Where case depends upon circumstantial evidence, extraordinary care and caution is required, therefore, while re-appraisal of evidence on record, we have taken utmost possible precaution so to avoid and rule out any wrong conclusion because there is always fabrication of circumstantial evidence-
PLJ
2024 Cr.C. (Note) 94
[Balochistan
High Court, Quetta]
Present: Muhammad
Hashim Khan Kakar and Shaukat Ali Rakhshani, JJ.
Mst. SUMEERA
SALEEM--Appellant
versus
STATE--Respondent
Crl.
A. No. 638 of 2022, decided on 27.6.2023.
Qanun-e-Shahadat Order,
1984 (10 of 1984)--
----Art. 122--Burden of
proving fact especially within knowledge-- Article 122 of QSO of 1984
stipulates that if a particular fact was especially within knowledge of any
person, burden of proving that fact was upon him--For ease of reference,
Article 122 of QSO of 1984 is as infra:
“122.
Burden of proving fact especially within knowledge When
any fact is especially within knowledge of any person The burden of proving
that fact is upon him.” [Para 17] B
2015
SCMR 710 and AIR 1955 SC 801.
Circumstantial evidence--
----Where case depends
upon circumstantial evidence, extraordinary care and caution is required,
therefore, while re-appraisal of evidence on record, we have taken utmost
possible precaution so to avoid and rule out any wrong conclusion because there
is always fabrication of circumstantial evidence--As held by apex Court that
circumstantial evidence is always not of a standard and quality, rather it is
dangerous to explicitly place reliance upon such evidence--The circumstantial
evidence must be of such a nature, where different pieces of evidence must make
a chain of events, where one end of it touches dead body and other end neck of
accused and if such link is found missing, whole chain breaks down and no
conviction can be recorded on such circumstantial
evidence.
[Para
7] A
2015
SCMR 155, 2016 SCMR 274 & 2017 SCMR 986.
Pakistan Penal Code, 1860
(XLV of 1860)--
----S. 302(b)--Criminal
Procedure Code, (XLV of 1860), S. 340(2)--Qatl-e-amd--conviction and
sentence--Challenge to--Involving almost similar facts, held that although
initially burden of proof is always upon prosecution, but some part of onus
also shifts upon accused to explain circumstances in which spouse had died an
unnatural death within house--The appellant has neither come forward to suggest
during cross-examination as to why she had been indicted for murder of her
family members nor stepped into witness box as contemplated u/S. 340 (2) of
Cr.P.C. to offer explanation to allegations brought forward against her by
prosecution--As in view of dicta discussed herein above, somewhat burden was
shifted on appellant to offer explanation, regarding murder of her family
members, extra judicial confession made by appellant before (PW-2) and having
been found alongwith their side with crime weapon cleaver (Toka), hood upper of
appellant being stained with blood of deceased persons, sedative drug
injections and above all suicidal note, wherein she had admitted guilt of
causing homicidal death of her family members, whereof positive FSL report was
furnished by handwriting expert to be of her own writing, henceforth, failure
on her part to explain occurrence has further strengthened prosecution
version--Prosecution has successfully proved indictment against appellant and
reasons drawn by Trial Judge have also been found to be based on proper
appraisal of evidence, which does not require to be meddled with, thus maintained.
[Para
18 & 19] C, D & E
2017
SCMR 724 & 2018 SCMR 787.
Mr.
Muhammad Khalid Kakar, Advocate for Appellant.
Mr.
Habibullah Gul, APG for Respondent.
Date
of hearing: 17.4.2023.
Judgment
Shaukat
Ali Rakhshani, J.--Appellant Mst. Sumeera Saleem was indicted for
committing murder of her husband Irfan Saleem age 37, and daughters Shikiana
age 6, Shimaya age 4, who after a full-fledged trial was held guilty of the
charge, as such vide judgment dated 23.12.2022 (“impugned
judgment”) rendered by Additional Sessions Judge-VI-MCTC-II, Quetta (“Trial
Court”), she was convicted and sentenced under Section 302 (b) of the Pakistan
Penal Code, 1860 (“Penal Code”) for life imprisonment as Tazir on three counts
with a fine of Rs. 200,000/-(rupees two hundred thousand) payable to the legal
heirs of the each deceased as contemplated under Section 544-A of the Criminal
Procedure Code, 1898 (“The Code”) and in default to undergo for further two months
SI on each default, however the sentences were directed to run concurrently
with the premium of Section 382-B of the Code; emanating from a case vide FIR
No. 03/2021 registered within the precincts of Police Station Cantt, Quetta.
2.
Concise but relevant facts of the case are that complainant Rafat Zia
registered the FIR ibid, averring therein that on 21.01.2021, while he along
with his wife Fouzia Bibi were present at Station Headquarter for submission of
form, her wife desired to meet her brother, as such, they proceeded to his
house situated at Chehm Line near old Jinnah market and reached their at 1:15
pm. According to him, the door was found closed and was not opened despite
knocks for 15-20 minutes, as such they called them on phone but with no
response, as such with the permission of the neighbors, he scaled the wall,
opened the gate and found Irfan Saleem along with his two daughters Shikiana,
Shimaya dead in the room by slitting their throats and found a bloodstained
Cleaver (Toka) lying nearby the dead bodies, whereas the appellant was also
found lying Adjacent unconscious. He further reported that he observed smell of
the gas in the house, whereafter he took the appellant to the Combined Military
Hospital (“CMH”), Quetta and informed the Military Police (“MP”), who arrived
at the place of occurrence and found a so called suicidal note-letter written
by the appellant, wherein it was found mentioned that she had murdered her
husband and daughters due to illicit relations of her husband with a woman
namely Rabiqa Pam Rose.
3.
After necessary investigation, the appellant was put on trial, whereafter
denial of the formal charge, the prosecution in order to drive home the charge
produced thirteen witnesses and at the end of the prosecution side, the
appellant was examined under Section 342 of the Code. She did not opt to record
her statement on oath, as such on conclusion of the trial, the appellant was
found guilty of the indictment and was convicted and sentenced vide impugned
judgment in the terms mentioned in the para supra.
4. Mr.
Muhammad Khalid Kakar, leaned counsel for the appellant inter alia contended
that there is no eye-witness of the occurrence and as such circumstantial
evidence is merely based upon a letter recovered from the room, where the dead
bodies were found, showing that the appellant had admitted committing murder of
her husband and two daughters on the pretext of illicit relations of her
husband with Rabiqa Pam Rose. Added further that the other circumstantial
evidence only substantiates the unnatural death, but does not connect the
appellant with the murders, henceforth he requested for acquittal of the
appellant in consequence of acceptance of the instant appeal.
Adversely,
Mr. Habibullah Gul learned APG rebutted the assertions made by the learned
counsel for the appellant. He urged that although there is no eye-witness, but
the recovery of the articles and the letter of admission of guilt by the
appellant with the positive report of hand writing of the appellant clearly
suggest that beside appellant there was no other culprit who could commit the
murder of the deceased persons. He emphasized further that the witnesses can
lie but not the circumstances, as such the circumstantial evidence produced by
the prosecution is overwhelming, leading the appellant to the guilt. According
to him, the trial Court had found the appellant guilty on the basis of proper
appraisal of the circumstantial evidence, which does not call for interference,
thus prayed for dismissal of the appeal.
5
Heard. Record pondered upon with the able assistance of learned counsel for the
adversial parties.
6. The
case in hand pertains to an unfortunate episode of homicidal demise of deceased
Irfan Saleem age 37 and his minor daughters namely Shikiana age 6 & Shimaya
age 4, which went un-witnessed, so in absence of direct evidence, the evidence
collected revolves and rests upon the following circumstantial evidence;
i) Circumstantial
evidence of complainant.
(PW-1)
and his wife Fouzia Bibi (PW2) & Gul Faam (PW-3),
ii) Extra
judicial confession made by the appellant before Fouzia Bibi (PW-2).
iii) Medical
evidence.
iv) Finger
prints lifted and secured from a cup & a laptop lying in the room of the
appellant.
v) Disclosure
of the appellant & DVD recording thereof.
vi) Recovery
of the cleaver (Toka).
vii) FSL
& DNA reports pertaining to the bloodstained cleaver (Toka) & clothes.
viii) Suicidal
letter written by the appellant.
ix. Motive.
7. We
are conscious that where the case depends upon circumstantial evidence,
extraordinary care and caution is required, therefore, while re-appraisal of
the evidence on record, we have taken utmost possible precaution so to avoid
and rule out any wrong conclusion because there is always fabrication of
circumstantial evidence. As held by the apex Court that the circumstantial
evidence is always not of a standard and quality, rather it is dangerous to
explicitly place reliance upon such evidence. The circumstantial evidence must
be of such a nature, where different pieces of evidence must make a chain of
events, where one end of it touches the dead body and the other end the neck of
accused and if such link is found missing, the whole chain breaks down and no
conviction can be recorded on such circumstantial evidence. In this regard we
are fortified with the view expounded in the case of “Imran Alias
Dullay v. The State” (2015 SCMR 155), “Azeem Khan v. Mujahid
Khan” (2016 SCMR 274) & “Hashim Qasim v. The State” (2017
SCMR 986). For ease of reference, para-5 of Imran alias Dullay’s
case is facsimile herein below:
“5. By now, it is a consistent view that when any case rests Entirely on
circumstantial evidence then, each piece of evidence Collected must provide all
links making out one straight chain where on one end its noore fit in the neck
of the accured.and.the other end touches the dead body. Any
link missing from the chain would disconnect and break the whole chain to
connect the one with the other and in that event conviction cannot be safely
recorded and that too on a capital charge. At was held in the case of Fazal
Elahi (ibid) and in view of the changed social norms and standard of ethics of
the society, to which the witnesses belong and also the questionable
credibility of the investigating agency and its incompetency to professionally
investigate such blind crimes by now, the Courts have to exercise more and more
cautions before accepting and resting its opinion of being guilty on a
circumstantial evidence collected apparently in a dishonest, dibious and rough
manner.”
[Emphasis
added]
8. The
testimonies of complainant Rafat Zia (PW-1) and Fouzia Bibi (PW- 2) have been
critically analyzed, who have corroborated each other on material points of
going to the house of brother of Fouzia Bibi (PW-2) to pay usual visit on
21.01.2021 in an afternoon around quarter past one, scaling the wall with the
permission of the neighbors and entering into the room of the deceased persons
namely Irfan Saleem and his daughters Shikiana, Shimaya. Both of the said
witnesses, categorically affirmed death of the deceased persons, having been
caused by slitting their throats through a sharp-edged tool; they also
testified that they found a cleaver (Toka) lying beside the bed, where
appellant Sumeera Saleem was lying unconscious, observing smell of gas due to
leakage in the room, whereafter they rushed to the CMH for medical treatment of
the appellant and that in meanwhile MP arrived, who turned them out of the room
and shifted the bodies of the deceased to Bolan Medical College (“BMC”) in Edhi
Ambulance.
Gulfam
PW-3 is the brother of deceased Irfan Saleem, who soon after knowing about the
murder of his brother came from Sahiwal, Punjab to CMH Quetta. According to
him, on query he was led to know that his brother and nieces have been murdered
by the appellant by administering sedative drug injections and then committing
their murder by slitting their throats.
9.
Fouzia Bibi (PW-2) deposed that in CMH, the appellant confessed Committing
murder of her husband Irfan Saleem and two daughters Shikiana, Shimaya by
firstly administering sedative injections in order to make them unconscious and
then slitting their throats with cleaver (Toka). Admittedly, at the relevant
time the appellant had not been arrested by the police personnel and was not in
police custody, when the appellant made extra judicial confession before Fouzia
Bibi (PW-2). During cross-examination, she stated that the appellant was
treated by the Doctor in the trauma center, who soon got well and that they
remained in the CMH till evening. The above statement is nothing, but an extra
judicial confession made by the appellant soon after the occurrence, seemingly
without any pressure and inducement.
10.
The medical evidence has been furnished by Dr. Ali Mardan (PW-6), who testified
that on 21.01.2021, while he was posted as police surgeon at BMC Quetta, at
6:30, pm the dead bodies of Irfan Saleem son of Samiual age 37 years, Shikiana
daughter of Irfan Saleem age 6 years and Shimaya age 4 years were brought by SI
Abdul Karim PS Cantt Quetta, whose post-mortem examination was conducted with
the history of homicidal throat slitting. He conducted their post-mortem and
produced their medico legal certificates (“MLCs”) as (Ex.P/6-A) to (Ex.P/6-C).
The probable time that lapsed between injuries and death was stated to be
immediate, whereas time between death and post-mortem was mentioned as within
10-12 hours. After a detailed post-mortem examination, he opined that all the
three deceased persons were given strong sedative drugs and then their throats
were cut with a sharp-edged weapon, causing severe bleeding, culminating to
their death.
The
defence has not disputed the unnatural death caused by sharp-edged weapon by
slitting their throats. The medical evidence confirms the circumstantial
evidence of complainant (PW-1) and his wife Fouzia Bibi (PW-2). Abdul Karim SI
(PW-7), who took the dead bodies to the BMC, where Dr. Ali Mardan (PW-6)
conducted their post-mortem and produced MLCs of the deceased persons as
(Ex.P/6-A) to (Ex.P/6-C). He stated to have received the bloodstained clothes
of the deceased persons. Dr. Ali Mardan (PW-6) also gave him three cannula
drips and told him that these cannula drips were found applied on the arms of
the deceased persons, referring to the fact that these were used by the
appellant for administering sedative drugs to the deceased persons, before
slitting their throats.
11.
Recovery witness Aimal Khan ASI (PW-8) also visited the crime scene on
21.01.2021. He produced memo. of site inspection as (Ex.P/8-A), recovery memo.
of three mobile phones as (Ex.P/8-B) and recovery memo. of used syringes as
(Ex.P/8-C). He produced cannula drips, empty syringes, four empty glasses of
Pofol injection, two empty bottles of syrup phenexgan (sic), two empty Ketlas
(sic) injections, one sticking used roll, one empty injection of valium &
covers, a receipt of doctor, needles of syringes, ten impole (sic) injection
caps, syringe alongwith medicine, eight vilum (sic) empty injections, one empty
injection of Dormmicum (sic), one empty box, one yellow trouser, one white
pajama, one upper purple color & two socks as Art.P/29 to Art.P/111 secured
through recovery memo. (Ex.P/8-D).
12.
Finger prints expert IP Muhammad Akram of Forensic Science Laboratory (“FSL”)
crime branch, Quetta on 21.01.2021 lifted and secured finger prints from a cup
and a laptop from the crime scene and also obtained finger prints of the
appellant in the presence of SI Shehbaz Khan (PW-9) and Constable Moula Dad
(PW-4) through recovery memo. (Ex P/9-A), whereof a positive FSL report
(Ex.P/12-J) was received, showing that the latent finger prints on suicidal
letter LP/04 marked as M/1 is identical with the right hand little finger and
that the latent finger prints on LP/2 marked as M/2 is identical with the left
hand thumb impression of appellant SumeeraSaleem on her sample paper marked as
A.
Although,
the FSL result of the finger prints lifted from the cup and a laptop have been
found to be of the appellant, but it has no incriminating evidentiary worth as
the appellant was living in the same house, wherefrom the finger prints were
obtained, thus finger prints found on the cup and laptop or any other articles
is natural, henceforth we believe that it does not help the case of the
prosecution.
13 On
21.01.2021, IO IP Tanzeem Shah (PW-12) in the presence of ASI Muhammad Aqil
(PW-10) & Constable KhuwarAbass secured bloodstained cleaver (Toka) lying
beside the bed suspected to be the crime weapon, whereby throats of the
deceased persons were slit, where appellant SumeeraSaleem was also found lying
unconscious. Besides above, two bloodstained swabs, two pieces of bloodstained
bed sheets and a piece of sheet stained with blood through recovery memo.
(Ex.P/10-A).
After
analysis of the bloodstained clothes, bed sheets and other articles secured
from the crime scene, a positive report (Ex.P/11-C) dated 26.05.2022 was
received from Punjab Forensic Science Agency (“PFSA”), which was secured in the
presence of Ghulam Raza Constable (PW-11) through recovery memo. (Ex.P/11-A),
showing that the said articles in question were stained with human blood except
items Nos. 4.1, 17.4 & 18. The report further suggested that the DNA
profile obtained from item No. 1.1 (swabs taken from blade of toka) had a
mixture of at least two individuals i.e. male individuals- 1 and female
individual-I and item No. 17.1 (stained Sections taken from hood upper)
belonging to the appellant, which had a mixture of two females i.e. female
individual-II & female individual-III, referring to the appellant.
14.
Another piece of evidence, whereupon the prosecution rests its case is the
disclosure of the appellant recorded in the presence of Muhammad Aqil ASI
(PW-10) and video recording saved in a Digital Video-Versatile Disc (“DVD”),
which was taken into possession through memo. (Ex.P/10-C), whereof memo. of
disclosure (Ex.P/10-B) was also prepared. The said DVD was played in Court in
the presence of Muhammad Aqil ASI (PW-10), whereof a transcript was also
prepared. The appellant was shown in the said video, while making disclosure to
have administered sedative drugs injections to her deceased husband and
daughters, before slitting their throats, culminating into their homicidal
death on the motive that her husband had illicit relations with one Rabiqa Pam
Rose, the appellant used to quarrel with her husband and that her husband
stated that since they cannot get divorced being Christians, as such, to get
rid of them, he would kill her and their children, thus apprehending that her
husband would kill them, she on the pretext of administering vitamin and
calcium injections administered her husband and children the sedative drugs by
syringes, who became unconscious, whereafter she slit their throats with the
cleaver (Toka) and wrote a suicidal note-letter Art.P/131 admitting the murders
of her husband and children.
Irresistibly,
the memo. of disclosure and DVD recording thereof were made in the custody of
the police and the facts narrated thereof were known to the police officials
prior to the disclosure and video recording. The prosecution witnesses had
already visited the crime scene, collected the sedative drug materials and a
suicidal note-letter Art. P/131 written by the appellant, thus in consequence
of such disclosure no new or fresh facts had surfaced, therefore, the
disclosure including the video recording of the disclosure have been found to
be in contravention of Article 38 & 39 of Qanun-e- Shahadat Order, 1984
(“QSA of 1984”) does not square within the preview of the Article 40 of QSA of
1984, henceforth no explicit reliance could be placed thereon.
15.
The most crucial piece of evidence is the recovery of suicidal note-letter
Art.P/131 revealing the motive of illicit relations of her deceased husband
with one Rabiqa Pam Rose, apprehending danger of being killed by her husband
and admitting murder of her deceased husband and children. To prove that the
suicidal note-letter written by the appellant herself, the prosecution produced
Judicial Magistrate (“JM”) Azhar-ud-Din (PW-5), who stated to have obtained the
specimen handwriting (Ex.P/5- B) & (Ex.P/5-D) of the appellant on
29.01.2021, whereof he produced certificate of handwriting (Ex.P/5-A) issued by
him. The defence disputed his statement but his testimony went unshaken. The
specimen handwriting of the appellant (Ex.P/5-B), (Ex.P/5-D) & suicidal
note-letter Art.P/131, which were sent for forensic analysis, a positive FSL
report (Ex.P/12-K) was received, whereby it was confirmed that the writing of
the appellant tallied the handwriting on the suicidal note-letter Art P/131.
16. As
observed, the instant case entirely rests upon the circumstantial Evidence and
there is no witness other than the appellant herself in whose presence innocent
souls of two children and their father were killed. In view of the evidence
brought by the prosecution, we are of the considered view that the prosecution
has discharged its primary burden of proving the indictment through
circumstantial evidence discussed hereinabove, whereafter somewhat burden also
shifts upon the appellant being the only person found with the dead bodies in a
room shared by her with them.
17.
Article 122 of QSO of 1984 stipulates that if a particular fact was especially
within the knowledge of any person, the burden of proving that fact was upon
him. For ease of reference, Article 122 of QSO of 1984 is as infra:
“122. Burden of proving fact especially within knowledge
When any fact is especially within the knowledge of any person the burden
of proving that fact is upon him”
The Hon’ble Supreme Court,
in the case of “Saeed Ahmed v The State” (2015 SCMR 710),
while referring to the case of “Deonandan Mishra v The State of
Bihar” (AIR 1955 SC 801), held that lack of explanation or false
explanation can be considered to be an additional link with the chain of
circumstances. Relevant portion whereof is reproduced herein below:
“It is true that in a case of circumstantial evidence not only Should the
various links in the chain of evidence be clearly established, but the
completed chain must be such as to rule out a Reasonable likelihood of the
innocence of the accused. But in a Case like this where the various links as
stated above have been satisfactorily made out and the circumstances point to
the appellant as the probable assailant, with reasonable definiteness and in
proximity to the deceased as regards time and situation, and he offers no
explanation, which if accepted, though not proved, would afford a reasonable
basis for a conclusion on the entire case consistent with his innocence, such
absence of explanation or false explanation would itself be and an additional
link which completes the chain.”
The apex Court in the case
titled as “State of Andhra Pradesh v Gangula Satya Murthy” (AIR
1997 SC 1588)”, endorsed the view ibid as under:
“The fact that body of (Satya Vani) was found on the cot inside the house
of the respondent is a very telling circumstance against him. Respondent owed a
duty to explain as to how a dead body which was resultant of a homicide
happened to be in his house. In the absence of any such explanation from him
the implication of the said circumstance is definitely adverse to the
respondent.”
18. In
the cases of “Nasrullah alias Nasro v The State” (2017 SCMR
724) & “Nazir Ahmed v The State” (2018 SCMR 787) in alike
cases, involving almost similar facts, held that although the initially burden
of proof is always upon the prosecution, but some part of the onus also shifts
upon the accused to explain the circumstances in which the spouse had died an
unnatural death within the house.
19.
The appellant has neither come forward to suggest during cross-examination as
to why she had been indicted for the murder of her family members nor stepped
into the witness box as contemplated under Section 340 (2) of Cr.P.C. to offer
explanation to the allegations brought forward against her by the prosecution.
As in view of the dicta discussed herein above, somewhat burden was shifted on
the appellant to offer explanation, regarding murder of her family members,
extra judicial confession made by the appellant before Fouzia Bibi (PW-2) and
having been found alongwith their side with the crime weapon cleaver (Toka),
hood upper of the appellant being stained with blood of the deceased persons,
sedative drug injections and above all the suicidal note, wherein she had
admitted the guilt of causing homicidal death of her family members, whereof
positive FSL report was furnished by handwriting expert to be of her own
writing, henceforth, failure on her part to explain the occurrence has further
strengthened the prosecution version.
20.
For what has been discussed hereinabove, we are of the considered view that
prosecution has successfully proved the indictment against the appellant and
the reasons drawn by the learned Trial Judge have also been found to be based
on proper appraisal of the evidence, which does not require to be meddled with,
thus maintained.
21.
Corollary, the appeal fails for being shorn of merits, henceforth dismissed.
(A.A.K.) Appeal
dismissed
