ZAFAR ALI Versus STATE

1. JUSTICE NAZIM HUSSAIN SIDDIQUI (MEMBER)-- - This appeal is directed against the judgment, dated 31-10-1993, passed by Syed Iqbal Rizvi learned Judge Special Court for Speedy Trial Karachi, whereby he convicted appellant Zafar Ali under section 302, P.P.C. and sentenced him to death and to pay fine of Rs.1,00,000 or in default thereof to suffer R.I. for 4 years. He has also been convicted under section 381, P.P.C. and sentenced to suffer imprisonment for 5 years and to pay fine of Rs.5,000 or in default thereof to undergo simple imprisonment for 6 months. Additionally, he has been ordered to pay Rs.1,00,000, under section 544-A, Cr.P.C. as compensation to the heirs of the deceased. Appellant Mushtaq Ahmed has been convicted under section 411, P.P.C. and sentenced to suffer R.I. for one year and to pay fine of Rs.1,000 or in default thereof to suffer S.I. for 3 months. The facts relevant for decision of this appeal are as follows:--

2. The statement of complainant Major (Retd.) Khalid Nomani, under section 154, Cr.P.C. was recorded by Mr. Sultan Muhammad Sayal, S.I. at Jinnah Hospital, Karachi on 14-10-1992 at 4-45 p.m. It was sent to Police Station Clifton through H.C. Muhammad Siddiq, and was incorporated in the book maintained under said section for the offences punishable under section 302/404, P.P.C. Qisas and Diyat Ordinance, 1990.

3. The complainant in the F.I.R. mentioned that he is the owner of the construction company namely Creater Builders and deceased Mst. Momina was his wife. He married her about 17 years ago and 2 daughters and one son were born to her. His son is only about 1-1/2 years old. About 3/4 months back, he had employed appellant Zafar for household work. On the day of occurrence viz. 14-10-1992, as usual at about 7-00 a.m., the deceased left their daughters at Santpatrick School, Old Clifton, Karachi and at about 10-45 a.m. she dropped him (complainant) at his office situated at Khaliquzzaman Road and returned back to their House No.F-61/8, Block 4, Clifton Karachi. According to complainant, at 2-30 p.m. he received a telephonic message from his daughter that deceased was lying injured in the bedroom. He immediately came back and found that said appellant was not present in the house. He checked his house and Servant Quarter and found that the blood-stained Shalwar and Qamiz of the appellant were lying in the quarter. He noticed that appellant's other articles were not there. On his inquiry, P.W. Sajid Ali, who was guard on duty opposite to his house, informed him that the appellant had left the house at about 12-15 p.m. and told him (Sajid Ali) that he would come tomorrow. He was also informed by said P.W. that at that time one bag was at the shoulder of appellant. The complainant inspected his house and found a V.C.R. missing, which according to him, was taken away by the appellant Zafar after having committed the murder of his wife.

4. The investigation was conducted by the Police Officers namely, Ghulam Haider Abro the then S.H.O. of Police Station Clifton, Sultan Muhammad Siyal, Sub-Inspector Police, Muhammad Iqbal, A.S.I. and Tajumal Hussain, Inspector of C.I.A., Karachi. Mr. Ghulam Haider Abro secured blood-stained clothes from Servant Quarter. He called the finger prints expert at the scene of offence, who examined the articles lying scattered there. On 18-10-1992, the brother of deceased namely, Yamin appeared and informed him that said V.C.R. was not stolen but was lying in cupboard carton near kitchen. It was secured in presence of Mashirs S.I.P. Sultan and P.C. Muhammad Ashraf. Sultan Muhammad Siyal had recorded 154, Cr.P.C. statement of complainant in the hospital. Muhammad lqbal; A.S.I. secured from possession of appellant Mushtaq one hand bag, containing, National Video Camera with its accessories i.e. Remote Control batteries, Video Cassette, a pair of scatting shoes, two toys, two pairs of male shoes, and 2 rusted Chhuris, which according to prosecution belonged to complainant. Mashirs of recovery were Muhammad Akber and Subedani Gul. Tajumal Hussain, Sub-Inspector, C.I.A. on 23-10-1992 received the case papers of this case and verified the earlier investigation. He recorded 161, Cr.P.C. statements of P.Ws. Ms. Humera, Harizurrehman, Capt. Rizwan, Naeemuddin, Maqsood Ahmed. On 18-11-1992 A.S.I. Zubair brought appellant War to Karachi from Lahore, where he was arrested on 17-11-1992. On 24-11-1992 judicial confession of appellant Zafar was recorded by a Magistrate.

5. Dr. Muhammad Ayyub had conducted the post-mortem on 14-10-1992 and found the following injuries of person of deceased Momina:--

(1) Contusion size 2" x 1 and half inch at the right side of her forehead.

(2) Lacerated wound size 1" x half inch, bone deep at occipital region.

(3) Lacerated wound 1 and a half inch x half inch into bone deep at occipital region.

(4) Multiple linear abrasion size 1" x one-eight inches at mid of neck.

(5) Contusion 1" x half inch at right side upper chest

(6) Contusion half inch x half inch at dorsal aspect of her left hand.

6. According to him, the injuries were ante-mortem in nature and she died because of above injuries. The factum of death is not disputed.

7. Necessary charge under sections 302, 381, 411/3-1, P.P.C. was framed against the appellants who pleaded not guilty and claimed to be tried.

8. At the trial, the prosecution examined MA. Khalid Nomani Exh.5, Ghulam Haider Abro, S.H.O. Exh.6, Sajjad Ali, P.C. Exh.7, Muhammad Sadiq H.C. Exh.8, Sajid Nomani (Retd.) Major, Pak Army Exh.9, Ms. Humera Khalid Exh.10, Muhammad Ashraf P.C. Exh.11, Ishrat Ali Siddiqui, Magistrate C.I.A. Division Exh.12, Abulkalam Exh.13, Dr. Muhammad Ayyub Exh.14, Sultan Muhammad Siyal S.1.P. Exh.15, Hafizur Rehman Exh.16, Rinvan Ahmed Exh.l7, Muhammad Akbcr Exh.18, Subcdan Gul Exh.19, Muhammad Zubair S.I.P., C.I.A. Exh.20, Qazi Siraj Ahmed, City Surveyor Exh.21, Muhammad iqbal, A.S.I. Exh.22, Mulooq Khan P.C. Exh.23, Ms. Sarwat Nomani Exh.25, and Tajumal Hussain, Inspector Exh.26. The prosecution closed its side vide statement at Exh.27.

9. The appellants in their statements under section 342, Cr.P.C. have denied the prosecutions allegations and claimed to-be innocent. Appellant Zafar stated that he was forced by the I.O. to confess guilt before the Magistrate and was informed that in case he failed-to do so his brother, mother, sister, and sister's husband would have to face dire consequences. According to him, I.O. had also threatened him that he would also be killed. Appellant Mushtaq Ahmed also denied all the allegations against him. Both the appellants, who are real brother inter se, in defence examined Raja Mumtaz Ahmed, Assistant Superintendent, Jail, Karachi, Ali Humza Khan, Senior Staff Reporter, daily "Jung", Karachi, and Malik Akhter Ali, Incharge, leather garment factory.

10. Learned trial Judge found both the appellants guilty and convicted them as mentioned earlier.

11. Nobody had seen the incident. The prosecution case rests upon the following pieces of evidence namely:--

(1) Last seen evidence against appellant Zafar.

(2) Confession of appellant Zafar.

(3) Recovery of incriminating articles from possession of appellant Mushtaq.

12. In support of above three pieces of evidence the prosecution has heavily relied upon for corroboration on the testimony of complainant, which looking to the circumstances of the case, is examined in detail.

13. The complainant, in his examination chief, has given the facts which he mentioned in F.I.R. Besides this he also deposed on various new facts which were not mentioned in F.I.R. He nowhere stated that his further statement was recorded, but Tajumal Hussain Inspector has deposed so. The complainant stated that on the day of occurrence at evening time "Aqiqa ceremony" was to be observed of a son of his youngest brother-in-law, as such, the deceased had to do some shopping for said purpose. He deposed that in that connection she had contacted him (complainant) on telephone at about 12-45 or 12-50 p.m. and enquired from him about the nature of the gift to be given in said ceremony. According to him, after being informed about incident he immediately reached his house alongwith Ahmed and Naeem, where he found large gathering, including of police personnel. He noticed that his V.C.R. was missing. Thereafter a Lock Dealer (Talay Wala) was summoned for opening the lock of the master bedroom, which was done and nothing was found missing. From the servant quarter, blood-stained shirt and Shalwar of appellant Zafar were secured. A bunch of key was also secured, which was of his house. He has produced a photograph of appellant Zafar, which according to him, was secured from the house of appellant Mushtaq Ahmed. According to him, he got an advertisement published in daily "Jang", Karachi, containing a sketch of appellant and offering a prize of Rs.5,00,000 to the person giving information about him (appellant Zafar). On 16th October, 1992 according to him Capt. Rizwan who was his friend, had attended the "Soyam" and reminded him that he had given him (complainant) a Camera which was found missing, and later on was recovered from the house of appellant Mushtaq. According to him, on 17th October, 1992 his in-laws visited his house and took away all the golden/diamond, ornaments, bonds, cash and title documents of the property of his wife. He mentioned that on 22nd November, 1992 his sister Tehmina, his brother Sajid, and he himself were summoned by C.I.A. Police Karachi, as appellant Zafar implicated them in connection with the murder of deceased in presence of S.P. C.I.A. According to him, his in-laws, thereafter, got the investigation transferred to field investigation team of the Army in Karachi. In cross-examination, a suggestion was given to him that he and his sister Tehmina, who is a Homoeopathic Doctor, were arrested by the police. He denied said suggestion, but admitted that he and his sister remained with the C.I.A. Police for about 10/12 hours. He admitted that police, while searching the house of appellant Mushtaq, found many photographs of appellant Zafar but only one was taken and the remaining were left there. He admitted that the sketches of the appellant published in newspapers are not identical to his photographs. Replying to a question that when he had photographs of the appellant why he did not get them published, he replied that since Mushtaq had given address of said appellant of Lahore, he did not think it necessary. He admitted that on the day of occurrence an amount of Rs.10,000 in cash, prize bonds of rupees six or seven lac, golden ornaments etc. were available in the house and the same were not stolen away. He also admitted that he had not stated in his further statement that attempt was made to temper the lock of the master bedroom. He clearly admitted that at the time of post-mortem six golden bangles were in the hand of the deceased. Though he denied about his strained relations with his in-laws, but at the same time admitted that he had sent an application (Exh.5.M) to the Home Secretary Government of Sindh Karachi and in 6 para. stated as follows:--

14. Ever since the death of my wife my ex-brothers-in-law have done their utmost to implicate me and my family members in the murder of my wife. After having failed from all other quarters, for which they have tried very hard to implicate us, they have thought of this new idea of replacing the Special Public Prosecutor, who is a close friend too, so that the case proceedings be twisted by their advocate according to their viscous requirements and wishes, to achieve some mischievous goals best known to them and to jeopardize the impartial, unprejudice and fair proceedings of the case.

15. About the deceased, he deposed that she was a healthy lady aged about 39 years and whs of 5'-3 height. About the clothes which are alleged to have been secured from the Servant Quarter, he deposed that he does not remember if he stated before the police that the appellant, on the day of occurrence, was wearing those clothes. He admitted that his in-laws got the house in question constructed under their supervision. According to him, there are 5 houses in one row adjacent to one another and one of them belonged to his wife. He denied a suggestion that on several occasions he had asked the deceased to transfer said house in his name, but she declined. He deposed that he does not visit his in-laws, as they made allegations against him. He also admitted that he had requested S.H.O. to take notice of the fact that, in case of his unnatural death or of his family members, or near relatives his in-laws be held responsible for the same. He admitted that P.W. Sajid Ali Police Guard had informed him that at about 12-15 p.m. appellant Zafar was found going with a bag hanging on his shoulder. He also admitted that finger prints were obtained by police from the scene of occurrence.

16. It is evident from testimony of the complainant that his in-laws suspected him to be the real murderer of his wife. He was detained by C.I.A. Police for 10/12 hours after the case was transferred to said police. Probably this was for the reason that appellant, Zafar in presence of S.P. C.I.A., held him responsible for said murder. According to F.I.R., the motive of the offence was the theft of V.C.R. which later on was found in the house and the allegation of theft was incorrect. Even otherwise, it is an admitted position that in said house on the day of incident prize bonds worth Rs.6,90,000, golden ornaments/diamonds and other valuable articles were available, but nothing was stolen. Thus, the motive is completely belied by the evidence available on record. Motive is further falsified by the complainant admission that at the time of post-mortem 6 golden bangles were in the hand of the deceased. Had the crime been committed for monetary consideration the culprits/appellants would have removed those bangles from the hand of deceased. This unequivocally postulates that appellant War had no motive whatsoever to commit this crime. Although the complainant has claimed that he got published a news item alongwith a sketch of features of the appellant but admitted that in spite of being in possession of the latter photographs he did not get them published. This indicates that, in fact, he was not interested in the arrest of appellant but wanted to misguide everybody including his in-laws. Otherwise, there was no sense to provide an imaginary sketch, which admittedly did not resemble with the real photographs. Learned State counsel tried to explain that when first time sketch was published photograph of the appellant was not available. However, it is an admitted position that later on his photographs were available, but they never were published.

17. In case of an unwitnessed crime all possible circumstances are taken into consideration and thereafter a conclusion is drawn and on that basis the investigation starts. In this ease, it appears that the investigation was done only on the lines the complainant desired. The case was not investigated keeping in view the possibility of his being the actual culprit of this crime. Probably, if the investigation would have been conducted on said lines, the result may have been different. His in-laws would not have suspected him without a valid reason.

18. Mr. Rana M. Shamim learned counsel for the appellants submitted that several times the complainant asked the deceased to transfer her house in his name and since she declined the complainant wanted to get rid of her. Although complainant has denied this allegation but the fact remains that they were strained relations between complainant and his in-laws. This creates doubt about the bona fide of the complainant. Much stress has been laid on the point that articles A and B i.e. blood-stained clothes, having the mark "Modern" belonged to appellant and the same were recovered from his quarter. The complainant, however, in cross-examination, clearly admitted that he does not remember if he had stated before the police that appellant on the day of occurrence was wearing those clothes. It being so, it cannot be said that those clothes actually belonged to the appellant. Under these circumstances the conclusion would be that the complainant is not a reliable witness and nor his testimony can be used for the purpose of corroboration.

19. The first piece of the evidence against the appellant is that he was, just after the occurrence, seen coming out from the house of the complainant. For IC this purpose, reliance has been placed upon the testimony of P.Ws. Sajid Ali, who is a police constable and was on duty near the house of the complainant. This witness was very confident when he stated that he had seen appellant going at about 12 or 12-15 p.m. The complainant has also admitted that he was so informed by this witness. Complainant s daughter Miss Sarwat has also claimed that appellant was on duty on the day of occurrence. Mr. Raja Muhammad Irshad, learned State counsel strenuously argued that since appellant was seen coming out from the house immediately after the incident the presumption shall be that the offence was committed by him. We do not find any force in this contention. In fact, its stand belied by the evidence of the complainant, who positively stated that he had talked the deceased at about 12-45 or 12-50 p.m. If at 12-15 p.m. the appellant was found coming from the, house of the deceased this completely absolved him from the charge as half an hour thereafter the complainant had talked the deceased. No adverse inference can be drawn from this against the appellant. The appellant, however, has asserted that he had already left service of the complainant on 1-10-1992. Even otherwise, last seen together is a weak type of E circumstantial evidence and solely on this basis conviction cannot be sustained. The circumstantial evidence for securing conviction must be irreversible, authentic and shall exclude all the possibilities of the innocence of the accused, IF which is not the case here.

20. Next piece of evidence against appellant Zafar is confession. According to confession, initially the appellant had no intention to cause death of Mst. Momina and only wanted to scare her with a knife. She, however, not only displayed defiant mood but also caught hold of his testicles in order to get her released from his grip. Thereafter, he hit her head on the ground and pressed her neck, which ultimately caused her death. The motive of this crime was monetary consideration. The appellant has retracted from above confession.

21. Mr.. Rana Shamim learned counsel for the appellants severely criticised the confession, and very rightly so, to contend that neither it is true nor voluntary and nor was recorded according to law. The word "confession" is not defined in the Qanun-e-Shahadat. It means an admission of certain facts, which constitute an offence. A statement of accused becomes confession only H when it is recorded in compliance of the Provisions of Sections 164 and 364, Cr.P.C. and necessary precautions and formalities are observed. A confession under Article 37, Qanun-e-Shahadat, 1984 is irrelevant in criminal proceedings, if it appears to have been made under inducement, threat or promise. It is true that no person would make a false admission which could even take away his life, but the Courts, keeping in view the social circumstances obtaining in the country, have always attached great importance to the fact that a before confession is relied upon the fact that it was true and voluntary shall always be minutely examined. Above principle is being followed since long. In the case The State v. Minhun alias Gul Hassan reported in P L D 1964 SC 813 the Supreme Court on above points, at page No.822, observed as follows--

22. "As for the confessions the High Court, it appears, was duly conscious of the fact that retracted confessions, whether judicial or extrajudicial; could legally be taken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. It is now well-settled that as against the maker himself his confession, judicial or extrajudicial, whether retracted or not retracted, can in law validly form the sole basis of his conviction; if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement. The question, however, as to whether in the facts and circumstances of a given case the Court should act upon such a confession alone is an entirely different question, which relates to the weight and evidentiary value of the confession and not to its admissibility in law. As observed even by Munir, CJ. in his commentary on the law of Evidence at page 168 (Vol. 1) !it is a settled rule of evidence that unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength alone. It is the duty of the Court that is called upon to act upon a retracted confession to enquire into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot but be true."

23. The proposition that a retracted extrajudicial confession cannot corroborate a etracted judicial confession cannot also be assailed where corroboration is found necessary, for, that would amount to utilising of one piece of tainted evidence to corroborate another piece of tainted evidence."

24. Coming back to the facts of the instant case, it is noted that though appellant Zafar was arrested on 17-11-1992, but was produced for his confessional statement before Magistrate on 23-11-1992. His statement was not recorded on that day and surprisingly his custody was given to Inspector Tajamul Hussain. On 24-11-1992, he was again produced before said Magistrate. It appears that on this date his confession was recorded. Learned Magistrate, in his deposition, clearly stated that before recording the confession he had given necessary warning to the appellant and told him that whether or not he made such statement he would not be sent back to police custody. However, it is an admitted fact that after recording the confession the custody of the appellant was again handed over to the police. This is proved from the statement of D.W. Raj Mumtaz Ahmed, Superintendent, Central Jail, Karachi, when he stated that appellant War was sent to Jail on 25-11-1992.

25. Mr. Raja Muhammad Irshad learned counsel for the State, however, tried to explain above fact by submitting that when S.H.O. returned from Court the Jail time was over, as such, the appellant was sent to Jail on 25-11-1992. This was clearly against the assurance which was given to the appellant by the Magistrate at the time of the confession was recorded. Mr. Raja Muhammad Irshad also argued that due to heavy traffic in the city the appellant could not be taken to jail in time. The explanation is absolutely unsatisfactory. It is the duty of the Magistrate to see that when a person is brought before him for confession, irrespective of the fact that he gives confession or not, his custody shall not be handed over to the police. The appellant on this, point in his statement recorded under section 342, Cr.P.C., has maintained that 1.0. had threatened him to confess the guilt on the lines he provided, else he would be killed and his relatives including mother, and brother-in-law would face serious consequences. For these reasons it is hard to believe that he had voluntarily confessed his guilt. Besides this, alleged confession was recorded after 7 days of his arrest. This is also a very strong circumstance which negates the plea of voluntariness of said confession. So far the question of its being true is concerned, it is the duty of this Court to examine the remaining evidence of the prosecution and to look into all the probabilities for reaching to a definite conclusion. The facts discussed in the preceding paras. provide ample prove that it was not true. According to prosecution the motive of murder was monetary consideration. It is a proven fact that nothing was stolen. Finger prints were collected from the spot but the report was not brought on record to show that they were of the appellant. It is not the case of the prosecution that appellant was psycho killer or sex maniac. Not a single word has been said on this point by any prosecution witness. It being so, we hold that neither the confession was given voluntarily nor it was true.

26. The last piece of evidence is alleged recovery of incriminating articles from possession of appellant Mushtaq. Both the Mashirs of recovery namely, Muhammad Akber and Subedan Gul, have not supported the prosecution and were declared hostile. Under the circumstances, the sole evidence of 1.0. is not j enough to hold that recovery was affected as is alleged. Besides, this, it is difficult to believe that appellant War, who could easily take away cash, jewellery, bonds, and other valuable articles worth rupees snore than one million, would have taken away only a pair of old scatting shoes, a camera, two pairs of male shoes and a few toys for handing over them to his real brother appellant Mushtaq Ahmed. This sought of evidence, in fact, is to be rejected outrightly. Accordingly, so is ordered.

27. On 17-11-1993 after hearing the arguments we had allowed the appeal, set aside the conviction and sentences of the appellants and acquitted them K with a direction that they shall be set at liberty forthwith if they were not required in any other case. These are the reasons for the same.

28. N.H.Q./123/SAC Appeal accepted.