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Petitioner: MIR HAZAR VS Respondent: THE STATE
Court Name: Balochistan High Court Judge(s): Tariq Mehmood, Ahmed Khan Lashari Title: MIR HAZAR vs THE STATE Case No.: Criminal Appeal No,S-36 and Murder Reference No,S-6 of 2001 Date of Judgment:2001-10-27 Reported As: 2002 P Cr. L J 270 Result: Order accordingly
JUDGMENT
JUDGMENT ' TARIQ MAHMOOD, J.--- Convict Mir Hazar son of Mehr Dil has been sentenced to death penalty for having been found guilty under section 302(a), P.P.C., vide judgment, dated 31st May, 2001, passed by the learned Sessions Judge, Jaffarabad at Dera Allahyar and as required by section 374, Cr.P.C. Reference for confirmation of his death sentence has been forwarded to this Court. He has also been ordered to pay fine of Rs,50,000, in default to undergo one year's R.I. The judgment has been assailed by the convict by filing Criminal Appeal No,(S ) 36 of 2001. And, we intend to dispose of the murder reference as well as criminal appeal by this common judgment. ' The case of prosecution, in brief, as reflected from F.I.R. No,116 of 1999, registered at Police Station Dera Allahyar on 3rd October, 1999 at about 2-10 p.m. Is to the effect, that on the eventful day, at about 10-00 a.m. Complainant's (Muhammad Akbar Khan) younger brother Asghar Khan, who looks after their land, left in white Alto car towards Camp Ayub Khan to meet Naib Ejaz Ahmed. Complainant alleged that due to scarcity of water in Mohabat Shakh, Asghar Khan (deceased) took Naib Ejaz Ahmed along in his Alto car to Taj Pur Water Pump machine to meet Naib Abdul Majeed Jhakrani of Mir Qutab-ud-Din Jamali to discuss the problem. Complainant alleged that his brother was driving the car, therefore, he had handed over his weapon to Naib Ejaz Ahmed. They via Same Shakh Purana Jamali Post reached Lal Mandar Police Post at about 12-30 p.m. Accused, who was on duty, was standing in uniform and was duly armed. According to complainant, his brother Asghar Khan reduced speed of the car and got identified himself to the accused and told that he was Asghar Khan Jamali, younger brother of Akbar Khan Jamali. According to complainant, Ali Muhammad son of Nawab Khan was also sitting near the post. However, in spite of disclosing his identity, appellant started firing from behind at the same time, while the car was moving slowly. It
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was also alleged that his younger brother Asghar Khan told Naib Ejaz Ahmed that he had been injured and had received bullet injuries. Later, his brother Asghar Khan stopped the car and got down in injured condition, took back his weapon from Naib Ejaz Ahmed and fired in self-defence. Appellant took shelter behind bushes, situated towards northern side of Police Post Lal Mandar. Also that due to bullet injuries, his brother fell down. However, Naib Ejaz Ahmed tied up bailey of his brother Asghar Khan with a Chadar and Asghar Khan, alongwith Naib Ejaz Ahmed drove to Rojhan Jamali in injured condition. Asghar Khan was shifted to hospital by Mir Zafarullah Khan Jamali in his car. The complainant alleged that above incident was disclosed to him by his brother Asghar Khan and Naib Ejaz Ahmed. ' After registration of the case, P.W. Shahbaz Khan took up the investigation. He alongwith other police officials and complainant Muhammad Akbar went towards place of incident and inspected the site. He prepared sketch of Wardat after inspection of site. He secured bloodstained earth/mud which was stained by Asghar Khan's blood from the place of incident. He also collected fifteen empties of kalashnikov fired by Asghar Khan besides, five empties fired by Mir Hazar Khan, from two different places. Statements of P.Ws. Under section 161, Cr.P.C. Were also recorded. Subsequently, he proceeded towards the bungalow of complainant Akbar Khan from where he took into possession Alto car. Blood of deceased was also secured from Alto car. The accused was arrested on 7th June, 1999 and on same day, at his pointation, official kalashnikov was recovered from Lal Mandar Police Post alongwith two Magazines and 19 live rounds. On 21st June, 1999, the accused was produced before learned S.D.M., Jhatpat for recording statement under section 164, Cr.P.C. The kalashnikov and empties were sent to Fire-arm Expert to Karachi for examination and report, whereas the blood-stained mud and clothes of deceased were also sent to F.S.L. For examination and report. He also collected medico-legal certificate of deceased from Medical Officer. Dera Allahyar. Dr. Muhammad Siddique, who had originally examined him while alive, found following injuries:-- (1) A fire-arm wound of entrance on left lumber region exit left hypochonplrium. (2) A fire-arm wound of entrance on left side of entrance on left side of chest at the lower side. ' Patient's condition was very serious, therefore, he was referred to Civil Hospital, Jacobabad for further treatment and management. Final report from Civil Hospital, Jacobabad has not yet received. The kind of weapon used was fire-arm. The injuries were fresh. ' Seeing that the condition of the deceased was deteriorating, the deceased was shifted to Mid East Medical Centre, Karachi. He, however, expired on 4th October, 1999 at 10-15 p.m. ' After completion of necessary investigation, challan was submitted in the Court of learned Special Judge, Suppression of Terrorist ' Activities Jaffarabad at Dera Allahyar. The Special Court upon submission of challan indicted the accused on the charge under section 302, P.P.C. In the light of accusation as contained in the F.I.R. And other material to which he pleaded not guilty and, the prosecution to substantiate the accusation produced nine witnesses. Brief resume of the prosecution witnesses is as under:-- ' P.W.1 is Muhammad Akbar Khan, the complainant. He produced F.I.R. Exh.P./1-A. ' P.W.2 is Ejaz Ahmed. He is an eye-witness. In his presence, site was inspected and memo. Exh.P./2- A was prepared. Blood-stained earth of deceased was also taken into possession in his presence and he produced memo. Exh.P./2-B. Besides, twenty empties of kalashnikov were also picked up in his presence from three different places and memos. Prepared, which he produced as Exh . P. /2-C , Exh.P. /2-D and Exh.P. /2-E. ' P.W.3 is Ali Muhammad. He is also an eye-witness. ' P.W.4 is Dr. Muhammad Siddique. He examined the injured/ deceased and issued medico-legal report Exh.P./4-A. ' P.W.5 is Muhammad Saleh. He is witness of taking into possession, a led recovered from the body of deceased, which he produced vide memo. Exh.P./5-A. He also produced death certificate of
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deceased Exh.P./5-B issued by Mid East Medical Centre, Karachi. ' P.W.6 is Zulfiqar. A witness of recovery of kalashnikov on the pointation of accused. He produced memo. Exh.P./6-A. He is also witness to recovery memo. Exh.P./6-B, regarding recovery of two magazines and live cartridges. ' P.W.7 is Ghulam Nabi. He is witness of recovery of Alto car and produced Alto car and memo. Prepared, which he produced as Exh.P./7-B. ' P.W.8 is Nasrullah, who recorded confessional statement of the accused. He produced/submitted interim challans Exh.P./9-B, Exh.P./9-C and Exh.P./9-D. On receipt of report (Exh.P./9-E) from F.S.L. Interim challan (Exh.P./9-F) was submitted and finally after receipt of report of Fire-arm Expert (Exh.P./0-G), final challan (Exh.P.9-H) was also submitted in the Court, which this witness produced. ' After completion of the prosecution evidence, appellant was examined by the learned trial Court under section 342, Cr.P.C. Wherein he denied the incriminating pieces of evidence produced at the trial by the prosecution as incorrect. Accused in his statement on oath recorded under section 340(2), Cr.P.C. Claimed to be innocent and took the plea that he opened the fire in discharge of his duties, as a public servant and also that he did not make any confessional statement before the Assistant Commissioner/S.D.M. He also took the plea that although a case was registered at his instance against the culprit prior in time, no investigation was carried out in his case, inasmuch as, the deceased turned out to be a near relative of then Chief Minister. Support was sought in the statement from F.I.R. Registered at the same police station. He produced no other defence evidence and after closing of the parties case, the learned Special Judge awarded death sentence to appellant, vide judgment, dated 13th June, 2000. ' Being aggrieved appellant filed an Appeal bearing No,87 of 2000 and this Court vide judgment, dated 7th April, 2001, allowed the appeal and transferred the case to learned Sessions Judge, Dera Allah Yar with direction to pass fresh judgment .After providing opportunity of hearing to both prosecution as well as defence. However, it may be pointed out that for the reason mentioned in the judgment of this Court, the evidence recorded and all other proceedings were kept intact and case, was transferred to learned Sessions Judge with direction to pass fresh judgment on the basis of material already on record but after hearing the arguments afresh. And, the learned Sessions Judge after considering the material available on record convicted and sentenced the appellant as hereinabove mentioned. ' Learned counsel for appellant argued that appellant had no intention to cause death of the deceased, and therefore, could not be convicted under section 302, P.P.C. He maintained that it was a case of Qatl-i-Khata or Qatl-bis-Sabab or Qatl Shibh-i-Amd. On the other hand, learned Assistant Advocate-General supported the impugned judgment. ' We have considered the arguments put forth on behalf of appellant and by Assistant Advocate- General in the light of record of the case, including the impugned judgment. ' At the very outset, it may be noted that in this case, the trial Court recorded conviction of appellant under section 302(a), P.P.C. i,e, Qatl-i-Amd punished with death, as Qisas. We are, however, of the view that trial Court has seriously erred in recording conviction under section 302(a), P.P.C. As proof in this case, against appellant is not available in either of the forms specified in section 304, P.P.C. It may be seen that appellant has not made confession of Qatl-i-Amd, as such, before the Court. Although there is admission of implied killing but not express, the admission is to be treated not in isolation of but in conjunction with his specific plea, that he fired at the vehicle, which the deceased failed to stop, when signaled. ' Ocular evidence statement of P.W.3 ' Record reflects serious doubts on Ali Muhammad's statement that he observed that occurrence or that he was even present at the spot. It may be seen that Lal Mandar's Police Post is situated away from populated area, as per statement of P.W.9. Incident took place at 12-30 p.m. P.W.3 was
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employed as nursing orderly in Health Department, Goth Taj Pur, at least 3/4 kilometres away from place of incident. However, he claimed that he also used to look after lands of Mir Faiq Khan Jamali (then sitting Minister and belonged to same Jamali's family) and was going back from the lands, situated near police post. According to him, he stayed there for a while to take rest. Ejaz Ahmed (P.W.2), star-witness of the prosecution- has deposed that police recorded his statement and that of P.W.3 at bungalow of Mr. Zafarullah Khan Jamali. But he deposed that it was recorded at the place of occurrence. He stated that he was occupying front seat and P.W.3 was on the rear seat which is contrary to statement of P.W.2. In our view, he was a chance witness and had failed to satisfy us, the stated reasons for his claimed presence at the place, where he was ordinarily not expected to be present. It would be unsafe to rely upon his evidence in a case involving death sentence. All the circumstances taken together, create a reasonable, if not serious, doubt regarding presence at the spot, at the material time. We, therefore, do not consider it safe to rely on the evidence and exclude it from consideration. ' Confessional statement ' The incident is dated 3rd June, 1999. Appellant was arrested on 7th June, 1999 and was produced before the Magistrate/Assistant Commissioner for recording his confessional statement on 21st July, 1999, on the last day of remand, a fact denied by appellant in his statement under sections 342, and 340(2), Cr.P.C. It was also suggested to learned Magistrate (P.W.8) that appellant was never produced before him. Investigating Officer (P.W.9) has admitted that Mr. Jan Muhammad Jamali was Chief Minister of Balochistan, at the relevant time and deceased Asghar was his relative. The stance of appellant in his statement under section 340(2), Cr.P.C. Was that factually he tried to stop the vehicle in the obedience of order of his superiors, as the deceased did not stop by show of kalashnikov, and therefore, he tried to stop the vehicle by firing at its tyres. Also that deceased opened indiscriminate firing, a fact not disputed by the prosecution, in that, as many as fifteen empties were recovered. It is also important to point out that appellant lodged F.I.R. No,115 of 1999 at 1-30 p.m. Of the incident, forty minutes before registration of this case. However, neither any investigation was carried out in his case nor challan submitted, as according to P.W.9, said F.I.R. Was sealed at the directions of S.P. And D.I.-G. Also that plea of appellant in the F.I.R. And the statement before the Court is almost same and story narrated in the confession does not appear to be voluntarily, in the circumstances of the case. Learned Assistant Commissioner/ Magistrate (P.W.8) also admitted that he was keeping good relations with Mr. Zafarullah Khan Jamali (another ex-Chief Minister who shifted the deceased to hospital in his vehicle). Though he also deposed that he was also keeping good relations with appellant, it cannot be ignored that appellant was a constable. In the events of the background, delay in recording confessional statement is fatal to the prosecution case and more importantly, when no satisfactory explanation for delaying the recording of confession for two weeks was furnished. The same is suspicious and ruled out of consideration. ' Having excluded from consideration, confessional statement of appellant and statement of P.W.3, we are left with statement of P.W.2 coupled with other evidence. But it appears, to be a case of two versions. Prosecution has put its own version but the accused has a different story to tell, regarding the same incident. So, applying settled principle that the version, which is more plausible and nearer to realities and common sense is to be accepted or/and if the version of accused is possible, then the same may be accepted. ' Material facts in this case are not in dispute. It is an admitted fact that on said date and time the occurrence took place. Appellant, in his statement under section 340(2), Cr.P.C. Even impliedly admitted the main allegation of prosecution relating death of the deceased by shots from him, but tried to take refuge under his defence plea. According to him, a person armed with kalashnikov in a Alto car emerged and he was signaled to stop. But he without caring and by show of kalashnikov
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towards appellant, crossed the check-post, so appellant targetted rear tyres of the car, to stop him. His statement also gets some support from the prosecution, in that, it was stated in the F.I.R. That when deceased was signaled to stop, he slowed down the car (but did not stop) and passed, by introducing himself as Asghar Khan Jamali. Similarly, P.W.2 deposed that deceased slowed down the car and appellant was told that he (deceased) was Jamali ({{URDU TEXT}}). So, the car was not stopped and the appellant under some mistake of fact or law (to be discussed later) opened fire. Further, it is the case of prosecution itself that deceased was in possession of kalashnikov, inasmuch as, after firing by appellant (three empties were recovered), car was stopped and deceased started firing statedly in his defence (fifteen empties were recovered). So, we conclude that appellant opened fire on failure of deceased to stop the car, when signaled. ' The only question that now remains to be determined is, as to what offence, if any, has been committed by appellant. ' Homicide is an offence unless it falls under the general exceptions contained in Chapter IV of the P.P.C. Under section 76 of P.P.C., mistake of fact can be a valid defence, if the same was done in good faith and one was bound by law to do it but it does not apply to mistake of law, in that, same is no excuse. Sections 77 and 78 of P.P.C. Are not relevant in the instant case. But under section 79 of P.P.C., if the act complained of is justified by law, it would not amount to an offence, however, cases may arise where in acting under, any law, conferring powers on the police, a person may go beyond, what is strictly justified. So, to satisfy the Court of good faith, he has to show that he acted with due care and attention. Needless to mention that onus of proof is on the person, who seeks to take advantage of it. The other sections falling under exceptions of Chapter IV of P.P.C. May not be relevant in the instant case. ' Now the stage is set, to consider various penal provisions and it may be advantageous to reproduce relevant provisions of P.P.C. To find out, what offence is made out. " 300 Oatl-i-Amd.--- Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit Qatl-i-Amd." 302. Punishment of Oatl-e-Amad.--- Whoever commits Qatl-e-Amd shall, subject to the provisions of this Chapter be-- (a) punished with death as Qisas, (b) punished with death or imprisonment for life as Tazir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available, or (c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable." We accept the contention of learned counsel that appellant had no intention to kill the deceased but he can still be convicted under section 302, P.P.C., if appellant can be burdened with the knowledge that his act was so imminently dangerous that it could in all probability cause death. "315. Oatl Shibh-i-Amd. Whoever, with intent to cause harm to the body or mind of any person causes the death of that or of any other person by means of a weapon or an act which in the ordinary course of nature is not likely to cause death, is said to commit Qatl Shibh-i-Amd. ' Illustration ' A in order to cause hurt strikes Z with a stick or stone which in the ordinary course of nature is not likely to cause death. Z dies as a result of such hurt. A shall be guilty of Qatal Shibh-i-Amd." ' The section has no application, inasmuch as, the intention to cause harm was non-existing and deceased died by firing with kalashnikov, which was a weapon.
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"318. Qatl-i-Khata.-- Whoever, without any intention to cause death of, or cause harm to, a person, causes death of such person either by mistake of act or by mistake of fact, is said to commit Qatl- e-Khata. ' Illustration. (a) A aims at a deer but misses the target and kills Z who is standing by. A is guilty of Qatl-e-Khata. (b) A shoots at an object to be a boar but it turns out to a human being. A is guilty of Qatl-e-Khata." ' This section is equally not relevant, in that appellant was supposed to know the possible consequence of his act of firing at a car, being driven by the deceased. "321. Qatl-bis-Sabab.--- Whoever, without any intention to cause death of, or cause harm to, any person, does any unlawful act which becomes a cause for death of another person, is said to commit Qatl-bis-Sabab. Illustration. ' A unlawfully digs a pit in the thoroughfare but without any intention to cause the death of, or harm to, any person. B while passing from there falls in it and is killed. A has committed Qatlbis-Sabab." ' From the bare perusal of section 321, P.P.C., it is clear that an offender having no intention to cause death of or cause harm to any person commits any unlawful act, which becomes a cause for the death of another person attracts the criminal liability provided for in section 321, P.P.C. For the offence of Qatl-bis-Sabab, which is substantially distinguishable to the provisions relating to the definition of Qatl-i-Amd as given in section 300, P.P.C. And, the application of either of the section for fixing the liability depends upon the facts and circumstances of each case. It may be seen that in a case of Qatl-bis-Sabab element of intention to cause death of or cause harm to any person must be nonexisting in relation to any unlawful act, which becomes a cause of death of any other person. However, this section has no application, in view of the plea raised and in the peculiar circumstances of the case. It would be beneficial to reproduce the relevant portion on the subject from Muhammad Riaz's case PLD 1980 FSC 1:-- "102. Before finishing the subject of murder I would deal with the provisions of section 304, P.P.C. Also which deal with culpable homicide not amounting to murder. According to Fiqh Hanafi murder is of 5 kinds:- (1) Qatl-e-Amd or premeditated murder. (2) Qatl-e-Shibeh Amd is murder when a person dies as a result of injury from something which is neither a weapon nor like a weapon e.g. a whip or a small stone. According to Imam Abu Yousuf and Imam Muhammad it is Shibeh Amd when death is caused as a result of hurt by something from which death is not usually caused i,e,, when from the nature of the object from which death is caused an intention to cause death cannot be inferred. (3) Qatl-e-Khata (homicide by error) is a result of error from example a hunter fires on something considering it to be an animal but which happens to be a human being and is thereby killed. (4) Qatl-e-Misle Khata or homicide by quasi-error is when a person while sleeping falls on another person who is thereby killed or a person falls from a roof on another person who is thereby killed or some brick or piece of wood falling from the hand of a person by mistake drops on another person who is killed or a person riding on an animal trampled and thus, killed the deceased. (5) The illustration of Qatl-e-Bis Sabab is a person losing his life by falling into a well excavated by air accused on another person's land. 103. According to another view the last two categories are included in Qatl-e-Khata or homicide by error. The distinction however, between the different categories is that intentional or premeditated murder is punishable by death or retaliation. While the other categories are punishable by payment of blood money and offering ({{URDU TEXT}}) for expiation of the sin. Offering for expiation is not, however, enforceable by Courts.
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114. This tradition which deals with ({{URDU TEXT}} ) unpremeditated murder names only those weapon from which intention to kill cannot be gathered. Where such intention cannot be gathered, the Code also treats the offence as culpable homicide not amounting to murder. 115 This is borne out by para. 513 (p.178) Islami Faujdari Qanun by Salamat Ali Khan, which is a translation of Kitab-ulIkhtiyar:-- 'The commission of the act causing death may be either with the intention to cause death or without such intention. An act done with the intention to cause death would involve the use of weapon or something like a weapon. It would then be a premeditated murder ({{URDU TEXT}}). If weapon or something like it is not used it is not premeditated murder but an unpremeditated one ({{URDU TEXT}}) since the intention is not to kill'." ' The above discussion, reference and illustrations have clarified the proposition, as it emerges from the proved facts of the case that the case of appellant does not fall under sections 315, 318 or 321, P.P.C. ' Having discussed, as above, the question arises, whether the plea as contained in Exception 3 of old section 300 of P.P.C. Is available to the appellant in this case after amendments to sections 299 to 338 contained in Chapter XVI of the P.P.C. It may be noted that appellant was a public servant and opened fire without any towards the deceased. The ingredient of good faith would be discussed later. ' Somewhat similar question came up for consideration before Honourable Supreme Court in the case of Abdul Haq v. State reported in PLD 1996 SC page 1 and it was held by Ajmal Mian, J. (as his Lordship then was) "that clause (c) of the section 302, P.P.C. Is limited to cases mentioned in section 306, P.P.C. Same view was taken by Manzoor…
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