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Petitioner: Mst. SHUMAILA VS Respondent: The STATE
Court Name: Sindh High Court Judge(s): Nazar Akbar Title: Mst. SHUMAILA vs The STATE Case No.: Criminal Appeal No,338 of 2011 Date of Judgment:2016-01-02 Reported As: 2016 YLR 1216 Result: Appeal accepted
JUDGMENT
JUDGMENT NAZAR AKBAR, J.---Appellant Mst. Shumaiia has preferred this appeal against the judgment dated 27-7.2011 delivered by learned District and Sessions Judge, Malir, Karachi in Sessions Case No,491 of 2004 whereby the appellant was convicted and sentenced to undergo life imprisonment and two co-accused Shahid Ali and Muhammad Akbar were acquitted. Benefit of section 382-B was also extended to the appellant/accused. 2. Brief facts of the prosecution case leading to the appeal are that younger brother of complainant, namely, Maqsood Ali, aged about 27 years, a constable in Rangers was married to Mst. Shumaila one year before the incident. There was no issue from the wedlock. Relationship between the spouses were strained therefore Mst. Shumaila started living in her parents' home situated in Bhains Colony. On 11.10.2004 complainant's brother was on leave for one day and he visited his wife in Bahis Colony. On 12.10.2004 at about 07:30 a.m. Brother-in-law of Maqsood, namely, Shahid informed the complainant on telephone that Maqsood is not well. Complainant and his family rushed to the house of Maqsood where he noticed that many people were gathered and dead body of Maqsood was lying on a cot inside the house. The dead body was shifted by the complainant to his house at Orangi Town. Incedent was communicated to RangeRs, Some of the officers of Rangers visited the houses of the complainant, they noticed marks of rope on the neck of dead body of deceased and with their help dead body Was shifted to Jinnah Hospital for postmortem examination. Therefore an RR was registered against Mst. Shumaila, Shahid and another for having committed murder of Maqsood by strangulating him with rope. The accused were arrested and after completion of investigation challan was submitted against all of them under section 302, P.P.C. Charge was framed by trial Court against three accused Shahid Ali,
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Muhammad Akbar and Mst. Shumaila. They pleaded not guilty to the charge and claimed to be tried. 3. In order to substantiate the charge against the accused persons, prosecution has examined the following witnesses at trial:-- 1. PW-1/Complainant Muhammad Hanif at Ex-6 2. PW-2 Hashmat Ali at Ex-7 3. PW-3 Mehmood Khan at Ex-8 4. PW-4 SIP Muhammad Aslam at Ex-11 5. PW-5 Abdul Hakeem at Ex-12. 6. PW-6 SIP Muhamamd Hanif at Ex-13 7. PW-7 Dr. Abdul Razzak at Ex-14. 8. PW-8 SIP/I0 Sajjad Ali at Ex-15. 9. PW-9 Dr. Naseem Ahmed at Ex-16 10. Court Witness-1 Dr. Farhat Hussain at Ex-19 11. Court Witness-2 Dr. Imtiaz at Ex-20 ' Thereafter, learned District Attorney closed the prosecution side vide his statement at Ex.16 and statements of accused/appellant Mst. Shumaila and co-accused were recorded under section 342, Cr.P.C. They all claimed false implication in the case and denied the prosecution allegations. She examined herself on oath. In her defence she also examined three DWs Abul Hassan (DW-1), Habibullah (DW-2) and Mian Khan (DW-3). 4. Learned trial Court after hearing the learned counsel for the parties and on the basis of medical evidence and circumstantial evidence convicted only the appellant and acquitted the co-accused by impugned judgment dated 27.07.2011. 5. The sole point for determination in this appeal is that whether the appellant has been rightly convicted by the trial Court for the offence with which she was charged along with two otheRs, The trial Court after framing charge against all the three accused and recording evidence of both, the prosecution and the defense, set for itself three points for determination in the judgment:-- (i) Whether deceased Maqsood died un-natural death due to strangulation of his neck? (ii) Whether during the intervening night of 11th and 12th October 2004, inside the house bearing No,415, situated at Block-D Muslim League Colony Road No,9, Bhains Colony Karachi, accused Shahid Ali, Mohammad Akbar and Mst. Shumaila committed Qatl-e-Amd of deceased Maqsood Ali by strangulation? (iii) What offence, if any has been committed by the accused? 6. Mr. Mehmood Akhtar Qureshi, learned counsel for the appellant/accused contended that all the PWs were interested and hostile witnesses, the prosecution has failed to establish motive initially attributed to the appellant for, committing murder of the deceased. The medical evidence was defective one as Dr. Abdul Rasheed Khokhar, who conducted the postmortem examination of the deceased was not examined by the prosecution. PW-7 Dr. Abdul Razzak, who produced postmortem report and final medical report has also not been examined on oath. He further argued that Special Medical Board was constituted in this case and the Board did not support the opinion of the doctor who had conducted the postmortem and concluded that postmortem report was substandard and no conclusive result could be revealed from it. He contended that the trial Court has relied on a defective and doubtful postmortem report to connect the appellant with the crime. He further argued that statements of appellant/accused recorded under sections 340(2) and 342 Cr.P.C. As well as evidence of defence witnesses have not been taken into consideration in the case of the appellant whereas on the same set of evidence, co-accused Shahid Ali and Muhammad Akbar have been acquitted of the charge. He finally argued that it is well settled principle of law that witen two co-accused in a murder case are acquitted by the trial Court by
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holding that they have been falsely implicated is enough ground for this Court for setting aside the conviction and sentence recorded against the appellant under section 302, P.P.C. In support of his contentions, he has placed reliance on the following case law: (i) Muhammad Saleem v.. M. Azan and others (2010 SCJ 672) (ii) Atta Muhammad and another v. The State (1995 SCMR 599) (iii) Akhtar Ali and others v. The State (2008 SCMR 6) 7. Mr. Zafar Ahmed Khan,Additional Prosecutor General, assisted by Mr. Ammar Yasir, learned counsel for the complainant, contended that the deceased was a Rangers' personnel, he was a fit and healthy person, having no health issue. Present appellant/accused was married to deceased but there were no issue from the wedlock. The relation between the spouses were strained and she left her matrimonial home and used to stay with her parents. He further contended that deceased on the date of incident was with the appellant/accused, who was his legally wedded wife, and it Was her legal as well as moral obligation to take the deceased in emergency to a hospital for immediate medical treatment but the same was not done. The complainant on receiving phone call about ailment of his brother rushed to the house of appellant/accused where he saw that his brother was lying dead. He took the dead body to his home and informed the Rangers accordingly. In the meanwhile, they noticed signs of rope on the neck of deceased. Rangers personnel also carefully observed the marks of rope around the neck of deceased, as such, it was a murder case and not a case of natural death. Medico-Legal Officer, who conducted postmortem examination, had opined that it was an unnatural death as a result of asphyxia due to strangulation. He lastly argued that deceased died unnatural death, the prosecution has fully proved its case against the present appellant/accused and the learned trail Court has rightly convicted the appellant. 8. I have carefully heard the arguments advanced by the learned counsel for the parties and perused the entire evidence placed on record. 9. The prosecuticn has examined as many as 11 witnesses in this case of unnatural death of deceased Maqsood Ali who happened to be husband of the appellant. Out of 11 prosecution witnesses, 03 were real brothers of deceased including the complainant and their main emphasis was on the motive of accused/appellant to kill their brother. They alleged unfortunate illicit relation between the appellant and co-accused Muhammad Akbar. Obviously they were not witness to any physical effort for causing Asphyxia (the cause of death) as stated in the postmortem report. Their claim was limited to have seen a mark of rope around the neck of their deceased brother when they have already brought the dead body from the place of incident at Bhains Colony to Orangi Town, the place of residence of the complainant and private witnesses. Out of remaining eight witnesses, 04 were police officers/officials, three of them 1.0s and one Mushir of arrest of co- accused Muhammad Akbar, other 04 PWs were doctoRs, PW-7. Dr. Abdul Razzak was formal as he produced postmortem report conducted by Dr. Abdul Rasheed Khokar, who was not examined. PW-9 Dr. Naseem Ahmed was a Pathologist and his report was very material since the findings on the initial postmortem report were reserved till report of Pathologist. Remaining 02 doctors were the Court witnesses namely Dr. Farhat Hussain (CW-1) and Dr. Imtiaz (CW-2), they were very material witnesses as they have been thoroughly cross-examined on the point of strangulation as alleged by the complainant as a cause of death. 10. The findings of learned trial Court on Point No,2 for determination i,e, offense of Qatl-i-Amd by three accused by strangulation, was in negative. The co-accused Shahid and Muhammad Akbar had been acquitted by the trial Court on the ground that "the prosecution has no legal of credible evidence regarding their presence/ participation either conspirers or abettors to connect them with the commission or murder of the deceased". The precise meaning of the above findings in favour of co-accused was that the only motive attributed to the appellant that she had illicit relation with co-accused Muhammad Akbar and because of such relation she has causing
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death/murder of her husband deceased Maqsood Ali was not established. Therefore, there was no motive for committing the crime by the appellant. The story of estranged relation between the appellant and her husband, the victim, also washed away when it came on the record that the victim had come to live with his wife and they had enjoyed their matrimonial life before his death. Such statement of the appellant has not been contested nor it can be doubted as the deceased was otherwise healthy person. The complainant has also attempted to prove estranged relation between the appellant and the victim on the ground that they had no issue from the wedlock also has no weight since admittedly the marriage was solemnized hardly one year before the date of incident and, therefore, the issue of not having the children was quite premature to below it to the level of enmity for killing the husband. When Point No,2 was decided in favour of two co-accused Shahid Ali and Muhammad Akbar then obviously as natural consequences it could not be alleged that Shumaila (the appellant) alone has committed Qatl-i-Amd of deceased Maqsood Ali by strangulation on the basis of mere probability since the "unnatural death". Of her husband took place in their bedroom. 11. The perusal of impugned conviction order shows that the learned trial Court had very badly misapplied the dictum laid down by the Hon'ble Supreme Court of Pakistan in a case reported in PLD 1966 SC 664 (State V. Manzoor Ahmad) to support the conviction awarded to the appellant. The trial Court has quoted out of context following passage from the placitum: "(g) Criminal trial---(Evidence)--Lack of direct evidence connecting accused or any other person with murder---Does not mean that guilt cannot be fixed---Court to examine probabilities in light of circumstances of case." ' The above plasitam was derived by the editor of the Law Journal from the side note 'H' at page 681 of the citation. It is reproduced below:-- "Even in a case of this kind where there is no direct evidence to show as to in what precise manner the victim came to be killed the Court has yet to discharge its onerous duty of determining whether the death was caused by the felonious act of some other person and, if so, what offence, if any, has been committed by such a person. It is not sufficient in such a case to say that since there is no direct evidence to connect any one with the felonious act the guilt cannot be fixed. It is precisely in such cases that I conceive it to be duty of the Court to examine the probabilities in the light of the indirect evidence of the injuries on the deceased, the nature and condition of the place where the incident took place the articles found there, the motive for the crime and the other surround* circumstances proved." (emphasis provided) 12. The trial Court, I believe, has not read the entire citation and even the side note 'H' The above observation of the Hon'ble Supreme Court does not mean that in every case when there is no direct evidence to connect anyone, one should be connected, with felonious act by the Court merely on the basis of probabilities. The Hon'ble Supreme Court in the above quoted passage has laid down guideline for the Court to examine the "probabilities" in the light of the indirect evidence and these probabilities are (1) the injuries on the deceased; (2) the nature and conditions of the place where incident took place; (3) the articles found there, (4) the motive for the crime; and (5) other surrounding circumstances. 13. It is settled principle of law that each precedent enumerates principles which are based on the circumstances of the case being examined by the Court. The facts of the case relied upon by the learned trial Court (PLD 1966 SC 664) were entirely different and clearly distinguishable from the circumstances and the facts of the case in hand. None of the probabilities discussed by the Hon'ble Supreme Court in the citation were available in the case against the appellant. Neither the injuries to the victim in the case in hand were proved to have been caused by the appellant nor strangulation was proved by medical reports as the postmortem report was declared 'substandard' by the medical board constituted by the trial Court. Except her natural presence at
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the scene of incident being wife nothing else was before the Court to be treated as circumstantial evidence connecting the appellant with the offense. Even the alleged rope said to have been used for strangulation was not recovered by the prosecution. 14. The learned trial Court has not discussed the medical evidence available on record and enlarged the effect of word "Asphyxia" to strangulation. The learned trial Court neither examined the ordinary dictionary or medical dictionary to appreciate the meaning of the word Asphyxia nor examined medical evidence which clearly indicates that it was not a case of "strangulation" to death at all. The learned trial Court failed to appreciate the following pieces of evidence from the testimony of the doctors:-- "Dr. Naseem PW-9 deposed in his cross-examination that:-- "It is correct to suggest that no mark of trauma indentified on gross examination of skin. It is correct to suggest that the skin revealing intact and epidermis and dermis and congested blood based on finding of heart no active pathology seen and mild atherosclerotic changes in anterior descending artery. I did not find any injury on the skin under the ligature mark, nor any organ of neck damaged, only 3 x 3 c.m. Of neck skin was sent to me for histopathology. I have got about 10 years experience in pathology. It is correct to suggest that ligature mark completely encircles the neck in case of strangulation. What I have stated in examination in chief is correct." ' Dr. Farhat Hussain was examined as Court witness (CW-1). According to him, special medical board had given its opinion after considering the (i) postmortem report (ii) chemical examination report (iii) Histopathologist (iv) Final opinion given by Medico legal officer Dr. Abdul Rasheed Khokhar. He further deposed that members of the medical board were unanimously agreed that the postmortem report prepared by the medico legal officer (MLO) was substandard to reveal any conclusive. ' He further admitted that it is mentioned in column No,13 of the postmortem report that ligature mark not fully encircling around the neck, grooved in nature width 01.5 to 02 c.m. Over right side neck, postmortem of neck seen, while anterior of neck and left side antero-leteral aspect does not contain ligature mark. He further admitted that it is mentioned in postmortem report that no any other mark of injury seen all over the body. He admitted that it is mentioned in the report of Pathologist that mild atherosclerotic changes in anterior descending artery of the heart. He admitted that it is correct that according to medical jurisprudence as opined by various juristssigns and symptoms of strangulation would be the tong may be swollen, bruised bitten by teeth and protruded. Bleeding from the ears due to rupture of blood vessels of tympanum may be seen. (Emphasis supplied) It is unbelievable that a woman can cause murder of a young and healthy person by strangulating him to death independently without even any resistance. The trial Court in the impugned conviction order has already held that the prosecution have failed to prove motive as discussed in para-10 above. The medical evidence did not prove strangulation, the appellant had no reason/motive to kill, then what else was required to disbelieve the prosecution story. 15. The burden was on the prosecution to prove her involvement and particularly her criminal role in the "unnatural death" of her husband to be treated as murder. The learned trial Court instead of following the cardinal principle of burden of proving the charge beyond iota of doubt by prosecution shifted the burden on the appellant by holding that the appellant "Mst. Shumaila has failed to furnish any explanation regarding the unnatural death of her husband". I am unable to appreciate that what explanation was expected by the trial Court from an ordinary woman about unnatural death of her husband and how an "unnatural death" can be treated as murder simply because the complainant party has found a "ligature mark" of hardly 01.5 to 02 c.m. On the right side of the neck of their deceased brother. Admittedly as discussed above in the evidence of doctors no sign and symptoms of strangulation at all were found by the doctors on medical
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examination of the dead body of the deceased. The ligature mark was not encircling the neck of the deceased. Mere unnatural death without any corroborating piece of evidence in the shape of medical reports cannot be treated as murder on suspicion alone. The death is never "unnatural". A natural death when challenges the wisdom of medical science, the medical scientist calls it "unnatural death" as they could not find a cause of death in the realm of their knowledge. We have seen and do come across cases o# silent death or passing away of a normal healthy person without showing symptoms to attract attention of others for medical aid for him before death. The case of the appellant has reminded me an incident of death of a senior lawyer, Mr. Imdad Ali Awan during the lawyers' movement for restoration of judiciary in 2008. Mr. Imdad Awan was fit and healthy person. He was driving or sitting in the vehicle of the then deposed Chief Justice and died in the said vehicle in such a way that other occupants of the vehicle did not notice his death. Nobody offered him any medicine and the moment it transpired that he is un-usually silent it was too late to provide him medical aid. 16. It appears that the learned trial Court convicted the appellant on the sole presumption that "the sudden death of deceased in short span of time without any clinical cause and reason" has surprised him as unusual and since the death took "place inside the house of the lady accused in the night hours", her failure to provide necessary treatment was willful, though it was not the case of prosecution that the deceased suffered death as medical aid was denied to him. With these presumptions in mind, the medical evidence discussed above was out rightly rejected or ignored by the learned trial Court while holding that in the circumstances "the lady accused (appellant) had a clear involvement in the murder of her husband". Since this is the case of life imprisonment awarded to the appellant I have examined each and every case law referred by learned trial Court and I am surprised that by ignoring the evidence on record, the learned trial Court wrongly applied several legal principles enumerated in various case laws to convict the appellant. The learned trial Court relied on the principle of circumstantial evidence to bring the guilt of appellant home in support its presumptions. Unfortunately the learned trial Court like PLD 1966 SC 664 also misapplied the citations on the point of circumstantial evidence. The learned Judge while relying on the circumstantial evidence mentioned following case law in the conviction order without examining them:-- i. M. Arshad v. The State (1992 SCMR 1187) ii. The State v. Habib ur Rehman (PLD 1983 SC 286) iii. M. Aslam v. M. Zafar and 2 others (PLD 1992 SC 1) iv. Akbar Ali v. The State (2007 SCMR 486) v. Israr Ali v. The State (2007 SCMR 525) ' None of these citations are relevant in the light of the prosecution evidence in the case in hand to support reasoning of the learned Judge for conviction. It was merely a case of "unnatural death" as opined by postmortem report and it was not a case of murder. Another set of (3) three reported judgments referred by the trial Court were on the concept of last seen evidence. The citations are:- - Muhammad Asif v. 1991 SC 170) Muhammad Asif v. 1991 SC 170) (NLR 1991 SC 65) Wrong Citation ' These citations were also totally out of context of the case in hand. Not only out of context, citation NLR 1991 SC 65 is even wrong citation. The presence, of wife in her bedroom was natural. She never left the scene of incident nor had any reason/ motive to kill her husband. 17. In the same fashion the treatment of "motive" in criminal cases by the trial Court was misconceived. The trial Court has misunderstood the place and value of "motive" in the criminal cases. The trial Court has declared that motive in a criminal case is of no consequence. Its
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existence and nonexistence by itself neither proves nor disproves commission of a crime. To come to this conclusion the trial Court has referred the following six reported cases. i. KAK alias Abdul Razzak v. The State(PLD 1965 Karachi 31) . Umar Jehan v. The State (1979 SCMR 186) Mst. Farah Naz v. The State and others (1984 SCMR 646) iv. Aftab Iqbal v. Manzoor Ahmed and another (1985 SCMR 269) v. Imtiaz Ahmed v. The State (2001 SCMR 1334) vi. (PU 2001 .SCJ 870) WRONG CITATION ' Amongst the above six citations the last one is again a wrong citation. No case law on the question of motive was found in PLD 2001 SCJ 870. I have also gone through above mentioned judgments and found that neither the total sum of the findings supports the view of the learned trial Court that existence or nonexistence of motive in commission of crime is of no consequence nor importance of motive of accessed can be totally thrown out of the administration of criminal justice system in Pakistan. Learned Judge was unable to understand from the cited judgments that the motive has been discussed by superior Court with reference to its penitentiary value in presence of other strong and reliable evidence. A full bench of the Supreme Court comprising five Judges in the case at Sr. No,3 above has held that motive is always relevant but extent to which it is relevant depends upon the circumstances of each case. Three small passages from the citation are very material which the trial Court should have read and understand before commenting on the importance of "motive" in criminal case and recording of conviction of the appellant. ' Page 655-side note.I ' On the other hand it is well-known that in all criminal cases to start with, the machinery of law whether at the investigation stage or during inquiry and trial, tries to discover the motive. Thus, it is always relevant. But the extent to which it would be relevant depends upon the circumstances of each case. ' Page 657- side note.J ' As already discussed it is not always necessary that the failure of motive must adversely re-act on the other remaining prosecution case. It might however effect the. Process of reasoning, regarding individual items of material/evidence against the accused; when considering their reliability or force in connection with the determination of the question of guilt and/or enormity of the offence. ' Page 661- side note.X ' The law does not place any…
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