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1991PCr.LJ 113
[Lahore]
Before Muhammad Rafiq Tarar, CJ. and Khalil-ur-Rehman Ramdey, J
AFZAAL HUSSAIN SHAH---Appellant
Versus
THE STATE---Respondent
Criminal Appeal No.69 of 1987 and Murder Reference No.234 of 1988, decided on
30th May 1990.
(a) Penal Code (XLV of 1860)
----S.302--Appreciation of evidence--Direct evidence is not the only mode of proving a
fact including a murder--Non-availability of direct evidence does not absolve the Court
of its amorous obligation of determining whether death of deceased was the result of a
felonious act and of its further duty to fix the guilt of the person responsible for the
same.
(b) Penal Code (XLV of 1860)
---S.302--Appreciation of evidence--Circumstantial evidence was a lawful guide in the
administration of criminal justice and circumstances established beyond reasonable
doubt could furnish a basis for decision better than any other kind of evidence.
(c) Penal Code (XLV of 1860)
---S.302--Appreciation of evidence--Circumstantial evidence--Process of inference and
deduction no doubt was frequently of a delicate and perplexing character liable to
cause fallacy, but it was also equally true that if some exculpatory circumstances stood
proved on record and if those circumstances were found to be incompatible with total
innocence of accused or were incapable of any explanation upon any reasonable
hypothesis other than his guilt, then such circumstances could form a valid foundation
for the conviction of the person accused of the charge.
(d) Penal Code (XLV of 1860)
---S. 302--Appreciation of evidence--Deceased had been strangulated to death before
her dead-body was set on fire--Hair on the head of deceased smelled of kerosene oil--
All this had happened in the house of accused where he himself was present--Accused
had no explanation for not having rushed deceased for medical assistance--Accused
never reported the matter to police and in fact disappeared from the scene and went
back to duty seeking protection under the Army Laws and avoided to join investigation
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and to face Investigating Officer--Explanation of accused that deceased might have
committed suicide was completely belied by medical evidence and he had failed to
discharge the heavy burden placed on him by the aforesaid proved circumstances--
Accused was consequently held responsible for the murder of his deceased wife as he
had not been able to explain away said circumstances upon any reasonable hypothesis
consistent with his total innocence--Conviction of accused under S.302, P.P.C. and
sentence of death awarded to him thereunder were maintained in circumstances.
Tariq Azam Chaudhry for Appellant.
M. Nawaz Abbasi, A.A: G. for the State.
Date of hearing: 30th May 1990.
JUDGMENT
KHALIL-UR-REHMAN RAMDEY, J.--- Having been found guilty of the murder of
his wife Mst. Anaran, Afzal Shah appellant stands convicted under section 302, P.P.C.
He has .to suffer the sentence of death and also has to pay a fine of Rs.5,000 in case of
default of which payment, he has to undergo R.I. 'for one year This amount of fine, if
recovered, has to be paid to the heirs of the deceased.
2. This is vide judgment dated 20-7-1987 of a learned Additional Sessions Judge at
Chakwal.
3. Through the same judgment, four co-accused of Afzal Shah appellant, namely, his
mother Mst. Aamena, his sister Mst. Hamidan, another sister of his named Mst.
Nasreat and one Jabbar Hussain who is the brother of Mst. Anaran deceased and the
husband of Mst. Hamidan above-mentioned, were however, acquitted.
4. Murder Reference No. 234 of 1988 seeks confirmation of the death sentence
imposed on Afzal Shah who in turn prays, through Criminal Appeal No.69 of 1987, for
annulment of the above-mentioned conviction and sentences recorded against him.
5. Complainant of the present case was one Mst. Hussain Bibi, who was a sister of
Mst. Anaran deceased. She died before the commencement of the trial and thus could
not be examined as a witness therein.
6. Through F.I.R. No. 57 dated 14-8-1985 of Police Station Duhman, which, F.I.R. was
proved, at the trial by Muhammad Gulzar Inspector/S.H.O. (P.W.6), the complainant
had, however, alleged that in the morning of 14-8-1985, she had received information
that her sister his, Anaran had got burnt during the preceding night. She claimed to
have immediateiy rushed to the house of Afzaal Shah appellant and found the dead
body of Mst. Anaran lying burnt in the kitchen with a Dupatta tied around its neck.
This Dupatta was partially burnt whereas the other clothes of the deceased were almost
completely burnt.
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7. Suspecting that it was Afzal Shah and the other co-accused who had done the
deceased to death, the complainant approached the local police station where the
above-mentioned F.I.R. was recorded at 9-00 a.m.
8. The complainant had further disclosed through this F.I.R. that the failure of Mst.
Anaran deceased to bear a child had become a continuous source of annoyance for
Afzal Shah appellant who had decided to contract a second marriage to which the
deceased was not agreeable and it was to remove Mst. Anaran from his way that the
appellant and his co-accused had murdered her.
9. The dead body of Mst. Anaran deceased was examined by Dr. Asghar Hamid
Qureshi (P.W.7) on 14-8-1985 at 1-30 p.m.
10. He had found second to fourth degree burns in the area of the body extending from
the head down to the middle of the legs. The hair of the scalp were also burnt and
smelled of kerosene oil. He did not find any line of redness between the burnt and the
un-burnt area of the body.
11. He had also found a ligature mark present around the neck with a partially burnt
Dupatta tied around it, which had become loose on account of burning. He had further
found laceration and contused wounds on both the lips of the dead body. Both the
upper and the lower gums were bleedings.
12. This doctor had further observed that the tongue of the deceased was protruding out
and was bitten between the teeth. Blood was coming out of her mouth and nostrils,
which had soaked the bed sheets on which the dead body had been placed. The thyroid
cartilage was depressed and fractured. The face, mucus membranes of larynx and
trachea, the pharynx and oesophagus, the pancreas, the liver, spleen and kidneys were
congested and a lot of blood had got collected around the larynx under the ligature
mark.
13. The death, in the opinion of this doctor, was due to asphyxia caused by
strangulation. The ligature mark and the injuries on the lips and gums were ante
mortem whereas the burns on the body of the deceased were declared as post-mortem.
14. During the cross-examination of this doctor, the defence had not questioned the
presence of either the ligature mark around the neck of the deceased or of the injuries
on the lips and the gums of the deceased but had mainly endeavoured to demonstrate
that the burns found on the body of the deceased were not post-mortem.
15. It is an established phenomena of medical jurisprudence that in ante-mortem burns,
a line of redness is present between the burnt and un-burnt area of the body whereas in
the post-mortem burns, this line of redness is absent.
16. In the present case, there was no line of redness between the burnt and the healthy
area of the dead body which demonstrated that the burns were post-mortem.
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17. The learned counsel for the appellant, however, argued that according to Modi,
there was a possibility of the absence of this line of redness even in ante -mortem
burns, if the deceased was a person with a weak constitution and had died immediately
from shock due to burns.
18. It will be noticed that in the first place, the absence of the line of redness on the
ante-mortem burns in case of weak persons is a mere possibility and not a rule.
Secondly the argument pre supposes that the deceased was a person with a weak
constitution although there is nothing on record in proof of this supposition.
19. If the deceased had set herself ablaze and if the burns found on the body of the
deceased were to be ante-mortem, then according to Modi, the death had to be
immediate and if the death be immediate then there would be no opportunity or time
for the deceased to strangulate herself and in these circumstances, the presence of the
ligature mark on the body of the deceased would be irreconcilable with the hypothesis
offered by the defence.
20. Likewise, if the deceased had strangulated herself to death, then the death
according to the doctor (P.W.7) being sudden, there would again be no room for the
deceased to sprinkle kerosene oil on her body and to put herself to fire.
21. This being so, the only reasonable inference that can be drawn from the medical
evidence on record is that the deceased had first been strangulated, who perhaps even
fell down in the process hitting her lips and gums and it was thereafter that the dead
body was set on fire.
22. In view of what has been discussed above, we hold that the death of the deceased
was neither suicidal nor accidental and that the deceased had been strangulated to
death and her body was thereafter set ablaze.
23. Afzsal Shah appellant admitted in his statement recorded under section 342, Cr.P.C.
that the deceased had failed to produce any issue and that she was of blackish colour.
24. This admission on the part of the appellant lends support to the motive suggested
by the complainant that the appellant was unhappy with his deceased wife and that he
wanted to contract a second marriage.
25. The circumstances which stand proved on record and which could render assistance
in the determination of the question whether the death of the deceased was felonious
and if so who was responsible for the same are, as under:
(a) Mst. Anaran deceased was the wife of Afzal Shah appellant who could bear
him no child and was of blackish colour;
(b) the deceased was living with Afzaal Shah appellant and had met her death
in his house;
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(c) Afzal Shah appellant was employed with Pakistan Army and had come
home on leave and was present in his house on the night of occurrence;
(d) the explanation offered by Afzal Shah appellant for the death of the
deceased being a case of suicide did not find support from the medical evidence
and is in fact being belied by the same;
(e) the death of the deceased was a planned murder and was neither the result
of an accident nor of suicide;
(f) no effort at all was made to provide any medical assistance to the deceased
who was never carried to any doctor or hospital in. an attempt to save her life;
(g) Afzal Shah appellant never reported the death of the deceased to the police
and in fact when the appellant was questioned during his statement under
section 342, Cr.P.C. about his failure to report the matter to the police, the
appellant elected to ignore this question; and
(h) Afzal Shah appellant never even had the courage to face the investigation
and in fact chose to disappear from the scene by going back to his place of
work from where he could be arrested only after more than three months of the
occurrence.
26. The learned counsel for the appellant submits that there is no direct evidence
available to connect the appellant with the commission of the offence in question and
that in the circumstances, the conviction recorded against him is not sustainable either
in law or on facts.
27. Adds that a mere suspicion how-so-ever strong, could be no substitute for the proof
of guilt and thus could not justify a conviction. Further contends that the deceased had
perhaps committed suicide because of her failure to produce a child and because of her
continuous bad health and this explanation was sufficient to explain the death of the
deceased.
28. Direct evidence is not the only mode of proving a fact including a murder. The
non-availability of direct evidence does not absolve the Court of its onerous obligation
of determining whether the death of the deceased was the result of a felonious act and
of its further duty to fix the guilt of the person',, responsible for the same.
29. The law has always considered the circumstantial evidence as a lawful guide in the
administration of criminal justice and circumstances established beyond reasonable
doubt could furnish a basis for decision, better than any other kind of evidence.
30. It is no doubt true that the process of inference and deduction is rather involved
which is frequently of a delicate and perplexing character liable to cause fallacy but it
is also equally true that if some exculpatory circumstances stood proved on record and
if these circumstances were found to be incompatible with the total innocence of the
accused or were incapable of any explanation upon any reasonable hypothesis other
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than his guilt, then such circumstances could form a valid foundation for the conviction
of the person accused of the charge.
31. The circumstances enumerated above which do stand established on record beyond
any reasonable doubt are a clear pointer towards the guilt of Afzal Shah appellant.
32. Mst. Anaran deceased had been strangulated to death. Her dead body was thereafter
set on fire. The hair on the head of the deceased smelled of kerosene oil. All this had
happened in,the house of the appellant where he was himself present. He has no
explanation for not having rushed Mst. Anaran deceased for medical assistance. He
never reported the matter to the police and in fact disappeared from the scene and went
back to duty seeking protection under the Army Laws and avoided to join the
investigation and to face the Investigating Officer His explanation that the deceased
might have committed suicide is an explanation completely belied by the medical
evidence.
33. The circumstances above noticed which stand proved on record beyond reasonable
doubt had placed a rather heavy burden on the appellant to explain how the deceased
had met her end. We find that the appellant who had merely hinted at a bare possibility
of the deceased having committed suicide had failed to discharge this onus.
34. The only legitimate inference to which the above-noticed proved circumstances
lead is that it was Afzal Shah appellant who was responsible the murder of the
deceased as he had not been able to explain away these circumstances upon any
reasonable hypothesis consistent with his total innocence.
35. Consequently, we hold that the appellant was rightly convicted of the murder of his
wife Mst. Anaran Bibi and since no grounds exist on record warranting any leniency,
we further hold that the normal penalty of death was justifiably imposed on him.
36. The conviction of the appellant under section 302, P.P.C. is thus maintained and the
sentence of death awarded to him is accordingly confirmed.
37. Criminal Appeal No.69 of 1987 is, therefore, dismissed and Murder Reference
No.234 of 1988 is answered in the above terms.
N.H.Q./A-1081/L Appeal dismissed.
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