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Petitioner: JAVED SHAMSHAD and 3 others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Muhammad Hussain Adil Khatri Title: JAVED SHAMSHAD and 3 others vs THE STATE Case No.: Criminal Appeal No,167 of 1992 Date of Judgment:1995-04-20 Reported As: 1996 P Cr. L J 3 Result: Appeal allowed
JUDGMENT
JUDGMENT ' The present appeal has been preferred .By Syed Shamshad, Muhammad Tahir alias Rana, Rab Nawaz alias Rizwan and Musaddiqur Rahman alias Najeebur Rahman against the judgment and order, dated 23-61992, passed by the learned Judge, Special Court No,III (Suppression of Terrorist Activities), Karachi in Special Case No,396 of 1991, convicting the appellants and sentencing each of them for ten years' R.I. Under sections 395, 148 and 34, P.P.C. Khuda Buz, the fifth accused was acquitted. 2. The facts of the case are that on 25-9-1990, MA. Naeem Khan, who has been examined as P.W.6 by the trial Court, lodged First Information Report at Police Station Ferozeabad, Karachi, being Crime No,626 of 1990, stating that he was working in K.E.S.C. As Cashier since 1963. On that day, he, Clerk Tanveer Ahmed, driver Hassan Ali, security guard Mushtaque Ahmed all employees of K.E.S.C. And H.C. Abdul Majeed, who was armed with S.M.G. Alongwith 30 cartridges, were carrying cash of Rs,169,776 in Suzuki Jeep No,209-316, having taken out the same from National Bank of Pakistan, M.I. Branch, Saddar, Karachi. When the jeep reached near his office at 11-15 p.m., 3 or 4 young men, who were wearing Shalwars and shirts and talking in Urdu, started beating the said Head Constable and the security guard, opened firing in the air and took out the above cash from the jeep which was kept in a bag. They also snatched key of the said vehicle from the driver, took the S.M.G. Alongwith 30 cartridges and sped away in their car. He and his companions could identify those persons on seeing them again. The F.I.R. Further reads that the said complaint was being lodged against 3 or 4 persons known by their faces but their names and addresses were not known, for snatching the Government amount and official arm and injuring the occupants of the jeep. The F.I.R. Shows that
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the investigation was handed over to the S.H.O., the Inspector Raja Ghous of the said police station for investigation. ' It may be pointed out that after the above F.I.R. Was lodged, a letter, dated 30-7-1990 was written to the S.H.O. Ferozeabad Police Station pointing out that the amount mentioned in the F.I.R. Was not correct and it should be corrected to read as Rs,1,601,776, being the actual amount looted. The record does not show that such correction was made in the F.I.R. 3. On 14-12-1990 while Nazar Hussain and Sultan Masood Kayani, the Police Inspectors, then posted at C.I.A. Centre, Karachi, alongwith other police personnel, were checking vehicles on Gulshan-e- Millat Chowrangi, they arrested six persons for possessing unlicensed arms and also for having made preparation for commission of dacoity. The appellants and Khuda Bux Jatoi in interrogation disclosed that they had committed dacoity by looting the amount from the K.E.S.C. Jeep and had also snatched the S.M.G. From H.C. Abdul Majeed of Police Station, Ferozeabad. 4. On above disclosure the investigation of Crime No,626/90 of Police Station, Ferozabad was taken over by the aforesaid Inspector Sultan Masood Kayani. On 5-1-1991, out of the above accused, the four appellants before this. Court, were produced before Shahzad Ali Naqvi, then posted as Additional City Magistrate, C.IA. Court, Karachi, for their identification by the prosecution witnesses, namely, MA. Naeem, Hassan Ali, Mushtaque Ali Nagra and Tanveer Ali. On completion of the investigation, they were challaned. 5. The prosecution examined following nine witnesses in support of the charge. ' P.W.1 Tanveer Ali Chohan, the Junior Office Assistant, K.E.S.C. He produced memo of Inspection of the scene of offence as Exh.4. P.W.2 Hassan All Chohan, the driver of the jeep, P.W.3 Mushtaque All Nagra, the Security Supervisor of K.E.S.C. P.W.6 MA. Naeem Khan, Cashier in K.E.S.C., who had lodged the F.I.R. And produced the same as Exh.11 and letter, dated 3-7-1990 for making correction in the F.I.R. In respect of the amount looted, as Exh.12 and P.W.8 Abdul Majeed, the Head Constable. The above five are the eyewitnesses of the alleged occurrence. ' P.W.4 Nazar Hussain and P.W.9 Sultan Mahmood Kiyani, then posted as Inspectors, C.IA., Karachi who arrested the accused persons and secured arms from them were also examined. The former produced memo of seizure of arms and arrest of the appellants, as Exh.8. ' P.W.5 Raja Ghous, the Police Inspector, who was posted as S.H.O. Of Police Station Ferozabad when F.I.R. In question was lodged and P.W.7 Shahzad All Naqvi, the Additional City Magistrate, C.IA., Karachi, who produced Chart of Identification Parade, as Exh.15. 6. The appellants in their respective statements under section 342, Cr.P.C. Denied the whole of the prosecution case. Appellant Jawed stated that he was resident of Hyderabad and was in car dealing business. He used to visit Karachi as he used to do business with Raja Motors of Karachi where he had met Inspector Sultan Masood Kiyani and had sold to him one Suzuki Alto Car. A sum of Rs,20,000 was received from him and the balance amount of Rs,1,00,000 was promised to be paid within one month. He failed to pay the amount and when demanded he extended threats and subsequently involved him in this case and also in another case. He further stated that the prosecution witnesses were pressurised to depose in Court. With regard to his arrest, he disclosed that he was arrested from Quetta Balochistan Hotel situated in Lasbella, Karachi. He also denied that any identification parade was conducted by P.W.7. The identification test report was alleged to have been prepared without his knowledge and similar report was prepared by the said witness in another case. He produced the deposition of P.W.7 recorded in the other case which was subject- matter of Criminal Appeal No,130 of 1991 filed in this Court. He also produced the identification test report as Exhs.21 and 22. The other three appellants also denied the entire prosecution case and pleaded that they were arrested from Quetta Balochistan Hotel, Lasbella, Karachi and were involved in this case by the said Inspector because of his enmity with appellant Jawed.
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7. The trial Court based the conviction on the ocular evidence of P.Ws.1, 2, 3, 6 and 8. The above evidence was further found to have been corroborated by recovery of S.M.G. From appellant Jawed and identification of the appellants by the prosecution witness in the identification parade conducted by P.W.7. The learned trial Court Judge, however, discarded the evidence of P.W.6 in so far as it related to identification parade as it was found that the said witness was shown the five accused persons in C.IA. Centre before the identification parade was held. 8. We have heard Mr. A.Q. Halepota for the appellants and Mr. Muhammad Sarwar Khan, AA.-G. Sindh for the respondent. ' The learned Advocate for the appellants submitted that the ocular evidence is contradictory and inconsistent in material particulars, therefore, ought to have been discarded. In so far as identification parade is concerned, it was contended that it was in violation of settled law. It was further urged by him in the above context that the F.I.R. Does not contain any particulars or features of the culprits who had committed the offence and, therefore, the identification of the appellants after months of commission of offence cannot be relied upon. He placed reliance on The State/Government of Sindh through Advocate-General Sindh v. Sobharo 1993 SCMR 585, Asghar Ali alias Sabah and others v. The State and others 1992 SCMR 2088, Muhammad Yousaf Zai v. The State PLD 1988 Kar. 317 and Muhammad Afzal and another v. The State 1982 SCMR 129. The alleged arrest of the appellant and recoveries of weapons including the S.M.G. Allegedly snatched from P.W.8, depicted in the evidence of P.Ws.4 and 9, are dubious and belied by the inconsistencies and contradictions. It was pointed out that the prosecution version with regard to the said arrests and recoveries was discarded by this Court in Criminal Appeal No,130 of 1991, filed by appellants against their conviction in another case. The learned AA.-G., on the other hand, contended that the defence has not disputed the presence of the eye-witnesses at the time of the occurrence and as such the learned trial Court Judge rightly placed reliance on the said evidence. No exception can be taken to the identification of the accused by the appellants before P.W.7 in the identification parade and thereafter in the Court. He submitted that the circumstances in which the offence was committed, the impression of the faces of the appellants was so engraved on the mind of the witnesses that they would not forget them for years together. He sought support for his above submission from Mumtaz Ahmed and others v. The State PLD 1980 FSC 38 and Khalil Ahmad and others v. The State PLD 1993 Kar. 13. He also submitted that the evidence of the police personnel examined, cannot be thrown out as they are Muslims, in view of the law laid down in Mst. Hakumat Bibi v. Imam Din and others PLD 1987 SC 22. 9. Since the learned trial Judge had relied on the ocular evidence of P.Ws.1, 2, 3, 6 and 8, found it corroborated by the arrest and recovery of S.M.G. Disclosed in the evidence of P.Ws.4 and 9 and identification of the appellant in the test held by P.W.7 Shahzad Ali, we propose to first consider the ocular evidence. 10. P.W.1 Tanveer All Chohan deposed that the incident took place on 25-7-1990 at 11-00 or 11-30 a.m. He had come from M.I. House, K.E.S.C. Head Office and brought cash of Rs,16,01,776, alongwith Naeem, the timekeeper, Hasan Ali, the Driver and Mushtaq Nagra, Security Supervisor. When they reached near Shahrah-e-Quaidin O.C.I Office of the K.E.S.C., Head Constable Abdul Majeed who was on duty with them opened the door of the Jeep. Suddenly 3 or 4 persons rushed towards the jeep and attacked it. They pulled the police constable out of the jeep. He heard gun shot. He came out of the jeep and started running. He had not seen whether the driver and other persons in the jeep had come out of it. The culprits took money from the jeep and went away. He had not seen the culprits and was unable to identify the accused present in Court to be the persons who had attacked the jeep. He further stated that he was never produced before the Magistrate for participating in identification parade. Learned A.P.P. Requested the Court for permission to cross-
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examine the witness as he had turned hostile by denying his participation in the identification parade. The request was allowed, and the A.P.P. Was permitted to cross-examine the witness. In cross-examination he denied that he had identified five persons before the Magistrate or on that day MA. Naeem, Mushtaq Nagra and Hasan Ali had also appeared before the Magistrate for identification parade. The learned Judge then bound down the witness for appearance on the next date for Court questions when the Magistrate, who had held identification parade, was to be examined and produce the result of identification parade. It was, however, on 29-8-1991 when P.W.7, the learned Magistrate was examined and on that very day the Judge put the following leading questions to the witness:-- (1) It had come in the evidence of P.W.7 Shahzad Ali Naqvi, Assistant Commissioner and Sub- Divisional Magistrate that you appeared before him for identification parade alongwith other witnesses on 5-1-1991 in his Court room. What do you have to say? (2) Is it correct that you identified four accused persons in presence of the Magistrate in Court? (3) Is it correct that you identified Javed alias Shahanshah, Muhammad Tahir, Rab Nawaz and Mussadiq before the Magistrate? ' The witness replied all the questions in affirmative. ' P.W.2 Hasan Ali deposed that he was working as driver in the aforesaid office of K.E.S.C. About one year back he was sent to bring the cash for payment of wages, alongwith Naeem Chohan, Mushtaq and one police constable. He was driving the jeep and went to Abdullah Haroon Road, to bring cash from Head Office of K.E.S.C. When he was returning back, the cash was lying in the jeep under the custody and control of police constable and other employees of K.E.S.C. In the jeep. When he reached Sharae Quaidin at his office gate, there was a truck standing on the gate. He, therefore, stopped the jeep out side the gate. One person holding pistol in his hand came running towards him and pointed the same to him. He took out the keys of the jeep and went to the back portion of the jeep for getting money after unlocking the same. He heard fire shots. The said culprit hit something on the head of the constable and also injured Mushtaq Nagra, the Security Supervisor, sitting in the jeep. The said culprits took the cash and gun of the said constable. There were three other persons in addition to the culprit who had taken keys from him. He identified Tahir to be the person who had pointed gun at him and taken the keys. The police came at the place of occurrence later and prepared Mashirnama which was signed by him. He also denied his participation in identification parade or having identified any person before any judicial officer. The cross-examination of the witness by the learned A.P.P. Was allowed at his request. In cross- examination he denied the suggestion that he was working as informer for the accused and he had informed them about the money that was to be brought by him on the day of the incident and had told them to commit dacoity and pay him his share or that he had received his share and was deposing falsely. In cross-examination to the learned counsel for the appellant Tahir, he admitted that he had not disclosed features of any of the culprits and further stated that he had identified the said appellant in Court as he is the person with black complexion and the person who had snatched the keys from him was also of such complexion and, therefore, he suspected him to be the same person. The witness was bound down for appearance on the next date like P.W.1. On 29- 8-1991 the above questions were put to this witness also and he replied them in affirmative. ' P.W.3 Mushtaq Nagra deposed that he was working as Security Supervisor in O.C.-I Branch of K.E.S.C. On first of Moharram of the preceding year at about 11-00 a.m. He alongwith Naeem, driver Hasan Muhammad, Tanveer Chohan and police constable went to head office in a jeep. After collecting cash, when they came back to the aforesaid branch, the gate thereof was blocked by a truck and, therefore, jeep was stopped there by the driver. Four or five persons came there when they were getting thwn from the jeep, somebody hit him with iron rod or wooden stick on his head. He fell down and became unconscious. He did not know what happened later on. He regained his
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consciousness in Jinnah Hospital. When asked to identify the accused, he stated that they were not the same persons who had attacked him and the jeep. This witness was also allowed to be cross- examined by the learned A.P.P. At his request for the reason the former two witnesses were allowed to be cross-examined. In the said cross-examination he denied that he had seen the accused Khuda Bux Jatoi attacking them on the day of tie incident. He denied the suggestion that he had conspired with the accused persons to save them and to get his share out of the loot and it was for such reason that he was deposing falsely in Court. He denied that he had informed the accused about the cash to be brought on that day and had asked them to loot the amount. This witness was also bound down by the learned Magistrate. On 29-8-1991 the same questions were put to him and he replied them in affirmative like P.Ws. 1 and 2. ' P.W.6 MA. Naeem Khan deposed that alongwith P.Ws.1, 2 and 3 he went to K.E.S.C. Head Office National Bank of Pakistan. After he had drawn Rs,16,01,776 from the Bank, they came back to Shahrah-e-Quaideen in the jeep. The gate of K.E.S.C. Office was open but due to unloading of goods from another vehicle the road was blocked. He came down from the jeep to see what was going on. The jeep was on the road in front of the gate. He saw that 2 or 3 boys were beating security guard, H.C. Abdul Majeed and then firing in the air started. One of the boys snatched the cash bag and took it away forcibly from the jeep where it was lying and kept the same in another vehicle which was parked nearby belonging to the culprits who were 3 or 4 in number and they ran away in the same car. He identified the appellants to be the persons who had taken away the cash, started firing in the air and fled away in the vehicle after committing dacoity. He had not seen Khuda Bux Jatoi and Muhammad Hussain at the place of occurrence. He stated that he knew Khuda Bux Jatoi was employed in K.E.S.C. He went to Police Station Ferozabad and lodged the complaint. The police recorded the F.I.R. On his dictation. He produced a copy of the F.I.R. As Exh.11. He came back to K.E.S.C. Office and reported the matter to the Engineer. At about 1 o'clock police came there and he showed the place of occurrence and the jeep to the police. His statement was recorded. He was called by the C.IA. Police who asked him to recognise the accused who were present in the C.IA. Centre. After 10 or 12 days he was produced before the Magistrate, after he visited C.IA. Centre and the Magistrate conducted the identification parade. There were 10 to 15 persons in the room. He was called by the Magistrate five times in the room and each time he identified each of the accused. He stated that Tanveer Ahmed, Muhammad Hassan and Mushtaque Nagra were also produced before the Magistrate but none of them was called by the Magistrate in his presence. He produced copy of the letter for correction of the amount mentioned in the F.I.R., as Exh.12. It was further stated by him that he was shown five persons at C.IA. Centre excluding Khuda Bux Jatoi by Inspector Sultan Masood Kiyani. The police also informed him about the names of those persons. It was stated that the cash was lying with H.C. Abdul Majeed. He denied the suggestion that he had embezzled Rs,15,00,000 in the shelter of dacoity. He deposed that he had stated to the police while lodging the F.I.R. That he had got down from the jeer to find out as to why the gate was blocked and it was found that the gate was blocked as unloading was going on from some vehicle. On confrontation of it was found that it was not recorded as alleged. He denied the suggestion that no dacoity had taken place and that the story was concocted by the Engineer with the connivance of the police to swallow the amount of Rs,15,00,000. ' P.W.8 is Abdul Majeed, the Head Constable. He deposed that on 25-7-1990, he was posted at Ferozabad Police Station and was on duty with the cash van of K.E.S.C. On that day he went to K.E.S.C. Office situated at Shaharah-e-Quaideen from where he accompanied the cashier to Saddar for drawing cash from the Bank. The cash was obtained by the cashier. He was not aware about the details of the cash. He had accompanied the cashier in jeep. P.Ws.1, 2 and 3 were also with them. The jeep was stopped at the entrance gate of K.E.S.C. As the passage was blocked by the truck. He suddenly received injury on his head as some one had hit him with iron rod from the
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back when he was getting down from the jeep to know the reason as to why the jeep had stopped. Four young persons started grappling with him and they snatched S.M.G. Which he was carrying with him officially. He also received another blow with the iron rod which also caused injury on his head and thereafter the gun was snatched. He became unconscious and was taken to the hospital. He deposed that he could identify those four persons who hit him with the iron rod. He then identified the present appellants to be the persons who had caused injury to him. There were many persons in the complaint centre from the public but he was not able to say anything about them. He then identified the S.M.G. With loaded magazine to be the one snatched from him by the accused. He disclosed that he sustained 13 stitches on his head and regained consciousness on the same day. He produced the medical certificate as Exh.16. In cross-examination he disclosed that Hassan Muhammad, the driver and the cashier MA. Naeem Khan were sitting on the front seat of the jeep and he was sitting on the rear seat with security guard Mushtaq Nagra and Tanveer Ahmad, the clerk. The cashier and the driver also had got down from the jeep while he was conscious. He was the first person who got down from the back portion of the jeep. When he received the injury, he saw the driver and the cashier were also getting down from the jeep. He denied that the cashier and the driver had got down first and he got down from the jeep subsequently. There was separate door in the back portion of the jeep. He stated that he could identify the accused as he sustained the injury while he was getting down and accused persons had grappled with him, before he had fallen down. He had reported the loss of the gun to the police and it is mentioned in the F.I.R. He had also seen the keys being snatched from the driver. He could not fire as the accused had grappled with him and he had no opportunity for firing. His statement was recorded at Ferozabad Police Station and not in the C.IA. Centre. After the incident he had seen the accused on different occasions when he came in the Court for evidence in the past. He deposed that his statement was recorded by the Magistrate for the purpose of holding identification parade. He denied that he was deposing falsely on the instructions of his superiors. When he sustained the first blow from the back on his head, he fell down facing the side and not head down. He had regained his consciousness after 3/4 hours in the hospital. 11. As has been noted above, first 3 prosecution witnesses were declared hostile and the learned Prosecutor was permitted to cross-examine them. Nothing could be extracted from any of them to discredit their evidence. On the contrary the question put to them in the said cross-examination tend to change the complexion of the prosecution story. Learned Prosecutor went to the extent to suggest that the said witnesses were part of the conspiracy hatched to commit dacoity. For the moment it may suffice to . Say that the evidence of the hostile witnesses is not to be over looked completely. The rule of appreciation of evidence in criminal trial is that the evidence of hostile witnesses is not to be totally excluded from consideration. The Court when declares the witness to be hostile at the request of the prosecution, it permits the prosecution as provided by Article 150 of Qanoon-e-Shahadat Order, to put such question to his own witness which might be put in cross- examination by the adverse party, with a view to shake the credibility of the witness. Under such circumstances the evidence of such witnesses is to be considered for what it is worth. In this regard reference may be made to (1) Iftikhar Ahmed alias Bobi and another v. The State 1991 PCr.LJ 488, (2) Muhammad Siddiq and 5 others v. The State 1991 PCr.LJ 866, (3) Abdul Ghafoor v. The State 1991 PCr.LJ 752, (4) Muhammad Ashraf v. The State 1991 PCr.LJ 2274 and (5) Imam-ud-Din alias Bashir v. The State 1991 MLD 1699. ' In view of the above the evidence of the first three prosecution witnesses is to be considered according to their merit. ' The evidence of all the eye-witnesses has been reproduced herein above. The reading of the said evidence shows that all the witnesses have described the incident tangentially. The depositions of the said witnesses cannot be synchronized with each other. The evidence suffers from
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contradictions, inconsistencies and improbabilities. According to P.W.1 Tanveer All Chohan when the jeep stopped P.W.8 Abdul Majid opened the door of the jeep and suddenly 3 and 4 persons rushed towards the jeep and attacked it. They pulled P.W.8 out of the jeep and he then heard gun shot. As disclosed by the P.W.8 he was sitting on the rear seat. While he was alighting from the rear exit, some one hit him with iron rod on his head. He does not say that he was pulled down from the jeep. It has come in evidence that P.W.1 Tanveer Ali Chohan and P.W.3 Mushtaq were also sitting on the rear seat of the jeep. If P.W.8 had in fact suffered the injury as alleged by him P.Ws.1 and 3 also must have seen the injury being caused to him, while he was alighting from jeep. But these two witnesses have not so stated. P.W.2 Hasan Ali deposed that when he stopped the jeep outside the gate, one person…
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