Full Judgment Text & Judicial Ruling

2025 Y L R 2270 [Lahore (Multan Bench)] Before Sadiq Mahmud Khurram, J Mst. Nadia alias Nadu Mai---Appellant Versus The State---Respondent Criminal Appeal No. 10-J of 2021, heard on 4th December, 2024. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Non-availability of justification for the presence of witnesses at the time and place of occurrence---Chance witnesses, evidence of---Scope---Accused were charged for committing murder of the daughter of the complainant by pressing her neck---Perusal of the prosecution evidence revealed that the ocular account of the incident was narrated by the complainant and two eye-witnesses---Only one of the witnesses was the resident of the place of occurrence---Said witness did not join the investigation of the case on the day of occurrence, even after the FIR. had been registered---Admitted by the prosecution witnesses that the statement of the said witness was recorded with substantial delay, however, at the same time, the various prosecution witnesses made different claims regarding the date of recording of the statement of the witness under S.161, Cr.P.C---Said witness stated that after the occurrence, he was present at the place of occurrence when the police came and inquired from him regarding the incident---Contradicting the said claim of the said witness, the Investigating Officer of the case stated that the statement of the said witness was recorded for the first time on 28.12.2016 i.e., after as many as four months and eighteen days of the occurrence---No explanation, much less probable, had been given by the prosecution witnesses for the eye-witness not getting his statement under S.161, Cr.P.C., recorded immediately and therefore no value could be attached to his statement---Remaining two eye-witnesses also could not prove their arrival at the place and time of occurrence and their witnessing the incident---Said eye-witnesses were also admittedly not the residents of the place of occurrence---Accordingly to the prosecution, both of the said witnesses had their residences at a distance of about as much as about 5-6Acres from the place of occurrence---In that manner, both the remaining witnesses could be validly termed as "chance witnesses" and therefore were under a bounden duty to provide a convincing reason for their presence at the place and time of occurrence and were also under a duty to prove their presence by producing some physical proof of the same---Alleged eye-witnesses claimed that on the day of occurrence, they had gone to the place of occurrence in order to measure a newly constructed room there---During the cross-examination, prosecution witnesses were badly exposed with regard to that there did not exist any reason for their arrival at the place of occurrence, at the time of occurrence---Proven failure of the said witnesses to prove their reason for their arrival at the place of occurrence, on the very day of the incident, had repercussions, proving that there was no reason actually for the witnesses to be visiting the place of occurrence---Very inception of the prosecution case was thus put in doubt due to the said abject failure of the witnesses---Prosecution was under a bounden duty to establish not only that the witnesses had a reason to proceed to the place of occurrence however, failure of the prosecution to prove the said fact had vitiated the trust of this Court in said witnesses as being truthful witnesses---Appeal against conviction was allowed, in circumstances. Abdul Khaliq v. The State 1996 SCMR 1553; Muhammad Khan v. Maula Bakhsh 1998 SCMR 570; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Muhammad Rafiq v. State 2014 SCMR 1698; Usman alias Kaloo v. State 2017 SCMR 622 and Nasrullah alias Nasro v. The State 2017 SCMR 724 rel. (b) Criminal Procedure Code (V of 1898)--- ----S. 161---Delayed statement of witness---Scope---Delayed recording of the statement of a prosecution witness under S.161, Cr.P.C., reduces its value to nothing unless there is a plausible explanation for such delay. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Presence of witnesses at the time and place of occurrence not proved---Accused were charged for committing murder of the daughter of the complainant by pressing her throat---Eye-witnesses claimed that the occurrence took place exactly at the time when they had arrived at the place of occurrence---Said narrative of the witnesses that the accused kept waiting for the arrival of the witnesses at the place of occurrence and thereafter committed the same wasunnatural and could not be believed---Moreover, it opposed to human conduct that an assailant would keep waiting for the arrival of the witnesses prior to the commission of the offence---All the more illogical that being perceptive of the fact that by pending the matter the accused run the risk of the arrival of the witnesses and their deposing against the accused, even then the assailant kept waiting for their arrival---Such behavior, on the part of the accused, as deposed by the witnesses, ran counter to natural human conduct and behavior---Hence, being perceptive of that strain of human conduct, the Court was holding that the witnesses were not present at the time and place of occurrence and had not witnessed the occurrence---Appeal against conviction was allowed, in circumstances. State through Advocate-General, Khyber Pakhtunkhwa, Peshawar v. Hassan Jalil and others 2019 SCMR 1154 and Muhammad Imran v. The State 2020 SCMR 857 rel. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Unnatural conduct of eye-witnesses---Accused were charged for committing murder of the daughter of the complainant by pressing her throat---Record showed that the alleged eye-witnesses made no effort either to save the deceased or to apprehend the accused when they were three in number and could have easily restrained the accused---Claim of the witnesses that the accused, a woman, was not even armed with any weapon and still they did not make any effort either to apprehend the accused or save the deceased---Unnatural and unbelievable that the alleged eye-witnesses did not even move a limb to protect their near and dear one---No person having ordinary prudence would believe that such closely related witnesses would remain watching the proceedings as mere spectators for as long as the occurrence continued without doing anything to rescue the deceased or to apprehend the assailant---Such fact only proved that the deceased was at the mercy of the assailant and no one was there to save her---Such behaviour, on the part of the witnesses, ran counter to natural human conduct and behavior---Appeal against conviction was allowed, in circumstances. Pathan v. The State 2015 SCMR 315; Shahzad Tanveer v. The State 2012 SCMR 172 and Liaquat Ali v. The State 2008 SCMR 95 rel. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Ocular account and medical evidence---Contradictions---Accused were charged for committing murder of the daughter of the complainant by pressing her throat---Ocular account of the occurrence as furnished by the eye-witnesses was inconsistent with the medical evidence as furnished by Medical Officer and flawed beyond mending, resulting in disfiguring the complexion of the whole prosecution case beyond reparation and recognition---According to the statements of the witnesses, they had seen the appellant, pressing the neck of the deceased with her hands and kept pressing the same till the deceased died---However, Medical Officer, on examining the dead body of deceased did not observe any marks of violence on the neck of the dead body of the deceased---Had the deceased been throttled in the manner as stated by witnesses then Medical Officer must have observed the evidence of marks of pressure by the thumb and the fingertips, fingertip bruises, linear or crescentic marks produced by the fingernails, abrasions and bruises on the mouth, nose, cheeks, forehead, lower jaw or any other part of the body, however she did not---Oral account of the occurrence, as given by eye-witnesses, could not be said to be in accordance with the medical evidence, rather was proved to be contrary to it---Appeal against conviction was allowed in circumstances. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Co-accused acquitted on same set of evidence---Accused were charged for committing murder of the daughter of the complainant by pressing her throat---Record showed that two co-accused were acquitted, who were named as accused and specific roles were also attributed to them of holding the deceased during the incident, however, both were acquitted by the Trial Court after their application under S.265-K, Cr.P.C., was accepted---Acquittal of said two co-accused had attained finality as neither the State nor the complainant or any other aggrieved person had filed any appeal against the acquittal of the said accused of the appellant---Admittedly, common set of witnesses could be used for recording acquittal and conviction against the accused persons who were charged for the commission of same offence---If a witness was not coming out with the whole truth, then his evidence was liable to be discarded as a whole---Meaning thereby that evidence of such witness could not be used either for convicting the accused or acquitting some of them facing trial in the same case---All the prosecution witnesses attributed specific roles to both the co-accused of the appellant of holding the deceased during the incident, however, the said witnesses were found to have made false statements with regard to the co-accused of the appellant---Thus, court neither found any independent corroboration of the prosecution case against the appellant nor to distinguish the case of the appellant from the case of the acquitted co-accused as the evidence with regard to the appellant and with regard to her acquitted co-accused was similar---Hence, there was no reason to believe the statements of the witnesses with regard to the appellant in the absence of any reason to do so---Therefore, the evidence of eye-witnesses had no worth and deserved outright rejection---Appeal against conviction was allowed, in circumstances. Criminal Miscellaneous Application No. 200 of 2019 in Criminal Appeal No. 238-L of 2013 PLD 2019 SC 527; Tariq v. The State 2017 SCMR 1672; Munir Ahmed and others v. The State and others 2019 SCMR 2006 and Safdar Abbas and others v. The State and others 2020 SCMR 219 rel. (g) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Motive not proved---Accused were charged for committing murder of the daughter of the complainant by pressing her throat---Motive of the occurrence as stated by the witnesses was that the deceased and the appellant had an altercation just before the occurrence due to the damage to the plate put on the oven by the deceased which resulted in the said incident---However, the eye-witnesses failed to prove the motive of the occurrence as stated by them---Investigating Officer of the case on his visit to the place of occurrence did not find any such damaged plate (Thaal) present at the place of occurrence nor any such damaged plate (Thaal) was produced before him during the investigation of the case as proof of the motive of the incident---Investigating Officer of the case on his visit to the place of occurrence took into possession all the available evidence from the place of occurrence, however, did not take any such damaged plate (Thaal) even observed any such damaged plate (Thaal), amply proving that the motive alleged was absolutely false---Perusal of the statements of the witnesses amply proved that there was no evidence on record that deceased was facing any threat to her life at the hands of the appellant prior to the occurrence rather, to the contrary, she was living with the appellant and other relatives till her tragic death---Prosecution witnesses failed to provide evidence enabling the Court to determine the truthfulness of the motive alleged and the fact that the said motive was so compelling that it could have led the appellant to have committed the qatl-i-amd of the deceased---Moreover, there was a poignant hush with regard to the particulars of the motive alleged---No independent witness was produced by the prosecution to prove the motive as alleged---Appeal against conviction was allowed in circumstances. (h) Criminal trial--- ----Evidence, corroboration of---Principle---One tainted piece of evidence cannot corroborate another tainted piece of evidence. Muhammad Javed v. The State 2016 SCMR 2021 rel. (i) Criminal trial--- ----Abscondence---Scope---Abscondence of an accused can be used as a corroborative piece of evidence, which cannot be read in isolation but it has to be read along with the substantive pieces of evidence. Asadullah v. Muhammad Ali PLD 1971 SC 541; Rasool Muhammad v. Asal Muhammad 1995 SCMR 1373; Muhammad Sadiq v. Najeeb Ali 1995 SCMR 1632; Muhammad Khan v. State 1999 SCMR 1220; Gul Khan v. State 1999 SCMR 304; Muhammad Arshad v. Qasim Ali 1992 SCMR 814; Pir Badshah v. State 1985 SCMR 2070; Amir Gul v. State 1981 SCMR 182; Muhammad Farooq and another v. The State 2006 SCMR 1707; Nazim Khan and 2 others v. The State 1984 SCMR 1092 and Rohtas Khan v. The State 2010 SCMR 566 rel. (j) Criminal trial--- ----Benefit of doubt---Principle---If only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. Muhammad Mansha v. The State 2018 SCMR 772 and Najaf Ali Shah v. The State 2021 SCMR 736 rel. Ms. Laraib Rehmat for Appellant. Ansar Yasin, Deputy Prosecutor General for the State. Kunwar Farhan Ahmad for the Complainant. Date of hearing: 4th December, 2024. Judgment Sadiq Mahmud Khurram, J.---Nadia alias Nadu Mai wife of Muhammad Bilal (convict) was tried by the learned Additional Sessions Judge, Dera Ghazi Khan in the case FIR No. 204 of 2016 dated 10.08.2016 registered in respect of offences under sections 302 and 34 P.P.C. at the Police Station Choti, District Dera Ghazi Khan, for committing the Qatl-i-Amd of Kalsoom Mai wife of Muhammad Iqbal (deceased). The learned trial court, vide judgment dated 14.12.2020, convicted Nadia alias Nadu Mai wife of Muhammad Bilal(convict) and sentenced her as infra: Nadia alias Nadu Mai wife of Muhammad Bilal: Imprisonment for Life under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Kalsoom Mai wife of Muhammad Iqbal (deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of Kalsoom Mai wife of Muhammad Iqbal (deceased) and in case of default thereof, the convict was directed to undergo further six months of simple imprisonment. The appellant was, however, extended the benefit available under Section 382-B of the Code of Criminal Procedure, 1898 by the learned trial court. 2. Feeling aggrieved, Nadia alias Nadu Mai wife of Muhammad Bilal (convict) lodged the instant Criminal Appeal No.10-J of 2021 through jail assailing her conviction and sentence. 3. Precisely, the necessary facts of the prosecution case, as narrated by Muhammad Bukhsh (PW-4), the complainant of the case, are as under:- "I am labourer by profession. About 8 to 10 years ago I got married my daughter namely Mst.Kalsoom Mai with Muhammad Iqbal son of Ghulam Rasool. Out of the said wedlock two daughters and three sons were born. Ghulam Rasool i.e father in law of Mst.Kalsoom Bibi and Mst.Shamoo Mai i.e mother in law of Mst.Kalsoom Bibi were not behaving with Kalsoom Bibi properly and use to maltreat and torture her. On 10- 08-2016 at 05:00pm evening I along with Nasarullah and Ghulam Raza son of Bakhshan went to the house of Mst.Kalsoom Bibi for the measurement of a newly constructed room there and on hearing hue and cry, we saw that Mst.Nadoo Mai accused present in the court under custody laid down Mst.Kalsoom Mai on the ground and were pressing her throat while Ghulam Rasool was catching her both legs, whereas Mst.Shamoo Mai were catching her arms. Jalal son of Mst.Kalsoom Mai aged 8/9 years was that weeping. Upon query Jalal apprised that his mother Kalsoom Mai put a "Thhal" on the "Tandoor", as a result of which the said "Thhal" has become damaged by falling the wall on the said "Thhal". Mst.Nadoo Mai, Ghulam Rasool and Mst.Shamoo Mai quarrel with Mst.Kalsoom Mai upon the said incident. We attended Mst.Kalsoom Mai but she had been died. For further satisfaction I called a private ambulance for medical check up of Mst.Kalsoom Mai from DHQ Hospital, DG Khan (Trauma Center). Upon the examination, doctor give the opinion that Mst.Kalsoom Mai has been died due to pressing of her throat. Police came there and recorded my statement which is Ex.P-B and I put my signatures upon the same which is Ex.P-B/1. Police escorted the dead body of Mst.Kalsoom Mai to the DHQ Hospital, DG Khan for conducting the autopsy of Mst.Kalsoom Mai. After the postmortem of Mst.Kalsoom Mai the dead body of Mst.Kalsoom Mai was handed over to me by the police and I made the signatures upon the receipt of receiving the dead body, which is Ex.P-C. On 11-08-2016 police came at the spot and prepared the site plan of the place of occurrence." 4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court and the appellant namely Nadia alias Nadu Mai wife of Muhammad Bilal was sent to face trial. The learned trial court framed the charge against the accused on 22.01.2020, to which the accused pleaded not guilty and claimed trial. 5. The prosecution in order to prove its case got statements of as many as fifteen witnesses recorded. Muhammad Bukhsh (PW-4), Nasrullah (PW-5) and Muhammad Jalal (PW-12) furnished the case's ocular account. Munir Ahmad, 945/HC (PW-2) stated that on 11.08.2016, the Investigating Officer of the case, handed over to him the last worn clothes of the deceased, two envelopes, six sealed jars and one sealed syringe and on 11.08.2016, he handed over all the above said parcels to Sajid Majeed, ASI (PW-1) for depositing them in the office of the Punjab Forensic Science Agency, Lahore. Tanveer Hussain Jafri, Draftsman (PW-3)prepared the scaled site plan of the place of occurrence (Exh.PA). Muhammad Ismail, ASI (PW-6) stated that he executed the non-bailable warrants of arrest issued for the appellant and also received the proclamation under section 87 Cr.P.C. Abdul Rehman SI (PW-11) stated that he was familiar with the handwriting of Muhammad Sarwar ASI (since dead) and he identified that the formal FIR (Exh.PB/4) was registered by Muhammad Sarwar ASI (since dead) on 10.08.2016. Ghulam Fareed 690/C (PW-14) stated that on 10.08.2016, he escorted the dead body of the deceased to the hospital and received the last worn clothes of the deceased from the Woman Medical Officer after the post-mortem examination of the dead body of the deceased. Muhammad Sharif (PW-15) stated that on 10.08.2016, he identified the dead body of the deceased at the time of post-mortem examination . Abdul Rehman, SI (PW-7), investigated the case from 31.10.2016 till 26.01.2017 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Sajjad Hussain, Inspector (PW-9) investigated the case from 10.08.2016 till 28.10.2016 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. 6. The prosecution also got Dr. Afroze Gul (PW-8) examined who, on 10.08.2016, was posted as Woman Medical Officer at the RHC Choti Zaireen and on the same day had conducted the post-mortem examination of the dead body of the deceased namely Kalsoom Mai wife of Muhammad Iqbal. On conducting the post mortem examination of the dead body of the deceased namely Kalsoom Mai wife of Muhammad Iqbal, Dr. Afroze Gul (PW-8) opined as under:- "RESULT and CONCLUSION. The cause of death which was under observation is declared on the basis of keeping in view the fracture of hyoid bone which is ante-mortem in nature. The cause of death is manual strangulation leading to asphyxia due to interference at the level of neck." 7. On 20.11.2020, the learned Assistant District Public Prosecutor gave up the prosecution witnesses namely Kaleem Ullah and Muhammad Raza as being unnecessary and closed the prosecution evidence after tendering in evidence the reports of the Punjab Forensic Science Agency, Lahore (Exh.PG and Exh.PH) . 8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Nadia alias Nadu Mai wife of Muhammad Bilal under section 342 Cr.P.C. and in answer to the question why this case against you and why the P.W.s have deposed against you, she replied that she had been involved in the case falsely and was innocent. The appellant namely Nadia alias Nadu Mai wife of Muhammad Bilal opted not to get herself examined under section 340(2) Cr.P.C. and did not adduce any evidence in her defence. 9. On the conclusion of the trial, the learned Additional Sessions Judge, Dera Ghazi Khan convicted and sentenced the appellant as referred to above. 10. The contention of the learned counsel for the appellant precisely was that the whole case was fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible, and relevant evidence. Learned counsel for the appellant further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, was highly improbable. Learned counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence due to suspicion alone. The learned counsel for the appellant finally submitted that the prosecution had totally failed to prove the case against the accused beyond the shadow of a doubt. 11. On the other hand, the learned Deputy Prosecutor General and the learned counsel for the complainant contended that the prosecution had proved its case beyond the shadow of a doubt by producing independent witnesses. The learned Deputy Prosecutor General and the learned counsel for the complainant further argued that the deceased died as a result of injuries suffered at the hands of the appellant. The learned Deputy Prosecutor General and the learned counsel for the complainant further contended that the medical evidence also corroborated the statements of Muhammad Bukhsh (PW-4) and Nasrullah (PW-5) as well as Muhammad Jalal (PW-12). The learned Deputy Prosecutor General and the learned counsel for the complainant contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly, the learned Deputy Prosecutor General and the learned counsel for the complainant prayed for the rejection of the appeal. 12. I have heard the learned counsel for the appellant, the learned counsel for the complainant, the learned Deputy Prosecutor General and with their able assistance, perused the record and evidence recorded during the trial. 13. A perusal of the prosecution evidence reveals that the ocular account of the incident was narrated by the prosecution witnesses namely Muhammad Bukhsh (PW-4) and Nasrullah (PW-5) as well as Muhammad Jalal (PW-12). This Court would firstly discuss the evidence of the prosecution witness namely Muhammad Jalal (PW-12) as according to the prosecution case, he was the only witness who was the resident of the place of occurrence. A perusal of the prosecution evidence reveals that the prosecution witness namely Muhammad Jalal (PW-12) did not join the investigation of the case on the day of occurrence, even after the FIR (Exh.PB/4) had been registered on 10.08.2016. It was admitted by the prosecution witnesses that the statement of the prosecution witness namely Muhammad Jalal (PW-12) was recorded with substantial delay, however, at the same time, the various prosecution witnesses made different claims regarding the date of recording of the statement of the prosecution witness namely Muhammad Jalal (PW-12) under section 161 Cr.P.C. In this regard, it has been observed that the prosecution witness namely Muhammad Jalal (PW-12) stated that after the…

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