AMJAD ALI SAHITO, J.---Being aggrieved and dissatisfied with the judgment dated 08.09.2012 passed by the learned IIIrd Additional Sessions Judge, Karachi Malir in Sessions Case No.306/2010 arising out of the FIR No.253/2010 for the offence under Sections 302/34, P.P.C. registered at Police Station Quaidabad, whereby the appellant Asad Khan son of Khan Faraz was convicted for committing Qatl-e- Amd of his wife Mst. Aneela daughter of Shaukat Ali for an offence under section 302, P.P.C. and sentenced him to life imprisonment and fine of Rs.50,000/- which would be paid to the legal heirs of deceased and in default thereof, to further undergo S.I. for three (03) months. The benefit of section 382-B, Cr.P.C. was also extended to the appellant. Whereas, the other accused Dawood Jan, Mst. Khatir Jan wife of Faraz and Mst.
Farzana wife of Dawood Jan were acquitted by extending them the benefit of doubt.
2. Briefly, the facts of the prosecution case are that on 06.03.2010, complainant Shaukat Ali has lodged his FIR at Police Station Quaidabad, stating therein that about two years back, his daughter Aneela aged about 24/25 years had married with Asad son of Khan Faraz, who was residing with her husband in house No. E-103, Gali No. 11., New Muzaffarabad, Colony, Landhi Karachi. Since the beginning of the marriage, the attitude of in-laws of his daughter was not good. On the instigation, her mother-in-law Mst. Khatir Jan, sister-in-law Farzana, her husband has beaten the daughter of the complainant. During two years the daughter of the complainant time to time came at his house due to atrocities of her in-laws but she was insisted by the complainant and his family members to go back to her in-law's house. About 15/20 days before, the daughter of complainant Aneela informed her father on the telephone about the atrocities of her in-laws viz. Mst. Khatir Jan (Mother-in-law), Mst.
Farzana (Sister-in-law), Dawood husband of Mst. Farzana her husband Asad Khan, on which the complainant asked his daughter that he will come at home and resolve the matter. On 05.03.2010, at about 7:00 P.M the daughter of complainant Aneela informed him on the telephone that she is coming to him at Qasim Town but till 08:30 P.M, she did not come at Qasim Town Bhains Colony and her father made a telephonic call to her maternal Aunt Mst. Bano wife of Muneer Ahmed, who is residing in the neighbor of Aneela and informed her about the arrival of Aneela at Qasim Town. The said Mst. Bano after query informed the complainant that the house of Aneela is locked and due to ailing condition of Asad Khan they have gone to take medicine. At about 08:30 P.M. the complainant came to know that his daughter Aneela has been killed by causing her knife and dagger injuries at her house. On receipt of such information, the complainant along with his brother-in-law Waseem and others went at the house of his daughter, situated at New Muzaffarabad colony, where people were gathered and the dead body of his daughter was lying on the floor in pool of blood. The complainant then lodged the instant FIR against accused Asad Khan, Mst. Khatir Jan, Mst. Farzana and Dawood Khan for committing murder of his daughter with knives and daggers.
3. After completing the investigation of the cases, the challan was submitted by the Investigating Officer against the above-named accused before the concerned Court.
4. The learned trial Court framed the charge against the accused/ appellant at Ex.2, who pleaded not guilty and claimed to be tried vide plea at Ex.3. In order to establish the accusation against the accused person, the prosecution examined (PW-1) Complainant Shaukat Ali at Ex.7, who produced the application, memo of inspection of the dead body, inquest report, Statement under section 154, Cr.P.C, a copy of FIR, and memo of the place of occurrence at Exs.7/A to 7/F. (PW-2) Mst. Ageela Bano at Ex.8, (PW-3) Nasir Farooq at Ex.10, who produced crime weapon i.e. "Churra" at Ex.10/A. (PW-4) Inspector Abdul Salam at Ex. 12, who produced entry No. 58, duty certificate, application Dated 01.06.2010, receipt dated 01.06.2010 and entry dated 03.06.2010 at Exs.12/A to 12/E respectively, (PW-5) HC Ahmed Ullah at Ex. 13, who produced memo of arrest and personal search at Ex.13/A, (PW-6)
Ghani-ur- Rehman at Ex.15, (PW-7) Zulfiqar Haider at Ex. 16, who produced three jail warrants, application for transfer dated 15.04.2010, chemical examiner, entries No. 03 dated 17.04.2010 and 37 dated 11.04.2010 at Exs. 16/A to 16/H respectively, (PW-8) Doctor Fareeda at Ex.17, who produced post mortem report and cause of death at Exs. 17/A and 17/B respectively. Thereafter, the prosecution closed its side vide statement at Ex.
18. Statement of the accused was recorded under section 342, Cr.P.C. at Ex.21, wherein he denied the prosecution allegation levelled against him and stated that he has been falsely implicated in these cases with mala fide intention and ulterior motives, he claimed to be innocent and prayed for justice. However, the appellant has neither been examined himself on oath under section 340(2), Cr.P.C. nor led any evidence in his defence.
5. The learned trial Court, after hearing the learned counsel for the parties and appraisal of the evidence, convicted and sentenced the appellant vide judgment dated 08.09.2012. The conviction and sentence, recorded by the learned trial Court, have been impugned by the appellant before this Court by way of filing the instant Criminal Appeal.
6. Learned counsel for the appellant mainly contended that the appellant is innocent and has falsely been implicated in the murder case; that it is an unseen incident and on the basis of circumstantial evidence, the complainant and police have implicated the present appellant in this case; that though the name of the appellant finds place in the FIR but no strong circumstantial evidence was available on record to connect the appellant with the commission of offence; that no incriminating articles were recovered from the appellant but only "choora" has been foisted upon him; that the statement of the appellant was not recorded by TV personnel but the same has been dubbed and involved the appellant in this case; that no independent person has been shown as a witness to believe that the appellant has committed the offence.
Lastly, he contended that the prosecution has miserably failed to prove its case against the appellant and thus, according to him, the appellant is entitled to his acquittal. In support of his contentions, learned counsel for the appellant has relied upon the cases of (1) 2019 YLR PAGE 3 (Mohsin Raza and others v.
The State) (2) 2019 PCr.LJ PAGE 305 (Naeem alias Gunda v. The State) (3) 2015 SCMR PAGE 155 (Imran alias Dully and another v. The State) (4) 2013 PCr.LJ PAGE 62 (Ghulam Abbas alias Hussain v. The State)
(5) 2010 SCMR PAGE 97 (Noor Muhammad v. The State and another) (6) 2008 SCMR PAGE 336 (Yasin alias Ghulam Mustafa v. The State) (7) 2008 SCMR PAGE 1064 (Ghulam Akbar and another v. The State) 2008 SCMR PAGE 1103 (Altaf Hussain v. Fakhar Hussain and another) PLD 2006 SC PAGE 538 (Abdul Mateen v.
Sahib Khan and others) (10) 2005 SCMR 277 (Wazir Muhammad and another v. The State) (11) 2002 PCr.LJ 51 (Abdul Sattar and others v. The State).
7. Conversely, learned APG while supporting the impugned judgment has argued that the prosecution has successfully proved its case against the appellant beyond any shadow of reasonable doubt; that the appellant used to maltreat her wife deceased Mst. Aneela and an application was moved by the complainant to the TPO Landhi, lastly he has committed the murder and thereafter he along with his family members after locking their house run away towards Mardan KPK from where the appellant was arrested; that on the pointation of the appellant "choora/dagger was recovered; that the strong circumstantial evidence is available to connect the appellant with the commission of offence; that the appellant has admitted his guilt before the Cameraman, which was recorded in CD/USB flashed on TV. Lastly, he prayed for dismissal of the instant appeal.
8. We have heard the learned counsel for the parties and have perused the available record with their able assistance.
9. The case of the prosecution rests upon the circumstantial evidence i.e. prosecu tion evidence, recoveries of incriminating articles so also medical evidence. Though generally, it (circumstantial evidence) is considered as a weak type of evidence, yet, such weakness alone is no ground to record an acquittal rather administration of justice, for such like situation, requires more care and caution from the Courts while appreciating the evidence. In such like cases, the criterion to see whether circumstantial evidence can hold a conviction or not depends purely on a single principle which stood reiterated in the case of Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 as:--
31. As discussed earlier, the entire case of the prosecution is based on circumstantial evidence. The principle of law, consistently laid down by this Court is, that different pieces of such evidence has to make on chain, an unbroken one where one end of it touches the dead body and the other the neck of the accused. In case of any missing link in the chain, the whole chain is broken and no conviction can be recorded in crimes entailing capital punishment.
It would be quite in line with settled principle of law that if all pieces make an unbroken chain, proving the guilt, the capital conviction can well be awarded.
10. The present case was involving the capital punishment and the entire evidence is based upon circumstantial evidence and admission of appellant before the Cameraman and same is required to be considered with utmost caution and care. In the instant case, the prosecution has heavily relied upon the admission of the appellant before the Cameraman in the program "Hatkari" in which he admitted that he has committed the murder of deceased Mst. Aneela. In this case, learned APG has forcefully argued that the appellant has admitted his guilt before the Cameraman and the prosecution examined Cameraman Numan Khan Tanoli (PW-9), who produced CD/USB at Ex.23-A. Hence, it is appropriate to discuss whether the evidence recorded through the modern device is an admissible piece of evidence or not.
Hence it is appropriate to reproduce Article 10 of Qanun-e -Shahadat.
164. Production of evidence that has become available because of modern devices, etc. In such cases, as the Court may consider appropriate, the Court may allow to be produced any evidence that may have become available because of modern devices or techniques.
11. Bare reading of Article 164 makes it quite clear that the Courts not only may allow any evidence, became available because of modern devices or techniques, but can also consider the same. At this point. We would like to write here paragraph/ passage taken from the book of "Electronic Evidence"
Second Edition by Stephen Mason.
"10.46. Audio tapes were also accepted as , a discoverable document in Grant v. Southwestern and Country Properties Ltd., in which the meaning of a document was defined by its quality to convey information, as determined by Walton J at 198: "I conclude that a tape recording, provided of course that what is recorded is indeed information - relevant sounds of some description is a document.' Television film is also considered a document, as is the output of facsimile transmissions, data stored on a computer (in this instance, a database) constitute a document for the purposes of the obligation to discover under the provisions of Order 24 of the Rules of the Supreme Court, and a label on a bottle containing a specimen of blood provided by the accused/ the material may sometimes determine the admissibility of the evidence, but the definition is considered wide enough to bring any medium into its ambit without causing difficulties. The term document is something upon which information is stored. This must be correct, because if information is not stored, the content is not available, and therefore, remains oral evidence."
"10.91. Surveillance cameras are very much part of life in the twenty-first century, the foundations of which began in the latter decades of the twentieth century. Evidence of images from security cameras can be very helpful in identifying the perpetrators of crimes, and the enhancement of the images, together with the use of more advanced techniques such as facial mapping, can ,help to identify parties to an offence. Such evidence has been admitted in English Courts, mainly in criminal cases."
The above book is available at the given below website:- "http://humanities-digital library .org/index.php/hdl/catalog/view/ electronic evidence/ 16/93-1"
12. Thus, it can safely be said that evidence of DVD cassette/video recording, produced in trial Court, is admissible in evidence under Article 164 of Qanun-e-Shahadat, hence was relevant for proving claimed fact. Needless to say that mere production of same would not be sufficient to take such document (modern device) as proved rather would require examination of the person, who, claims to have prepared the same.
Guidance is taken from the case of Asfandyar and another v. Kamran and another 2016 SCMR 2084 wherein it is observed as:- "No doubt the trial Court, under section 164 of. the Order, 1984, may allow to produce the said footage of C. C. T. V but it is incumbent upon the defence to prove the same in accordance with the provisions of the Order, 1984. The defence had ample opportunity to produce in his defence, the concerned person who had prepared the said footage from the C. C. T. V system in order to prove the same. In that eventuality, the adverse party would be given an opportunity to cross-examine the said witness regarding the genuineness or otherwise of the said document. Any document brought on record could not be treated as proved until the same is proved strictly in accordance with the provisions contained in the Order, 1984. While discussing these aspects of the case, the High Court restricted the admissibility only to the extent of Article 79 of the Order, 1984 whereas there are certain other provisions / Articles in the Order, 1984 for proving the documents which are procured through the modern devices and techniques. Mere producing any footage of C. 'C. T. V as a piece of evidence in the Court is not sufficient to be relied upon unless and until the same is proved to be genuine. In order to prove the genuineness of such footage it is incumbent upon the defence or prosecution to examine the person who prepared such footage from the C.C.T.V system. (Emphasis is provided)
13. In this case, prosecution examined (PW-9) Numan Khan Tanoli, Cameraman/Mediates, who was serving in a TV Channel AMT Business Plus and recorded programme "Hatkari" after the arrest of appellant Asad Khan, they went to the police station and recorded the statement of the appellant in which he admitted his guilt. Multiple questions were put but the learned counsel for the appellant could not extract anything that the appellant had given his statement under pressure and coercion. Furthermore, the mere fact that the appellant remained in police custody for some time cannot be said enough to hold that the admission/ confession of the appellant at police station was the result of inducement or threat. In absence of such exceptions, the weight to such admission, whereby the appellant admitted to have killed his wife Mst. Aneela, was rightly given by trial court as such piece was also proved by prosecution through the person (cameraman), who recorded / prepared it. Hence, the first link connected the appellant with the commission of the offence.
14. Further, the prosecution examined complainant Shoukat Ali (PW-1), who in his evidence deposed that about two and half years back the appellant and deceased contracted marriage but after one and half months the appellant started maltreatment with the deceased and due to the intervention of naikmard, the quarrel was settled between the husband and wife. So many times his daughter tried to live with the complainant but the complainant did not allow her on the ground that he has five unmarried daughters if the deceased Mst.
Aneela started residing in his house then no one can contract marriage with his five daughters. About 15 days before the incident, his daughter informed him through telephone that she has been maltreated by her husband. He went to the house of her daughter and thereafter went to the police station where he moved an application to the TPO Landhi which he has produced as Ex.7-A. On the day of incident i.e. 05.03.2010, the deceased informed the complainant through telephone that she has been miserably maltreated/ beaten by the appellant and requested him to takeher to his house, after sometime when the complainant tried to contact with his daughter through telephone at about 7 to 7:30 but she did not attend the call. Thereafter, he contacted with his sister-in-law namely Aqeela, who was residing in the same vicinity. She informed him that the house of his daughter is locked and informed him that his son-in-law Asad has been taken to the hospital, at 11:30 to 12 night he received a call from one ASI Abdul Salam, who informed him that his daughter Aneela has been murdered. He along with his family members went to the place of incident and saw that the dead body of his daughter was lying in a pool of. blood and saw her daughter was dead. Police after completing all the formalities sent the dead body to Jinnah Hospital for postmortem. Thereafter, his statement was recorded .and the same was incorporated in the FIR. After committing the murder of Mst.
Aneela, her husband/ appellant Asad runaway to his native Mardan KPK. Complainant along with police official went to Mardan and arrested the appellant from the district jail Mardan and brought him at the police station for further investigation and or the pointation of the appellant, crime weapon/ dagger was recovered from his father's house. The admission of the appellant came in media and newspaper. In cross- examination, he has denied the suggestion that he has given the name of the appellant on the instance of Mohalla people. In order to support his contention, the prosecution examined Mst. Aqeela Bano, who has also supported the version of the complainant and further deposed that she went to the house of Anila but was locked. The prosecution examined Nasir Farooq (PW-3), (mashir of the recovery) in his presence, crime weapon was recovered along with bloodstained earth. The prosecution also examined Inspector Abdul Salam (PW-4), who has received information from one PC Ghani ur-Rehman on the telephone that one husband has murdered his wife in his house and after locking the door absconded away. After keeping such entry at the police station, they reached at the pointed place where other people were also present there, they broken lock of the outer door and saw that one dead body of a lady was lying on the green carpet in the room and blood was oozing. Meanwhile, the father of the deceased lady along with his family members reached there. He sent the dead body for postmortem report. All the circumstances, consisting on unnatural death of deceased inside the house with dagger; finding the house locked from outside as well leaving away the house are also making a chain of circumstances against the appellant and in such like eventuality the defence was required to prove otherwise. The record, however, shows that defence brought nothing on record hence such circumstances did provide support to admission, came on record.
15. The prosecution evidence also finds corroboration from the medical evidence with regard to the cause of death and time of the incident. It is evident from the evidence of Women Medicological Officer Dr. Fareeda (PW 8), who received the dead body of deceased Aneela for postmortem examination, she started postmortem at 04-00 am and completed at 04-40 am on 06-03-2010.
16. On external examination she found the following injuries:--
1. Incised wound over right side of neck 4 cm X 1 cm, (depth about 5 cm)
2. Incised wound over right clavicle 4 cm X 1 cm
3. Incised just near injury No.2, 1 cm X 01 cm
4. Incised wound right breast 3 cm X 1 cm
5. Stab wound over epigastrium 4 cm X 1 cm, (cavity deep)-
6. Incised wound over right hypochondriul 5 cm X 1 cm
7. Stab wound just left to umbilicus 2 cm X 1 cm, (cavity deep)
8. Stab wound just right to umbilicus 1.5 cm X 1 cm
9. Stab wound over right side of lower abdomen 6 cm X 1.5 cm, (cavity deep)
10. Stab wound over left side lower abdomen 3.5 cm X 1 cm (cavity deep)
11. Stab wound over right to lower abdomen 4 cm X 2.5 cm, gut protruding outside
12. Two incised wounds over right arm, each 1.5 cm X 1 cm
13. Two incised wounds over right forearm, each about 3 cm X 1 cm
14. Incised wound over dorsum over right thumb and index finger
15. Incised wound over left side back 4 cm X 1 cm.
17. From the external as well as an internal examination on the dead body of deceased Aneela, she opined that the death of deceased occurred due to haemorrhagic shock leading cardiopulmo nary failure due to injuries over neck, chest, and abdomen by sharp edged object. The duration between death and postmortem was 4 to 8 hours, which is suffice to say that the cause of death of deceased was unnatural and thus, this also corroborate the evidence furnished by the complainant and his witnesses. Hence, another piece of evidence connected the appellant with the commission of the offence. After the arrest of the appellant and during the course of interrogation, the appellant disclosed that he had hidden the crime weapon in the house of his father. On such disclosure, the I.O. of the case (PW-7) Zulfiqar Haider along with appellant had gone to the pointed place from where the crime weapon was recovered and such mashirnama was prepared in the presence of mashirs Arshad and Nasir the memo was produced as Ex.
10. I.O. of the case also received the report in positive which was sent to the Chemical Examiner for analysis of dry blood white painted Kameez, black colour brazier, choora with wood hanger, which also supports the version of the complainant.
18. According to the standard proof, required to convict a person on circumstantial evidence, the circumstances relied upon in support of the conviction must be fully established and chain of evidence furnished by the circumstances must be so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of the guilt is to be drawn have not only to be fay established, but also that all the circumstances to establish should be of conclusive nature and should not be capable of being explained by any other hypothesis is to accept the guilt of the accused and when all the circumstances cumulatively taken together should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime, wherein the prosecution has to provide all links in chain and unbroken one where its one end touches the dead body while the other neck of the accused. In this case, the relation of the appellant with the deceased was aggressive as the father of the complainant moved an application to the TPO which was produced as Ex.7-A which reveals that the behavior of the appellant was cruel and on pity matter, he used to torture her. Furthermore, after committing the murder of the deceased, the appellant had locked the door so also the mother and family members of the appellant had also locked their house and run away towards Mardan KPK from where the appellant was arrested and on his pointation the crime weapon/dagger was recovered. After his arrest, he was kept in police lock-up at PS Quaidabad. The TV Cameraman/ Mediates so also anchorperson went to the police station for recording the programme "Hatkari" in which anchorperson namely Shoaib Yar Khan recorded the statement/ confession of the appellant and same was recorded in CD/USB by his team which was produced as same as the genuine one at Ex.23-A. Such programme was telecasted/flashed on the TV which was visualized by the complainant and his other family members as well as entire country in which the appellant disclosed how he has committed the murder of deceased Mst. Aneela. The prosecution evidence finds corroboration from the medical evidence that how appellant has committed brutal murder of innocent lady by inflicting 15 incised/stab wounds to the deceased and time of incident and duration of death and postmortem was four to eight hours. The complainant in his deposition disclosed that he has lost his contact with the deceased at about 7 to 7:30 PM and police sent the dead body of the deceased to the hospital on 06.03.2010 at about 3:40 AM and the time of starting postmortem was 04:00 am. If we minus four to eight hours from the postmortem time then exactly time would be 7 or 7:30 PM which also connects the appellant with the commission of the offence.
19. The plea taken by the appellant in his statement under section 342, Cr.P.C. is only he has denied the allegation of murder of deceased Mst. Aneela. The evidence collected by the I.O. finds corroboration from the evidence of prosecution witnesses along with circumstantial evidence coupled with medical evidence leads towards the end that the accused/ appellant is a real culprit, who has given incise/stab wounds to deceased Mst. Aneela from his choora/dagger. Resultantly, she died in his house and after committing the murder, the appellant' locked the door of the house from outside and ran away.
20. The case law relied upon by the learned counsel for the appellant is on distinguishable facts and circumstances of the case in hand.
21. The upshot of the above discussion is that the prosecution has successfully established its case against the appellant. Learned counsel for the appellant has failed to point out any material illegality or serious infirmity committed by learned trial Court while passing the impugned judgment, which in our humble view, is based on an appreciation of the evidence and the same does not call for any interference by this Court. Thus, the conviction and sentence awarded to the appellant by learned trial Court are hereby maintained and the instant appeal filed by the appellant merits no consideration, which is dismissed accordingly .
22. Learned counsel for the complainant failed to make out a case for enhancement of sentence, hence the Criminal Revision Application No.238 of 2012 stands dismissed.
23. It is important to note here that it's our 3rd judgment within one month wherein the husband has committed murder of his wife on petty matters. In all such like cases, as in the instant one, the parents despite complaints of torture / maltreatment by husband or in-laws, forced their daughters to live / stay with same persons. Such daughters, undeniably, are victims of domestic violence who, otherwise, are entitled for help and support because no just law on earth allows continuity of a forced tie but typical cultural thoughts compel the parents to send back their daughters to such like hell. According to a study carried out in the year 2009 by Human Rights Watch, it is estimated that between 20 to 30 percent women in Pakistan have suffered a form of abuse. An estimated 5000 women are killed per year from domestic violence, with thousands of others maimed or disabled from physical to Psychological and sexual abused from intimated partners, the majority of victims were killed by family members. A survey carried out by the Thomson Reuters Foundation ranked Pakistan as the third most dangerous country in the world for women, after Afghanistan and the Democratic Republic of Congo. The problem which we have noted in all cases are that after performing the Nikah the family members are not helping/ supporting their daughters on the ground that if she started residing in their house no one can contract the marriage with unmarried girls/daughters and are leaving their girls/daughters on the mercy of their husbands and they are facing huge torture at the hands of their husbands and their family members, some are taking extreme action by setting her on fire or by committing brutal murder, but concerned government ministries are silent spectators as no one is ready to provide protection to women in real sense. Sindh Domestic Violence Act was passed with an aim to help out such like victims but despite lapse of considerable period the government has failed in enforcing the same in letter and spirit, which includes punishments for guilty of any act or omission, constitution domestic violence as well ensure honourable place with safety even at complained place, hence if timely actions are taken the possibility of killing, including serious harms, can well be avoided. However, the figures speak volumes that the government has failed in giving any weight ' to such enactment which, we would insist, is one of the reason whereby the typical cultural thoughts are continuing and parents, feeling helpless, prefer to commit them to hell without proper legal help / assistance which, otherwise, is available to them as per Sindh Domestic Violence Act. Thus, it is appropriate to direct government authorities to implement the preamble of Domestic Violence (Prevention and Protection) Act, 2013 in its real sense without loss of any further time. In our Holy Quran in Surah "Al-Maida", ALLAH subhanahu wa ta'ala tells us that "If anyone saved a life it would be as if he saved the life of the whole humanity"
24. The office, accordingly, shall send a copy of this judgment to the Chief Secretary, Government of Sindh as well as Secretary Social Welfare Department, Govt. of Sindh for its compliance. They shall submit progress report quarterly to this Court through Registrar.