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Petitioner: Haji BISMILLAH VS Respondent: ABDUL ALI and anothers
Court Name: Balochistan High Court Judge(s): Amanullah Khan, Mir Muhammad Nawaz Marri Title: Haji BISMILLAH vs ABDUL ALI and anothers Case No.:Criminal Appeals Nos.320 and 340 of 1998 Criminal Appeal No,320 of 1998
JUDGMENT
Reported As: 2000 P Cr. L J 495 Result: Appeal accepted Judgment JUDGMENT ' AMAN ULLAH KHAN, J.--- By this common judgment, we propose to dispose of Criminal Acquittal Appeal No,320 of 1998 filed by appellant Haji Bismillah and Criminal Acquittal Appeal No,340 of 1998 filed by the State through Advocate-General, as both the appeals are directed against the common judgment, dated 19-10-1998 passed by Sessions Judge, Pishin whereby respondent No,1 Abdul Ali has been acquitted under section 302/324, P.P.C. 2. The facts in the background are that complainant Haji Bismillah lodged report with Chaman Police Station under section 302/324/147/148/ 149/365/511, P.P.C. Read with section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, on 7-5-1994 at about 8-00 a.m. It was alleged in the F.I.R. That he (complainant) left his house at 7-30 a.m. In his Land Cruiser bearing registration No,173-165 Karachi alongwith his four brothers namely Dawud Shah, Muhammad Raza, Ahmad Shah and Ubaidullah towards College Colony to see off Hajis. At about 8-00 a.m. When they reached Telephone Exchange, Abdul Ali, Muhammad Khan, Musa, Waris, Abdul Hakeem, Zahir, alongwith six other persons whose names were not known to him, however, he could recognize them on seeing, signalled them to stop. When they stopped the vehicle, Abdul Ali alongwith his companions tried to kidnap them by force and respondents Abdul Ali holding a Kalashinkov and his other companions armed with pistol started firing at them due to which Dawud Shah received injuries on his chest and he died on the spot. Muhammad Raza was injured; he succumbed to the injuries in the hospital and Ahmad Shah received injuries on his leg and accused persons while leaving the place after firing, took away the Land-cruiser of the
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complainant. The motive was that last year, deceased Dawud Shah had fought with Shah Muhammad, nephew of Abdul Ali and had injured him. To take revenge of the said incident, the accused persons attacked the complainant party on the day of incident. 3. The F.I.R. Was lodged by P.W.7 Syed Ikram Hussain Zaidi S.-I. Police Station Civil Line, Chaman. Initial investigation was also conducted by him. From the perusal of the record, it reveals that the complainant party being dissatisfied with the investigation of the case, conducted by police authorities, made certain applications to the higher authorities for transferring the case to the Crimes Branch for proper investigation. Though the investigation of the case had been completed by Chaman Police authorities, but on the application of the appellant the matter was transferred to Crimes Branch authorities for further probe and investigation. 4. Soon after the occurrence, most of the accused persons including the appellant could not be arrested; only accused persons namely Abdul Zahir, Gul Baran and Haji Allah Dad were arrested. Challan against the afore-stated three accused persons was submitted before Sessions Judge, Pishin who tried the said persons under section 302/324/365/511/147/148/149, P.P.C. After conclusion of trial, the accused persons namely Abdul Zahir and Gul Baran were convicted to suffer R.I. For fourteen years and Allah Dad was acquitted of the charge vide judgment, dated 22-6-1996; being aggrieved from the said judgment, the complainant Haji Bismillah filed Criminal Revision for enhancement of sentence of Abdul Zahir and Gul Baran being Criminal Revision No,38 of 1996 and an appeal against acquittal of Allah Dad being Criminal Acquittal Appeal No,161 of 1996. The convicts Abdul Zahir and Gul Baran also filed an appeal against their conviction being Criminal Appeal No,131 of 1996. All the aforestated Criminal Revision, criminal Acquittal Appeal and Criminal Appeal were disposed of by this Court upholding the judgment of the trial Court vide judgment, dated 24-4-1997. Being dissatisfied with the said judgment passed by this Court, the complainant and the convicts filed Criminal Petitions for leave to appeal before the Honourable Supreme Court. The Honourable Supreme Court was pleased to grant leave to appeal in the appeals filed by the complainant Haji Bismillah and appeal filed against conviction filed by Abdul Zahir and Gul Baran vide judgment, dated 19th November, 1997; however, the said appeal is pending before the Honourable Supreme Court. 5. It may be mentioned here that when leave to appeal was granted to the complainant and the convicts by the Honourable Supreme Court, the original record of the Trial Court was also. Summoned. In the meanwhile, during the pendency of the appeal before the Honourable Supreme Court, respondent No,1 Abdul Ali was arrested from Killa Saifullah, challan of the case was submitted on 19-12-1997 before the Sessions Judge, Pishin. Charge against the appellant was framed on 25-7-1998 which was refuted by him. To substantiate the allegations alleged against the accused, the prosecution produced the following witnesses: 6. P.W.1 Haji Bismillah is the complainant. He stated that on 7-5-1994 at 7-30 a.m. He alongwith hiS brothers Dawud Shah, Haji Muhammad Raza, Haji Ahmad Shah and Ubaidullah left their house in Land-cruiser bearing Registration No,173-125 Karachi, for College Colony. When they reached Telephone Exchange, 13 persons including respondent Abdul Ali, Muhammad Dawud, Musa, Abdul Hakeem, Waris, Zahir, Allah Dad, Shankai, Hanifia, Gul Baran and Ghaffar signalled them to stop. Abdul Ali had a Kalashinkove, the others were armed with Dandas and pistols. On stopping the vehicle, Haji Abdul Ali gave a Lalkara to put them into the vehicle. On their resistance Abdul Ali fired at DadShah, who died on the spot. Shah Muhammad fired at Haji Muhammad Raza who succumbed to the injuries in the hospital. Ghaffar fired at Ahmad Shah on his leg and the others attacked them with stones and sticks. He further stated that convict Gul Baran pulled him and Allah Dad beat him with the butt of Kalashinkov and Zahir fired at him with pistol which did not hit him. - The motive of the said incident was that one year back they (complainant party) had beaten Shah Muhammad who was nephew of Abdul Ali and to take revenge, Abdul Ali alongwith other persons
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attacked them. He lodged F.I.R. Exh.P/1-A. In cross-examination, he stated that they reached the place of occurrence at 8-00 a.m. And it took about 15 minutes in the whole incident; they were taken to hospital in a Pick-up by the people who had gathered there. Re stated that he had also received injuries on his left shoulder and from hospital he went to the police Station. He had not gone to the place of occurrence from the Police Station. Salahuddin Baloch and Dad Khan accompanied him to the Police Station and from the Police Station he went to their killi (village) and the dead-bodies were also shifted to Killi at about 11-00 a.m. Where they were buried. He denied that Ubaidullah did not receive any injury and they remained in the house for three days for holding Fatiha of the deceased. Ahmad Shah was shifted to Quetta and remained admitted in the hospital for 13/14 days. Many people gathered at the place of incident from whom he knew Amir Hamza, Noor Ahmad and Kullah Khan. He admitted that the place of incident is situated near Taxi Stand and Cattle Market and there were many Rehri Walas at the place of incident. He further stated that S.H.O. Zaidi came to the place of incident after about 10 minutes of the incident and the police did not record his statement at the place of incident. He denied that F.I.R. Was lodged after consultation. He further denied that respondent Abdul Ali was not present at the scene of occurrence and further denied that the vehicle was not taken by him. He further stated that Abdul Ali fired at Dawud Shah from a distance of four feet and Shah Muhammad fired at deceased Muhammad Raza from a distance of one feet. He stated that he was also medically examined on the said date. He denied that he did not receive any injury and further confronted with the statement that Abdul Ali had not asked his other companions to put them and kidnap them. When confronted, it was not mentioned so in the police statement. He denied that Abdul Ali was not present at the place of incident and further denied that Abdul Ali has been nominated as he is elder of the family. 7. P.W.2 Ahmad Shah narrated the same story as deposed by P.W.1 Haji Bismillah. He stated that on 7-5-1994 at 7-30 a.m. He alongwith his brothers Bismillah, Muhammad Raza, Dawud Shah and Ubaidullah in their Land cruiser bearing Registration No,173-125 Karachi, left their house for College Colony to see off the Hajis going for Hajj. When they reached Telephone Exchange, respondent Abdul Ali alongwith 12/13 persons were present there and stopped them. As they stopped the vehicle, the accused persons said that they would put them in the vehicle and abduct them. On their resistance, Abdul Ali fired at Dawud Shah on his chest who died on the spot. Shah Muhammad fired with a pistol on Haji Muhammad Raza who was injured and was shifted to the hospital but he died in the hospital. Abdul Ghaffar and Haji Abdul Ali caught hold of him from his collar and Abdul Ali asked Abdul Ghaffar to kill him. Abdul Ghaffar fired at him with a pistol. He further stated that the other accused persons were Muhammad Khan, Musa, Shah Muhammad, Abdul Hakeem, Waris, convicts Zahir, Gul Baran, Hanifia, Allah Dad and Shankai. After the occurrence, the accused persons left the place of occurrence and took their Land-cruiser alongwith them. He further stated that he was shifted in a vehicle to the hospital and from Chaman he was shifted to Quetta. In cross-examination he stated that they reached the place of occurrence at about 8-00 a.m. And the occurrence took place only for 10 to 15 minutes. He was shifted to hospital in the vehicle of Baloch Khan. Many people gathered there. He reached the hospital at 8-15 a.m. And thereafter, he was shifted to Quetta on the same day at about 9-00 a.m. When he was in Civil Hospital, Chaman, the Police reached there but did not record his statement. Thereafter, in Quetta he remained admitted in hospital for about 20 days. The Police recorded his statement after he was discharged from the hospital. The police did not come to Quetta for recording his statement. He further stated that his statement was recorded by Crimes Branch Police authorities on 1-9-1994. He, however, denied that the appellant has been falsely implicated in the case. He stated that he was shifted to Quetta by Abdul Manan, Amir Hamza, Akhtar Jan and Ramzan and Salahuddin. He stated that the afore-stated persons are his relatives; he stated that these persons were also present at the time
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of alleged incident. He stated that he had told the police while recording his statement that the aforementioned persons were present at the time of incident. However, it was not so recorded. He further stated that no conversation took place between them and the accused persons at the time of incident, however, it was not so recorded. It was also not mentioned in the police statement that Abdul Ali said to put them in the vehicle. He stated that he had stated before the police that Abdul Ali fired with Kalashinkov at Dawud Shah who died at the spot whereas in the statement it was stated that Abdul Ali fired with Kalashinkov and others with pistol. He further stated that he said in his statement recorded by the police that Abdul Ali caught hold of his collar and told Abdul Ghaffar to fire upon him; it was not so recorded in his police statement. He further stated that Abdul Ghaffar fired six shots at him placing the pistol at his leg. He denied that Abdul Ali had been falsely implicated in the instance case. 8. P.W. 3 Akhtar Jan stated that on 7-5-1994 at 8-00 a.m., he went to see off the Hajis. At that time Haji Bismillah, Haji Muhammad Raza, Ahmad Shah, Dawud Shah and Ubaidullah came in a Land- cruiser there and were signalled to stop by Abdul Ali, Muhammad Khan, Musa, Allah Dad, Shankai, Shah Muhammad, Gul Baran Ghaffar, Abdul Hameem, Abdul Waris and Hanifia. Abdul Ali gave a Lalkara to abduct them but the complainant party resisted and after failing to abduct them, Abdul Ali fired at Dawud Shah who died at the spot. Shah. Muhammad fired at Muhammad Raza who died at the hospital. Ghaffar fired at Ahmad Shah and injured him. Thereafter, accused persons left their vehicle and took away the vehicle of the complainant party. In cross-examination he stated that he knew the accused and complainant party before the incident. He admitted that he belonged to the same tribe as that of complainant party. He admitted that his grand-father and the father of Haji Bismillah were brothers. However, he denied that he is related to complainant Haji Bismillah. He stated that his statement was recorded by Chaman Police; however, he did not remember the date. He himself went to the Police Station. During cross-examination some improvements made in his police statement were pointed out such as that he did not state in his police statement that at 8-00 a.m. The complainant party came to the place of incident near Telephone Exchange. He did not mention the names of the complainant party in his police statement. He had also not mentioned that Abdul Ali gave Lalkara to abduct the complainant party. He had also not mentioned that Abdul Ali fired at Dawud Shah and Shah Muhammad fired at Haji Muhammad Raza. He had also not stated that the accused party took away the vehicle of the complainant party. He admitted that his statement was recorded by Crimes Branch Police Authorities after one month of the incident. He denied that his statement was recorded after four months of the incident by the Crimes Branch. He further stated that he had not stated to the Crimes Branch that his statement is the same which was recorded on 15-4-1994, by Chaman Police Authorities. He admitted that at the time of alleged incident, there were many persons at the place of incident. He stated that he did not go to the police on the same day. He further stated that he did not state before Chaman Police Authorities that on coming to the hospital, he came to know that Haji Muhammad Raza and Dawud Shah had been killed in the said incident. He, however, denied that he gave a wrong statement as he was related to the accused persons. 9. P.W. 4 Ubaidullah stated that on 7-5-1994, he alongwith his brothers Bismillah, Haji Muhammad Raza, Ahmad Shah and Dawud Shah went towards College Colony in their Land-cruiser to see off the Hajis at about 8-00 a.m. At the Telephone Exchange, Abdul Ali who was present there alongwith 12/13 persons signalled them to stop and when the vehicle was stopped, Abdul Ali gave a Lalkara to abduct them which was resisted by them. Thereupon, Abdul Ali fired with Kalashinkov at Dawud Shah who died on the spot. Raza Muhammad fired with pistol at Haji Muhammad Raza who later on died in the hospital. Ghaffar fired six bullets at Ahmad Shah who was injured and shifted to Civil Hospital Chaman and from there to Civil Hospital, Quetta. The other accused persons had beaten Haji Bismillah with sticks and stones and injured all of them. The other accused persons were Allah
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Dad, Shankai, Musa Muhammad Khan, Abdul Waris, Abdul Hakeem, Zahir, Gul Baran, and Hanifia. After the incident the accused party attacked their vehicle. In cross-examination he stated that his statement was recorded only by Crimes Branch Police after about four months of the incident. He had gone to the hospital on the same day at about 8-20 a.m. Haji Muhammad Raza was examined first; thereafter, Dawud Shah was examined by the doctor on the same day. He did not remember the time of his check-up whether it was in the morning, evening or night. He remained admitted in the hospital for seven days. He denied that he was never admitted in the hospital. He admitted that many people gathered at the place of incident. He said that some people took him to the hospital whom he could not identify and at the time of incident no conversation took place between them and the accused party. During his cross-examination some improvements made in his statement were pointed out such as that in his police statement he had stated that exchange of hot words took place between them and the accused party and even in his previous statement recorded in the Court in the previous case, he had stated that hot words were exchanged between them and the accused persons after the Lalkara. He did not know P.W. Akhtar Jan. The Police did not reach the place of incident in his presence. He did not come to the place of incident with the police. When he reached the hospital he also saw Bismillah there. Bismillah left the hospital prior to him and had taken away the dead bodies to their house. He also accompanied the dead bodies. He came to the hospital after burial of the deceased persons. He denied that he was not present at the place of incident. He further denied that Abdul Ali had been implicated in the instant case as he was elder of the family. 10. P.W.5 Haji Abdul Zahir is a marginal witness to the recovery of things recovered from the place of incident. He stated that Salahuddin produced two magazines of Kalashinkov alongwith 36 bullets, waist-coat, photocopy of the Identity Card, one printed piece of cloth, one spoon, one hair brush, one audio-cassette, to the S.H.O. The same were taken in his presence.. He admitted that the complainant Bismillah was his relative. Salahuddin had taken him to the Police Station. He went alone to the Police Station and saw Salahuddin and Bismillah there. He denied that he was taken to the Police Station by Salahuddin and Bismillah. His statement was recorded by S.H.O. Chaman. He did not remember the day of recording his statement. He did not put any identification mark on the aforementioned articles. He denied that he gave both the statement due to his relationship with the complainant. 11. P.W.6 Amir Muhammad stated that on 7-5-1994, after receiving information of the incident he alongwith S.H.O., went to the hospital at about 9-00 a.m. The S.H.O. Took into possession clothes of Muhammad Raza and thereafter, went to the place of incident and recovered empty shells i,e,, one empty of .32 bore pistol, 2 empties of Kalashinkov and two empties of .30 bore, live bullet and a vehicle was also taken into possession from the place of incident. The parcel of the empties was prepared and secured by him. S.H.O. Crimes Branch Wali-ur-Rehman also took one Sadri (waistcoat) and Shalwar in his presence. In cross-examination he stated that he remained in the hospital for half an hour and thereafter, went to the place of incident and stayed there for about one hour. He stated that he did not remember whether any one from complainant party accompanied him to the place of incident and after visiting the place of occurrence, he went to arrest the accused persons. The S.H.O. Ikram Zaidi was also with him. He admitted that no private person was called to witness the recoveries. 12. P.W.7 Syed Ikram Hussain Zaidi stated that on 7-5-1994 he received information about the fight near Telephone Exchange. He went to the place of incident where he was informed that the injured had been shifted to the hospital. He went to the hospital with S.-I. Amir Muhammad, A.S.-I. Zainuddin and other police officials. In the hospital he saw the dead body and two other injured persons. Bismillah, brother of the deceased who was also injured, was also present in the hospital. He recorded Fard-e-Bayan of complainant Bismillah on the basis of which F.I.R. Was lodged, took
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into possession blood-stained shirt of Muhammad Raza, prepared injury report and then alongwith the complainant Haji Bismillah went to the place of incident. At his pointation, he prepared the site inspection and sketch of the place of incident and during said inspection he took into possession two empties of .30 bore, one empty of .32 bore, 2 empties of Kalashinkov and also took into possession one live bullet of .30 bore and a double seated Pick-up vehicle bearing registration No,QAG 2588, registration book of Land-cruiser bearing No,173-125, Karachi. He arrested accused Gul Baran and also took into possession his turban which was blood-stained and during investigation, he recorded statements of the prosecution witnesses. On 14-5-1994, Bismillah produced the sadri, two magazines of Kalashinkov, one containing 22 cartridges and the other containing 14 cartridges; one hair brush, one video cassette and one spoon were also taken into possession. He submitted incomplete challan against Gul Baran on 27-5-1994. In cross- examination he stated that he remained at hospital for about 30 minutes. He reached the hospital at about 8-15 a:m. He did not remember as to when he prepared the injury report of Ahmad Shah. He did not prepare the injury report of Ubaidullah. He admitted that had Ubaidullah been injured, he would also have prepared his injury report. He did not record the statement of Ubaidullah. He did not remember as to whether he prepared the injury report of Bismillah. He admitted that Bismillah had not mentioned in the Fard-e-Bayan about his being injured. From the hospital, he went to the place of incident. He denied that Fard-e-Bayan was not recorded in the hospital. From the place of incident he went in search of the accused and returned to the Police Station at 6-30 p.m. While preparing sketch he did not obtain the signature of complainant Bismillah. No private witness was called to witness the recovery. He admitted that there is a taxi stand and cattle market near the place of incident. He admitted that many people gathered at the place of incident. Bismillah did not inform him about the persons who witnessed the incident. He did not record the statement of other witnesses on the day of incident except that of Wali Muhammad and Akhtar Jan. He admitted that he did not record the statement of Ubaidullah during investigation of the case. He admitted that the complainant named only five persons and did not name all the other persons while recording his Fard-eBayan. He admitted that the complainant in Fard-e-Bayan had not mentioned about the abduction of the complainant party. It was also not mentioned in the Fard-e-Bayan that Zahir Shah fired at the complainant which missed him. He admitted that the prosecution witnesses had been produced before him by the complainant Bismillah. Dead bodies were buried without conducting their post-mortem. He denied that he conducted the investigation of the case partially. 13. P.W.8 Tajammul Shah, Inspector Police, stated that on 10-7-1997, while he was posted as Inspector in Crimes Branch, he was deputed to arrest Abdul Ali. He alongwith D.S.P. Azam and other police persons went to Killa Saifullah and arrested Abdul Ali on the said day. After arresting him, a pistol alongwith two magazines and 10 live cartridges were recovered from his possession. A separate case under Arms Ordinance was registered against him. He handed over investigation of the case to Pir Muhammad S.-I. 14. P.W.9 Pir Muhammad stated that in 1997 he was posted in Crimes Branch Police Station. On 10-7- 1997, he accompanied I.P. Tajammul Shah to Killa Saifullah where the appellant was arrested and investigation of the case was handed over to him on 15-7-1999. After completing investigation, he sent Abdul Ali to judicial lock-up and submitted challan Exh.P/9-A. 15. P.W.10 Zainuddin stated that on 7-5-1994 Ikram Hussain Zaidi went to Civil Hospital where S.H.O. Took into possession the blood-stained shirt of deceased Muhammad Raza and prepared recovery memo and from the hospital went to the place of incident where the S.H.O. Took into possession of five empty shells of different bores and the Pick-up was also taken into possession. The S.H.O. Also took into possession the turban of Gul Baran which was blood-stained and registration book of the land-cruiser produced by Haji Bismillah was also taken into possession. In
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cross-examination he stated that he did not remember at what time he went to the Police Station. He did not remember the time when he reached the place of incident. He returned to the Police Station at about 8-00 p.m. He denied that the recovery was not taken into possession and further denied that he had deposed falsely. 16. Respondent Abdul Ali was examined under section 342, Cr.P.C., and also recorded his statement on oath under section 340(2), Cr.P.C. In his statement on oath he stated that on 3-5-1994, he had gone to Fateh Pur Dargah Gandawa. He was accompanied by Sardar Muhammad and there he fell sick and…
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