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Official Citation: 2024 PCRLJ 1212
Court / Jurisdiction: Lahore High Court
Year of Decision: 2022
Decision Date: 2022-12-08
Parties: Khalid Mehmood vs State
Ruling Summary: This decision was rendered by the Lahore High Court on 2022-12-08, officially reported as 2024 PCRLJ 1212. In this matter between Khalid Mehmood and State, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024 PCRLJ 1212
Court Name: Lahore High Court Judge(s): Sadaqat Ali Khan, Ch. Abdul Aziz Title: Khalid Mehmood vs State Case No.: Crl. A. No. 253 & M.R. No. 16 of 2019 Date of Judgment:2022-12-08 Reported As: PLJ 2024 Cr.C. 489, 2024 PCRLJ 1212 Result: Appeal dismissed
JUDGMENT
JUDGMENT Ch. Abdul Aziz, J. In a trial held in case FIR No. 53/2018 dated 23.05.2018 registered under Sections 302,324 & 311 of the Pakistan Penal Code, 1860 (hereinafter referred to as, P.P.C.) at Police Station Bahtar, learned Additional Sessions Judge Fateh Jang Attock vide judgment dated 24.01.2019 proceeded to convict and sentence Khalid Mehmood (appellant) in the following terms:- (i) Under Section 302(a), P.P.C. to suffer death sentence as Qisas on three counts for committing qatl-i-amd of Tasleem Bibi, Fehmeeda Bibi and Uzma Bibi. He was also directed to pay Rs. 2,50,000/-to each of the legal heirs of afore-mentioned deceased-ladies under Section 544-A of the Code of Criminal Procedure, 1898. The compensation was ordered to be recovered from the appellant as arrears of land revenue and in default whereof to suffer simple imprisonment for 06- months. (ii) Under Section 324. P.P.C. to suffer rigorous imprisonment for 10-years with the direction to pay Rs. 100,000/-to be paid to Abida Bibi (injured). (iii) Under Section 337-F(iv), P.P.C. to suffer rigorous imprisonment for 05-years with the direction to pay Daman of Rs. 50,000/-payable to Abida Bibi (injured/PW). Aggrieved by his convictions and sentences, the appellant filed Criminal Appeal No. 253 of 2019 through jail superintendent, whereas trial Court sent reference under Section 374 the Code of Criminal Procedure, 1898 (hereinafter referred to as, Cr.P.C.). which was numbered as Murder Reference No. 16 of 2019 for the confirmation or otherwise of death sentence awarded to Khalid Mehmood (convict). Both these matters are being decided through this single judgment on account of their inter se connection.
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2. Succinctly stated the facts of the prosecution case as unveiled by Darya Khan (PW.5) in FIR (Exh.PD) are to the effect that he is resident of Humak and serving in Education Department; that his mother-in-law, namely Waris Jan was patient of paralysis for the last many years and was residing with her daughter Abida Bibi, wife of Muhammad Riasat (PW.7); that on the evening of 22.05.2018 he along with his wife Fehmeeda Bibi went to the house of Muhammad Riasat in order to see Waris Jan; that Mst. Tasleem Bibi and Uzma Bibi also arrived there for a night stay in the house of Waris Jan and till late hours, they remained busy in gossips; that he and Muhammad Riasat went in one room for sleep, whereas ladies remained in the other room; that at Fajjar prayer time, they heard the reports of fire shots coming from the other room; that he and Riasat rushed towards that room and saw Khalid Mehmood (appellant) while recklessly firing at the ladies; that due to the shots so fired by the accused the ladies, namely, Uzma Bibi, Tasleem Bibi, Fehmeeda Bibi and Abida Bibi received injuries and the former three took their last breath at the spot, whereas Abida Bibi PW was taken to CMH, Attock in precarious injured condition; that he and other PWs made efforts to apprehend the assailant, who also attempted to take their lives but fortunately no shot could be fired as the bullet missed. The motive behind the occurrence was stated to be the annoyance of Khalid Mehmood (appellant) which he nourished from the proposed marriage of Mehnaz Begum, the daughter of Tasleem Bibi (deceased) with one Sarfraz. 3. After receiving the information about the crime, Lehrasib Ali SI (PW.13) reached the spot where he recorded the statement (Exh.PM) of Darya Khan (PW.5), inspected the corpses, drafted applications (Exh.PN, Exh.PO & Exh.PQ) for autopsy of the three deceased-ladies and prepared inquest reports (Exh.PR, Exh.PS & Exh.PT). He entrusted Nuzhat Shaheen 2385/LC the task for shifting the dead bodies to hospital for postmortem examination. During spot inspection, he secured blood through cotton from the places where the victims fell after receipt of fire-arm injuries, collected five crime empties (P.2/1-5) and took into possession the energy saver bulb vide memos. Exh.PA, Exh.PB & Exh.PC. He arrested Khalid Mehmood (appellant) on 01.06.2018, who during interrogation made disclosure and in pursuance thereof led to the recovery of pistol (P.3) which was taken into possession vide memo. Exh.PE. He recorded the statements of the relevant PWs under Section 161, Cr.P.C. and after complying with all the codal formalities submitted report under Section 173, Cr.P.C. 4. At the time of framing charge i.e. on 15.11.2018 the appellant pleaded guilty under Section 265-E, Cr.P.C., however the learned trial Court opted to summon the prosecution evidence in terms of Section 265-F(1), Cr.P.C. and in pursuance thereof 13-PWs were produced, out of whom Dr. Marium Jalil (PW.10) & Dr. Sara Asad (PW.11) furnished the medical evidence, Darya Khan (PW.5), Abida Bibi (PW.6) and Risat Ali (PW.7) narrated the ocular account and Lehrasib Ali SI (PW.13) is the Investigating Officer. The remaining PWs, more or less were formal in nature. 5. On 23.05.2018 Dr. Marium Jalil (PW.1) conducted the autopsy of Tasleem Bibi, Fehmeeda Bibi and Uzma Bibi and noted the injuries which are mentioned hereunder:- (1) Tasleem Bibi 1. A fire-arm lacerated wound measuring 1.5 cm x 1 cm x ingoing; margins inverted, surrounding area blackening; present at medial aspect of left arm; 10 cm from tip of shoulder joint. It is entry wound. 2. A fire-arm lacerated wound measuring 1.0 cm x 1.5 cm x outgoing everted; surrounding area clear; present at lateral aspect of axilla; 10 cm from tip of shoulder joint. It is exit wound. (Injury Nos. 1 & 2 corresponding with one and another). 3. A fire-arm lacerated wound measuring 2.0 cm x 1 cm x ingoing; margins inverted; surrounding area clear; present at medial aspect of axilla; 16 cm from tip of shoulder joint. It is entry wound in front of Injury No. 2. 4. A fire-arm lacerated wound measuring 1 cm x 1 cm x outgoing; margins everted; surrounding area clear; present at right posterior axillary line at level of right 8th rip. Injury Nos. 3 & 4
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corresponding with one and another. It is exit wound. (2) Fehmeeda Bibi 1. A fire-arm lacerated wound measuring 1.0 cm x 1.0 cm x ingoing; margins inverted, surrounding area blackening; present at occiput; 14 cm away from left ear tragus. It is entry wound. (3) Uzma Bibi 1. A fire-arm lacerated L-shaped wound measuring 6.0 cm x 4.0 cm x ingoing; margins inverted, surrounding area blackening; present at occiput; 08 cm left ear tragus. It is entry wound. According to the doctor, the death of all the three deceased-ladies occurred due to fire-arm injuries which damaged their vital organs. On 28.05.2018 Dr. Sara Asad (PW.11) conducted the medico legal examination of Abida Bibi and noted injuries which are as under:- (1) A gun shot lacerated wound measuring 1 cm x 1 cm below right hypochondrium measuring 26 cm from right nipple & 14 cm above right iliac chest wound margins inverted, blackening present around wound. (2) A gun shot lacerated wound measuring 1.5 cm x 1 cm below right clavicle 20 cm above right nipple margins everted. 6. After the conclusion of prosecution evidence, the learned trial Court also examined the appellant under Section 342, Cr.P.C., who in response to question "why this case against you and why PWs deposed against you" made the following reply: "I am welder by profession. On 23.05.2018, at Fajjar time, I was present in the house of my 'Humzulf Muhammad Riasat whereas my wife Uzma Bibi, her sisters Fehmeeda Bibi and Abida Bibi and her maternal aunt (Khala) who is my Phuphi namely Tasleem Bibi were sleeping in the eastern room of her house. I am firing upon all of them when they were sleeping in said room on cots. I committed murder of aforesaid Uzma Bibi, Fehmeeda Bibi and Tasleem Bibi whereas seriously injured Abida Bibi, by causing fire-arm injuries to them. I plead guilty and request this Court to convict me in accordance with law. The PWs have rightly deposed against me." The appellant neither opted to make statement under Section 340(2), Cr.P.C. nor produced any evidence in his defence. On the conclusion of trial, the appellants were convicted and sentenced as afore-sated, hence the instant criminal appeal and murder reference. 7. It is contended by learned counsel for the appellant that the case in hand was registered with inordinate delay of 415 hours which gives rise to concoction and fabrication; that admittedly, the deceased-ladies were murdered in the dark hours and the prosecution failed to prove the presence of light at the spot which gives rise to the possibility of mistaken identification; that the witnesses miserably failed to prove their presence at the spot and they otherwise were related with the deceased-ladies, thus their evidence is to be discarded; that medical evidence is in conflict with the ocular account which is another ground for dislodging the statements of eye-witnesses; that though prosecution came forward with a specific motive but failed to prove it; that the positive report of PFSA is to be discarded as the pistol was recovered from the appellant without adhering to the provisions of Section 103, Cr.P.C.; that even if the prosecution case is proved but still the appellant deserves alternate sentence of imprisonment for life due to the weak canvassed motive; that the appellant pleaded guilty before the trial Court which itself warrants award of lesser sentence. 8. On the other hand, learned law officer assisted by learned counsel for the complainant vociferously argued that the case was registered with reasonable promptitude as the police station was situated at considerable distance from the crime scene; that the incident took place within the four walls of the house and two eye-witnesses were having abode therein, thus their presence cannot be denied; that one of the eye-witnesses also received fire-arm injury during the same incident and this injury can safely be termed as proof of her attendance; that though the
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incident occurred shortly before the dawn, but it has no adverse significance for the prosecution as the source of light was pinpointed in the site plan; that the appellant committed cold blooded murder of three ladies and caused fire-arm injury to another, thus he deserves no leniency in the quantum of sentence. 9. Arguments heard. Record perused. 10. A wade through the record reveals that the case in hand was registered for the ferocious killing of three ladies, namely Uzma Bibi, Tasleem Bibi and Fehmeeda Bibi by one of their own relatives, Khalid Mehmood (appellant). All the three slain ladies along with injured Abida Bibi (PW.6) were sleeping in a residential room on 22.05.2018 and at the crack of dawn Khalid Mehmood (appellant) intruded therein along with a pistol and pounced upon them with the frightening ferocity. The perpetrator decamped from the spot after the commission of crime but left behind corpses of the three ladies along with Abida Bibi (PW.6) who though endured two fire-arm injuries but remained fortunate enough to survive the attack and later appeared in the dock to tell the tale of this incident. 11. The occurrence took place in the residential room of a house owned by Muhammad Riasat (PW.7) situated in a neighborhood known as Humak having distance of 28-kilometers from Police Station Bahtar, District Attock. Before inching any further, we feel a pressing need to mention here that Fehmeeda Bibi (deceased), Uzma Bibi (deceased) and injured Abida Bibi (PW.6) were inter se related as sisters, whereas the third deceased Tasleem Bibi was their aunt. Likewise, Fehmeeda (deceased) and injured Abida Bibi (PW.6) were wives of Darya Khan (PW.5) and Riasat Ali (PW.7) respectively. So far as, Uzma Bibi (deceased) is concerned, she was tied in a matrimonial knot with the sole perpetrator of the crime, namely, Khalid Mehmood (appellant). The house within the four walls of which the carnage took place, belongs to Riasat Ali (PW.7) and his wife Abida Bibi (PW.6). 12. During trial the saga of this heart wrenching episode was narrated by three eye-witnesses, namely Darya Khan, Abida Bibi and Riasat Ali (PWs 5, 6 & 7). For ascertaining the truth behind the depositions of afore-mentioned eye-witnesses, we made an in-depth scrutiny of record and came across various factors reflecting positively upon their presence, credibility and truthfulness. While evaluating the intrinsic worth of what an eye-witness of homicide incident deposes, the question of paramount importance pertains to his acclaimed presence. Needless to mention here that if the stance of such an eye-witness about his presence at the crime scene is found surrounded amidst doubt, the superstructure of conviction cannot be raised upon his deposition. Firstly, it is noticed that admittedly Abida Bibi (PW.6) and her husband Riasat Ali (PW.7) were having abode in the same house wherein the bloodbath took place. Since the incident occurred before the dawn of 22.05.2018, hence the presence of Abida Bibi and Riasat Ali at the eventful time is unquestionable. Even the defence has not brought anything on record which may persuade us to infer the absence of the afore-mentioned two witnesses from the crime scene. The presence of an inhabitant of the house, wherein someone is assassinated, is generally accepted unless such claim of presence is not dislodged by the defence through some convincing material. Reference in this context may be made to the case reported as Muhammad Javaid v. The State (2007 SCMR 324) wherein the Hon'ble Supreme Court of Pakistan gave the following observation: "It is worth mentioning that being inmates of, the house they were natural witnesses and cannot be termed as interested witnesses having no animus and rancour about the petitioner." We are mindful of the fact that Darya Khan (PW.5) was residing in a separate house along with his slain wife Fehmeeda Bibi but even he justified the acclaimed presence at the spot through cogent explanation. It is noticed that the house within the four walls of which three ladies were assassinated just like sitting ducks, was situated in a locality known as Humak and Darya Khan (PW.5) was living in the same vicinity. On the preceding night, Darya Khan (PW.5) along with his wife Fehmeeda Bibi (deceased) went to the house of Riasat Ali (PW.7) to attend his mother-in-law
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Waris Jan, a paralysis patient. The foregoing explanation put forth by Darya Khan (PW.5) apparently inspires confidence when seen in the context that his wife Fehmeeda Bibi (deceased) also spent night in the same house. Secondly, it is noticed that the deceased-ladies, eye- witnesses and the appellant were closely related to each other. In the given circumstances, there is not even a remote possibility of mistaken identification of the' sole perpetrator of crime. Thirdly, neither anything is discerning from record nor pleaded before us so as to hold that the two sides were inimically placed against each other or were locked in some affair of abhorrence. Indeed, it reflects from record that no untoward incident, even of lighter magnitude, ever took place between the two sides in the past. What to talk of enmity between the parties, it spells out from record that Bakhseesh Ahmed (PW.8), the husband of Uzma Bibi (deceased) even helped Khalid Mehmood (appellant) for affecting a compromise with the legal heirs of the deceased in a murder case registered against him in the year 2008. Unambiguously, in the given circumstances, it can be held that the eye-witnesses had no personal vendetta or score to settle with the appellant, thus by no stretch can be termed as partisan. Fourthly, we took note of the fact that though four ladies endured serious fire-arm injuries during the incident and three out of them lost their lives but still the eye-witnesses solely held Khalid Mehmood (appellant) responsible for this brutality. The unfortunate tendency to spread wider net for implicating some innocent relatives of the actual offender in a criminal case has become the trend of litigation in our society but the case in hand is seemingly an exception to the prevailing menace. We do not need to shed light upon the grief and sense of retribution the legal heirs of the victims must be having after the incident but still no innocent person from the family of appellant was grilled in the case. Inexorably, the foregoing fact indicates that the eye-witnesses overpowered their sentiments, emotions and sense of retribution by giving preference to the truth by nominating the appellant as the sole culprit, thus there is no reason to doubt their veracity. Fifthly, we are mindful of the fact that the homicide incident occurred in the early hours of the morning and it was semi-darkness all around. Though it was vociferously argued by the learned defence counsel that due to scarcity of light, margin of mistaken identification can legitimately be extended to the appellant but we are least impressed from such submission as it runs contrary to record. The frailty of the argument so advanced by learned defence counsel stands exposed from the scaled site plan (Exh.PF) wherein the presence of electricity bulb at the spot highlighted. Even otherwise, it unfolds from the statements of eye- witnesses that the appellant assassinated the ladies in a residential room of a small house and both sides were at close distance from each other while having long standing acquaintance. Needless to mention here that the presence of light at the spot and the close distance between the two sides, leaves no room for discussion that the point mentioned above raised by the learned defence counsel has no legs to stand. Even the analysis of record with utmost circumspection reveals that narrators of ocular account remained resolute not only in respect of the mode and manner in which the crime was committed but also about the post occurrence events. They budged not a single inch from their stance of having witnessed the occurrence and in holding the appellant as the sole person responsible for committing the crime. Last but not the least, Abida Bibi (PW.6) entered the dock with the claim of having received a grievous fire-arm injury at her thorax region. For this trauma, Abida Bibi (PW.6) was medically examined by Dr. Sara Asad (PW.11) through MLC (Exh.PK), the genuineness of which was never challenged by the defence either during investigation or at trial. In the given circumstances, it will not be an overstatement to term the injuries of Abida Bibi (PW.6) as stamp of her presence at the spot. In the given scenario, the question of predominant importance emerges that why injured Abida Bibi (PW.6) will have resort to the tool of substitution for letting go scot-free the actual offender who assassinated three of her dose relatives, more importantly when she had no personal axe to grind with the appellant. Persuading the Court for discarding the testimony of an injured PW of homicide incident inexorably
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is an insurmountable hurdle to cross for the culprit and this rule becomes more inflexible when the deposition of such a witness is having no legal flaw or infirmity. The statement of such an injured eye-witness can safely be relied upon for handing down guilty verdict to the culprit of a murder incident. The view so expressed by us regarding an injured witness is fortified from the observation of the Hon'ble Apex Court given in the case reported as Saleem Zada and others v. The State and others (2019 SCMR 1309) which is as under: "We have gone through the statement of Bhari Zaman, the sole eye-witness and found him most confidence inspiring; he alone can sustain the charge; being injured, his presence cannot be doubted." If any further reference in this regard is required that can be made to the cases reported as Muhammad Shabbir and others v. The State (2020 SCMR 1206), Azhar Nawaz v. The State (2017 SCMR 1877), Jahangir etc. v. The State (NLR 1998 Criminal 687). 13. The medical evidence in a charge of murder has its own importance and is collected with the sole purpose of enabling the Court for reaching the truth. The doctor who examines the injured or the deceased, in fact makes contribution in the administration of criminal justice. From the medical data placed on record, the Court gets an overview about the truth of eye-witnesses in reference to the locales of injuries, the kind of weapons used for the crime, the duration within which the traumas were inflicted and above all the actual cause of death. The confirmatory medical evidence furnished in this case was subjected to an in-depth scrutiny on the benchmark of points mentioned above. It is noticed that the corpses of three deceased-ladies, namely, Tasleem Bibi, Fehmeeda Bibi and Uzma Bibi were shifted to THQ Hospital for autopsy without afflux of any noticeable delay. The task of conducting postmortem was assigned to Dr. Marium Jalil (PW.10) who examined the bodies and issued autopsy reports (Exh.PG, Exh.PH & Exh.PJ). It is noticed from the medical evidence that Tasleem Bibi (deceased) was in receipt of two fire-arm injuries, Fehmeeda Bibi (deceased) suffered one fire-arm trauma over her skull, whereas Uzma Bibi endured a bullet injury at the occipital region. Almost all the entry wounds of the three deceased-lathes were having blackening around their margins. As regards Abida Bibi (PW.6), initially she was taken to CMH Hospital and later was examined in THQ Hospital by Dr. Sara Asad (PW.11) through MLC (Exh.PK) who observed a fire-arm entry wound little, below hypochondrium with a corresponding exit wound on the clavicle. The nature of injuries coincides with the weapon statedly the appellant used during the incident and the duration between death and postmortem is also found to be in consonance with the time of occurrence described by the eye-witnesses. Even after having minutely examined the medical evidence, we did not come across even an iota of legal infirmity, the legitimate benefit of which can be extended to the appellant. 14. The observations, so given by us, in the preceding paras though can justifiably be encapsulated in terms that the eye-witnesses are truthful and their depositions inspire confidence which otherwise have the support of confirmatory medical evidence but still for the safe administration of justice, we further scrutinized the record to look for the corroboration. In legal parlance the word "corroborate" means to strengthen, confirm or to make more certain and this is how the term is defined in Black's Law Dictionary. Tenth Edition. The corroboration can be sought from some other independent circumstances or evidence which though does not directly prove the ultimate guilt of a delinquent but inclines to connect him with the commission of crime. For the clarity of proposition, an observation from a case of American jurisdiction reported as 270 So.2d 320 (1979) [Jerry Wayne Andrews and Namon Earl Andrews v. State] is being referred hereunder: "The sufficiency of corroborating evidence is established if its probative value tends to connect the defendant with the commission of the crime." For substantiating the testimonies of eye-witnesses, the prosecution made available corroboratory evidence in the nature of motive and positive report of PFSA about the weapon recovered from the
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appellant which statedly matched with the empty shells secured from the crime scene. Before dilating upon the motive set out by the prosecution, we feel a pressing need to mention here that Khalid Mehmood (appellant) even previously remained involved in a murder case and was sentenced to death. Later, the appellant was acquitted in the earlier registered murder case on the basis of compromise affected with the legal heirs mainly due to the efforts of Bakhseesh Ahmed (PW.8). Unfortunately, instead of mending himself, the appellant developed the characteristics of a hardened criminal and even embittered the lives of his own relatives. He got irked for no good reason when Amina Bibi, the daughter of one of the deceased-ladies was engaged with a person resident of village Mirza. The appellant expressed his annoyance for the proposed matrimonial bond of Amina Bibi and later transformed it in the aggression which he unleashed on the fateful day. The canvassed motive was proved through the depositions of three eye-witnesses and Bakhseesh Ahmed (PW.8). The factum of previous conviction in a murder case and the driving force behind the commission of instant occurrence was put to Khalid Mehmood (appellant) during his examination under Section 342, Cr.P.C and their truth was accepted through an answer in affirmative. Inexorably, in the given circumstances, the motive can safely be held…
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