Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Muhammad Siraj VS Respondent: The State and another
Court Name: Lahore High Court Judge(s): Sadiq Mahmud Khurram Title: Muhammad Siraj vs The State and another Case No.: Criminal Appeal No. 468 of 2016 Date of Judgment:2022-03-07 Reported As: 2022 LHC 4961 Result: Appeal Allowed
JUDGMENT
JUDGMENT SADIQ MAHMUD KHURRAM, J. Muhammad Siraj son Ahmed Bakhsh (convict) was tried alongwith Mst. Sarwar Mai and Mst. Shamoo Mai (both since acquitted) by the learned Additional Sessions Judge, Bahawalpur in the case F.I.R. No. 264 of 2014 dated 16.08.2014, registered at Police Station Saddar Bahawalpur , District Bahawalpur in respect of offences under sections 302 and 34 P.P.C. for committing the Qatl-i-Amd of Mst. Shamim Mai daughter of Muhammad Iqbal (deceased). The learned trial court vide judgment dated 28.09.2016, convicted Muhammad Siraj son Ahmed Bakhsh (convict) and sentenced him as infra: Muhammad Siraj son Ahmed Bakhsh: Imprisonment for life under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Mst. Shamim Mai daughter of Muhammad Iqbal (deceased) and directed to pay Rs.100,000/- as compensati on 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. The convict, however , was extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898 by the learned trial court. Mst. Sarwar Mai and Mst. Shamoo Mai, the co-accused of the convict, were, however , acquitted by the learned trial court. 2. Feeling aggrieved, Muhammad Siraj son Ahmed Bakhsh (convict) lodged the instant Criminal Appeal No.468 of 2016 assailing his conviction and sentence. 3. Precisely , the necessary facts of the prosecution case, as narrated by Muhammad Mukhtiar (PW-6), the eye witness of the case, are as under:- "On 16.08.2014 I was present at my house. Shamim Mai deceased was my Bhatiji who was residing near my house. At about 11:00 a.m., I heard hue and cry in the house of Mst. Shamim Mai and after hearing hue and cry I
---
## Page 2
entered in the house of Shamim Mai. Accused Siraj had tied Dupata around the neck of deceased Shamim Mai while Shamun Mai and Mst. Sarwar Mai had caught hold legs and arms of Shami m Mai. I raised hue and cry and on hearing the same, my brother Zafar PW attracted there. On seeing us, accused Siraj fled away from the place of occurrence. As soon as we entered in the room, our Bhatiji had died. We called on telephone to our brother Muhammad Iqbal complainant, who also reached there and after sometimes police arrived. My brother Iqbal complainant moved application to police. Police prepared rough site plan of the place of occurrence and moved dead body to hospital where after postmortem examination dead body of Mst. Shamim Mai was handed over to us. The doctor handed over 02 sealed plastic Jars and 01 sealed Khaki envelope to the police which were taken into possession by the I.O. vide recovery memo Ex. P.B. attested by me and Muhamma d Zafar PW. The doctor handed over last worn clothes including Kameez P1, Shalwar P2 and Dupata P3 of deceased Shamim Mai to constable and the constable handed over the last worn clothes to I.O. who took the same into possession vide recovery memo Ex.P.H. attested by me and Muhammad Zafar PW. My statement u/s 161 Cr.P.C., was recorded in this regard." 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 22.04.2016, 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 Muhammad Mukhtiar (PW-6) and Muham mad Zafar (PW-7). Muhammad Iqbal (PW-5) stated that he was told about the occurrence by the prosecution witnesses and after arriving at the place of occurrence submitted his written application (Exh. P.G.) for the registration of the case. Syed Gul Hassan Shah Patwari (PW-1) prepared the scaled site plan of the place of occurrence (Exh. P.A.). Muhammad Akmal 1539/C (PW-2) stated that on 16.08.2014 the Woman Medical Officer handed over two sealed jars and one sealed envelope to Mansoor-ul-Hassan SI (PW-8), the Investigating Officer of the case, which he took into possession through recovery memo (Exh. P.B.). Ishfaq Ahmad SI (PW-4) stated that on 16.08.2014, he recorded the formal F.I.R (Exh.PG/1). Mansoor-ul-Hassan SI (PW-8) investigated the case from 16.08.2014 till 15.12.2014, arrested the appellant on 26.09.2014, 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. Sofia Iqbal (PW-9) examined, who on 16.08.2014 was posted as Demonstrator , Forensic Medicine Department, Quaid-e- Azam Medical College Bahawalpur and on the same day conducted the postmortem examination of the dead body of Mst. Shamim Mai daughter of Muhammad Iqbal (deceased). Dr. Sofia Iqbal (PW-9), on examining the dead body of Mst. Shamim Mai daughter of Muhammad Iqbal (deceased) observed as under:- "EXTERNAL APPEARANCE A dead body of a young female aged about 24 years approximately , wearing red coloured shalrwar and black and red coloured qameez, orange colour dupa tta was lying supine on autopsy table. Mouth and eyes were semi closed and fine tenacious white coloured froth was coming out of the mouth and nostrils. Petechial hemorrhage was present upon conjunctivae. Upon external examination there was no dupatta or ligature or ligature mark upon neck except injury No.1 bruises size about 4 X 4 CM on right side of neck and injury No.2 bruises, abrasion (multiple) on the left side of neck. Upon dissection of the neck underline tissues were ecchymosed and by doing layer by layer dissection of neck hyoid bone found fracture at the junction of body and cornu of hyoid. OPINION: I have sent hyoid bone for ascertaining ante mortem or post mortem fracture or injury . I have received histopathology report from PFSA, Lahore. According to which "Histological examination of multiple sections from hyoid bone reveals bony fragments entrapped in those are blood haemorrhages. These features are suggestive of Ante Mortem injury to Hyoid bone." After complete autopsy examination and report of Histopathology I am of the opinion cause of death was injury No.1 and 2 which has caused damaged to the underlying tissues of neck, constriction of trachea and causing the
---
## Page 3
injury of hyoid bone and leading to the asphyxia and ultimately death. All the injuries were ante mortem in nature. Such kind of injury leading to asphyxia was suf ficient to cause death in ordinary . course of life. Probable time that elapsed between injury and death was within 15 minutes and between death and post mortem was 10 hours." 7. On 26.09.2016, the learned Assistant District Public Prosecutor gave up the prosecution witness namely Ata Muhammad SI as being unnecessary and closed the prosecution evidence after tendering in evidence the report of the Punjab Forensic Science Agency , Lahore (Exh. P .N.). 8. After the closure of prosecution evidence, the learned trial court examined the appellant, namely Muhammad Siraj son Ahmed Bakhsh under section 342 Cr.P.C. and in answer to the question why this case against you and why the P.W.s have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant, namely Muhammad Siraj son Ahmed Bakhsh 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, Bahawalpur 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 District Public Prosecutor along with the learned 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 Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7). They further contende d 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 District Public Prosecutor and the learned counsel appearing on behalf of the complainant prayed for the rejection of the appeal as lodged by the appellant, namely Muhammad Siraj son Ahmed Bakhsh. 12. I have heard the learned counsel for the appellant, the learned Deputy Distric t Public Prosecutor , the learned counsel appearing on behalf of the complainant and with their able assistance perused the record and evidence recorded during the trial. 13. This Court has noticed that according to the statements of the prosecution witnesses, the occurrence was allegedly witnessed by the prosecution witnesses, namely Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7), whereas Muhammad Iqbal (PW-5), the complainant of the case, stated that he had been told about the death of the deceased by the prosecution witnesses namely Muhammad Mukhtia r (PW-6) and Muhammad Zafar (PW-7). Muhammad Iqbal (PW-5) admitted during cross-examination that he had not witnessed the occurrence and also that he had named the accused in his written application (Exh. P.G.) on the basis of the information given to him by Muhammad Mukhtiar (PW-6). Muhammad Iqbal (PW-5) admitted during cross-examination admitted as under:- "It is correct that I did not witnessed the occurrence and Allah knows better . It is correct that I nominated the accused persons on the asking of Mukhtar Ahmad PW ." This Court has also noted with grave conc ern that though it had been claimed by Muhammad Mukhtiar (PW-6) that the occurrence was witnessed by him and Muhammad Zafar (PW-7) however , Muhammad Zafar (PW-7), in his statement before the learned trial court, denied that he had witnessed the occurrence and instead came up with the
---
## Page 4
claim that he had been told about the occurrence by Muhammad Mukhtiar (PW-6) and he himself had not seen the same. Muhammad Zafar (PW -7) in his examination in chief before the learned trial court stated as under:- "On 16.08.2014 I was present at my hous e. I heard hue and cry of my brother Mukhtiar and I came out of my house and my brother met me on the road who told me that Siraj accused has committed murder of Mst. Shamim Mai. When we reached inside the room where Mst. Shamim Mai was lying in approximate dead condition." (emphasis supplied) Muhammad Zafar (PW-7) was never re-examined by the prosecution nor any application was submitted for re- examining Muhammad Zafar (PW-7) in this regard that he had seen the occurrence or otherwise. The statement of the prosecution witness, namely Muhammad Zafar (PW-7), is in direct contrast with the statement of Muhammad Mukhtiar (PW-6), who came up with the claim that he and Muhammad Zafar (PW-7) had both witnessed the occurrence. Muhammad Mukhtiar (PW -6), in his examination in chief, had claimed as under:- "I raised hue and cry and on hearing the same, my brother Zafar PW attracted there. On seeing us, accused Siraj fled away from the place of occurrence." (emphasis supplied) Muhammad Mukhtiar (PW -6), during cross-examination, stated as under:- "I alongwith PW Zafar straight rushed towards the room where the occurrence was taking place and I did not talk with Zafar PW at that time." (emphasis supplied) The above-mentioned statement of Muhammad Mukhtiar (PW-6) raises doubt in the prosecution case with regard to the fact as to whether both the prosecution witnesses, namely Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7), were present at the place of occurrence or otherwise. The contradictory and mutually destructive statements made by the prosecution witnesses, namely Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW- 7) with regard to the presence of Muhamm ad Zafar (PW-7) at the place of occurren ce, at the time of occurrence or otherwise, have repercussions, entailing the failure of the prosecution case as against the appellant. Both the prosecution witnesses, namely Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7), failed to prove that the occurrence had taken place in their view and in their presence. Not only this, but the prosecution witness namely Muhammad Zafar (PW -7), even admitted that the occurrence had not taken place in his view or in his presence. 14. This Court has noted with grave concern and disquiet that the alleged eye witnesses, namely Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7), made no effort either to save the deceased or to apprehend the accused when they were two in number and could have easily restrained the accused, who was not even armed with any weapon at the time of occurrence. Muhammad Mukhtiar (PW-6) admitted during cross-examination stated as under:- "When I reached at the place of occurrence Shamim Mai deceased was standing on the floor . I witnessed the occurrence from a distance of about 40 feet and I made hue and cry. I remained standing and crying till the arrival of Zafar PW at a distance of about 40 feet. I was standing in the compound of the house of occurrence where Zafar PW came. I alongwith PW Zafar straight rushed towards the room where the occurrence was taking place and I did not talk with Zafar PW at that time. When we reached in the room my Bhatiji Shamim Mai had already died and accused Siraj had fled away When I witnessed the occurrence Shamim Mai was trembling and accused Siraj was throttling her neck." (emphasis supplied) Both the prosecution witnesses namely Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7), were closely related to the deceased namely Mst. Shamim Mai daughter of Muhammad Iqbal. The deceased namely Mst. Shamim Mai daughter of Muhammad Iqbal was the real paternal niece (Batheeji) of both the prosecution witnesses, namely Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7). It is unnatural and unbelievable that the alleged eye witnesses, namely Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7), did not even move a limb to protect their near and dear one. According to the statement of the prosecution witness, namely Muhammad Mukhtiar (PW-6), he and Muhammad Zafar (PW-7) had arrived at the place of occurrence and had seen Mst. Shamim Mai (deceased) stand ing at the place of occurrence. It is strange and rather unbelievable that the accused still succeeded to strangula te the deceased in the presence of the prosecution witnesses, namely Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7) and others when according to the claim of the
---
## Page 5
prosecution witness, namely Muhamma d Mukhtiar (PW-6), they had been attracted towards the place of occurrence on the hue and cry of the deceased, prior to her being strangulated. It was claimed by the prosecution witness, namely Muhammad Mukhtiar (PW-6), that the deceased was alive when he and Muhammad Zafar (PW-7) saw the occurrence, but still, both the prosecution witnesses, namely Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7), did not act in any manner to save the life of the poor woman. According to the observations of Dr. Sofia Iqbal (PW-9), who had conducted the post mortem examination of the dead body of the deceased, namely Mst. Shamim Mai daughter of Muhammad Iqbal, the deceased, had been murdered due to damage caused to the underlying tissues of the neck, constriction of the trachea and injury to the hyoid bone. More importantly , Dr. Sofia Iqbal (PW-9) observed that there were no defensive wounds observed by her on the dead body of the deceased, namely Mst. Shamim Mai daughter of Muhammad Iqbal. Dr. Sofia Iqbal (PW-9) also noted that neither the hands nor the feet of the deceased, namely Mst. Shamim Mai daughter of Muhammad Iqbal were tied. Dr . Sofia Iqbal (PW -9) during cross-examination stated as under:- "I did not find any marks on the wrists, arms and legs of the dead body except neck." (emphasis supplied) The above referred portion of the cross-examination of Dr. Sofia Iqbal (PW-9) wherein she stated that she did not find any defensive wounds on the dead body of the deceased, namely Mst. Shamim Mai daughter of Muhammad Iqbal and where she stated that she had not observed any signs of tying of the hands and legs of the deceased namely Mst. Shamim Mai daughter of Muhammad Iqbal, has raised much concern. It is vexing to imagine that in what circumstances the accused succeeded in strangulating the deceased namely Mst. Shamim Mai daughter of Muhammad Iqbal in presence of the prosecution witnesses, namely Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7), without facing any resistance from either the deceased or the prosecution witnesses, namely Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7). The lack of any defensive wounds on the dead body of the deceased, namely Mst. Shamim Mai daughter of Muhammad Iqbal and the fact that the hands and legs of the deceased, namely Mst. Shamim Mai daughter of Muhammad Iqbal, were not tied is revealing of the fact that the account of the occurrence as given by the prosecution witness, namely Muhammad Mukhtiar (PW-6), was not correct and the deceased was done to death in circumstances entirely different to those which were given evidence of by the prosecution witness namely Muhammad Mukhtiar (PW-6). During the whole episode wherein the deceased, namely Mst. Shamim Mai daughter of Muhammad Iqbal, was done to death, the prosecution witnesses, namely Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7), who, according to Muhammad Mukhtiar (PW- 6), 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 two 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 strangulatin g process. It is worrying to note that the prosecution witnesses, namely Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7), kept watching the accused strangulating the deceased but still kept viewing and did not interfere at all. No person with ordinary prudence would believe that such close ly 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 apprehend the assailant. The allowance of prosecution witnesses to the assailant of causing the death of their near and dear relative speaks loudly that if Muhammad Mukhtiar (PW-6) and Muhammad Zafar (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 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. This Court, thus, trusts 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 witness namely Muhammad Mukhtiar (PW-6), the only witness who claimed to had seen the occurrence, had not witnessed the occurrence. The august Supreme Court of Pakistan has enunciated binding principles for
---
## Page 6
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" 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." 15. I have also observed that according to the prosecution witness, Muhammad Mukhtiar (PW-6), the occurrence occurred only when he and Muhammad Zafar (PW-7) arrived at the place of occurrence. Muhammad Mukhtiar (PW-6) during cross-examination stated as under:- "When I witnessed the occurrence Shamim Mai was trembling and accused Siraj was throttling her neck." This narrative of the prosecution witness Muhammad Mukhtiar (PW-6) that the accused kept waiting for their arrival at the place of occurrence and thereafter committed the same, at the exact same time when the witnesses arrived, 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 part of the accused, as deposed by the prosecution witness namely Muhammad Mukhtiar (PW-6), runs counter to natural human conduct and behaviour . Hence, being perceptive of this strain of human conduct, this Court is holding that…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.