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Official Citation: 2024 LHC 6207
Court / Jurisdiction: Lahore High Court
Year of Decision: 2024
Decision Date: 2024-12-04
Parties: Mst. Nadia alias Nadu Mai vs The State
Ruling Summary: This decision was rendered by the Lahore High Court on 2024-12-04, officially reported as 2024 LHC 6207. In this matter between Mst. Nadia alias Nadu Mai and The State, 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 2024LHC6207
Court Name: Lahore High Court Judge(s): Sadiq Mahmud Khurram Title: Mst. Nadia alias Nadu Mai vs The State Case No.: Criminal Appeal No. 10-J of 2021 Date of Judgment:2024-12-04 Reported As: 2024 LHC 6207 Result: Appeal Allowed
JUDGMENT
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 F.I.R. 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 Qatli-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
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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 alongwith 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, DGKhan (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, DGKhan 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.PC. 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 F.I.R. (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 (PW7), 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
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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 & 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 F.I.R. (Exh.PB/4) had been registered on 10.08.2016. It was admitted by the prosecution witnesses that the statement of the
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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 occurrence, he was present at the place of occurrence when the police came and inquired from him regarding the incident. During cross- examination, the prosecution witness namely Muhammad Jalal (PW-12) stated as under:- "At the time of occurrence of this case all the said children, my uncle, aunt, paternal grand-father, paternal grand-mother were present in the house. Police came to our house in the evening and I was present there when the police came there in the house. Police inquired from me about the occurrence."(emphasis supplied) Contradicting the above mentioned claim of the prosecution witness namely Muhammad Jalal (PW-12), Abdul Rehman, SI (PW-7), the Investigating Officer of the case stated that the statement of the prosecution witness namely Muhammad Jalal (PW-12) was recorded for the first time on 28.12.2016 i.e. after as many as four months and eighteen days of the occurrence. Abdul Rehman, SI (PW-7), the Investigating Officer of the case, stated during cross examination as under:- "I have recorded the statement of PW-12 Muhammad Jalal for the first time on 28.12.2016. While recording the statement of Jalal PW on 28.12.2016, neither he furnished any explanation regarding his delayed recording of statement nor did I ask him about the said delay for recording his statement. I did not put any questions regarding his non appearance before me during investigation prior to 28.12.2016."(emphasis supplied) It is trite that the delayed recording of the statement of a prosecution witness under section 161 of the Code of Criminal Procedure, 1898 reduces its value to nothing unless there is a plausible explanation for such delay. No explanation, much less probable, has been given by the prosecution witnesses for the prosecution witness namely Muhammad Jalal (PW-12) not getting his statement under section 161 of the Code of Criminal Procedure, 1898 recorded immediately and therefore no value can be attached to his statement. The august Supreme Court of Pakistan in the case of "Abdul Khaliq Vs. The State" (1996 SCMR 1553) has held as under: "It is a settled position of law that late recording of 161, Cr.P.C. statement of a prosecution witness reduces its value to nill unless there is plausible explanation for such delay". The august Supreme Court of Pakistan in the case of "Muhammad Khan Vs. Maula Bakhsh" (1998 SCMR 570) has held as under: "It is a settled law that credibility of a witness is looked with serious suspicion if his statement under section 161, Cr.P.C is recorded with delay without offering any plausible explanation". The august Supreme Court of Pakistan in the case of "Syed Saeed Muhammad Shah and another Vs. The State" (1993 SCM R 550) at page 571 has held as under: "In the absence of satisfactory nature of explanation normally rule is that statements recorded by police after delay and without explanation are to be ruled out of consideration. In this case unsatisfactory explanation which is not substantiated can be equated with no explanation". No justification, much less credible, has been given by the prosecution at any stage for such deferral in recording the statement of the prosecution witness namely Muhammad Jalal (PW-12). The scrutiny of the statements of the prosecution witnesses reveals that the statement of the prosecution witness namely Muhammad Jalal (PW-12) was neither prompt nor spontaneous nor natural, rather was a contrived, manufactured and a compromised statement. The evidence in the case has been collected in a careless manner, employed more to create further muddle regarding the facts in issue rather than proving the said facts. 14. This Court has also come to the irresistible conclusion that the prosecution witnesses namely Muhammad Bukhsh (PW-4) and Nasrullah (PW-5) also could not prove their arrival at the place of
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occurrence, at the time of occurrence and their witnessing the incident. The relationship of the said witnesses with the deceased is also on record. Kalsoom Mai (deceased) was the sister of the prosecution witness namely Nasrullah (PW-5) and the daughter of the prosecution witness namely Muhammad Bukhsh (PW-4). The prosecution witnesses namely Muhammad Bukhsh (PW-4) and Nasrullah (PW-5) were also admittedly not the residents of the place of occurrence. According to the prosecution witnesses namely Muhammad Bukhsh (PW-4) and Nasrullah (PW-5) , both of them had their residences at a distance of about as much as about 5-6 Acres from the place of occurrence. The prosecution witness namely Muhammad Bukhsh (PW-4) , during cross- examination stated as under:- "I am labourer at " Ara Machine". I am an uneducated person, however, I can sign. My house is at a distance of 5/6 Acres from the place of occurence." In this manner, both the prosecution witnesses namely Muhammad Bukhsh (PW-4) and Nasrullah (PW-5) can be validly termed as "chance witnesses" and therefore were under a bounden duty to provide a convincing reason for their presence at the place of occurrence, at the time of occurrence and were also under a duty to prove their presence by producing some physical proof of the same. I have noted with grave concern that the prosecution witnesses namely Muhammad Bukhsh (PW-4) and Nasrullah (PW-5) failed miserably to provide any consistent evidence as to the reason for their arrival at the place of occurrence and their presence at the place of occurrence when the same was taking place. The prosecution witnesses namely Muhammad Bukhsh (PW-4) and Nasrullah (PW-5) claimed that on the day of occurrence, they had gone to the place of occurrence in order to measure a newly constructed room there. The prosecution witness namely Muhammad Bukhsh (PW4) , in his statement before the learned trial court, stated as under:- "On 10- 08-2016 at 05:00pm evening I alongwith Nasarullah and Ghulam Raza son of Bakhshan went to the house of Mst.Kalsoom Bibi for the measurement of a newly constructed room there." (emphasis supplied) However during cross-examination the prosecution witness namely Muhammad Bukhsh (PW-4) stated differently with regard to the reason for his going to the place of occurrence as under:- No mason was constructing the room in the house where occurrence took place. It was a "Kachhi Wall" which was being constructed by Mst.Kalsoom Mai deceased and her husband. The wall was constructed up to three hands and one hand is equal to 02-feet. The mud was present there for the purpose of construction. We did not show the above said mud to the Investigation Officer when he visited the place of occurrence "(emphasis supplied) The above referred portions of the statement of the prosecution witness namely Muhammad Bukhsh (PW-4) reveal that he made a false and contradictory claim with regard to the reason of the prosecution witnesses namely Muhammad Bukhsh (PW4) and Nasrullah (PW-5) for going to the place of occurrence. Furthermore, Sajjad Hussain, Inspector (PW-9), the Investigating Officer of the case, admitted during cross examination that when he visited the place of occurrence on the day of occurrence, he did not observe that any wall was being constructed or even that any construction material was available at the place of occurrence with which the said wall was being erected, for the measurement of which wall, the prosecution witnesses namely Muhammad Bukhsh (PW-4) and Nasrullah (PW-5) had proceeded to the place of occurrence. Sajjad Hussain, Inspector (PW-9), the Investigating Officer of the case, stated during cross examination as under:- "I cannot tell the distance at which the house of complainant is situated from the place of occurrence. The four walls of the under constructed room were constructed but the roof was not there when I visited the place of occurrence. No construction material was present there at the place of occurrence when I visited the same. (emphasis supplied)
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During the cross-examination, prosecution witnesses namely Muhammad Bukhsh (PW-4) and Nasrullah (PW-5) 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. The proven failure of the prosecution witnesses namely Muhammad Bukhsh (PW4) and Nasrullah (PW-5) to prove their reason for their arrival at the place of occurrence , on the very day of the incident has repercussions, proving that there was no reason actually for the prosecution witnesses namely Muhammad Bukhsh (PW4) and Nasrullah (PW-5) to be visiting the place of occurrence. The very inception of the prosecution case is thus put in doubt due to the said abject failure of the prosecution witnesses namely Muhammad Bukhsh (PW-4) and Nasrullah (PW-5). The prosecution was under a bounden duty to establish not only that the prosecution witnesses namely Muhammad Bukhsh (PW-4) and Nasrullah (PW-5) had a reason to proceed to the place of occurrence however, failure of the prosecution to prove the said fact has vitiated the trust of this Court in Muhammad Bukhsh (PW-4) and Nasrullah (PW-5) as being truthful witnesses. In this respect, reliance is placed on the cases of "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) . 15. I have also observed that the prosecution witnesses namely Muhammad Bukhsh (PW-4) and Nasrullah (PW-5) claimed that the occurrence took place exactly at the same time when they had arrived at the place of occurrence. This narrative of the prosecution witnesses that the accused kept waiting for the arrival of the witnesses at the place of occurrence, and thereafter committed the same is unnatural and cannot be believed. It is opposed to human conduct that an assailant would keep waiting for the arrival of the witnesses prior to the commission of the offence. It is all the more illogical that being perceptive of the fact that by pending the matter the accused ran the risk of the arrival of the witnesses and their deposing against the accused, even then the assailant kept waiting for their arrival. Such behaviour, on the part of the accused, as deposed by the prosecution witnesses namely Muhammad Bukhsh (PW-4) and Nasrullah (PW-5), runs counter to natural human conduct and behaviour. Hence, being perceptive of this strain of human conduct, this Court is holding that the prosecution witnesses namely Muhammad Bukhsh (PW-4) and Nasrullah (PW-5) were not present at the time of occurrence, at the place of occurrence and had not witnessed the occurrence. In this regard, reliance is placed on the case of "STATE through Advocate-General, Khyber Pakhtunkhwa, Peshawar Vs. HASSAN JALIL and others" ( 2019 SCMR 1154) wherein the august Supreme Court of Pakistan held as under:- "Arrival of Noor Seema, PW at venue exactly at a point of time when the respondent allegedly did away with the deceased, in itself is a circumstance that reflects on the very genesis of the prosecution case." Reliance is also placed on the case of Muhammad Imran Vs. The State (2020 SCMR 857) wherein the august Supreme Court of Pakistan held as under:- "These contradictions, viewed in the retrospect of arrival of the witnesses exactly at a point of time when the petitioner started inflicting blows to the deceased with their inability to apprehend him without there being any weapon to keep them effectively at bay, cast shadows on the hypothesis of their presence during the fateful moments. It was an odd hour of night without any source of light as admitted by no other than Fazal Abbas (PW-4) himself." 16. I have also noted that the alleged eye witnesses namely Muhammad Bukhsh (PW-4) , Nasrullah (PW-5) and Muhammad Jalal (PW-12) 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. It was the claim of the prosecution witnesses namely Muhammad Bukhsh (PW-4) , Nasrullah (PW-5) and Muhammad Jalal (PW-12) 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. It is unnatural and unbelievable that the alleged eye witnesses namely Muhammad
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Bukhsh (PW-4) , Nasrullah (PW-5) and Muhammad Jalal (PW-12) 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. It only proves 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, runs counter to natural human conduct and behaviour. Article 129 of the Qanun-e-Shahadat, 1984 allows the court to presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events and human conduct in relation to the facts of the particular case. I thus trust the existence of this fact, by virtue of the Article 129 of the Qanun-e-Shahadat, 1984, that the conduct of the prosecution witnesses namely Muhammad Bukhsh (PW-4) , Nasrullah (PW-5) and Muhammad Jalal (PW-12) , as deposed by them, was opposed to the common course of natural events, human conduct and that the prosecution witnesses namely Muhammad Bukhsh (PW-4) and Nasrullah (PW-5) and even the prosecution witness namely Muhammad Jalal (PW-12) were not present at the place of occurrence, at the time of occurrence and their presence was procured subsequently. The august Supreme Court of Pakistan has enunciated binding principles for the appreciation of evidence in such circumstances. Reliance is placed on the case of Pathan v. The State (2015 SCMR 315) at page 317 wherein the august Supreme Court of Pakistan observed as under:- "No man on the earth would believe that a close relative would remain silent…
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