MUHAMMAD RAFIQ Versus STATE Muhammad Sharif , Miss Yasmeen Saigl for A.-G. for the State. Q.M. Saleem
Muhammad Rafiq, aged 30/32 years, was tried by Additional Sessions Judge, Sialkot, for having murdered Muhammad Azam, by poisoning him at 9 a.m. on 23-4-1986 in Irish Factory, near Sugar Mills, Pasrur, at a distance of two Miles from Police Station Pasrur. The learned trial Judge vide judgment dated -7-4-1987' convicted him under section 302, P.P.C. and sentenced him to presentment life plus to pay a fine of Rs.5 000 in default whereof to undergo It .I. for two year,
2. F.1.R. (Exh.PA,/1) was registered at the police station by Muhammad Malik, A.S.I. (P-W-1) at 9-05 a.m. on 24-5-1986, on receipt of statement (Exh. PA.) of Meraj Din (P.W.5) recorded by Muhammad Irshad, Inspector (P.W.11) at 9 a.m. on 24-5-1986, in Katchery Chowk, Pasrur.
According to F.I.R., Muhammad Iqbal, husband of sister of the complainant, was living in village Malipur. Muhammad Rafiq (appellant), who was also resident of the same village, had strained relation with him On 23-5-1986, the complainant accompanied by his deceased son (Azam), Muhammad Iqbal P.W. and Ghulam Rasul (given up P.W.) were gong from village Malipur to Pasrur. When they reached near Irish Pharma close to Sugar Mills, Pasrur, Muhammad Rafiq (appellant), who was serving in the factory, beckoned Azam deceased and Ghulam Rasul (given up P.W.), whereupon they went with him inside the factory. The time was about 9 'a.m. The complainant and Muhammad Iqbal P.W. sat in Chowk Pasrur-Narowal to await for them. Muhammad Rafiq appellant had administered some poisonous matter to them lied told them that Muhammad Rafiq appellant had administered some poisonous matter to Azam and Ghulam Rasul in a glass and that both of them had fallen unconscious, whereupon, the complainant and Muhammad lqbal came to the factory. They saw the appellant administering Azam deceased and Ghulam Rasul P.W. some poisonous matter with a glass. On seeing them, the appellant ran away. The complainant and Muhammad Iqbal P.W. lifted Azam and Ghulam Rasul end took them to Malipur. They remained unconscious. At about 2 p.m hey were aken to Civil Hospital, Pasrur. They were treated by Dr. Muhammad Sarwar. Azam expired at about 4 p.m.
Zafarullah, owner of the Irish Pharma Factory, came to the hospital. He tried to bargain with Dr. Muhammad Sarwar for the custody of the dead holy of the deceased but the doctor used dilatory tactics. He told them at 8/9 p.m. that he will inform them in the morning and went to his house. When the complainant approached the doctor at 8 a.m., he (doctor) asked them to wait further. As the dead body had started decomposing, the complainant approached Muhammad Iqbal Khokhar, M.P.A. who accompanied him to inform the police.
The complainant made statement (Exh. P:A.) to the Inspector, who was on patrol duty, on way to the police station.
3. Muhammad Irshad, Inspector, after despatching the statement (Exh. P.A.) to the police station for registration of the case, proceeded to the hospital. After preparing inquest report, he entrusted the dead body to Bashir Ahmad and Shahbaz Ahmad Constables for post-mortem examination. He recorded the statements of the P.Ws. on the same day.
The appellant was arrested by him on 2-6-1986. Plastic glass (P.4) produced by the appellant, was taken into possession by him vide memo. Exh. P.J.
After completion of necessary investigation, challan was submitted to Court.
4. Statements of 11 P.Ws. were recorded at the trial. Exh. P.L., report from the office of the Chemical Examiner, about the detection of insecticide belonging to chlorinated hydro-carbon grouts in the parts of the body of the deceased, i.e. tongs, liver, stomach, small and large intestines, was also tendered in evidence. Exh P.K. report from the oft-ice of the Chemical Examiner, about the detection of acid barbituric, in the contents. of the vomits of Ghulam Rasul (P.W. given up) was also tendered in evidence. Report (Exh. P.M.) from the office of the Bacteriologist to Government of the Punjab was also tendered in evidence.
5. Dr. Muhammad Sarwar, who had medically examined the deceased whilst alive on 23-5-1986 at 1-4r p.m. appeared as P.W.9. He had not noted any external injury on any parts of the noted of the deceased. He, however found the patient deeply cyanosed, deeply unconscious with laboured respiration. Pupils were not reacting to light He was vomiting. He (Dr.) mentioned that the wife and relatives of the patient had told him that someone had even him sonic drink lie gave him necessary treatment and administered oxygen also for respiration. f he patient, however, could not survive and expired at 3-50 p.m. The doctor pined that most probably, the cause of death was poisoning. Samples of blood and urine were also taken for detection of poison and were sent for chemical analysis. According to his opinion the duration of ingestion of poison was about three and a half hours at the time of examination.
The same doctor, on the same day, had medically examined Ghulam Rasul (given up P.W.) at 4-15 p.m, he found the condition of Ghulam Rasul the same as that of Azam deceased.
During cross-examination, he stated that the relatives of Azam deceased wanted to take away his dead body could not give the name of the person who had served them the drink so he did not allow them to take the dead body without the police. f le stated that t,:; had told them to go and inform the police.
6. Dr. Rizwan Mahmood, who had performed autopsy on the dead body of Muhammad Azam on 24-5-1986 at 4-30 p.m. appeared as P.W.10. He found the face of the deceased bluish White froth, on both nostrils and mouth was also noted. Samples of heart, kidney and spleen, removed from the dead body, were sent to Histopatholgist Lahore for histological examination. Samples of lungs, liver, stomach, small and large intestines were also sent to the office of the Chemical Examiner. The opinion for cause of death was reserved by him till the receipt of the report from the office of the Chemical Examiner.
After the receipt of the report from the office of the Chemical Examiner and the report from the office of the Histopathologist, Lahore, he opined that the deceased had died a, a result of poisonous material.
7. The ocular account has been deposed to by Meraj Din (P.W.5) and Muhammad Iqbal (P.W.6)
Meraj Din repeated the facts given by him in the F.I.R. During cross -examination that he had gone to Malipur to Muhammad Iqbal P.W. preceding the night of the day of occurrence, as he had to purchase a buffalo in the company of Muhammad Iqbal. He added that the deceased had gone to Malipur two days prior to the occurrence. He stated that the deceased was married to Mst. Balqees, but denied the suggestion that his wife was unhappy with him. He gave the distance of Pasrur Hospital from the police station to be one Killa. He conceded that neither he had gone to the police station from the hospital nor had sent lqbal P.W. till the time he had proceeded to lodge the F.I.R. on the following day in the company of an M.P.A.
8. Muhammad Iqbal (P.W.6), while corroborating the statement made by the complainant added that Muhammad Rafiq, who had seen the accused administering poison to the deceased and Ghulam Rasul and had informed them, was his real brother. He also stated about inimical terms of the accused with him. He gave the name of the doctor who had treated the deceased in village Malipur as Altaf. His assertion that he had stated before the police also in Exh D.A. about his enmity with the accused was found incorrect on confrontation. He denied the suggestion that the accused had committed suicide on account of being unhappy with his wife. He added that the deceased was working in a Surgical Factory in Sialkot and used to come back every day. According to him, the deceased was putting up in his house since 17/18 days before the occurrence.
9. Muhammad Irshad, Inspector, who appeared as P.W.11 gave the account of registration of case, arrest of the accused, recovery of glass from him and the investigation conducted by him. He gave the distance of Chowk Narowal from police station to be six furlongs.
The statements of the remaining witnesses are more or less of the formal nature.
10. The appellant during his statement under section 342, Cr.P.C. denied the prosecution case as a whole and pleaded innocence. He did not produce any evidence in defence.
11. I have gone through the record with the assistance of the learned counsel for the appellant and have considered the contentions raised by the counsel for the parties.
12. The death of Muhammad Azam, as a result of poisonous material stands proved from the medical evidence, as well as the reports from the offices of the Chemical Examiner and the Histopathologist.
13. The whole question which remains to be considered is, whether the eye witnesses examined at the trial had actually seen the appellant administering poisonous material to the deceased and is there any other evidence to corroborate the ocular account?
14. The administration of poisonous material according to the prosecution case was done at 9 a.m. on 23-5-1986. The report was lodged on the following I day at 9 a.m. The distance of the police station from the factory, where the poisonous material is alleged to have been administered to the deceased, according to the S.H.O. (P.W.11) comes to a mile. (He stated that Narowal Chowk was six furlongs from the police station. The distance of Chowk from the factory, as has come in evidence was about 2/3 furlongs).
15. Meraj Din, father of the deceased, Muhammad Iqbal was married to the paternal-aunt of the deceased. The deceased, in fact, according to Iqbal P.W., was residing with him for the last 17/18 days prior to the occurrence. Muhammad Rafiq son of Mahand Bakhsh (given up P.W.) was real brother of Iqbal P.W. Both the eye-witnesses, i.e. Meraj Din and Muhammad Iqbal claimed that they had removed the deceased alongwith Muhammad Rafiq son of Mahand Bakhsh first to their village and then to the hospital at Pasrur on the same day at about 2 p.m. They also asserted that they had remained in the hospital till the next day morning when the complainant had gone to talk to the M.PA. They have not been able to give any reason or explanation as to why they did not report the matter to the police in spite of the fact that they had seen the appellant administering poisonous material to the deceased. The delay of about 24 hours that took place in reporting the matter to the police thus stands unexplained.
16. The claim of Meraj Din and Iqbal P.Ws. that on having been informed by Muhammad Rafiq son of Mahand Bakhsh that the appellant had administered something poisonous to the deceased and Ghulam Rasul (given up P.W.) and that they were lying unconscious in the factory, and that on going to the factory they had seen the appellant administering something in a glass, apparently seems to be highly improbable. The appellant could not have continued administering the poisonous material for such a long time and that too when the deceased and the given up P.W. had become unconscious. Moreover, the incident, according to them, had happened in the factory, where there must be some other persons too but nobody is stated to have been asked for help nor anybody is stated to have witnessed any such thing.
17. The information given by Muhammad Rafiq son of Mahand Bakhsh, which could have been of some value to the prosecution, was not laid before the to Court at the trial by producing Muhammad Rafiq. The information supplied by him, therefore, to these witnesses, being hearsay, is of no evidentiary value.
18. The presence of the two eye-witnesses with the deceased appears to be improbable, rather unbelievable from documentary evidence. In that the name of none of them is mentioned in column `Name of relative/friend' of Exh P.E., the medico-legal report of the deceased, prepared by Dr. Muhammad Sarwar at 1-45 P.m. on 23-5-1980 in the hospital. If anyone of these two witnesses or Muhammad Rafiq (given up P.W.) had accompanied the deceased to the hospital while he was alive, the name of some one of them must have been mentioned in the relevant column of M.L.R. That is more so, for the reason that in the M.L.R. (Exh P.F.) of Ghulam Rasul (given up P.W.), prepared by the same doctor, on the same day, the name of one Muhammad Boota finds mention in the relevant column. If the doctor had considered to mention the name of relative/friend of Ghulam Rasul necessary, he would have certainly mentioned/noted the name of any one of the witnesses in the M.L.R. of the deceased, if anyone of them had been with him at the time of medical examination of the deceased. This factum, coupled with delay that occurred in lodging the F.I.R., makes the claim of the F presence of the two eye-witnesses at the time of administering of poisonous material to the deceased, and at the time he was admitted to hospital, doubtful.
19. The plastic glass, which was said to have been produced by the appellant before the Inspector at the time of his arrest as having been used for administering poisonous material, was never sent to the Chemical Examiner to find out if there were any traces of poisonous material.
20. The prosecution case is that the deceased,, was done to death by the appellant because he had enmity with lqbal P.W.5. Apart from the fact that no details of that enmity were deposed to by any of the two eye-witnesses, the other H important fact is that if the appellant had enmity with Muhammad lqbal P.W., why should he have chosen the deceased to avenge that? Nobody had stated at the trial that the enmity had arisen because of the deceased. If the appellant was to do any harm on that account, he should have done the same directly to Muhammad lqbal P.W. or at least his brother Muhammad Rafiq, who was also , available in the factory.
21. As a result of the above analysis of the evidence, doubts have arisen in my mind about the prosecution having proved the case against the appellant 1 beyond reasonable shadows of doubt. The appeal is, therefore, allowed and the appellant is acquitted by way of grant of benefit of doubt. He shall be released forthwith, if not required in any other case.
H.B.T./M-1994/L Appeal allowed.