JUDGMENT SHEET

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR
JUDICIAL DEPARTMENT

Murder Reference No. 38 of 2016/BWP

(The State Vs. Muhammad Zahid)
&
Criminal Appeal No. 267-J of 2016/BWP
(Muhammad Zahid Vs. The State etc)

Date of hearing: 09.03.2020

Appellant by: Sh. Zafar Iqbal & Mr. Hassan

Mahmood Chaudhry, Advocates.
Complainant by: Mr. Muhammad Ismail Makki,
Advocate.
State by: Ch. Asghar Ali Gill, Deputy Prosecutor
General.
Miss Mehwish Mahmood, Research
Officer.

..................................
JUDGMENT

Sardar Muhammad Sarfraz Dogar, J.:- Mst.

Manzooran Bibi aged about 50 years, hereinafter referred
to as the deceased, was strangulated to death during the
intervening night of 21/22.1.2015, in the area of Basti
Hakeeman Mouza Jamal Pur falling within the territorial
jurisdiction of Police Station Qaimpur Tehsil Hasilpur
District Bahawalpur, Muhammad Zahid appellant who
was son of the deceased was blamed for homicide in the
backdrop of a motive according to which the appellant
had demanded money from her deceased mother but she
apprised that there was nothing with her to pay which
incited the appellant for commission of the offence.
Murder Reference No. 38 of 2016/BWP, & 2
Crl. Appeal No. 267-J of 2016/BWP.

2. With the said allegations Muhammad Zahid

appellant was booked and tried in case FIR No. 15 dated
22.1.2015 registered at above mentioned Police Station for
an offence under section 302 PPC. After a regular trial,
held by the learned Additional Sessions Judge, Hasilpur
District Bahawalpur, the appellant was convicted for an
offence under section 302 (b), PPC for committing ‘qatl-i-
amd’ of his real mother Mst. Manzooran Bibi deceased
and was sentenced to death along with direction to pay
compensation of Rs. 5,00,000/- to the legal heirs of the
deceased as envisaged under section 544-A, Cr.P.C. or in
default of payment thereof to further undergo six months
S.I.

3. Muhammad Zahid appellant has challenged his

above-said conviction and sentence before this Court
through Criminal Appeal No. 267-J of 2016/BWP which
has been heard by us along-with Murder Reference No.
38 of 2016/BWP sent by the learned trial court under
section 374 Cr.P.C. seeking confirmation or otherwise of
the sentence of death passed by the learned trial court
against Muhammad Zahid appellant. As the common
questions of facts and law are involved, we propose to
decide both these matters together through the present
consolidated judgment.

4. The facts of this case as well as the evidence

produced before the learned trial Court find an elaborate
mention in the judgment passed by the learned trial
Court and, therefore, the same may not be reproduced
Murder Reference No. 38 of 2016/BWP, & 3
Crl. Appeal No. 267-J of 2016/BWP.

here so as to avoid duplication and unnecessary

repetition.

5. Heard. Record perused.

6. According to the prosecution case the death of the

deceased had occurred due to strangulation, but
undeniably, rather admittedly it was an un-witnessed
crime as nobody had seen the accused while pressing the
neck of the deceased, as such the entire edifice of the
prosecution case has been built around the cause of death
of the deceased. Did the victim die as a result of throttling
caused by the appellant is the main and crucial question
which is to be resolved here in the light of medical
evidence as well as the medical jurisprudence?

Asphyxia
Asphyxia or asphyxiation from Ancient Greek a
“without” and sphyxis, “squeeze” is a condition of
severely deficient supply of oxygen to the body that arises
from abnormal breathing. Asphyxia is something that
many people died of throughout the world and it is
something that many people think simply the act of
suffocation or smothering a victim until he can no longer
breathe. Asphyxiation is defined as hypoxia/anoxia that
is caused when respiratory function is hampered by
interference with the mechanics of breathing.

Appearances due to Asphyxia.

The face is puffy and cyanosed, and marked with

petechiae. The eyes are prominent and open. In some
Murder Reference No. 38 of 2016/BWP, & 4
Crl. Appeal No. 267-J of 2016/BWP.

cases they may be closed. The conjunctivae are 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 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 bruising at the back of the neck. The hands are
usually clenched. The genital organs may be congested
and there may be discharges of urine, faces and seminal
fluid.

Strangulation
Strangulation is a violent form of death, which results
from constricting the neck by means of a ligature or by
any other means without suspending the body. It is called
throttling, when constriction is produced by the pressure
of the fingers and palms upon the throat. Strangulation
may also be brought about by compressing the throat
with a foot, knee, bend of elbow, or some other solid
substance. Strangulation is defined as form of asphyxia
(lack of oxygen) characterized by closure of blood
vessels/or air passages of neck as a result of external
pressure on the neck.

Manual Strangulation (throttling) is usually done with the

hands.
Murder Reference No. 38 of 2016/BWP, & 5
Crl. Appeal No. 267-J of 2016/BWP.

Neck anatomy.

A rudimentary knowledge of neck anatomy is critical in

order to understand adequately the clinical features of
strangled victim.

The hyoid bone a small horseshoe shaped bone in

the neck helps to support the tongue.

The larynx, made up of cartilage, not bone, consist

of two parts: the thyroid cartilage and the tracheal rings.

Carotids are the major vessels that transport

oxygenated blood from the heart and lungs to the brain.
These are the arteries at the side of the neck that persons
administering CPR (cardio-pulmonary resuscitation)
check for pulses.

Jugular veins are the major vessels that transport

deoxygenated blood from the brain back to the heart.

The general clinical sequence of a victim who is being

strangled is one of severe pain followed by
unconsciousness, followed by brain death. The victim will
lose consciousness by any one or all of the following:-

(i) Blocking of the carotid arteries (depriving the

brain of oxygen);

(ii) Blocking of the jugular veins (preventing

deoxygenated blood from exiting the brain;)
and

(iii) Closing off the airway, causing the victim to

be unable to breathe.

Probably one or more causes may operate during

strangulation. A pale face would indicate a rapid death
Murder Reference No. 38 of 2016/BWP, & 6
Crl. Appeal No. 267-J of 2016/BWP.

from reflex cardiae arrest, while a cyanosed face with

petchiae would suggest a delayed death.
7. In this case postmortem examination on the dead
body of Mst. Manzoora Bibi deceased was conducted by
Dr. Sobia Batool (PW9) 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
postmortem 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.

8. Admittedly, postmortem examination of the

deceased was conducted; however, it seems that the
Medical Officer who conducted the autopsy of the
deceased himself was not assured qua the cause of death
of the deceased as he had taken different samples of
Murder Reference No. 38 of 2016/BWP, & 7
Crl. Appeal No. 267-J of 2016/BWP.

organs of the dead body and sent to Chemical Examiner

and Histopathology PSFL, Lahore for detention of any
poison or any pathology lesion. However, as per report of
Punjab Forensic Science Agency, Lahore (Ex. PN), on
sealed parcel containing specimens (stomach, small
intestine, brain, heart, spleen, liver, kidney, urinary
bladder and uterus) of Manzooran Bibi deceased was
received but no test was performed as specimens were
unsuitable for toxicological analysis as these were fixed in
formalin. Moreover, as per Forensic Histopathology
Report (Ex. P:P), no anti-mortem injury was seen on
hyoid bone of the deceased.
9. Now, we advert to the confession made by the
appellant in his statement under section 342, Cr.P.C. In
this perspective, we have found that there is considerable
difference between confession and admission. The former
is regulated by Articles 42 and 43 in particular, of Qanun-
e-Shahadat Order, 1984. As the proper procedure was not
adopted, therefore, it was incorrectly construed by the
learned trial court as confession of the accused. Under the
law, it may be treated as an admission of the appellant,
however, on the basis of admission, alone, accused person
cannot be awarded a capital punishment because
admission, as has been defined by Article 30 of the
Qanun-e-Shahadat Order, 1984, is only a relevant fact and
not a proof by itself, as has been envisaged in Article 43 of
the Order, 1984, where a proved, voluntary and true
confession alone is held to be a proof against the maker
therefore, the learned trial court has fallen in error by
Murder Reference No. 38 of 2016/BWP, & 8
Crl. Appeal No. 267-J of 2016/BWP.

treating this halfway admission to be a confession of guilt

on the part of the appellant. Therefore, it is held that
admission of the appellant cannot be a substitute for a
true and voluntary confession, recorded after adopting a
due process of law and it cannot be made the sole basis of
conviction on a capital charge. Reliance in this regard is
placed on “Muhammad Ismail Versus The State” (2017
SCMR 713). Besides above, most importantly, needless to
mention here that the law is quite settled by now that if
the prosecution fails to prove its case against an accused
person then the accused person is to be acquitted even if
he had taken a plea and had thereby admitted killing the
deceased. Reliance is placed on “Azhar Iqbal Vs. The
State” (2013 SCMR 383), wherein the August Supreme
Court of Pakistan while relying upon “Waqar Ahmad v.
Shaukat Ali and others” (2006 SCMR 1139) has observed
as under:-

“…… it has straightaway been observed by us that

both the learned courts below had rejected the version
of the prosecution in its entirety and had been
proceeded to convict and sentence the appellant on
the sole basis of his statement recorded under section
342, Cr.P.C. wherein he had advanced a plea of grave
and sudden provocation. It had not been appreciated
by the learned courts below that the law is quite
settled by now that if the prosecution fails to prove
its case against an accused person then the accused
person is to be acquitted even if he had taken a plea
and had thereby admitted killing the deceased….. “

10. In view of the combined study of the entire

evidence and careful appraisal of the same we are led to
an inescapable conclusion that there is no corroboratory
 Murder Reference No. 38 of 2016/BWP, & 9
Crl. Appeal No. 267-J of 2016/BWP.

evidence of any legal worth to give the story set up in the

FIR any credence and strength rather the prosecution case
is full of improbabilities, legal and factual infirmities of
fatal nature and is pregnant with bristling doubts of grave
nature. Thus, the prosecution has miserably failed to
connect the neck of the appellant with the crime in any
manner whatsoever.

11. For what has been discussed above, we have come

to an irresistible conclusion that the prosecution has not
been able to prove the case against the appellant
Muhammad Zahid beyond the shadow of doubt. Hence,
Criminal Appeal No. 207-J of 2016/BWP is hereby
accepted, the conviction and sentence recorded by the
learned trial court against the appellant vide judgment
dated 13.05.2016 is set aside and he is acquitted of the
charge while extending benefit of doubt to him, who shall
be released from jail forthwith, if is not required in any
other case.

12. Consequently, the death sentence awarded to

Muhammad Zahid appellant is not confirmed and
Murder Reference No. 38 of 2016/BWP is replied in the
negative.

(Sadiq Mahmud Khurram) (Sardar Muhammad Sarfraz Dogar)

Judge Judge

Approved for Reporting

Judge Judge
Maqsood/*