JAFAR alias ZAFAR Versus State
SHEHRAM SARWAR CH. J .---Jafar alias Zafar (appellant) was tried by learned Addl. Sessions Judge, Sahiwal in case FIR No.65 dated 27.02.2017, offence under section 302, P.P.C., registered at Police Station Dera Raheem District Sahiwal for committing murder of Mst. Mussarat Bibi, daughter of the complainant. Vide judgment dated 11.12.2017 passed by learned trial court, the appellant has been convicted under section 302(b), P.P.C. and sentenced to death with a further direction to pay Rs.5,00,000/- (rupees five lakh only) as compensation under section 544-A, Code of Criminal Procedure, to the legal heirs of deceased and in default whereof to further undergo six months simple imprisonment. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial court has sent Murder Reference No. 179 of 2017 for confirmation or otherwise of the appellant's sentence of death, as required under section 374 of the Code of Criminal Procedure. Since both these matters have arisen out of the same judgment, therefore, the same are being decided together through this single judgment.
2. Prosecution story, as set out in the FIR (Exh.PB/1) registered on the written application (Exh.PB) of Hakim Ali, complainant (PW.2) is that about 20/21 years ago Mst. Mussarat Bibi, daughter of the complainant, was married to Jafar alias Zafar (appellant) and out of this wedlock five daughters and one son were born. The appellant was jobless and due to nefarious conduct of the appellant two years ago, Mst. Mussarat Bibi along with her kids had come to the house of complainant. About 10/15 days ago, the appellant came to the house of the complainant and Mst. Mussarat Bibi asked him to do some labour or to go to Karachi for doing labour with her brothers, upon which the appellant after using abusive language left the house. On 27.02.2017 at about 01:30 p.m. Mst. Mussarat Bibi, Mst. Sumbal Bibi (PW.3) and Mst. Samra (given up PW), daughter and grand-daughters of the complainant respectively, were returning to home after taking medicines while he (complainant) was standing in the street. When Mst. Mussarat Bibi reached in front of house of Qasim Ali Qureshi, the appellant armed with hatchet came there and said to Mst. Mussrat Bibi that he would teach a lesson for asking him to do labour. The appellant inflicted hatchet blow on Mst. Mussarat Bibi, which landed on the left side of her neck and she fell on the ground. The appellant also gave hatchet blows to Mst. Mussarat Bibi, while she was in fallen position, hitting on her left shoulder and left temporal region. The appellant while raising lalkara fled away from the place of occurrence towards eastern side. Mst. Mussarat Bibi succumbed to the injuries on the spot. The occurrence was witnessed by the complainant along with Mst. Sumbal and Mst. Samra. Motive behind the occurrence as alleged in the FIR was that Mst. Mussarat Bibi (deceased) used to ask the appellant to do labour and due to that grudge the appellant committed murder of the deceased.
3. After completion of investigation, report under section 173, Code of Criminal Procedure was submitted in this case. The appellant was summoned by the learned Additional Sessions Judge, Sahiwal to face the trial. Copies of relevant documents were provided to him, as required under section 265-C, Code of Criminal Procedure and formal charge under section 302, P.P.C. was framed against him on 12.05.2017, to which he pleaded not guilty and claimed trial. After the closure of prosecution evidence, statement of the appellant under section 342, Code of Criminal Procedure was recorded on 27.11.2017, wherein he refuted all the allegations of prosecution and professed his innocence. The appellant neither opted to appear as his own witness, in disproof of the allegations levelled against him, as provided under section 340(2), Code of Criminal Procedure nor did he produce any defence evidence. After conclusion of the trial, the learned trial court convicted and sentenced the appellant as detailed above. Hence, this appeal and murder reference.
4. We have heard learned counsel for the appellant as well as learned Deputy District Public Prosecutor for the State and gone through the record with their able assistance.
5. This unfortunate incident wherein Mst. Mussarat Bibi, daughter of the complainant was done to death as per prosecution, took place on 27.02.2017 at about 01:30 p.m. in the area of Chak No.150/9-L situated within the territorial jurisdiction of Police Station Dera Raheem District Sahiwal. The distance between the police station and the place of occurrence is seven kilometers. The matter was reported to the police through written application (Exh.PB) of Hakim Ali, complainant (PW.2) on the same day at 02:30 p.m. i.e. just one hour after the occurrence. Moreover, the postmortem examination of the dead-body of deceased was conducted on the same day at 08:00 p.m. Therefore, we hold that matter was reported to the police with due promptitude which rules out the chances of concoction and fabrication on the part of complainant.
6. The ocular account in this case consists of Hakim Ali, complainant (PW.2) and Mst. Sumbal Bibi (PW.3), who were closely related to the deceased being her father and daughter respectively. Both these PWs were resident of the same area where the incident took place, therefore, their presence on the spot at the time of incident is quite natural and probable. The place of occurrence has not been disputed by the defence. The eye-witnesses were subjected to lengthy cross-examination but they remained consistent on material aspects of the case and nothing favourable to the defence could be extracted. The discrepancies in the statements of the PWs pointed out by learned counsel for the appellant, are minor and general in nature, occur in every case when witnesses are cross-examined after a long time of the occurrence as in present case, are not fatal to the prosecution. The witnesses of ocular account have no deep rooted enmity with the appellant to falsely implicate him in this case by letting off the real culprits. In the FIR as well as before the learned trial Court it was the case of prosecution that the appellant was sole perpetrator for causing injuries on the person of the deceased. Therefore, we hold that the evidence of above eye-witnesses was consistent, truthful and confidence inspiring.
7. In the FIR as well as before the learned trial Court it was the case of prosecution that the appellant inflicted hatchet blows on Mst. Mussarat Bibi (deceased), which landed on the left side of her neck, left shoulder and left temporal region. Dr. Kiran Azhar (PW.4), who conducted postmortem examination on the dead body of the deceased, observed the above said injuries on the person of the deceased. Therefore, we hold that ocular account is fully supported by medical evidence.
8. Motive behind the occurrence as alleged in the FIR was that Mst. Mussarat Bibi (deceased) used to ask the appellant to do labour and due to that grudge the appellant committed murder of the deceased. Undoubtedly quarrel between the spouses is not unusual in our culture but merely on this reason it is not expected that a husband will kill his wife on such petty issue. No cogent/convincing evidence qua motive part of incident was produced by the prosecution during the trial. Moreover, no independent witness qua motive was joined by police in investigation or produced by prosecution before the learned trial Court during trial. Therefore, we hold that prosecution has failed to prove motive against the appellant.
9. So far as the alleged recovery of blood stained hatchet (P.4) at the instance of the appellant is concerned, the same is immaterial because the occurrence allegedly took place on 27.02.2017, the appellant was arrested in this case on 20.03.2017 and got recovered the alleged hatchet on 24.03.2017 whereas the same was received in the office of Punjab Forensic Science Agency on 27.03.2017 i.e. about twenty eight days after the incident, therefore, there was remote possibility of blood being present on the hatchet.
10. Now we will discuss the version of the appellant which was taken by him in his statement recorded under section 342, Cr.P.C. The appellant neither opted to appear as his own witness, in disproof of the allegations levelled against him, as provided under section 340(2), Code of Criminal Procedure nor produce any witness in his defence. Therefore, we are of the view that the appellant has not been able to substantiate his version, which is hereby discarded out-rightly.
11. From the above circumstances, we are of the considered view that even if the evidence of motive and recovery of hatchet (P.4) are excluded from consideration, there is sufficient incriminating evidence on the record against him in the form of straightforward and confidence inspiring ocular account furnished by Hakim Ali, complainant (PW.2) and Mst. Sumbal Bibi (PW.3) fully supported by the medical evidence furnished by Dr. Kiran Azhar (PW.4) to maintain his conviction under section 302(b) which is accordingly maintained. However, it is not a case of capital punishment because of the reasons:- (i) motive as set up by the prosecution has not been believed by us and (ii) recovery of hatchet (P.4) at the instance of the appellant is inconsequential.
12. The above said facts lead us to the conclusion that there are sufficient extenuating circumstances, on the basis of which the appellant could not be made liable to the maximum punishment provided under section 302(b), P.P.C., rather the ends of justice would be met, if his death sentence is converted into imprisonment for life. Reliance is placed on case law titled as "Mir Muhammad alias Miro v. The State" (2009 SCMR 1188) and "Zafar Iqbal and others v. The State" (2014 SCMR 1227). Therefore, while maintaining the conviction under section 302(b), P.P.C., we alter the sentence of the appellant from death to imprisonment for life. The amount of compensation and the punishment in default whereof as ordered by the learned trial court are maintained. Benefit of section 382-B, Code of Criminal Procedure is extended to the appellant. In view of the above, the appeal in hand is dismissed with the above modification in the quantum of sentence.
13. Murder Reference No.179 of 2017 is answered in the NEGATIVE and the sentence of death awarded to Jafar alias Zafar (convict) is NOT CONFIRMED.
JK/J-12/L Appeal dismissed.