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Petitioner: ALI MUHAMMAD And Another And GHULAM HUSSAIN VS Respondent: THE STATE THE STATE
Court Name: Supreme Court of Pakistan Judge(s): N/A Title: ALI MUHAMMAD And Another And GHULAM HUSSAIN vs THE STATE THE STATE Case No.: Criminal Appeal No. 100eof 1981 Date of Judgment:- Reported As: 1985 SCMR 1834 Result: Appeals dismissed
JUDGMENT
JUDGMENT MUHAMMAD AFZAL ZULLAH, J.--These to appeals (Criminal Appeal No. 100 of 1981 and Criminal Appeal No. 101 of 1981 through leave of this Court are directed against the judgment, dated 3-5-1977 of the Lahore High Court; whereby the conviction of the appellants under section' 396 read with sections 149 and 148 (all read with 120-B, P.P.C.) and the sentences of death to Ali Muhammad and life imprisonment to Muhammad Hand and Ghulam Hussain appellants as also 1 year's R.1. And fine against all of them, were affirmed. 2. The prosecution case as contained in the deposition of Abdul Aziz who is complainant as also an eye-witness is as follows:-- "Facto Sugar Mills, Darya Khan was previously named and styled as Adamjee Sugar Mills. In the days of occurrence I was serving in this Mills as a Cashier. On 2nd March, 1973 at about 9-15 a.m. 1 alongwith Noor Muhammad, Abdul Hamid, Kifayat Hussain Shah, Shabbir Hussain, Khuda Bakhsh, P.Ws. And Mubarik Ali deceased went to Muslim Commercial Bank, Darya Khan by Micro Bus No. MI- 1329 (belonging to the mills) driven by Siraj Din approver for getting a cheque of the amount of rupees ten lacs encashed. On presenting the cheque Abdul Hamid a P.W. Was paid rupees four lacs and ninety thousand by the bank authorities, as only this much amount was available in the Bank. Out of the said amount Abdul Hamid Head Cashier P.W. Passed on rupees to lacs five thousand, 900 and 22 paisas to me as well as rupees to lacs three thousand 7 hundred and sixty- one and 81 paisa to Noor Muhammad Cashier P.W. For disbursement to the growers of sugarcane in the area of Zamma Wala and Kallurkot. The aforesaid amount which on getting encashed from the bank was paid to Noor Muhammad Cashier and me was bound into bundles, duly bearing the stamp of the said bank. On receipt of the amount Abdul Hamid Cashier also affixed the stamps of
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the mills on those bundles. On receipt of the money I put rupees one lac and ninety thousand in an attach-case whereas Noor Muhammad P.W. Also put the money in his own bag and attach-case. While leaving the bank premises for the mills premises I and Noor Muhammad P.W. Put the aforesaid attach-- cases in the dickey whereas we kept the bags in our own hands. After dropping Abdul Humid Head Cashier P.W. At the outer gate of the mills we proceeded towards Kallurkot at 10-30 a.m. We were having the relevant papers in another bag in the same bus. After crossing the Chandni Chowk we had hardly gone 2/3 furlongs ahead when all of a sudden three persons, to of whom were standing on the northern side of the road armed with guns and the third was standing on the southern side of the road armed with a guilty rifle opened fire at us. With the firing the bus stopped. As soon as the bus stopped all the three aforesaid persons came closer to the bus and they broke the window panes with the butts of their guns. Both Khuda Bakhsh P.W. And Mubarik Ali deceased who were serving as Watchmen were armed with .12 bore guns. They were occupying the rear-seat of the bus. One of the to persons who had fired at the bus from the northern side aimed his gun at Mubarik Ali deceased and fired hitting and injuring him. They abused us and told us to get out of the bus. We all the persons except Mubarik Ali accordingly got out of the bus after one of the doors was opened by the assailants. As soon as we got down from the bus our assailants asked us to run away and we accordingly ran away towards the south. After covering a distance of about 50 steps we crossed a water-course on the way. Immediately thereafter we heard starting noise of a vehicle and turned back but we could not spot anything except our own micro bus. We immediately returned to our micro bus and found all the three bags containing money and papers missing from the bus as, well as Mubarik Ali deceased lying dead. We checked up the dickey of the car and found the attach-cases in the dickey of the car intact. Immediately thereafter a bus bound for Kallurkot arrived at the scene of occurrence and on boarding the bus 1 alone proceeded to Kallurkot to report the occurrence at the police station. On arriving at Zamma Wala 1 learnt about the presence of the police there and so 1 got down from the bus. I contacted the police at Bus-stop Zamma Wala where it happened to be present and reported the occurrence to the police. Raja Fazle Azim S.1. Recorded my complaint Exh.P.A. And obtained my signatures thereon in token of its correctness after having read out its contents to me. In my report Exh. P.A. I particularly mentioned the description of all the three aforesaid assailants. This occurrence took place at about 11.45 a. m. One of the assailants was a thin, medium short stature person with wheatish colour, another one was of the same colour, bulky and of normal stature while the third one was of fair colour, well-built young person. All the three persons used the local dialect of Mianwali District. After recording my complaint the police party accompanied me to the spot. In my presence Raja Fazal Azim 5.1. Secured into his possession from the spot one crime empty of .303 bore P.W. 25/B, vide memo. Exh. P.W. Few pieces of glass P.W. 25/2 vide memo Exh.P.C., one knife P.E. 25/3 vide memo. Exh.P.D.. As well as blood-stained earth vide memo. Exh.P.D. The police at the same the made the crime empty and the blood-stained earth into separate sealed parcels. The to attach-cases lying in the dickey of the car contained to lacs and four thousand rupees which I produced before the police vide memo. Exh. P.F. The police also took micro bus No. MI-1329 into its possession vide memo. Exh.P.G., which is now present outside the Court as the case-property and Noor Muhammad P.W. Attested ail the aforesaid memos. On 15th July, 1974, 1 took part in the identification parade of the accused in the premises of the Central Jail, Mianwali, during which 1 correctly picked out Ali Muhammad and Ghulam Hussain accused now present in -Court as to of the three of aforesaid assailants, in the commission of the aforesaid dacoity and murder of Mubarik Ali deceased. Ali Muhammad accused during this occurrence. (The witness identified the aforesaid accused by pointing towards them and without naming them). On 17th August, 1974 1 was joined by the police in the investigation of the case, during which 1 identified leather bags P.11 and P.12 as the same which contained money and bag Exh. P.6 which contained the relevant
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documents of which we were robbed during this occurrence. Pencils P.13/1-3 and P.14/1-2, a piece of glass P.15, a coin of five Paisa P.47, one damper P.16, copy P.17, piece of wood P.46 seven rubber rings P.18/1-7 were amongst many other articles contained in bag P.6 at the the of the occurrence. The aforesaid articles were shown to me by the police and I correctly identified them as such, currency notes Exhs., P.1/1-100, P.2/100, P.3/1-100, P.4, P.7,.P.8, P.9, P.10, in the form of bundles they are same of which we were deprived of by the accused during this occurrence." Evidence was led at the trial of the eye-witness account mentioned above in the depositions of Abdul Aziz, Noor Muhammad and Khuda Bakhsh, P.Ws. And the identification by them of the appellants in a prade held by a learned Magistrate as also the account of conspiracy parathion and its execution given by to approvers namely, Siraj and Ghulam Raza, the former was driving the ill-fated micro bus le the latter was driving the taxi car in which the culprits traveled to the point where the dacoity was committed. Evidence was also from the Mills and the Bank to show that the money recovered during the investigation from different persons including the accused and the approvers was in fact drawn from the Muslim Commercial Bank---one official each from the Bank and the Mills deposed about it. The recoveries included currency notes of Rs.10,000 from Ali Muhammad, Rs.20,000 from Muhammad Hanif and Rs.24,000 from Ghulam Hussain appellant. Some of them were tied in bundles in the original wrapping. These bundles bore the marks by the Muslim Commercial Bank as deposed by its official. A car belonging to Dost Muhammad, P.W which was being plied as taxi by Ghulam Raza approver and was used by the culprits in the occurrence was also recovered during the investigation. Evidence was led with regard to all these recoveries. In addition thereto a bandolier containing some cartridges, the bag P.6 containing articles P.13 to 18 and P.46 and a.303 rifle were also recovered from Muhajir Branch Canal during the investigation at the instance of the accused. They were alleged to have been thrown away by the culprits after the dacoity. 4. The statements of the to approvers as also the eye-witnesses were believed by both the learned Courts below. The evidence regarding recovery of the currency notes, the conduct of the accused and the recovery of the car was also believed. Evidence was led regarding recovery of currency notes from extra judicial confession by, Muhammad Amin co-accused of the appellants who, however, was acquitted. The learned trial Judge while convicting Ali Muhammad, and Muhammad Hanif and Ghulam Hussain for offences under section 396 read with 149, awarded sentence of death to Ali Muhammad and life imprisonment to the other to. They were also sentenced under section 148, P.P.C. But no separate sentence was awarded under section 120-8. P.P.C. These all have been upheld by the High Court in appeal. It needs to be mentioned here that to accused, namely, Aslam and Yasin were absconding during the trial of the present appellants. 5. The conspiracy evidence contained in the deposition of Ghulam Raza and Siraj Din approvers was accepted - as providing all the links and transactions culminating in the at of dacoity. It will be of advantage to reproduce the comprehensive story given by one of the approvers namely, Siraj Din. It reads as follows:- "I am Matriculate. I was employed as a driver in Adamjee Sugar Mills in the year 1966. 1 was driving Micro Bus MI-1329 since about 4-5 years before the present occurrence. The Cashiers of the mills had always been going to disburse money to the sugarcane growers in the Ilaqa by my bus No. M1- 1329. Muhammad Aslam absconder and Muhammad Amin accused were employed in my mills in the Account Branch. Muhammad Hanif accused was also employed in the mills in the Accounts Branch, but his services were terminated some the before this occurrence because of his involvement in an embezzlement had friendly relations with Muhammad Aslam absconder and Muhammad Amin accused since prior to the present occurrence. In the year 1972 Muhammad Aslam absconder was incharge of the Workers' Canteen in the mills premises. I used to visit the Canteen often. About to months before the present occurrence Muhammad Aslam absconder
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approached me' in the canteen and after taking me aside told me that as my pay is to meagre to make both ends meet and that he would tell me advice by which I may become a millionaire. I was pleased with his suggestion and out of this curiosity, I developed more friendly relations with Muhammad Aslam absconder. Few days thereafter 1 went to take tea in the canteens and saw Muhammad Aslam absconder and Muhammad Amin accused sitting together in the canteen. They called me to their table. Muhammad Aslam absconder told me there that they intended to commit dacoity on my bus when the Cashier of the mills would use it for payment of money to the growers in the Ilaqa. I endorsed their scheme. Muhammad Aslam absconder then told me that he would go to Mianwali and after arranging persons for committing the dacoity he would disclose the plan of the dacoity to me. About 15/16 days before the present occurrence Muhammad Aslam absconder and Muhammad Amin accused contacted me at my house at Darya Khan during night and told me that they would finalize the plan of dacoity in Qayyum building, Mianwali on the following day and that I should join them there. Aslam absconder further told me that he had already arranged persons for this purpose and I should confront them beforehand for this purpose so as to have each others confidence. On the following day I and Muhammad Amin accused came to Mianwali during night lime and went to the ground of the Government High School where we were asked to reach. Muhammad Aslam absconder and Yasin absconder, Muhammad Hanif, Ali Muhammad and Ghulam Hussain accused were already present in that ground. From the ground. Muhammad Aslam absconder took us to the Qayyum building. Muhammad Aslam absconder arranged to rooms in Qayyum building and whereas names of Ali Muhammad, Ghulam Hussain and Muhammad Hanif accused were correctly written in the register of the building by Ali Muhammad accused, all the remaining persons gave fictitious names, which all were written in the register by Muhammad Aslam absconder. Ali Muhammad accused Ghulam Hussain and Muhammad Amin accused had decided to mention their names correctly in the register of Qayyum building because of their enmity with other persons in Mianwali town. The entries at serial No. 39 in the register of Qayyum building were made by Muhammad Aslam absconder while the entries at serial No. 40 in the said register were made by Ali Muhammad accused. The said register of Qayyum building is Exh. P.17/A. It was decided in Qayyum building that Muhammad Hanif accused and Yasin absconder would go to Sargodha and hire a Taxi for this purpose, whereas Ali Muhammad, Ghulam Hussain, Muhammad Hanif accused and Ghulam Yasin absconder would arrange for the weapons. It was further decided that the dacoity would be committed 3 or 4 furlongs ahead of Chandni Chowk on Chandni Chowk-Kallurkot Road and further that as soon as my bus on reaching there was fired at I should stop the same. On the following morning I and Muhammad Amin accused returned to Darya Khan. On 1st March, 1973 Muhammad Aslam absconder and Muhammad Amin accused contacted me at my house in the night and told me that the dacoity would be committed at the proposed place on the following day at about 11-45 a. m. They further informed me that they had already procured a case and all other necessary arrangements had been finalized. On 2nd March, 1973 1 resumed my Juty inside the mills premises at 7-30 a.m. On the same day at 9-15 a.m. Abdul Aziz, Nur Muhammad Cashier, Abdul Hamid Head Cashier, Kifayat Hussain Shah Clerk, Ghulam Shabbir Clerk, Khuda Bakhsh Watchman, P.Ws and Mubarik Ali Watchman, deceased left the Mills premises for Muslim Commercial Bank, Darya Khan by my micro-bus MI-1329. After getting the cash from the bank the cashier placed the money in to attach-cases and to bags and whereas they put the attach-cases in the dickey of the bus. Abdul Aziz and Nur Muhammad, P.Ws. Carried their bags in their hands, while, travelling in my bus from the bank to the mills premises and then onward to Kallurkot. From the bank we returned to the mills premises and after dropping Abdul Hamid P.W. There we all the remaining persons proceeded towards Kallurkot by the same bus. Besides the bags of money carried by Abdul Aziz and Nur Muhammad P.Ws. One more bag was
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lying in the bus which contained some papers. Bags, Exhs. P.6, P.11 and P.12 are the same three bags. At about 11-45 a.m. Our bus reached the proposed place of dacoity on Kallurkot-Chandni Chowk Road 3-4 furlongs ahead of Chandni Chowk. On reaching the spot I spotted Ali Muhammad and Ghulam Hussain accused armed with .12 bore guns standing on the right side of the road and Ghulam Yasin absconder armed with a gilti rifle standing on the left side of the road. I also spotted a Toyota car parked on the canal-bank of the nearby Rajbah as well as Muhammad Hanif accused armed with a gun and Ghulam Raza approver standing in the nearby field. As soon as my bus approached the spot, Ali Muhammad, Ghulam Hussain accused and Ghulam Yasin absconder opened fire. With the firing I applied brakes to my bus as per the programme, and stopped it. As soon as the bus stopped Ali Muhammad accused advanced closer to the bus and after breaking the rear-right window-pane of the bus he fired at Mubarik Ali deceased hitting on his back. Ghulam Hussain accused and Ghulam Yasin absconder had also come closer to the bus alongwith Ali Muhammad. After firing at Mubarik Ali deceased Ali Muhammad, Ghulam Hussain accused and Ghulam Yasin approver asked all the occupants of the bus to get down and run-away. I alighted from the bus from the driver's side whereas the remaining occupants of the bus except Mubarik Ali deceased alighted from the main door and then we all ran on our left side. During our flight l looked back and saw all the three aforesaid assailants running towards the said parked car carrying one hand-bag each in their hands. After a short while we heard starting noise of the said vehicle and thinking that perhaps the assailants had run away we returned to the spot. On reaching the spot we found Mubarik Ali deceased tying dead. All the three bags, P.6, P.11 and P.12 were missing from the micro-bus when we returned to the spot and examined the same. The Cashier checked up the attach cases lying in the dickey and found them lying intact. After a shortwhile Aziz Nur P.W. Proceeded to Kallurkot to report this occurrence at the police station. 7/8 days after the occurrence Muhammad Aslam absconder brought my share of the looted money amounting to Rs.31,600 to my house and delivered it to me. Muhammad Aslam absconder told me that I as well as he himself', Ali Muhammad, Ghulam Hussain, Ghulam Yasin and Muhammad Hanif had got Rs.31,600 each to their share whereas Ghulam Raza approver and Muhammad Amin accused had got 6000 each of their shares. I did not take the money on that occasion and told Muhammad Aslam absconder that since the police is thoroughly searching the vehicles it would not be safe for me to take the money and I further told him that he should pass on the money to me somewhere in Sargodha on some proper occasion. Muhammad Aslam absconder thereupon told me that he would visit Kalyar Hotel in Sgrgodha Town 20/25 days thereafter and that I should contact him there to receive my share. 1 agreed to this suggestion. I visited Sargodha and reached Kalyar Hotel, 20/25 days thereafter on the appointed day and met Muhammad Aslam absconder there, where absconder had passed on the money to me contained in bag P.11. After receiving the money from Muhammad Aslam absconder, I took it to the house of my in-laws in village Fateh Garh, Tehsil Bhalwal and kept it alongwith the bag P.11 in one of my boxes there. Few days thereafter my marriage was solemnized as prior to it I was only engaged, during which I spent 7,500. 1 was arrested by the police in this case about 11/11 years after the occurrence and while in police custody I led the police to the house of my in-laws in village Fateh Garh and got recovered Rs.24,050 alongwith bag P.11 from inside a box. The money which I got recovered is in notes Exh. P.1/1-100, P.2/1-100, P.3/1-100 and P.4/1-81. The money which I got recovered was in bundles bearing the stamp of the bank. It was the same money which was looted during the course of this occurrence. Later on during the investigation of this case I offered to become an approver of my own and made the statement, Exh. P. H. Before a Magistrate and signed it in token of its correctness after it was read over to me." 6. Leave to appeal was granted to re-examine the evidence with particular reference to the defence plea that the appellants had been falsely implicated by the police--it had grudge against
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them: that Abdul Hamid Cashier of the Mills had not been believed in so far as the affixing of the Mills stamp do the bundles, of the currency notes is concerned nor' the recovery of the so-called incriminating articles from the right bank of the canal was accepted; and further that it could not be accepted in .The normal course of human conduct that the Accused would have kept the currency notes in their original wrappings particularly if they bore the stamp/markings of the bank. And thus all this evidence, it was argued, was fabrication. Besides criticizing the conduct and depositions of all the eye-witnesses which obviously would in the circumstances of this case also include the to approvers, the evidence regarding identification parade in which all the eye- witnesses identified the appellants was also criticised as not inspiring confidence. The point being that neither the recoveries nor the identification parade were of such nature so as to furnish necessary corroboration of the approver's testimony in this case. 7. The main arguments on similar lines as noted in the leave granting order, were addressed by the learned counsel in Criminal Appeal No. 100 of 1981 who at the end also raised an alternative plea for lesser sentence in so far as Ali Muhammad appellant is concerned. The learned counsel in Criminal Appeal No. 101 of 1981 adopted the main arguments and made a short submission of his own also. 8. Keeping in view the sum and substance of very lengthy arguments addressed by the learned counsel for Ali Muhammad and Muhammad Haneef if summarised as done by himself, they are as follows: 9. That the approvers did not successfully pass the twin test of reliability and corroboration in material particulars laid down in Dr. Muhammad Bashir v. The State PLD 1971 SC 447; that the material particulars in the circumstances of this case, would also include the participation and identification of each appellant which is lacking, at least quo Muhammad Haneef; that it was unusual as human beings for both the approvers to have volunteered (without any cogent reason) their confessions (so-called) before the police; that both the architects of the prosecution: case, namely, Muhammad Nawaz Inspector and Khyzer Hayat S.I. Were inimical to the accused; that the evidence regarding conspiracy is flimsy in that it was allegedly hatched at public places like Mill's canteen and Qayyum (building) hotel; that no nexus was established between Ghulam Raza approver and the car allegedly used in the crime and Doat Muhammad P.W. a police Foot- Constable who claimed to be the owner of the car, failed to substantiate it; that Siraj Din approver was examined immediately after the lodging of the F.I.R. As also thereafter on short intervals but according to his own admissions he did not disclose the truth for more than a year; that the role of the to approvers as compared to that of the other alleged co-conspirators is of insignificant character, they did not tar themselves with the same brush as they used against the accused and Ghulam Raza was prepared as approver and supplied by a real brother-in-law of Muhammad Nawaz Investigating Officer; that the identification Wilde did not supply adequate corroboration to the approver's testimony as it was held after a year when the witnesses could not have remembered the features of the culprits and the rule regarding mixing at least eight/nine persons with each suspect was not observed; that none of the witnesses stated then that the persons whom they had identified, committed dacoity and they failed also to particularize the suspect who killed the watchman--description in the F.I.R. Was so loose that it would fit in with any person who would ultimately be arranged before the Court for trial (reliance regarding identification was placed on Muhammad Anwar and others v. The State PLD 1966 Lah. 643; Machia and 2 others v . The State PLD 1976 SC 695; and Lal Pasand v. The State PLD 1981 SC 142, that the recovery of the bundles of the currency notes which have no other identifying feature except the bank's and the Mill's marking, is no corroboration at all because such like bundles could be easily got prepared from the bank and Mills employees concerned particularly when the witness regarding markings by the Mills was not relied upon; that Muhammad Haneef appellant not having been put in the identification the mere recovery of the bundles of currency notes was of no value as corroboration,
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particularly when there is discrepancy about his role at the spot as to whether he actively indulged in violence or remained seated in the taxi car; and lastly, that in the F.I.R. There is no mention as to whose fire shot amongst the to culprits who had come from the right side of the bus, proved effective for killing the watchman and that being so if the other to appellants have been given benefit of lack of certainty (as to who fired the fatal shot), on the same reasoning it could not be denied to Ali Muhammad particularly when, he…
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