Legal Principle & Question Decided

Ruling Summary: This decision was rendered by the Lahore High Court on 2024-12-31, officially reported as 2023 PCRLJ 402. In this matter between Sultan alias Panun, Fida Hussain, Niaz Hussain, Inaam Mehdi and The State, JUDGMENT, 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.

Full Judgment Text & Judicial Ruling

Court Name: Lahore High Court Judge(s): Muhammad Jawad Zafar Title:Sultan alias Panun, Fida Hussain, Niaz Hussain, Inaam Mehdi vs The State,

JUDGMENT

Reported As: 2025 LHC 825 Result: Appeal Accepted Judgment

JUDGMENT MUHAMMAD JAWAD ZAFAR, J: The appellants[1] have assailed the vires of judgment dated 26.01.2023 ("impugned judgment") passed by learned Additional Sessions Judge, Taunsa Sharif ("Trial Court") through their respective appeals,[2] whereby the appellants were tried and convicted in Crime Report bearing FIR No. 133/2019 dated 04.05.2019, for offences under Section 302, 364, 449 and 34 of the Pakistan Penal Code 1860 ("PPC"), registered with Police Station Saddar Taunsa Sharif, district Dera Ghazi Khan ("Crime Report" or "FIR"). All the appellants were awarded the same sentence after their conviction vide judgment dated 26.01.2023, as under: Under Section 302(b) and 34, PPC, sentenced to imprisonment for life as ta'zir for committing the qatl-e-amd of deceased Sadam Mehdi with direction to pay Rs.4,00,000/- as compensation to legal heirs of the deceased in terms of Section 544-A, Cr.P.C. to be recovered from the arrears of land revenue and in case of default in payment thereof, to further undergo S.I. for six months. Under Section 302(b) and 34, PPC, sentenced to imprisonment for life as ta'zir for committing the qatl-e-amd of deceased Haleema Bibi with direction to pay Rs.4,00,000/- as compensation to legal heirs of the deceased in terms of Section 544-A, Cr.P.C. to be recovered from the arrears of land revenue and in case of default in payment thereof, to further undergo S.I. for six months. Under Section 364 and 34, PPC, sentenced to imprisonment for life as ta'zir for kidnapping and committing the qatl-e-amd of deceased Sadam Mehdi with direction to pay Rs.1,00,000/- as compensation to legal heirs of the deceased in terms of Section 544-A, Cr.P.C. to be recovered

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from the arrears of land revenue and in case of default in payment thereof, to further undergo S.I. for six months. Under Section 449, PPC, sentenced to imprisonment for life as ta'zir for trespassing into the house of Ghulam Muhammad and committing qatl-e-amd of deceased Mst. Haleema Bibi with direction to pay Rs.1,00,000/- as compensation to legal heirs of the deceased in terms of Section 544-A, Cr.P.C. to be recovered from the arrears of land revenue and in case of default in payment thereof, to further undergo S.I. for six months. * Benefit of Section 382-B Cr.P.C was extended and all sentences to run concurrently. 2. The complainant Inaam Mehdi (PW-5) has filed a criminal revision petition bearing No. 84 of 2023 under Section 435 read with Section 439 of the Code of Criminal Procedure 1898 ("Code" or "Cr.P.C") for enhancement of sentence of the appellants. All the criminal jail appeals and criminal revision for enhancement, due to arising out of the same impugned judgment, are being decided through this single judgment. 3. The synoptically facts and circumstances, as delineated by complainant Inaam Mehdi (PW-5) in his statement before the learned Trial Court, are hereby reproduced for narration of facts, infra: 'Stated that I am resident of Basti Sanjadar Saidan. I am cultivator by profession. My younger brother Syed Sadam Mehdi aged about 21/22 years was student of BSc. On 03.05.2019, at about 8.00 p.m. my younger brother Sadam Mehdi went to meet his friend Muhammad Iqbal son of Muhammad Ramzan alias Bilal r/o Basti Bechhra but he did not come back till 12.45 (night). I became worried and went to Syed Abdul Rauf Shah and Syed Mehtab Shah. I along with said persons went on car for the search of Syed Sadam Mehdi to Basti Bechhra. At about 1.30 a.m. we reached Basti Bechhra near the shop of Muhammad Iqbal son of Muhammad Ramzan. We saw Niaz Hussain armed with hatchet, Fida Hussain armed with hatchet, Sultan alias Punu armed with hatchet, Mehboob armed with hatchet, were catching hold of my brother Sadam Mehdi and taking him towards the house of Ghulam Muhammad son of Ghulam Rasool. We saw them in the light of torch. We also knew them previously. My brother Sadam Mehdi was crying for help. We stopped the car and went towards them. When we reached at some distance, Fida Hussain accused threatened us not to come forward otherwise, they would kill us. In the meanwhile, Niaz Hussain accused made hatchet blow on the head of Sadam Mehdi. Sultan accused caused hatchet blow on the left side of head of Sadam Mehdi. Accused Niaz also gave second hatchet blow which hit on back side of head of Sadam Mehdi near hair line. Fida Hussain accused gave hatchet blow which hit on the front of head of Sadam Mehdi. Niaz Hussain accused gave two hatchet blows which hit at head above the right eye of Sadam Mehdi. Accused Mehboob caused hatchet blow which hit on ankle of right leg of Sadam Mehdi. He also caused second blow of hatchet which hit on left knee of Sadam Mehdi. Accused Fida Hussain caused hatchet blow which hit on the back of right hand of Sadam Mehdi. Sadam Mehdi due to the said injuries fell on the ground. Accused Mehboob and Sultan restrained us to come nearby them. Niaz Hussain and Fida Hussain entered into house of Ghulam Muhammad s/o Rasool by climbing over the Southern wall of Ghulam Muhammad's house and they took out a girl aged about 18 years from that house and afterwards we knew her name as Haleema Bibi. Haleem Bibi was crying for help. Her mother namely Naseem Bibi and her sister Abida Bibi were also trying to rescue her from the clutches of the accused persons. Meanwhile, Niaz Hussain accused caused hatchet blow on the right side of head of Haleema Bibi. Niaz Hussain caused second blow of hatchet which hit on left side of head of Haleema Bibi. Fida Hussain accused gave a hatchet blow which hit above the right ear of head of Haleema Bibi. Sultan accused caused 3 to 4 hatchet blows at the head of Haleema Bibi. Then accused Mehboob caused hatchet blow on right arm of Haleema Bibi. Haleem Bibi fell on the ground due to the said injuries. All the accused persons fled away from the spot along with their respective weapons. Both the injured succumbed to the injuries'.

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4. The investigation of the case was initially entrusted to Danish Ali SI (PW-9), and thereafter, upon the transfer of Danish Ali SI (PW-9), to Maraqib Hussain (PW-10). Investigating officer Danish Ali SI (PW-9), while on patrolling duty, upon receipt of information on 04.05.2019, proceeded to Bechhra, recorded statement (Exh.PI) of complainant (PW-5) and send the same through Tahiz Aziz 143/C (not produced) for registration of FIR (Exh.PQ). Investigating officer (PW-9) took four photographs (P-12/1-4) of deceased Sadam Mehdi and Mst. Haleema Bibi into possession vide recovery memo (Ex.DB). Investigating officer (PW-9) prepared the injury statement (Exh.PC) and inquest report (Exh.PD) of deceased Sadam Mehdi and injury statement (Exh.PR) and inquest report (Exh.PR/1) of deceased Mst. Haleema Bibi. After preparation, he sent the corpses for autopsy on private dala (not produced). He called the Punjab Forensic Science Agency ("PFSA") team, who prepared sealed envelopes after examining the corpses of the deceased persons, which were recovered vide memo (Exh.PF). Blood stained earth underneath corpse of deceased Mst. Haleema Bibi was secured vide memo (Exh.PE). Blood stained earth underneath the corpse of deceased Sadam Mehdi was recovered vide recovery memo (Exh.PE/1). Shoes of deceased Mst. Haleema Bibi (P-11) were recovered vide memo (Exh.PG), and shoes of deceased Sadam Mehdi (P-10) were recovered vide memo (Exh.PS). Motorbike (P-5) was recovered vide memo (Exh.PL) and rough site plan of recovery was prepared (Exh.PU). Investigating officer (PW-9) then proceeded to the hospital, where last worn clothes of deceased Sadam Mehdi, i.e., Qameez (P-2), shalvar (P-3). Bunian (P-4), all stained with blood, were secured vide memo (Ex.PK). After the post-mortem of deceased Mst. Haleema Bibi, Naila Abbas 1860/LC (PW-3) produced before him four sealed envelopes, which he took into possession vide recovery memo (Ex.PH). On 06.05.2019, the case property handed over to Moharrar on the date of occurrence, was received back from Moharrar and deposited in PFSA on 07.05.2019. Investigating officer (PW-9) was transferred on 09.05.2019 and Maraqib Hussain SI/HIU (PW-10) was entrusted with the investigation. Second investigating officer (PW-10) arrested the appellants on 15.07.2019. Recoveries from appellant Niaz Hussain[3] and Sultan[4] were made on 19.07.2019. Thereafter, on 22.07.2019, the second investigating officer (PW-10) recovered weapons used by appellant Fida Hussain[5] and juvenile co-accused Mehboob[6] (tried separately). Site plan (Exh.PA and Exh.PA/1) was prepared by draftsman Saleem Akhtar (PW-1) on 23.08.2019. Upon completion of investigation, the investigating officer (PW-10) found the appellants guilty and submitted challan/police report under Section 173 of the Code before the Trial Court. 5. Formal charge was framed against the appellants, to which they pleaded not guilty and claimed trial. In order to prove the charge, prosecution produced as many as 13 witnesses. Ocular account was furnished by complainant Syed Inaam Mehdi (PW-5) and Syed Abdul Rauf (PW-6); Muhammad Iqbal deposed as PW-12; investigation was initially conducted by investigating officer Danish Ali SI (PW-9) and thereafter by second investigating officer Maraqib Hussain (PW-10); Autopsy of deceased Sadam Mehdi was conducted by Dr. Shoaib Anjum (PW-2), while post- mortem examination of deceased Mst. Haleema Bibi was conducted by Dr. Zainab Ayyub (PW-11); Moharrar Zafar Iqbal ASI deposed as PW-7 while Moharrar Khurshid Ahmed 222/HC deposed as PW-8; and, site plan was prepared by draftsman Saleem Akhtar (PW-1). Remaining of the prosecution witnesses ("PWs") were more or less formal in nature. Prosecution evidence was closed after tendering, id est, forensic DNA and serology analysis report (Exh.PT) and closed the prosecution evidence. The learned Trial Court summoned and examined Mst. Abida Mai (CW-1), Ghulam Muhammad (CW-2) and Mst. Naseem Mai (CW-3) as the court witnesses. Thereafter, the appellants denied the charges levelled against them in their statements under Section 342 of the Code, but they did not opt to appear as their own witnesses in terms of Section 340(2) of the Code nor produce any defence evidence. On conclusion of trial, the learned Trial Court found the case against the appellants to have been proved; thus, convicted and sentenced them as detailed above.

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6. Arguments heard; record perused. 7. It evinces from a wade through the Crime Report that the unfortunate incident whereby two persons lost their lives took place on the intervening night of 03/04.05.2019 at or about 01:30 a.m., subsequently the Crime Report got registered on 04.05.2019 at or about 03:20 a.m., after an inordinate delay of 1 hour and 50 minutes. No plausible justification or adequate explanation has been furnished by the complainant (PW-5) concerning the delay in the registration of the Crime Report,[7] which in and of itself makes the case of the prosecution suspicious because complainant (PW-5) claimed during his deposition before the learned Trial Court that he met the police at Bechhra Road. In other words, if the complainant (PW-5) rushed to find a police officer and found one not long after, then the Crime Report ought to have been lodged instantly and not after a delay of 1 hour and 50 minutes. Along the same lines, the complainant (PW-5) did not mention the name of the police official he encountered. Muhammad Yousaf 1786/C (PW-4) deposed that during the course of patrolling duty, investigating officer Danish Ali SI (PW-9) received information qua the occurrence, after which all the members of the patrolling party went to the venue of the crime, but the source of information was not disclosed. According to investigating officer Danish Ali SI (PW-9), he found out about the occurrence from the Moharrar. Said part of his cross-examination is reproduced: 'Moharrir informed me about the occurrence. Moharrir had not disclosed any source of information about the occurrence. Moharrir did not disclose that at what time he received information about the occurrence. I did not record statement of Moharrir in this regard'. Moharrar Zafar Iqbal ASI (PW-7) abstains from deposing this fact and merely stated that one, Tahir Aziz 143/C (not produced), brought the application for registration of Crime Report, however, it is not mentioned at what time the application was brought to the police station, either in the testimony or in the cross-examination of Moharrar Zafar Iqbal ASI (PW-7). Resultantly, the fact that the Crime Report number and when police found out about the occurrence in column No. 3 of the inquest reports is missing, leads to the conclusion that the mode and manner in which the investigating agency found out about the occurrence is shrouded in mystery and had the inquest report been prepared after registration of Crime Report and the investigating officer (PW-9) had received its copy, then he would have scribed the number and details of the Crime Report in the inquest report, however, the investigating officer (PW-9) was not in a position to mention the number of the Crime Report. Therefore, an inference can be drawn that the Crime Report was registered at a later time; however, through police efficiency, for a lack of better terminology, the ante-dated Crime Report was shown to have been registered with promptitude.[8] 8. One method of deciphering whether the Crime Report was ante dated and verify if the relevant register was stopped by the investigating agency in order to procure the attendance of witnesses in an unseen occurrence is to peruse the inquest and autopsy report. In the inquest report of both the deceased, neither the FIR number finds any mention, nor has the time when police found out about the occurrence been scribed in column No. 3. Both of these facts were conceded by Dr. Shoaib Anjum (PW-2). According to the Crime Report and deposition of complainant (PW-5), the deceased Sadam Mehdi died at 01:30 a.m., while his corpse was brought in by Muhammad Yousaf 1786/C (PW-4) at 08:00 a.m. Complete documentation and papers were received by Dr. Shoaib Anjum (PW-2) at 09:00 a.m., and the corpse of the deceased was identified by Mehtab Hussain (not produced) and Syed Fateh Hussain (not produced).[9] Dr. Shoaib Anjum (PW-2) conducted the autopsy at 09:05 a.m., after a lapse of 7 hours and 20 minutes. He admitted in his cross- examination that the lapse was due to non-provision of the relevant police documents necessary for conducting the autopsy. Regardless, during the autopsy, he (PW-2) observed a total of ten (10) injuries on the corpse of the deceased. The total number of injuries stand conflicted with the number mentioned in the Crime Report and depositions of complainant (PW-5) and eyewitness

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Syed Abdul Rauf Shah (PW-6), and there is no mention of any injury on the shoulder in either the depositions of complainant (PW-5) and eyewitness Syed Abdul Rauf Shah (PW-6) nor the Crime Report, which is explicitly mentioned in the autopsy report, and despite claims of injury on the left side of head by the eyewitnesses of the Crime Report, no such injury was observed by Dr. Shoaib Anjum (PW-2) during autopsy. Relevant part of the testimony of complainant (PW-5) is reproduced hereunder: 'Sultan accused caused hatchet blow on the left side of head of Sadam Mehdi'. Cross-examination of Dr. Shoaib Anjum (PW-2) whereby the aforementioned part of testimony of complainant (PW-5) was contradicted is reproduced infra: 'I did not mention any injury on the left side of temporal or parietal region of the head'. In addition thereto, perusal of the autopsy report, duly supported by the deposition of Dr. Shoaib Anjum (PW-2), provides that rigor mortis was fully developed and post-mortem staining was present and difference between death and post-mortem is '06-12 hours' and difference between injury and death is stated to be 'within 15 minutes'. 9. Before depicting the autopsy report with both the medical and criminal jurisprudence on the subject, the particulars of the post-mortem examination of deceased Haleema Bibi by Dr. Zainab Ayyoub (PW-11) are scrutinised. It follows that she died at or about 02:00 a.m., and her corpse was brought in by Naila Abbas 1860 (PW-3) at 08:00 a.m. Police papers and documents were received by Dr. Zainab Ayyoub (PW-11) at 10:30 a.m., and the body was identified by Ghulam Muhammad (CW-2)[10] and Idrees.[11] The duration between injury and death, as well as death and autopsy, is the same as that of deceased Sadam Mehdi. Pertinently, according to complainant (PW-5) and the Crime Report, seven to eight injuries were inflicted on her person, whereas in the inquest report, only six injuries are mentioned; Syed Abdul Rauf Shah (PW-6) deposed that seven injuries were caused; Dr. Zainab Ayyoub (PW-11) observed a total of nine injuries. Again, there is discrepancy between the number of injuries in the ocular account and the inquest and autopsy report, the latter being duly supported by the testimony of Dr. Zainab Ayyoub (PW-11). Another similar feature between both the autopsies is that the duration between injury and death, as well as between death and autopsy, are the same, while in both the autopsies, rigor mortis is fully developed and post-mortem staining is present. To this end, Dr. Zainab Ayyoub (PW-11) stated in her cross- examination that: 'It is correct that rigor mortis fully develop on the dead body after 24 hours' Due to the discrepancies observed herein supra, guidance was sought from books on medical jurisprudence. In "The Principles of Medical Jurisprudence", Alfred Swaine Taylor writes that: 'Rigor Mortis usually commences within 2 to 4 hours of death. It reaches a peak in about 12 hours and starts to disappear after another 12 hours'. Rai Bahadur Jaising P. Modi's "A Textbook of Medical Jurisprudence and Toxicology" provides that: 'Duration-In temperate regions, rigor mortis usually lasts for two to three days. In northern India, the usual duration of rigor morts is 24 to 48 hours in winter and 18 to 36 hours in summer. According to the investigations of Mackenzie, in Calcutta, the average duration is nineteen hours and twelve minutes, the shortest period being three hours, and the the longest forty hours." In Colombo, the average duration is 12 to 18 hours. When rigor mortis sets in early, it passes off quickly and vice versa. In general, rigor mortis sets in one to two hours after death, is well developed from head to foot in about twelve hours. Whether rigor is in the developing phase, established phase, or maintained phase is decided by associated findings like marbling, right lower abdominal discolouration, tense or taut state of the abdomen, disappearance of rigor on face and eye muscles. If on examination, the body is stiff, the head cannot be fixed towards the chest, then in all probability, the death might have occurred six to twelve hours or so more before the time of examination'.

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In "Asad Rehmat v. The State and others" (2019 SCMR 1156), the Honourable Supreme Court of Pakistan observed that: 'Occurrence, statedly, took place at 2.00 p.m., autopsies started 4.30 p.m., concluded at 9.00 p.m. Muhammad Hayat was examined first; the medical officer noted rigor mortis. Same is the case with other corpses. In the month of March, development of rigor mortis within such short span of time is mind boggling; occurrence does not appear to have taken place at the point of time mentioned in the crime report'. Likewise, in "Noor Ahmad v. The State and others" (2019 SCMR 1327), it was observed that: 'Occurrence statedly took place at 10.00 a.m. whereas the autopsy was conducted at 5.00 p.m. development of complete rigor mortis on the body of a young lady in hot weather, belies point of time of assault given in the crime report'. The only conclusion which can be reached when the medical jurisprudence, as well as criminal jurisprudence, is read in conjunction with the autopsy report of both the deceased is that the time of occurrence as narrated in the Crime Report stands contradicted by medical evidence, meaning thereby that the occurrence did not take place at the time mentioned in the Crime Report. Similarly, as observed above, conflict between ocular account and medical evidence is conspicuous.[12] Likewise, there is delay in conducting autopsy of deceased Sadam Mehdi by seven hours and twenty minutes, and delay in post-mortem examination of deceased Haleema Bibi is of nine hours and fifteen minutes. Generally, under the law laid down by the Honourable Supreme Court of Pakistan,[13] delayed autopsy translates to absence of eyewitnesses from the venue of the crime when it took place and the witnesses are deemed to be chance witnesses at best. As a consequence thereof, the testimonies of the eyewitnesses were minutely examined to figure out as to whether they were present at the place of occurrence or otherwise, because it is trite that even a single doubt which reasonably shakes the credibility of the presence of a witness at the venue of the crime is sufficient to discard the testimony of said witness in its entirety.[14] It follows that a chance witness, in legal parlance, is a witness who claims that he was present at the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events because he is not supposed to be present on the spot, but at a place where he resided, carried on business or ran day to day affairs. It is in this context that the testimony of a chance witness is ordinarily not accepted unless justifiable reasons were shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law is that such a witness was absent from the crime spot. True that in rare cases, the testimony of a chance witness may be relied upon, provided some convincing explanations appealing to a prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt.[15] 10. In this regard, it has been observed that all the eyewitnesses were not residents of the place of occurrence. Complainant (PW-5) stated in his cross-examination that: 'intervening distance between my residence and place of occurrence is about 15/20 KMs'. According to eyewitness Syed Abdul Rauf Shah (PW-6), the distance between the place of occurrence and residence was, as under: 'The place of occurrence is at the distance of 20/22 KMs from house of complainant' Regarding this fact, the investigating officer (PW-9) deposed: 'The intervening distance between place of occurrence and the residence of witnesses is about 10-15 KMs' Along the same line, complainant (PW-5) in his deposition and narration in the Crime Report states that he became worried about the absence of the deceased Sadam Mehdi at about 12:45 a.m., whereas, eyewitness Syed Abdul Rauf Shah (PW-6) deposed that:

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'I got recorded to police in my statement u/s 161 Cr.P.C. that at about 12.30 night, Inam (sic) Mehdi came to me and told that at about 8.30 p.m, his brother Sadam Mehdi went to meet his friend to Basti Bechhra, who did not return and he was worried about him and requested me to accompany him to search his brother'. It does not appeal to reason, nor does the chronological chain of events as narrated by eyewitness Syed Abdul Rauf Shah (PW-6) appeal to a prudent mind because there appears to be no reason why the complainant (PW-5) would approach eyewitness Syed Abdul Rauf Shah (PW-6) fifteen minutes before he got worried about the absence of deceased Sadam Mehdi. This Court has also noticed that despite admitting that the deceased was carrying his mobile phone, no effort was made by the eyewitnesses in trying to contact the deceased on his mobile phone. It belies logic and rational thought, while simultaneously appears to be quite unnatural, that the aforementioned witnesses would opt to go on a wild goose chase in search of the deceased Sadam Mehdi instead of choosing to do the easier thing by way of contacting him on his mobile phone. In the same vein, complainant (PW-5) and eyewitness Syed Abdul Rauf Shah (PW-6) claimed to have been searching for the deceased Sadam Mehdi in a vehicle when they stumbled at the scene of the crime and witnessed the occurrence. Neither details and description of the vehicle was mentioned by them to the investigating officer, nor was the same produced in evidence. This fact was admitted by the investigating officer (PW-9). Furthermore, it was disclosed by…

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