Muhammad Waheed VS Muhammad Fawad, etc

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT,

ISLAMABAD

CRIMINAL APPEAL NO.16 OF 2020.

Mohammad Waheed Vs.

Muhammad Fawad alias Fahad and others

Appellant by : Raja Muhammad Farooq, Advocate.

Respondents No.1 & 3 by : Mr. Qaiser Imam Choudhry, Advocate. Respondent No.4 : Syed Shahbaz Shah, State Counsel.

Sardar Naeemi, S.I, P.S Kohsar, Islamabad.

Date of Hearing : 24.05.2022.

SAMAN RAFAT IMTIAZ, J. This Criminal Appeal has been filed by the Appellant [Muhammad Waheed s/o Kala Khan] against the Judgment dated 29.07.2019 (“Impugned Judgment”) passed by the learned Sessions Judge (West) Islamabad, whereby the Respondents No.1 and 3 were acquitted from FIR No.264/2017 dated 01.08.2017 registered for the offences under Sections 302/201/109/34 PPC at P.S. Kohsar, Islamabad.

2.The facts of the case, as per the FIR are that the Appellant/Complainant [Muhammad Waheed] is a resident of Mouza Talhar Dhoke Kangrian Tehsil & District Islamabad and works in the Capital Development Authority as a helper. The Appellant/Complainant has three daughters and five sons. His elder daughter Nasrem Shaheen, aged about 20 years, was married to Respondent No.1 [Fawwad Mehmood s/o Muhammad Irshad] resident of Talhar four months ago. The Appellant/Complainant alleged that his daughter complained to him two or three times that her in-laws bother her unjustifiably and physically abuse her. The Appellant/Complainant complained about this to his daughter”s father-in-law, Respondent No.2, namely Muhammad Irshad, who is also the Appellant/Complainant”s maternal uncle and who assured the Appellant/Complainant that no such mistake will be made in the future. However, for the last two or three days the Appellant”s/Complainant”s son-in-law

Criminal Appeal No.16/2020.

tortured his daughter yet again but he overlooked it. On 01.08.2017, the Appellant/Complainant was on duty in F-9, when he received a call from the Respondent No.1 summoning him to urgently come to his house as the Appellant”s/Complainant”s daughter is not well. The Appellant/Complainant informed his wife and children and reached the site at 9:30 a.m. where he found that his daughter had died and after giving last ablution, her dead body was kept in another house. The Appellant”s/Complainant”s mother and sister, Nazrana Bibi and other ladies told him that there were marks on the neck of his daughter. His mother further told him that the daughter had been three months” pregnant. The Appellant/Complainant alleged that the Respondent No.1 murdered his daughter after torturing her whereas the other accused persons i.e, father [of the Respondent No.1] Muhammad Irshad i.e., Respondent No. 2 and brothers of Respondent No.1 namely Muhammad Aftab, Dilshad, Mehtab, etc in consultation with each other concealed the matter and the Respondent No.1 has committed this murder with connivance and collusion.

3.On 04.08.2017, Basharat Ali Shah, Inspector who was the Investigating Officer in this case, arrested Respondent No.2 whereas on the same date the Respondent No. 1 voluntarily appeared in the police station where he was taken under arrest. On 21.09.2017, the IO arrested co-accused Dilshad and on 27.09.2017 he arrested co-accused Mehtab. As pre-arrest bail of Aftab and Respondent No.3 was confirmed so they were deemed to be arrested.

4.The police record shows that initially the Respondent No. 1 sought time to record his statement but on 08-08-2017 he submitted his statement that on the day of occurrence, around 10-11 pm, the Deceased and the Respondent No. 1 were in their room when the Deceased picked a fight with him, which led to a quarrel during which the Deceased used filthy language against the Respondent No. 1 and his family. Despite the Respondent No. 1 reprimanding her, she persisted on account of which he lost his temper and pulled the dupatta (scarf) around her neck tightly. Further that by the time he regained composure, she had died. At this point, he became worried and decided to make it appear like suicide. He broke the bolt without telling anyone and used the said dupatta to bend the wing of the fan. He made a hole in the ceiling and went and lay down in the next room. The next morning, he raised hue and cry that the Deceased had committed

Criminal Appeal No.16/2020.

suicide. He instructed the women in his family to wash the body. The Respondent No. 1 informed the Appellant/Complainant who became suspicious and registered FIR. The Respondent No. 1 further stated that he ran away as he got scared.

5.On 05.01.2018, the Appellant/Complainant implicated Respondent No.3 [Sheeba Bibi] by way of a supplementary statement alleging that subsequent to the filing of the FIR he learnt that the motive for murder was the Respondent No.1”s illicit relations with Respondent No.3 and in this behalf the Appellant/Complainant also submitted photographs which were taken into custody by police vide seizure memo dated 05.01.2018 i.e. Ex.PL which he found through social media. One named, Raja Muhammad Saeed also appeared before the police and made a statement on 05.01.2018 that Respondent No.1 and co-accused, Aftab hatched a conspiracy to murder the Respondent No. 1”s wife, Nasrem Shaheen (hereinafter referred to as the “Deceased”) because Respondent No.1 had relations with other women.

6.On culmination of investigation, final report under Section 173 Cr.P.C., was submitted in the Trial Court on 09.03.2018. The charge was framed against all the accused persons on 06.04.2018. The Respondent No.1 was charged with Sections 302/338-A/201, PPC whereas both Respondents No. 2 and 3 were charged with Sections 109/34 PPC. All the accused persons pleaded “not guilty” and demanded trial. Thereafter the learned Trial Court recorded the evidence of the prosecution whereas statements of the accused persons were also recorded under Section 342 Cr.P.C. The statement of the Respondent No.1 in response to question Nos. 6 to 10 are reproduced hereunder:

Q. No. 6. It is in evidence that on 10.08.2017, during investigation after disclosure you accused led the policy party to the recovery of dopatta (P6) lying in the room of your house which was secured by IO vide a memo Ex-PG. What do you say about it?

Ans. It is incorrect. These are so called proceedings and recovery of dopatta has been planted on me.

Q. No. 7. What do you say about reports of PFSA Ex-PQ & PR?

Ans. As case is false, so these reports cannot be used against me.

Q. No. 8. Why this case against you and why the witnesses have deposed against you?

Criminal Appeal No.16/2020.

Ans. It is an admitted position that the deceased was married to me and there were remain quarrels between both of us. It is also true that these scuffles sometimes reached to physical torture. On the fateful day, deceased was under pressure and depression and mental anxiety. She due to these issues has met to her natural death which is also supported by the version of complainant and medical evidence. There was no other reason for his death however the complainant and his close relatives finding no other ground have booked me in the instant false case. No relation was maintained by me with any other female which has been tried to place on record by the prosecution. Photographs are result of fabrication. I am innocent.

Q. No. 9. Will you produce defense evidence?

Ans. No.

Q. No. 10. Will you appear for statement under section 340 (2) Cr. PC?

Ans. No.

7.After conclusion of the trial, the learned Trial Court acquitted all the accused persons from the charges leveled against them vide the Impugned Judgment. Feeling aggrieved, the Appellant/Complainant filed instant appeal only to the extent of Respondents No.1, 2 and 3.

8.The learned counsel for the Appellant, inter alia, contended that the prosecution evidence shows that the Deceased was a young woman of around 20 years of age who was not suffering from any ailment; that according to the post mortem report there were signs of strangulation around the neck, which in the opinion of the doctor were ante-mortem and possibility of homicide could not be ruled out; that it was nobody”s case that suicide had been committed; that the Histopathological report indicated asphyxia, whereas Toxicology report was also nil indicating all limbs and organ of the bodies as intact with in view of which no other inference can be drawn except culpable homicide yet the learned Trial Court erroneously concluded that the death of the Deceased was by suicide, which has caused grave injustice and as such the Impugned Judgment is liable to be set aside and the Respondents should be brought to justice.

9.The learned State counsel submitted that despite overwhelming evidence available on record, the learned Trial Court has acquitted the Respondents without considering the severity of the offences. It is further contended that the learned Trial Court has passed the Impugned Judgment on the basis of assumption that the Deceased committed suicide, whereas, PW-4 i.e. Dr.

Criminal Appeal No.16/2020.

Durdana Kazmi, who conducted the autopsy of the Deceased stated in evidence that possibility of homicide could not be ruled out.

10.On the other hand, the learned counsel for the Respondents No. 1 and 3 supported the Impugned Judgment and submitted that the prosecution has failed to prove its case. The learned counsel for the Respondents argued that the case is based on circumstantial evidence and the prosecution story is full of contradictions; that the Appellant/Complainant of this case was neither present on the spot nor an eye witness; that the Respondent No.3 has been nominated after a long delay through supplementary statement which has no evidentiary value; that there is no cause of death in the instant case as per medical reports; that the Respondent No. 1 truthfully admitted the bad relations between him and the Deceased for which he should not be penalized; and as such the instant appeal is without merit. He relied upon Wajahat Vs. Gul Daraz, 2019 SCMR 1451 and Muhammad Pervaiz Vs. The State, PLD 2019 SC 592.

11.During pendency of the instant appeal, the Respondent No.2 expired therefore, this appeal stood abated against him as per Order dated 15.02.2022.

12.We have heard the arguments of the learned counsel for the parties and perused the Impugned Judgment as well as the prosecution record.

13.According to the case put up by the Appellant/Complainant/PW-10 the Deceased who was his daughter had complained to him that she had been tortured by her in-laws on two to three occasions. Despite assurances made by the father-in-law of the Deceased that it would not be repeated in the future, the Deceased called the Appellant/Complainant two to three days prior to the occurrence and complained about torture at the hands of her in-laws yet again. He further stated that Respondent No.3 had illicit relations with his son-in-law i.e., the Respondent No. 1 which was the motive for the murder of his daughter, the Deceased by the Respondents. It is noteworthy that no allegation of connivance or instigation was made against the Respondent No.3 despite the charge against her.

14.Raja Muhammad Saeed appearing as PW-12 testified that on 31.07.2017 at about 05:00 p.m., the Respondent No.1 had loudly stated in the presence of the accused persons, Aftab and Muhammad Irshad (brothers of Respondent No.1)

Criminal Appeal No.16/2020.

that he wanted to get rid of his wife.

15.As far as confessional statement allegedly made by the Respondent No.1 before the police is concerned, the Respondent No.1 in his statement under Section 342 Cr.P.C., denied making such confessional statement and in fact attributed the death of the Deceased to natural causes and claimed that recovery of the duppata was planted on him. It is trite law that such statement has no evidentiary value except in the case described in Article 40 of the Qanun-e- Shahdat Order, 1984, which is reproduced herein below:

“40. How much of information received from accused may be proved: When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police- officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”

16.In the instant case, however, we do not find any discovery made by the police in consequence of the statement allegedly made by the Respondent No.1 that would connect him with the commission of the offence. The duppata produced in evidence as Ex.PG which was purportedly discovered on the identification of Respondent No.1 by way of which the Respondent No.1 allegedly strangled the Deceased does not qualify as such evidence as no finger printing was conducted on the duppata and there is nothing in the post-mortem report that would support a finding of strangulation by ligature which aspect is discussed by us in more detail below.

17.It is also not out of place to express our shock at the laxity shown by the Investigating Officer in this case which is reflected not just by his failure to conduct fingerprinting but also from his grave failure to record in the scaled site plan (Ex PC) of the place of occurrence any findings that corroborated the information allegedly disclosed by the Respondent No.1 i.e. broken bolt, bent wing of the fan, and/or hole in the ceiling. Had these features been noted by the Investigating Officer in the site plan perhaps the statement allegedly made by Respondent No.1 in police custody could have been considered as material evidence.

18.In any event the statement does not match the prosecution”s story as contrary to the alleged statement of the Respondent No. 1, the Respondent No. 1

Criminal Appeal No.16/2020.

did not claim that the Deceased committed suicide. Moreover, while PW-12 claimed that he had heard the Respondent No. 1 planning to murder the Deceased along with his brother one day prior to the occurrence, according to the statement attributed to the Respondent No. 1 the murder was committed due to sudden provocation.

19.Even otherwise, an admission is only a relevant fact and not proof by itself. Here we would like to quote the following passage from the case of Muhammad Zahid Vs. The State, 2020 YLR 2018:

“9. Now, we advert to the confession made by the appellant in his statement under section 342, Cr.P.C. In this perspective, we have found that there is considerable difference between confession and admission. The former is regulated by Articles 42 and 43 in particular, of Qanun-e-Shahadat Order, 1984. As the proper procedure was not adopted, therefore, it was incorrectly construed by the learned trial court as confession of the accused. Under the law, it may be treated as an admission of the appellant, however, on the basis of admission, alone, accused person cannot be awarded a capital punishment because admission, as has been defined by Article 30 of the Qanun-e- Shahadat Order, 1984, is only a relevant fact and not a proof by itself, as has been envisaged in Article 43 of the Order, 1984, where a proved, voluntary and true confession alone is held to be a proof against the maker therefore, the learned trial court has fallen in error by treating this halfway admission to be a confession of guilt on the part of the appellant. Therefore, it is held that admission of the appellant cannot be a substitute for a true and voluntary confession, recorded after adopting a due process of law and it cannot be made the sole basis of conviction on a capital charge. Reliance in this regard is placed on "Muhammad Ismail v. The State" (2017 SCMR 713). Besides above, most importantly, needless to mention here that the law is quite settled by now that if the prosecution fails to prove its case against an accused person then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased. Reliance is placed on "Azhar Iqbal v. The State" (2013 SCMR 383), wherein the August Supreme Court of Pakistan while relying upon "Waqar Ahmad v. Shaukat Ali and others" (2006 SCMR 1139) has observed as under:-

"...... it has straightaway been observed by us that both the learned courts below had rejected the version of the prosecution in its entirety and had been proceeded to convict and sentence the appellant on the sole basis of his statement recorded under section 342, Cr.P.C. wherein he had advanced a plea of grave and sudden provocation. It had not been appreciated by the learned courts below that the law is quite settled by now that if the prosecution fails to prove its case against an accused person then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased.....” [Emphasis added].

Criminal Appeal No.16/2020.

20.We therefore, turn to the evidence produced by the prosecution. Since, there is no eye witness in the case the crime is an “unseen occurrence”. We must look toward the medical evidence to establish the cause of death. According to the postmortem report produced as Ex.D/1-3 there were bruises and marks of strangulation on the neck of the Deceased more pronounced on right side with abrasions and desquamation of skin around mark of strangulation which extended from lateral side of neck on right side up to back of right ear and medially up to left ear. Yellowish discoloration and brownish patches on strangulation mark. Bruises on thighs and knees. In the opinion of the doctor expressed therein all the marks of strangulation and bruises were ante-mortem and the possibility of homicide cannot be ruled out.

21.The Medico-Legal question that arises concerning strangulation as per Dr. Jaising P. Modi, in Chapter 20 on “Deaths from Asphyxia” in his book, Medical Jurisprudence and Toxicology, 25th Edition is whether the strangulation was suicidal, homicidal or accidental.

22.Modi (Supra) on page 501 defines “strangulation” as the compression of the neck by a force other than hanging. Various types of strangulation have been listed in the said chapter including “ligature strangulation” and “throttling”, which are more relevant to the facts of the instant case. “Ligature Strangulation” is stated to be a violent form of death, which results from constricting the neck by means of a ligature or by any other means without suspending the body. When constricting is produced by the pressure of the fingers and palms upon the throat, it is called “throttling”.

23.According to the Modi (Supra) on page 502, the external post-mortem appearance on the neck due to ligature strangulation involves a ligature mark which is well defined and slightly depressed mark corresponding roughly to the breath of the ligature usually situated low down in the neck below the thyroid cartilage and encircling the neck horizontally and completely. If fingers are used (throttling), marks of pressure by thumb and the fingertips are usually found on either side of the windpipe. The thumb mark is ordinarily higher and wider on one side of the neck and the finger marks are situated on its other side obliquely downward and outward.

Criminal Appeal No.16/2020.

24.The appearance due to Asphyxia, which is the common cause of death in case of strangulation has been described in Modi (Supra) on page 503 as follows:

“(b) Appearances due to Asphyxia.-The face is puffy and cyanosed, and marked with petechiae. The eyes are prominent and open. In some cases, they may be closed. The conjunctivae are congested and the pupils are dilated. Petechiae are seen in the eyelids and the conjunctivae. The lips are blue. Bloody foam escapes from the mouth and nostrils, and sometimes, pure blood issues from the mouth, nose and ears, especially if great violence has been used. The tongue is often swollen, bruised, protruding and dark in colour, showing patches of extravasation and occasionally bitten by the teeth. There may be evidence of bruising at the back of the neck. The hands are usually clenched. The genital organs may be congested and there may be discharge of urine, faeces and seminal fluid.”

25.As far as the internal post-mortem appearance is concerned, it has been stated in Modi (Supra) on page 506 that the cornua of the hyoid bone may be fractured; the larynx and trachea are congested and contain frothy mucus; the lungs are usually markedly congested showing hemorrhagic patches and petechial and exuding dark fluid blood on section

26.Whereas in the instant case, the postmortem report does not describe any mark encircling the neck horizontally and completely, which would indicate strangulation by ligature as in a “dupatta” which was alleged by the prosecution based on the alleged confessional statement of the Respondent No.1. The postmortem report also does not describe marks of pressure by thumb and finger prints which would indicate strangulation by throttling. Furthermore the postmortem report states that there was no bony injury noted in the x-ray. The larynx and trachea are also reported to be normal

27.The doctor who conducted the post-mortem report and appeared as PW-4 confirmed on cross-examination that she did not find any bleeding from the nose, mouth or ears of the Deceased and that the tongue of the Deceased was normal and there was no swelling or any abnormality nor was there any muscle rupture that was observed during the postmortem examination. Moreover, she confirmed that except on neck, abrasion, bruises, defensive marks or any marks of violence were not present in the upper body parts of the Deceased. She also confirmed that the postmortem report does not mention that any nail of the Deceased was loose. She also confirmed that she did not mention the cause of death especially asphyxia because the body part i.e. walls, ribs and cartilages, pleurae, larynx and

Criminal Appeal No.16/2020.

tracheae, right lung, left lung, pericardium, heart, blood vessels, peritoneum, mouth, pharynx and oesophagus, diaphragm, stomach and is contents, pancreas, small intestines and their contents, large intestine and their contents, liver, spleen, kidneys and bladders were healthy.

28.As may be seen from the above, a number of internal as well as external features which are typical of strangulation by ligature or by throttling are absent in the instant case as per the postmortem report and the testimony of the doctor.

29.In such circumstances, the learned Trial Court concluded that the medical report suggests suicide rather than homicide. At this point we would like to distinguish between suicide caused by hanging and suicide caused by strangulation. We have ruled out the possibility of the former due to the fact that it is not supported by the postmortem report which suggests strangulation, which by definition is by force other than hanging.

30.As far as suicidal strangulation is concerned according to Modi (Supra) on page 509 it is not very common. In these cases, some contrivance is always made to keep the ligature tight after insensibility supervenes. This is done by twisting a cord several times round the neck and then tying a knot, which is usually single and in front or at the side or back of the neck, by twisting a cord tightly by means of a stick, stone or some other solid material, or by tightening the ends of a cord by tying them to the hands or feet or to a peg in a wall or to the leg of bed. In such cases, injuries to the deep structures of the neck and marks of violence on other parts of the body are, as a rule, absent. It is not possible for anyone to continue a firm grasp of the throat after unconsciousness supervenes, hence throttling by the fingers cannot possibly be suicidal.

31.Besides had it been a case of suicide by hanging or strangulation the Respondent No.1 would have taken such stance at trial given that Deceased was admittedly found dead in the Respondent No.1”s house. However, according to the Respondent No. 1”s statement under Section 342 Cr.P.C., the Deceased died due to natural reasons caused by depression and mental anxiety.

32.According to Modi (Supra) on page 509, homicidal strangulation is the most common. The Deceased was admittedly found dead in the house of the Respondent No. 1 who has not explained the circumstances in which the body

Criminal Appeal No.16/2020.

was found. It is also noteworthy that disputes between Respondent No.1 and the Deceased have not been denied. In fact Respondent No.1 categorically admitted in his statement under Section 342 Cr.P.C., that it is true that the quarrels/scuffles between him and the Deceased sometimes reached [the level of] physical torture. This is also the thrust of the prosecution”s case. Therefore, the question really is whether the Deceased died due to strangulation by the Respondents or due to natural causes.

33.As noted above and correctly appreciated by the learned Trial Court, some of the typical features resulting from strangulation are conspicuously missing from the medical report of the Deceased in the absence of which it is difficult to conclude that the Deceased died of strangulation at the hands of the Respondents. Rest assured the tender years of the Deceased and her good health have not escaped our notice. Such factors have been duly considered by this Court which raised the suspicion of her family and understandably so but the above discussion reveals that the medical evidence does not indicate homicide without reasonable doubt and it is trite law that any benefit of doubt must be given to the accused.

34.In the case of Abdul Majeed Vs. The State, 2011 SCMR 941, the Honourable Supreme Court held that strangulation of the appellant's wife in his house may be a circumstance to be taken into account along with the other prosecution evidence. However this by itself would not be sufficient to establish the appellant's guilt in the absence of any other evidence of the prosecution connecting him to the crime and that in the absence of any positive evidence the appellant cannot be convicted on presumption that since the murder of his wife took place in his house it can only be him and no other who had murdered the deceased. The Honourable Supreme Court concluded by stating that conviction and sentence on this single circumstance cannot be sustained in law and the appellant in such case was acquitted.

35.Similarly in the case of Wajahat Vs. Gul Daraz, 2019 SCMR 1451, the Honourable Supreme Court held that:

“Appellant's reticence to satisfactorily explain as to what befell upon his better half under the same roof, though somewhat intriguing, however cannot be equated to qualify as evidentiary certainty, essentially required in order to saddle him with formidable corporal consequences.”

Criminal Appeal No.16/2020.

36.The Honourable Supreme Court in Muhammad Pervaiz Vs. The State, PLD 2019 SC 595 held that:

“Silence or implausible explanation cannot equate with failure within the contemplation of Article 121 of Qanun-e-Shahadat Order, 1984, thus does not absolve the prosecution to drive home the charge by itself on the strength of positive proof. It would be grievously unsafe to convict suspects on presumptions or upon failure to establish their innocence. Possibilities are infinite and do not necessarily include the guilt alone.”

37.For what has been discussed herein above, the prosecution has failed to prove the guilt of the Respondent No.1 beyond a shadow of doubt. In view of the foregoing, there is no evidence of connivance with or instigation by the Respondent No. 3 and as such no case is made out against the Respondent No.3 by the prosecution as per the charge against her. Therefore, the Impugned Judgment is just and proper which does not require interference of this Court as such the instant appeal is dismissed.

(MOHSIN AKHTAR KAYANI) ( SAMAN RAFAT IMTIAZ)

JUDGE JUDGE

Announced in the Open Court on the 24th day of August, 2022.

JUDGE JUDGE

Junaid