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Petitioner: LIAQAT ALI VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Dr. Javed Iqbal, Abdul Jabbar Khan Title: LIAQAT ALI vs THE STATE Case No.: Criminal Appeal No. 776 and Murder Reference No. 199 of 1974 Date of Judgment:- Reported As: PLD 1976 Lahore 68 Result: Appeal dismissed
JUDGMENT
JUDGMENT ABDUL JABBAR KHAN, J.-Liaqat Ali appellant was tried by the learned Sessions Judge, Gujranwala, under section 302, P. P. C. And was convicted and sentenced to death for the murder of his father Master Muzaffar Ali Khan. He has appealed against his conviction and sentence awarded to him by the learned Sessions Judge vide his judgment dated 31st October 1974. There is also a murder reference before us under section 374, Cr. P. C. For the confirmation of his death sentence. We will dispose of both, the appeal as well as the reference by a single judgment. 2. The brief facts of the case are as follows :- On 15-1-1972 Ghulam Nabi P. W. 13 lodged a report Exh. PB with Police Station Saddar, Gujranwala at 9-05 a.m. In which he stated that early in the morning when he was going to open his shop situated near Gujranwala Bus Stand, he learnt on his way in the bazar that Master Muzaffar Ali Khan bad been electrocuted with a live wire of the table lamp and had thus died. He further informed the police that the deceased, after divorcing his wife, was living along with his children at Shaheenabad. The first informant at once informed the police on the telephone regarding this demise and then went to the house of the deceased to apprise himself of the details of the occurrence. On entering the room he found that shoe of table lamp was outside the plug and the wires were lying broken. An uncovered wire was touching the right hand of the deceased. He did not find any mark of blackening which would have resulted in case of electrocution, at the hands of the deceased. Therefore, he looked for more details and examined the body of the deceased. He found that the body of Master Muzaffar Ali Khan exhibited signs of violence. This made him suspicious of some foul play and he at once suspected the appellant as the possible murderer for the reasons that the deceased had strained relations with his son and sometime earlier he bad
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told the first informant along with Chiragh Muhammad Pehlwan, and Ch. Ijaz Ahmad, social workers of the abadi Shaheenabad, regarding this state of affairs between the father and son. He also had apprised the first informant and the above--mentioned gentlemen that be apprehended danger at the hands of his son, the appellant. Ghulam Nabi P. W. 13 also told the police that it had some to his knowledge that Master Muzaffar Ali Khan deceased had debarred his son from inheriting his property. Exh. P. B. Was recorded by Muhammad Yousaf S. I. Who reached the place of occurrence after receiving the telephonic message. This document was prepared at the place of occurrence and was read over to the first informant who signed it in token of its correctness. The same was forwarded to Police Station, Saddar, Gujranwala and on the strength of which Exh. PB./1 was recorded by Sardar Shah A.,S. I. On the same day at 9-35 a.m. Muhammad Yousaf S. I. Found the dead body of Master Muzafi'ar Ali deceased lying in the room. He prepared injury statement Bxh. P. J. And inquest report Exh. P. H. And then entrusted the dead body to Bashir Ahmad F. C. For escorting the same to Gujranwala mortuary for past-mortem examination. Muhammad Yousaf S. I. (P. W. 14) carried out the spot inspection in the presence of Muhammad Ali and Ghulam Nabi He found a little quentity of blood on the floor and secured it on a blotting paper. He prepared a memo. Exh. P. C. Regarding this taking of blood into possession which was attested by the aforesaid P. Ws. He also secured table lamp, P. I. Huqqa P. 2 along with its broken chilm, woollen cap P. 3 and cot P. 4 with its broken small arm from the spot. 8e further secured some ashes P. 5 from the bath room. The recoveries were made vide memo. Exh. P. F. In the presence of the above P. Ws. Who attested the same. He got site plan Exh. P. G. And Exh. P. G:/I prepared through Abdur Rehman draftsman. At 10-30 a.m. Nazir Ahmad S. H. O. (P. W. 15) reached the spot and took over investigation of the case from this P. W. The appellant along with Iftikhar (approver) in this case was .Arrested on 16-1-1972 by both these police officers i.e. Muhammad Yousaf P. W. 14 and Nazir Ahmad S. H. O. P. W. 15. On 21-1-1972 Muhammad Yousaf P. W. 14 made an application Exh. P. K./2 to the District Magistrate, Gujranwala for action under section 337, Cr. P. C. On 24-1-1972 he filed another application Exh. P. K./1 to the Duty Magistrate for the summoning of Iftikhar P. W. (approver) from the judicial lock-up for the recording of his statement under section 164, Cr. P. C. Read with section 364, ,Cr. P. C. Nazir Ahmad P. W. 15 partly investigated this case and secured Aaqnama Exh. P. D. From a leather bag lying under the pillow of the -deceased vide memo. Exh. P. D./1 in the presence of Muhammad Ali and Ghulam Nabi who attested the same. He also took into possession last worn clothes of the deceased slightly blood-stained Le, jacket P. 7, shirt P. 8, jersy P. 9 and loin cloth P. 10 .Side memo. Exb. P. E. In the presence of the aforesaid P. Ws. Who attested the same. On 16-1-1972 Nazir Ahmad P. W. 15 got Liaqat accused and Iftikhar (approver) medically examined. He also recorded their injury statement Exhs. P. N./1 and P. O./1 respectively. 3. Dr. Muhammad Iqbal Medical Officer (P. W. 2) conducted post--mortem examination on 15-1- 1972 on the dead body of Master Muzaffar Ali deceased and found the following injuries on his person :- (1) Contusion with small laceration a 1 along the inner aspect of the upper and lower hip. Contusion all around and on the nose with 8 small abrasions on and around the nose, and a contusion -- " x - - ' on the front of the neck left side at the level of thyroid cartilage. (2) Contusion 2' x 2 --with swelling on the right temporal region. (3) Multiple abrasions 3' x 3 --on the front the left knee and below. (4) Multiple abrasions about 8 in number in an area of 3' x 4' on the front of the right knee and below. (5) Two abrasions near the left ankle. (6) Abrasion 2 -- '1 x 2 --near the left hip. (7) Multiple abrasion 2''' x 2" on the outer aspect of left hip.
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(8) 10 small abrasions on the back of left forearm and hand. (9) Abrasion 1' x-- " on the left elbow. (10) Contusion with abrasion 2" X 2 -- ` on the left lumber region near the iliac crest. (11) 5 abrasions on and around the lower lumber vertebrae. (l2) Two small abrasions on the back of left shoulder. (13) 8 small abrasions on the left side of the forehead 4" x 2 -- ". (l4) Contusion 1 --X 1 -- " on the outer aspect of the right eye-brew. In his opinion the death occurred due to asphyxia due to suffocation under injury No. 1. Time between injuries and death was immediate while between death and post-mortem was 24 hours. Dr. Muhammad Riaz P. W. 1 medically examined Liaqat Ali appellant .And found five abrasions on his person, mostly on elbow, wrist and hand. According to the doctor all the injuries were simple and caused by a blunt weapon. Same doctor examined Iftikhar Ahmad (approver) and also found five-- injuries on his person, all abrasions, all simple in nature and caused by: a blunt weapon. 4. The prosecution in this case has relied. On the following categories of evidence (i) the evidence of motive ; (ii) the testimony of approver ; (iii) the medical evidence ; (iv) injuries on the person of the appellant and the approver. In his statement before the Committing Magistrate the appellant: stated that he was not responsible for the murder and put the blame on Muhammad Ashraf and Iftikbar Abmad (approver) whom he considered responsible for the murder of his father. He claimed that in fact he was an eye-witness of this murder which was committed by the above--mentioned Muhammad Ashraf and Iftikhar Ahmad that he tried to rescue his father but was beaten and confined in a room by the said assailants. He further stated that Muhammad Ashraf had illicit relations with his sister Mst. Nasreen and was thus annoyed with his father (deceased because he prohibited Muhammad Ashraf from his immoral behaviour and had also stopped Muhammad Ashraf and Iftikhar Ahmad from visiting his house. He also told the Court that Iftikhar being closely related to Ashraf had thus consented -to become an approver in this case. While appearing before the trial Court he gave a detailed statement under section 342, Cr. P. C. In the following manner :- "About 1 or l --months before this occurrence, the deceased visited me at Lahore where I was employed as a tube-well operator. He told. Me that he was going to retire from service and that I should return to Gujranwala and install power looms because he was likely to receive a sum of Rs. 12,000 on the eve of his retirement. I, therefore, returned to Gujranwala. A few days before this occurrence, Muhammad Ashraf who used to reside in our Baithak gave a letter --to Mst. Nasreen. I had seen that letter with Mst. Nasreen. I took that letter from Mst. Nasreen and showed it to the deceased. He told me that he would ask Mst. Nasreen to mend herself. He,, however, started to quarrel with me and then asked me to get out of his house. I did not leave the house, My maternal uncle Bakhtayar and some other respectables of the Mohalla intervened and brought about reconciliation between the deceased and myself. The deceased was an emotional type of person. He used to be--en raged abruptly and then cool down after a short while. In the --night of occurrence, I was sleeping on the first storey of our house. At about 3 or 4-00 a.m. When it was 'sehritime. I got up on hearing noise and commotion. I came down and saw that P. W. Iftikhar and his maternal uncle Muhammad Ashraf were present in compound of our house near the verandah. They caught hold of me and started to beat me. They then shut me inside a room. I had become semi-conscious. I had been hearing noises coming from outside. Because. I was semi-conscious I could not make out what was happening outside. In the morning my sister Mst. Nasreem and brother Sajid opened the door of my room. I came out and saw that my father Muzaffar Ali
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deceased was lying dead inside the room and the electric light was on. I accompanied the dead 3 body when it was taken to the mortuary for post-mortem examina--tion. Police arrived there and arrested me. P. W. Iftikhar has falsely implicated me in order to save himself and his maternal uncle Muhammad Ashraf." 6. We have heard the learned counsel for the appellant as well as the learned counsel for the State and have gone through the entire evidence with their assistance:' The motive in this case stands fully proved against the appellant by the evidence of Abdul Karim Bhatti P. W. 8, the Petition-- Writer, Sh. Muhammad Yamin P. W. 10 and Hafia Maqsood Ahmad, Advocate, Gujranwala P. W. 11, without any shadow of doubt. Abdul Karim Bhatti P. W. Has stated that Aaqnama Exh. P. D. Was drafted by him on 7th January 1972 on the dictation of Muzaffar Ali deceased and Muhammad Yameen and Muhammad Din signed it as marginal witnesses. The same was entered in his section-Writer's register on the same day. The register was produced in the Court by this witness which was seen and returned. Muhammad Yameen P. W. 10 also corroborated the statement of P. W. 8 Abdul Karim Bhatti in all respects. Hafiz Maqsood Ahmad P. W. Stated that he acting as Notary Public attested the Aaqnama Exh. P. D. He has further stated that he had signed that in token of its attestation and proved it as Exh. P. D./4. He also told the Court that this entry was made at serial No. 2 of his register maintained by him in this respect. He further stated that the deceased was identified before him by Muhammad-- Din, Clerk of Ch. Ghulam Mustafa, Advocate, Gujranwala. This was proved by him as Exh.. P. D./5. After going through the evidence of these three witnesses we are of the firm view that Liaqat Ali appellant had ample motive to do away with his father, as by the execution of Aaqnama Exh. P. D., the deceased caused annoyance to him of substantial nature. Besides this evidence of motive we have got ocular evidence of Iftikhar Ahmad P. W. 12 who turned as approver in this case and made disclosure of the facts of this murder, both before the Inquiry Magistrate as well as before the trial Court. He had earlier made a statement before he was granted pardon, under section 164 read with section 364, Cr. P. C. Before Ch. Waheed-ud-Din M. I. C., Gujrat (P. W. 3) on 24-1-1972. The perusal o all these three statements reveals that the approver witness has made consistent statement without any material discrepancies before all the three Courts. 7. Iftikhar Ahmad approver (P. W. 12) stated that he originally hailed from Gujrat and about ten months earlier to this occurrence had shifted to the house of his maternal uncle Muhammad Ashraf at Shaheenabad and started to reside with him. This Muhammad Ashraf was already a tenant of Master Muzaffar Ali deceased. Muhammad Ashraf was employed as an Electrician in Rizwani Foundry, Shaheenabad. The purpose for shifting to the house of his maternal uncle was to learn the art of Dye Fitting in Faizi Industry, Shaheenabad, Gujranwala. He told the Court that the deceased had three sons namely, Ghazanfar Ali, Liaqat Ali appellant and Sajid. Somehow or other the witness developed friendship with the appellant. He also learnt that Mst. Nasreen daughter of the deceased lived with her other brothers in the same house. He further deposed that the deceased was a gambler and used to indulge in gambling in his house: and used to bring to his house gamblers for this purpose. The appellant took exception to this behaviour of his father and used to ask him to give up this nefarious habit for the reason that his sister Mst. Nasreen was grown-up and the strangers should not be allowed to remain in their house. The deceased did not pay any heed to these requests of the ..Appellant and in return he used to give him beatings. It is in the evidence of this witness that about 20/25 days before this murder the deceased gave a beating to Mst. Nasreen also. The appellant made a strong protest for this action of the deceased and in return was beaten and was threatened .With dire consequences of being debarred from his inheritance. The deceased went to the extent of turning him out of the house. Although the appellant had fallen from the grace of his father yet he used to ;meet the witness Iftikhar Ahmad clandestinely in the Baithak occupied by him and his uncle. During these visits once the appellant
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told the witness that he wanted to kill his father because he had deprived him of his property. The witness first persuaded the appellant to give up this murderous .-design but ultimately fell in with him on his further persuasion. Iftikhar Ahmad approver stated that on the 14th January 1971 which happened to be a Friday, the appellant came to the Baithak at about 1-00 .Or 2-30 p.m. And apprised him of the details of his plan. He told him -that he would come in the evening and would murder the deceased in the same night. The time of the visit for this purpose to the house was 7-00 p.m. The witness first of all became afraid about the design of the appellant in this respect and wanted to avoid him so as to escape -participation in this crime. He left the Baithak at about 6-00 p.m. And went out to avoid the appellant. It so happened that the appellant met him on the road at about 6-00 p.m. And brought him back to the Baithak. During that period while in the Baithak Muhammad Ashraf, uncle of the ,witness, came but left at about 10-30 p.m. As his duty started from 11-00 p.m. Onwards. Thus left alone in the Baithak the appellant and Iftikhar Ahmad approver decided to kill the deceased. The Baithak had --two doors out of which one opened in the street and the other in the Deorhi of the house of the deceased. The door of the Baithak which .Opened in the Deorhi of the house of the deceased was locked from outside. The appellant twisted its hook and gave it a push with the result that its bolt dropped down. In that manner by another push one -shutter of the door was removed and thus the appellant entered the house of the deceased. This witness also followed him. They then went upstairs . And from there the appellant suspended himself in the compound from Jungla and thus reached the Deorhi. He then opened the door of the Deorhi. The witness came down and joined the appellant through that .Door in the compound. They concealed themselves in the kitchen. The appellant told him that he was feeling hungry. The witness suggested to ham that it being his own house, he could eat whatever he liked. They cooked vermicellies and ate together. At about I-30 or 2-00 a.m. They approached the door of the room in which the deceased was sleeping The appellant knocked at the door mildly. In response the deceased opened the door abruptly and started to raise alarm of 'thief' 'thief'. The witness immediately closed the mouth of the deceased by putting a chaddar over it. The appellant immediately grappled and took the deceased inside the room and also shut the door. Mst. Nasreen, sister of the appellant and his brother Sajid who were sleeping nearby got up on hearing the commotion and tried to raise alarm but the appellant threatened them to keep quiet and told them that they would be killed if they did not obey his orders. Both the children, out of fear, kept quiet. Grappling went on with the deceased for about one and half hours and ultimately he was overpowered, The deceased was tied down with the cot with a cloth. The appellant then thrust some cotton into the mouth and nostrils of the deceased and gagged him. 'He then wrapped the face of the deceased with a cloth. The deceased started to suffocate. The deceased was fluttering. When the witness felt that the deceased was trying to release his hand, he held his hands and did not allow him to get free. The appellant put his knee on the neck of the deceased and twisted it. Due to continuous struggle and grappling and suffocation the deceased had started to bleeding from his mouth and nostrils and ultimately breathed his last. When the witness and the appellant were sure that the deceased had breathed his last, they released the cloth from the dead body by which it was tied and devised a plan of applying an electric table lamp live wire to the hand of the deceased so as to make it look that the deceased had died as a result of an electric shock. Both of them collected the blood-stained clothes of the deceased and set them on fire in the bath room and threw some water on the ashes. After finishing their job they both came into the Baithak and left it early in the morning. The witness went to Gujrat and was not aware about the destination -- off the appellant. A day after he came to Gujranwala and while he was doing his work in Faizi Factory, the police arrested him. He also stated that he and the appellant also suffered minor injuries in the course of scuffle with the deceased and he was medically examined in this respect
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through the police. He further made it clear that the deceased had also suffered abrasions besides the major injuries which caused his death. This witness was cross-examined at length but stuck to the main story, of course with minor discrepancies. Besides the above statement of Iftikhar Ahmad P. W. 12 (approver) in which he has implicated himself as well as Liaqat Ali appellant, the police recovered ashes P. 5 from the bath room as mentioned in the earlier part of this judgment along with other broken articles in the room of the deceased as discussed in the statement of Muhammad Yousaf S. I. P. W. 14. All these lend support to the statement of the approver Iftikhar Ahmad P. W. 12 that the deceased put up a struggle before he was overpowered and that the presence of ashes in the bath room, supported the story of this P. W. Inasmuch as that the clothes were burnt and after these were reduced to ashes, water was thrown to extinguish the fire. 8. The learned counsel for the appellant before criticising the statement of the approver launched a preliminary legal objection to the recording of statement of this witness by Mr. Waheed-ud-Din, M. I. C. (P. W. 3) under section 164 read with section 364, Cr. P. C. a day earlier the pardon was granted to this witness under section 337, Cr. P. C. It was contended that the recording of the statement of this witness earlier than the pardon had in fact been granted, has prejudiced the case of the appellant for the reason that this witness was pinned down under a threat that if at any time he would disclose anything which would not be favourable to the prosecution, he would face the consequences of this confession to his detriment. The main stress of the learned counsel was that the procedure adopted was not envisaged under section 337, Cr. P. C. And his statement could only be recorded as a witness after pardon had been granted to him and he had accepted it for the purpose of making full and true disclosure of the whole of the circumstances within his knowledge related to the offer and to every other person concerned, whether, as principal or abettor, is the commission thereof. The learned counsel emphasised that once a disclosure was already on the record in the form of a confessional statement as recorded by Mr. Waheed-ud-Din, M. I. C. (P. W. 3), there was nothing left to be disclosed and ingredients of section 337, Cr. P. C. Do not come into display in this particular case. He relied on Hoc" Mohanlal Gond v. Emperor (AIR 1940 Nag. 218) and Rambharose Narbadaprasad Kachhi v. Emperor (AIR 1944 Nag. 105). He further contended that pardon in this case was wrongly granted as it violated the principle of grant of pardon. He submitted that the object of tendering pardon is to secure evidence when it was otherwise impossible to get the accused convicted for other evidence while in the present case Iftikhar Ahmad approver had made a clean breast of the whole affair in his statement under section 164, Cr. P. C. Earner than the grant of pardon and thus there was no reason to make him an approver when he could equally be tried for the murder of the deceased. For this he has relied on Sher Zaman v. Azad Jamrnu and Kashmir Government (PLD 1952 Azad J & K 15) and Wazir and others v. The State (PLD 1960 Kar. 674). In view of his above contentions he vehemently argued that the statement of accomplice Iftikhar Ahmad P. W. 12 be ruled out of the evidence as it was not a volunteer statement disclosing the true facts but was motivated by his earlier statement before the Magistrate before the grant of pardon which goaded him to stick to that version both before the Inquiry as well as the trial Court. We have examined this proposition of law as contended and argued by the learned counsel for the appellant by perusing the judgments cited above on this point and find - that the law so cited does not support the proposi--tion so placed before us. In the case of Hordal Mohanlal Gond, the appellant Horilal and two others by name Bhagchand and Hiralal were originally challaned under section 302, 1. P. C. For murdering one Dhanaram and his wife Mst. Kala. In the course of the proceedings, Horilal was granted pardon under section 337, Cr. P. C., but when he was examined in the Court of the Sessions Judge, Chhindwara, he turned hostile to the prosecution and was consequently declared to have broken the conditions of his pardon. On the certificate of the Public Prosecutor that Horilal had forfeited the pardon, criminal proceedings
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were started against him for the offence of murder in the Court of the Headquarters Magistrate, First Class, Seoni, who committed him to the Court of Session, Chhindwara, to stand his trial. The learned Sessions Judge found that Horilal failed to comply with the conditions of the pardon entailing its forfeiture. As a result of the trial Horilal was found guilty of murder and sentenced to death subject to confirmation by the High Court. The point for adjudication in this case was whether his statement recorded earlier than the grant of pardon, under section 164 read with section 364, Cr. P. C. Could be used against the approver or not. It was held that tender of pardon is always to precede the making of full and true disclosure and not to follow it and also that it was true that full and true disclosure is expected to be made by the approver when he is examined as a witness in the enquiry or trial. It has been further held that section 337, Cr. P. C. Itself does not contemplate and authorize the recording of any statement by the accused as preliminary to the tender of pardon. But it was nowhere…
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