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Petitioner: JAWAD ALI VS Respondent: STATE
Court Name: Balochistan High Court Judge(s): Iftikhar Muhammad Chaudhry, Amir-ul-Mulk Mengal Title: JAWAD ALI vs STATE Case No.:Criminal Jail Appeal No,90, Criminal Appeal (Acq.) 83, Criminal Revisions
JUDGMENT
Reported As: 1993 P Cr. L J 255 Result: Order accordingly Judgment JUDGMENT ' AMIRUL MULK MENGAL, J.--- Appellant Jawad All was tried for an offence under section 302/307, P.P.C. He was found guilty for the offence under section 302, P.P.C. And was convicted by learned Sessions Judge (ad hoc), Quetta on 20-4-1992 who passed the following sentence:-- "On the basis of the above discussion it is established that the accused has committed murder by intentionally causing serious injuries to Muhammad Ismail (Milo) by means of fire-arms which resulted his death. But under the circumstances it was done warrants that punishment for imprisonment for life is enough to meet the ends of justice. The accused is, therefore, convicted and sentenced to suffer life imprisonment with fine of Rs,5,000 under section 302, P.P.C. The offence against 307, P.P.C. Is not established as no evidence has come on record to establish that the accused went at the trust with intention to commit murder of Fida Hussain, Syed Hashim and Munawar Hussain. It was an accident and was done in self-defence. Case property clothes be destroyed and pistol be confiscated." ' Being aggrieved from the said judgment Jawad Ali filed an Appeal No,90 of 1992 against his conviction. Simultaneously the State also filed an Appeal No,83 of 1992 challenging the acquittal of convict Jawad All under section 307, P.P.C. And a Criminal Revision No,39 of 1992 against the lesser sentence awarded to the appellant with the prayer for enhancement of the same to death. Similarly the complainant filed a Criminal Revision No,29 of 1992 for enhancement of sentence of imprisonment for life to death. ' Since both the appeals as well as the revision petitions challenge the same judgment passed by .Learned Sessions Judge (ad hoc), Quetta and the facts and law points being the same, therefore,
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we intend to dispose of all the aforesaid matters by this common judgment. 2. Relevant facts, if put succinctly, are that an F.I.R. No,42 of 1990 was registered on basis of Fard-e- Bayan of Muzzaffar Ali complainant with Quaidabad Police Station on 11-5-1990 at 9-10 p.m. It was disclosed therein that complainant was informed by one Muhammad Hashim that appellant Jawad Ali had fired at his brother namely Muhammad Ismail alias Milo and inflicted grievous injuries to him. The complainant proceeded to Falahi Trust situated at Alamdar Road, Quetta where he learnt that Jawad Ali had injured Muhammad Ismail, Syed Hashim, Muhammad Essa and Munawar Hussain. The injured persons had been taken to. Hospital, therefore, he also reached Casualty Department of Civil Hospital, Quetta where he found the dead body of his brother Muhammad Ismail Milo who had succumbed to injuries on reaching hospital. He had received bullet injuries on his neck and on the right rib. Jawad Ali had fired and killed his brother, and he requested for legal action to be taken against accused. F.I.R. Was registered and the S.H.O. Alongwith other police personnel after receiving information from the Casualty Department proceeded to Civil Hospital, Quetta. 3. Another F.I.R. No,43 of 1990 was registered regarding the same incident at 12-05 o'clock (at night) under section 326, P.P.C. Wherein appellant Jawad Ali stated that at about 8-45 p.m. When he was sitting in his hotel he was called by Munawar Hussain and when he reached near Munawar Hussain, he found him drunk. He abused him and said why he propagated against Milo and Syed Hashim. He replied that he had never propagated against them. In the meanwhile Munawar Hussain took out a Rumbi from his pocket and attacked him. He sustained injuries on the left side of his buttock and backside. He requested action against Munawar Hussain. 4. Police after registering the aforesaid two F.I.Rs, started investigation and conducted necessary inquiries. Finally challan was put up for trial. 5. Charge was framed by Additioal Sessions Judge-I, Quetta on 29-11-1990 to which the appellant Jawad Ali PLEADED NOT GUILTY. The prosecution examined 16 witnesses in support of the allegation of murder namely P.W.1 Muzaffar Ali, P.W.2 Syed Hashim, P.W.3, Abid Hussain, P.W.4 Fida Hussain, P.W.5 Ghulam Hussain, P.W.6 Noor Khan, P.W.7 Muhamad Rafiq, P.W.8 Haji Abdul Wahid, P.W.9 Ghadeer Ali, P.W.10 Muhammad Ayub, P.W.11, Dr. Abdul Sattar, P.W.12 Yaseen Ali, P.W.13 Munawar Hussain, P.W.14 Mubarek Shah, P.W.15 Dr. Amin Malghani and P.W.16 Abdul Aziz. Appellant did not produce any evidence in defence except his own statement recorded under section 340(2), Cr.P.C. He was also examined under section 342, Cr.P.C. 6. On appraisal of evidence learned trial. Judge found the appellant guilty for murder of Muhammad Ismail Milo and passed the aforesaid sentence. However, he acquitted him from the charge under section 307, P.P.C. Hence this appeal. 7. Learned trial Judge settled following points for determination:- (1) Whether Muhammad Ismail died unnatural death; (2) Whether Muhammad Essa, Syed Hashim and Munawar Hussain sustained bullet shot injuries. (3) Whether accused made indiscriminate firing on account of his self-defence. (4) Whether accused committed murder by intentionally causing death of Muhammad Ismail by means of firing. (5) Whether accused injured Syed Hashim, Muhammad Essa and Munawar Hussain intentionally or on account of his self-defence. ' Case of prosecution hinges on the following pieces of evidence:-- (1) Ocular evidence of eye-witnesses namely P.W.2 Syed Hashim, P.W.3 Abid Hussain, P.W.4 Fida Hussain and P.W.13 Munawar Hussain Gunju. (2) Circumstantial evidence like blood-stained earth secured from Wardat, (Exh.P.5/A), eight empties of pistol (Exh.5-B), four lead (spent bullets) from Wardat (Exh.5-C), recovery of pistol from
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graveyard at the pointation of accused (Exh.P.8/A) alongwith eight live cartridges and bag containing 13 catridges. (3) Ballistic Expert Report (Exh.P.16/E) which is positive. (4) Medical evidence of Dr. Abdul Sattar who issued death certificate (although post-mortem was not allowed by the relatives of deceased). Statement of Dr. Amin Malghani regarding injured persons and the appellant. (5) Motive. ' According to prosecution Muhammad Ismail Milo was running Flahi Trust where heroin addicts were treated. Appellant Jawad Ali although ostensibly was running a hotel but in fact it was a place where he used to sell heroin and drugs. He was aggrieved of the Welfare Trust which besides treating the addicts was against drugs, therefore, this had caused a grievance against Muhammad Ismail Milo and accused went there armed with a loaded pistol and started quarrel and ultimately on seeing Muhammad Ismail Milo coming out of Falahi Trust fired at him, then he fired at Syed Hashim. Thereafter he injured the remaining P.Ws. Including Essa who was not examined. ' It is pertinent to mention that in support of the second F.I.R. i,e. No,43 of 1990, the accused gave a statement before the trial Magistrate, which will be discussed at a relevant stage of judgment. However, no witness was produced in defence. ' From perusal of ocular evidence and taking into consideration the other circumstantial evidence the prosecution case is that on the night of incident deceased Ismail Milo was in the Falahi Trust and Muhammad Hashim (injured) was sitting on pavement of the Trust. Appellant Jawad Ali came there and started quarrelling with Muhammad Hashim. Hearing the commotion, Muhammad Ismail alias Milo came out of Trust and asked appellant not to do illegal things/actions. Seeing him on the spot appellant stated that he would not, spare him for the reason that it was he who instigated the police to raid his hotel for drugs. At this moment he fired two shots at Muhammad Ismail Milo who fell down. Then he fired 3/4 shots at P.W. Muhammad Hashim who was injured and fell down but he was still conscious. Accused then proceeded towards Muhammad Ismail who had fallen injured on the ground. Accused saying that he would not spare him today and will finish him once for all then aimed at his neck and fired the fatal shot. In the meanwhile a large number of people had gathered who after seeing that accused had injured Muhammad Ismail Milo and Muhammad Hashim were enraged. They tried to catch hold of the appellant. To this appellant started firing as a result whereof P.W. Munawar Hussain alias Gunju and Muhammad Essa also received bullet injuries. P.W. Munawar Hussain saw a Rumbi lying there and he inflicted injuries on the buttock of Jawad Ali who while firing astray ran from the place of incident. ' Appellant's case as put before us in appeal was that he is a man running a hotel having no connection with drug business. Since his hotel and Falahi Trust of Milo were at a close distance and that members of the Trust very often used to take tea without paying the bill, therefore, he went to ask for the payment of the bill for the tea, taken by the incumbents of the Welfare Trust. To this P.W. Syed Hashim told him "URDU TEXT". Then Muhammad Ismail Milo along with Munawar Hussain came out of the Trust and said "take him inside the trust and set him alright". Then there was a scuffle and Muhammad Hashim took out his pistol which went off hitting Milo. He then ran away. ' Thus there are two conflicting versions of the incident before us. Therefore, while disposing of the matters, these two divergent pleas have to be put in juxtaposition in order to reach a just conclusion. ' We firstly proceed to see the prosecution version and to re-assess the evidence produced before the trial Court. There are four eye-witnesses who deposed against the present appellant. P.W.2 Syed Hashim who himself was injured in the incident stated that on 11-5-1990 he was sitting at the gate of Welfare Trust. At about 9-00 p.m. Appellant Jawad Ali came there and was very infuriated.
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As soon as he reached, he said that Milo had done no good by asking the police to raid his hotel. He further said that he would not spare both of them. Meanwhile Milo (deceased) came out of the Welfare Trust and on seeing him, accused Jawad Ali became further enraged. Milo wanted to pacify him by saying that he should not do wrong acts. At this accused Jawad took out his pistol which was tied with his waist and fired two shots at Milo. Thereafter he fired 3/4 shots at the witness. At the same time Master Fida Hussain, Abid Ali and many other passers-by gathered at the spot. The witness received one bullet injury on the thigh, two bullets on the left arm and one bullet at the back of his neck and he fell down. Jawad went near Milo who had fallen on the ground and addressing him said that he would not spare him alive today. He then fired a further shot on the neck of Milo. When people saw Milo injured they were enraged and attacked accused Jawad who started firing indiscriminately. Munawar Hussain was hit with one bullet and one bullet hit Muhammad Essa a vegetable-seller. Later on people put him and Milo in a jeep and took them to hospital. On reaching hospital Milo died. The witness is the incharge of the Trust whereas Milo was President of the Trust. The witness further stated that there is a hospital in the Trust in which narcotics addicts are treated. ' In cross-examination the witness denied the suggestion that the people of Trust used to take tea without payment and demanded contribution. He also denied the suggestion that accused came to the office of Trust to receive payment of tea and that he had a fight with them. The witness also denied that Milo came out of the Trust alongwith Munawar Hussain. The witness also did not admit that Milo asked him and Munawar to take the accused inside the trust in order to set him alright. He denied that he had a pistol and took out the same. He also denied that the pistol went off during the struggle with the accused and 3 bullets hit Milo. Then pistol was left by the witness and accused took it. ' P.W.3 Abid Hussain is the second eye-witness to support the prosecution version. According to him he learnt that some quarrel was going on in front of the Trust. It was about 9-00 p.m. He immediately went there and saw that accused Jawad Ali Hotelwala was quarrelling with Hashim (Note: the learned trial Judge has translated "URDU TEXT" as fighting which in our view is not correct translation). Jawad was saying that by asking the police to raid his hotel Milo had done no good and told P.W. Hashim that he would not spare Milo and him (P.W. Hashim). Meanwhile Milo came out of the Trust and he tried to make understand Jawad asking him not to do wrong acts. Jawad became angry and took out his pistol from. His waist and fired two shots at Milo. The bullets hit Milo and he fell on the road. Meanwhile Fida Hussain alias Khan reached there. Ali Hassan also reached there. The witness and All Hassan tried to stop Jawad but Jawad threatened them not to go near him otherwise he would shoot. Jawad fired 3/4 shots at Syed Hashim (P.W.2) who received injuries and fell down. Thereafter Jawad went near Milo and said that he would not spare his life and fired one shot at his neck. Seeing this people became furious and some of them started to beat Jawad while others tried to save him. Jawad started indiscriminate firing as a result of which Muhammad Essa vegetable-seller and Gunju P.W.13 received injuries. Jawad went towards Saidabad waving the pistol. Ghulam Hassan was coming from city side on his scooter. The witness then took alongwith others the injured persons to hospital. Same suggestions were put to the witness to which he had stated that he had no knowledge. ' The next eye-witness is P.W.4 Fida Hussain who is a Primary School Teacher. He stated that on 11- 5-1990 he was having tea at the hotel of Muhammad Hussain. On hearing commotion, he came out of the hotel. It was about 9-00 p.m. He saw accused Jawad standing and Syed Hashim (P.W.) was sitting on the pavement of a close cabin. Jawad was telling Syed Hashim that they arranged a raid on his hotel today and his companions were arrested. He further stated that he was fed up due to all these acts and would not spare him (P.W. Hashim) and Milo. Meanwhile Milo came out of the Trust. On seeing Jawad who was angry he started to admonish him. On seeing Milo accused
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Jawad became more furious and took out the pistol tied with his waist and fired two shots at Milo. Milo fell down after receiving the bullet injury. After 3/4 seconds accused Jawad turned and fired 3/4 shots at Syed Hashim who also fell down on receiving injuries. Meanwhile Ali Hassan and other persons gathered there. Ali Hassan tried to stop Jawad on which Jawad warned him not to go near him otherwise he would also be shot. When Milo was lying on the road, Jawad went near him and said "today I have particularly come to kill you and will not spare your life", and then fired a further shot at the neck of Milo. People who had gathered on seeing this became angry and attacked Jawad. Some people were trying to beat him and some were trying to save him. Jawad started indiscriminate firing. Due to this firing Muhammad Essa vegetable-seller and Munawar alias Gunju were injured. Accused then waving his pistol went towards Saidabad. The witness then alongwith Ali Hassan took the injured persons in a jeep to Civil Hospital, Quetta. He further stated that Jawad had a hotel of cards, narcotics and gambling. This witness denied having any connection with Welfare Trust. He stood the test of cross-examination. In cross-examination he also stated that accused was already involved in two murder cases. ' P.W.13 Munawar Hussain alias Gunju who was also injured in the incident is the last eye-witness. According to his statement on 11-5-1990 after having his dinner he was sitting on pavement ( 1 j ) in front of Welfare Trust. It was at about 9-00 p.m. Accused Jawad present in the Court came in front of the Trust where Syed Hashim was sitting. Accused Jawad told Hashim that by getting his hotel raided by police Milo had done no good and further said that his persons have been arrested and today he would not spare both of them. On hearing the noise Milo also came out of the Trust. Jawad seeing Milo got infuriated. Milo tried to make him understand saying that he should not indulge in illegal, business. Meanwhile accused Jawad took out a pistol and fired two shots on Milo. As a result of which Milo fell down. Thereafter accused Jawad Ali fired 3/4 shots on Syed Hashim. Syed Hashim also fell down. Then Jawad went close to Milo saying that he would not spare him alive today at any cost and fired another shot on the neck of Milo. During this time a number of passers-by gathered at the spot and some people seeing Milo injured were enraged and attacked accused while some were busy in separating them. Accused Jawad started firing indiscriminately. As a result of this firing one bullet hit on the right side of his chest below the rib and he got angry and joined the crowd. He injured accused Jawad Ali with a Rumbi, who after receiving the injury ran towards Saidabad waving his pistol. The witness was put a in a rickshaw and taken to Civil Hospital. In cross-examination the witness was not shaken on material points. He stated that he had no connection with the Welfare Trust. This witness was tried by a Magistrate under section 326, P.P.C. And was convicted for injuring Jawad. However, he was acquitted of the charge by the appellate Court. ' This was the gist of ocular version as stated by four eye-witnesses. We now proceed to take into consideration the remaining evidence produced by the prosecution. Circumstantial evidence consists of recovery of, eight empties of pistol and 4 leads (spent bullets) from the place of incident. Besides this the recovery of pistol at the pointation of accused Jawad Ali from the graveyard is also an important piece of evidence which was witnessed by two independent witnesses including Councillor Haji Abdul Wahid. The place of incident as well as time of incident are also almost admitted. ' Medical evidence was also produced to support the prosecution regarding injuries on the dead body of deceased. Although post-mortem was not allowed by relatives of deceased but P.W.11 Dr. Abdul Sattar was examined who issued death certificate and gave his expert opinion regarding cause of death which went unchallenged. Then there is positive report of Ballistic Expert. ' However, the accused challenged the motive. According to all the eyewitnesses, accused/appellant started quarrel with P.W. Syed Hashim saying that Muhammad Ismail Milo (deceased) did no good by instigating police to raid hotel of appellant. This version is supported by
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all the eye-witnesses. Motive to kill deceased was disclosed by appellant himself, who after reaching the Welfare Trust stated as to why his hotel was raided by police at the instance of deceased. It has also come on record through the mouth of prosecution witnesses that in the disguise of a hotel in fact, appellant was running a business of drugs. According to appellant, however, the motive was that the Members of the Trust used to take tea from his hotel without paying the bill. He went to receive the payment for the bills when he was dragged at the instance of deceased. He :then picked up a quarrel with Syed Hashim who took out his pistol and the accused tried to snatch the same which went off and three bullets hit deceased who was standing nearby alongwith Munawar Hussain. P.W. Syed Hashim got frightened and left the pistol and the accused taking the pistol from his hand ran away. ' In support of his contention the appellant led no defence except his own statement recorded under section 340(2), Cr.P.C. He repeated the same ' story contending that he went to the Welfare Trust to receive money due to the members of Falahi Trust and asked Syed Hashim for payment of money. Syed Hashim replied "URDU TEXT" otherwise his hotel would be set at fire. In the meantime Ismail Milo and Munawar Hussain alias Gunju came out of the Trust. Syed Hashim told Milo that accused had come to take money; whereupon Milo said "take him inside the Trust we will set him alright". Then P.W. Hashim pulled him towards the Trust and accused gave a fist blow to him. Then Syed Hashim took out his pistol from his pocket in order to kill the accused. Accused caught hold of his hand and then a struggle started. In this struggle the pistol went off and three bullets hit Milo. Being frightened Syed Hashim left the pistol. Accused bent to pick it when he was hit by P.W. Munawar Gunju with a Rumbi. Other Goondas also attacked him. The accused then fired in the air to save his life as a result of which all ran away. Accused then threw the pistol near the Trust. He then saw a Rickshaw coming and sitting in the Rickshaw he went to the police station. ' According to accused he gave the same statement to the police but the police did not record it. He was not taken to the hospital till the next day when he was near to die. He was then taken to hospital and admitted there. He was in hospital when he saw in the newspaper regarding recovery of pistol. He was discharged from the hospital when he had not fully recovered. In the end he stated that he had not committed any offence but pistol went off incidentally during struggle with P.W. Syed Hashim. ' As already pointed out in preceding paras. Of this judgment that these are the two drastically divergent stories of the case. ' We agree with Mr. S.A.M. Quadri, learned counsel for appellant that if the story of accused/appellant is believed then it is a case of reduction of sentence. But on the contrary if the prosecution story is believed in toto then it is a case of brutal murder. ' We have already reproduced the gist of prosecution evidence as well as defence version. However, firstly we want to discuss the case of the defence in the light of available record. At the very outset it may be pointed out that defence took a specific plea but failed to bring any evidence on record to substantiate the same except his own statement recorded on oath. It is pertinent to note that police also registered a case under section 326, P.P.C. Against P.W. Munawar Hussain at the instance of accused Jawad Ali. Challan was put up before a Magistrate before whom the accused made a statement. (Exh.P.29) page 261 of the Paper Book. This was put to the accused in cross-examination in the case registered under section 302, P.P.C. And he admitted the same. He has given the following story before the Magistrate in the said case:-- "On 11-5-1990 at about quarter to 9-00 p.m. I was going towards my home when on the junction I saw Syed Hashim and Munawar Ali. They waylaid me and sent a person to inform Milo that they had caught hold of Jawad Ali. Munawar Hussain Gunju was drunk and told me as to why I propagate against the hospital. I stated on oath that I have stated nothing against it, and when I started to proceed Syed Hashim took out his pistol and fired at him. In the meanwhile Milo came
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out of the hospital and gave me 2 to 3 slaps and tried to take me to the hospital. When I was being dragged, Milo asked Hashim and Munawar to beat me. In the meanwhile Munawar who was standing behind us injured me with Rumbi on my thigh and waist. Syed Hashim hit me on the head with the butt of his pistol. Milo asked them to take me in the hospital and untie my Nara. I reported this matter with the police which is Exh.PA. And I correctly identify my signatures." ' We have already produced his statement recorded before the trial Court in this ease under section 340(2), Cr P.C. Besides this learned counsel produced before us a copy of the FIR. Lodged by the appellant on the same night under section 326, P.P.C. In which he stated that he was sitting in his hotel when at about quarter to 9-00 p.m. Munawar Hussain who was standing in front of Falahi Trust called him. When he went near him, he found him drunk. He said to the appellant as to why he was propagating against Milo and Syed Hashim. The appellant denied that he has ever propagated against them. In the meanwhile Munawar Hussain took out a Rumbi and attacked him. He received two injuries with Rumbi on his buttocks and behind his waist. Hence he came to report the matter. ' Thus, the appellant has given 3 different versions of the incident. The first version is the statement given by him before the trial Magistrate wherein he stated that when he was going home at about quarter to 9-00 p.m. Syed Hashim and Munawar Hussain came on his way and stopped him. They sent a person to inform Milo that they had caught hold of him. Munawar Hussain was drunk and asked him why he was propagating against the hospital. The appellant…
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