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Petitioner: BASHIRULLAH and anothers VS Respondent: THE STATE
Court Name: Federal Shariat Court Judge(s): Fazal Ilahi Khan, Ejaz Yousaf, Dr. Allama Fida Muhammad Khan Title: BASHIRULLAH and anothers vs THE STATE Case No.:Criminal Appeal No,40/I,. Criminal Murder Reference No,2/I and Criminal
JUDGMENT
Reported As: 2002 P Cr. L J 1183 Result: Appeal dismissed Judgment JUDGMENT ' CH. EJAZ YOUSAF, J.--- This judgment will dispose of Criminal Appeal No,40/I of 2001 filed by Bashir Ullah son of Mehtab Khan and Nasrullah son of Raji Gul, Criminal Murder Reference No,2/I of 2001 filed by The State and Criminal Revision No,9/I of 2001 filed by Muhammad Shaukat son of Muhammad Hayat (complainant) against the aforenamed appellants for grant of compensation, to the legal heirs of the deceased under section 544-A, Cr.P.C. As all the matters arise out of the same judgment, dated 14-12-1999 passed by learned Sessions Judge, Dera Ismail Khan whereby both the appellants have been convicted under section 302(b)/34, P.P.C. And sentenced to death. 2. Briefly stated, the prosecution case as gathered from the record is that on 15-6-1998 at about 17- 50 hours, report Exh.P.A./1 was lodged by one Muhammad Shaukat with Muhammad Yousaf, Incharge Reporting Center, Civil Hospital, Dera Ismail Khan wherein it was alleged that the complainant was working as a Cleaner with Datsun Pick-up No,DNB7057 whereas, Imam Din deceased was the driver of the said vehicle. On the day of occurrence, both, the complainant as well as the driver, were present at Tank Adda when two young persons reached there and asked Imam Din to carry 16 bags of chaff, from the vicinity, to the said Adda. Imam Din accepted the proposal and agreed to transport the chaff, in consideration of a sum of Rs,150. They all thus proceeded to the place where, the chaff, according to the aforesaid persons, was lying. Both the aforesaid persons, who were talking in Pushto, occupied the front seat alongwith the driver whereas, the complainant climbed at the roof of the Datsun and sat there. At about 17-00 hours, when they reached at the place known as Hikmat Abad, both the aforementioned persons asked the driver to turn the Datsun back as, according to them, they had travelled ahead of the place
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where the bags of chaff were lying. No sooner the driver turned the vehicle back then one of the aforenamed persons alighted from the Datsun and tried to snatch the vehicle from Imam Din. The other resorted to firing whereupon Imam Din asked the complainant to bring some help, as according to him, the culprits were trying to kill him. Having been frightened, the complainant jumped of the vehicle and ran towards a nearby situated house. However, since no male member of the family was available in the said house, therefore, he immediately returned to the place of occurrence. On reaching there the complainant saw that Imam Din was lying dead and Datsun was also taken away, by the culprits. The complainant, therefore, rushed to the Adda and informed the persons, present there, regarding the occurrence. Thereafter, a Datsun Pick-up was arranged and dead body was carried to hospital. It was claimed in the report that, on seeing again, the complainant would be in a position to identify the culprits. Complaint/ Murasila Exh.P.A. Was accordingly written and sent to the police station for formal registration of the case, on the basis whereof, F.I.R. Bearing No, 89 under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 302/34, P.P.C. Was registered. Investigation was carried out and on completion thereof the accused persons were challaned to the Court for trial. It would be pertinent to mention here that, as per prosecution version, simultaneously with lodging of the report, a wireless message regarding the occurrence was also flashed whereupon, the S.H.O. Police Station Gomal University immediately made Nakabandi of the area and proceeded towards the place of occurrence alongwith a contingent. In the meantime, he i,e, the said S.H.O. Received information that the Datsun Pick-up was abandoned and the culprits were heading towards village Sikandar. He, therefore, rushed towards the said village and on reaching there saw that the culprits were being chased by the people. After resorting to aerial firing he apprehended the culprits and also recovered from their possession arms as well as the ammunition. He then proceeded to the place of occurrence where Ashraf A.S.-I. Produced before him two buttons of a shirt allegedly belonging to one of the culprits. He also recovered from the place of occurrence empties of .30 bore pistol from two different points. Since, as per prosecution version, both the accused persons, on their arrest showed willingness to confess their guilt, therefore, they immediately, on the next morning, were produced before a Magistrate for the purpose of recording of their confessional statements. On the completion of investigation the accused persons were challaned to the Court for trial. 3. Charge was accordingly framed to which the accused persons pleaded not guilty and claimed trial. 4: At the trial, the prosecution in order to prove the charge and substantiate the allegations levelled against the appellants produced 19 witnesses, in all P.W.1 Sardar Bakhsh S.H.O., Police Station University, D.I. Khan had on the completion of investigation submitted the complete challan in the Court. P.W.2 Amanullah a relative of the deceased had, at the time of post-mortem examination, identified dead body of the deceased. P.W.3 Umar Khitab is a marginal witness of the recovery memo. Exh.P.C. Vide which the blood-stained shirt of the deceased was taken into possession. P.W.4 Manzoor Ahmad is a marginal witness of the recovery memo. Exh.P.C./1 vide which the allegedly robbed Datsun Pick-up i,e, Article P.2 was taken into possession by the police. P.W.5 Karam Elahi is a marginal witness of the recovery memo. Exh.P.C./2 vide which shirt of accused Bashirullah i,e, Article P.3, two buttons of which were missing, was taken into possession. He is also a marginal witness of recovery memo. Exh.P.C. Vide which the blood-stained shirt of the deceased was taken into possession by the police. In the course of his cross-examination he stated that he was told by the Investigating Officer that two missing buttons recovered from the place of occurrence matched with the shirt of accused Bashirullah. He, however, denied the suggestion as incorrect that the aforementioned buttons were taken from the shirt of the accused, by the police, so as to beef up the prosecution case. P.W.6 Haq Nawaz, NaibTehsildar had supervised the
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identification parade. He deposed that in his presence Shaukat P.W. Had correctly identified both the appellants thrice each, turn by turn, to be the culprits. He produced in Court the identification parade memo. As Exh.P.W.6/1. P.W.7 Gulsher Khan, A.S,-I. Was a member of the police party, which in pursuance of the report had chased the culprits. He deposed that as they reached near village Sikandar, they spotted two persons who were running in the fields and they were being followed by the people. After resorting to ariel firing, they apprehended the culprits and recovered from their possession the arms as well as the ammunition. He is also a marginal witness of recovery memo. Exh.P.C./3 vide which the aforementioned articles were recovered. In the course of his cross- examination he stated that nobody from the public was taken to witness the recovery as none was available. P.W.8 Ghulam Bashir is a marginal witness of the recovery memo. Exh.P.C./1 vide which the allegedly robbed Datsun Pick-up parked near the brick kiln of Abdul Aziz, situated in village Chehkan, was taken into possession by the police. In the course of his cross-examination the witness stated that driver of a Datsun, who was coming from Tank side, had informed him regarding the robbed vehicle P.W.9 Dr. Tahir Manan had on 15-6-1998 performed post-mortem examination of deceased Imam Din and found as under:-- External examination (1) A fire-arm entry wound measuring 1/8" x 1/8" at the right upper and lateral neck. (2) Exit of wound No,1 measuring 1-1/2 x 1", 2" apart from wound No,1 and was at right lateral and mid neck with everted margins. (3) Fire-arm entry wound measuring 1/2" x 1/2" at the right anterior and mid forearm with compound fracture of right radious and ulna. (4) Exit wound of wound No,3 measuring 2" x 2" at right medial and mid arm. (5) A fire-arm entry wound measuring 1/4" x 1/4" at the left medial and upper arm. (6) Exit of wound No,5 measuring 2" x 2" at left axilla. (7) Fire-arm re-entry wound of wound No,6 deep in chest cavity measuring 2-1/4" x 2-1/4" on upper side of left chest wall. (8) Re-exit fire-arm wound of No,7 measuring 2-1/2" x 2-1/2" on right upper lateral chest. (9) Superficial graze wound measuring 1/4" x 1" at left anterior and middle arm. Internal examination ' Stomach was healthy with semi solid food, walls, ribs and cartilages of thorax, pleura, right lung, left lung, pericardium and heart and the corresponding blood vessels were injured. ' Radius and ulna (2) left lateral and upper ribs were fractured." ' In his opinion, the cause of death was due to fire-arm injuries leading to the destruction of vital organs i,e, lungs, heart and major blood vessels causing blood loss, hypovolumic shock and death. He opined that direction of the bullet was from left lateral to right medial and from above downwards. As per his opinion probable time between injuries and death was instantaneous and probable time between death and post-mortem, within two hours. He produced in Court, the post- mortem examination report as Exh.P.W.9/1. P.W.10 Muhammad Ashraf F.C. Is a marginal witness of recovery memo. Exh.P.W.10./1 vide which bloodstained earth, two empties of .30 bore pistol P.13 from one place, and two empties Exh.P.14 from another place, were taken into possession by the police from the place of occurrence. Vide the above memo an identity card in the name of Nasrullah i,e, Article P.15 was also taken into possession by the police from the place of occurrence, P.W.11 Amanullah deposed that on the day of occurrence he was present in his house, situated in village Chehkan. On hearing announcement on the loudspeaker of the village mosque whereby people were informed about the occurrence, he alongwith Abdul Latif P.W. Went in search of the culprits, on a motorcycle. On coming out of the village, they saw a police vehicle which was running, in pursuit of the accused persons, in high speed, therefore, they also followed them. On reaching within the limits of village Drabri they came across another police contingent. The accused persons
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were running at some distance. Police in presence of the witness, arrested both of them. In the course of his cross-examination he stated that at the relevant time the accused persons were running at a distance of about one field. P.W.12 Shahbaz deposed that, on the day of occurrence, he was coming on a cycle to bring clay from the brick kiln. He saw that Datsun Pick-up belonging to his village was going in high speed towards Tank. After covering some distance, the Datsun stopped. On reaching near the Datsun, he saw the two persons came out of the vehicle and started running towards the jungle situated on southern side of the road. He returned to the village and then informed Muhammad Hussain P.W. Brother of Imam Din, regarding the vehicle, whereafter announcement on loudspeaker of the village mosque was made. P.W.13 Shaukat is the complainant. He, at the trial, while reiterating the version contained in the F.I.R. Confirmed that accused persons, present in the Court, were the same who had hired the Datsun Pick-up and then robbed the same away and in the course of occurrence also killed Imam Din driver of the vehicle. In the course of his cross-examination he stated that at the time when the pick-up was hired no one else except the witness and the driver was present at the Adda. He further stated that one of the culprits who had long hairs alighted from the vehicle and dragged the driver away, the witness also jumped down from the vehicle, however, none of the culprits chased him. He stated that the deceased Imam Din was his maternal-uncle. In the course of his cross-examination he denied the suggestion as incorrect that he was a student and was not working as a cleaner. P.W.14 Hafizullah is another eye-witness of the occurrence. ' He deposed that at about 4-30 p.m. On the day of occurrence, he was present at Tank Adda and was standing near the vehicle of Imam Din when two persons who were speaking in Pushto booked the vehicle in question for Rs,150 to bring chaff from the village area. The deceased Imam Din asked the witness to accompany him and also promised to drop him at his house after taking the chaff. He boarded the pick-up and sat in the body of the vehicle whereas, Shaukat P.W. Climbed at the roof of the Datsun. The two persons, who had hired the Datsun, occupied the front seat, alongwith the driver. When they reached near "Ara", the vehicle was turned back. There was a scuffle in the front seat and one of the accused tried to drag Imam Din away thereafter, they fired at the deceased and threw him out of the Datsun. The vehicle was then taken away. In the course of his cross-examination he stated that Imam Din deceased was the son of his paternal-aunt and Shaukat complainant was his nephew. He further stated that initially, firing was made inside the Datsun, and the deceased was then thrown out in injured condition. He further stated that a single shot was fired inside the vehicle, whereas, rest of the shots were fired outside the vehicle. He, however, showed his inability to disclose as to how many shots were fired outside the Datsun Pick- up as according to him, in the meantime, Imam Din had asked him as well as the complainant to go and solicit help. P.W.15 Zafrullah Khan, Judicial Magistrate, D.I. Khan had on 16-6-1998 recorded confessional statements of both the appellants. He produced the same in the Court as Exhs.P.W.15/2 and P.W.15/5. In the course of his cross-examination he refuted the suggestion as incorrect that he did not put the questions to the-accused regarding any inducement, torture or the reason which prevailed upon them to make the confessions. He also refuted the suggestion as incorrect that the accused persons had complained to him of extensive torture. P.W.16 Muhammad Yousaf, H.C. Police Station Cantt. D.I. Khan, deposed that, at the time of occurrence, he was posted in Police Station Cantt. And was performing his duties in the Reporting Centre, D.H.Q. Hospital, D.I. Khan. He on the complaint lodged by Shaukat P.W. Had written the report/Murasila i,e, Exh.P.A./1, on the basis whereof subsequently, formal F.I.R. Was registered. He had also prepated injuries sheet of deceased Imam Din as Exh.P.D. And inquest report as Exh.P.D./1. P.W.17 Irshad Khan, S.H.O. Had, on receiving information regarding the occurrence, chased the culprits and recovered from their possession arms as well as ammunition vide recovery memo. Exh.P.C.3. He stated that at the time of recovery, both the crime weapons i,e, pistols were giving smell of fresh discharge. He had also
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partly investigated the case and in course thereof made certain recoveries besides, producing the accused persons before the Magistrate for the purpose of recording of their confessional statements. In the course of his cross-examination he refuted the suggestion as incorrect that accused persons had actually not confessed their guilt and that the police statements of the accused persons were attributed as their confessions. P.W.18 Ghulam Bashir had prepared site plan of the place wherefrom the Datsun Pick-up was allegedly recovered. He produced the same as Exh. P. W . 18/1. P. W . 19 Muhammad A shraf, A. S. -I. Had also partly investigated the case. In the course of investigation, he had recovered blood-stained earth, empties of .30 bore pistol, four in number, an identity card belonging to appellant Nasrullah and two buttons of shirt vide recovery memo. Exh.P.W.10/1. He had also recorded supplementary statement of the complainant and statement, under section 161, Cr.P.C. Of Hafizullah. He had also placed on file the Reports of Fire-arms Expert i,e, Exh.P.K. And Chemical Examiner's Report as Exh.P.K./1, respectively. In the course of his cross- examination he stated that since the place of occurrence was a deserted place, therefore, he did not summon any elder or notable of the area to witness the recoveries. 5. On the conclusion of the prosecution evidence, the appellants were examined under section 342, Cr.P.C. In their above statements they denied the charge and pleaded innocence. In answer to the question as to why he was charged? Appellant Bashirullah stated that he was innocent and was falsely implicated. Most poor persons, like him, shift to agricultural lands, when the harvesting season is about to start. He too, came down from the hills in April and remained busy in harvesting the crop, in a traditional manner. After harvesting the wheat crop, it took about a month or two to encash the shares. On the fateful day, there was hue and cry and lot of persons were running around. He also joined them and came to know that they were trying to find the murderers. In the meantime, police also came at the spot and since he was new to the area and was not amongst the local residents, therefore, he was considered as old man out. He was taken to the Mahsuds, whose fields he had been harvesting and thereafter the police took him to the police station. Later on, he learnt that he was involved in the case. He added that since suchlike cases attract sharp criticism from the public and the authorities are normally under pressure, therefore, the police always tried to hush up the matter by making somebody the scapegoat. Almost, similar stand, in pith and substance, was taken by appellant Nasrullah. In answer to the question as to why he was charged? He added that he on the fateful day was sitting in the Barriak of Pir Hikmat Shah, in his field. Police party came there. They wanted from him to verify identity of a man who was accompanying them. The police party also wanted to verify from him regarding his own identity and he produced his N.I.C. He was told that since he i,e, the appellant was a Mahsud and the apprehended person was also a Mahsud, therefore, he should either give statement against him or else would be considered as an accomplice. He was taken to the police station where he came to know that he was involved in the case. The appellants, however, failed to lead any evidence in their defence or to appear as their own witnesses in terms of section 340(2), Cr. P. C. 6. After hearing the arguments of the learned counsel for the parties learned trial Court convicted the appellants and sentenced them to the punishments as mentioned in the opening para. Hereof. Record reveals that initially an appeal i,e, Criminal Appeal No,87 of 1999 alongwith Murder Reference No,9 of 1999 and Criminal Revision No,1 of 2000 were filed in the Peshawar High Court against the above judgment which was dismissed vide order, dated 25-10-2000. Appellants then approached the Honourable Supreme Court of Pakistan by way of Criminal Appeal No,55 of 2001 (out of) Cr. P. No,238/I of 2001 which was allowed and the case vide judgment, dated 8-2-2001 was remanded to this Court for decision afresh, in accordance with law, as it was found that an appeal against order of conviction passed under provisions of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was not competent before the Peshawar High Court.
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7. We have heard Mr. Abdul Karim Kundi, Advocate, learned counsel for the appellants, Mr. Muhammad Sharif Junjua, Advocate, learned counsel for the State and have also perused the entire record with their assistance. 8. Mr. Abdul Karim Khan Kundi, Advocate, learned counsel for the appellants has raised the following contentions:-- (i) That since confessional statements of the appellants were extracted from them by applying third degree methods, therefore, the same were inadmissible. (ii) That since the report, in pursuance whereof the F.I.R. Was registered, was recorded in the hospital, therefore, the possibility that the investigation was dishonest, cannot be ruled out. (iii) That delay in holding the identification test and non-description, by appearance of the appellants, by the complainant, had greatly marred it's evidentially value. (iv) Alternatively it was argued that since the appellants had no intention to kill the deceased, therefore, imposition of death sentence was not justified. 9. Mr. Muhammad Sharif Janjua, Advocate appearing for the State on the other hand, while controverting the contentions raised by the learned counsel for the appellants has submitted that; F.I.R in the instant case was registered promptly, the accused persons were apprehended immediately after the occurrence from the vicinity and crime weapons were recovered from their possession then and there. Report of the Chemical Examiner has confirmed that empties, recovered from the place of occurrence, were fired from the weapons recovered from the possession of the appellant. Medical evidence lends further support to the prosecution version. The deceased was a poor taxi driver, therefore, the possibility that the investigation was influenced by his relatives has to be ruled out. Further substitution of an accused is rear phenomenon, therefore, the appellants were rightly convicted for the offence. 10. In furtherance of his first contention that since confessional statements of the appellants were extracted from them, therefore, it were inadmissible, the learned counsel for the appellants has vehemently contended that since confessional statements i,e, Exh.P.W.15/1 and Exh.P.W.15/4 were extracted from the appellants by applying third degree methods, therefore, it being inadmissible, could not have been taken as incriminating pieces of evidence in recording conviction against the appellant. ' In order to ascertain as to whether or not there is substance in the contention, we have ourselves carefully gone through the record of the case. It is an admitted fact that the occurrence, in the instant case, took place on 15-6-1997 at 17-00 hours, report whereof was immediately, lodged and in pursuance, the appellants were arrested on the same day in the evening. On 16-6-1998, i,e, the next morning both, for the purpose of recording of their confessional statements, were produced before P.W.15 Mr. Zafarullah Khan, Judicial Magistrate. Thus there was hardly any delay. Factually the appellants remained with the police just for a few hours of the night, for which remand was even taken, therefore, the likelihood that the confessional statements were extracted from them, has to be ruled out. It would be pertinent to mention her that, at the trial, with regard to the confessional statements, various different stands which apparently are inconsistent with each other, were taken by the appellants. Initially it was suggested to P.W.15 that neither he had recorded the confessions nor such confessions were voluntarily made to him. Later on, it was suggested that after consulting the police statement of the accused persons he i,e, P.W.15 in consultation with the Inspector/S.H.O. Had written the statements, himself. Subsequently, it was suggested to the Magistrate that though the accused persons had complained to him regarding extensive torture yet, no specific question with regard thereto was recorded by him. All the suggestions were denied, by the witness. In their statements, recorded under section 342, Cr.P.C., the accused persons yet, took another somersault and while giving up the stance, taken earlier, straightaway denied the factum of their getting record the confessional statements, in question. In this regard it
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would be advantageous to reproduce hereinbelow Question No,8 and answer thereto, from the statement of appellant Bashirullah, which reads as follows:-- "Question. It is also in evidence that on 1-6-1998, you made a confessional statement Exh.P.W.15/4 voluntarily, before P.W. Zafar Ullah Khan, Magistrate. Is it correct? ' Ans. I was not produced before any Magistrate and there could be no question of making any confessional statement particularly when I committed no offence. If any such confession is attributed to me it would be police over doing." ' And to a similar question also bearing No,8, appellant Nasirullah also denied that any confession was made by him. Relevant question and answer thereto is also reproduced hereinbelow for ready reference. "Question. Did you on 16-6-1998 make voluntarily confessional statement Exh.P.15/1 before P.W. Zafar Ullah, M.I.C.? ' Ans. I…
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