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Criminal Revision No. 362 of 1963, decided on 5th December 1967.

S. 307‑Attempt to murder (Poisoning case)‑Wife administering arsenic to husband‑Strained relations of spouses established by evidence‑Prosecution version supported by extra-judicial confession of accused, Chemical Examiner's Report, and testimony of reliable witnesses‑Omission on part of Investigating Officer 1o trace origin of arsenic and accused' s access to it‑Held, in circumstances, not fatal to prosecution case‑Conviction upheld.

, S. 439 and Probation of Offenders Ordinance (XLV of 1960), S. S(I)(b)‑Convic tion of accused, a girl of 15 year, under S. 307, P. P. C. upheld in Revisi n‑Accused being a female of younger age, sending her to jail not considered desirable‑Fit case for invoking provisions of S (5)(I)(b), Probation of Offenders Ordinance, 1960‑Sentence set aside‑Accused ordered to remain on one year's probation on execution of bond.

S. M. Birjis for Petitioner.

Sh. Riaz Ahmad for A.‑G. for the State.

This Criminal Revision filed by Mst. Anwari, a young girl of about 15 years of age, is directed against the order of the learned Additional Sessions Judge, Lyallpur, dated 11th April 1963, whereby dismissing her appeal, he upheld her conviction under section 307, P. P. C. recorded by Sarfraz Hussain, Magistrate with section 30 powers, Lyallpur, on 20th March 1962, awarding a sentence of three and a half years imprisonment plus a fine of Rs. 100 or a further R. I. of three months in default of payment thereof.

2. The brief facts giving rise to the case are that the petitioner Mst. Anwari was married to Muhammad lqbal com plainant (P. W. 1) who was also her first cousin being the son of tier father's sister. The relations between the two spouses were not cordial presumably for the reason that the parents of the petitioner insisted that Muhammad lqbal should stay with them as Khana Damad to which he was not agreeable. According to the statement of Muhammad lqbal Exh. P. A. recorded by Jalal Din P. W. 10 Head Constable of Police Post Jhang Bazar, Lyallpur, on 9th January 1962, Mst. Anwari petitioner often used to quarrel with him and a few months earlier she had set fire to his clothes in the house which on timely detection was extinguish ed without any substantial damage. In view of their strained relations, the parents of lqbal started living separately from him on the ground floor of the house whereas Muhammad lqbal lived on the top floor. On 8th January 1962 when he returned home after having finished his day's job as a weaver, he asked for meals. The petitioner brought mutton‑curry in a cup and while he had finished one loaf of bread he felt as if it contained some poisonous matter. On enquiry the petitioner denied having mixed anything in the curry. Muhammad lqbal then came down to fetch huqqa from his father and saw that the curry left out by him in the utensils had been thrown away by his wife. He felt signs of indisposition and also told this to his parents, Since he had to go back to his job, he came out and happened to meet Hashmat Ali (P. W. 3) and one Muhammad Asghar who was not examined as a P. W. At a short distance from the house he started vomit ting but nonetheless proceeded to the workshop His trouble increased and he contacted Dr. Tufail Muhammad of Partab Nagar who later appeared as D. W. 1 and consulted him for indigestion. The doctor gave him an injection and also some mixture. He was then brought back to his house and lost consciousness, and on the following morning was removed to the hospital. Significantly enough, three things were specifically mentioned by Muhammad lqbal in his aforesaid statement Exh. P. A., firstly it contained direct allegations against Mst. Anwari petitioner, of having deliberately mixed some poisonous substance in the food in order to kill him, secondly that the vomit had been preserved at the house, and thirdly that Mst. Anwari petitioner had made an extra‑judicial confession before, Ilam Din (P. W. 4). Sh. lnayat Ullah (P. W. 5), Atta Muhammad and Shamas Uddin Dogar. It may be mentioned at this stage that Jalal Din Head Constable (P. W. 10) had reached the hospital on receipt of ruqqa Exh. P. E. from Dr. Fazal Ahmad (P W. 6) of the District Head Quarters Hospital, Lyallpur. On the basis of this statement, a formal F. I. R. Exh. P. A /I was drawn up‑ at Factory Area Police Station, Lyallpur at 3‑30 p.m. on 9th January 1962. Abdul Haq A. S. I. (P. W. 9) who investigated the case secured the vomit in a bottle which was found to be contain ed in a pail (balti) produced by Wali Muhammad (P. W. 2) father of Muhammad Iqbal (P. W. 1). The same was sealed and forwarded to the Chemical Examiner. The relevant recovery memo. is Exh. P. B. signed by Wali Muhammad P. W. 2 and Inayat Ullah (P. W. 5). When Muhammad Iqbal was removed to the Hospital, the doctor also secured his stomach‑wash in a bottle and both the bottle was forwarded to the Chemical Examiner and were latter found to contain white arsenic, vide Chemical Examiner's report Exh. P. C. After completing the investigation the petitioner was sent up to stand her trial under section 307, P. P. C.

3. At the trial the prosecution version rested on the testi mony of Muhammad lqbal (P. W. 1), his father Wali Muhammad (P. W. 2), Hashmat Ali (P. W. 3) Inayat Ullah (P. W. 5), Dr. Fazal Ahmad (P. W. 6) and Muhammad Shareef (P. W. 7), Ilam Din (P. W. 4), however, did not support the prosecution. The petitioner pleaded not guilty to the charge, but admitted that earlier she had been given beating by her husband whereupon her father had taken her away to his house. She, however, alleged that Muhammad Iqbal, his parents and the police had given her beating in order to extract a confession from her and that what ever was said by her was said under duress. She produced four witnesses in defence including Dr. Tufail Muhammad D. W. I who was consulted by Muhammad lqbal in the first instance after he had started vomitting. Munshi (D. W. 2) deposed that Muhammad lqbal was employed by him in his workshop as a handloom worker. Muhammad Hussain (D. W. 3) was a saniasi practising as a physician on Railway Road, Lyallpur and deposed that Muhammad lqbal often used to consult him and was addicted to intoxicants. Sher Muhammad claiming to be a neighbour of Muhammad lqbal appeared as D. W. 4 and stated that he had no knowledge of either the previous incident when then petitioner allegedly set fire to some clothes or occurrence relating to allegations of poisoning against the petitioner.

4. Placing full reliance on the testimony of the P. Ws. and discarding the defence version, the learned Magistrate convicted the petitioner awarding her a sentence of three and a half years plus a fine of Rs. 100. As stated earlier, having failed in appeal before the learned Additional Sessions Judge, she has now preferred the present criminal revision.

5. The learned counsel for the petitioner has raises the following contentions before me:‑

(l) that there was considerable delay in the lodging of the F. I. R. which remained unexplained;

(2) that the statement of Muhammad lqbal complainant (P. W. 1) the principal witness in the case contains a basic falsity, inasmuch as he had not known the cause of his trouble till he was removed to the hospital, as established by Dr. Tufail Muhammad D. W. I before whom he complained only of some stomach trouble and indigestion and accordingly has to be taken with a grain of salt;

(3) that no steps were taken by Wali Muhammad father of Muhammad lqbal to immediately remove him to the hospital in spite of his assertion that he knew or at least suspected that his son had been poisoned by his daughter‑in‑law. This coupled with the fact that no report was lodged with the police who received the information at the hands of the doctor, would make the prosecution case extremely doubtful

(4) that none of the witnesses of the so‑called extra‑judicial confession was produced in Court except Inayat Ullah P. W. 5 which even otherwise when considered in the light of the fact mod that the petitioner was a 15 years old unintiated girl who stated to have received a beating at the hands of her in‑laws, no credence whatever could be given to such an extra‑judicial confession;

(5) that neither the origin of the arsenic nor the mode of its access to the petitioner has been explained by the prosecution and as such the prosecution version rests mainly on surmises.

6. Having given my anxious consideration to the contentions raised by the learned counsel, I am of the view that despite the significant omission on the part of the Investigating Officer to trace the origin of the arsenic admittedly administered to Muhammad Iqbal (P. W. 1), the offence has been fully brought home to the petitioner. Undoubtedly, from the evidence of Dr. Tufail Muhammad (D. W. 1) one cannot avoid an impression that at least at the time when Muhammad Iqbal consulted him, he expressed no suspicions of having been poisoned by his wife, and as such one is driven to the irresistible conclusion that this principal witness was exaggerating facts. Notwithstanding this., however,' there is adequate evidence on the record which would warrant a conviction. It has been fully established by the evidence that the two spouses were not getting on well and often used to quarrel with the result that a few months earlier the petitioner committed mischief by setting fire to some househ3ld effects, although for quite understandable reasons namely, that close relationship of the parties and their parents, no report was lodged with the police of this occurrence. This also seems to be the main consideration why Muhammad lqbal or his father were hesitant to straightaway lodge a report of the present occurrence which was disclosed to the police by the doctor. Considering in this background, I am inclined to think that notwithstanding some possible exaggerations made by Muhammad Iqbal who. claimed to have felt the admixture of some poisonous substance in his food and even complained to the petitioner, his testimony does not warrant rejection in toto, as there appears to be no earthly reason why he or for that matter his father Walk Mohammad should falsely implicate the petitioner who was nor only the wife of the former and the daughter‑in‑law of the latter but the first cousin of Muhammad lqbal. I am, therefore, clearly of the view that the testimony of these two witnesses has to be accepted in so far as their suspicion against the petitioner is concerned. The precautionary measure taken by the parents of Muhammad lqbal to preserve his vomit at the house lends further support to this view that a foul play had been genuinely suspected by them. There appears to be no conceivable reason why the father and the son should lay the blame on an innocent girl so intimately related to both of them with a view to explain away some other mode of the administration of poison to Muhammad Iqbal and thus get her convicted on false and trumped up charges. One possible explanation of Muhammad lqbal' s elaborate report containing direct allegation against the petitioner is that although by the time he had consulted Dr. Tufail Muhammad he was not quite sure of what had actually transpired, he had later on built up a correct version on the basis of his earlier observations. Be that as it may, the fact, however, stands clearly established that the father and the son strongly suspected the petitioner for this foul play. No doubt of the four witnesses of extra judicial confession Ilam Din (P. W. 4) did not support the prosecution while Atta Muhammad and Shamas Uddin Dogar were not produced. Yet there is hardly anything to discredit the statement of Sh. Inayat Ullah (P. W. 5) and Kh. Muhammad Shareef (P. W. 7). It could be argued against the latter that his name though mentioned in the F. I. R. in a different context was not referred to as one of the witnesses‑ before whom the petitioner had made an extra judicial confession. This witness is a member of the Basic Democracy and accompanied Wali Muhammad father of Muhammad lqbal when the latter was removed to the hospital. The learned trial Magistrate who had also the additional advantage of having seen and heard these two witnesses had placed full reliance on their testimony and I find no good reasons to take a different view. It is also significant that she did not question them on her being beaten as alleged by her.

6‑A. In view of the above discussion I see no force in the contention raised by the learned counsel and I am clearly of the view that notwithstanding the failure on the part of the police to establish the origin of arsenic and the petitioner's access to it, the offend has been fully brought home to the petitioner who was rightly convicted under section 307, P. P. C.

7. Coming now to the question of sentence, in view of the, fact that the petitioner is a young girl aged 15 or 16 years at the relevant time, I do not feel inclined to send her back to jail where contamination with hardened sinners might possibly ruin her career. The learned counsel appearing for the State has agreed with me that it is a fit case in which provisions of section 5 of the Probation of Offenders Ordinance of 1960 may be properly invoked. Section 5 (1) (b) reads as follows:‑

"5. Power of Court to make a probation order in certain case (1) Where a Court by which‑

(a) ..........

(b) any female person is convicted of any offence other than an offence punishable with death, is of opinion that, having regard to the circumstances including the nature of the offence and the character of the offender, it is expedient to do so, the Court may, for reasons to be recorded in writing, instead of sentencing the person at once, make a probation order, that is to say, an order requiring him or her to be under the supervision of a probation officer for such period, not being less than one year or more than three years, as may be specified in the order:

Provided that the Court shall not pass a probation order unless the offender enters ,into a bond, with or without sureties, to commit no offence and to keep the peace and be of good behaviour during the period of the bond and to appear and receive sentence if called upon to do so during that period:

Provided further that the Court shall not pass a probation order under this section unless it is satisfied that the offender or one of his sureties, if any, has a fixed place of abode or a regular occupation within the local limits of its jurisdiction and is likely to continue in such place of abode or such occupation, during the period of the bond.

(2).........

In view of the fact of her being a female of a comparatively younger age and also being a first offender, I set aside the petitioner's sentence of three and a half years imprisonment and also of fine and make a probation order to the effect that she shall remain under the supervision of the Probation Officer Lyallpur, for a period of one year on execution of a bond in the sum of Rs. 5,000 with one surety to the satisfaction of the Probation Officer to commit no offence or to keep the peace and be of good behaviour during this period as envisaged by the tirst proviso to the aforesaid provision. The petition is thus partly accepted to the extent indicated above.

Petition partly accepted.

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