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Petitioner: MUHAMMAD HAROON VS Respondent: STATE
1994 P Cr
1994 P Cr. L J 637
[Karachi]
Before Haziqul Khairi and Muhammad Hussain Adil Khaki, JJ
MUHAMMAD HAROON and another---Appellants
versus
THE STATE---Respondent
Criminal Appeals Nos.121, 131 and 137 of 1991, decided on 21st October, 1993.
(a) Penal Code (XLV of 1860)--
----Ss. 302/34---Appreciation of evidence---Prosecution witnesses including the eye-witness who had no reason to falsely implicate the accused had identified them before the Magistrate in the identification test as well as before the Trial Court and had corroborated each other supporting the prosecution case--Delay in lodging the F.I.R. was explainable---Medical evidence had also supported the prosecution case---Defence evidence which appeared to be made up had not been substantiated---Conviction of accused was upheld in circumstances.
Hassan v. The State 1969 S C M R 454 and Ismail and 3 others v. The
State 1983 P Cr: L J 823 distinguished.
Hassan v. Muhammad Mushtaq 1978 S C M R 49; Abdul Karim and 2 others v. The State P L D 1971 Kar. 239; Sikandar v. The State P L D 1963 SC 17; Muhammad Rafiq v. The State 1974 P Cr. L J 391; Muhammad Sadiq and another v. The State P L D 1960 SC 226; Allah Hando v. The State 1969 S C M R 714; Muhammad Hafiz and another v. The State 1978 P Cr. L J 27; Sultan Ahmed and another v. The State 1987 S C M R 1177; Ali Haider v. The State 1981 P Cr. L J 97 and Daniel Boyd and another v. The State 1992 SCMR 196 Muhammad Sadiq and another v. The State PLD 1960 SC 2234 ref.
(b) Penal Code (XLV of 1860)---
----S. 302/34---Sentence---Accused had common intention to commit the crime---All the accused, therefore, should have been awarded the same punishment---Sentence of death awarded to accused by Trial Court was consequently reduced to imprisonment for life as the co-accused had been sentenced to life imprisonment.
Azizullah K. Sheikh for Appellant (in Criminal Appeal No.121 of 1991)
IA. Hashmi and Nizamuddin for Appellant (in Criminal Appeal No.131 of 1991).
Iqtidar Ali Hashmi for Appellant (in Criminal Appeal No.137 of 1991).
Abdul Ghafoor Mangi, A.A: G. for the State (in all Criminal Appeals).
Ch. Iftikhar for the Complainant (in Criminal Appeal No.121 of 1991).
Date of hearing: 4th July, 1993.
JUDGMENT
HAZIQUL KHAIRI, J. -- By this judgment we propose to dispose of three Criminal Appeals Nos.121 of 1991 filed by Muhammad Haroon and Fahim Siddiqui, 131 of 1991 filed by Khurram Sharif and 137 of 1991 filed by Shakil Ahmed Khanzada, against the judgment dated 12-5-1991 passed by the learned Special Court III, Suppression of Terrorist Activities at Karachi, whereby the appellants Muhammad Haroon, Fahim Siddiqui and Khurram Sharif were convicted and awarded death sentence while appellant Shakil Ahmed Khanzada was convicted and sentenced for transportation for life. Each of the appellants were awarded fine of Rs.10,000 and in default R.I. for one year with direction that if the amount of fine is realised, half may be paid to the heirs of the deceased.
The facts of the case are that on 27-4-1989 at about 13-40 hours the complainant and P.W.4 Muhammad Ali Awan who is the father of the deceased Iffat Awan and a retired Air Force Officer was sitting in his House No.2/38-A, Block 2, Shah Faisal Colony, Karachi, alongwith his wife Mrs. Zainab Awan and two daughters, namely, P.W.6 Azra Awan and Iffat Awan deceased when at 13-40 hours the bell of the house rang from the northern side gate of the house. He got up to go there. In the meantime his two daughters Iffat deceased followed by Azra Awan went towards it. From the dining room he heard the deceased asking "who is there"? twice. But there was no reply. Thereafter he heard his daughter Iffat Awan again "who is there?" and "what is it?" and after a little while "what is it that you want?" In the meantime he heard his second daughter Azra Awan shouting "daddy.. daddy save us". Immediately thereafter the witness heard a shot being fired. The witness quickly rushed to the southern verandah when second shot was fired and saw two persons with arms standing outside the northern verandah. They were having arms like revolver or T.T. Pistols. He saw appellant Haroon who was standing near the gate on the northern side of the house but he could not say whether he was armed or not as the northern gate was closed. According to him the northern gate is about six feet in height but there are cut away portions on the top and hence it is possible to see the upper portion of the body of any person standing outside the gate. He also saw appellant Khurram coming down from the northern verandah of house armed with a weapon, bigger than a pistol and may be a carbine. These persons opened the northern gate and went away. He identified appellants Shakil, Haroon and Khurram in the Court. After the incident had taken place he saw his daughter Iffat Awan (deceased) lying unconscious in front of the northern verandah. There was hole on left side of her body over her heart. She was taken to Fauji Foundation Hospital, where the doctors advised him to take her to Jinnah Hospital. She was, however, taken to Agha Khan Hospital, and in the operation theatre she breathed her last. Police recorded his statement as Exh.4/A, when he reached his house which bears his signature. Police also inspected the house particularly the place of occurrence. He produced before the police two empties of bullets which were marked in Court as (Article "A"). They were found lying outside the northern verandah of the house. Police also recorded his further statement. Later he was put to an identification test by a Magistrate when appellants Khurram and Haroon were identified by him. His statement was also recorded under section 164, Cr.P.C. which he produced in Court as Exh.4/B. In his cross-examination he had stated that he neither knew any of the accused persons previously nor is aware of their residence. There used to be curfew in the area due to ethnic disturbances but when the incident had taken place there was relaxation in the curfew timings in that area. After the incident, the witness deposed that one Yaqoob Baig's son living in the same street had come to his house and helped them put Iffat Awan (deceased) in the car when they were leaving the house for hospital. After six months of the incident he went to the police station to enquire about the progress of the case. The identification test by the Magistrate was conducted on 23-5-1989 about 4 to 5 weeks after the incident and he was informed by the Police Officer to appear before the Magistrate at City Court. His daughter Azra Awan and two other witnesses namely Iqbal and Riaz were also put to identification test. In cross-examination the witness totally and repeatedly denied that he was shown the accused persons before identification test. It was admitted by him that he did not see appellant Fahim Siddiqui inside his house at the time of incident. In his statement Exh.4/B recorded under section 164. Cr.P.C. he had stated that after hearing first shot of fire, he went out and saw accused Khurram, Haroon Shafiqur Rehman and Shakil Khanzada.
Besides P.W.4, Muhammad Ali Awan, the prosecution had examined P.W.1 Ghulam Shabbir, Police Constable/Process-Server, P.W.2 Mauladad Khan, Sub-Inspector/Ballistic Expert, P.W.3 Asghar, Booking Clerk Imperial Cinema, P.W.5 Ijaz Baig, a student, P.W.6 Azra Awan, sister of deceased, P.W.7 Wali Muhammad Awan, Bank Officer and brother-in-law of deceased, P.W.8 Dr. Amanullah, Medical Practitioner and MA.O. at Annah Post- Graduate Medical Centre, P.W.9 Muhammad Riaz, Electrician, P.W.10 Rao Muhammad Iqbal, A.S.I., P.W.11 S.D.M. Mirpur Methelo, and P.W.12 Abdul Sattar S.H.O. of Police Station Shershah and also statements recorded under section 164, Cr.P.C.
The deposition of P.W.4, Muhammad Ali Awan the complainant and father of the deceased was corroborated by his other daughter P.W.6, Azra Awan, who was also residing in the said house at the time of incident and was in fact an eye-witness. In addition to what P.W.4 had deposed she stated that her sister Iffat Awan (deceased) was at a distance of 25 feet from the gate and was behind her about the same distance she saw two persons standing outside the gate of her house and identified one of them in Court as appellant Haroon. After a few moments when the deceased asked "who is there?" she saw two armed persons coming from the direction of the north side verandah. One of those two persons was Shakil (pointing out to him in Court) who was perhaps carrying a carbine (Article "G"). On seeing two armed persons coming towards Iffat Awan (deceased) she got very scared and started shouting "daddy.. daddy". She saw absconding accused Shafiqur Rehman coming to northern verandah of house towards her sister from where he fired at her close to her heart. While going away, he again fired at her. Before the accused Shafiqur Rehman could fire at the deceased she shouted, "What's the matter?" On receiving first shot, she fell down. The second shot fired by the accused Shafiqur Rehman had passed by her side and did not hit her. She had also seen Khurram Sharif and Fahim Siddiqui appellants with fire-arms running away and was identified by her in Court. She deposed that she knows one Mirza Ijaz Baig who is residing in her area, and had come down to her house after the incident. At the time she was griefly upset because of the incident and was busy in taking her sister Iffat Awan (deceased) to hospital. The police came to her house twice on the day of incident. Second time the police recorded her statement. By that time the witness came to know the names of all the accused throughout her neighbour Mirza Ijaz Baig. Prior to this incident she did not know Mirza Ijaz Baig. Her statement Exh.6/A was also recorded under section 164, Cr.P.C. before the Magistrate. On 23rd May 1989 she was put to an identification test by the Magistrate in City Court. She deposed in cross-examination that in her statement under section 164, Cr.P.C. she had not stated that she had learned the names of accused through their neighbour Mirza Ijaz Baig. She deposed that she went with her father to the City Court. She subsequently came to know that the house of Mirza Ijaz Baig is very close to her house on the southern side. Only a road separates his house from her. It was stated that her father was inside the house when the first shot was fired by the accused Shafiqur Rehman but by the time Shafiqur Rehman fired -the second shot her father came out and saw the second shot being fired. The culprits were standing outside the gate at a distance of 5 to 6 feet.
Ijaz Baig P.W.5 a resident of same area Shah Faisal Colony in his examination-in-chief had stated that the appellants were known to him personally by name. On the day of incident at 1-30 p.m. he was sitting outside his house when he saw six boys strolling in front of his house. Out of those six boys four were present before the Court. He pointed out to appellants Khurram Sharif, Muhammad Haroon, Fahim Siddiqui and Shakil Ahmed Khanzada whereas other two were Iqbal and Shafiqur Rehman who were not present before the Court. He deposed that out of these six persons Iqbal Ahmed (absconding accused) and appellant Fahim Siddiqui came to him and asked for drinking water. The witness told them that -he was fasting and went inside his house. Just after he went inside the house he heard fire shot. According to him, he had not seen any weapon in their hands when he saw them first time but on hearing the gun shot when he came out of his house he saw all the 4 appellants present in Court alongwith absconding accused Shafiqur Rehman and Iqbal Ahmed running away having arms with them. Giving details he stated that Iqbal Ahmed absconding accused who is not present appeared to be carrying a longish type of gun while appellants Shakil Ahmed and Khurram were armed with pistol type of weapons. Immediately he rushed towards the house of complainant Muhammad Ali Awan as the gun shots appeared to have come from the direction of the complainant's house. On going to the house of complainant he found his daughter Iffat Awan lying in front of the front gate of the house. The complainant was also present there. He stated that the complainant took his daughter in a car to hospital. By then number of people gathered there and police had come to the spot and recorded his statement. He also produced photostat copy of his statement recorded under section 164, Cr.P.C. as Exh.5/A.
P.W.7 Wali Muhammad Awan, is the brother-in-law of the deceased who upon receipt of information that the deceased had received a bullet injury, rushed to her house at about 4-00 p.m. In his presence two empty cartridges were recovered by the police. In cross-examination he deposed that the police reached there within 30 to 40 minutes when he was also examined. He produced Mashirnama as Exh.6/8. He learnt from P.W.5 Ejaz Baig that appellant Khurram Sharif, Haroon, Fahim Siddiqui and Shakil Khanzada and two others, namely, Shafiqur Rehman and Iqbal Ahmed had killed his sister-in- law Miss Iffat Awan.
P.W.9 Muhammad Riaz deposed that at about 12/1-00 p.m. he was going to find his partner Abdul Razzak who was residing in Drigh Colony. When he crossed Block No.2 of Drigh Colony (Shah Faisal Colony) he found the accused (pointing out towards Fahim Siddiqui, Khurram Sharif and Muhammad Haroon) with fire-arms alongwith another culprit who was not present before the Court. They were firing at a house (which he came to know belonged to the complainant) coming out from it. One of the culprits had T.T. pistol while the others had some arms like rifle. He went to police and was examined. He also identified the three accused Fahim Siddiqui, Khurram Sharif and Muhammad Haroon during the identification parade in presence of Magistrate where about 30/40 persons were standing in the line. The statement of the witness under section 164, Cr.P.C. was also recorded by the Magistrate.
P.W.10 Rao Muhammad Iqbal is S.I. of Police Station Gadab, according to whom on 10-5-1989 he received a spy information about appellant Fahim Siddiqui who was arrested by S.H.O. Abdul Sattar Detho in his presence and in the presence of P.Ws. Asghar and Zafar Farooq and another Mashir Zafar Farooq. A Klashnikov loaded with magazine, a plastic bag containing 21 live cartridges and another magazine with 8 cartridges were recovered from his person (Exhs.PA., P.B. and P.C.). Mashirnama was prepared on the spot as Exh.11. In cross-examination it was stated by him that during investigation in his presence Fahim Siddiqui informed the police of the involvement of appellants Haroon and Khurram Sharif in the crime and that they were available in Block No.3 of Shah Faisal Colony, where accused Khurram Sharif and Haroon were found sitting on Thalla in the street. Both the said accused were arrested. On personal search a pistol containing 4 live cartridges was secured from Haroon in the presence of Mashirs. Similarly, on personal search of accused Khurram Sharif one Carbine was recovered from the fold of his Shalwar in the presence of the Mashirs. In so far as the appellant Shakil Khanzada is concerned, on 29-10-1989 he was arrested from Colony Gate in the presence of Mashirs A.S.I. Rao Muhammad Iqbal and P.C. Samiullah, as per Mashirnama of arrest (Exh.13/D).
P.W.3 Asghar is a Booking Clerk at Imperial Cinema. In his presence on a date in May 1989, which he does not remember around 8-30 or 9-00 p.m., a few feet away from Chowrangi No.3, Shah Faisal Colony, Karachi, the police party arrested the appellant Fahim Siddiqui and recovered from him a Klashnikov wrapped by him around his body. This Klashnikov was fitted alongwith a magazine containing 40 live rounds. The appellant had failed to produce licence for the Klashnikov. Mashirnama was prepared on the spot. The witness has testified his signatures on the Mashirnama which was exhibited as 3/A and also a Klashnikov and magazine with 40 live rounds. He and the second Mashir went to the police from where the appellant Fahim Siddiqui led the police party and the 2 Mashirs to the Flour Mill in Shah Faisal Colony where on the pointation of appellant Fahim Siddiqui, two other appellants Haroon and Khurram Sharif who were standing outside the Mill were arrested by the police. The police also recovered from appellant Haroon a pistol which was hidden by him in the fold of his trousers and the pistol was fitted a magazine with 4 live rounds. Similarly, the police in his presence and in the presence of other Mashirs searched the person of accused Khurram Sharif who had also concealed a carbine inside the Chadar around his body. The appellant Khurram Sharif had failed to produce any licence for Carbine. This witness has produced Mashirnamas as Exhs.3/B and 3/C.
The prosecution had also produced P.W.11 Abdul Sattar Detho S.H.O. Police Station Shah Faisal Colony, Karachi. In examination-in-chief the P.W. stated that on 27-4-1989 he was S.H.O. of Police Station Faisal Colony. On that day during the patrolling he received information of the incident. On receiving such information the witness reached the place of incident and there he came to know that due to firing Miss Iffat Awan got injured and she had been taken to hospital by the complainant. The witness remained at the place of Wardat when complainant arrived. He told the witness that Miss Iffat Awan, his daughter, had died. The witness deputed A.S.I. who was there, to get the dead body from Agha Khan Hospital and directed him to take the same to Jinnah Hospital for post-mortem. The witness also passed message to S.I. Iqbal Hussain Shah to reach Jinnah Hospital in order to complete the requirement under section 174, Cr.P.C. The witness recorded the statement of complainant Muhammad Ali Awan under section 154, Cr.P.C. and sent it to Police Station Shah Faisal Colony for registration of the case. The witness deposed that Exh.4/A was the same statement which was recorded by complainant and bore his signature. The P.W. received F.I.R. of the case from Police Station Shah Faisal Colony for further investigation. The F.I.R. Exh.13/A was recorded by H.C. Nasiruddin and bore his signature. The witness visited the place of Wardat and secured two empties and prepared Mashirnama Exh.8/A in presence of Mashirs Wali Muhammad Awan and Maqbool Hussain which bore his signature and the signatures of witnesses. P.W. Abdul Sattar Detho examined Mrs. Zainul-Awan, Miss Azra Awan and Mirza Ejaz Baig and others. In the meantime S.I. Iqbal also arrived at the place of Wardat and handed over the inquest report of the memo of inspection of the dead body. The witness had examined Qasim Ali Shah and Muhammad Riaz. On 10-5-1989, the witness received spy information that accused Fahim Siddiqui was available near Shams Flour Mills, Block 3, Shah Faisal Colony: On getting such information the witness rushed to the pointed place and found accused Fahim Siddiqui there. The witness arrested the accused Fahim Siddiqui in the presence of the Mashirs A.S.I. Rao Iqbal, Zafar Farooq and Asghar. This witness after the arrest of appellant Fahim Siddiqui till the arrest of other two appellants namely, Haroon and Khurram Sharif has fully corroborated the deposition of P.W.10 Rao Muhammad Iqbal and has testified the articles of recovery and produced Mashirnamas. It was on 20-5-1989 that this witness had requested Mr. Shahzad Ali Naqvi, who at that time was A.C.M. Court No.IV, Karachi East for holding of identification parade and statement of P.Ws. under section 164, Cr.P.C. being Exh.12/C. Subsequently, he issued notices to P.Ws. The identification of the appellants was held under the supervision of P.W.12 when their statements under section 164, Cr.P.C. were also recorded. The property of the case was sent to Ballistic Expert after completing the investigation. On 29-10-1989 the witness arrested the appellant Shakil Khanzada from the Colony Gate in the presence of P.W.10 and P.C. Samiullah and produced the Mashirnama of arrest as Exh.13/D. This witness had also identified appellants Fahim Siddiqui, Shakil Khanzada, Haroon and Khurram Sharif.
The prosecution has also produced P.W.11 Syed Shahzad Ali A.C.M. Court No. V, Karachi-East. The witness deposed that on 20-5-1989 he was posted as A.C.M. when he received a request from S.H.O. of Police Station Shah Faisal Colony for holding identification parade in Crime No.152/89 of Police Station Faisal Colony P.W.10 and fixed 23rd May, 1989 for holding the identification parade. At about 2-00 p.m. on 23-5-1989 the identification parade was held in the Court. The accused were mixed with 30 different persons of the same age and stated that all the legal formalities for completion of identification parade were made. He stated that he called the witnesses separately one by one. P.Ws. Muhammad Ali and Azra identified Haroon and Khurram but did not recognize accused Fahim Siddiqui. P.W. Muhammad Iqbal identified all the accused. The witness said that he prepared such memo after identification and produced it as Exh. 12/B and S.H.O.'s letter as Exh.12/A and memo of identification parade; as Exh.12/B which bears his signature and also deposed that those 3 accused were the same persons in Court. On 20-5-19.39 S.H.O. also requested for recording the statement of P.W. under section 164, Cr.P.C. The P.W. fixed 23-5-1989 for recording statement. The copies of 164, Cr.P.C. statements of P.Ws. were supplied to police the same day and the statements were sealed in the envelope containing the statements under section 164, Cr.P.C. as Exh.12/D to Exh.12/J.
The prosecution has also produced and examined P.W.7 Dr. Amanullah on Exh.8 who produced Exh.8/A (post-mortem report) in which it is mentioned in external examination that a female about 20 years age was examined and in column 13 fire-arms injury left side chest medial side of the left breast 1/4" margin, rough, inverted (wound of entry) was found. On internal examination the following damages were found: -
(1) Chest cavity full of blood.
(2) Through and through hole found left lung, heart and right lung, heart empty.
Bullet lodge bag of mid of right chest was sealed and handed over to Sub-Inspector Syed Iqbal Hussain, clothes of the deceased were also sealed and handed over to the same Sub-Inspector.
On the external as well as internal examination the doctor gave the opinion that the death of deceased cast cardio respiratory failure, resulting from severe haemorrhage, shock caused by fire-arm. Time between death and post-mortem was about 3 to 4 hours and the above injuries were sufficient to cause the death in normal course of life.
P.W.1 Ghulam Shabbir is a Police Constable/Process-Server at Shah Faisal Colony Police Station East. He was entrusted with non-bailable warrant of accused Iqbal Ahmad and Shafiqur Rehman. He has returned N.B.Ws. of the said accused as unexecuted as Exhs3 and 4. P.W.2 Moula Dad Khan Ballistic Expert produced Exhs. 2/a, 2/b, 2/c and 2/d and stated that he had examined pistol recovered from the appellant, and also compared the marks up ruing on the two crime empties as Exhs. C/1 and C/2 He further examined the crime empties and test empties with the aid of comparison microscope and prepared at the chart Exh.2/C also his report Exh.2/D. In short, the marks of firing on the crime bullet corresponded with and were in agreement with the marks of firing on the test bullet.
The appellant Khurram Sharif has produced D.W.1 Muhammad Sharif his father, D.W.2 Muhammad Yamin Washerman and D.W.11 Noor-ul -Huda a family friend. The appellant Fahim Siddiqui has produced D.W.3 Shamsul Haq, his brother, D.W.7 Muhammad Saleem and D.W.8 Babu Khan his neighbours. Appellant Haroon has produced D.W.4 Zahoor Ahmed, D.W.5 Haji Muhammad Munsif, D.W.6 Mustafa Hussain neighbours and D.W.9 Haji Imam Din his father.
The defence of appellant Khurram Sharif was that he was a member of M.Q.M. and on the date of incident on 27-4-1989 he had gone to Tando Allah Yar for fixation of date of his marriage. His father D.W.1 Muhammad Sharif Khan has produced marriage card of his son. Both D.W.2 the Washerman as well as D.W.11 Shaikh Noor-ul-Huda have supported his version of being out of station on the date of incident. According to the latter appellant Khurram Sharif s father was released after the appellant was produced from Tando Allah Yar on 8-5-1989 at the police station.
The defence put up by Fahim Siddiqui appellant through his witness D.W.3 was that he was also a member and office-bearer of All Pakistan Mohajir Unit of the Government College of Technology. The police party took him from his house on the night in between 29th-30th April, 1989 at about 2/3 a.m. and asked him to accompany it to the house of Qasim Shah where the appellant Fahim Siddiqui has gone and in his presence the police apprehended Qasim Shah and appellant Fahim Siddiqui. It was…
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