LIAQAT ALI Versus THE STATE

SH. MUHAMMAD ZUBAIR, J.--- Liaqat Ali has been tried under section 302, P.P.C. on two counts for the murder of his wife Mst. Manzoor Fatima and his daughter Mst. Andleeb aged 8 months by the learned Additional Sessions Judge, Faisalabad. The learned trial Judge vide his judgment, dated 26-6-1991, convicted him thereunder and sentenced him on each count to suffer death and to pay fine of Rs.10,000 or in default to undergo R.I. for two years.

The convict has appealed and the learned Additional Sessions Judge has referred the case to this Court under section 374, Cr.P.C. for confirmation of death sentence. We propose to dispose of both these matters by this judgment.

2. The occurrence is stated to have taken place on 19-6-1988 and statement of the appellant Exh.P.E. was recorded by Manzoor Hussain Shah, S.I. (P.W.9) on 19-5-1989, near Railway Crossing, Dogranwala, on the basis of which formal F.I.R. Exh.P.E./1 was drawn up at Police Station Chak Jhumra by Karam Elahi, A.S.I: (P.W.5).

3. Briefly the facts giving rise to this appeal are that the appellant filed a writ petition in the Lahore High Court for the registration of case for the murder of his wife and daughter against he accused. Order was passed accordingly and as stated above the instant case was registered on the statement of the appellant. It was stated by the appellant that two years ago, he was Imam Masjid at Mauza Lurki, where Hafiz Shafqat was also a Mudarras in Haidri Masjid, Hafiz Shafqat had taken a loan of Rs.10,000 from the appellant. On 14-6-1988, Hafiz Shafqat was Mudarras in Faisalabad. The appellant was to construct his house. He alongwith his wife and daughter went to Hafiz Shafqat to get back his loan. The latter asked him to come on 19-6-1988. The appellant alongwith the two deceased against went to Hafiz Shafqat. Hafiz Shafqat refused to pay the amount and hot words exchanged between the two. After Maghrab prayers Taufeeq Ahmad told the appellant to leave the mosque. Thereafter the appellant alongwith the two deceased went to Chak Jhumra. He was standing in wait of transport when-a Pick-up came there. A person by the name of Riaz came to the Tonga and asked the Tonga Driver where the Tonga was going, who told him that the Tonga was going to Blaggan. The appellant, his wife and daughter mounted the Tonga and got down from the Tonga on the road of Chak Blaggan. They started for the Chak. When they reached Pull Rajbah of Chak No.156/R.B., they saw a wagon standing there. The appellant took a different way to reach the Chak. They had hardly covered a distance of 50./60 yards when Khadim Hussain, Khushi Muhammad, Fayyaz Ahmad, Riaz Ahmad, Harz Shafqat and Harz Qari Ansar Ayub appeared at the scene and started belabouring the appellant and his wife. Khushi Muhammad threw the wife of the appellant in the Rajbah alongwith the baby girl. The appellant became unconscious. When he regained consciousness, he found himself in tire house of Khushi Muhammad and two Pathans were present there. Khushi Muhammad and Riaz Ahmad put the appellant in the Truck and the Pathans took him to Darra Adamkhel and claimed Rs.30,000 from the appellant as ransom. After five months, one Mehnga, resident of Lahore met the appellant who gave him Rs.200. On 10-11-1988, the appellant managed to escape from the Fathans. He then -went to Mehnga and then to Chak No.156/R.B., where he learnt that about 5/6 months before dead bodies of a woman and a baby were found in the Rajbah and were buried as not traceable. The appellant told the people that the occurrence had taken place with him. At this juncture, Arshad told that on 19-6-1988, he was coming to his village when he saw a Pick-up, standing 'at the bridge of Rajbah and two persons by the names of Shafqat and Khadim Hussain were present there.

With regard to motive, the appellant stated in his statement that he wanted the hand of Mst. Riffat Bibi, daughter of Khadim Hussain for his brother Shaukat. As the girl was of ill-repute, therefore, the wife of the appellant was adamant to take the hand of Mst. Riffat Bibi. Resultantly, Khadim Hussain got a theft case registered against the appellant and his wife on 29-3-1988 at Police Station Saddar, Gujranwala. Both got interim bail from the Sessions Court. Thereafter, Fayyaz, Khushi Muhammad and Khadim Hussain attacked him but he was saved. The appellant had to get back Rs.10,000 from Hafiz Shafqat and when he asked for the return of the money, there was exchange 6G hot words between the two. It is alleged that in order to revenge insult. Hafiz Shafqat in connivance with his enemies committed the murders of his wife and daughter.

Manzoor Hussain. S.I. (P.W.9) after recording the statement of the appellant EXh.P.E. sent it to Police Station Chak Jhumra, where formal F.I.R. Exh.P.E./1 was drawn up by Karam Elahi, A.S.I. (P.W.5) against Khadim Hussain, Fayyaz, Khushi, Riaz, Ansar Ayub and Hafiz Shafqat. During the investigation Manzoor Hussain, S.I. visited the spot but none supported the version of the appellant. Resultant the accused nominated in the F.I.R. were declared innocent by him. Thereafter, Dilawar Hussain, S.I. (P.W.1% investigated the case. He joined the 'appellant in the investigation and it came to light that the appellant was the real accused. The nominated accused were thus got discharged. He showed the photographs of the two deceased to the appellant which were identified by him to be that of his wife and daughter. Dilawar Hussain, S.I. then arrested the appellant and recovered two identity cards in the names of Khadim Hussain and Liaqat Ali (Exhs.P.P. and P.O.) bearing the same address and identification marks. He also recovered envelopes P.R.1-5 and visiting card of Ch. Muhammad Ibrahim, Advocate, P.R./6, vide memo. Exh.P.S. After completion of investigation he submitted the challaw in the Court against the appellant.

4. Dr. Iqbal Ahmad P.W.4 conducted post-mortem on the dead body of an unidentified female on 21-6-1988 and noticed contusions and abrasions thereon. He opined that probable time that elapsed between death and post- mortem was of two days. He also conducted post-mortem on the dead body of unknown baby girl of eight months on the same day. The duration between death and post-mortem was described as of one week.

5. The prosecution in order to prove its case examined Muhammad Sarwar (P.W.1) and Ahmad Din P.W.2, who deposed that about three years ago, the appellant told Ahmad Din that he wanted to get rid of his wife. About 2-1/2 years after their meeting, they learnt that the appellant had committed the murders of his wife and daughter. Muhammad Latif P.W.3 deposed that the appellant confessed before him to have committed the murders of the two deceased. Muhammad Nawaz, A.S.I. (P.W.7), Manzoor Hussain Shah, S.I. (P.W.9) and Dilawar Hussain, S.I. (P.W.10), investigated the case. The evidence of the remaining witnesses is of formal character.

6. The appellant pleaded innocence. He denied to have made confession before Muhammad Latif P.W.3. He deposed that due to enmity, Khadim Hussain committed the murders of his wife and daughter. He denied the recovery of identity cards and the envelopes.

7. The learned trial Judge believing the circumstantial evidence of the three witnesses, named above, convicted the appellant and sentenced him as indicated above.

8. The learned defence counsel vehemently contended that the appellant lodged F.I.R. against six persons for the murder of his wife and daughter, the police instead of arresting them in connivance with the nominated accused falsely involved the appellant in this case on the basis of belated extra-judicial confession made by the appellant 'before Muhammad Sarwar, Ahmad Din, Muhammad Latif P.Ws.1 to 3 respectively. Muhammad Hussain, the other witness of the alleged extra-judicial confession was not deliberately examined by the police. The aforementioned witnesses arc the friends and relatives of the nominated accused, hence they had the motive to falsely implicate the appellant and the alleged extra-judicial confession is against the medical evidence. The version given by these witnesses is being belied by their conduct and inordinate delay in reporting the matter to the police. The witnesses of the alleged extra-judicial confession concocted story just to save the skin of the nominated accused in the F.I.R. lodged by the appellant.

This is a case of two versions. The prosecution case entirely depends upon the extra-judicial confession and circumstantial evidence which are of dubious nature but the version given by the appellant in his F.I.R. Exh.P.E./1 is being supported by the ocular version, the police without probing into the version given by, the appellant made him an accused after joining hands with the nominated accused. The version given by the prosecution is contrary to the record, hence the conviction of the appellant has resulted into miscarriage of justice, the appeal be accepted and the appellant be acquitted of the charge.

9. The learned State counsel has supported the judgment of the learned trial Judge.

10. We have examined the respective submissions of the learned counsel for the parties and have carefully gone through the record with their able assistance.

11. Admittedly, it is a case of two versions; one version has been given by the prosecution whereas the other version has been advanced by the appellant in the F.I.R. mentioned above. The cardinal principle of law for the just decision of the case of two versions is that both these versions are put in juxtaposition, then in the light of the evidence brought on the record, the Court has to see which version is more plausible and nearer to the truth, subject to this condition that onus of proof always remains on the prosecution and the accused cannot be convicted on the basis of any flaw in the defence, if prosecution otherwise has failed to bring home the guilt to the accused.

Applying the aforementioned principle of law to the facts of this case, we find the prosecution case entirely rests upon the extra-judicial evidence made allegedly by the accused after the lapse of more than two years before Muhammad Latif P.W.3 as is apparent from his statement Exh.D.B. dated 7-1-1990. The close scrutiny of the prosecution evidence would expose its falsehood. Muhammad Sarwar P.W.1 deposed that three years before he and Wali Muhammad (not examined) were present in the 'house-of Ahmad Din P.W.2 resident of Mauza Lurki, District Gujranwala for having meals when the appellant who was Imam Masjid at Village Mauza Kheali attended that feast, and informed the witnesses that he wanted to murder his wife and daughter for an insignificant motive. Interestingly the information which constitute an offence, was never reported to the police or brought to-the notice of the concerned party i.e. the wife of the appellant. Even after the murder of his wife Mst. Manzoor Fatima and daughter Andleeb; this witness did not inform the concerned police. He admitted this fact in this statement Exh.D.A. that he came to know about this fact that the appellant has got registered a murder case against some innocent persons with Police Station Chak Jhumra still he remained quiet and put up the ludicruous excuse that he did go to inform the police but the police refused to record his statement. He conceded this fact that he had sympathies for Liaqat and other-nominated accused persons. There is no independent corroborative evidence on the record to support this cock B and bull story; hence it would not be safe to place implicit reliance on his bare statement which was recorded after inordinate delay of more than two and a half years which remained unexplained. The other piece of evidence against the appellant is extra-judicial confession made by him before Ahmad Din, P.W.2 and Muhammad Latif P.W.3.

Ahmad Din P.W.2 deposed that the appellant told him that he intended to get rid of his wife and this witness advised him that instead of murdering her, he should give Talaq to his wife. After six months, Wali Muhammad (not produced) told him that the appellant murdered his wife and daughter and then got a false case registered against 5/6 innocent persons. Then, they went to inform this fact to the concerned police, but police did not record their statements. The evidence of this witness apart from the defects noticed above, is not admissible being hearsay, as Wali Muhammad did not appear in the Court. The appellant did not make any extra-judicial confession before him, hence trial Court erred in law while placing reliance on this piece of evidence. According to this witness, he was summoned by the police and his C statement which shows that he has been made witness in this case just to prove an un-witnessed crime, which is a glaring example of police padding in order to oblige the nominated accused in the F.I.R.

Muhammad Latif P.W.3 deposed about the extra-judicial confession allegedly made by the appellant before him and Muhammad Hussain (not produced). According to him, the appellant told them that he abducted his wife from Okara and then contracted marriage with her, thereafter he came to a village in Gujranwala District and started Imamat, where his wife committed theft in the house of one Khadim Hussain, who got a criminal case registered against him and his wife. Then he shifted to another village and committed the murder of his wife. Mst. Manzoor Fatima and his daughter Andleeb and got a false case registered against Khadim Hussain and others after procuring order from the Honourable High Court. Then he came to Mauza Balaggan and started living there under the fictitious name of Khadim Hussain. The bare reading and examination of his statement recorded before the Court would demonstrate that he has not given any detail how the appellant committed the murder of his wife, this cryptic statement per se is not sufficient to prove the alleged extra-judicial confession in which details of the crime are not given. Over and above this, the alleged extra-judicial confession is against the medical evidence because according to the medical evidence mother and her daughter were murder on different days whereas according to alleged extra-judicial confession, the appellant committed both the murders on the same day, The fact of strangulation as disclosed in Exh.D.B., the statement of Muhammad Latif P.W.3, is not supported by the medical evidence. It is settled law that the extra-judicial confession is the weakest type of evidence which requires that before it is relied upon, it must be supported by some independent circumstantial evidence coming from an unimpeachable source, which is lacking in the present case. The prosecution has failed to prove, what were the compelling reasons for the appellant to make confession before this witness, when he was neither a person in authority, nor he was in a position to help him in this case. In addition to this, he is a friend of the nominated accused and had the motive to fabricate the story which is unbelievable on the face of it. The possibility cannot be ruled out that the police in order to show its efficiency has created this false evidence to obtain a conviction in a case which remained untraced, on the contrary the subsequent ,investigation officer in league with the nominated accused taking advantage of weakness of version given in F.I.R. made the appellant a scapegoat to oblige the nominated accused.

12. It is a case of dishonest investigation; hence no reliance can be placed on the evidence so collected; even the person who detected the dead bodies of the two deceased and informed the police were not examined by the Court. The learned trial Judge has partly believed the evidence of weakness of defence and recorded the conviction thereon; whereas the salutary principle of Fr law, applicable for the just decision of criminal cases is that the statement of an accused person is to be accepted or rejected in its entirety. The learned trial Judge has not even followed this basic principle of law, which has resulted into miscarriage of justice.

13. The upshot of the above discussion is that in view of the defects and infirmities pointed out above, the prosecution has failed to prove its case against the appellant beyond reasonable doubt; hence we accept the appeal, set aside the conviction and sentences of the appellant and acquit him. We direct that the appellant be set at liberty forthwith, if not required to be detained in any other case. The sentence of death is not confirmed and the reference is rejected.

H.B.T./L-87/L Appeal accepted.