2000 PLP 541 (YLR)

Liaqat Ali son of Muhammad Sharif, resident of Chak No.46/5‑L, Police Station Buraj Wala, District Sahiwal, was tried by Additional Sessions Judge, Lahore for causing the intentional death of his cousin Muhammad Sharif on or about 25th or 26th of March, 1986 by giving him "Kassi" blows when he was present in a rented house situated in Mohalla Begumpura, Lahore, who vide his judgment, dated 2‑7‑1988 convicted him under section 302(b), P.P.C., and sentenced to imprisonment for life plus a fine of Rs. 5,

000. In case of default in the payment of the fine the accused (Liaqat Ali) was ordered to undergo R.I. for two years. He was also mulcted with a sum of Rs. 20,000 as compensation. In default of payment of the amount of compensation to undergo for six months R.I.

2. Brief facts of the case are as under:‑‑ Muhammad Hanif, complainant (P. W. 5) is a resident of Chak No.46/5‑L, Police Station Buraj Wala, District Sahiwal. Muhammad Shafiq was his son. He was working as mason in Lahore. He used to go to his Chak occasionally. His parents proposed his engagement and he promised to visit his Chak within 10 days when he was told all about it. As per his version the deceased did not return for more than 10 days. His father Muhammad Hanif (P.W.5), therefore, became apprehensive and went to Lahore in search of his son alongwith Farzand Ali P.W. They went to the residence of the deceased (Liaqat Ali) situate in Begumpura, Lahore where he had obtained a rented house and learnt from the residents of the adjoining houses that a few days before, Liaqat Ali, accused, his first cousin had taken Shafique, deceased with him. Muhammad Hanif, complainant with the aid of Farzand Ali P.W. made forentic efforts to find out the whereabouts of his son but all in vain. He, therefore, reported the matter at Police Station Mughalpura, Lahore wherein he disclosed the above fact and also mentioned the motive by alleging that it was the talk of the village that the deceased (Shafique) had illicit relations with Mst. Amiran (daughter of Muhammad Sharif and sister of Liaqat Ali, accused). The complainant, therefore, expressed his strong suspicion that Liaqat Ali, accused had abducted his son (Muhammad Shafique) and he had done him to death. After recording the F.I.R. Exh.PB, Mehbobb Ahmad, S. I. (P.W.8) conducted the investigation, who arrested Liaqat Ali, accused on 16‑4‑1986 who while in police custody got recovered the death body of the deceased from his residential house behind Gulabi Chawki, Begumpura, Lahore. The same was made in the presence of a Magistrate. Said Thanedar took into the possession the blood‑stained earth from the place of occurrence vide memo. Exh.P.E. The same was made into a sealed parcel. After the recovery of the dead body of the deceased the same was despatched for autopsy. After its post‑mortem examination the said Thanedar received the last worn clothes of the deceased i.e., P.5 to P.7 (all bloodstained), vide memo. Exh.P.F. he also took into possession 'Kassi' P. 8 which was made into a sealed parcel, vide memo. Exh.P.G. He also took into possession bed sheet P.9 and "Gadda" P.10 (all blood stained) vide memo. Exh.P.H. He also seized certain other articles belonging to the deceased Exh. P.2 to Exh. P.4 and Exh. P.11 to Exh. P.20/1‑2 vide memo. Exh. P.C. Cycle P.1 belonging to the deceased was also recovered at the instance of Liaqat Ali accused and was taken into possession vide memo. Exh.P.K. The Thanedar recorded the statements of the P.Ws., got prepared site plan Exh.P.A. and its copy Exh.P.A/l. After the completion of the necessary investigation the challan was submitted in Court against Liaqat Ali accused to face trial.

3. On 8‑4‑1986 at 8‑20 a.m. Dr. Shahid Hanif, P.W.1 conducted the post- mortem examination on the dead body of the deceased and found the following injuries on his person: (1) Gap in scalp tissues on the centre of the forehead measuring 9.5 c.m. x 2.5 c.m. recent shaped 4.5 c.m. above the root of the nose. Underline bone showed grazing which was crescent shaped corresponding to the external injuries. Discolouration of the bone was also there. (2) Gap in scalp tissues 9 c.m. x 2 c.m. on back of right side of head 11 c.m. behind and above right ear obliquely placed with linear fracture of the underlying bone was present. (3) Gap in soft tissues 13 c.m. x 2 c.m. horizontally placed on upper part of face at the level of eye‑brows with fracture of underlying nazal bone and bones of orbits seen. (4) Gap in tissues on lower part of right side of the neck measuring 5 c.m. x 1.5 c.m. present. 5 c.m. above the clavicle bone, placed vertically oblique clavicle bone fractured in the middle third. Scalp tissues on other part of the skull and the neck tissues were in tact. In the opinion of the doctor death was caused due to fracture of skull leading to the injury to the brain. All the injuries were ante mortem and caused by blunt edged weapon. Exh.P.M. is the correct carbon copy of the report which is in the hand of the said Doctor and bears his signatures

4. The prosecution examined 11 witnesses in all to prove its case. Muhammad Yaqub, Draftsman P.W.1, prepared the site plan Exh.P.A. and its copy Exh.P.A./1. Ghulam Rasul P.W.4 and Muhammad Ali P.W.5 were produced to establish the extra judicial confession. Farzand Ali P.W.6 is the witness of recoveries. Rai Muhammad Amir, Inspector (P.W.7) is the Investigating Officer. Zafar Iqbal Gill, P.W.9 was the Magistrate under whose supervision the dead body of the deceased was dug out at the instance of the accused (Liaqat Ali). Dr. Shahid Hanif, P.W.11 conducted the post‑mortem examination on the dead body of the deceased while Muhammad Akram P.W.10 is also an Investigating Officer who partly investigated the case.

5. Liaqat Ali accused, categorically denied the prosecution allegation and pleaded false implication due to suspicion. He alleged that the deceased was a bad character. He had many enemies and might have been done to death by one of them. He, however, did not produce defence evidence nor he opted to enter the witness‑box in support of his plea of false implication as envisaged under section 340(2), Cr.P.C.

6. Learned trial Judge believed the motive, extra judicial confession of Liaqat Ali, accused, and other circumstantial evidence available in the form of recoveries of various articles and weapon of offence "Kassi" P.8 and found Liaqat Ali, accused guilty for causing the intentional death (Qatl- e‑Amd) of his first cousin Shafiq and convicted him under section 302(b), P.P.C. He, however, awarded the accused lesser sentence of life imprisonment on the ground that the deceased was not "Masoom‑ud- Dam". On the complainant's own showing he had a strong suspicion that the deceased was carrying on with his sister. Hence the murder had taken place out of "Ghairat". Learned Trial Judge, however, imposed a fine of Rs. 5,000 on Liaqat Ali, accused. He was' also mulcted with a sum of Rs. 20,000 to be payable to the legal heirs of the deceased as compensation. The accused was, however, acquitted of the charge under section 364, P.P.C., and given the benefit under section 382(B), Cr.P.C. His conviction and sentence was recorded vide the impugned judgment, dated 2‑7‑1988.

7. Feeling aggrieved Liaqat Ali, accused has come up in appeal while Muhammad Hanif, complainant (P.W.5) father of the deceased has filed Criminal Revision No.719 of 1988 titled Muhammad Hanif v. Liaqat Ali, etc., for the enhancement of sentence of Liaqat Ali, accused, and I propose to decide both the above said criminal appeal and criminal revision by this single judgment because these are directed against the same judgment.

8. The prosecution case rests on the following modes of evidence: (1) Motive. (2) Extra judicial confession, (3) Medical evidence, (4) Recoveries. and I propose to discuss each piece of evidence in seriatim.

9. Muhammad Hanif, complainant, who is the father of Muhammad Shafiq, deceased has disclosed the motive in the F.I.R. He has unambiguously stated that Liaqat Ali, accused was suspecting that his deceased son Shafiq had cultivated illicit relations with his sister Mst. Amiran and for that reason he has been done to death by the accused. Ghulam Rasul P.W.4 has also fortified the motive part of the complainant's version. It is significant to note that the motive part of the prosecution story was not disputed by the defence and not a single question was put to Muhammad Hanif, complainant (P.W.5) on this material aspect of the case. I am, therefore, satisfied that the motive alleged by the prosecution stands unrebutted and. consequently proved. Even the accused‑appellant (Liaqat Ali) did not deny the motive part of the prosecution story in his statement recorded under section 342, Cr.P.C. He was asked vide question No.2 whether he had confessed his guilt to the effect that he had committed murder of Shafiq; deceased, who was putting up with him in the same house situate in Begumpura, Lahore at the back of Gulabi Chauki, GT road, Lahore because the deceased had cultivated illicit relations with his sister Mst. Amiran. The accused‑appellant (Liaqat Ali) while categorically denying that he and the deceased (Shafiq) were putting up in the same house where‑from his dead body was recovered did not contradict the motive part of the prosecution story nor he categorically denied the extra‑judicial confession having made by him before the P.Ws. His silence on the above points amounts to admission. In absence of any categorical denial or rebuttal of the motive that the accused‑appellant had a strong suspicion that the deceased (Shafiq) was carrying on with his sister (Mst. Amiran), I am left in no doubt that the motive alleged by the complainant stands proved and the deceased's illicit relations with said Mst. Amiran actuated Liaqat Ali, accused‑appellant to kill him.

10. The prosecution case chiefly rests on extra judicial confession of Liaqat Ali, accused‑appellant made before Ghulam Rasul P.W.4. He deposed on oath that he was a permanent resident of Chak . No.46/5‑L, District Sahiwal and putting up at Lahore for the last 7/8 years. Shafiq, deceased and Liaqat Ali, accused‑appellant were his co -villagers and both were residing with him. Initially they started their career as labourers. However, they learnt the art of the masonry and started working as masons. They were putting up together in a rented house situate in Gulabi Chauki, Begumpura, Lahore. On 15‑4‑1986 Muhammad Hanif, father of the deceased (Shafiq) and Farzand P.W. who had come to Lahore to find out well being of Shaflq contacted him (Ghulam Rasul) and asked him about the deceased (Shafiq). They also disclosed that they had gone to the house where the deceased and Liaqat Ali, accused appellant were putting up together and were told by some residents that the deceased had been concealed by the accused‑appellant (Liaqat Ali) and that they had got registered case against the accused‑appellant (Liaqat Ali) for the abduction/illegal detention of Shafiq, deceased. They requested Ghulam Rasul P.W.4 to find out the whereabouts of Shafiq and he promised to do so. Ghulam Rasul P.W.4 further deposed that on the following day of the arrival of Hanif and Farzand P.Ws., Liaqat Ali, accused‑appellant contacted him and disclosed that he had murdered Shafiq, deceased on account of his illicit relations with his sister Mst. Amiran by giving him "Kassi" blows on his head and neck and had burried his dead body. He further disclosed that he had removed his cycle, brief case, tape‑recorder and other articles to his village and went to the house of in laws and broke this news to his wife and she told her mother who sacked and expelled him from her house. He, therefore, took the aforesaid articles to Pakpattan and deposited them with a mason friend. Liaqat Ali, accused‑appellant solicited the help of Ghulam Rasul P.W.4 to obtain pardon from Muhammad Hanif, the father of Shafiq, deceased and also pleaded for his production before the police. Ghulam Rasul P.W.4 on hearing this unfortunate episode produced Liaqat Ali, accused‑appellant before the police.

11. This P.W. was subjected to a searching cross‑examination but there is nothing on 'the file which may tend to discredit his testimony. He is an independent and impartial person. Both the deceased and the accused‑appellant belong to his village. He being the benefactor of Liaqat Ali accused and Shafiq, deceased who offered them employment when they migrated to Lahore was obviously the most relevant person for soliciting his' help with two‑fold purposes. First that he was the most suitable person for exerting influence on Muhammad Hanif, the father of the deceased who was very much indebted to him because he had provided shelter and employment to his son Shafiq deceased and was the most proper person who could obtain pardon for Liaqat Ali, accused and secondly, he was the only acquaintance of Liaqat Ali accused in Lahore who could produce him before the police and if the accused‑appellant contacted him at his residence in Lahore, there was nothing improbable. The prosecution alleged that Muhammad Hanif, P.W.5 and Farzand Ali P.W.fi had also over‑heard the confession of Liaqat Ali, accused‑appellant ‑ made before Ghulam Rasul P.W.4 but this part of the prosecution story stands not proved because Farzand Ali P.W. has not stated so during the trial that he had over‑heard Liaqat Ali accused‑appellant confessing his guilt before Ghulam Rasul P.W. and the statement of Muhammad Hanif P.W.5 is also of no avail to the prosecution because he simply states that while standing near the wall of the house of Ghulam Rasul he had heard Liaqat Ali., accused‑appellant saying that he should be produced before the police or the uncle of Shafiq, deceased and was also pleaded for forgiveness. Assuming that Muhammad Hanif P.W. did over‑hear the above conversation between Liaqat Ali accused and Ghulam Rasul P.W., it does not amount to extra judicial confession. He should have reproduced the exact utterance made by the accused disclosing the cause of death of the deceased. The mere fact that the accused was pleading for mercy and forgiveness and his production before the police per se was hardly sufficient to hold that the appellant had made extra‑judicial confession of his guilt within the hearing of the aforesaid P.Ws. Anyhow, what is gathered from the statement of Muhammad Hanif P.W. is that the accused‑appellant (Liaqat Ali) contacted the aforesaid P.W. and pleaded for mercy from the‑father of the deceased and his production before the police and on this pivotal point his statement offers corroboration to the statement of Ghulam Rasul (P.W.4). From the statements of the aforesaid P.Ws. I am fully satisfied that Liaqat Ali, accused appellant did make extra‑judicial confession before him.

12. The next question is whether the evidence as to the extra‑judicial confession is by itself trustworthy and credible or it requires corroboration before placing implicit reliance on it.

13. There is neither any rule of law nor of prudence that evidence furnished by extra-judicial confession cannot be relied upon unless corroborated by some other credible evidence. The superior Courts of this country have, however, considered the evidence of extra‑judicial confession a weak piece of evidence and for that reason insist for corroboration. An extra‑judicial confession may be an expression of conflict of emotion, a conscious effort to stifle the pricked conscience; an argument to find excuse or justification of his act; or a penitent or remorseful act of exaggeration of his part in the crime. Before evidence in this behalf is accepted, it must be established by cogent evidence what were the exact words used by the accused. But that alone is not enough and it has been held in various celebrated judgments of the Hon'ble Supreme Court that even if so much is established, prudence and justice demand that such evidence should not be made the sole basis of conviction unless it receives corroboration by some independent source. However, it is not an inflexible rule. In this regard a very wise observation of the Hon'ble Supreme Court needs a special mention. It has been held in PLD 1964 SC 813 (922) as under: "It is now well‑settled that as against the maker himself, confession‑ judicial or extra‑judicial, whether retracted or not retracted, can in law, validly form the sole basis of his conviction provided the Court believes it voluntary and true. The question, however, as to whether in the facts and circumstances of a given case the Court should act upon such a confession is an entirely different question which relates to the weight and evidentiary value of the confession and not to its admissibility in law."

14. It, thus, appears that extra‑judicial confession appears to have been treated by the superior Courts as a weak piece of evidence but there is no rule of law or rule of prudence that it cannot be acted upon unless corroborated. If the evidence about extra judicial confession comes from the mouth of a witness who appears to be unbiased, not even remotely inimical towards the accused and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, if it passes the test, the extra judicial confession can be accepted and can be made the sole basis of conviction. In such a situation to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of extra judicial confession is reliable, trustworthy and beyond reproach the same can be relied upon and a conviction can be founded thereon.

15. Having minutely examined the statement of Ghulam Rasul P.W.4, I am convinced that his testimony is wholly trustworthy and reliable. , It finds corroboration from the recovery of various articles belonging to the deceased which I propose to discuss in the paragraph to follow.

16. There is another towering circumstance which goes a long way to lend assurance to the claim of Ghulam Rasul P.W.4 that Liaqat Ali, accused had confessed his guilt before him. It has come in the evidence of aforesaid P.W. (Ghulam Rasul) that accused‑appellant (Liaqat Ali) had asked him to produce him before the police and Ghulam Rasul has categorically stated that he produced the accused‑appellant (Liaqat Ali) before the police. This fact stands fully established through the evidence of Mehboob Ahmad S.I. (P.W.8) who in the opening sentence of his cross‑examination frankly conceded as under: "The accused was produced before me on 16‑4‑1986 by Ghulam Rasul and Muhammad Hanif P. Ws. "

17. In view of the above discussion I am satisfied that Liaqat Ali, accused did make confession before Ghulam Rasul P.W.4 and there is nothing on the file which may tend to show that the same was obtained by inducement, threat coercion or promise by a person in authority. I am, therefore, convinced that it was made voluntarily and since the accused had disclosed in his confessional statement that he had caused the death of the deceased by giving him two 'Kassi' blows and also deposed the seat of injuries which fully correspond with the medical evidence. His disclosure in his confessional statement that he had burried the dead body of the deceased at a particular place and subsequently its removal from that very place also lends assurance that the confession was not only voluntary but it was true. It is significant to note that in his statement recorded under section 342, Cr.P.C., where Liaqat Ali accused was asked whether he made extra judicial confession before Ghulam Rasul P.W.4, he did not answer this question. He should have made a categorical denial of this prosecution assertion but to my great surprise he kept silent on this point which amounts to admission on his per.

18. The recovery of Cycle P.1 belonging to the deceased (Shafiq) at the instance of Liaqat Ali, accused, when he was in police custody from his residential house, situate in Chak 46/5‑L, District Sahiwal is again a relevant and strong circumstance which offers corroboration to the extra judicial confession. The recovery of the said cycle was affected in the presence of Farzand Ali and Zulfiqar P. Ws. Likewise the recovery of blood‑stained "Chaddar" P.9 and "Gadda" P.10 at the instance of the accused‑appellant from his house and the recovery of blood‑stained 'Kassi' P.8 at his instance from the courtyard of his house stand fully proved from the evidence of Farzand P.W.6 and Mehboob Ahmad S.I. P.W.8. These P.Ws. were put to the ordeal of cross‑examination but there is nothing on the file which may tend to discredit their testimony. Farzand P.W.6 is a resident of the locality. The cycle and the aforesaid articles were fully identified by Muhammad Hanif P.W.5, the father of the deceased (Shafiq). He is an independent person who is neither related to the complainant party nor inimical towards the accused. His evidence inspires confidence and I am satisfied that the prosecution has established the recovery of the aforesaid articles belonging to the deceased from the house of Liaqat Ali, accused‑appellant at his instance when he was in police custody. The recoveries of weapon of offence 'Kassi' P.8 and the aforesaid blood‑stained garnaments offer sufficient corroboration to the extra judicial confession, discussed above, Aforesaid 'Kassi' was found blood‑stained and was sent to the office of Chemical Examiner, Lahore to ascertain whether it borne human blood. The report of the Government Serologist Exh.P.0 is positive and it has been opined that the 'Kassi' was stained with human blood. This is again a very strong circumstance in support of the prosecution case which fortifies the extra judicial confession made by Liaqat Ali, accused‑appellant before Ghulam Rasul P.W.4.

19. The discovery of dead body of the deceased on the pointing out of the accused-appellant carries on evidentiary value because it has come in the evidence of Farzand P.W.6 that before the arrival of the police to the place where the dead body was buried alongwith a Magistrate and the accused‑appellant (Liaqat Ali) who was in police custody, a police guard had already been posted there on 15‑4‑1986 whereas the accused was arrested on 16‑4‑1986, hence the recovery of dead body at the instance of accused‑appellant (Liaqat Ali) cannot be said to have taken place as alleged by the prosecution because of the fact that a police guard was already stationed there which goes a long way to prove that it was known to the police and the complainant party that the deceased's dead body was lying burned at the place wherefrom it was subsequently removed/dug out. Had it been dug out on the pointing out of the accused‑appellant it would have certainly carried a great evidentiary value but posting of a police guard at the place of burnable leaves no room for doubt that this place was not within the exclusively knowledge of the accused‑appellant, rather, it was known to every body, hence it carries no evidentiary value and the same is accordingly discarded.

20. The defence of the accused is that of denial simplicitor and false implication but this plea is not credible. It is neither borne out from the prosecution evidence nor the appellant could establish it during the investigation or at the trial by adducing evidence. Even otherwise, it does not appeal to reason that his real paternal uncle (hi! father's real brother) Muhammad Hani would implicate him (Liaqat Ali, accused appellant) for the murder of his son Shafiq (deceased). To my mind it is not a case o false implication. It is also significant to note that there was no previous animus, hostility or illwill between the complainant party any the accused. I, therefore, see no rhyme o reason why. Muhammad Hanif complainan (P.W.5) Ghulam Rasul and Farzand Al (P.Ws.) should spin out a false case again; the accused‑appellant (Liaqat Ali) again whom they had no motive or malice whatsoever. The defence plea is false which has no foundation whatsoever.

21. The upshot of the above discussion, therefore, is that prosecution has fully established the guilt of Liaqat Ali, accused appellant for causing the intentional death (Qatl‑e‑Amd) of his first cousin (Shafiq) by giving him 'Kassi' blows through reliable circumstantial evidence, I, therefore, uphold his conviction under section 302(b), P.P.C., as recorded by the learned trial Judge.

22. As regards the sentence, on the complainant's own showing the deceased was murdered because the appellant had a strong suspicion that he was carrying on with his sister. This has been recognised as a mitigating circumstance in murder cases, hence the lessor sentence of life‑imprisonment can sufficiently meet out the ends of justice. I, therefore, uphold the sentence of imprisonment for life awarded to Liaqat Ali accused‑appellant by the learned trial Judge plus a compensation amount of Rs. 20,

000. In case of its realization from the appellant, the same shall be paid to the legal heirs of the deceased and in default thereof to further undergo R. I. i for, , six months. The appellant shall be entitled to '.the benefit of section 382(b), Cr.P.C. The sentence of fine is wholly unwarranted because it is not provided under sections 302(a), 302(b) and 302(c), P.P.C. The same is accordingly set aside and with this little modification the appeal is dismissed.

23. Criminal Revision No.719 of 1988 is also devoid of force which stands dismissed. Appeal and revision are dismissed. N.H.Q./L‑53/L Order accordingly.