2012 P Cr (PLP)

MUHAMMAD AZIM KHAN AFRIDI, J.

Muhammad Yaqoob son of Faqeer Muhammad resident of Chontra, Tehsil and District Rawalpindi, complainant, hereinafter referred to as the appellant has preferred the instant appeal under section 417-(A)(2), Cr.P.C. against judgment dated 18-9-2008 vide which learned Addl. Sessions Judge, Islamabad, acquitted accused Allah Rakha son of Bashir Ahmed, Muhammad Yasin son of Allah Rakha, Mst. Shabana Bibi alias Rani wife of Allah Rakha and Tanvir Ahmad son of Kifayat Ali, hereinafter referred to as respondents/accused in criminal case registered under section 302/34, P.P.C. vide F.I.R. No.516, dated 17-12-2007 at Police Station Shahzad Town, Islamabad. 2.???????? Brief facts of the case registered vide F.I.R. referred to above are that Mst. Sidra daughter of appellant was married to respondent No.2/accused Muhammad Yasin. After the said marriage, accused Muhammad Yasin and his family members used to quarrel with her. 3.???????? It was on 16-12-2007 when the appellant, at about 11-00 p.m., made a phone call to her daughter Mst. Sidra who, while weeping, informed the appellant that she was mercilessly beaten by her husband, Muhammad? Yasin, accused Allah Rakha, her father-in-law, accused Mst. Shabana Bibi alias Rani, her mother-in-law and accused Tanvir Ahmed maternal uncle of her husband. The complainant, while consoling her during phone call, promised to visit her in the morning. That on the subsequent date, at about 6-00 a.m., another son-in-law of the appellant, conveyed the death news of complainant's daughter. The appellant, on the basis of the said information, reached to the house of the respondents/accused and found the dead body of her daughter Mst. Sidra lying in a bed and a piece of cloth hanging from a ceiling fan. The appellant informed the police and charged the respondents/accused for the murder of her daughter. 4.???????? After registration of criminal case vide F.I.R. referred to above, copy Exh.P.112, investigation was carried out. After completion of investigation, final report was submitted to the Court for trial. Respondent No.2/accused Muhammad Yasin faced trial in custody, while other accused were on bail during the sessions trial. 5.???????? The prosecution, during trial, examined as many as 17 witnesses whereafter the prosecution closed its evidence, whereafter, statements of accused were recorded. 6.???????? After hearing arguments of learned counsel for the parties, the learned? Additional? Sessions? Judge,? Islamabad,? vide? judgment? dated 18-9-2008,? acquitted? the? accused by? extending? them? the? benefit? of doubt. 7.???????? Dissatisfied? with? the? findings? of? the? learned Additional? Sessions Judge, appellant has preferred the instant criminal appeal under section 417-(A)(2), Cr.P.C. 8.???????? Learned counsel for the appellant has argued that there is no direct evidence of the occurrence. That the case of the prosecution is based on circumstantial evidence i.e. F.I.R., Medical Evidence, Motive and Statements of Accused. That strained relations between the deceased. Mst. Sidra and her husband accused Muhammad Yasin and co-accused are established from the record. That accused Muhammad Yasin, in response to question No.5 in his statement recorded under section 342, Cr.P.C., has given evasive reply and has not specifically denied the charge of strangulation. That the medical evidence clearly suggests that the occurrence was the result of strangulation. That the alleged writing attributed to the deceased on the piece of tissue paper box was an attempt of misleading the investigating agency and that the same was not satisfactorily proved to be the handwriting of the deceased. That the application of accused Muhammad Yasin, given to SHO, is also suggestive of the commission of offence of Qatl-e-amd of the deceased Mst. Sidra by the accused. That in such circumstances, the learned trial Court has failed to appreciate the case of the prosecution in its true perspective and committed material irregularity and illegality by acquitting the respondents/accused. That the respondents/accused deserve exemplary punishment as such offences had direct bearings and impacts on the society. 9.???????? Learned counsel representing the respondents/accused has argued that the prosecution has failed to establish any charge against the accused beyond any shadow of doubt. That there was no direct evidence of the occurrence. That the evidence collected by the prosecution and produced before the Court was neither confidence-inspiring nor worth reliance. That respondent No.1/accused Allah Rakha and his wife respondent No.3/accused Mst. Shabana Bibi alias Rani are residing in a separate house located at considerable distance while respondent No.4/accused Tanvir Ahmed resides at Rawalpindi. That no marks of violence? were? ever? observed? on the?? corpse? of? Mst.? Sidra.? That neither motive for committing the said murder was in existence nor established. That the deceased was annoyed with the attitude and behaviour of her father. That the writing of the deceased Mst. Sidra on tissue paper box stood established to be with her own hand. That no occasion for recording conviction, in circumstances of the case, would therefore arise. 10.?????? Reliance was placed on case law reported in 2007 SCMR 1427 and 2010 PCr.LJ 1027. 11.?????? We have heard the arguments of the learned counsel for the parties and perused the record. 12.?????? As per version of prosecution, depicting from application Exh.P.H. and F.I.R. Exh.P.H/2, marriage of Mst. Sidra deceased was solemnized with accused Muhammad Yasin about seven months prior to the occurrence. Parents of accused Muhammad Yasin allegedly used to quarrel with Mst. Sidra deceased and, during the rows, used to beat her as well. It was on 29th of Ramzan-ul-Mubarik when the deceased and her husband accused Muhammad Yasin visited the house of the complainant for celebrating Eid. Respondent No.3/accused, (mother of accused Muhammad Yasin), on telephonic call, threatened the couple to stay in the house of complainant, else, on return, they would be slayed. The complainant, after Eid, allegedly visited the parents of accused Muhammad Yasin and requested them to shun quarrelling with children which request was allegedly dishonoured. Thereafter, the deceased and her husband Muhammad Yasin started living in a separate rented out. Afterwards, Muhammad Yasin resumed relations with his parents and also asked his wife Mst. Sidra to visit his parents at Saidpur. That during the said visit deceased Mst. Sidra was beaten by respondents Nos.1, 3 and 4, i.e. accused Allah Rakha Mst. Shabana alias Rani and Tanvir Ahmed and was expelled from the house as well. 13.?????? In? view? of? the? afore-stated affairs and incidences, death of Mst. Sidra, daughter of appellant was estimated and evaluated as homicide and a criminal case was registered against respondents/accused vide F.I.R. referred to above. 14.?????? To appreciate the case of the appellant/complainant in the mode and manners argued by the learned counsel for the appellant, points for determination i.e. First Information report (F.I.R.), Medical Evidence, Motive and Statement of Accused Muhammad Yasin are distinctly taken into account for just decision of the instant criminal appeal. First Information Report: 15.?????? Narrations recorded in the F.I.R., Exh.P.H/2 need not be reproduced herein in toto except the vital and essential description of the same which runs as under:-- 16.?????? The afore-stated narration of F.I.R. would clearly indicate that the appellant, while lodging the report and charging the respondents/accused for murder of his daughter, recognized, acknowledged and categorized the method, process and procedure adopted in the alleged murder of her daughter as "hanging". Medical Evidence 17.?????? Learned counsel for the appellant has referred to Chapter 18 of Modi's Medical Jurisprudence wherein deaths from asphyxia are classified as deaths due to hanging, strangulation, suffocation and drowning.? Learned? counsel? for? the? appellant? has? argued? that the death of Mst. Sidra deceased was the result of strangulation as, according? to? medical? evidence? and? statement? of? Lady? Doctor Raheela? Akhtar? P.W.3,? cervical? vertebra? was? not? fractured? which, according? to? learned? counsel,? could? not? remain? intact? in? case? of hanging. 18.?????? Arguments of the learned counsel for appellant are not forceful as hanging by itself is a form of death produced by suspending the body with a ligature round the neck and the constricting force being the weight of the body or a part of the body weight, while strangulation is compression of the neck by a force other than hanging and weight of the body plays no constricting role in the process. One line cross-examination of Lady Doctor Raheela Akthar (P.W.3) would suggest that the marks apparent on the dead body suggest suicide. Appellant Muhammad Yaqoob, examined as P.W.8, stated in the examination-in-chief that he informed police that accused present before the Court committed murder of his daughter. In the cross-examination, he, while responding to a question, voluntarily deposed that she was murdered by strangulation. 19.?????? The form of death i.e. murder by strangulation neither finds support from the record of the case nor the appellant, at the very first instance, at the time of lodging the report, has stated so in his application Exh.P.H. or F.I.R. Exh.P.H/2 where he has described the said murder as homicide by hanging. 20.?????? It is thus crystal clear that the charge against the respondents/accused, at the first instance, was murder of Mst. Sidra deceased by way of hanging as such, the subsequent changed stance of the appellant, a turn over from the original position, cannot be legally taken into account. 21.?????? Fracture? of? cervical? vertebra? may? not? necessarily? occur? in each? and? every? case? of hanging? as,? apart? from? body? weight,? other factors? such? as? jerk? and? jolt,? span? between? starting? and? suspension point, pliability of ligature may also play vital role in the process. Fracture of collar bone or its dislocation cannot be therefore considered essential pre?requisites for defining a death emerging from hanging. 22.?????? Other? circumstantial? evidence? such? as? alleged? writing? of Mst.? Sidra? deceased? on? a? tissue paper?? box? has? also? negated the? version? of? the appellant. The said writings were analyzed by the Handwriting? Expert? and? as? per? his? report,? Exh.P.F,? the said writing? was? found? matching? with? previous? handwriting? of the deceased. The writing of Mst. Sidra deceased on the tissue paper Exh.P.F and Exh.P.F.1 verified by expert is of the following description. 23.?????? The assertion of appellant in first information report, writing of Mst. Sidra deceased, referred, to above and medical evidence do not substantiate the allegations of appellant that his daughter was murdered by way of strangulation. 24.?????? Prerequisites for believing circumstantial evidence would, inter alia, include non-existence of direct evidence and availability of indirect evidence establishing link or chain or nexus between the crime and the criminal. Events not creating or developing continuous and subsisting chain and connection between the crime and person accused for the crime would stay and qualify as unsubstantiated circumstantial evidence. Needless to mention that unproven or uncorroborated circumstantial evidence cannot be made basis for recording conviction. Additionally, jurisprudential rule of benefit of doubt or requirement of proof of facts beyond any shadow of doubt is to be given due weight in cases of circumstantial evidence and the said rule cannot be legally ignored, overlooked or by-passed while assessing culpability on the basis of circumstantial evidence. Motive 25.?????? Evidence collected during investigation and produced before the trial court would suggest that accused Muhammad Yasin son of respondents Nos.1 and 3/co-accused were having strained and worse relations; as according to application of accused Muhammad Yasin, Exh.PF.5, his parents were not in good terms with accused Muhammad Yasin and his wife Mst. Sidra deceased. Narrations in application Exh.P.H and first information report, Exh.P.H/2 would also suggest that relations between the spouses were not hostile and averse and strained and that, at the most, relations between Mst. Sidra deceased and parents of her husband could be termed as strained and averse. It is also suggestive of the evidence that the Mst. Sidra deceased and respondent No.2/accused Muhammad Yasin were living in a separate house. There is no evidence on record to observe that the said accused/respondents Nos.1, 3 and 4 were present in the house of accused Muhammad Yasin on the eventful night. Thus, the alleged strained relations between the family members of the husband of the deceased and that of the deceased had not been satisfactorily established to have played any invasive and culpable role in the alleged murder of Mst. Sidra deceased. In the absence of any evidence, direct or circumstantial, establishing the presence of the said respondents/accused in the house of accused Muhammad Yasin, the alleged motive may not be of any significance so far as the alleged murder of the Mst. Sidra deceased is concerned. Statement of accused 26.?????? During? the statement of accused Muhammad Yasin under section 342, Cr.P.C. question No.5 was put to him in the following manner. Q.No.5:--It is in the evidence that you accused along with your co-accused? in? consultation? of? your? co-accused? in? the? night of 16-12/17-12-2007, committed Qatl-e-amd of Mst. Sidra, by strangulation,? in? a? room? where? she? was? residing? along? with you accused Yasin, you accused persons kept deadbody of Mst. Sidra, on bed and tied a piece of cloth with ceiling fan to pretend? that? she? has? committed? suicide.? What? you? have? to say about it? 27.?????? The said question was answered by accused Muhammad Yasin in the following words:-- "Due to harsh attitude of her father Mst. Sidra committed suicide. Father of Mst. Sidra, took an oath that she would never visit house of my parents but she visited house of my parents due to their good relations. We slept at night and I was in deep sleep and when I awoke up, she was hanging with ceiling fan and had committed suicide due to harsh attitude of her father. As deceased was my wife, so on humanitarian grounds I opened the cloth from her neck and kept her deadbody on the bed." 28.?????? The answer offered by accused Muhammad Yasin to the question, by no stretch of imagination, can be considered or construed as concealment or avoidance of answer to the allegations and charge of strangulation. The said question would rather suggest that role attributed to other accused was that of consultation which has diminished and weakened the stance of playing active role by co-accused, in the alleged strangulation of the Mst. Sidra deceased. 29.?????? Circumstantial evidence collected by prosecution during investigation and produced before the trial Court, during trial, does not establish beyond shadow of doubts charge of strangulation nor connect any? of? the? respondents/accused? with? the? alleged? crime? of? murder? of Mst. Sidra deceased by strangulation. 30.?????? The prosecution, during the trial, has failed to produce any tangible and confidence-inspiring evidence. The trial Court, while acquitting the respondents/accused has taken into account and appreciated each and every aspect of the case in its true perspective and acquittal of respondents/accused had been ordered by the learned trial Court by offering cogent reasons and correctly disbelieving the version of prosecution. The learned trial Court, while doing so has committed no illegality or irregularity warranting interference in appeal. 31.?????? For the reasons recorded above, we do not find any substance in the appeal. We would, while maintaining the judgment of acquittal dated 18-9-2008, passed by learned Additional Sessions Judge, Islamabad, dismiss the instant criminal appeal against the same. HBT/120/ISL.????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.