Qazi Faez Isa, J.--The appellant was convicted for murdering his wife Razia Bibi ("the deceased").
The case was tried by the Additional Sessions Judge, Chichawatni, who vide judgment dated 2nd January 2004 sentenced the appellant to death under Section 302 (b) of the Pakistan Penal Code ("PPC") and also directed him to pay fifty thousand rupees as compensation to the legal heirs of the deceased. The conviction of the appellant was maintained by the Multan Bench of the Hon'ble Lahore High Court, however, his sentence of death was converted into life imprisonment and he was extended the benefit of Section 382-B of the Code of Criminal Procedure ("the Code").
2. The crime was reported to the police by Abdul Rehman son of Muhammad Ramzan, the maternal uncle of the deceased and an eye-witness ("the complainant"). First Information Report ("FIR") No, 247 was lodged at Police Station Kassowal, District Sahiwal at 9.40 a.m. On 10th November 2002. It was stated in the FIR that on 9'h November 2002 the complainant, his mother Jannat Bibi and nephew Javed had stayed overnight in the house of Razia Bibi and her husband Saeed Ahmed appellant, when at about 11 p.m. The appellant came to the house. The complainant woke up upon hearing noise and commotion and saw the appellant, his brother Faiz Ahmed and a stranger running away. The noise and commotion also attracted Falak Sher and Muhammad Iqbal to the place who also witnessed the appellant, Faiz Ahmed and the stranger fleeing. They found Razia Bibi dead with blue marks on her neck. According to the complainant the deceased was murdered because the appellant intended to contract a second marriage which the deceased opposed.
3. The appellant was charged under Section 302/34, PPC. He pleaded not guilty and was tried. At the trial ten prosecution witnesses ("PW"/s) were examined by the prosecution in support of its case, as under:
(i) Bashir Ahmad (PW-1), Police Constable, who escorted the dead body of Razia Bibi to RMC Kassowal for postmortem. He also received the last worn clothes of the deceased which he produced before the Investigating Officer ("IO") of the case;
(ii) Muhammad Saeed Akhtar Bhatti (PW-2), Draftsman, who prepared the site-plan (Exhibit PB and Exhibit PB/1);
(iii) Muhammad Rafique (PW-3), Police Constable, who was entrusted with the non-bailable warrants of arrest of Faiz Ahmed which could not be executed and then he was entrusted with the proclamation of co-accused Faiz Ahmed;
(iv) Dr. Faiza Durani (PW-4), lady Medical Officer who conducted the postmortem of the deceased on 11th November 2002 at 10 a.m. And determined that the cause of death was asphyxia induced by throttling that caused death. According to her death was immediate and the time between death and postmortem was between 20 to 40 hours;
(v) Nisar Ahmed, (PW-5), the Sub-Inspector who was entrusted with the investigation of the case and arrested the appellant Saeed Ahmed on 9th January 2003. PW-5 was transferred on 23rd January 2003;
(vi) Abdul Rehman (PW-6), an eye-witness of the crime and the complainant of the case;
(vii) Jannat Bibi (PW-7), the maternal grandmother of the deceased and another eye-witness of the case;
(viii) Noor Muhammad (PW-8), Head Constable, ',who recorded the FIR (Exhibit PF/1);
(ix) Imdad Hussain, (PW-9), Sub-Inspector, who was entrusted with the investigation on 25th January 2003;
(x) Zaman Khan, (PW-10), Sub-Inspector, the first I0 of the case. He reduced in writing the complaint (Exhibit PF) on the basis of which the FIR was lodged. He inspected the crime scene and the dead body of the deceased, prepared the Injury Statement (Exhibit PG) and Inquest Report (Exhibit PM), sent the dead body to the RHC Kassowal along with postmortem application (Exhibit PJ), recorded the statements of the PWs under Section 161 of the Code and prepared the site-plan.
4. That we have heard learned counsel for the appellant and the learned Additional Prosecutor General Punjab and have gone through the evidence on record.
5. PWs 6 and 7 stated that they had witnessed strangulation of the deceased at the hands of the appellant, and that the appellant's brother Faiz Ahmed facilitated her strangulation by holding her down. The post-mortem report states that the deceased was a young lady of about twenty five years of age in apparent good health. The lady doctor (PW-4) who conducted the post-mortem concluded that the cause of death was asphyxia induced by throttling. The injuries noted by her in the post-mortem report were as under: "Three contusions about 2 cm x 1/4 cm each. Elliptical shaped present at right side of neck, just below the lower jaw."
The lady doctor also observed blood coming out from the nostrils of the deceased. A very limited cross-examination of the lady doctor took place, which is reproduced in its entirety, as under: "The injuries on the neck may be caused with nails of the hand. The contusions remains on the body upto 40 to 44 hours. This is not a case of suicide."
6. The strangulation, nose bleeding that may occur as a consequence and that nail marks around the neck may be found are explained in the `Medical Jurisprudence and Toxicology' (H.W.V. Cox, Sixth Edition, published by the Law Book Company, Allahabad), as under: "Strangulation is again a term which is not exact in itself, as there are several types of strangulation, mainly manual strangulation (sometimes called "throttling") and strangulation by a ligature (sometimes called "garroting")."
"Apart from the mark due to the ligature and any possible `as phyxial' changes above, such as congestion, oedema, cyanosis, petechiae and nose bleeding, certain other marks may be discovered on the skin in cases of ligature strangulation. The most frequent ones are those inflicted by the victim in an attempt to tear away the ligature and are usually seen as scratches on the skin of the neck near the position of the ligature." .
"Most of the foregoing description applies equally to manual strangulation as to strangulation by a ligature, but there are certain important variations.
' The external appearances are vital. In place of the ligature mark described earlier, the neck will almost invariably show abrasions and bruises caused by the fingers of the assailant and again sometimes of the victim, where attempts at removing the compression have been made."
' In view of the aforesaid it could be safely concluded that the deceased was strangled to death, which rules out the possibility of a natural death or of suicide.
7. The appellant absconded and was arrested on 9th January 2003, i.e, after a period of about two months of his wife's death. No explanation was suggested to the prosecution witnesses as to why the appellant did not participate in the last rites of the deceased nor was any reason put forward for him remaining an absconder. The appellant also elected not to give evidence on oath under Section 340(2) of the Code. In his statement under Section 342 of the Code he simply declared his innocence and stated that PWs 6 and 7 had testified against him due to the fact that they were not happy with the marriage of the deceased with him and that they were not present in the house on the fateful night.
8. In criminal cases it is for the prosecution to establish its case against an accused. It is a fundamental principle of law that the burden of proof is on the prosecution (Article 117 of the Qanun-e-Shahadat Order, 1984). However, in this case the young wife of the appellant, who was living with him, was murdered. The appellant did not participate in her last rites and disappeared for a. Period of two months. The question that needs consideration is whether such unreasonable conduct of the appellant is of any consequence and also whether certain matters exclusively within his knowledge were not explained by him, that is, not informing the police about his wife's murder, not taking her to the hospital, not participating in her last rites and disappearing for a long period of two months. In this regard it would be appropriate to reproduce Article 122 of the Qanun- e-Shahadat Order, 1984, which is identical to the hitherto before Section 106 of the Evidence Act, 1872: "122. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person the burden of proving that fact is upon him.
Illustrations
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him."
9. It would be useful to consider cases from the India too since the law is the same there (Article 122 being identical to Section 106 of the Indian Evidence Act) and how they have dealt with cases pertaining to the murder of a wife or a minor who were under the care/protection of the accused or were last seen with him and the scope of Section 106 of the Indian Evidence Act. Amongst the earliest cases is that of Smith v. Emperor (AIR 1918 Madras 111), in which the accused was found in possession of stolen property, however, Justices Ailing and Phillips respectively also Commented upon the scope of Section 106, as under: "No doubt an accused person is always entitled to hold his tongue; but where the only alternative theory to his guilt is a remote possibility, which if correct, he is in a position to explain, the absence of any explanation must be considered in determining whether the possibility should be disregarded or taken into account. The provisions of Ss. 106 and 114, Evidence Act, are not without bearing on this point." [page 115 column 1] "If it is was a surprise to him that the property should have been found in that place I think that the reasonable inference to be drawn from the ordinary course of conduct would be that he would have expressed that surprise, and it is difficult to believe that an innocent person who saw this property being produced from his well for the first time would not have at once disclaimed all knowledge. Under S. 106, Evidence Act, when any fact is especially within the knowledge of any person the burden of proving that fact is upon him and I think that if this had been a civil case and the accused had at the trial tried to prove that the property was put in the well without his knowledge, no Court could have disregarded the inference to be drawn from his omission to put forward that theory when the property was first discovered." [page 119 column 1]
10. In re Naina Mohamed (AIR 1960 Madras 218) the accused had been convicted for the murder of a fifteen day old female infant born to his sister who he suspected had conceived her in an adulterous relationship. The entire case of the prosecution rested upon circumstantial evidence, however, a Division Bench of the Madras High Court concluded that, while the burden of proof remains upon the prosecution, the fact that the accused did not offer an explanation as regards his conduct did not permit the Court to even contemplate about any alternative theory which may be compatible with the innocence of the accused. It referred to the case of Smith v. Emperor (above) and considered the scope of Section 106 of the Evidence Act: "Even where there are facts specially within the knowledge of the accused, which could throw a light upon his guilt or innocence, as the case may be, the accused is not bound to allege them or to prove them. But it is not as if the section is automatically inapplicable to criminal trials, for, if that had been the case, the Legislature would certainly have so enacted. We consider that the true rule to be that S. 106 does not cast any burden upon an accused in a criminal trial, but that, where the accused throws no light at all upon facts which ought to be especially within his knowledge, and which could support any theory or hypothesis compatible with his innocence, the Court can also consider his failure to adduce any explanation in consonance with the principle of the passage in AIR 1955 SC 801 which we have already set forth."
"The matter has been put in this form, with reference to S. 106 of the Indian Evidence Act, in Smith v.
R, AIR 1918 Mad 111, namely, that if the accused is in a position to explain the only alternative theory to his guilt, the absence of explanation could be taken into account. In the present case, taking the proved facts together, we are unable even to speculate about any alternative theory which is compatible with the innocence of the accused."
' The case referred to in the above mentioned judgment was of Deonandan Mishra v. The State of Bihar (AIR 1955 S. C. 801), wherein the Indian Supreme Court, after reiterating that there is no burden cast upon the accused, stated that the lack explanation or false explanation can be considered to be an additional link in the chain of the circumstantial evidence, as under: "It is true that in a case of circumstantial evidence not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain."
11. There are also a number of decisions of the Indian Supreme Court which it would be useful to examine. In the case of State of Andhra Pradesh v. Gangula Satya Murthy (AIR 1997 S. C. 1588) the Indian Supreme Court had deemed a failure to offer an explanation as adverse to the accused (Paragraph 21 at page 1593), as under: "The fact that body of (Satya Vani) was found on the cot inside the house of the respondent is a very telling circumstance against him. Respondent owed a duty to explain as to how a dead body which was resultant of a homicide happened to be in his house. In the absence of any such explanation from him the implication of the said circumstance is definitely adverse to the respondent."
' State of Karnataka v. Khaja Hussain (1982 (3) SCC 456) was a case where the accused and his deceased wife was last seen together going to a hut. Later the accused was seen leaving the but with blood-stained clothes. The deceased was found dead inside the hut. The Sessions Court discharged the accused under Section 227 of the Indian Code of Criminal Procedure, 1973 and the High Court confirmed the same. The Supreme Court however set aside the discharge order and remanded the matter to the trial Court, holding that, "it will be for the accused to explain how death ensued inside the hut."
' In the case of Ram Gulam Chaudhary v. State of Bihar (2001 (8) SCC 311), a boy who was assaulted by the accused was carried away. The boy was not seen alive thereafter. The accused gave no explanation as to what they did after they took away the boy with them. The Court held that, there was every justification to infer that they had murdered the boy. It would be useful to reproduce the following portion from the said judgment: "Even otherwise, in our view, this is a case where Section 106 of the Evidence Act would apply.
Krishnanand Chaudhary was brutally assaulted and then a chhura-blow was given on the chest.
Thus chhura-blow was given after Bijoy Chaudhary had said "he is still alive and should be killed".
The appellants then carried away the body. What happened thereafter to Krishnanand Chaudhary is especially within the knowledge of the appellants. The appellants have given no explanation as to what they did after they took away the body. Krishnanand Chaudhary has not been since seen alive. In the absence of an explanation, and considering the fact that the appellants were suspecting the boy to have kidnapped and killed the child of the family of the appellants, it was for the appellants to have explained what they did with him after they took him away. When the abductors withheld that information from the Court, there is every justification for drawing the inference that they had murdered the boy. Even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The appellants by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference."
' In the case of State of Rajasthan v. Kashi Ram (AIR 2007 S. C. 144) the case of the prosecution was that the respondent had killed his wife and two daughters in the night and disappeared thereafter.
The Indian Supreme Court under the circumstances relied upon Section 106 of the Indian Evidence Act and held that the accused ought to have given an explanation as to when he parted with his family; the following relevant paragraphs are reproduced from the judgment: "24. There is considerable force in the argument of counsel for the State that in the facts of this case as well it should be held that the respondent having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since, the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Evidence Act. This circumstance, therefore, provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt."
"30. These incriminating circumstances in our view form a complete chain and are consistent with no other hypothesis except the guilt of the accused respondent. If he was with his wife on the evening of February 3, 1998, he should have explained how and when he parted company and/or offered some plausible explanation exculpating him. The respondent has not pleaded alibi, nor has he given an explanation which may support his innocence."
' The case of State of Rajasthan v. Jaggu Ram (AIR 2008 S.C. 982) pertained to the murder of a young bride in the home of her in laws. The prosecution case was that she had been done to death because the demand for dowry had not been met. The Indian Supreme Court set aside the acquittal of the respondents. It was of the view that when murder is committed inside the privacy df a home the inmates of the house are required to give cogent explanation and cannot get away by simply keeping quiet. It would be useful to reproduce the following paragraphs from the said judgment: "20. In our considered view, this was a fit case for invoking Section 106 of the Evidence Act, which lays down that when any fact is especially within the knowledge of the any person, the burden of proving that fact is upon him. In Ram Gulam Chaudhary vs. State of Bihar (2001 (8) SCC 311) this Court considered the applicability of Section 106 of the Evidence Act in a case somewhat similar to the present one. This Court noted that the accused after brutally assaulting a boy carried him away and thereafter the boy was not seen alive nor his body was found. The accused, however, offered no explanation as to what they did after they took away the boy. It was held that for the absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they had murdered the boy. It was further observed that even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The accused by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference."
"Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character.
In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation." [extract from Paragraph 21]
12. We now turn our attention to the judgments of this Court which are of relevance. In the case of Muhammad Akram v. State (2003 SCM R 855) this Court held, as under: "The petitioner has neither denied his presence at his house on the fateful day nor offered any explanation that how and under what circumstances Mst. Salma while sleeping with him in a room of his house sustained injuries with the sharp-edged weapon on the sensitive part of her body. The bare denial of the petitioner of knowledge of occurrence and not offering any explanation that how Mst. Salina sustained injuries would be a strong corroborative circumstance provided to the. Eye- witness account to prove the guilt of the petitioner."
' In the case of Arshad Mehmood v. State (2005 SCM R 1524) this Court took into consideration the fact that the body of the wife of the accused was recovered from his house. Relevant portion from the judgment is reproduced hereunder: "It may be noted that dead body of deceased was recovered from the house of the petitioner where Mst. Safia was living with him as his wife. Therefore, it is not possible to disbelieve the story, of the prosecution. Besides it medical evidence, fully corroborates to the statement of Mst. Zainab Bibi mother of deceased."
13. There is also the matter of the unexplained disappearance of the appellant. In the case of Roheeda v. Khan Bahadur (1992 SCM R 1036) the fact of the accused absconding was treated as a corroborative piece of evidence: "No doubt, abscondence by itself is not sufficient to convict an accused person but is a strong piece of corroborative evidence of the other direct and circumstantial evidence in the case. In the instant case the Accused/Respondent No, 1, Jahanzeb accused (since murdered) and their brother Aurangzeb remained fugitive from justice fora very long time without any plausible and reasonable explanation. Their conduct after the occurrence was indicative of their guilt when considered in conjunction with the ocular and circumstantial evidence in the case."
14. That with regard to vulnerable members of society, such as children, women and the infirm, who were living with the accused or were last in his company the accused ought to offer some explanation of what happened to them. If instead he remains silent or offers a false explanation he casts a shadow upon himself. This does not mean that the burden of proof has shifted onto the accused as it is for the prosecution to prove its case, however, in respect of the helpless or the weak that require protection or care it would not be sufficient for the accused to stay silent in circumstances which tend to incriminate him, and if he elects to do so he lightens the burden of the prosecution. Article 122 of the Qanun-e-Shahadat Order too stipulates that if a particular fact is especially within the knowledge of any person the burden of proving that fact is upon him. In the present case the prosecution had established its case against the appellant; two eyewitnesses had deposed against him and the medical evidence confirmed strangulation of the deceased. The appellant did not attend to the last rites of his wife who had died whilst residing with him, he also did not inform the police nor took his wife to a hospital and disappeared for two months, such circumstances corroborate the prosecution case in the absence of the appellant offering a reasonable explanation for his unnatural conduct.
15. The prosecution also sought to ascribe a motive to the murder of the deceased which was that the appellant wanted to contract another marriage which the deceased opposed. However, the motive does not stand to reason as the appellant could have divorced! His wife if she was not giving him permission to marry again as alleged by PWs 6 and 7. In addition the fact that the deceased and the appellant were married not too long ago also undermines the motive. Moreover, nothing was brought on record as to whom the appellant wanted to marry or any other material in this regard. The prosecution narrative with respect to motive therefore was rightly disbelieved by the Hon'ble High Court, as a consequence of which it reduced the sentence of the appellant to life imprisonment; the appellant having already got the benefit in this regard does not merit any further concession. Consequently, the impugned judgment of the High Court is upheld and this appeal is dismissed.