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Petitioner: MUHAMMAD HANIF and anothers VS Respondent: THE STATE
Court Name: Balochistan High Court Judge(s): Raja Fayyaz Ahmed, Fazal-ur-Rahman Title: MUHAMMAD HANIF and anothers vs THE STATE Case No.: Criminal Appeal No,231 of 1999 Date of Judgment:2000-08-16 Reported As: 2001 YLR 3354 Result: Appeal accepted
JUDGMENT
JUDGMENT ' RAJA FAYYAZ AHMED, C.J.--- This appeal under section 7 of Suppression of Terrorist Activities (Special Courts) Act, 1975 has been directed against judgment dated 17-8-1999 passed by the learned Additional Sessions Judge (Special Judge, Suppression of Terrorists Activities Court), Sibi whereby the appellants have been convicted under section 302(b), P.P.C. And sentenced to suffer life imprisonment as Ta'zir and appellant Muhammad Haneef has also been found liable to pay a fine of Rs,50,000 and in default of payment of fine to further suffer S.-I. For a period of four years. Benefit of section 382-B, Cr.P.C. Has been extended in favour of convict Noor Bakhsh. 2. The brief facts of the case are that pursuant to the Fard-e-Bayan of P.W. Agha Ghulam Nabi case Crime No,23 of 1998 was registered with Police Station Saddar, Machh on 26-7-1998 at 4-10 a.m. Against unknown culprits. It has been alleged in Fard-e-Bayan Exh.P/1-A that on the abovementioned date at about 3-30 a.m. P.W. Agha Ghulam Nabi was present in his house when he heard fire reports, therefore, he immediately stood up and in the meantime one or two more shots were heard towards the house of his brother Agha Manzoor Ahmed so he rushed to the house of his brother and found his brother Agha Manzoor Ahmed lying soaked in blood near to outer door of his house and he was told by his sister-in-law (brother's wife) that three unknown persons entered in the house by striding over the wall who started breaking over the inner lock of the door and on hearing the sound her husband Agha Manzoor Ahmed after having woke up headed towards the culprits and one of the unknown culprits fired at him with a pistol as a result whereof her husband fell down on receiving serious wounds and the accused made good their escape. It has been pointed in the Fard-eBayan that he with the help of his neighbor removed his injured brother to the hospital immediately.
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' P.W. Mehtab Raza, S.-I./Police Station Machh after completion of investigation of the case submitted challan Exh.P/12-D in the Court of learned Special Judge, Sibi Division, Sibi. Accused were indicated for the abovementioned offence under sections 302/34, P.P.C. On 4-12-1998 by the learned Special Judge, Suppression of Terrorists Activities (Special Courts), to which they pleaded not guilty and the prosecution to substantiate accusation produced thirteen witnesses namely Agha Ghulam Nabi (P.W.1), Mst. Nasima Agha (P.W.2), Bibi Hawa (P.W.3), Mst. Shamim Agha (P.W.4), Orangzaib, Police Constable (P.W.5), Lal Muhammad Police Constable (P.W.6), Abdul Jabbar (P.W.7), Haji Jamal (P.W.8), Haji Akhtar Muhammad (P.W.9), Noor Ahmed (P.W.10), Ali Muhammad (P.W.11), Mehtab Raza/Investigating. Officer (P.W.12) and Dr. Nazir Ahmed, Medical Officer, Civil Hospital, Quetta (P.W.13). After close of the prosecution case accused were examined by the learned Suppression of Terrorist Activities Court under section 342, Cr.P.C. Wherein they denied the material pieces of prosecution evidence put to them in toto. Both the accused appeared as their own witnesses in defence within the purview of section 340(2), Cr.P.C. Accused Muhammad Hanif produced Haji Ghous Bakhsh as defence witness, whereas accused Noor Bakhsh also produced only one defence witness namely Ghous Bakhsh. After close of the parties case the learned trial Court vide impugned judgment convicted and sentenced the appellants as abovementioned. 3. Substance of prosecution evidence:- ' Agha Ghulam Nabi s/o Agha Ghulam Rasool (P. W .1) ' He is the brother of deceased Agha Manzoor Ahmed and according to him both were residing in same Mohallah and on the date of incident according to him he was sleeping in his house when at about 3-00 a.m. He heard gun-shot reports besides the commotions towards the house of his deceased brother, so he immediately went to the house of his said brother and saw Agha Manzoor Ahmed lying on the ground near to the gate of the house. According to him wife of the deceased told to him that three unknown persons came there who made firing at his brother deceased Agha Manzoor Ahmed and he immediately took his injured brother to the Civil Hospital, Machh from where he was shifted to Civil Hospital, Quetta. The witness further added that police came there and recorded his statement which he produced as Exh.P/1-A bearing his signature. He further explained that his brother Agha Manzoor Ahmed succumbed to injuries on his way to Quetta Hospital. ' Mst. Nasima daughter of Agha Manzoor Ahmed (P.W.2) ' She is one of the daughters of Agha Manzoor Ahmed and according to her she was residing with deceased at Machh when on 26-7-1998 the inmates of the house were sleeping at about 3-00 a.m. She heard cries of her father and woke up besides her mother and sister Shamim. According to her at that time the electric bulbs were on and they saw accused Hanif and Abdul Ghaffar present there out of whom accused Hanif caught hold of deceased Agha Manzoor Ahmed while Abdul Ghaffar was standing behind him and they started shouting on which according to the witness accused Hanif started firing due to which they kept quiet. She added that accused Hanif fired three shots with the pistol at his father due to which he fell down and the accused ran away where after her uncle Agha Ghulam Nabi came to their house and Agha Manzoor Ahmed was remold to Civil Hospital, Machh from where he was shifted to Quetta. She further added that police did not come to their house as it /did not take any interest in the investigation. '114 witness added that the police contacted them to whom they disclosed names of accused as Abdul Ghaffar and Hanif as being the culprits where after they were arrested and identification parade was held in the Police Station Machh in presence of S.H.O. And Tehsildar Machh and she identified both the said accused. She produced the memos. Of identification parade bearing her signature as Exh.P/2-A and Exh.P/2-B. She also identified both the appellants as accused in Court. ' Bibi Hawa widow of Agha Manzoor Ahmed (P.W.3)
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' She is the widow of deceased and according to her she along with deceased's husband and daughter namely Agha Nasim and Agha Shamim besides children were residing together in the house at Machh and about seven months before at about 3-00 a.m. On being called on by her husband she woke up and saw that accused Hanif had caught hold of Agha Manzoor Ahmed and two other companions of Hanif at that time were standing at some distance. She added that accused Hanif fired towards them which hit the window of kitchen and then accused Hanif fired three shots at her husband which hit him who thus was injured. She added that they went to the house of Agha Ghulam Nabi and informed to him about the incident who also came to their house and removed Agha Manzoor Ahmed to Civil Hospital, Machh but prior to that the culprits had already made good their escape. She explained that out of the two other cultpirs she also identified accused Abdul Ghaffar on spot but she could not identify the remaining culprits. "She further added that police reached to the place of incident with some delay and her husband succumbed to injuries on his way to Civil Hospital, Quetta. According to her, consequent upon the arrest of the accused test identification parade was held in which she and her daughter Mst. Nasima identified both the accused namely Hanif and Ghaffar where after identification parade memos. Were prepared on which she affixed her thumb-impression which she produced as Exh.P/2-A and Exh.P/2-B. She also identified the appellants as accused. ' Shamim Agha daughter of Agha Manzoor Ahmed (P.W.4) ' According to her she along with father and family members were sleeping in their house at Machh on 26-7-1998 when at about 3-00 a.m. They woke up on account of shouting of his mother and she saw three accused persons in their house out of whom she identified accused Hanif and Ghaffar. She explained that Hanif had caught hold of her father and they were shouting on which Hanif fired towards them which hit on the kitchen and then accused Hanif fired at his father which hit him. She added that they went to the house of their uncle through stairs and informed him and all the three accused ran away from the place of Wardat. This witness further stated that her uncle Agha Ghulam Nabi came to their house and shifted her father to Civil Hospital, Machh and thereafter was being removed to Quetta for treatment but he succumbed to injuries. This witness in her examination-in-chief stated that her statement was recorded on 13-8-1998 as on account of the incident they were in shock and the police were not contacted them for statement. ' Orangzaib, Police Constable, Police Station Saddar, Machh (P.W.5) ' According to him on 26-7-1998 he was present in the Police Station Saddar, Machh when at about 4-10 a.m. Haji Abdul Majeed informed on telephone that some unknown persons have injured Agha Manzoor Ahmed by means of firing and at the moment the injured lying is in the Civil Hospital, Machh whereafter P.W. Mehtab S.-I., Muhammad Panah, S.H.O. And Muhammad Karim, Constable went to the Civil Hospital, Machh and he also accompanied them. The witness added that at that time when they reached hospital, the injured was already dead and A.C., Machh was also present. According to the witness at the request of the legal heirs of the deceased made to A.C., Machh postmortem of the dead body of the deceased was not conducted and thereafter they took the dead body to his house where the bloodstained clothes of the deceased were produced in his presence to the Investigating Officer who took the same into possession vide memo. Exh.P/5-A. He produced sealed parcel as well as the blood-stained clothes as articles in Court. ' Lal Muhammad, Police Constable, Police Station Saddar, Machh (P.W.6) ' According to him on 26-7-1998 he was posted in Police Station, Machh and was called on by S.H.O. So he along with, S.-I. Mehtab Raza and Talib Hussain, Constable went to Civil Hospital, Machh and thereafter to the place of Wardat which was inspected by S.-I. Mehtab Raza who prepared inspection report produced by him as Exh.P/6-A bearing his signature as marginal witness. According to him a broken lock was also taken into possession by S.-I. Mehtab Raza vide memo. Exh.P/6-B besides three empties and two leds taken into possession vide memo. Exh.P/6-C
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produced by the witness bearing his signature. According to the witness blood-stained earth was also secured by the S.-I. From the place of incident vide memo. Exh.P/6-D. He also produced the above said articles taken into possession by the police officer. ' Abdul Jabbar son of Allah Bakhsh (P.W.7) ' Evidence of this witness is to the effect that about 5/6 months back he was sleeping in his house when at 3-15 a.m. He heard three fire reports so he woke up and came to the courtyard of his house and thereafter came out of his house. He explained that house of deceased Agha Manzoor Ahmed is situated in the neighbourhood fromwhere heard hue and cries so he came to the lane in which the house of the deceased is situated and in the meantime Agha Manzoor Ahmed opened the door from whom he inquired about the matter who, according to the witness, disclosed to him that he has been destroyed and further stated that his brother Agha Manzoor Ahmed has been killed, who also asked to the witness to immediately lodge report so he left for the Police Station through Bazar where Chowkidar Yar Muhammad and Karam Khan met with him and he asked them to report the matter to police where after returned towards the house of the deceased but before his arrival Agha Manzoor Ahmed was already taken to the hospital. He also left for the hospital where he found Agha Manzoor Ahmed lying as having been suffered bullets. According to the witness Agha Manzoor Ahmed at that time stated that he be moved sidewise. The witness added that the wounds were stitched by the doctor and at that time Agha Ghulam Nabi was also present there and thereafter injured was shifted for Quetta. ' Haji Jamal son of Dil Murad (P.W.8) ' According to this witness that at the time of occurrence he was offering Tahajjud prayers and he heard fire reports and thought may be the same was due to birth of a child but in the meantime he heard cries etc. Therefore, he went towards the house of Agha Manzoor Ahmed where he found Abdul Jabbar already present there. According to the witness Agha Ghulam Nabi came out of the house and told that his brother has been attacked so they took Agha Manzoor Ahmed to Civil Hospital, Machh from whom they thrice inquired as to who attacked on him but the injured stated that he be moved sidewise and he (the witness) thereafter left for his house. ' Haji Akhtar Muhammad s/o Haji Mubarak (P. W 9) ' He deposed that about 6/7 months before the incident had taken place. Witness stated that he alongwith his children was sleeping in his house when at about 3-00 or 3-15 a.m. He heard fire reports and in the meantime on hearing cries and shouts he came out of the house and found Agha Ghulam Nabi standing in the lane who on being inquired told to him that Agha Manzoor Ahmad has been attacked so they both went to the house of Agha Manzoor Ahmed who was found lying in an injured condition in the lane and they with the help of other neighbourers who came there removed Agha Manzoor Ahmed to Civil Hospital, Machh. The witness added that doctor after some time left for house. ' Noor Muhammad s/o Haji Nek Muhammad, S.I.P. (P.W.10) ' He is a witness to the identification test of the accused Muhammad Haneef and Abdul Ghaffar and according to him on 27-8-1998 wife of the deceased and Naseem Agha daughter of deceased Agha Manzoor Ahmed identified both the accused, where after; he and Head Constable Muhammad Yunus inscribed their signatures on the memo of identification test produced by him as Exh.P/2-A and Exh.P/2-B. ' Ali Muhammad s/o Ellahi Bakhsh, NaibTehsildar (P.W.11) ' According to him on 27-8-1998 as per directions of Assistant Commissioner, Machh identification test of accused Muhammad Haneef and Ghaffar was held by him wherein seven other persons were also included besides the accused and during the identification test S.H.O. And Additional S.H.O., Machh were also present. He added that subsequently after arranging the queue widow of deceased Mst. Hawa who was sitting in a separate room was called on to identify accused, who
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out of the queue of seven persons correctly identified accused Muhammad Haneef and thereafter daughter of deceased who sitting in a separate room was asked to identify accused and she correctly identified accused Muhammad Haneef. Subsequently accused Ghaffar was included in the queue and he was identified separately by the widow and daughter of the deceased and the process of the identification of both the accused was repeated during which both the identifiers correctly and separately as above said identified accused Muhammad Haneef and Ghaffar. He produced the test parade memos. Bearing his signatures as E X11 . P/2- A and Exh.P/2-B. ' Mehtab Raza, S.I.P./Investigating Officer (P.W.12) ' He deposed that on 26-7-1998. He was posted as Investigating Officer, Machh on which date F.I.R. Was registered on the report of P.W. Agha Ghulam Nabi and he sent the informant to Civil Hospital, Machh by handing over to him injury report of Agha Manzoor Ahmed and himself inspected the place of Wardat and prepared sketch map thereof produced by him as Exh.P/12-A produced by him and took into possession broken lock vide inventory Exh.P/6-B. Three empties of .30 bore pistol and two leds were also taken into possession from the place of Wardat vide memo. Exh.P/C and bloodstained earth was also secured from the spot vide memo. Exh.P/6-D and thereafter recorded statement of Mushirs. He added that Agha Manzoor Ahmed injured was being shifted for treatment to Quetta but succumbed to injuries on way to Quetta where after dead body was brought back to Civil Hospital, Machh and he prepared inquest report of the deceased produced by him as Exh.P/12-B and also took into possession blood-stained clothes of deceased vide memo. Exh.P/5-A. On 27-7-1998 four suspects namely Bashir, Ghulam Mustafa, Muhammad Ehsan and Rasool Baldish were involved in the investigation of the case and were discharged under section 169, Cr.P.C. On 6- 8-1998 for want of any incriminating evidence available against them. He explained that on 22-8- 1995 in the application filed by the widow of deceased addressed to S.H.O. Muhammad Panah, Jamali it was alleged that she has come to know that her husband has been killed by accused Haneef and Ghaffar along with their unknown companion, so he was directed to take action on the application, therefore, he arrested accused Haneef and Ghaffar whose real name was disclosed to be Noor Bakhsh and, subsequently on 27-8-1998 S P . Nasirabad directed I . P . /S. H .0. Muhammad Panah to himself investigate the case accordingly he handed over the papers to the S.H.O. He added that under the orders of Assistant Commissioner, Machh dead body was handed over to Agha Ghulam Ali without conducting post-mortem and he produced death certificate of the deceased as Exh.13/12-C which he obtained from Medical Officer, Civil Hospital, Machh. He also produced challan bearing signature of the S.H.O. As Exh.P/12-D. ' Dr.Nazir Ahmed, Medical Officer, Casualty Department, Civil Hospital, Quetta (P.W.13) ' He deposed that on 26-7-1998 he was posted as Medical Officer, Civil Hospital, Machh and on the said date Agha Manzoor Ahmed in injured condition was brought to the Casualty Department of the hospital for treatment and was examined by him. He provided first aid to the injured and also examined him whereafter he referred the injured for further treatment to the Sandeman (Provincial Hospital), Quetta. According to the Medical Officer he noted the following injuries on the person of the injured:-- (1) Scratching on right side forehead about 1" x 1/2". (2) A gun-shot bullet wound entrance on left Asterio lateral of neck about 1" x 1/2" no burn. (3) Exit on 4th thoracical vertebra about 1" x 1". (4) A gun-shot bullet wound entrance left Hypochondrium 1 1 the thoracical Ribs about 1" x '1" no burn or tottooing. (5) Exit on 2nd lumber region vertebra about 1" x 1". (6) A gun-shot bullet entrance on left palm phalanges about 1" x 1/2" by exit about 1" x 1/2". ' In view of the injuries suffered by the victim he opined that the same were caused by firearm. He added that on the same date at 5-30 p.m. Dead body of the injured was brought back to the Civil
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Hospital, Machh and after examination he confirmed death of the injured caused by fire-arm injuries and circulatory failure. He produced M.L.C. Issued by him bearing his signature as Exh.P/12- C. 4. After close of the prosecution case both the accused were examined by the learned trial Court under section 342, Cr.P.C. And they denied the case of the prosecution as it appeared in evidence in toto. Both the accused opted to appear their as own witnessed on oath within the meaning of section 340(2), Cr.P.C. 5. Defence plea and evidence. Plea of accused Muhammad Haneef. ' He took the plea of alibi and deposed that on 25-7-1998 he left for Toba Tek Singh after loading the truck with coal and produced truck builty bearing No,524 dated 25-7-1998 as Exh.D/1-A. He also produced receipt of coal as Exh.D/1-B and claimed that he was arrested, after one month of the incident and no identification test was held and that accused Noor Bakhsh alias Ghaffar is his neighbourer, whose brother Toto is the domestic servant of Mst. Hawa and Noor Bakhsh; used to prohibit Toto not to go to the house of Bibi Hawa for which reason he and Noor Bakhsh have been involved in the case, accused Haneef further deposed that no weapon of offence was recovered from him. ' Defence witness of accused Muhammad Haneef Haii Ghous Bakhsh s/o Gohram (D.W.1) ' He deposed that accused Muhammad Haneef was employed by him as Driver. On 25-7-1998 he along with his driver Muhammad Haneef left for Toba Tek Singh and reached to the destination on 28-7-1998, he produced builty and the receipt as Exh.D/1-A and Exh. D/1-B. According to him within 5/6 days they reached back. ' Plea of accused Noor Bakhsh alias Ghaffar ' He also took the plea of alibi and deposed that on 26-7-1998 he throughout night remained busy in connection with the betrothal ceremony of his daughter and stated that he knows deceased Agha Manzoor Ahmed and his widow, and; his younger brother namely Ghaus Bakhsh alias Toto was their domestic servant and he had stopped his said brother not to go to the house of Agha Manzoor Ahmed as young women are the inmates of the house of Agha Manzoor Ahmed and because Mst. Hawa is a woman of easy virtues. He explained that Mst. Hawa and her daughters know him since long on whose instance he has been implicated in the case. He also took the plea that he was not subjected to identification test and claimed to be innocent. ' Defence witness of accused Noor Bakhsh alias Ghaffar ' Ghous Bakhsh alias Toto (D.W.2) ' He is the younger brother of accused Noor Bakhsh who deposed that he was working as domestic servant in the house of Agha Manzoor Ahmed and his brother stopped him not to go to the house of Agha Manzoor Ahmed as they are not good people but despite being stopped by his brother he used to go to the house of Agha Manzoor Ahmed where influential people also used to visit. The defence witness further stated that four goldsmiths were also arrested in the case, out of whom one goldsmith used to reside in the house of Mst. Hawa Begum. He further added that the people used to come to the house of Mst. Hawa Begum, were bearing their expenses. In support of the defence plea he further stated that on 26-7-1998 his brother remained busy in connection with the betrothal ceremony. Of his daughter. 6. We have heard the learned counsel for the appellants as well as the learned Assistant Advocate-General at length. Mr. Muhammad Aslam Chishti contended that:- (A) F.I.R. Was lodged promptly pursuant to the information of incident passed on to the informant/P.W. Agha Ghulam Nabi by the widow of the deceased in whose presence the incident stated to have taken place inside the house wherein none of the assailants was nominated and it was specifically as per informant disclosed to him that unknown persons committed the alleged crime.
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(B) None of the other inmates of the house i,e, Naseem Agha and Shamim Agha daughters of deceased disclosed to their uncle P.W. Agha Ghulam Nabi about the names or about the features and others of the culprits, who immediately after occurrence attracted to the place of Wardat i,e, house of the P.W. Bibi Hawa, Naseem Agha and Shamim Agha. (C) After one month of the incident application was submitted by widow of the deceased namely Bibi Hawa wherein for the first time it was .Alleged that she has come to know that accused Muhammad Hanif and Noor Bakhsh were the persons, who committed the offence and such an allegation introduced without disclosing the source and others in view of the above noted contentions and the prosecution case, is worthless and not capable to any credence. (D) According to P.Ws. Namely Bibi Hawa, Naseem Agha and Shamim Agha accused were known to them already as being the residents of the Mohallah, renders identification test of the accused/appellants as of no value nor can such piece of evidence in the circumstances of the case .Improve the case of the prosecution. Moreover; non-disclosure about the identification of the culprits by the ocular witnesses to their own uncle, who was attracted to the place of Wardat, soon after the incident is fatal to the case of the prosecution, moreover; the identification parade becomes worthless because according to these P.Ws. They were already acquainted with the appellants. (E) The facts and circumstances of the case abundantly are indicative of the fact that substantial improvements have been made by the ocular witnesses who after considerable delay and without any reasonable explanation falsely involved the appellants, in the case nor the P.Ws. Naseem Agha and Shamim Agha furnished any convincing explanation for nominating the accused after a delay of one month from the date of incident, subsequent to the nomination of the accused made by their mother P.W. Bibi Hawa by submitting application. The Investigating Officer failed to collect any incriminating evidence subsequent to registration of the case, who only on the basis of delayed…
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