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Petitioner: HABIBUR REHMAN and others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Mukhtar Ahmed Junejo, Muhammad Aslam Arain Title: HABIBUR REHMAN and others vs THE STATE Case No.:Criminal Appeals Nos.185, 189, 190, 193 of 1990 and Criminal Revisions
JUDGMENT
Reported As: 1996 P Cr. L J 870 Result: Appeals accepted Judgment JUDGMENT ' MUHAMMAD ASLAM ARAIN, J.--- This judgment would dispose of Criminal Appeals Nos.185 of 1990 filed by appellant Mir Ajab Khan, No,189 of 1990 filed by appellant Muhammad Akber, No,190 of 1990 filed by appellants Rustam Khan and Hussain Khan, No,193 of 1990 filed by appellants Habibur Rehman and Zabit Khan and Criminal Revisions Nos.95 of 1990 and No,28 of 1991 filed by Mir Hassan. These matters have arisen out of the judgment delivered by the Sessions Judge, Karachi-West on 10-11-1990 in Sessions Case No,613 of 1988 (old No,4486 of 1976) which was outcome of F.I.R. 91 of 1974 of Police Station Jackson, Karachi. 2. According to the prosecution, on 6-9-1974 at about 1-30 p.m. Appellant Habibur Rehman, who was driving Jeep No,KAK-7626 arrived at Qadri Hotel, Kemari, Karachi carrying in his jeep appellants Zabit Khan, Rustam Khan, Muhammad Akbar, Hussain Khan and acquitted accused Zia Abbas and one Tariq Saeed. Appellant Mir Ajab Khan was following the said jeep by driving a scooter. At that time P.W. Fazal Qayoom, deceased Abdul Hassan and deceased Noor Hassan, were present outside the hotel which belonged to Mir Hassan. Complainant Bukhtiar Khan was present at a Ration Shop situated on the ground floor of Khalifa Manzil at a distance of 5/6 paces and a road from the hotel. On reaching said hotel, Zia Abbas and the appellants got down from their vehicles. Zia Abbas told his companions to take advantage of the opportunity and finish the enemies. At instance of Zia Abbas, Habibur Rehman fired his gun which hit Noor Hassan, who received injury over his eye. Thereafter Rustam Khan fired his revolver which hit Abdul Hassan. Zabit Khan fired his revolver which caused injuries to Fazal Qayoom on his buttock. Thereafter the assailants fired guns, rifles and pistols at Abdul Hassan, Noor Hassan and Fazal Qayoom so as to kill them. Nor Hassan
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succumbed to his injuries at the spot. Abdul Hassan and Fazal Qayoom were seriously injured and they fell down at the Wardat. The incident was witnessed by P. Ws. Muhammad Nawaz, Mansoor and others. On seeing from a ration shop the incident in which Habibur Rehman, Rustam and Zabit Khan fired at Noor Hassan, Abdul Hassan and Fazal Qayoom, respectively, and observing death of Noor Hassan at the spot after receipt of gun shot fired by Habibur Rehman, P.W. Bakhtiar Khark.Rushed to Police Station Jackson, where he lodged F.I.R. On the same day at 1-45 p.m. Motive for the incident as per the F.I.R. Was old enmity. Firing by the assailants was motivated to kill Noor Hassan, Abdul Hassan and Fazal Qayoom, as added in the F.I.R. 3. After recording F.I.R. Of Bakhtiar Khan, Inspector Akhtar Ahmed Siddiqui of Police Station Jackson took over the investigation. He proceeded to the Wardat, where he saw two empty bullets, one used cartridge of .12 bore, and one empty bullet of a pistol which were secured and sealed besides the bloodstained earth. Inspector Akhtar Ahmed visited Civil Hospital, where he examined Fazal Qayoom while Abdul Hassan .Waecertified by the doctors to be unable to nariate the. Facts. The Inspector prepared memo. And inquest report of the -dead body of Noor Hassan lying in the hospital. The post-mortem examination was conducted by Mr. Abdul Hadi, Police Surgeon, Karachi. On return to the police station Inspector Akhtar received information that injured Abdul Hassan had died. Before his death, injured Abdul Hassan was examined by Dr. Abdul Muqeet, Casualty Medical Officer. After death of Abdul Hassan, his dead body was taken by F.C. Khadim Hussain to Dr. Abdul Hadi Khan for autopsy. Dr. Abdul Hadi did autopsy on the dead body of Abdul Hassan. Injured Fazal Qayoom was examined by Dr. Abdul Muqeet and operated upon by Mr. Rahim Vohra who removed from his body a bullet. Inspector Akhtar Ahmed Siddiqui arrested appellants Habibur Rehman, Rustam Khan, Zabit Khan, Hussain Khan and Muhammad Akbar on 7-9-1974. He secured Jeep No,KAK-7626 which took the assailants to the Wardat. Habibur Rehman took police to his house and produced from there a shot-gun having emitting small and four cartridges. Zabit Khan led police to his house and produced from there one revolver having emitting small, and .12 live cartridges which were secured by police under a Mashirnama. Hussain Khan led police to his house and produced from there a revolver having emitting small and 10 lives cartridges. Appellant Rustam Khan led police to his house and produced from there one pistol, a shot-gun and two live cartridges which were secured by the S.H.O. The shot-gun was said to be belonging to Habibur Rehman. The recovered weapons were licensed. ' Under a judgment, dated 26-1-1983 reported in PLD 1983 SC 286; Honourable Supreme Court of Pakistan accepted the two appeals, set aside the impugned judgment and remanded the case for fresh trial by a Judge other than the Judge who decided the case. It was argued before the Honourable Supreme Court that innocent police statements were put to the witnesses, in a wrong manner, without proper confrontations and the. Investigating Officer's statement was recorded and used in an illegal manner and that there were several instances of misreading of record and evidence. While remanding the case the Supreme Court of Pakistan observed in the case that it was painful to see very close relations pitched against each other and that both the sides seemed highly influential parties. The Supreme Court of Pakistan desired fresh trial of the persons who were accused in the case except Tariq Saeed. 7. After remand, a fresh trial took place against the appellants and Zia Abbas. A fresh charge was framed against them on 15-8-1983 by the then learned Sessions Judge, Karachi for the offences punishable under sections 148, P.P.C., 302/149, P.P.C. And 307/149, P.P.C. All the appellants as well as Zia Abbas pleaded not guilty to the charge. 8. Prosecution examined complainant Bakhtiar Khan Exh.115 and P.Ws.-- Fazal Qayoom Exh.24, Haji Sher Hassan Exh.35, Mir Hassan Exh.38, Abdul Qadir Exh.75, Akbar Ali Exh.75, Fazal Qadir Exh.81, Muneer Muhammad Asam Exh.96, Nasir Khan Exh.108, Dr. Abdul Hadi Exh.112,
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Muhammad Nawaz Exh.139, Dr. Abdul Muqeet Exh.141, Muhammad Bashir Exh.146, Dr. Abdul Rahim Bohra Exh.147, Khadim Hussain Exh.162, Mukhtar Ahmed Exh.164 and Akhtar Siddiqui Exh.174. Prosecution was closed under statement Exh.197. 9. The trial Court examined Muhammad Nazir Exh.18, Muhammad Suleman Exh.22, Zaheer Ahmed Exh.148, Syed Alamdar Hussain Exh.163 and Muhammad Lateef Exh.186 as Court-witnesses. 10. In their statements Exh.198, Exh.199, Exh.200, Exh.201, Exh.202, Exh.203 and Exh.204, the appellants and co-accused Zia Abbas denied the prosecution allegations. In respect of the prosecution witnesses, the appellants said that P.Ws. Muhammad Nawaz and Azam were servants of P.W. Mir Hassan who was related to other witnesses. They alleged that P.W. Mir Hassan had produced in Court a fictitious person namely Amir Ahmad as Munir. It was added that the witnesses had deposed falsely at instance of P.W. Mir Hassan. Habibur Rehman in his statement Exh.198 added that jeep No,KAK-7626 was not involved in any incident and an application for its restoration was moved by his brother Azimur Rehman. Habibur Rehman added that P.W. Mir Hassan after purchasing Dubash Building vested Rustam and his brother Younus to vacate a shop in said building. Habibur Rehman claimed to have supported Younus and Rustam against Mir Hassan. Mir Hassan was said to haVe obtained an ex parte order of ejectment, after implicating Habibur Rehman in that case. Rustam Khan in his statement Exh.199 stated that Habibur Rehman was his cousin and that he was carrying hotel business without any rivalry with the complainant party. In respect of the day of incident viz. 6-9-1974, Rustam Khan stated that on said date there was lot of rush of people as it was Defence Day, and all the Naval Ships were open to public and that on the same day Habibur Rehman was having Qur'an Khawani on the death anniversary of his father. He denied if there were provocative speeches over loudspeakers by accused Habibur Rehman, Zia Abbas and Tariq Saeed against P.W. Mir Hassan and deceased Noor Hassan, Abdul Hassan and injured Fazal Qayoom. Rustam added that he was falsely implicated because he refused to vacate certain premises in Dubash Building. Appellant Zabit Khan in his statement Exh.200 adopted the statement of Rustam Khan, his brother. Appellant Hussain Khan in his statement Exh.201 added that he was cousin and sister's husband of Rustam. That he was transporter having no business rivalry with the complainant party. Hussain Khan also stated that on 6-9-1974 it was Friday but there was rush of people and Habibur Rehman was having death anniversary of his father. He did not deny living in same compound with co-appellants. Hussain Khan denied recovery of shotgun and four cartridges by police at his instance on 7-9-1974. Hussain Khan adopted statement of Rustam. He pleaded false implication due to being related to Rustam. Appellant Muhammad Akbar in his statement Exh.202 added that on 6-9-1974 it was Friday but there was rush of people due to its being Defence Day. Muhammad Akbar denied recovery of a shot-gun and four cartridges from his house or at his instance by police on 7-9-1974. Muhammad Akbar adopted statement of Rustam. Appellant Mir Ajab Khan in his statement Exh.203 added that he was falsely implicated in the case because appellants Rustam and Zabit Khan were husbands of his sisters. He denied living in the cousin compound with them. He admitted running a hotel far away from hotel of the complainant party. He stated that on 6-9-1974 it was Friday but there were lot of people as it was Defence Day when Naval Ships were open to public. Mir Ajab further stated that on 6-9-1974 he was lying sick at Hyderabad. Mir Ajab denied recovery of a shot-gun and four cartridges from his house or at his instance by police on 7-9-1974. Mir Ajab adopted the statement of appellant Rustam. Acquitted accused Zia Abbas in his statement Exh.204 admitted being General Secretary of Pakistan Muslim League with Tariq Saeed and P.W. Mir Hassan as President and General Secretary respectively, of Muslim League (Qayoom Group) Karachi Zone. He admitted having gone to Karachi Airport to see off Khan Abdul Qayum Khan but denied having created an ugly scene. Zia Abbas denied having incited the appellants to shoot at Noor Hassan, Abdul Hassan, Fazal Qayoom. He also denied rest of the .Allegations and produced his statement in writing Exh.204/A and documents Exh.204/B to
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Exh.204/C. Appellants Habibur Rehman and Rustam Khan filed a statement in writing Exh.204/R under section 265-P(5) of Cr.P.C. 11. Appellants Habibur Rehman, Rustam Khan, Zabit Khan, Hussain Khan, Muhammad Akbar, Mir Ajab Khan and co-accused Zia Abbas gave depositions Exh.205, Exh.206, Exh.207, Exh.208, Exh.209, Exh.210 and Exh.211 respectively in disproof of the allegations. 12. Appellants examined in defence P.Ws. Waheedun Nabi Exh.213, Mushtaq Ahmed Exh.214, Salahuddin Exh.219, Muhammad Rafiq Exh.222, Raees Ahmed Exh.223, Amanullah Khan Exh.224 and Baqar Hussain Exh.225. After close of defence evidence on 8-1-1990 under statement Exh.226, the Court recorded deposition of P.Ws. Mukhtar Ahmad Exh.227 Handwriting Expert on 26-5-1990, 22-7- 1990, 23-7-1990 and 24-7-1990. 13. At conclusion of the trial, the learned Sessions Judge, Karachi-West under the impugned judgment, dated 10-11-1990 convicted appellants Habibur Rehman, Rustam Khan, Zabit Khan, Hussain Khan, Muhammad Akbar and Mir Ajab Khan for the offence punishable under section 148, section 302 read with section 149 and section 307 read with section 149 of P.P.C. For the offence under section 148, P.P.C. The appellants were sentenced to suffer rigorous imprisonment for 3 months, for the offence under section 302 read with section 149 of P.P.C. The appellants were sentenced to suffer imprisonment for life and to pay fine of Rs,50,000 each or to.. Suffer R.I. For one year, for the offence under section 307 read with section 149 of P.P.C. The appellants were sentenced to suffer imprisonment for three years and to pay fine of Rs,10,000 each or to suffer further R.I. For three months. Half of the fine imposed for offence under section 302/149, P.P.C. Was to go to heirs of the deceased persons. Half of the fine imposed for offence under section 307/149, P.P.C. Was ordered to be paid to injured Fazal Qayoom. Hence the appeals. Mir Hassan filed Criminal Revision Application No,95 of 1990 for awarding of death sentence to the appellants and Criminal Revision Application No,28 of 1991 against acquittal of Zia Abbas. 14. We have heard at length the learned Advocates for the parties as well as Mr. K.M. Nadeem, A.A.- G. For the State. Mr. Khawaja Naveed Ahmad, learned Advocate for Mir Ajab Khan (appellant in Criminal Appeal No,185 of 1990) contended that the only role attributed to Mir Ajab Khan in the F.I.R. Is that of following by Scooter the jeep which carried the co-accused, that no overt act is attributed to Mir Ajab Khan even by injured Fazal Qayoom; that no injury is attributed to Mir Ajab Khan and that no incriminating article was recovered from possession of Mir Ajab Khan. It was added that Mir Ajab is involved in the case because his two sisters are married to Rustam Khan and Zabit Khan and he is member of the same family. Mr. Sarwar Khan, learned Advocate for Muhammad Akbar (appellant in Criminal Appeal No,189 of 1990) argued that no specific injury is attributed to appellant Muhammad Akbar who was not carrying any arm as per the F.I.R., although in evidence it is shown that he was carrying gun, that there was no recovery from him of any gun, that he is not shown to be having any motive for participating in the incident. It was also argued that names of P.Ws. Abdul Qadir and Fazal Qadir did not figure in the F.I.R. To have witnessed the incident and both of them are caste-fellows of lite complainant as well as of the deceased. Mr. Sarwar Khan further argued that appellant Muhammad Akbar had no connection with the hotel business as admitted by P.W. Fazal Qayoom and he is falsely implicated because he is uncle of Rustam and Zabit Khan. It was added that case of Muhammad Akbar was better than case of Zia Abbas. Learned counsel for Muhammad Akbar Khan joined the other defence counsel in arguing that there were interpolations in the . Record about time of registration of the case and about the incident. That the time of incident shown in the F.I.R. Exh.117 was 1-30 p.m. And this was believed by inquest report about dead body of Noor Hassan. Learned counsel for appellant Muhammad Akbar further argued that there was no mention in the F.I.R. About butt injuries having been caused to anybody and about Sher Hassan talking to Fazal Qayoom at end of the incident. That names of witnesses Fazal Qayoom, Abdul Qadir, Fazal Qadir, Haji Sher Hassan and Mir Hassan did not appear in the F.I.R.
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That the F.I.R. Did not specify as to what particular weapon was carried by appellant Muhammad Akbar. It was also argued that appellant Muhammad Akbar had no gun as per belated police statement of Fazal Qayoom. It was also argued that P.Ws. Abdul Qadir and Fazal Qadir resisted 12/15 miles away from Wardat and in their cross-examination they admitted their relationship with the complainant although the same was earlier suppressed. They were said to be chance witnesses and related to the complainant, as per P.W. Sher Hassan. P.W. Munir was said to be fictitious person with his actual name being Muhammad Amir Khan and he being servant of Mir Hassan. In respect of P.W. Muhammad Nawaz it was argued that he was called from Saudi Arabia at instance of the complainant to give evidence because his name. Appeared in the F.I.R. With name of Munir. Muhammad Nawaz did not tell police that Noor Hassan was given butt blows, as further argued. Learned counsel for appellant Muhammad Akbar was vociferous about the evidence of P.W. Fazal Qayoom said to be star witness for the prosecution. He argued that P.W. Fazal Qayoom was not examined by police when first trial of the appellants and the co-accused took place, that even if he was so examined copy of his police statement was not applied to the appellants and the co-accused, that name of Fazal Qayoom did not appear in the challan, that copies of belated police statements of Fazal Qayoom were supplied to the appellants on the eve of fresh trial ordered by the Supreme Court of Pakistan, that in his belated police statement P.W. Fazal Qayoom had not given name of the witnesses, that in his deposition Exh.24 Fazal Qayoom gave his father's name as Haji Sher Hassan while in the Medical Certificate Exh.144 about his injuries, his father's name was given as Haji Muhammad Hassan. In reply learned A.A.-G. Explained that in the Medical Certificate Exh.144. Fazal Qayoom's grandfather's name was given as his father's name by mistake. It was further argued on behalf of appellant Muhammad Akbar that in his deposition recorded on 12-5-1984 Fazal Qayoom gave his age to be 25 years and his occupation as hotel business although he was a boy below 24 years and studying in 9th class. Fazal Qayoom was said to have admitted in Court that in his police statement he did not state that deceased Noor Hassan was given butt blows. Muhammad Nawaz did not give name of any eye-witness in his police statement as further argued. P.W. Sher Hassan was said to have suppressed the evidence about property of the deceased, who were his brothers. It was argued that he was running a hotel at Boultan Market and he could not be available at the Wardat. Mr. Sarwar Khan further argued that the medical evidence destroys the prosecution case, because post-mortem report about dead body of Noor Hassan showed that he had received one fire-arm injury with blackening and this indicates that the injury was caused not by a .12 bore gun but by a pistol or a revolver. It was also argued that the medical evidence indicates that Noor Hassan was fired at from a close range. It was added that at the time of alleged incident the two deceased and the said injured were said to be talking with one another, but the injured had received simple injury without blackening or charring. It was also argued that the trial Court had disbelieved the evidence of motive while Fazal Qayoom had stated that Muhammad Akbar had no hotel. That Muhammad Akbar was entitled to be given the benefit of doubt. ' Mr. Azizullah Shaikh, learned counsel for the appellant Rustam, argued that there was misreading of evidence by the trial CcSun and that the reasons for believing the evidence were incorrect. In this respect reference was made to pages 28, 29, 31, 32, 33, 39 and 40 of the judgment. It was further argued that credibility of the evidence was divided and as such the evidence was to be scrutinised cautiously. Learned counsel further argued that the evidence about instigation by Zia Abbas was disbelieved and yet evidence of Fazal Qayoom was believed for the purpose of conviction and that this was illogical approach. Referring tolhe medical evidence learned counsel argued that it did not support the ocular evidence and that the post-mortem report in respect of deceased Abdul Hassan Exh.114 and evidence of Abdul Hadi Khan Exh.112 showed that dead body of Abdul Hassan had no wound of entry of exit but had received injuries due to forceful and violent
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impact with a hard blunt object like Lathi, Danda or iron bar etc. Learned counsel also argued that Mashirnama of arrest of Rustam was not prepared and the Mashirnama of Wardat Exh.140 shows that two used bullets, one empty cartridge and one misfired live cartridge were recovered from the Wardat while Investigating Officer Akhtar Exh.174 deposed that two aged bullets one used cartridge and one empty of pistol were recovered. It was also argued that as per ocular evidence appellant Rustam was armed either with a revolver or a pistol while according to Mashir Azam Exh.96 and Mashirnama Exh.100 one shot-gun and one pistol were recovered from house of Rustam. Learned counsel referred to evidence of Ballistic Expert Mukhtar Ahmad Exh.227. Learned counsel for Rustam challenged that this evidence was doubtful. He also argued that these kinds of motive were given for commission of offence but the motive and credibility of the witnesses had been divided and if motive is held to be false in respect of one set of accused it cannot be believed in respect of other set of accused as done by the trial Court. The trial Court was said to have believed the evidence of Fazal Qayoom. Abdul Qadir, Fazal Qadir, Munir, Nawaz and Bakhtiar with regard to what appellants did, but the evidence of instigation was disbelieved when Zia Abbas was acquitted. Learned counsel for Rustam argued that recovery of weapons from the respective appellants did not tally with recovery of empties from Wardat. Evidence of Fazal Qayoom was criticised and it was argued that it did not corroborate motive or the medical evidence. P.Ws. Abdul Qadir and Fazal Qadir were said to be chance witnesses and their evidence was said to have been disbelieved by the trial Court when it acquitted Zia Abbas. Learned counsel challenged grounds given by the trial Court for accept;ng evidence of P.W. Muhammad Nawaz Exh.139 and argued that his evidenc was conflicting with evidence of P.Ws. Abdul Qadir and Munir Ahmad. P.W. Bakhtiar Ahmad was said to have changed his parentage and hence he was not reliable. P.W. Mir Hassan was said to have mala fidely tried to exclude some of the heirs of his deceased brothers while applying for mutation in the record of the property of his brother and hence he was unreliable. In conclusion learned counsel for Rustam argued that the ocular evidence was inherently defective and it is contradicted by medical evidence and hence the same could not have been believed. In support learned counsel for Rustam cited the case of:- (i) Habibullah and others v. The State PLD 1969 SC 127, (ii) Hadi Bakhsh v. The State PLD 1963 (W.P.) Kar. 805, (iii) Nasir Muhammad alias Nazir Ahmad v. The State PLD 1974 Kar. 274, (iv) Rahim Bux v. Crown PLD 1952 SC 1, (v) Rehmat and others v. The State and connected Appeals Nos.15 and 86 of 1958 PLD 1959 SC (Pak.) 109, (vi) Attaullah and another v. The State PLD 1990 Pesh. 10, (vii) Ghulam Sikandar and another v. Muhammad Khan and others PLD 1985 SC 11, (viii) Illahi Bux v. The State 1982 SCMR 57, (ix) Bagh Ali and 4 others PLD 1973 SC 231, (x) Darey Khan and others v. The State 1972 SCMR 578, and (xi) Muhammad Achar v. The State PLD 1990 Kar. 314. ' Mr. A.Q. Halepota, learned counsel for appellant Habibur Rehman, argued that his client was alleged to have fired a gun at Noor Hassan. It was pointed out that the recovery evidence about recovery of a shot-gun from house of Habibur Rehman was of no consequence because Ballistic Expert had given opinion in the negative and moreover Habibur Rehman was not sent up for offence punishable under section 13-B of Arms Act. It was further argued that enmity was a double-edged sword and it can be a motive for false implication. Learned counsel for Habibur Rehman next argued that there was admitted enmity between the parties and hence the question arose as to what would be the principle of appraisal of evidence. He also touched the point about
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acquittal of Zia Abbas and questioned as to what would be the effect of the evidence which was not believed in respect of Zia Abbas. Learned counsel referred to the medical evidence given by Abdul Hadi Exh.112 and argued that since the injury on person of Noor Hassan had not been caused from a shot-gun of .12 bore, hence the ocular evidence about Habibur Rehman to have fired at Noor Hassan with a gun was not correct. Evidence of motive given by P.W. Mir Hassan was criticized to be highly tainted and partisan, lacking independent corroboration. In respect of the ocular evidence it was argued that the F.I.R. Gave names of Muhammad Nawaz and Munir only to have witnessed the incident besides other whose names were not given. It was argued that P.W. Abdul Qadir and Fazal Qadir were known to complainant Bakhtiar but he had not named them in the F.I.R. Evidence of witnesses not named in the F.I.R. Was said to the improvement upon F.I.R. Abdul Qadir and Fazal Qadir were also said to be chance witnesses introduced by P.W. Mir Hassan. Learned counsel for Habibur Rehman next argued that F.I.R. Was silent about the weapon carried by Habibur Rehman. It did not show if Habibur…
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