BAHAWAL KHAN Versus THE STATE Malik Hamesh Gul Khan , Haji Saadullah Khan, Asstt. A.G
FAIZ MUHAMMAD KHAN, J.‑‑ Two ladies namely, Mst. Zainab Bibi, the wife of Bahawal Khan Appellant, and Mst. Miran Bibi the daughter‑in‑law of the appellant, were found murdered on 22‑4‑1982 inside the house. For this double murder, Bahawal Khan appellant was tried by the learned Sessions Judge; D.I. Khan and finding him guilty of committing the said crime, the learned Sessions Judge, vide judgment, dated 12‑9‑1983, convicted and sentenced him to undergo life imprisonment and to pay a fine of Rs.2,000 on each count. He also directed the convict to pay compensation of Rs.1,000 on each count to the legal heirs of the deceased. In default of payment of fine and compensation on each count, the learned Sessions Judge directed the convict to undergo further two years imprisonment. These sentences were directed to run concurrently. Against his conviction and sentences aforesaid, Bahawal Khan has filed this criminal Jail Appeal No. 1 of 1984 and since this Court noticed in the impugned judgment that no reasons were given by the learned trial Judge for not awarding the normal penalty of death to the convict, this Court invoking suo motu revisional jurisdiction issued notice to the convict /appellant as to why the sentence awarded to him be not enhanced to that of death. This suo motu revision has been numbered as 4 of 1985. This order would dispose of both these matters.
2. Upon directions by this Court, Bahawal Khan appellant was defended before us by Mr. Hamesh Gul Khan, Advocate, engaged at State expense, and Haji Saadullah Khan Mian Khel Assistant Advocate General represented the State.
3. On‑22‑4‑1982 at about 9‑00 a.m. A.S.I. Muhammad Khan (P.W 12), then posted in police station Saddar, D.I.Khan, was on routine 'Gusht' in Illaqa when he received information about the occurrence from one Suba Khan (P.W.7), the son of the appellant. The A.S.I. proceeded to the spot where he found the appellant sitting inside the house who made to him the first report, which was recorded by A.S.I. Muhammad Khan in the form of 'Murasila' Exh.P.A./1. In this report, Bahawal Khan (appellant) stated that he has three sons, namely, Suba, Muhammad Nawaz and Suhrab, that Suba was married to Mst. Miran Bibi, Muhammad Nawaz was married to Mst. Jani and Suhrab was married to Mst. Hato Bibi, that for the last one year Mst. Zeinab, his wife, and Mst. Miran Bibi, his daughter‑in‑law, were saying that he (appellant) had illicit connections with his daughter‑in‑law Mst. Hato Bibi and for that reason Mst. Hato Bibi had left his house six months ago end, had taken abode in her parents' house in village Bandkurai, that every one in the village had come to know of these illicit relations, that the same morning when his sons Suba and Muhammad Nawaz had gone out for cutting the wheat crop and his son Suhrab had gone to village Sheikh Yousaf for doing daily labour and in the house his wife Mst. Zainab and his daughter‑in‑law Mst. Miran Bibi were left, he availing of opportunity, at about 9‑00 a.m., took out his licensed shotgun with which he effectively fired two shots at his wife Mst. Zainab Bibi, who was then sitting in the courtyard of the house, who after receiving injuries died on the spot and his daughter‑in‑law Mst. Oran Bibi ran inside 'Kotha' upon whom, after entering the 'Kotha', he also fired two shots which proved effective and she also died as a result thereof. The motive for the crime mentioned in the sport was the one already stated. On the basis of this report contained in the 'Murasila' F.I.R. Exh.P.A. was registered.
4. After recording the aforesaid report made by the appellant. A.S.I. Muhammad Khan (P.W.12) prepared the injury sheet Exh.P.B. and inquest. report Exh.P.C. of Mst. Miran Bibi and. injury sheet Exh.P.E. and inquest report Exh.P.F. of Mst. Zainab Bibi deceased. The dead bodies of both; the deceased were then sent by him to Civil Hospital, D.I. Khan for post‑mortem examination. The A.S.I. also prepared injury street Exh.P.H. of Bahawal Khan appellant. He also took into possession single barrelled shotgun (P.1) No. AR‑2139 and a bandolier containing 14 live cartridges (P.2) which were produced before him by Rahawal Khan appellant. The memo covering this recovery is Exh.P.1. which was also signed by marginal witnesses thereto. The Investigating Officer also took into possession four cartridges (P.3) from the spot, vide recovery. memo. Exh.P.J. The gun and the empty cartridges were smelling fresh discharge. The copy of the licence pertaining to the said shotgun was also secured by the I.O., vide memo. Exh.P.K. which was produced by Bahawal Khan appellant. The blood‑stained earth from the place where the dead bodies were lying was also secured by the I .O., vide memo, Exh. P. L. The blood‑stained shirts and 'Dopattas' of both the ladies, having been brought by constable from the hospital, were also taken into possession by the I.O., vide recovery memo. Exh.P.M. The two pieces of lead (pellets) (P.9) and two hardboard discs (P.10) recovered from the dead body of MSt. Zainab and sent by the doctor through Constable Hakim Khan were also secured by the I .O. , vide memo. Exh .P.N. By the same memo two pieces of lead (pellets) (P.11) recovered from the dead body of Mst. Miran Bibi were also taken into possession by the I .O. The‑site plan Exh.P.O. was prepared by tile I.O. at the time of site inspection.
5. Lady Doctor Kausar Perveen (P.W.11) performed on 22‑4‑1982, at 2‑00 p. m. autopsy on the‑ dead body of Mst. Miran, wife of Suba and found the following:‑--
External Examination:
(1) Wound of exit with everted edges and muscles and fasira protruding through it. Size 4" x 6" present in the middle of front of epigastrium on left lower side of chest.
(2) Five fire‑arm wounds with everted edges present in, the middle of right breast diameter of each fire‑arm wound :".
(3) Fire-arm wound 4" x 3" present on the middle of right upper arm on lateral aspect.
(4) Six fire‑arm wounds circular; one is " in diameter and others have " diameter with charring around it present on lateral side of middle of right chest.
(5) Large fire‑arm wounds size 4" x 3" present on the back of right hand at lateral aspect.
(6) Four fire‑arm wounds present on the middle of medial side of right arm.
(7) Superficial ulcerabon about 4" x 2" present on the right cheek, holes in shirt and in Dupatta correspond with above injuries.
Internal Examination:
THORAX.‑‑ 2 metalic pieces recovered from back of right side of chest in lower part. Walls injured on right side at lateral aspect and on‑left front in lower portion. Lower ribs 6th, 7th, 8th and 9th of right side injured. Right lung badly macerated. Right ventricle of heart injured. Blood vessels of right lung pulmonary artery and vessels (Brachial) of right arm injured.
Abdomen.‑‑ Walls injured at front in epigastrium. Diaphragm injured on right side. Stomach not injured and full of semi-digested food. Liver injured in right lobe.
In the opinion of the doctor, death was instantaneous and resulted from haemorrhage and shock due to injury received by her on vital organs of the body (heat, right lung and liver) by fire‑arm. The post‑mortem report was Exh.P.D. to the correctness of which the witness testified tit the trial.
The same lady doctor examined on 22‑4‑1982, at 2‑30 p.m., the dead body of Mst. Zainab, wife of Bahawal, and found the following:‑-
External Examination:
(1) Fire‑arm wound 6" x 4" present on upper 2/3 of right arm at lateral side. Multiple bone pieces present in wound.
(2) " fire‑arm wound present on the back of left lumber region.
(3) Metallic piece recovered from the middle of back on left side under skin, holes in shirt and Dupatta corresponds with injury No. 1.
Internal Examination:
THORAX.--‑ Right clavicle and first two ribs inured in front. Pleurae injured. Right lung injured in upper and middle lobe. One metallic piece and 2 cardboard discs recovered from it. Left lung badly injured. Pericardium and heart injured in right ventricle. Blood vessels of lugs, heart and right arm injured.
ABDOMEN.‑‑ Peritoneum injured: Diaphragm injured on right side. Stomach not injured, full of semi‑digested food. Small intestines injured. Liver injured right lobe. Left kidney injured.
The doctor stated that injury to vital organs (heart, lungs, liver end kidneys) by fire‑arm caused haemorrhage, shock and death. In this case also death was instantaneous. The correctness of post‑mortem report Exh.P.G. was testified by the lady doctor at the trial.
The metallic pieces recovered from the dead body of Mst. Miran and the metallic piece, two cardboard discs recovered from the dead body of Mst. Zainab were handed over by the lady doctor to F.C. Hakim Khan (P.W.4), who handed them over to the I.O.
Since the appellant Bahawal was having on his body some injuries, he was examined by. Dr. Muhammad Salim (P.W.10) on 22‑4‑1982, who found the following injuries:‑-
(1) Lacerated wound about " in length and " in depth on 2 nd finger (toe) on left foot.
(2) Lacerated wound about " in length and 1 c.m. in depth on middle finger of left foot.
In the opinion of the doctor nature of injuries was simple and had been caused by blunt means. The doctor testified to the correctness of his report Exh.P. H. /1.
6. The appellant was produced by the investigating police on 24‑4‑1982 before a local Magistrate, Mr. Sher Muhammad Khan (P.W.13), who recorded his confession Exh.P.P. The Magistrate stated at the trial that he had correctly recorded the confessional statement of the appellant after observing all the formalities and after putting all the necessary questions to him. He stated that he had satisfied himself that the appellant was voluntarily making before‑him his confessional statement, which was thumb‑impressed by him after the same had been read over to him. The Magistrate also stated (cross‑examination) that the appellant had been given, about one and a half hours for reflection.
7. At the trial, the prosecution relied on the first report made by the appellant himself, the confessional statement said to have been voluntarily made by him before the Magistrate, the motive for the crime disclosed at the trial, the circumstantial evidence in the form of recoveries and the arrest of the accused‑appellant soon after the occurrence from his own house where the crime had been committed and the dead bodies were also lying. The learned trial Judge, however, did not rely on the F.I.R., treating it to be inadmissible in evidence, nor on the confessional statement made by the appellant, nor did he accept as correct the motive for the crime disclosed at the trial, but relying on the circumstantial evidence held the appellant guilty of the crime with he was charged and sentenced him to imprisonment and fine as already mentioned.
8. Mr. Hamesh Gul, Advocate, engaged by State for the appellant, argued that after excluding from consideration the first report made by the appellant himself and his judicial confessional statement, the learned trial Judge could not have convicted the appellant for the murder of Mst. Zainab and Mst. Miran Bibi, as there was no sufficient evidence on the record to connect him with the crime. The learned counsel contended that the mere presence of the appellant in the house alongwith the dead bodies and the fact that the shotgun licensed in his name had been used for the commission of the crime would not necessarily mean that the crime had actually been committed by the appellant and that his important link being missing from the prosecution story, the conviction of the appellant was not sustainable. He further contended that the learned trial Judge was right in not accepting the first report having been made by the appellant to a, police officer, as such information, being inculpatory in nature, was inadmissible in. evidence. As to the confessional statement made by the appellan: before the Magistrate, the learned counsel contended that it was obtained by the police after employing coercive measures and torture and the same having been retracted and no evidentiary value. It was, therefore,. rightly kept out of consideration by the learned trial Judge, the learned counsel contended.
9. The learned Assistant Advocate‑General argued that it was wrong to say that whole of the first report made by the appellant to the I.O. was inadmissible in evidence. He contended that to prove the presence of the appellant in the house in which the crime had been committed, the motive for the crime mentioned in the first report and the production of the shotgun used in the commission of the crime by the appellant before the I.O., the first report could be received in evidence. He also contended that the learned trial Judge was wrong .in excluding from consideration the retracted confessional statement made by the appellant before the Magistrate had been voluntarily made and was also supported by the motive mentioned in the first report, the presence of the appellant in the house in which the crime had been committed, the presence of ‑the dead bodies of the two ladies at the places where according to the confessional statement they should have been the production of the shotgun used in the commission of the crime by the appellant before the I.O. in presence of marginal witnesses and the recoveries from the spot of the empties which were proved to have been tired from the same shotgun. In view of these facts offering corroboration, the learned Assistant Advocate‑General contended, the retracted confessional statement made by the appellant was a good piece of evidence supporting the prosecution case and that the learned trial Judge was not right in discarding the same. He contended that the mere fact that before making confessional statement the appellant had remained in police custody for two days was of no significance.
10. We have carefully considered the arguments of the learned counsel appearing before us in the light of the material brought on record. We find much substance in the arguments of the learned Assistant Advocate General for reasons mentioned hereafter.
11. It is true that there was no ocular witness in this case. It is equally true, as urged by the learned counsel representing the appellant, that if the confessional statement of the appellant was excluded from consideration, then the important link connecting the appellant with the crime being missing, the conviction of the appellant could neither be directed not maintained. In our view, however, it was proved on record that the confessional statement (Exh.P.P.) made by the appellant before the Magistrate was voluntary and the mere fact that before making this statement the appellant had remained in police custody for about two days was of no significance: Mr. Sher Muhammad Khan (P.W.13) had recorded the said statement after satisfying himself that it was being voluntarily made by the appellant. The necessary questions for ascertaining the voluntaries of the confession were put by him to the‑appellant, who had also been afforded ample time for reflection. The requisite certificate was also appended to this statement. To all these facts, Sher Muhammad Khan (P.W.13) testified at the trial. We have not been able to discover any illegality committed by the Magistrate in recording that statement. The confessional statement of the appellant, in absence of evidence of coercion or torture of police constituted a legal evidence which, for reasons hereinafter mentioned, could be used against him by the prosecution. Further, we are of the view that the first report made by the appellant to the I.O. could also be received in evidence against him in so far as it related to his presence soon after the occurrence in the house where the crime was committed, the motive for‑the crime mentioned by him in there and the production of the shotgun which was later opined by the expert to have been used in the commission of the crime. Hussain Bakhsh. (P.W.5), Soba Khan (P.W.7) acid A.S.I. Muhammad Khan (P.W.12) have, stated at the trial that when they reached Ore spot the appellant was present inside the house where murder had been committed and where the dead bodies of the two ladies were lying. They have also stated that the shotgun (P.1) was produced by, the appellant before the I.O., who took it into possession‑vide memo. Exh.P.I. Both Hussain Bakhsh (P.W.5) and A. S. I, D Muhammad Khan (P.W.12) have stated that the shotgun was giving smell of fresh discharge, and so has been recorded in the recovery memo. Exh.P.I. So, the contents of the first report to this extent were also corroborated by the other evidence produced in the case, referred to above. That being so, the confessional statement of the appellant recorded by the Magistrate, corroborated as it was by the evidence referred to above, even though retracted at the trial, was a good piece of evidence which could not be ignored by the learned trial Judge while formulating his opinion as to the innocence or guilt of the accused. In this view of the matter we are supported' by the decision of this Court in Shahzad Gulls case P L D 1973 Pesh.
8. The mere fact that the appellant had remained in police custody for about two days before his confession was recorded by the Magistrate in absence of evidence of coercion and torture by the police, did not destroy the evidentiary value of the voluntary confession made by him. Mian Jan's case decided by this Court P L D 1980 Pesh. 92 and Kadir Bux's case decided by Baluchistan High Court 1985 P Cr. 1, J 2375 are authorities on the point.
12. The occurrence had taken place inside the house in which the appellant was during those days residing alongwith his deceased wife and his deceased daughter‑in‑law and his sons. The dead body of Mst. Zainab was found lying in the courtyard of the house and the dead F body of Mst. Miran Bibi was found lying in the Kotha' inside the house. These points have been shown in the site plan Exh.P.O. as point No. 1 and point No.4. This circumstance was in line with the confessional statement of the, appellants as well as With the first report made by hint From the spot four empty cartridges (P 3) which were smelling fresh discharge, were recovered by the I.O. in presence of the marginal witnesses to recovery memo. Exh. P.J. Hussain Bux (P.W.5), a disinterested witness, testified to this recovery at the trial. These empty, cartridges, vide Arm Expert's report Exh.P.Q. had been fired from the licensed shotgun of the, appellant which he had produced before the I.O. at the time of his arrest when he was still inside the house where the occurrence had taken place. This circumstance, besides corroborating the confessional statement made by the appellant, fully supported the prosecution case set up at the trial.
13. To sum up, in this case there was available on the record the) confessional statement of the appellant made before a Magistrate, which was proved to have been voluntarily made and was not the result of coercion or torture employed by the police. This statement was further supported by the circumstantial evidence, such as the recovery of the dead bodies from inside the house of the appellant, the recovery of the weapon of the crime from the possession of the appellant, the recovery of the crime empties from the spot which were reported to have been fired from the weapon of crime, the presence of the appellant on the spot soon after the occurrence, which in, our view was sufficient to bring home the guilt to the appellant. The conviction of the appellant for the offence with which he was charged was, therefore, well‑founded.
14. Respecting the sentence awarded by the learned trial Judge, we would only say that the motive mentioned by the appellant himself in the first report and in his confessional statement was a sufficient mitigating circumstance in presence of which awarding of normal penalty of death was not called for. At the trial, no doubt, the prosecution witnesses put forward other motive, which‑was neither established nor was plausible in the circumstances of the case and appears to have been introduced in order to save the family honour. We would, therefore, not interfere in the sentence awarded to the appellant, except that the sentence awarded in default of payment of compensation would be‑read as one for six months. Both appeals and the suo motu criminal revision fail, which are hereby dismissed.
M.Y.H. Appeal dismissed.