2016 PLP 1325 (MLD)

SARDAR AHMED NAEEM, J.

Muhammad Safdar (appellant), accused of case FIR No.80/2010 dated 06.02.2010, under section 302 of the Pakistan Penal Code, 1860, registered at Police Station, City Gojra, District Toba Tek Singh, at the instance of Shoukat Ali, complainant, was tried by the learned Addl. Sessions Judge, Gojra for committing Qatl-i-Amd of Mst. Aysha. At the conclusion of the trial, vide judgment dated 15.06.2011, the appellant was convicted and sentenced as under:-- "under section 302(b), P.P.C. to death with a direction to pay Rs.1,00,000/- to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C., and in case of default of payment thereof, undergo simple imprisonment for six months".

2. The appellant has challenged his conviction and sentence through Criminal Appeal No.1114 of 2011. The learned trial Court has also sent Murder Reference No.272 of 2011, under section 374, Cr.P.C. for confirmation, or otherwise, of death sentence of the appellant. We intend to decide both the matters through this judgment.

3. Prosecution story, as narrated by Shaukat Ali complainant in his complaint Exh.PA, on the basis whereof formal FIR Exh.PA/1 was registered, was that on 06.02.2010 at 2.00 P.M. the appellant committed intentional murder of his wife/complainant's sister, namely, Mst. Aysha Bibi in her house situated in Chak No.298/JB, within the area of Police Station City Gojra, District Toba Tek Singh. The occurrence was witnessed by Muhammad Sarwar and Muhammad Shahid Nadeem PWs. Motive behind the occurrence was that accused always used to chastise his wife for not having any offspring and intended to contract second marriage, therefore, he time and again extended threats to kill her.

4. Muhammad Quresh, SI (PW-10) after getting the case registered on 06.02.2010 on the written application Exh.PA moved by Shoukat Ali complainant, proceeded to the place of occurrence and examined the dead body of Mst. Aysha, prepared injury statement and inquest report. He handed over the dead body along with police papers to Javed Iqbal 802/C for autopsy. He inspected the place of occurrence along with PWs, prepared site plan Exh.PI. After postmortem examination Javed Iqbal 802/C produced before him the last worn clothes of the deceased i.e. Qameez P-1, Shalwar P-2 and Dopatta P-3 along with three sealed jars, which he secured vide recovery memo Exh.PJ. On 12.02.2010, he got non-bailable warrants of arrest of Safdar, accused, and handed over to Muhammad Akhtar 739/C for execution. On 17.02.2010, he obtained the proclamation of Safdar accused. On 18.02.2010, he arrested Safdar accused. On 19.02.2010, he obtained physical remand of the accused. He got confronted both the parties on 20.02.2010. On 21.02.2010, he got sent the accused to judicial lock up. On 22.10.2010, he recorded statements of the Moharrir and Javed Iqbal 802/C with regard to sending of parcels to the office of Chemical Examiner, Punjab, Lahore. On 23.02.2010, he got challaned the accused.

5. Dr. Faiza Kanwal (PW-8), conducted postmortem examination of Mst. Aysha Bibi on 07.02.2010 and found four injuries on her person. Time between injuries and death was immediate and between death and postmortem examination was within 12 to 24 hours. Exh.PC was the correct carbon copy of Postmortem examination report of Mst. Aysha Bibi deceased which was in her handwriting and bore her signatures. Exh.PC/1 and Exh.PC/1-2 were the pictorial diagrams of the seats of injuries which were also in her handwriting and bore her signatures. She also endorsed the injury statement of Mst. Aysha Bibi deceased Exh.PD and inquest report Exh.PE. On receipt of report of Chemical Examiner, Punjab, Lahore Exh.PF, she made her report Exh.PG which was in her handwriting and bore her signatures. According to her findings on report Exh.PG, cause of death in this case was asphyxia due to throttling on account of injuries Nos.1, 2 and 4 which were ante mortem and sufficient to cause death in ordinary course of nature. However, the injury No.3 was also ante mortem in nature but was insufficient to cause death.

6. Learned trial court after receipt of the challan, formulated charge sheet against the appellant on 31.03.2010, under section 302, P.P.C., to which he pleaded not guilty and claimed to be tried.

7. In order to prove its case against the appellant, prosecution produced ten (10) witnesses in all. Muhammad Sarwar (PW-6) and Shahid Nadeem (PW-7) furnished the ocular account of the occurrence. Zahid Mahmood ASI, PW.2 on receipt of complaint Exh.PA recorded formal FIR Exh.PA/1. Javed Iqbal 802/C (PW.3) deposited the three sealed parcels said to contain three boxes and three envelopes in the office of Chemical Examiner, Lahore. Mian Muhammad Rafiq, Draftsman (PW.4) prepared the scaled site-plan Exh.PB and Exh.PB/1 of the place of occurrence. Shoukat Ali PW.5 reiterated the contents of his complaint Exh.PA. Muhammad Quresh, SI (PW-10) investigated the case, who has already been discussed above. Dr. Faiza Kanwal (PW-8), as discussed above, performed autopsy of the deceased, namely Mst. Ayesha Bibi. Rest of the witnesses are formal in nature, therefore, need not be discussed. Learned DDPP after tendering in evidence attested copy of report of Forensic Histopathologist Exh.PK closed the prosecution evidence.

8. At the close of prosecution evidence, Muhammad Safdar (appellant) was examined under section 342, Cr.P.C. wherein he refuted the prosecution evidence and pleaded innocence. While responding to question No.10 "Why this case against you and why the PWs have deposed against you" he replied in the following manner:-- " The complainant is real brother of Mst. Asia Bibi alias Aysha deceased. From Dubai, I sent money for my wife, who was living at Faisalabad with her parents, through complainant and he misappropriated the said money and to avoid the explanation regarding said money he changed the natural death of my wife Mst. Asia Bibi alias Aysha into a murder with the connivance of local police and doctor. The other witnesses of the alleged occurrence are also his behnoi and real brother who are under the influence of the complainant. No independent witness from the vicinity of occurrence has deposed against me or about the alleged motive of the occurrence" The appellant neither made his statement on oath under section 340 (2) Cr.P.C. nor opted to produce any defence evidence.

9. Learned counsel for the appellant argued that the ocular account does not inspire confidence as both the witnesses are interested and has reason to depose falsely against the appellant. It was submitted that the prosecution evidence is contradictory and that ocular account is at variance with the medical evidence in this case. He argued that the evidence regarding existence of motive was very weak and although the occurrence had taken place within the house of the appellant but no independent witness was cited or produced by the prosecution and that the PWs examined in this case are closely related to each other and were chance witnesses. Learned counsel further contended that it was unseen occurrence and that the conduct of the eye-witnesses was un-natural. The eye-witnesses were real uncle and behnoi of the deceased but they did not intercept the appellant till the completion of the incident, in particular, when he was empty handed and physically weaker than the eye-witnesses, which makes the story of the prosecution improbable. Learned counsel bitterly criticized that no cause of death was mentioned by the Medical Officer at the time of postmortem examination and then, death was found to be a result of strangulation/asphyxia prior to report of Histopathologist and that the Medical Officer found all the injuries sustained by the deceased as ante-mortem, after considerable time of the postmortem examination, which belies the story of the prosecution. The defence version if taken into juxtaposition appears to be reasonable/probable; that the motive in this case was not proved and the prosecution failed to prove its case beyond reasonable doubt against the appellant, thus, he was entitled to acquittal. In support of above contentions, learned counsel relied upon "Abdul Majeed v. The State" (2011 SCMR 941), "Saeed Ahmad v. The State" (2015 SCMR 710), "Ali Sher v. The State" (2015 SCMR 142), "Muhammad Rafique v. The State" (2014 SCMR 1698) "Muhammad Ashraf v. The State" (2012 SCMR 419) and "Abid Ali and 2 others v. The State" (2011 SCMR 208).

10. Learned District Public Prosecutor assisted by the learned counsel for the complainant submitted that the witnesses for the prosecution have no personal animosity with the appellant to falsely implicate him; that all the witnesses are natural witnesses being close relative of the deceased inside the house of the appellant and that their evidence cannot be discarded merely on the basis of their relationship with the deceased/inter-se; that the medical evidence corroborated the prosecution version; that the medical evidence was never challenged in cross-examination; that it was a daylight occurrence, parties were closely related to each other, thus, there was no question of mis-identity; that it was a single accused and substitution in such like cases is a real phenomenon; that the discrepancies pointed out by the learned defence counsel were minor in nature; that the defence was not able to demolish the prosecution case and the witnesses firmly withstood the test of cross examination; that the prosecution proved its case against the appellant beyond reasonable doubt and that he deserves normal penalty of death as provided under the law

11. We have heard the learned counsel for the contending parties and gone through the record of the case.

12. The question as to the cause of death was central in this case, as argued by the learned counsel for the appellant. Did the victim die as a result of throttling caused by the appellant? He bitterly criticized the Postmortem report with specific reference to its contents and statement of the Medical Officer. The postmortem report Exh.PC is silent about the cause of death. In order to determine the cause of death in this case, the following points deserve consideration:-- i) The statement of the Medical Officer/contents of the postmortem report. ii) The symptoms regarding asphyxia, if any, observed by the Medical Officer. iii) The final opinion of the Medical Officer about cause of death based on the report of Chemical Examiner four months prior to the report of Histopathologist, in particular, when she had not declared the injuries as ante-mortem in the postmortem report. As mentioned above, the postmortem report is silent about cause of death. However, Dr. Faiza Kanwal (PW.8) while relying upon the report of Chemical Examiner (Exh.PF) opined that the cause of death in this case was asphyxia due to throttling and due to injuries Nos.1, 2 and 4 ante-mortem in nature. Asphyxia Asphyxia or asphyxiation from Ancient Greek a "without" and sphyxis, "squeeze" is a condition of severely deficient supply of oxygen to the body that arises from abnormal breathing. Asphyxia is something that many people died of throughout the world and it is something that many people think simply the act of suffocation or smothering a victim until he can no longer breathe. Asphyxiation is defined as hypoxia/anoxia that is caused when respiratory function is hampered by interference with the mechanics of breathing. In this case, the deceased died of strangulation/throttling. Strangulation Strangulation is defined as form of asphyxia (lack of oxygen) characterized by closure of blood vessels/or air passages of neck as a result of external pressure on the neck. Manual Strangulation (throttling) is usually done with the hands. Neck anatomy A rudimentary knowledge of neck anatomy is critical in order to understand adequately the clinical features of strangled victim. The hyoid bone a small horseshoe shaped bone in the neck helps to support the tongue. The larynx, made up of cartilage, not bone, consist of two parts: the thyroid cartilage and the tracheal rings. Carotids are the major vessels that transport oxygenated blood from the heart and lungs to the brain. These are the arteries at the side of the neck that persons administering CPR (cardio-pulmonary resuscitation) check for pulses. Jugular veins are the major vessels that transport deoxygenated blood from the brain back to the heart. The general clinical sequence of a victim who is being strangled is one of severe pain followed by unconsciousness, followed by brain death. The victim will lose consciousness by any one or all of the following:- i. Blocking of the carotid arteries (depriving the brain of oxygen); ii. Blocking of the jugular veins (preventing deoxygenated blood from exiting the brain;) and iii. Closing off the airway, causing the victim to be unable to breathe. Visible injuries to the neck include scratches, abrasion and scrapes. These may be from the victim's own fingernails as a defensive maneuver, but commonly are a combination of lesions caused by both the victim and the assailant fingernails. Lesion location varies depending on whether the victim or assailant used one or two hands and whether the assailant strangled the victim from the front or back. Three types of fingernail marking may occur, singly or in combination: impression, scratch, or claw marks. Chin abrasions are also common in victims of manual strangulation as the victim lowers the chin in an instinctive effort to protect the neck and in so doing, scrapes the chin against the assailant's hands. We wish the expert would have been forthright in her view in regard to the cause of death. A different conclusion was required to be arrived at keeping in view the fact that a large number of symptoms were absent which ordinarily point out to the cause of death of asphyxia by throttling. Even, the prosecution failed to furnish the following details:-- i. Whether deceased was strangled with one or two hands? Forearms? ii. How long did the accused strangled the deceased? iii. How many time and how many different methods were used to strangled the deceased? iv. Was the deceased thrown against the wall, floor or ground? v. How much pressure or how hard was the grip? vi. Did the deceased have difficult breathing? and vii. Did the deceased attempt to protect herself? In view of the above it is not proved by the prosecution that the deceased met the un-natural death as result of strangulation. Admittedly, the postmortem examination of the deceased was conducted; however, the nature of the injuries and cause of death was not mentioned in the said report. The defence taking the benefit of the same had agitated that Mst. Aysha did not meet violent death. However, the fact that she died on 06.02.2010 is not disputed. It is well settled law that medical examination/postmortem examination of a deceased is made for limited purposes only to corroborate and support the substantive /circumstantial evidence. Failure to conduct postmortem/medical examination of the deceased would not allow to disbelieve that the deceased died natural death. Respectful reliance can be placed on case titled "Abdur Rehman v. The State" (1998 SCMR 1778). In another case titled "Riaz Masih alias Bhola v. The State" (2001 YLR 279) where there was contradiction between medical and ocular account, it was held that the ocular testimony is to be preferred over medical evidence and that if ocular account proves the injuries and the unnatural death, the same cannot be brushed aside only because the medical examination/postmortem examination was not conducted. Assuming that postmortem examination was not conducted in the instant case, therefore, we decided to undertake the exercise to evaluate the ocular account furnished by PWs Muhammad Sarwar (PW-6) and Shahid Nadeem (PW-7) at trial.

13. The incident in the present case took place on 06.02.2010 at about 2.00 p.m inside the house of the appellant situated within the area of Chak No.298-JB Tehsil Gojra, District Toba Tek Singh. The distance between the place of occurrence and Police Station was two kilometer. The FIR Exh.PA/I was registered at the instance of Shoukat Ali, the real brother of the deceased. However, he was not the eye-witness and was informed regarding this occurrence by Muhammad Sarwar PW.6 and Muhammad Shahid Nadeem PW.7. They were sent to the house of the deceased by the complainant so that they could resolve the dispute between the appellant and the deceased. The eye-witnesses, at trial, deposed that on 06.02.2010, they reached in the house of the deceased at about 11.00 a.m and beseeched the appellant that the deceased may not be teased and then, at 2.00 p.m., the appellant had altercation with the deceased and strangulated her to death. The place of occurrence was a residential room of the house of the deceased. They raised hue and cry and informed the complainant telephonically regarding this occurrence and upon his arrival, the proceedings in this case were initiated. The eye-witnesses were in unison that they were healthy/energetic than the appellant but they did nothing to save the life of the deceased, though, Muhammad Shahid Nadeem PW.7 claimed to have intervened/ intercepted to save her from the clutches of the appellant. There was no hurdle in their way. They all were present/sitting in the same room. What prevented both the eye-witnesses not to move forward to rescue the deceased, in particular, when the appellant was empty handed or they only had gone to the place of occurrence just to witness the incident. If it is believed that the appellant said in their presence that he would murder the deceased, it was not difficult for him to eliminate her, in their absence, any time as she was living with him. How did the appellant run away from the place of occurrence and why did the witnesses allow him to leave the place of occurrence was also a question mark. They have not offered any resistance to the appellant to save the life of the deceased, which is un-natural/unusual. If they had seen the incident, matter should have been reported to the police with reasonable promptitude. They informed the complainant telephonically and the FIR was registered upon his arrival, which suggests consultation/deliberation. No independent witness was examined by the prosecution during trial. Admittedly, the occurrence took place inside the house of the appellant and witnesses being closely related to the complainant and being inmates of the house/family members of the deceased were the best witnesses but their evidence finds no corroboration from the material available on record. Either they have not seen the occurrence or they came to the crime scene after having information of the incident or the occurrence took place in a different mode as claimed by the prosecution. No doubt, the dead body of the deceased was seized from the house of the appellant but this alone would not show that the deceased was killed by him. It was a case of manual strangulation and thus, there was no recovery. Regarding motive, it was mentioned in Exh.PA that the appellant intended to contract second marriage as the deceased was issueless, however, no information was provided regarding the lady with whom he intended to get married even her name was not mentioned by any of the witness during trial and thus, motive as set up by the prosecution was not proved.

14. As a result of the observations made above, we have come to the conclusion that the prosecution has failed to bring home the guilt to the appellant beyond any shadow of doubt and that the learned trial Court was not justified in convicting him. We, accordingly, accept the appeal and set aside the conviction and sentence by acquitting the appellant. He be released forthwith, if not required in any other criminal case.

15. The Murder Reference is answered in the Negative and death sentence is not confirmed. SL/M-357/L Appeal allowed.