ORDER SHEET
THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANO
Criminal Appeal No. S-87 of 2024
(Ghulam Mustafa alias Lanti Jakhrani v/s. The State)
|
Date |
Order with signature of Judge |
1. For hearing of main case.
2. For hearing of M.A.No.5412/2024 (U/S 426 Cr.P.C.).
Appellant: Ghulam Mustafa alias Lanti son of Joungal Jakhrani
Through Mr. Muhammad Afzal Jagirani, Advocate.
Respondent: The State Through Mr. Ali Anwar Kandhro, Additional Prosecutor General, Sindh.
Date of hearing: 05-05-2025
Date of Judgment: 12-05-2025
J U D G M E N T
Nisar Ahmed Bhanbhro J.- The appellant, through instant appeal has challenged the judgment dated 02-09-2024 (impugned judgment) passed by the Court of Learned Additional Sessions Judge/MCTC Kashmore, (Trial Court) in Sessions Case No.279/2023, emanating from crime No.03/2023 for offence punishable under section 302, 311, 34 of Pakistan Penal Code, of police station R.D-109 of District Kashmore @ Kandhkot. Trial Court convicted appellant and sentenced him to suffer Rigorous Imprisonment for Life for charge of offence punishable under section 302(b) PPC read with section 311 PPC and sentenced him to undergo imprisonment for life as Tazir and to pay compensation of Rs.10,00,000/- (ten lacs) under section 544-A Cr.P.C to the legal heirs of deceased Mst. Bachi Khatoon, in case of default in payment to further undergo S.I for 01 year. The accused was also extended benefit of section 382-B Cr.P.C.
2. Facts germane to the prosecution story are that ASI Gaman Jakhrani recorded FIR at police station RD 109 alleging therein that on 25.04.2023, he along with his subordinate police officials were on patrol duty within local limits of PS vide entry No.16, he received spy information about planning of accused Ghulam Mustafa for murder of his wife on pretext of honor-killing (Karap). Police party proceeded to the place of information, when at about 07:30 AM they reached at the house of above named accused situated in village Piyaro Khan, Deh Selachi, they heard hue and cries from the house, and saw accused Ghulam Mustafa and one unknown accused leaving the house, police party attempted to arrest them, but failed. Thereafter, police party entered the house and saw one woman shivering due to throttling around neck through rope, she died. On inquiry from women who gathered there from neighbor, they informed police party that she was Bachi Khatoon and was murdered by her husband Ghulam Mustafa along with one unknown accused by strangulation with rope on the false pretext of honor-killing/Karap with one Moharram Jakhrani. Police party recorded mashirnama of inspection of injury, prepared inquest report and removed dead body to Taluka Hospital Kashmore for post-mortem. When none from legal heirs of victim turned up, FIR of the incident was registered on behalf of the State by complainant ASI Gaman Jakhrani.
3. Investigation took its course, Investigating Officer recorded statements of witnesses including the statement of Mst Haseena mother of deceased and Kacchi Khan father of deceased, who supported the version of FIR. Police arrested nominated accused Ghulam Mustafa, recovered rope from place of incident and after completing usual investigation submitted report under section 173 Cr.P.C. before the concerned Magistrate showing the name of co-accused Ghulam Muhammad alias Turail s/o Joungal Jakhrani as absconder. Learned Magistrate after completing the required formalities sent up the case for trial to the Court of Learned Sessions Judge Kashmore at Kandhkot being exclusively sessions trial. The case was assigned to Learned Trial Court for disposal in accordance with law.
4. Learned Trial Court supplied case papers to appellant / accused in compliance to section 265–C Cr.P.C., he was indicted for charge of offences punishable under section 302, 311, 34 PPC to which accused pleaded not guilty and claimed trial. In order to establish charge, the prosecution examined PW-1 Khairullah Jakhrani, PW-02 Imtiaz Ali Jakhrani, PW-03 Complainant/ASI Gaman Khan Jakhrani, PW-04 Tapedar Sikandar Ali Lanjwani, PW-05 SIP Muhammad Iqbal Jakhrani, PW-06 HC Muhammad Daud Domki, PW-07 Mst. Haseena Jakhrani, PW-08 Kacchi Jakhrani and PW-09 WMO Dr. Barkha Lund and closed its side for evidence.
5. The Statement of accused under section 342 Cr.P.C. was recorded at Exh.17, in which he denied the prosecution allegation, professed innocence however he neither led any evidence in his defense nor examined himself on oath. He prayed for justice.
6. After hearing Learned Counsel for Parties, Learned Trial Court convicted and sentenced the Appellant for the charge of offence punishable under section 302(b) PPC read with section 311 PPC and sentenced him to undergo imprisonment for Life as Tazir and payment of compensation of one Million under section 544 – A Cr.P.C. to legal heirs of deceased Mst. Bachi Khatoon, in default for payment of compensation, Appellant to undergo SI for one year with a benefit of section 382-B Cr.P.C.
7. Mr. Mohammed Afzal Jagirani, Learned Defense Counsel argued that Appellant is innocent; he is falsely involved in this case. He contended that there is no any independent witness of occurrence, per prosecution story it is unseen incident, he also pointed out that parents of the deceased were examined before Trial Court, they exonerated appellant from the charge. He contended that the mother Mst. Haseena Khatoon and father Kacchi Khan have filed their affidavits before this Court, exonerating appellant of the charge of the offence, they have given no-objection if the appellant is acquitted. He contended that there was no direct evidence connecting appellant with commission of crime; therefore, conviction awarded by Trial Court was not sustainable under the law. He prayed for acquittal of the appellant.
8. Conversely, Mr. Ali Anwer Kandhro, Learned Additional Prosecutor General opposed this appeal, he contended that police officials were as good witnesses as those of public, there was no enmity of police with accused to falsely involve him in a case of murder. He further argued that the accused was lastly seen leaving the place of offence. Had the accused not committed the offence, he was someone else, the accused would have stayed at the scene of offence and would have saved her wife. He contended that prosecution proved its case against appellant beyond shadow of doubt, accused was identified by the witnesses at the time of occurrence so also before Trial Court during recording of evidence to be responsible for homicidal murder of deceased Bachi Khatoon. He prayed for dismissal of appeal and maintaining the conviction.
9. Heard Learned Counsel for the parties and perused material available on the record.
10. The points agitated by defense in this case are that the prosecution has failed to prove motive of the case, as none came forward to depose that deceased Bachi Khatoon was killed over “Karap” allegations, there is no direct evidence connecting the appellant with commission of crime and conviction cannot be sustained on the basis of circumstantial evidence. The parents of deceased have not supported the prosecution case; the case is that of no evidence, all these points were sufficient to reverse the findings of Trial Court and record acquittal of accused. Court will deal all the aspects of case agitated by the defense separately.
Motive:
11. The motive behind the murder of deceased Bachi was the so-called practice of Karo Kari, Mst Bachi Khatoon a young lady aged about 30 years was done to death by strangulation by none else but her own husband. It is a common practice to kill a young woman under the pretext of Kari if she maintains a defiance to her husband in any of the matters, she is destined to death. Reason for growing tendency of murder of women under pretext of Karo Kari is lack of accountability, hardly a victim gets justice. To establish motive prosecution examined complainant PW Gaman Khan, PW PC Khairullah, PW Haseena Khatoon and PW Kacchi Khan. PW Gaman Khan and PW Khairullah fully supported the prosecution case and disclosed that motive behind the murder was allegation of Karap. PW Haseena Khatoon and PW Kacchi Khan who are the parents of victim Mst Bachi Khatoon did not support the prosecution case to the extent of involvement of the appellant in the offence and they exonerated him of the charge, however they deposed that Mst. Bachi Khatoon was killed under a false allegation of “Karap” with one Moharram Jakhrani, this piece of evidence was not disputed by the Defense as witnesses were not cross examined on this material point. Even in the absence of motive a conviction for the offence of murder can be maintained, but for the present case the discussion made herein above leads to a firm conclusion that motive of murder under allegation of Karap is fully established and brought home the guilt of appellant for the charge of offense punishable under section 311 P.P.C.
No Direct Evidence – Circumstantial evidence:
12. The contention of the defense that there is no direct evidence against the appellant as none turned up to depose that he saw appellant committing the murder of deceased, is true, but in absence of direct evidence, even the conviction can be sustained on the basis of circumstantial evidence, if it connects the accused with commission of crime, particularly in a murder case. To safely rely upon circumstantial evidence; it is mandatory that evidence connects the accused with commission of offence, chains him from dead body to his neck in a sequence which leaves no doubt that murder took place by his hands. In the present case meticulous perusal of record and appraisal of evidence revealed that FIR of the incident was recorded by ASI Gaman Khan Jakhrani who proceeded to place of incident on spy information, when they reached there heard noises from inside the house and saw appellant Ghulam Mustafa and one unknown accused leaving the house. Complainant party followed them but they escaped. Thereafter complainant party entered in the house and found one woman shivering and she died in presence of witnesses. The ladies from nearby houses also gathered there who disclosed the name of deceased as Mst. Bachi Khatoon and informed that she was killed by her husband Ghulam Mustafa through strangulation with rope over the allegation of Karap. Complainant prepared mashirnama of wardat, inspection of dead body and removed the dead body to hospital for autopsy through PC Imtiaz Ali Jakhrani. The dead body was then given to one Allah Jewayo for burial purposes. The complainant ASI Gaman was examined by Trial Court, he narrated the details of incident in aforementioned manner, he was cross examined by the counsel for appellant, despite of lengthy cross examination nothing favoring appellant triggered. The counsel for the appellant did not cross examine complainant on the point that appellant was last seen coming out of the house. Murder of deceased was committed in the house which belonged to the accused and even no question was put from the complainant that the appellant did not commit the murder. Only a suggestion was put that the incident didn’t took place and accused was involved in a false case. Prosecution also examined PC Khairullah who also deposed in the same manner as deposed by complainant. He was also cross examined at length by the counsel for appellant but could not shatter his evidence. PC Khairullah produced on record mashirnama of inspection of dead body and categorically deposed in the evidence that strangulation marks were available around the neck of deceased and a rope of about 10 feet lying beside dead body was recovered from the scene of offence. He also produced on record memo of place of wardat which was prepared after the registration of FIR, wherein the place of incident is shown to be the house of appellant but the defense counsel did not cross examine the witness on those points. Defense Counsel did not put any suggestion to both the eye witnesses denying that accused was not seen at the place of incident and had not committed this murder, the dead body was not recovered from his house, only a suggestion was put that the ladies gathered in the house of accused were not cited as witnesses. Meaning thereby that the evidence of these two witnesses who are the eye witnesses stands admitted on the material points as failure to cross examine on a particular point amount to admission in terms of article 133 of the Qanun-e-Shahadat Order 1984. During investigation, prosecution also sought assistance of concerned Mukhtiarkar Revenue for preparation of sketch of place of incident. Tapedar of the area was directed to prepare such sketch. Tapedar Sikandar Ali was examined before Trial Court, he produced sketch of place of incident, which was shown to be the house of appellant. He also detailed the manner in which the dead body was found from the place of incident. Prosecution also examined Dr. Barkha, the Medico-legal Officer of Taluka Hospital Kashmore who deposed that she was on duty when at about 05:30 PM in the evening, the dead body of deceased was brought, she examined dead body and found strangulation marks over the neck of deceased, she opined that deceased had died due to throttling/strangulation and the injury over neck was ant-mortem in nature. She deposed in evidence that it was a case of homicidal murder, on a query by the learned Defense Counsel that the strangulation marks available over the neck were indicative of suicidal death, Dr. Barkha denied such suggestion and stated that it was not a suicidal death but murder through strangulation. The investigation officer of the case supported the prosecution version regarding the recording of statements of witnesses and collection of evidence which connected appellant with commission of crime. In this case PWs PC Khairullah, complainant ASI Gaman Khan, I.O/SIP Muhammad Iqbal Khan and PC Imtiaz Ali are the caste fellows of the accused/appellant and related to him, they put law into motion and got prosecuted the accused, did not accept the possible influence during the investigation, collected sufficient material to connect the accused with commission of crime and brought reliable evidence before the trial court seeking the conviction of the perpetrator involved in the commission of the murder of innocent lady. They recorded their evidence without foreseeing the consequences, they need appreciation for their honest efforts and investigation which remained up to the mark. This is the case of murder wherein the defense version is that no one has witnessed the commission of the murder of deceased. The prosecution witnesses belong to the same caste and they knew the accused, he was identified while fleeing away from place of occurrence within no time after commission of murder. The dead body was recovered from his house, if the accused was not involved in commission of murder of his wife, he would have promptly appeared at police station and recorded the FIR but he chose to abscond away and was arrested after about 8 days of the incident. In his statement recorded u/s 342 Cr.P.C the accused has given evasive replies on a question that he caused the murder of Mst. Bachi Khatoon due to throttling and dead body was found from his house. He replied that I have not caused injury but did not deny in any manner the commission of offence, which is sufficient to demonstrate that the accused is responsible for the commission of murder of Mst. Bachi Khatoon, his wife. The chain of evidence collected by the prosecution starts from the dead body of victim and ends at the neck of the accused holding him responsible for murder of deceased. To bring guilt of the accused home, in absence of direct evidence, circumstantial evidence is required to be of very high standard, which may not create doubt in the prudent mind, in the present case as discussed above strong pieces of circumstantial evidence were on record to prove the guilt of accused beyond shadow of doubt. The stance of defense that direct evidence was lacking and conviction cannot be sustained is without force, as sufficient trust worthy circumstantial evidence was placed on record to connect the accused with commission of crime.
13. Honorable Supreme Court of Pakistan in the case of Akhtar Versus The State reported in 2020 SCMR 2020 has been pleased to enunciate the following principle for appreciation of circumstantial evidence, which too attracts in the present case:
“5. It has been observed by us that there is no direct evidence in this case and the prosecution case hinges upon circumstantial evidence. The first piece of circumstantial evidence is the extra judicial confession of the appellant before complainant Shaukat Ali (PW4) and Muhammad Aslam (PW6). While appearing before the trial court, the complainant Shaukat Ali (PW4) and Muhammad Aslam (PW6) reiterated the contents of FIR with full confidence. They explained in detail how they on 15.08.2004 along with other witnesses went to the appellant asked him about whereabouts of Shahid Ali (deceased); how the complainant told the appellant regarding initiation of legal proceedings if he did not disclose the whereabouts of Shahid Ali; how the appellant' disclosed before them that he took Shahid Ali to the house of Aslam, barber, with intention to commit sodomy with him and on his failure to do unnatural act with Shahid Ali, he with an iron wire strangulated him and concealed his body in an iron box in that house. They further stated that after the extra judicial confession of appellant, they apprehended him and proceeded towards police station but the police met them near Cool Storage of Wahla Rahi, where the complainant gave application (Ex.PB) to the police officer for registration of case. Despite lengthy cross-examination, the defence was not able to elicit anything from these PWs regarding false implication of appellant in this case.”
6. The extra judicial confession of appellant is supported by the medical evidence furnished by Dr. Muhammad Shafee Saleem (PW-5), who conducted autopsy on the body of Shahid Ali and observed a contusion mark all around the neck of deceased; a contusion mark around right wrist except on inner side; a contusion mark into back side and both outer sides of left wrist. These observations of the doctor supplement the extra judicial confession of appellant that he with an iron wire strangulated Shahid Ali and before that tied his wrists. The doctor in his cross-examination denied the suggestion that body of deceased was not identifiable. The appellant in his extra judicial confession also stated before the prosecution witnesses that he took Shahid Ali in a vacant house for committing unnatural act with him. Three swabs were taken fioin the anal region of deceased Shahid Ali by the doctor and were sent to the Chemical Examiner. According to report of Chemical Examiner (Ex.PH), the said swabs are stained with semen. The doctor (PW-5) in his court statement also endorsed the report of Chemical Examiner (Ex.PH).
7. It has further been observed by us that on disclosure of appellant before police, dead body of Shahid Ali was recovered from the vacant house of Aslam barber on the pointation of appellant. He also got recovered the keys of house of Aslam barber from his shop. Apart from that, the appellant got recovered sky blue shirt (P.12), bag (P.9), books (P.10/1-5), register (P.11) of the deceased Shahid Ali. All, these circumstances outweigh the claim of appellant that he has falsely been implicated in this case and lead us to conclusion that prosecution has been successful in proving its case against the appellant.”
14. In the case of Binyamin alias Khairi versus the State reported in 2007 SCMR 778 the Shariat Appellate Bench of Honorable Supreme Court has enunciated the principle of conviction on the basis of circumstantial evidence in the following manner:
“Both the Courts below had believed the prosecution story qua the recovery of the dead body from the school and also believed the medical evidence. It is pertinent to mention here that in the present case, prosecution has heavily relied upon the following pieces of evidence:--
(i) Departure evidence; (ii) Last-seen evidence;
6. The aforesaid pieces of evidence are normally considered as weak evidence yet capital punishment can be awarded if an unbroken chain of circumstances from the stage of last-seen evidence till death of the victim is established by conclusive evidence. In the present case, as mentioned above, there is a double presumption of last-seen evidence consisting of departure and lastly seen which was duly corroborated with the pieces of evidence on record in the shape of recovery of dead body and medical evidence which were believed by the Courts below in the impugned judgment. It is a settled law that capital punishment can be awarded on the basis of circumstantial evidence subject to the condition that it connects the accused person with the offence as law laid down by this Court in various pronouncements. See Sarfraz Khan's case 1996 SCMR 188, Jaffar Ali's case 1998 SCMR 2669 and Khurshid's case PLD 1996 SC 305. Since long circumstantial evidence is one of the recognized modes to find out the guilt or innocence of the accused person. Awareness has been given to the world 1400 years ago by the Almighty Allah in the Holy Book of Qur'an in Sura-e-Yousif in Verses Nos.26, 27 and 28.”
15. In another case of Sheraz Tufail versus the State reported in 2007 SCMR 518 the Shariat Appellate Bench of Honorable Supreme Court has enunciated the principle of conviction on the basis of circumstantial evidence in the following manner:
“4. We have considered the submissions made by learned counsel for the petitioner and perused the record. The contention of learned counsel for the petitioner that petitioner cannot be convicted and sentenced on the basis of circumstantial evidence has no force. The circumstantial evidence is one of mode to find out guilt or innocence of the accused. In fact awareness has been given to the world 1400 years ago by the Allah/the Almighty in the Holy Book of Qur'an in Sura-e-Yousif wherein this method of proving guilt or innocence was highlighted. The relevant verses are reproduced hereunder:
"26. He murmured "It was she who sought my person One of her companions suggested a solution: "If his shirt is rent in front, she speaks the truth, and he cloth lie!
27. "But if his shirt is rent in the rear, then she doth lie and he is truthful!"
28. So when he saw his shirt rent in the rear, he said, "This is women's guile. And women's guile is great! (The Book The Message of the Qur'an English translation by Hashim Amir Ali)."
16. In the case of Inayatullah Versus the State reported in PLD 2007 Supreme Court 237, Honorable Shariat Appellate Bench of Supreme Court of Pakistan, has dealt the issue of reliance on circumstantial evidence and conviction thereto in the following manner:
“It is a settled principle of law that generally capital punishment cannot be awarded to the accused persons on the basis of the circumstantial evidence. In case the aforesaid pieces of circumstantial evidence are put in a juxtaposition then it brings the case in the area where in the petitioner was connected with the commission of offence on the basis of the aforesaid pieces of evidence coupled with the fact that the prosecution witnesses are disinterested on the basis of such type of strong circumstantial evidence, the petitioner was convicted by the trial court under section 396 PPC without adverting to the circumstances emerged on the basis of the evidence on record and the learned Federal Shariat Court was justified to set aside the conviction of the petitioner under section 396 of PPC and was also justified to convict and sentence him under section 302(b) of P.P.C. read with 20 of the aforesaid Ordinance. The provisions of Cr.P.C. are applicable mutatis mutandis in respect of cases arising under the provisions of Offences Against Property Ordinance, 1979 in view of section 24 of the Ordinance. Therefore, Federal Shariat Court can examine question of fact and law and can quash, confirm, modify or enhance sentence. It is also a settled law that powers of the appellate court to alter a conviction are very wide under section 423 of the Cr.P.C. but they are subject to the condition that the altered conviction should not be such which could not have been recorded by the trial court. In the present case trial court has power to award capital punishment. The judgment of the Federal Shariat Court is in accordance with law as law laid down in the following judgments:--
(i) Begu's case (1925 ILR 6 Lahore 226 (PC))
(ii) Wallu's case (1923 ILR 4 Lahore 373)
(iii) Gauns's case (1926 ILR 7 Lahore 561)
(iv) Nur Muhammad's case (AIR 1945 PC 151)
(v) Amanat Ali's case (PLD 1950 Lahore 364).
7. It is a settled law that the appellate court has all the powers to convict the accused person not charged in the trial court in view of sections 236, 237, 238 of Cr.P.C. read with section 423 of the Cr.P.C. See Rama Swamy Nader's case (PLD 1958 SC (India) 247).
8. In the interest of justice and fair play, we have also re-examined the evidence on record with the assistance of the learned counsel for the petitioner. We are satisfied that over-whelming circumstantial evidence has been brought against the petitioner as observed by the learned Federal Shariat Court in the impugned judgment in paragraphs 8 and 9, therefore, contention of the learned counsel for the petitioner that without direct evidence the petitioner cannot be sentenced to death is without force. The judgment of the Federal Shariat Court is in consonance with the law laid down by this Court in Jaffar Ali's case (1998 SCMR 2669). It is pertinent to mention here that learned trial Court had acquitted his co-accused Nazir on the basis of distinguished features and criminal appeal filed by the complainant against his acquittal was also dismissed by the Federal Shariat Court with cogent reasons, therefore, contentions of learned counsel for the petitioner have also no force to that extent. As mentioned above, the petitioner was convicted with the commission of offence beyond any shadow of doubt, therefore, learned Federal Shariat Court was justified to convict and sentence him as to death.”
Exonerating Affidavits and Non supporting Evidence of Parents
17. Per Defense, Legal heirs of Mst. Bachi did not support prosecution case, which benefits accused, he should be acquitted on this ground. Prosecution examined Kacchi Khan Jakhrani and Mst. Haseena Khatoon parents of deceased Bachi Khatoon before Trial Court wherein they stated that one Ghulam Muhammad had caused the murder of their daughter on the false pretext of Karap with Muharam Jakhrani, whereas the present appellant was not involved in the offence of murder. The statements of these two witnesses were recorded by the investigation officer on 06-06-2023 wherein they fully supported the prosecution case and stated that accused Ghulam Mustafa and Ghulam Muhammad both sons of Joungal Jakhrani had committed the murder of their daughter over the allegation of Karap. The statements of these two witnesses are not helpful in any manner to the defense as admittedly the murder of the daughter of Mst. Haseena Khatoon and Kacchi Khan was committed, they did not come forward to register a complaint before the police. They remained silent for about more than 50 days and did not even come forward to record their statements u/s 161 Cr.P.C. The parents of the deceased from the date of occurrence of murder stayed aloof like a silent spectator. They recorded statement before IO after about fifty days, but avoided to depose truth in Court and favored appellant. Their lackluster and cruel conduct being parents of deceased throughout the proceedings is indicative of the fact that either they were accomplice in the offence or too scared of to question theoffence committed by appellant. These probabilities make their evidence highly incredible and of no reliance. Had the parents of deceased got any sympathy for their daughter, they would have taken the efforts to rescue her life by intervening and persuading the appellant to give their daughter a chance to put her defense against the false allegation of “Karap” but this did not happen. Per evidence of prosecution witnesses, when they reached at the place of offence, it was about 07:30 AM in the morning, this is the time in rural areas, when all the male members of village get engaged into cultivation affairs, perhaps for the said reason appellant found it a golden opportunity to do away his wife as the male members of the village were not present to intervene. The women folk of the village gathered at the dead body and per deposition of the police officials they disclosedunder some harassment tone that she was killed by her husband Ghulam Mustafa. The version of defense that those ladies were not examined or even named as the prosecution witnesses in the case or examined during the investigation by the police, which brings prosecution case in the ambit of doubt, has no force, because, had those helpless women come forward to depose against the accused in court or even had they dared to record their statements before the police, they would have faced the same consequences as by the deceased. The victim Mst. Bachi Khatoon was aged about 30 years, she had yet to see the colors of life. Her life was turned into darkness under an allegation which was yet to be proved, if the husband/appellant was of the view that her wife was involved in illicit activities, he ought to have initiated criminal proceedings against her, the consequences under the penal law of the country would have followed and she could have been punished. Levelling allegation of karap, then committing murder of lady and then obstructing the way of the parents, kith and kins to set law into motion through police, demonstrate that the accused was a person of dangerous criminal mindset.He knew that if he commits murder of his wife, he will not face prosecution. Local police took a brave step as sometimes it happens that the police officials are victimized for initiating the reports against the criminals involved in the honor killings, but they proved steadfast right from registration of FIR up to the conclusion of trial, despite being locals and caste fellows of appellant. The evidence of mother and father is of no consequences in the case, as they are not the eye witnesses of incident and offence of Karo Kari being non compoundable, they even cannot waive the right of Qisas and Diyat. The level interest shown by parents of deceased reflects from their conduct that they even did not come forward to receive the dead body of deceased, which was handed over to one Allah Jiwayo for burial. If on this account the perpetrator is acquitted it will amount to denial of justice to deceased.
18. The practice of taking the law in their hands by citizens is becoming increasingly common these days. In this part of world Thousands of innocent people are being killed every year in the name of family honor on the flimsy ground of suspicion of "Karo -Kari". The murder of innocent woman over Karap allegation is increasing day by day. The woman is being considered as a lowclass category, if she is found even in oral communication with her distant relatives, she is killed. Karo Kari is a premeditating type of murder which is common in different parts of the world and killing woman over the allegations of Karap is treated as honor for the man. This is a severe type of domestic violence which is unabatedly increasing in this part of the world. It has roots which originates from ancient Rome and transferred to different parts of the world due to migrations. The honor killing has stained the society where the woman is even not given right of defense to prove her innocence against the false charges of developing illicit relations. It is even observed that in order to settle the scores of enmity with rival man, the woman is killed and the said person is also killed without reasons and thereafter the male members of the community sit together and conduct a faisla declaring that since the murder was committed to save the honor, therefore, the perpetrator should not face its consequences through punishment by the court of law. Islamic Law under any Fiqah does not permit any citizen to take the law into his own hands and obligates the State to protect the life and liberty of every citizen and severely punish the person who does so. Acceptance of the ground of mere suspicion of illicit relation (Karo-Kari) to kill would amount to giving to the members of the society an unfettered license to kill any person they dislike, abhor, hate or who have annoyed them in any way and while doing so loudly utter that the person killed or being killed is suspected of illicit relations with a member of the killer's family and thereby avoid the penal consequences through jirga. This uncivilized, barbaric and abominable practice must be stopped immediately before it gets out of hand and creates total anarchy in society. Under Islamic teachings the Fasad Fil Arz has been treated as a serious offence and has been described as disobedience to God, thus to avoid Fasad on earth perpetrators are required to be dealt with iron hands.
19. Honorable Supreme Court of Pakistan in the case of Ghazanfar Abass Versus the State reported in P L D 2002 Supreme Court 567, refused to convert the death penalty of convicts as the murder was committed on the pretext of Honor killing, it was held as under:
“13.All that has been said above in connection with appreciation of evidence was for the only reason that the two Courts below had rightly appreciated the eye‑witnesses as well as the circumstantial evidence on record. It did not need to be discussed because the learned counsel candidly conceded that he would not touch the merit of the case and would confine himself only to the quantum of sentence. His only submission was restricted to such issue. He reiterated that due to the past abduction of his sister, the petitioner had acted to redeem the honour of, family, in what he termed as "Ghairat. "
14. Regardless of whether honour killing, as such, is justifiable or not, we would refer only to the circumstances of the present case and would determine, as to, whether, the plea of honour killing is at all genuine. It has come on record that the convict and his father had suspected Manzoor son of Allah Ditta of having had abducted Mst. Surriya, who was subsequently retrieved from Karachi. If so, the direct motive should have been at the most and if at all, available against Manzoor. It is not justified that a person in the name of honour should come out to exterminate the whole family as the convict has almost done in the instant case. He not only killed Allah Ditta who has nothing to do with the abduction of Mst.Surriya but also killed Mst.Jewan Mai and Mst.Nazeer Mai. He went on further to kill Mst.Nasreen H Mai and Fayyaz Hussain as well but it was only their fortune that they survived. Such a desperate act and a blatant violation of law can in no circumstance be justified on the plea of unbridled sense of honour. We have no hesitation in holding, in the circumstances, that there exists no mitigating circumstance at all. In the instant case, the two Courts below have not only imposed a proper sentence but it was their duty to do so. All the convictions and sentences recorded and imposed against. The petitioner including the death sentence on three counts are upheld, leave to appeal is refused and the petition is hereby dismissed.”
20. In the case of Muhammad Akram Khan reported in P L D 2001 Supreme Court 96 Honorable Supreme Court of Pakistan has enunciated the following principle:
“After examining the prosecution case and defense version in juxtaposition, we find that the prosecution has proved its case against the appellant beyond reasonable doubt through reliable witnesses, who had no motive of their own to charge the appellant falsely and mere relationship of the witnesses with the deceased would not render their testimony unreliable. It appears that defense plea was cooked up at the trial in order to create dent in the prosecution version. Legally and morally speaking, nobody has any right nor can anybody be allowed to take law in his own hands to take the life of anybody in the name of "Ghairat". Neither the law of the land nor religion permits so‑called honour killing which amounts to murder (Qatl‑iAmd) simpliciter. Such iniquitous and vile act is violative of fundamental right as enshrined in Article 9 of the Constitution of Islamic Republic of Pakistan which provides that no person would be deprived of life or liberty except in accordance with law and any custom or usage in that respect is void under Article 8(1) of .the Constitution. In this case,, the plea of "Ghairat" cannot be deemed to be a mitigating circumstance as the motive was not directly against the deceased. The death sentence awarded to the appellant was confirmed by the learned High Court under section 374, Cr.P.C. through a well‑reasoned judgment, which is not open to any exception. This appeal is accordingly, dismissed.”
21. Perusal of impugned judgment reveals that Trial Court has convicted and sentenced the appellant on a single count for the charge of murder under section 302 (b) read with section 311 for imprisonment of life as Tazir. In the ordinary cases when an offence of murder is committed and later on compounded in terms of 309 and 310 PPC, then the Court seized with the matter if arrives at a conclusion that offence was of the nature which spread Fasad on earth, then accused may be convicted for the charge of offence punishable under section 311 PPC for any term as provided for the offence. In case of charge under the pretext of Karo – Kari, the position is different, the offence of Karo – Kari has been declared as Fasad Fil Arz, its charge is separately framed, it is an offence in addition to the murder, therefore conviction for the said offence has to be recorded separately. Section 311 PPC reads as under:
311. Ta’zir after waiver or compounding of right of Qisas in qatl i amd. Notwithstanding any thing contained in section 309 or section 310, where all the walis do not waive or compound the right of Qisas or if the principle of fasad fil arz is attracted, the Court may having regard to the facts and circumstances of the case punish an offender against whom the right of Qisas has been waived or compounded with death, or imprisonment for life of imprisonment of either description for a term which may extend to fourteen years as ta’zir:
Provided that if the offence has been committed in the name or on the pretext of honor, the imprisonment shall not be less than ten years.
Section 345 CrPC contains a schedule for compounding of the offences and sub section 7 was substituted in the section vide amending Act No XLIII of 2016 wherein the offence of Qatl i Amd under the pretext of Karo Kari has been excluded and cannot be compounded or waived. Sub Section (7) of Section 345 Cr.P.C reads as under:
(7) No offence shall be waived or compounded save as provided by this section and section 311 of the Pakistan PenalCode, 1860 (Act V of 1860)
Impliedly, the punishment for the offence of 302 is separate and it can be compounded or waived but offence of section 311 cannot be waived and compounded. The sentences for both the offences are separate and distinct. The sentence of Qatl i Amd is awarded for charge of murder whereas sentence under section 311 PPC is awarded for spreading fasad on earth. The prosecution has established the guilt of accused for charge of both the offences, as such appellant ought to have been convicted and sentenced for both the offences separately. Section 423 of Cr.P.C. empowers the Court of Appeal to alter or modify or alter the conviction. The impugned judgment to that extent requires modification. The Appellant in the given circumstance is also convicted and sentenced for the Charge of Offence punishable under section 311 PPC to undergo Rigorous imprisonment for 14 years and conviction and sentence awarded by the Trial Court for the charge of offence punishable under section 302 PPC is maintained. Since the nature of offence is gruesome and cruel therefore both the sentences are ordered to run consecutively.
22. I am fortified in my view by the judgment of Honorable Supreme Court in the case of Muhammad Anwar Versus the State reported in P L D 2016 Supreme Court 65, wherein it has been held as under:
“9. We have carefully considered the arguments of learned ASCs and perused the material placed on record. There is no dispute as regards the relevant facts of the case noted above that respondent No.1 was found guilty for committing qatl-i-amd of his wife, three daughters and a son in a brutal manner and for that account, consciously the trial Court, while awarding sentence to him, had ordered that the same shall run consecutively, and in addition to it, he was also held liable to pay diyat amount at the rate of Rs.1,70,000/- per victim. The appellate Court had also consciously examined this aspect and concurred with such view looking to the nature of the occurrence.
10. The discretionary power vested in the Court to direct that the awarded sentences to run consecutively or concurrently is to be exercised in the light of the facts and circumstances of each case, keeping in view the scope of section 35 of the Code of Criminal Procedure, 1908, the nature and manner of occurrence and the gravity of the offence. Thus, it seems quite strange and unreasonable that through impugned judgment, the learned Division Bench of the High Court had done away with the conditionality of such sentences while exercising writ jurisdiction under Article 199 of the Constitution, which is equitable and discretionary in nature and not meant to give premium to a criminal for commission of such heinous crime. A reference to the above cited judgments makes it abundantly clear that the citations referred and relied upon by the High Court in its impugned judgment were reviewed by a larger bench of the apex Court and in one of these cases Ali Khan Kakar v. Hammad Abbasi (2012 SCMR 334), while considering a similar request in review jurisdiction, the conviction of the accused, who was awarded total sentence of 300 years imprisonment, was upheld.”
23. For what has been discussed hereinabove, this Court is of the considered view that the prosecution has successfully proved its case against the appellant for the charge of murder under allegation of Karo Kari beyond any shadow of doubt, no illegality or irregularity or misreading and non-reading of the evidence has surfaced. The trial court has rightly convicted the appellant of the charge of offence u/s 302 (b) PPC, as ingredients of offence u/s 302(b) PPC were attracted. Since the charge of offence punishable under section 311 PPC was also fully established, therefore the judgment of Trial Court to that extent has been modified and appellant has been convicted for the said offence as mentioned in Para No 21 of this judgment.
This appeal therefore fails and is dismissed accordingly. Office to send copy of this Judgment to superintendent of concerned prison for information and providing the same to convict.
JUDGE
Asghar/P.A