Najma Bibi VS State

Stereo H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT, LAHORE.

JUDICIAL DEPARTMENT

Cr. Appeal No. 283-J of 2003 Mst. Najma Bibi. The State.

JUDGMENT

Date of hearing _______30.9.2014_________________________________ Appellant by: Mr. Muhammad Saleem Chichi, Advocate.______________ Respondent by: Mr. Munir Ahmad Sial, Deputy Prosecutor General._______ Aalia Neelum, J.- Mst. Najma Bibi widow of Muhammad Manga, caste Awan, resident of Kotli Loharan, Sialkot has preferred an appeal, who was involved in case F.I.R. No.181 dated 05.9.1999, offence under sections 302 (b), 34 P.P.C. registered at Police Station Kotli Loharan, Sialkot along with co-convict of Crl. Appeal No.143/2003, namely, Muhammad Shahbaz (since acquitted) and was tried by Mr. Jawad-ul-Hassan, Addl. Sessions Judge, Sialkot. The learned trial court seized with the matter in terms of judgment dated 31.01.2003, convicted the appellant under section 308 P.P.C. and sentenced her to 10 years as Tazeer R.I. with fine of Rs.1,80,000/- as compensation/diyat and in default whereof, shall also suffer imprisonment of six months S.I. Benefit of section 382-B Cr.P.C. was also extended in favour of the appellant. The appellant has assailed her conviction through filing the instant jail appeal.

2.Feeling aggrieved of the judgment of the learned trial court, Mst. Najma Bibi appellant has assailed her conviction and sentence through the instant Crl. Appeal No.283-J of 2003. Apart from, co-convict Muhammad Shahbaz, who was convicted under Section 302 (b) P.P.C. and sentenced to death, also assailed his conviction through Criminal Appeal No.143 of 2003 whereas the learned trial court has forwarded Murder Reference No.90 of 2003 for confirmation of death sentence inflicted upon the convict-Muhammad Shahbaz (since acquitted).

and Crl. Appeal No.210/2003

The same judgment has also been assailed by the complainant through a Criminal Appeal No.210/2003 against acquittal of Mst. Najma Bibi, appellant which was admitted for regular hearing by this Court. As Criminal Appeal No.283-J/2003 and Crl. Appeal No.210/2003 are arising out of one and the same judgment, therefore, these are being disposed of through consolidated judgment.

3.It may be pertinent to mention here that legal heirs of the deceased, during pendency of Crl. Appeal No.143/2003 of co-convict-Muhammad Shahbaz before this Court have compromised and application to this effect bearing Crl. Misc. No.1399-M/2006, has also been made before this Court, which compromise has been accepted by this Court vide order dated 29.11.2007 and the Murder Reference was answered in negative.

4.Briefly stated facts of the case are that on 05.9.1999 at 7.00 a.m. one Zulfiqar Ali son of Boota, caste Awan, resident of Kotli Loharan (East) informed the complainant-Muhammad Afzal through telephone that his “Phuphi-zad”, namely, Muhammad Manga has been done to death whereupon the complainant (PW-5) along with Shafqat Hussain (given up PW) came to Kotli Loharan and they saw dead body of the deceased. Muhammad Manga lying there having a bullet fire injury. No body was named in the F.I.R. whereas suspicion was shown upon Mst. Najma Bibi (wife of the deceased), her brothers and relatives for committing murder of Muhammad Manga. F.I.R. (Ex.PC/1) was lodged on the complaint (Exh.PC) of Muhammad Afzal (PW-5). Abdul Hafiz, SHO (PW-13) started with the investigation on the day of occurrence, went to the place of occurrence, prepared injury statement Ex.PJ, inquest report Ex.PH and took into possession bloodstained earth from the spot vide recovery memo Ex.PG. He also secured crime empty (Ex.P3) vide recovery memo Ex.PM. Mst. Najma Bibi was arrested on 13.9.1999 while Muhammad Shahbaz was arrested on 15.9.1999. Muhammad Shahbaz got recovered .30 bore pistol (Ex.P-1) which was taken into possession vide memo Ex.PD. After completion of the formal investigation, both the accused were challaned to face their trial.

5.At the trial, the prosecution in order to prove its case produced as many as (14) fourteen witnesses. The learned Assistant District Attorney tendered in

and Crl. Appeal No.210/2003

evidence report of chemical examiner (Ex.PN) and report of Forensic Science Laboratory (Ex.PP) and closed the case of prosecution. The accused in her statement under section 342 Cr.P.C. pleaded false implication. After conclusion of the trial, both the accused were convicted and sentenced as stated above.

6.The learned counsel for Mst. Najma Bibi appellant submits that no overt act whatsoever was attributed to her. The learned counsel further submits that there is no eye witnesses in this case; that the case rests on extra-judicial confession having come from the mouth of PWs-8 and 9 which is not trustworthy and there was no need on the part of the appellant to create an evidence against herself by making extra judicial confessional statement without asking prosecution witnesses to get her pardoned from legal heirs of the deceased. PWs-8 and 9 neither went to the police station nor informed legal heirs of the deceased on the day of occurrence but informed the police after registration of case, so evidence of PWs-8 and 9 does not advance the case of prosecution. Learned counsel lastly contended that the prosecution having failed to prove its case, therefore, the appellant is entitled to be acquitted.

7.While arguing Crl. Appeal No.210 of 2003, learned counsel for Mst. Najma Bibi has submitted that keeping in view the deficient evidence available on record, notice issued in Criminal Appeal qua acquittal is unjustified.

8.On the other hand, learned Deputy Prosecutor General has submitted that PWs-8 and 9 have no ulterior motive to involve the appellant falsely in the case as both are not related to the deceased rather one of them was a councilor. PW-8 has stated before the learned trial court that the appellant asked him to help her in this connection as she committed the murder. It was finally argued that during course of investigation, the appellant was found guilty as such her name was placed in column-III of the report prepared in terms of Section 173 Cr.P.C.

9.We have heard the learned counsel for the appellant as well as the learned Law Officer and have gone through the evidence on record.

and Crl. Appeal No.210/2003

10.Admittedly, there is no direct evidence available on record so as to attribute the commission of crime to the appellant except extra judicial confession. The prosecution case rests on extra judicial confession of the appellant. It was an un-witnessed occurrence. The evidence of extra judicial confession of the appellant was furnished by Atta Ullah (PW-8) and Haji Muhammad Amin (PW-9). Having dealt with the basics of the legal issue as regard evidentiary value of extra judicial confession and adverting to the factual matrix of the matter at this juncture, the prosecution case as made is to the following effect “The deceased-Manga was paternal cousin of the complainant- Muhammad Afzal. The evidence disclosed that three years ago at midnight Muhammad Ilyas (PW-11) came out of his house on hearing sound of fire which comes from the house of Manga, meanwhile Zia Ullah also came out of his house. They both went to the house of Muhammad Manga and found dead Muhammad Manga lying in the courtyard of the house. They both came out of the house of the deceased and chased the accused-Muhammad Shahbaz but the accused fled away by taking advantage of darkness. Muhammad Ilyas (PW-11) and Zia Ullah (given up PW being won over) did not report the incident to the police. The factual score depicts that Muhammad Ilyas (PW-11) is paternal cousin of the deceased and he after seeing dead body of the deceased did not report the incident to the police whereas Zulfiqar Ali son of Muhammad Boota informed the complainant-Muhammad Afzal at 7.00 a.m. on 05.9.1999 regarding the occurrence, on which the complainant along with his paternal cousin Shafqat Hussain came at the place of occurrence and Muhammad Afzal, the complainant reported the incident to the police at 8.00 a.m. on 05.9.1999 by showing his suspicion at Mst. Najma Bibi, her brothers and relatives for committing murder. Meanwhile, Mst. Najma Bibi made extra judicial confession before Atta Ullah (PW-8) and Haji Muhammad Amin (PW-9). The evidence goes on the record that Mst. Najma Bibi-appellant about 3/4 years ago at 4.00 a.m. went to the house of Atta Ullah (PW-8) and made extra judicial confession upon which Atta Ullah (PW-8) called Haji Muhammad Amin (PW-9) and Mst. Najma Bibi retracted her statement before Haji Muhammad Amin (PW-9), thereafter PW-8 and PW-9 went to the house of Muhammad Manga and

and Crl. Appeal No.210/2003

found Manga lying dead in the courtyard of the house and 2/3 women were sitting around the dead body. After seeing dead body, PWs-8 and PW-9 came back and found that Mst. Najma Bibi was not present in the house of Atta Ullah (PW-8). The conduct of Atta Ullah (PW-8) and Haji Muhammad Amin (PW-9) is not unnatural. They did not make any effort to catch hold of Mst. Najma Bibi when the appellant made confession before them. They neither informed the legal heirs of the deceased nor informed the police. It is in the evidence of Atta Ullah (PW-8) that he called Zia Ullah and Shaukat Ali, the neighbourers who were residing adjacent to the house of alleged occurrence and told him about the dead body of Manga, the deceased and this witness admitted that he did not say anything else and did not disclose to them qua extra judicial confession, that at the place of occurrence he reached for the first time at 6.00 a.m. alone when dead body was lying in the courtyard and no body was near the dead body. PW- 8 also deposed that he visited the place of occurrence at 8.00 a.m. whereas Haji Muhammad Amin (PW-9) deposed during cross-examination that he along with Atta Ullah (PW-8) went at the place of occurrence at about 6.30 a.m. when they reached at the place of occurrence, the dead body of the deceased was lying in the courtyard and no body was around the dead body but the children of Manga were present near the dead body, when they saw the dead body, raised hue and cry and also summoned the inhabitants of Mohallah. Upon which 10/15 persons gathered over there but did not call paternal cousin who was residing near house of the deceased Manga. This witness also deposed that Atta Ullah (PW-8) and he did not tell the persons gathered over there about the manner or mode of murder. Atta Ullah (PW-8) deposed that he did not summon the paternal relatives of the deceased Manga in order to inform the alleged occurrence. PW- 8 also deposed that he told to his mother about murder of Manga only, whereas Haji Muhammad Amin (PW-9) deposed during the cross-examination that they sent message to said uncle of Manga that Najma murdered the deceased Manga. He also admitted as correct that reasons for not telling other relatives and the police that they had informed the paternal uncle of Manga-deceased and fulfilled their duties. PW-9 also deposed that when second time they went to the place of occurrence, police was present there and the police was enquiring from the

and Crl. Appeal No.210/2003

persons present there about the mode and manner of the occurrence. PW-8 also deposed that he and Atta Ullah disclosed before the police the entire facts about the murder of Manga which were in their knowledge at the spot when they made second visit, whereas PW-8 deposed to the effect that “on the spot he told the police the entire facts which were in his knowledge about the murder of said Manga, immediately when he reached at the spot.” In the instant case we confined ourselves to the extent of role ascribed to the appellant-Mst. Najma Bibi. It is noted that there is material contradictions in the evidence of both witnesses of extra judicial confession. The prosecution witnesses did not affirm about the date of occurrence and extra judicial confession. As per statement of PWs-8 and 9 recorded on 25.7.2002, date of occurrence came to 25.10.199 and 25.7.1999 respectively whereas the date of occurrence as recorded by PW-11 comes to 14.11.1999. We find that Atta Ullah (PW-8), councilor was not related to the deceased and since no one had seen the appellant committing the murder of the deceased-Manga, therefore, her appearance before the councilor and making of voluntarily confession is not plausible. It does not appeal to mind that the appellant while making her confession would have made a detailed statement related to the motive which was even not mentioned/stated in F.I.R. (Ex.PC/1). There was no reason for the appellant to confess about the offence entailing capital punishment. Although both the prosecution witnesses denied the suggestions that appellant did not make confession but in view of material contradictions in the evidence of PWs-8 and PW-9, the prosecution could not advance the plea of prosecution. In our view the evidence of extra judicial confession cannot be relied upon without corroborative by other authentic evidence and further it must be determined firstly whether confession was actually made by the accused and second whether it was made voluntarily and thoroughly. The presence of PWs-8 and 9 at the place of occurrence is also doubtful. The prosecution has also come forward with the piece of evidence against the appellant in the shape of extra judicial confession made before the Investigating Officer. As far as the statement made before Abdul Hafiz (Exh.- 1/SHO) PW-13 has got no evidentiary value in view of Article 38 of Qanun-e- Shahadat Order 1984. It is not a trustworthy evidence to rely on for

and Crl. Appeal No.210/2003

corroboration to the extra judicial confession made before Atta Ullah (PW-8) to complete the chain of circumstances. If the above pieces of evidence are kept aside, there is no other evidence which can even remotely connect or point towards the guilt of the appellant. There is no dispute that the deceased was husband of the appellant and was murdered but that was not enough for the prosecution to rope the appellant without corroborative and impeachable trustworthy evidence. The next important aspect is the credibility of the prosecution witnesses who spoke about the confession. The contradiction in their evidence is already pointed above, there must be some cogent reasons for making extra judicial confession. The confession in the normal course of events is made to around harassment made by the police or accused needs protection against the harassment. The record shows that the occurrence was un-witnessed and only suspicion was shown in the F.I.R. (Exh.PC/1) by the complainant- Muhammad Afzal against the appellant and her brothers or relatives. The charge against the appellant has not been proved beyond all reasonable doubt and her conviction, therefore, cannot be sustained. So, while extending the benefit of doubt, we accept the Criminal Appeal bearing No.283-J/2003 filed by Mst. Najma Bibi, appellant, set aside the conviction and sentence recorded against her by the learned trial court vide the impugned judgment dated 31.01.2003 and acquit her of the charge. She is on bail, her bail bonds are discharged.

11.So far as Criminal Appeal No.210 of 2003 seeking conviction under section 302 (b) P.P.C. of respondent No.1-Mst. Najma Bibi is concerned, for the above-stated reasons, the same has no weight, which is accordingly dismissed.

(MAZHAR IQBAL SIDHU) (AALIA NEELUM)

JUDGE JUDGE

Approved for reporting.

Hamid/*