Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Meer Nawaz alias Meero VS Respondent: The State
Court Name: Lahore High Court Judge(s): Sadiq Mahmud Khurram, Muhammad Amjad Rafiq Title: Meer Nawaz alias Meero vs The State Case No.: Murder Reference No.42/2017, Criminal Appeal No.722/2017 Date of Judgment:2021-09-22 Reported As: 2021 LHC 5278 Result: Criminal appeal disposed off
JUDGMENT
JUDGMENT MUHAMMAD AMJAD RAFIQ, J:- Meer Nawaz alias Meero (accused/ appellant) along with Nasir Hussain faced trial in case FIR No.154/2016 dated 11.06.2016 under sections 365-B, 376, 302, 109 PPC registered at police station Kot Samaba, District Rahim Yar Khan and on conclusion of trial, Sessions Judge, Rahim Yar Khan vide judgment dated 21.12.2017 acquitted co-accused Nasir Hussain, whereas, Meer Nawaz alias Meero (accused/appellant) was convicted as follows; Under Section 376 PPC and sentenced to imprisonment for 25 years with fine of Rs.100,000/- in default thereof to further undergo six months simple imprisonment. Further convicted under section 302(b) PPC for committing Qatl-i-amd of Mst. Rehana Bibi and sentenced to death and ordered to pay compensation of Rs.200,000/- under section 544-A Cr.P.C. Also convicted under section 302(b) PPC for committing Qatl-i-amd of fetus (IUD) in the womb of Mst. Rehana Bibi and sentenced to death and ordered to pay compensation of Rs.200,000/- under section 544-A Cr.P.C. Benefit of section 382-B Cr.P.C. was extended. Through Criminal Appeal No.722/2017 the convict/appellant has challenged his above conviction and sentences, whereas, Murder Reference No.42/2017 has been sent by the learned trial court as provided by Section 374 Cr.P.C. for confirmation, or otherwise, of the death sentence. Both i.e. the Appeal and Murder Reference are subject matter of the instant judgment. 2. Precisely , penned down the story of the prosecution by the police as shall be seen from the FIR (Ex.PC) registered on 11.06.2016 at 9:20 p.m. which was intimated by husband of deceased woman (Rehana bibi aged 25 years with 27.2 weeks' pregnant). Her husband Sadiq Hussain complainant aged 40 years (PW-7) not resident on or around the place of occurrence (Kot Samaba) stated that a few days before the occurrence her wife told him that Meer Nawaz alias Meero (caste fellow of the complainant) used to throw indecent signals for immoral matting, whereupon, the complainant in the
---
## Page 2
presence of Muhammad Ramzan and Muhammad Ibrahim admonished him which grudge he bored in his heart. Mst. Rehana Bibi one day before the occurrence came to Kot Samaba to meet relatives and on the day of occurrence the complainant along with above named witnesses came to Kot Samaba to take her back. At about Maghrib time while going through the street, Muhammad Ishaq informed that he has seen Meer Nawaz forcibly taking Mst. Rehana Bibi to the BETHATK of Nasir Hussain co-accused. On his information and lead, after a while they reached in the said street, they heard shrieks of Mst. Rehana which ended within their hearing. They opened the door of the BETHAK with difficulty and saw Meer Nawaz sitting on the chest of Mst. Rehana while putting a cloth around her neck pressing it hard, who on seeing them escaped from the other door. Mst. Rehana succumbed at the spot. It was alleged that Nasir Hussain had facilitated the crime by giving Meer Nawaz his residential house. 3. On receipt of information about the occurrence, Amjad Ali Sub- Inspector (PW-12) reached at the spot, recorded statement of the complainant Ex.PK and sent the same to police station for registration of FIR. The investigation was conducted by Muhammad Aslam Khan Inspector Homicide Investigation Cell (PW-14) who visited the spot, prepared injury statement Ex.PF, inquest report Ex.PG, despatched the dead body for post mortem examination, prepared rough site plan of the place of occurrence Ex.PM, recorded statements of witnesses and also recorded supplementary statement of complainant Sadiq Hussain. On 15.06.2016, he arrested accused Nasir Hussain and on 17.06.2016 accused Meer Nawaz was arrested. DNA test of Meer Nawaz accused/appellant was got conducted; on 22.06.2016 Meer Nawaz got recovered a piece of cloth P.3 form his residential house. After completing other formalities, the report under section 173 Cr.P.C. was submitted and accused persons were charge sheeted, to which they pleaded innocence and claimed to be tried, whereupon, prosecution examined Dr. Haji Ahmad Durrani who had medically examined Meer Nawaz about his potency; Dr. Asia Batool (PW-5) had conducted post mortem examination of deceased; Sadiq Hussain complainant (PW-7), Muhammad Ishaq (PW-8) and Muhammad Ibrahim (PW-9) deposed about the ocular account; Manzoor Hussain SI (PW- 11) had partially investigated the case and Muhammad Aslam Khan Inspector (PW-14) had completed the investigation, whereas, Dr. Sheeraz Ahmad (PW-15) had deposed about the conduct of obstetrical ultrasound of dead body of Mst. Rehana deceased. Ghulam Abass PW-10 who dispatched all the articles to PFSA and also took Meer Nawaz to said Lab for DNA samples. Rest of the witnesses are all formal in nature and they made statements with regard to their respective functions performed during the course of investigation. On close of prosecution case, the accused when examined under section 342 Cr.P.C. denied the prosecution case and negated the allegations, however, they not opted to produce defence evidence not appeared in the witness box in terms of section 340(2) Cr.P.C. and ultimately on conclusion of trial, Nasir Hussain was acquitted, whereas, Meer Nawaz alias Meero was convicted and sentenced as detailed in the opening paragraph of this judgment. 4. Learned counsel for the appellant raised the emblem high with a virulent criticism on prosecution evidence and its presentation was regarded by him as vague, unclear and tamed in a way that it hardly proved the case against the accused/appellant. Attacked on the presence of eye witnesses, termed the evidences that recovery being planted and inconsequential, wrecked chain of custody protocols and confused PFSA reports cannot be made basis for conviction. Prayed for acquittal of accused. 5. Learned Deputy Prosecutor General assisted by learned counsel for the complainant has mainly relied on PFSA reports wherein according to them DNA profile of accused/appellant stood matched with the DNA retrieved from vaginal swabs of deceased sent for examination. They were of the view that in the presence of forensic evidence, no doubt is left about involvement of accused in commission of crime and DNA evidence is sufficient to sustain conviction and sentence awarded to accused/appellant. 6. We have heard the respective contentions and perused the record; examined the evidence brought on record. 7. It was 11th of June, 2016 when occurrence took place at Maghrib wela and police reached at the spot with a delay of around one hour at 8:30 p.m. as admitted by PW-4 Mahboob Ahmad 1294/C who escorted the dead body to hospital for postmortem examination. Surprisingly, dead body was received in the hospital at 11:30 pm i.e. after three hours of its dispatch from place of occurrence. Inquest report was prepared before registration of FIR as it does not contain case number, similarly, it does not find mention time of information to police about death in column No.3. Though PW-7 complainant deposed arrival of police at place of occurrence at 9:00 p.m. when the complaint was drafted and FIR was registered at 9:20 p.m. Police remained at place of occurrence till 10.00 p.m. At the time of dispatch of dead body papers
---
## Page 3
were not sent to the doctor as he acknowledged it receiving at 11:30 p.m. which he mentioned in Postmortem Report, yet in the postmortem report time of death in the relevant column is not mentioned. No definite opinion was given of cause of death in the primary report. Probable time that elapsed between injury and death was not mentioned by the Doctor; however, probable time between death and postmortem was 2-24 hours; shockingly when the deceased died within the view of the witnesses at the place occurrence around Maghrib wela and postmortem was conducted within six hours at 1:00 a.m. (night); cushion of 24 hours by the doctor is highly improbable. One injury blackish semi healed abrasion present on right side of mandible was also observed by the doctor as antemortem, yet /4 days old. After receiving the PFSA reports, doctor declared cause of death as "Asphyxia caused by mechanical obstruction of air-way", further reported that sexual assault on victim was done before death. Though witnesses when reached at the place of occurrence admitted that deceased was in her full dress and they have not seen the accused committing rape with her. Doctor also observed fetus of 27.2 weeks in the womb of Rehana bibi, yet at the place of occurrence investigating officer has not observed any marks of resistance; nor doctor observed any scratch, mark of violence or signs of fresh injury on the person of deceased who was 25 years of age and accused/appellant was also of young age of 22 years. Witnesses deposed that appellant was pressing neck of deceased with a cloth when they opened the door and entered into BETHAK, yet doctor did not observe any ligature mark around neck nor any bruise, swelling was seen on any part of neck; neck was not stretched; all that shows that prosecution story has hardly had a touch of truth. 8. Prosecution contingent who led the ocular account, was represented by PW-7 complainant Sadiq Hussain, PW-8 Muhammad Ishaq and PW-9 Muhammad Ibraheem. Place of occurrence was Kot Samaba where the deceased had gone to see her relatives; accused was also resident of same area at a distance of /2 kilometer from place of occurrence. Whereas all three alleged eye witnesses were residents of Mouza Behshti which is at a distance of 8 kilometers from the place of occurrence. PW-7 & PW-9 deposed that they went to take back Rehana deceased and PW-8 was present in that area per chance. In the case "NAVEED ASGHAR and 2 others versus The STATE" (PLD 2021 Supreme Court 600), the apex Court held that testimony of chance witnesses require cautious scrutiny and was not to be accepted unless they give satisfactory explanation of presence at or near the place of occurrence at the relevant time. Here in the instant case, all the above witnesses stated that it was month of Ramadan; therefore, around Maghrib no body was present in the street where for the first time PW 7 saw the accused/appellant who was forcibly taking Rehana deceased on foot. Conduct of this witness is highly objectionable who was a grownup boy of 18 years of age and being paternal cousin of the complainant did not bother to stop the accused though he while responding to a question, stated that Rehana deceased was walking behind accused/appellant. All three witnesses admitted that when they reached at the place of occurrence, they pushed the door for its opening yet did not peep through the window of BETHAK though admitted that bulb was on lit inside. They pretended that window was at a height from the level of ground. This contention was belied through the statement of Muhammad Anwar Patwari PW-1 who says that one can easily see inside the window while standing outside. They admitted that they did not break open the door of BETHAK; further admitted that accused ran away from inside the house and then from the main gate, yet main gate of house was at a distance of four/five feet from the door of BETHAK from outside. They further admitted that accused/ appellant maintains a broken leg due to fracture. PW-7 admitted that accused was an addict person. He further admitted that he knows the accused/appellant as he is from his brotherhood and he was also told by his wife about conduct of accused. Witnesses admitted that they have not seen the accused/appellant while committing zina with Rehana deceased and she was in full dress when they reached at the BETHAK. PW-7 admitted that no one from the locality of occurrence had appeared before the police to support the prosecution version. Visit of Rehana deceased to her relative lady Haleema is also doubtful; it appears in the evidence that Haleema was mother of Ibraheem PW-9 and used to work at Lahore as maid in some house. Presence of Haleema bibi at relevant time in Kot Samaba was also not proved as she did not appear as witness to confirm the visit of Rehana bibi deceased to her house. The overall tone and tenor of witnesses not only creates serious doubts about their presence at the spot rather their desperation to hide something mysterious and suspicious and wish to book the accused/appellant at every cost is also reflected. For the above reasons, their testimony cannot be relied upon as they can safely be labelled as untruthful witnesses and their credibility was under the clouds of doubt. 9. Piece of cloth recovered at the lead of accused is of no avail for prosecution because neither it was sent for examination on any traces of DNA or finger prints nor it was blood stained or contaminated with froth of deceased which the doctor3 1
---
## Page 4
observed was present in her oral cavity. 10. Place of occurrence belonged to Nasir Hussain accused, yet witnesses said that no one was present at the time of occurrence neither Nasir accused nor his family members; no blood-stained earth is available in this case nor clothes of deceased were contaminated with soil or anything else; witnesses admitted that dead body was put on the cot which was lying inside the BETHAK yet deceased was seen with accused/ appellant on the ground by the witnesses. It is not believable that accused/appellant was committing Zina with deceased and thereafter murdered her without bolting the door from inside. Even the main gate of house was open at the time when witnesses reached there. In such a situation place of occurrence suggested by the prosecution is not believable. 11. The last resort of prosecution was of PFSA matching report. It is trite that new proviso to Article 164 of Qanun e Shahadat Order, 1984 authorizes the court to pass the conviction mere on the basis of forensic evidence. for reference relevant provision is as under; 164. Production of evidence that has become available because of modern devices, etc.: In such cases as the Court may consider appropriate, the Court may allow to be produced any evidence that may have become available because of modern devices or techniques. Provided that conviction on the basis of modern devices or techniques may be lawful. Yet above proviso requires that forensic evidence must of the level that could fulfill the standard of proof required in a criminal law. Did the prosecution possess such standard in DNA matching report is to be thrashed in the light of safety protocols for collection, packaging, preservation and dispatch of concerned samples; therefore, before assessing the forensic evidence, it is necessary to see what safety protocols are prevailing which require strict adherence for above said purpose. First protocols were introduced through High Court Rules & Orders, framed in year1931; excerpts of Chapter 18, Part B, V olume III of High Court Rules & Orders are referred as follows; PART B - REFERENCES T O THE CHEMICAL EXAMINER. 1. Medical Officer to be consulted about articles to be sent to Chemical Examiner: --(i) The question as to whether any, and, if so, what articles should be sent for chemical analysis, and the transmission of such articles to the Chemical Examiner will rest ordinarily with the Medical Officer *[concerned] who should, however , attend to any requisition made by the Magistrate or the Police in this matter . (ii) In certain cases, Police may send articles direct : --In cases where human subjects are not concerned the Police may send articles to, and correspond direct with, the Chemical Examiner . (iii) All Magistrates are at liberty to forward any articles connected with any Criminal Case before them to the Chemical Examiner , but the desirability of their consulting the Civil Surgeon or other Medical Officer before doing so is obvious. Everything upon which the Chemical Examiner's opinion is necessary , should be forwarded to him with the least possible delay . 2. ***[Omitted]. 3. Statement to accompany articles sent: --Whenever any article is sent to the Chemical Examiner , whether by a Magistrate, Medical officer or the Police, it should be accompanied by a statement containing all possible information that may serve to guide the Chemical Examiner in his investigation. 4. Mode of packing of articles to be sent: --All articles should be forwarded in separate bottles, the stomach I one, its contents in another , the liver in a third, dry particles in small phials, and when any articles liable to decomposition are sent, they should always, whether the season be hot or cold, be immersed in methylated spirits, which should be used in the proportion of one third of the bulk of the articles. The cork of each bottle should be tied down and sealed, and each bottle should be numbered. To ascertain that it has been securely closed, the bottle should be placed for some minutes with its mouth down. 5. Weight of articles sent to be noted: --The weight of each article sent, and, where the portion of an organ is sent, the weight of the whole organ, as well as of the part sent, and in the case of fluids, the total quantity of the fluid and the quantity sent, should be stated on a ticket attached to the bottle, and also in the letter of invoice * [hereinafter prescribed.]
---
## Page 5
6. Precautions in packing bottles: --(i) The several bottles containing the articles sent should be enclosed in a tin or wooden box, which should be enclosed in a tin or wooden box which should be large enough to allow of a layer of raw cotton, at least three-fourths of a inch thick, being put between the bottle and the box; the box should be securely fastened and covered with wax-cloth. (ii) In cases where any of the contents of the bottles might prove offensive, the box must be of tin, and Macdougall's powder or charcoal should be dusted between the box and wax-cloth. 7. Articles to be packed and sealed in the presence of the forwarding officer: All articles on being put up by the forwarding officer , and sealed and numbered by him, should be packed in his presence and under his immediate supervision, and the package should then be sealed by him, in accordance with the usual rules of the Post Office as to parcels, in such a manner that it cannot be opened without destroying the seal. The seal used should be a private seal, and the same throughout. 8. Invoice of articles and post-mortem report or statement to accompany articles: --In all cases of transmission of articles to the Chemical Examiner , whether by a Magistrate, Medic al Officer , or the Police, a letter of invoice, giving a full description of the articles sent, should be dispatched by post, together with the statement or postmortem report. A duplicate of the invoice should also be placed between the wax-cloth and the box to accompany the package. Both copies of the invoice should be stamped with an impression of the seal referred to * [above.] The Chemical Examiner should be requested to return, if possible, any articles sent to him for examination which is likely to be required at the trial. 9. Evidence should be taken to prove that Chemical Examiner 's report refers to the subject connected with the inquiry: --In inquiries or trials, where reference has been made to the Chemical Examiner , it will be the duty of the Magistrate to examine the official who dispatched the **[articles] for analysis with regard to the identity of the invoice and seal, and thereby establish the identity of the subjects reported on with those sent for analysis, and prove that the Chemical Examiner's report refers to the subject connected with the case under inquiry . If the decision of the case turns on the results of the Chemical Examination, a copy of the judgment, and of the evidence regarding symptoms and postmortem appearance, will be supplied to the Chemic al Examiner; such copies being made at the expense of Government as a special charge. 10. Identity of body to be proved: --In all cases of homicide, where the body is found, the identity of the body with the person said to be deceased must be fully established before the *[Court] trying or inquiring into the case. In such cases, where there has been a postmortem examination, evidence must be recorded by the *[Court] to prove the custody of the body of the deceased after death, and its delivery for the purpose of post-mortem examination to the medical officer . 11. Proper custody of articles to be proved: --In all cases in which articles are brought up in evidence, the custody of such articles, throughout the various stages of the inquiry must be clearly traced and established. Evidence must be recorded on this point, and the evidence should never leave it doubtful as to what person or persons have had charge of the articles at any stage of the proceedings. All such articles must be distinctively marked, and any reference to them in the record must be so clear as to leave no0 room for doubt as to the special articles referred to. 12. Evidence of non-professional witnesses re blood and human hair should be accepted with caution: -- ***[...J The evidence of non-professional witnesses on the subject of blood and of human hair must be accepted with the utmost caution, and where the case rests materially on the proof of such matters, the evidence of a professional witness must be taken, and reference made, if necessary , to the Chemical Examiner . Above rules focused on consultation with doctors about sending of samples for analysis, its proper packaging, safe custody protocols, accompanying papers like statement of possible information of case, invoice of articles and postmortem report; calling of expert witness for clarification of reports; care to rely on the evidence of non- professional witness. Such protocols were more or less replicated in Police Rules later framed in year 1934 as under;
---
## Page 6
Rule; 25.41. Chemical Examiner - Channel of communication with. - (1) Superintendents of Police are authorized to correspond with and submit articles for analysis to the Chemical Examiner direct in all cases other than human poisoning cases. Any references in relation to human poisoning cases shall be made through the Civil Surgeon. (2) Articles for chemical examination.- With regard to the packing of articles sent for chemical examination, the following rules shall be observed: (i) Liquids, vomit, excrement and the like, shall be placed in clean wide-mouthed bottles or glazed jars, the stoppers or corks of which shall be tied down with bladder , leather or cloth, the knots of the cord being sealed with the seal of the police officer making the investigation. Such bottles or jars shall be tested, by reversing them for a few minutes, to see whether they leak or not. (ii) Supposed medicines or poisons, being dry substances, shall be similarly tied down in jars or made up into sealed parcels. (iii) All exhibits suspected to contain stains should be thoroughly dry before being packed and dispatched for examination. The safest way of drying exhibits is to expose them to the sun. In cases of exhibits that become brittle on drying, they should be carefully packed in cotton wool and then in a wooden box. (iv) Blood-stained weapons, articles or cloth, shall be marked with a seal and made up into sealed parcels. The entire article shall be sent. (v) Sharp-edged and pointed exhibits like swords, spears, etc., should be packed in boxes and not bound up into cloth packages. In their transit through the post, they are liable to cut through the packing material and the exhibit is exposed. (vi) On each bottle, jar and parcel and also on each article or set of articles contained therein, the separate identification of which has to be proved, shall be affixed a label describing the contents, giving full particulars and stating where each article was found. On such label shall be impressed a counterpart of the seal used to secure the fastening of the bottle, jar or parcel. A copy of each label, and a counterpart impression of the seal shall be given in the inquest report, and, in the case of cattle poisoning, in the case diary . (vii) As far as possible no letters should be glued on to exhibits as they interfere with analysis. (viii) Exhibits such as clods of search should be packed carefully in wool and placed in a wooden box. Notes. - (1) Cases in which death is clearly due to natural causes should not be referred to the Chemical Examiner . Medical Officers must accept the responsibility of deciding such cases. (2) In no case should the Medical Officer attempt to apply tests for himself. Any such procedure is liable to vitiate the subsequent investigation of the case in the laboratory of the…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.