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Petitioner: The State VS Respondent: Mushtaq Ahmad
Court Name: Lahore High Court Judge(s): Sadiq Mahmud Khurram, Ali Zia Bajwa Title: The State vs Mushtaq Ahmad Case No.: Murder Reference No.03 of 2020, Criminal Appeal No. 69 of 2020 Date of Judgment:2022-03-02 Reported As: 2022 LHC 5608, KLR 2022 Criminal Cases 406 Result: Appeal Allowed
JUDGMENT
JUDGMENT SADIQ MAHMUD KHURRAM, J. Mushtaq Ahmad son of Muhammad Yaqoob (convict) was tried by the learned Additional Sessions Judge/Model Criminal Trial Court, Khanpur in the case FIR No. 759 of 2019 dated 23.07.2019 registered at Police Station Saddar Khanpur , District Rahim Yar Khan in respect of offences under sections 302 and 338C PPC for committing the Qatl-i-Amd of Mst. Shahnaz Bibi alias Rani wife of Mushtaq Ahmad (deceased). The learned trial court vide judgment dated 12.02.2020, convicted Mushtaq Ahmad son of Muhammad Yaqoob (convict) and sentenced him as infra: Mushtaq Ahmad son of Muhammad Yaqoob: i) Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Mst. Shahnaz Bibi alias Rani wife of Mushtaq Ahmad (deceased) and directed to pay Rs.100,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased and in case of default thereof, the convict was directed to further undergo six months of simple imprisonment. ii) Rigorous Imprisonment for seven years as ta'zir under section 338 C PPC for causing the Isqat-i-janin of the child in the womb of Mst.Shahnaz Bibi alias Rani wife of Mushtaq Ahmad (deceased) The convict was ordered to be hanged by his neck till dead. The convict, however , was extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898 by the learned trial court. 2. Feeling aggrieved, Mushtaq Ahmad son of Muhammad Yaqoob (convict) lodged Criminal Appeal No.69 of 2020 assailing his conviction and sentence. The learned trial court submitted Murder Reference No.03 of 2020 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Mushtaq Ahmad son of Muhammad Yaqoob. We intend to dispose of the Criminal Appeal No. 69 of 2020 and Murder Reference No.03 of 2020 through this single judgment.
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3. Precisely , the necessary facts of the prosecution case, as narrated by Mst. Sham im Bibi (PW-6), the complainant of the case, are as under:- "States that I am resident of Basti Dhup Sari Chak No.1/P Tehsil Khanpur and I am a household lady. My daughter namely Mst. Shahnaz Bibi was married to Mushtaq Ahmad accused present in the court. My daughter started living with Mushtaq Ahmad in our house and Mushtaq Ahmad was my Ghar Damad. Mushtaq Ahmad accused present in the court used to beat my daughter Mst. Shahnaz Bibi and he oftenly extended threats of dire consequences too. My daughter became pregnant of 03/4 months. On 23.07.2019 at about 03:00 AM (night) I woke up on hues and cries and saw that accused Mushtaq Ahmad was present in the room of my daughter Shahnaz Bibi, where my son in law Mushtaq Ahmad accused present in the court strangulated neck of my daugh ter with a piece of cloth and my daughter was writhing due to pain. I made hue and cry upon which my brother Ameen Akhtar and my cousin Muhammad Afzal (PWs) reached there where I and the PWS witnessed the occurrence in the light of electric bulb and rescued my daughter , but my daughter expired at the spot. Accused Mushtaq Ahmad present in the court succeeded to flee away from the spot. We informed the police about the reached at the spot where I submitted application Ex.PK for lodging of formal FIR. Accused Mushtaq Ahmad present in the court is my real culprit who has done to death my daughter Mst. Shahnaz Bibi, be punished in accordance with 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 was sent to face trial. The learned trial court framed the charge against the accused on 03.10.2019, 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 nine witnesses recorded. The ocular account of the case was furnished by Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7). Muhammad Shahnaz, ASI (PW-1) stated that on 23.07.2019 he recorded the formal F.I.R (Exh.P A). Muhammad Sadiq 312/HC (PW-3) stated that on 23.07.2019 he escorted the dead body of the deceased to the hospital for its post mortem examination and received the last worn clothes of the deceased from the Woman Medical Officer. Abid Hussain, Patwari (PW-5) prepared the scaled site plan of the place of occurrence (Exh.PJ). Muhammad Naeem 510/HC (PW-9) stated that on 23.07.2019, the Investigating Officer of the case handed over to him two sealed parcels and six envelops and on 05.08.2019 he handed over the said two sealed parcels and six envelopes to Muhammad Riaz, SI (PW-2) for their onward transmission to the office of the Punjab Forensic Science Agency , Lahore. Muhammad Riaz, SI (PW-2) investigated the case from 23.07.2019 till 08.08.2019 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Amjad Hussain, SI (PW-4) investigated the case from 09.08.2019 till 23.08.2019, arrested the appellant on 09.08.2019, 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. Namra Khan (PW-8) examined, who on 23.07.2019 was posted as Woman Medical Officer at THQ hospital Khanpur and on the same day conducted the postmortem examination of the dead body of Mst.Shahnaz Bibi alias Rani wife of Mushtaq Ahmad (deceased). Dr. Namra Khan (PW-8), on examining the dead body of Mst. Shahnaz Bibi alias Rani wife of Mushtaq Ahmad (deceased) observed as under:- "EXAMINA TION OF NECK: A ligature mark of 2.5cm to 3cm wide present transversely on neck at the level of present adam's apple in center extending to back side of neck from both sides. A bruise mark of 2cm x 3cm was also present in the center of the neck at the level adam's apple. Bite marks of ants and other insects also present all over neck . Sample of hyoid bone taken and sent to PFSA, Lahore. DESCRIPTION OF INJUR Y: (1) A ligature mark of 2.5cm to 3cm wide present transversely on neck at the level adam's apple in center extending to back side of neck from both sides. A bruise mark of 2cm x 3cm was also present in the center of the neck at the level adam's apple. Bite marks of ants and other insects also present all over neck. Some ants were also present on neck. (2) A ligature mark of 2cm x 2.5cm wide present transversely on face extending from both labial commissures up to the angle of both mandibles and was extending to back. Mouth was half opened. OPINION:
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After conducting the autopsy I am of the opinion that injuries found on post mortem examination suggested strangulation but the final opinion will be given after collecting reports from PFSA, Lahore. Expected duration between injury and death within 5 to 10 minutes and between death and post mortem (12 to 13- hours) PMR No.20-NK/2019 as Ex. PM with pictorial diagram prepared and signed by me. I also endorsed inquest report Ex. PF and application for post mortem submitted by I.O Ex, PG. FINAL OPINION: After receiving Forensic Toxicology Analysis Report Ex.PN, no drugs/poison was detected in liver and stomach contents in item No.1. According to Report Forensic Histopathology Ex. PO, histological examination of the heart sections reveal patent coronaries and unremarkable myocardium. The lung sections reveal vascular congestion and presence of oedematous fluid inside alveoli. Histological examination of multiple sections from hyoid bone reveals bone, entrapped in those are blood haemorrhages, denoting ante morte m injuries to hyoid bone. After conducting the post mortem examination and receiving reports from PFSA, Laho re I am of the opinion that the deceased has been died of asphyxia (strangulation) caused by injuries No.1 & 2 which are sufficient to cause death in ordinary course of nature." 7. On 25.10.2019, the learned Deputy District Public Prosecutor gave up the prosecution witness namely Iftikhar Ahmad SI as being unnecessary . On 30.10.2019, the learned Deputy District Public Prosecutor gave up the prosecution witnesses namely Ameen Akhtar and Muhammad Sufiyan as being unnecessary . On 14.1.2020, the learned Deputy District Public Prosecutor closed the prosecution evidence after tendering in evidence the report of the Punjab Forensic Science Agency , Lahore (Exh. PP). 8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Mushtaq Ahmad son of Muhammad Yaqoob under section 342 Cr.P.C. and in answer to the question why this case against you and why the PWs have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant namely Mushtaq Ahmad son of Muhammad Yaqoob opted not to get himself examined under section 340(2) Cr .P.C. and did not adduce any evidence in his defence. 9. At the conclusion of the trial, the learned Additional Sessions Judge/Model Criminal Trial Court, Khanpur 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, is 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 only on suspicion. The learned counsel for the appellant finally submitted that the prosecution has 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 along with the learn ed counsel appearing on behalf of the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. They further argued that the deceased died as a result of injuries suffered at the hands of the appellant. They further contended that the medical evidence also corroborated the statements of Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7). They further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly , the learned Deputy Prosecutor General and the learned counsel appearing on behalf of the complainant prayed for the rejection of the appeal as lodged by the appellant namely Mushtaq Ahmad son of Muhammad Yaqoob. 12. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General, the learned counsel appearing on behalf of the complainant and with their able assistance perused the record and evidence recorded during the trial. 13. The mainstay of the prosecution are the statements of the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7).W e have noted with grave concern and disquiet that the alleged eye witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) and Amin Akhtar (given up) made no
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effort either to save the deceased or to apprehend the accused when they were three in number and could have easily restrained the accused, who was not even armed with any weapon at the time of occurrence. Muhammad Afzal (PW -7) admitted during cross-examination stated as under:- "Accused Mushtaq was not acquainted (sic) with any weapon occurrence." Both the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhamm ad Afzal (PW-7) were closely related to the deceased namely Mst. Shahnaz Bibi alias Rani. The deceased namely Mst. Shahnaz Bibi alias Rani was the real daughter of Mst. Shamim Bibi (PW-6) and the real maternal niece of Muhammad Afzal (PW-7). Though Muhammad Afzal (PW-7) in his examination in chief had claimed that the deceased was the daughter of his cousin namely Mst. Shamim Bibi (PW-6), however , during the course of cross-examination namely Muhammad Afzal (PW-7) went on to claim that he was the real brother of Mst. Shamim Bibi (PW-6). Muhammad Afzal (PW-7) in his statement before the learned trial court made the following contradictory statements:- "Daughter of my cousin Shamim Bibi namely Mst.Shahnaz Bibi was married to Mushtaq Ahmad. I am real brother of complainant Mst. Shamim Bibi. We alongwith complainant and other family members were sleeping in the court yard of the house, ....."(emphasis supplied) No doubt that both the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) claimed to had been sleeping at the place of occurrence, however , it is unnatural and unbelievable that the alleged eye witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) and Amin Akhtar (given up) did not even move a limb to protect their near and dear one. According to the statements of the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7), they were sleeping prior to the occurrence and woke up after hearing the hue and cry of the deceased namely Mst. Shahnaz Bibi alias Rani, the daughter of the prosecution witness namely Mst. Shamim Bibi (PW-6) and the maternal niece of the prosecution witness namely Muhammad Afzal (PW-7). The prosecution witness namely Mst. Shamim Bibi (PW-6) further claimed that before the occurrence there were as many as six persons sleeping in the courtyard in front of the room where the occurrence took place. Mst. Shamim Bibi (PW -6) during cross-examination stated as under:- "Near about we six persons were sleeping in the court yard of the house." (emphasis supplied) It is strange and rather unbelievable that the accused succeeded to strangulate the deceased in presence of the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) and others when according to the claim of the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7), they were already sleeping within the house where the occurrence took place and had been attracted towards the place of occurrence on the hue and cry of the deceased. It was claimed by both the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) that the deceased was alive when they saw the occurrence but still both the prosecution witnesses name ly Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) did not act in any manner to save the life of the poor woman. According to the observations of Dr. Namra Khan (PW-8), who had conducted the post mortem examination of the dead body of the deceased namely Mst. Shahnaz Bibi alias Rani, the deceased had been murdered by strangulation through use of a ligature. More importantly , Dr. Namra Khan (PW-8) observed that there were no defensive wounds observed by her on the dead body of the deceased namely Mst. Shahnaz Bibi alias Rani. Dr. Namra Khan (PW-8) also noted that neither the hands nor the feet of the deceased namely Mst. Shahnaz Bibi alias Rani were tied. Dr. Namra Khan (PW-8) during cross-examination stated as under:- "I found no injury except noted by me and there were no defence mark on other part of body of the deceased. I found no mark of tying of the hands of the deceased as well as on the legs. I had not observed any torn portion of the clothes of the deceased. " (emphasis supplied) The above referred portion of the cross-examination of Dr. Namra Khan (PW-8) wherein she stated that she did not find any defensive wounds on the dead body of the deceased namely Mst. Shahnaz Bibi alias Rani and where she stated that she had not observed any signs of tying of the hands and legs of the deceased namely Mst. Shahnaz Bibi alias Rani, has raised much concern. Even the prosecution witness namely Mst. Shamim Bibi (PW-6) also admitted that the deceased had not suffered any other injuries on her body . Mst. Shamim Bibi (PW-6) during cross- examination stated as under:-
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"When we saw the dead body of my daughter Shahnaz Bibi, I did not observe any other injury on any other part of her body except the neck area." Similarly , Muhammad Afzal (PW -7) during cross-examination stated as under:- "When I observed the dead body of Shahnaz deceased, I found no injury on her hands or on her face." It is vexing to imagine in what circumstances the accused succeeded in strangulating the deceased namely Mst. Shahnaz Bibi alias Rani in presence of the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) and Amin Akhtar (given up) without facing any resistance from either the deceased or the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) and Amin Akhtar (given up). The lack of any defensive wounds on the dead body of the deceased namely Mst. Shahnaz Bibi alias Rani and the fact that the hands and legs of the deceased namely Mst. Shahnaz Bibi alias Rani were not tied is revealing of the fact that the account of the occurrence as given by the two prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) was not correct and the deceased was strangulated in circumstances entirely different to those which were given evidence of by the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7). During the whole episode wherein the deceased name ly Mst. Shahnaz Bibi alias Rani was strangulated, the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal, (PW-7), who both claimed that they were attracted to the place of occurrence on hearing the hue and cry of the deceased, did not make any effort to save the deceased or to restrain the assailant. It is all the more bizarre that none of the above-mentioned prosecution witnesses actually interfered in order to save the life of the victim when according to them they were three in number and were standing just next to the place where the tragic deceased was being strangulated by an unarmed accused and had been standing there prior to the start of the strangulating process. It is worrying to note that the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal, (PW-7) kept watching the accused strangulating the deceased but still kept viewing and did not interfere at all. 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. The allowance of prosecution witnesses to the assailant of causing the death of their near and dear relative spea ks loudly that if Mst. Shamim Bibi (PW-6) and Muhammad Afzal, (PW-7) had seen the occurrence, they would have definitely intervened and prevented the assailant from murdering their dear one. It only proves that the deceased was at the mercy of the assailant and no one was there to save her. Such behaviour , on 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 the existence of this fact, by virtue of the Article 129 of the Qanun-e-Shahadat, 1984, that the conduct of the witnesses, as deposed by them, was opposed to the common course of natural events, human conduct and that the witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal, (PW-7) had not witnessed the occurrence. The august Supreme Court of Pakistan has enunciated binding principles for appreciation of evidence in such circums tances. Reliance is placed on the case of "Zulifqar Ali v. The State" (2021 SCMR 1373) wherein the august Supreme Court of Pakistan observed as under:- "Though the human response/reaction, in a sudden crisis, particularly one striking awe and terror , cannot be gauged or assessed with any degree of empirical certainty as fear impacts differently upon faculties of the onlookers, nonetheless, despite maximum latitude, in the given scenario, it really appears hard for the appellant who operated with impunity in the face of heavy presence of the witnesses; deceased being herself "a young female with average-built" could not be expected a static target offering no resistance. Razor (P-13), commonly used by the barbers, given its moving handle instead of a fixed grip, is an instrument to be managed with some difficultly against a moving object; it risks the handler more than the intended targe t and as such unless the victim is stunned as a stone, a possibility beyond contemplation for the witnesses standing nearby to foil the attempt; they included three able-bodied males in their youth; their inaction is mindboggling and explanation far from being plausible, circumstances that in retrospect insinuate their absence at the scene"
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Reliance is placed on the case of Pathan v. The State (2015 SCMR 315) at page 317 wherein the august Supreme Court of Pakistan observed as under:- "The causing of such large number of injuries one after another to the deceased with scissors must have consumed reasonable time due to the pause in between the first injury and the last one but all the three P.Ws. including the son with a strong stature and built remained as silent spectators. They did not react or showed any response when the accused was causin g the injuries. No man on the earth would believe that a close relative would remain silent spectator in a situation like this because their intervention was very natural to rescue the deceased but they did nothing nor attempted to chase the accused and apprehend him at the spot." Further reliance is placed on the case of Shahzad Tanveer v. The State (2012 SCMR 172) at page-176 wherein the august Supreme Court of Pakistan observed as infra:- "It is also more strange that none of the P.Ws. dared to physically intervene in order to save the victim or apprehend the accused at the spot." Reliance is also placed on the case of Liaquat Ali v. The State (2008 SCMR 95) at page 97 wherein the august Supreme Court of Pakistan observed as under: "He was a single alleged assailant and if the witnesses were there at the spot they could have easily overpowered him. This makes their presence at the spot doubtful." 14. Furthermore, the fact that the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) never saw the occurrence and only discovered the dead body of the deceased subsequently is proved by the statement of Dr. Namra Khan (PW-8) who observed that there were bite marks of ants and other insects present all around the neck of the deceas ed. Dr. Namra Khan (PW-8) in her statem ent before the learned trial court stated as under:- ".........Bite marks of ants and other insects also present all over neck. Sample of hyoid bone taken and sent to PFSA, Lahore. DESCRIPTION OF INJUR Y: (1) A ligature mark of 2.5cm to 3cm wide present transversely on neck at the level adam's apple in center extending to back side of neck from both sides. A bruise mark of 2cm x 3cm was also present in the center of the neck at the level adam's apple. Bite marks of ants and other insects also present all over neck . Some ants were also present on neck." (emphasis supplied) Even the prosecution witness namely Mst. Shamim Bibi (PW-6) also admitted to had seen the bites of ants and insects around the neck of her dead daughter . Mst. Shamim Bibi (PW -6) during cross-examination stated as under:- "When we observed the injuries on the neck of my deceased daughter Shahnaz Bibi, there were ants on the neck area." Had the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhamm ad Afzal (PW-7) witnessed the occurrence then there did not exist any possibility that they would have let ants and other insects bite the dead body of their near and dear one. This observation of Dr. Namra Khan (PW-8) that there were bite marks of ants and other insects present all around the neck of the deceased is in itself sufficien t to prove that the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) had not seen the occurrence rather only discovered the dead body subsequently . 15. We have also noted that the claim of the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) was that they were already sleeping within the house where the…
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