MUHAMMAD WAHEED KHAN, J. Through the instant appeal, appellant Muhammad Abbas has assailed his conviction and sentence passed against him vide judgment dated 26.04.2018 by the learned Addl. Sessions Judge, Bahawalnagar in private complaint filed under sections 302/34 PPC regarding case FIR No.201/2016 lodged u/s 302 (b) PPC at Police Station Saddar Bahawalnagar , whereby he was convicted u/s 302 (b) PPC and sentenced him to life imprisonment and to pay Rs.2,00,000/- as compensation under section 544-A Cr.P.C. to the legal heirs of the deceased Mst. Asia Parveen, in default whereof, to further undergo imprisonment for six months. All sentences were ordered to be run concurrently . Benefit u/s 382-B Cr.P.C. was also extended to the convict. Whereas, co- accused of the appellant, namely , Muhammad Afzal, Muhammad Hanif and Muhammad Shafique were acquitted of the charge vide the same judgment.
2. Allegedly , one Mst. Asia Perveen was done to death by her husband Muhammad Abbas appellant alongwith his co accused and the matter was reported to police vide the above stated FIR, however , brother of the deceased Muhammad Saeed/ complainant being aggrieved of the police investigation filed a private complaint by narrating the following story;- "That marriage of Mst. Asia Perveen was solemnized with Muhammad Abbas accused 06 months prior to filing of instant complaint and she settled with Muhammad Abbas accused at Mouza Muhammadpur Shahawan, but soon after the marriage Muhammad Abbas accused started quarrelling with the deceased and demanded gold ornaments from her, who refused, due to this reason, 3/4 days prior to occurrence, Muhammad Abbas accused gave beating to deceased upon which she came to the house of complainant. On 05.07.2016 at about 1:30 p.m.
Muhammad Abbas accused came to the house of complainant and took back deceased to his house. At the time of evening, father of the complainant asked him to go to the house of deceased to give her 'Eid' gifts as it was 'Eid' on following day. The complainant along with his brothers Ahmad Yar and Muha mmad Nadeem on motorcycle reached at the house of accused Muhammad Abbas situated at Mouza Muhammadpur Shahawan, where accused persons were quarrelling with deceased and upon hearing the hue and cry the complainant and his brothers went inside the residential room and saw that Muhammad Afzal, Muhammad Hanif and Muhammad Shafique accused had overpowered deceased by holding her hands and feet, while accused Muhammad Abbas was pressing hard throat of deceased with his hands. Upon seeing them, accused persons fled away by leaving deceased there, who died at the spot in consequence of said strangulation. Complainant while leaving the PWs with the dead body proceeded to P/S Saddar and lodged the case FIR No.201/16. The local police got conducted post mortem of the deceased which confirmed that the death of the deceased was caused due to asphyxia/throatling. The inquest report as well as the report of PFSA also confirmed that the death of the deceased was caused due to asphyxia and not by poisoning but despite that the local police declared the accused being not involved in the occurrence, hence, this private complaint."
3. Learned trial Court after recording cursory statements of the PWs summoned the appellant alongwith his co- accused to face trial. Thereafter , formal charge against them was framed, to which they pleaded not guilty and claimed trial.
4. Muhammad Saeed complainant himself appeared as PW 1 and produced eye-witness his real brother Muhammad Nadeem as PW-2. Thereafter , statements of Dr. Nayab Arshad WMO, DHQ Hospital, Bahawalnagar , Abdul Rasheed SI, Muhammad Shakar A.S.I., Shabbir Ahmad 178-C, Ghulam Murtaza 971-HC, Muhammad Din Abid, Draftsman and Shahzaib Khan, Inspector/Investigating Officer were recorded as CW-1 to CW-7 respectively .
The prosecution after producing certain documents closed its evidence.
5. After completion of the prosecution evidence, statement of appellant was recorded u/s 342 Cr.P.C., in which he denied all the allegations leveled against him. He neither opted to appear as his own witness u/s 340 (2) Cr.P.C., nor produced any evidence in his defence.
6. After evaluating the prosecution evidence available on record, learned trial Court found the complainant' s version correct and accordingly convicted and sentenced the appellant in the above stated terms.
7. In support of the instant appeal, learned counsel for the appellant has submitted that the impugned judgment, whereby the appellant was convicted and sentenced, was based on surmises and conjectures and the evidence available on record had been mis-read and misconstrued by the learned trial Court; that the story advanced by the prosecution was highly improbable and could not be comprehended on any stretch of imagination; that all the accused persons nominated in FIR includ ing the present appellant had been declared innocent during the course of investigation and after formal investigation of the case, local police prepared cancellation report and submitted the same before the learned Area Magistrate, while holding the death of the deceased as suicide and the same was agreed vide order dated 25.02.2017; that even otherwise, the presence of the eye-witnesses at the crime scene was highly doubtful as both were the chance witnesses. Lastly , prays that since the prosecution has failed to prove its case beyond reasonable shadow of doubt, so, by accepting the instant appeal, the appellant be acquitted of the charge.
8. On the other hand, learned Assistant District Public Prosecutor assisted by the learned counsel for the complainant strongly controverted the arguments advanced by the learned counsel for the appellant and submitted that both the eye-witnesses, namely , Muhammad Saeed (PW-1) and Muhammad Nadeem (PW-2) had plausibly explained the reason to visit the house of the deceased on the fateful day and both of them had given each and every necessary detail of the occurrenc e, while deposing before the Court; that strained relation between the spouses had been established from the record and the police had wrongly declared the nominated accused persons as innocent; that Dr. Nayab Arshad WMO (CW-1), who conducted post-mo rtem examination confirmed the unnatural death of the deceased Mst. Asia Parveen, so under the circumstances, the appellant had been rightly held as guilty and accordingly convicted and sentenced by the learned trial Court. Finally , prayed that since the prosecution had proved its case up to the hilt against the appellant, hence, the instant appeal is liable to be dismissed.
9. I have heard the arguments and perused the record with the assistance of learned counsel for the parties.
10. Case of the prosecution as set out in the FIR (Ex-PB) was that on 05.07.2016 at 5:30 p.m. when two brothers, namely , Muhammad Saeed (PW-1) and Muhammad Nadeem (PW-2) reached at the house of the deceased Mst.
Asia Parveen, which was situated at about 10 kilometers from their house, they saw that Muhammad Afzal, Muhammad Hanif and Muhammad Shafique co-accused (since acquitted) had overpowered the deceased while holding her hands and feet, while the appellant was pressing hard throat of the deceased with his hands. Upon seeing them, the accused persons fled away by leaving the deceased, who died on the spot in consequence of the said strangulation and thereby on the information given by the Muhammad Saeed (PW-1), FIR (Ex-PB) was registered at 07:25 p.m. on the same day with Police Station Saddar Bahawalnagar , in which apart from the appellant, three co-accused were also nominated. The post-mortem examination of the deceased was conducted by Dr. Nayab Arshad WMO, who deposed before the learned trial Court as CW-1, she deposed that on external examination, she did not observe any mark of violence upon the dead body of the deceased and while examining neck of the deceased, the said CW -1 observed as under;- "Broad ligature mark redish in colour about 3 cm wide present more deeply on the left lateral surface of the neck and faded on the right side of neck above the level of thyroid cartilage. Slightly directed upwards. Post mortem staining present on the back of neck.
While giving her initial opinion regarding cause of death of the deceased, she deposed as under;- "The initial cause of death was due to asphyxia, however , samples were taken and sent to PFSA for detection of any disease/poison etc, hyoid bone with trachea and skin of ligature mark taken from neck also sent for anti- mortem/post mortem injury . Probable time between injury and death within half an hour and between death and post mortem was within 08 hours."
However , while giving final opinion, the said CW observed as under;- "From the post mortem examination and keeping in view the reports received from PFSA, Govt. of Punjab the undersigned is of the opinion the cause of death in this case has occurred due to asphyxia by hanging/external pressure."
While answering different questions put to the said CW by the learned defence counsel, she had candidly deposed and confirmed that although cause of death was asphyxia but obviously that was not caused by throatling rather it was caused by a ligature and hanging external pressure. She further clarified by giving answer in the following terms;- "On dissection of dead body I found no abnormality in the reproductive system/organs of the dead body apparently .
There is possibility that deceased might have committed suicide by hanging or by external pressure."
(Underline provided for emphasis).
So after going through the deposition of the above said CW, one thing has become very obvious that the deceased was not done to death by throttling as claimed by both the eye-witnesses (PW-1 & PW-2). As it is observed in 'Lyon' s MEDICAL JURISPRUDENCE FOR INDIA ' tenth edition at pages No.358 & 359 as under;- I. Mark or marks on the neck: (1) Strangulation by ligature.-- If a ligature has been used a mark will, save in very exceptional cases, be found on the neck. This usually , but not invariably , differs from a hanging mark, in being truly transverse in direction, low on the neck, and continuous, i.e. completely encircling the neck. In exceptional cases of strangulation, especially if the body has been dragged by the ligature, the mark may be found high on the neck, and oblique in direction, like a hang ing mark. Again, in exceptional cases of hanging, the mark may be found low down on the neck, and, if the cord has been tightly applied, the mark left by it may be more or less transverse in direction, but unlike the mark of strangulation, the sides tend to run upwards to the mark of the knot which is on a higher level. The hard, brown, parch- mentised appearance of the skin in the course of the mark is more seldom met with. Whether the mark will be parch mentised or - not depends entirely on the nature of the ligature. If this is hard and rough such a mark will result. In strangulation, more frequently than in hanging, the ligature employed is a soft one, such as a handkerchief or other piece of cloth, this is the reason for the frequent absence of the parchmentised mark.
(2) Strangulation by manual pressure.-- It is not uncommon in India, the victim usually being a child or a female.
The marks left on the throat in throttling are dark in colour and correspond to the shape of the fingers. If one hand only is used several bruises may be found on one side of the neck, and at a somewhat higher level on the other side a single bruise caused by the press ure of the thumb. If both hands are employed, as is very often the case, several marks will be seen on each side of the throat. These marks may or may not become parchmentised, according as the force used has or has not been sufficient to abrade the skin, which is seldom the case. Frequently in the young, and sometimes in others, the nails may cause the typical crescentic abrasions on the throat.
The Medical Of ficer while giving final opinion had categorically deposed as under;- "Ligature mark 03 cm wide around the neck present more deeply on the left lateral surface of neck and faded on the right side of neck above the level of thyroid cartilage."
So, this situation clearly negates the story advanced by the prosecution that the deceased was done to death by throttling by the appellant. Defining the ligature mark Lyon's MEDICAL JURIS PRUDENCE FOR INDIA ' tenth edition, at pages No.360, 361 and 362 read as under;- "A ligature mark on the neck , corresponding in appearance to a strangulation mark, cannot of itself be taken as evidence of death by strangulation. Such a mark may be the result of the applicati on of a ligature to the neck after death, or have been accidentally produced by the pressure of a tight-fitting article of dress, or be the result of putrefactive swelling against a string tied loosely round the neck. Hence, even when a ligature mark is found on the neck, corresponding in appearance to a strangulation mark, to establish the fact that death was due to strangulation requires proof that the press ure of such ligature was the cause of death. Such proof may be afforded by the presence of the general post-mortem appearances of death by strangulation. It must, however , be recollected that in hanging, as well as in strangulation by a ligature, death is due to the pressure of a ligature on the neck. Further , that in hanging the presumption is always in favour of suicide, while in strangulation it is in favour of homicide. Hence, in all cases of death from pressure of a ligature on the neck, all appearances indicating the cause of death to be hanging, rather than strangulation, or vice versa, should be most carefully noted.
Suicidal cases of strangulation by a ligature are occasionally met with. To effect suicide in this way requires the employment of some means whereby the ligature is kept tight, independently of any muscular effort on the part of the suicide; so that relaxation may not occur when insensibility supervenes. This end may be arrived at in various ways, e.g.by passing the ligature more than once round the neck; by twisting a stick in the tied ligature, and securing the end of the stick; or by simply knotting the ligature. As regards this last method, it may be noted that the presence of more than one knot raises a suspicion of homicide; two knots have, however , occasionally been found in suicidal cases; more than two knots very strongly indicate homicide.
Homicidal cases.-- In hanging the presumption is always in favour of suicide; in strangulation it is in favour of homicide. Homicide is very strongly indicated (a) when a ligature has been employed and there are no means for the purpose of keeping it tight after insens ibility has occurred; (b) when other signs present show the application of much violence to the neck or to other parts of the body; and (e) when the strangulation has been effected by means other than the use of a ligature. Obviously homicide also is almost conclusively indicated if the hands are found tied together in such a way as to show that they could not have been so secured by the individual himself."
11. So in view of the above discussion, it can be safely concluded that although the deceased was strangulated to death but possibility of suicide as observed by the lady doctor (CW-1) in her testim ony cannot be ruled out as her deposition was not in conformity with the allegation leveled by the prosecution witnesses rather she clearly denied the same.
12. Another aspect of the case was that I have also entertained serious doubt qua the availability of both the eye- witnesses (PW-1 & PW-2), who were the real brothers of the deceased as according to their own story , the deceased was sent with the appellant on the day of incident and thereafter , in evening, both of them (eye- witnesses) went to her house in order to give Eid gifts as it was Eid on the following day and the moment, when they reached in her house, the deceased was being killed by the appellant. So, there was no denial of the fact that they were the chance witnesses and there was no occasion for them to visit the house of the deceased on the same day as according to the prosecution story , she had left the house of her parents few hours earlier .
13. Moreover , it was the prosecution case that the dead body of the deceased was shifted to the hospital by Rescue 1122 but admittedly , no official/person had been produced by the prosecution to verify this aspect of the case and at the same time, it has also created a dent in the prosecution story regarding the availability of the eye- witnesses at the crime scene. Even otherwise, prosecution evidence had also failed to satisfy the conscious of the learned trial Court qua the guilt of acquitted co-accused persons. Meaning thereby that the same had been disbelieved to their extent.
14. So in the light of supra discussion, conclusion is inescapable that the prosecut ion has not only remained failed to prove its case against the appellant beyond reasonable shadow of doubt but also that the death of the deceased was homicide and not suicide. Thus, the instant appeal is allowed and the appellant Muhammad Abbas is acquitted of the charge. He is in jail, so, he be released forthwith if not required in any other case.