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Petitioner: SHAUKAT HAYAT and another VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Tanzil-ur-Rehman, Allah Dino G. Memon Title: SHAUKAT HAYAT and another vs THE STATE Case No.: Criminal Appeal No, 168 and Confirmation Case No, 10 of 1988 Date of Judgment:1989-08-24 Reported As: 1990 P Cr. L J 217 Result: Order accordingly
JUDGMENT
JUDGMENT ' ALLAHDINO G. MEMON, J.--- The appellants were charged and tried under sections 10 (3) and 11 of Zina (Enforcement of Hudood) Ordinance, 1979, and under section 302/34 P.P.C. Before the learned Chairman, Special Court, Speedy Trials, Karachi, who has convicted and sentenced them as follows:- (1) Under section 302/34 P.P.C. The appellants have been sentenced to death and line of Rs,1,00,000 each, in default they have to undergo R.I. For five years. (2) Under section 10(3) of Zina (Enforcement of Hudood) Ordinance, 1979; read with section 34, P.P.C. Imprisonment for life and fine of Rs,50,000 each and 30 stripes. (3) Under section 11 of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 34, P.P.C. ' Imprisonment for life and fine of Rs,50,000 each, in default they were to suffer further R.I. For three years. ' The appellants have been further ordered to pay Rs,1,00,000 each as compensation under section 544-A Cr.P.C. To the heirs of three deceased vide judgment dated 17-10-1986. ' The brief facts of the prosecution case are that on 9-1-1987, one Afaq-urRahman son of Mohammad Masoom Ali lodged report at 00.15 a.m. At police station New Karachi, inter alia alleging therein that:- "I live with my parents. I am employed as clerk in Muslim Commercial Bank. Today, on 8-1-1987, at 6-00 p.m. My father alongwith my sisters Azra aged 30 years Asma aged 24 years and Salma Jabeen aged 19 years went to the House No, B-695, Block 13, Gulberg, Karachi, to attend the
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marriage ceremony of my cousin Mr. Salim Raza. Barat was to arrive in Al-Imram Palace, Sakhi Hasan at 11-00/11-15 p.m. While I was watching Television, suddenly a gunshot report was heard in the street alongwith women cries/women shrieks. I came out and the people of mohallah also came in the street. We were just having discussion over the gunshot report and the cries, when my neighbor Roshan informed us that the dead body of my father was lying on the road. ' We went there and found that the dead body of my father was lying along the roadside bus stop Gulshan-e-Usman. Syed Sibte Hassan Naqvi, Ata Mohammad Chowkidar, Mushtaq and other persons informed me that a white colour Charade car speedily took a turn in the street of my house, went towards bus stop Gulshan-e-Usman No,2 and all of a sudden an unknown person sitting in the car threw away my father. The car then went away speedily, in which they also heard cries "save" "save". Thereafter I contacted my relations at Gulberg on telephone and I was informed that my younger sisters Asma and Salma Jabeen had left the marriage hall for home alongwith my father at 10.00/10.30 p.m. My father died on the spot and some unknown person has kidnapped my two sisters with intention to murder them. I state, that an unknown person with the intention to murder my father threw him from white colour Charade car and has kidnapped my two sisters with intention to murder them. My sister Asma is aged 24 years, fair complexion with spectacles and Shalwar, Kamiz and sandals. While Salma Jabeen was 18 years of age, height 3-1/2 feet and had spectacles, Shalwar, and Kamiz. She had smallpox on her face." ' The above First Information Report was recorded by Station House Officer Maqbool Asif Bajwa, P.W. 27, at Police Station New Karachi. The F.I.R. Has been produced as Exh.7-A. After recording the F.I.R. In daily diary he accompanied the complainant and P.W. Asif Mehmood and went to the place where the dead body of Masoom Ali was lying. He prepared the Mashirnama of dead body in presence of Syed Asif Mehmood and Saiful Islam, the Mashirnama of dead body has been produced as Exh.18, and thereafter referred the dead body to Abbasi Shaheed Hospital for post-mortem examination. He then prepared Mashirnama of wardat in presence of Syed Asif Mehmood and Saiful Islam, which has been produced as Exh. 52. While inspecting place of wardat, S.H.O. Secured blood-stained earth, cap and mufler of the deceased. He had sent the statement of Afaq-ur-Rahman which he had recorded in the Station Diary for registration of the case. After registration of the case, he received the copy of F.I.R. At the place where the dead body was lying. He then recorded the statement of the family members of the deceased at their house. He also examined P.Ws. At that place. He has produced the 154 Cr.P.C. Book containing the F.I.R. Recorded at police station as Exh.80. He then deputed various parties for arrest of the culprits. On 11-1-1987, one Ghulam Mohammad Soomro found the dead bodies of two girls lying naked in the bushes near Chaukundi graveyard and, therefore, he went to the outpost, Bhains Colony, and informed the In charge accordingly. The In charge made such entry in the Roznamcha maintained at the police post and went to the place where the dead bodies were lying. He completed 174 Cr.P.C. Proceedings, prepared inquest reports, secured and sealed the pieces of bangles, white spectacles and blood-stained earth etc. From near the dead bodies. While the incharge was conducting inquest etc. Many people had collected at that place and he came to know through a person available there about the names of deceased girls Salma and Asma. After compliance of necessary formalities, the dead bodies were referred to the hospital for postmortem examination. At 4.00 p.m. Inspector Maqbool Asif Bajwa received a wireless message regarding the discovery of the dead bodies of two victims. He left for that place but on the way he received another wireless message that the dead bodies have been referred to Jinnah Hospital and, therefore, he went to Jinnah Hospital and found the two dead bodies lying in mortuary. The dead bodies were identified by Junaid-Rahman brother of the deceased girls. The Medical Officer after post-mortem examination handed over the dead bodies of two girls to Junaid Rahman while sealed packets were handed over to him. On 15-1-1987, S.H.O. Maqool Asif Bajwa took search of an
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open room situated near the Chaukundi Graveyard due to suspicion. He recovered a pillow near the door of that room and the same appeared to have been blood stained. There was a cot inside the room on which Chader/Sindhi rilli was lying having some semen marks thereon. Outside the room there was some space surrounded by bushes. The ground of that space which was katcha, was having spots which he suspected to be blood-spots. By the side of the cot, inside the rooms three photographs of different size and a certificate pertaining to All Goher was also found by him. He sealed the articles except the photographs and certificate and prepared such Mashirnama in presence of Younus and Chacher. Mashirnama has been produced as Exh.82. Photographs and certificate have been produced as Exh.82, 82-A to Exh.82-C. He then examined Chacher and Younus. He also found marks of tyres of a car on the ground, outside the said room near Chaukhundi graveyard. He directed the Foot Print Expert that he had to take moulds of the tyres from that place on 16-1-1987. While he was busy with the investigation of this case, Malik Mohammad Hussain of P.P. Bhains Colony had sent sealed articles to him on 21-1-1987, which he had secured in connection with this case. On 30-1-1987, the Investigation of this case was transferred to C.I.A. And. Therefore, he handed over the relevant case papers to the C.I.A. After obtaining necessary sanction from concerned authority, he had sent all the articles, secured in connection with the above case and sealed by various authorities at Abbasi Shaheed Hospital, and Jinnah Hospital at P.P. Quaidabad, and by him, to Chemical Examiner. On 9-2-1987, the articles were received by Chemical Examiner. The photo copy of the forwarding letter has been produced as Exh.82. The letter which he had written to the D.S.P. For sanction, has been produced as Exh.83. Since the police was not able to get any clue, regarding the culprits, the S.S.P. C.I.A. Karachi, associated Inspector Mohammad Khan with the investigation of the above case. On receipt of directions/instructions, from S.S.P., Inspector Mohammad Khan informed all police stations of Karachi about the incident of this case with the directions that if identical case of abduction/murder was registered any where, he may he informed accordingly. In consequence. Thereof Mohammad Khan was informed about the identical case registered as F.I.R. No,458 of 1986, at New Town Police Station, Karachi. Therefter the investigation of Crime No,458 of 1986 was transferred to Inspector Mohammad Khan. The above F.I.R. Contained the description of the culprits and, as such, Inspector Mohammad Khan called Sub-inspector Shaukat Hayat (appellant) at the C.I.A. Centre. On 31-1-1987, Sub-Inspector Shaukat Hayat came to C.I.A. Centre in his white Charade car, bearing registration No,223-035. Suspecting Sub-Inspector Shaukat Hayat to be the accused of Crime No, 458 of 1986, Inspector Mohammad Khan arrested him and secured car also under Mashirnama in presence of Mashirs Mohammad Sharif and Anis, the Mashirnama has been produced as Exh.11. In the meanwhile, Afaq Rchman having come to know through Press and local police about the association of C.I.A. With investigation of this case had reached the C.I.A. Centre alongwith Mohammad Sharif and Anis before the appellant Shaukat Hayat appeared there. On seeing- the said white Charade car of appellant Shaukat Hayat, complainant Afaq Rahman requested Inspector Mohammad Khan that car be searched. Therefore, Inspector Mohammad Khan took search of the same. During search, seat covers, under-lay and mats available inside the car were found stained with blood. In addition there to, he found two holes through and through; one in the roof of the car, and other on the back of the seat of the said car. The hole in the roof appeared to have been filled with lap He also secured broken pieces of bangles, one black `moti' and pieces of glass of spectacles and sealed the same in a parcel. He also secured under-lay, mat, and scat covers, and sealed the same in another parcel. From the dash board of the car, he secured National Identity Card of accused Shaukat Hayat, his police identity card and curfew pass containing the number of his car, issued in his name by the D.M.L.A. Badin, and his name plate alongwith two keys out of which one was magnet key. He prepared such Mashirnama. Thereafter Inspector Mohammad Khan informed his superiors regarding recovery of the above articles from
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the said car and the arrest of the accused on 3-2-1987. The investigation of this case was entrusted to Inspector Mohammad Khan officially through a letter which he has produced as Exh. 143. During interrogation accused Shaukat Hayat .Led the police party to the bushes near Mehran Petrol Pump on National Highway on 8-2-1987, and produced bloodstained clothes and pair of sandals from the bushes and produced the same before Inspector Mohammad Khan and Mashirs which were secured and scaled under Mashirnama which has been produced as Exh. 15. On the same date accused Shaukat Hayat voluntarily led the police party to his flat situated in Regency Apartments, Gulshan-e-Iqbal, Block IV, Karachi, from where he produced a pistol bearing No, 812005, made in Spain, along with a black holster and six live bullets which were secured in presence of Mashirs Rustam Ali and Zafar Khan under Mashirnama, and the same has been produced as Exh.16. On 8-2-1987, Inspector Mohammad Khan produced sealed parcel containing incriminating articles Exh, 'S' to 'S-10', bangle pieces Article 'K', black moti Article 'L', and eyeglass pieces Article P' for identification test before Mr. Abdul Ghafoor Memon A.C.M. XI, through P.Ws. Afaq Rahman, Azra and Jamila. On the same day, he requested Finger Prints Bureau to obtain specimen moulds of tyre marks of the car, secured from the accused. The latter has been produced as Exh.97. On 8-2-1987, he arrested accused Shaukat Hayat in the present case being Crime No, 22/1987. He then sent article 'A' to Ballistic Expert and had also requested for expert opinion regarding holes available on the roof and the back rear scat of Article 'IV (car secured from accused Shaukat Hayat). The letter has been produced as Exh. 98. On 11-2-1987, he had also sent crime bullet alleged to have been recovered from the brain of deceased Salma during post-mortem to A.I.-G. Criminalistic Division, Karachi, for opinion whether the same was fired from the pistol secured from accused Shaukat Hayat. He had also sent blood stained articles to the chemical examiner for examination and report on 9-2-1987. On 24-2-1987, he sent black moti, pieces of bangles and three pieces of eyeglass to forensic expert for examination and report regarding character and make of the material. On 10-3-1987, he sent bangles pieces which were secured from the vicinity of Chaukundi graveyard to A.I.-G. Criminalistic Division. On 22- 2-1987, co-accused Nawaz Tanoli was arrested in connection with Crime No,458 of 1986, registered at Police Station New Town. He interrogated him. On 4-3-1987, Ghulam Mohammad brother of accused Nawaz Tanoli produced a licensed revolver of accused Tanoli before Inspector Mohammad Khan, which was secured under Mashirnama which has been produced as Exh. 93. Plastic available at the butt of the revolver was broken near the eye of the butt. He had secured revolver licence under separate Mashirnama which has been produced as Exh.49. On 9-2-1987, he secured record from Appolo Service Station, where the car (Article 'R') is said to have been serviced on 9-1-1987, the record has been produced as Exh.26. Since accused Shaukat Hayat was under training, at Police Training School, Shandadur, he secured the record of his movements from the Training School Shandadpur and the same has been produced as Exh.35. He had sent revolver of accused Nawaz Tanoli for examination to the Criminalistic Division for examination and report. He arrested accused Nawaz Tanoli on 7-31987, After receipt of chemical examiner's report, the report has been produced as Exh. 146. He had referred both the accused to Medical Officer for examination and report regarding their sexual potency. The slides so taken by the Medical Officer were sent to Chemical Examiner, and the report has been produced as Exh. 147. On completion of investigation the accused/appellants were challaned before the Court on 30-4-1987. Later on the case was transfered to the Chairman/Judge Special Court for Speedy Trials, Karachi. ' A formal charge was framed against the appellants to which they pleaded not guilty. ' At the trial prosecution examined complainant Mohammad Afaq Rahman son of deceased Mohammad Masoom Ali Shah, P.W.1, he has produced his statement, recorded under section 154
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Cr.P.C. As Exh. 7-A, Mohammad Sharif, P.W. 2, he has produced Mashirnama of arrest of appellant Shaukat Hayat as Exh.11, Mashirnama of search of his car and consequent recovery of bloodstained pads, seat covers, pieces of bangles and optical, black Moti, Curfew Pass in the name of the appellant, issued by D.M.L.A. Badin, his national identity card, police identity card, issued by S.P. Badin, name plate of accused and key chain with two pieces. Mashir Rustam Ali P.W.3, he has produced Mashirnama of production of blood stained two black Chaders, ladies clothes and a pair of ladies sandals, etc. As Exh.50, production of pistol with six lives bullets by appellant Shaukat Hayat from his Flat situated in Gulshan-e-Iqbal as Exh. 16. Saiful Islam P.W.4. He used to reside near the place where the dead body of Mohammad Masoom Ali was thrown out of the car and had come out of his house hearing gunshot report. He had shown the place of incident to Inspector Maqbool Asif Bajwa who prepared such Mashirnama in his presence and that of Asif Mehmood and the same has been produced as Exh.18. Complainant Afaq Rahman has produced eyesight cards of his sisters before C.I.A. Which were secured in his presence and such Mashirnama was prepared in his presence. The Mashirnama has been produced as Exh. 19. Mohammad Salim, an employee of Appollo Service Station, P.W. 5, he had carried out service of white Charade car belonging to appellant Shaukat Hayat on 9-1-1987 Syed Abdur Rahman Manager, Apollo Service Station, P.W. 6, he has produced cash-memo/bill in respect of service of Charade car belonging to appellant Shaukat Hayat as Exh. 26 and Mashirnama of recovery of cash memo./bill as Exh.27. Mohammad Khan Bread (Roti) and Kabab Seller, Guru Mandir Karachi, P.W. 7 (he has not supported the prosecution and was, therefore, declared hostile and cross-examined) Mumtaz. Hussain, Head Constable, P.W. 8, he has produced register No, 16, pertaining to Police Station Clifton as Exh.31. Sultan Wali Khan, Sub-Inspector Police Training Centre, Shandadpur, P.W. 9, he has produced Roznamcha, containing entries dated 8-1-1987, 9-1-1987 and 10-1-1987, regarding absence of appellant Shaukat Hayat as Exh.33 to Exh. 35, Mr. Abdul Ghaffar A.C.M. No,II, North Karachi, P.W. 10, he had held identification test of clothes of two girls, broken pieces of bangles and other articles through complainant Afaq Rahman, P.Ws. Mst. Jamila and Mst. Azra. The Mashirnamas have been produced as Exhs. 37 and 38. Mst. Jamila Khatoon daughter of deceased Mohammad Masoom Ali P.W.11, she had identified the articles in identification test held by Mr. Abdul Ghafoor, A.C.M. Rashid Ahmed, the then Muharrir, Police Station Clifton, P.W.12, he had deposed about the entry Exh.31, dated 13-2-1985, regarding joining duty by Sub- Inspector Shaukat Hayat, Zahoor Ahmed Kabab-seller, Guru Mandir, Karachi. P.W. 13 (he has not supported the prosecution and, as such, was declared hostile and cross-examined), Mohammad Tariq Ali Salesman, Shaheen Motors, Karachi. P.W. 14, he had sold white Charade car to appellant Shaukat Hayat in the year 1986 and that Shaukat Hayat got the number plate fitted on the said car a year thereafter. He had produced the number plate which he had removed from the said car at the time of fixing the new plate and has also produced the delivery acceptance memo. As Exh.43. The police had secured the same under Mashirnama which he has produced as Exh. 44. He has also acted as Mashir regarding production of delivery order hook before the police by Mujahid Hussain and the Mashirnama has been produced as Exh. 45. Dr. Azher Hussain, he had examined appellant Shaukat Hayat regarding his sexual capability and has produced the certificate as Exh.48. Dr. Aftab Aziz, he had examined accused Mohammad Nawaz Tanoli on 1st March, 1987, regarding his sexual capability and has produced the certificate as Exh. 50. Asif Hussain, who had come on hearing commotion at the place where the dead body of Mohammad Masoom Ali was lying and has acted as Mashir of inquest report, which he has produced as Exh.
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52. Masood Ahmed, resident of Siddique Plaza, Hyderabad, P.W. 18, he had taken appellant Shaukat Hayat alongwith his car to debtor Sabir for repairs of mudguard, Tapedar Ghulam Mustafa, P.W. 19, he had prepared the sketch of wardat where the dead body of Mohammad Masoom Ali is said to have been lying and has produced the same as Exh.57. Mohammad Sabir, dentor, P.W. 20, he had welded whole of the white Charade car of appellant Shaukat Hayat by hammering and putting lapis on the hole, he has also produced sketch of the hole, drawn by him in the Court, as Exh. 59. Dr. Amanullah, Medico-legal Officer, Jinnah Hospital, Karachi, P.W. 21, he had carried on post- mortem on the dead bodies of Mst. Salma Jabeen and Asma Jabeen, the daughters of Mohammad Masoom Ali and has produced the post-mortem reports as Exh.61, and Exh. 62. Dr. Nasim Ismail, Medico-legal Officer, Abbasi Shaheed Hospital, Karachi, he had carried on post-mortem on the dead body Mohammad Masoom Ali and has produced the post-mortem report as Exh. 64. Tapedar Habibullah P.W. 23, he had prepared the sketch of the place from where the dead bodies of Mst. Salma Jabeen and Asma Jabeen were recovered, the sketch has been produced as Exh.67 and Exh. 68 Haji Ghulam Mohammad P.W. 24, he had found the dead bodies of the two girls lying near Chaukundi graveyard, and had informed the police accordingly, the entry has been produced by -him as Exh. 70, the police had prepared such Mashirnama of dead bodies and recovered the pieces of bangles and glass of spectacles in his presence and the Mashirnama has been produced by him as Exh. 71. He has also produced inquest reports as Exh. 72, and Exh.73. Mohammad Hussain, the then Incharge Police Post Bhains Colony, P.W. 25, he was informed about the presence of dead body of two girls and had kept the entry Exh. 70, he had also gone to the place of wardat and prepared Mashirnama of dead bodies and inquest reports which have been produced by Ghulam Mohammad, Mst. Azra Abbasi, daughter of Mohamniad Masoom Ali. P.W.26, Maqbool Asif Bajwa, the then S.H.O. Police Station New Karachi, P.W.27, he had recorded the information given to him by complainant, Saiful Islam, in Roznamcha and thereafter accompanied Saiful Islam and Syed Asif Mehmood, to the place where the dead body was lying. He complied with the formalities under section 174, Cr.P.C. In presence of Junaidur Rahman and Syed Asif Hussain. He then referred the dead body to Abbasi Shaheed Hospital, for post-mortem examination and report. He has produced Mashirnama of wardat as Exh. 18, entry in Roznamcha regarding information given by Afaq Rahman was produced as Exh. 7-A, Station diary of Police Station New Karachi as Exh. 78, and certified copy of entry at serial No, 45, in the station diary as Exh.79, 154 Cr.P.C. Book containing the F.I.R. Recorded at North Karachi Police Station in consonance with section 154 Cr.P.C. As Exh. 80. Mashirnama of recovery of pillow suspected to be stained with blood, Chader Sindhi rilly, suspected to be stained with semen, blood-stained earth, three photographs and a certificate found from near Chaukundi graveyard as Exh.81, letter written by him to the Chemical Examiner as Exh.82, letter written to D.S.P. For approval for sending articles to the Chemical Examiner Exh. 83. Haji Mohammad Ehsan, A.S.I, C.I.A., P.W. 28, he had acted as Mashir of production of licensed revolver of accused Mohammad Nawaz Tanoli by his brother Ghulam Mohammad alongwith two missed and three live cartridges, revolver was having broken plastic at its handle; and the Mashirnama has been produced as Exh.93. Ghulam Abbas, A.I.-G. Criminalistic Division, Sind Police, Karachi, P.W.29, he has produced letter dated 8-2-1987, written by Inspector Mohammad Khan of C.I.A. For deputing expert for taking specimen of tyre prints of the car, letter dated 11-2-1987, sent by Inspector Mohammad Khan for examining the cross-holes in the rear seat and roof of the car, secured from appellant Shaukat Hayat as Exh. 98, another letter dated 11-2- 1987, forwarding a bullet recovered from the brain of deceased Salma Jabeen received from Jinnah Hospital alongwith pistol and six live cartridges recovered from accused Shaukat Hayat for examination and report as Exh. 99, letter dated 19-2-1987, written by Inspector Mohammad Khan of C.I.A. For
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comparing the moulds of tyre marks taken from the place from where the dead bodies of two girls were found and the specimen of tyre marks of the car secured from Shaukat Hayat as Exh.100, letter dated 24-2-1987, written by Mohammad Khan Inspector C.I.A. For examining the pieces of bangles and eyeglass recovered from the car of accused Shaukat Hayat, and specimen pieces recovered from the place where the dead bodies were lying as Exh. 101. Letter dated 10-3-1987, forwarding the sealed packets of bangles received back from the Chemical Examiner, for comparison which bears endorsement regarding receipt also as Exh. 102, letter dated 10-31987, sent by Inspector Mohammad Khan sending revolver, recovered from Mohammad Nawaz Tanoli, for examination and report as Exh. 103, report from A.I.-G. Ghulam Abbas Jaferi, regarding examination of Charade car Exh.104, another report dated 30-4-1987, regarding examination of pieces of glass of bangles as Exh. 105, third report regarding fifteen pieces of bangles secured from dead bodies and nineteen pieces of bangles secured from the car as Exh. 196, fourth report regarding revolver produced by Ghulam Muhammad brother of accused, Mohammad Nawaz Tanoli, as Exh. 107, fifth report regarding comparison of tire marks Exh. 108, and the letter dated 10-7-1987, sent by Inspector Mohammad Khan for return of articles which were sent for examination Exh.109. Abdul Rauf, D.S.P. Finger Print…
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