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Petitioner: ABDUL GHAFFAR and anothers VS Respondent: THE STATE and another
Court Name: Supreme Court of Pakistan Judge(s): Naimuddin, Raja Afrasiab Khan, Rashid Aziz Khan Title: ABDUL GHAFFAR and anothers vs THE STATE and another Case No.: Criminal Appeals Nos.4 and 5/SAC of 1991 Date of Judgment:1991-10-20 Reported As: 1992 SCMR 292 Result: Appeals accepted
JUDGMENT
JUDGMENT JUSTICE RAJA AFRASIAB KHAN (MEMBER)---Abdul Ghaffar alias Kara (20) son of Fida Hussain, Ashiq Hussain alias Achhi (22) son of Fida Hussain and Muhammad Latif alias Kala (22) son of Muhammad Iqbal were tried by Mr. Justice (Retd.) Ch. Muhammad Sharif, learned Judge Special Court for Speedy Trials, Multan, for having committed the offences under section 302/34/411/392, P.P.C. And section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, on 8-9-1990 at about 4-30 a.m. At the Bus Stop of Nai Aath Kassi, within the area of Police Station Kabeerwala, District Khanewal. Abdul Ghaffar, appellant, was convicted under section 302, P.P.C. For the murder of Abdul Jabbar (48) and sentenced to death plus a fine of Rs,2,00,000 or in default thereof to suffer S.I. For one year. In case of recovery of fine, it was directed that a sum of Rs,1,00,000 shall be paid to the legal heirs of the deceased, as compensation under section 544-A, Cr.P.C. Ashiq Hussain and Muhammad Latif, were, however, acquitted of the murder charge. All of them were convicted and sentenced to suffer 14 yearsR.I. And to pay a fine of Rs,1,00,000 each or in defaulthereof to suffer further six monthsS.I. Under section 392, P.P.C. For committing robbery on a highway between sunset and sunrise. All the accused were acquitted of the charge under section 411, P.P.C. For lack of evidence. Benefit of section 382-B, Cr.P.C. Was extended to the convicts. Abdul Ghaffar and Ashiq Hussan have filed a joint appeal (Cr.A.No,4/SAC-1991) while Muhammad Latif has filed Cr.A.No,5/SAC-1991, challenging their convictions and sentences before this Court. This judgment shall dispose of both the appeals together as they arise out of the same judgment. 2. Shortly stated, the facts as stated by Muhammad Saleem (complainant) in the F.I.R. Exh.P.L., are that he and his father Abdul Jabbar were the employees of Al-Rustam Company, Tharmal Power House, Kot Addu. On 8-9-1990, Muhammad Saleem, Abdul Jabbar and Muhammad Yousaf, were
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going to join their duties. Abdullah son of Muhammad Ishaque was also going to Multan with them. They boarded Bus No,2675/LHO from Shamkot Chowk for their onward journey to their destination. When the said Bus reached Aath Kassi Bus Stop, at about 4-30 a.m., two Air-conditioned Buses of New Khan Company were found stopped by throwing logs in the middle of the road. Driver of Bus No,2853/LHP was Muhammad Aslam son of Muhammad Hayat while Bus No,2655/LHP was driven by Habib Ullah son of Fateh Muhammad. Later on, the complainant came to know the names of the Drivers. Bus No,2655/I,HP was parked just behind Bus No,2853/LHP. The Bus whereby the complainant was travelling (2675/LHO) was halted behind Bus No,2655/LHP. Driver of the Bus disclosed to the passengers that the two buses ahead of them were being looted by the dacoits. On this information, Abdul Jabbar asked his companions to accompany him with a view to apprehend the decoits. He alighted from the Bus. Muhammad Saleem, Karam Elahi and Abdullah followed him. At the door of Bus No,2655/LHP, a person armed with a Kalashnikov was standing. Abdul Jabbar caught hold of his Kalashnikov whereupon the accused made a burst of his weapon which hit his chest, abdomen, legs and left shoulder. He fell down on the ground and died instantaneously. The murderer was attired in a white shirt and Shalwar. He was of full height with a stout body. Besides him there were two other accused with him who were of medium height with stout bodies. They were also wearing similar white dress. One of the said two accused held a pistol while the remaining two were armed with Kalashnikov like rifles. One of the robbers kept a guard in front of Bus No,2853/LHP and three others went inside Bus No,2655/LHP and started looting the passengers. They had already looted the passengers of Bus No,2853/LHP. All were speaking a local language. Later on, the accused came out of the Bus and went away towards north by riding on a Motorcycle of red colour. The occurrence was witnessed by Muhammad Saleem (complainant), Karam Elahi, Abdullah, Muhammad Aslam and Habib Ullah. The following 27 passengers of the Buses were robbed of their cash and articles:-- (1) Muhammad Aslam son of Muhammad Hayat. Rs,3,525. (2) Habib son of Fateh Muhammad. Rs,3,165. (3) Muhammad Khalid son of Muhammad Akbar Khan. Rs,800 with I.D. Card, Driving Licence and a Watch. (4) Khuram Jah Tanveer son of Malik Abdul Ghafoor. Rs,125. (5) Khalil-ur-Rahman son of Hameed Ullah Qureshi. Rs,1,300 (6) Abdul Kha iq son of Abdul Qayyum. Rs,1,100. (7) Ghulam Mustafa son of Muhammad Ramzan. Rs,332. (8) Luqman Ahmad son of Muhammad Hussain. I.D. Card and Driving Licence. (9) Malik Ijaz son of Malik Muhammad Ibraheem. Rs,1,002. (10) Muhammad Akram son of Haji Muhammad Aslam Rs,1,100 with I.D. Card and Driving Licence. (11) Muhammad Ishaque son of Muhammad Abdullah. Rs,514. (12) Malik Ijaz Ahmad son of Taj Din. Rs,1,300. (13) Muhammad Nawaz son of Nawab Din. Rs,956. (14) Anwar Hussain son of Maulana Ghulam Jahanian.Rs,1,100. (15) Hazoor Bakhsh son of Ghulam Murtaza. Rs,500. (16) Tariq Mahmood son of Muhammad Abu Bakkar.Rs,165. (17) Muhammad Asghar son of Wali Muhammad.I.D. Card, Service Card & Rs,900. (18) Munir Ahmad son of Wali Muhammad. Rs,1,100 and a golden chain. (19) Naeem Mirza son of Muhammad Tufail. Rs,165. (20) Muhammad Khalil son of Muhammad Tufail.Rs,1,200.
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(21) Almas Ali son of Wallayat Ali. Rs,85. (22) Muhammad Shahid son of Ghias-ud-Din. Rs,1,125. (23) Naseem Zafar son of Saeed Zafar Rs,150. (24) Muhammad Khalid son of Muhammad Ilyas.Rs,250. (25) Abdus Salam son of Abdul Ghani. Rs,2,641 with I.D. Card, purse, photograph and other papers. (26) Fakhar Ullah son of Khirad Mand Khan. Rs,600 and a watch. (27) Maqsood Ahmad son of Muhammad Ismail.Rado watch. On statement of Muhammad Saleem, F.I.R. Exh.PL. Was recorded by Hasnain Abbas S.I./S.H.O. Police Station Kabirwala, District Khanewal at 5-00 a.m. On 8-9-1990. 3. After registration of the case, Malik Hasnain Abbas S.I./S.H.O. Visited the spot. He prepared the injury statement Exh.P.Y. And inquest report Exh.P.G. Of the dead body of Abdul Jabbar. The dead body was sent to mortuary for post-mortem examination. Blood-stained earth and 17 empties of Kalashnikov and 7 leads of bullets were taken into possession from the spot vide recovery memos. Exh.P.M. And Exh.P.N. Bus No,2655/LHP was also taken into possession vide memo. Exh.P.O. He prepared the rough site-plan vide Exh.P.X. The Sub-Inspector recorded the statements of the witnesses on 8-9-1990. He also got conducted the identification parade of Ashiq accused on 2-10- 1990. The witness deposed that he reached the spot within 30 to 40 minutes and that sun was yet to rise at that time. He found three buses parked at the spot. The drivers were present inside these Buses. He conceded that he did not record statements of the passengers who were deprived of their belongings. He failed to give reasons why he did not record the statements of the looted passengers. The Police Officer was transferred. The remaining investigation was entrusted to Azam Ali Shah, Sub-Inspector (P.W.23). 4. Azam Ali Shah, S.I. Took the charge of investigation of the case on 24-9-1990. He arrested Ashiq accused from Pull Chheh Kassi, Kabirwala. A revolver .32 bore P.9 and 5 live bullets P.10/1-5 were recovered from him which were taken into possession vide memo. Exh.P.Z. Site plan of the recovery was prepared vide Exh.P.A.A. The weapon was kept by the accused without a licence. He recorded the statements of the recovery witnesses. Ashiq accused was produced by the Sub-Inspector on 25-9-1990 before the learned Magistrate and accordingly his confessional statement was recorded. Ashiq accused on 5-10-1990 led to the recovery of motor-cycle of Muhammad Ramzan which was taken into possession vide memo. Exh.P.B.B. He also led to the recovery of Identity Cards and some papers from a deserted place, on the same day, vide memo. Exh.P.C.C. Site plan of the said recovery Exh.P.C.C./1 was prepared. On the same day, Ashiq accused led to the recovery of currency notes of Rs,2,000 from his house which were taken into possession vide recovery memo. Exh.P.D.D. 5. Muhammad Khalid S.I. P.W.24 arrested Abdul Latif accused on 14-1-1991 from the Bus Stand of Kassi. A .22 bore pistol was recovered from him which was unloaded and six bullets were recovered therefrom which were taken into possession vide memo. Exh.P.B. He was arrested as a suspect under section 54, Cr.P.C. The accused was sent to judicial remand on 19-11991 and was subjected to identification parade which was conducted by Mr. Ghulam Farid, Magistrate. Abdul Latif accused led to the recovery of cash of Rs,5,000 from his house. It was taken into possession vide memo. Exh.P.E. Site plan of the recovery was prepared vide Exh.P.E.E./1. 6. Farzand Ali S.I. P.W.25 and Fayyaz Hussain Constable signed the recovery memo. Exh.P.2 whereby a revolver .32 bore P.9 along with five bullets was recovered from Ashiq Hussain accused; Manzoor Hussain Constable P.W.2 is a recovery witness of pistol P.1 and six live bullets P.2 to 7 from Abdul Latif accused vide memo. Exh.P.B. He stated that Abdul Latif was brought to police station and he remained there for about 4/5 days after his arrest. He conceded that it was known in the locality
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that murderer of Abdul Jabbar had been arrested and that complainant was summoned from Shamkot at the police station. Khan Muhammad Constable P.W.3 is another recovery witness. He deposed that he could not deny that Abdul Latif accused was kept at the police station for about four days. He expressed his ignorance about the arrival of Karam Ali and Muhammad Saleem P.Ws. At the police station. Abdul Hameed Constable P.W. 4 attested the recovery memo. Of Rs,1,000 from the residence of Abdul Ghafoor accused. He stated that no respectable person from the village was asked to join the recovery proceedings. He further stated that no villager came to the residence of the accused from where the recovery was effected Muhammad Akhtar S.I. P.W.6 and Muhammad Saddique Constable au red the recovery memo. Of Rs,5,000 from the house of Abdul Latif accused vide memo. Exh.P.D. He stated that at the time or recovery of cash, no villager was asked to join the recovery proceedings. He disclosed that the box from where the recovery of the cash was effected was not locked. 7. Malik Ghulam Farid, Magistrate P.W.18 conducted the Identification Parades of all the accused separately in the Jail premises and submitted his reports Exh.P.Q., Exh.P.R. And Exh.P.S., pertaining to their identification. He deposed that Muhammad Saleem, Karam Elahi and Abdullah P.Ws. Correctly identified the accused. He stated that he did not record the objections raised by the accused before the commencement of the identification parades. He also stated that the P.Ws. Did not disclose the acutal parts played by the accused in the commission of the crime. He conceded that the accused had objected that they were shown to the witnesses before the parades were actually held. 8. Mr. Muhammad Saeed Khan Magistrate P.W.19, on 25-9-1990 recorded the confessional statement of Ashiq accused vide Exh.P.T. 9. Report of the Chemical Examiner Exh. P.E.E. Dated 16-9-1990 and that of the Serologist Exh.P.F.F. Dated 10-11-1990 on earth were tendered in evidence. It was opined by the Serologist that the earth (Item No,2996/1) was stained with human blood. 10. Dr. Jehangir Shahzada, Medical Officer, T.H.Q. Hospital; Kabirwala, P.W.7 conducted the post- mortem examination upon the dead body of Abdul Jabbar on 8-9-1990 at 8-30 a.m. And found the following injuries on it:-- (1) (a) Lacerated wound 8 cm x 4 cm x bone deep (crush injury) at front and top of shoulder. (Entrance wound). (b) Lacerated wound 3 cm x 2 cm at back of left upper arm. (Exit wound). (2) Lacerated wound 2 cm x 1 cm round in shape with blackening on the lateral side of left upper arm. (3) Lacerated wound 1 cm x 1 cm round in shape, 2 cm above left nipple. (4) Lacerated wound round in shape 1 cm x 1 cm on mid line enterial (on epigesteric area). (5) Lacerated wound 4 cm x 1/2 cm on the darcel expect of right thumb. (6) Multiple abrasions in an area of 3 cm x 1-1/2 cm on the most lateral aspect of left chest and arm pit area. RIGHT THIGH: (7) (a) Lacerated wound 1 cm x 1/2 cm round in shape margins everted on upper 1/3rd of right thigh with right femur. (Entrance). (b) Lacerated wound 1 cm x 1/2 cm on the mid of right buttock. (Gluteal area). (8) (a) Lacerated wound 1 cm x 1/2 cm, 5 cm below injury No,7 on the upper thigh. (b) Lacerated wound 2 cm x 1/2 cm on the interior part of right buttock. (9) Laceration and abrasion in an area of 15 cm x 9 cm with blackening on most lateral aspect of right thigh. LEFT THIGH: (10) (a) Lacerated wound 1 cm x 1/2 cm round in shape on medial aspect upper 1/3rd of left thigh.
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(11) (a) Lacerated wound 1 cm x 1/2 cm, 1 cm below injury No,10 on the left thigh. (12) Lacerated wound 3 cm x 2 cm on the posterior aspect of left thigh. RIGTH LOWER LEG: (13) Lacerated wound 5 cm x 3 cm x muscle deep on posterior aspect of right lower leg. (Calf area). LEFT LOWER LEG: (14)Lacerated wound 7 cm x 3 cm x bone deep with exposure of nerves and muscles (crush) on lateral aspect of left lower leg. (15)Lacerated wound 13 cm x 3 cm x bone deep on the medial aspect of left lower leg (crush). CRANIUM & SPINAL CORD: In case of scalp, skull and vertebrae N.A.D. In case of Membrane, brain, spinal cord N.A.D. No abnormality was detected in scalp, skull and vertebrae membrane, brain, spinal cord. All the injuries were ante-mortem and caused by fire-arms. The cause of death was shock, haemorrhage and severe bleeding from injuries Nos.1, 4, 7, 14 and 15. Probable time between injuries and death was immediate while between death and post-mortem examination was within three hours. He deposed that injuries might be the result of more than one fire. 11. The said Doctor also examined Abdul Ghaffar accused after about six months of the receipt of injury. He disclosed that Abdul Ghaffar sustained one injury and that he did not prepare any medico-legal report in that behalf. The injury was not X-rayed. The injury was found to have been healed. He opined that abrasions and contusions might change their colour by lapse of time. He stated that he did not give the dimension of the healed injury of Abdul Ghaffar. He deposed that he also consulted the Medical Superintendent in respect of the injury of Abdul Ghaffar. He conceded that he was unable to give the definite opinion about the injury and under the circumstances, he consulted the Medical Superintendent. He deposed that he failed to give any reason or detail of the injury in his report. He further deposed that he could not give the exact age of the injury from its scar. 12. The eye-witness account was furnished by Karam Elahi P.W.13, Muhammad Saleem P.W.14, Muhammad Aslam, P.W.20 and Habib Ullah P.W.21. Muhammad Saleem P.W.14 is the first informant and is the son of the deceased Abdul Jabbar. Karam Elahi P.W.13 is the maternal uncle of Abdul Jabbar. He deposed that on 8-9-1990 he boarded a Bus with a view to go to Multan along with Abdul Jabbar, Muhammad Saleem and Muhammad Abdullah from the Bus Stand of Shamkot. He repeated the story about the incident and disclosed that it was Abdul Ghaffar accused who killed Abdul Jabbar with a burst of his Kalashnikov fire. According to the witness, Abdul Ghaffar was also injured by his own fire. He stated that Muhammad Latif and Ashiq, the other co-accused, looted the passengers. He stated that he worked as an Oil-man in the Cotton Factory and during the days of occurrence, he was jobless. He mentioned that he was able to see the faces of the accused in the moonlight. According to him, Ashiq accused was of average height, healthy and attired in a white shirt and Shalwar. Muhammad Latif accused was also of average height with a thin body. He was putting on white dress. About Abdul Ghaffar, he disclosed, that he was of full height and healthy. Abdul Ghaffar appellant in his statement under section 342, Cr.P.C. Denied the allegations levelled against him and took the plea that he had been implicated in the case due to enmity. He denied to have sustained any injury on his person. He stated that he was never medically examined and the medical report about him was a fake document. He stated that before identification parade was held, he was shown to the P.Ws. At the police station and his photographs were also given to them for the facility of his identification. He refuted that a recovery of Rs,1,000 was effected from his house at his instance. Similarly, Ashiq appellant also denied the recovery of any money from him. He also took the plea that he was shown to the witnesses at the police station before the identification parade was conducted. He stated that he was never produced before the Magistrate. To the same effect is the
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statement of the third accused Muhammad Latif. However, no evidence was led by the appellants in their defence. 13. The learned trial Judge believed Karam Elahi P.W.13, Muhammad Saleem P.W.14, Muhammad Aslam P.W.20 and Habib Ullah P.W.21. He came to the conclusion that the ocular account was corroborated by the evidence of Dr. Jehangir Shahzada P.W.7. He observed that the injury found on the person of Abdul Ghaffar definitely connected him with the commission of the crime. He held that the accused were identified by the eye-witnesses during the Court proceedings and that their identification by the witnesses in the Court was enough to register a conviction against them. The learned trial Judge believed the confessional statement of Ashiq Hussain appellant. However, the learned trial Judge rejected the recovery of crime weapon, extrajudicial confession made by the accused Identification Parade and the recovery of motor-cycle. Learned trial Judge also refused to convict and sentence the appellants under section 411, P.P.C. On the basis of recovery of currency notes on their pointedness. 14. Mr. Muhammad Munir Khan, learned counsel for the appellants contends that the prosecution has failed to prove its case against the accused beyond reasonable doubt. He submits with vehemence that therd was not an iota of evidence to establish the identity of the accused who committed the crime of murder and robbery at the time of occurrence. Learned counsel has challenged the validity of the confessional statement made by Ashiq accused inasmuch as it was not recorded by the learned Magistrate in accordance with law and the principles laid down by the superior Courts. He aruges that the alleged occurrence had taken place in the darkness of night and that it was not at all possible for the witnesses to identify the real accused. According to the learned counsel, if the witnesses were not able to see the faces of the accused, sufficiently and unmistakably at the time of occurrence, no question of their further identification in the identification parade would arise in the given facts and circumstances. Sardar Shaukat Ali, learned counsel for the appedant Ashiq also argued the case. He submitted that there was no evidence worth the name to justify the conviction and sentence of the appellants. He also read the selected evidence in support of his plea. Mr. M. A. Zafar, learned State counsel in reply argued that the witnesses saw the accused in the lights of the Buses which were on at the time of occurrence. He maintains that Abdul Jabbar was done to death by Abdul Ghaffar from a very close range fire and as such Muhammad Saleem and Karam Elahi could definitely identity him. He submits that Ashiq and Abdul Latif appellants robbed the passengers inside the Buses and as such the Drivers of the Buses who were at their seats were in a position to see the two accused very easily. 15. We have heard the learned counsel for the parties at considerable length and have read the whole record with their assistance. We are of the view that the prosecution did not succeed in proving its case against the accused beyond any reasonable doubt. The eye-witnesses cannot be accepted as truthful because of inherent weaknesses and material contradictions in their statements which are apparent on the very face of record. They do no inspire confidence. Karam Elahi and Muhammad Saleem are highly interested witnesses. As already mentioned above, Karam Elahi is the maternal uncle of Abdul Jabbar while Muhammad Saleem is his son. Karam Elahi claimed to have seen the faces of the accused in the moonlight. It appears that the learned trial Judge did not accept his evidence while relying upon the judgment reported in Mali v. State (1968 P Cr. L J 1077), wherein it was held that practically it is not possible even from a short distance to identify a person in the moonlight. The description of the accused given by Muhammad Saleem P.W. In the F.I.R. Was that the person who committed the murder of his father was of full stature with a healthy body while the other two accused were of average height and thin bodies. In Court, Karam Elahi deposed that Ashiq and Latif accused were of average height while Abdul Ghaffar was of full stature. Muhammad Saleem P.W. 14 deposed in Court that Abdul Ghaffar and Ashiq accused were of the same height. Nothing was said by the witnesses about the colour, complexion and gait
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of the accused. No salient features of the faces of the accused were given by the witnesses. It was also not possible for them to do so for lack of light at the relevant time. The prosecution has thus filed to give an eminent descirption of the accused who committed the crime with which they could be identified in the subsequent identification parade. The subsequent identification parade in a case like this would become wholly insignificant unless there was reliable and trustworthy evidence available to show that the accused were identified by the witnesses at the time of commission of the offences. We are thus convinced to hold that the accused were not at all identified by the witnesses at the time of occurrence. The description of the accused as given by Muhammad Saleem P.W. 14 does not tally with the description given by Karam Elahi P.W.13. The witnesses materially contradicted each other on this aspect of the case. Even otherwise, the descriptions given by them were grossly inadequate, as already pointed out above. It may be observed that both the witnesses were standing nearby when Abdul Jabbar was done to death by the accused who was standing at the door of the Bus. There is absolutely no evidence to show that there was sufficient light at the .Door of the Bus. Even otherwise, it was not possible for these witnesses to retain in their memory the faces of the accused because the occurrence lasted only for a short while. The prosecution evidence i. That when Bus No,2675/LHO in which the complainant, the deceased and Karam Elahi were travelling, halted at Aath Kassi Bus Stop where it dawned on them that the two Buses ahead of them were being looted by the dacoits. On receipt of this information, Abdul Jabbar got down from the Bus followed by Muhammad Saleem, Karam Elahi and Abdullah and came near the Bus where the accused armed with a Kalashnikov was standing at its door. The site plan Exh. PA shows that the three Buses were standing almost in a row at bumper to bumper distance. Abdul Jabbar immediately went towards the Bus where the passengers were being looted by the decoits and held the Kalashnikov of Abdul Ghaffar accused who made a burst of his Kalashnikov fire at him. Abdul Jabbar fell down and died instantaneously. The evidence further shows that on the call of killer of Abdul Jabbar the other two robbers immediately came out of the Bus and ran away by riding a motorcycle. It is strange that the witnesses did not make any efforts in overpowering the robbers. They also did not raise an alarm for apprehending them. The trend of the evidence is that the offences were committed by the accused hurriedly. The evidence of Karam Elahi and Muhammad Saleem P.Ws. Demonstrates beyond doubt that they could not see the faces of the accused. A judicial notice can be taken of the fact that on 8-9-1990 at 4-30 a.m., there was darkness and as such the identification of the accused was not possible at the spot. It is in the evidence that Muhammad Aslam and Habib Ullah P.Ws. Were sitting on their seats and they were commanded by the robbers not to budge an inch from their seats. They were, thus, frightened…
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