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Petitioner: Ch. MUHAMMAD YAQOOB and others VS Respondent: THE STATE and others
Court Name: Supreme Court of Pakistan Judge(s): Sajjad Ali Shah, Saleem Akhter, Ajmal Mian Title: Ch. MUHAMMAD YAQOOB and others vs THE STATE and others Case No.: Criminal Appeals Nos.75 to 78 of 1988 Date of Judgment:1992-03-11 Reported As: 1992 SCMR 1983 Result: Order accordingly
JUDGMENT
JUDGMENT ' AJMAL MIAN, J.---The above appeals are with the leave of this Court. Criminal Appeal No,76 of 1988 has been filed by the State against the acquittal of Ghulam Shabbir Kalyar, now deceased, and Imdadullah Unar, whereas the other appeals have been filed by the convicts i.e, (i) Ch. Muhammad Yaqoob, (ii) Muhammad Munir, (iii) Abdul Ghafoor, (iv) Muhammad Aslam, and (v) Noor Muhammad. Though, Abdul Ghafoor, Noor Muhammad, and Muhammad Aslam are appellants in the above Criminal Appeal No,75 of 1988, but they have also filed separate appeals, namely, Abdul Ghafoor and Noor Muhammad have filed Criminal Appeal No,77 of 1988 jointly and Muhammad Aslam has filed Criminal Appeal No,78 of 1988 separately.. The above appeals have arisen out of the judgment dated 21-3-1984 passed by a Division Bench of the High Court of Sindh in Confirmation Case No,42 of 1981, Criminal Appeals Nos.224 and 225 of 1981, Criminal Acquittal Appeal No, 63 of 1982, Criminal Appeal No,220 of 1981, Criminal Revision No, 40 of 1982, filed against the judgment dated 18-11-1981 passed by the learned Sessions Judge, Sukkur, as Ex Officio 'Additional Sessions Judge, Hyderabad, in Sessions Case No,252 of 1981, whereby he acquitted accused Shahnawaz Junejo, Muhammad Hassan Junejo of the charge under section 302/109, P.P.C., and Dr. Muhammad Afzal of the charge under section 218, P.P.C. And convicted and awarded sentences as follows to the co-accused: "151. In view of the aforesaid discussion of the evidence and law, I find accused Yakoob, Shah Muhammad, Abdul Ghafoor, Aslam s/o Ismail, Noor Muhammad and Muhammad Muneer guilty for offence under section 302/34, P.P.C., and accused Ghulam Shabbir Kalyar, Imdadullah Unar and Qasim guilty for an offence under section 302/109. P.P.C. And convict them under section 265(h)(2), Cr.P.C. And they are sentenced to death. Each of them will be hanged by neck till they are dead.
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However, the said sentences shall be executed after confirmation by the High Court under section 374, Cr.P.C. They are informed that they can file appeal in the High Court within 7 days. ' I further find accused Yaqoob guilty under section 201, P.P.C. And sentence him to suffer 3 years' R.I. And to pay fine of Rs,1,000 or in default to undergo further R.I. For three months. Accused Mir Muhammad and Yaqoob are also convicted under section 218, Cr.P.C., and are sentenced to suffer R.I. For 2 years each. The offence of conspiracy under section 120-B, P.P.C. And of abduction under section 364/109, P.P.C., are not proved against any accused. I further order, under section 544(A), Cr. P.C. That accused Imdadiillah Unar, Shabbir Kalyar each will pay Rs,10,000 as compensation, or in default to undergo 2 years' R.I. Accused Yakoob and Shah Muhammad shall pay Rs,5,000 each as compensation or in default to suffer one year's R.I. More, while accused Abdul Ghafoor, Aslam s/o Ismail, Noor Muhammad, Muneer and Qasim, shall pay Rs,2,000 each as compensation or in default, to undergo six months' R.I. The amount of compensation, if recovered, shall be paid to the heirs of six deceased persons. The sentences of Yaqoob accused to .Run concurrently." 2. Against the above judgment the State filed the above acquittal appeal and the complainant filed the above Criminal Revision impugning the above acquittal of the two accused, whereas the convicts filed the above appeals. The State did not press the above acquittal appeal before the High Court, whereas the above Criminal Revision filed by the complainant was dismissed for non- prosecution. The appeals filed by the convicts and the Reference made by the learned Sessions Judge, for confirmation of the death sentences, were disposed of by a Division Bench of the High Court of Sindh through the impugned judgment in the following terms: "On the upshot of the above discussions with respect to the cases against Imdadullah Unar and Ghulam Shabbir, we are of the view that the evidence of the approver required corroboration, and such corroboration is lacking in this case. The evidence of the approver, in so far as these accused persons are concerned, is not such as might be considered unimpeachable, or, of a degree of credence that would absolve the prosecution of the responsibility of corroboration as is contemplated by illustration (b) to section 114 of the Evidence Act. The case against these two accused persons has not been established beyond reasonable doubt. We, therefore, refrain from confirming the sentence of death imposed on them and acquit them by giving them the benefit of doubt. ' In the result, we dismiss the appeals of Ch. Muhammad Yaqoob, Abdul Ghafoor, Muhammad Aslam, Noor Mohammad and Muhammad Muneer. The sentences of death are confirmed, subject to the setting aside of the sentence of Ch. Muhammad Yaqoob on the charge under section 201, P.P.C. We allow the appeal of Ghulam Qassim and Mir Muhammad and acquit them. If they are in custody, they shall be released forthwith. We decline to confirm the sentences of death imposed on Imdadullah Unar and Ghulam Shabbir. They stand acquitted of the charges on which they were convicted. The appeal of Shah Mohammad has abated, because he has ' We wish to make it clear it shall be open to the prosecution to place Imamuddin Unar on trial for any offence arising out of the acts of alleged fabrication of record and falsification of evidence." 3. The above Sessions case related to the murder of (1) Mehrab Khan Sanjrani, (2) Umed Ali Sanjrani, (3) Jan Muhammad Sanjrani, (4) Ali Sher Shah, (5) Hamzo Bhanejo, and (6) Dadan alias Allandad Wadho, who were killed between the night of 6th and 7th October, 1973 in respect of which, convict Chaudhry Muhammad Yaqoob, S.H.O., Sanghar Police Station, lodged F.I.R. No,92/1973 (Exh$3) at 7-00 a.m. On 7-10-1973 at the Police Station, Sanghar, District Sanghar, indicating date and time of occurrence as 7-10-1973 at 12-00 a.m., and place of occurrence as "Causeway of Bhan Wah, Deh Pahora, at a distance of about 7 miles to the south-east of the Police Station". The F.I.R. Was recorded by Mir Muhammad, Inspector, C.I.A., which reads as follows: "Complaint of the complainant is that: I am S.H.O. Incharge at Sanghar Police Station. On 6-10-1973 at 23-00 hrs. I alongwith subordinate staff namely, A.S.-I. Shah Muhammad, H.C. Abdul Ghafoor, H.C.
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Muhammad Aslam, L.N.C. Ali Nawaz, L.N.C. Sobha Khan, P.C. Muhammad Muneer, P.C. Noor Muhammad, F.C. Lal Khan, P.C. Muhammad Aslam, P.C. Muhammad Yousif, left Sanghar Police Station for patrolling and Nakabandi along Bhan-Canal. While patrolling we reached at Frontier Hotel Sanghar Town. From where we took Malik Sher Muhammad and Ghulam Qadir with us for help. While patrolling we reached at Bakhorho-culvert of Bhan-Canal from Bhan Canal, we went towards south while patrolling and on 7-10-1973 at about 01-00 hrs. We reached at the causeway. We formed two parties there. One party consisting of A.S.I. Shah Muhammad P.C. Muhammad Aslam, L.N.C. All Nawaz, P.C. Muhammad Muneer, P.C. Muhammad Yousif, P.C. Noor Muhammad, held Nakabandi' on the eastern side of the causeway and other party consisting of myself H.C. Abdul Ghafoor, (Paper Torn) Muhammad Aslam, P.C. Sobha Khan, P.C. Lal Khan held `Nakabandi. On the Western side of the causeway, A.S.I. Shah Mohd. Flashed the torch, and said while giving `Hakar to stop, and introduced ourselves to be Police Party. I also flashed the torch and found that there were six persons at the mid of the causeway, who were coming towards us, I also gave `hakal' to stop and introduced ourselves to be police. Upon this those persons opened direct firing at us, whereupon we also opened firing in our self-defence. In the meanwhile (Paper-Torn) persons came towards us while firing the shots and three persons went towards back to Shah Muhammad and others. Their fire shots passed above us and by our sides. The firing continued by both the parties. After a short while.The firing by accused persons stopped. We also stopped firing. We found that three persons who were coming towards us, were lying near the inspection path. We went near and found the three persons to be dead due to receiving fire-shots. One person had .303 rifle, other had 7 mm rifle and one person had .12 bore gun. Thereafter I went towards A.S.I. Shah Muhammad and others and found that three persons were lying dead on the ground towards east of the causeway who had also died during encounter, on receiving fire-shots of the Police. These unknown persons had .12 bore two single-barrelled guns and one .12 bore country-made pistol, which were lying near the dead. The accused have many bullets and cartridges. During the firing of the accused L.N.C. Ali Nawaz has received a minor injury on his right shoulder who has survived. H.C. Muhammad Aslam from other party has received a minor injury like scratch on the right ear during the firing by the accused. Thereafter, we arranged for the guard and sat there, so that their other party may not come and cause us any harm. In the morning, I after leaving Shah Muhammad and other subordinate staff there, have come here. The accused have caused hindrance of our duty and have used deadly weapons against us. We have killed the accused by opening fire in our self (defence)." 4. That it seems that on 11-10-1973 Muhammad Yaqoob son of Bachal Sanjrani addressed a complaint (Exh. 30/2) to the Inspector-General of Police, Sindh, alleging commission of murder of the above six persons by the Deputy Commissioner. Sanghar Imdadullah Unar and the police personnel named therein. It may be pertinent to reproduce the same, which reads as follows: "To ' The Inspector-General of Police, Sindh, Karachi. Sub: Complaint under section 3641302134. P.P.C. ' Sir, ' On 8th October, 1973 I read in local newspapers that Sanghar Police had shot dead Mehrab, Umedali, Jan Muhammad all by caste Sanjhrani, Hamzo Bhanejo, Syed Ali Sher and Dadan alias Allandad Wadho. I therefore went to village of Haji Jan Mohammad Sanjhrani to offer my condolences of Mehrab and Umedali. When I went there Sadoro son of Haji Jan Muhammad Sanjhrani brother of deceased Mehrab and Muhammad Hassan s/o Wali Muhammad Sanjhrani met me. On my enquiries they told me that they had accompanied deceased Mehrab, Umedali and Jan Muhammad to Sanghar as the deceased were required to be present before the District Magistrate and Tribunal, Sanghar in a hearing of their case under Goondas Ordinance. They
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reached the said Court early in the morning where deceased Hamzo, Syed All Sher and Dadan alias Allandad Wadho too had come for the same purpose. ' Mr. Imdadullah Unar the Deputy Commissioner, Sanghar was not present in his office. His clerk informed them that he was busy with Jam Sadikali, Minister Government of Sindh and was expected any time when the cases would be called. Mr. Lmdadullah came to office at about11 a.m. Soon thereafter M/s. Ghulam Shabbir, S.P. Sanghar, yaqoob, S.H.O. Police Station Sanghar, Shah Muhammad A.S.I.P. ' Police Station Sanghar with about 10 Constables of Police reached there. The S.P., S.H.O. And A.S.I.P. Went inside the office room of Deputy Commissioner. At about 12 noon the aforesaid deceased were called in and soon thereafter they came out with the said Police Officers party. When the deceased came out they informed them that Mr. Imdadullah Unar had asked the police to take them away. They saw the deceased being taken away to Police Station Sanghar as they followed them. At the Police Station they made enquiries from the S.H.O. Who threatened them to go away as otherwise they too would be arrested. They found Gazi Khan s/o Sono Khan Nazamani and Rakhiyal s/o Shahoo Khan with others already locked up in the Police Lock-up in connection with murder of All Bux Janejo. Due to threats of Police they returned to their village. ' On the next day i.e, 7-10-1973 Mohammad Hassan and Sadhoro went to Police Station Sanghar to see their relatives. There Ghazi Khan and Rakhiyal aforesaid informed them that on the previous evening after sunset all the six prisoners were taken out of lock-up to the Stable behind the Police Station by Yaqoob, Shah Muhammad A.S.I.P. And other constables who started beating them and they went on hearing their cries and entreaties not to kill them. Later on some doctor was also called who declared Mehrab and Umedali dead and other four about to die. Then late at night the said police officers took them in police trucks to unknown destination. As they were not allowed to stay at Police Station and were also asked to leave Sanghar town they returned to their village. Early morning on next day they learnt that all of them were killed by police. ' I stayed back in that village while Muhammad Hassan Sadhoro and others went to Sanghar to take the dead bodies. They received the dead bodies on 8th October, 1973 at about 4-30 p.m. And brought them to village at about 6-00 p.m. When the bodies were brought there we found marks of violence all over their bodies and fire-arm wounds. The bodies were buried that night. ' I tried to go to Sanghar on 9-10-1973 but was informed that the anyone belonging to Hur Jamat entering Sanghar town was being arrested by the police. Due to that fear I did not go there. On the next day i.e, 10-10-1973, I went straight to the Court of Sub-Divisional Magistrate, Sanghar to lodge my complaint but the Magistrate refused to receive the complaint and asked me to leave forthwith otherwise I shall be met with the same fate. ' All the aforesaid deceased were challaned in Goonda cases due to political rivalry as they were followers of Pir sahib Pagaro. They were in Jail and were released by the orders of High Court earlier. Due to political enmity they have been killed as stated above. ' I will be grateful if you kindly take steps to have the offence registered and enquired into. Murders have been committed by Messrs Imdadullah Unar, Deputy Commissioner, Sanghar, Ghulam Shabbir Kalyar, S.P. Sanghar, Yaqoob, S.I.P.Sanghar, Shah Muhammad A.S.-I. Sanghar and others about 15 police constables whose names are not known but could be found out from official record. ' I further request you to kindly afford security to my life as on account of this complaint I may also meet same end. ' Yours obediently, (Sd.) (Muhammad Yakoob s/o Bachal Sanjhrani) Kirvana Merchant, village Karamullah Dahri, P.O. Shahpur Chakar, Tal. Shandadpur, District Sanghar, (Sindh). Shandadpur,
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11th October, 1973." 5. It seems that the version contained in the quoted F.I.R. Lodged by Chaudhry Mohammad Yaqoob, SHO, about the alleged police encounter with the deceased was accepted by the Police Department and the then Government in power inasmuch as the police personnel who participated in the alleged police encounter were promoted on 9-10-1973 (Exh. 254), were confirmed on 10-10-1973 (Exh. 255), and were awarded cash amounts on 12-10-1973 (Exh.253). It further seems that on the above private complaint, addressed by Muhammad Yakoob son of Bachal Sanjhrani to the Inspector-General of Police, Sindh, enquiry was conducted by then D.I.-G. Raisani, who recorded statements of certain police personnel, which have been referred to by the defence counsel in the cross-examination of the prosecution witnesses. It also appears that upon the imposition of Martial Law on 5th July, 1977, aforesaid Muhammd Yakoob son of Bachal Sanjhrani adressed an application dated 1-8-1977 (Exh. 30) to Lt.-Gen. Jehanzeb Arbab, Martial Law Administrator, Zone 'C', Karachi, with reference to his above earlier complaint dated 11-10-1973 (Exh. 30/2). Alongwith the above application a copy of weekly magazine 'Zindagi' for the period from 22nd October to 28th October, 1973, containing details of the incident given by a journalist regarding the above murders, was sent. It may be stated that in his above application he added the names of Jam Sadiq All Khan, the former Minister of Government of Sindh and Muhammad Khan Junejo, the former Home Secretary, Sindh. He requested for taking action against the persons named in his aforesaid earlier complaint and also in the above application. It may be pertinent to reproduce the above application hereinbelow, which reads as follows: "To, ' Lt.-Gen. Jehanzeb Arbab, Martial Law Administrator, Zone 'C', Karachi. ' Sir, ' My three relations namely (1) Mehrab, (2) Umed Ali, (3) Jan Muhammad, (4) Hamzo, (5) Syed All Sher Shah and (6) Dada, were shot dead by the Sanghar Police on . 8-10-1973. I sent a written complaint to the Inspector-General Police, Sindh, Karachi on 11-10-1973, against the accused persons mentioned in the application. Jam Sadiq Ali, the former Minister of the Government of Sindh and Muhammad Khan Junejo, the then Home Secretary of Sindh, were also responsible for these murders. I also enclose herewith a copy of weekly Zindagi which contains the details of the incident given by the journalist regarding these murders. ' I pray that action be taken in the matter and the real culprit be brought to book. ' Thanking you, Yours faithfully, (Sd.) (Muhammad Yakoob) son of Bachal Sanjrani, Kiryana Merchant, Village Karamullah Dahri P.O.Shahpur C_________________________________________ kar, Taluka Shandadpur, District Sanghar. Karachi, Dated:1-8-1977." 6. On the basis of above application (Exh30), P.W.1, Ansaruddin Ansari, Deputy Director, F.IA., Hyderabad, registered F.I.R. No,127 (Exh.230) on 10-8-1977 at 17-00 hours, incorporating the complainant's above application dated 1-8-1977. 7. P.W.1, Ansaruddin Asnari investigated the case initially but handed over the investigation to P.W.23, Khuda Bakhsh, Assistant Director, F.I.A., on 15-8-1977, who arrested the accused on 15-8-1977 and 16-8-1977 and recorded their statements. He got confession of accused Muhammad Aslam son of Ahmad Din recorded on 16-8-1977, of accused Shah Muhammad, Abdul Ghafoor and Ghulam Oasim on 17-8-1977 and of accused Muhammad Muneer, Muhammad Aslam son of Muhammad Ismail and Noor Muhammad, on 18-8-1977. He submitted interim rhallan on 30-8-1977,
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second challan on 30-1-1978, third challan on 12-2-1978 and another supplementary challan on 20- 11-1978. It seems that at the initial stage of the case three of the accused, namely, Sobho, Muhammad Yousif and Ali Nawaz, died before the commencement of the trial and two of the accused, namely, Jam Sadiq All and Constable Lal Khan, were declared absconders and, therefore, they were not tried. The charge was framed on 29-8-1978 (Exh.10) against 13 accused persons, mentioned there. The trial proceeded against 13 of the accused persons. Accused Shahnawaz Junejo, Muhammad Hassan Junejo and Dr. Muhammad Afzal were acquitted by the trial Court. Whereas, upon appeal, accused Ghulam Shabbir Kalyar, Imdadullah Unar and Ghulam Qasim (who were awarded death sentences) and Mir Muhammad Lashari (who was sentenced to two years' R.I.), were acquitted by the High Court. Convict Shah Muhammad, who was awarded death sentence by the trial Court, died during the pendency of the confirmation case and his appeal before the High Court. It may further be observed that convict Muhammad Aslam, who is one of the appellants in Criminal Appeal No,75 of 1988, and Ghulam Shabbir Kalyar, one of the respondents in the above Acquittal Appeal No,76 of 1988, expired during the pendency of the above appeals before this Court, with the result that Criminal Appeal No,78 of 1988 stands abated, whereas, Criminal Appeal No,75 of 1988 and Criminal Appeal No,77 of 1988 have been prosecuted by convicts Ch. Muhammad Yaqoob and Muhammad Muneer (who are represented by Mr. Abid Hassan Minto, Advocate Supreme Court), and Abdul Ghafoor and Noor Muhammad (who are represented by Mr. Munir A. Piracha, Advocate Supreme Court). The above Acquittal Appeal No, 76 of 1988 has been defended by. Imdadullah Unar, who is represented by Mr. Abdul Hafeez Memon, Advocate Supreme Court. The State is represented by MrAbdul Ghafoor Mangi, learned Additional Advocate-General, Sindh. 7. Before proceeding with the above appeals, we may observe that MrAbdul Ghafoor Mangi, learned Additional Advocate-General, Sindh, requested that the State be allowed to withdraw the above acquittal appeal against Imdadullah Unar. In support of his above request, he submitted a copy of an applicatin dated 15-5-1991, filed by the complainant Muhammad Yakoob son of Bachal Sanjrani before the Home Secretary, Gevemment of Sindh, requesting for withdrawal of the proceedings against Jam Sadiq Ali in respect of Crime No, 24 of 1977 under section 302, P.P.C. Read with section 120-B, P.P.C. Inter alia on the ground that the allegations against Jam Sadiq All Khan and acquitted accused Shahnawaz Junejo, Muhammad Hassan Junejo, Imdadullah Unar and Ghulam Shabbir Kalyar were identical and that the State did not press its acquittal appeal before the High Court against co-accused Shahnawaz Junejo and Muhammad Hassan Junejo. Reliance was also placed in the above application on certain observations made by one of us as the Chief Justice of the High Court of Sindh (Ajmal Mian, J.) in the order dated 26-9-1991, while confirming bail before arrest in Criminal Bail Application No,379 of 1989, which was filed by Jam Sadiq All Khan, after his return to Pakistan and wherein it was ordered that for the purpose of concluding trial against him, the case stands transferred to the Court of learned District and Sessions Judge at Hyderabad, who would proceed with the matter in accordance with law for concluding the trial. A copy of the order dated 26-9-1991 passed by the learned Sessions Judge, Hyderabad, on the above application under section 494, Cr.P.C. Has also been placed on record. Since this Court, at the stage of granting leave against acquittal, was of the view that the acquittal judgment needed further examination by this Court, we declined the above request of Mr. Abdul Ghafoor Mangi, learned Advocate-General, Sindh. We may observe that it is true that under section 494, Cr.P.C. Any public prosecutor, with the consent of the Court, before the judgment is pronounced can withdraw from the prosecution of any person either generally or in respect of anyone or more of the offences for which he is tried and upon such withdrawal:-- (a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
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(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences. ' In our view, the State or the public prosecutor has no absolute power to withdraw a criminal case as it is evident from section 494, Cr.P.C. That the consent of the Court is required. It means that the Court is obliged to apply its mind to the question, whether request for withdrawal is bona fide warranted by the facts of the case and is intended to foster the cause of justice and is not made in bad faith with the object to favour- an accused person at the cost of the victims of the criminal offence involved. Since the case of Jam Sadiq All Khan is not before us, we would not like to express ourselves on the question whether the grant of the above application by the learned Sessions Judge, Hyderabad was warranted in the circumstances of the case. 8. Reverting to the merits of the present appeals, we may observe that the basic question involved in the present case is, as to whether a police encounter had taken place, as was alleged by convict Ch. Muhammad Yaqoob, S.H.O., in his F.I.R. (Exh. 30/2), or whether the deceased were picked up from the Office of the Deputy Commissioner on 6th October, 1973, when they came to attend the cases under the Goonda Act, pending against them and were taken to the Police Station, Sanghar, where, after the sunset, they were given severe beating and then, at mid-night, they were taken to Kanan Mori, where they were killed. ' The trial Court has discarded the version of police encounter for the following reasons: "(i) According to the Mashirnama (Exh. 52) two parties of the police were formed, one was on west side and the other was on east side and the six dacoits were seen on the culvert of Bhanwah, in- between the two parties and were challenged and then three came firing towards West side and three towards East side and and they were then killed in the exchange of firing. It cannot be believed that the said alleged dacoits will reach culvert of Bhanwah after seeing the Police Van and the police on both sides. They could even jump in watercourse to save their lives. (ii) The six deceased persons were stated by…
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