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Petitioner: The State VS Respondent: Abdul Khaliq
Court Name: Lahore High Court Judge(s): Sadiq Mahmud Khurram, Ali Zia Bajwa Title: The State vs Abdul Khaliq Case No.: Murder Reference No.14 of 2020, Criminal Appeal No. 283-J of 2020 Date of Judgment:2022-03-28 Reported As: 2022 LHC 5037 Result: N/A
JUDGMENT
JUDGMENT SADIQ MAHMUD KHURRAM, J. Abdul Khaliq son of Muhammad Hanif (convict) by the learned Additional Sessions Judge, Hasilpur in the case FIR No. 382 of 2019 dated 22.08.2019 registered in respect of an offence under section 302 P.P.C. at the Police Station City Hasilpur , District Bahawalpur for committing the Qatl-i-Amd of Mst. Nasreen Bibi daughter of Taj Muhammad (deceased) and Mst. Naeem Akhtar daughter of Yousaf Ali (deceased). The learned trial court, vide judgment dated 27.11.2020, convicted Abdul Khaliq son of Muhammad Hanif (convict) and sentenced him as infra: Abdul Khaliq son of Muhammad Hanif: Death on two counts under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Mst. Nasreen Bibi daughter of Taj Muhammad (deceased) and Mst. Naeem Akhtar daughter of Yousaf Ali (deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of each of the deceased and in case of default thereof, the convict was directed to further undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead. 2. Feeling aggrieved, Abdul Khaliq son of Muhammad Hanif (convict) lodged Criminal Appeal No.283-J of 2020, though jail assailing his conviction and sentence. The learned trial court submitted Murder Reference No.14 of 2020 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Abdul Khaliq son of Muhammad Hanif. We intend to dispose of the Criminal Appeal No.283-J of 2020 and Murder Reference No.14 of 2020 through this single judgment. 3. Precisely , the necessary facts of the prosecution case, as narrated by Waqas Mahmood (PW-7), the complainant of the case, are as under:- "My sister Naeem Akhtar was married with Abdul Khaliq son of Muhammad Hanif r/o ward NO. 17, Hasikpur in the year 2002 Two children were born during subsistence of marriage namely Arooba Fatima and Arfa Ali who are
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alive. Abdul Khaliq went abroad (Saudi Arabia) two years prior to the occurrence, he returned on Eid-ul-Azha in year 2019. My maternal aunt Mst. Nasreen was living with my sister and my brothe r in law (behnoi) used to quarrel with sister and maternal aunt on issue that my maternal aunt Nasreen purchased a house from the money sent by him from abroad and he insisted to transfer the same in his name. There was alternation (sic) between them from 2/3 days. In the intervening night of 21/22.8.2019 I went to the house of my sister and aunt in Ghareb Mohallah and try to reconcile but he insisted upon to transfer the house in his name. Accused asked us to settle the matter tomorrow . I along with sister , family and aunt put cots in the court yard and slept. At about 3:30 a.m., I wake up on the noise of my sister and put the light on and saw that the accused Abdul Khaliq had a Sairu in his hand. On the noise of me and my sister PWs Wahid Bakhsh and Zahoor came there. Meanwhile accused Abdul Khaliq inflicted the blow of Sairu at the head of Nasreen Bibi which hit on her head and she was lying on the cot. Accused made second blow on the head of my aunt, my sister tried to stop him but the accused made a blow of Sairu at the head of my sister and blood started oozing from her head and she fell on the cot. Accused further hit blows on the head of my sister . Those blows were also hit at the head of my sister . I and PWs tried to catch the accused but he succeeded to escape away . We tried to rescue my sister and maternal aunt but both were succumbed to the injuries. Accused had committed murder of my sister and aunt for not transferring the house in his name Thereafter police came at the place of occurrence. Shamas SI recorded my statement EXh.PM which was read over to me and I put my signature EXh.PM/1. After completing the proceedings, he took the dead bodies to hospital. After post mortem, I received the dead bodies vide receipt EXh.PN and EXh.PP . On 8.9.2019, I delivered two copies of stamp papers to Shamas Din SI who took the same into possession vide recovery memo." 4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court and the accused was sent to face trial. The learned trial court framed the charge against the accused on 27.1 1.2019, to which the accused pleaded not guilty and claimed trial. 5. The prosecution in order to prove its case got statements of as many as thirteen witnesses recorded. The ocular account of the case was furnished by Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8). Muhammad Nasir 829/C (PW-1) stated that on 22.08.2019, Muhammad Mazhar Iqbal 2104/C (PW-10) took six photographs (P-1/1-6) of the dead body which were taken into possession by Shamas Din, S.I. (PW-13). Muhammad Abbas ASI (PW-2) stated that on 22.08.2019, Shamas Din, S.I. (PW-13) handed over to him two sealed parcels said to contain blood stained earth and four envelopes with two sealed parcels bearing the stamp of THQ Hospital, Hasilpur and on 25.08.2019, he handed over the said parcels to Shamas Din, S.I. (PW-13) for their onward transmission to the office of the Punjab Forensic Science Agency , Lahore and further stated that on 27.09.2019, he handed over the Saroo (P-13) and the blood stained clothes of the appellant to Muhammad Boota, 1409/HC (PW-3). The prosecution witness namely Muhammad Boota, 1409/HC (PW-3) stated that on 27.09.2019, Muhammad Abbas ASI (PW-2) handed over to him the Saroo (P-13) and the blood-stained clothes of the appellant and on the same day, he handed over the said articles to Shamas Din, S.I. (PW-13) for their onward transmission to the office of the Punjab Forensic Science Agency , Lahore. Mst. Sajida Parveen 32/LC (PW-4) stated that on 22.08.2019, she escorted the dead bodies of the deceased to the hospital. Abdul Ghafoor 90/C (PW-6) also stated that on 22.08.2019, he escorted the dead bodies of the deceased to the hospital and also received the last worn clothes of the deceased from the Woman Medical Officer. Muhammad Hamza (PW-9) stated that he prepared the scaled site plan of the place of occurrence (Exh.PX). Muhammad Razzaq, ASI (PW-12) stated that on 22.08.2019, he recorded the formal F.I.R (Exh.PY). Naseeb Ahmed, S.I. (PW-11) investigated the case from 15.01.2020 till 29.01.2020 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Shamas Din, S.I. (PW-13) investig ated the case from 22.08.2019 till 16.10.2019, arrested the appellant on 03.09.2019, and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. 6. The prosecution also got Dr.Zoha Arshad (PW-5) examined, who on 22.08.2019, was posted as Woman Medical Officer at THQ hospital Hasilpur and on the same day conducted the postmortem examination of the dead body of Mst. Nasreen Bibi daughter of Taj Muhammad (deceased). Dr.Zoha Arshad (PW-5), on examining the dead body of Mst. Nasreen Bibi daughter of Taj Muhammad (deceased) observed as under:-
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"EXTERNAL INJURIES 1. A large lacerated wound of size 8cm x 4 cm x brain matter coming out from bone present on frontal area of scalp. 2. A large lacerated wound of size 10 cm x 3 cm brain matter coming out from bone present on right parietal area of scalp. 3. A lacerated wound of size about 6cm x 3 cm x brain matter coming out from bone present on the top of mid part of scalp... Probable time that elapsed a. Between injury and death within few minutes b. Between death and post mortem 7/8 hours OPINION After thorough external and internal exam ination of the dead body , I am of the opinion that above described injuries NO.1,2 & 3 are the main cause of death. These injuries lead severe damage to the vital organ (brain) of the body ., These injuries are caused by some blunt weapon, however , various samples from body organs are taken, sealed and sent to the PFSA, Lahore for histopathology and chemical examination. LAB EXPER T REPOR TS Vide Toxicology analysis report from PFSA NO.2019-248315T OX-13994 dated 4.10.2019. Opinion can't be expressed Vide Histopathology analysis report from PFSA NO 2019 248315-P ATH-07172. PATH 14915 dated 4.11.2019 "Histological examination of the heart sections reveals patent coronaries, the myocardial sections reveals no pathological changes. The lung sections reveals vascular congestion and presence of haemorrhages inside alveoli. The Meninges and brain tissues are congested. There is associated haemorrhag ic necrosis of brain tissue with cerebral oedema and presence of blood clots. Histological examination of the hyoid bone reveals intact hyoid bone. No ante mortem injury is seen" FINAL OPINION So in the light of above reports received from PFSA, Lahore, the cause of death is injury to the brain which leads to concussion and damage to brain and skull bonds leading to neurological shock and necrosis and ultimately leads to death. Such type of injuries is usually suf ficient in ordinary course of nature to cause death." On the same day conducted the postmortem examination of the dead body of Mst. Naeem Akhtar daughter of Yousaf Ali (deceased). Dr. Zoha Arshad (PW-5), on examining the dead body of Mst. Naeem Akhtar daughter of Yousaf Ali (deceased) observed as under:- "EXTERNAL INJURIES 1. A large lacerated wound of size 6cm x 3 cm x brain matter coming out from bone present on frontal area of scalp. 2. A large lacerated wound of size 8 cm x 3 cm x brain matter coming out from bone present on mid part of scalp. (blood clots present on both nostrils) OPINION After thorough external and internal exam ination of the dead body , I am of the opinion that above described injuries NO. 1 & 2 are the main cause of death. These injuries lead severe damage to the vital organ (brain) of the body ., These injuries are caused by some blunt weapon, however , various samples from body organs are taken, sealed and sent to the PFSA, Lahore for histopathology and chemical examination. LAB EXPER T REPOR TS Vide Toxicology analysis report from PFSA NO.2019-248315 TOX-13994 dated 4.10.2019. Opinion can't be expressed Vide Histopathology analysis report from PFSA NO.2019-248315-P ATH-07172. P ATH 14977 dated 4.1 1.2019 "Histological examination of the heart sections reveals patent coronaries, the myocardial sections reveals no pathological changes. The lung sections reveals vascular congestion and presence of haemorrhages inside alveoli. The Meninges and brain tissues are congested. There is associated haemorrhag ic necrosis of brain tissue with
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cerebral oedema and presence of blood clots. Histological examination of the hyoid bone reveals intact hyoid bone. No ante mortem injury is seen' FINAL OPINION So in the light of above reports received from PFSA, Lahore, the cause of death is injury to the brain which leads to concussion and damage to brain and skull bonds leading to neurological shock and necrosis and ultimately leads to death. Such type of injuries is usually suf ficient in ordinary course of nature to cause death." 7. On 22.10.2020, the learned Assistant District Public Prosecutor gave up the prosecution witness namely Zahoor Ahmed as unnecessary . On 19.11.2020, the learned Deputy District Public Prosecutor closed the prosecution evidence after tendering in evidence the reports of Punjab Forensic Science Agency , Lahore (Exh. PBB, Exh. PCC, Exh. PDD, Exh.PEE and Exh.PFF). 8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Abdul Khaliq son of Muhammad Hanif under section 342 Cr.P.C. and in answer to the question why this case against you and why the PWs have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant namely Abdul Khaliq son of Muhammad Hanif opted not to get himself examined under section 340(2) Cr.P.C. and did not adduce any evidence in his defence. 9. At the conclusion of the trial, the learned Additional Sessions Judge, Hasilpur convicted and sentenced the appellant as referred to above. 10. The contention of the learned counsel for the appellant precisely is that the whole case is fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible, and relevant evidence. Learned counsel for the appellant further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, is highly improbable. Learned counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also submitted that the recovery of the Saroo (P-13) was full of procedural defects, of no legal worth and value, and was the result of fake proceedings. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence only on suspicion. The learned counsel for the appellant finally submitte d that the prosecution has totally failed to prove the case against the accused beyond the shadow of a doubt. 11. On the other hand, the learned Deputy Prosecutor General along with the learn ed counsel appearing on behalf of the complainant contended that the prosecution had proved its case beyond the shadow of doubt by producing independent witnesses. They further argued that the deceased died as a result of injuries suffered at the hands of the appellant. They further contended that the medical evidence also corrobor ated the statements of Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8). They further argued that the recovery of the Saroo (P-13) from the appellant namely Abdul Khaliq son of Muhammad Hanif also corroborated the ocular account. They further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly , the learned Deputy Prosecutor General and the learned counsel appearing on behalf of the complainant prayed for the rejection of the appeal as lodged by the appellant namely Abdul Khaliq son of Muhammad Hanif. 12. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General, the learned counsel appearing on behalf of the complainant and with their able assistance perused the record and evidence recorded during the trial. 13. The whole prosecution case revolves around the statements of Waqas Mahm ood (PW-7) and Wahid Bakhsh (PW-8), the eyewitnesses of the occurrence. The relationship of the prosecution witness namely Waqas Mahmood (PW-7) with the deceased is on record. The deceased namely Mst. Naeem Akhtar daughter of Yousaf Ali was the sister of Waqas Mahmood (PW-7) and the deceased namely Mst. Nasreen Bibi daughter of Taj Muhammad was the maternal aunt of Waqas Mahmood (PW-7). It is also an admitted aspect of the prosecution case that the prosecution witnesses namely Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8) were indeed not the residents of the place of occurrence or any place near the same. According to the prosec ution witnesses namely Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8), the occurrence took place in Ghareeb Mohallah, whereas the
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prosecution witness namely Waqas Mahmood (PW-7) was the resident of Azizabad Colony , which was at a distance of as much as 04-kilometres from the place of occurrence. Waqas Mahmood (PW-7) during cross- examination stated as under:- "Distance between my house and house of accused is about 4/4 1/2 k.m." The prosecution witness namely Wahid Bakhsh (PW-8) also admitted during cross- examination that he was not the resident of the house where the occurrence took place rather , he resided in his own house, which was at a distance of 7-8 houses away from the house where the occurrence took place. The prosecution witness namely Wahid Bakhsh (PW -8) during cross examination stated as under:- "My house is situated at a distance of 7/8 houses from the house of accused. I know Zahoor Ahmad PW 4/5 months prior to the occurrence. My house is situated at a distance of four kanals from the house of this Zahoor Ahmad PW . House of Zahoor PW is situated at a distance of 1 1/2 kanal from the house of accused Abdul Khaliq." The above-referred portions of the cross-examination of the prosecution witnesses namely Waqas Mahmood (PW- 7) and Wahid Bakhsh (PW-8) reflect that the prosecution witnesses namely Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8) (PW-10) can be validly termed as "chance witnesses" and therefore were under a bounden duty to provide a convincing reason for their presence at the place of occurrence, at the time of occurrence and were also under a duty to prove their presence by producing some physical proof of the same. We have noted with grave concern that the prosecution witnesses, namely Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8), failed miserably to provide any consistent evide nce as to the reason for their arrival at the place of occurrence and their presence at the place of occurrence, when the same was taking place on the night of 22.08.2019 at about 03:30 a.m. According to the statement of the prosecution witness namely Waqas Mahmood (PW-7), the complainant of the case, the reason for him going to the place of occurrence was that two days before the occurrence, an altercation had taken place between the deceased namely Mst. Naeem Akhtar , the sister of Waqas Mahmood (PW- 7) and the appellant over the transfer of the house in the name of the appellant and therefore, the prosecution witness namely Waqas Mahmood (PW-7) had gone to the house of his deceased sister namely Mst. Naeem Akhtar to resolve the dispute between the spouses. A dispassionate analysis of the prosecution evidence reveals that the prosecution witness namely Waqas Mahmood (PW-7) failed to prove the stated reason for him to have gone to the place of occurrence. Waqas Mahmood (PW-7) in his statement before the learned trial court, gave the reason for his going to the house of Mst. Naeem Akhtar , deceased, as under:- "There was alternation between them from 2/3 days. In the intervening night of 21/22.8.2019 I went to the house of my sister and aunt in Ghareb Mohallah and try to reconcile but he insisted upon to transfer the house in his name." (emphasis supplied) Contrary to the claim of the prosecution witness namely Waqas Mahmood (PW-7) that due to an altercation between the appellant and Mst. Naeem Akhtar two days prior to the occurrence , he had gone to the matrimonial house of Mst. Naeem Akhtar to resolve the matter , the other prosecution witness namely Wahid Bakhsh (PW-8) stated that after the occurrence, the prosecution witness namely Waqas Mahmood (PW-7) told him that the quarrel between Mst. Naeem Akhtar (deceased) and the appellant had taken place two years before the occurrence. The prosecution witness namely W ahid Bakhsh (PW -8) during cross examination, stated as under:- "Waqas told me that the accused and his wife quarreled two years ago before the occurrence and the complainant compromised the matter ." (emphasis supplied) The relevancy of the above referred statement of the prosecution witness namely Wahid Bakhsh (PW-8) is all the more significant for the fact that the above-mentioned fact that the altercation between Mst. Naeem Akhtar (deceased) and the appellant had taken place two years ago the occurrence was told to the prosecution witness namely Wahid Bakhsh (PW-8) by the prosecution witness namely Waqas Mahmo od (PW-7) after the occurrence himself and had the argument between Mst. Naeem Akhtar (deceased) and the appellant had taken place two/three days before the occurrence, as suggested by prosecution witness namely Waqas Mahmood (PW-7), then the said fact would have been told by the prosecution witness namely Waqas Mahmood (PW-7) to the prosecution witness namely Wahid Bakhsh (PW-8) however , it was not, fully denuding the false reason given by the prosecution witness namely W aqas Mahmood (PW -7) for his arrival at the place of occurrence.
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14. We have also noted that the prosecu tion witness namely Waqas Mahmood (PW-7), not only could not prove the reason for his arrival at the place of occurrence, prior to the occurrence but also failed to prove that he had woken up prior to the occurrence, which enabled him to witness the same. According to the prosecution witness namely Waqas Mahmood (PW-7), he was sleeping before the occurrence and woke up due to the argument taking place between Mst. Naeem Akhtar (deceased) and the appellant. The prosecution witness namely Waqas Mahmood (PW -7) in his statement before learned trial court claimed as under:- "I along with sister , family and aunt put cots in the court yard and slept. At about 3:30 a.m., I wake up on the noise of my sister and put the light on and saw that the accused Abdul Khaliq had a Sairu in his hand." (emphasis supplied) Contrary to the claim of the prosecution witness namely Waqas Mahmood (PW-7), that he was sleeping before the occurrence and woke up due to the argument taking place between Mst. Naeem Akhtar (deceased) and the appellant, the prosecution witness namely Wahid Bakhsh (PW-8), stated that when he entered the house where the occurrence was taking place, after being attracted there due to the hue and cry, he saw that Mst. Naeem Akhtar (deceased) was sleeping . The prosecution witness namely Wahid Bakhsh (PW-8) during his cross examin ation, stated as under:- "Accused threatened us left (sic) the house otherwise he will hit us with Sairu. Despite that we remained standing inside the house. Five cots were placed in the courtyard. At that time, Waqas complainant & accused Abdul Khaliq were awakened while Naeem Akhtar was lying on the cot. Waqas complainant and accused were awakened while the remaining were lying on their cots. The complainant was standing in the Warranda When we entered into the house of accused, the bulb was already on. The button of bulb was inside the Warranda. When accused threatened us that he would hit us, he remained standing at his place when we exchanged hot words with the accused, Naeem Akhtar deceased remained sleeping. I have not heard the accused and his wife quarreling before the occurrence." (emphasis supplied) The above referred portion of the cross examination of the prosecution witness namely Wahid Bakhsh (PW-8) lays bare the false claim of the prosecution witness namely Waqas Mahmood (PW-7) that he woke up after hearing the altercation between Mst. Naeem Akhtar (deceased) and the appellant. According to the statement of the prosecution witness namely Wahid Bakhsh (PW-8), when he and Zahoor Ahmad (given up prosecution witness) entered the house where the occurrence was taking place, even at that time Mst. Naeem Akhtar (deceased) was sleeping . It is apparent that, even at the time when the prosecution witnesses namely Wahid Bakhsh (PW-8) and Zahoor Ahmad (given up prosecution witness) entered the house where the occurrence was taking place, Mst. Naeem Akhtar (deceased) was sleeping and therefore, the statement of the prosecution witness namely Waqas Mahmood (PW-7) cannot be believed that he woke up after hearing the quarrel between Mst. Naeem Akhtar (deceased) and the appellant and thereafter , saw the occurrence. Furthermore , according to the prosecution evidence the dead body of Mst. Naeem Akhtar (deceased) was found present on the same cot where she had been sleeping though it had been claimed by the prosecution witness namely Waqas Mahmood (PW-7) that when the appellant hit Mst. Nasreen Bibi (deceased), Mst. Naeem Akhtar (deceased) proceeded from her cot towards the appellant to protect Mst. Naeem Akhtar (deceased). Had Mst. Naeem Akhtar (deceased) proceeded from her cot towards the appellant to protect Mst. Naeem Akhtar (deceased) then her dead body would have not been found present on the cot where she had been sleeping, especially in the circumstances that there had been placed two other cots between the cots of Mst. Nasreen Bibi (deceased) and Mst. Naeem Akhtar (deceased). This fact also proves that the prosecution witness namely Waqas Mahmood (PW-7) had not seen the occurrence otherwise he would not have deposed as above or would have deposed in a manner which would have been consistent with the other circumstances. In this manner , the prosecution witness namely Waqas Mahmood (PW-7), firstly could not prove the reason for his arrival at the place of occurrence and secondly also failed to prove that he had woken up on the night of occurrence prior to the occurrence, which enabled him to witness the…
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