MUHAMMAD ASLAM Versus State

ABDUL MOBEEN LAKHO, J.--- Muhammad Aslam appellant was tried by learned 1st Additional Sessions Judge, Karachi West/Model Criminal Trial Court for offences under sections 302/324, P.P.C. After full-fledged trial, vide judgment dated 28.10.2019, appellant was convicted and sentenced as under:

"29. In view of the entire evidence and careful appraisal of the same, I have been led to an inescapable conclusion that the prosecution has been able to prove the charge against accused. As a result of what has been discussed above, I convict the accused namely Muhammad Aslam son of Muhammad Rafiq under section 265-H(2), Cr.P.C. for offence under section 300, P.P.C. punishable under section 302(b), P.P.C. and accordingly sentenced/punish him to "death" as 'Tazir' and to pay compensation of Rs.500,000/- (Rupees Five hundred thousand) to the legal heirs of deceased as provided under section 544-A, Cr.P.C. In case of default of such compensation, he shall suffer six (06) months' more S.I. He shall be hanged by neck till he is dead.

Accused is also proved guilty for intentional and deliberate attempt of committing Qatl-i-amd of his ex-wife Mst. Shahana, I therefore, further convict him for the offence punishable under section 324, P.P.C. and sentenced/punish him to undergo R.I for ten (10) years and to pay fine amount of Rs.100,000/-. Since in such attempt of Qatl-i-amd, he caused Shajjah-i -Khafifa and Jurh Ghayr-jaifah punishable under sections 337-A(i) and F(i), he is therefore, further sentenced/punish to undergo R.I for one year in each offence and to pay daman (compensation) Rs.50,000/- to the injured Mst. Shahana. In case of default in payment of fine amount and/or daman accused shall undergo S.I for six months more. All above imprisonment shall run concurrently except SI in default of fine amount and/or compensation. However, benefit of section 382-B, Cr.P.C. is extended."

2. Brief facts of the prosecution case are that on 30.07.2013 complainant Manzoor Ahmed lodged the FIR stating therein that on the said date, he received phone call from his cousin Ali Gohar, who informed the complainant that he along with Imtiaz Ahmed came to meet Zahoor Ahmed (now deceased) at his house. At about 10:00 a.m. the door knocked. Zahoor Ahmed opened the door and found that Muhammad Aslam armed with churri was present, who stabbed churri blows upon Zahoor Ahmed and Mst. Shahana. Both Ali Gohar and Imtiaz Ahmed caught the accused and informed at 15. SIP Manzar Hussain along with his subordinate staff arrived at the spot to whom accused and churri were handed over. Injured were shifted to Abbasi Shaheed Hospital where Zahoor Ahmed was declared dead, however Mst. Shahana was provided medical treatment. Postmortem of Zahoor Ahmed conducted thereafter, the dead body was handed over to complainant party. On the same day at about 4:00 p.m. complainant went to the Police Station Surjani Town, where FIR bearing Crime No. 405/2013 was lodged under sections 302/324, P.P.C.

3. After registration of the FIR, SIP Tariq Khalid was entrusted investigation of the case, who visited the place of incident on the pointation of complainant, recorded 161, Cr.P.C. statements of P.Ws, took custody of the accused and secured his blood stained shirt in presence of mashirs. Section 164, Cr.P.C. statement of Mst. Shahana was recorded before the concerned Magistrate. Investigating Officer sent Churri, cloths of deceased for chemical examination and received positive report. Investigating Officer on the conclusion of the usual investigation, submitted challan against accused Muhammad Aslam for offences under sections 302/324, P.P.C.

4. Trial Court framed charge against accused Muhammad Aslam for offences under sections 302/324, P.P.C. at Ex.02, to which he pleaded not guilty and claimed to be tried.

5. In order to substantiate the charge, prosecution examined 08 prosecution witnesses. Thereafter, prosecution side was closed.

6. Statement of accused was recorded under section 342, Cr.P.C. at Ex.19. Accused claimed his false implication and denied prosecution allegations. Accused neither gave statement on oath under section 340(2), Cr.P.C. in disproof of the prosecution allegations nor produced any witness in his defence.

7. Trial Court after hearing the learned counsel for the parties and assessment of the evidence came to the conclusion that prosecution had proved its case against the appellant beyond a reasonable doubt and vide judgment dated 28.10.2019 convicted and sentenced the appellant, as stated above. Hence, he has filed present appeal. By this judgment, we intend to decide the aforesaid appeal as well as Confirmation Reference sent by the trial Court.

8. Learned counsel for the appellant argued that the appellant has falsely been implicated in this case by the complainant; that the witnesses being closely related to the deceased are interested witnesses and they have falsely deposed against the appellant; that there was no independent witness with the prosecution to support its version; that the prosecution witnesses have made dishonest improvements in their statements; that nothing has been recovered from the possession of the appellant and same was foisted upon him; that the motive of the incident could not be established by the prosecution at trial and that the prosecution has miserably failed to perform its legal duty in proving the case beyond shadow of reasonable doubt and prayed for the acceptance of this appeal. In support of his contentions, reliance has been placed upon the cases reported as Mst. Sughra Begum and another v. Qaiser Pervez and others (2015 SCMR 1142), Haq Nawaz v. The State (2018 SCMR 21) and Ali Bux and others v. The State (2018 SCMR 354).

9. Conversely, learned Deputy Prosecutor General vehemently opposed the contentions raised by learned counsel for the appellant and maintained that the appellant has murdered deceased Zahoor Ahmed and also caused injuries to injured P.W Mst. Shahana; that the prosecution witnesses have not made any dishonest improvements rather they have explained the manner of incident; that the ocular account is corroborated by the medical evidence; that the prosecution case against the appellant is further corroborated by the recovery of blood stained Chhurri at the instance of the appellant; that the prosecution has fully proved its case against the appellant beyond any reasonable doubt. However, learned DPG halfheartedly conceded that motive behind the incident could not be proved at trial.

10. We have heard learned counsel for the parties and perused the record minutely. Prosecution case is primarily structured upon ocular evidence furnished by P.Ws injured Mst. Shahana, Ali Gohar Chachar and Akhtiar Ahmed, but before discussing the ocular evidence, we have decided to discuss the medical evidence.

11. In order to prove unnatural death of deceased Zahoor Ahmed and injuries on the person of injured Mst. Shahana, prosecution has examined Dr. Muhammad Nadeemudin, being well conversant with hand writing and signature of Dr. Zafar Shah Khan, who after retirement had shifted to USA. Dr. Muhammad Nadeemudin produced MLC No.6062/12 in respect of Mst. Shahana wherein following injures were shown:

1. An incised wound of about 2.5 cm x 0.6 cm x skin deep. Bone not exposed a left side face joint in front of left ear.

2. An incised wound of 1.2 cm x 0.1 cm x skin deep. Bone not exposed a middle pharynx R index Finger o/E joint mount WNL.

Doctor Zafar Shah Khan had also conducted postmortem of Zahoor Ahmed and found following external injuries:

Surface wound and injuries

1. Incised wound of about 4.0 cm x 0.5 cm x skin deep on Anterior aspect of neck below chin.

2. An stab wound of about 4.0 cm x 2.0 cm x cavity deep in between left 3rd/4th intercostal space on left Anterior chest wall.

Time between injuries and death: Instantaneous

Time between death and postmortem: 01 to 03 hours.

Cause of death was cardio respiratory failure. Secondary to irreversible hemorrhagic shock due to acute chest injury resulting from sharp edge object (stab injury).

Unnatural death of Zahoor Ahmed and injuries on the person of Mst. Shahana are not disputed by the defence counsel. We have no hesitation to hold that finding of the trial Court in this regard requires no interference.

12. Prosecution in order to prove its case relied upon the evidence of P.Ws namely injured Mst. Shahana, Ali Gohar Chachar and Akhtiar Ahmed.

13. Mst. Shahana (PW-02) who is star witness of the case, stated that deceased Zahoor Ahmed was her second husband whereas accused Muhammad Aslam was her first husband and her marriage was solemnized with him about 15 years ago prior to the marriage with Zahoor Ahmed. Out of the wedlock of first marriage, two daughters and three sons were born. She further stated that she used to work as her first husband accused Muhammad Aslam did not work and used to take drugs. She further stated that accused Muhammad Aslam used to beat her on petty matters, hence she got Khula from the Court of law in the year 2011 and thereafter, contracted second marriage with Zahoor Ahmed and was living happily with him and out of the second marriage she had three months daughter. Accused Muhammad Aslam used to threaten her for throwing acid on her and commit her murder. On 30.07.2013 at 10:00 a.m. accused Muhammad Aslam knocked the door of their flat, her second husband Zahoor Ahmed opened the door, upon which accused Muhammad Aslam started inflicting churri blows on his chest. She went to save her husband but the accused also inflicted churri blows on her which hit on her right hand finger as well as left ear. Meanwhile, neighbours gathered there, accused Aslam tried to flee but neighbours succeeded in apprehending him. Police was called and they were shifted to hospital where her husband succumbed to his injuries. Police recorded her 161, Cr.P.C. statement and she was also produced before Judicial Magistrate where her 164, Cr.P.C. was recorded. She was cross-examined by learned defence counsel at length but nothing favourable to the accused could be brought on record.

14. Ali Gohar Chachar (P.W-03) stated that on 30.07.2013, he visited the house of deceased Zahoor Ahmed and stayed the night over. Deceased was his cousin and was also his brother-in-law. On the said date at about 10:00 a.m. someone knocked the door, Zahoor Ahmed opened the door. PW Ali Gohar heard cries on which he woke up and saw Zahoor Ahmed had stabbed wound of dagger and was unconscious. Wife of Zahoor Ahmed namely Shahana also got injured. Accused Muhammad Aslam tried to escape, who was caught hold of, thereafter, he informed the police at 15. ASI Manzar Hussain reached at the spot to whom accused and crime weapon i.e. churra were handed over. Churra was sealed at the spot in presence of mashirs. SIP Manzar Hussain gave letter for treatment of injured, who were shifted at Abbasi Shaheed Hospital, where Zahoor Ahmed succumbed to his injuries whereas, Mst. Shahana was provided medical treatment. After postmortem of deceased Zahoor Ahmed, dead body was handed over to them, which they kept in Edhi Cold Storage at Sohrab Goth. On the same day at about 4:00 p.m. complainant Manzoor Ahmed lodged the FIR. Police recorded his statement. In cross-examination he stated that he along with Akhtiar Ahmed was present in the flat of deceased Zahoor Ahmed. He further stated that he was a frequent visitor to the house of deceased Zahoor Ahmed being his close relative. He denied the suggestion that accused was not arrested on the spot.

15. Akhtiar Ahmed (PW-04) is the eye-witness of the incident stated that deceased Zahoor Ahmed was his cousin. On 30.07.2013, he along with Ali Gohar were present in the house of deceased Zahoor Ahmed when at about 10:00 a.m. someone knocked the door. Zahoor Ahmed opened the door and found accused Muhammad Aslam, who inflicted churra blows to Zahoor Ahmed. In the meanwhile his Bhabhi Shahana intervened but accused also caused injuries to her with Churra. They apprehended the accused and called 15. He further stated that he informed complainant about the incident. SIP Manzar Hussain of Police Station Surjani Town reached at the spot to whom accused and churra were handed over. Churra was sealed at the spot in their presence. Thereafter, both the injured were brought at Abbasi Shaheed Hospital where Zahoor Ahmed succumbed to his injuries whereas, medical treatment was provided to Mst. Shahana. ASI Shamsi Muneer of Police Station Surjani also arrived at hospital and conducted the necessary proceedings. After postmortem of deceased Zahoor Ahmed dead body was handed over to them which was kept by them in Edhi Cold Storage at Sohrab Goth. On the same day complainant lodged the FIR. Police recorded his statement. In cross-examination he denied the suggestion that he had not seen the accused Aslam while causing stab wound of Churra to the deceased. He further denied the suggestion that he was deposing falsely.

16. The evidence of P.Ws Mst. Shahana, Ali Gohar and Akhtiar Ahmed was sufficient to prove the case of prosecution beyond a reasonable doubt as the same was straightforward, confidence inspiring and trustworthy. Learned defence counsel could not bring anything on record to doubt presence of P.Ws Ali Gohar Chachar and Akhtiar Ahmed in the flat of deceased at the relevant time. In fact if it was not for Ali Gohar and Akhtiar, Mst. Shahana would also be killed. Moreover, their evidence is fully corroborated by medical evidence, his arrest at the crime scene which was committed in broad day light, recovery of crime weapon i.e. churra and positive chemical report were enough to hand him down with the sentence. Evidence of other P.Ws is also consistent on all material particulars of the case. Importantly no P.Ws had any enmity with the accused and as such had no reason to falsely implicate him in this case. The appellant admitted his presence at the place of incident in his statement recorded under section 342, Cr.P.C. Learned counsel for the appellant then attempted to argue that eye-witnesses are interested being closely related to the deceased, hence not reliable. Mere close relationship of the witnesses with the deceased has no bearing to discard their testimony. In the case reported as Khair Muhammad and another v. State (2007 SCMR 158), it has held that:

"The contention of the learned counsel that witnesses being closely related to the deceased, were interested and not reliable, was without any substance as mere relationship is not sufficient to hold a witness interested or discard his evidence."

17. Learned counsel for the appellant pointed out some contradictions in their evidence, we consider these contradictions as minor in nature and not material and certainly not of such materiality so as to effect the prosecution case. Reliance is placed upon Zakir Khan v. The State (1995 SCMR 1793). We therefore, hold that the Trial Court has rightly relied and appreciated the evidence according to the settled principles of law.

18. As regards to the sentence of appellant is concerned, in the present case there is a mitigating circumstance i.e. the motive of the incident which has remained shrouded in mystery, which has also been conceded by the learned DPG when confronted by this Court. The Superior Courts have consistently held that if no motive has been proved by the prosecution this is a ground which the Court may use in exercising its sentencing discretion to reduce the sentence of death to life imprisonment. In this respect reliance is placed on Amjad Shah v. State (PLD 2017 SC 152), where it was held as under:

"Notwithstanding that the participation of the appellant in the commission of offence is duly established, his intention, guilty mind or motive to commit the same remains shrouded in mystery and is therefore, unproven. In such like cases where the motive is not proved or is not alleged by the prosecution, the Court for the sake of safe administration of justice, adopts caution and treats the lack of motive as a mitigating circumstance for reducing the quantum of sentence awarded to a convict. Reference is made to Zeeshan Afzal v. The State (2013 SCMR 1602)."

19. For the above stated reasons, we uphold the convictions under sections 302(b), 324, 337-A(i) and F(i), 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, remaining sentences imposed against the appellant in the impugned judgment shall remain intact and appellant shall have the benefit of section 382-B, Cr.P.C. All sentences shall run concurrently.

20. In the view of above, this Appeal is disposed of in the above terms.

JK/M-78/Sindh Sentence reduced.