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Petitioner: The State, Mahnaz Ali VS Respondent: Mahnaz Ali, The State and another
Court Name: Lahore High Court Judge(s): Sadiq Mahmud Khurram Title: The State, Mahnaz Ali vs Mahnaz Ali, The State and another Case No.: Murder Reference No. 06 of 2022, Criminal Appeal No. 68 of 2022 Date of Judgment:2023-01-18 Reported As: 2023 LHC 1641 Result: Murder Reference answered in Negative
JUDGMENT
JUDGMENT SADIQ MAHMUD KHURRAM, J.- Mahnaz Ali son of Nazir Ahmad (convict) was tried alongwith Zahoor Ahmad and Mst.Rukhsana Bibi ( both since acquitted by the learned trial court) ,the co- accused of the convict , by the learned Additional Sessions Judge, Chishtian, in the case F.I.R. No. 322 of 2019 dated 06.10.2019 registered in respect of offences under sections 302 and 34 P.P.C. at the Police Station Dahranwala, District Bahawalnagar, for committing the Qatl-i-Amd of Memona Bibi daughter of Allah Rakha (deceased). The learned trial court, vide judgment dated 27.01.2022, convicted Mahnaz Ali son of Nazir Ahmad (convict) and sentenced him as infra:
Mahnaz Ali son of Nazir Ahmad: Death under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Memona Bibi daughter of Allah Rakha(deceased) and directed to pay Rs.500,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of Memona Bibi daughter of Allah Rakha(deceased) and in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead. Zahoor Ahmad and Mst.Rukhsana Bibi, the co-accused of the convict were, both however acquitted by the learned trial court. 2. Feeling aggrieved, Mahnaz Ali son of Nazir Ahmad (convict) lodged Criminal Appeal No.68 of 2022, assailing his conviction and sentence. The learned trial court submitted Murder Reference No.06 of 2022 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Mahnaz Ali son of Nazir Ahmad. We intend to dispose of the Criminal Appeal No. 68 of 2022 and Murder Reference No.06 of 2022 through this single judgment.
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3. Precisely, the necessary facts of the prosecution case, as narrated by Allah Rakha (PW-1), the complainant of the case are as under:- "Stated that my daughter Memona bibi aged 18/19 years was married with accused Mahnaz Ali s/o Nazir Ahmad about 3 years ago in Chak No.178/M. On 06.10.2019 I alongwith Muhammad Irfan son of Muhammad Siddique, Muhammad Yaqoob son of Haji Ghulam Rasool went to see my said daughter Memona Bibi in Chak No.178/M Tehsil Chishtian. We reached near the house of my said daughter at about 12:30 PM (Noon), where we heard the noise of my said daughter, whereupon we instantly entered into the house and saw in the room where accused persons had lay my daughter on the cot, accused Rukhsana Bibi wife of Zahoor Ahmad and Zahoor Ahmad s/o Dur Muhammad had caught hold from her legs and accused Mahnaz Ali present in court had pressed the throat of my daughter in order to commit her murder. On seeing this we raised hue and cry, upon which PWS Haji Ramzan and Muhammad Iqbal sons of Haji Allah Din came at the spot, witnessed the occurrence and saw the accused while fleeing away from the place of occurrence. We took care of my daughter, but she died at the spot The accused persons committed the instant occurrence for the reason that accused Mahnaz Ali had illicit relations with accused Mst.Rukhsana Bibi and when my daughter came to know about this fact, she forbade them and due to this reason the present accused Mahnaz Ali with help of accused Zahoor Ahmad and Mst.Rukhsana Bibi committed the murder. Prior to the instant occurrence accused Mahnaz Ali used to torture my daughter due to his illicit relations with the accused Rukhsana Bibi. After the occurrence local police came at the spot, I submitted an application (Exh.PA) against accused Mahnaz Ali present in court as well as accused Zahoor Ahmad and Mst.Rukhsana Bibi, on the basis of which instant case was registered. Complaint Exh.PA bears my signature as Exh.PA/1. The present accused Mahnaz Ali as well as accused Zahoor Ahmad and Mst.Rukhsana Bibi with common intention committed murder of my daughter, they may kindly be dealt with according to law.." 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 accused were sent to face trial. The learned trial court framed the charge against the accused on 25.02.2020, 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 ten witnesses recorded. The ocular account of the case was furnished by Allah Rakha (PW-1) and Muhammad Yaqoob (PW-2). Fazal Ahmad (PW-3) stated that on 07.10.2019, he identified the dead body of the deceased at the time of post mortem examination and Muhammad Saleem ASI (PW-6) received the last worn clothes of the deceased from the Woman Medical Officer and produced them before Majid Iqbal, SI (PW 7) , the Investigating Officer of the case. Muhammad Nasrullah, ASI (PW 4) stated that on 06.10.2019, he received four sealed envelopes from the Crime Scene Unit, Bahawalpur and on 11.10.2019, he handed over the said sealed parcels to Muhammad Shabbir, SI (PW-10) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore and further stated that on 19.10.2019, he received the last worn clothes of the deceased as well as three sealed Jars and three sealed envelopes from Majid Iqbal, SI (PW-7) and on 29.10.2019, he handed over the three sealed Jars and three sealed envelopes to Muhammad Shabbir, SI (PW-10) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Shahzad Aslam 1647/C (PW-5) stated that on 06.10.2019, he escorted the dead body of the deceased to the hospital and received the last worn clothes of the deceased from the Medical Officer after the post mortem examination of the dead body of the deceased. Muhammad Jamil, draftsman (PW-9) prepared the scaled site plan of the place of occurrence (Exh.PJ). Muhammad Shabbir, SI (PW-10) stated that on 06.10.2019, he recorded the formal F.I.R (Exh.PA/2) and on 11.10.2019, he received four sealed
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envelopes from Muhammad Nasrullah, ASI (PW-4) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore and on 29.10.2019, he received three sealed Jars and three sealed envelopes from Muhammad Nasrullah, ASI (PW-4) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore.Majid Iqbal, SI (PW-7) investigated the case from 06.10.2019 till 10.03.2020, arrested the appellant on 15.11.2019, 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. Irum Zafar (PW-8) examined who on 07.10.2019 was posted as Woman Medical Officer at the T.H.Q. Hospital, Chishtian and on the same day had conducted the post mortem examination of the dead body of the deceased namely Memona Bibi daughter of Allah Rakha. On conducting the post-mortem examination of the dead body of the deceased namely Memona Bibi daughter of Allah Rakha, Dr. Irum Zafar (PW-8) observed as under:- "Examination of Neck A bruise mark measuring 1 cm starting from below the right ear and anteriorly crossing the right thyroid cartilage running towards left ear posteriorly. On anterior part the bruise was more thick alongwith crescent shape small size bruises, more prominent on the right side of neck. Description of Injuries Injury No. 1. On exploration of neck area, muscles underneath the bruise were damaged, hyoid bone was fractured, taken out, sealed and handed over to police. ............................ Opinion:
After thorough external and internal postmortem of the dead body, all the visceras including hyoid bone taken and sent to PFSA for opinion. Rectal (internal external), vaginal (internal), perineal swa bs sent to PFSA. Probable time that lapsed between death and postmortem within 20/hours. Final Opinion: Vide Forensic DNA and Serology analysis report No.PFSA 2019 262607- DNA-39187 dated 15-11-2019, Forensic DNA and Serology analysis report No.PFSA 2019-258665-DNA-38461 dated 29.11.2019, Forensic Toxicology analysis report No.PFSA 2019-262607-TOX 14960 dated 06.01.2020 and Forensic Histopathology analysis report No.PFSA 2019- 262607-PATH-07709 PATH 15463 dated 12.12.2019, received on 31.8.2020. In the light of above mentioned reports, my final opinion is as under: No seminal material was found on item No.1,2,3 and 4, therefore, no further DNA analysis (short tandem repeat profiling) was conducted on these items. As no standard reference sample of suspects were submitted therefore no analysis was conducted on items No.1,2,3, 4.1 and 4.2 at this time. Drugs were not detected in blood in item No.01. Histological examination of heart section reveals patent coronaries and unremarkable myocardium. The lung section reveals vascular congestion and presence of oedematous fluid inside alveoli. The stomach, small and large intestinal sections reveal that no pathological changes. The renal section, reveals vascular congestion and presence of hemorrhages inside renal tissue. The uterine section reveal attach decidual tissue with endometrial wall. Histological examination of multiple sections from hyoid bone reveals bone entrapped in those are blood hemorrhages derioting ante-mortem injury to hyoid bone. These features suggest interference at the level of neck causing asphyxias death. In the light of postmortem examination and expert opinion from PFSA Lahore, I was of the opinion that cause of death in this case was asphyxia/strangulation." 7. On 22.01.2021, the learned Assistant District Public Prosecutor gave up the prosecution witnesses namely Muhammad Irfan, Muhammad Ramzan, Muhammad Iqbal, Haji Atim and Sarfraz Ahmad
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513/C as being unnecessary and closed the prosecution evidence after tendering in evidence the reports of Punjab Forensic Science Agency, Lahore (Exh. P.K, Exh.PL, Exh.PM and Exh.PN). 8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Mahnaz Ali son of Nazir Ahmad under section 342 Cr.P.C. and in answer to the question why this case against you and why the P.Ws. have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant namely Mahnaz Ali son of Nazir Ahmad opted not to get himself examined under section 340(2) Cr.P.C. and did not adduce any evidence in his defence. 9. On the conclusion of the trial, the learned Additional Sessions Judge, Chishtian convicted and sentenced the appellant as referred to above. 10. The contention of the learned counsel for the appellant precisely is that the whole case is 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 contended that the prosecution had proved its case beyond the shadow of a doubt by producing independent witnesses. The learned Deputy Prosecutor General further argued that the deceased died as a result of injuries suffered at the hands of the appellant. The learned Deputy Prosecutor General further contended that the medical evidence also corroborated the statements of Allah Rakha (PW-1) and Muhammad Yaqoob (PW-2). The learned Deputy Prosecutor General 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 prayed for the rejection of the appeal. 12. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General and with their able assistance, perused the record and evidence recorded during the trial. 13. The whole prosecution case revolves around the statements of Allah Rakha (PW-1) and Muhammad Yaqoob (PW-2), the eye witnesses of the occurrence. The relationship of the said witnesses with the deceased is on record. Mamoona Bibi (deceased) was the real daughter of Allah Rakha (PW-1) and the paternal cousin of Muhammad Yqoob (PW-2). In his statement before the learned trial court, the prosecution witness namely Muhammad Yaqoob (PW-2) stated as under:- "Complainant Allah Rakha is my paternal uncle..." The prosecution witnesses namely Allah Rakha (PW-1) and Muhammad Yaqoob (PW-2) were also admittedly not the residents of the place of occurrence. According to the prosecution witnesses namely Allah Rakha (PW-1) and Muhammad Yaqoob (PW-2), the prosecution witness namely Allah Rakha (PW-1) was the resident of the city of Lahore and the prosecution witness namely Muhammad Yaqoob (PW-2) was the resident of Basti Jhurran-wali, Mauza Qazi Wala, Tehsil & District Bahawalnagar, whereas the occurrence had taken place at Chak 178/M, which place was admittedly at a distance from the places of residences of Allah Rakha (PW-1) and Muhammad Yaqoob (PW-2). The prosecution witness namely Allah Rakha (PW-1), during cross-examination, stated as under:- "I work at Lahore as labourer for the last 10/15 years.
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.......... I alongwith said two sons used to work in Muddle Textile Mills Lahore. My sons are having education i.e. 7/8 Classes. I am working as Laboratory Supervisor in the above said Mills. Muhammad, Yaqoob PW is grandson of my paternal aunt. Muhammad Irfan PW is resident of Tensil FortAbbas and his residence is 70 kilometer away from the place of occurrence. Muhammad Yaqoob is resident of Basti Raanwan Tehsil Bahawalnagar, which is about 60 kilometers away from the place of occurrence." (emphasis supplied). The prosecution witness namely Muhammad Yaqoob (PW-2), during cross-examination, stated as under:- "Allah Rakha Complainant and his sons work at Lahore separately at different places. ................ My residence is at a distance of about 45 kilometers away from the place of occurrence. ............ It is correct that none from the sons of the complainant is witness of the case for the reason that they used to work at Lahore in some Factory." (emphasis supplied) It is an admitted fact that both the prosecution witnesses namely Allah Rakha (PW-1) and Muhammad Yaqoob (PW-2) did not have their residences or their places of employment near or around the place of occurrence. In this manner, both the prosecution witnesses namely Allah Rakha (PW-1) and Muhammad Yaqoob (PW-2) 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. We have noted with grave concern that the prosecution witnesses namely Allah Rakha (PW-1) and Muhammad Yaqoob (PW-2) 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. Both the prosecution witnesses namely Allah Rakha (PW-1) and Muhammad Yaqoob (PW-2) did not even make an effort to explain as to why, on the very day of occurrence, they found it necessary to visit the matrimonial house of the deceased. Moreover, no effort was made by the prosecution witnesses namely Allah Rakha (PW-1) and Muhammad Yaqoob (PW-2) to explain as to how and when and where the prosecution witness namely Muhammad Yaqoob (PW-2) joined the prosecution witness namely Allah Rakha (PW-1) on their journey towards the place of occurrence, as the prosecution witness namely Allah Rakha (PW-1) was residing at Lahore when the occurrence took place , whereas the prosecution witness namely Muhammad Yaqoob (PW-2) was residing at Basti Jhurran-wali, Mauza Qazi Wala Tehsil & District Bahawalnagar, both places being substantially away from each other as well as the place of occurrence . We have also noted that though it was admitted by the prosecution witnesses namely Allah Rakha (PW-1) and Muhammad Yaqoob (PW-2) that the place of occurrence was at quite a distance from their residences, however, during the course of the investigation as well as before the learned trial court, the prosecution witnesses namely Allah Rakha (PW-1) and Muhammad Yaqoob (PW-2) did not mention as to the vehicle used by them to arrive at the place of occurrence. Necessarily the prosecution witnesses namely Allah Rakha (PW-1) and Muhammad Yaqoob (PW-2) would have used some vehicle to travel the said distance however, the prosecution witnesses namely Allah Rakha (PW-1) and Muhammad Yaqoob (PW-2) did not give any evidence in this regard and did not state as to how they had travelled to arrive at the place of occurrence. Majid Iqbal, SI (PW-7) , the Investigating Officer of the case, also admitted that the prosecution witness namely Allah Rakha (PW-1) did not produce any documentary evidence to prove that he had taken leave from the place of his work on the day of occurrence. Majid Iqbal, SI (PW 7), the Investigating Officer of the case , during cross-examination , stated as under:-
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"It is correct that witness Muhammad Irfan is resident of Tehsil FortAbbas, whereas witness Muhammad Yaqoob is resident of Tehsil Bahawalnagar. ......... Complainant did not produce any leave certificate before me during investigation." (emphasis supplied) In this manner, both the eye witnesses namely Allah Rakha (PW-1) and Muhammad Yaqoob (PW- 2) failed miserably to establish the reason for their presence at the place of occurrence, at the time of occurrence and the mode through which they arrived at the place of occurrence. We have also noted with concern that the prosecution witnesses namely Allah Rakha (PW-1) and Muhammad Yaqoob (PW-2) were not mentioned as the witnesses who were present at the place of occurrence when the Investigating Officer of the case, prepared the inquest report (Exh.PG/1-
2). Majid Iqbal, SI (PW-7), the Investigating Officer of the case, admitted during cross-examination as under:- "Fazal Ahmad and Haji Atim are not witnesses of the instant FIR, who are mentioned as witnesses of recovery of last worn clothes of deceased as well as identification of body " The prosecution was under a bounden duty to establish not only that the prosecution witnesses namely Allah Rakha (PW-1) and Muhammad Yaqoob (PW-2) had a reason to proceed to the place of occurrence but also to prove the mode through which the prosecution witnesses namely Allah Rakha (PW-1) and Muhammad Yaqoob (PW-2) arrived at the place of occurrence. The very inception of the prosecution case is put in doubt due to the said failure of the prosecution. The failure of the prosecution to prove the said facts has vitiated our trust in Allah Rakha (PW-1) and Muhammad Yaqoob (PW-2) as being truthful witnesses. Reliance is placed on the case of "Muhammad Rafiq v. State" (2014 SCMR 1698) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometer away from the place of occurrence, but on the day of occurrence stated to be present near the spot as they were working as labourers, inasmuch as they failed to give any detail of the projects they were working on. Reliance is also placed on the case of "Usman alias Kaloo v. State" (2017 SCMR 622) wherein the august Supreme Court of Pakistan held that the ocular account of the incident had been furnished by Zahoor Ahmad, Ghulam Farid and Manzoor Ahmed in the said case, who were all residents of some other houses and they were not the inmates of the house wherein the occurrence had taken place and therefore the said eye-witnesses were, thus, chance witnesses and declared not worthy of reliance. Reliance is also placed on the case of "Nasrullah alias Nasro v. The State" (2017 SCMR 724) wherein the august Supreme Court of Pakistan observed as under:- "In the case in hand the eye-witnesses produced by the prosecution lived eighty kilometers away from the scene of the crime, their stated reason for presence in the house of occurrence at the time of incident in issue had never been established through any independent evidence." 14. We have also observed that the prosecution witnesses namely Allah Rakha (PW-1) and Muhammad Yaqoob (PW-2) 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 them 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 Allah Rakha (PW-1) and Muhammad Yaqoob (PW-2), runs counter to natural human conduct and behaviour. Hence, being perceptive of this strain of human
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conduct, we are holding that the prosecution witnesses namely Allah Rakha (PW-1) and Muhammad Yaqoob (PW-2) 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." 15. We have also noted that the alleged eye witnesses namely Allah Rakha (PW-1) and Muhammad Yaqoob (PW-2) alongwith Muhammad Irfan (given up prosecution witness) 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 is unnatural and unbelievable that the alleged eye witnesses namely Allah Rakha (PW-1) and Muhammad Yaqoob (PW-2) alongwith Muhammad Irfan (given up prosecution witness), did not even move a limb to protect their near and dear one, despite the fact that the appellant was not even armed with any weapon, rather according to the prosecution witnesses namely Allah Rakha (PW-1) and Muhammad Yaqoob (PW-2) , the appellant was present at the place of occurrence empty handed. The alleged eye witnesses namely Allah Rakha (PW-1) and Muhammad Yaqoob (PW-2) alongwith Muhammad Irfan (given up prosecution witness), also allowed the appellant to escape from the place of occurrence .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 courts 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. We thus trust…
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