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Petitioner: The STATE VS Respondent: MUKHTAR AHMAD and 5 others
Court Name: Lahore High Court Judge(s): Aalia Neelum, Mazhar Iqbal Sidhu Title: The STATE vs MUKHTAR AHMAD and 5 others Case No.: Criminal Appeal No,1764 of 2003 Date of Judgment:2014-10-14 Reported As: 2015 MLD 1840 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' AALIA NEELUM, J.---The State represented by the learned Law Officer by way of instant appeal filed under section 417, Cr.P.C., has challenged the acquittal of Mukhtar Ahmad, Majid alias Majju, Razzaq, Muhammad Siddique alias Laddu, Kherat alias Khertu and Mushtaq Ahmad-respondents Nos.1 to 6 recorded by the learned Addl. Sessions Judge, Depalpur, District Okara vide judgment dated 29-3- 2003 in case FIR No,30/2000 dated 16-1-2000, offence under sections 302, 336, 324, 460, 395, 148, 149, P.P.C., registered at Police Station Hujra Shah Muqeem, District Okara. 2. Briefly, the facts narrated in the crime report are that during the night of 15/16-1-2000 at about midnight, four unknown persons while armed with .12 bore guns and one rifle, trespassed into the courtyard of the house of Muhammad Nawaz, complainant (P.W.1) while six others while armed with deadly weapons remained outside Haveli of the complainant. All the accused persons started firing; Allah Ditta, Bhanja' of the complainant received fire which landed on right side of his neck. In the same occurrence, other family members, namely, Muhammad Nawaz-complainant, his son Muhammad Sadiq, Allah Rakha son of Allah Ditta, Irshad son of Khushi Muhammad, Safia Bibi daughter of Khushi Muhammad, Kaneez Bibi widow of Muhammad Ahmed and Mst.Rano Bibi wife of Muhammad Sadiq also received injuries due to firing of the assailants. On hearing hue and cry, the people came there and the accused persons decamped while extending threats. During this occurrence, the accused persons also took away gun .12-bore, rifle .44-bore along with gold ornaments weighing 80 Tolas and cash amount of Rs,1,10,000. Allah Ditta succumbed to his injuries at the spot. The police arrived there and recorded statement of the complainant Exh.PA. After investigation of the case, the case was sent for trial along with other accused persons, namely, Nazir alias Najuj, Bashira, Shera and Peeri accused (since proclaimed offender).
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3. On receiving information, Muhammad Hussain, SI//SHO (P.W.17) along with other police officials reached at the spot and reduced into writing statement (Exh.PA) of Muhammad Nawaz, complainant and sent the same to the Police Station through Muhammad Ameer constable for registration of formal FIR (Exh.PA/1). Thereafter the Investigating Officer inspected the dead body of Allah Ditta, deceased, prepared injury statement Ex.PT/A, inquest report Exh.PU, application for postmortem Exh.PV and sent the dead body to the mortuary RHC Hujra Shah Muqeem for postmortem under the escort of Amir Javed and Jahangir constables. Thereafter, the Investigating Officer (P.W.17) prepared rough site plan of the place of occurrence Exh.PW and secured the bloodstained earth of the deceased from the spot vide memo. Exh.PB. The Investigating Officer also took into possession from the spot, 38 empties cartridges P.1/1-38, three empties of .7-MM rifle bullets P.2/1-3 and five live bullets of .7-MM P.2-A/1-5 which were sealed into parcel vide mein. Exh.PC. After postmortem of the deceased, the constable handed over to him last worn clothes of the deceased P.15 to P.18 along with a sealed phial P.19 which were taken into possession vide memo Exh.PT. On the same day, he got medically examined seven injured persons of the complainant party, namely, Muhammad Sadiq, Muhammad Nawaz, Allah Rakha, Muhammad Irshad, Rano Bibi, Kaneez Bibi and Safia Bibi through Zawar Hussain constable and after medico- legal examination of the aforesaid persons, produced before him the carbon copies of MLRs Nos.23/2000 to 30/2000 Exh.PL to Exh.PS respectively. Draftsman handed over him the scaled site plan (Exh.PE) and (Exh.PE/1). On 23-4-2000 accused Mukhtar Ahmed while in police custody in another case FIR No,243/2000 was arrested in this case and sent to judicial lock up for identification parade. During investigation, the Investigating Officer also interrogated Majid alias Maju, Razzaq alias Zaka accused in Central Jail, Sahiwal who were already confined in some other case there. On 27-4-2000 the Investigating Officer summoned above said accused in this case and on the next day the said accused were also sent to judicial lock up in this case. On 2-5-2000 identification parade was held in the jail premises by the learned Judicial Magistrate and due to transfer, on 4- 5-2000 the Investigating Officer handed over the case file to Nasir Mahmood, Inspector/SHO. On 18-5-2000 he again posted as SHO, police station Hujra Shah Muqeem and received file of this case on 29-5-2000 fof investigation. On 9-6-2000 he arrested accused Khairat alias Khairati who led to the recovery of .12-bore double barrel gun P.9 along with five live cartridges P.10/1-5 which were taken into possession vide recovery memo Exh.PH. He also prepared the site plan of place of recovery Exh.PH/1. Khairat alias Khairati accused was also got sent to the judicial lock up for identification parade. On 17-6-2000 Muhammad Siddique alias Laddu accused while in police custody led to the recovery of pistol of .30 bore P.13 along with four live bullets P.14/1-4 which were taken into possession vide memo. Exh.PJ along with finger ring P.11, ear rings P.12/1-2 and prepared site plan of place of recovery Exh.PJ/1. Due to transfer of Muhammad Hussain, SI/Investigating Officer, the investigation was conducted by Agha Nasir Mehmood, Inspector/SHO (P.W.19) on 5-5- 2000. On 6-5-2000 he recorded supplementary statement of the complainant regarding nomination of the said accused and five others, namely, Muhammad Siddique alias Laddu, Khairat alias Khairati, Bashir alias Peeri, Shera son of Waryam and Nazir alias Rajju. On 17-5-2000 Majid alias Majoo led to the recovery of stolen property i.e, Dandi Jhumki P.4, Nath P.5 which were taken into possession vide memo. Exh.PF and Investigating Officer prepared site plan of the place of recovery Exh.PF/1. On the same day, Abdul Razzaq accused led to the recovery of stolen property i.e, Ghani P.6, pair of ear rings P.7/1-2, finger ring P.8 which he took into possession vide memo. Exh.PG and prepared the site plan of place of recovery Exh.PG/1. Once again due to transfer of Investigating Officer (P.W.19), the investigation was entrusted to Muhammad Azam, Inspector/SHO and on 20-10-2000 he arrested Mushtaq Ahmad accused. On 1-11-2000 during investigation said Mushtaq Ahmad accused led to the place of recovery of looted property i.e, pair of gold ear rings P.3/14 and the same was taken into possession vide memo Exh. PD and prepared the site plan of
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place of recovery Exh.PD/1. On 7-2-2000 the Investigating Officer completed the investigation. Mr. Muhammad Riaz ud Din, Judicial Magistrate, Ferozewala, District Sheikhupura (P. W.18) conducted identification parade of accused persons, namely, Razzaq son of Suleman, Mukhtar son of Khan Muhammad and Majid son of Suleman. The complainant Haji Muhammad Nawaz expressed his inability to identify any of the accused, however, Kaneez Bibi (P.W.2) identified Razzaq son of Suleman and Asghar Ali son of Mushtaq as accused persons. Rani Bibi (P.W.3) also identified Mukhtar son of Khan Muhammad, Muhammad Yousaf son of Ghughtas, Majid son of Suleman. Muhammad Sadiq (P.W.4) identified Mukhtar son of Khan Muhammad, Yousaf son of Chughta. The identification parade proceedings consist of six pages which is Exh. PY/1-6 along with certificate Exh.PY/2. Again on 22-5-2000 the identification parade was held in Central Jail, Sahiwal and the prosecution witnesses identified the accused, namely, Muhammad Siddique son of Waryam, Babar Shah and Muhammad Akram son of Manzoor. The identification parade proceedings Exh.PAA/2 along with certificate Exh.PAA/3. On 26-6-2000 the said learned Magistrate (P.W.18) conducted identification parade in the jail and the P.Ws. Identified accused Khairat alias Khairati son of Said Muhammad. Exh.PCC/1-5 is the proceedings along with certificate Exh.PCC/2. 4. Having found the accused (respondents Nos.1 to 6) guilty, the Investigating Officer prepared report under Section 173 of Cr.P.C. And sent the same to the court of competent jurisdiction. The learned trial court on 22-1-2002 formally charge-sheeted the accused (respondents Nos.1 to 6) to which they pleaded not guilty and claimed trial. 5. The prosecution in support of the version, produced twenty (20) witnesses. Ocular account of occurrence in this case has come out from the statements of Haji Muhammad Nawaz (P.W.1), Muhammad Sadiq (P.W.2) and Mst. Kaniz Bibi (P.W.3) whereas Dr. Muhammad Yahya, MO, (P.W.9) had conducted postmortem of deceased Allah Ditta on 16-1-2000 and observed as under:- (1) A firearm entry wound 5 cm x 4.1/2 cm in front and lower part of right side of neck just close to right clatical. Corresponding mark was present. ' Opinion. ' After conducting post mortem examination of the deceased Allah Ditta, the doctor has opined that cause of death in this case was haemorrhagic shock due to injury No,1 which is quite sufficient to cause death in ordinary course of nature. Death was immediate and probable time between death and post mortem was within 24 hours. Exh.PK is carbon copy of postmortem examination along with its sketch along with diagram Exh.PK/1, issued by him and bears his signatures. The statements of remaining prosecution witnesses are formal in nature. 6. On 16-1-2000 at 4.00 a.m. The doctor conducted the medicolegal examination of Muhammad Siddiq son of Haji Muhammad Nawaz, injured and found the following injuries on his body:- (i) Multiple firearm entry wounds in area of .8 cm x .7 cm on left cheek, each wound is measuring 0.4 cm x .4 cm. (ii) Multiple firearm entry wounds in area of 10 cm x .5 cm on forehead, each wound is measuring 0.4 cm x .2 cm. (iii) A contused swelling 6 cm x 5 cm on left eye. Massive subconjuctival haemorrhage present. Patient complaints of loss of vision of left eye, referred to eye specialist for expert opinion. (iv) Multiple firearm entry wounds in area of 8 cm x 6 cm on right side of neck each wound is measuring 0.4 cm. x .4 cm. ' Injury Nos.1 and 4 were kept under observation. The probable duration between injury and examination was within 2 to 4 hours. The injuries were inflicted by a firearm. The injury No,3 was declared as "Itlaf-iSalahiat-i-Udw on 7-11-2000 in view of report from Registrar Eye Department, Ganga Ram Hospiral, Lahore. Exh.PL is the correct carbon copy of MLC No,23/2000. Exh.PL/1 is diagrams showing the death of injuries. Exh.PL/2 is declaration report of MLC No,23.
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7. On the same day, i.e, 16-1-2000 the doctor examined Muhammad Nawaz injured and found the following injuries on his body:-- (i) A fire arm entry wound 1 cm x 0.4 cm on middle part of right ear. (ii) Multiple firearm entry wounds in area of 30 cm x 16 cm in front of right leg each wound measuring .4 cm x .4 cm. Corresponding mark on clothes present. (iii) Multiple firearm entry wound in area of 28 cm x 12 in front of left leg, each wound measuring .4 cm x .4 cm. Corresponding mark on clothes were present. ' Injury Nos.1 to 3 were kept under observation. The probable duration was within 2 to 4 hours. The injuries were inflicted with a firearm. Exh.PM is the correct carbon copy of MLC No,24/2000. Exh.PM/1 is the diagrams showing the seat of injuries. 8: On the same date, i.e, 16-1-2000 the doctor examined Allah Rakha and found the following injuries on his body:-- (i) Two fire arm entry wound in the area of 5 cm x 3 cm on left side of head, each wound is measuring .4 cm x .4 cm. (ii) Multiple firearm entry wound in the area of 45 cm x 12 cm in front of right leg and foot. Each wound was measuring 0.4 cm x 0.4 cm. Corresponding mark on clothes present. ' Injuries Nos.1 and 2 were kept under observations. The probable duration of injury was within 2 to 4 hours. The injuries were inflicted by a firearm. Exh.PN is the correct carbon copy of MLC No,25/2000. Exh.PN/1 is diagrams showing the seat of injuries. Exh.PN/2 is the declaration report. 9. On the same date, i.e, 16-1-2000 the doctor examined Muhammad Irshad and found the following injuries on his body:-- (i) Multiple firearm entry wounds in area of 15 cm x 8 cm on back of left thigh, each wound measuring .4 cm x .4 cm. Corresponding mark on clothes present. (ii) A fire arm entry wound .4 cm x .4 cm on back and upper part of right leg. Corresponding mark on clothes present. ' Injuries Nos.1 and 2 were kept under observation. The probable duration of injury was within 2 to 4 hours. The injuries were inflicted by a firearm. Exh.PP is the correct carbon copy of MLC No,26. Exh.PP/1 is diagrams showing the location of injuries. Exh.PP is declaration report. 10. On the same date, i.e, 16-1-2000 the doctor examined Mst. Rano Bibi and found the following injuries on her body:-- (i) A contused swelling 6 cm x 5 cm on right eye. Massive sub-conjunctival haemorrhage present. Patient complains of loss of vision. Referred to Eye Surgeon DHQ, Okara. (ii) A fire arm entry wound .4 cm x 4 cm on right cheek. Injuries No,1 and 2 were kept under observation. ' The probable duration of injury was within 2 to 4 hours. The injuries were inflicted by blunt. Exh.PQ is the correct carbon copy of MLC No, 27. Injury No, 1 was declared as "Itlaf-i-Salahait-Udw" on 7-11- 2000 in view of report from Registrar Eye Department of Ganga Ram Hospital, Lahore. Exh.PQ/1 is diagrams showing the location of injuries. 11. On the same date, i.e, 16-1-2000 the doctor conducted, the medical examination of Mst. Kaniz Bibi and found the following injuries on her body:-- (i) An abrasion 3 cm x 2 cm on chin. (ii) Multiple abrasion in area of 12 cm x 8 cm on back of right hand. (iii) Multiple abrasion in area of 18 cm x 14 cm on lower part of left forearm. (iv) Multiple contusion on back and both sides of chest. Injury Nos.1, 2, 3 and 4 `Ghair Jaifa Damiyah', the probable duration of injuries was within 2 to 4 hours. The injuries were inflicted by a blunt weapon. Exh.PR is the correct carbon copy of MLC No,28/2000. Exh.PR/1 is diagrams showing the seat of injuries.
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12. On the same date, i.e, 16-1-2000 the doctor examined Mst.Safia Bibi and found the following injuries on her body:-- (i) A lacerated wound 10 cm x 4 cm x muscle deep on back from a distance more than 6 feet. Injury No,1 was kept under observation which was declared as Ghair Jaifa Hashma on 27-1-2000. The probable duration of injury was within 2 to 4 hours. The injuries were inflicted by blunt weapon. Exh.PS is the correct carbon copy of MLC No,29. Exh.PS/1 is diagrams showing the seat of injuries. Exh.PS/2 is the declaration report. 13. On 19-3-2003, the learned Additional Public Prosecutor closed evidence of the prosecution while tendering report of the Chemical Examiner as (Exh.PDD), report of Serologist (Exh.PEE) and report of Forensic Science Laboratory (Exh.PFF). 14. The accused (respondents Nos.1 to 6) were also examined in terms of section 342 of Cr.P.C., wherein they opted not to appear as their own witnesses in disproof of the allegations levelled against them in the prosecution version, nor they opted to lead evidence in their defence. In response to the question why this case against them and why the P.Ws. Deposed against them, Mukhtar Ahmad accused (respondent No,1) made the following deposition:-- "The P. Ws. Of this case are close relatives inter se and they have gave false statements in the court on the asking and under the pressure of the Police as the police wanted to show their efficiency to arrest the persons' in this case in order to please their high-ups. The P. Ws. Have made dishonest improvements over their previous statements but all the P. Ws. Have failed to connect me with the alleged occurrence/offence. This case has been made against me by the police just to show their efficiency and to please the high officers of the police." 15. Similarly, in response to the question why this case against him and why the P.Ws. Deposed against him, Mushtaq Ahmad son of Muhammad Yaqoob-accused (respondent No,6) made the following deposition:-- "The case was not registered against me. Only supplementary statement was recorded on the inducement of Abbas Haider and Walayat Shah against me. I was challaned by the 1.0. Under sections 395/109, P.P.C. Without any justification as no evidence regarding the factum of abetment was available to the prosecution during investigation. The P. Ws. Are relative of the complainant party and due to relationship they have deposed against me with the connivance with the I.O. To strengthen the prosecution case." 16. Likewise, Majid alias Majju (respondent No,2), Razzaq '(respondent No,3), Muhammad Siddique alias Laddu (respondent No,4) and Kherat alias Kheratu (respondent No,5) have relied upon the statement given by Mukhtar Ahmad, accused (respondent No,1). 17. The learned trial court after evaluating the evidence available on record and in the light of arguments advanced from both sides, found that the prosecution has miserably failed to prove the allegations levelled against the accused (respondents Nos.1 to 6), resulting into acquittal of the accused (respondent Nos.1 to 6). 18. The appeal pertains to the year 2003 and the same was admitted to regular hearing on 7-7- 2004 but no one is in attendance on behalf of respondents Nos.1 to 6 despite of issuance of bailable warrants of arrest. As this Court has gone through the docket as per acknowledgment for disposal of the old cases, therefore, the case cannot be left open, as such the arguments advanced by the learned Law Officer, present in Court, have been heard and perused the available record minutely annexed with this appeal. 19. The occurrence in the instant case had taken place on 16-1-2000 at 1.00 a.m. (night), on receiving information about the incident, Muhammad Hussain SI (P.W.17) along with another police officials reached at the spot at 03.00 a.m. And got recorded statement (Exh.PA) of the complainant-Haji Muhammad Nawaz (P.W.1) and sent the same to the police station Hujra Shah Muqeem through Muhammad Ameer, constable for formal registration of First Information Report,
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while inter se distance between the place of occurrence and police station is 3 kilo-meters. However, neither plausible explanation has been rendered by the prosecution for delay in reporting the matter to the police nor name of informer was disclosed by the prosecution. Further that, in the first instance, the FIR had been lodged against ten (10) unknown accused persons. It is also noticed that the incident had taken place inside the house of the complainant at 12.00 a.m. (midnight) and no source of light was mentioned in the statement (Exh.PA) of the complaint. It is noted by us that First Information Report is not available on the record. As per statement (Exh.PA) four assailants were inside the house whereas six assailants were outside the house of the complainant, who were making firing and during the incident, Bhanja' of the complainant, namely, Allah Ditta arrived in the courtyard whereas an unknown accused fired at him which landed on right side of his neck and chest. He fell down after sustaining injuries upon which other family members also come to nearby Allah Ditta. Due to firing of the assailants, the complainant (P.W.1), complainant's son Muhammad Sadiq (P.W.2), Allah Rakha son of Allah Ditta (not produced), Irshad son of Khushi Muhammad (not produced), Safia Bibi daughter of Khushi Muhammad (not produced), Kaneez Bibi widow of Muhammad Ahmad (P.W.3) and Mst. Rano Bibi wife of Muhammad Sadiq (not produced) received injuries during the incident. 'The assailants also robbed away gun .12-bore of Muhammad Ahmad, rifle .44-bore of Allah Ditta, gold ornaments weighing 80 Tolas and cash amount of Rs 1,10,000 and thereafter while extending threats decamped from the spot. The complainant (P.W.1) had not nominated anyone in his statement (Exh.PA). Thereafter, on 20-1-2000 the complainant through his supplementary statement (Exh.DA) nominated Noor Ahmed and Muhammad Rafique alias Papu. Haji Muhammad Nawaz (P.W.1) deposed during cross-examination that:-- "My supplementary statement Exh.DA was not recorded by the police during investigation of this case after 4 days of the occurrence. It is incorrect that I am suppressing this fact intentionally and in fact my supplementary statement was recorded by the SI/SHO, Police Station Hujra Shah Muqeem on 20-1-2000. I had not stated in the Exh.DA that Noor Ahmed son of Allah Ditta resident of Mauza Lalay-Wala and Muhammad Raffique alias Pappu son of Khushi Muhammad both Dogar by caste, resident of Police Station Saddar Pattoki along with some unknown persons had murdered Allah Ditta and injured other P. Ws. On the basis of enmity." ' Thereafter on 6-5-2000 the complainant (P.W.1) appeared before Agha Nasir Mehmood Inspector/SHO (P. W.19) and got recorded his another supplementary statement. Agha Nasir Mehmood, Inspector/SHO (P. W.19) deposed as under:- "On 6-5-2000 the complainant of this case approached to me and got recorded his supplementary statement before me regarding the nomination of the said accused and five others, namely, Muhammad Siddique alias Laddu, Khairat alias Khairatu, Bashir alias Peeri, Shera son of Waryam and Nazir alias Rajju." 20. In the background of the above said facts, three identification parades were held in the jail and the witnesses were asked to identify the culprits from the group of persons in which suspects as well as other persons were mixed. The details of identification parades conducted by Muhammad Riaz-ud-Din, Judicial Magistrate (P.W.18) at Central Jail, Sahiwal are as under:- (i) On 2-5-2000 accused Razzaq, Mukhtar and Majid were put to identification parade. The complainant (P.W.1) had not identified any accused, Mst. Kaneez Bibi (P. W.3) identified Razzaq (respondent No,3) and Asghar Ali as accused. Mst. Rani Bibi (not produced) identified Mukhtar accused. Muhammad Sadiq (P. W. 2) identified Mukhtar (respondent No,1) and Yousaf accused. The proceedings of identification were recorded by P.W.18 are Exh.P4. (ii) On 22-5-2000, learned Judicial Magistrate (P.W.18) conducted identification parade. Prosecution witnesses Muhammad Nawaz (P.W.1), Muhammad Sadiq (P. W. 2), Mst. Kaneez Bibi (P. W. 3) and Mst. Rano Bibi (not produced) identified accused Muhammad Siddique (respondent No,4). The proceedings of identification parade recorded by P. W.18 are as Exh.PAA.
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(iii) On 26-6-2000, learned Judicial Magistrate (P. W.18) conducted identification parade in Central Jail, Sahiwal. During the proceedings, Haji Muhammad Nawaz (P. W.1) and Mst. Kaneez Bibi (P. W. 3) identified the accused Kherat alias Kheratu (respondent No,5). ' In the above proceedings, Mukhtar Ahmad (respondent No,1), Razzaq (respondent No,3), Muhammad Siddique (respondent No,4) and Kherat alias Kheratu (respondent No,5) were allegedly identified by the prosecution witnesses. First of all we will consider the veracity of identification parade of Mukhtar Ahmad (respondent No,1) and Razzaq (respondent no.3), Investigating Officer Muhammad Hussain, SI (P.W.17) deposed that:-- "On 23-4-2000 accused Mukhtar Ahmed while in police custody in another case FIR No,243/2000, was also arrested in this case and sent to judicial lock up for identification parade. During the investigation, I also interrogated Majid alias Maju, Razzaq alias Zaku accused, present in Court, in the premises of Central Jail, Sahiwal." 21. It is an admitted fact that the Investigating Officer prior to identification parade interrogated accused persons, namely, Mukhtar Ahmed, Majid and Razzaq who were confined in Central Jail, Sahiwal on 23-4-2000. Mukhtar Ahmed was summoned in this case on 27-4-2000 and on next day said accused were sent to the judicial lock up in this case. On 2-5-2000 identification parade was conducted with delay of six days after arrest of the accused. The above named accused remained in the police station before identification parade. 22. Muhammad Siddique (respondent No,4) raised objection before identification parade that on 20-5-2000 he was informed by the Jail authorities that some are coming to see him at meeting place on which he went there but no one known to him was present there except two or three unknown persons who asked about name and other particulars from him. It is also noticed that prosecution witnesses were produced by Karam Ellahi, SI as reflected from Exh.PAA. Apart from this the application for identification parade (Exh.P2) reveals that same was dated 17-5-2000 wherein it is mentioned that accused (respondent No,4 Siddique) was confined in judicial lock up for 14 days in the…
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