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Official Citation: 2023 LHC 5484
Court / Jurisdiction: Lahore High Court
Year of Decision: 2023
Decision Date: 2023-10-17
Parties: Mst. Shabana Kausar, The State vs The State, Mst. Shabana Kausar
Ruling Summary: This decision was rendered by the Lahore High Court on 2023-10-17, officially reported as 2023 LHC 5484. In this matter between Mst. Shabana Kausar, The State and The State, Mst. Shabana Kausar, 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 2023LHC5484
Court Name: Lahore High Court Judge(s): Malik Shahzad Ahmad Khan, Farooq Haider Title: Mst. Shabana Kausar, The State vs The State, Mst. Shabana Kausar Case No.: Criminal Appeal No. 44164-J of 2021, Murder Reference No. 118 of 2021 Date of Judgment:2023-10-17 Reported As: 2023 LHC 5484, PLJ 2024 Cr.C. 449 Result: Appeal Set aside
JUDGMENT
JUDGMENT MALIK SHAHZAD AHMAD KHAN, J:- This judgment shall decide Criminal Appeal No. 44164-J of 2021, filed by Mst. Shabana Kausar appellant (through jail) against her conviction and sentence and Murder Reference No. 118 of 2021, sent by the learned trial Court for confirmation or otherwise of the Death sentence awarded to Mst. Shabana Kausar (appellant). We propose to dispose of both these matters by this single judgment as these have arisen out of the same judgment dated 28.06.2021 passed by the learned Sessions Judge, Hafizabad. 2. The appellant, namely, Mst. Shabana Kausar was tried in case FIR No. 486 dated 06.08.2020 registered at Police Station Sadar District Hafizabad, offences under Sections 363/302/201 of PPC. After conclusion of the trial, the learned trial Court vide its judgment dated 28.06.2021 has convicted and sentenced Mst. Shabana Kausar (appellant) as under: - Under Section 302(b) PPC to 'Death' as Ta'zir for committing Qatl-i-Amd of minor Anaya Fatima (deceased). She was also ordered to pay Rs.24,00,000/- (Rupees twenty four hundred thousand only) to the legal heirs of the deceased as compensation under Section 544-A of Cr.P.C, recoverable as arrears of land revenue and in default thereof, to further undergo simple imprisonment for six months. Under Section 201 PPC to undergo 07 years R.I with fine of Rs.100,000/- and in default thereof, to further undergo simple imprisonment for three months. 3. Initially on the complaint (Exh.PA) of Liaqat Ali complainant (PW-1), FIR (Exh.PA/1) was lodged for offence under Section 363 of PPC, with the averments that he (complainant) was resident of Ahmadpur Chatha District Hafizabad and an agriculturist by profession. On 05.08.2020 at 04:00 p.m., his (complainant's) daughter, namely, Anaya Fatima (deceased) aged about 06 years along
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with her mother, namely, Mst. Nabeela Bibi (PW-2) went to the cattle shed, where real brother of the complainant, namely, Riasat Ali (PW-4) was residing. Mst. Nabeela Bibi (PW2) returned to her house after taking meat from the freezer, whereas, daughter of the complainant, namely, Anaya Fatima (deceased) kept on playing there. Minor Anaya Fatima (deceased) did not return to her house for some time, whereupon, the complainant along with Awais Babar (PW-3) and Tariq Hussain (given up PW) started to trace her out but she could not be found. The complainant expressed his apprehension that some one had abducted his minor daughter, therefore, he lodged FIR (Ex.PA/1) under Section 363 PPC, against unknown accused. After registration of the FIR (Exh.PA/1) on 06.08.2020, Liaqat Ali complainant (PW-1) got recorded his supplementary statement (Exh.PB) on the same day i.e., on 06.08.2020 by alleging that he (complainant) was standing in front of his 'havaili' in order to trace out minor Anaya Fatima and in the meanwhile, his (complainant's) brother, namely, Riasat Ali (PW-4) and his (complainant's) nephew, namely, Awais Babar (PW-3) came there, one after the other, who told the complainant that second wife of the complainant, namely, Mst. Shabana alias Rani (appellant) confessed before them (PW-3 & PW-4) that she (appellant) had committed the murder of minor Anaya Fatima and had hidden her dead body. She (appellant) requested them (PW-3 & PW-4) to get herself pardoned. The complainant also introduced the motive through the aforementioned supplementary statement/application (Exh.PB), while stating that his second wife, namely, Mst. Shabana Kausar (appellant) used to quarrel with his first wife, namely, Mst. Nabeela (PW-2) (real mother of minor Anaya Fatima deceased) and that was the motive behind the occurrence. On the basis of aforementioned supplementary statement/application (Exh.PB), offences under Sections 302/201 of PPC were added in this case. 4. Mst. Shabana Kausar (appellant) was arrested in this case on 06.08.2020 by Hafiz Ghulam Shabbir, Sub Inspector (PW-10). On 06.08.2020, appellant made disclosure and led to the recovery of the dead body of minor Anaya Fatima (deceased) vide recovery memo (Exh.PC). After completion of investigation, report under Section 173 of Cr.P.C., was prepared and submitted before the learned trial Court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant on 12.11.2020 to which she pleaded not guilty and claimed trial. 5. In order to prove its case, the prosecution produced twelve witnesses during the trial. The prosecution also produced documentary evidence in the shape of (Exh.PA) to (Exh.PP). 6. The statement of Mst. Shabana Kausar (appellant) under Section 342 of Cr.P.C. was recorded by the learned trial Court. Mst. Shabana Kausar (appellant) refuted the allegations levelled against her and professed her innocence. The appellant neither opted to make her statement on oath as envisaged under Section 340 (2) Cr.P.C., nor produced any evidence in her defence. The learned trial Court vide its judgment dated 28.06.2021 found Mst. Shabana Kausar (appellant) guilty, convicted and sentenced her as mentioned and detailed above. 7. It is contended by learned counsel for the appellant that the appellant is absolutely innocent and she has falsely been implicated in this case by the complainant party being in league with the local police; that Mst. Nabeela Bibi (PW-2) who is second wife of the complainant and real mother of the minor deceased was annoyed with the appellant due to her love marriage with the complainant as his third wife therefore, she (Mst. Nabeela Bibi PW-2) with the help of her other family members has made the appellant a scapegoat in this unseen occurrence; that the prosecution case hinges upon a very weak and unreliable circumstantial evidence; that no motive was alleged by the complainant in the contents of the FIR and the motive subsequently introduced by the prosecution through supplementary statement of the complainant has not been proved in
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this case through any reliable evidence; that evidence regarding the alleged extrajudicial confession of the appellant made before Awais Babar (PW-3) and Riasat Ali (PW-4) is also not worthy of reliance because according to the statements of the abovementioned witnesses, Mst. Shabana Kausar (appellant) made extrajudicial confession before them on 06.08.2020 at 03:30 p.m., whereas, according to the statement of Liaqat Ali complainant (PW-1), the appellant was arrested in this case by the police on 06.08.2020 at 12:00 noon and as such, at the time & date of alleged extrajudicial confession of the appellant before the abovementioned PWs, she was already in police custody; that both the abovementioned witnesses of extrajudicial confession have admitted that they did not try to apprehend the appellant at the time of making of extrajudicial confession which is against the natural human conduct; that it is a common practice in our society that the evidence of extrajudicial confession is usually concocted by the prosecution in the cases of unseen occurrences to strengthen its weak case; that medical evidence has not supported the prosecution case because according to the prosecution case, Mst. Shabana Kausar (appellant), before committing the murder of minor Anaya Fatima (deceased), gave beating to her and also threw her on the ground but Dr. Anam Zafar (PW-6) did not notice any injury on the entire body of the minor deceased; that according to the prosecution case, the appellant committed the murder of minor Anaya Fatima while putting her head in a water bucket but no water bucket has been recovered in this case; that the recovery of dead body on pointing out of the appellant from the almirah of her house is also not reliable because in the same house, Liaqat Ali complainant (PW-1), as well as, Mst. Nabeela Bibi (PW-2), Riasat Ali (PW-4) and other family members were also residing; that key of the abovementioned almirah was not produced by the appellant therefore, the locks were broken to recover the dead body of minor Anaya Fatima (deceased); that positive report of PFSA regarding presence of DNA profile of the appellant on the nylon sack, wherefrom the dead body of minor Anaya Fatima was recovered, is of no avail to the prosecution because the said nylon sack was sent to the office of PFSA after the appellant was forced to get recovered and pick the said sack from the almirah of her house; that safe custody of the abovementioned sack has also not been proved in this case; that even otherwise, mere recovery of dead body on pointing out of the appellant, by itself, is not sufficient to sustain conviction of the appellant under the capital charge in absence of other reliable corroborative evidence; that the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt therefore, the appeal filed by the appellant may be accepted and she may be acquitted from the charges. 8. On the other hand, it is contended by the learned Deputy Prosecutor General for the State assisted by learned counsel for the complainant that the prosecution has produced convincing and reliable circumstantial evidence against the appellant therefore, she was rightly convicted & sentenced by the learned trial Court; that motive of the prosecution has also been proved in this case through trustworthy evidence of the prosecution witnesses who stated that the appellant committed the murder of minor Anaya Fatima as she (appellant) used to quarrel with the mother of the minor deceased and it was also brought on the record that minor Anaya Fatima used to break and steal away the toys of the son of the appellant and due to this grudge, she (appellant) committed her murder; that according to the inquest report (Exh.PK), there were injuries on the body of minor Anaya Fatima (deceased) and clotted blood was also present in the ears and nostrils of the deceased which supports the prosecution case that minor Anaya Fatima (deceased) was firstly beaten by the appellant and thereafter, she was murdered by her; that recovery of dead body of minor Anaya Fatima (deceased) on pointing out of the appellant from the almirah situated in her room is a very strong piece of corroborative evidence against the appellant and the said evidence could not be shaken during the cross-examination of the witnesses of abovementioned recovery; that the positive report of PFSA (Exh.PF/3) regarding the presence of DNA profile of the appellant on the nylon sack wherefrom the dead body of minor
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Anaya Fatima (deceased) was recovered has further corroborated the prosecution case against the appellant; that the appellant also made extrajudicial confession before Awais Babar (PW-3) and Riasat Ali (PW4) and the obliging statement of Liaqat Ali complainant (PW-1), who is also the husband of the appellant, regarding the time of arrest of the appellant is of no avail to the appellant because Hafiz Ghulam Shabbir Sub Inspector/I.O (PW-10) has categorically stated that the appellant was arrested on 06.08.2020 at 05:30 p.m.; that there is no substance in the appeal filed by the appellant therefore, the same may be dismissed and murder reference be answered in the affirmative. 9. Arguments heard. Record perused. 10. The detail of the prosecution case as set forth by the complainant in the FIR (Exh.PA/1) and in the supplementary statement/application of the complainant (Exh.PB), has already been given in para No.3 of this judgment therefore, there is no need to repeat the same. 11. Since there is no direct evidence and prosecution case hinges upon the circumstantial evidence, therefore, utmost care and caution is required for reaching at a just decision of the case. It is settled by now that in such like cases every circumstance should be linked with each other and it should form such a continuous chain that its one end touches the dead body and other to the neck of the accused. But if any link in the chain is missing then its benefit must go to the accused. In this regard, guidance has been sought from the judgments of the Apex Court of the country reported as 'Ch. Barkat Ali Vs. Major Karam Elahi Zia and another' (1992 SCMR 1047), 'Sarfraz Khan Vs. The State' (1996 SCMR 188) and 'Asadullah and another Vs. The State' (PLJ 1999 SC 1018). In the case of "Ch. Barkat Ali" (supra), the august Supreme Court of Pakistan, at page 1055, observed as under:- "...Law relating to circumstantial evidence that proved circumstances must be incompatible with any reasonable hypothesis of the innocence of the accused. See 'Siraj vs. The Crown' (PLD 1956 FC 123). In a case of circumstantial evidence, the rule is that no link in the chain should be broken and that the circumstances should be such as cannot be explained away on any hypothesis other than the guilt of the accused." In the case of "Sarfraz Khan (supra), the august Supreme Court of Pakistan, at page 192, held as under:- "7....It is well settled that circumstantial evidence should be so inter-connected that it forms such a continuous chain that its one end touches the dead body and other neck of the accused thereby excluding all the hypothesis of his innocence." Further reliance in this context is placed on the case of 'Altaf Hussain Vs. Fakhar Hussain and another' (2008 SCMR 1103) wherein, at page 1105 it was held by the Hon'ble Supreme Court as under:- "7....Needless to emphasis that all the pieces of evidence should be so linked that it should give the picture of a complete chain, one corner of which should touch the neck of the deceased and other corner to the neck of the accused. Failure of one link will destroy the entire chain." Keeping in view the parameters, laid down in the above-mentioned judgments, we proceed to decide this case. 12. It is noteworthy that Mst. Shabana Kausar (appellant) was admittedly the 3rd wife of Liaqat Ali complainant (PW-1). Allegation against the appellant is that she committed the murder of minor Anaya Fatima aged about 06 years, who was the daughter from the 2nd wife of the complainant, namely, Mst. Nabeela Bibi (PW-2). On the other hand, it is stance of learned counsel for the appellant that Mst. Nabeela Bibi (PW-2) who is second wife of the complainant and real mother of the minor deceased was annoyed with the appellant due to her love marriage with the complainant as his third wife, therefore, the appellant has been made a scapegoat in this case of
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unseen occurrence. We have noted that in order to prove its case, the prosecution has produced different pieces of circumstantial evidence. i) Motive. ii) Evidence of extrajudicial confession of the appellant before Awais Babar (PW-3) & Riasat Ali (PW-4). iii) Medical Evidence & reports of PFSA regarding visceras of the deceased. iv) Recovery of dead body of minor Anaya Fatima on pointing out of the appellant. v) DNA test report. I. Motive. 13. Insofar as the motive part of the prosecution case is concerned, it is noteworthy that no motive whatsoever, was alleged in the contents of the FIR (Exh.PA/1) which was lodged on the next day of the occurrence as the occurrence in this case took place on 05.08.2020, whereas, the FIR (Exh.PA/1) was lodged against unknown accused on 06.08.2020. Liaqat Ali complainant (PW-1) however, introduced motive through his supplementary statement which was made on the day of registration of FIR, i.e., on 06.08.2020, wherein he alleged that his 3rd wife, namely, Mst. Shabana Bibi (appellant) used to quarrel with his 2nd wife, namely, Mst. Nabeela Bibi (PW-2) and due to this grudge, Mst. Shabana Kausar (appellant) committed the murder of minor Anaya Fatima. It is an admitted fact that Mst. Nabeela Bibi (PW-2) has also a son from her wedlock with the complainant apart from minor Anaya Fatima (deceased) therefore, if the appellant wanted to teach a lesson to Mst. Nabeela Bibi (PW-2) due to the abovementioned grudge, then her son should have been the target of the appellant. It is also an admitted fact that the appellant has herself a son from the abovementioned wedlock. We have further noted that in order to prove the abovementioned alleged motive, the star witness in this case was Mst. Nabeela Bibi (PW-2) but while appearing in the witness box, said Mst. Nabeela Bibi (PW-2) did not utter a single word regarding the abovementioned motive that the appellant ever quarreled with her. It is true that Liaqat Ali complainant (PW-1) while appearing in the witness box has stated that the appellant used to quarrel with his other wife, namely, Mst. Nabeela (PW-2) but if the abovementioned subsequently introduced motive is presumed to be correct then, under the circumstances, it was Mst. Nabeela Bibi (PW-2), who should have been the prime target of the appellant. There is no allegation by Liaqat Ali complainant (PW-1) or by any other family member of the complainant party that minor Anaya Fatima ever teased or quarreled with the appellant. We have further noted that Hafiz Ghulam Shabbir, Sub Inspector (PW10), who was the Investigating Officer of this case, stated that the appellant confessed before him (while in custody) that as minor Anaya Fatima deceased used to come to her room and break, as well as, steal the toys of her son therefore, she committed her murder but as mentioned earlier, no other witness of the prosecution including the parents of the deceased has stated the abovementioned motive while appearing in the witness box. Furthermore, the alleged confession of the appellant before the police while in custody qua the abovementioned second alleged motive is inadmissible in evidence. Moreover, the prosecution evidence qua the motive is self-contradictory because Liaqat Ali complainant (PW-1) alleged the motive of quarrel of the appellant with his second wife, whereas, Hafiz Ghulam Shabbir Inspector (PW-10) alleged a different motive of breaking & stealing of toys of the son of the appellant by the minor deceased. We are therefore, of the view that the motive alleged by the prosecution has not been proved in this case. II. EVIDENCE OF EXTRAJUDICIAL CONFESSION. 14. Insofar as the evidence of extrajudicial confession of Mst. Shabana Kausar (appellant) before Awais Babar (PW-3) and Riasat Ali (PW-4) is concerned, we have noted that both the abovementioned witnesses stated that on 06.08.2020 they were present in the house of Riasat Ali (PW-4). In the meanwhile, Mst. Shabana Kausar (appellant) came there and made extrajudicial confession that she had committed the murder of minor Anaya Fatima and she could get
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recovered her dead body. No time, date and place were mentioned by the abovementioned prosecution witnesses that as to when and where the appellant committed the murder of minor Anaya Fatima, according to her extrajudicial confession. Even the manner of occurrence was not disclosed by the abovementioned witnesses of extrajudicial confession that as to how the appellant committed the murder of minor Anaya Fatima deceased. We have further noted that the abovementioned prosecution witnesses were closely related to the complainant being maternal nephew and real brother of the complainant, respectively. They were two male adult members of the complainant party. On the other hand, Mst. Shabana Kausar (appellant) was alone and she was a female but both the abovementioned prosecution witnesses did not try to apprehend the appellant so that she may be handed over to the complainant or to the police. Statement of Awais Babar (PW3) in this respect reads as under: "After alleged extrajudicial confession by Shabana Kausar, I and Riasat Ali did not try to catch her." The conduct of abovementioned witnesses is highly unnatural. It is also noteworthy from the statements of abovementioned witnesses of extrajudicial confession that the appellant made extrajudicial confession before them on 06.08.2020 at 03:30 p.m., whereas, the other prosecution witness, namely, Liaqat Ali complainant (PW-1) stated during his cross-examination that Shabana Kausar accused (appellant) was arrested by the police on 06.08.2020 at 12:00 noon. Relevant parts of the statements of the abovementioned witnesses in this respect read as under:- Awais Babar (PW-3). "On 06.08.2020, I and Riasat Ali PW were sitting in verandah of Riasat Ali's House. Shabana Kausar accused came to us at about 03:30 p.m." Riasat Ali (PW-4). "Shabana Kausar accused came to us at about 03:00/03:30/04:00 p.m." Liaqat Ali complainant (PW-1). "Shabana Kausar accused was arrested by police on 06.08.2020 at about 12:00 noon." It is therefore, evident that at the date and time of alleged extrajudicial confession of the appellant given by Awais Babar (PW-3) and Riasat Ali (PW-4), the appellant was already arrested by the police, therefore, there was no occasion for the appellant to go to the house of Riasat Ali (PW-4) for making extrajudicial confession. It is true that Hafiz Ghulam Shabbir Sub Inspector/I.O (PW-10) has stated that Mst. Shabana Kausar (appellant) was arrested by him on 06.08.2020 at 05:30 p.m., but even regarding the time of arrest of the appellant, the prosecution evidence is self-contradictory because Liaqat Ali complainant (PW-1) has himself stated that the appellant was arrested by the police on 06.08.2020 at 12:00 noon. He was not got declared hostile by the prosecution. The prosecution has been heavily relying upon his other evidence qua the motive and recovery of dead body of the deceased. Furthermore, it is by now well settled that if a fact is capable of two interpretations then one favourable to the accused is to be accepted. Liaqat Ali (PW-1) is the complainant of this case and he categorically mentioned the fact regarding the arrest of the appellant by the police as 06.08.2020 at 12:00 noon. Under the circumstances, there was no chance with the appellant to make extrajudicial confession before Awais Babar (PW-3) and Riasat Ali (PW-4) on 06.08.2020 at 03:30 p.m., when according to the statement of the complainant, she was already arrested by the police on 06.08.2020 at 12:00 noon. Moreover, it is by now well settled that evidence of extrajudicial confession is a weak type evidence which can easily be procured in the cases of unseen occurrence to strengthen the weak prosecution case. Reliance in this respect may be placed on the case of 'Mst. Asia Bibi Vs The State and others' (PLD 2019 Supreme Court 64), wherein it was held as under: "....In this regard it is to be noted that this Court has repeatedly held that evidence of extra-judicial confession is a fragile piece of evidence and utmost care and caution has to be exercised in placing reliance on such a confession. It is always looked at with doubt and suspicion due to the
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ease with which it may be concocted. The legal worth of the extra-judicial confession is almost equal to naught, keeping in view the natural course of events, human behaviour, conduct and probabilities, in ordinary course." Similar view has been taken by the Hon'ble Supreme Court of Pakistan in the cases reported as 'Sarfraz Khan Vs The State and 2 others' (1996 SCMR 188), 'Sajid Mumtaz and others Vs Basharat and others' (2006 SCMR 231) & 'Hamid Nadeem Vs The State' (2011 SCMR 1233). Keeping in view all the abovementioned circumstances, we are of the view that evidence of extrajudicial confession brought on the record by the prosecution through Awais Babar (PW-3) and Riasat Ali (PW-4) is not worthy of reliance. III. MEDICAL EVIDENCE & PFSA REPORTS RGARDING VISCERAS OF THE DECEASED. 15. Insofar as the medical evidence of the prosecution case is concerned, we have noted that according to the prosecution case, Mst. Shabana Kausar (appellant) committed the murder of minor Anaya Fatima after giving her beating, throwing her on the ground and drowning her head in a water bucket. Medical evidence does not show the presence of any water in the lungs or in the stomach or in any other organ of the deceased. Likewise, no mark of violence was noted on the entire body of the deceased by the Medical Officer to support the prosecution case that the appellant first gave beating to the minor deceased, threw her on the ground and thereafter, committed her murder. Although learned Deputy Prosecutor General for the State assisted by learned counsel for the complainant has argued that as per inquest report (Exh.PK), there were injuries on the neck and head of the minor deceased and there was also clotted blood in the nostrils and ears of the minor deceased but as mentioned earlier, no such injury or clotted blood on the entire body of the deceased was noticed by Dr.…
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