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.
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 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 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 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 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 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 to have been proved during trial.
15. The arrest of the appellant was affected on 01.06.2018 and 07-days thereafter he got recovered pistol (P.3) from his house which was secured through memo. Exh.PE. The pistol was dispatched to PFSA through Masood-ur-Rehman ASI (PW.1). It is equally important to mention here that during spot inspection Lehrasib Ali SI (PW.13) collected five crime empties of .30 bore caliber which were transmitted to PFSA on 29.05.2018. According to the PFSA report (Exh.PW), all the five crime empties were found wedded with the pistol recovered from the appellant. Even the recovery of pistol (P.3) was impeccably proved by the prosecution through the confidence inspiring depositions of Riasat Ali (PW.7), Bakhseesh Ahmed (PW.8) and Lehrasib Ali SI (PW.13). All the three witnesses testified the recovery proceedings without any conflict or contradiction by stating that the weapon was recovered in pursuance of disclosure and pointing out of the appellant. The place of recovery is a house which was in the exclusive possession of the appellant having sole knowledge of the exact place where the pistol was kept. The recovery of pistol which subsequently matched with the crime empties can inexorably be taken as discovery of a new fact which in terms of Article 40 of Qanun- e-Shahadat Order, 1984 is admissible. In this respect, reliance can be placed upon the case reported as Sh. Muhammad Amjad v. The State (PLD 2003 Supreme Court 704) wherein the Hon'ble Supreme Court of Pakistan held as under: "Further it is noted that as per Article 40, corresponding to Section 27 of the Evidence Act, when any fact is revealed in consequence of information received from any accused in custody of a Police Officer, such information whether it amounts to a confession or not as it relates distinctly to the fact whereby discovered, may be proved. The information supplied by the appellant, under Article 40 ibid, relating to incriminatory articles is admissible."
After having examined the record, we have no doubt in our minds that the duly proved motive and flawless recovery of pistol from the appellant was proved beyond shred of any ambiguity arid both the foregoing incriminating aspects are providing corroboration to the ocular account narrated by the three eye-witnesses.
16. After having formed an opinion that the involvement of appellant in the commission of crime was proved beyond scintilla of any ambiguity, we are confronted with the question of pivotal importance which pertains to the quantum of sentence, the appellant deserves. The case inescapably is of ferocious killing and the appellant targeted four innocent ladies, out of whom three died at the spot. Neither learned counsel for the appellant pleaded before us any exception contemplated in Chapter IV of P.P.C. nor any other extenuating circumstances like human frailty, morbid jealousy or loss of tamper owing to the reasons attributable to the victims. Conversely, the record speaks that the appellant even previously was sentenced to death in another murder case but earned acquittal on the basis of compromise. It deciphers from the antecedents of the appellant as well as from the genesis of the crime that he has least respect for the human lives, thus deserves no mercy. It will not be an over-statement that extending of mercy to the appellant by having resort to lesser sentence amounts to giving him another opportunity of letting loose on the lives of some innocent persons even somewhere in the future.
17. After having formed the afore-mentioned opinion, we have to wrestle with the proposition that whether the death sentence awarded to the appellant under Section 302(a), P.P.C. by the trial Court is to be maintained or he is to be convicted under Section 302(b), P.P.C. with the same amount of punishment. It would be beneficial to mention here that under Section 302(a), P.P.C. a murderer is sentenced to death as Qisas, whereas Section 302(b), P.P.C. though provides punishment of death but as ta'zir. Besides that, under Section 302(b), P.P.C. alternate sentence of life imprisonment can also be awarded as ta'zir which in this case is not relevant. For the clarity of proposition, clauses (a) & (b) of Section 302, P.P.C. are mentioned hereunder: "302.Punishment of qatl-i-amd. Whoever commits qatl-i-amd shall, subject to the provisions of this Chapter be;
(a) punished with death as qisas;
(b) Punished with death or imprisonment for life ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available..."
Section 302 falls in Chapter XVI of P.P.C. which is titled as "OF OFFENCES AFFECTING THE HUMAN BODY". The Chapter XVI underwent a change and its provisions from Sections 229 to 338 were revamped through Criminal Law (Second Amendment) Ordinance, 1990 which attained eternity through Act II of 1997. A peep through the legal archives reveals that the amendment so made in Chapter XVI originated from a case titled as Gul Hassan Khan v. Government of Pakistan and another (PLD 1980 Peshawar 1) wherein a death convict approached Hon'ble Shariat Bench of Peshawar High Court and raised following questions:-
(1) Whether penalty prescribed by the Pakistan Penal Code for the murderer is repugnant to the Injunctions of Islam?
(2) Whether a person who was minor at the time of commission of murder, can be subjected to "Qisas"?
(3) Whether the provisions of Sections 54, 55 of the Pakistan Penal Code as also Sections 401 and 402 of the Criminal Procedure Code are repugnant to the Injunctions of Islam?
(4) Whether the provisions of the Schedule of the Criminal Procedure Code with regard to section 302, P.P.C. showing the same to be uncompoundable and those of section 345 of the same Code are part and parcel of the substantive law and can be questioned before a Shariat Bench despite the Explanation to Article 203-B of the Constitution that a law relating to the procedure of a Court or tribunal cannot be so questioned?
The afore-mentioned questions were posed in the wake of a compromise affected between the death convict Gul Hassan Khan and the legal heirs of the deceased, which met no acceptance from the Court. According to the law, then in field, the offence under Section 302, P.P.C. though was compoundable but with the permission of the Court. The afore-mentioned questions were eruditely decided and the provisions of Chapter XVI were declared repugnant to the Injunctions of Islam.
Later the matter was placed before the Hon'ble Federal Shariat Court and through the judgment reported as Muhammad Riaz, etc. v. Federal Government, etc. (PLD 1980 FSC 1), the view of the Peshawar High Court was endorsed. The Ministry of Law invoked the jurisdiction of Shariat Appellate Bench of Hon'ble Supreme Court of Pakistan and challenged the judgments so pronounced by the Hon'ble Peshawar High Court as well as of the Hon'ble Federal Shariat Court which were upheld through the judgment reported as Federation of Pakistan through Secretary, Ministry of Law and another v. Gul Hassan Khan (PLD 1989 Supreme Court 633). The Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan gave concluding observations which are as under: Accordingly, the necessary amendments were made in the Chapter XVI for giving effect to the judgment of Hon'ble Apex Court.
18. Islamic Jurisprudence provides various kinds of punishments which can be summarized as Hadd, Qisas and Ta'zir. The word "Hadd" in its literal sense means the punishments of crimes as ordained in Holy Quran. The offences which come within the purview of "Hadd" include intoxication through consumption of liquor by mouth, Theft/Haraabah, Zina, Qazf and Apostasy. If the quantum and quality of evidence for proving these offences is available in accordance with the Injunctions of Islam, then the delinquents are to be punished with the quantum of sentence as ordained by Almighty Allah and no deviation can be made therefrom by the Qazi/Court. So far as the Qisas is concerned, it means equal retaliation through retributive justice and stems out of the following Quranic Injunction and Sunnah of Holy Prophet Muhammad Quran: Sunnah: The law of retaliation is an ancient concept and was even recognized as lex talionis in the Mosaic Law but through Quranic Injunctions it was made subject to certain restrictions and limitations. It was, perhaps, best defined by Dr. Tanzil-ur-Rahman, an erudite Islamic jurist, in his paper presented at the "World Seminar on Islamic Law held under the auspices of the Lawyers' Islamic Council at Khulna, Bangladesh and the same is being mentioned below in verbatim: "The lex talionis of the Mosaic law also recognizes this significant difference that in Islamic Law the next of kin may accept blood money in case of willful murder. The law of retaliation is two-fold: first, as to life for life and second, as to loss or injury of the other parts of human body, i.e. in matters short of life."
The word "Qisas" is also defined in Section 299 (k) of Act No. II of 1997 which amended Chapter XVI of P.P.C. as under: "Qisas means punishment by causing similar hurt at same part of the body of the convict as he has caused to the victim or by causing his death if he has committed qatl-i-amd in exercise of the right of the victim or a wali."
The basic difference between Hadd and Qisas is to the effect that the former, fundamentally is the right of Allah Almighty and no compromise, settlement, pardon or waiver is permissible, whereas the latter is the right of victim (if injured) or the legal heirs/wali (in the case of murder) and can be compounded or waived. Insofar as Ta'zir is concerned, it is a kind of punishment which can be awarded through the laws of an Islamic State for other offences and in respect of delinquencies in which requisite proof for inflicting Hadd is lacking.
19. The punishment of death as Qisas under Section 302(a), P.P.C. can be awarded if the proof of qatl-i-amd contemplated in Section 304, P.P.C is available in the following two forms: "(a) The accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence or
(b) By the evidence provided in Article 17 of the Qanun-e-Shahadat Order 1984."
After examining the judgment passed by the learned trial Court with due diligence, it is observed that the appellant was held guilty under Section 302(a), P.P.C. solely on the basis of his confession made at the time of his indictment. It will be advantageous to reproduce in verbatim the statement of Khalid Mehmood (appellant) made before the trial Court while being charge sheeted on 15.11.2018: "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."
From the in-depth review of the file we came across multiple factors, persuading us to discard the afore-mentioned statement of the appellant and not to treat it as an incriminating circumstance or even a confession in terms of Section 304(1)(a), P.P.C. In this regard, firstly it is observed by us that 173, Cr.P.C. report reached the trial Court after enrouting through the learned Magistrate on 18.10.2018 and on the same date copies of documents under Section 265-C, Cr.P.C. were distributed.
On 08.11.2018 the case appeared in the cause list of the trial Court but was adjourned for the framing of charge on the request of appellant for engaging the services of a counsel. The charge was framed on 15.11.2018 and it manifests from the interim order of even date that accused was not represented by a counsel at that time. We need to shed light on the point that through the necessary implication of Article 10(1) of the Constitution of Islamic Republic of Pakistan, 1973, a person burdened with the allegation of having committed crime has an unfettered right to consult and be defended by a legal practitioner of his choice. Similar right is bequeathed to an accused under Section 340(1) of, Cr.P.C. and for reference sake the foregoing provision is mentioned below: "Any person accused of an offence before a Criminal Court or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader."
For ensuring the afore-mentioned right of an accused facing criminal charge, the needful is done through Rule 1 of the High Court Rules and Orders Volume-III, Chapter 24 which for advantage sake is reproduced hereunder: - "Presiding Officer to report whether accused can afford to engage counsel. --If the accused is unrepresented in a Sessions case and cannot afford to engage a counsel, the Sessions Judge shall make arrangement to employ a counsel at Government expense. Counsel in such cases should be appointed well in time to enable study the documents mentioned in section 265 of the Code of Criminal Procedure."
The High Court Rules and Orders Volume-V, Chapter-4 Part-D further speaks that in cases of conviction having capital sentence, if the convict cannot engage a counsel for his defence, the Deputy Registrar shall take appropriate steps for providing such services at Government expense in appeals. Another provision of High Court Rules and Orders Volume-V Chapter-4 Part-E is a step forward in this regard and it is provided therein that if an accused is being tried by High Court in its original jurisdiction for an offence entailing capital punishment and he is incapacitated to afford the services of a legal practitioner, he can get such assistance at State expense. Without any speck of reluctance, we are leaned to hold that the right guaranteed under above quoted provisions was not extended to the appellant at the time of framing charge, though his entitlement to it could in no manner be abridged. It unveils from the interim order sheet that the learned trial Court took care of the situation on 29.11.2018 by appointing Ch. Tariq Mehmood Qutab, Advocate to defend the appellant and subsequent thereto summoned the prosecution evidence. It can safely be captured that though in subsequent trial the appellant was being defended by a legal practitioner but at the time of his indictment it was not so. As a necessary consequence, the statement made by the appellant on 15.11.2018 cannot be used to his detriment or disadvantage and more importantly as a necessary proof of qatl-i-amd liable to Qisas in accordance with Section 304(1), Cr.P.C. Secondly, we took note of the plain language of Section 304(1)(a), Cr.P.C. which is explicit in sense and leaves no room for discussion that only a voluntary and true confession, made before a Court competent to try the offence can ensue in a punishment of death as Qisas. The term "voluntary" used in Section 304, P.P.C. is of dominant importance in reference to the facts of case and stands for a confession made with free will, from voice of conscience, without duress or promise for a favour.
The expression "voluntary" is defined in Black's Law Dictionary Tenth Edition, in more exhaustive and comprehensive manner in following terms:- "(1) Done by design or intention,
(2) Unconstrained by interference; not impelled by outside influence.
(3) without valuable consideration or legal obligation;
(4) Having merely normal consideration."
In the judgment reported as Adnan Pervaiz and another v. The State (2022 YLR 2259) which was authored by one of us (Ch. Abdul Aziz, J.) while dilating upon the voluntary nature of confession, following observation was given: "It needs no emphasis that inducement or promise gives rise to temptation of avoiding conviction prompting the accused to make a confession. Likewise, a threat places a frail nerved accused under fear, compelling him to admit his guilt so as to avoid some further adverse consequences."
The statement of the appellant dated 15.11.2018 portrayed before us as confession in terms of Section 304(1)(a), P.P.C., was recorded without providing him facility of the counsel or by extending him sufficient opportunity to ponder upon its consequences. In the given circumstances, there can be a remote possibility that appellant might have admitted his guilt out of frustration, due to mental depression or by driven out of some promise of lesser sentence or owing to absence of legal assistance. The Hon'ble Supreme Court of Pakistan in the case reported as Muhammad Ismail v. The State (2017 SCMR 713) laid down certain guidelines for awarding conviction on the plea of guilt under Section 265-E, Cr.P.C., which are as under: "The most important factors and required standards of confession may be cited below: It should be ensured,
(i) that the accused is in full senses and understands the consequence of making a confession;
(ii) that, the confession was not a result of any duress, coercion or any promise by the prosecution, to be made an approver;
(iii) that, during transit of the accused by the police from and to the Trial Court from the prison, on each "Paishi" no threat or pressure was applied by the escorting police guard or Incharge thereof;
(iv) what were the actual facts, which induced the accused to confess after facing trial, during which he pleaded innocence all the way;
(v) the Court recording the confession has to ensure that the mental capacity of the accused is not diminished due to any, illness and if some indication of abnormality is suspected by the Court, it is better to refer the accused to the Standing Medical Board to ascertain the true cause thereof;
(vi) while recording the confession, the same safeguards and precautions be adopted, by directing the Public Prosecutor, the complainant's counsel, the Naib Court and all other officials to leave the Court. If need be, the counsel who represents him, may be given an opportunity to be present inside the Court during the whole process, if the accused person, on asking by the Trial Judge, so demands;
(vii) the handcuffs of the accused be removed and he be provided a chair on the dais. He may be given some time to think over the making of the confession and in that regard particular questions be put to him, as to why he was making the confession when he has already pleaded innocence and claimed trial at the time, the formal charge was framed;
(viii) the Trial Judge shall explain to the accused that, in case of making confession, he has to face a capital sentence in a murder case or any offence punishable with death;
(ix) the entire record of all the questions and answers recorded, be properly maintained and thereafter, a proper certificate be appended thereto, showing the satisfaction of the Trial Judge that the accused person was not mentally sick and he was making the confession voluntarily, based on true facts and that, there was no other compelling reason behind that."
Thirdly it unveiled from the statement of appellant recorded under Section 342, Cr.P.C. that his admission of guilt so recorded on 15.11.2018 was not put to him so as to be used as an incriminating circumstance. It would be in fitness of things to observe here that the examination of an accused under section 342, Cr.P.C. after the closure of prosecution evidence is not a mere formality but a legal requirement, which in no manner can be dispensed with. The primary purpose of such an examination is to apprise an accused with all the circumstances which are incriminating in nature, so as to enable him or her to address them properly. The law is settled that if the accused, facing trial is not confronted with such incriminating circumstances, no conviction can be awarded on the basis thereof. If any reference in this regard is needed that can be made to the case reported as Muhammad Shah v. The State (2010 SCMR 1009) and an extract therefrom is being reproduced below for advantage sake: "It is well settled that if any piece of evidence is not put to the accused in his statement under section 342, Cr.P.C. then the same cannot, be used against him for his conviction. In this case both the Courts below without realizing the legal position not only used the above portion of the evidence against him, but also convicted him on such piece of evidence, which cannot be sustained."
Fourthly we have in our minds that though Section 265-E, Cr.P.C. explicates that if the accused pleads guilty, the Court in its discretion can convict him but if it is not so done then the prosecution evidence is to be recorded as is evident from Section 265-F(1), Cr.P.C. which is referred hereunder: "If the accused does not plead guilty or the Court in its discretionary does not convict him on his plea, the Court shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution."
In the instant case, since the trial Court even after recording the plea of guilt so raised by the appellant under Section 265-E, proceeded with the case in terms of Section 265-F(1), hence in our view it will be a fallacious approach to treat such confession as requisite proof of Qisas in consonance with Section 304, P.P.C. which otherwise was not put to him under Section 342, Cr.P.C.
From the tenor of cross-examination conducted upon the prosecution witnesses, it can safely be gathered that the appellant later resiled from his confession. In the given scenario, it can inescapably be held that punishment of death as Qisas awarded by the trial Court is replete with a gross legal error. We have no doubt in our minds that if the accused pleads guilty under Section 265-E, Cr.P.C. but the Court does not award him punishment and instead proceeds with the trial then such confession cannot be used to the detriment of the accused subsequently. By taking advantage of the proposition we intend to add that though Section 304(1)(a), P.P.C. contemplates that punishment of death as Qisas can be awarded to an accused upon his voluntary and true confession made before the trial Court but is in eternal silence as to how and under what provision of law it is to be recorded. The procedure of Sessions trial contemplated in Chapter XXII-A of Cr.P.C. as well as the provisions of Chapter XVI of P.P.C. are in absolute silence as to how the voluntary nature of the confession for the purposes of Section 304(1)(a), P.P.C. is to be ensured.
20. We have also given our considered thought to the other eventuality envisaged in Section 304(1)
(b), P.P.C. whereby an assassin can be sentenced to death as Qisas. The gist of Section 304(1)(b)
P.P.C. is to the effect that qatl-i-amd (murder) will be liable to Qisas if the charge is proved by the evidence in accordance with Article 17 of Qanun-e-Shahadat Order, 1984 (hereinafter referred to as Q50, 1984). For the clarity of proposition, we are compelled to have a look upon the phraseology of Article 17 which is as under: "Competence and number of witness.--(1) The competence of a person to testify and the number of witnesses required in any case shall be determined in accordance with the Injunctions of Islam as laid down in Holy Quran and Sunnah.
(2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law.
(a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary and evidence shall be led accordingly; and
(b) in all other matters, the Court may accept, or act on, the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant."
(emphasis provided)
It can be derived from Section 304(1)(b), P.P.C. that punishment of Qisas can be awarded if the proof in the form of Article 17 of QSO, 1984 is available. Over the years, the jurists have been focusing on Article 17(1) of QSO, 1984 while treating it as enabling provision for punishment of death as Qisas.
The careful perusal of Article 17(1) leaves no room for discussion that it. is applicable in all the cases and is not restricted to the offences of Hadd and Qisas. The use of expression "in any case" is self- explanatory in nature and goes long way to demonstrate that Article 17(1) is not Qisas specific. No elaboration is needed on the point that in order to apply Article 17(1) only to the extent of offences falling within the ambit of Hadd and Qisas, the Legislature should not have used the term "in any case". Leaving aside the afore-mentioned anomaly, the fact remains that through the necessary implication of Section 338-F, P.P.C., for the interpretation and application of Chapter XVI of P.P.C., the Courts are bound to seek guidance from the Injunctions of Islam as laid down in Holy Quran and Sunnah. The combined effect of reading Article 17(1) of QSO, 1984 in conjunction of Sections 304(1)(b) & 338-F, P.P.C. is to the effect that punishment of death as Qisas can be awarded if the witness fulfills the requirement of "Tazkiyah-Al-Shuhood" which is a concept emanating from the Islamic law. The term "Tazkiyah-Al-Shuhood" comprises upon two words, one out of which is Tazkiyah which means purifying, scre ening or separating the good from the bad, whereas Shuhood stands for the witnesses to be, produced during trial of a case. According to Quranic commandments, a Muslim is to speak nothing but truth even if it goes against him, out of them, two are being reproduced hereunder: Now the question of pivotal importance arises that how, in accordance with Injunctions of Islam the procedural requirement of 'Tazkiyah-Al-Shuhood is to be fulfilled. The answer of this query is found in the book Islami Qanun-e-Shahadat authored by Dr. Tanzil-ur-Rehman and extract therefrom is cited below: In the case reported as Mumtaz Ahmad and another v. The State (PLD 1990 FSC 38), the Hon'ble Federal Shariat Court expounded upon the mode and manner of Tazkiyah-Al-Shuhood and laid down following guidelines:
(i) There must be evidence of victim followed by at least two witnesses;
(ii) in case of discrepancies on vital aspects between two witnesses both shall be rejected;
(iii) Tazkiyah-Al-Shuhood is a condition precedent to impose the sentence of hadd;
(iv) there should be one or more `Muzakki' (a person who testifies about the truthfulness of the witness);
(v) the `Muzakki' should be present when the witness gives evidence;
(vi) The `Muzakki" should also be questioned about antecedents, character and dealings;
(vii) it is the responsibility of the Court to satisfy itself about the credibility of a witness and it can for that matter select open or secret modes of inquiry or both;
(viii) the Court may frame a questionnaire on which the `Muzakki' should collect information to supply to the Court;
(ix) the Court should also examine the `Muzakki' after the submits his report;
(x) the Court should ask searching questions from the witness and cross-examine him to discover facts which might show his credibility, piety or otherwise."
Chapter XVI of P.P.C., even after having been reshaped in accordance with cases reported as Gul Hassan Khan v. Government of Pakistan and another (PLD 1980 Peshawar 1), Muhammad Riaz, etc. v. Federal Government, etc. (PLD 1980 FSC 1) and Federation of Pakistan through Secretary, Ministry of Law and another v. Gul Hassan Khan (PLD 1989 Supreme Court 633) is in eternal silence about the mode and manner of carrying out the essential requirement of Tazkiyah-Al- Shuhood. It will not be out of place to mention here that the term "Tazkiyah-Al-Shuhood" though is not specifically mentioned in reference to the cases falling within the ambit of Chapter XVI of P.P.C. but it found place in Section 7(b) of Offences Against Property (Enforcement of Hudood) Ordinance 1979 which is as under: "Proof of theft liable to hadd. The proof of theft liable to hadd shall be in one of the following forms namely:
(a) .....................................................................
(b) At least two Muslim adult male witnesses, other than the victim of the theft about whom the Court is satisfied, having regard to the requirements of tazkiyah-al-shuhood, that they are truthful persons and abstain from major sins (Kabair), give evidence as eye-witnesses of the occurrence."
(c) Similarly, in Section 8(b) of Offences of Zina (Enforcement of Hudood) ordinance, 1979, it was made mandatory for imposing punishment of Hadd that the Court must be satisfied about the requirement of Tazkiyah-Al-Shuhood of the witnesses. Due to the legislative defect so mentioned above, Tazkiyah-Al-Shuhood always remained a problematic question for the Courts and no judicial consensus could be developed about the procedural requirement to give it a practical effect. As per Islamic law Tazkiyah-Al-Shuhood can be carried out through open as well as by secret proceedings as is mentioned in Islam Ka Qanun-e-Shahadat (Volume 1) by S.M.Mateen Hashmi (pages 146, 149 & 308). We are mindful of the fact that a prosecution witness will always be reluctant to lift veil from his own misdeeds of having been involved in major sins, thus requirement of Tazkiyah-Al-Shuhood are to be fulfilled through a separate inquiry. Such practice, if given effect, will give rise to the proceedings involving the recording of the statements of various persons regarding the character of a witness before the commencement of actual trial for the offence. Needless to mention here that such situation is likely to give rise to the multiplicity of the litigation because if a witness is held to be involved in the commission finding. To be precise, since during trial Tazkiyah-Al-Shuhood of the eye-witnesses was not conducted, hence the conviction of the appellant under Section 302(a), P.P.C. needs to be re-visited. In the cases reported as Abdul Razaq and another v. The State [PLD 1988 Supreme Court (AJ&K) 190], Iftikhar Ali v. The State (1998 PCrLJ 2022) and Gulbar v. The State (PLD 2002 Peshawar 65) the punishment of death as Qisas was converted from 302(a), P.P.C. to 302(b), P.P.C. solely on the ground that requirement of Tazkiyah-Al-Shuhood was not fulfilled.
21. We further took note of the fact that the appellant was also awarded conviction under Sections 324 & 337-F(iv), P.P.C. for inflicting fire-arm injuries to Abida Bibi (PW.6) but as Ta'zir and that too on the same set of evidence. The afore-mentioned approach of learned trial Court whereby on similar evidence, the appellant was convicted under Section 302(a), P.P.C. as Qisas and in other provisions as Ta'zir is self-contradictory in nature. Even otherwise, after having minutely examined the provisions of Chapter XVI of P.P.C. it is noticed that according to Section 314, P.P.C. execution of Qisas in qatl--i-amd is entirely dependent upon the direction of the Court. As per the actual concept of Qisas, the delinquent is to be executed in the same manner as he assassinated the victim. Keeping in view the plain language of Section 314, P.P.C., it can be held without exaggeration that there will be no difference of execution under Section 302(a) & 302(b), P.P.C. if the Court directs that the death sentence be executed by hanging the convict. So far as, the execution of Qisas in hurt cases is concerned, it is to be done in consonance with Section 337-P, P.P.C. It implies from Section 337-P that Qisas for hurt is to be executed in public by an authorized medical officer who shall firstly examine the offender to ensure that execution of Qisas does not cause his death.
Though the appellant is convicted under Taz'zir for the hurt he caused to Abida Bibi (PW.6) but the fact remains that locale of fire-arm injury was on the chest and Qisas is not executable regarding such trauma due to the imminent death.
22. In the wake of what has been discussed above, we conclude that Khalid Mehmood (appellant) though was rightly held guilty by the trial Court but sentence of death awarded to him under Section 302(a), P.P.C. suffers from perversity. Resultantly, the conviction and sentence of the appellant under Section 302(a), P.P.C. are hereby set-aside and instead he stands convicted under.
Section 302(b), P.P.C. for committing qatl-i-amd of Tasleem Bibi, Fehmeeda Bibi and Uzma Bibi with sentence of death on three counts as Ta'zir. The compensation of Rs. 2,50,000/- to be paid to the legal heirs of each deceased under Section 544-A, Cr.P.C. is maintained. The convictions and sentences of the appellant under Sections 324 & 337-F(iv), P.P.C. are also maintained in the same terms as awarded by the trial Court. With this modification in the impugned judgment, Criminal Appeal No. 253 of 2019 is dismissed, Murder Reference No. 16 of 2019 is answered in the affirmative and death sentence awarded to Khalid Mehmood (appellant) on three counts is confirmed.