HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 245 of 2019

Confirmation Case No.05 of 2019

Present: Mr. 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

JUDGMENT

NAIMATULLAH PHULPOTO, J. Jamshed Khan appellant was tried by learned 1^st 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.

2. Brief 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.”

3. After 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.

4. Trial 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.

5. In 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 closed.

6. Statement 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.

7. Trial 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.

8. Learned 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).

9. Mr. 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:

Surface wound and injuries

1. There 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 out.

2. Projectile wound of entry 0.5 cm X 0.5 cm into inverted margins over right arm posterior lateral aspect.

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 following damages:

Internal Injury

Internal examination not conducted as injuries mentioned in column No.2 was sufficient to cause death in normal course of life.

Time between injuries and death: Instantaneous

Time 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 injury.

Unnatural 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 following injuries:

“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.

The patient was immediately shifted to EOT for further management and treatment. Doctor issued MLC which she produced at Ex.10.

Dr. 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:

1. Fire arm wound of entry 0.5 cm x 0.5 cm adjacent to left nipple.

Exited from back of left of chest.

2. Fire arm wound of entry 0.5 cm x 0.5 cm on front of right knee.

Exited from back of right knee.

3. Fire arm wound 1cm x 1cm lacerated in manner on medical aspect of left leg lower 1/3.

4. No blackening was seen. Corresponding mark of fire arm was present on cloth.

Doctor 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.”

She 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 reasons:

“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 prosecution evidence.

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 evidence.

24. Again 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).

25.       For 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.

26.       As 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”.

27. In the view of above, this Appeal is disposed of in the above terms.

JUDGE

JUDGE