PLJ 2022 Cr.C. 927
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.
PLJ 2022 Cr.C. 927
[Lahore High Court, Bahawalpur
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.
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.”
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.”
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:
 |
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.”
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:
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.”
19. For the reasons recorded hereinabove, 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 Sections 302(b), PPC, 148 & 149, PPC are without any merit, the same stand dismissed in limine.
(A.A.K.) Appeal allowed
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