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Official Citation: 2024 PHC 362
Court / Jurisdiction: Peshawar High Court
Year of Decision: 2024
Decision Date: 2024-09-25
Parties: Shakir Ullah and others vs The State and others
Ruling Summary: This decision was rendered by the Peshawar High Court on 2024-09-25, officially reported as 2024 PHC 362. In this matter between Shakir Ullah and others and The State and others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024PHC362
Court Name: Peshawar High Court Judge(s): Muhammad Naeem Anwar Title: Shakir Ullah and others vs The State and others Case No.: Cr. A No. 198-M, 206-M/2022 and Cr. R No. 43-M/2022 Date of Judgment:2024-09-25 Reported As: 2024 PHC 362 Result: Petition Dismissed
JUDGMENT
JUDGMENT MUHAMMAD NAEEM ANWAR, J.- The appellant, Shakir Ullah, son of Muhammad Wahid, faced a regular trial for committing offenses under Sections 302 and 338-A of the Pakistan Penal Code (PPC), reported in FIR No. 243 dated 15.06.2020, registered at Police Station Shamozai, District Swat. Following the trial's conclusion, the learned Sessions Judge/Zilla Qazi, District Swat rendered the judgment dated 29.06.2022, convicted the appellant under Section 302(b), PPC and sentenced him to life imprisonment as Ta'azir. Additionally, he was ordered to pay Rs. 500,000 to the legal heirs of the deceased as compensation under Section 544-A of the Criminal Procedure Code (Cr.P.C.), with a stipulation that, in the event of non-payment, he would face an additional six months of simple imprisonment. The benefit of Section 382-B, Cr.P.C. was extended to him. He was acquitted of the charge under Section 338-A of the PPC. The appellant has challenged the judgment of the learned trial Court through this appeal. Likewise, Zareen Bakht, the complainant, has challenged the appellant's acquittal from the charge under Section 338-A, PPC through connected Cr. A No. 206-M/2022. Additionally, he has filed Cr. R No. 43- M/2022, seeking the enhancement of sentences imposed. Both cases, arising from the same judgment, are being decided through this single decision. 2. Briefly stated facts of the case, as outlined in the FIR, are that the complainant Zarin Bakht, while present with the dead body of his daughter, Mst. Nazima, at the Civil Hospital Barikot, reported that approximately 14/15 months earlier, Mst. Nazima had married the accused Shakir Ullah (the appellant), however, the wedlock had not resulted in any children, and the relationship between Mst. Nazima and her husband had become strained in the days leading up to the incident. The
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complainant narrated that he had intervened multiple times to resolve the disputes between them. On the morning of 15.06.2020, after the Fajr prayer, he received information from his daughter's house, prompting him to go to Nemogram with his family members. Upon arrival, they discovered Mst. Nazima's lifeless body in her room, showing signs of bruising around her neck. The complainant asserted that her husband had murdered his daughter through strangulation, with the motive stemming from domestic discord. The report was reduced into writing in shape of Murasila which led to registration of the ibid FIR. 3. The appellant was arrested on the same day i.e., 15.06.2020. On the following day, he was produced before the Judicial Magistrate concerned and further one day custody was obtained by I.O. He made pointation of the place of occurrence in light of which additions were made in the site plan. He also handed over Dupatta to police with which he had strangulated the deceased. He was again produced before the Magistrate on 17.06.2020 on which date he recorded his judicial confession. Upon completion of the investigation, the appellant was recommended for trial on the murder charge through the submission of a final report under Section 173, Cr.P.C. to the Court. He was formally indicted for the offense, to which he pleaded not guilty and opted to face trial. The prosecution produced twelve witnesses to strengthen the allegations against the appellant. Subsequently, the appellant was examined under Section 342, Cr.P.C., where he once again denied the charges including confessing his guilt before the Court. However, he chose not to be examined on oath in terms of S. 340(2), Cr.P.C. and did not produce any witnesses in his defense. On conclusion of the trial, the learned trial Court delivered its judgment on 29.06.2022, convicting and sentencing the appellant, the detail of which has been previously outlined in this judgment, hence, this appeal and the connected cases. 4. We have considered the arguments presented by the learned counsel for both parties, including the learned Additional Advocate General representing the State, and have reviewed the record with their valuable assistance. 5. The appellant is facing the charge of murder of his pregnant wife, Mst. Nazima, who was strangled during the night of June 14 & 15, 2020. It is undisputed that Mst. Nazima was the appellant's wife and that they were residing together in the same house. Notably, the appellant was in the same room with her on the night of the incident, a fact narrated by his father, Muhammad Wahid (PW-8), in his examination-in-chief which was further confirmed during his cross-examination. Moreover, the appellant has not denied his presence with his wife on that night when questioned specifically during his examination under Section 342, Cr.P.C. He also did not raise any defense asserting that he was absent from his home when his wife suffered an unnatural death in the shared bedroom. Hence, the prosecution has firmly established that the appellant was with his wife at the time of the incident. A relevant question arises concerning whether the testimony of Muhammad Wahid (PW-8), who has been declared a hostile witness, can be considered in favour of the prosecution. The Honorable Supreme Court has already addressed this issue in "Zarid Khan vs. Guisher and another" (1972 SCMR 597), stating that even in the case of a hostile witness, his entire testimony should be examined to determine if any portion is credible in light of other evidence brought on the record. While the witness may have attempted to mislead the Court by omitting certain incriminating facts regarding the appellant, it is evident from the record that the parents of the deceased arrived at the scene following the information conveyed by this witness. Subsequently, the body of the deceased was transported to the hospital where the matter was reported. Additionally, ample corroborative evidence is available, particularly the appellant's failure to refute his presence at the scene during the significant time frame. Therefore, in light of the aforementioned judgment, the portions of Muhammad Wahid's statement that support the prosecution's case can be justifiably considered to reach a fair conclusion.
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Upon reviewing the evidence, particularly the various suggestions presented by the defense counsel to the witnesses and the appellant's statement under Section 342 Cr.P.C, it becomes evident that the defence has primarily challenged the cause of death of the deceased. When presence of the appellant in the company of his wife at the time of occurrence is established rather undisputed, the main question which needs consideration of this Court is the cause of death of the deceased. This challenge was particularly focused by the defence mainly on the dispatch of Parcels No. 2 to 10, which contained body parts of the deceased for ascertaining the cause of death with another objection highlighting the lack of evidence regarding the fate of Parcel No. 1, which contained the hyoid bone taken by lady doctor from the deceased during the autopsy. It was the main objection of learned counsel for the appellant that when the cause of death of the deceased was already known to police, there was no need of sending the parcels for forensic analysis which, per contention of the learned counsel, implies that the prosecution was not certain about the cause of death of the deceased. Regarding absence of the expert report pertaining to hyoid bone, the learned counsel was of the view that the same was kept concealed by the lady doctor to hide her fault of reporting the cause of death as strangulation instead of the deceased's falling due to attack of epilepsy. Furthermore, the appellant has specifically taken the defence plea that the deceased suffered from epilepsy and claims that her death was due to natural causes rather than strangulation. Consequently, the burden rested on the prosecution to prove that the deceased was murdered through strangulation. In contrast, the appellant, in view of the defence taken by him, was tasked with demonstrating that death of his wife was indeed due to epilepsy. To address these pivotal questions, a thorough analysis of the evidence on record is necessary with the aim to clarify the circumstances of the deceased's death and evaluate the validity of the claims made by both the prosecution and the defense. 7. Autopsy on the dead body was conducted by Dr. Urooj (PW-3) on 15.06.2020 at 08:30 A.M. She delivered her report Ex.PW-3/1, the relevant portions of which are reproduced below. External Appearance: Ligature mark seen on the neck. A pale young female dead body wearing multi-colour clothes, wearing pink banyan with no blood or semen. Rigor mortis developed; liver mortis developed (lividity). Peripheral cyanosis seen. No frothing. Multi bruises on the body. Ligature mark: purple. Position: hyoid bone, cricoid cartilage. Depth: 1-2cm. Covered Area: 3-4 inches on the anterior and lateral aspect of the neck. Bruised Area: about 2-3 inches on the nape of neck. Scalp, skull and vertebrae: Intact. Membranes, Brain, Spinal cord: Intact. Remarks By Medical Officer: Nazma bibi w/o Shakir-ullah 22/23 years age was received as dead body on 15.06.2020. examined at. The body was pale and rigor mortis was developed. Strangulation mark seen on the neck. Details already mentioned in this report. Cause of Death: Strangulation, hyoid bone fracture. Awaited for forensic lab reports for confirmation of poisoning. Samples sent for toxicology. Probably time that elapsed: (a) Between injury and death: Received dead body at casualty civil hospital Barikot. (b) Between death and post mortem: about 9-10 hours.
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The report presented by the lady doctor leaves no room for doubt regarding the cause of death, which clearly indicates that the deceased was strangulated. During cross-examination, the defense counsel specifically questioned the lady doctor (PW-3), by suggesting that in cases of strangulation, a victim's eyes may bulge, their tongue may protrude, and saliva may leak from their mouth. The doctor responded that these symptoms may or may not be present, indicating that the absence of such signs does not rule out the possibility of strangulation. Additionally, the defence counsel questioned the Investigating Officer about whether he had identified any objects associated with the alleged hanging of the deceased. The I.O. clarified that he thoroughly inspected the room for hooks or ceiling fans but found no evidence to support that claim. The purpose of the defense's inquiries was explicit: to construct a narrative suggesting suicide as the likely cause of death. However, the appellant in his examination under S. 342, Cr.P.C. specifically took the plea that the deceased had died due to her epilepsy condition. This indicates that the appellant has presented two contradictory defense pleas: one asserting that the death was due to epilepsy and the other claiming it was a suicide through hanging. This inconsistency reveals a lack of credibility in his defense and suggests that he is attempting to evade responsibility by relying on differing narratives. The postmortem report described the ligature marks on the deceased's neck, indicating the covered area of 3-4 inches across the anterior and lateral aspects, with a depth of 1- 2 cm. Additionally, a bruised area measuring 2-3 inches was also mentioned. Importantly, the postmortem report did not indicate that the ligature mark was positioned obliquely upwards along the line of the mandible, a characteristic that is typically associated with hanging. Furthermore, the doctor noted bruising on the back of the neck, the left chest, and both thighs as emerging from the pictorial attached with the postmortem report which were confirmed by the lady doctor (PW-3) during her cross-examination. All the bruises are consistent with strangulation and contradict the notion of hanging. These findings collectively suggest that strangulation was the actual cause of death, as the evidence presented supports this conclusion while simultaneously excluding the possibility of hanging or suicide. Thus, the medical findings strongly affirm the prosecution's case, undermining the defense's attempts to suggest that the death could have been accidental or self- inflicted. The point has been explained in Parikh's Medical Jurisprudence and Toxicology (Fifth Edition) at Page. 189 as following. "In case of complete hanging, the mark is situated above the level of the thyroid cartilage between the larynx and the chin. It is directed obliquely upwards along the line of the mandible and reaches the mastoid processes behind the ears" The symptoms, as reproduced above, have not been brought during cross-examination of the lady doctor. Similarly, at Page-200 of the above referred Jurisprudence, the differences between the ligatures through hanging and strangulation have been highlighted as under: Hanging Strangulation Ligature found in position, above thyroid cartilage, incomplete, directed obliquely upwards with a gap Indicating position of the knot with no damage to the skin in the gapLigature may not be with the body but when found completely encircles the neck Horizontally below thyroid cartilage. There may be more than one turn of ligature and there is always some damage to the skin underneath.
Abrasions and bruises round about the ligature marks rareAbrasions and bruises Round about the ligature mark common
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The postmortem report indicates bruises on the backside of the neck which fact is compatible with the case of strangulation rather than hanging. The defense counsel's point regarding the presence of specific symptoms of coming out of the eyes and tongue is pertinent; these symptoms are consistent with hanging; however, the absence of these symptoms in the present case indicates that the case involved strangulation in light of which all the chances of hanging can fairly be excluded. This distinction has been addressed in the aforementioned jurisprudence qua the symptoms of hanging, which states: "The tongue, turgid due to congestion, may protrude due to pressure at its base by the ligature and the exposed part may become dark brown or even black as a result of drying". Thus, in light of the post-mortem report, we have no doubt in our mind that that the cause of death of the deceased was strangulation. 8. The argument of defence that the forensic analysis of the parcels indicates the prosecution's doubt about the cause of death is not sustainable. The decision to send body parts for expert analysis was not primarily driven by uncertainty about the cause of death, as the Investigating Officer had already mentioned strangulation as the primary cause in the initial report at the instance of complainant. Instead, this analysis aimed to determine the potential presence of poison, demonstrating a transparent and thorough investigation. The intent was to confirm any additional factors contributing to the deceased's death, beyond strangulation. Thus, the above situation does not lead us to draw an adverse presumption in favour of the appellant. Regarding the objection about Parcel No. 1, which contained the hyoid bone and was withdrawn by the doctor, it is important to note that, although the parcel was retrieved from the police, it was subsequently sent to a radiologist for examination, as clarified by Dr. Fakhr-e-Alam (PW-6). The defense counsel has placed much emphasis on this point during the cross-examination of prosecution witnesses, aiming to destabilize the prosecution's claim that the deceased had died from strangulation. In medical jurisprudence, while a fractured hyoid bone is a common indicator of strangulation, it is not a rule that the hyoid bone will always fracture in every case of strangulation. This point has been highlighted in Modi's Medical Jurisprudence Toxicology Edition 2014 at Page 580 under the topic 'Strangulation', which is reproduced below for ready perusal. It should be noted here that the hyoid bone and superior cornuae of the thyroid cartilage are not, as a rule, fractured by any other means other than by strangulation, although the lyrnx and trachea may, in rare cases, be fractured by a fall. In this regard, once again, we will refer the observations noted at Page 178 of the Parikh's Medical Jurisprudence and Toxicology (7th Edition). While discussing the symptoms of strangulation, a special reference has been made to the above point, which is as under: The superior horns of the thyroid cartilage are commonly fractured but the hyoid is rarely injured, due to the level of constriction being below the bone, unless considerable violence is applied to neck. Hyoid fracture may occur in persons over 40 years of age. It means that the hyoid bone though usually sustain fracture due to strangulation but it is not a rule of universal application. Concerning whether the lack of the radiologist's report would adversely affect the prosecution's case, the answer is 'no' because if it be presumed that report of the Radiologist was negative for fracture in the hyoid bone of the deceased, even then the report, in view of the above findings, was not sufficient to disprove the strangulation as the cause of the deceased's death. The post-mortem report, being independent piece of evidence, is sufficient to establish that the deceased died from strangulation, and the testimony of the lady doctor (PW-3) remains intact, having not been impeached during cross-examination. 9. The details from the record indicate that the incident was reported by Bakht Zarin (PW-12), the father of the deceased. He received alarming information from father of the appellant regarding his daughter's serious condition after Fajr prayer, prompting him to rush to her residence in the
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village of Nimogram. Upon arrival, he discovered that his daughter was dead. During cross- examination, he specified that he had received the news between 5:30 A.M. and 6:00 A.M; after staying in Nimogram for approximately half an hour, he and others took the deceased's body to the hospital, arriving around 7:45 or 7:50 A.M which took about an hour and fifteen minutes. The record shows that the report was formally lodged at 8:00 A.M., while the post-mortem examination of the deceased was carried out at 8:30 A.M. The timeline provided by the complainant aligns well with the details outlined in the FIR. Several inquiries were made during his cross-examination regarding any prior illnesses the deceased might have had. However, he did not provide any information that would support the appellant's case. Notably, he firmly denied the assertion that the deceased suffered from epilepsy. Muhammad Wahid, the father of the appellant, was examined as PW-8. He corroborated the complainant's account related to the information and his subsequent arrival at the deceased's home along with family members. In his examination in chief, Muhammad Wahid stated that after performing Fajr prayer, the appellant informed him about something having happened to his wife, leading him to enter the deceased's room. During cross- examination, he confirmed that both the appellant and the deceased were in the same room on the night of the incident. This witness was later declared hostile due to his attempts to obscure the true nature of events. He claimed that he checked the deceased and found her pulse to be active at that time, but this assertion is contradicted by the post-mortem report, which indicated a time frame of 9 to 10 hours between death and the post-mortem examination. His reluctance to testify against his son was evident, as he was brought to Court under a warrant. Although, upon questioning, he initially denied having prepared site plan by I.0 on his pointation, he subsequently acknowledged the details of the site plan during prosecution cross-examination, confirming the locations of himself, the appellant, the deceased, his wife, and another daughter-in-law in the house at the night of the incident. When questioned about any attempts made to save the deceased, he claimed that they did not take her to the hospital because she was suffering from "shocks/," which he described as an incurable disease. Despite the PW's efforts to manipulate the narrative, several elements of his testimony amply supported the prosecution's case. Furthermore, the investigation surrounding the incident was conducted fairly and impartially, with all official witnesses providing statements that were consistent, straightforward, and truthful. Overall, the evidence and testimonies presented contribute to a compelling narrative regarding the circumstances of the deceased's death. The coherence of timelines, the stability of the complainant's account, and the supportive evidence from multiple witnesses indicate a thorough investigation and highlight the substantial weight of the prosecution's case against the appellant. 10. In addition, the appellant has also recorded his judicial confession which is available on record as Ex.PW5/ 2 whereas questionnaire and certificate are Ex.PW-5/ 1 and Ex.PW-5/ 3, respectively. It would be appropriate to reproduce his confession, which is as under: The confession is plain, simple and precise containing the motive behind the murder of the deceased, leaving no doubt that he had killed his wife by strangulating her through the Dupatta the deceased was having at the relevant time. The mode and manner of strangulation narrated by the appellant in is confession stands to reason as it was not a difficult task for the appellant to strangulate his wife through a Dupatta which is normally carried by females around their necks. The prosecution has examined Shaikh Waqas, Judicial Magistrate, as PW-5 who had recorded judicial confession of appellant. Nothing has been brought on the record during cross examination of the said PW to suggest that either the confessional statement of the appellant was recorded against the relevant procedure or any act or omission of the PW, acting as Judicial Magistrate, had prejudiced the appellant in any manner whatsoever. The appellant was given 30 minutes time for deliberation
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whereafter he volunteered to record his confession without any pressure or duress. Thus, we believe that the Judicial Magistrate (PW-9) has recorded true and voluntary confessional statement of appellant which, being in conformity with the remaining evidence on record, has rightly been relied upon by the trial Court for conviction of the appellant. 10. There is no dispute that the appellant was arrested on 15.06. 2020, and his confession was recorded two days later, on 17.06.2020, however, the two-day delay in recording the confession will not adversely affect its credibility. It is well-established that a delay in recording a confession, by itself, is not sufficient ground to dislodge its validity especially when in light of the medical evidence and other relevant circumstances discussed above, it has been established that the appellant was involved in the murder of his wife. Guidance is sought from the case of "Majeed V/s. The State" 2010 SCMR 55. The Hon'ble Supreme Court observed that: "10. No doubt there was delay of 12 days in recording the confession but this by itself is not sufficient to discard the same. This Court in the case of Nabi Bakhsh v. State 1999 SCMR 1972 held that delay in recording the confessional statement by itself is not sufficient to affect its validity. However, no hard and fast rule can certainly be laid down about the period within which the confessional statement of the accused ought to be recorded during investigation. Reference is also invited to Muhammad Yaqoob v. State 1992 SCMR 1983". Although the appellant claimed in his response to Question No. 12 during his examination under S. 342, Cr.P.C. that he was confined in the police station from morning until afternoon on 05.06.2020, and alleged that he was subjected to torture by the police on the same day, he did not assert any instances of torture occurring between the time of his formal arrest and the recording of his confession on 17.06.2020. Consequently, it cannot be considered part of his defense that the alleged torture was intended to coerce his confession. When specifically confronted with his judicial confession in Question No. 19, the appellant outrightly denied his confession before the Magistrate and claimed he was never produced in Court. Instead, he maintained that he was detained at the police station from 15.06.2020 to 17.06.2020, from where he was subsequently taken to jail. The appellant's response is, at face value, illogical. He confessed his guilt before the competent Court of…
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