Full Judgment Text & Judicial Ruling

2025 Y L R 1609 [Lahore] Before Aalia Neelum, C.J and Asjad Javaid Ghural, J Muhammad Waqas---Appellant Versus The State and others---Respondents Criminal Appeal No. 66722 and Murder Reference No. 215 of 2019, heard on 12th November, 2024. (a) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Extra judicial confession---Scope---Accused was charged for committing murder of his wife/sister of complainant---Accused made extra judicial confession before two witnesses---Both the said witnesses while appearing the dock in the Court room unanimously stated that on 04.04.2016 upon hearing the news of death of deceased, they reached in the house of the appellant for obituary, when brother of the deceased/complainant told them that his sister was murdered by the appellant---At about 2.00 p.m. appellant invited them and one given up witness to a corner for telling them something and thereafter took them to the fields, where he confessed before them that he committed the murder of deceased by administering poisonous tablets and strangulating her and requested for managing pardon for him---Both the said witnesses were cross-examined but they remained firm and consistent on material points and the prosecution had failed to extract any favourable material from their mouths---Accused tried to give the murder a colour of natural death but when the legal heirs of the deceased decided to lodge the criminal case against him qua the murder of deceased, he in order to save his skin attempted to manage the situation---One of the witnesses belonged to Lamberdar family of village of the complainant and in rural set up no one could deny the influence of said family upon the villagers---Similarly, other witness was close family relative of the complainant, as such he was also a suitable person to use his influence for securing clean chit for the appellant, therefore, keeping in mind these factors the appellant made extra judicial confession before them---Moreso, both the witnesses were neutral persons having no direct relationship with the complainant and at the same time had no animosity or ill will against the appellant for falsely involving him in the charge of capital punishment---Even the appellant in his statement recorded under S.342, Cr.P.C. did not question the neutrality of said witnesses or even a slight indication of their hostility towards him---Both the witnesses faced the test of cross-examination with confidence, therefore, their evidence being free from any bias deserved consideration---Circumstances established that the prosecution had proved its case beyond shadow of any doubt, however due to mitigating circumstances, death sentence was converted into imprisonment for life---Appeal against conviction was dismissed with said modification in sentence. (b) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Medical evidence confirming unnatural death of deceased---Accused was charged for committing murder of his wife/sister of complainant---Medical Officer, who had conducted autopsy on the dead body of deceased on 04.04.2016 at about 7.10 p.m., observed two dirty black colour impressions on both sides of the neck---Duration between injury and death was immediate, whereas, between death and postmortem examination report was 14 to 20 hours---According to the opinion of Medical Officer, death occurred due to asphyxia mode along with poisoning---Thus, medical evidence confirmed that deceased met with an unnatural death---Circumstances established that the prosecution had proved its case beyond shadow of any doubt, however due to a mitigating circumstances, death sentence was converted into imprisonment for life---Appeal against conviction was dismissed with said modification in sentence. (c) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of pills used to murder the deceased---Reliance---Scope---Accused was charged for committing murder of his wife/sister of complainant---Record showed that two empty strips of Lorazepam 2mg were recovered from the place of occurrence and a packet of Lorazepam 2mg was also recovered by the appellant---At the time of postmortem examination, her liver, lung, stomach, kidney, heart, brain and blood were sent to the office of Forensic Science Agency, for expert opinion and according to the report of said office, liver of deceased contained 11.195 mg/kg Lorazepam---Two empty strips of tablet were secured from the residential room of the deceased---Said room was in exclusive possession/use of the appellant and his deceased wife and there was no possibility of plantation of said empty strips of the tablets upon the appellant---Moreso, a packet of Lorazepam 2mg recovered by the appellant was also sent to the office of Forensic Science Agency on 27.04.2016 and the report of said office had been received on 28.09.2016---Till the arrival of report of Forensic Science Agency, no medical expert was in a position to determine what kind of poisonous material was administered to the deceased, except the person who administered the same---Presence of two empty strips of tablets at the spot and recovery of rest of the same tablets by the appellant himself much prior to the report of Forensic Science Agency showed that the appellant was responsible for administering huge quantity of tablets to the deceased---Such kind of tablets were available in medical stores and could easily be secured for the purpose of plantation but here in this particular case, the appellant himself disclosed the name of the Medical Store owned by "H" from where he purchased the said tablets and the Investigating Officer while appearing in the witness box deposed that he joined said "H" during investigation, who confirmed purchase of tablets by the appellant and he placed his statement on record---Moreso, prior to the report of Forensic Science Agency, the prosecution could not take risk of planting the same on its own, because if in the end, in the report of Forensic Science Agency some other material was detected, then it would have had serious consequences qua the veracity of prosecution story---Thus, it could safely be concluded that the recovery lent full support to the prosecution story---Circumstances established that the prosecution had proved its case beyond shadow of any doubt, however due to mitigating circumstances, death sentence was converted into imprisonment for life---Appeal against conviction was dismissed with said modification in sentence. (d) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---First version of killing the deceased provided by the accused after his arrest---Reliance---Accused was charged for committing murder of his wife/sister of complainant---At the time of the arrest of accused, he disclosed that from day one, he intended to marry younger sister of the deceased but the family of the deceased was not ready to give hand of their younger daughter in the presence of the elder one, as such his marriage was arranged with the deceased; that accused made his mind to get married with younger sister of deceased, but for achieving that goal deceased was the main hurdle and he made different plans to remove her from his way; that on the fateful day, accused arranged intoxicant pills and after grinding the same asked the deceased to take them for the treatment of abdomen pain; that thereafter, accused kept on waiting for the death of the deceased---At about 2.00 pm when he observed that deceased was still breathing, he put a pillow on her mouth and choked her breath; that around 3 am (night), accused told his family members and took the deceased to the hospital, where the Medical Officer confirmed her death---Accused informed the parents of deceased that she died due to cardiac arrest---During investigation first version of the accused was found correct---First plea of an accused was admissible piece of evidence---Circumstances established that the prosecution had proved its case beyond shadow of any doubt, however due to a mitigating circumstances, death sentence was converted into imprisonment for life---Appeal against conviction was dismissed with said modification in sentence. Raza and another v. The State and another 2020 SCMR 1185 rel. (e) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Motive proved---Accused was charged for committing murder of his wife/sister of complainant---Motive as set out by the prosecution was that the accused intended to get married to younger sister of the deceased and in order to achieve that goal, he committed the crime---Main part of the motive had been clearly stated by the complainant in his examination in chief, which served the very purpose---Even otherwise, when the omitted part of Fard Bayan was confronted to the complainant, he conceded said facts, as such by confronting the same, the defence helped the prosecution in many words to establish the same---Moreso, both the witnesses of extra judicial confession also categorically stated that the appellant confessed before them that he committed the murder of his wife, in order to get married to her younger sister and the defence could not shatter their credibility on this point---Additionally, the appellant upon his arrest, in his first version also conceded that the only purpose for committing the murder of deceased was to get married with her sister, which though had been denied by him subsequently in his statement recorded under S.342, Cr.P.C. yet in cases where a partner was met with unnatural death in the privacy of a room, first version of the surviving partner had persuasive value and could not be ignored at all, as such the same also strengthened the version of the prosecution---Hence, the prosecution had successfully proved the motive part of the occurrence---Circumstances established that the prosecution had proved its case beyond shadow of any doubt, however due to mitigating circumstances, death sentence was converted into imprisonment for life---Appeal against conviction was dismissed with said modification in sentences. (f) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Mitigating circumstances---Sentence, reduction in---Accused was charged for committing murder of his wife/sister of complainant---In the instant case, there was no direct evidence against for appellant and the entire case hinged upon circumstantial evidence, therefore, as a matter of caution, it would be considered as a mitigating circumstance for awarding the appellant lesser punishment---Even otherwise, when a case qualified for awarding of both sentences of imprisonment for life and that of the death, the proper course for the Courts, as a matter of caution, is to give preference to the lesser sentence---Thus, the appeal stood dismissed by maintaining conviction for offence under S.302(b), P.P.C, however sentence of capital punishment was converted into one of imprisonment for life---Appeal was dismissed with said modification in sentence. Mir Muhammad alias Miro v. The State 2009 SCMR 1188 and Ghulam Mohy-ud-Din alias Haji Babu and others v. The State 2014 SCMR 1034 rel. Sardar Muhammad Latif Khan Khosa and Usman Naseem for Appellant. Barrister Hamza Shehram Sarwar and Asad Zaman Tarar, Defence counsel. Munir Ahmed Sial, Additional Prosecutor General for the State. Nemo for the Complainant. Date of hearing: 12th November, 2024. Judgment Asad Javaid Ghural, J.--- Through the afore-titled criminal appeal, appellant Muhammad Waqas has challenged the vires of judgment dated 15.07.2019 passed by the learned Additional Sessions Judge, Daska in case FIR No.151/16, dated 15.07.2019 in respect of an offence under section 302, P.P.C registered at P/S Moutra, District Sialkot whereby he was convicted and sentenced as under:- Under Section 302(b) P.P.C as Tazir Death and to pay the compensation amounting to Rs.5,00,000/- to the legal heirs of deceased namely, Samina Bibi under Section 544-A Cr.P.C. and in default thereof, to further undergo simple imprisonment for six months. 2. Murder Reference No.215/2019 for confirmation or otherwise of death sentence of the appellant shall also be decided through this common judgment. 3. The prosecution story unfolded in the crime report (Ex.PB) registered on the complaint of complainant Muhammad Adnan (PW-4) is that his sister Mst. Samina Bibi was married with Muhammad Waqas (appellant) 7/8 months ago. After 20/25 days of the marriage, appellant went Saudi Arabia and came back to Pakistan 20/25 days prior to the alleged occurrence. After arrival in Pakistan, appellant developed illicit relation with his sister in law (Sali) namely Anam and this fact came into light when 4/5 days prior to the occurrence the appellant while leaving his wife in his house, visited the house of complainant and in connivance with Anam administered intoxicated tea, due to which entire family of the complainant except said Anam became unconscious. In the intervening night of 3/4th of April, 2016 at about 3.00 a.m. appellant informed the complainant telephonically that his wife Samina has died due to cardiac arrest. Complainant has strong suspicion that the appellant in order to contract marriage with his Sali committed the murder of his wife by administering some poisonous material. 4. Iftikhar Ahmad,S.I. (PW-12) visited the place of occurrence on the same day, prepared injury statement (Ex.PJ), inquest report (Ex.PK) of deceased Mst. Samina Bibi and escorted the dead body to mortuary for autopsy. He collected two empty strips of lorazepam 2mg Arsopal from the place of occurrence vide memo. (Ex.PE), prepared rough site plan of the place of occurrence and recovery (Ex.PM), recorded the statement of PWs and took all other necessary steps of initial investigation. He arrested the appellant on 13.04.2016 who during investigation disclosed that he purchased intoxicant tablets from Mughal Medical Store, Adda Badian and also got recovered three strips of tablets from his residential room vide memo. (Ex.PG). He got prepared report under section 173 Cr.P.C and submitted through the SHO concerned. 5. Lady Dr. Shumaila Naz (PW-7) had conducted autopsy on the dead body of deceased Mst. Samina Bibi on 04.04.2016 at about 7.10 p.m. and observed two dirty black colour impressions on both sides of the neck. On receipt of report of PFSA, she formed an opinion that death occurred in asphyxia mode along with poisoning. Duration between injury and death was immediate, whereas, between death and postmortem examination report 14 to 20 hours. 6. At the commencement of the trial, the learned trial Court had framed a charge against the appellant to which he had pleaded not guilty and claimed to be tried. 7. The prosecution had produced 12-witnesses beside the report of Punjab Forensic Science Agency (Ex.PN). The appellant in his statement recorded under Section 342 Cr.P.C. had denied and controverted all the allegations levelled against him, he neither opted to make statement under Section 340(2) Cr.P.C. nor produced any evidence in defence. 8. Learned trial Court, upon conclusion of the trial convicted and sentenced the appellant as stated above. Hence the aforementioned criminal appeal as well as the connected Murder Reference. 9. We have heard learned counsel for the appellant, learned Additional Prosecutor General appearing for the State and perused the record with their able assistance. 10. In this unfortunate case, a young girl aged about 21/22 years met with unnatural death in the intervening night of 3/4th day of April, 2016 inside her bed room and her legal heirs raised accusing fingers towards the husband/ appellant responsible for committing her murder, thus, there was no possibility of direct evidence and the prosecution has to establish its case on the basis of circumstantial evidence, which comprises of following pieces:- (i) Extra judicial confession. (ii) Medical evidence. (iii) Recovery of strips of tablets. First link in the chain of circumstantial evidence was the extra judicial confession of the appellant made before Muhammad Amir Nadeem (PW-6) and Muhammad Azeem (PW-8). Both of them while appearing in the dock in the court room unanimously stated that on 04.04.2016 upon hearing the news of death of Mst. Samina, they reached in the house of the appellant for obituary, when brother of the deceased namely Muhammad Adnan (PW-4)/complainant told them that his sister was murdered by the appellant. At about 2.00 p.m. appellant invited them and one Amir (given up PW) to a corner for telling them something and thereafter took them to the fields, where he confessed before them that he committed the murder of deceased by administering poisonous tablets and strangulating her and requested for managing pardon for him. Both the said witnesses were cross-examined but they remained firm and consistent on material points and the prosecution has failed to extract any favourable material from their mouths. A question might arise in a prudent mind that why would the appellant confess his guilt before the aforesaid PWs for inviting trouble for him, the answer is first of all the appellant tried to give the murder, a colour of natural death but when the legal heirs of the deceased decided to get lodge the criminal case against him qua the murder of deceased, he in order to save his skin attempted to manage the situation. Muhammad Amir Nadeem, (PW-6) belongs to Lamberdar family of village of the complainant and in our rural set up no one can deny the influence of said family upon the villagers. Similarly, Muhammad Azeem, (PW-8) was close family relative of the complainant, as such he was also a suitable person to use his influence for securing clean chit to the appellant, therefore, keeping in mind these factors the appellant made extra judicial confession before them. Moreso, both the witnesses were neutral persons having no direct relationship with the complainant and at the same time have no animosity or ill will against the appellant for falsely involving him in the charge of capital punishment. Even the appellant in his statement recorded under section 342 Cr.P.C. did not question the neutrality of these witnesses or even a slight indication of their hostility towards him. Both the witnesses faced the test of cross-examination with confidence, therefore, their evidence being free from any bias deserves consideration. 11. Second incriminating piece of evidence against the appellant was medical evidence. Lady Dr. Shumaila Naz, (PW-7) had conducted autopsy on the dead body of deceased Mst. Samina Bibi on 04.04.2016 at about 7.10 p.m. and observed two dirty black colour impressions on both sides of the neck. Duration between injury and death was immediate, whereas, death and postmortem examination report was 14 to 20 hours. According to her opinion death occurred due to asphyxia mode along with poisoning. Thus, medical evidence confirmed that deceased met with an unnatural death. 12. Third and most important piece of circumstantial evidence in this case is recovery of two empty strips of Lorazepam 2mg Arsopal from the place of occurrence and a packet of Lorazepam 2mg Arsopal got recovered by the appellant. At the time of postmortem examination of the deceased, her liver, lung, stomach, kidney, heart, brain and blood of the deceased were sent to the office of Punjab Forensic Science Agency, Lahore for expert opinion and according to the report of said office (Ex.PN), liver of deceased contained 11.195 mg/Kg Lorazepam. Two empty leaves of tablet were secured from the residential room of the deceased. The said room was in exclusive possession/ use of the appellant and his deceased wife and there is no possibility of plantation of said empty leaves of the tablet upon the appellant. Moreso, a packet of Lorazepam 2mg Arsopal got recovered by the appellant was also sent to the office of PFSA on 27.04.2016 and the report of said office has been received on 28.09.2016. Till the arrival of report of PFSA, even no medical expert was in a position to determine what kind of poisonous material was administered to the deceased, except the person who administered the same. Presence of two empty leaves of tablets at the spot and getting recover rest of the same tablets by the appellant himself much prior to the report of PFSA shows that the appellant was responsible for administering huge quantity of tablets to the deceased. There is no cavil to the proposition that such kind of tablets are available in the medical stores and can easily be secured for the purpose of plantation but here in this particular case, the appellant himself disclosed the name of the Mughal Medical Store owned by Haroon son of Mukhtar from where he purchased the said tablets and the Investigating Officer (PW-12) while appearing in the witness box deposed that he joined said Haroon during investigation, who confirmed purchase of tablets by the appellant and he placed his statement on record. Moreso, as has been discussed supra prior to the report of PFSA, the prosecution could not take risk of planting the same on its own, as if in the end, in the report of PFSA some other material detected, then it would have serious consequences qua the veracity of prosecution story. Thus, we can safely conclude that the recovery lends full support to the prosecution story. 13. Learned counsel for the appellant laid much emphasis that there is no eye-witness of the occurrence, who saw the appellant committing the murder of deceased and the entire case of the prosecution is based on suspicion, which whosoever strong was cannot be made basis for maintaining the conviction and sentence of the appellant. This submission of the learned counsel is repelled. No doubt it was the duty of the prosecution to prove the guilt of an accused beyond the shadow of doubt which as has been discussed supra has successfully been discharged by it but at the same we may not ignore that where a wife met with an unnatural death inside the privacy of room at odd hours of the night, the only one person who has access to the bedroom was the husband and he was the sole person, who has exclusive knowledge as to what happened to his wife inside the room, as such onus was also shifted upon him to prove this fact. In this regard reference can be made to Article 122 of Qanun-e-Shahadat 1984 which for ready reference is reproduced as under:- "122. Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person the burden of proving that fact is upon him." Herein the instant case, two dirty scars around the neck of the deceased were visible as noted by the Medical Officer but the appellant who was supposed to be the protector of his wife, instead of exploring cause of such marks on the neck of deceased, prematurely announced that the deceased died due to cardiac arrest. This haste on the part of the appellant suggested something fishy on his part. It is, therefore, observed that in cases where the offence is committed in a privacy of room, no doubt initial burden is upon the prosecution but the onus would comparatively be of lighter nature and if the husband or the wife as the case may be failed to offer an explanation how his/her partner met with unnatural death inside the bedroom, the same can be considered an additional factor qua his/her guilt. 14. Besides above, in such like cases where the offence was committed in the privacy of room, the first version of the accused is of much significance. Here in the instant case, at the time of arrest of the appellant, he disclosed that from the day one, he intends to marry younger sister of the deceased namely Anam Bibi but the family of the deceased was not ready to give hand of their younger daughter in the presence of elder, as such his marriage was arranged with the deceased. However, he made his mind to get married with Anam Bibi, but for achieving this goal deceased was the main hurdle and he made different plans to remove her from his way. On the fateful day, he arranged intoxicant pills and after grinding the same asked the deceased to take the same for the treatment of abdomen pain. Thereafter, he kept on waiting for the death of the deceased. At about 2.00 p.m. when he observed that deceased was still breathing, he put a pillow on her mouth and choked her breath. Thereafter, around 3 a.m. (night), he told his family members and took the deceased to the hospital, where, the doctor confirmed her death. He informed the parents of deceased that she died due to cardiac arrest. During investigation first version of the appellant was found correct. It is well settled by now that first plea of an accused is admissible piece of evidence. Reliance is placed on case reported as "Raza and another v. The State and another (2020 SCMR 1185)", wherein it has…

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