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Petitioner: ABDULLAH SHAH alias BABAR ALI VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Rao Iqbal Ahmad Khan, Ch. Muhammad Nasim Title: ABDULLAH SHAH alias BABAR ALI vs THE STATE Case No.:Criminal Appeals Nos.22, 144 and 418 of 1988 Criminal Appeal No,418 of
JUDGMENT
Reported As: 1998 P Cr. L J 1236 Result: Appeal accepted. Judgment JUDGMENT ' MUHAMMAD NASEEM CHAUDHRI, J.--- This judgment is intended to dispose of the following criminal appeals: (i) Criminal Appeal No,22 of 1988 preferred by Abdullah Shah alias Babar Ali appellant against the State against his conviction. (ii) Criminal Appeal No,144 of 1988 preferred by Asif Mahmood against the State against his conviction. (iii) Criminal Appeal No,418 of 1988 preferred by the State against the acquittal of Muhammad Arshad and Jamil Ahmad respondents (present in Court). 2. Both Criminal Appeal No,22 of 1988 preferred by Abdullah Shah alias Babar Ali appellant son of Tassaduq Hussain resident of Ghusia Street, Rajgarh, Lahore and Criminal Appeal No,144 of 1988 preferred by Asif Mahmood son of Muhammad Shafi, resident of Qasim Pur Colony, Multan are directed against judgment dated 16-1-1988 passed by the learned Judge, Punjab Special Court for Speedy Trials (V), Multan whereby both the aforesaid appellants were convicted and sentenced to R.I. For a period of 5 years each and to fine of Rs,2,000 each or in default to undergo further R.I. For 6 months each under section 450/34, Pakistan Penal Code; to R.I. For a period of 10 years each and to fine of Rs,5,000 each or in default of its payment to undergo R.I. For a period of one year each under section 392/34, Pakistan Penal Code and to suffer death penalty each and to fine of Rs,5,000 each or in default of its payment to further undergo R.I. For a period of one year each under section 302/34, Pakistan Penal Code. At this initial stage it is proper to record that due to the enforcement
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of the Presidential Amnesty Order, 1988 the death penalty awarded to each of the aforesaid both the appellants stands committed to life imprisonment. 3. The facts giving rise to the aforesaid appeals are narrated as under:- ' A dacoity was committed in United Bank Limited, Industrial Estate Branch, Multan on 4-4-1985 at 12-20 p.m. About which Muhammad Irshad, S.-I. Incharge Police Post Muzaffarabad, Police Station Mumtaz Abad, Multan P.W.17 received the information at 12-30 at noon while he was present in Muzaffarabad Town. He straightaway went to the aforesaid Branch of United Bank Limited where he reached at 12-40 p.m. Muhammad Nawaz, Manager U.B.L. P.W.14 working at the relevant time of occurrence handed over to him complaint Exh.P.E. Wherein it was narrated that he (Muhammad Nawaz P.W.14) was present in the aforesaid bank on 4-4-1985 at 12-20 p.m. Alongwith Jamil Akhtar Laghari, Cashier P.W.16, Waheed-ul-Hassan Officer P.W. (not produced) and Sanab Gul, Chowkidar armed with gun (deceased of this occurrence). No customer was present in the bank at that time. Suddenly three persons entered in the building of the hank. One person was having the height of 5' - 9", whitish coloured with stout and smart body aged 25 years wearing white Shalwar Kameez and armed with a sten gun. The second person was of the height of 5' - 4" with black type colour of body with weak physique, aged 25 years wearing white Shalwar Kameez while armed with carbine. The third person was of the height of 5' - 7" having white colour with average body aged 21 years wearing light blue Shalwar Kameez having pistol in one hand and a ' Thaila' in the other hand. The three persons arrived on a motorcycle who could be identified by him and the aforesaid other persons. The first person warned loudly and opened the firing with his sten gun on Sanab Gul, Chowkidar standing close to Jamil Akhtar Cashier on the left side. Sanab Gul fell at the spot in injured condition. He and the P.Ws. Bowed down. The second person fired with the carbine and through the issuance of threats made them to stand in hands up position. He inquired about the cash. The staff was taken to the Strong Room. Jamil Akhtar Laghari, Cashier was brought out and the keys of the safe were procured by the accused on threats. He collected the cash from the counter and the cash box. The third, accused placed the cash in the 'Thaila'. Thereafter, the accused confined them in the strong Room and issuing the threats went out of the building of the bank and made good their escape on a motorcycle. The door of the Strong Room was not properly closed which stood opened with a push. They came out and saw that Sanab Gul, Chowkidar was wriggling who expired at the spot. The aforesaid accused had taken away cash amount of Rs,2,60,000 as well as 12 bore gun No,171219 owned by the bank. 4. Muhammad Irshad, S.-I. P.W.17 sent complaint Exh.P.E. Through Iftikhar Ali Constable to Police Station Mumtaz Abad, Multan where formal F.I.R. Exh.P.E./1 was prepared by Muhammad Sharif, Moharrir Head Constable P.W.4. He took into possession the dead body of Sanab Gul and prepared the injury statement as well as the inquest report. He sent the dead body to Civil Hospital, Multan for post-mortem examination through Khadim Hussain, Constable P.W.2. He made the spot inspection. He took into possession blood-stained earth (sealed in a parcel), eleven crime empties P.91/1-11 of sten gun (sealed in a parcel), one crime empty P.92 of .12 bore gun (sealed in a parcel), empty magazine P.93 of sten gun, Bandolier P.94 and seven live cartridges P.95/1-7 of .12 bore gun owned by the bank. He prepared memo. Exh.P.Q. Attested by Muhammad Nawaz P.W.14 and Waheed-ul-Hassan P.W. (not produced). He recorded the statements of the P.Ws. He prepared rough site plan Exh.P.V.. He left the spot at 4-00 p.m. And went in search of the culprits. Near Railway Crossing Nadir Abad on Sher Shah Road, Multan Khadim Hussain, Constable P.W.2 produced before him last-worn clothes P.1 to P.3 with one sealed Phial handed over to him by the medical witness after the autopsy which he (S.-I.) took into possession vide memo. Exh.P.B. Attested by the said Constable. He called Shaukat Hayat, Draftsman P.W.1 who on his request and pointedness of the P.Ws. Prepared site plans Exh.P.A. To Exh.P.A./1 containing the drawings and notes with black ink in the hands of the Draftsman and those with red ink in his hand. Both of them signed the said site
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plans. Muhammad Irshad, 5.-I. (P.W.17) handed over the sealed parcels to Muhammad Ishaque, Moharrir Constable, Police Post Muzaffar Abad Police Station Mumtaz Abad (not produced as P.W.) on 5-4-1985. However, the investigation of the case was transferred to C.I.A. Multan on 4-5-1985. Thereafter, the investigation was conducted by Mr. Nasrullah Khan Niazi, Sub-Inspector C.I.A., Multan P.W.18. He joined one Abdul Qadir Shah as the accused and arrested him on whose information he arrested Abdul Basit acquitted accused and one Shahbaz Saleem on 27-6-1985. At that time Abdul Basit acquitted accused was present at General Bus Stand, Multan. His person was searched when the said S.-I. (P.W.18) took into possession pistol P.74, with live cartridges P.74/1-3 vide memo. Exh.P.J. When site plan Exh.P.J./1 of the place of arrest was prepared. On the same date (27-6-1985) Abdul Basit acquitted accused took the S.-I. (P.W.18) to Dera Budhu Tehsil Multan to the house of Muhammad Arshad acquitted accused who was arrested. While under police arrest Muhammad Arshad acquitted accused from his house led to the recovery of suit-case P.80 containing the Shalwar and Kamiz P.81 and P.82 (not stained with blood); one pair of blood-stained Shalwar Kameez P.83 and P.84, one pair of blood-stained Shalwar Kameez P.85, P.86 which were taken into possession vide memo. Exh.P.M. The blood-stained Thaila P.87 the first bloodstained pair of Shalwar Kameez P.83, P.84 and the second pair of blood-stained pair of Shalwar Kameez P.85, P.86 were separately sealed in respective three parcels. Muhammad Arshad accused while under police arrest on the same date from his house led to the recovery of motorcycle (without number plate) P.88 before this S.-I. Which was taken into possession vide memo. Exh.P.N. Muhammad Arshad acquitted accused while under police arrest from an Almirah of his house led to the recovery of an amount of Rs,22,000 comprising of currency notes of different denomination (P.75/1- 100, P.76/1-100, P.77/1-100, P.78/1-180 and P.79/1-4) which were taken into possession vide memo. Exh.P.L. Muhammad Arshad acquitted accused led to the recovery of revolver P.99 with 6 live cartridges P.99/1-6 from his house which were taken into possession vide memo. Exh.P.K. Site plan Exh.P.N./1 of the places of recovery of motorcycle, aforesaid currency notes and revolver was prepared. The aforesaid memos. Were attested by Akram Khan and Afzal Khan, P.Ws. (not produced). Nasrullah Khan Niazi, S.-I. P.W.18 handed over the three sealed parcels containing the clothes and the parcel containing the pistol to Aziz Ahmad, Moharrir Constable C.I.A. P.W.8 on 27-6- 1985 who on 8-7-1985 handed over the three sealed parcels of the clothes to Dalair Khan, Constable P.W.9 on 9-7-1985 for delivering the same in the office of the Chemical Examiner, Lahore. Aziz Ahmad, Moharrir Constable P.W.8 delivered the sealed parcel containing the pistol to Muzaffar Khan, Constable P.W.10 on 17-7-1985 which according to Muzaffar Khan was delivered in the office of the Chemical Examiner, Lahore and not in the office of the Forensic Science Laboratory, Lahore. Abdul Basit, Muhammad Arshad and Jamil Ahmad accused were sent on judicial remand on 28-6- 1986 to District Jail, Multan as their identification parade was to be got conducted. 5. On 1-7-1985 Malik Abdur Rashid, Magistrate 1st Class, Multan P.W.3 supervised the identification parade pertaining to Abdul Basit, Muhammad Arshad and Jamil Ahmad accused. During the identification parade Muhammad Nawaz P.W.14 correctly identified all the aforesaid accused. Jamil Akhtar P.W.16 correctly identified Jamil Ahmad and Muhammad Arshad accused who could not identify Abdul Basit accused. Waheed-ul-Hassan P.W. (not produced) correctly identified Jamil Ahmad and Muhammad Arshad accused. Malik Abdur Rashid, Magistrate 1st Class, Multan P.W.3 prepared his report Exh.P.D. With respect to this identification parade. 6. Abdullah Shah Alias Babar All appellant was arrested from Karachi on the night falling between 25/26-2-1986 who was also the accused of an other Crime Case bearing No,702 of 1985 registered at Police Station Mumtaz Abad, Multan. He was brought to Multan and on 26-2-1986 was sent to the judicial lock-up, District Jail, Multan for his identification parade. Application Exh.P.S. Was submitted on 2-3-1986 for holding the identification parade. On 4-3-1986 Malik Abdur Rashid, Magistrate 1st Class, Multan P.W.15 supervised the identification parade with respect to Abdullah Shah alias Babar
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Ali accused who was correctly identified by Muhammad Nawaz complainant P.W.14, Jamil Akhtar P.W.16 and Waheed-ul-Hassan P.W. (given up). Malik Muhammad Aslam, Magistrate 1st Class, Multan (P.W.15) prepared the report Exh.P.T. Pertaining to this identification parade containing his certificate Exh . P. T . /1. 7. During the investigation Abdullah Shah alias Babar Ali appellant took the Investigating Officer to House No,11, Ghausia Street, Rajgarh, Lahore from where the said accused received an amount of Rs,7,000 of currency notes P.4 to P.73 from one Muhammad Yameen paid to him on "Qarz-i-Hasna" and produced the same before Muhammad Nasrullah Khan, S.-I. P.W.18 which he took into possession vide memo. Exh.P.F. Attested by Raza Muhammad P.W.6 and Muhammad Javed P.W. (not produced), both residents of Saman Abad, Lahore. 8. During the investigation Abdullah Shah alias Babar Ali accused named Asif Mahmood appellant as his co-accused. Asif Mahmood appellant was confined in Camp Jail, Lahore in some other case alongwith Muhammad Mushtaq (another accused) who were arrested in this case as well on 28- 7-1986 and were got transferred to District Jail. Multan through application Exh.P.K. Containing the order of the Additional Deputy Commissioner (General/ Additional District Magistrate, Lahore. They were removed to Multan on 28-7-1986 and were sent to judicial lock-up on 29-7-1986 as the identification parade had to be conducted. On 2-8-1986 Malik Muhammad Aslam, Magistrate. ' 1st Class, Multan P.W.15 supervised the identification parade of Asif Mahmood appellant and Mushtaq Ahmad accused. Muhammad Nawaz, complainant P.W.14 correctly identified both of them while Jamil Akhtar P.W.16 identified Asif Mahmood appellant. Waheed-ul-Hassan P.W. (given up) also correctly identified both these accused. Malik Muhammad Aslam, Magistrate 1st Class, Multan P.W.15 prepared report Exh.P.U. Of this identification parade containing his certificate Exh.P.U./1. The physical remand of Asif Mahmood appellant and Mushtaq Ahmad accused were obtained by Nasrullah Khan Niazi, 5.-I. P.W.18 on 10-8-1986. While under police arrest Asif Mahmood appellant led to the recovery of sten gun P.96 with magazine P.97 from his house situated in Qasimpur Colony, Multan lying underneath an iron box placed in a room. Memo. Exh.P.R. Attested by Muhammad Nawaz P.W.14 and Muhammad Saeed, Constable P.W. (not produced) as well as site plan Exh.P.R./1 of this place of recovery were prepared. Both P.96 and P.97 were sealed in a parcel. This parcel was handed over to Ahmad Bakhsh, Moharrir P.W.11 by the said S.-I. On 12-8-1986 who delivered the same to Muhammad Yaqoob, Constable P.W.12 on 20-8-1986 and he delivered the same in tact in the office of the Forensic Science Laboratory, Lahore. 9. Dr. Iftikhar Hussain Qureshi, Medical Officer, Civil Hospital, Multan conducted the post-mortem examination on the dead body of Sanab Gul, Chowkidar on 4-4-1985 at 4-45 p.m. Sheraz Khan P.W.5, an uncle of the said deceased, identified the dead body. This medical witness found 12 injuries caused with fire-arms on the person of the deceased. He expressed the opinion that the death occurred as a result of injuries Nos.1 and 3 which were sufficient to cause death in the ordinary course of nature collectively as well as individually. He sealed the bullets and multiple small metallic in a phial which alongwith the last-worn clothes of the deceased were handed over by him to Khadim Hussain, Constable P.W.2. He issued carbon copy Exh.P.G. Of the post-mortem report and carbon copy Exh.P.G./1 of the diagram showing the location of the injuries. 10. After completing the investigation the police submitted the challan before the Court of Session at Multan. 11. It is a case of dacoity wherein Mushtaq Ahmad and Abdul Qadir Shah were also joined as the accused who were acquitted under section 265-K of the Code of Criminal Procedure by the leamed Additional Sessions Judge, Multan on 14-5-1987 from whose Court the case was afterwards transferred to the learned Special Judge who finally decided the same. 12. Abdullah Shah alias Babar Ali and Asif Mahmood appellants alongwith the acquitted accused persons namely Muhammad Arshad, Jamil Ahmad and Abdul Basit were charged under sections
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450, 396, 302 and 148/149, Pakistan Penal Code who pleaded not guilty and claimed to be tried. 13. At the trial the aforesaid prosecution witnesses appeared in the witness-box and supported the prosecution case. It occurs in the cross-examination of Dr. Iftikhar Hussain Qureshi P.W.7 that he could not distinguish between the pellets and the bullets and that the small pellets have been found by him in injury No,1 and injury No,3 only. Shaukat Hayat, Draftsman P.W.1 stated that he visited the spot on 5-4-1985 on which date he prepared the rough site plans and that his statement was recorded by the police on 17-4-1985. It is proper to express that the site plans Exh.P.A. To Exh.P.A./2 are shown to have been prepared on 17-4-1985. Muzaffar Khan, Constable P.W.10 stated that the sealed parcel containing the pistol was handed over to him on 17-7-1985 which he delivered in the office of the Chemical Examiner, Lahore. When cross-examined he stuck to his aforesaid stand and denied the suggestion that the parcel of the weapon was delivered by him in the office of the Forensic Science Laboratory, Lahore. Ahmad Ghaus Shah, Head Constable P.W.11 stated in his cross-examination that he received two sealed parcels out of which one contained sten gun but he was not aware about the contents of the second sealed parcel and could not state as to whether the said parcel contained some live bullet or some empties. Muhammad Nawaz complainant, Bank Manager P.W.14 introduced Jamil Ahmad and Abdul Basit as the accused persons who had been standing outside the building of the Bank and who had also left on a motorcycle. It occurs in his cross-examination that he had identified Mushtaq in the identification parade held on 2-8-1986 as one of those three persons who had entered the bank premises and had committed the dacoity. He added that there was much resemblance between Muhammad Arshad accused and Mushtaq identified by him in the identification parade and that he was not sure whether he was Arshad accused or Musthaq accused. He stated that he was not sure whether Arshad accused was the real culprit or Mushtaq. He again stated that the statement made by him in the examination-in-chief that Arshad accused while armed with pistol had come to the bank and committed the dacoity was incorrect and that his statement involving Mushtaq as the accused was correct. He stated that the police did not get identified the cloth bag P.87 and motorcycle P.88 from him during the investigation. He clearly stated that it was Mushtaq who entered the bank premises for committing the dacoity and it was he who was identified by him in the identification parade. He denied the suggestion that hand-bill Exh.D.E. Containing the photographs of Asif Mahmood and Abdullah Shah alias Babar Ali appellants was shown to him by the Investigating Officer before the holding of the identification parade qua each of them. He denied the suggestion that on each occasion of the identification parade of Abdullah Shah alias Babar Ali appellant and Asif Mahmood appellant he was shown their respective photograph by Nasrullah Khan Niazi, S.-I. He denied the suggestion that Asif Mahmood appellant was brought from Lahore to Multan in his company who was shown to him by C.I.A. Police before the identification parade. Malik Muhammad Aslam, Magistrate 1st Class, Multan P.W.15 stated that Asif Mahmood appellant raised the objection during the identification parade that he was shown to the witnesses earlier. Muhammad Irshad, S.-I. P.W.17 stated in his cross-examination that according to inquest report Exh.P.N. Three persons had committed the dacoity, that he prepared the rough site plan Exh.P.V. Of the place of occurrence on 4-4-1985 and that in the inspection note prepared by him on his first visit he had not narrated the fact that two culprits remained outside the bank at the time of the occurrence. He stated that he received the site plans Exh.P.A. To Exh.P.A./2 from the Draftsman on 17-4-1985. It also occurs in his cross-examination that he handed over the sealed parcel of crime-empties P.91/1-11 and a crime-empty of .12 bore, P.92, to Muhammad Ishaque, Moharrir Police Post Muzaffar Abad on 5-4-1985. It is proper to record at this stage that this Muhammad Ishaque, Moharrir has not been produced in evidence to make out the despatch of the aforesaid parcel to the office of the Director, Forensic Science Laboratory, Lahore. Nasrullah Khan Niazi, S.-I. C.I.A. P.W.18 deposed in his cross-examination that the sealed parcels of crime empties had been sent to the
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Forensic Science Laboratory on 3-5-1985, that the sealed parcel of pistol P.74 was sent to the Forensic Science Laboratory on 14-7-1985 and that the report pertaining to pistol and the parcels of crime empties were sent by the Forensic Science Laboratory to the police at the police station, but he could not tell the date in this regard. He added that he despatched the sten gun to Forensic Science Laboratory on 12-8-1986 which was returned to the police intimating that the crime- empties of the case previously despatched to the Laboratory had been sent back by the Laboratory to the police station and that the Director of Forensic Science Laboratory intimated that the parcel of sten gun should be resubmitted to him if the crime-empties of the case were still available in tact with the police. He stated that thereafter on 21-8-1986 the sealed parcel of sten gun P.96 and the parcel of crime-empties P.91/1-91 and P.92 sealed in another parcel were again sent to the Forensic Science Laboratory. 14. Learned Public Prosecutor adduced in evidence reports Exh.P.X. And Exh.P.Z. Of the Chemical Examiner, Lahore as well as reports Exh.P.AA. And Exh.P.BB. Of the Serologist, Lahore according to which earth, the white coloured bag and the clothes were stained with human blood. He also produced report Exh.P.CC. Of the Director, Forensic Science Laboratory Punjab Police, Lahore according to which the crime-empties were held to have been fired from sten gun P.96. Thus, this report is shown to be in positive. 15. Both the appellants and the acquitted accused were individually examined under section 342 of the Code of Criminal Procedure who stated about their non-participation in the occurrence. They denied the alleged recoveries attributed to them and did not claim the relevant articles including the clothes, motorcycle and cash amounts. Abdullah Shah alias Babar Ali and Asif Mahmood stated that they as well as their photographs were shown to the prosecution witnesses before the holding of the identification parades. They took up the stand that they had been falsely involved due to one Sarbuland Khan. Jamil Ahmad acquitted accused produced Electoral Roll Mark D.O. In the defence. Asif Mahmood accused produced Muhammad Ismail, Head Constable D.W:1 in his defence who had brought daily diary of Police Station Haram Gate pertaining to the period from 26-7-1986 to 18-8-1986. According to report No,42, dated 28-7-1986 Asif Mahmood appellant, Mushtaq and Muhammad Akhtar were kept in the police lock-up in case F.I.R. No,203 of 1985. According to report No,4, dated 29-7-1986 the abovementioned three persons were taken away from the police station by Ahmad Khan, Constable No,1834 at 8-35 a.m. This D.W.1 proved the relevant copies as Exh.D.O. And Exh.D.P. The other appellant and the acquitted accused did not produce the defence evidence. All of them did not choose to appear in their own defence on oath as contemplated under section 340(2), Cr.P.C. 16. We have noted that the learned trial Court acquitted Muhammad Arshad on the ground that Muhammad Nawaz, Bank Manager complainant P.W.14 exonerated him while standing in the witness-box and in his place introduced Mushtaq Ahmad. Both Jamil Ahmad and Abdul Basit were acquitted with the reasoning that neither they were named in F.I.R. Nor mentioned in the statement of Jamil Akhtar eye-witness recorded by the police who appeared as P.W.16 and that they were not shown in the spot inspection note as well as rough site plan Exh.P.V. Prepared initially and site plans Exh.P.A., Exh.P.A./1 and Exh.P.A./2 prepared and submitted on 17-4-1985 by Shaukat Hayat, Draftsman P.W.1. However, both Abdullah Shah alias Babar Ali and Asif Mahmood appellants were convicted on the grounds that their features were according to those narrated in complaint Exh.P.E., that they were correctly identified in identification parade by Muhammad Nawaz complainant P.W.14 and P.W.16, recovery of sten gun P.96 with report Exh.P.CC. Of Fire-arms Expert and the corroboration by the medical evidence. Feeling aggrieved both Abdullah Shah alias Babar Ali and Asif Mahmood preferred the aforesaid appeals which have been resisted by the State. 17. Against the acquittal of Muhammad Arshad, Jamil Ahmad and Abdul Basit accused persons, Criminal Appeal No,418 of 1988 was preferred which was dismissed at the limine stage to the extent
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of Abdul Basit acquitted accused while the same was admitted to the extent of the remaining two acquitted accused who were admitted to bail. This appeal has been resisted by both Muhammad Arshad and Jamil Ahmad acquitted accused. 18. We have heard the learned counsel for the parties of all the three appeals and gone through the record before us. For the proper disposal of the dispute in hand we propose to dispose of Criminal Appeal No,418 of 1988 preferred by the State against the acquittal of Muhammad Arshad, Jamil Ahmad and Abdul Basit. It is proper to express that vide order, dated 11-12-1988 the then learned Division Bench dismissed this appeal in limine to the extent of Abdul Basit acquitted accused with the reasoning that there was no evidence of his having entered the…
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