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Petitioner: FAHIM-UL-HAQ and others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Sarmad Jalal Osmany, Ghulam Nabi Soomro Title: FAHIM-UL-HAQ and others vs THE STATE Case No.: Cr. Appeals Nos.62 of 1996, 202 and 208 of 1995 Date of Judgment:2004-04-05 Reported As: 2004 P C R L J 1492 Result: Order accordingly
JUDGMENT
JUDGMENT ' SARMAD JALAL OSMANY, J.--- The facts and evidence in all the aforementioned three appeals are common having arisen out of F.I.R. No,122 of 1995 of P.S. Ferozabad and hence they are being disposed of through this judgment. 2. Briefly stated the facts of the case per aforestated F.I.R. Lodged on 2-3-1995 at 7-00 hours are that on the night between 1-3-1995 and 2-3-1995 at about 3-15 hours the complainant Inspector Anwar Zaib, S.H.O. P.S. Ferozabad, received a wireless message that firing had occurred at Bungalow No,10-J, Block-2, PECHS, Karachi. The complainant alongwith other officers and staff rushed to the said address where some women and children were present and also a boy Furqan Ayub aged 13/14 years who had fresh bullet wounds on his head. Upon enquiry he narrated the incident that on the same night at about 12-00 hours three accused persons aged between 22-30 years armed with pistols had entered into the house on the first floor. Thereafter on gun-point they assembled the deceased viz. Kamran Ayub, Muhammad Ayub, Maqsood Shah, Munawar Shah, Ejaz Hassan, Hassan Ali, Fayyaz Hassan and Imran Ayub alongwith himself on the second floor while detaining the women folk on the first floor. Thereafter they committed robbery from the houses of both the floors of jewellery cash and clothes etc. Which they transported to the car of Hassan Ali. Then they tied the hands of all the above persons including Furqan Ayub and pushed them in a bed room when they fired upon them with their pistols as a result of which except Furqan Ayub the remaining seven persons were killed. The accused thinking that Furqan had also died fled away with the robbed articles in the car at about 2-45 a.m. The complainant then entered the bed room of the house at the pointation of Furqan Ayub where he found the dead bodies of the afore-stated deceased persons which were lying scattered with multiple fire-arms wounds. So also empties and
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household articles were lying in the house at both floors. The deceased were shifted to JPMC for medical examination and after completion of legal formalities the F.I.R. Was registered against three unknown persons for having committed robbery and murder of the seven deceased persons.. 3. On 2-4-1995 appellant/accused Mansoor Ali Babar, Umar Hayat, Muhammad Fazil, Karimullah Shareef and one Asif Ali were arrested by I.O. Inspector Muhammad Rind near Akhtar Bilgrami Building, Badar Commercial Area, Phase-V, DHA, on the basis of spy information from a Yellow Tax Cab. Various arms and ammunitions were recovered from the accused alongwith wallets, wrist watches, phone diaries, mobile telephone, driving licences etc. However, other accused who were available in a Toyota Corolla Car made good their escape after abandoning the same, from which a mobile telephone and NIC of appellant Ahmad Bux was found. Thereafter the accused led the police party to a flat in the area and produced certain robbed articles viz. Clothing, watches, hangers, attache case, black suit case, video cassettes etc. Then the identification test of the accused persons as well as the case property was held through the prosecution witnesses and these appellants/accused also recorded their confessional statements before the concerned Magistrate. 4. On 10-4-1995 appellant Saghir Ahmad Shaikh was arrested by I.O. Insp. Muhammad Ali Rind from a flat in Zamzama Area DHA Karachi alongwith 3 other persons. Some clothes, a VCR and others items were recovered from the flat. 5. On 9-5-1995 appellant Ahmed Zahoor was arrested by S.-I. Sajjad Hyder from PECHS area while he was a riding Honda motorcycle from whom a wrist watch and one wallet was recovered. 6. On 15-5-1995 accused Khawaja Saleemuddin was arrested by S.-I. Sajjad Hyder in Sakhi Hasan area in Karachi from a Suzuki Khyber car. A .30 bore pistol alongwith a wrist watch and wallet plus telephone diary was recovered from him. He was put to an identification test and recorded his confessional statement on 21-5-1995 before a Magistrate. 7. Appellant Hafiz Ahmad Bux was arrested on 21-5-1995 from Central Prison Karachi. Nothing was recovered from him. 8. Finally on 28-5-1995 the challan was submitted against all the above named accused showing appellant/accused Fahimul Haq as an absconder. Sections 87 and 88, Cr.P.C. Proceedings were initiated and other formalities were completed thereafter the charge' was framed against the accused persons to which they pleaded not guilty and demanded their trial. 9. In support of its case the prosecution examined P.W.1 A.S.-I. Sarfraz Mashir of Wardat, P.W.2 Dr. Nawaz Ali who conducted postmortem examination of dead body of Ejaz Hassan, Hassan Ali, Fiaz Hassan' and Imran Ayub, P.W.3 Ahmed Ali Mashir who produced the memo. Of inspection of dead bodies. Exh.20 and inquest reports of deceased Kamran, Muhammad Ayub, Masood Shah, Ejaz Hassan, Hassan Ali, Fiaz Hassan and Imran Ayub as Exh.Nos.21 to 27, P.W.4 Dhani Bux Baluch, Magistrate who recorded the confession of accused Salimuddin Exh.29, P.W.5 Dr. Ayaz Ali who examined injured Furqan Ayub and conducted post-mortem examination of the deceased Kamran, Muhammad Ayub, Masood Shah, P.W.6. Majeed Abbas, S.I.P. Who had prepared the Mashirnama of Wardat and sketch, P.W.7, S.I.P. Muhammad Ashraf of Police Station Frere Hall who secured the car of deceased Hassan Ali and handed it over to Anwar Zaib, P.W.8 Manzoor Hussain, S.I.P. Of Ferozabad who prepared the inspection of dead bodies and inquest reports Exh.20 to 27. P.W.9 Abdul Karim Sehwani, Magistrate who held the identification of robbed property and recorded the confession of accused Mansoor Ali Babar, Umar Hayat and Muhammad Fazil, P.W.10 Mst. Mumtaz Ayub, P.W.11 Furqan Ayub, P.W.12 Nazia Ayub, P.W.13 Faiz Batool, P.W.14, Sofia Hassan (all eye-witnesses), P.W.15 Maqbool Hussain Shah Mashir of recovery P.W.16 Abdul Rasheed Mashir of arrest of accused etc. P.W.17 Tauqeer-ur-Rehman Mashir of recovery of property and arrest of accused, P.W.18 S.I.P. Sajjad Hyder of CIA, P.W.19 Malik Arif Usman Mashir, P.W.20 Shakir Ali process-
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server, P.W.21 Muhammad Ali Rind Investigating Officer, P:W.22 Anwar Zaib Investigating Officer, who has given the account of his investigation as stated above and produced sealed envelopes received from the Ballistic Expert containing his opinion regarding the arms and finger prints etc. And acknowledged to have received sealed parcel of empties and bullets sent to him by P.W. Anwar Zaib through letter dated 6-3-1995 and P.W.23 Shariq Hussain Credit Executive (Instaphone). Learned S.P.P. Then closed the prosecution vide statement Exh.111. 10. The statements of the accused were recorded under section 342., Cr.P.C. The case of the accused is of total denial of the prosecution's allegations and they claimed their innocence on the basis of false implication'by the police. They examined the following witnesses in their defence:-- (a) Accused Mansoor Ali Babar examined his mother D.W. Reliana Begum. (b) Accused Umer Hayat examined D.W. Gulshan and D.W. Muhammad Zafar. (c) Accused Muhammad Fazil examined D.W. Muhammad Ameer and D.W. Azhar. ' All these witnesses stated that the accused were arrested from their houses respectively at night on 3-3-1995. (d) Accused Karimullah Sharif examined D.W. Haji Kifayatuliah Sharif his father who deposed that his son was missing from 27-3-1995 and on 3-4-1995 he came to know about his arrest through the newspapers. So also D.W. Attaullah Khan deposed that accused was taken away by some persons on gun-point from a garage on 27-3-1995. (e) Accused Ahmed Bux examined D.W. Qari Shamsul Haq and Moulana Abdul Ghafoor who deposed that accused was arrested on 10-3-1995 from the mosque after Juma prayers. Abdul Ghafoor further added that Muhammad Ali Rind had taken the NIC of accused from him. (f) Accused Saghir Ahmed Sheikh has examined D.W. Abdul Matin who deposed that accused was on duty at his godown on 1-3-1995 from 9 a.m. To 11 p.m. And D.W. Shamsuddin deposed that accused was arrested from a mosque after Juma prayer and this witness further added that accused Salimuddin was arrested on 13-5-1995 from Bufferzone. (g) Accused Salimuddin also examined D.W. Qamar Wahab who deposed that his stolen Car No,0232 Suzuki was recovered by police and he had seen it at CIA Garden on 3-5-1995. (h) Accused Ahmed Zahoor has examined his mother in defence who deposed that he was produced at PS CIA Garden. (i) Accused Ishtiaq (acquitted by the learned trial Court) examined his brother in defence that he was arrested from Sukkur by police of "B" Section Sukkur. But all the accused have declined to examine themselves on oath in disproof of the charge. 11. After having heard counsel for the State as well as for the accused the learned trial Court came to the conclusion that accused Muhammad Fazil, Khawaja Salimuddin, Ah.Mad Zahoor as well as absconding accused Fahimul Haq who had gone to the Flat in question and committed the murder of the deceased were guilty as charged and convicted them under section 302/34, P.P.C. And awarded death sentence as well as a fine of Rs.1,00,000 each which if recovered would be distributed amongst the heirs of the deceased or in default thereof they were to undergo R.I. For 3 years each. They were also found guilty of having made an attempt over the life of P.W. Furqan Ayub hence convicted under section 307/34, P.P.C. And sentenced to undergo R.I. For 10 years each alongwith fine of Rs.10,000 each, in default thereof they would suffer further R.I. Of one year each. So also the abovenamed accused were found guilty of robbery and hence convicted under section 394, P.P.C. And sentenced to undergo R.I. Of 5 years each as well as to pay fine of Rs.10,000 each in default whereof they would suffer additional R.I. Of one year each. Accused Mansoor Ali Babar, Karimullah Sharif, Umar Hayat, Saghir Shaikh and Hafiz Ahmad Bux were found guilty of abetting the murder of the deceased as well attempt over the life of Furqan Ali as also robbery in question hence they were convicted under section 109 read with section 34, P.P.C. And sentenced to death. They were further sentenced to pay a fine of Rs.1,00,000 each in default whereof they were to suffer
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3 years more R.I. In case of recovery of the fine it was to be equally distributed amongst the heirs of the deceased. 12. Mr. Muhammad Ashraf Kazi appearing for the appellants Mansoor Ali Babar, Umar Hayat, Muhammad Fazil, Khawaja Saleemuddin and Ahmed Zahoor in Criminal Appeal No,202 of 1995 has submitted that the evidence against all the foregoing appellants consists of the following;-- (a) Ocular viz eye-witness account as well as the identification test. (b) Confessions of the accused actually charged with the murders of the deceased. (c) Confession of the co-accused. (d) Recoveries. (e) Medical evidence. (f) Circumstantial evidence. 13. Learned counsel has firstly taken up the case of appellants Khawaja Saleemuddin and Muhammad Fazil who were charged with the actual commission of the deceased's murders. In this regard he has submitted that the evidence of eye-witness Furqan Ayub who had been injured could hardly be relied upon as firstly he was a minor when the incident occurred and secondly it could not be expected that he would be able to retain a photographic memory of the accused in the heat of the moment and thus, would be able to pick out the accused in the identification test or before the learned trial Court. Similarly, per learned counsel the other eye-witnesses viz. Mst. Mumtaz Ayub, Nazia Ayub. Shazia Ayub, Faiz Batool and Safia Hassan are placed in the same situation. He has further submitted that the Judicial Magistrate A. Karim Sehwani has admitted in his cross-examination that only seven dummies were mixed with the accused in the identification parade which is not in accordance with law. In support of this proposition learned counsel has relied upon Saeed Muhammad Shah v. The State 1993 SCMR 550; Muhammad Sadiq v. Muhammad Sarwar 1979 SCMR 214; Ayab Masih v. The State PLD 2002 SC 1048; Sard Ahmed v. Zammarrud Hussain 1981 SCMR 795. As regards the confessions of Khawaja Saleemuddin and Muhammad Fazil learned counsel has criticized them as being stereotyped without there being a single error and quite similar to the confessions of co-accused Utnar Hayat, Karimullah Sharif, and Mansoor Ali Babar. In this regard he has further submitted that the confessions of the main accused are contradictory to each other as each of them have given a different version of the incident as well as ascribed different roles to themselves as well as other co-accused. He has also referred to the statements of these accused under section 342, Cr.P.C. Whereby they have retracted their confessions as according to them their signatures were obtained on, blank papers by the police and thereafter the confessions were typed on the same. Hence, per learned counsel in the absence of satisfactory corroboration which is not forthcoming in the case, the retracted confessions of Khawaja Saleemuddin and Muhammad Fazil cannot be taken into consideration in the instant case for the purpose of awarding them capital punishment. Similarly, the confession of the co-accused cannot also be used for this purpose. On this score alone the confessions deserve to he ignored altogether. Finally as regards the confessions of these accused learned counsel has submitted that no certificate under section 364(2), of the Cr.P.C. Has been given by the concerned Magistrate which in the circumstances of the case is a fatal defect which would render the confessional statements inadmissible in evidence. Reverting to the case of Khawaja Saleemuddin learned counsel has submitted that he has been shown as arrested on 15-5-1995 from a car at Sakhi Hassan Roundabout in North Nazimabad by A.S.-I. Sajjad Hyder during an encounter. However, D.W.1 Qamar Wahab in his deposition has stated that this car was stolen on 26-4-1995 and on the evening of 3-5-1995 upon a message being received from C.I.A. Police Garden, he found his car standing there. He received back the car on 24-5-1995 through the Court. Hence learned counsel has submitted that in the circumstances how could the car be driven by accused Khawaja Saleemuddin on 15-5-1995. Accordingly per learned counsel the arrest and recovery from Khawaja
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Saleemuddin is entirely fake. As far as the arrest of Muhammad Fazil is concerned, learned counsel has submitted that this was shown on 2-5-1995 from a yellow cab in defence area and again cannot be substantiated. As per statement of I.O. Muhammad Ali Rind there was a police encounter but there is nothing on record o substantiate the same viz. Recoveries of empties etc. Or damage to .He yellow cab in question or for that matter the police vehicle. 14. Taking up the case of appellant Ahmad Zahoor learned counsel has submitted that he has never confessed and nor was he put to any identification test and also nothing was recovered from him which is of any consequence. However, he has been convicted on the basis of the co- accused's confession alone on the theory of abetment/common intention being the person on guard duty outside the building in which the murders were allegedly committed by appellant Muhammad Fazil and Khawaja Salimuddin on the day of incident. Again learned counsel has asserted that as the co-accused's confession is stereotyped etc. And hence hardly reliable for the basis of the conviction of appellant Ahmad Zahoor. 15. As regards the cases of appellants Mansoor Ali Babar and Umer Hayat in Cr. Appeal No,202 of 1995 again learned counsel has submitted that the arrest of these two accused from the yellow cab on 2-4-1995 cannot be substantiated as no evidence has been produced by the prosecution regarding a police encounter etc. Similarly the confession of these two accused are again stereotyped without any typographical errors and similar to the confessions of co-accused Muhammad Fazil and Khawaja Saleemuddin. As these confessions were retracted they had to be corroborated by other pieces of evidence which the prosecution has failed to accomplish. Hence per learned counsel these confessions also cannot be relied upon in the circumstances of the case for the conviction of the two appellants. 16. Learned counsel has next referred to the witnesses examined by the above appellants/accused in their defence viz. D.W. Rehana Begum the mother of Mansoor Ali Babar, D.W. Muhammad Gulshan on behalf of appellant Umer Hayat, D.W. Qamar Wahab on behalf of Khawaja Saleemuddin, D.W. Kifayatullah Sharif the father of the appellant Karimullah Sharif, D.W. Mst. Aysha the mother of appellant Ahmad Zahoor. D.W. Muhammad Aminuddin and D.W. Azhar Hussain on behalf of- the appellant Muhammad Fazil. Per learned counsel the depositions of the foregoing witnesses would show that each of the accused has a very good alibi which would establish firstly that on the day of incident there were available elsewhere, and secondly they were not arrested from the place as per the prosecution version. 17. Mr. Azizullah Sheikh appearing for appellants Hafiz Ahmad Bux and Saghir Ahmad Sheikh in Cr. Appeal No,202 of 1995 has firstly submitted that both these accused were convicted on the basis of abetment for which the confessions of other co-accused viz. Mansoor Ali Babar, Umar Hayat, Muhammad Fazil, Khawaja Saleemuddin and Karimullah Sharif were relied upon. Per learned counsel all these confessions are contradictory to each other as different roles have been assigned to various accused persons. Secondly these confessions are stereotyped and not a single mistake has occurred which is very strange in the circumstances of the case. Hence as the confessions were retracted they had to be corroborated by independent evidence which is not forthcoming in the matter. Thirdly per learned counsel section 43 of the Qanun-e-Shahadat Order provides that even if a confession is proven to be true it can only be used against a co-accused as a circumstantial piece of evidence which is a very weak type of evidence and cannot on its own form the basis of a conviction. For the proposition learned counsel has relied upon Maqbool Hussain v. The State PLD 1960 SC 382; Joygun Bibi v. State PLD 1960 SC 313 and Shabiul Hasan v. State PLD 1991 SC 898. 18. Next learned counsel has submitted that the arrest of both the accused is very dubious as it is full of contradictions. Taking up the case of appellant Saghir Ahmad Sheikh per the prosecution he was arrested from a flat in Zamzama area on 10-4-1995 as per the memo. However, per the I.O. He
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was arrested from the I.-G. Cell on 24-4-1995. Again per a news item in daily Jang dated 4-4-1995 this appellant is stated to have been arrested from Hyderabad whereas Qaumi Akhbar has carried a news item on 1-4-1995 that this appellant was arrested in Hyderabad on the same day. Next per learned counsel a certificate has been issued by the MCB, Market Chowk, Hyderabad dated 28-11- 1995 that appellant Saghir Ahmed Shaikh had been working as a temporary Godown-keeper from 1-2-1995 to 29-3-1995 and on 1-3-1995 he had been working from 9 a.m. To 11 p.m. Such certificate was produced by D.W. Abdul Matin Farooqi the Manager of MCB. Again DW Shamsuddin has deposed that this appellant was arrested on 31-3-1995 at Hyderabad from Madina Masjid Unit No,7, Latifabad. Hence per learned counsel the preponderance of the evidence would establish that the appellant Saghir Ahmad Sheikh was arrested in Hyderabad on 31-3-1995. Taking up the case of appellant Hafiz Ahmad Buz, learned counsel has submitted that his arrest which was shown on 21- 5-1995 from Central Jail, Karachi is again doubtful as.Both D.Ws. Qazi Shamsuddin and Qari Abdul Ghafoor have deposed that he was arrested on 30-3-1995 from a mosque at Karachi. 19. Mr. Mian Khan Malik appearing for Karimullah Sharif in Cr. Appeal 208 of 1995 has submitted that this appellant was convicted on the basis of abetment for which his own confessional statement was relied upon alongwith those of the other co-accused. Regarding such confessional statement as it was retracted there has to be independent corroboration which is missing in the matter. Secondly learned counsel has supported the arguments of Mr. M.A. Kazi and Mr. Azizullah Shaikh as regards the evidentiary value of all the confession viz. That being stereotyped, contradictory and without any typographical errors, the same could not be relied upon to form the basis of a conviction. In this regard learned counsel has also submitted that there is a delay of four days in recording of the confession as the appellant was arrested on 2-4-1995 and his confession was recorded on 6-4-1995. Secondly, as regards this issue, per learned counsel after recording of the confession the accused cannot be remanded to police custody as was done in this matter and hence the value of such confession would be materially impaired. In support of his submission learned counsel has relied upon Wazir v. The State PLD 1960 Kar. 674; Syed Abid Hussain Shah v. The State 1983 PCr.LJ 882; Amanatullah v. The State 1986 PCr.LJ 523; Fateh Shah v. Muhammad Hassan 1983 PCr.LJ 1893. Finally per learned counsel nothing has been recovered at the pointation of this appellant although some articles were recovered from a flat allegedly rented in his name at the pointation of co-accused which were identified by the eye-witnesses. Per learned counsel in the absence of any concrete evidence that the flat in question was rented by the appellant mere recovery of the incriminating articles would not be sufficient to form the basis of a conviction on the theory of abetment. 20. Mr. Muhammad Ashraf Kazi appearing for appellant Fahimul Haq in Cr. Appeal No,62 of 1996 has submitted that this appellant was declared an absconder by the learned .Trial Court and was convicted in absentia. Per learned counsel the provisions for a trial in absentia are contained in section 5-A of S.T.A. Act according to which such a trial can only be undertaken against an accused after the Court is satisfied upon an inquiry conducted in this behalf, that the absence is deliberate and brought about with a view to impeding the course of justice, provided however, before the trial is undertaken a proclamation should have been issued in respect of the accused in at least three national daily newspapers out of which one should be in the Urdu language; and also after an Advocate has been appointed to defend the accused by the Court. Learned counsel has submitted that as none of the foregoing provisions of law had been complied with by the learned trial Court, hence the trial and conviction of appellant Fahimul Haq in absentia was totally against the law and the same should be set aside. In any event per learned counsel, a trial in absentia has been declared to be violative of Articles 10 and 25 of the Constitution which guarantee safeguards regarding arrest and detention and equality before the law respectively. In support of his submissions learned counsel has relied upon State v. Lal Muhammad PLD 1973 Pesh. 135; Sahib Dad
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v. The State 1993 PCr.LJ 1778; Ziaullah Khan v. The Government of Punjab PLD 1989 Lah. 554 and Government of Punjab v. Ziaullah Khan 1992 SCMR 602. ' As regards the delay in the filing of the appeal learned counsel has submitted that appellant Fahimul Haq was arrested on 20-2-1996 viz. After the impugned judgment was delivered and he filed the appeal on 3-6-1996 and hence the same is within time' keeping in view the provisions of section 29(2) of the Limitation Act. He has relied upon Ahsan Ali v. The District Judge PLD 1969 SC 167 and Ch. Khan Ali v. The State 1969 SCMR 42. 21. Mr. Muhammad Sarwar Khan, learned Addl. A.-G. Appearing for the State in all the appeals has firstly taken up the case of the alleged perpetuators of the crime viz. Appellant Khawaja Saleemuddin and Muhammad Fazil. In this connection, per learned A.A.-G. The pieces of evidence are firstly the ocular account, secondly the medical reports, thirdly the recoverjes, and finally the confessional statements of these two appellants. As to the ocular account learned A.A.-G. Has submitted that all the prosecution witnesses examined in this connection are natural ones as they were inhabitants of the houses where the gruesome murders took place. He has referred to the deposition of P.W.10 Mst. Mumtaz who picked out appellant Khawaja Saleemuddin and Muhammad Fazil as well as recognized the stolen property both in the identification test as well as in Court. He also referred to the deposition…
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