PLJ 2022 Cr.C. 927
[
Present: Muhammad
Amjad Rafiq, J.
KHIZER ABBAS etc.--Appellants
versus
STATE etc.--Respondents
Crl. A. No. 306, 358 & Crl. Rev. No. 84 of 2018, decided
on 21.10.2021.
Death due to
throttling--
----Medical observation--Observation
of medical officer if on one side is considered that death was caused due to throttling
then some symptoms on face, nose, lips or around neck should have appeared to
support case of throttling--It is true in some cases of throttling no apparent
marks of violence are visible yet in such cases death should have been occurred
immediately due to closure of windpipe but PW-1/complainant stated that when
they took deceased he was alive but unconscious and on their way to BV
Hospital, Bahawalpur he died after 20-25 minutes of occurrence which shows that
it was not a case of death due to immediate loss of breath. [P. 934] A
Throttling--
----Dr. C. K.
Parikh in his Textbook of Medical Jurisprudence, Forensic Medicine and
Toxicology defines throttling as a form of strangulation effected by hand, and
is therefore often referred to as manual strangulation--The extent and
character of these signs will depend in large measure upon rate of asphyxial
process--In certain cases, signs of asphyxia may be very slight if death has
supervened quickly from cardiac inhibition due to pressure on carotid nerve
plexus--However, as is usual, when constricting force has been considerable, signs
are well marked--In addition, following signs are also seen: The tongue may be
bruised, bitten by teeth, and protruded--Bleeding from ears due to rupture of blood
vessels of tympanum may be seen--There may be injuries on face, chest, etc,
indicating a struggle--The face and eyes may show multiple petechial
haemorrhages. The body temperature may rise.
[P.
934] B & C
Dr. C.K. Parikh Text
book Medical Jurisprudence.
Death by throttling--
----If death is caused by throttling, following would be medico-legal
aspects:
“Evidence of violent
compression of neck during life is obtained from bruising due to thumb and
fingers, nail marks, and swelling and lividity of face--In addition, further
evidence is provided by bruising and laceration of larynx, windpipe, and
muscles and vessels in front and sides of neck, and fracture of cornuae of laryngeal
and occasionally hyoid.” [P.
938] D
Dr. C.K. Parikh Text
book Medical Jurisprudence.
Neck hemorrhage--
----This study highlights that neck hemorrhage could be caused by
internal disease like ischemic heart disease or cardiac failure--Similar
suggestion was put to doctor by defence in this case but he denied same due to
his little knowledge of medicine--This study further observes that bruising,
hemorrhage and abrasion on face and neck can be occurred during CPR and CPR
means Cardiopulmonary resuscitation which is an emergency procedure that
combines chest compressions often with artificial ventilation in an effort to
manually preserve intact brain function until further measures are taken to
restore spontaneous blood circulation and breathing in a person who is in
cardiac arrest--The witnesses took deceased to hospital when he was unconscious
and there is a probability that they might have resorted to CPR to bring him
back to life which might have resulted to a little inside injury to hyoid bone
as observed by histopathologist in his report. [P.
939] E
----S. 302(b)--Conviction and sentence--Challenge
to--Qatl-e-amd--Motive--Dispute on purchase of land by deceased with
appellant--Both parties were living for last five to six years in nearby houses
situated in front of each other and no quarrel took place over such motive
ever; no civil suit was instituted by accused/appellants against said “G” or complainant
or PWs regarding said land; during this period accused/appellants did not
attempt to take possession of said land--Even prosecution has not produced
proof of purchase of such land before police nor produced “G” as witness to motive--All
that shows that prosecution has come up with very week motive and that too
proof less which has no bearing or contribution in augmenting cause against accused/
appellants--No injury & marks of violence on chest of deceased--Accused
remained pressing throat for 6/7 minutes, yet Investigating Officer did not
bother to lift finger prints on neck of deceased nor doctor has performed this
function; therefore, prosecution case remained shrouded in mystery and actual
facts could not be surfaced to light--The above references show that in case of
throttling there must be some signs or marks of violence around neck otherwise,
it could be suspected that asphyxia was due to some other reasons like internal
diseases; therefore, medical evidence is not found supportive to ocular account--Accused
were not armed with any kind of weapon, therefore, no recovery was required in
this case from accused/appellants, therefore, on this score prosecution too has
a very week limb to get support to their case--In view of circumstances, it leads
to an irresistible conclusion that prosecution has failed to bring home guilt of
appellants beyond any shadow of doubt and trial Court was not justified in
convicting them--Appeal allowed. [Pp. 939
& 940] F, G, H & I
Syed Zeeshan Haider, Advocate for Appellants.
Rao Riaz Ahmad Khan, Deputy District Public Prosecutor
for State.
M/s. Malik Saeed Ijaz and Muhammad Sharif Bhatti,
Advocates for Complainant.
Date of hearing: 21.10.2021.
Judgment
Through titled criminal appeal No. 306 of 2018 filed under
Section 410, Cr.P.C. appellants Khizar Abbas, Najaf Abbas, Ghulam Abbas, Fazal
Abbas and Ghazanfar Abbas have questioned the legality of judgment dated
24.04.2018 passed by learned Additional Sessions Judge, Yazman, District Bahawalpur
in case FIR No. 176 dated 28.09.2016 registered under Sections 302, 148 &
149, PPC at Police Station Saddar, Yazman, District Bahawalpur, whereby appellant
Khizer Abbas was convicted under Section 302(b), PPC and sentenced to
imprisonment for life whereas appellants Najaf Abbas, Ghulam Abbas, Fazal Abbas
and Ghazanfar Abbas were convicted under Section 302(c), PPC and sentenced to
rigorous imprisonment for ten years each. Benefit of Section 382-B, Cr.P.C. was
extended to all the convicts.
2. Against the impugned judgment dated 24.04.2018 complainant
Farooq Mustafa has also filed Criminal Revision No. 84 of 2018 seeking
enhancement of sentence of respondents No. 2 to 6 and Crl. Appeal No. 358 of 2018
against acquittal of respondents No. 2 to 5 from offences under Section 302(b),
PPC, 148 & 149, PPC. Both these matters i.e. criminal revision and
criminal appeal filed by the complainant are also being decided through this
common judgment.
3. Copious facts about episode of crime mentioned in the FIR
(Ex.PE) were stated with precision by complainant Farooq Mustafa (PW -1) before
the police that he alongwith his brother Sajjad Hussain alias Billa
(deceased) being Wireless Operators at Central Jail Bahawalpur were on leave in
order to attend their indisposed mother. They were present in their house
situated in Chak No. 46/D.B. Colony when on 28.09.2016 at about 08:00 a.m. his son
Adnan Haider (PW-2) and his brother Sajjad Hussain alias Billa went to fetch
some fodder for their animals from their land in Killa No. 11. Adnan Haider was
cutting fodder whereas Sajjad Hussain alias Billa was sitting under the
tree of Berry when his paternal cousin namely Ghulam Abbas (appellant) came
there and abused Sajjad Hussain alias Billa that he has not done good by
purchasing two acres of land from Ghulam Hussain alias Gama because said
land was to be purchased by them. He was paid in the same coin by Sajjad
Hussain, upon which Ghulam Abbas became angry and said that he will teach him a
lesson and not let him alive. He proceeded towards his house and brought with him
appellants namely Khizer Abbas, Najaf Abbas, Fazal Abbas and Ghazanfar Abbas,
who in prosecution of their common object started beating Sajjad Hussain
(deceased) with slaps and fists. On hearing outcries, the complainant alongwith
Ghulam Sabir, who were present in nearby Killa No. 12 in cotton crop, reached
there and saw that Khizer Abbas was pressing throat of Sajjad Hussain whereas
Najaf Abbas and Fazal Abbas had caught hold of Sajjad Hussain from his legs and
Ghazanfar Abbas caught his arms. Ghulam Abbas was giving fist blows at the
chest of Sajjad Hussain. They saved Sajjad Hussain from the accused but due to
injuries he became unconscious. They immediately took Sajjad Hussain to
4. Muhammad Ishaq S.I./I.O. (PW-8) on receiving police file of
this case reached at THQ Hospital, Yazman alongwith other police officials,
inspected the dead body, prepared injury statement and inquest report, handed
over the dead body and police papers to Shafqat Hussain 1562/C for post-mortem
examination, after post-mortem examination he took into possession last worn
clothes of the deceased through respective recovery memo. He proceeded to place
of occurrence, prepared rough site plan. On 15.11.2016 he arrested accused
persons and after fulfilling the formalities of investigation he handed over
the file to SHO for preparation of report under Section 173, Cr.P.C.
5. Dr. Muhammad Wasim Zahid (PW-3) conducted post-mortem
examination of deceased Sajjad Hussain alias Billa on 28.09.2016 at
02:30 p.m. He observed no external or internal injury on the person of deceased
and found all organs healthy; he observed no ligature or ligature mark around
the neck. On dissection of neck underlined organs, hyoid bone,
thyroid/parathyroid, cartilages were apparently found healthy. He also observed
a scratch 03 x 0.5 cm on outer upper aspect of left arm of deceased. No other
marks of violence on any other part of his body were present. He did not
mention specific time between injury and death whereas observed time between
death and post-mortem as 8 to 12-hours. After receiving report of Histopathologist
gave his opinion that this is most probably a case of throttling.
6. The prosecution produced 10 witnesses alongwith Forensic
Histopathology Report (Ex.PJ). The appellants, in his statement recorded under Section
342, Cr.P.C., denied and controverted all the allegations leveled against them,
they neither opted to make statements under Section 340(2), Cr.P.C. nor they
produced anything in their defence. Learned trial Court, upon conclusion of the
trial, convicted and sentenced the appellants, as stated above.
7. Learned counsel for the appellant has submitted that the
appellants are quite innocent and had nothing to do with the alleged
occurrence. Further added that the medical evidence is in conflict with the
ocular evidence as signs of throttling are not available in the post-mortem
examination report of the deceased; there is considerable delay in conducting post-mortem
examination of the deceased which has not been explained by the prosecution;
the alleged occurrence is of the month of September and rigor mortis could not
develop rapidly in such season within the period as described in post-mortem
report; the prosecution witnesses are chance witnesses as they could not
justify their presence at the spot at the relevant time; the mode & manners
of the occurrence as ascribed by the prosecution is not in consonance with the
real facts and circumstances of the case. At the end, he prayed for acquittal
of the appellants.
8. On the other hand, learned Deputy District Public Prosecutor
appearing for the State assisted by learned counsels for the complainant
vehemently opposed the contentions of learned counsel for the appellants and submits
that all the accused persons are nominated in the promptly lodged FIR with their
specific roles ; it was a broad daylight occurrence where identity of the
appellants could not be doubted ; both the witnesses of ocular account were
quite natural and consistent inter-se because they were working in the nearby
fields so their presence at the spot at the relevant time could not be doubted;
the medical evidence is in line with ocular account as the doctor on the basis
of Histopathologist report observed that there was an ante-mortem injury of hyoid
bone; the prosecution has fully proved the charge of murder against the appellants
to the hilt. They prayed for dismissal of the appeal filed by the
convict/appellants and supported Crl. Revision as well as criminal Appeal filed
by the complainant by arguing that once the charge was fully established the
appellants did not deserve any leniency in terms of sentence and similarly acquittal
on other charges was also not justified at all; therefore, the impugned
judgment to that extent requires reconsideration. They have placed reliance on
judgment reported as “Saeed Ahmed versus The State” 2015 P.S.C. (Crl.)
335 (Supreme Court of Pakistan).
9. I have heard learned counsel for the appellants, learned
Prosecutor appearing for the State assisted by the learned counsels for the
complainant and perused the record.
10. The prosecution case stands mainly on ocular account which
was led by Farooq Mustafa (PW-1) being complainant and Adnan Haider (PW-2) his
son. The occurrence was of 28th September, 2016 which was a working day. PW-1 being
employed in Central Jail,
“I did not cause
any injury to any accused with sickle to save my uncle Sajjad Hussain”
He also admitted that they did not
produce grass, sickles or donkey cart before the police. From the above part of
evidence it is clear that these two PWs were actually not present at the place
of occurrence at the relevant time. Both these witnesses deposed in clear terms
that they took Sajjad Hussain (deceased) to
11. Dr. Muhammad Wasim Zahid who examined the deceased appeared
as (PW-3) and observed dust over the clothes of the deceased in small quantity
which learned counsel for the complainant states was due to reason that place
of occurrence consists of sand -dunes yet doctor did not observe any dust or
sand in the head or other body parts of the deceased. Doctor observed no marks of
violence on any part of the body of the deceased except a scratch of 3 x 0.5 cm
on outer upper aspect of left arm which during cross examination he deposed that
it was not declared being ante-mortem. Suggestion was put to him that such scratch
could occur during transportation of dead body, to which he could not respond
otherwise. Doctor (PW-3) on examination of neck has observed as under:
“No ligature and
ligature mark around the neck . On dissection of neck underlined organs, hyoid
bone, thyroid/parathyroid, cartilages are apparently healthy”.
He withheld his final opinion till the receipt
of Histopathologist report wherein it was observed that:
“Histological
examination of multiple Sections from hyoid bone reveals bony fragments
entrapped in those are blood hemorrhage, denoting ante-mortem injury to hyoid
bone.”
Therefore, he gave his final opinion
that this is most probably a case of throttling. During cross examination while
responding to different questions he admitted the following facts:-
“No thumb or finger
mark was observed by him on the neck of the deceased; there is no mentioning of
fracture or otherwise of hyoid bone in the post-mortem report; duration between
injury and death was not mentioned by him in the post-mortem report; there was
no injury on mouth, nose and lips of the deceased; he did not preserve piece of
skin of neck for its forensic analysis and no bleeding was coming from mouth or
nose of the deceased; he had not mentioned congestion of conjunctivae in the post-mortem
report, however, admitted that in case of throttling conjunctivae is found to
be congested; no laceration was written by him on the tissues of neck in the
internal examination of the deceased; he found no cut or tear on the clothes of
the deceased during post-mortem examination.”
Observation
of medical officer if on one side is considered that death was caused due to throttling
then some symptoms on the face, nose, lips or around the neck should have
appeared to support the case of throttling. It is true in some cases of
throttling no apparent marks of violence are visible yet in such cases the death
should have been occurred immediately due to closure of windpipe but
PW-1/complainant stated that when they took the deceased he was alive but
unconscious and on their way to BV Hospital, Bahawalpur he died after 20-25
minutes of the occurrence which shows that it was not a case of death due to
immediate loss of breath.
12. A renowned forensic expert Mr. Jaising P MODI on the
subject of throttling commented in following words:
“(2)
If fingers are used (throttling), marks of pressure by the thumb and the
fingertips are usually found on either side of the windpipe. The thumb mark is
ordinarily higher and wider on one side of the front of the neck, and the
finger marks are situated on its other side obliquely downwards and outwards,
and one below the other. However, the marks are sometimes found clustered
together, so that they cannot be distinguished separately. These fingertip
bruises, each disc-shaped and 1-2 cm in diameter, look like red bruise (six
penny bruises) if examined soon after death, but they look brown, dry and parch
ment-like sometimes after death. One should refrain from drawing inference from
the direction of curved abrasion, as to how the hand of the assailant might
have been applied to the neck of victim. The inherent quality of the victim's
skin, the shape and length of the fingernails of the assailant render such
inferences extremely tenuous. This linear or crescentic marks produced by the
fingernails are occasionally present, if the fingertips are pressed deeply into
the soft tissues of the neck. A body, which is wet, may not reveal fingernail
marks until drying of the skin of the body. When both hands are used to grasp
and compress the throat, the thumb mark of one hand and the finger marks of the
other and are usually found on either side of the throat. Sometimes, both thumb
marks are found on one side and several finger marks on the opposite side. If
the throat is compressed between two hands, one being applied to the front and
the other to the back, bruises and abrasions may be found on the front of the
neck, as well as on its back.
Besides these marks, there may be
abrasions and bruises on the mouth, nose, cheeks, forehead, lower jaw or any
other part of the body, if there has been a struggle. Similarly, fractures of
the ribs and injuries to the thoracic and abdominal organs may be present, if
the assailant kneels on the chest or abdomen of his victim while pressing his throat.
He further commented on appearances due
to Asphyxia as follows:
“The face is puffy
and cyanosed, and marked with petechiae. The eyes are prominent and open. In
some cases, they may be closed. The conjunctivae or congested and the pupils
are dilated. Petechiae are seen in the eyelids and the conjunctivae. The lips
are blue. Bloody foam escapes from the mouth and nostrils, and sometimes, pure
blood issues from the mouth, nose and ears, especially if great violence has
been used. The tongue is often swollen, bruised, protruding and dark in colour,
showing patches of extravasation and occasionally bitten by the teeth. There
may be evidence of bruising at the back of the neck. The hands are usually
clenched. The genital organs may be congested and there may be discharge of
urine, faeces and seminal fluid.”
13.
Dr. C. K. Parikh in his Textbook of Medical Jurisprudence, Forensic Medicine and
Toxicology defines throttling as a form of strangulation effected by the hand, and
is therefore often referred to as manual strangulation. He observed that following
would be the External signs in case of throttling:
“The
extent and character of these signs will depend in large measure upon the rate
of the asphyxial process. In certain cases, signs of asphyxia may be very
slight if death has supervened quickly from cardiac inhibition due to pressure
on the carotid nerve plexus. However, as is usual, when the constricting force
has been considerable, the signs are well marked. In addition, the following
signs are also seen: The tongue may be bruised, bitten by teeth, and protruded.
Bleeding from the ears due to rupture of the blood vessels of the tympanum may
be seen. There may be injuries on the face, chest, etc, indicating a struggle.
The face and eyes may show multiple petechial haemorrhages. The body
temperature may rise.
He indicates
particular injuries found on the neck in case of throttling which are as under:
“The situation and
extent of the bruised area on the neck will depend upon the relative position
of the assailant and the victim, the manner of grasping the neck, and the
degree of pressure exercised upon the throat. The marks of bruising and
ecchymosis are usually found on the front or sides of neck, chiefly about
larynx and above it. When one hand is used to throttle, there may be a single
bruise on one side due to pressure of the thumb and obliquely directed multiple
bruises, one below the other, on the opposite side, due to pressure of finger
pads or finger tips. When both hands are used, the bruising pattern depends
upon the relative position of the thumbs and fingers and the degree of pressure
applied to the throat. The bruising caused by the thumb is generally wider than
that caused by the fingers. In addition to bruises, curved impressions.
commonly described in books as crescentic abrasions caused by finger nails are
also seen. The scratch caused by the thumb nail is deeper and wider as compared
to that from finger nails. The distribution of the various marks (bruises and
finger nail scratches) may be regular as mentioned above but is more often
irregular due to renewed attempts at grasping the neck when the victim
struggles to escape.”
He was of the view that following could
be the internal appearances in case of throttling:
“In
the usual case where the constricting force has been considerable and the signs
of asphyxia are well marked. subcutaneous tissues of the neck show
extravasation of blood beneath the injured areas. However, generally,
haemorrhage in the subcutaneous tissues and in the muscles underlying nail
marks is usually scant as compared to the external injuries. Conversely, the
absence of externally visible neck injury does not preclude the possibility of
underlying fatal trauma. Sometimes, all that is found is a single small area of
bruising in any muscle of the neck but commonly on either side of the midline
and usually over the thyroid cartilage or the hyoid bone. The weak areas liable
to fracture due to trauma are the projections of the laryngeal cartilage and
the ends of the hyoid bone, also known as horns. Occasionally, there are no
fractures but only submucosal haemorrhages of the larynx. Fracture of the
laryngeal cartilages and hyoid may be present in persons above 40 years of age.
Fracture of the hyoid seldom occurs in hanging or strangulation by ligature. It
is strongly in favour of throttling. When found, it is in the region of greater
cornuae, which are generally squeezed violently during the process, the broken
ends being commonly displaced inwards. Bruising (haemorrhage) at the base of
the tongue may sometimes be the only evidence of throttling.”
He has well defined the seat of injury
in case of pressing of throat & strangulation of hyoid bone in following
diagram:
He
concluded that if the death is caused by throttling, following would be the
medico-legal aspects:
“Evidence
of violent compression of the neck during life is obtained from bruising due to
thumb and fingers, nail marks, and swelling and lividity of the face. In
addition, further evidence is provided by bruising and laceration of larynx,
windpipe, and muscles and vessels in front and sides of the neck, and fracture
of the cornuae of the laryngeal and occasionally the hyoid.”
14. In this respect a study was also conducted by scientists of
Causes of Death
Accompanying by Soft Tissue Neck Hemorrhage by Akhlaghi M, Okazi A, Ghorbani M,
Taghaddosi-Nejad F, Mazinani R, Mehdizadeh F, Sanjari Kh. Department of
Forensic Medicine, School of Medicine, Tehran University of Medical Sciences,
Tehran, Iran.
Forensic Medicine
Organization,
“In this study, in addition to the
expected causes of neck hemorrhage, some other causes have been observed. Out
of 86 autopsies with neck hemorrhage, only half had died due to asphyxia and
neck traumas. In 40.7% (n=35) of cases, neck hemorrhage was observed with other
causes of death such as drug overdose, respiratory insufficiency, CO-poisoning,
electrocution and drowning. The cause of death in 9.3% (n=8) of cases which had
no symptom of trauma to any parts of the body especially the neck, could not be
established in spite of various investigations. However, our cases were
selected among files that were referred to the highly specialized centers of
legal medicine, so the frequency of causes of death and sex may not conform to
the normal population.
Our study included
11 cases of death caused by advanced cardiac diseases such as ischemic heart
disease or cardiac failure and 4 cases of respiratory failure. All of them
underwent CPR in hospitals. Although neck hemorrhages are not commonly observed
in natural deaths, little has been reported in earlier studies. Lachetal have
reported 5 cases of hemorrhage in gross and microscopic investigations of neck
muscles, shoulder girdle, and the back of the thorax. All of these cases showed
no signs of violent crime or trauma to the neck, and the cause of death in all
were associated with internal diseases. Their study suggests the intensified
breathing with dyspnea leading to accessory respiratory muscles rupture and
hemorrhage.
Bruising, hemorrhage and abrasion in
the face and neck can occur during CPR. Raven e al reported 64% laryngeal and
tracheal mucosal injury, 14% strap muscles hemorrhage, and 4% cutaneous injury
of the neck in 50 cadavers who had been resuscitated. Yoshiko Hashimoto et al
have also reported post -CPR neck hemorrhages with hyoid bone and thyroid
cartilage fractures.
Conclusion:
Soft tissue hemorrhage of the neck
occurs in some known causes of death like multiple traumas or asphyxia death,
but it may happen in other causes of death without any direct trauma or neck
compression. More studies on atypical causes of death with neck hemorrhage are
required to prevent ambiguous judgments about cause of neck hemorrhage in
suspected cases.”
This
study highlights that neck hemorrhage could be caused by internal disease like
ischemic heart disease or cardiac failure. Similar suggestion was put to the
doctor by the defence in this case but he denied the same due to his little
knowledge of medicine. This study further observes that bruising, hemorrhage
and abrasion on the face and neck can be occurred during CPR and CPR means
Cardiopulmonary resuscitation which is an emergency procedure that combines
chest compressions often with artificial ventilation in an effort to manually
preserve intact brain function until further measures are taken to restore
spontaneous blood circulation and breathing in a person who is in cardiac
arrest. The witnesses took the deceased to the hospital when he was unconscious
and there is a probability that they might have resorted to CPR to bring him
back to life which might have resulted to a little inside injury to hyoid bone
as observed by histopathologist in his report (Ex.PJ).
15.
Investigating Officer has not observed any sings of struggle at the place of
occurrence; though deceased was a healthy man of
40-years while witnesses too were present. Even draftsman who prepared scaled
site plan did not depose anything about this fact. Ghulam Abbas
accused/appellant was giving fist blows on the chest of deceased Sajjad
Hussain, yet doctor has observed no injury & marks of violence on chest of
the deceased. Accused Khizer Abbas remained pressing the throat for 6/7
minutes, yet Investigating Officer did not bother to lift the finger prints on
the neck of the deceased nor the doctor has performed this function; therefore,
prosecution case remained shrouded in mystery and actual facts could not be
surfaced to light. The above references show that in case of throttling there
must be some signs or marks of violence around the neck otherwise, it could be
suspected that asphyxia was due to some other reasons like internal diseases;
therefore, medical evidence is not found supportive to ocular account. Reliance
is placed on judgment reported as “Khadim Hussain and another vs. The State”
(1988 P.Cr.L.J. 970) wherein it has been held as under:
“9.
The medical evidence is of no avail to the prosecution case because no marks of
violence or signs of throttling were visible on the neck of the deceased. No
ligature mark was found on his neck. Had Ghulam Mustafa, who was a young man of
20 -years, been throttled to death, he must have struggled to save his life but
on the spot no sign of struggle was found.”
A reference may also be made on case
law reported as “Muhammad Zahid vs. The State and another” (2020 YLR
2018) whereby it has been held as under:
“7. In this case post-mortem
examination on the dead body of Mst. Manzoora Bibi deceased was conducted by
Dr. Sobia Batool (PW.9) on 23.1.2015 at about 8.00 a.m. It is significant to
point out here that no marks of violence were noted by the doctor on any part
of the body of the deceased at the time of her examination. Even otherwise, she
was unable to give time between death and post-mortem as well as between injury
and death. However, during the cross-examination she opined that death might be
occurred due to suffocation without any marks of violence on the body or any
injury to the hyoid bone of the deceased . Even otherwise, according to medical
jurisdiction as opined by various jurists , signs and symptoms of strangulation
would be the tongue may be swollen, bruised, bitten by teeth and protruded.
Bleeding from the ears due to rupture of blood vessels of tympanum be seen, but
in the case in hand a large number of symptoms were absent which ordinarily
point out to the cause of death of asphyxia by throttling, therefore, it is not
proved by the prosecution that the deceased met the un-natural death as result
of strangulation.”
In this respect guidance is also sought
from the judgment “Muhammad Safdar through Attorney vs. The State” (2016
MLD 1325) wherein it has been laid down that:
“7. We wish the
expert would have been forthright in her view in regard to the cause of death.
A different conclusion was required to be arrived at keeping in view the fact
that a large number of symptoms were absent which ordinarily point out to the
cause of death of asphyxia by throttling. Even, the prosecution failed to
furnish the following details: --.
i. Whether
deceased was strangled with one or two hands?
ii. How long did
the accused strangled the deceased?
iii. How many time
and how many different methods were used to strangled the deceased?
iv. Was the
deceased thrown against the wall, floor or ground?
v. How much
pressure or how hard was the grip?
vi. Did the
deceased have difficult breathing? And
vii. Did the
deceased attempt to protect herself?
In view of the above it is not
proved by the prosecution that the deceased met the un-natural death as result
of strangulation.”
16.
As regards to the motive which was alleged as dispute on purchase of land by
the deceased from one Ghulam Hussain alias Gama which according to the
prosecution Ghulam Abbas (appellant) wanted to purchase, the first altercation between
Ghulam Abbas (appellant) and Sajjad Hussain (deceased) took place on the very
day of occurrence. Witnesses during cross examination stated that Sajjad
Hussain (deceased) purchased land measuring 2-acres from Ghulam Hussain
alias Gama 2½ years prior to the occurrence. It was admitted that both the
parties were living for the last five to six years in nearby houses situated in
front of each other and no quarrel took place over such motive ever; no civil
suit was instituted by the accused/appellants against said Ghulam Hussain
alias Gama or the complainant or PWs regarding said land; during this
period accused/appellants did not attempt to take possession of said land. Even
prosecution has not produced proof of purchase of such land before the police
nor produced Ghulam Hussain alias Gama as witness to the motive. All
that shows that prosecution has come up with very week motive and that too
proof less which has no bearing or contribution in augmenting the cause against
the accused /appellants.
