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Petitioner: MUHAMMAD ASGHAR VS Respondent: THE STATE
Court Name: Federal Shariat Court Judge(s): Nasir Aslam Zahid, Nazir Ahmad Bhatti, Dr. Allama Fida Muhammad Khan Title: MUHAMMAD ASGHAR vs THE STATE Case No.: Jail Criminal Appeal No,19/L of 1995 Date of Judgment:1995-06-13 Reported As: 1996 P Cr. L J 136 Result: Appeal allowed
JUDGMENT
JUDGMENT ' NASIR ASLAM ZAHID, J.--- This appeal has been sent from jail by convict Muhammad Asghar son of Muhammad Siddique against the judgment dated 27-4-1992 passed in Sessions Case No,21/S of 1991 by the learned Sessions Judge, Lodhran, whereby the appellant has been convicted under section 302, P.P.C. And sentenced to death and also fined Rs,5,000 and in default to suffer R.I. For one year and he is also directed to pay Rs,10,000 as compensation to the legal heirs of deceased Mst. Kaneez Mai under section 544-A, Cr.P.C. And in default in payment to suffer further R.I. For six months. The appellant has also been convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and sentenced to R.I. For twenty-five years and awarded thirty stripes. Arguments of Mr. Walayat Umar Chaudhary, learned counsel appearing for the pauper appellant, and Mr. Malik Muhammad Nusrat Mehal, learned counsel for the State were heard at length. With the assistance of the learned counsel, we had gone through the entire record including the impugned judgment. On conclusion of the arguments yesterday, by our short order, this appeal was allowed, the impugned judgment set aside and the appellant acquitted of the charge. It was further directed that the appellant be released forthwith if not required in any other case. Detailed reasons for our short order are contained in this judgment. 2. In this case, the complainant' is P.W.8 Allah Diwaya, father of deceased Mst. Kaneez Mai, wife of P.W.9 Haji Muhammad. At the instance of the complainant, F.I.R. No,209 was registered on 28-6- 1990 at Police Station Dunyapur, District Lodhran. According to the F.I.R. Mst. Kaneez Mai was married to P.W.9 Haji Muhammad about 9/10 years earlier and from the marriage two daughters were born. According to the complainant, two days earlier i,e, 26-6-1990, at about 11-00 a.m./12 noon, Mst. Kaneez Mai came from her village (Chak 22/M) to the house of the complainant
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(located in Chak No,23/M) for the purpose of sewing of her clothes lying in the house of the complainant. According to the F.I.R., on the same day a sick bullock of the complainant was slaughtered and he had distributed the beef amongst the members of his Biradri and Mst. Kaneez Mai left at about 4/5 p.m. The same day for her house taking some beef alongwith her in a silver kettle. On the next day, 27-6-1990, at about 10-00 a.m. P.W.9 Haji Muhammad, son-in-law of the complainant, came to the house of the complainant and asked him as why Mst. Kaneez Mai had not returned on the previous evening to which the complainant replied that she had left the previous evening at about 4/5 p.m. On this, Haji Muhammad informed the complainant that Mst. Kaneez Mai had still not reached his house. Suspecting foul play, complainant Haji Muhammad and several others formed a search party. According to the F.I.R., in the morning of 28-6-1990, when the search party reached the sand dunes within the area of Chak 21/M they saw a kettle containing beef lying near a Sarkanda bush and they also saw the knees of a human body out of the sand with the remaining part of the body buried in the sand. The sand was removed and the dead body was identified to be that of the daughter of the complainant who did not have any Shalwar on the lower part of her body and she only had a shirt on the body. According to the complainant, sufficient quantity of blood was lying on the sand and there was contusion marks on the neck. Complainant left Allah Bachaya, P.W.7 Noor Muhammad, Abdul Sattar and others at the spot to guard the dead body and he took Chairman Iqbal Hussain to the police station and made a report about the murder of his daughter by cruel persons after subjecting her to Zina-bil-Jabr. After registration of the case, investigation was started and on 29-6-1990 the appellant and acquitted co-accused Muhammad Bakhsh son of Ghulam Muhammad Khawaja were arrested. Recovery of the missing clothes of the deceased comprising her shirt, Dopatta and one Romal was made on 4- 8-1990, at the instance of the accused. After completion of the investigation, the two accused were challaned. On 8-4-1992, the trial Court, the learned Sessions Judge, Lodhran, framed the following charge under two heads against the two accused:- "Firstly:- That on 26-6-1990 at about 5 p.m., you both committed Zina-bil-Jabr with Mst. Kaneez Mai deceased within the area of Chak No,21/M and thereby committed an offence punishable under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 within the cognizance of this Court. Secondly.--- That on the same day, time and place you both intentionally committed the murder of Mst. Kaneez Mai deceased in furtherance of your common intention and thereby you both committed an offence punishable under section 302 read with section 34, P.P.C. Within the cognizance of this Court." ' Both the accused pleaded not guilty and claimed trial. During the trial, the prosecution examined 11 witnesses. After the close of the evidence of the prosecution, statements of the two accused were recorded under section 342, Cr.P.C. Neither of the two accused gave evidence on oath and no defence witness was examined. 3. In this case, there is no eye-witness. The prosecution case is based on circumstantial evidence and this evidence comprises the following:-- (a) Evidence of P.W.4 Muhammad Nawaz and P.W.5 Wahid Bakhsh, who had seen the accused in the sand dunes within the area of Chak 21/M (where the dead body of the deceased was found two days later) and on seeing the two witnesses, they dispersed and looked worried. (b) Evidence of P.W.7 Noor Muhammad; a member of the search party, before whom extra-judicial confession was made by the appellant on 1-7-1990. (c) Medical evidence given through P.W.2 Doctor Altaf Ahmad Khan. (d) Chemical Examiner's Report (Exh.P.K.), dated 24-7-1990, according to which the swabs taken from the vagina of deceased were found to be stained with semen.
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(e) Recovery of Shalwar (P.3), Dopatta (P.4) and one handkerchief (P.5) at the instance of appellant Muhammad Asghar on 4-8-1990 (recovery memo being Exh.P.G.). These items were buried in sand at some distance from the place where the dead body of the deceased was found in the sand dunes in Chak No,21/M, alleged to be the clothes of the deceased. 4. The appellant in his statement recorded under section 342, Cr.P.C. Denied that he had been seen alongwith co-accused Muhammad Bakhsh in the sand dunes within the area of Chak 21/M. He denied that he had made any extra-judicial confession. He also denied that he had led the police to the recovery of last worn clothes of the deceased. He denied that he had raped and murdered deceased. He denied the Chemical Examiner's Report as false and fabricated. In answer to the question as to why the P.Ws. Had deposed against him he stated as follows:-- "I have been got falsely implicated in this case at the instance of Razae-Shah and Rab Nawaz, a brother of Muhammad Nawaz P.W., who wanted to take the forcible possession of my landed property. The P.Ws. Are fast friends of abovementioned persons so they have deposed against me under their influence." 5. The trial Court believed the prosecution evidence. It also observed that the investigation conducted by the Police Officers also supported the prosecution case and in Para.23 of the judgment held as follows:-- "From the record it also appears that Muhammad Asghar accused was involved in 11 other criminal cases of theft and possession of illicit Arms etc. His previous record shows that he is a desperate person and he must have committed the offence alleged against him." 6. It may be observed here that the prosecution evidence was believed by the trial Court only as regards the appellant, Muhammad Asghar, but the trial Court held that the prosecution had failed to prove its case against acquitted accused Muhammad Bakhsh beyond reasonable doubt and, therefore, he was acquitted. According to the impugned judgment, the only prosecution evidence against co-accused Muhammad Bakhsh was in the shape of the statements of two Wajtakker witnesses, P.W.4 Muhammad Nawaz and P.W.5 Wahid Bakhsh, who had stated that they had seen Muhammad Bakhsh and appellant Muhammad Asghar near the scene of occurrence immediately prior to the occurrence. According to the trial Court, although P.W.8 Allah Diwaya and P.W.9 Haji Muhammad stated that co-accused Muhammad Bakhsh also led to the recovery of the clothes of the deceased alongwith the appellant Muhammad Asghar, yet the recovery memo. Exh.P.G. Contradicts them on this point whereby only Muhammad Asghar accused is mentioned to have led to the recovery of the said clothes. According to the trial Court "the statements of Wajtakkar witnesses, P.W.4, P.W.5, without any corroboration do not inspire confidence". As observed, in the circumstances, the trial Court acquitted co-accused Muhammad Bakhsh. 7. Mr. Walayat Umar Chaudhary, learned counsel appearing for appellant Muhammad Asghar, argued that co-accused Muhammad Bakhsh had been acquitted by the trial Court and on the same evidence appellant could not be convicted as, according to the prosecution, both the accused had taken part in the crime. It was-argued that enmity had been established between the parties which became the basis of false implication. According to learned counsel for the appellant, the medical evidence did not support the prosecution version that the deceased had been strangulated by the appellant after committing Zina-bil-Jabr with her. It was argued that the evidence of P.W.4 and P.W.5 of having seen the appellant in the sand dunes before the murder of the deceased is not confidence inspiring and also contradictory to each other and the evidence of other witnesses. It was argued on behalf of the appellant that the prosecutiOn had not established its case. 8. On the other hand, Mr. Malik Muhammad Nusrat Mehal, learned counsel representing the State, supported the impugned judgment arguing that the circumstantial evidence fully supported the conclusion reached by the trial Court. According to learned counsel for the State, the evidence of
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P.W.4 and P.W.5 established that the appellant was present at the place where the dead body of the deceased was found a little earlier to the time when the murder had taken place; evidence about extra-judicial confession made by the appellant given by P.W.7 Noor Muhammad inspires confidence and the witnesses not shown to be interested or inimical witnesses; medical evidence supported the prosecution version that the deceased had died by strangulation or suffocation. Learned counsel for the State cited the following reported decisions to support his contentions:-- (i) Nawab v. The State PLD 1965 SC 522, (ii) Arif Nawaz Khan v. The State PLD 1991 FSC 53, (iii) Khubaid Ahmad v. The State 1992 SCMR 398, (iv) Syed All Shah v. The State 1993 PCr.LJ 1118, (v) Muhammad Arif v. The State PLD 1962 Lah. 498, (vi) Riaz Ahmad v. The State 1975 PCr.LJ 652 9. It was additionally submitted on behalf of the State that the enmity pleaded by the appellant was so general and vague that it could not become the basis for false implication. It was also submitted that the appellant did not appear in the witness stand to give evidence on oath and no defence witness was examined on his behalf. 10. In this case there is no ocular evidence. There is no confession of the appellant. As observed, the prosecution case depends on circumstantial evidence. To base the conviction of an accused solely on circumstantial evidence such evidence must be free from doubt and no other explanation should be possible except the guilt of the accused. Additionally all links should be established. As observed by Qaiser Aluned Hamidi, J. Of the Sindh High Court in the case of Ghulam v. The State 1991 PCr.LJ 697, in case of circumstantial evidence failure of one link destroys the entire chain. Keeping the aforesaid principles in consideration, we propose to scrutinize and assess the evidence led by the prosecution against the appellant in this case to determine whether the trial Court had erred in holding that the circumstantial evidence had established prosecution's case against the appellant beyond reasonable doubt. 11. We may first refer to the evidence of P.W.4 Muhammad Nawaz and P.W.5 Wahid Bakhsh who had seen the accused in the sand dunes within the area of Chak No,21/M on 26-6-1990, where the dead body of the deceased was found two days later. There is no evidence that the accused had last been seen in the company of the deceased on 26-6-1990 or earlier. The evidence given by these two witnesses is to the effect that they had seen the accused in the area in question and, on seeing the two witnesses, the accused had dispersed and had looked worried. After close scrutiny of the evidence of these two witnesses with the assistance of learned counsel for the parties, we find that the same contained contradictions, infirmities and deficiencies. In brief, our conclusion is that the evidence of these two Wajtakker witnesses is not confidence inspiring. Both of them appear to be chance witnesses. P.W.4 Muhammad Nawaz is a resident of Chak No,22/M, Tehsil Dunyapur, District Lodhran. According to his evidence, on 26-6-1990 he went to P.W.5 Wahid Bakhsh, also resident of the same Chak to obtain an amount of Rs,4,000 which was due to Muhammad Nawaz. According to the witness, he had sold wheat to Wahid Bakhsh against the consideration of Rs,4,000. The witness then states that Wahid Bakhsh told him that the amount was not available with him and he had to receive some amount from another person residing in Multan City and, on insistence of Wahid Bakhsh, both the witnesses proceeded towards Multan from their village and, on the way, they met one Manzoor Ahmad who also accompanied them and on the way they reached Chak No,21/M where they saw Muhammadi Khoja and appellant Asghar in sand dunes. According to the witness "on seeing us both the accused started dispersing and they were worried". The three then proceeded towards Multan where they stayed for two days. When they came back they saw the police party and other villagers who informed about the discovery of the body of the deceased buried in the sand, on which they told the police about seeing the two persons on 26-6-1990. The
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version of the witness about recovery of the amount of Rs,4,000 from P.W.5 Wahid Bakhsh and then of taking Wahid Bakhsh and other witness on the way and passing near the place of occurrence exactly at the time when, according to witness, Muhammadi Khoja and appellant Asghar were present in the sand dunes, does not ring true. Then, apart from appellant Asghar, P.W.4 Muhammad Nawaz talks about the other accused as Muhammadi Khoja, who does not appear in the case at all at any other place. Muhammadi Khoja is not mentioned in the evidence of any other witness including P.W.5 Wahid Bakhsh. P.W.5 Wahid Bakhsh repeats the same story as given by Muhammad Nawaz, but states that they saw appellant Asghar and Muhammad Bakhsh (acquitted accused) in the sand dunes. Apart from this major discrepancy, when confronted with their statements under section 161, Cr.P.C., it was found that neither of these two witnesses had mentioned about the amount of Rs,4,000. The story about going to Multan is also not mentioned in the statements under 161, Cr.P.C. Of the said two witnesses, with which they were confronted. Both the witnesses have tried to improve their version so as to show that their passing by the sand dunes in Chak 21/M was natural, but in the cross-examination it was demonstrated that the story about the amount of Rs,4,000 and going to Multan for its recovery was apparently not true. Suggestions of enmity over litigation were also made to the witnesses during their cross- examination. As observed, in our view, the evidence of P.W.4 and P.W.5 having seen appellant Asghar on 26-6-1990 in the sand dunes in Chak 21/M is not free from doubt. 12. P.W.7 Noor Muhammad, a member of the search party, has also given evidence that on 1-7-1990 in the evening he was present with Iqbal Hussain, Chairman, resident of Chak 26/M, when appellant Asghar came there and told them that, a few days prior to the occurrence, the accused had asked Mst. Kaneez Mai to have illicit intercourse with him, but she disgraced him and on that account he bore grudge against the deceased. According to P.W.7, the accused further stated that on 26-6- 1990 in the morning he had seen the deceased going from her house in Chak 22/M to the house of her father in Chak No,23/M and he waited for her return sitting in the sand dunes within the area of Chak 21/M. According to P.W.7, the accused further stated that, when he was waiting. P.Ws. Muhammad Nawaz and Wahid Bakhsh passed by his side and that about 5/6 p.m. He saw Mst. Kaneez Mai returning to her house and, when she came near him, he caught hold and gaged her mouth with her Dopatta and committed Zina-bil-Jabr with her. The accused further told the witness that in the meanwhile Dopatta was removed from the mouth of the deceased and she told him that she would teach him a lesson about his misbehaviour with her, on which the accused became very angry and pressed her neck and murdered her there. The accused is alleged to have told P.W.7 and Chairman Iqbal Hussain that thereafter he came to know that his father had died and he realized that the accused had been punished for his misdeed and, therefore, he had come to acknowledge his crime and asked for forgiveness from the husband and father of the deceased. According to P.W.7, after the said disclosure, Iqbal Hussain went out of his house and returned after five months informing the witness that appellant Asghar had run away. According to the witness, next day he and Chairman Iqbal Hussain saw A.S.I. Afsar Khan and then Iqbal Hussain, Chairman, and Afsar Khan, A.S.I. Went to the Police Station, Dunyapur and the witness returned to his house. Extrajudicial confession is always treated as a weak piece of evidence and requires independent corroboration to base the conviction of the accused. In this case, C we find that the evidence about extra judicial confession given by P.W.7 Noor Muhammad also does not inspire confidence. It seems strange that, without any previous history of association or contact, appellant Muhammad Asghar would just go to a married woman and asked her to have illicit relations with him. It also appears to be strange that if at all such an indecent proposal had been made by appellant Muhammad Asghar which was rejected outright by the deceased who also disgraced the appellant for making such proposal, the deceased made no mention about it to her husband or father. Neither P.W.8 complainant Allah Diwaya, father of the deceased, nor P.W.9 Haji Muhammad,
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husband of the deceased, has given evidence that any such proposal had been made or that the deceased had made any complaint to them against the accused. It also seems unnatural that in case the accused had decided to make a confession and had in fact done so before Chairman Iqbal Hussain and P.W.7 Noor Muhammad, he should decamp within five minutes after making such extra-judicial confession. A doubt has been created as to whether the accused at all had made the said extra-judicial confession. Even if the said extra judicial confession is taken into consideration, it would be considered as a tainted piece of evidence and would require very strong independent corroboration for making it the basis of conviction of the appellant in this case. 13. Medical evidence in this case has been provided by P.W.2 Altaf Ahmad Khan who had performed the post-mortem examination of the deceased on 28-6-1990 at 11-00 a.m. Relevant part of the evidence of P.W.2 is reproduced here:-- "It was a dead body of young female. Body swollen. Putrification started. Blister present. Frothy discharge from the nose present. Eyes were closed. Mouth was open. Rigor mortis was absent. Post-mortem staining was present on the dependent parts of the body. Legs were flexed at knee and extended at hip joint. Rectum was protuding out of anus found smelling. Gas was present. Semered with wet sand. She was clad in Qameez, Dupatta. I noted following injuries on her body. Injuries (1) A contusion mark of 8 c.m. x 4 c.m. On the front of neck. (2) A contusion mark of 28 c.m. x 20 c.m. On the front medial and lateral side of left thigh and in groin. (3) A contusion of 15 c.m. x 10 c.m. On the front and medial side of right thigh and groin. ' On dissection of neck. Skin of neck was semered with wet sand particles. No abnormality detected underneath injury No,1. Hoid bone and thigh roid catrilage were normal. Brain membrains were left and congested. Right lung was congested and frothy blood-stained discharge was coming out. Heart was empty and soft. In the mouth frothy discharge was present. In the stomach 2 ounces of digested food material mixed with sand particles were present. Large intestine was soft and contained facial matter. Liver was soft congested and decomposed. Splean was soft syanozed and decomposed. Kidneys were also soft and congested. Urine bladder contained 2 ounces of urine. ' Uterus was empty. Vaginal and utrine swabs were taken and sent for Chemical Examination for the detection of semen. In my opinion cause of death was suffocation and shock. However, viscera and vaginal swa bs were taken and were sent to Chemical Examiner Lahore and final opinion was to be given after the receipt of the report of the Chemical Examiner. Duration between injury and death was immediate with half an hour and the duration between death and postmortem was within 48 hours. Dead body, police papers, carbon copy of post-mortem report, one cartoon and envelope and a small bottle were handed over to Muhammad Ameer Khan, Constable No,572/C for chemical examination. Exh.P.B. Is the correct carbon copy of the post-mortem examination report which is in my hand and signed by me. Exh.P.B./1 is the diagram showing the seats of injuries which is also in my hand and signed by me. I also endorsed the inquest report Exh.P.C. ' x x x x on behalf of learned counsel for Asghar accused. ' Injury No,1 on the person of the deceased lady was the cause of her death. The underneath tissues of injury No,1 were found by me to be normal. If the neck of any living person may be pressed that may cause damage to the underneath tissues and at times that may not cause any damage to any tissue. That depends upon force used for the pressing of the neck. Tracheae is effected if the neck is pressed by the hands of a living person. The tracheae in the present case was normal. In case of suffocation the death occurs immediately. Due to asphyxia exiginated blood is reduced in the body of a living person. The right side of the heart collects the blood from the whole body Whereas the left side of the heart supplies the blood to the whole body. In case of asphyxia the right cavity of the heart may become full of dark clotted blood. At times both the cavities of the
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heart might be found full of blood. In the present case both the cavities of the heart were empty. The season effects the putrification of the dead body. Putrification can be caused by the gases in the body and super added infection. In hot season the putrification starts earlier as compared to summer season. Rigor mortis starts 5 or 6 hours after the death and continues for 'six hours. Colour changes also take place during the period and the colour of the dead body becomes bluish after green colour. That also causes bad smell in the body. I did not note the colour of the dead body of the deceased lady at the time of her post-mortem examination. The fluid from the dead body starts coming out after 12 to 18 hours after the death of the deceased. The discharge occurs only from the mouth and anus of the dead body. It is incorrect that the dead body burst out in 24 to 36 hours, after death. In hot weather the dead body bursts out on 3rd to 4th day after death. It is incorrect that the blood comes out of the nose and ears when the neck of a living person is pressed. It is incorrect to suggest that I did not mention the changes in the colour of the body of the deceased lady because that was in original colour. It is not necessary that the clotted blood may be present in the pluerea if the death may be due to asphyxia. It is incorrect that I formed my opinion about the cause of death on the basis of the report of the Investigating Officer in the inquest…
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