IN THE HIGH COURT OF
SINDH AT KARACHI
Criminal Appeal No.122 of 2012
Confirmation Case No. 02 of 2012
Present:
Mr.
Justice Sajjad Ali Shah
Mr. Justice Naimatullah Phulpoto
Appellant : Bahawal Khan
through Mr. Abdul Rasheed Nizamani, Advocate for the Appellant
Respondent : The State through Mr. Khadim Hussain Khuharo,
D.P.G.
Date of hearing : 29.01.2014
JUDGMENT
NAIMATULLAH
PHULPOTO, J. – This appeal is directed against the judgment passed by
learned Additional Sessions Judge-IV, Karachi West in Sessions Case No.179/1999,
dated 02.04.2012, whereby appellant Bahawal Khan was
convicted u/s 302(b) PPC Tazir and sentenced to
death. The Reference for confirmation of death sentence u/s 374 Cr.P.C was also
made by Trial Court. The Reference for confirmation shall also be disposed of
by this Judgment.
2. Brief facts of the prosecution as
disclosed in the FIR are that on 04.04.1999 complainant Firdous
Khan lodged his report at Police station Saeedabad
Karachi. On 04.04.1999 complainant along with his mother Mst.
Pari went to see his sister-in-law at Saeedabad House No.C-3/804, where it is alleged that in the
evening his two brothers PWs namely Wazeer Dost and Shamim Dost came over there. At 9:15 PM, his brother-in-law
Hazrat Khan informed him on telephone that accused Bahawal Khan has murdered Wazeer
Dost with his rifle. After such information, he immediately reached in the
house of sister, where his younger brother Shamim
Dost informed him that during day hours accused Bahawal
a neighbourer, had thrown debris in front of house of
their sister, to which they protested. Bahawal
accused insulted/abused their mother. It is alleged that at 9:00 pm, he along
with Wazeer Dost went to house of accused to protest
for his behavior and accused murdered Wazeer Dost by
means of the rifle. FIR of the incident was lodged under Section 302 PPC.
3. Mazhar Iqbal Awan Investigation Officer
during investigation inspected place of vardat on
04.04.1999, collected blood stained earth and 03 empties in presence of the mashirs Shamim Dost and Hazrat Khan and sealed the same. He prepared inquest report
of deceased. Dead Body was sent to the Civil Hospital Karachi for postmortem
examination and report. Accused Bahawal Khan son of Mir Baz Khan was arrested
on 05.04.1999 in presence of the same mashirs and his personal search was
conducted. 161 Cr.PC statement s of the PWs were recorded. 164 Cr.PC statements of PWs Shamim
Dost, Hazrat Khan and Fazal Din were recorded by
Judicial Magistrate, Karachi West. Accused Bahawal Khan after interrogation voluntarily produced one
rifle 7mm on 08.05.1999 lying inside the room of his house. It was
secured by the investigation officer in presence of the mashirs
Firdous Khan and Hazrat
Khan, the same was sealed at spot. Blood stained earth, rifle and empties were
dispatched to experts for reports. On the conclusion of the investigation
challan was submitted against the accused under section 302 PPC. Case was sent
up to the Court of Sessions for trial.
4. A formal charge against the accused was
framed by Trial Court at Exh-6. Accused pleaded not guilty and claimed to be
tried.
5. At the trial
prosecution examined following witnesses:-
1. PW-1 Mst. Hussin Pari at Ex. 10.
2. PW-2 Mohammad Firdous
Khan at Ex.11
3. PW-3 Shamim
Dost at Ex.17.
4. PW-4 Dr. Abdul Karim
at Ex.24
5. PW-5 Hazrat
Khan at Ex.26.
6. P.W-6 Mazhar Iqbal Investigating
officer at Ex.31.
Thereafter, prosecution
side was closed at Ex. 32 .
6. Statement of accused was recorded u/s 342
Cr.PC at Ex. 30. Accused has denied the prosecution allegations and claimed his
false implication in this case. Accused has stated that PWs have deposed
against him falsely as they are interested. Investigation officer has deposed
against him at the instance of complainant. In question what else he has to say,
he replied that complainant party had a dispute with him on throwing of the
garbage early in the morning. Complainant party attacked upon the appellant in
the house during the night hours in between 08:00 or 09:00 p.m. he has stated
that at that time his daughter was present at home and he fired upon the
deceased in self defence. Appellant did not lead any defence and declined to
give statement on Oath.
7. Trial
Court framed following points of determination:-
POINT
NO.1 Whether Wazeer Dost is dead and his death was
culpable homicide amount to murder?
POINT
NO.2 Whether the deceased Wazeer Dost has received three
bullet injuries from 7mm Rifle at the hand of accused intentionally which
resulted in his death?
POINT
NO.3 Whether the accused did so in exercise of his right of private defense?
POINT
NO.4 What should the judgment be?
8. Point No.1 and 2 were answered in
affirmative, Point No.3 was answered in negative, Point No. 4, accused Bhawal Khan was convicted u/s 302(b) PPC and sentenced to
death.
9. We have carefully heard Mr. Abdul Rasheed Nizamani, learned
Advocate for the Appellant and Mr. Khadim Hussain Khuharo, learned Deputy Prosecutor
General Sindh and scanned the entire evidence available on the record.
10. As regards to the unnatural death of the
deceased Wazeer Dost is concerned the prosecution has
examined PW-4 Dr. Abdul Kareem, M.L.O., Police Surgeon Officer, Karachi, who
had worked with Dr. Abdul Hameed Shaikh
being well conversant with his handwriting and signatures, who had conducted
the postmortem examination of Wazeer Dost. According
to the postmortem report at Ex. 24-A dead body of Wazeer
Dost was brought to the Civil Hospital by SIP Muhammad Hussain on 04.04.1999 at
11:45 p.m. The postmortem examination was started at 12:00 pm and completed at
01:00 a.m.
11. From the external appearance of the dead
body M.O. found the deceased of about 20 years. Upon external examination of
the death body, the M.O. found the following injuries:
(i)
Injury
No.1 Fire arm wound 0.5cm in diameter on left side nose, blackening the around
margins, wound of entry, nasal bone.
(ii)
Fire
arm wound 4cm x 4cm in diameter on right side face with clinically # of Mandibrain wound of exit.
(iii)
Fire
arm wound 0.5cm in diameter on back of right shoulder wound of entry.
(iv)
Fire
arm wound 3cm x 3cm on right side shoulder exit of humerous
and scapula wound of Exit.
(v)
Fire
arm wound 1cm in diameter on right side mid back of chest wound of entry.
(vi)
Fire
arm wound 5cm x 4cm on right side back of neck and upper 1/3 of chest just
above clavicle wound of exit.
Upon internal examination of the dead body of deceased Wazeer Dost, the M.O. found the following injuries/damages:
HEAD:
on opening the skull cap not seen on skull bone and all the menerges and vesus
are intact. Brain matter also intact.
NECK: On opening the neck, free blood
found in neck. Cavity mosules and corge
verseles are damaged.
TRACHEAX: On opening of chest cavity
contain free blood seen in the chest, no point seen in rabs.
-
Left
lung is normal in size and shape.
-
Hear
is normal in size and shape.
-
Right
lung. Prenetation wound present in right lung seen.
ABDOMEN: On opening abdominal cavity
contain no free blood or fluid seen in the cavity.
-
Liver,
spleen, kidneys are normal in size and shape.
-
Urinary
bladder contain few cc of residenal seen about 20-25
cm.
Medical Officer was of
the opinion that cause of death was cardio respiratory failure due to severe hamridge shock resulting from fire arm weapon injuries.
12. In order to substantiate the charge the
prosecution has relied upon the evidence of following witnesses:
13. Complainant Muhammad Firdous
Khan, he has stated that incident took place on 04.4.1999 at t time he was
present at Bihar Colony, Karachi. He received a telephonic call from his son in
law PW Hazrat that brother of the complainant namely Wazir has been murdered.
Complainant came to the place of occurrence and found his brother lying
dead on a cot having sustained fire arm injuries. Complainant has further
stated that his mother was abused by accused Bahawal over
throwing the garbage and his brother went to the house of the accused for
asking as to why he had abused the mother and his brother was killed by
appellant with his rifle. He lodged such FIR, police inspected place of wardat,
prepared inquest report, postmortem examination was conducted and dead body was
handed over to him. Complainant further stated that on 8.4.1999 police brought
accused under arrest and on his pointation rifle was handed over by appellant
to the police. He acted as mashir, mashirnama of recovery of the rifle was
prepared, which he has produced. In the cross examination complainant has
replied that there are so many houses in the mohalla
where the incident took place.
14. PW Hazrat Khan,
the eye witness of the incident has deposed that on 4.4.1999 when he came to
his house he came to know that there was exchange of hot words between his
brother and Bahawal Khan it was 9:00 p.m. there was
commotion in the street. As soon as he came in the street and saw PWs Shamim Dost, Fazaluddin and
others were standing in the street, within their sight accused Bahawal Khan made three fires from his rifle which hit Wazir Dost and he succumbed to the injuries at the
spot. Thereafter he informed complainant
Firdous Khan about the incident as deceased Wazir Dost was brother of complainant Firdous
Khan. On the same day, police came at place of wardat, prepared mashirnama of
place of incident, collected three empties from the place of wardat and
prepared such mashirnama. He acted as mashir, co-mashir was Shamim Dost. He has
further stated that on 05.04.1999 at 01:00 pm accused Bahawal
Khan was arrested by the police from his house. He was made as mashir
co-mashir was Shamim Dost,
such mashirnama was prepared. On 08.04.1999 he acted
as mashir of the recovery of the rifle, produced by the accused/appellant, co-mashir was Firdous Khan. In the
cross-examination, PW Hazrat Khan has replied that PW
Mst. Pari is his mother in
law and incident had occurred over the dispute between his mother in law and
accused Bahawal Khan on throwing garbage. He has
denied the suggestion that he was deposing falsely against the accused.
15. PW Shamim Dost,
eye witness of the incident has deposed that on 04.04.1999 at 08:30 p.m. he was
present at Jamshed Road. On that day he along with
his brother Wazeer Dost (now deceased) went to the
house of their mother, namely, Mst. Pari where his mother informed that in the morning accused Bahawal Khan used filthy language with her. Thereafter,
complainant alongwith deceased went to Bahawal Khan
as to why he used filthy language with their mother but the appellant used filthy language with
them also and appellant went inside the house and came armed with rifle and
fired three shots at Wazeer Dost which hit him and he
was murdered. Brother in law of PW Shamim Dost
informed the incident to Firdous and Firdous lodged FIR of the incident against Bahawal Khan. Police came to place of wardat, inspected it
and collected three empties from the spot and blood stained earth. He has
further stated that appellant was arrested in his presence on 05.04.199 such
mashirnama was prepared. Police recorded his statement and his 164 Cr.PC statement
was also recorded. In the cross-examination to Mr. Tanoli,
learned advocate for the appellant he replied that in the morning appellant Bawahal Khan had used filthy language with his mother in
the street. He has admitted that accused is their next door neighbor, however,
he has denied the suggested that he was deposing falsely and real facts have
been concealed by him.
16. PW Mst. Hussun Pari deposed that on
the day of incident she visited the house of her son-in-law and daughter,
situated at Saeedabad, Karachi. She has further
stated that she found garbage lying in front of her house and asked accused Bahawal Khan as to why he had thrown garbage in front of
the house. Accused used filthy language with her when her children came, she
narrated them incident. Thereafter, Wazeer Dost
(deceased), Shamim and her son-in-law went to the
house of the accused as to why he has used filthy language with their mother.
Accused took the rifle from his house and fired upon her son Wazeer Dost. She said that she did not see the actual
incident but her son died at the spot. In the cross examination, she has denied
the suggestion that her sons including deceased entered into the house of the
accused and abused him. She has denied the suggested that she was deposing
falsely against the accused.
17. As per statement of the process server PW Khan
Dost could not be examined as he had shifted to Dubai and his whereabouts were
not known.
18. PW-6 Mazhar Iqbal, the investigation officer of the case has stated
that on 4.4.1999 he was posted as SHO at P.S. Saeedabad.
FIR bearing crime No.95/1999 PW 302 PPC was registered against accused Bahawal Khan son of Mir Awaz Khan for committing murder of Wazir
Dost. He received the copy of the FIR along with memo of inspection of the dead
body. He recorded further statement of the complainant and went to the place of
incident for inspection. It was pointed out by the complainant and he secured
blood stained earth and three empties from the place of incident which he
secured in presence of the mashirs, prepared such mashirnama. On 05.04.1999 he
arrested accused Bahawal Khan son
of Mir Baz Khan from his house in presence of mashirs,
prepared mashirnama of arrest thereafter he brought the accused at police
station. During interrogation on 08.05.1999 accused voluntarily prepared to
produce rifle used by him in commission of offence. Thereafter accused led the
I.O. to his house and produced a licensed 7mm rifle bearing No.4770. He secured
the same in presence of the mashirs and prepared such mashirnama. I.O. has
stated that he sent the license to Peshawar for verification and report but he
did not receive verification report. Thereafter, I.O. produced prosecution
witnesses before the Magistrate for recording their 164 Cr.PC statements. IO
sent rifle, empties and blood stained earth to the Experts for the report and
license to the concerned authority for cancellation. I.O. has further stated
that on 13.4.1999 on the conclusion of the investigation he submitted the
challan against the accused u/s 302 PPC. In the cross examination IO has denied
the suggestion that he has deposed falsely against the accused at the instance
of the complainant party.
19. It was the evidence of all the material prosecution
witnesses which was brought on the record by the prosecution. Trial Court after
hearing learned counsel for the parties convicted the appellant in the manner
as stated above.
20. Mr. Abdul Rasheed
Nizamani, learned counsel for the Appellant mainly
contended that incident had occurred in the street but prosecution has failed
to examine the independent witnesses of the Mohalla.
He has further contended that that complainant party entered into the house of the appellant where
the daughter of the appellant was present and appellant acted in self defence
and committed murder of the deceased Wazeer Dost. Mr.
Nizamani contended that the plea of the self defence
is available to the appellant. Lastly it is submitted that, in case plea of self-defense
is not accepted by this Court, Appellant is aged about 81 years, his death
sentence may be converted to imprisonment for life on such ground. In support
of the contention reliance has been placed upon the case of Kamal Shah and 2
others vs. the State (2009 P.Cr.L.J 547).
21. Mr. Khadim Hussain
Khuharo learned DPG has argued that ocular evidence
is corroborated by the medical evidence.
Rifle was produced by the Appellant during investigation and complainant party
had no enmity with the accused to falsely involve him in the murder case. He
has further argued that Trial Court has rightly appreciated the evidence
brought on record. However, Mr. Khuharo learned DPG could
not controvert the submission of learned counsel for Appellant that he was aged
about 80 years at the time of incident. Lastly he submitted that mere old age
is no ground to alter the death sentence into imprisonment for life.
22. After hearing the learned counsel for the
parties and going through the record of the case with their assistance we have
straightaway noticed that killing of deceased Wazir
Dost has been admitted by the appellant in the statement recorded under section
164 Cr.PC in the said statement while answering the question what else he has
to say, accused has replied as under:-
“I am innocent and falsely implicated in
this case by complainant party. There was dispute in between us on garbage,
early in morning the complainant party has attacked upon my house in night
hours in between 08:00 or 09:00 pm. As my young daughters were at home,
therefore, I open fire in my self defence. I pray for justice.”
23. In every criminal case two questions are of
paramount importance i.e., firstly, as to who has committed the alleged crime
and secondly, whether the person committing the crime had any legal or factual
justification for committing the said crime. The onus on the general principle
regarding the first question is always on the prosecution to prove its case but
the moment when an accused person admits the commission of the relevant crime,
the said onus on the prosecution is discharged by virtue of Article 113 of the Qanoon-e-Shahadat Order 1984. A
fact which is admitted may not be proved. Article 113 of Qanun-e-Shahadat Order 1984 is reproduced as under:-
“113.
Facts admitted need not to be proved. No fact need be proved in any
proceeding which the parties thereto or their agents agree to admit at the
hearing, or which, before the hearing, they agree to admit by any writing under
their hands, or which by any rule or pleading in force at the time they are
deemed to have admitted by their pleadings.
Provided
that the court may, in its discretion, require the facts admitted to be proved
otherwise than by such admissions.”
24. In the present case as it is evident from
the statement of the appellant recorded u/s 342 Cr.PC the said appellant has
admitted the killing of deceased Wazeer Dost by
raising the plea of self defence on the ground that deceased entered into his
house where his young daughter was there. However, appellant has stated in the
said statement recorded under Section 342 Cr.PC that he had killed the deceased
in exercise of his right of private defence. According to the provisions of Article
121 of the Qanoon-e-Shahadat
Order 1984 when an accused person advances a plea based upon any general or
special exception contained in the Pakistan Penal Code 1860 the burden of proving
the existence of the circumstances bring the case within such general or
special exception is upon the accused and Court is to presume the absence of
such circumstances. Article 121 of Qanun-e-Shahadat Order 1984 is reproduced as under:-
“121.
Burden of proving that case of accused comes within exception: When a
person is accused of any offence the burden of proving the existence of
circumstances bringing the case within any of the General Exceptions in the
Pakistan Penal Code (Act XLV of 1860), or within any special exception or
proviso contained in any other part of the same Code, or in any law defining
the offence, is upon him, and the Court shall presume the absence, of such
circumstances.
25. In the present case, appellant Bahawal Khan has utterly failed to bring any circumstance
on the record to satisfy the Court which could support his plea regarding exercise
of the right of the private defence. Appellant has also admitted in his
statement that he had fired upon the deceased with his rifle in self-defense.
At that time his young daughter was present at the house but in order to
substantiate such plea he totally failed, he has also not examined his daughter
in the defence. From the perusal of
section 100 PPC it appears that a right of private defence of the body extends
to the voluntarily causing of death or any other harm to the assailant if the
assailant launches an assault upon the appellant and such assault has to be of
the kind mentioned in the same provisions . It has also come on record that
deceased was empty handed at the relevant time. There is not even an iota of
evidence brought on record by the appellant Bahawal
Khan showing any aggression displayed by the deceased against the appellant at
the time of incident. From the statement of the appellant recorded under
Section 342 Cr.PC it appears that defence plea was also not raised by the
appellant during investigation. In the circumstances, mentioned above, plea
advanced by Appellant Bahawal Khan with regard to exercise
of right of private defence appears to
be afterthought and merits outright rejection by this Court. Appellant has
admitted the killing of the deceased Wazeer Dost and
he has utterly failed to advance any legal or factual justification for committing
the murder of the deceased. For our satisfaction, prosecution evidence has also
been scanned deeply and case against the appellant has been proved. There were
two eye witnesses and their evidence is straightforward and confidence
inspiring. Appellant had fired from his rifle upon deceased Wazir
Dost. Ocular evidence is fully corroborated by the medical evidence coupled
with recovery of the rifle. The learned Trial Court has rightly appreciated the
evidence brought on record according to the settled principles of law, however,
quantum of the sentence required serious consideration. Learned Advocate for
the appellant argued that appellant was more than 80 years at the time of
incident. Learned State Counsel did not dispute the old age of the appellant.
From perusal of the record, it appeared that accused in his statement recorded u/s
342 Cr.P.C has mentioned his age 81 years and the Trial Court in the Conviction
Slip attached the description of the convict, has maintained his age 81 years. Moreover,
appellant had no previous enmity or ill-will with the deceased and there was
some dispute in between mother of the deceased and accused over the throwing of
the garbage in the street. It has also come on record that Appellant is next
door neighbor of the complainant party. Incident did not appear to be premeditated
and it took place on some abrupt altercation between accused and deceased. Appellant is about 81 years old. He is
produced in custody. From physical appearance he appears to be very old, sick
and infirm person, therefore, a case of extenuating circumstance is made out
from the evidence brought on record. Therefore,
conviction recorded by the Trial Court against the appellant by Judgment dated
02.04.2012 is hereby maintained. However, death sentence is reduced to
imprisonment for life. Appellant shall pay compensation of Rs. 3 lac to legal heirs of deceased u/s 544-A Cr.P.C. In
case of default accused shall suffer S.I for six months more. Benefit of
section 382-B Cr.P.C shall also be extended to the appellant/accused. Appeal is
partly allowed in the above stated circumstances. Reference made by the Trial
Court u/s 374 Cr.P.C is answered in NEGATIVE.
JUDGE
JUDGE
Gulsher/PA