The State vs Sabir Hussain

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

Murder Reference No.29 of 2018 (The State Vs. Sabir Hussain )

Criminal Appeal No. 699-J of 2018 (Sabir Hussain Vs. The State.)

JUD G ME NT

Date of hearing: 12.10.2021.

Appellant by: Mr. Hassan Mehmood Chaudhry, Advocate. State by: Ch. Asghar Ali Gill, Deputy Prosecutor General. Complainant by: Syed Gul Abbas Bukhari, Advocate.

SADIQ MAHMUD KHURRAM, J. – Sabir Hussain son of Bashir Ahmad (convict) was tried by the learned Additional Sessions Judge, Yazman in case FIR No. 341 of 2013 dated 08.11.2013 registered at Police Station Saddar Yazman, District Bahawalpur in respect of an offence under section 302 PPC for committing the Qatl-i-Amd of Shamim Bibi daughter of Zawar Hussain (deceased) and the child in her womb. The learned trial court vide judgment dated 28.11.2018, convicted Sabir Hussain son of Bashir Ahmad (convict) and sentenced him as infra:

Sabir Hussain son of Bashir Ahmad:- Death on two counts under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Shamim Bibi daughter of Zawar Hussain (deceased) and the child in her womb and directed to pay Rs.500,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default

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whereof, the convict was directed to undergo further six months of simple imprisonment.

The convict was ordered to be hanged by his neck till dead.

2.Feeling aggrieved, Sabir Hussain son of Bashir Ahmad (convict) lodged Criminal Appeal No.699-J of 2018 through jail assailing his conviction and sentence. The learned trial court submitted Murder Reference No.29 of 2018 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Sabir Hussain son of Bashir Ahmad. We intend to dispose of the Criminal Appeal No. 699-J of 2018 and Murder Reference No.29 of 2018 through this single judgment.

3.Precisely the necessary facts of the prosecution case, as narrated by Naziran Bibi (PW-1), the complainant of the FIR, are as under:- “My daughter Shamim Bibi was married with Sabir accused present before the court in police custody about ten years back. As a result of that marriage one son aged about 7 years was born. At the time of her murder, my deceased daughter was at the advance stage of pregnancy.

My daughter was residing with her husband Sabir accused in Chak No.68/DB. Sabir accused was unemployed and vagabond and addict. He demanded money from my deceased daughter for the purpose of purchasing of narcotics. On her refusal accused maltreated my daughter/his wife.

On the day of murder I went to the house of my daughter to see her. At about 11:00 A.M Sabir accused demanded money from Shamim Bibi but she refused. He fleered up and he taken out "Khanjar" and caused repeated blows on the neck, face, left arm, left hand and right arm. The left hand was almost separated from the body due to khanjar blows caused by Sabir accused. On my hue and cry Afzal and Gulzar PWs came to the place of occurrence and witnessed the occurrence. My daughter fell down on the ground after receiving the injuries. We had tried to caught (sic) hold of accused but he made good to his escape by showing us khanjar and by giving us threats of dire consequences. My daughter succumbed to the injuries at the spot. Police after receiving the information of occurrence came to the place of occurrence. I submitted my application Ex.P.A. My application was read over to me and I thumb marked the same as a token of its correctness.”

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4.After the formal investigation of the case, the report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court, wherein the appellant namely Sabir Hussain son of Bashir Ahmad was sent to face trial. The learned trial court framed the charge against the accused on 30.01.2014, to which the accused pleaded not guilty and claimed trial.

5.The prosecution in order to prove its case, got statements of as many as nine witnesses recorded. The ocular account of the case was furnished by Naziran Bibi (PW-1) and Muhammad Afzal (PW-2). Ghulam Murtaza, Civil Engineer (PW-3) prepared the scaled site plan of the place of occurrence (Exh.PE). Khuda Bakhsh 363/HC (PW-4) stated that on 08.11.2013, Muhammad Arshad, SI (PW-9) handed over to him one sealed parcel said to contain blood stained earth and on 21.11.2013, Muhammad Arshad, SI (PW-

9)handed over to him one sealed parcel said to contain a dagger which on 01.12.2013 he handed over both the sealed parcels to Sarfraz Majeed 820/C (PW-8) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Raees Ahmad, SI (PW-6) stated that on 08.11.2013 he recorded the formal F.I.R (Exh.PG). Imdad Ali 557/C (PW-7) stated that on 08.11.2013 he escorted the dead body of the deceased to the hospital for its post mortem examination and also received the last worn clothes of the deceased from the Medical Officer. Muhammad Arshad, SI (PW-9) investigated the case from 08.11.2013 till 03.12.2013, arrested the appellant in this case on 17.11.2013 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.

6.The prosecution also got Dr. Bushra Tariq (PW-5) examined, who on 08.11.2013 was posted as Woman Medical Officer at the THQ hospital,

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Yazman and on the same day conducted the post mortem examination of the dead body of the deceased namely Shamim Bibi daughter of Zawar Hussain.

Dr. Bushra Tariq (PW-5) on conducting the post mortem examination of the dead body of the deceased namely Shamim Bibi daughter of Zawar Hussain observed as under:-

“1. A horizontal incised wound encircling front of neck going to right side of neck and back of right side of neck measuring 18 x 05 cm cutting skin muscles, hyoid bone and thyroid/parathyroid.”

2.A longitudinal incised wound 06 x 02 cm on left side of face cutting left side of upper lip, left nasal nostril and left nasal bone going up to the inner canthus of left eye.

3.A horizontal incised wound 05 x 02 cm x muscle deep on left cheek.

4.An oblique incised wound 03 x 02 cm x bone deep on left eye brow.

5.A longitudinal incised wound 05 x 02 cm x bone exposed on left side of skull.

6.A transverse incised wound 04 x 02 cm x bone exposed on right side of skull.

7.A longitudinal incised wound 05 x 02 cm x bone exposed on centre of back of skull.

8.A longitudinal incised wound 06 x 02 cm x bone exposed on left side of back of skull.

9.A longitudinal incised wound 06 x 02 cm x muscle deep on top of left shoulder.

10.A longitudinal incised wound 05 x 01 cm x muscle deep on top of right shoulder.

11.A transverse incised wound 04 x 02 cm on dorsal aspect of base of right hand little, ring and middle fingers. Proximal phalanx of little finger was completely cut and ring and middle fingers wound were skin deep.

12.Left hand wrist joint was completely cut separating the left hand from left forearm wrist joint bones were exposed.

Healthy and a fetus of 32-34 weeks in uterus.

Final Opinion.

After careful external and internal post mortem examination, I was of the opinion that death occurred due to injury No.1 along with other injuries leading to hemorrhagic shock and death. Such type of injuries are sufficient to cause death in an ordinary course of life. All injuries on dead body were homicidal, ante-mortem in nature and caused by sharp edged weapon.”

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7.On 25.02.2014, the learned Assistant District Public Prosecutor gave up prosecution witness namely Gulzar Ahmad as being unnecessary. On 21.04.2014, the learned Assistant District Public Prosecutor closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency, Lahore (Exh.PN).

8.After the closure of prosecution evidence, the learned trial court examined the appellant namely Sabir Hussain son of Bashir Ahmad under section 342 Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant namely Sabir Hussain son of Bashir Ahmad opted not to get himself examined under section 340(2) Cr.P.C. and did not adduce any evidence in his defence.

9.On the conclusion of the trial, the learned Additional Sessions Judge, Yazman, convicted and sentenced the appellant as referred to above.

10.The contention of the learned counsel for the appellant is that the whole case is fabricated and false. The learned counsel for the appellant argued that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence to prove the same. The learned counsel for the appellant further contended that the statements of Naziran Bibi (PW-1) and Muhammad Afzal (PW-2) were not worthy of any reliance. The learned counsel for the appellant also argued that the recoveries were full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the appellant beyond the shadow of doubt.

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11.On the other hand, the learned Deputy Prosecutor General along with the learned counsel for the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses.

The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the deceased and her unborn child died as a result of injuries suffered at the hands of the appellant. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that the medical evidence also corroborated the statements of Naziran Bibi (PW-1) and Muhammad Afzal (PW-2). The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the recovery of the weapon and the report of Punjab Forensic Science Agency, Lahore (Exh.PN) also corroborated the ocular account. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly, the learned Deputy Prosecutor General along with the learned counsel for the complainant prayed for the rejection of appeal.

12.We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General along with the learned counsel for the complainant and with their assistance have perused the record and evidence recorded during the trial.

13.The whole prosecution case revolves around the statements of Naziran Bibi (PW-1) and Muhammad Afzal (PW-2). The deceased namely Shamim Bibi was the daughter of Naziran Bibi (PW-1). More importantly the appellant namely Sabir Hussain was married to the deceased namely Shamim Bbi and in

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this manner his identification by Naziran Bibi (PW-1), his own mother in-law, coupled with the fact that the occurrence had taken place at 11.00 a.m., could not be doubted. Naziran Bibi (PW-1) also explained her arrival at the place of occurrence, prior to the occurrence. Even otherwise the presence of Naziran Bibi (PW-1) inside the matrimonial house of her daughter was natural and no uncertainty could be conjured regarding the same. Nonetheless , during cross- examination, Naziran Bibi (PW-1) explained that she had arrived from her house to the matrimonial house of her daughter, shared by the appellant and had been present there since 8.00 a.m. During the cross-examination Naziran Bibi (PW-1) stated as under:-

“On the day of murder of my daughter, I came to the house of my daughter at about 8:00 A.M. At that time accused was demanding Rs.200/- from my deceased daughter for the purpose of purchase of narcotics.”

We have also noted that during cross-examination, the presence of Naziran Bibi (PW-1) was admitted and it was suggested to her that she had arrived at the place of occurrence along with one Khuda Bakhsh. Naziran Bibi (PW-1) also explained the arrival and presence of Muhammad Afzal (PW-2) at the place of occurrence. Naziran Bibi (PW-1) during cross-examination stated that Muhammad Afzal (PW-2) was the neighbor of the appellant and on hearing the hue and cry of her, he came to the place of occurrence and saw the occurrence. Muhammad Afzal (PW-2) during cross-examination also explained that he arrived at the place of occurrence after being attracted to the same, hearing the hue and cry of Naziran Bibi (PW-1) and the deceased namely Shamim Bibi. Muhammad Afzal (PW-2) during cross-examination explained as under:-

“I am naighbourer (sic) of accused and deceased lady. The occurrence was taken place on Friday at about 11:00 A.M. Myself and Gulzar PW were crossing in front of the house of accused, we heard shrieks coming from the house of accused. At that time complainant, Sabir accused and his deceased wife Shamim Bibi was

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(sic) in the house. No other person was there. First of all I entered in the house of accused and then Gulzar PW entered in the house. When we entered in the house of accused, at that time accused was causing injuries to Shamim Bibi, his wife.”

Muhammad Afzal (PW-2) being admittedly the neighbour of the appellant, his arrival at the place of occurrence, after hearing the hue and cry of the Naziran Bibi (PW-1) and the deceased was natural. Muhammad Afzal (PW-2) was not even related to the deceased or Naziran Bibi (PW-1), the complainant of the case and in this manner had no reason to depose falsely against the appellant.

Muhammad Afzal (PW-2) was not having any grudge or grouse against the appellant which could have motivated him to give evidence against the appellant. Reference is made to the judgment in the case titled as Zakir Hussain v. The State (2008 SCMR 222) wherein the august Supreme Court of Pakistan was pleased to observe as under:--

“The place of occurrence being situated close to the residential houses of the parties, the presence of the eye-witnesses at the barber shop would not be challengeable.”

Reference is also made to the judgment in the case titled as “Muhammad Aslam v. The State” (2012 SCMR 593) wherein the august Supreme Court of Pakistan was pleased to observe as under:--

“Both the eye-witnesses are residents of the same village where the incident took place and their presence at the spot has been established beyond any shadow of doubt.”

Reference is also made to the judgment in the case titled as “Abid Ali v. The State” (2017 SCMR 662) wherein the august Supreme Court of Pakistan was pleased to observe as under:--

“The occurrence in this case had taken place early in the morning in the month of May at a time when the day had already broken. The appellant was not only an immediate neighbour of Fateh Bibi complainant (PW10) but he was also related to the complainant party as the complainant was the appellant's aunt. Mst. Fateh Bibi complainant was the mother of Manazir Ali deceased and she resided in the very house in which the occurrence had taken place and the time of occurrence was such that availability of the

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complainant in her house at that time was nothing but natural and expected.”

Both the prosecution witnesses namely Naziran Bibi (PW-1) and Muhammad Afzal (PW-2) explained their presence at the place of occurrence categorically. We have noted that both the prosecution witnesses namely Naziran Bibi (PW-1) and Muhammad Afzal (PW-2), in a very natural and forthright manner, narrated the occurrence and gave each and every detail of the same. Furthermore, in the incident in issue, the weapon had been used from very close proximity and, thus, it would not be difficult for the complainant party to identify the present appellant who was so closely related to the prosecution witnesses. We have scrutinized the evidence of Naziran Bibi (PW-1) and Muhammad Afzal (PW-2) and find that they proved themselves to be truthful witnesses and implicit reliance can be placed upon their statements. There is no evidence on record that the said witnesses namely Naziran Bibi (PW-1) and Muhammad Afzal (PW-2) were motivated by any enmity to depose against the appellant. As mentioned above, Naziran Bibi (PW-1) was the mother of the deceased namely Shamim Bibi and the mother in-law of the appellant, whereas Muhammad Afzal (PW-2) was the neighbour of the appellant and not related in any manner either to the deceased namely Shamim Bibi or Naziran Bibi (PW-1) and no reason existed prior to the occurrence which could have interested Naziran Bibi (PW-1) and Muhammad Afzal (PW-2) to get the appellant involved in this occurrence falsely and let off the real accused. Both the prosecution witnesses namely Naziran Bibi (PW-1) and Muhammad Afzal (PW-2) were subjected to cross- examination but the defence failed to make cracks in their deposition and the genuineness of their statements has been proved. Moreover during the cross- examination the sequence of the occurrence was brought on record and both

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the prosecution witnesses remained consistent. Hence, in view of the above facts, the prosecution witnesses namely Naziran Bibi (PW-1) and Muhammad Afzal (PW-2) by no stretch of imagination, can be declared as not being present at the place of occurrence. Moreover according to column No.8 of the inquest report (Exh.PJ) relating to the deceased namely Shamim Bibi, at the time of preparation of the same, the mouth and eyes of the deceased were also closed and had the deceased met her death in absence of the witnesses, then her eyes and mouth would not have been found closed. It is correct that it is a tradition in Pakistan that after the death, people immediately close the eyes and mouth of the deceased. Thus, the closed eyes and mouth of the deceased further proves the prosecution's version regarding the presence of the witnesses at the place and time of occurrence. We have also noted that the name of Muhammad Afzal (PW-2) was also mentioned in the column No.4 and at page 4 of the inquest report (Exh.PJ) as prepared by Muhammad Arshad, SI (PW-9), at the place of occurrence. The presence of the witnesses namely Naziran Bibi (PW-1) and Muhammad Afzal (PW-2) at the place of occurrence, at the time of occurrence, stands proved beyond a shadow of doubt. Moreover, there is no such material available on record which would indicate substitution of the appellant in the case with the real culprits.

Substitution is a phenomenon of a rare manifestation because even the interested witnesses would not normally allow real culprits for the murder of their relations let off by involving innocent persons. In this context, reference can usefully be made to the case of “Irshad Ahmad and others v. The State and others” (PLD 1996 SC 138). The appellant namely Sabir Hussain remained unable to establish any animosity of the complainant or the police for his false involvement in the case. Naziran Bibi (PW-1) and Muhammad

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Afzal (PW-2) in a forthright manner, held the appellant namely Sabir Hussain responsible for the murder of Shamim Bibi (deceased), the very own wife of the appellant and the child in her womb.

14.As mentioned above, the occurrence in question had admittedly taken place in broad daylight at 11.00 a.m. and the same, therefore, could not have gone un-witnessed nor could have the culprit escaped unobserved. As it was a broad daylight occurrence and because of the fact that the appellant was known to both the witnesses, the question of his misidentification does not arise. We have also appreciated the fact that the occurrence in this case took place at about 11.00 am on 08.11.2013 and was reported by the complainant namely Naziran Bibi (PW-1) to the police with remarkable promptitude.

Naziran Bibi (PW-1) presented the written application (Exh.P.A.) to Muhammad Arshad SI (PW-9) at 12.15 p.m. on the same day. On the basis of the written application (Exh.PA) of the complainant namely Naziran Bibi (PW-1), the formal F.I.R. (Exh.P.G) was registered at 1.05 p.m by Raess Ahmed SI (PW-6) at the Police Station when the said Police Station was at a distance of as many as 17 kilometres from the place of occurrence. Thus, it is apparent that the formal FIR (Exh.PG) was got lodged with noteworthy swiftness, especially when Naziran Bibi (PW-1), the complainant of the case, had suffered the trauma of the death her pregnant daughter at the hands of the appellant , the tragic husband of Shamim Bibi (deceased). Naziran Bibi (PW- 1), not only named the appellant, but also mentioned each and every minor as well as material fact of the incident in her written application (Exh. PA), which of course excludes the possibility of deliberation or consultation regarding false implication of the appellant in the instant case. The salient features of the occurrence have been elaborately explained in the written

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application (Exh. PA). The promptitude in lodging of the FIR also corroborates the case of the prosecution as against the appellant. This remarkable promptitude in reporting the matter to the police establishes the presence of the witnesses at the place of occurrence, at the time of occurrence and supports their narrative. In this regard, reference is made to the judgment in the case titled as “Muhammad Waris v. The State” (2008 SCMR 784) wherein the august Supreme Court of Pakistan was pleased to observe as under:--

“The names of the said two eye-witnesses could not have been mentioned in such a promptly lodged F.I.R. if they had not been with the deceased persons at the time of their death.”

Reliance is also placed on the case of MUHAMMAD ARSHAD Versus The State (2020 S C M R 2025) wherein it has been held as under:- “There is no denial to this fact that the instant occurrence has taken place in broad daylight in which one person was done to death in a brutal manner whereas 02 women folk were given severe injuries. The crime report was lodged with promptitude, although the inter-se distance between the place of occurrence and the police station is 10-KM. The facts and figures narrated above, rules out any possibility of deliberation and consultation. Further that there is only single accused nominated in the crime report which shows the fairness of the prosecution which normally is against the prevalent custom in our society .”

Reliance is also placed on the case of Noor Sultan and others Versus The State (2021 S C M R 176) wherein it has been held as under:- “The instant occurrence has taken place on 28.02.2020 at 6.15 p.m. while the matter was reported to the police within 2.15 hours whereas inter-se distance between the place of occurrence and police station is 16 kilometers. Promptness in reporting the matter to the police reflect that there is no chance of any consultation or deliberation at the part of prosecution.”

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Reliance is also placed on the case of “Shaheen Ijaz Alias Babu Versus The State” (2021 S C M R 500) wherein it has been held as under:- “ ..........petitioner's nomination in a broad daylight incident by resident witnesses hardly admits a space to entertain any hypothesis of mistaken identity or substitution. Prompt recourse to law straight at the police station excludes every possibility of deliberation or consultation.”’

Reference is also made to the judgment in the case titled as “Muhammad Aslam v. The State” (2012 SCMR 593) wherein the august Supreme Court of Pakistan was pleased to observe as under:--

“F.I.R. in the present case was recorded with a promptitude and in such circumstances prosecution has been able to prove the case against the appellant beyond any shadow of doubt.”

We have also noted that not only the formal F.I.R of the case was registered with promptitude but even the post mortem examination of the deceased was also conducted without any delay. According to the post mortem examination report (Exh.PF), the dead body of the deceased was received at the hospital at 1.00 p.m on 08.11.2013, all the documents necessary were handed over to the Woman Medical Officer at 1.30 p.m on 08.11.2013 and the post mortem examination itself was conducted at 2.00 p.m on 08.11.2013. This fact also proves that the written application (Exh.PA) of Naziran Bibi (PW-1), upon the basis of which the formal F.I.R (Exh.PG) was registered, was a genuine document and was written spontaneously, naturally and contained the true facts, devoid of any manipulation.

15.The medical evidence produced by the prosecution in the case, proves that the deceased namely Shamim Bibi had received the fatal injuries on the vital parts of her body and she succumbed to the said injuries caused by the appellant. The medical evidence fully supports the ocular account. During the

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course of cross-examination the role of the appellant was brought on record further cementing the truthfulness of the statements of the prosecution witnesses namely Naziran Bibi (PW-1) and Muhammad Afzal (PW-2).

During cross-examination Muhammad Afzal (PW-2) explained as under:- “Accused caused injuries on the neck, face and both the elbows of deceased lady.”

Similarly, Naziran Bibi (PW-1), on being cross-examination, stated as under:- “My daughter received injuries on the back side of neck, on her face as well as on her elbow.”

According to Dr. Bushra Tariq ( PW-5), who conducted the post mortem examination of the dead body of the deceased namely Shamim Bibi daughter of Zawar Hussain, she observed a horizontal incised wound of the dimension of 18 cm x 05 cm, encircling the front of neck, going to the right side of neck and back of right side of neck ,cutting the skin muscles, hyoid bone and thyroid/parathyroid and observed another longitudinal incised wound of the dimension of 06 cm x 02 cm present on the left side of the face of the deceased , cutting the left side of upper lip, left nasal nostril and left nasal bone, going up to the inner canthus of left eye and observed another horizontal incised wound of the dimension of 05 cm x 02 cm present on the left cheek and observed another oblique incised wound of the dimension of 03 cm x 02 cm present on left eye brow and observed another longitudinal incised wound of the dimension of 05 cm x 02 cm present on left side of skull and observed another transverse incised wound of the dimension of 04cm x 02 cm present on right side of skull and observed another longitudinal incised wound of the dimension of 05 cm x 02 cm present on the center of back of skull and observed another longitudinal incised wound

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of the dimension of 06 cm x 02 cm present on the left side of back of the skull and observed another longitudinal incised wound of the dimension of 06 cm x 02 cm present on the top of the left shoulder and observed another longitudinal incised wound of the dimension of 05 cm x 01 cm present on the top of the right shoulder and observed another transverse incised wound of the dimension of 04 cm x 02 cm present on dorsal aspect of base of right hand and observed that the left hand wrist joint was completely cut. Dr. Bushra Tariq (PW-5) also opined that the deceased died due to the fact that she had suffered massive, deep cuts on her body which were sufficient in ordinary course of life to cause death. The appellant has been saddled with the responsibility of causing the said fatal injuries to the deceased namely Mst.

Shamim Bibi. In this manner the ocular account is fully verified by the medical evidence available on record. In view of the above discussion, it is ascertained and proved that the intent of the appellant was to cause death and that he is guilty of Qatl-i-Amd of Mst. Shamim Bibi (deceased), his own wife.

16.We have also noted that Dr. Bushra Tariq ( PW-5), while conducting the post mortem examination of the dead body of the deceased namely Shamim Bibi daughter of Zawar Hussain, observed the presence of a dead fetus of 32-34 weeks present in the uterus of the deceased. The appellant has been saddled with the responsibility of causing the death of the said unborn child and the appellant has been convicted and sentenced by the learned trial court for committing the Qatl-i-Amd of the said child. Now the question before this Court is whether to the extent of death of the unborn child facts of the case satisfy the provisions of section 338-B, P.P.C. or section 302 PPC. In order to resolve this it would be advantageous to go through the provisions of section 338-B, P.P.C., which are reproduced here in below:--

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"338-B. Isqat-i-janain. Whoever, causes a woman with a child some of whose limbs or organs have been formed, to miscarry, if such miscarriage is not caused in good faith for the purpose of saving the life of the woman, is said to cause Isqat-i-janain."

Admittedly section 338-B, P.P.C., deals with "Isqat-i-janain", while in the case in hand it is the prosecution version that at the time of death of Mst.

Shamim Bibi, she was having 32-34 weeks old child in her womb, who also died in consequence of injuries sustained by Mst. Shamim Bibi and it resulted into his death. Therefore, the case in hand does not attract the provisions of section 338-B, P.P.C., because as per medical jurisprudence, heartbeat starts after 2 months, while after 180 days (six months) the child becomes mature and in our part of the world, often, even after seven months women give birth to healthy babies. Hence, in this view of the matter it can be ascertained that 'fetus' having remained more than 6 months in the womb of his mother falls within the definition of 'child'. Analogy in this regard can be drawn from Article 128(1) of the Qanun-e-Shahadat Order, 1984, which reads as under:--

"128. Birth during marriage conclusive proof of legitimacy.--(1) The fact that any person was born during the continuance of a valid marriage between the mother and any man and not earlier than the expiration of six lunar months from the date of the marriage, or within two years after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate child of that man..."

From the above provision of the Article 128(1) of the Qanun-e-Shahadat Order, 1984 only inference can be drawn is that after six months of pregnancy, a female can give birth to a child. As far as Islamic concepts on this issue are concerned, from the books of 'Ahadiths' it is established that after 120 days, Allah (Almighty) blows soul into the fetus. In Sahih Al-

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Bukhari, Volume 4, Book 55 at number 549, it finds narrated as under:-- "Narrated Abdullha: Allah's Apostle, the true and truly inspired said, "(as regards your creation), every one of you is collected in the womb of his mother for the first forty days, and then he becomes a clot for an other forty days, and then a piece of flesh for another forty days. Then Allah sends an angle to write four words: He writes his deeds, time of his death, means of his livelihood, and whether he will be wretched or blessed (in religion). Then the soul is breathed into his body....".

In sequel to what has been discussed above we have arrived at an irresistible conclusion that during the occurrence not only Mst. Shamim Bibi lost her life rather a child of 32-34 weeks also met unnatural death and for his death , the appellant has been rightly convicted under section 302(b) PPC.

17.Regarding the recovery of the Dagger (P-4) from the appellant namely Sabir Hussain son of Bashir Ahmad, the same cannot be relied upon as the Investigating Officer of the case did not join any witness of the locality during the recovery of the said Dagger (P-4) from the appellant which was in clear violation of section 103 Code of Criminal Procedure, 1898 and therefore cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and hence hit by the exclusionary rule of evidence. The august Supreme Court of Pakistan in the case of Muhammad Ismail and others Vs. The State ( 2017 SCMR 898) at page 901 has held as under:-

“For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr.P.C. had flagrantly been violated in that regard.”

Additionally, the prosecution produced Muhammad Afzal (PW-2) as a witness of the recovery of the Dagger (P-4) from the appellant, however, Muhammad Afzal (PW-2) during cross-examination stated that nothing was recovered

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from the possession of the appellant in his presence. Muhammad Afzal (PW-

2)during cross-examination stated as under:-

“I joined the investigation. Nothing was recovered from the accused in my presence.”

The above referred portion of cross-examination of Muhammad Afzal (PW-

2)leaves us with no other option but to reject the evidence of recovery of the Dagger (P-4) from the appellant. Another aspect regarding the recovery of the Dagger (P-4) from the appellant is that the occurrence took place on 08.11.2013, whereas the Dagger (P-4) was sent to the office of Punjab Forensic Science Agency, Lahore, on 02.12.2013 and was analyzed on 20.12.2013. During such a long period the blood available on the Dagger (P- 4), if any, would have disintegrated. It is not possible to believe that the blood available on the Dagger (P-4) had not disintegrated by the time the same was analyzed by the Punjab Forensic Science Agency, Lahore and it was, therefore scientifically impossible to detect the origin of the blood. The august Supreme Court of Pakistan in the case of “Faisal Mehmood Vs. The State” (2016 SCMR 2138) has held as under:-

“The report of the Chemical Examiner showing the recovered hatchet to be stained with blood is dated 20.12.2002 whereas the report of the Serologist showing the origin of the blood available on the recovered hatchet to be human blood is dated 25.05.2004. It was scientifically impossible to detect the origin of the blood after about two years of the occurrence because human blood disintegrates in a period of about three weeks.” Therefore, the recovery of the Dagger (P-4) from the appellant does not further the case of prosecution in any manner. In view of the above mentioned facts, the alleged recovery of the Dagger (P-4) is not proved and the same cannot be used as a circumstance against the appellant.

Crl. Appeal No. 699-J of 2018 19

18.The motive of the occurrence, as mentioned by the prosecution witness namely Naziran Bibi (PW-1) was that the appellant was an addict and used to demand money from his deceased wife, however on her refusal he used to torture and subsequently murdered her. We have scrutinized the statements of the prosecution witnesses and find that the motive as alleged could not be proved. It is an admitted fact that at the time of occurrence, the appellant and Mst. Shamim Bibi (deceased) were still putting up with each other. Naziran Bibi (PW-1) admitted that her deceased daughter had been married to the appellant as many as ten years prior to the occurrence. Naziran Bibi (PW-1) further admitted that the appellant had never been arrested in any case related to possession or purchase of any narcotic substance. Naziran Bibi (PW-1) during cross-examination admitted as under:-

“The marriage of my daughter was solemnized with the accused about ten years back.

He was not arrested in any narcotics case.”

Muhammad Arshad, SI, (PW-9) the Investigating Officer of the case, also admitted that there did not exist any record that the appellant was involved in the use,possession or purchase of any narcotic substances or that he was an addict. In order to prove that the appellant was an addict, he could have been examined by any Medical Officer, however, the same was not done.

Muhammad Arshad, SI, (PW-9) the Investigating Officer of the case, admitted during cross-examination as under:-

“The previous criminal record of accused about the narcotics is not in my knowledge nor I collected.

To get confirmation that accused is addict, I had not produce (sic) him before any medical officer for his medical examination.”

Crl. Appeal No. 699-J of 2018 20

Similarly, the prosecution did not produce any evidence to prove that physical abuse and torture was exacted upon the deceased by the appellant.

Muhammad Arshad, SI, (PW-9) the Investigating Officer of the case, admitted during cross-examination as under:-

“There was no application in the police station from the deceased prior to the occurrence that the accused tortured her.”

Even the details of the conversation, which allegedly took place between the appellant and Shamim Bibi (deceased), prior to the occurrence have not been brought on record so as to enable us to reach the conclusion that the motive as narrated by the prosecution witnesses was correct. Furthermore, during the course of investigation the Investigating Officer of the case did not collect any evidence so as to establish that there was any grievance developing in the heart of the appellant as against the deceased which motivated him to act in the manner in which he did . The prosecution witnesses failed to provide evidence enabling us to determine the truthfulness of the motive alleged and the fact that the said motive was so compelling that it could have led the appellant to have committed the Qatl-i-Amd of the deceased namely Mst.

Shamim Bibi and the child in her womb. There is a haunting silence with regard to the minutiae of motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. The august Supreme Court of Pakistan has held in the case of “Muhammad Asif v. The State” (2008 SCMR 1001) as under:

“Coming to motive, no independent witness was produced in whose presence the altercation had taken place between Shafi and appellant at one side and Mazhar Hussain deceased on the other side.”

Crl. Appeal No. 699-J of 2018 21

So, this leads us to the conclusion that the prosecution remained unable to prove the motive as alleged.

19.We have disbelieved the evidence of prosecution qua the motive and recovery of the Dagger (P-4) in this case. However, if the evidence of motive and recovery of the Dagger (P-4) is excluded from consideration, even then there is sufficient incriminating evidence available on the record against the appellant namely Sabir Hussain son of Bashir Ahmad to prove the case of prosecution against him. As discussed earlier, the prosecution case was fully proved through the evidence of the eye-witnesses namely Naziran Bibi (PW-

1)and Muhammad Afzal (PW-2). The said eye-witnesses stood the test of lengthy cross-examination, but their evidence could not be stunned. Their evidence is quite natural, straightforward and confidence inspiring. The ocular account of the prosecution as given by the abovementioned eye-witnesses is fully supported by the medical evidence furnished by Dr. Bushra Tariq (PW- 5), therefore, we hold that the prosecution has proved its case against the appellant namely Sabir Hussain son of Bashir Ahmad beyond the shadow of any doubt.

20.Now coming to the quantum of sentence, we have noted some mitigating circumstances in favour of the appellant namely Sabir Hussain son of Bashir Ahmad, firstly, the evidence of recovery of the Dagger (P-4) from the possession of the appellant namely Sabir Hussain son of Bashir Ahmad has been disbelieved by us for the reason mentioned in Para No.17 of this judgment, secondly the prosecution had alleged a specific motive in this case but failed to prove the same. It is well recognized principle by now that the question of quantum of sentence requires utmost attention and thoughtfulness on the parts of the Courts. In this regard we respectfully refer the case of “Mir

Crl. Appeal No. 699-J of 2018 22

Muhammad alias Miro v. The State” (2009 SCMR 1188) wherein august Supreme Court has held as under:-

"It will not be out of place to emphasize that in criminal cases, the question of quantum of sentence requires utmost care and caution on the parts of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence."

The august Supreme Court of Pakistan has held in the case of “Ansar Ahmad Khan Barki v. The State and another” (1993 SCMR 1660), that the prosecution is bound by law to exclude all possible extenuating circumstances in order to bring the charge home to the accused for the award of normal penalty of death. We are convinced that the appellant namely Sabir Hussain son of Bashir Ahmad, in the peculiar circumstance of this case, deserves consideration to the extent of his sentence one out of two provided under section 302(b) of P.P.C. It is not determinable in this case as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence and elicited such a colossal retort from the appellant, which had resulted into the death of the deceased namely Mst. Shamim Bibi and the child in her womb, therefore, in our view the death sentence awarded to the appellant is quite castigatory .It has been held in number of judgments of the august Supreme Court of Pakistan that if a specific motive has been alleged by the prosecution then it is duty of the prosecution to establish the said motive through cogent and confidence inspiring evidence and non-proof of motive may be considered a mitigating circumstance in favour of the accused. While treating it a case of mitigation, we have fortified our view by a judgment of the august Supreme Court of Pakistan in the case of “Ahmad Nawaz and another v. The State” (2011

Crl. Appeal No. 699-J of 2018 23

SCMR 593), wherein, at page 604, the Hon'ble apex Court of the country has been pleased to lay emphasis as under:-

"10. The recent trend of the courts with regard to the awarding of penalty is evident from several precedents. In the case of Iftikhar-ul-Hassan v. Israr Bashir and another (PLD 2007 SC 111), it was held that "This is settled law that provisions of sections 306 to 308, P.P.C. attracts only in the cases of Qatl-i-amd liable to Qisas under section 302(A), P.P.C. and not in the cases in which sentence for Qatl-i-amd has been awarded as Tazir under section 302(b), P.P.C. The difference of punishment for Qatl- i-amd as Qisas and Tazir provided under sections 302(a) and 302(b), P.P.C. respectively is that in a case of Qisas, Court has no discretion in the matter of sentence whereas in case of Tazir Court may award either of the sentence provided under section 302(b), P.P.C. and exercise of this direction in the case of sentence of Tazir would depend upon the facts and circumstances of the case. There is no cavil to the proposition that an offender is absolved from sentence of death by way of qisas if he is minor at the time of occurrence but in a case in which qisas is not enforceable, the Court in a case of Qatl-i-amd, keeping in view the circumstances of the case, award the offender the punishment of death or imprisonment for life by way of Tazir. The proposition has also been discussed in Ghulam Muretaza v. State (2004 SCMR 4), Faqir Ullah v. Khalil-uz-Zaman (1999 SCMR 2203), Muhammad Akram v. State (2003 SCMR 855) and Abdus Salam v. State (2000 SCMR 338)".

The august Supreme Court of Pakistan has held in the case of “Mst. NAZIA ANWAR v. The State and others” (2018 SCMR 911), while considering the penalty for an act of commission of Qatl-i-amd, as under :- “In these circumstances it is quite obvious to me that the motive asserted by the prosecution had remained utterly unproved. The law is settled by now that if the prosecution asserts a motive but fails to prove the same then such failure on the part of the prosecution may react against a sentence of death passed against a convict on the charge of murder.”

We are also fortified in our view in this regard by the cases of “Nawab Ali v.

The State” (2019 SCMR 2009), “Muhammad Akram alias Akrai v. The State” (2019 SCMR 610), “Iftikhar Mehmood and another v. Qaiser Iftikhar and others” (2011 SCMR 1165), “Muhammad Mumtaz v. The State and another” (2012 SCMR 267), “Muhammad Imran alias Asif v. The State” (2013 SCMR 782), “Sabir Hussain alias Sabri v. The State” (2013 SCMR 1554), “Zeeshan Afzal alias Shani and another v. The State and another” (2013 SCMR 1602), “Naveed alias Needu and others v. The State

Crl. Appeal No. 699-J of 2018 24

and others” (2014 SCMR 1464), “Muhammad Nadeem Waqas and another v. The State” (2014 SCMR 1658), “Muhammad Asif v. Muhammad Akhtar and others” (2016 SCMR 2035), “Qaddan and others v. The State” (2017 SCMR 148) and “Ghulam Murtaza v. The State” (2021 S C M R 149).

21.In the light of above discussion, the conviction of the appellant namely Sabir Hussain son of Bashir Ahmad, as awarded by the learned trial Court through the abovementioned judgment, is maintained but the sentence of death on two counts awarded to the appellant namely Sabir Hussain son of Bashir Ahmad under section 302(b) P.P.C. is altered to imprisonment for life on two counts. The compensation awarded by the learned trial Court under section 544-A of Cr.P.C. and sentence in default thereof are maintained and upheld. The benefit provided under section 382-B of the Code of Criminal Procedure, 1898, is also extended to the appellant namely Sabir Hussain son of Bashir Ahmad. All the sentences of the appellant namely Sabir Hussain son of Bashir Ahmad are ordered to run concurrently. Consequently, with the above said modification in the sentence awarded to the appellant namely Sabir Hussain son of Bashir Ahmad under section 302 (b) PPC, Criminal Appeal No.699-J of 2018, is hereby dismissed.

22.Murder Reference No. 29 of 2018 is answered in Negative and the sentences of death awarded to Sabir Hussain son of Bashir Ahmad, are Not Confirmed.

(MUHAMMAD AMJAD RAFIQ) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Raheel

Approved for Reporting.

JUDGE JUDGE