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Petitioner: NADEEM ABBAS VS Respondent: State
2017 P Cr. L J 1669 [Gilgit-Baltistan Chief Court] Before Malik Haq Nawaz, Muhammad Alam and Wazir Shakeel Ahmad, JJ NADEEM ABBAS and 2 others---Appellants Versus The STATE---Respondent Cr. Appeals Nos. 26, 33 of 2011 and 1 of 2012, decided on 20th October, 2016. Per Malik Haq Nawaz J, agreeing with Wazir Shakeel Ahmad, J on difference of opinion between Wazir Shakeel Ahmed and Muhammad Alam, JJ [Majority view] (a) Penal Code (XLV of 1860)--- ----Ss.302, 34 & 376---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Qatl-i-amd, common intention, rape, act of terrorism---Appreciation of evidence---Benefit of doubt---Occurrence in the case was an unseen one devoid of the presence of any eye-witness---Prosecution version was that deceased while being unconscious was raped by accused, but the negative report of Pathologist regarding the presence of spermatozoa in the vaginal swabs of the deceased belied the prosecution version---Medical team was bound to unearth the cause of death and to come up with accurate and credible findings in that regard, but the exhumation report revealed that the same had been done in a routine manner---None of the quoted methods had been applied to dig out the truth nor there existed a finding that the employment of said methods was either not possible or there were any sort of impediments in doing so---Evidence adduced by the prosecution was barren to such an extent that it was quite incapable of germinating the seed of conviction in any manner---Motive as alleged by the prosecution saw the light of the day only after accused persons made confessional statements recorded under S.21-H of Anti-Terrorism Act, 1997---If for the sake of argument, the confessional statements of accused persons were considered to be correct despite their legal infirmity, even then same were not probative enough to yield positive results for the prosecution---"Memory Card", which laid the foundation of whole transaction, neither was recovered from accused nor any evidence was put forth by the prosecution regarding the fate of said memory card---Mortar which could have been used to erect the superstructure of prosecution's case turned into rubbles because of the happy go lucky behaviour shown with respect to the collection of corroboratory evidence by both the Investigating Officers---Venue of occurrence as depicted in the site plan, negated prosecution version---Dining hall where the deceased was allegedly hanged was adjacent to the sleeping room where all the under-training nurses, who were fourteen in number used to sleep---Testimony of prosecution witness was of vital importance since it unraveled a number of mysterious knots of the controversy---No last seen evidence was available which could even remotely suggest that the deceased was either rang up or taken out by co-accused---Chronological sequence of certain happenings which occurred during the course of investigation and the recoveries effected, also had a telling effect on the prosecution case---Recovery of pillow; was also of no avail to the prosecution case---If the same was taken to be the weapon of offence, the exhumation report by virtue of which the Medical Board found ligature marks, dashed down to the ground, because ligature could be anything used to compress the throat to block the air supply---Evidence of extra-judicial confession also cut a sorry figure with respect to the case of prosecution---Prosecution which was supposed to prove its case up to the hilt beyond any shadow of doubt, had failed to do so---Thick mist of doubt was looming over the prosecution case---No reliance could be placed on the evidence produced by the prosecution---All accused persons were acquitted of the charge extending them benefit of doubt and they were ordered to be released forthwith, in circumstances. 2006 SCMR 231 ref. (b) Penal Code (XLV of 1860)--- ----S. 302---Medical report and medical evidence---Scope---What exactly could be expected from medical report, was generally the time, nature and cause of death, injuries on some body's person, their age, creed and intensity, the medical condition of various body organs at the time of examination; but it never would point towards the assailant---Medical evidence would only gain importance where along with other corroborative incriminating evidence, it would weave the rope of the noose supposed to fit the neck of accused. (c) Criminal Procedure Code (V of 1898)--- ----S. 167---Remand proceedings---Magistrate regulating the remand proceedings, had to be very cautious in granting or refusing remand---Order of Magistrate, in either way was to be supported with logical and legal reasoning---Any mistake committed by Magistrate, could have serious ramification and same could change the countenance of either the prosecution or the defence case that too in a perverse manner---Duty would become almost sacred when the question was that of remand of accused or as committed to judicial lock up. 1984 PCr.LJ 2588 and PLD 2001 SC 607 ref. (d) Criminal trial--- ----Benefit of doubt---Benefit of every doubt would tend to tilt the balance of justice in favour of accused, but where the same was occasioned owing to the inefficiency of Investigating Officer, or where the same seeped in a verdict because of below the mark proceedings conducted by the Police personnel, it would become all the more pinching and heart rendering for the Court, specially where the record screamed out that the doubt pulling faces to the aggrieved victim had been devised, designed and mechanized by a satanic intent of benefiting accused at the expense of one who pinned his hopes in the judicial system of the country---Such devastative phenomenon had two prong impact on the society; on the one hand, it would give a clean chit to the guilty, on the other, it would make the bereaved complainant septic and hostile towards the system of dispensing justice. Per Muhammad Alam, J; Malik Haq Nawaz, J disagreeing [Minority view] (e) Penal Code (XLV of 1860)--- ----Ss.302, 34 & 376---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Qatl-i-amd, common intention, rape, act of terrorism---Appreciation of evidence---Occurrence being unseen, there was no eye-witness---Only evidence against accused persons was circumstantial evidence and second medical report, which contradicted the first medical report on very crucial aspects of the occurrence---Evidence on record regarding messages and calls between accused and the deceased, had shown that accused had connection with the deceased---Trial Court had wrongly relied on confessional statement of accused persons as same had been recorded by the Police Officer, though judicial Magistrates were conveniently available---Only piece of evidence, which could not be ignored, was the second medical report---Doctors conducted the said second report on the dead body of deceased after exhuming the same from the tomb where deceased was buried---Prosecution had established the facts that the dead body which was subjected to the second post-mortem was of the deceased---Prosecution evidence comprised the second medical report and post-mortem report---Comparative study of both the reports, had shown that the first report was very short and summary, while the second medical report contained all necessary details that correctly related to the opinion of the Board of Doctors---First report was prepared without internal examination of the dead body of deceased, while the second report showed through examination of different internal parts of the body of deceased---Opinion of the Board of Doctors had shown that deceased received injuries at different parts of her body before she was murdered---Opinion of the doctors of the Board, very clearly contradicted the first medical report regarding the causes of death of the deceased---Court relied on the second medical report and held that the Trial Court had correctly relied on the same---Second medical report was correct and cause of death of the deceased was her murder by accused persons and not because of any suicide etc.---Sentence/conviction passed by the Trial Court, were upheld and appeals were dismissed---Murder Reference also answered affirmatively. [Minority view] Per Wazir Shakeel Ahmed, J agreeing with Malik Haq Nawaz, J [Majority view] (f) Penal Code (XLV of 1860)--- ----Ss.302, 34 & 376---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Qatl-i-amd, common intention, rape, act of terrorism---Appreciation of evidence---Benefit of doubt---Trial Court had nowhere in the impugned judgment incorporated/entrusted the motive of the offence---Police had claimed recovery of a video of accused having sexual intercourse with the deceased, but same was neither found to be placed on record nor witness was produced in support of recovery memo, rather he was abandoned---Prosecution had also failed to prove sexual assault by accused with the dead body of the deceased---Prosecution had failed to include the names of the persons to whom accused handed over the mobile phone of the deceased lady, nor the contents of the record of messages were verified/confronted before the Trial Court---Statement of the sole witness trainee, who was sleeping in hostel at night of the occurrence with the other inmates, created serious doubts on the story of the prosecution---Prosecution had failed to interlink the chain of corroboration/circumstantial evidence in the case and the chain of circumstantial evidence from taking of the possession of mobile phone to their numbers and the ownership, usage and the calls, messages received through other mobile phone to that of the alleged murder of deceased lady, was not established---Prosecution had failed to connect to the extent of co-accused in commission of alleged offence---Benefit of doubts, was extended to accused---Impugned judgment of the Trial Court was set aside, accused were acquitted and ordered to be released forthwith, in circumstances. 2008 SCMR 1103 and 2002 PCr.LJ 149 rel. Haji Daulat Karim for Appellant (in Cr. Appeal No. 26 of 2011). Jahanzeb Khan for the Complainant (in all cases). Malik Sherbaz, Dy. A.-G. for the State (in all cases). Raja Shakeel Ahmad for Appellant (in Cr. Appeal No.33 of 2011). Amjad Hussain for Appellant (in Cr. Appeal No. 1 of 2012). Date of hearing: 14th October, 2016. JUDGMENT MALIK HAQ NAWAZ, J.---I have been entrusted with the task of authoring the fate of FIR No. 145/2011, regarding which a difference of opinion arose in between the Hon'ble Divisional Bench, both my learned brothers who probed into the available evidence, set of circumstance, incriminating material and the testimony of witnesses could not see eye to eye with each other, the verdict passed by both the Hon'ble Judges is at variance to such an extent, that one of them has stamped their liberty and have acquitted them of the charge extending them the benefit of doubt, while the other has upheld the judgment of trial court whereby major punishment were inflicted upon the accused persons. Since the arguments for the learned defense counsel and counsel for the State/complainant have exhaustively been produced/re produced in the judgment of both of my learned brothers and the same arguments have been raised at bar before me. These judgments are at variance as the appreciation of evidence of both the judgments has been entirely different. The re-production of all the arguments of learned counsel will raise the volume of judgment, as both these judgments are also a part of the main judicial file, therefore, the arguments of the learned defense counsel are not again reflected due to paucity of time and space. 2. It is cardinal to be mentioned here that the whole story hovers around the death of deceased girl Shabana Akhtar who was a trainee nurse residing in the Midwifery Hostel Gilgit along with other under training nurses, at 13.05.2011 her dead body was found hanging with the ceiling fan of the dining hall of the above mentioned hostel, a complaint Exh.PW-12/A was jotted down to the said effect by the principal Midwifery School and presented to the concerned SHO, who duly incorporated the same in daily Roznamcha, since the unfortunate vista of the dining hall portrayed the heart rendering incident as a "suicide" so the proceedings were initiated under section 174, Cr.P.C., while the proceedings were in continuum allegedly the convict/appellant Nadeem Abbas disclosed that the suicide committed by the deceased was mechanized and engineered by Jarrar Hussain, Ashfaq Hussain and Shafqat, the said persons used to send indecent texts on her cell phone and have captured certain videos while making after her, as the said persons threatened to give air to the captured videos, the deceased succumbed to the psychological pressure and sounded the final note of her life by hanging herself and thereby committed suicide. As per the disclosure, the said persons were arrested, but the investigating agency could not collect any incriminating material which might have laid the foundation of guilt against the persons arrested on the disclosure made by the convict/appellant, hence the said persons were discharged as innocent by the police by invoking the authority given in section 169, Cr.P.C. 3. It was only after that the police started suspecting and spotted the convict/appellant, as per record the arrest of accused and his re-remand was the turning point in the instant case, since it blessed the prosecution with the evidence of extra judicial confession, confession recorded under section 21-H and telephone call data, the occurrence in the present case is an unseen occurrence devoid of the presence of any eye-witness. It seems that the police which was earlier wandering in the dark, took it as a natural bounty and fit the noose in the neck of convict/appellant that too in the light of revelations made by the accused himself without probing into its legal strength and intrinsic value. 4. The learned trial court awarded capital punishment to the accused Nadeem Abbas, life imprisonment to Jameela Bibi co-accused and imprisonment for seven years to the accused Ijlal Hussain (because he was indicted for the charge to screen off the offence and the offender). One of the learned member of Divisional Bench remained thoroughly in accordance with the judgment arrived at by the learned trial Court and upheld the punishments awarded to the appellants. I have gone through the said judgment, my learned brother Mr. Justice Muhammad Alam has discarded a greater chunk of evidence set forth by the prosecution, but the things which have tilted his verdict towards maintaining conviction of the appellants is the exhumation report whereby the dead body of the deceased was exhumed four months after its burial and the medical team managing the affairs of exhumation opined that the major critical injury No.1 mentioned in Exh. PW. 21/A1 and A2 was homicidal in nature. 5. The exhumation of dead body took place on the directions of Hon'ble Supreme Appellate Court Gilgit-Baltistan, which was result of an application made by the father of the deceased showing his concerns with respect to the credibility of the first postmortem report. My learned brother Judge while relying upon the exhumation report and the cell phone data opined that the connection between the convict/appellant and the deceased is well established and on the said score he endorsed and upheld the judgment of the learned trial court. With all my reverence and respect for the wisdom and the legal acumen of my learned brother Judge I tend to disagree with his opinion, as far as the mobile data is concerned, although it is admissible in evidence by virtue of Article 164 of Qanun-e-Shahadat Order, 1984 yet the stander of evidence required to result in harsher punishment cannot be compromised. I have gone through the data and have found it short of legal and evidentiary merit. The calls made and messages sent to the deceased do no harmonize and are also not coherent with respect to their proximity in space and time with the death of the deceased. The said data fails to clarify that whether the SIM number shown to be used by the deceased registered against the name of her brother was ever put in the mobile G-5 4808 allegedly taken by accused Nadeem Abbas from the deceased and handed over to the police after the commencement of the unfortunate incident of death of the deceased. The prosecution has failed to mention the IMEI number of the recovered cell phone which was of immense importance in deciding the fact that whether it was the mobile which carried the SIM allegedly used by deceased Shabana Akhtar or not, more over there is not even a scratch of evidence which may testify that the said cell phone ever remained in use of the deceased, neither the same has been identified by any of her family members nor by her course mates, besides the cell number shown to be that of convict/appellant Nadeem Abbas has been dialed by the number shown to be that of the deceased that too for few minutes in a sequence which depicts only a broken conversation, co-accused Jameela Bibi's cell number also surfaced in the record collected, but it is quite natural, the deceased was a trainee nurse and co-accused Jameela Bibi was the housemother of midwifery hostel where the deceased was residing. They had a working relationship as colleagues, the existence of a few calls against the number of co-accused is not a matter of great deal. The cell number from which certain texts were sent to the deceased was neither verified nor shown to be registered against the name of any of the accused. Although the prosecution was conversant with the cell number of the accused Nadeem Abbas and allegedly recovered a Samsung cell phone vide Exh.PW-1/M alleged to be in use of the accused, which was handed over by him to the mobile repairing shop, yet no calling or text data sent via the recovered cell and the SIM registered against the name of the accused has been obtained by the prosecution, to establish his connection with the deceased in such a manner, which may be defined as a reason for taking the life of the deceased. In addition, while making the personal search of co-accused Jameela Bibi, her cell phone No. 0312-9703561 carrying Zong SIM inside was also wrested and the recovery memo was prepared but was not exhibited. What precluded the investigation authority from obtaining her text and calling data is a question of such an intricate nature which has a telling effect on the prosecution case. The lethargy and incompetency shown with respect to the collection of mobile data and fitting the same within the puzzle of deceased's murder has gone down to the very roots of the prosecution case. 6. My learned brother Judge has given due consideration to the second medical opinion formulated after the exhumation of the dead body of the deceased. In order to reach a logical conclusion the final opinions of both the autopsy report and the exhumation report is reproduced hereunder:- First Autopsy Report (Exh.PW-23/1) Final opinion:---In my opinion, deceased Shabana Akhtar died due to hanging resulting in transaction of spinal cord at a very high level leading to failure of multiple vital organs such as heart, lungs and brain. This injury is sufficient to cause death in ordinary course of nature. The time elapsed between the death and postmortem is round about 8 to 10 hours. Exhumation Report (Exh.PW.21/A-1 and A-2) Final opinion:---The Board is of the opinion that the deceased died due to injury No. 1 which caused obstruction of upper respiratory tract, which resulted in anoxia to death. This injury is homicidal in nature and before this she has been violated as evident from injuries Nos. 3 to 8. All these injuries were ante-mortem in nature and was sufficient to cause death in an ordinary course of life. Injury No. 1:---A traverse ligature mark present on the middle of the front of neck extending posterior aspect of the neck measuring 8 x 1.5 c.m. Incision given here to know either the so called ligature mark is ante-mortem or post-mortem. This incision showed that contusion is present just below the ligature mark. Injury No. 2: Another ligature mark present on the side of the angle of mandible, here incision given which proved that his ligature mark is of post mortem nature. Both the autopsy and exhumation reports if juxtaposed give tongue to a common finding. The autopsy reports reads "deceased Shabana Akhtar died due to hanging resulting in transaction of spinal cord at a very high level leading to failure of multiple vital organs such as heart, lungs and brain." While in the exhumation report it is mentioned as deceased died due to injury No.1 which caused "obstruction of upper respiratory tract which resulted in anoxia leading to death" (underlining is provided for emphasis), board further thrashed that the injury is homicidal in nature and the deceased has been violated as well. It is clear from the above underlined portion that the death of the deceased occurred due to blockage of oxygen to the brain. 7. The idea that the injury No. 1 was homicidal resulted because of the presence of ligature mark in the middle of front of the deceased neck, incision was also given there which showed that contusion was present below the ligature mark, but to the effect that what did that particular contusion below the ligature mark spelled, the report is silent. As per the exhumation report another ligature mark was also found which was declared to be post mortem in nature. 8. It is pivotal to be mentioned here that as per the prosecution version, the deceased while unconscious was raped by the accused Nadeem Abbas, but the negative report of pathologist regarding the presence of spermatozoa in the vaginal swabs of the deceased belies the prosecution version. In order to reach a proper decision regarding the worth of exhumation report and the opinion formulated therein, assistance has been sought from Modi's Medical Jurisprudence and Mayllo Medical Legal Dictionary. The connotation held by certain medico legal terms are produced here under:- ANOXIA:- Oxygen deficiency, any condition in which there is a deficiency of tissue oxidation. LIGATURE:- a thread or string for tying blood vessels, as the arteries to check blood. Explanation:- From the definition of ligature as provided in various medical legal dictionaries following ingredients can be sifted: a) It can be anything, substance or a tool (string, head scarf, chain, club or even human fingers.) b) Used to constrict, compress or squeeze the neck muscles in such a manner so as to restrict or block the air supply/oxygen completely or partially. The test provided to figure out that whether a particular death occurred due to hanging or strangulation as provided in Modi's Medical Jurisprudence is reproduced as under:-
Hanging
Strangulation
1. Mostly suicidal.
1. Mostly homicidal.
2. Face---usually pale and petechiae rare.
2. Face---Congested, livid and marked with petechiae.
3. Saliva---Dribbling out of the mouth down on the chin and chest.
3. Saliva---No such dribbling.
4. Neck---Stretched and elongated in fresh bodies.
4. Neck---Not so.
5. External signs of asphyxia, usually not well marked.
5. External signs of asphyxia, very well marked (minimal if death due to vasovagal and carotisinus effect).
6. Bleeding from the nose, mouth and ears very rare.
6. Bleeding from the nose, mouth and ears may be found.
7. Ligature Mark---Oblique, non-continuous placed high up in the neck between the chin and the larynx, the base of the groove or furrow being hard, yellow and parchment like.
7. Legature Mark---Horizontal transverse continuous, round the neck, low down in the neck below the thyroid, the base of the groove or furrow being soft and reddish.
8. Abrasions and ecchymoses round about the edges of the ligature mark, rare.
8. Abrasions and ecchymoses round about the edges of the ligature mark, common.
9. Subcutaneous tissues under the mark---White, hard and glistening.
9. Subcutaneous tissues under the mark---Ecchymosed.
10. Injury to the muscles of the neck---Rare.
10. Injury to the muscles of the neck---Common.
11. Carotid arteries, internal coats ruptured in violent cased of long drop.
11. Carotid arteries, internal coat ordinarily ruptured.
12. Fracture of the larynx and trachea---Very rare and that too in judicial hanging.
12. Fracture of the larynx and traches---often found also hye bone.
13. Fracture-dislocation of the cervical vertebrae---common in judicial hanging.
13. Fracture-dislocation of the cervical vertebrae---rare.
14. Scratches, abrasions and bruises on the face, neck and other parts of the body---Usually not present.
14. Scratches, abrasions, finger marks and bruises on the face, neck and other parts of the body---usually present.
15. No evidence of sexual assault.
15. Sometimes evidence of sexual assault.
16. Emphysematous bullae on the…
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