THE HIGH COURT OF SINDH AT KARACHI

Criminal Jail Appeal No.869 of 2019

Confirmation Case No. 25 of 2019

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Abdul Mobeen Lakho

Date of Hearings : 01.02.2021 & 02.02.2021

Date of judgment : 26.02.2021

Appellant : Khalid Ahmed through Mr. Muhammad Farooq advocate

Respondent : The State through Mr. Zafar Ahmed Khan, Additional Prosecutors General Sindh

Mr. Muhammad Iqbal Awan, Deputy Prosecutor General Sindh

Complainant : Present in person

JUDGMENT

NAIMATULLAH PHULPOTO, J. Appellant Khalid Ahmed was tried by learned Vth-Additional Sessions Judge, Karachi East (Model Criminal Trial Court) for offence under Section 302 PPC. After full-fledged trial, the learned trial Court vide its’ judgment dated 27.08.2019, convicted the appellant under section 302(b) PPC as Tazir and sentenced to death.

2. The prosecution case, in brief, as disclosed in FIR by complainant Bilawal is as follows:

“I reside at the above address along with my parents and siblings and work in garment industry. My younger sister Samreen d/o Khalid Ahmed aged 16 years is unmarried. Today I had gone to offer prayers and my father Khalid Ahmed was present at home. My father is of a suspecting nature. My sister-in-law Kiran w/o Sajjad and my sister Samreen were present at home. When I came back home after offering prayers, I found the door locked. I entered in the house by scaling wall and saw that my sister Samreen was drenched in the blood and sister-in-law Kiran was locked in another room. I took out sister-in-law from the room who told me that about 1200 hours Khaid Ahmed s/o Abdul Rehman stabbed Samreen to death with a knife over suspicion and locked her in the room, thereafter, went away from the house with knife. I called my brother Sajjad and shifted the body of my sister to Jinnah Hospital through Edhi Ambulance, who had sustained wounds at below and upto above the navel, right eye and on the right side of her head. My father Khalid Ahmed blamed falsely stabbed her to death by inflicting knife.”

3. After usual investigation, challan was submitted against accused/appellant under Sections 302 P.P.C.

4. Trial Court framed the charge against accused/ appellant under Section 302 P.P.C, to which he pleaded not guilty and claimed to be tried.

5. At the trial, prosecution examined lady Dr. Aiman Khursheed (PW-01) at Ex.5, who produced postmortem report and Certificate of cause of death, Complainant Bilawal Ali (P.W-02) was examined at Ex.6, who produced memo of inspection of dead body, inquest report, his statement u/s 154 Cr.P.C, mashirnama of site inspection, photographs of deceased and memo of arrest at Ex.6/A to 6/H. Star witness Mst. Kiran (P.W-03) was examined at Ex.07, SIP Zulfiqar Ali was examined at Ex.08, who produced Roznamcha entry No.25, FIR, roznamcha entry Nos. 42, 33 and 37 at Ex.8/A to 8/E, Sajjad (P.W-05) at Ex.09, Inspector Ghulam Mustafa, I.O at Ex.10, who produced roznamcha entries No.46, 60, letter to operation Manager UNM attendance sheet and chemical examiner’s report at Ex.10/A to 10/F. Thereafter, prosecution side was closed vide statement at Ex.11.

6. Statement of accused/appellant was recorded under Section 342 Cr.P.C at Ex.42. Accused claimed his false implication and denied the prosecution allegations. Accused declined to give statement on oath under section 340(2) Cr.P.C. in disproof of the prosecution allegations and did not produce witness in his defence.

7. Learned 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 27.08.20219 convicted and sentenced the appellant to death, as stated above. Trial Court has made reference to this Court for confirmation of death sentence as required by the law. Hence, appellant has filed present appeal. By this judgment, we intend to decide the aforesaid appeal as well as confirmation Reference No.25/2019 sent by the trial Court.

8. Learned advocate for the appellant contended that actual incident was un-witnessed; Mst. Kiran (P.W-03) is closely related to the deceased; that no reliance could be placed upon her evidence without independent corroboration; that appellant was not present in the house at the time of incident. It is further argued that prosecution has failed to prove its’ motive at trial. Lastly, it is submitted that in case court is not convinced for acquittal of the appellant, his death sentence may be converted to the imprisonment for life. In support of submissions reliance is placed upon the cases reported as Manzoor Ahmed Shah and others vs. The State and others (2019 SCMR 2000), Juma Khan vs. The State (2020 P.Cr.L.J 1603), Momin Khan vs. The State and another (2020 P.Cr.L.J 1322) & Hazoor Bakhsh vs. Waddon and 3 others (1980 SCMR 979).

9. On the other hand, learned Additional Prosecutor General Sindh and Deputy Prosecutor General Sindh fully supported the impugned judgment. He has contended that Mst. Kiran (PW-03) was the eye witness of the incident and daughter-in-law of the appellant, she had no motive to falsely implicate him in this case. It is further argued that appellant had also committed murder of his wife prior to this incident and he is habitual offender; that medical evidence has fully corroborated ocular evidence; crime weapon could not be recovered from the appellant as after commission of the offence, he absconded away to some unknown place and challan was submitted against him under Section 512 Cr.P.C. Lastly, he prayed for dismissed of appeal.

10. Complainant submitted that his father/appellant has committed brutal murder of daughter; he deserves no leniency in sentence.

11. We have heard the arguments of learned counsel for the parties, gone through the entire evidence which has been read out by the learned advocate for the appellant with their able assistance and have considered the relevant law.

12. After our re-assessment of the evidence, we find that the prosecution has proved it’s case beyond a reasonable doubt against appellant for the following reasons.

13. The information of the incident was given to SI Zulfiqar Ali (PW-04) promptly after 1 hour and 20 minutes. In our considered view, foundation of the prosecution case rests upon the evidence of star witness Mst. Kiran (PW-03) whose evidence we consider and discuss in detail.

14. Evidence (examination-in-chief) of Mst. Kiran (PW-03) is reproduced as under:

“On 16.02.2018, I, my sister-in-law Samreen, my father-in-law / accused Khalid were present at home. My sister-in-law Samreen was preparing meal meanwhile my father-in-law who had knife in his hand, took Samreen in the room and locked her. Thereafter, he locked me in another room and went to room in which Samreen was confined. After sometime I heard noise of crying of Samreen she was calling me and shouting that “Bhabi Mujhe Bachao, abu mujhe qtal kar rahe hen”. Thereafter, I also shouted , my father-in-law harassed and warned me “don’t cry otherwise I will do which I did with Smareen and kill you.” Thereater, after sometime Samreen became silent and my father-in-law came out from the room where murder of deceased Samreen was committed and came at my room with blood stained on his clothes carrying churri/knife in his hand and again warned me to be silent otherwise he will also kill me. Thereafter, accused left the house after committing the murder of Samreen. After sometime my brother-in-law, complainant along with his younger brother entered into the house and opened the door of room where I was confined and I informed all the facts to the complainant and his younger brother then we entered into the room where the murder of Samreen was committed. We saw the dead body of Samreen lying on the ground with pool of blood oozing from the injuries caused on her body. Thereafter, police arrived there and dead body was shifted to hospital. My statement was also recorded by the police officer. Accused present in Court is same who has committed the murder of deceased Samreen.”

Place of occurrence was admittedly house of the appellant and deceased, therefore, Mst. Kiran (PW-03) was a natural witness. After her examination-in-chief, she was subjected to lengthy cross-examination, but nothing in favour of appellant came on record. Mst. Kiran (PW-03) had no motive to falsely implicate the appellant in the present case. Her statement was confidence inspiring. Evidence of Mst. Kiran (PW-03) is also corroborated by the medical evidence. All the injuries were found to have been caused by sharp cutting weapon. The appellant was only accused who caused said injuries to the deceased daughter. Appellant was seen by Mst. Kiran (PW-03) coming out from the room in which appellant committed murder of his daughter, his clothes were stained with blood and was armed with churri. Mst. Kiran (PW-03) had no enmity whatsoever with the appellant to falsely implicate him in the murder of his daughter. We have no hesitation to believe her evidence. In this respect reliance is placed on Muhammad Ehsan vs. The State (2006 SCMR 1857), wherein it is held that even testimony of single witness if found to be reliable, confidence inspiring and unimpeachable, same would be sufficient to base conviction. It is not necessary that in each and every case there should be more than one witness for the purpose of basing conviction considering that fact also that is not the quantity of evidence but the quality of evidence on the basis of which conviction is to be based.

15. Bilawal Ali (PW-02) is the complainant of the case. He has deposed that on 16.02.2018, it was Friday, his father Khalid Ahmed, younger sister Samreen (now deceased) and sister-in-law were present at home. At about 1:30 p.m. he left home along with younger brother Mohsin to perform Jumma prayers and after offering prayer at about 2:15 p.m. to 2:20 p.m returned home back they saw that door of their house was locked. He gave call, then his sister-in-law Kiran replied that she was inside, his younger brother jumped over the wall, opened the door from inside. He saw that Mst. Kiran was weeping, when complainant inquired her about his sister Samreen, she replied that Samreen was preparing food, in the meanwhile, appellant/ father of the complainant armed with knife took Samreen to the room and committed her murder. Samreen raised cries that her father was killing her and was begging for her life, after sometime, appellant came out of the room with knife and stated her that he has committed murder of his daughter. Thereafter, complainant informed the incident to his younger brother Sajjad Ali on cellular phone and he came home within 20/25 minutes. Police also arrived at the house of the complainant and took dead body of Samreen to the hospital. Police inspected place of wardat, prepared such mashirnama in presence of mashirs. Police recorded statement of complainant in terms of Section 154 Cr.P.C, which he produced at Ex.6/C. After commission of the offence, his father left home and he was arrested on 26.02.2019 from Chapra Hotel, Korangi No.1, Karachi. Such mashirnama was prepared in presence of mashirs. Complainant who is son of the appellant has clearly deposed that his father / appellant had also committed murder of his wife and he remained in jail for three years. Such case was disposed of. Complainant was also cross-examined at length. He has denied the suggestion that he has deposed falsely against appellant, due to domestic dispute.

16. Zulfiqar Ali (PW-04) deposed that on 16.02.2018, he was posted as SI at P.S Zaman Town, Karachi. At 1540 hours, he received telephonic call from one Tariq that at House No.272, Chakra Goth, Korangi No.1 near Rahmania Masjid, one father had killed his daughter. He made such entry and informed SHO and upon whose directions, he went to the Jinnah Hospital and inspected dead body and prepared such memo and inquest report in presence of mashirs. He recorded statement of Bilawal under Section 154 Cr.P.C, he handed over dead body to Bilawal for its’ burial. Thereafter, he came back to P.S where FIR was lodged against the appellant/accused. He handed over copy of FIR, clothes of deceased and other documents to SIO for further investigation. On 26.02.2019 at 1700 hours, complainant informed I.O about presence of accused at Nagar Shah Mazar, Chapra Hotel, Korangi No.1, Karachi, at 1800 hours, I.O reached at the pointed place and arrested the accused and prepared such memo in presence of mashirs. I.O was cross-examined by defence counsel at length but nothing favourable could be brought on record. He denied the suggestion that accused himself surrendered at police station.

17. Sajjad (PW-05) deposed that on 16.02.2018 it was Friday and he was present on his duty, when he received a call from his brother/complainant who informed him about murder of sister Samreen. He reached at the place of incident, where his wife informed him about the incident. He saw the dead body lying in the pool of blood having injuries on her body. Thereafter, police arrived and dead body was shifted to hospital. Police recorded his statement. He further deposed that on 26.02.2019 at about 6:00 p.m. police arrested accused on their pointation and in their presence and prepared such memo. In cross-examination, he replied that his father had prior committed murder of their mother and was confined in jail. PW Sajjad denied the suggestion that accused himself surrendered before the Court.

18. Inspector Ghulam Mustafa (PW-06) deposed that on 16.02.2018, he received a copy of FIR along with statement recorded under section 154 Cr.P.C and other documents for investigation. On the same day, at 2035 hours he inspected the place of incident, on the pointation of complainant, secured blood stained earth, sealed the same in presence of mashirs and prepared such memo. I.O also obtained attendance certificate of accused from private security company where he was employed. I.O also sent clothes of the deceased and blood stained earth to the chemical examiner on 03.03.2018 and received positive reports. I.O further deposed that accused could not be arrested during investigation, therefore, he submitted the challan under Section 512 Cr.P.C. I.O was cross-examined by the defence counsel. I.O has denied the suggestion that proper investigation was not conducted by him.

19. We have carefully heard the learned advocates for parties and perused the evidence minutely. Evidence of Mst. Kiran (PW-03) was sufficient to prove the case of prosecution. Moreover, evidence of Mst. Kiran (PW-03) is supported by complainant and other witnesses. Evidence of Mst. Kiran (PW-03) is also fully corroborated by medical evidence. Trial Court has rightly relied and appreciated the evidence according to the settled principles of law.

20. In our view medical evidence given by lady Dr. Aiman Khursheed (PW-01), who carried out postmortem examination of deceased Samreen fully supported the evidence of Mst. Kiran, which shows that deceased sustained three stab wounds. According to Doctor, deceased died instantaneously; time elapsed between death and postmortem was 2.5 hours. Lady Doctor on the external as well as internal examination of the dead body came to the conclusion that death of deceased was caused due to acute abdominal injury and injury of cardinal Visceras of abdomen leading to irreversible shock and hemorrhage and cardio respiratory failure due to injury caused by sharp edged object. Unnatural death of deceased has not been disputed by the defence before the trial Court as well as before us. Finding in this regard recorded by the trial Court also requires no interference by this Court. There was a positive chemical report in respect of human blood found at the scene and on the clothes of deceased. Such report was also produced before trial Court. Crime weapon/churri could not be recovered from the accused, as he absconded away after commission of the offence and challan was submitted against him under Section 512 Cr.P.C. Evidence of Mst. Kiran (PW-03) provides a believable corroborated unbroken chain of events from taking deceased by her father when deceased was preparing meals to the room till her death by means of churri/knife. Evidence of other P.Ws is also consistent on all material particulars of the case. However, there are some contradictions in their evidence. We consider these contradictions as minor in nature and not material and certainly not of such materiality so as to effect the prosecution case. Reliance is placed upon Zakir Khan vs. The State (1995 SCMR 1793). Undoubtedly, it is for the prosecution to prove its case against accused beyond a reasonable doubt. We have considered prosecution evidence as well as defence theory to see if it at all can cast doubt or dent in the prosecution case. It is claimed by the appellant that this is a false case against him, but we have found evidence of Mst. Kiran (PW-03) a natural evidence, disclosing the real facts; when deceased at the time of incident was calling Kiran for her rescue in these words, “Bhabi Mujhe Bachao, abu mujhe qtal kar rahe hen”, she shouted but her father-in-law harassed and warned her not to cry else, she would face the same consequences. Evidence of Mst. Kiran (PW-03) as observed above provides a chain of events/ circumstances which connect the appellant with commission of the offence. Appellant failed to produce any evidence in his defence. Appellant in his statement recorded under Section 342 Cr.P.C failed to explain the murder of unmarried daughter in his house. It has come on record that appellant prior to the commission of the murder of the deceased had also committed murder of his wife. The chain of circumstantial evidence is firm and continuous, leaving no margin for the hypothesis of innocence of the appellant. The rope of circumstantial evidence, adduced by the prosecution, ties the dead body of the deceased girl with neck of the appellant. The occurrence in this case, as per prosecution case took place on 16.02.2018 at 1400 hours inside the room of the house of the appellant. Mst. Kiran (PW-03) had seen the appellant while taking his daughter (now deceased) when she was preparing meals, to the room and at the time of killing her she was raising cries and was calling Mst. Kiran present in the same house for rescue when appellant committed her murder and there was silence in the room. Appellant came out of the room and Mst. Kiran saw the appellant/ father-in-law, his clothes were blood stained, churri/knife was in his hand. Even otherwise, we find that attack on the deceased which led to her death was brutal, barbaric and frenzied, causing 03 incised wounds on vital parts of her body. In this respect, evidence of Lady Dr. Aiman Khursheed (PW-01) is reproduced below for ease of reference:

1. Incised wound size 0.5 cm x 1 cm x 3 cm over frontal bone of scalp bone exposed.

2. Incised wound over lateral side of R eye size 2.5 cm x 0.25 cm involving lower eye lid laterally, bone not exposed eye ball intact.

3. Incised wound over abdomen size 7 inches. 2 cm laterally to umbilicus on the left side going down words medially upto the mid of pubic symphysis, superior border. Viscera deep. Abdominal viscera oozed out of abdomen.

21. Now, the question in this case only is to consider as to whether appellant deserves the sentence of death on the charge of qatl-e-amd of daughter or not. In the case of Shamshad Ali vs. The State (2011 SCMR 1394), father had committed Qatl-e-Amd of his daughter. Honourable Supreme Court held that prosecution had failed to prove motive and there were no mitigating circumstances, death sentence confirmed by the High Court was maintained and appeal was dismissed. Relevant portion is reproduced as under:

“10. No mis-reading or non-reading of evidence or legal infirmity in the impugned judgment has been pointed out to us. The half hearted argument of the learned counsel for the appellant that the appellant being the ‘Wali’ of the deceased, is governed by section 306 P.P.C and therefore, cannot be punished for the qatl-e-amd of his daughter because of the provision of Section 306, P.P.C has also no force because in such a situation section 306(b) P.P.C provides that qatl-e-amd shall not be liable to Qisas whereas in the present case, the appellant has not been convicted under section 302(a) P.P.C as Qisas but convicted under section 302(b) P.P.C as Tazir and cannot get any benefit from the provisions of section 306 P.P.C.

11. In our opinion, the prosecution had been able to prove its case against the appellant beyond any shadow of doubt. We have tried to find any mitigating circumstance in favour of the appellant for the lesser punishment but have found none. The deceased after receiving the first hatchet blow from the appellant ran inside a room and the appellant followed her and inflicted deadly blows on her repeatedly and one of the said blows became the cause of the death of deceased, therefore, he is not entitled to any leniency. Some concession has already been shown to him by the learned High Court through reducing the amount of compensation payable by the appellant from Rs.200,000 to Rs.50,000.”

22. In the case of Tariq Iqbal vs. State (2017 SCMR 594), murder was committed by the appellant in furtherance of a robbery and a young lady in her prime had been butchered by the appellant inside her house by giving as many as 10 churri blows on different parts of her body. Such conduct displayed by appellant clearly showed that appellant is a cruel desperate person who deserves no sympathy in the matter of his sentence. Sentence of the appellant to death was maintained. Relevant portion of the judgment is reproduced as under:

“3.        Leave to appeal had been granted in this case only to consider as to whether the appellant deserved the sentence of death on the charge of murder or not and at the stage of granting leave to appeal the merits of the appellant's case had not been pressed before this Court. This shows that the question of the appellant's guilt as well as all the factual allegations leveled by the prosecution against the appellant now conclusively stand settled and accepted. The appellant had trespassed into the complainant's house, had killed the complainant's wife and had robbed different articles available in the complainant's house which articles had later on been recovered from the appellant's custody. The appellant had made an extra-judicial confession before two witnesses and had also made a judicial confession before a Magistrate. The murder in issue had been committed by the appellant in furtherance of a robbery and a young lady in her prime had been butchered by the appellant inside her house by giving as many as 10 chhurri blows on different parts of her body. Such conduct displayed by the appellant clearly shows that the appellant is a cruel and desperate person who deserves no sympathy in the matter of his sentence. This appeal is, therefore, dismissed.”

23. In the case of Muhammad Akram vs. The State (2003 SCMR 855), it is held that provisions of Sections 306, 307 & 308 PPC would only attract in the cases of Qatl-i-Amd liable to Qisas under Section 302(a) PPC and not in the cases in which sentence for Qatl-i-Amd had been awarded as Tazir under Section 302(b) & (c) PPC.

24. In the recent case reported as Muhammad Imran vs. The State (2021 SCMR 69), appellant Muhammad Imran faced trial for committing qatl-e-amd of his wife Nasreen Bibi, 30, as well as daughters Aneela Bibi, 17, and Sawaira, 9, at 8/9:00 a.m. on 08.07.2010 within the precincts of Police Station Chatiana District Toba Tek Singh, Muhammad Imran appellant was convicted under clause (b) of Section 302 PPC and had been condemned to death on three counts by the learned Sessions Judge, Toba Tek Singh vide judgment dated 08.03.2011, upheld/confirmed by the High Court vide judgment dated 29.09.2015, vires whereof were assailed before Honourable Supreme Court. Appeal was disallowed for the following reasons:

“5.    Prosecution case is structured upon ocular account furnished by Abdul Sattar (PW-6) and Abdul Ghaffar (PW-7); former is appellant's father-in-law whereas the latter is distantly related with him and as such they are not expected to swap the culprit of gruesome murders with the appellant, himself figuring as son-in-law within the family bond. Nasreen Bibi was survived by two sons Samiullah and Abu Bakar who escaped assassin's wrath; it is inconceivable that the complainant would falsely substitute father of his grand children, already devastated by the loss of their mother as well as sister. Circumstances of the case and evidence brought on the record do not admit any space to even obliquely entertain any hypothesis of substitution, otherwise a rare phenomena, antithetical to retributive human instinct. Similarly, uncongenial matrimonial relationship has not seriously been disputed and, thus, the cited motive cannot be discounted nor considered as inconceivable so as to extend any premium to the appellant. On the contrary, appellant's awfully disproportionate violent response on his wife's approach to her father for rescue and awful brutality inflicted by him on her and two unconcerned innocent daughters, one from his previous marriage, do not provide him any space to hide behind the shield of disproportionality of his appalling behaviour. Likewise, visit by the witnesses on the fateful day, cannot be viewed as improbable or unnatural. A father visiting his distressed daughter to mediate an ongoing dispute cannot be characterized as a witness arriving at the scene per chance. Both the witnesses furnished graphic details of the occurrence as well as the events collateral therewith; in a comfortable and confidence inspiring unison, they faced no serious challenge during the cross-examination, otherwise inconsequential and directionless, mainly comprising bald suggestions, vehemently denied. Recovery of Toka (P-12) provides additional corroboration, stained with blood of human origin, the weapon recovered upon appellant's disclosure is singularly consistent with the injuries suffered by all the deceased. Ghulam Qadir, SI (PW-10) carried out the investigation; he unambiguously controverted position taken by the defence. Prosecution has successfully driven home the charge beyond reasonable doubt. On a most careful examination of the record, we have not been able to find out even a smallest space to entertain any hypothesis other than appellant's guilt; his callously reckless disregard for human life in a trivial domestic situation without provocation and infliction of gruesome brutality on the poor souls of his own clan is chillingly shocking to the judicial conscience and, thus, wage settled by the trial Court, upheld by the High Court is conscionable on scales; he deserved nothing less. Appeal disallowed.”

25. On close scrutiny of the record, we have not been able to find out even a smallest space to entertain any hypothesis other than appellant’s guilt; he had committed murder of innocent unmarried daughter aged about 16 years by causing her multiple churri blows on different parts of her body. We have tried to find any mitigating circumstance in favour of the appellant for lesser punishment but have found none. Such conduct displayed by appellant clearly shows that appellant is a cruel and desperate person who deserves no sympathy in the matter of his sentence. It is matter of record that prior to this case, appellant had faced trial for committing qatl-e-amd of his wife, as such appellant has criminal history. This appeal is, therefore, dismissed, impugned judgment is upheld, Confirmation Reference is answered in “AFFIRMATIVE”.

JUDGE

JUDGE