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Petitioner: KASHIF SADDIQUE and 2 others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Mian Muhammad Najum-uz-Zaman, Khurshid Anwar Bhinder Title: KASHIF SADDIQUE and 2 others vs THE STATE Case No.: Criminal Appeal No,327 of 2007 Date of Judgment:2008-03-27 Reported As: 2008 P Cr. L J 1039 Result: Order accordingly
JUDGMENT
JUDGMENT ' KHURSHID ANWAR BHINDER J.--- Kishif Siddique, Asif Siddique and Muhammad Shanque, appellants in Criminal Appeal No,327 of 2007 along with three others were tried by the learned Judge, Anti-Terrorism Court-II, Gujranwala in case F.I.R. No,459 dated 25-11-2002, registered under sections 302/324/427/109/148/149, P. P.0 . Read with section 6/7 of the Anti-Terrorism Act, 1997, at Police Station Sabzi Mandi, Gujranwala, who vide his judgment dated 12-2-2007 convicted Kashif Siddique and Asif Siddique under section 7(a) of the Anti-Terrorism Act, 1997 read with section 302(b), P.P.C. And sentenced them to death for committing murder of Khalid Hamayun and Sarwar deceased with a fine of Rs,2,00,000/- (two lacs) each or in lieu thereof to undergo S.I. For one year's each. The amount of fine if realized was directed to be paid to the legal heirs of the deceased. They were also convicted under section 13 of the Arms Ordinance No,XX, 1965 and sentenced to five years' R.I. Each with a fine of Rs,20,000/- each or in default of payment of fine they shall further undergo two months' S.I. Each. By the same judgment Muhammad Shafique appellant was convicted under section 324, P.P.C. For causing fire shot injury to Aziz Ahmad and sentenced to ten years' R.I. With a fine of Rs,50,000 or in default whereof to further undergo two months' Si. He was also convicted under section 13 of the Arms Ordinance No,XX of 1965 and sentenced to five years' R.I. With a fine of Rs,20,000/- or in default whereof to further undergo two months' S.I. They were given the benefit of section 382-B, Cr.P.C. And all the sentences awarded to them were ordered to run concurrently. The learned trial Court vide the same judgment acquitted Sabir alias Bhola, Muhammad Shafi and Hafiz Kamal Mustafa from all the charges. Kashif Siddique, Asif Siddique and Muhammad Shafique, convicts have challenged their conviction by filing Criminal Appeal No,327 of 2007, Muhammad Afzal complainant filed two separate appeals, Criminal Appeal No,463 of 2007
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against Kashif Siddique, Asif Siddique and Muhammad Shafique for convicting them under sections 148/149/427/449/302(b)/324, P.P.C. And section 7(c) of the Anti-Terrorism Act, 1997, Criminal Appeal No,464 of 2007 was filed against the acquittal of Sabir alias Bhola, Muhammad Shafi and Hafiz Kamal Mustafa whereas the learned trial court has sent Capital Sentence Reference No,17-T of 2007 for confirmation of death sentence of Kashif Siddique and Asif Siddique appellants. All these matters are being disposed of through this single judgment. 2. Brief facts of the case, registered on the statement of Muhammad Afzal complainant, are that on 25-11-2002, at about 11-45, a.m., he along with Ghulam Muhammad son of Muhammad Sharif and Muhammad Ashraf son of Din Muhammad in his car was going to Dera of Chaudhry Khalid Hamayun at Sheikhupura Road, Gujranwala. Ahead of him Khalid Hamayun was also going to his Dera on his Pajero Jeep Registration No,GAN/1111, driven by Muhammad Sarwar and another Car Honda VTI, Registration No,GAN/35 driven by Mishal. Khan and Aziz Ahmad gunman was also in the front seat of the car. When they reached Sheikhupura Road near Miny Stadium, suddenly Asif Siddique, Saqib Siddique, Kashif Siddique, Tahir Siddique, Faisal Siddique, armed with kalashnikovs, Shafique son of Ata Muhammad, Riaz son of Meraj Din and five unknown accused armed with deadly fire-arm weapons emerged and rounded up vehicles of Khalid Hamayun. Kashif Siddique and Saqib Siddique accused raised Lalkara that Khalid Hamayun be done to death and immediately started firing with their kalashnikovs. Fire shots injured head and flanks of Khalid Hamayun, rest of the accused also started firing on both those vehicles with their respective weapons injuring Muhammad Sarwar, Mishal Khan and one passerby Shahid son of Yousaf who died due to the injuries at the spot. With the firing of the accused persons, Aziz Ahmad, Haroon and Seraj Din also suffered injuries and both the vehicles were destroyed. All the injured were shifted to Civil Hospital, Gujranwala. Three out of them were admitted in the hospital, however, because of serious condition of Khalid Hamayun, he was referred to Lahore for further medical treatment but lie succumbed to the injures on the way. Complainant added that the occurrence was committed by the accused on the abetment of Muhammad Siddique and Mehr Muhammad Saleem. On the same day supplementary statement of the complainant Exh.P.A./1 was recorded and he nominated Hafiz Kamal and Sabir alias Bhola accused that they through mobile phones informed their co- accused about the movement of Khalid Hamayun deceased. According to the complainant the background of the occurrence was that some time ago Kamran Shehzad brother of Asif Siddique and other accused was murdered at the hands of Adnan and others. In respect of said murder Kashif Siddique accused lodged F.I.R. Against Adnan and others including Khalid Hamayun, Tariq Hamayun and their uncle Chaudhry Ishaque. However, Khalid Hamayun and Chaudhry Ishaque were released on bail. Due to the said grudge the accused committed the aforementioned occurrence. 3. After submission of the challan, the charge was framed by the learned trial court against the accused persons to which they did not plead guilty, upon which the prosecution to prove its case examined as many as 28 witnesses in all. 4. Masood Ahmad Bhatti, Draftsman who prepared the site plan of the place of occurrence Exh.P.A. Appeared as P.W.1. Muhammad Riaz A.S.-I., P.W.2, drafted formal F.I.R. Exh.P.B.. Naveed Abbas Constable P.W.3 transmitted four sealed parcels of blood-stained earth and one sealed parcel containing crime empties to the office of Chemical Examiner and Forensic Science Laboratory, Lahore. Akbar Ali Constable P.W.4 escorted the dead body of Shahid deceased to the mortuary and after post-mortem examination produced last-worn clothes of the deceased before the Investigating. Officer, handed over to him by the doctor, which the Investigating Officer took into his possession vide memo Exh.P.C. He is also the witness of taking into possession detail of mobile phone calls by the Investigating Officer through recovery memo Exh.P.D. Muhammad Iqbal P.W.5 escorted the dead body of Mishal Khan deceased to the mortuary and after post-mortem
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examination produced before the Investigating. Officer last-worn clothes of the deceased, given to him by the doctor, which the Investigating Officer took into his possession vide memo Exh.P.E. This witness also transmitted three sealed parcels containing kalashnikov to the office of Forensic Science Laboratory, Lahore. Munir Ahmad Constable P.W.6 escorted the dead body of Khalid Hamayun deceased to the mortuary for port-mortem examination and produced before the Investigating Officer last-worn clothes of the deceased, given to him by the doctor, which the Investigating Officer took into his possession vide memo Exh.P.F. Muhammad Arshad Headconstable P.W.7 deposed about the safe custody of sealed parcels containing kalashnikov in the Malkhana of the police station. Aziz Ahmad constable P.W.8 transmitted the sealed parcel containing kalashnikov in the office_ of Forensic Science Laboratory, Lahore. Sajjad Ahmad P. W.9 deposed about the safe custody of sealed parcels of blood-stained earth and kalashnikovs in the Malkhana of the police station. Muhammad Ilyas A.S.-I. P,W.10 appeared to depose about the execution of non-bailable warrants of arrest and proclamations against the proclaimed offenders. 5. On 25-11-2002 Dr. Zahid Hussain P.W.11 at 3-00 p.m. Medically examined Haroon son of Hafeez and found the following injuries on his person:--- (1) Fire-arm lacerated wound with inverted margins, 1 c.m. x 1 c.m. x going deep on lower of left side of abdomen. (2) Fire-arm lacerated wound with everted margins 1 1/2 c.m. x 1 '/2 c.m. On middle of left buttock. ' According to the doctor all the injures were fresh and caused by fire-arm weapon. Hik/s4LR is Exh.P.G. ' On the same day the same doctor medically examined Muhammad Amin and found the following injury on his person:--- (1) Fire-arm lacerated wound 1 c.m. x 1 c.m. x going deep with inverted margins on left thigh middle inner part. According to the doctor the injury was fresh and caused by firearm weapon. Exh.P.H. Is the MLR. The same doctor on the same day medically examined Aziz Ahmad and found the following injury on his person:--- (1) Fire-arm lacerated wound 6 c.m. x 4 c.m. x going deep on left foot, upper part on middle of dorsum. ' According to the doctor, injury was fresh and caused by fire-arm weapon. Exh.P.J, is the MLR. ' Dr. Iftikhar Hussain, who conducted post-mortem examination on the dead body of Mashal Khan deceased on 25-11-2002 at 11-15 p.m. Appeared as P.W.12 and found the following injuries on his person:--- (1) A lacerated wound with inverted margins, injury of entry 1 c.m. Circular going deep on front of left ear, 2 c.m. Front from the tragus of ear. (2) A lacerated wound 4.5 c.m. x 1.5 c.m. With everted margins, exit from the injury No,1, on right side 5f face 2 c.m. Above and outer to right eye, brain was coming out from the wound. ' In the opinion of the doctor death occurred due to injury to vital organs i,e, brain leading to cessation of cardio-respiratory system, consequent upon injuries Nos.1 and 2 which was sufficient to cause death in the ordinary course of nature. Both the injuries were ante-mortem and caused by fire-arm weapon. The probable time between the injuries and death was immediate whereas between death and post-mortem examination was 12 to 24 hours. Exh.P.K. Is the post-mortem report whereas Exh.PK/1 is the sketch of injuries. ' On the same day at 12 O'clock (midnight) the same doctor conducted the post-mortem examination on the dead body of Shahid deceased and found the following injuries on his person:- (1) Lacerated wound 1.5 c.m. x 1.5 cm, circular, with inverted margins, on front and outer part of left upper thigh, 10 c.m. Below the inguinal ligament (wound of entry).
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(2) Lacerated wound 2 c.m. x 1.5 c.m. With everted margins, on inner, extreme upper part of left thigh. It is a wound of exit from injury No,1. (3) Lacerated wound of 1 c.m. x 1 c.m., inverted margins, on the back of right middle thigh, wound of entry. (4) Lacerated wound 1 c.m. x 1 c.In. With everted margins, on back of right inner thigh, 5 c.m. From injury No,3. ' According to the doctor, death occurred from haemorrhage shock due to major vascular injuries i,e, left femoral artery and vein, consequent upon injuries Nos.1 and 2, injuries Nos.3 and 4, were nonfatal and muscle deep. All the injuries were ante-mortem, injuries No,1 and 2 were sufficient to cause death in the ordinary course of nature. All the injuries were caused by fire-arm weapon. The probable time that elapsed between injuries and death was within three hours whereas time between death and post-mortem examination was within 6 to 12 hours. Exh. PL is the post-mortem examination report whereas Exh.PL/1 is the sketch of injuries. ' On the same day at R.45 p.m. Dr. Capt. Muhammad Khalid, P.W.13 conducted post-mortem examination on the dead body of Khalid Hamayun deceased and found the following injuries on his person:--- (1) A fire-arm lacerated wound of entry 4 c.m. x 3 c.m. Going deep, on left front of head 4 c.m. Above from left eye-brow. (2) A fire-arm lacerated wound of entry 3 c.m. x 1.5 c.m. Going deep on outer aspect of left lower chest 12 c.m. Above from left iliac crest. ' In the opinion of the doctor injury No,1 was sufficient to cause death due to its location causing extensive damage to brains parts as a whole, blood vessels in the brain. Consequent upon severe irreversible shock. Death of the injured in specific course of time. Injury No,2 was dangerous but not fatal in nature. All injuries were ante-mortem, homicidal, caused by fire-arm weapon. The duration in between injuries and death was within two hours whereas duration between death and post- mortem examination was within 10 hours. Exh.P.M. Is the postmortem report while Exh.P.M./1 and Exh.P.M./2 are the sketches of injuries. ' On the same day the same doctor at 10-00 p.m. Conducted postmortem examination on the dead body of Muhammad Sarwar deceased and found the following injuries on his person:- (1) A fire-arm lacerated wound of entry 6 c.m. x 2 c.m. x going deep on right side of head, 6 c.m. From right ear. (2) A fire-arm lacerated wound of exit 8 c.m. x 4 c.m. On left side of head, 5 c.m. From left ear, with brain matter, protruding out from the wound. ' According to the doctor injuries Nos.1 and 2 damaged to skull, brain and blood vessels. This resulted into drastic damage of brain (severe head injury), external and internal haemorrhage, leading to severe irreversible shock and immediate death of injured person. The injuries were ante mortem and homicidal and caused by fire-arm weapon. The duration between injuries and death was immediate whereas between death and post-mortem examination was within 12 to 24 hours. Exh.P.N. Is the copy of the post-mortem report and Exh.PN/1 and Exh.PN/2 are sketches of injuries. 6. Amjad Pervaiz Constable P.W.14 escorted the dead body of Muhammad Sarwar deceased to the mortuary for post-mortem examination and produced before the Investigating Officer last-worn clothes of the deceased, given to him by the doctor and the Investigating Officer took the same into his possession vide memo Exh.P.P. Muhammad Rehan P.W.15 deposed about the presence of the accused on the day of occurrence near the place of occurrence at Riaz Metal Works, Muslim Road, Gujranwala at about 11-00 a.m. Armed with kalashnikovs and used Telephone No,220376 for about 15 to 20 minutes and after they left the factory P.W. Heard fire reports and that Kashif accused along with Ills brothers and his companions committed murder of Khalid Hamayun and his companions. Muhammad Anwar P.W.16.Is the witness of collecting blood-stained earth by the
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Investigating Officer from four places where the deceased fell after receiving injuries which were secured by the Investigation Officer vide memos. Exh.P.Q. Exh.P.Q./3. He is also the witness of collection of crime empties vide recovery memo Exh.P.R. And taking into possession of Pajero Jeep vide recovery memo Exh.P.S. And car vide recovery memo Exh.P.T. Sheraz Ahmad P. W.17 is the witness of recovery of kalashnikovs taken into possession by the Investigating Officer vide memos. Exh.P.U. And Exh.P.V. Recovered at the instance of Kashif Siddique and Shafique accused. Zahid Mehmood P. W.18 is the witness of recovery memo Exh.P.W. Of the kalashnikov recovered at the instance of Asif Siddique accused. Mehr Muhammad Babar P. W.19 is the witness of conspiracy to commit the occurrence of murder of Khalid Hamayun hatched between the accused. Irfan Ahmad Sindhu, Special Judicial Magistrate P.W.20 conducted identification parade proceedings of Muhammad Shafi accused within the premises of Central Jail Gujranwala on 16-1-2003 and in this respect he prepared a report Exh.P.X. Muhammad Akram P.W.21 deposed that Sabir Butt accused provided information to his co-accused through mobile phone in respect of movement of Khalid Hamayun deceased on the day of occurrence at 11-30 a.m. From Malik Travels Adda near Mosque one Minar Wali Sheikhupura Road, Gujranwala. Muklitar Ahmad P.W.22 and Haji Mushtaque P.W.23 deposed that Haji Muhammad Siddique proclaimed offender abetted his co-accused to commit murder of Khalid Hamayun to take revenge of murder of Khurram Shehzad on 23-11-2002 through telephonic conversation. Muhammad Afzal complainant appeared as P.W.24 and reiterated the contents of the F.I.R. While Aziz Ahmad P.W.25, injured eye-witness supported his version. 7. Muhammad Nawaz S.-I. P.W.26 and Ejaz Hussain P.W.27 investigated the case. Shaukat Ali, S.-I. Who chalked out F.I.R. No,469 under section 13 of the Arms Ordinance No,XX, 1965 Exh.P.W.28/1, appeared as P.W.28. S. After conclusion of the prosecution evidence, the accused were examined under section 342, Cr.P.C. Kashif Siddique, accused in reply to a question that why this case against you and why the P.Ws. Have deposed against him stated that Khalid Hamayun deceased was his cousin and running different business and he was also influential political figure in the city. His sister Uzma was married to Asif Siddique co-accused but unfortunately marital tie ended with divorce which created abnormal relations between the two families. On 14-1-2002, Khurram Shehzad his brother was murdered and in this respect F.I.R. No,16 of 2002 was registered at Police Station Sabzi Mandi against Khalid Hamayun deceased, his father, brother and others. Khalid Hamayun deceased had many other enemies and one of them committed his murder but in order to pressurize him and his family to effect compromise in murder of Khurram Shehzad complainant falsely roped him in this case. Kashif accused also took plea of alibi that on 13-11-2002 he through Passport No,KA-111299 Visa No,2525580 went to Iran through Taftan Check Post Balochistan. He returned back on 9-12- 2002 and was illegally taken to Gujranwala due to the influence of family of Khalid Hamayun deceased and involved as accused in this case. Accused also tendered in his defence copy of F.I.R. No,305 of 1991 registered at Police Station Sabzi Mandi as Exh.D.A., certified copy of F.I.R. No,384 of 1992 Police Station Saddar Gujranwala as Exh.D.K., certified copy of F.I.R. No,1250/1999 Police Station Sabzi Mandi, Gujranwala Exh.D.L., certified copy of F.I.R. No,16 of 2002 Police Station Saddar Gujranwala Exh.D.L./A, certified copy of challan report in case F.I.R. No,761 of 1999 Police Station Model Town Exh.D.N., certified copy of F.I.R. No,761 of 1999 Police Station Model Town Exh.D.N./1, certified copy of application moved by Abdul Hafeez, Muhammad Sheraz and Muhammad Umar accused in case F.I.R. Ne.761 of 1.999 Police Station Model Town, Gujranwala under section 249-A, Cr.P.C. Exh.D.N./2, certified copy of application moved as criminal miscellaneous application under sections 22-A and 22-B of Cr.P.C. In the court of Sessions Judge, Gujranwala by his wife Mst. Saima Kashif Exh.D.P. And certified copy of reply of Inspector/S.H.O. Police Station Sabzi Mandi, Gujranwala Exh.D.P./1.
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9. Asif Siddique accused who is brother of Kashif Siddique accused also made similar statement while reply to the aforesaid question. He also narrated the same facts as were stated by his brother Kashif Siddique accused in respect of plea of alibi. 10. Shafique accused while replying to the same question took the plea that he has been involved in the case due to previous emnity as his nephew Khurram Shehzad was murdered and he was eye-witness of the occurrence against Khalid Hamayun deceased, his brother and father in said murder case. He also stated that he was arrested from Karachi and falsely implicated by the complainant in this case being real Chacha of co-accused. 11. Muhammad Shafi accused stated in answer to the aforesaid question that he being Numberdar of his Chak No,642 Tehsil Jaranwala District Faisalabad arranged sureties for his co-accused in this case who were also involved in criminal case, registered at Police Station Saddar Faisalabad because of his close relations with in-laws of Shaukat Ali. He further stated that he has been roped in this case falsely and that he was not present at the alleged time of occurrence and he did not participate in this occurrence. He also produced copy of Rapat No,20 of Roznamcha dated 2-12- 2002, Police Station Saddar Faisalabad Exh.D.U., application for verification of Numberdari dated 2- 6-2003 Exh.D.V., certified copies of F.I.Rs, Nos.891, 892 and 893 date4 15-9-2002 Police Station Saddar Faisalabad Exh.D.W./1, Exh.D.W./2 and certified copies of surety bonds Exh.D.Y., Exh.D.Y. /1 and Exh.D.Y./2 in his defence. 12. Sabir alias Bhola accused while replying to the aforesaid question stated that Haji Muhammad Siddique absconding co-accused was President of Anjaman-e-Arhatian, Fruit and Sabzi Mandi, Gujranwala in the year 2002 and he was Incharge of Security Guard and was very close to Haji Muhammad Siddique. The accused further deposed that Khalid Hamayun deceased was Behnoi of complainant, Muhammad A fzal and also Tayazad of complainant. The complainant not only falsely involved whole family of Haji Muhammad Siddique but also involved falsely his close workers in this case. He was arrested in this case on 28-11-2002, when he was attending Qul ceremony of deceased Khalid Hamayun whereas his arrest was dishonestly shown dated 22-12- 2002. He further stated that he never led to the recovery of Mobile Phone No,0300-6402449 from his house and recovery is fake. He also stated that there were two recovery witnesses, namely, Saeed and Shaukat but both of them have not been examined before the court and they were given up by the prosecution. The only witness of reccee, namely, Muhammad Akram is resident of Qila Didar Singh and closely related to complainant party and that he has deposed cn the instance of complainant. He further stated that he never used the said mobile phone and that he has been falsely implicated in this case by the complainant due to influence. 13. Hafiz Kamal Mustafa accused while replying to the same question stater that he was running a Khokha Shop in Sabzi Mandi Gujranwala under Haji Muhammad Siddique his co-accused who was President of Anjaman-e-Arhatian, Fruit and Sabzi Mandi Gujranwala and has been falsely involved in this case by the complainant being close worker of Haji Muhammad Siddique co-accused. He further stated that he in fact was arrested by Muhammad Nawaz Sub-Inspector on 3-12-2002 from his house but malafidely shown his arrest dated 22-12-2002. He denied the recovery of Mobile Phone No,0300-6420822 and motorcycle and stated that these were fake and fictitious recoveries planted on him. He added that recovery witnesses cited against him have not been examined by the prosecution. He claimed himself to be innocent. 14. The accused, in their defence, examined as many as five witnesses. Javed Garsheen D.S.P./C.I.A. Appeared as D.W.1 and produced photocopies of Rapat No,7 dated 11-12-2002 and Rapat No,11 dated 15-12-2002, pertaining to Police Station Branch, Quetta, written by Azam Headconstable Exh.D.W.1/A and Exh.D.W.1/B. He stated that he, on the direction of S.S.P., Quetta that accused of Gujranwala were with Levies and custody of both Kashif and Asif accused, one after other with interval of 2/3 days were handed over to the Inspector of Gujranwala Police, namely, Tahir Majeed
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and Sadiq along with documents. Muhammad Nadeem Inspector/S.H.O. Police Station Crime Branch, Quetta appeared as D.W.2 and stated that Rapat No,7 dated 11-2-2002 about handing over of Kashif accused and Rapat No,11 dated 15-12-2002 about handing over of Asif accused were destroyed in compliance with orders of S.S.P. Quetta and produced Exh.D.W.2/A, copy of compliance report of said order as Exh.D.W.2/B and a certificate in respect cf destruction of the record as Exh.D.W.2/C. Walayat Hussain, Sub-Inspector F.I.A., Quetta Chaman appeared as D.W.3 and stated that on 13-11-2002 he was posted as Incharge, Check Post, Check Post Taftan Immigration Post and on the same day Kashif and Asif accused crossed border to Iran. He further stated that on 12-9-2002 Kashif accused returned and was handed over by his staff to Levies and on 12-12-2002 Asif accused also returned to Pakistan and he was also handed over to Levies by his staff. He also stated that he never saw both the accused and their passports, however, from the record the number of passport of Asif accused is KB147294 and that of Kashif accused is KA111299. He further stated that at the time of handing over both the accused he was not present and said proceedings were completed by his subordinates, Munir A.S.-I. And entries in the record were also made by same subordinate. He also stated that both these accused were handed over to Levies on telephonic instructions of S.S.P. Quetta. Munir Ahmad Sub-Inspector appeared as D.WA and stated that on 13-11-2002 when he was posted as A.S.-I. At Taftan Immigration Check Post both the accused Kashif and Asif came and he checked their passports and visas and after observing them made entries in the relevant register to go to Iran. He also stated that on 9-12-2002 he received instructions of S.S.P., Crime Branch Quetta to check the record in respect of exit of both these accused to Iran and directed that on their return…
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