ABDUL MOBEEN LAKHO, J. Farhan Ahmed, appellant was tried by learned Ist Additional Sessions Judge/ MCTC, Karachi Central in S.C.No.1235 of 2013 (arising out of FIR No.358/2013) for offence under section 302, P.P.C., registered at Police Station New Karachi. After full-dressed trial, vide its judgment dated 13.09.2019, appellant was convicted under section 302(b), P.P.C. as Tazir and sentenced to death, subject to confirmation by this Court. Appellant was also ordered to pay compensation of Rs.20,00,000/- to the legal heirs of the deceased as provided under section 544- A, Cr.P.C. In case of default, he was ordered to suffer S.I for six months more.
2. Brief facts of the prosecution case depicted by complainant Sajjad Ahmed are that on 24.10.2013, complainant was present at his home when he received a call of Abdullah, younger brother of accused Farhan, that a quarrel had taken place between accused Farhan and his wife Mst. Shaista (sister of the complainant), in which she had sustained injuries and had been taken to Jinnah Hospital Karachi. Upon receiving such information, complainant rushed to the hospital where he found the dead body of his sister Shaista, who had been done to death by cutting her throat as well as causing churri blow to her on her vital parts of the body. Such FIR was recorded vide Crime No. 358/2013 of offence under section 302, P.P.C. at Police Station New Karachi.
3. On 24.10.2013, investigation was carried out by SIP Muhammad Rafaqat. On the same day at 1815 hours, I.O. visited place of incident and prepared sketch. Such memo was prepared in presence of mashirs. I.O. recorded 161, Cr.P.C. statements of witnesses. On 31.10.2013 confessional statement of accused was recorded by concerned Judicial Magistrate. On the same day, I.O. sent shirt of deceased, Qameez of accused and churri to chemical examiner and received positive report. On the conclusion of the investigation, challan was submitted against the accused for offence under section 302, P.P.C.
4. Trial Court framed charge against the accused under section 302, P.P.C. at Ex.2, to which accused did not plead guilty and claimed trial.
5.. In order to prove its' case, prosecution examined complainant Sajjad Ahmed (PW-01), Mehtab Alam Siddiqui (PW-02), Fayyaz Nabi (PW-03), SIP Amanat Ali (PW-04), Inspector Kabir Ahmed Abbasi (PW-05), Dr. Nasreen Qamar (PW-06), SIP Muhammad Rafaqat (PW-07) and Fida Hussain (PW-08). Thereafter, prosecution side was closed vide statement at Ex.14.
6. Statement of accused was recorded under section 342, Cr.P.C. at Ex.15, in which accused admitted the allegations of committing murder of his wife. Accused also examined himself on oath as provided under section 340(2), Cr.P.C., wherein he blamed his wife for being unchaste and was done to death by inflicting churri blows. Accused did not examine defence witness.
7. Trial Court, after hearing learned counsel for the parties and evaluation of the evidence vide judgment dated 13.09.2019 convicted and sentenced the appellant as stated above, which judgment is assailed by the appellant through instant Appeal, whereas, learned trial Court has made Reference for confirmation of death sentence as provided under section 374, Cr.P.C. Bound by common thread, we intend to decide the same through this single judgment.
8. Learned counsel for the appellant argued that the complainant was the neither eye-witness nor was present at the time of incident; that the whole case of prosecution is based upon circumstantial evidence and there are numerous contradictions in the evidence of the prosecution witnesses; that the impugned judgment is based on misreading and non-reading of the evidence; that the appellant in his statement under section 342, Cr.P.C. has admitted the guilt due to pressure and under coercion hence the same could not be relied upon by the prosecution as the prosecution has failed to prove its case beyond shadow of doubt. He, however, finally argued that what happened prior to scene of occurrence or what prompted the appellant to take life of his wife has remained in mystery, therefore, in case the Court is not convinced to acquit the appellant, the sentence of appellant may be reduced to life imprisonment. In support of his contention reliance has been placed upon the case of Ghulam Murtaza v. The State (2021 SCMR 149).
9. Learned D.P.G. argued that Fayyaz Nabi (PW-03) real father of the appellant had no motive to falsely implicate his own son; that appellant committed murder of his wife, which fully corroborated the evidence furnished by Fayyaz Nabi together with recovery of blood stained churri as well as clothes of deceased and appellant; that prosecution has successfully established its case beyond shadow of any reasonable doubt against the appellant, however, he frankly conceded that it has not come on record that actually what happened just prior to the incident which compelled the appellant to take life of his wife.
10. We have heard learned counsel for the parties and have perused the record minutely.
11. As regards the unnatural death of deceased is concerned, Dr. Nasreen Qamar (PW-06) conducted postmortem of deceased Shaista on 24.10.2013 at 4:10 a.m. and completed the same at 5:15 a.m. Lady Doctor found the following injuries on the person of the deceased: i. Multiple tentative cuts over neck, parallel to each other, two of them are deep incised wound.
Incised wound over middle of the neck from left to right side of the neck. More deep over right side over neck, structure deep, skin subcutaneous tissues, muscles of the neck i.e. sternocledomastoid right side is cut, trachea, oesophgus and caroted of right side is cut. Wound is 3 to 3.5 c.m. wide.
Incised wound commences from the lower part of the mandible right side of face above the (Upper mentioned deep neck bone) cutting the upper part of the neck right side structure deep 2 to 2.5 cm wide. ii. Two incised wounds over middle of chest between the breast 6 cm x 3 cm and 3.5 cm x 2 cm, muscle deep. iii. Incised wound of size 2.5 cm x 1 cm and 3 x 1 cm over epigastrium, skin deep, parallel to each other. iv. Incised wound over left side middle of back of the chest, 6 x 3 cm cavity deep. v. Incised wound over left forearm 6 x 3 cm below cubital fossa. vi. Incised wound over back of right arm and upper part of left arm 3 x 1 cm and 3.5 x 1 cm muscle deep both.
All the injuries were mentioned above as ante mortem in nature. Cause of death was multiple deep cuts at throat and multiple sharp edged weapon injuries over body leading to irreversible hemorrhagic shock and cardio respiratory failure. The evidence of the Lady Doctor goes unchallenged and un-rebutted with regard to the number of injuries sustained by deceased and the type of weapon used. We have no hesitation to hold that deceased died of injuries caused by sharp edged weapon as described by her and finding of the trial court in this regard requires no interference by this court.
12. In order to substantiate the charge against the appellant, Complainant Sajjad Ahmed (PW-01) deposed that on 24.10.2013, he was present in his house, when he received a call from younger brother of appellant namely Abdullah who informed him that a quarrel had taken place between appellant Farhan and Mst. Shaista (wife of appellant and sister of complainant), wherein she sustained injuries and she had been taken to Jinnah Hospital, Karachi. Upon receiving such information, complainant informed his father and mother and went to the house of his brother-in- law namely Kamran Khan, who asked him to confirm where Mst. Shaista was admitted.
Complainant contacted Abdullah who informed him to reach at mortuary. Complainant along with his brother-in-law went to the hospital where his maternal grandfather Fayyaz Nabi and his son Abdullah were present. Complainant saw the dead body of his sister Mst. Shaista. Police came at hospital and recorded his 154, Cr.P.C. statement. First Information Report of the incident was lodged at Police Station Complainant further deposed that on the same day at 6:00/ 6:30 p.m. on his pointation visited the place of incident and obtained photographs in presence of mashirs. In his cross-examination, the complainant denied the allegation that he was deposing falsely.
13. Mehtab Alam Siddiqui (PW-02) deposed that on 24.10.2013, he received call of his nephew/ complainant Sajjad Ahmed that a quarrel took place between his sister Mst. Shaista and brother- in-law Farhan and she was taken to hospital in injured condition. Mehtab Alam reached at the house of appellant Farhan and came to know about the murder of Mst. Shaista. Thereafter, police arrived at spot, went inside the house and brought him along with bloodstained churri. The mashirnama of arrest and recovery was prepared in his presence. Thereafter, the police took away the accused and churri to the police station. On the same day at 6:00 p.m. police visited the place of incident in his presence and in presence of complainant Sajjad. In cross-examination he denied the suggestion that appellant was already under arrest before his arrival and was confined in lock up. He further denied the police completed all the formalities at police station. He denied the suggestion that he was deposing falsely.
14. SIP Aamanat Ali (PW-04) deposed that on 24.10.2013 at 0140 hours ASI Ismail Ansari informed him on phone that husband had committed murder of wife at Sanober Cottage, New Karachi and dead body had been taken to Jinnah Hospital. SIP Amanat Ali went to the hospital recorded 154, Cr.P.C. statement of complainant and completed the formalities. Thereafter, SIP came at the police station where FIR was lodged. He handed over sealed parcel of clothes of deceased to the I.O.
15. Inspector Kabir Ahmed Abbasi (PW-05) deposed that on 23.10.2013 he left P.S. along with subordinate staff at 8:00 p.m. for patrolling. At 0200 hours ASI Ismail Ansari informed him on phone that one husband has murdered his wife in Sanobar Cottage. Inspector Kabir Ahmed reached at the place of incident where he was informed that incident took place inside the house. Inspector entered into the room of the house and found a person, who on inquiry disclosed his name as Farhan. A blood stained churri was also lying near him. Inspector arrested the appellant, secured blood stained clothes of appellant and sealed both the clothes and the churn churri in presence of mashirs. Appellant was in injured condition, therefore, Inspector referred the appellant to the hospital. At 0450 hours, Inspector along with appellant reached at Police station. Inspector further deposed that I.O. recorded his statement under section 161, Cr. P. C. In cross-examination, Inspector denied the suggestion that after consultation of the family, appellant surrendered himself before police.
16. SIP Muhammad Rafaqat (PW-07) deposed that on 24.10.2013 he was posted in Investigation Branch of PS New Karachi. I.O. received investigation of the instant Crime. He visited the place of incident on the pointation of complainant, prepared sketch of site, recorded 161, Cr.P.C. statements of P. Ws. On 31.10.2013 appellant also recorded his confessional statement before the concerned Magistrate. I.O. received positive chemical examiner report. After completion of investigation I.O. submitted challan before the Court. I.O. was cross-examined at length but nothing favourable to the appellant was brought on record.
17. Mr. Fida Hussain, Judicial Magistrate (PW-08) deposed that on 31.10.2013, I.O. produced appellant for recording his confessional statement.
Magistrate recorded confessional statement of the appellant. In cross-examination he denied the suggestion that confessional statement was recorded without providing time for reflection to accused.
18. From the close examination of evidence it transpires that the fate of prosecution is hinged on various pieces of circumstantial evidence. The episode of unfortunate tragedy has been furnished by solitary witness Fayyaz Nabi (PW-03), who is real father of the appellant, deposed that on 24.10.2013 at 1/1:15 a.m. when he was sleeping along with other family members, he heard commotion. He along with his other sons namely Abdullah and Irfan went to the room of his son Farhan and knocked the door but the knock went unheard, therefore, they made hole and opened the lock from outside and saw that appellant/ accused Farhan had churri in his hand and he had already cut the neck of his wife Mst. Shaista, they both were lying on ground. Thereafter, he arranged ambulance. Mst. Shaista was breathing, hence she was taken to Abbasi Shaheed Hospital where 'Doctors declared her dead. However, due to non-availability of lady doctor, the dead body of Mst. Shaista was brought at JPMC. Police came at the hospital, examined the dead body and prepared inquest report. After conducting postmortem the dead body was handed over to them for funeral. He was subjected to lengthy cross-examination by the defence, but nothing fruitful could be extracted from him. He stood firm to his stance. The evidence of Fayyaz Nabi (PW- 03) has been corroborated by the medical evidence coupled with recovery of bloodstained churri from the place of incident and bloodstained last worn clothes of deceased and the appellant.
Positive FSL report, established the crime. The presence of Fayyaz Nabi (PW-03) on the spot was natural being father of the appellant/inmate of the same house, his presence at the fateful time, cannot be doubted on any premise whatsoever. Fayyaz Nabi (PW-03) real father of the appellant and is admittedly solitary witness of the incident, he had no motive to falsely, implicate his son in the murder case. As a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness, but if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the quantity but the quality that is material. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. However, in the present case, evidence of Fayyaz Nabi (PW-03) is straightforward and confidence inspiring, which is also corroborated by medical evidence. In the case of Niaz-Ud-Din and another v. The State and another (2011 SCMR 725), the Honourable Supreme Court has held as under: "11. The statement of Israeel (P.W.9) the eye-witness of the occurrence is confidence inspiring, which stand substantiated from the "circumstances" and other evidence. There is apt observations appearing in Allah Bakhsh v. Shammi and others (PLD 1980 SC 225) that "even in a murder case conviction" can be based on the testimony of a single witness, if the Court is satisfied that he is reliable." The reason being that it is the quality of evidence and not the quantity which matters.
Therefore, we are left with no doubt whatsoever that conviction of Niaz-ud-Din was fully justified and has rightly been maintained by the High Court."
19. The entire case of prosecution is based on circumstantial evidence and the fundamental principle of universal application in the cases which are dependent on circumstantial evidence, is that in order to justify the inference of guilt, the incriminating fact must be incompatible with the innocence of the accused or the guilt of any other person and incapable of explanation upon any other reasonable hypothesis than that of his guilt. Such principle is reiterated in the case reported in the case of Wazir Muhammad and another v. The State (2005 SCMR 277). In the present case, the evidence of Fayyaz Nabi (PW-03) has been corroborated by recovery of bloodstained churri, bloodstained last worn clothes of deceased and the appellant, positive FSL report as well as medical evidence which opined the injuries caused by sharp edged weapon on vital part of her body. So far as minor contradictions and discrepancies in the evidence of the prosecution witnesses are concerned, the same with the passage of time usually take place almost in every criminal case and the same are trivial in nature, which do not go to the root of the cause. However, it is now well settled that such trivial contradictions cannot be made basis for acquittal of the accused, particularly in a murder case. Honourable Supreme Court in the case of Khan alias Khani and another v. The State (2006 SCMR 1744) held as under: "It is a settled law that minor contradiction and discrepancies between testimony of eye-witnesses and that of other prosecution witnesses in a murder case do not materially affect the testimony of eye-witnesses which otherwise appeared to be true and genuine meaning thereby the discrepancies in the statements of eye-witnesses are of no importance."
20. The evidence of Fayyaz Nabi (PW-03) corroborated as stated above establishes an unbroken chain, end of which touched the dead body and the other the neck of the accused.
21. At the cost of repetition, it is observed that the evidence of P.W-03 Fayyaz Nabi who has implicated the appellant in the case is most important for the just decision of the case. His examination-in-chief recorded by the trial Court is reproduced as under: "On 24.10.2013, this incident took place at 1.00/1.15 a.m. On the night of incident we all the family members were sleeping then we heard commotions and voice of doors therefore I along with my two sons Abdullah Wasi and Irfan Ahmed went to the room of my son Farhan which was locked from inside therefore we knocked the door but it was not opened therefore we made a hole in it and opened from inside. We entered into the room and saw that the accused Farhan had churri in his hand and he had already cut neck of his wife Mst. Shaista and they both were lying on the ground. My son Abdullah took possession of churri from the accused and then it was given to my son Irfan and it was kept in kitchen. Thereafter, I asked my both sons to take care of my accused son Farhan and I went and brought ambulance of Chhipa. The wife of accused was breathing therefore she was taken away in ambulance to Abbasi Shaheed Hospital where the doctors confirmed the death of wife of my accused son. Thereafter, the dead body was brought at JPMC due to non availability of lady doctor in Abbasi Shaheed Hospital. The driver of Chhipa ambulance had also informed to the police who also came at JPMC who examined the dead body and prepared such mashirnama in my presence and co mashir Abdullah. I produce such mashirnama at Ex.6/A and say that it is same, correct and bears my signatures. The police also prepared report under section 174, Cr.P.C. in our presence. I produce such report at Ex.6/B and say that it is same correct and bears my signature. After completing formalities in hospital we took away dead body for funeral ceremony. The police had recorded my statement under section 161, Cr.P.C. The accused and case property viz Churn present in the Court are same."
22. We have also gone through the statement of accused recorded under section 342 Cr.P.C. in which the appellant took plea that he committed murder of his wife Mst. Shaista on account of suspicion of being unchaste having illicit relations with one Kamran (brother-in-law) of the appellant. Reiterating the same plea, appellant also appeared as his own witness under section 340(2), Cr.P.C., but declined to produce defence evidence. It appears that at the time appellant chose not to disclose the name of any person, but at the time of recording his statement under section 342, Cr.P.C. and statement on oath under section 340(2), Cr.P.C., the appellant named one Kamran whose name was disclosed to the appellant by sister of deceased namely Shagufta, but surprisingly said Shagufta was not examined by the appellant in his defence. We find that plea raised by the appellant is afterthought. Defence plea has not been substantiated by some material. Trial Court had rightly disbelieved defence theory. Even otherwise, no one has license to kill the wife.
23. Learned Magistrate had recorded confessional statement of accused while observing all the legal formalities and provided sufficient time to the appellant for reflection. Confession of the accused is materially corroborated by other pieces F of evidence produced by the prosecution at trial. Appellant in his statement recorded under section 342, Cr.P.C. admitted that he had made true and voluntarily confession before the Judicial Magistrate. Question No.5 of statement of accused under section 342, Cr.P.C. and its answer given liy accused for sake of ready reference are reproduced as under: Q.No.5 What do you say about your confession recorded before the magistrate on 31.10.2013 produced at Exh.13 / D?
Ans. Yes Sir, I have made true and voluntary confession before J.M. I have also disclosed name of Kamran.
24. Learned Trial Court has undertaken an exhaustive analysis of the evidence available on the record and has then passed the judgment regarding guilt of the appellant having been established to the hilt and upon our independent evaluation of the evidence, we have come to the conclusion that prosecution has successfully proved its case against the appellant.
25. Appellant has committed murder of his wife, the provisions of sections 306, 307 and 308, P.P.C. would only attract in the cases of Qatl-i-Amd liable to Qisas under section 302(a), P.P.C. and not in the cases in which sentence for Qatl-i-Amd had been awarded as Tazir under section 302(b) & (c), P.P.C. as held in the case of Muhammad Akram v. The State (2003 SCMR 855).
26. As regards to the sentence of appellant is concerned, there are mitigating circumstances.
Admittedly there was no direct evidence in this case and the motive of the incident has remained shrouded in mystery. Evidence of P.W-03 Fayyaz Nabi is also material, who has stated as under: "On 24.10.2013, this incident took place at 1.00/1.15 a.m. On the night of incident we all the family members were sleeping then we heard commotions and voice of doors"
27. It is evident that relation between wife and husband were before sleep on the night of incident.
Prosecution has not brought on record that what happened prior to the scene of occurrence or what prompted the appellant to take away the life of his, wife at night time. The Honurable Supreme Court in the case of Ghulam Murtaza v. The State (2021 SCMR 149), has held as under: "4. We have observed that there is lack of motive in the case in hand and what happened prior to the scene of occurrence or what prompted the appellant to take away the life of the deceased- Mst. Saima Bibi are the circumstances which have rightly been considered by the Courts below as mitigating circumstances and thus, the appellant has rightly been dealt with by the Courts below."
28. In the above stated circumstances, when motive is shrouded in mystery; that it has not been brought on record what happened/prompted the appellant just prior to incident to commit murder of his wife and that the confession of accused was also not recorded in accordance with the settled principles of law are the mitigating circumstances. A single mitigating circumstance would be sufficient to put on guard the Judge not to award the penalty of death but life Imprisonment. In the case of Ghulam Mohyuddin v. State (2014 SCMR 1034), it is held as under: "A single mitigating circumstance, available in a particular case, would be sufficient to put on guard the Judge not to award the penalty of death but life imprisonment. No clear guideline, in this regard can be laid down because facts and circumstances of one case differ from the other, however, it becomes the essential obligation of the Judge in awarding one or the other sentence to apply his judicial mind with a deep thought to the facts of a particular case. If the Judge/judges entertain some doubt, albeit not sufficient for acquittal, judicial caution must be exercised to award the alternative sentence of life imprisonment, lest an innocent person might not be sent to the gallows. So it is better to respect the human life, as far as possible, rather to put it at end, by assessing the evidence, facts and circumstances of a particular murder case, under which it was committed.
29. In the case of Ghulam Mohyuddin (supra) it is also held that normal penalty is death sentence for murder, however, once the Legislature has provided for awarding alternative sentence of life imprisonment, it would be difficult to hold that in all the cases of murder, the death penalty is a normal one and shall ordinarily be awarded. Relevant portion is reproduced as under: "20. Albeit, in a chain of case-law the view held is that normal penalty is death sentence for murder, however, once the Legislature has provided for awarding alternative sentence of life imprisonment, it would be difficult to hold that in all the cases of murder, the death penalty is a normal one and shall ordinarily be awarded. If the intent of the Legislature was to take away the discretion of the Court, then it would have omitted from clause (b) of section 302, P.P.C. the alternative sentence of life imprisonment. In this view of the matter, we have no hesitation to hold that the two sentences are alternative to one another, however, awarding one or the other sentence shall essentially depend upon the facts and circumstances of each case. There may be multiple factors to award the death sentence for the offence of murder and equal number of factors would be there not to award the same but instead a life imprisonment. It is a fundamental principle of Islamic Jurisprudence on criminal law to do justice with mercy, being the attribute of Allah Almighty but on the earth the same has been delegated and bestowed upon the Judges, administering justice in criminal cases, therefore;' extra degree of care and caution is required to be observed by the Judges while determining the quantum of sentence, depending upon the facts and circumstances of particular case/cases."
30. For the above stated reasons, we uphold the conviction under section 302(b), P.P.C., but reduce the sentence of the appellant from that of the death penalty to life imprisonment, as such the confirmation reference is answered in the NEGATIVE. Apart from the above variation in sentence, compensation and penalty imposed against the appellant in the impugned judgment shall remain intact and appellant shall have the benefit of section 382-B, Cr.P.C.
31. In the view of above, this Appeal is disposed of in the above terms.