QAU Blues “D”

5th UCL National Moot Court Competition 2017

THE STATE V. MAIRA KHAN

Memorial for Defense
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TABLE OF CONTENTS

INDEX OF AUTHORITIES.......................................................................................... 3

STATEMENT OF FACTS............................................................................................. 4

FRAMED CHARGES………………............................................................................. 5

SPEECH SUMMARY…………..................................................................................... 6

WITNESS PLAN……………......................................................................................... 10
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INDEX OF AUTHORITIES

Cases

2012 440 SCMR SC...................................................................................................................7

2017 YLRN 28 LAHORE HIGH COURT............................................................................... 7

2017 SCMR 986........................................................................................................................ 8

Hawthorne v State of Florida 470 So.2d 770…………………………………………….……9

PLD 2008 Islam. 21……………………………………………………………………………………9

Pakistan Penal Code S.302……………………………………………………………………8

Pakistan Penal Code, 1860, S. 300…………………………………………………………....8

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STATEMENT OF FACTS

It was on 31st December 2014 that a dinner was hosted at Mr. Imran’s residence in sector F6/2,

Islamabad. Mr. Imran hereinafter referred to as ‘deceased’ had arranged the dinner on the eve of

new year night where he invited many people from his seemingly very broad social circle. All

the ordinary rituals of the New Year were planned like serving of dinner and cutting of new-year

cake at sharp 12:00 a.m. Close relatives like his brother Mr. Azeem Tariq and Uncle Mr. Sibtain

Hassan were also present on the occasion. The deceased had also invited his childhood friend

Mr. Ismail Darugar and a qawal Ustad Fazal Ullah. The function was organized in a gigantic 6

kanal front lawn of the residence of deceased. The catering was undertaken by Monal Restaurant

Catering Services.

Dinner was served on 8:30 p.m. It was understood that since the function was organized for

celebrating a new year in coming, all guests were intended to stay till 12:00 a.m. for cake-cutting

ceremony. During the dinner, deceased had an argument with his wife — Miss Maira who

hereinafter is referred to as ‘accused’ — which definitely displeased other guests who were

having dinner. However, argument soon ended with accused going upstairs to her room and

deceased returning back to guests to mingle again with them.

Approximately twenty minutes before the midnight, deceased went upstairs to accused’s

bedroom and started an altercation with her. The fracas was intense, as it was followed up with

intensive badgering and pounding by deceased. As a result, accused suffered serious injuries

including a bruise on a face at an area as sensitive as near to right eye. After a prolonged

argument and beating, accused in order to defend herself, grabbed the Lemon Malt bottle and
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Mr. Imran with that bottle. Mr. Imran, unfortunately, couldn’t sustain the impact and fell down.

Shortly after, he succumbed to his injuries. Later on, after when relatives and friends of deceased

had come to the room, police arrived and started its formalities.

Since then, an F.I.R has been lodged against the accused under Section 302 P.P.C. Moreover, the

statements of prosecution witnesses have also been recorded under section 161 Cr.P.C. A pre-

arrest bail was already obtained by accused and was granted by District and Session court

Islamabad by the time police could arrest the accused under section 302.

CHARGE FRAMED

 Whether crime committed by Maira Khan i.e. murder of her husband with vase and lemon

malt bottle makes her liable to punishment under section 302 of Pakistan Penal Code, 1860?

 If yes, to which punishment she will be liable, Qisas or Ta’zir under the circumstances of the

case and evidence provided?

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SPEECH SUMMARY

Case Background

The Complainant Mr. Azeem Tariq, the brother of deceased Imran Tariq, has malevolently

attempted to incriminate Miss Maira in a highly trumped up case where Miss Maira is accused of

'intentionally' murdering her own husband and an FIR under section 302 was lodged against her.

The incessant cycle of abuses -- emotional and psychological -- that soon kicked off after Miss

Maira's first Miscarriage took just some years to exacerbate into no-holds-barred physical

battering. Quite too often, the assault was inflicted with the help of sturdy cricket bats.

After marriage, Miss Maira became well-acquainted with Mr. Imran’s erratic, mercurial

temperament. However, she overlooked all of it given the best interests of the sacred bond and its

perseverance hoping that Mr. Imran would overcome his incredibly bad temperament one day.

Unfortunately, tensions only aggravated and the infertility only added stokes to the fire, the result

of which was Miss Mira suffered a heavy toll on psychological and physical abuse and fell into

the grip of PTSD and Battered Syndrome. Mr. Imran's outburst, however, became all the more

frequent, and one day at a social gathering on the eve of New Year night hosted by Imran Tariq,

he attempted to grievously hurt Miss Maira in her bedroom. Exercising her judgment and

foreseeing that if she does not defend herself, she will be once again subjected to grievous hurt,

without any intention to kill him, exercised her right of self-defense and hit Mr. Imran with a

Malt Bottle. Mr. Imran died on spot.

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Submissions

1.Absence of eye-witness an enough ground not to award Capital Punishment

The defense humbly believes that the witness statements are grounded upon assumptions and are

skeptical in nature at best. On the face of it, they are insufficient to establish the case beyond

reasonable doubt against defense as underpinned by honorable Supreme Court in 2012 SCMR

440 SC.1

The honorable court overturned the conviction awarded to the accused by sub-ordinate courts

and he was exonerated. The honorable court reckoned that except for oral arguments of eye-

witnesses, there was nothing on record which could establish the presence of both the

eyewitnesses at the spot and as their presence was doubtful. Thus their testimonies lacked

credence to convict accused on the capital charge.

2. Dissonant Statements of Prosecution Witnesses:

As evident from the Statements recorded under section 161 Cr.P.C, the defense pleads to bring

the attention of honorable court towards discrepancies and contradictions present in statements of

Ismail Darugar and Azam Tariq on the matter that who arrived first at the scene of occurrence.

As per the principle enunciated in 2017 YLRN 28 Lahore High Court, the honorable court

opined since the prosecution witnesses had made dishonest improvements in their statements

before the trial court in order to bring evidence in line, such improvements had created serious

doubts about their veracity and credibility and thus have failed to prove its case beyond shadow

of doubt. The impugned judgment was set aside and accused was acquitted of charge and was

subsequently released.2

1
2012 SCMR 440 SC
2
2017 YLRN 28 Lahore HC
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3. Irrelevance of a piece of Circumstantial Evidence:

A broken vase was allegedly recovered vide recovery memo by police. However, prosecution

witness Ismail Darugar — who claims to have arrived immediately after incident — has only

mentioned about his seeing of lemon malt bottle in the hands of accused. He never mentioned

about a broken vase lying in any proximity to the deceased. Moreover, the opinion of the

serologist pertaining to blood on broken vase was that the sample was ‘defective’. Furthermore,

two different additional blood groups were detected from the sample of broken lemon malt

bottle. Having said that, defense firmly believes that the prosecution is unable to explain the

origin of broken vase or even its relevance to the case at all since chain of evidence is

unsatisfactory and lacks credence to justify award of capital punishment. The defense’s point of

view is corroborated by honorable Supreme Court’s judgment in Hashim Qasim v The State

2017 SCMR 986 where court held that any missing link in the chain of circumstantial evidence

would render it unreliable for recording a conviction on capital charge. The honorable court

further held that the court must be cautious when examining circumstantial evidence when it

appears that investigative agency has nefarious designs in preparation of a case resting on

circumstantial evidence.3

3. Lack of Mens Rea:

There was no mens rea on the part of accused as apparent from the facts of the case. The whole

scenario was unplanned and was unanticipated by the accused since the bottle that was used by

accused was not lethal. As for application of section 302 and 300 PPC, mensrea and actus reus

both elements need to be fulfilled. One of the courts altered the conviction to S.302-B to S. 302-

C when it found that no motive or any previously ill-will existed between the parties occurrence

3
2017 SCMR 986
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at the spur of moment of exchange on fill the language by both the sides without any pre-

meditation.4

4. Accused’s state of Desperation:

The Statements of the prosecution witness complement and corroborate accused’s statement in a

sense that illustrates that accused was in an imploring state and beseeching the deceased.

The excerpt from the statements of Ismail Darugar when he described deceased’s state is

reproduced here for the understanding of court:-

‘please----please—I want an end to this’

As evident from the statement, it is crystal clear that accused was imploring the deceased as

described by accused in her statement and such a position hardly gives an impression that

accused had any preplanned motive to kill the deceased.

5. Battered Syndrome:

The most compelling factor of her exercise of self-defense was Battered women syndrome. The

accused had suffered a cycle of psychological and physical abuse at the hand of her husband —

who himself had a psychological problem as proved by his frequent appointments with the

psychologist — that made her a battered woman as supported by Dr. Irum Hussain’s statement.

Unfortunately, the battered women syndrome has no widespread recognition in Pakistan but is

widely recognized in developed countries like U.S and U.K the courts of which have often given

decisions in favor of battered women.

For instance, in Hawthorne v State of Florida 470 So.2d 770, the District Court of Florida

legitimized the battered women defense and ruled in favor of battered wife.

4
PLD 2008 Islam. 21
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WITNESS PLAN

1. Ismail Darugar’s Significance in case:

Ismail Darugar’s testimony is critical in this case as he is one of principal witness on whose

testimony the prosecution has built up its case. His proximity to the scene of occurrence is

another factor that makes his testimony all the more critical. Furthermore, he was the only

prosecution witness who heard the voices of the couple. As implicated from his statement, he

was the one to arrive immediately after occurrence of incident.

2. Defense’s Strategy to bring out contradictions present in Darugar’s Statement:

Of all the written statements of Prosecution witnesses, the statement of Ismail Darugar is the

shakiest, incongruous and disarticulated one. That said, the written statement of this witness

hangs a big question mark not over his credibility only, but on his capacity as being a good

friend. How could he run away from the scene of occurrence so dispassionately as if the

deceased was a stranger? How could a childhood friend run so coldly? And how could he prefer

Bollywood ambitions over his childhood friend? And even if his ambitions were so dear to him

and he was so obsessed with not getting in spotlight for all the wrong reasons, why would he

change his mind so suddenly and decide to take a chance and become involved in the murder

case by becoming a principal prosecution witness in this case?

His intentions are baffling at best and the aforesaid questions raise serious doubts about his

testimony in a case as sensitive as this one.

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Where his statement is flawed itself, it is also conspicuously confuting the statements of other

witnesses. Therefore, the defense intends to spell out an existing discord between his statement

and statement of complainant before the honorable court so as to question the veracity of this

witness.

3. Cross-examination impact on denouement of case:

The cross-examination grounded on above-mentioned strategy and content will be employed

to uncover the real truth and to help honorable judges understand the underlying ‘disconnect’ in

Mr. Darugar’s statement and its incompatibility with statement of complainant and to question

his character altogether. Consequently, a doubt will be created and the benefit thereof will be

definitely be awarded to accused and will help defense bolster up its case based on

battered-syndrome based self-defense.

4. Maira’s Status as a Witness:

Defense believes Witness Maira Khan is charged for a murder case without considering the

circumstances under which whole the scenario took place. Maira has been suffering domestic

abuse for a long time which made her psychologically ill and patient of a serious disease like

Battered Syndrome. Even her psychiatrist Doctor Iram in her report has submitted that her

disease is an outcome of years of domestic abuse by her husband. Maira Khan in her statement

has explained the whole scenario of the scene which also corroborates with all the facts present

that she was being physically abused by her husband that day too and the only thing she did was

merely the exercise of her right of self-defense under circumstances of the Battered wife

syndrome.

5. Purpose and Impact of Maira’s Examination:

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There are plenty of reasons to bring Maira in the witness bar. Defense believes that she is the one

who suffered the most throughout her marriage life, during this whole scenario and even after the

Trial if the decision resulted unfair. First of all, it is important to unveil the fact that Maira has

been suffering through mental disorder because of the physical abuse by Imran for years and that

Imran was going through a psychological treatment by a psychiatrist as proved by his

appointment cards to the same psychiatrist Maira has been visiting. Even their mutual doctor

believes in her statement that Maira has been suffering through a serious physical abuse that

resulted making her a patient of Battered wife syndrome and her act is justified as a self-defense.

Secondly, it is important to present the fact through Maira’s statement about the thing used by

her to hit Imran, as of all the facts proves that the commodity used was merely a lemon malt

bottle which proves that the Mens Rea was not available as whole the scene was not pre

medicated and her act was unconscious. Thirdly, It is important to ask Maira about the reason

she didn’t end the relationship with Imran because in defense’s point of view as she was

suffering from battered wife syndrome and in this disease wife thinks that the mere reason of all

the present circumstances is only she herself. Lastly, the defense wants Maira to explain the

words exchanged between her and Imran before she hit him because defense to prove that during

their exchange of words Maira was on an imploring state and beseeching the deceased.

Thus, from each of the strategy and questions defense wants to prove the absence of the Mens

rea on behalf of accused to kill her husband and create doubt on all the charges produced by the

prosecution against the accused.