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Petitioner: ABDUL SATTAR AND Another VS Respondent: THE STATE Opponent
Court Name: Sindh High Court Judge(s): Abdul Hayee Qureshi, G.M Shah Title: ABDUL SATTAR AND Another vs THE STATE Opponent Case No.: Criminal Appeals Nos. 90 and 82 and Confirmation Case No. 18 of 1977 Date of Judgment:1978-09-16 Reported As: PLD 1979 Karachi 72 Result: Appeal dismissed
JUDGMENT
JUDGMENT ABDUL HAYEE KURESHI, J.-Appellants Abdul Sattar and Yakoob Ali were tried by the 3rd Additional Sessions Judge, Hyderabad, on charges under sections 302 and 392, P. P. C. Read with section 34, P. P. C. By a judgment dated 22-3-1977, they were found guilty of both the offences and convicted. For the offence under section 302/34, P. P. C. Appellant Abdul Sattar was sentenced to death and for the same offence appellant Yakoob Ali was awarded the lesser penalty of life imprisonment. Both of them were also ordered to pay a sum of Rs. 5,000 each as compensation to the heirs of the deceased. Both the appellants were also convicted and sentenced under section 392, P. P. C. To R. I. For seven years. While the two sentences imposed on appellant Yakoob Ali were ordered to run concurrently, the sentence under section 392, P. P. C. In case of appellant Abdul Sattar was ordered to run concurrently only if the death sentence was not confirmed. 2. Both the appellants have filed separate appeals and the Additional Sessions Judge has also referred the case of Abdul Sattar for confirmation of the sentence of death. We have heard Mr. Rasul Bux for appellant Abdul Sattar and Mr. Muhammad Hayat Junejo for appellant Yakoob Ali. We have also heard the reference for confirmation of the sentence of death. We propose to dispose of the appeals and the death reference by a common judgment. Mr. Murtaza Hussain has appeared for the State. 3. The brief facts of the case are that, the deceased Mahmood owned a shop known as T. V. Traders, where he carried on the business of sale of Radios, Televisions, etc. This shop is situated on Station Road and opposite the City Police Station, at Hyderabad. On 13-3-1973, at about 2-00 or 2- 30 p.m. Both the appellants had gone to the shop of P. W. Amir Ali who is also dealing in radios and Televisions and has a shop at a short distance from the shop of the deceased. They told Amir Ali
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that they had been sent by his brother Haroon on which Amir Ali told them that Haroon was the brother of the deceased who was carrying on business in the name of T. V. Traders and that the name of the shop of Amir Ali was T. V. Centre. On being told so the two appellants requested Amir Ali to show them the shop of Mahmood, the brother of Haroon and Amir Ali accompanied them to the shop of the deceased and leaving the appellants there went to purchase pan and cigarettes from a neighbouring shop. The two appellants entered the shop of the deceased and inquired about the availability of tape-recorder-cum-radio. They were shown the tape-recorder and a price of Rs. 1,200 was demanded by the deceased, upon which the appellants said that Haroon, the brother of the deceased had quoted a lesser price. Deceased Mahmood sent his servant, Taufeeq, who was a boy aged 11 years to go and bring Haroon. At that time P. W. Salim, who was a technician was working at the shop of the deceased while sitting behind a screen. No sooner had Taufeeq left the shop, appellant Yakoob Ali picked up the radio-cum-tape recorder and started walking away upon which he was prevented by the deceased. Appellant Abdul Sattar took out a pistol from the fold of his shalwar and successively shot at the deceased causing him three injuries, one of which was on the face and the remaining two on the right thigh and on dorsum of the left hand. It is stated in the prosecution case that 4 shots were fired which attracted the attention of the neighbouring shopkeepers who rushed to the place and found both the appellants running away. Appellant Abdul Sattar was holding a pistol in his hand while Yakoob Ali was carrying the radio-- cum-tape-recorder. Some people chased the appellants but the appellants made good their escape by searing them away, shooting in the air. Deceased Mahmood was in precarious condition and he was taken to the hospital in the car but while on the way he died. S. H. O. Abdul Sattar of the city Police Station was also attracted by the fire arm shots and he came up to the shop of the deceased and on being told about the occurrence he posted guard at the scene and proceeded with some police staff to pursue the culprits but unsuccessfully. He then reached Liaqat Medical College Hospital at Hyderabad at about 3-30 p.m. And recorded the first information report on the dictation of P. W. Abdul Ghani. The report was then transmitted to the police station for being incorporated in the section 154, Cr. P. C. Book. The police officer then came back to .The scene and found blood on the carpet and he seized the blood-stained portion thereof. The Police Officer also secured 4 empty bullets from the shop. Statements of Dr. Muhammad Farooq, Muhammad Haroon, Taufeeq, Muhammad Salim, Amir Ali and Shamasdin were recorded by the Police officer, who also recorded the further statement of complainant Abdul Ghani on the following day when a receipt in respect of the stolen radio-cum--tape-recorder was produced by the complainant before the Police Officer. It seems appellant Abdul Sattar was suspected very soon and since the appellant was in the Pakistan Army, the Police Officer had demanded his custody but before any action was taken by the concerned Army Officers, Inspector Abdul Razzak of C. 1. A. Police had received spy information on 26-3-1973, that Abdul Sattar was available in Sheezan Hotel, Hyderabad. S. I. P. Abdul Razzak arrested him while he was standing at the door of Room No. 36 of that hotel. The custody of Abdul Sattar was then handed over to S. H. O. Abdul Sattar on the same day. While in custody appellant Abdul Sattar volunteered to produce the radio-cum- tape-recorder and he led S. H. O. Abdul Sattar and mashirs Bago Khan and Muhammad Saeed to Room No.36 of Sheezan .Hotel and opening the said room he produced the radio-cum-tape-- recorder as well as the clothes which were worn by him at the time of incident. He also produced the clothes and the shoes worn by appellant Yakoob Ali at the time of incident. Such property was seized by the Police Officer under a mashirnama. On the same day at a later time appellant Yakoob Ali was also arrested while he was attending a 'Chehlum Majilis' and he led the same Police Officer and mashirs Ashiq Hussain and Ghulam Hussain to his house in Unit No. 7, Latifabad, where he picked up a key and opened a tin box and produced a pistol which was unlicensed. An identification parade was held on 27-4-1973 at City Police Station under the supervision of Mr.
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Ghulam Nabi, a local Magistrate at which witnesses Taufeeq, Amir Ali, Haroon, Shamsuddin and Dr. Muhammad Farooq; and complainant Abdul Ghani identified both the appellants in a line of 15 persons or more. The crime weapon, the four empties and two bullets extracted by the Medical Officer from the body of the deceased were sent by S. H. O. Abdul Sattar to the ballistic expert for examination and opinion. The opinion received by the Police Officer was positive to the effect that the crime bullets had been fired from the crime weapon. The piece of carpet seized from the shop of the deceased was also sent to the Chemical Analyser who has submitted a report to the effect that the same was stained with human blood. On the conclusion of investigation both the appellants were sent up to stand their trial which has resulted in their conviction and the consequent sentence. 4. On the above facts the prosecution case against the appellants was built up on the occular testimony of complainant Abdul Ghani and witnesses Taufeeq, Amir Ali, Shamsdin, Haroon, Dr. Muhammad Farooq and Muhammad Salim. In addition the evidence of Mr. Ghulam Nabi, the Magistrate who witnessed the identification parade was relied upon. At this identification parade all the witnesses except Muhammad Salim identified the two appellants. The prosecution also relied on the evidence of recovery. The stolen radio-cum-tape-recorder together with clothes of the appellants were recovered from Room No. 36 in Sheezan Hotel and such room was opened by the key which appellant Abdul Sattar had in his possession. The pistol with which the firing was done was recovered from appellant Yakoob Ali. In the first information report as well as the evidence of some witnesses a case was set up that the deceased had a quarrel with one zamindar of Ranipur in relation to the sale of a television and such zamindar had threatened the deceased. However, on evidence there is nothing to indicate that the motive for the crime was the complicity of the two appellants with that zamindar of Ranipur. According to the prosecution the motive for the crime was robbery or theft of the tape-recorder. 5. The prosecution has examined the complainant and the six eye--witnesses who have been named above. The Magistrate in whose presence the identification parade was held has also been examined. Bago Khan and Ashiq Hussain, respectively the mashirs of recoveries from appellants Abdul Sattar and Yakoob have also been examined. The prosecution also examined Mukhtar Ahmad, the Ballistic Expert. The evidence of Dr. Muhammad Siddique was brought on the record by the Sessions Court under section 509, Cr. P. C. The remaining witnesses were Investigating Officer Abdul Sattar Brohi, C. I. A. Sub-Inspector Abdul Razzak who had arrested appellant Abdul Sattar and Head Constable Adalat Khan who had sought the custody of appellant Abdul Sattar from the Military Authorities. The remaining witnesses are of formal character. 6. Appellant Abdul Sattar in his statement under section 342, Cr. P. C. Stated that the case against him is false, that the prosecution witnesses picked him out in the identification parade because he had been shown to them before the parade. In regard to Bago Khan, the mashir of recovery, he stated that he was under the influence of S. H. O. Abdul Sattar Brohi and had acted as mashir in other cases besides having been convicted for perjury in one case. In regard to the witnesses, he stated that they were interested and related to the deceased. In addition he set up a plea that on the day in question he was an in-door patient in Civil Hospital, Hyderabad. He also examined Dr. Mumtaz Memon to prove and produce the record in regard to his sickness and admission in the hospital. Appellant Yakoob Ali also denied the prosecution case and went on to state that the witnesses identified him because the police had already shown him to the witnesses. He alleged his implication to the police. He denied the recovery and stated that mashir Ashiq Hussain was a nephew of the Investigating Officer. In regard to the witnesses he stated that they were interested and related to the deceased. Both the appellants also alleged that their photos had been released by the police to newsmen, who have published the same in the daily "JUNG" and "IBRAT".
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7. Dr. Mumtaz Memon, who was examined in defence of appellant Abdul Sattar stated that on the basis of the record that had been produced in Court appellant Abdul Sattar was admitted in the hospital on 9.3-1973, showing thereby that on the day of incident Abdul Sattar was in the hospital for being treated in regard to pain in the chest, cough and breathlessness. 8. The primary evidence in this case is furnished by seven eye-witnesses, namely, complainant Abdul Ghani and P. Ws. Taufeeq, Amir Ali, Shamsdin, Haroon, Dr. Muhammad Farooq and Muhammad Salim. The last of these witnesees does not claim to have identified the two appellants, and therefore, he was not put to identification at the time of parade. The remaining six witnesses identified both the appellants in the identification parade that was held on 27-3-1973, viz. Within two days of the arrest of the appellants. None of the witnesses claim to know any one of the appellants before the incident and for such reason the evidence of these witnesses has to be evaluated on their power of perception and credibility in regard to their presence at the time of the incident as also the opportunity which they had to mark the physical features of the two appellants. Each one of these witnesses has claimed that the two appellants have been correctly identified by them. The incident took place at 2-00 or 2-30 p.m. In the day, and in crowdy bazar locality. It appears that there are many radio and Tee Vee shops in the locality. 9. Abdul Ghani complainant is a brother of the deceased and so are witnesses Haroon and Dr. Muhammad Farooq. Both Abdul Ghani and Haroon have radio shops in the vicinity of the scene. There is evidence that Abdul Ghani had joint business with the deceased and the evidence further discloses that the two appellants had first gone to the shop of Haroon who directed them to the shop of the appellant because the musical instrument of the nature that was demanded by the appellants was not available with him. Besides, the deceased had sent Taufeeq, a servant at his shop to call Haroon because the appellants had stated to the deceased that Haroon had quoted the price lesser than 1,200 Rupees that was demanded by the deceased. Dr. Muhammad Farooq is also a brother of the deceased who had while proceeding to his house presumably for lunch stopped at the shop of the deceased and had seen the two appellants there. In regard to Taufeeq, the prosecution evidence is that he was present at the shop of the deceased when the two appellants came there and selected the radio-cum-tape-recorder and when they said that P. W. Haroon had quoted a lesser price this witness was sent by the deceased to call Haroon and hardly had the witness travelled 3 or 4 paces when he heard firearm reports and saw both the appellants coming out of the shop of the deceased and at that time appellant Yakoob Ali was carrying radio- -cum-tape-recorder and Abdul Sattar was holding a pistol in his hand. The other two witnesses Amir Ali and Shamasdin are respectively the owner of a Tee Vee shop in the locality and apprentice at the shop adjacent to the shop of the deceased. The prosecution case is that appellants had first gone to the shop of Haroon, who directed them to the shop of his brother, the name of which shop was Tee Vee Traders, but the two appellants first came to the shop of P. W. Amir Ali, the name of which shop was Tee-Vee Centre. Amir Ali had then led the two appellants to the shop of the deceased and leaving them there he went to a nearby pan shop to purchase pan and cigarette. He met a friend at the pan shop and stood with him for about 15 minutes when he heard fire-arm reports and saw the two appellants coming out of the shop of the deceased and at that time one of the appellants was carrying a radio-cum-tape-recorder while the other was holding a pistol. Shamasdin has also given similar evidence to the effect that on hearing the shots he came out and saw the two appellants running away. The last of the, witnesses is Muhammad Salim, who was working as mechanic at the shop of the deceased and at the time the two appellants entered into the shop he was sitting behind a screen. He came in the shop on hearing the firearm reports and saw two persons going out of the shop. At that time one of such persons was carrying away radio- cum-tape-recorder and the other had a pistol in his hand.
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10. It would be seen from the circumstances of the case that the presence of all these witnesses at the scene is natural. Each one of the witnesses is a respectable shopkeeper or shop-assistant and none of them have enmity or grudge or reasons to implicate any of the two appellants falsely. Each one of the witnesses has disclosed the physical features of the two appellants and also the dress that they were wearing. All these witnesses have stated that appellant Abdul Sattar was wearing a dark brown (Nasi) shirt and shalwar while Yakoob Ali was wearing a yellow shirt and bell bottom trousers and a shoe having a buckle like a bow. The learned advocates for the appellants have pointed out that some of the eye-witnesses had given the colour of the clothes of appellant Abdul Sattar to be mehndhi colour. It is no doubt true that mehndhi is a dark green substance but when the same is applied after mixing with water the hue that it would leave on the hands would again be a dark brown or nasi colour. In addition it has been pointed out that while some witnesses had stated that appellant Yakoob Ali was clean shaven, others have stated that he had small thin moustaches. In our view the appellant having very thin small moustaches could have been described by the witnesses as being clean shaven. It has also been pointed out that some witnesses had described the two appellants as boys but in fact they were young men. It is common knowledge that even young men are often called boys and in, the present case appellant Abdul Sattar at the time of incident was abut 21 years while Yakoob Ali was 24 years. This also could not be a mis-description. In regard to the height of the two appellants Dr. Muhammad Farooq had stated that the two appellants were about 5'-6" or 5'-7" in height. It seems that in the committal Court he had given the height of the two appellants 6'-0". Request was made by the learned counsel for the defence to call the two appellants in Court for examining their physical features and such request was granted. We have found that appellant Abdul Sattar was about V-6" while appellant Yakoob Ali was slightly shorter than the other appellant. In regard to the height of a person a minor discrepancy can easily creep in but that by itself would not B show that the evidence of the witnesses is unreliable or false. In addition it has also been pointed out that the witnesses had stated in their earlier statements, viz. Police statements and section 164, Cr. P. C. Statements that appellant. Yakoob Ali was white in colour and was thin. When we had called the two appellants we found that both of them were dark and Yakoob Ali was a shade darker then appellant Abdul Sattar. One can--not forget that the two appellants have remained in custody for 5 and a half years. The rigours of the jail and exposure to the heat of season tends to create a dark balo on the appearance of persons. On the other hand we have seen the photographs of the two appellants in the daily newspapers that have been placed on record and we find that the appellants were fair in appearance at the time of the incident. In the end it must be stated that in Sind even persons having wheatish appearance are termed white. We have carefully examined all the aspects of the case in regard to the descriptive features of the appellants as have appeared in evidence and we find no reason to believe that the description given by the witnesses does not correspond to the appellants. 11. The learned counsel for the appellants have additionally urged that witnesses Dr. Muhammad Farooq and Abdul Ghani were chance witnesses and their evidence should not be relied upon. It could not be overlooked that both these witnesses are brothers of the deceased and their coming to the shop of the deceased would neither be improbable nor unnatural. Dr. Muhammad Farooq had visited the shop of the deceased while going to his house and Abdul Ghani's presence is not open to doubt because he had carried the deceased in his car to the hospital. Abdul Ghani had joint business with the deceased and his own shop was in the same locality. He had stated that shortly before the incident he had come to the shop of his brother. We find nothing unnatural about this visit. On the other hand the presence of witness Taufeeq at the scene cannot be doubted. He works at the shop of the deceased and was sent by the deceased to call Haroon. In addition Amir Ali and Shamasdin, who are completely independent have also described the appellants and their
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evidence is convincing. Amir Ali has stated that hearing the shots he came out of his shop and saw both the persons coming out of the shop of the deceased and he even chased them. Shamasdin also saw both the appellants running towards a lane immediately after the incident and he bad also chased them. Both these witnesses had ample opportunity to mark the features of the two appellants. 12. The appellants were arrested on 26-3-1973 and without any undue loss of time an identification parade was held on the morning of 27-3-1973, which was witnessed by Mr. Ghulam Nabi, a local Magistrate. All the 6 eye-witnesses had correctly identified both the appellants. The parade was held in the open ground on the back side of City Police Station, Hyderabad, and before the parade all the witnesses had been kept in the room of Deputy Superintendent of Police. There is nothing on record to indicate or even suggest that the police lock-up or the spot where the parade was held was visible from the room where the witnesses were made to sit before the parade. Suggestions have been made in cross-examination and both the appellants have also stated in their section 342, Cr. P. C. Statements that they had been shown to the witnesses before the parade. Besides the bald suggestions there is not an iota of evidence to support the plea of the appellants. The presence of a Magistrate at the time of the parade is an added guarantee in regard to his fairness. No witness committed a mistake in identifying anyone of the appellants and 15 dummies bad been mixed with the two appellants which minimised the chance of mistake in identification or any possible chicanery on the part of the police. The appellants also did not make any such complaint to the Magistrate on the score of their having been shown to the witnesses before the parade. 13. The next allegation of the appellants is that they had been photographed while in police custody and such photos had been shown to the witnesses. Additionally they have stated that their photographs had been published in two daily newspapers and such newspapers have been placed on the record. Both these newspapers were published on the morning following the parade. It is, therefore, impossible for the witnesses to have seen the photos in the newspapers and in regard to the allegations of appellant's photos having been shown to the witnesses before the parade, there is nothing on record to support the plea. This parade, in our view has been one of the fairest parades and is not open to any exception. 14. In regard to the evidence of identification the learned Advocates for the appellants have submitted before us that evidence of identification is evidence of very weak type and should not be considered sufficient to base a conviction. In short the general criticism is based on the human factor, the working of human mind and also the possible human feelings that often pursuade a person to believe that he saw something when in fact he did not see it. It is no doubt true that when the Court considers the evidence of identification it is on double caution and has to approach the evidence with deeper sense of scrutiny for sometimes the features of two persons may be identical or so resembling that a possible chance of mistaken identity is not precluded. But if the Court is satisfied in regard to the evidence of identification being genuine and sufficient the same can form the basis of conviction without any corroboration. Although the case of Ramzan v. Emperor (AIR 1929 Sind 129) was not cited before us, we have considered that decision. Percival, C. J. And Aston A. J. C. Of the Judicial Commissioner's Court, Sind were dealing with a case of dacoity. The learned Judges referred to the famous case of Adolf Beck and stated that the recognition of an offender not previously known to the witnesses was a form of evidence which had always to be taken with considerable amount of caution because of the possibilities of mistakes. However, the learned Judges thought it was just theoretical and on the practical aspect of the case they went on to state as follows; "Still it is a question how far they are evident which can suitably form the main basis of a conviction. I am disposed to hold that as a rule they are not quite sufficient to form the basis of a
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conviction, though they may perhaps add some weight to other evidence against an accused person." We would respectfully disagree with the observation of the learned Judges that the evidence of identification by itself would not be sufficient for a conviction. It appears that this is a solitary judgment from the Courts of sub-continent but otherwise the preponderance of authority is to the contrary. No doubt the various High Courts in the sub-continent have held on the basis of experience that in cases of dacoities at night or when chance of the culprits…
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