COURT OF SINDH AT KARACHI
Appeal No. 245 of 2019
Case No.05 of 2019
Justice Naimatullah Phulpoto
Mr. Justice Abdul Mobeen Lakho
Date of Hearing : 18.01.2021
Date of judgment : 29.01.2021
Appellant : Jasmshed Khan through Mr. Saifullah Khan Afridi Advocate
Respondent : The State through Mr. Ali Haider
Saleem and Mr. Muhammad Iqbal Awan Deputy Prosecutors General Sindh
NAIMATULLAH PHULPOTO, J. Jamshed
Khan appellant was tried by learned 1st Additional Sessions Judge,
Malir Karachi/ Model Criminal Trial Court for offences under Sections 302/324/34
PPC. After full-fledged trial, vide judgment dated 18.04.2019, appellant was
found guilty for causing qatl-e-amd of Mst. Dildar Begum under Section 302(b)
PPC and sentenced to death as Tazir subject to confirmation by this Court. He
was also directed to pay compensation of Rs.500,000/- to the legal heirs of
deceased under Section 544-A Cr.P.C. In case of failure to pay the same, he was
directed to undergo S.I for four months. Appellant was also convicted under
Section 324 PPC for causing injuries to Mst. Afsana and sentenced to 7 years
S.I and to pay fine of Rs.200,000/- to the victim. In case of default in
payment of fine, he was ordered to suffer S.I for four months. Appellant was
also found guilty for an offence under Section 324 PPC for causing injuries to
Faizullah, he was sentenced to 07 years S.I and to pay fine of Rs.200,000/- to
the victim. In case of default in payment of fine he was ordered to suffer S.I
for four months.
facts of the prosecution case as disclosed by eye witness Hazrat Hussain
(P.W-01) in his evidence at Ex.4 are as under:
“The accused Jamshed is my brother
in law. On 23-04-2012 at about 04:00 p.m. I was available in my house along
with my mother namely Mst. Dildar Begum, my sister namely Afsana and my brother
namely Faizullah. The accused Jamshed along with his brother-in-law came into our
house, they tried to forcibly take away my sister (the wife of accused Jamshed)
my sister namely Afsana was not ready to go with accused Jamshed. Meanwhile
accused and my sister started to quarrel to each other, my mother intervene
such quarrel, on such accused Jamshed started straight firing on my mother. Due
to firing my mother fell down on the floor and I myself concealed under the
cot. While I remained there under the cot, accused was continuously firing. The
firing continued for 05 to 06 minutes by both accused and thereafter accused
persons left our home after taking my niece (daughter of Afsana). I saw that my
brother Faizullah and sister Afsana were also injured. Then I called my other
brother-in-law namely Dilawar. I also called my brother Naimat. Both Naimat and
Dilawar reached at home and thereafter all three were taken to hospital in
Ambulance. I also went Jinnah Hospital. My mother namely Dildar Begum died on
spot, while my brother Faizullah and sister Afsana remained under treatment at
Hospital. My brother Faizullah remained critical and when he was discharged
after more than 10 to 15 days he finally died on account of such injuries
within one week of such discharge. My brother Faizullah was died on Metrovil
and he was also buried over there. Later on I.O recorded my statement. Accused
Jamshed present in Court.”
registration of the FIR, SIP Muhammad Aslam proceeded to the Jinnah Hospital,
where he found the dead body of Mst. Dildar Begum, both injured persons were
serious in condition, I.O could not record their statements. I.O made efforts
for arrest of accused, but appellant after commission of offence became
fugitive from law. I.O on the conclusion of the usual investigation, submitted
challan against accused Jamshed and Niaz under Section 512 Cr.P.C for offences
under Sections 302/324/34 PPC. Appellant/ accused Jamshed was arrested on
22.12.2018 and was produced before trial Court. Formalities against absconding
accused were completed by the trial Court.
Court framed charge against accused Jamshed for offences under Sections 302/324/34
PPC at Ex.02. Appellant pleaded not guilty and claimed to be tried.
order to substantiate the charge, prosecution examined Hazrat Hussain (P.W-01),
Dr. Rohina (P.W-02), SIP Sulleman Abbasi (P.W-03), Dr. Kaleem (P.W-04), Dilawar
Khan (P.W-05), Muhammad Parvaiz (P.W-06), Mst. Afsana (P.W-07), Nimat Hussain
(P.W-08), SIP Muhammad Yaqoob Kehar (P.W-09). Thereafter, prosecution side was
of accused was recorded under Section 342 Cr.P.C at Ex.42. Accused claimed his
false implication and denied prosecution allegations. Accused declined to give
statement on oath under section 340(2) Cr.P.C. in disproof of the prosecution
allegations. However, he has examined in defence Wahab and Noor Rehman (D.Ws)
at Ex.43 and 44.
Court after hearing the learned counsel for the parties and assessment of the
evidence came to the conclusion that prosecution had established its’ case
against the appellant and vide judgment dated 18.04.2019 convicted and sentenced
the appellant to death, as stated above. Hence, he has filed present appeal. By
this judgment, we intend to decide the aforesaid appeal as well as confirmation
Reference No.05/2019 sent by the trial Court.
advocate for the appellant contends that occurrence does not appear to have
taken place in the manner as alleged in the crime report particularly in the
background of alleged motive of the custody of small baby. Learned counsel for
appellant while referring to evidence of injured Mst. Afsana (P.W-07), contends,
that relations between the appellant and Mst. Afsana (P.W-07) were strained,
she has falsely implicated the appellant in order to settle an ongoing dispute
between the husband and wife. He has emphatically highlighted absence of the
recovery of the weapon allegedly used by the appellant during occurrence.
Lastly, argued that prosecution has failed to prove its’ case against the
appellant. In support of his contention reliance is placed upon the cases
reported as Bakht Munir vs. The State
and another (2020 SCMR 588) & Kamal-ud-din vs. The State (2020 MLD 2059).
Ali Haider Saleem D.P.G however, has faithfully defended the impugned judgment.
He has argued that relations between the husband and wife were strained and
appellant came from KPK to snatch the
minor baby from his wife, to which she resisted and indiscriminate firing was
made by the appellant in the result mother-in-law of the appellant namely Mst.
Dildar Begum died. Learned D.P.G further submits that Mst. Afsana (P.W-07) and
Faizullah sustained fire arm injuries in the incident. He further submits that
ocular evidence was corroborated by the medical evidence; after the incident
appellant absconded away to the KPK and become fugitive from law. DPG submits
that crime weapon could not be recovered from appellant as he absconded away
after the incident. He has prayed for dismissal of the appeal. Reliance is
placed upon the case of Zahid Iqbal vs. The state (2017 SCMR 1543).
10. We have
carefully heard learned counsel for the parties and perused the record
minutely. Prosecution case is primarily structured upon ocular evidence
furnished by P.Ws Afsana and Hazrat Hussain, but before discussing the ocular
evidence, we have decided to discuss the medical evidence.
11. In order
to prove unnatural death of deceased Mst. Dildar Begum, prosecution has
examined Dr. Rohina, who has deposed that on 23.04.2012, she was posted at JPMC
Karachi. On the same day, SIP Muhammad Aslam Joya brought a dead body of Mst.
Dildar Begum for conducting her postmortem and report. Doctor started
postmortem examination on the same day, at 7:10 p.m. and finished at 8:00 p.m. On
external examination of the dead body, Doctor found following injuries:
wound and injuries
was one projectile wound of entry 0.5 cm X 0.5 cm into cavity deep; there was a
deposition of gun powder noted around the wound over front of the forehead;
Projectile wound of exit 1.0 cm X 1
cm into everted margins, over back of occipital region, brain matter oozing
wound of entry 0.5 cm X 0.5 cm into inverted margins over right arm posterior
Projectile wound of exit 1 cm X 1 cm
into everted margins over right medial exit of axilla.
On internal examination of the dead body, Doctor found
Internal examination not conducted
as injuries mentioned in column No.2 was sufficient to cause death in normal
course of life.
between injuries and death: Instantaneous
between death and postmortem: 03 to 04 hours
Cause of death was cardio respiratory failure
due to acute injury overhead and hemorrhagic shock resulting from fire arm
death of Mst. Dildar Begum and injuries on the persons of Mst. Afsana and
Faizullah are not disputed by the defence counsel. Doctors have opined that
deceased died of fire arm injuries. We have no hesitation to hold that finding
of the trial Court in this regard requires no interference.
Dr. Rohina has also deposed that on the same day before
conducting postmortem at about 5:10 p.m. Mst. Afsana was brought by her brother
Naimat Hussain in injured condition. Doctor examined her and found the
“Injury No.1 was fire arm wound of
entry 0.5 cm X 0.5 cm into everted margins over left side of cheek; deposition
of un-burnt gun powder noted around the wound.
Firearm wound of
exit 1cm X 1cm into everted margins over right side of neck;
Injury No.2: Fire arm wound of entry
0.5cm X 0.5cm no tattooing and singing noted over back of right arm
Firearm wound of exit 1cm X 1cm from
anterior aspect of right arm.
patient was immediately shifted to EOT for further management and treatment.
Doctor issued MLC which she produced at Ex.10.
Kaleem (P.W-04) has deposed that on the same day at 0530 hours, he received
injured Faizulah aged about 25 years for his examination and certificate.
Doctor found following injuries on his person:
Fire arm wound of
entry 0.5 cm x 0.5 cm adjacent to left nipple.
Exited from back of left of chest.
Fire arm wound of
entry 0.5 cm x 0.5 cm on front of right knee.
Exited from back of right knee.
Fire arm wound 1cm
x 1cm lacerated in manner on medical aspect of left leg lower 1/3.
No blackening was seen.
Corresponding mark of fire arm was present on cloth.
referred injured for X-rays examination and reserved the nature of the
injuries. However, opined that injuries were caused by means of the fire arm
and the same were fresh at the time of examination. M.O issued such certificate
and produced it at Ex.24. In cross examination, M.O replied that Faizullah had
received three gunshot injures.
12. Now question arises whether appellant had
committed qatl-e-amd of Mst. Dildar Begum and caused fire arm injuries to the
injured namely Mst. Afsana and Faizullah on 23.04.2012 at 1615 hours, in the
house of his wife (Mst. Afsana) as alleged by the prosecution?
13. Trial court has found the appellant
guilty. We have not been able to take view of the matter different from the
taken by the trial Court for the following reasons.
14. After close scrutiny of the evidence, we
have come to the conclusion that trial Court has rightly appreciated the
evidence and found appellant guilty. Upon our deeper appreciation of evidence, we
find that finding of trial Court requires no interference for the reasons that
in this case evidence of Mst. Afsana and Hazrat Hussain is natural, credible
and trustworthy. Mst. Afsana (P.W-07) was the wife of the appellant and injured
witness. Mst. Afsana (P.W-07) in her evidence before trial Court has narrated
true picture of the incident in the following words:
“Accused Jamshed was my husband and now I have obtained
Khulla from the court. On 23-04-2012 I was available in my parents’ house along
with my mother, brothers namely Hazrat Hussain and Faizullah. It was about 4:00
p.m. the present accused came along with his brother-in-law (HUSBAND OF HIS
SISTER). They were armed with pistols, they came inside our house and started
quarrel with us, during such quarrel present accused fired upon my mother, my
elder brother Faizullah and myself on my left cheek and also I had sustained
fire arm injury on my right arm. My daughter Shumaila aged about 06 months was
also taken by the accused and thereafter both the accused persons slipped away
from the scene crime. Thereafter I lost my conscious and when I regain my
conscious I was in hospital. My mother died on account of such injuries and
later on my brother Faizulah also died. My statement was recorded by police.
Accused Jamshed present in Court is same.”
was cross-examined by the defence counsel at length, but not a single infirmity
in her statement came on record.
15. Hazrat Hussain (P.W-01) another eye
witness of the incident has deposed that accused Jamshed was his brother-in-law.
On 23-04-2012 at about 4:00 p.m. he was available in his house along with his mother
namely Mst. Dildar Begum, sister Afsana and brother namely Faizullah. Appellant
Jamshed along with his brother-in-law came into house, appellant tried to
forcibly take away his sister Afsana who was not ready to go with appellant
Jamshed. Meanwhile, quarrel started in between appellant and his sister, his mother
intervened, on which appellant Jamshed straightly fired on his mother. Due to
firing his mother fell down on the floor and he concealed himself under the
cot. The firing was continuously made by both accused for 5 to 6 minutes. Thereafter,
accused persons left their home after taking his niece (daughter of Afsana). He
saw that his brother Faizullah and sister Afsana were lying injured. Then, he
called his other brother-in-law namely Dilawar as well as his brother Naimat.
Both Naimat and Dilawar reached at home. Thereafter, all three were taken to
hospital in Ambulance. He further deposed that he also went to Jinnah Hospital.
His mother Mst. Dildar Begum died at spot, while his brother Faizullah and
sister Afsana remained under treatment at hospital. His brother Faizullah died
on account of such injuries after one week of such discharge. I.O had recorded his
statement. Defence counsel
cross-examined him on various aspects of the case, but his presence in the
house at the relevant time could not be doubted. Defence had not denied
presence of injured P.Ws at the spot.
16. Motive as set up in the FIR was strained
relations between the husband “appellant” and his wife “Mst. Afsana”; Mst.
Afsana (P.W-07) in her evidence has stated that appellant committed murder of
his mother, caused her injures and to her brother on account of dispute with
her. Hazrat Hussain (P.W-01) has also deposed that motive for the commission of
the offence was the differences between his sister and the appellant. Trial
Court has also held that prosecution has succeeded to prove its’ motive at the
trial. Upon our independent examination of evidence, we have also come to the
conclusion that motive asserted by the prosecution in the FIR has been
established at trial.
17. It may be observed that injured Faizullah
died after discharge from hospital within one week. Trial Court in para-23 of
the judgment has held that unnatural death of Faizullah has not been proved by
the prosecution and prosecution has only proved that Faizullah received fire
arm injuries at the hands of appellant. Trial Court in para 23 of the impugned
judgment, for coming to that conclusion, has rightly recorded following
“23) The prosecution has also alleged that accused
Jamshed had also critically injured Faizullah (during evidence, witnesses
deposed that said Faizullah later on died on account of such injuries but no
record was produced). It shows a sheer lethargy/incompetence on the part of IO
that despite of the fact that he had submitted supplementary challan in
December 2018 but he had not taken any pain to confirm whether Faizullah is
alive or not and shown him as a witness in the Charge Sheet. Although failure
of prosecution to produce Faizullah or bring any documentary evidence as to his
death could have damaged prosecution case but in this case, the failure of IO
could not be fatal since, prosecution/ complainant cannot be blamed in this
regard. The evidence of Dr. Kaleem clearly shows that on 23-04-2012 injured
Faizullah was brought for examination and even though he had not received any
history of the injured but the nature of the injury described by him in MLC
shows that those were sufficient to come within the ambit of section 324 PPC,
even prosecution had failed to prove the death of Faizullah on account of non
production of death record. Faizullah had one fire arm injury through and
through on his left side nipple of chest and most important organ i.e. heart is
situated just behind the left side nipple. So, I would conclude that even if no
death record of Faizullah had been produced neither it creates any doubt nor it
absolve the accused Jamshed from the offence of attempt to commit murder of
Faizullah under section 324 PPC. So, on the basis of above discussion I answer
point No.3 is also proved.”
18. SIP Suleman Abbasi (P.W0-03) has deposed
that on 24.04.2012, he received copy of the FIR bearing Crime No.206/2012 under
Section 302/324/34 PPC registered at P.S Quaidabad, inquest report, one sealed
packet of the clothes of the deceased and other documents. SIP Suleman Abbasi
further deposed that these documents were prepared by SIP Aslam Joya, who has
retired from service and he was well conversant with his handwriting and
signatures as he had worked with him for 7/8 years. Above named I.O visited
place of wardat on the pointation of PW Dilawar Khan, he found blood lying on
the floor collected and sealed it. P.W Dilawar handed over three missed live
bullets, three empties of 30 bore and two bullets heads to the I.O. I.O went to
the Jinnah Hospital where with the permission of the Doctor, he recorded
statement of injured Faizullah. According to the I.O, said Faizullah has
expired. He could not record statement of Mst. Afsana as she was unconscious.
On 01.06.2012, I.O sent sealed articles to the expert for chemical report and
produced positive report of the chemical examiner at Ex.22, with regards to the
clothes of deceased Dildar Begum. I.O was cross-examined by the defence
counsel. I.O has denied the suggestion that proper investigation was not
conducted by him.
19. Dilawar Khan (P.W-05) has deposed that
deceased Mst. Dildar Begum was his mother-in-law. On 23.04.2012 at 4:00 p.m., he
was present at his shop when his brother-in-law Hazrat Hussain informed that
appellant Jamshed and other had come in the house and made firing upon his
mother, brother and sister. On such information, he went to the house of Mst.
Dildar Begum, but found that house was locked, all the injured persons and
deceased were shifted to the Jinnah Hospital. Above named P.Ws, rushed to the hospital
where found his mother-in-law had expired whereas, his brother-in-law namely
Faizullah and sister-in-law Mst. Afsana were lying in the hospital in the
injured condition. He was cross-examined by the defence counsel, he denied the
suggestion that he was deposing falsely against the appellant at the instance
of his brother-in-law. In reply to the question of the trial Court, he replied
that there was dispute between appellant and Mst. Afsana.
20. SIP Muhammad Parvez (P.W-06) has deposed
that on 17.12.2018, he along with SIP Muhammad Yaqoob of P.S Quaidabad went to
the Province of KPK, for the arrest of absconding accused Jamshed in this case.
Above named SI came to know that appellant was already arrested at P.S Shaikh
Maltoon of City Mardan province of KPK. Thereafter, appellant was arrested in
this case formally and was produced before trial Court.
21. Niamat Hussain (P.W-08) has deposed that
on 23.04.2012, at about 4:00/4:30 p.m. he received phone call of his younger
brother namely Hazrat Hussain, who informed him that appellant Jamshed along
with his brother-in-law came into their house and fired upon his mother, sister
Afsana and brother Faizullah. His brother further informed him that they were
going to Jinnah Hospital along with injured. On such information, he rushed to
the Jinnah Hospital and came to know that his mother had died whereas his
sister and brother had received injuries and were admitted in the hospital. He
was cross-examined by the defence counsel, he denied the suggestion that he was
deposing falsely against the appellant.
22. SIP Muhammad Yaqoob Kehar (P.W-09) has
deposed that he had arrested appellant in this case from KPK. It was the entire
23. Appellant examined Wahab and Noor Rehman (D.Ws)
in his defence. Wahab (D.W) has deposed that appellant was working with him at Kalhora
Steel. Noor Rehman (D.W) has deposed that appellant was working with him at Tor
Bela Steel Gadoon Swabi. Both D.Ws were cross-examined by the DDPP for state
and denied the suggestion that they have defended accused falsely due to
friendship. It is settled law that when specific
defence plea is raised by the accused, the burden to prove the same lies upon
him. According to prosecution evidence, appellant was arrested by KPK police in
this case on 22.12.2018, as to why the defence witnesses after arrest of the
appellant in this case did not appear before I.O for recording their statements
regarding false implication of the appellant in this case. D.Ws had failed to
explain the nature of the job or work which they were performing along with
appellant at the time of incident. Both D.Ws have mentioned different places of
work. Mere plea of the D.Ws, that on 23.04.2012 appellant was working with them
at Swabi without cogent material, was not sufficient and the same appears to be
afterthought. On the other hand, ocular evidence is credible and trustworthy
corroborated by the medical evidence. Absconsion of the appellant for 6 years was
also unexplained. Prosecution has succeeded to prove motive at trial. We have
no hesitation to hold that trial Court rightly rejected the defence
it has been observed above that in this case evidence of the eye
witnesses Mst. Afsana and Hazrat Hussain
is natural, credible and trustworthy and is sufficient to establish the charge.
All the prosecution witnesses were subjected to stern and searching
cross-examination but nothing advantageous could be elicited from them. Crime
weapon could not be recovered from the appellant; because after commission of
the offence, appellant absconded away to KPK and became fugitive from law. In
this case ocular evidence is natural and credible as such corroboration from
any other source is not required. Rule of corroboration in the criminal
administration of justice is not a mandatory rule to be observed in each case,
rather it being a rule abundant caution is applied to satisfy the mind and
ensure the truthfulness of the direct evidence, as held in the case of Abdul Rashid alias Sheda Mota and
another v. The State (2003 SCMR 799). Occurrence had taken place in day light
and FIR in respect of same offence had been lodged on the same date wherein
appellant has been mentioned as principal accused. Mst. Afsana (P.W-07) is the
wife of the appellant, Hazrat Hussain (P.W-01) is the brother-in-law of the
appellant. The ocular account furnished by above named eye witnesses had
received full support from medical evidence, crime weapon could not be
recovered from the appellant as he absconded away for pretty long time and
challan was submitted under Section 512 Cr.P.C. Eye witnesses had made
consistent statements and availability of the injured witness at the scene of
the crime is established due to injuries. Learned trial Court had assessed and
evaluated the evidence in some detail and came to the conclusion regarding
guilt of the appellant having been established beyond reasonable doubt. Upon our
own independent evaluation of the evidence, we have not been able to take a view
of the matter different from that taken by the trial Court. The
appellant had demonstrated extreme barbarity by using a pistol upon his wife,
mother-in-law and brother-in-law and took away baby of 6/7 months. Appellant
had committed murder of his mother-in-law and caused injuries to witnesses, thus,
he deserves no sympathy in the matter of his sentence. The usual wages of a
crime of murder is death and in the peculiar circumstances of this case the
appellant deserves no less. Rightly reliance is placed upon the case of Zahid
Iqbal vs. The state (2017 SCMR 1543).
the above stated reasons no occasion has been found by us for reducing the
appellant's sentence from death to imprisonment for life. Appellant was also convicted
under Section 324 PPC for attempting to commit qatl-e-amd of injured Mst.
Afsana and Faizullah separately for 07 years S.I, which is erroneous in law and
it is converted to 07 years R.I. However, remaining sentence of fine awarded by
the trial Court is maintained.
a sequel to the discussion made above, we find no reason whatsoever to
interfere in the conclusion arrived at by the trial court in conviction and
death sentence awarded to the appellant. Consequently, appeal is dismissed.
Reference for confirmation of death
sentence is answered in “AFFIRMATIVE”.
the view of above, this Appeal is disposed of in the above terms.