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Petitioner: The State, Khateeb Hussain, Zafar Hussain VS Respondent: Khateeb Hussain, The State JUDGMENT
Court Name: Lahore High Court Judge(s): Sadiq Mahmud Khurram, Muhammad Amjad Rafiq Title:The State, Khateeb Hussain, Zafar Hussain vs Khateeb Hussain, The State
JUDGMENT
Reported As: 2023 LHC 1958 Result: Capital Sentence Reference answered in Affirmative Judgment JUDGMENT SADIQ MAHMUD KHURRAM, J.- Khateeb Hussain son of Muhammad Hussain and Zafar Hussain son of Ghulam Hussain(convicts) were tried by the learned Judge, Anti-Terrorism Court ,Bahawalpur Division, Bahawalpur, in case F.I.R. No. 142 of 2019 dated 20.03.2019 registered at Police Station Civil Lines District Bahawalpur in respect of offences under sections 302, 353 and 109 P.P.C. and under sections 7, 11-W and 21-I of the Anti-terrorism Act, 1997 for committing the Qatl-i-Amd of Khalid Hameed son of Muhammad Sharif (deceased). The learned trial court vide judgment dated 16.01.2021 convicted Khateeb Hussain son of Muhammad Hussain and Zafar Hussain son of Ghulam Hussain (convicts) and sentenced them as under:- Khateeb Hussain son of Muhammad Hussain: i) Death under section 302(b) P.P.C.as Tazir for committing Qatl-i-Amd of Khalid Hameed son of Muhammad Sharif (deceased) and directed to pay Rs.500,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased and in case of default thereof, the convict was directed to undergo further six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead. ii) Death under section 7 (a) of the Anti-terrorism Act, 1997 and directed to pay fine of Rs.200,000/- and in case of default thereof, the convict was directed to undergo further six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead.
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iii) Rigorous Imprisonment for two years under section 353 P.P.C. and directed to pay fine of Rs.50,000/- and in case of default thereof, the convict was directed to undergo further six months of simple imprisonment. iv) Rigorous Imprisonment for two years under section 7 (h) of the Anti-terrorism Act, 1997 and directed to pay fine of Rs.50,000/- and in case of default thereof, the convict was directed to undergo further six months of simple imprisonment. Zafar Hussain son of Ghulam Hussain: i) Rigorous Imprisonment for seven years under section 21 (i) read with section 7 (a) of the Anti- terrorism Act, 1997 and also read with sections 302 and 118 P.P.C. and directed to pay fine of Rs.50,000/- and in case of default thereof, the convict was directed to undergo further six months of simple imprisonment. ii) Rigorous Imprisonment for five years under section 11-W of the Anti-terrorism Act, 1997, and directed to pay fine of Rs.50,000/- and in case of default thereof, the convict was directed to undergo further six months of simple imprisonment The convicts were extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898 by the learned trial court. All the sentences awarded to the convicts were ordered to run concurrently by the learned trial court. 2. Feeling aggrieved, Khateeb Hussain son of Muhammad Hussain (convict) lodged Criminal Appeal No. 43-ATA of 2021 assailing his conviction and sentences. Feeling aggrieved, Zafar Hussain son of Ghulam Hussain (convict) lodged Criminal Appeal No. 34-ATA of 2021 assailing his conviction and sentences. The learned trial court submitted Reference under section 374 Cr.P.C. read with section 30(2) of the Anti-terrorism Act, 1997, which has been numbered as Capital Sentence Reference No. 02 of 2021 for confirmation or otherwise of the death sentences awarded to Khateeb Hussain son of Muhammad Hussain (appellant). We intend to dispose of the Criminal Appeal No. 43-ATA of 2021, Criminal Appeal No. 34-ATA of 2021 and the Capital Sentence Reference No.02 of 2021 through this single judgment. 3. Precisely, the facts necessary, as stated by Waleed Khan (PW-12), the complainant of the case, are as under:- "Stated that on 20.3.2019, I alongwith Adnan Mustafa and Ghulam Yasin came to S.E. College, Bahawalpur to drop my father as routine. My father Khalid Hameed was Associate Professor in English Department, S.E College and was Vice Principal of the College. We parked our vehicle at parking at 8:40 a.m. My father was going towards his office, meanwhile we witnessed accused Khateeb Hussain, present in Court, was present while taking shield of a pillar. He emerged and gave a blow of iron-lock on the head of my father and then repeatedly gave 'churi' blows in the eye, on the eye, cheek, neck and shoulder of my father. My father fell down. We made hue and cry, many students and other persons attracted there. Khateeb Hussain accused present in Court, made alarm that Welcome Party scheduled to be held on 21.3.2019 at S.E. College, Bahawalpur was for promoting vulgarity and Professor Khalid Hameed, Organizer of said Welcome Party, due to which, he (Khateeb Hussain) had murdered him. Accused Khateeb Hussain tried to flee away from the spot, but we alongwith other students of the College caught hold of him with blood stained 'churi'. We handled my father, but he succumbed to the injuries at the spot. We shifted my father to the Hospital in Vehicle. Then I came back to college where police, Rescue 1122 and PFSA Team were already arrived. I presented application Exh.PE to police whereon F.I.R of instant case was registered. Accused Khateeb Hussain murdered my father in broad day light, due to which fear and panic spread amongst students and teachers. Police made formal arrest of accused. Thereafter, at the time of postmortem examination, I myself, Adnan Mustafa and Ghulam Yasin identified dead body of my father. After postmortem examination, Medical Officer handed over last worn clothes of my father comprising blood stained off-white shirt P1, blood stained off-white pant P2, blood
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stained yellow coloured cot P3, brown belt blood stained P4 to Muhammad Imran Constable who further handed over those to Investigating Officer, I.O prepared sealed parcel of said articles and took those into possession vide recovery memo Exh.PB, attested by me and Adnan Mustafa PW. I also handed over to Investigating Officer my blood stained black coloured 'qameez, P12 black shalwar P13, off white cot P14, all blood stained due to handling of my father and caught- holding of accused. I.O prepared sealed parcel and took into possession vide recovery memo Exh.PJ, attested by me and PWS. I also took into possession chekdar shirt blood stained P15 and black coloured pant P16 of Adnan Mustafa PW and same were also blood stained due to handling of my father and caught holding of accused Khateeb Hussain. I.O prepared sealed parcel of said clothes and took into possession vide recovery memo Exh.PK, attested by me and PWs. Similarly I.O also took into possession clothes of Ghulam Yasin PW comprising Mehndi coloured 'qameez' P17 and shalwar P18 and same were also blood stained due to handling of my father and caught holding of accused Khateeb Hussain. I.O prepared sealed parcel of said clothes and took into possession vide recovery memo Exh.PM, attested by me and PWs. I.O recorded my statements u/s 161 Cr.P.C in this regard. On 23.3.2019, I myself, Adnan Mustafa and Ghulam Yasin joined investigation of this case. Muhammad Imran T-S.I, Incharge I.T Centre DPO office, Bahawalpur checked the Mobile phone of Khateeb Hussain accused present in court and showed us WhatsApp messages conversated between him and accused Zafar Hussain, present in Court, wherein Zafar Hussain accused, present in Court, was seen instigating Khateeb Hussain for murder of my father. Muhammad Imran T-S.I also prepared 03 hard copy prints P10/1-3 of said messages and took into possession vide recovery memo Exh.PN, attested by Adnan Mustafa and Ghulam Yasin PWS and I got recorded my statement u/s 161 Cr.P.C in this regard wherein I made request to police to join accused Zafar Hussain into investigation as a culprit with Khateeb Hussain. On 30.3.2019, I myself, Adnan Mustafa and Ghulam Yasin joined investigation of this case and I produced USB P18, containing Videos of accused Khateeb Hussain wherein he confessed his guilt of committing murder of my father. I.O took said USB P18/, into possession vide recovery memo Exh.PQ, after making sealed parcel, attested by me and PWS. I.O recorded my statement u/s 161 Cr.P.C in this regard." 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 wherein the appellants namely Khateeb Hussain son of Muhammad Hussain and Zafar Hussain son of Ghulam Hussain were sent to face trial. The learned trial court framed the charge against the accused on 07.11.2019 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 sixteen witnesses recorded. The ocular account of the case was furnished by Waleed Khan (PW-12), Adnan Mustafa (PW-13) and Muhammad Waseem Nawaz (PW-14). Syed Gull Hussain Patwari (PW-1) prepared the scaled site plan of the place of occurrence (Exh.PA). Muhammad Imran (PW-2) stated that on 20.03.2019, the appellant namely Khateeb Hussain was detained by the witnesses along with the Churri. Fahad Mustafa (PW-3) stated that on 20.03.2019, he had given first aid to the appellant namely Khateeb Hussain. Muhammad Imran 1160/C (PW-4) stated that on 20.03.2019 he escorted the dead body of the deceased to the hospital and received the last worn clothes of the deceased from the Medical Officer after the post mortem examination of the dead body of the deceased. Abdul Jabbar 2176/C (PW-5) stated that on 23.03.2019, the appellant namely Zafar Hussain was arrested and at the time of his arrest, the mobile phone device (P-5) having two Subscriber Identity Module cards (P-6 and P-7) were recovered from his possession. Aamir Lal, T/SI (PW-7) stated that on 20.03.2019, he got lodged the formal F.I.R (Exh.PD). Syed Muhammad Imran Naqvi, SI (PW-9) stated that on 21.03.2019, Muhammad Ajmal, Inspector (PW-15) handed over to him the Mobile
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Phone Device recovered from the appellant namely Khateeb Hussain for analysis and he also prepared three pages (P-10/1-3) relating to the screenshots of the conversation between the appellants using WhatsApp Messenger. Muhammad Nawaz 1572/HC (PW-10) stated that on 20.03.2019, Muhammad Ajmal, Inspector (PW-15) handed over to him one sealed parcel said to contain blood stained cotton and one sealed parcel said to contain blood stained Churri and eleven other sealed parcels and on 21.03.2019, the Investigating Officer of the case , handed over to him one sealed parcel said to contain a blood stained chain lock and on the same day, he handed over all the said parcels to the Investigating Officer of the case for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Muhammad Nawaz 1572/HC (PW-10) further stated that on 23.03.2019, the Investigating Officer of the case handed over to him three sealed parcels said to contain mobile phone devices and on 25.03.2019, he handed over the said parcels to Muhammad Iqbal, Inspector (PW-6) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore and on 30.03.2019, the Investigating Officer of the case handed over to him another sealed parcel said to contain a mobile phone device which on 02.04.2019, he handed over to the Investigating Officer of the case for its onward transmission to the office of the Punjab Forensic Science Agency, Lahore and on 09.04.2019, he received the reports of the Punjab Forensic Science Agency, Lahore along with two Digital Versatile Discs (P-11/1-2) which he handed over to the Investigating Officer of the case. Muhammad Akhtar, SI (PW-8) investigated the case on 20.03.2019 and detailed the facts of his investigation in his statement before the learned trial court. Muhammad Ajmal, Inspector (PW-15) investigated the case from 20.03.2019 till 10.04.2019, arrested the appellant namely Khateeb Hussain on 20.03.2019 and arrested the appellant namely Zafar Hussain on 23.03.2019 and detailed the facts of his investigation in his statement before the learned trial court. 6. The prosecution also got Dr. Ahsan Firdous (PW-11) examined, who on 20.03.2019 was posted as Senior Demonstrator, Forensic Medicine Qaid-e-Azam Medical College, Bahawalpur and on the same day, conducted the post-mortem examination of the dead body of Khalid Hameed son of Muhammad Sharif (deceased). Dr. Ahsan Firdous (PW-11), on examining the dead body of Khalid Hameed son of Muhammad Sharif (deceased) observed as under:- " Injury No.1 An incised wound measuring 6.5 x1 cm x bone exposed was present on the middle of the forehead 03 cm above the root of nose. This wound was linear in shape. Injury No.2 A ragged shape lacerated wound having a bruise with abrasion at its upper end was present at left side of forehead 1 cm above left eye brow measuring 04 cm x 02 cm x underlying bone exposed and fractured. Injury No.3 (a) A linear shape incised wound measuring 3 cm x 0.5 cm x underlying bone not exposed was present on left side of cheek 03 cm below left eye. Injury No.3 (b) An incised wound linear in shape was present on left side of cheek 2 cm below injury No.03(a) measuring 4.5 cm x 0.8 cm x underlying muscle cut. Injury No.4 A linear shape Incised wound measuring 3 cm x 0.5 cm x underlying bone not exposed was present on right side of head 01 cm above the right ear. Injury No.5 A linear shape incised wound measuring 13 cm x 02 cm x underlying bone having chip fracture at the upper end of wound, the wound was located 05 cm behind the right ear and extending up to vertex of skull on right side.
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Injury No.6 A spindle shaped incised wound was present on right side of cheek 04 cm below right eye measuring 1.5 cm x 0.5 cm x underlying bone not exposed. Injury No.7 Lunar shaped incised wound measuring 2 cm x 0.7 cm x underlying muscle cut was present 02 cm below and behind right ear. Injury No.8 (a) A linear shaped incised wound measuring 5 cm x 0.2 cm was present on right side of neck underlying muscle not damaged. The injury was located 5 cm below and behind right ear pinna. Injury No.8 (b) An incised wound 3 cm x 0.2 cm x underlying muscle not damaged was present on right side of neck 2 cm below injury No. 8(a). Injury No.9 (a) An oblique linear shaped incised wound measuring 4 cm x 1.5 cm was present at nap of neck 6 cm below occiput. The underlying muscle were cut with damage to the underlying blood vessels. Injury No.9 (b) A lunar shaped incised wound measuring 3 cm x 1 cm x underlying muscle cut was on the back of neck 02 cm below and away from the Injury No.9(a). Injury No.9 (c) A linear shaped incised wound running obliquely 1.5 cm below Injury No.9(b) measuring 2.5cm x 1 cm x underlying muscle cut on the right side of neck at its posterior aspect. Injury No.10 A linear shaped incised wound measuring 1.4cm x 0.3cm was present on front of neck horizontal in direction at the level of thyroid cartilage. Injury No.11 An incised wound measuring 1 cm x 0.3 cm x underlying muscle not damaged was present on middle of forearm at its posterior aspect 7 cm above right wrist joint. Injury No.12 An incised wound measuring 3 cm x 0.5 cm x underlying muscle not damaged was present at right shoulder 4 cm medial and backward to right acromian. Injury No.13 Right eye was punctured and depressed on its medial aspect with camaged to the cornea. Clotted blood was present in the right eye-ball. VI-REMARKS BY MEDICAL OFFICER After thorough external and internal postmortem examination, I was of the opinion that Injury No.1, 3, 5 and 9 have caused damaged to the blood vessels and excessive blood loss whereas Injury No.2 has caused damaged to meninges, cranial heamorrhage (sic) and neurogenic shock. Therefore, Injury No.1,3,5 and 9 and Injury No.2 have collectively caused death in this case. Such type of injuries were sufficient to cause death in ordinary course of nature. All the injuries were ante mortem in nature. Injury No.1, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 were caused by sharp-edged weapon while injury No.2 and 13 were caused by blunt object. The probable time that elapsed between injury and death was less than 15 minutes and between death and postmortem examination within 03 hours." The prosecution also got Dr. Ahmad Adnan (PW-16) examined who on 24.03.2019 was posted as Medical Officer BV hospital, Bahawalpur and on the same day had examined the appellant namely Khateeb Hussain and observed the presence of an incised wound on the ring finger of the right hand and a lacerated wound present on the left thumb of the appellant namely Khateeb Hussain and issued the Medico Legal Examination Certificate (Exh.PFF/1).
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7. On 23.12.2020, the learned Deputy Prosecutor General gave up the prosecution witnesses namely Ghulam Yaseen, Muhammad Ismail 2143/HC, Muhammad Afzal Abid, Abdul Nasir, Muhammad Wasif, Farhan Rasool, Nasir Zia and Wali Muhammad as being unnecessary and closed the prosecution evidence after tendering in evidence the reports of the Punjab Forensic Science Agency, Lahore (Exh.PGG, Exh.PHH, Exh.PJJ and Exh.PKK) and one Digital Versatile Disc (P-37). 8. After the closure of prosecution evidence, the learned trial court examined the appellants namely Khateeb Hussain son of Muhammad Hussain and Zafar Hussain son of Ghulam Hussain under section 342 Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, the appellants namely Khateeb Hussain son of Muhammad Hussain and Zafar Hussain son of Ghulam Hussain replied that they were innocent and had been falsely involved in the case due to suspicion. The appellants namely Khateeb Hussain son of Muhammad Hussain and Zafar Hussain son of Ghulam Hussain further stated that they had not committed any offence and were not involved in the occurrence in any manner. The appellants namely Khateeb Hussain son of Muhammad Hussain and Zafar Hussain son of Ghulam Hussain opted not to get themselves examined under section 340(2) Cr.P.C. however, the appellant namely Zafar Hussain got Shahid Aziz (DW-1) examined in his defence. 9. On the conclusion of the trial, the learned Judge, Anti-Terrorism Court, Bahawalpur Division, Bahawalpur, convicted and sentenced the appellants as referred to above. 10. The contention of the learned counsels for the appellants precisely is that the whole case is fabricated and false. The learned counsels for the appellants submitted that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. The learned counsels for the appellants further contended that the statements of prosecution witnesses were not worthy of any reliance. The learned counsels for the appellants also submitted that the appellants had no connection with the occurrence. The learned counsels for the appellants also argued that the recoveries were full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsels for the appellants finally submitted that the prosecution has totally failed to prove the case against the appellants beyond the shadow of a doubt. 11. On the other hand, the learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant of the case contended that the prosecution has proved its case beyond the shadow of any uncertainty by producing independent witnesses. The learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant of the case further argued that the appellant namely Khateeb Hussain was responsible for committing the Qatl-i-Amd of the deceased, whereas the appellant namely Zafar Hussain was responsible for not only instigating the said murder but also glorifying the same. The learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant of the case further argued that the recoveries from the appellants also corroborated the prosecution account. The learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant of the case contended that there was no occasion for the prosecution witnesses to substitute the real offenders with the innocent in this case. Lastly, the learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant of the case prayed for the rejection of appeals. 12. We have heard the learned counsels for the appellants, the learned Deputy Prosecutor General, the learned counsel appearing on behalf of the complainant of the case and with their assistance perused the record and evidence recorded during the trial. 13. In the first instance, we would like to discuss the prosecution case with regard to the appellant namely Khateeb Hussain son of Muhammad Hussain (the appellant in Criminal Appeal No. 43 ATA of 2021). In the instant unfortunate incident, Khalid Hameed, Assistant Professor as well as the Vice
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Principal, the Government Sadiq Egerton College, Bahawalpur, lost his life on the morning of 20.03.2019 at about 08.40 a.m before the teaching process had to start in the institution. The deceased namely Khalid Hameed, Assistant Professor as well as the Vice Principal, the Government Sadiq Egerton College, Bahawalpur suffered from as many as fifteen incised wounds and two blunt traumas on his body during the incident and lost his life (Dr. Ahsan Firdous (PW-11), who conducted the post-mortem examination of the dead body of Khalid Hameed, though numbered the injuries observed on the dead body of the deceased as injury No.1 to injury No.13, however, opined that injury No.3 was actually two different injuries and injury No.8 was also two separate injuries, whereas the injury No. 9 was actually three different injuries). The prosecution in order to prove the ocular account, got Waleed Khan (PW-12), Adnan Mustafa (PW-13) and Muhammad Waseem Nawaz (PW-14) examined. The prosecution witnesses namely Waleed Khan (PW-12) and Adnan Mustafa (PW-13) were related to the deceased. The deceased namely Khalid Hameed was the father of the prosecution witness namely Waleed Khan (PW-12) and the brother in-law of the prosecution witness namely Adnan Mustafa (PW-13). It is also a fact that the the other prosecution witness namely Muhammad Waseem Nawaz (PW-14) was performing his duties as an Associate Professor, the Government Sadiq Egerton College, Bahawalpur, the same institution inside which Khalid Hameed (deceased) was murdered. The prosecution witnesses namely Waleed Khan (PW- 12), Adnan Mustafa (PW-13) and Muhammad Waseem Nawaz (PW-14) explained their presence at the place of occurrence, at the time of occurrence with consistence. We have noted that the prosecution witnesses namely Waleed Khan (PW-12), Adnan Mustafa (PW-13) and Muhammad Waseem Nawaz (PW-14), in a very natural and forthright manner, narrated the occurrence and gave each and every detail of the same. It is also an admitted fact that the prosecution witnesses namely Waleed Khan (PW-12), Adnan Mustafa (PW-13) and Muhammad Waseem Nawaz (PW-14) had no previous enmity with the appellant namely Khateeb Hussain and during the whole course of trial not even a suggestion was made that there existed any enmity of the appellant namely Khateeb Hussain with the prosecution witnesses namely Waleed Khan (PW-12), Adnan Mustafa (PW-13) and Muhammad Waseem Nawaz (PW 14), which could have motivated the prosecution witnesses namely Waleed Khan (PW-12), Adnan Mustafa (PW-13) and Muhammad Waseem Nawaz (PW-14), to depose against the appellant namely Khateeb Hussain. In this state of things, when the prosecution witnesses namely Waleed Khan (PW 12), Adnan Mustafa (PW-13) and Muhammad Waseem Nawaz (PW-14) had provenly no enmity with the appellant namely Khateeb Hussain to involve him in the occurrence without any reason, then the prosecution witnesses namely Waleed Khan (PW-12), Adnan Mustafa (PW-13) and Muhammad Waseem Nawaz (PW-14) can be considered as independent witnesses. Furthermore, during the course of cross-examination of the prosecution witnesses namely Waleed Khan (PW-12), Adnan Mustafa (PW-13) and Muhammad Waseem Nawaz (PW-14), the sequence of the arrival of the prosecution witnesses at the place of occurrence was probed and all the facts necessary to prove that the prosecution witnesses namely Waleed Khan (PW 12), Adnan Mustafa (PW-13) and Muhammad Waseem Nawaz (PW-14) were present at the place of occurrence and also witnessed the same were brought on record and proved beyond doubt. It was stated by the prosecution witnesses namely Waleed Khan (PW-12) and Adnan Mustafa (PW-13), that on the day of occurrence i.e 20.03.2019 at 8.40 a.m, they arrived at the Government Sadiq Egerton College,…
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