Full Judgment Text & Judicial Ruling

2026 P Cr. L J 239 [Peshawar (Minogra Bench)] Before Sahbzada Asadullah and Muhammad Naeem Anwar, JJ Shakir Ullah and another---Appellants Versus The State and others---Respondents Criminal Appeals Nos. 198-M, 206-M and Criminal Revision No. 43-M of 2022, decided on 25th September, 2024. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 338-A---Qatl-i-amd, isqat-i-haml---Appreciation of evidence---Medical evidence supporting prosecution s case and ruling out possibility of suicide---Accused was charged for committing murder of his wife/daughter of the complainant by strangulating her neck---Autopsy on the dead body was conducted by Lady Medical Officer on 15.06.2020 at 08.30 am---Report presented by the Lady Medical Officer left no room for doubt regarding the cause of death, which clearly indicated that the deceased was strangulated---Postmortem report described the ligature marks on the deceased's neck, indicating the covered area of 3-4 inches across the anterior and lateral aspects, with a depth of 1-2 cm---Additionally, a bruised area measuring 2-3 inches was also mentioned---Importantly, the postmortem report did not indicate that the ligature mark was positioned obliquely upward along the line of the mandible, a characteristic that was typically associated with hanging---Furthermore, the Lady Medical Officer noted bruising on the back of the neck, the left chest, and both thighs as emerging from the pictorial attached with the postmortem report---All the bruises were consistent with strangulation and contradicted the notion of hanging---Said findings collectively suggested that strangulation was the actual cause of death, as the evidence presented supported that conclusion while simultaneously excluding the possibility of hanging or suicide---Thus, the medical findings strongly affirmed the prosecution's case, undermining the defense's attempts to suggest that the death could have been accidental or self-inflicted---Appeal against conviction was dismissed, accordingly. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 338-A---Qatl-i-amd, isqat-i-haml---Appreciation of evidence---Victim/wife dying in the house of accused/husband---Accused was charged for committing murder of his wife/daughter of the complainant by strangulating her neck---Record showed that the report was formally lodged at 8:00 a.m., while the post-mortem examination of the deceased was carried out at 8:30 a.m.---Timeline provided by the complainant aligned well with the details outlined in the FIR---Several inquiries were made during his cross-examination regarding any prior illnesses the deceased might have had---However, complainant did not provide any information that would support the appellant's case---Notably, complainant firmly denied the assertion that the deceased suffered from epilepsy---Father of the appellant, corroborated the complainant's account relating to the information and his subsequent arrival at the deceased's home along with family members---In his examination in chief, father of appellant stated that after performing Fajr prayer, the appellant informed him about something having happened to his wife, leading him to enter the deceased's room---During cross-examination, said witness confirmed that both the appellant and the deceased were in the same room on the night of the incident---Said witness was later declared hostile due to his attempts to obscure the true nature of events---Reluctance of said witness to testify against his son was evident, as he was brought to Court under a warrant---Although, upon questioning, said witness initially denied having prepared site plan with the Investigating Officer, he subsequently acknowledged the details of the site plan during prosecution cross-examination, confirming his locations, the appellant, the deceased, his wife, and another daughter-in-law in the house at the night of the incident---When questioned about any attempts made to save the deceased, said witness claimed that they did not take her to the hospital because she was suffering from "shocks" which he described as an incurable disease---Despite the said witness's efforts to manipulate the narrative, several elements of his testimony amply supported the prosecution's case---Appeal against conviction was dismissed, accordingly. Zarid Khan v. Gulsher and another 1972 SCMR 597 rel. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 338-A---Qatl-i-amd, isqat-i-haml---Appreciation of evidence---Investigation conducted fairly and impartially---Scope---Accused was charged for committing murder of his wife/daughter of the complainant by strangulating her neck---Investigation surrounding the incident was conducted fairly and impartially, with all official witnesses providing statements that were consistent, straightforward and truthful---Overall, the evidence and testimonies presented contributed to a compelling narrative regarding the circumstances of the deceased's death---Coherence of timelines, the stability of the complainant's account and the supportive evidence from multiple witnesses indicated a thorough investigation and highlight the substantial weight of the prosecution's case against the appellant------Appeal against conviction was dismissed, accordingly. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 338-A---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, isqat-i-haml---Appreciation of evidence---Judicial confession of accused voluntary and true---Accused was charged for committing murder of his wife/daughter of the complainant by strangulating her neck---Appellant had recorded his judicial confession---Confession was plain, simple and precise containing the motive behind the murder of the deceased, leaving no doubt that appellant had killed his wife by strangulating her through the dupatta the deceased was wearing at the relevant time---Mode and manner of strangulation narrated by the appellant in his confession stood to reason as it was not a difficult task for the appellant to strangulate his wife through a dupatta which was normally carried by females around their necks---Prosecution had examined Judicial Magistrate, who had recorded judicial confession of appellant but nothing had been brought on the record during cross-examination of the said witness to suggest that either the confessional statement of the appellant was recorded against the relevant procedure or any act or omission of the witness, acting as Judicial Magistrate, had prejudiced the appellant in any manner whatsoever---Appellant was given 30 minutes time for deliberation whereafter he volunteered to record his confession without any pressure or duress---Thus, the Judicial Magistrate had recorded true and voluntary confessional statement of appellant which, being in conformity with the remaining evidence on record, had rightly been relied upon by the Trial Court for conviction of the appellant---Appeal against conviction was dismissed, accordingly. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 338-A---Qatl-i-amd, isqat-i-haml---Appreciation of evidence---Delay of two days in recording confessional statement of the appellant---Inconsequential---Accused was charged for committing murder of his wife/daughter of the complainant by strangulating her neck---Appellant was arrested on 15.06. 2020, and his confession was recorded two days later, on 17.06.2020, however, the two-day delay in recording the confession would not adversely affect its credibility---Delay in recording a confession, by itself, was not sufficient ground to dislodge its validity especially when in light of the medical evidence and other relevant circumstances, it had been established that the appellant was involved in the murder of his wife---Appeal against conviction was dismissed, accordingly. Majeed v. The State 2010 SCMR 55 rel. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 338-A---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, isqat-i-haml---Appreciation of evidence---Confessional statement of accused---Voluntariness---Scope---Accused was charged for committing murder of his wife/daughter of the complainant by strangulating her neck---Appellant had never claimed that his judicial confession was made under torture, pressure, inducement, promise, or threat from the police, nor the evidence on record suggested any such coercive circumstances surrounding the confession he made before the competent Court rather he had specifically taken the plea that he was never produced before the Court for recording his confession---Such bald assertions of the appellant without supportive evidence could not be accepted---Thus, not only the overwhelming evidence brought on the record was linking the appellant to the murder of his wife but his sole confession, having been recorded truthfully and voluntarily, was also credible enough to support a conviction, even if it was later retracted---Appeal against conviction was dismissed, accordingly. Dadullah and another v. The State 2015 SCMR 856 rel. (g) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 338-A---Qatl-i-amd, isqat-i-haml---Appreciation of evidence---Recovery of dupatta on the disclosure of accused---Reliance---Accused was charged for committing murder of his wife/daughter of the complainant by strangulating her neck---Record indicated that during the spot investigation, the appellant retrieved a dupatta from beneath the mattress on his bed and presented it to the Investigating Officer---Appellant claimed that he had used that dupatta to strangle the deceased---Said act of handing over the dupatta was documented in the recovery memo---Notably, that revelation was made by the appellant for the first time during the identification process---Complainant stated that during his initial examination of the deceased, there was neither a dupatta nor any rope found around her neck---Said fact suggested that the appellant had concealed the dupatta beneath the foam mattress, an indication of his awareness of the evidence's significance and his attempt to hide it---Furthermore, Constable/recovery witness corroborated the recovery of the dupatta and his testimony, during cross-examination, remained intact and unchallenged, lending credibility to the prosecution's case---Prosecution effectively demonstrated that the information provided by the appellant directly led to the discovery of the crucial evidence; that he had strangled his wife using her dupatta---Importantly, that detail was not known to the police from any other source prior to that confession, making the appellant's statement pivotal---Therefore, the recovery of the dupatta, identified as the instrument used for strangulation, could be considered as legitimate evidence under Art.40 of the Qanun-e-Shahdat---In this case, the appellant's own disclosure significantly contributed to the establishment of his guilt---Overall, the evidence supported the claim that the appellant had a direct role in the murder of his wife, and the recovered dupatta served as compelling physical evidence of that act---Appeal against conviction was dismissed, accordingly. Fazal Akbar and another v. The State through A.A.G. and another 2013 PCr.LJ 369 rel. (h) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 338-A---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, isqat-i-haml---Appreciation of evidence---Defence plea not established---Accused was charged for committing murder of his wife/daughter of the complainant by strangulating her neck---Appellant had raised the plea that the deceased was a patient of epilepsy and that her death was due to natural causes---Appellant had put forth a specific defense, as articulated in his statement recorded under S.342, Cr.P.C.---However, the prosecution had successfully fulfilled its obligation to establish the appellant's guilt beyond a reasonable doubt, thereby shifting the burden of proof to the appellant to substantiate his claims---Despite so the appellant did not testify under oath, nor did he present any witness to support his assertion that the deceased suffered from epilepsy---Being husband of the deceased, the appellant would have been expected to take her for medical treatment, had the deceased been afflicted with such a condition---Furthermore, other family members would have had knowledge of her alleged illness---Yet, the appellant failed to produce any medical records or produce any witness corroborating the deceased's health condition prior to her death---In that context, the appellant's unsubstantiated claims were insufficient to create a credible defense---Mere assertions without supporting evidence could not benefit him---Consequently, the prosecution's evidence stood unchallenged---Evidence presented against the appellant was compelling and firmly established his guilt beyond reasonable doubt---Circumstances established that the prosecution had successfully discharged its burden of proof by establishing the appellant s guilt beyond a reasonable doubt---Appeal against conviction was dismissed, accordingly. Ali Ahmad and another v. The State and others PLD 2020 SC 201 and Haq Nawaz v. The State PLD 2011 Lah. 84 rel. Muhammad Ali Khan for Appellant/convict. Haq Nawaz Khan, Additional A.G for the State. Aurangzeb for the Complainant. Date of hearing: 25th September, 2024. Judgment Muhammad Naeem Anwar, J.---The appellant, Shakir Ullah, son of Muhammad Wahid, faced a regular trial for committing offenses under Sections 302 and 338-A of the Pakistan Penal Code (P.P.C), reported in FIR No. 243 dated 15.06.2020, registered at Police Station Shamozai, District Swat. Following the trial's conclusion, the learned Sessions Judge/Zilla Qazi, District Swat rendered the judgment dated 29.06.2022, convicted the appellant under Section 302(b), P.P.C and sentenced him to life imprisonment as Ta'azir. Additionally, he was ordered to pay Rs. 500,000 to the legal heirs of the deceased as compensation under Section 544-A of the Criminal Procedure Code (Cr.P.C.), with a stipulation that, in the event of non-payment, he would face an additional six months of simple imprisonment. The benefit of Section 382-B, Cr.P.C. was extended to him. He was acquitted of the charge under Section 338-A of the P.P.C. The appellant has challenged the judgment of the learned trial Court through this appeal. Likewise, Zareen Bakht, the complainant, has challenged the appellant's acquittal from the charge under Section 338-A, P.P.C through connected Cr. A. No. 206-M/2022. Additionally, he has filed Cr.R. No. 43-M/2022, seeking the enhancement of sentences imposed. Both cases, arising from the same judgment, are being decided through this single decision. 2. Briefly stated facts of the case, as outlined in the FIR, are that the complainant Zarin Bakht, while present with the dead body of his daughter, Mst. Nazima, at the Civil Hospital Barikot, reported that approximately 14/15 months earlier, Mst. Nazima had married the accused Shakir Ullah (the appellant), however, the wedlock had not resulted in any children, and the relationship between Mst. Nazima and her husband had become strained in the days leading up to the incident. The complainant narrated that he had intervened multiple times to resolve the disputes between them. On the morning of 15.06.2020, after the Fajr prayer, he received information from his daughter's house, prompting him to go to Nemogram with his family members. Upon arrival, they discovered Mst. Nazima's lifeless body in her room, showing signs of bruising around her neck. The complainant asserted that her husband had murdered his daughter through strangulation, with the motive stemming from domestic discord. The report was reduced into writing in shape of Murasila which led to registration of the ibid FIR. 3. The appellant was arrested on the same day i.e., 15.06.2020. On the following day, he was produced before the Judicial Magistrate concerned and further one day custody was obtained by I.O. He made pointation of the place of occurrence in light of which additions were made in the site plan. He also handed over Dupatta to police with which he had strangulated the deceased. He was again produced before the Magistrate on 17.06.2020 on which date he recorded his judicial confession. Upon completion of the investigation, the appellant was recommended for trial on the murder charge through the submission of a final report under Section 173, Cr.P.C. to the Court. He was formally indicted for the offense, to which he pleaded not guilty and opted to face trial. The prosecution produced twelve witnesses to strengthen the allegations against the appellant. Subsequently, the appellant was examined under Section 342, Cr.P.C., where he once again denied the charges including confessing his guilt before the Court. However, he chose not to be examined on oath in terms of section 340(2), Cr.P.C. and did not produce any witnesses in his defense. On conclusion of the trial, the learned trial Court delivered its judgment on 29.06.2022, convicting and sentencing the appellant, the detail of which has been previously outlined in this judgment, hence, this appeal and the connected cases. 4. We have considered the arguments presented by the learned counsel for both parties, including the learned Additional Advocate General representing the State, and have reviewed the record with their valuable assistance. 5. The appellant is facing the charge of murder of his pregnant wife, Mst. Nazima, who was strangled during the night of June 14 and 15, 2020. It is undisputed that Mst. Nazima was the appellant's wife and that they were residing together in the same house. Notably, the appellant was in the same room with her on the night of the incident, a fact narrated by his father, Muhammad Wahid (PW-8), in his examination-in-chief which was further confirmed during his cross-examination. Moreover, the appellant has not denied his presence with his wife on that night when questioned specifically during his examination under Section 342, Cr.P.C. He also did not raise any defense asserting that he was absent from his home when his wife suffered an unnatural death in the shared bedroom. Hence, the prosecution has firmly established that the appellant was with his wife at the time of the incident. A relevant question arises concerning whether the testimony of Muhammad Wahid (PW-8), who has been declared a hostile witness, can be considered in favour of the prosecution. The Honorable Supreme Court has already addressed this issue in "Zarid Khan v. Gulsher and another" (1972 SCMR 597), stating that even in the case of a hostile witness, his entire testimony should be examined to determine if any portion is credible in light of other evidence brought on the record. While the witness may have attempted to mislead the Court by omitting certain incriminating facts regarding the appellant, it is evident from the record that the parents of the deceased arrived at the scene following the information conveyed by this witness. Subsequently, the body of the deceased was transported to the hospital where the matter was reported. Additionally, ample corroborative evidence is available, particularly the appellant's failure to refute his presence at the scene during the significant time frame. Therefore, in light of the aforementioned judgment, the portions of Muhammad Wahid's statement that support the prosecution's case can be justifiably considered to reach a fair conclusion. 6. Upon reviewing the evidence, particularly the various suggestions presented by the defense counsel to the witnesses and the appellant's statement under Section 342 Cr.P.C, it becomes evident that the defence has primarily challenged the cause of death of the deceased. When presence of the appellant in the company of his wife at the time of occurrence is established rather undisputed, the main question which needs consideration of this Court is the cause of death of the deceased. This challenge was particularly focused by the defence mainly on the dispatch of Parcels Nos. 2 to 10, which contained body parts of the deceased for ascertaining the cause of death with another objection highlighting the lack of evidence regarding the fate of Parcel No. 1, which contained the hyoid bone taken by lady doctor from the deceased during the autopsy. It was the main objection of learned counsel for the appellant that when the cause of death of the deceased was already known to police, there was no need of sending the parcels for forensic analysis which, per contention of the learned counsel, implies that the prosecution was not certain about the cause of death of the deceased. Regarding absence of the expert report pertaining to hyoid bone, the learned counsel was of the view that the same was kept concealed by the lady doctor to hide her fault of reporting the cause of death as strangulation instead of the deceased's falling due to attack of epilepsy. Furthermore, the appellant has specifically taken the defence plea that the deceased suffered from epilepsy and claims that her death was due to natural causes rather than strangulation. Consequently, the burden rested on the prosecution to prove that the deceased was murdered through strangulation. In contrast, the appellant, in view of the defence taken by him, was tasked with demonstrating that death of his wife was indeed due to epilepsy. To address these pivotal questions, a thorough analysis of the evidence on record is necessary with the aim to clarify the circumstances of the deceased's death and evaluate the validity of the claims made by both the prosecution and the defense. 7. Autopsy on the dead body was conducted by Dr. Urooj (PW-3) on 15.06.2020 at 08:30 A.M. She delivered her report Ex.PW-3/1, the relevant portions of which are reproduced below. External Appearance: Ligature mark seen on the neck. A pale young female dead body wearing multi-colour clothes, wearing pink banyan with no blood or semen. Rigor mortis developed; liver mortis developed (lividity). Peripheral cyanosis seen. No frothing. Multi bruises on the body. Ligature mark: purple. Position: hyoid bone, cricoid cartilage. Depth: 1-2cm. Covered Area: 3-4 inches on the anterior and lateral aspect of the neck. Bruised Area: about 2-3 inches on the nape of neck. Scalp, skull and vertebrae: Intact. Membranes, Brain, Spinal cord: Intact. Remarks By Medical Officer: Nazma bibi wife of Shakir-ullah 22/23 years age was received as dead body on 15.06.2020. examined at. The body was pale and rigor mortis was developed. Strangulation mark seen on the neck. Details already mentioned in this report. Cause of Death: Strangulation, hyoid bone fracture. Awaited for forensic lab reports for confirmation of poisoning. Samples sent for toxicology. Probably time that elapsed: (a) Between injury and death: Received dead body at casualty civil hospital Barikot. (b) Between death and post mortem: about 9-10 hours. The report presented by the lady doctor leaves no room for doubt regarding the cause of death, which clearly indicates that the deceased was strangulated. During cross-examination, the defense counsel specifically questioned the lady doctor (PW-3), by suggesting that in cases of strangulation, a victim's eyes may bulge, their tongue may protrude, and saliva may leak from their mouth. The doctor responded that these symptoms may or may not be present, indicating that the absence of such signs does not rule out the possibility of strangulation. Additionally, the defence counsel questioned the Investigating Officer about whether he had identified any objects associated with the alleged hanging of the deceased. The I.O. clarified that he thoroughly inspected the room for hooks or ceiling fans but found no evidence to support that claim. The purpose of the defense's inquiries was explicit: to construct a narrative suggesting suicide as the likely cause of death. However, the appellant in his examination under section 342, Cr.P.C. specifically took the plea that the deceased had died due to her epilepsy condition. This indicates that the appellant has presented two contradictory defense pleas: one asserting that the death was due to epilepsy and the other claiming it was a suicide through hanging. This inconsistency reveals a lack of credibility in his defense and suggests that he is attempting to evade responsibility by relying on differing narratives. The postmortem report described the ligature marks on the deceased's neck, indicating the covered area of 3-4 inches across the anterior and lateral aspects, with a depth of 1-2 cm. Additionally, a bruised area measuring 2-3 inches was also mentioned. Importantly, the postmortem report did not indicate that the ligature mark was positioned obliquely upwards along the line of the mandible, a characteristic that is typically associated with hanging. Furthermore, the doctor noted bruising on the back of the neck, the left chest, and both thighs as emerging from the pictorial attached with…

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