in the commission of crime who had no sympathiser amongst the inmates of the house of the deceased. It may be pointed out at this stage that on the authority of Taylor (Principles and Practice of Medical Jurisprudence and Toxicology, Volume 11, 1965 Edition, pp. 4514‑52), insecticides are strong poisons to insects and they are not highly poisonous to man, though they can be absorbed readily through the skin. According to him acute poisoning can occur when insecticide is taken in considerable dosage by mouth, especially when dissolved in certain organic solvents. In small dosage, gastro enteritis and vague nervous symptoms would develop rapidly and pass off with equal rapidity. In lethal dosage as in suicide, death could follow within an hour in convulsions. He is further of the opinion that it was possible to absorb a fatal dose of insecticide suicidally but it was not likely to occur accidentally or to be used with intent to murder. However, a number of cases had occurred in which substances of this class were taken or administered with intent to injure or annoy. In the light of this authoritative information, it appears that insecticide poisoning could only result if the dosage was considerable or large. It is generally accepted that all insecticides have a foul taste. Consequently, a considerable dosage of foul tasting insecticide may be taken suicidally, but it was not likely to be taken accidentally or administered with intent to murder. In the present case we are informed that the deceased was administered insecticide in a cup of tea by the appellant and that the deceased took only one or two sips of the same but since it was of bad taste he did not take the rest. If that was so, the deceased could have not died of insecticide poisoning because the quantity taken by him was too little. In the background of this discussion the case of the prosecution against the appellant is certainly not free from doubt.

It is reasonably probable that either the deceased had taken a large dosage of insecticide suicidally on the day when the appellant was brought to his house by Allah Ditta P. W. or he took some dosage in order to annoy or frighten her but possibly due to the condition of his health it had an adverse effect on him and he expired. According to the medical evidence insecticide only in small quantity had been detected in the stomach contentsl etc. of the deceased. In any case, the probability cannot be ruled out that it might have been taken by the deceased suicidally and that his relatives implicated the appellant on suspicion because they were obviously on the side of the deceased and could not be expected to be on the side of the appellant in the circumstances of the case. We have already observed that the case of the prosecution against the appellant is not free from doubt as in our opinion it is not safe to rely on the uncorroborated testimony of interested and partisan witnesses in this case. In the circumstances the appellant should have been given the benefit of doubt which we hereby give to her. The result is that the conviction and sentence of the appellant are set aside and she is acquitted. The appeal is accepted. The appellant shall be released from jail forthwith if not wanted in any other case.

10. Reference for the confirmation of death sentence awarded to the appellant is hereby rejected.

S. Q. Appeal accepted.