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Petitioner: STATE through AdvocateGeneral, N.W.F.P., Peshawar VS Respondent: MUHAMMAD IQBAL JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Syed Ibne Ali, Wali Muhammad Khan, Muhammad Bashir Klan Jehangiri Title:STATE through AdvocateGeneral, N.W.F.P., Peshawar vs MUHAMMAD IQBAL
JUDGMENT
Reported As: 1993 P Cr. L J 945 Result: Appeal allowed Judgment JUDGMENT ' JUSTICE SYED IBNE ALI, (MEMBER)--- Accused Muhammad Iqbal and Said Hakim were challaned in the Special Court for Speedy Trials, Peshawar to stand their trial for committing the murder of Syed Mazhar Hayat Shah, Bank Officer and injuring P.W.15 Ahmad Khan, Chowkidar, A.S.I. Abdul Ghani (P.W.2) and A.S.I. Bas Wali Khan by firing at them with Klashnikov and pistols. On conclusion of the trial, the learned Judge of the Special Court found them not guilty of the charges, therefore, he acquitted them, vide judgment, dated 7-11-1992. 2. Being not satisfied, the State has questioned the legality of the judgment of the learned Special Court in this appeal with a prayer that the accused be appropriately punished. 3. Briefly, the prosecutiort case is that on 30-12-1991 at 11-30 a.m., the two accused alongwith the absconding accused, namely, Kifayatullah duly armed with deadly weapons entered Habib Bank Ltd., Nothia Branch situate at Sunehri Masjid Road, Peshawar Cantt. With the intention to commit robbery. The staff members of the Bank, namely, Mian Gul Ahmad Rashid, Bank Officer (P.W.14), Khurshid Ahmad, Manager, Syed Mazhar Hayat Shah, Second Officer (deceased), Nasim Officer, Gohar Ali, Taslim Khan, Cashier (P.W.16) and Ahmad Khan, Chowkidar (P.W.15) were present in the Bank. The Manager of the Bank got up from his cabin and giving some instructions to Syed Mazhar Hayat Shah deceased went to the toilet. The deceased then proceeded towards the gate of the branch to go outside for some work. Meanwhile, three persons entered the Bank. Deceased Syed Mazhar Hayat Shah attempted to snatch the Klashnikov from the person armed with Klashnikov. In this process, the other persons armed with pistol fired at Syed Mazhar Hayat deceased hitting him on the forehead. He fell down on the ground. Ahmad Khan, Chowkidar (P.W.15) took up position to
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fire at the accused, but the absconding accused fired at him with pistol. The Chowkidar was hit and fell down. The accused then went out of the Bank. At that time, A.S.I. Abdul Ghani (P.W.2) was standing near Saeed Building opposite the Bank. He was on mobile duty and had a motor-cycle with him. On hearing the report of fire-shot inside the Bank, he proceeded towards the Bank. No sooner he reached the middle of the road than he saw two persons coming out of the Bank, one was running towards `Kalibari' street, while the other towards him. Both had wrapped Chaddars upto their shoulders. The person running towards him fired at him but it went amiss. The accused then boarded a bus, but P.W. Abdul Ghani, A.S.I. Caught hold of him in the rear gate of the bus. The A.S.I. Snatched the pistol from him and during this process, P.W. Abdul Ghani got injured on the thumb of his right hand. He further recovered a dagger from the accused. While in custody, he disclosed his name as Said Hakeem to Abdul Ghani, A.S.I. The A.S.I. Took him inside the Bank. Meanwhile, Amanullah Khan S.H.O. Alongwith police party reached the Bank. Accused Said Hakeem was handed over to him. P.W. Abdul Ghani and the accused were then taken to the Police Station West Cantt. At the police station A.S.I. Abdul Ghani lodged the report of the occurrence in the form of a Murasila Exh.P.A./1. The report was incorporated into F.I.R. Exh.PA. By the Moharrir and was signed by Habib Shah A.S.I. (P.W.7). Abdul Ghani produced a pistol of .32 bore (P.1), two live cartridges (one missed) and a dagger to S.I. Amanullah Khan (P.W.19) in the police station. Abdul Ghani had injury on the right hand. The S.H.O. Prepared his injury sheet (Exh.P.D.). The S.H.O. Further prepared recovery memo. (Exh.P.C.) about the articles produced by Abdul Ghani. While Abdul Ghani was making report, S.H.O. Amanullah Khan got a message that A.S.I. Bas Wali Khan (P.W.3) was chasing the other accused. This fact was also mentioned in the Murasila (Exh.P.A./1). Meanwhile, the dead body of Syed Mazhar Hayat Shah was brought to the police station from the hospital. The Investigating Officer Amanullah Khan prepared injury sheet (Exh.P.D./4) and inquest report (Exh.P.H.) of the dead body of the deceased. Thereafter, he despatched the dead body to the mortuary under the escort of H.C. Fazal Maula (P.W.6). The I.O. Searched the person of accused Said Hakim and recovered from him licence copy (P.5) for dagger and licence copy (P.6) for pistol, vide memo. Exh.P.C./1. A.S.I. Bas Wali (P.W.3) was going to Peshawar Cantt. To inquire about the spare parts of motor-cycle. On reaching near Habib Bank Ltd., Nothia Branch, he heard the report of shots from inside the Bank. He parked his motor-cycle. Meanwhile, the two persons were coming out of the Bank and were running towards the road. One was armed with Klashnikov and the other with pistol. He chased the person, but he boarded a public vehicle. A.S.I. Bas Wali chased him up to Deans Hotel where the vehicle was stopped due to red signal. Bas Wali entered the vehicle and while arrested the person, he fired at him with his Klashnikov, but Bas Wali pushed the Klashnikov downward and the fireshot hit his right foot. He snatched the Klashnikov from the person with the help of Traffic Constable Iqbal Shah and Muhammad Ashfaq (P.W.12). He arrested the person who disclosed his name Muhammad Iqbal. Constables Muhammad Ashfaq and Iqbal took Bas Wali and Muhammad lqbal accused in a private Suzuki to the Traffic Headquarters where Bas Wali handed over the Klashnikov (P.7), charger (p.8) containing 10 live cartridges (P.9) to Constable Muhammad Ashfaq. Bas Wali was then taken to the hospital for treatment. He remained there for a month. Muhammad Ashfaq (P.W.12) handed over the articles recovered from Muhammad lqbal accused to A.S.I. Alamgir (P.W.13) who further recovered identity card (P.11) and a licence copy (P.12) from the person of Muhammad lqbal. A.S.I. Alamgir then took the accused to the Police Station West Cantt. Where he handed him over to the 1.0. Amanullah Khan (P.W.19) and also delivered him the above articles which the I.O. Took into possession, vide memos. Exh.P.C./2 and Exh.P.C.3. 4. The I.O. Amanullah Khan made regular arrest of accused Muhammad Iqbal and Said Hakim the same day i,e. On 30-12-1991. He got A.S.I. Abdul Ghani medically examined by Dr. Tahir Shah (P.W.10) who found a lacerated wound on the base of thumb of right hand. In his opinion, the injury was simple caused by blunt weapon, vide Exh.P.E.
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5. The I.O. Amanullah Khan proceeded to the spot and prepared site plan (Exh.P.B.). At the spot, he took into possession some blood with cotton swab (P.12) and sealed the same into parcel, vide memo. Exh.P.C./4. He further recovered an empty of .30 bore (P.13), an empty of .32 bore (P.14) and a spent bullet (P.15) from the spot. He sealed these articles into parcels, vide memos. Exh.P.C/5 and Exh.P.C./6. H.C. Fazal Maula brought the clothes of the deceased and a scaled vial containing two pieces of spent bullets. The I.O. Took these articles into his possession vide memo. Exh.P.C./7. He sent the blood recovered from the spot and the clothes of the deceased for chemical examination to the Forensic Science Laboratory and the report in this behalf is Exh.P..1. The Klashnikov (P.7), pistol (P.1) and the empties of .32 bore were also sent to the same Laboratory and reports in this behalf are Exh.P.H. And Exh.P.H./1. 6. S.I. Begham Shah (P.W.18) also partly investigated the case. He produced accused Muhammad Iqbal and Said Hakeem before the Magistrate for obtaining police custody on 31-12-1991 for five days and again for three days. Thereafter, he produced the two accused before Mr. Kamranzaib Khan, City Magistrate (P.W.8) on 7-1-1992 for recording their confessional statements. The Magistrate recorded their confessional statements (Exh.P.L. And Exh.P.K.). 7. On completion of the investigation, the two accused were challaned to the Court of Sessions Judge, Peshawar for trial. The Government, however, referred the case for trial to the Special Court for Speedy Trials, Peshawar. 8. In the Special Court, the prosecution produced 19 witnesses in support of its case. Ahmad Khan, Chowkidar (P.W.15) of the Bank had sustained firearm injuries during the occurrence. Dr. Muhammad Iqbal Hussain (P.W.1) examined him. He found fire-arm entry wound on posterior aspect of left leg near knee joint 1/4" x 1/4" in size and exit wound on left leg near knee joint anteriorly, size 1/3" x 1/3". In his opinion, the injuries were simple. His report is Exh.P.E./3. 9. Bas Wali Khan (P.W.3) had also sustained injuries on the right foot. He had apprehended accused Muhammad Iqbal in the bus and in this process the accused had fired at him with Klashnikov. P.W. Dr. Muhammad Iqbal Hussain (P.W.1) also examined Bas Wali Khan and found fire-arm entry wound on the right foot dorsal size 1/4" x 1/4" and exit wound planter aspect of right foot. His report in this respect is Exh.P.E./2. 10. Accused Muhammad Iqbal sustained injuries during the aforesaid scuffle between him and P.W. Bas Wali Khan in the Bus. Dr. Sarfraz (P.W.9) examined accused Muhammad Iqbal and found on his person abrasions on his forehead, scalp, right side neck, left side neck and left thigh. The doctor opined these injuries to be simple caused by blunt weapon. 11. Dr. Tahir Shah P.W.10 examine. A.S.I. Abd 1 Ghani P.W.2 and found on his person a lacerated wound over the base of thumb of right hand. The report in this respect is Exh.P.E.. The dead body of the deceased was first taken to the casualty department in the Lady Reading Hospital, Peshawar, but the said Dr. Tahir Shah returned the dead body to the Khyber Medical College, Peshawar for post- mortem examination. 12. Dr. Javed Iqbal. M.O. Forensic Medicine, Khyber Medical College, Peshawar, (P.W.17) performed autopsy on the dead body of Syed Mazhar Hayat deceased and found the following:-- ' A stout middle-aged man of 45 years unbearded lying dead. Rigor mortis and post-mortem lividity developed. Belongings: one pair of blue sility colour Qamees and Shalwar, one white maroon colour woollen banyan. ' Injuries.A fire-arm entry wound of .75 x half centimetre in size situated on the left top of forehead. 5 c.m. Above left eyebrow and 2 c.Ms. From midline. During the post-mortem, one bullet with one metallic piece was recovered from right occipital lobe of brain. ' Internal Examination ' Skull. Scalp, skull injured and was fractured. Mcmbrains and brain matter was also injured. ' Thorax. Major blood vessels inside the skull under corresponding injuries were found injured.
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' Abdomen: Stomach was found healthy containing 100 cc of digested food. ' In his opinion, the immediate cause of death was due to injury to the vital organs i,e. Brain due to fire-arm. Probable time between injuries and death was immediate while between death and post-mortem was within 4 to .6 hours. Clothes of the deceased and two metallic pieces P.19 were sealed in a vial and were handed over to the police. Medical report in this respect is Exh.P.G. 13. At the trial, the two accused denied the charge against them. Accused Muhammad Iqbal does not deny that he was in possession of Klashnikov while A.S.I. Bas Wali Khan caught hold of him. He also does not deny that in the scuffle between him and Bas Wali, the Klashnikov went off and Bas Wali was injured. He stated that he was arrested near the F.C. Chowk while he was travelling in Afghan Bus. He stated that he was police employee. He had strained relations with A.S.I. Bas Wali and the other police officials, namely PWs Iqbal and Ashfaq. In reply to a question, he made the following answer:--- "I was travelling in Afghan Bus and when in the F.C. Chowk P.W. Bas Wali saw me who had a grudge against me, boarded the Bus and tried to snatch the Klashnikov from me and this was the very first time that he had seen me as I had nothing to do with the allegations against me." ' He denied having made any confession before the Magistrate. He stated:-- "I had remained in police custody for 8 days during which I was severely beaten and humiliated and I was threatened that if I did not make the so-called confession, then I will have to face dire consequences. The so-called confession was neither voluntary nor true but it was because of the injuries inflicted and threats given to me." ' When asked that he received abrasion in the scuffle between him and P.W. Bas Wali, he stated:-- "After my arrest by P.W. Bas Wali, I was taken to Traffic Police Headquarters and beaten as a result of which I was injured and my nose was bleeding and for his illegal excesses he had implicated me in the present case when he had later come to know of the occurrence in the area of P.S. West Cantt. I was falsely implicated in the present case which is indicated from the fact that I was produced before the doctor for examination very late and for the illegal confinement at the hand of Bas Wali etc. In the traffic police headquarters." ' He was confronted with F.I.R. No,5, dated 2-1-1992 relating to the charge of robbery against him in the shop of one Zafar Gul, but denied the charge that he was falsely involved later on due to the present case. He produced no evidence in defence nor appeared as his own witness. ' Accused Said Hakim admitted that he was apprehended by A.S.I. Abdul Ghani on the day of the occurrence. He denied that A.S.I. Abdul Ghani had recovered anything from him but in the same statement before the trial Court he admitted that he denied recovery of dagger (P.3) from him but admitted recovery of licence copy in his name (P.1) for the dagger from him. He also admitted recovery of licence copy (P5) in his name for the pistol (P.6) from his possession. About his confession (Exh.PK) made by him before the Magistrate, on 7-1-1992 he stated: "It is incorrect. I had remained in police custody for 8 days during which I was severely beaten and humiliated and was threatened of dire consequences if I did not make the so-called confession which is neither voluntary nor true but it is because of the threats given to me." ' He produced no evidence in defence nor appeared as his own witness. ' The learned Special Court rejected the evidence of Bank employees, namely, Mian Gul Ahmad Rashid (P.W.14), Ahmad Khan (P.W.15) and Taslim Khan (P.W.16) and in support of its finding his whole exercise was that the accused were not known to them and their names were disclosed to them after the occurrence. He observed: "Thus, it is clear from the testimony of the aforesaid 3 P.Ws. Who are employees of the Bank, that they were not aware of the names of the persons who attempted to commit robbery in the bank on 30-12-1991 and committed the murder of Mazhar Hayat Shah deceased. The names were disclosed to them by the employee of traffic police namely Abdul Ghani who apprehended Said Hakim
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accused with pistol and dagger etc. And Bas Wali who apprehended Muhammad Iqbal accused with Klashnikov." ' The learned Special Court also took note of the evidence of the police officials, namely, A.S.I. Abdul Ghani (P.W.2) and A.S.I. Bas Wali (P.W.3). It observed:--- "The prosecution case is that since these two accused were chased and apprehended by the traffic police officials, therefore, this circumstance connects them with the main offence of robbery in the bank, murder and attempt to commit murder. I am afraid, if this circumstance of apprehension of the two accused at the hands of the traffic police officials can be taken as a piece of evidence to prove the charge against the accused." 14. P.W. Abdul Ghani had apprehended accused Said Hakim when, according to prosecution, after the occurrence he was coming out of the Bank and proceeded towards P.W. Abdul Ghani. The learned Special Court observed:- "Had he been the culprit he would not have proceeded towards Abdul Ghani A.S.I. Who was in uniform and like his other companion would have escaped in the street." ' The learned Special Court was also critical of the report lodged by Abdul Ghani Traffic A.S.I. It observed:-- "It is really strange to note that the report of the occurrence was made by Abdul Ghani Traffic A.S.I. When he had not witnessed the main occurrence. The bank's employees were the persons who should have lodged the report. The idea to get the report lodged by Abdul Ghani A.S.I. Itself indicates a planning by the police to involve the accused falsely in the case." 15. A.S.I. Bas Wali (P.W.3) had apprehended accused Muhammad Iqbal in the Bus. Rejecting the testimony of this witness, the learned Special Court observed that "this witness was not on duty on the day of occurrence, as admitted by him, but he had gone to inquire about the spare-parts of the Motorcycle, when he heard the report of fireshot inside the bank and saw two persons coming out of the bank and were running towards the road. The learned Special Court further observed:- "The witness when cross-examined as to why he had not helped Abdul Ghani P.W. Instead of chasing Muhammad Iqbal accused, said that he went after the other accused. This is no explanation. Why he chased the other accused when none from public or the Bank employees was heard saying that he was the person who after committing the offence was decamping. The very fact that acccused was taken to traffic police headquarters instead of taking him to P.S. West Cantt. Casts doubt on the veracity of the witness who on that day was not on duty. Although Bas Wali P.W. Was injured and apprehended accused Muhammad Iqbal with Klashnikov but this fact alone is not sufficient to link Iqbal accused with the main occurrence of robbery and murder in the Bank. Here, the statement of Muhammad Iqbal accused recorded under section 342, Cr.P.C. May be referred that Bas Wali A.S.I. Had a grudge against him as he quarreled with him while serving in the police in those days. Bas Wali A.S.I., therefore, taking advantage of the occurrence in seeing Muhammad Iqbal accused with Klashnikov travelling in the bust took revenge by apprehending the accused with Klashnikov in the bus. During the scuffle he was injured on foot. Had Muhammad Iqbal accused committed the offence of robbery and murder as alleged by the prosecution, he would not have spared Bas Wali A.S.I. To chase him." 16. While dealing with the retracted confessional statements of the accused at the trial the learned Judge of the Special Court, observed:--- "The retracted confessions of the two accused Exh.P.K. And Exh.P.L. Are not proved to have been voluntarily made. Then, it has been clearly stated by them in reply to the question put to them by Kamranzaib Khan, Magistrate (P.W.8) that they were tortured by the police. The retracted confession can also be ignored as no independent corroboration is available on the record. The recoveries in the facts and circumstances of the case cannot be taken as corroboration of the retracted confession."
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17. After hearing the learned counsel for the accused and the learned State counsel and on perusal of the impugned judgment, we have not been able to endorse the finding of the learned Special Court acquitting the accused in this case. The occurrence is proved to have taken place in the Bank on 30-12-1991. P.Ws. Mian Gul Ahmad Rashid, Tasleem Khan and Ahmad Khan are the employees of the Bank, therefore, their presence at the time of occurrence in the Bank was natural and it cannot be disputed. P.W. Ahmad Khan is the Chowkidar of the Bank. He bears the stamp of fire-arm injuries on his person. His evidence is, therefore, forthright and cannot be doubted by any stretch of imagination. He alleged that one culprit fired fatal shot with pistol at the deceased and while he was taking up position to fire at the said culprit, the other culprit fired at him with pistol. There is no question that the Chowkidar was unarmed nor can such question be raised. The Chowkidar of the Bank is always equipped with fire-arms for the protection of the Bank. We are, therefore, in no manner of doubt that the Chowkidar will have attempted to fire at the culprit, but unfortunately the other culprit hit him with the shot. It is obvious that the accused on entering the Bank were close or were eye to eye to the P.W. Ahmad Khan Chowkidar. So would be the case with other employees of the Bank, namely, P.Ws. Mian Gul, Ahmad Rashid and Tasleem Khan. It cannot be said that they closed or shut their eyes when the accused entered the Bank armed with deadly weapons. Naturally the witnesses will have a glimpse of the accused at that juncture. Accused Muhammad Iqbal was armed with Klashnikov while the other two accused were armed with pistols, therefore, the deposition of the official witnesses of the Bank in this behalf appeals to the senses of a reasonable man that they are telling the truth. The accused were not known to them. They alleged that three persons attacked the Bank, therefore, there could be no occasion for them for introducing false version of the occurrence. 18. P.W. Abdul Ghani A.S.I. Apprehended accused Said Hakim armed with pistol immediately after the occurrence. He was brought to the bank. The official witnesses charged him to be the person responsible for firing at Syed Mazhar Hayat Shah deceased. P.W. Abdul Ghani A.S.I. Cannot be supposed that immediately after the occurrence, he apprehended a man walking in a normal gesture and pose. A.S.I. Stated that immediately after the occurrence accused Said Hakim came out of the bank. He was running towards him and meanwhile he fired at him. Thereafter, he boarded a bus, but he (P.W. Abdul Ghani) apprehended him and snatched the pistol. He also recovered from him a dagger. At the police station, I.O. Amanullah Khan recovered a licence copy (P.5) for the dagger and a licence copy (P.6) for the pistol. Accused Said Hakim does not deny the recovery of these articles from him. This circumstance speaks adversely against him. Why was he carrying licence copies for the pistol and dagger. There is no explanation for it, therefore, there can be no question about this fact that the pistol and the dagger too were recovered from him but in order to absolve himself of the charge he denied the recovery of the pistol and dagger. In the facts and circumstances of the present case, his statement loses its evidentiary value and no weight and significance can be given to it. There was nothing for P.W. Abdul Ghani A.S.I. To apprehend him. He saw him coming out of the bank immediately after the occurrence. The witness was on duty at a place close to the bank. He heard the report of fireshots in the bank, therefore, he was to have focussed his attention at the premises of the bank. Meanwhile, he saw accused Said Hakim coming out of the bank in abnormal movement, therefore, P.W. Abdul Ghani doubted him to have committed some crime in the bank and being a police official, he could not watch him as a mere spectator. On this aspect of the case, the learned Special Court has observed that "had he been the culprit, he would not have proceeded towards Abdul Ghani A.S.I. Who was in uniform and like his other companions would have escaped in the street". In our opinion, this observation is not compatible with the facts and circumstances of the present case. The accused had murdered the deceased in the bank by firing at him, therefore, he was in haste and hurry in a state of nervousness. A.S.I. Abdul Ghani saw him, but the accused would have not seen him. Seeing the
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police officials, the accused tried to escape and meanwhile boarded a bus. A.S.I. Abdul Ghani chased him armed with pistol in the bus. The accused chose to board the bus in order to facilitate his escape, but as he was suspected a culprit having committed some offence in the bank, he was to be persucd by A.S.I. Abdul Ghani as a matter of natural course. The other accused escaped in the street, therefore, his apprehension was not possible. The apprehension of accused was however, possible, as he was all along within the range of the sight of P.W. Abdul Ghani and so he was apprehended. 19. This brings us to the case of accused Muhammad Iqbal. Now the official witnesses of the bank deposed that one of the three accused armed with Klashnikov entered the bank on the day of occurrence. Accused Muhammad Iqbal admits that he was apprehended by A.S.I. Bas Wali alongwith Klashnikov (P.7). His stand however, is that P.W. Bas Wali had apprehended him for personal reasons. He stated that he was a serving police official in those days in the police and had a quarrel with P.W. Bas Wali, Ashfaq and Iqbal. P.W. Bas Wali have a grudge against him, therefore, P.W. Bas Wali falsely involved him in the case. He did not produce any evidence in proof…
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